Tuesday, August 7, 2012

Primogeniture - Part 3

Primogeniture - Part 3

            Ancient Greece and Italy even had their role in the position of birth and the son’s inheritance value. Athenian eldest sons not only inherited the property of their father, but also the household gods, which had actually been more important to them. As in the early Hindu’s, this was the man to take his father’s name. The younger sons had no right to the name.[1] All of this changed in Classical Greece, where the equal division of the household between the sons became the tradition.[2]

            The traditions of the Irish and Scottish tribes and their rule of tanistry began the right to rule of the eldest natural son.[3] Tanistry had at its heart the easy transition of rulership of the chieftains.  Under this law, tenure of family lands was held in life estate and was not owned.  Chieftains, elected immediately after the accession of the previous leader had in practice been the eldest because he was supposed to have been the most worthy of the throne. The Tainiste, as he was then called, received his ring of rule on the left hand ring finger. He then had to prove his origin by genealogies.[4]

            Origins of Roman men became very important toward the end of the Empire.[5] Emulating the higher classes was commonplace in any society. Following the examples of the emperors leaving property and titles to their sons was just conforming to the rules of the identifying leaders of that society.[6] Thus, the nobles then felt they were members of the ruling class and not mere plebeians. Also, coming into contact with tribes ruled by tanistry laws certainly could have been a contributing figure as the Romans tended to incorporate foreign traditions within their own.[7] 

When Rome fell, the ascension of Christianity became the dominant ruling force in the west. Traditions of the Bible also became a feeding ground for learning. Primogeniture can be seen in The Holy Bible when Moses left and took Aaron, and his son Eleazar, to the top of a mountain. At God’s command Aaron died, and Moses took Aaron’s cloak and put it over his son Eleazar signifying that he had taken his father’s place amongst the people of Israel.[8]

Slowly, the place of the eldest son keeping the possessions of his father moved into the realm of feudalism. Feudalism took the line of able rulers into the world of able rulers and his successors. Political power of the fittest fell into line with the self-indulgent monarchs that believed their sons had the same qualities they had. Hereditary lineage affirmed the strength of the original king, prince, or even baron.[9] It did not conceive of a notion that the descendents could not be as great as their ancestry.

The Law of Primogeniture

King Stephen, of England, wanted to restore his own royal authority to the same strength as his grandfather, William the Conqueror. The king had also been considered the protector of the realm according to Anglo-Saxon tradition.[10] When William came to England, he brought with him the might of the Norman army. He also brought with him the idea he would rule England with a fist, and his own son would become heir to the English country. England had been left to William’s second son William, while the Duchy of Normandy was left to his eldest son, Robert Curthose. The third son, Henry, had received only cash.[11]

Here is where the true beginning of primogeniture in England takes place. William and Robert died leaving Henry the throne of England. Henry had many illegitimate children, but only one son born in wedlock. This only son died, leaving no legitimate heir. Stephen was the son of William the Conqueror’s daughter, and he laid claim to the throne.[12] His son, Henry II made many reforms of the realm that included the creation of the English common law.[13]

            Common Law of the English went hand in hand with titles and other honors. Receiving a title from the King brought gifts of land that required lineage. Because there had been no genealogical foundation from previous generations, many began to think there had to be equality, or even betterment, in future generations. Thus, the idea of guarantee of worth actualized in the law. The law started as common before it became a decree.[14]

            King Henry I created the decree that issued the law of primogeniture. The decree issued that the capital fee, including the mansions and military possessions of the father, went to the oldest son of the deceased.[15]  In the time of Henry II, the law of inheritance depended upon whether the patriarch had been a civil servant, or one of military servitude. The youngest son inherited where the old English laws prevailed in the civil arenas. However, if the father had been in martial service, all of his property went to the eldest son.[16] By the time that Henry III had acquired the English throne, primogeniture had taken over the land.[17]

            Entail, jointure and dower rights could not be dismissed because they had been within British common law. The law of primogeniture had not been written down. However, just as the other laws within the common law system they were considered normal for the realm, and thus had been constituted legally. Primogeniture had not consumed the country in its entirety at one time. The assimilation process took many years and generations, but finally did consume the nobility, along with its prestige of situation.[18]

One reason primogeniture became popular was the lord of the realm wanted a situation where the integrity of his land remained safe within his own bloodline. To fortify the estate within his down line, the law of primogeniture was set into motion. The problem with entailing property had been that once it was set in motion, it was unable to be undone, at least not until the sixteenth century. Even at this late date, a long and strenuous law suite could only break land given in tale and took many years, and thousands of pounds to procure. So therefore the paternity of the inheritor had to be completely established prior to the death of the patriarch.[19]

            Inheriting honors, such as titles and estates, had generally been presented upon the eldest son. However, this had only been properties that were inherited as such from the father, and in some cases the mother, at their birth. Any new properties that had been gained by the parents would have been able to be distributed as was wanted. Those new additions could have been divided evenly amongst the brood, or given to the second son, third son, or any daughter. At the moment of gift, the benefactor decided if this property was to have been given in tail, thus creating a new dynastic allowance.[20]

            Allowances also had to be given as dower gifts. Beginning in the Middle Ages, gifts to daughters went away from real estate and instead were gifts of jewels, furnishings, and money.[21] However, the daughter-in-law’s dower came into being at this time. This dower was set as usually one-third of the property for her lifetime in case of widowhood.[22] This had been a problem when there had been multiple widows on any given property. This happened if the patriarch died and left his property to his eldest son, who also predeceased his wife, and so on.

In some cases jointure allowed the wife equal ownership privileges until her death, even if she had been a consecutive wife with inheritable sons from a previous marriage.[23] Keeping the property for the widow had not been the issue in this instance. The point was to create a livelihood for the woman after the death of her husband. When the patriarch died while the property had been in jointure, it still belonged, in name as well as in deed, to the widow. She could do with it whatever she wanted even going as far as to entail the property to sons of later marriages.[24]

             Marriage rights had also been conferred upon others. Life-estate guarantees for other offspring, and even subsequent husbands of widows with dower and/or jointure rights, had also held property rights in check. On the outside, it sounded completely opposite from the ideal of primogeniture, and yet it still guaranteed domiciles and incomes for persons outside the original model of protection.[25] While this had certainly been in the minority, it did exist especially if the property had been held in jointure. Fathers had even set themselves up a life-estate to guarantee themselves a home as he entailed his property to a younger son.[26]

Problems With Reality

            Initially the inheriting child had been expected to be the oldest legitimate son. That son had been expected to have at least one son to continue the nobility line of property and titles.[27] The problem with this was that prior to the 19th century, only 60 percent of children grew to adulthood due for many different reasons.[28] Given the blessings of multiple male births, there had still been no guarantee that the honors generated by one generation followed through to perpetuity as was intended. Child morbidity had been caused by child malnutrition, disease, accidents, and even unexplained deaths such as the twelve year-old King Edward V, his brother Richard and also Kind Edward VI.[29]  

            Death of the child heir had been only one problem. Deaths of male heirs without themselves procreating their own divine male children to continue the bloodline had continued to be a problem even if there had been many sons. Having many children, the next line of men died before inheriting and/or procreating. It had not been uncommon to have a family line completely extinct by just a few generations. In fact, out of the original 136 baronial families of Parliament, there had been only sixteen left a little over a hundred years later.[30]

             Extinction of the families had to do with the fecundity rate as well as death. The production of the next generation had been the job of the wife. Life patterns such as quality of life would have typically allowed the woman a better living environment to sustain pregnancy. And they would also have had a better diet, which should have assured the best possible probability for gestation. However, health of the father also had its role. Sexually transmitted diseases from previous, and/or extramarital encounters, transferred to the pregnant mother and changed the conceivability ratio. Then, there had been just plain bad luck that had its own role in family propagation.[31]

            Giving birth to the proper sex had also been an issue. Women could inherit, however common law stated that property had to go to the eldest male heir. When there was no person of the correct gender within the down-line, lateral inheritors had to have been located. This had been done by going back up the genealogical ladder, then moving laterally along a familial record to find another descent hierarchy that eventuated in a worthy male.[32] Women not being able to have access to their ancestry bower had created such a stir that it invaded popular women’s novels of the nineteenth century. Jane Austen’s character Mrs. Bennet cried when she found out that the heir was to be visiting their household, “I do think it is the hardest thing in the world, that your estate should be entailed away from your own children…”.[33] While this was just a character from a novel, this showed that the reality of primogeniture created situations where properties in tail had brought in new owners.

            Other new owners had been created because parents had used the inheritable property as a bribe to control the conduct of their children. When the heir ran off with the wrong woman, or even refused to follow the guidelines set out by a parent, their inheritance had been used as bait. When the child was not completely dutiful, that protection had been pulled out from under their feet. Again, this had been so prevalent that Austen included this situation in Sense and Sensibility. Edward, the eldest son in this novel, had prearranged a secret engagement with an unacceptable woman, and “His mother has determined, with a very natural kind of spirit to settle that estate upon Robert (the youngest son) immediately, which might have been Edward’s on proper conditions.”[34]

Having an encumbrance meant that the intended son may have never had the opportunity to enjoy the honors that should have been his. Life-estates where the father lived much longer than was expected put the son in a position where he had been tenant in his own home, while the holder of the life-estate had the complete enjoyment of the property. Sectioning off property for dowry had given the same type of hypothecation. Common Law guaranteed these rights to women if they did not stay on the property. Women used their portions, sometimes from multiple husbands, as income property instead of residency.[35] When there had been multiple dowers on one property, the income, as well as tenancy had been reduced for the heir apparent.

When the rightful heir actually received estates free of encumbrance, there had still been many instances where he could not enjoy his own property. One reason was that there was no money that came along with the deed.[36] Finding themselves land rich and cash poor, these men had to do something to take care of the real estate that they had inherited. They did this by leasing out land, but much more usually, the grand manor.[37] Once again, having possession of the deed did not necessarily mean that they had the enjoyment of the domain.

Attorneys arranged the details of the lease, or a letter would have also sufficed “I see my Lady Sydney is desirous to have your house this winter. If it please you that she have it, upon condition that if you come to London yourself then you may have it upon 2 days warning, to be made ready for you, it were not amiss…” was the agreement of Lady Bess to the Queen of England.[38] The eighteenth century saw the solicitors involved. “Mr. Shepherd, a civil, cautious lawyer, who, whatever might be his views on Sir Walter, would rather have the disagreeable prompted by anybody else, excused himself from offering the slightest hint, and only begged leave to recommend an implicit reference to the excellent judgment of Lady Russell, from whose known good sense he fully expected to have just such resolute measures advised as he meant to see finally adopted.”[39] In Jane Austen’s novel, Sir Walter, the heir presumptive of Kellynch Hall, had to submit to the wishes of Lady Russell and his lawyer to lease out the estate and retire to a more modest abode. In both cases, the property had not been in the hands of the heir.

Another example would have been when the property escheated to the Crown.  This occurred if the father had died before times wills had been the norm, or later after wills had been established, had died intestate. If, for some reason there had been any type of religious heresy, or even worse there had been treasonous acts against the monarch, property reverted to the Crown. The King removed legal ownership from the hands of the contemporary owner, and gave it to someone of more amenable temperament and loyalty.[40] Again, the male given rights by primogeniture had lost them to someone else.

            Loyalty to the Crown had its advantages with the law of primogeniture. This loyalty allowed properties to safely transfer from heir to heir through multiple generations without going outside of the family line. While there may have been collateral movement to conclude the title, it still maintained familial ties. One such property was Chatsworth Hall, which came to Bess of Hardwick with her second husband, Sir William Cavendish, in 1545. This great manor has stayed in her family ever since, and has the current heir living there presently.[41]


            Primogeniture had been put into place to insure the integrity of the honors, especially those that had included grand estates, which had been generated by the achieving patriarch. Common Law slowly turned the societal norm into a formal rule. The eldest son had many reasons to rejoice, but they had not always included the enjoyment of his inheritable lands. Due to many circumstances, familial lines became extinct. Properties had to be leased out. Other encumbrances to property included life-estates, dower rights, and jointure. These all had impeded the rightful heir from receiving his full use of his familial honors.

The intention of primogeniture had been to make sure that the descendents of the patriarch held his lands in perpetuity. In reality this had not been the case. There had been too many instances of death, low fecundity, religious or political strife, and just not enough money to take care of the property. The eldest son, of the eldest son, of the founder of the family dynasty had, more than likely, not inherited. In many instances the grand estates had found themselves with masters other than what had been intended.

Originally written for class at American Military University.

[1] Ibid, 10.
[2] Ibid, 11.
[3] Ibid, 12.
[4] Joseph M. Sullivan. “The Ancient Irish Law of Tanistry”. Heinonline. N.d. http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/tgb20&div=112&id=&page=. (accessed July 10, 2012).
[5] Cecil, 16.
[6] McJimsey, 7.
[7] Marcel Le Glay et al. A History of Rome, 4th Ed. (Malden, MA: Blackwell Publishing, 2009.), 526-527.
[8]Holy Bible, The.  Numbers 20:21.
[9] Cecil, 19.
[10] Hudson.
[11] Charles Phillips. Kings & Queens of Britain. (London: Hermes House, 2009.), 33-33.
[12] Ibid, 35-39.
[13] Hudson.
[14] Frances and Joseph Gies. Marriage and Family in the Middle Ages. (New York: Harper & Row, Publishers, 1987.), 186.
[15] Cecil, 33.
[16] Ibid, 34.
[17] Ibid, 36.
[18] Ibid, 37.
[19] Gies, 186-188.
[20] Ibid, 188.
[21] Ibid, 189.
[22] Ibid, 189-190.
[23] Ibid.
[24] Ibid, 191.
[25], Gie, 38.
[26] Cecil, 36.
[27] Ibid.
[28] Stephen Molnar and Iva M. Molnar, Environmental Change and Human Survival: Some
Dimensions of Human Ecology. (Upper Saddle River, NJ: Prentice-Hall, Inc., 2000.),
[29] Phillips, 88,108.
[30] Gies, 9.
[31] “Home Remedies for Fecundity” Organic Facts. 2012. http://www.organicfacts.net/health-benefits/home-remedies/home-remedies-for-fecundity.html. (accessed July 14, 2012).
[32] Gies, 190-191.
[33] Jane Austen. Pride and Prejudice. 1813. in The Works of Jane Austen. (Ann Arbor, MI: Borders Group, 2004.), 207.
[34] Austen. Sense and Sensibility. 1811. in The Works of Jane Austen. (Ann Arbor, MI: Borders Group, 2004.), 123.
[35] Lovel, 364.
[36] Ibid, 365.
[37] Cecil, 51.
[38] Bess of Hardwick letter written to Queen Elizabeth. 1575. Quoted in Lovel, 253.
[39] Austen, Persuasion. 1816. in The Works of Jane Austen. (Ann Arbor, MI: Borders Group, 2004.), 601.
[40] Ibid, 57.
[41] Jenkins, Simon. England’s Thousand Best Houses. (New York: Penguin Group, 2004.), 145-146.

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