Primogeniture, a rule of law which confers a dignity or estate in lands on a person in virtue of his being the eldest male of those who could inherit. A preference of sons to daughters was common to many of the ancient systems of law; but few or none of them recognized what in our time is meant by primogeniture. Among the Hebrews, the first born son as such received a double portion in his father's estate. If a Greek father died intestate leaving daughters only, his property went to his nearest kinsman. His will, if in such a case he made one, passed his estate not to his daughters, but to their future husbands. The earlier Roman law excluded daughters from the inheritance. Justinian first admitted them to share equally with their brothers. The Mohammedan law makes daughters heirs, but allows a twofold share to sons. The states of Europe which, after the decline of the Roman empire, made the later Roman law the basis of their jurisprudence, did not find in that code the doctrine of primogeniture. In France, it was not until the Capets came to the throne that even the prerogative of succession to the crown was reserved exclusively to the first born.
The lords promptly imitated the kings, and secured their fiefs to their eldest sons, and thus founded in France the droit d'ainesse. Whatever may have been in any country the immediate origin of primogeniture, the custom was no doubt everywhere the peculiar policy of the feudal system. To make certain and efficient the render of military service, which was at once the cause and consideration of the grant of feuds (or fees), it was expedient to render these indivisible. • The fittest successor to the original holder, as being the one first capable of doing military duty, was the eldest son; and to him accordingly the feudal law quite invariably transmitted the father's lands. - It is possible, perhaps probable, that in England, before the Norman conquest, the custom still prevalent in Kent, known as gavelkind, extended over the whole island. In virtue of this custom, the lands of one who died intestate, leaving sons and daughters, descend in equal divisions to the sons, exclusive of the daughters; but if lie leave no sons, then the daughters share alike.
But whatever be the truth in respect to this matter, certainly the conquest introduced the policy and rules of the continental feudal system, and thus prepared the way for the general adoption of the custom of primogeniture; so that eldest sons acquired the right of succession, primarily, to the lands held in fee, and consequently to the titles of dignity which were appurtenant to them. The canon of the common law touching descents which pertains to this subject is, that if a man dies seized of real estate of which he had the absolute ownership, without having made any disposition of it by his last will, the whole descends to his heir at law; and this heir at law is that one of his representatives who is the eldest male among those who are in the same degree of kindred. On this rule rests the English custom, and, as Gibbon calls it, the "insolent prerogative" of primogeniture. But large landed estates are perpetuated in families in England far less by this custom of primogeniture (which does not interfere with the owner's legal capacity of testamentary disposal) than by the system of settlements and entails, which rests on principles quite distinct from the former.
The English law once allowed land to be entailed interminably, but this power has been gradually reduced, until now the longest settlement can extend only 21 years beyond lives in being when it is made, and the preference of the eldest son, though universal, is in this case altogether voluntary, as in that of a will. Yet the entail very rarely expires with the original limitation, as the first heir on coming of age may join with the existing possessor in resettling the estate and so prolonging the entail. In case of personal property, the right of primogeniture does not exist. In France primogeniture was abolished in 1789, and since that period the tendency of legislation in all countries except the British islands has been to its abolition. In Portugal, where the custom of primogeniture most extensively prevailed, the younger sons of the great families, too proud to work, not rarely lived on alms. In France they crowded into the church and the army, or led a life of complete and often destitute idleness.