The chieftain who last exercised authority may have outlived hiseldest son, and the grandson who is primarily entitled to succeedmay be too young and immature to undertake the actual guidance ofthe community, and the administration of its affairs. In such anevent, the expedient which suggests itself to the more settledsocieties is to place the infant heir under guardianship till hereaches the age of fitness for government. The guardianship isgenerally that of the male Agnates; but it is remarkable that thecontingency supposed is one of the rare cases in which ancientsocieties have consented to the exercise of power by women,doubtless out of respect to the overshadowing claims of themother. In India, the widow of a Hindoo sovereign governs in thename of her infant son, and we cannot but remember that thecustom regulating succession to the throne of France -- which,whatever be its origin, is doubtless of the highest antiquity --preferred the queen-mother to all other claimants for theRegency, at the same time that it rigorously excluded all femalesfrom the throne. There is, however, another mode of obviating theinconvenience attending the devolution of sovereignty on aninfant heir, and it is one which would doubtless occurspontaneously to rudely organised communities. This is to setaside the infant heir altogether, and confer the chieftainship onthe eldest surviving male of the first generation. The Celticclan-associations, among the many phenomena which they havepreserved of an age in which civil and political society were notyet even rudimentarily separated, have brought down this rule ofsuccession to historical times. With them, it seems to haveexisted in the form of a positive canon, that, failing the eldestson, his next brother succeeds in priority to all grandsons,whatever be their age at the moment when the sovereigntydevolves. Some writers have explained the principle by assumingthat the Celtic customs took the last chieftain as a sort of rootor stock, and then gave the succession to the descendant whoshould be least remote from him; the uncle thus being preferredto the grandson as being nearer to the common root. No objectioncan be taken to this statement if it be merely intended as adescription of the system of succession; but it would be aserious error to conceive the men who first adopted the rule asapplying a course of reasoning which evidently dates from thetime when feudal schemes of succession begun to be debated amonglawyers. The true origin of the preference of the uncle to thegrandson is doubtless a simple calculation on the part of rudemen in a rude society that it is better to be governed by a grownchieftain than by a child, and that the younger son is morelikely to have come to maturity than any of the eldest son'sdescendants. At the same time, we have some evidence that theform of Primogeniture with which we are best acquainted is theprimary form, in the tradition that the assent of the clan wasasked when an infant heir was passed over in favour of his uncle.
There is a tolerably well authenticated instance of this ceremonyin the annals of the Macdonalds.
Under Mahometan law which has probably preserved an ancientArabian custom, inheritances of property are divided equallyamong sons, the daughter taking a half share; but if any of thechildren die before the division of the inheritance, leavingissue behind, these grandchildren are entirely excluded by theiruncles and aunts. Consistently with this principle, thesuccession, when political authority devolves, is according tothe form of Primogeniture which appears to have obtained amongthe Celtic societies. In the two great Mahometan families of theWest, the rule is believed to be, that the uncle succeeds to thethrone in preference to the nephew, though the latter be the sonof an elder brother; but though this rule has been followed quiterecently in Egypt, I am informed that there is some doubt as toits governing the devolution of the Turkish sovereignty Thepolicy of the Sultans has in fact hitherto prevented cases forits application from occurring, and it is possible that theirwholesale massacres of their younger brothers may have beenperpetuated quite as much in the interest of their children asfor the sake of making away with dangerous competitors for thethrone. It is evident, however, that in polygamous societies theform of Primogeniture will always tend to vary. Manyconsiderations may constitute a claim on the succession, the rankof the mother, for example, or her degree in the affections ofthe father. Accordingly, some of the India Mahometa sovereigns,without pretending to any distinct testamentary power, claim theright of nominating the son who is to succeed. The blessingmentioned in the Scriptural history of Isaac and his sons hassometimes been spoken of as a will, but it seems rather to havebeen a mode of naming an eldest son.
Ancient Law
by Henry Maine
