re which seems to have prevailed never transformed itself
into the Primogeniture of the later feudal Europe. When the group of
kinsmen ceased to be governed through a series of generations by a
hereditary chief, the domain which had been managed for all appears to
have been equally divided among all. Why did this not occur in the
feudal world? If during the confusions of the first feudal period the
eldest son held the land for the behoof of the whole family, why was
it that when feudal Europe had consolidated itself, and regular
communities were again established, the whole family did not resume
that capacity for equal inheritance which had belonged to Roman and
German alike? The key which unlocks this difficulty has rarely been
seized by the writers who occupy themselves in tracing the genealogy
of Feudalism. They perceive the materials of the feudal institutions,
but they miss the cement. The ideas and social forms which contributed
to the formation of the system were unquestionably barbarian and
archaic, but, as soon as Courts and lawyers were called in to
interpret and define it, the principles of interpretation which they
applied to it were those of the latest Roman jurisprudence, and were
therefore excessively refined and matured. In a patriarchally governed
society, the eldest son may succeed to the government of the Agnatic
group, and to the absolute disposal of its property. But he is not
therefore a true proprietor. He has correlative duties not involved in
the conception of proprietorship, but quite undefined and quite
incapable of definition. The later Roman jurisprudence, however, like
our own law, looked upon uncontrolled power over property as
equivalent to ownership, and did not, and, in fact, could not, take
notice of liabilities of such a kind, that the very conception of them
belonged to a period anterior to regular law. The contact of the
refined and the barbarous notion had inevitably for its effect the
conversion of the eldest son into legal proprietor of the inheritance.
The clerical and secular lawyers so defined his position from the
first; but it was only by insensible degrees that the younger brother,
from participating on equal terms in all the dangers and enjoyments of
his kinsman, sank into the priest, the soldier of fortune, or the
hanger-on of the mansion. The legal revolution was identical with that
which occurred on a smaller scale, and in quite recent times, through
the greater part of