Primogeniture


Primogeniture is the right, by law or custom, of the firstborn legitimate child to inherit the parent's entire or main estate in preference to shared inheritance among all or some children, any illegitimate child or any collateral relative. In most contexts it means the inheritance of the firstborn son ; it can also mean by the firstborn daughter.
The common definition given is also known as male-line primogeniture, the classical form popular in European jurisdictions among others until into the 20th century. In the absence of male-line offspring, variations were expounded to entitle a daughter or a brother or, in the absence of either, to another collateral relative, in a specified order. Variations have tempered the traditional, sole-beneficiary, right or, in the West since World War II, eliminate the preference for males over females. Most monarchies in Western Europe have eliminated this, in succession: Belgium, Denmark, Luxembourg, Netherlands, Norway, Sweden and the United Kingdom.
English primogeniture endures mainly in titles of nobility: any first-placed direct male-line descendant inherits the title before siblings and similar, this being termed "by right of substitution" for the deceased heir; secondly where children were only daughters they would enjoy the fettered use of an equal amount of the underlying real asset and the substantive free use would accrue to their most senior-line male descendant or contingent on her marriage ; thirdly, where the late estate holder had no descendants his oldest brother would succeed, and his descendants would likewise enjoy the rule of substitution where he had died. The effect of English primogeniture was to keep estates undivided wherever possible and to disinherit real property from female relations unless only daughters survived in which case the estate thus normally results in division. The principle has applied in history to inheritance of land as well as inherited titles and offices, most notably monarchies, continuing until modified or abolished.
Other forms of inheritance in monarchies have existed or continue. The Holy Roman Emperor was selected for enthronement by a small number of powerful prince electors from among Europe's Christian males of inherited nobility. Currently, succession to the Saudi Arabian throne uses a form of lateral agnatic seniority, as did the Kievan Rus', the early Kingdom of Scotland, the Mongol Empire or the later Ottoman Empire.
Research shows that authoritarian regimes that rely on primogeniture for succession were more stable than forms of authoritarian rule with alternative succession arrangements.

Order of succession in monarchies today

Absolute primogeniture

Absolute, equal, or lineal primogeniture is a form of primogeniture in which gender is irrelevant for inheritance. No modern monarchy before 1980 implemented this.
The Basques of the Kingdom of Navarre transmitted title and property to the firstborn regardless of sex; their higher nobility and free families in the early and high middle ages followed this custom. The Navarrese monarchy, however, was inherited by dynasties from outside of Navarre, which followed different successional laws, usually male preference primogeniture. Eventually only the Basque lower nobility and free families of the Basque country and other regions continued to follow this custom, which persisted as late as the 19th century.
An ancient and alternative way in which women succeeded to power, especially without displacing the direct male line descendants of the first monarchs, was consortium or coregency between husband and wife or other relatives. The most notable are the Egyptian cases of Hatshepsut and Thutmose III, and the monarchs of the Ptolemaic Dynasty.
In 1980, Sweden amended its constitution to adopt royal succession by absolute primogeniture, displacing King Carl XVI Gustaf's infant son, Prince Carl Philip, in favor of his elder daughter, Princess Victoria, in the process. Several monarchies have since followed suit: the Netherlands in 1983, Norway in 1990, Belgium in 1991, Denmark in 2009, Luxembourg in 2011, and the Commonwealth realms in 2015.
Monaco, the Netherlands, and Norway also deviated from traditional primogeniture in the late 20th or early 21st century by restricting succession to the crown to relatives within a specified degree of kinship to the most recent monarch.
Recently, other monarchies have changed or considered changing to absolute primogeniture:
Under agnatic primogeniture, or patrilineal primogeniture, the degree of kinship is determined by tracing shared descent from the nearest common ancestor through male ancestors. Those who share agnatic kinship are termed "agnates"; those whose shared lineage includes a female ancestor are "cognates".
There were different types of succession based on agnatic primogeniture, all sharing the principle that inheritance is according to seniority of birth among siblings and seniority of lineage among the agnatic kin, firstly, among the sons of a monarch or head of family, with sons and their male-line issue inheriting before brothers and their issue. Females and female-line descendants are excluded from succession.

Male-preference primogeniture

Male-preference primogeniture accords succession to the throne to a female member of a dynasty if and only if she has no living brothers and no deceased brothers who left surviving legitimate descendants. A dynast's sons and their lines of descent all come before that dynast's daughters and their lines. Older sons and their lines come before younger sons and their lines. Older daughters and their lines come before younger daughters and their lines.
It was practised in the succession to the once-separate thrones of England and Scotland and then the United Kingdom until 2015, when the Succession to the Crown Act 2013 changed it to absolute primogeniture. The rule change also applies to all Commonwealth realms that have the British monarch as their head of state.
Male-preference primogeniture is currently practised in succession to the thrones of Monaco and Spain.
With respect to hereditary titles, it is usually the rule for Scotland and baronies by writ in the United Kingdom, but baronies by writ go into abeyance when the last male titleholder dies leaving more than one surviving sister or more than one descendant in the legitimate female line of the original titleholder.

Matrilineal primogeniture

Matrilineal primogeniture, or female-preference uterine primogeniture, is a form of succession practised in some societies in which the eldest female child inherits the throne, to the total exclusion of males. The order of succession to the position of the Rain Queen is an example in an African culture of matrilineal primogeniture: not only is dynastic descent reckoned through the female line, but only females are eligible to inherit.
The Khasi Community of Meghalaya, India is an example of matrilineal inheritance where the youngest daughter inherits all or the largest chunk of the ancestral estate. Elder sisters may also inherit shares of the family estate, but their shares are much lesser when compared to the share of the youngest sister. The sons may inherit a relatively small portion, or in most cases, they do not inherit any immovable property at all.
In South India, the throne of the erstwhile Kingdom of Travancore was inherited only by the sons of the Queen of Attingal.

Preference for males

The preference for males existing in most systems of primogeniture comes mostly from the perceived nature of the tasks and role of the monarch: a monarch/prince most usually was, first and foremost, a military leader, as in the millennia-old Book of Numbers.
Social norms pointing to kings further flow from making clear, first-generation survivors, so to avoid civil war. Lacking advanced healthcare and resource-conscious family planning mothers faced high risk in enduring such regular childbirth. Also in pre-20th century medicine about 10% of women could not have children. Added to this, on any necessary remarriage from death in childbirth. The king would have socially entrenched powers over their new spouse: financial and any rivalry of a new queen consort by her personal and companions' physical strength was with in the chivalric norm far-fetched so far as it might present a challenge to her ruling husband, if proving relatively able. Times of turbulence were more likely when a queen regnant/female main heir allowed to inherit was married to or remarried to a similar-status foreign leader, as was conventional for high-status women for their family security and diplomacy. Such a situation was a major source of civil wars; one example is the Spanish Armada. Henry VIII of England did not wait until death and remarried twice on the basis of lack of producing a male heir, on the second occasion beheading his queen "for witchcraft". A small minority of monarchs in many countries have openly made their heir an illegitimate child; stories abound of others as newborns brought to the expectant queen consort such as to James II of England "in a bedpan". Under any of these considerations: sons, some of whose lives were in times of war likely to be lost in battle, could be expected to produce more heirs. Eldest daughters could find themselves under a situation of duress on remarriage, and the concept of the trophy bride if the husband were slain is one resonant in many cultures especially before the 20th century.
Queen Elizabeth II is a descendant of Henry's illegitimate daughter Constance but so too her sister Empress Matilda and has two other known illegitimate ancestors.

Arguments

Arguments in favour

Primogeniture by definition prevents the subdivision of estates. This lessens family pressures to sell property, such as if two children inherit a house and cannot afford to buy out the other.
In much of Europe younger sons of the nobility had no prospect of inheriting by death any property, and commonly sought careers in the Church, in military service, or in government. Some wills made bequests to a monastic order for an already suitably educated, disinherited son.
Many of the Spanish Conquistadors were younger sons who had to make their fortune in war. In the late 17th and early 18th centuries, many younger sons of English aristocrats specifically chose to leave England for Virginia in the Colonies. Many of the early Virginians who were plantation owners were younger sons of landed gentry who had left Britain and Ireland fortuneless due to primogeniture. These were key ancestors of the Founding Fathers of the United States of America.
In Japan, the Imperial chronologies include eight reigning empresses from ancient times up through the Edo period; however, their successors were most often selected from amongst the males of the paternal Imperial bloodline, which is why some conservative scholars argue that the women's reigns were temporary and that male-only succession tradition must be maintained. Japanese empresses such as Empress Genshō, who succeeded her mother the Empress Gemmei on the throne, remain the sole exceptions to this conventional argument.

Arguments against

The fact that the eldest son "scooped the pool" often led to ill-feeling amongst younger sons. Through marriage, estates inherited by primogeniture were combined and some nobles achieved wealth and power sufficient to pose a threat even to the crown itself. Finally, nobles tended to complain about and resist rules of primogeniture.
In Democracy in America, Alexis de Tocqueville observes that abolition of primogeniture and entail as to property results in faster division of land. However primogeniture's forcing landless people to seek wealth outside the family estate to maintain their standard of living accelerated the death of the landed aristocracy and, in his view, thus, quickened the shift to democracy.

Other terms

Salic law

An agnatic primogeniture system that excludes any female from inheritance of a monarch's principal possessions is generally known in western Europe as an application of the "Salic law". This is something of a misnomer; although Salic law excludes female lines, it also mandates partible inheritance, rather than primogeniture. This rule developed among successions in France in the later Middle Ages. In 1316, Joan, the only surviving child of Louis X of France, was debarred from the throne in favor of her uncle, Philip, Count of Poitiers. After this it was declared that women could not inherit the French throne. Then in 1328, after the death of Charles IV, Philip, Count of Valois, became king, notwithstanding the claims of Edward III of England. By proximity of blood, Edward was closest related as eldest son of the sister of Charles, Isabella. The assemblies of the French barons and prelates and the University of Paris resolved that males who derive their right to inheritance through their mother should be excluded. This ruling became a key point of contention in the subsequent Hundred Years War. Over the following century, French jurists adopted a clause from the 6th century Pactus Legis Salicae, which asserted that no female or her descendants could inherit the throne, as a governing rule for the French succession.
In the lands of Napoleon Bonaparte's conquests, Salic law was adopted, including the French Empire, the Kingdom of Westphalia, the Kingdom of Holland and, under Napoleonic influence, the House of Bernadotte's Sweden. Other states adopted Salic primogeniture as well, including Belgium, Denmark and all of the eastern European monarchies except Greece, i.e. Albania, Bulgaria, Montenegro, Romania, and Serbia. During this era, Spain fought a civil war which pitted the Salic and female-line heirs of the ruling dynasty against one another for possession of the crown.
A variation of Salic primogeniture allowed the sons of female dynasts to inherit, but not women themselves, an example being the Francoist succession to the throne of Spain that was applied in 1947-1978.
;British and French titles of nobility
Many descend by salic, male primogeniture so have a greater average rate of extinction. Many others if the title is otherwise to be extinct pass to the closest elder sister or a line of descendants to the last holder, as abeyant holders, such being parents or ancestors to whichever direct male descendant is first born to 'settle the abeyance'. Some senior agnatic cadets are granted from the outset courtesy or subsidiary titles. Notable English exceptions are the Duchy of Lancaster, which is merged with the British Crown which has included women in inheritance since the 16th century, and the Dukedom of Marlborough, which has done so since its establishment in 1702.

Semi-Salic law

Another variation on agnatic primogeniture is the so-called semi-Salic law, or "agnatic-cognatic primogeniture", which allows women to succeed only at the extinction of all the male descendants in the male line. Such were the cases of Bourbon Spain until 1833 and the dominions of Austria-Hungary, as well as most realms within the former Holy Roman Empire, i.e. most German monarchies. This was also the law of Russia under the Pauline Laws of 1797 and of Luxembourg until equal primogeniture was introduced on 20 June 2011.
There are various versions of semi-Salic law also, although in all forms women do not succeed by application of the same kind of primogeniture as was in effect among males in the family. Rather, the female who is nearest in kinship to the last male monarch of the family inherits, even if another female agnate of the dynasty is senior by primogeniture. Among sisters, the elder are preferred to the younger. In reckoning consanguinity or proximity of blood the dynasty's house law defines who among female relatives is "nearest" to the last male.

History

In Christian Europe, the Catholic Church originally had a monopoly on the authority to sanction marriage. Its teachings forbid polygamy and state divorce is an impossibility per se. Consequently, in Europe, given morbidity and infertility succession could not be assured solely by direct male descendants or even direct male or female progeny. In Islamic and Asian cultures, religious officials and customs either sanctioned polygyny, use of consorts, or both, or they had no authority of marriage; monarchs could consequently ensure sufficient numbers of male offspring to assure succession. In such cultures, female heads of state were rare.

Biblical

The earliest account of primogeniture to be known widely in modern times is that of Isaac's sons Esau, who was born first, and Jacob, who was born second. Esau was entitled to the "birthright", but he sold the right to Jacob for a mess of pottage, i. e. a small amount of food. Although the veracity of this account is not corroborated by other sources, its telling in this passage demonstrates that primogeniture was sufficiently common in the Middle East for the passage to seem plausible to the people living there prior to the Roman Empire.
In the Bible a woman's right and obligation to inherit property in the absence of a male heir in the family was established by the Daughters of Zelophehad in Numbers 27.

Roman law

During the Roman Empire, Roman law governed much of Europe, and the laws pertaining to inheritance made no distinction between the oldest or youngest, male or female, if the decedent died intestate. Although admission to the two highest ordines, i. e. the senators and equestrians, potentially brought lifelong privileges that the next generation could inherit, the principle of inherited rank in general was little used. Rather, Roman aristocracy was based on competition, and a Roman family could not maintain its position in the ordines merely by hereditary succession or title to land. Although the eldest son typically carried his father's name in some form, he was expected to construct his own career based on competence as an administrator or general and on remaining in favor with the emperor and his council at court. Other than meeting requirements for personal wealth, the qualifications for belonging to the senatorial or equestrian orders varied from generation to generation, and in the later Empire, the dignitas that attended on senatorial or equestrian rank was refined further with additional titles, such as vir illustris, that were not inherited.
Most Roman emperors indicated their choice of successor, usually a close family member or adopted heir, and the presumption that the eldest or even a natural son would inherit was not enshrined. The death of an emperor led to a critical period of uncertainty and crisis. In theory, the Senate was entitled to choose the new emperor, but did so mindful of acclamation by the army or the Praetorian Guard. Thus, neither an emperor nor his heir had an inherent "right" to rule, and did so through military power and the Senate's symbolic consent.

Reemergence in medieval and modern times

The law of primogeniture in Europe has its origins in Medieval Europe; which due to the feudal system necessitated that the estates of land-owning feudal lords be kept as large and united as possible to maintain social stability as well as the wealth, power and social standing of their families.
Adam Smith, in his book An Inquiry into the Nature and Causes of the Wealth of Nations, explains the origin of primogeniture in Europe in the following way:

Historical examples

A case of agnatic primogeniture is exemplified in the French royal milieu, where the Salic Law forbade any inheritance of a crown through the female line. This rule was adopted to solve the dispute over the legitimate successor of John I of France, the short-lived son of deceased Louis X of France in favour of Philip V of France over Joan II of Navarre, the ruling that "Women do not succeed the kingdom of France". In 1328 it was further elaborated to solve the dispute over the legitimate successor of Philip V's brother, Charles IV of France, in favour of Philip VI of France over Edward III of England. While Edward had a stronger claim by proximity of blood, the court ruled "Women cannot transmit a right which they do not possess", reinforcing agnatic primogeniture. This dispute was among the factors behind the Hundred Years' War, which broke out in 1337.
Conflict between the Salic law and the male-preferred system was also the genesis of Carlism in Spain and Miguelism in Portugal.
The crowns of Hanover and Great Britain, which had been in personal union since 1714, were separated in 1837 upon the death of King William IV: his niece Victoria inherited the British crown under male-preference primogeniture but, because of semi-Salic law, was not the heir to that of Hanover, which passed to William's eldest surviving brother, Ernest Augustus, King of Hanover.
The divergence in the late 19th century of the thrones of Luxembourg and the Netherlands, both subject to semi-Salic law, resulted from the fact that the Luxembourg line of succession went back more generations than did the Dutch line. The Luxembourg succession was set by the Nassau House Treaty of 1783, which declared each prince of the House of Nassau to be a potential heir to the territories of every branch of the dynasty. Insofar as the succession is concerned, the Grand Duchy of Luxembourg is the successor state to the Principality of Nassau-Dietz, which was given in exchange to William VI of Nassau, Prince of Orange, in 1813. Succession to the new Kingdom of the Netherlands was recognised by the Congress of Vienna in 1815 as belonging exclusively to the descendants of Prince William VI, who became King William I of the Netherlands. In 1890, William I's agnatic line of male descendants died out, leaving the Netherlands to his female descendant Queen Wilhelmina, whereas Luxembourg still had an agnatic heir from a distant branch of the dynasty left to succeed; ex-Duke Adolf of Nassau, who became reigning Grand Duke, thus ending the personal union of the Netherlands and Luxembourg.
Since the Middle Ages, the semi-Salic principle was prevalent for the inheritance of feudal land in the Holy Roman Empire: inheritance was allowed through females when the male line expired. Females themselves did not inherit, but their male issue could. For example, a grandfather without sons was succeeded by his grandson, the son of his daughter, although the daughter still lived. Likewise, an uncle without sons of his own was succeeded by his nephew, a son of his sister, even if the sister still lived.
Common in feudal Europe outside of Germany was land inheritance based on male-preference primogeniture: A lord was succeeded by his eldest son but, failing sons, either by daughters or sons of daughters. In most medieval Western European feudal fiefs, females were allowed to succeed, brothers failing. But usually the husband of the heiress became the real lord, ruling in right of his wife, though on her death the title would not remain with him but pass to her heir.
In more complex medieval cases, the sometimes conflicting principles of proximity of blood and primogeniture competed, and outcomes were at times unpredictable. Proximity meant that an heir closer in degree of kinship to the lord in question was given precedence although that heir was not necessarily the heir by primogeniture.
However, primogeniture increasingly won legal cases over proximity in later centuries.
Later, when lands were strictly divided among noble families and tended to remain fixed, agnatic primogeniture became usual: succession going to the eldest son of the monarch; if the monarch had no sons, the throne would pass to the nearest male relative in the male line.
Some countries, however, accepted female rulers early on, so that if the monarch had no sons, the throne would pass to the eldest daughter. For example, in 1632 Christina, Queen of Sweden, succeeded to the throne after the death of her father, King Gustav II Adolf.
In England all land passed then by primogeniture. Until the Statute of Wills was passed in 1540, a will could control only personal property. Real estate passed to the eldest male descendant by operation of law. The statute gave power to landowners to "devise" land by the use of a new device, part of any will, including heading "testament". The default setting of such primogeniture applying absent express written words in England was not changed until the Administration of Estates Act in 1925.
In law, primogeniture is the rule of inheritance whereby land descends to the oldest son. Under the feudal system of medieval Europe, primogeniture generally governed the inheritance of land held in military tenure. The effect of this rule was to keep the father's land for the support of the son who rendered the required military service. When feudalism declined and the payment of a tax was substituted for military service, the need for primogeniture disappeared. In England the 1540 Act permitted the oldest son to be entirely cut off from inheriting, and in the 17th century military tenure was abolished; primogeniture is, nevertheless, a fading custom of the gentry and farm owners in England and Wales.

United States and Canada

In British North America, the colonies followed English primogeniture laws. Carole Shammas argues that issues of primogeniture, dower, curtesy, strict family settlements in equity, collateral kin, and unilateral division of real and personal property were fully developed in the colonial courts. The Americans differed little from English policies regarding the status of widow, widower, and lineal descendants. The primogeniture laws were repealed at the time of the American Revolution. Thomas Jefferson took the lead in repealing the law in Virginia, where nearly three-fourths of Tidewater land and perhaps a majority of western lands were entailed. Canada had the same law but repealed it in 1851.
When Winston Churchill and Franklin Roosevelt met at Placentia Bay in August 1941, Roosevelt said he could not understand the British aristocracy's concept of primogeniture, and he intended to divide his estate equally between his five children; Churchill explained that an equal distribution was nicknamed the “Spanish Curse” by the British upper classes: “We give everything to the eldest and the others strive to duplicate it and found empires. While the oldest, having it all, marries for beauty. Which accounts, Mr President, for my good looks”. But as Churchill's father was a younger son, there may have been more modesty than mock-vanity than Roosevelt realised.

Noble titles

Spain

In 2006, King Juan Carlos I of Spain decreed a reform of the succession to noble titles from male-preference primogeniture to absolute primogeniture.

United Kingdom

A bill to reform hereditary peerage inheritance law was tabled in 2013 for absolute primogeniture. The Equality Bill was socially dubbed the "Downton law/bill" in reference to the British television drama Downton Abbey, which the Earl's eldest daughter cannot inherit as it entrusted unless all of the adult beneficiaries amend the trust. A Lords' Committee was chosen for Committee Stage, which rejected it.