depended to an extent far greater than is the case now, this theory gave the right to pass over an infant or an incapable heir, in favour of a prince of more mature age, and more fit to reign. It is only in a comparatively settled state of things that a nation can afford to make the personal fitness of its ruler a matter of minor importance. Important it must always be, and a rash, foolish or unworthy ruler—whether he be called king or emperor or president—can do incalculable mischief; but in ancient times he could absolutely ruin a country. For obvious reasons, however, the natural course was for the eldest son to succeed. Power cannot be divided between the members of a royal family. But where the possession of land is concerned, the case is entirely different.
In England primogeniture was introduced by the Conquest. But this is only true of lands held by knight-service—soccage estates often descended to all the sons equally, as late as the reign of Henry II. Primogeniture came in gradually. Henry I., as a compromise between the old laws and the new—Saxon and Norman—directed that the eldest son should have the principal estate, the rest, if there were others, to be divided among all the sons. But by Henry III.'s time soccage lands had almost entirely fallen into primogeniture. Only in Kent and in parts of Sussex did the old Saxon tenures of Gavelkind and Borough English still linger.[1] In those counties the presumption was that lands descended by Gavelkind, and the contrary must be proved by a claimant. In all other parts of England primogeniture was presumed, unless Gavelkind could be shown.
By the system of entails, the land must descend to the next direct heir. But it often happened that a tenant-in-tail wished to alienate his land, and innumerable devices and legal fictions were invented to enable him to do so.
De Donis was in force for two hundred years; and all this while entails could not be barred, though ever since the reign of Edward III. the Chancery lawyers had been hinting that recoveries could bar them. But it was never done till the twelfth year of Edward IV. (1473). That astute monarch (who, whatever his superior legal right, actually
- ↑ Gavelkind divided the lands among all the sons; Borough English gave the land to the youngest son.
