CHAPTER VIII.

CUSTOMS OF INHERITANCE AND FAMILY RELIGION.

Customs foreign to Celtic and Teutonic usage.-Anomalous laws of inheritance.Borough-English.—Maineté.—Jungsten-Recht.—Various theories of their origin.— Their wide extent.-Primitive forms in Wales and Shetland-In Cornwall and Brittany. - Distribution of Junior-right in England. - South-eastern district. Danish towns.-Customs of Kent.-Of Sussex. - Neighbourhood of London.Manor of Taunton-Deane.-Distribution on the Continent.-North-western France and Flanders.--"Theel-boors" of East Friesland-Germany-Bornholm-Russia. -Attempts to explain the custom.-Comparison with early forms of primogeniture. "Principals" or Préciput.- Eldest daughter. - The Law of the Sword. Glanville.-Bracton.-Old primogeniture customs in the Pays de Caux-IrelandNorway-Athens.—Religious origin.—Priesthood of the eldest.-Laws of Manu. — The domestic religion and its survivals.-The fire. -The remembrance-bowl. — Household spirits.-Feast of All Souls.-" Brande Erbe."-Theory of analogous origin of the Junior-right.-Priesthood of the youngest.-Early extension of Altaic peoples.-Mongolian and Ugrian junior-right.—Tchudic household superstitions.— The Mandrake.

NE might collect a large assemblage of English

ONE

country customs having no apparent affinity to Celtic or Teutonic usages, some living still in remote and simple districts, some dying and some dead, but all important and interesting to the student of ancient history. There are ceremonies of an old idolatry and relics of the worship of animals which will be more conveniently considered in a chapter devoted to mythology. Others are mere remnants of old codes and dooms of powers and principalities that have long since been merged in the modern kingdom; and for some no origin can even be guessed.

We shall confine our attention for the present to that anomalous class of usages, which in England are commonly

called Borough-English and are known abroad by such names as Maineté and Jungsten-Recht. The English

name is taken from a local word used in a trial of the time of Edward III. It appears from the report in the Yearbook for the first year of that reign that in Nottingham there were then two tenures of land, called burgh-Engloyes and burgh-Frauncoyes: "and the usages of these tenures were such, that all the tenements whereof the ancestor died seised in burgh-Engloyes ought to descend to the youngest son, and all the tenements in burgh-Frauncoyes to the eldest son as at the common law." It is said that Nottingham remained divided as late as 1713 into the English-borough and the French-borough, the customs of descent remaining distinct in each; and even at the present time there are similar customs in that neighbourhood." The law-courts take official notice of the strict custom of borough-English, by which the benefit is confined to the youngest son, and the name ought not in theory to be applied to any other usage. There are, however, many analogous rights additions and enlargements springing out of the original custom, by which a preference or pre-eminence in birthright is secured to remoter heirs. Such a custom establishes a new principle which is ever ready to extend itself until a new check is devised; and there are at any

1 Yearbook, I Edw. III. 12 a; Robinson's "Gavelkind," Appendix. 2 Corner's "Borough-English in Sussex," 14. He notices its prevalence in Scrooby and four other manors, and in the district called the Soke of Southwell. The custom in the last-named district is or was as follows:If a tenant had children by two or more wives, the youngest son of the first wife, or in default of sons her youngest daughter, took the family inheritance. If lands were purchased during a subsequent marriage, the youngest son of that marriage succeeded to the purchased lands. Complete Copyholder, 506; Blount's Tenures (Hazlitt), 290..

rate scores if not hundreds of little districts in England where the right has extended to females,-the youngest of the daughters, or as the case may be the youngest sister or aunt, being preferred above the other coheiresses.

These extensions of the custom are all called "boroughEnglish" by analogy to the principal usage, but they should be classified under some more general name. It is not easy, however, to find the appropriate word. We have a choice between "ultimogeniture," the awkward term proposed by the Real Property Commissioners of the last generation, and such foreign forms as Jungsten-Recht, and Juveignerie, which can hardly be excelled for simplicity; or one must coin a new phrase, like juniority or juniorright.

Every kind of explanation has been offered to account for the origin of these customs. To some they have appeared unnatural, to others they seem so simple that they might have been expected to grow up in every quarter of the world. But hitherto all the explanations appear to have been unsuccessful; and it may be that the problem is not only difficult but insoluble. The subject, however, is so interesting and so important to the comparative history of society, that it seems to be worth while to deal with the discussion once more, or at least to collect some of the materials which may hereafter be used for the solution of the long-standing difficulty.

If we are to describe the area from which we must collect examples of the junior-right, we shall find that it has flourished not only in England and in most parts of Central and Northern Europe but also in some remote and disconnected regions with which our subject is not at present concerned. We shall find it occurring among

Ugrian tribes about the Ural Mountains, in Hungarian villages, and in Slavonic communities; and we might trace its presence in Central Asia, on the confines of China, in the mountains of Arracan, and even, it is said, among the New Zealand Maories. It is plain that we must to some extent restrict the scope of our inquiry. We shall find reason later for extending it over a wider tract comprising the regions in the North and East of Europe and the neighbouring parts of Asia. But our attention will for the present be mainly directed to the Celtic countries and to those of the western peoples with whom the English nation is connected.

We have not as yet found examples of this exceptional law either in Scotland or in Ireland.1 In the Shetland Isles, however, it was the practice, from whatever source derived, that the youngest child of either sex should have the dwelling-house when the property came to division."

The custom appears in Wales in what was probably its most primitive form. According to the laws of Hoel the Good, dating from the tenth century at latest, the inheritance was to be so divided that the homestead with eight acres of land and the best implements of the household should fall to the youngest son. The different editions of

these laws are contained in the Dimetian Code for South Wales, and in the Venedotian Code for "Gwynnedd" or the northern parts of the principality. Both are to the

1 For a discussion of the question, whether a preference of the youngest, similar in kind to the custom of borough-English, can be traced in the old Irish family settlements, see Maine, Hist. Earl. Inst. 210, 216, 223; Senchus Mor. ii. lv. 279; iii. cxl. 333, 493; McLennan, Studies, 452. As to Hungary, see Kövy, Summ. Juris. Hungaric. s. 351.

2 Wallace, Description of Orkney, 91.

same effect as regards the point in question; but the former is the more precise and best adapted for quotation: "When brothers share their patrimony" (so ran the enactment or statement of custom) "the youngest is to have the principal messuage (tyddyn), and all the buildings and eight acres of land, and the hatchet the boiler and the ploughshare, because a father cannot give these three to anyone but his youngest son, and though they are pledged yet they can never become forfeited: then let every son take a homestead with eight acres of land; and the youngest is to divide, and they are to choose in succession from the eldest unto the youngest."1 But the rule only applied to estates comprising at least one inhabited house; and on dividing a property of any other kind the youngest son was entitled to no exceptional privilege.1

The privilege of the youngest existed in other Celtic districts, as in parts of Cornwall and Devon, and in several extensive lordships in Brittany. But we have no means of estimating its original influence in the last-named region; for when the customs of the province were codified by the feudal lawyers the nobles set their faces against the abnormal usage; and we are told that in the seventeenth

1 Leges Walliæ (Dimet. Code), ii. 23, (Venedot. Code), ii. 12, 16. Compare the customs of Lille :-" Du droit de Maisneté. Par la coutume, quand père ou mère termine vie par mort, délaissant plusieurs enfans, et un lieu manoir et heritage cottier venant de son patrimonie, au fils maisné appartient droict de maisneté audit lieu et héritage. Pour lequel il peut prendre jusques à un quartier d'héritage seulement au moins si tant ne contient le dit lieu: avec la maîtresse chambre, deux couples en la maison, la porte sur quatre esteux, les porchils carin fournil et colombier, s'ils sont séparez, le burg du puich, et tous arbres portant fruicts et renforcez, et autres choses reputées pour héritages, &c. En deffaut de fils la fille maisnée a pareil droict en faisant recompense telle que dessus." Coutûmier Général, ii. 901. Compare also the similar customs of Cassel, ibid, i. 699.