Primogeniture

Absolute cognatic primogeniture diagram

Absolute, equal, or lineal primogeniture is a form of primogeniture in which gender is irrelevant for inheritance. No modern monarchy before 1980 implemented this.[8]

The Basques of the Kingdom of Navarre transmitted title and property to the firstborn regardless of sex;[9] their higher nobility and free families in the early and high middle ages followed this custom.[9] 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.[9]

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:

• With the birth of Infanta Leonor of Spain on 31 October 2005 to the then heir apparent Felipe, Prince of Asturias, and Princess Letizia, the Spanish Prime Minister José Luis Rodríguez Zapatero reaffirmed the intention of the government to institute, by amendment of the Spanish constitution, absolute primogeniture. Zapatero's proposal was supported by the leader of the main opposition party, the conservative Partido Popular, making its passage probable. However, Zapatero's administration ended before an amendment was drafted, and the succeeding government has not pursued it. The Prince counseled reformers that there was plenty of time before any constitutional amendment would need to be enacted because the expectation was to leave him next in line to succeed his father despite his elder sisters' continued status as dynasts; equal primogeniture was expected to apply first to his children. Felipe succeeded to the throne as Felipe VI upon his father's abdication in 2014, by which time he had two daughters. Felipe VI has no son that would, absent the constitutional amendment, displace Leonor as heir apparent.
• In July 2006, the Nepalese government proposed adopting absolute primogeniture,[10] but the monarchy was abolished in 2008 before the change could be effected.
• In 2011, the governments of the 16 Commonwealth realms which have a common monarch announced the Perth Agreement, a plan to legislate changes to absolute primogeniture.[11] This was implemented when the necessary legislation came into effect on 26 March 2015.
• In Japan, it has been debated whether or not to adopt absolute primogeniture, as Princess Aiko is the only child of Emperor Naruhito. However, the birth in 2006 of Prince Hisahito, a son of Prince Akishino (the younger brother of Naruhito, and next in line to the Chrysanthemum Throne) has suspended the debate.

Agnatic primogeniture diagram

Under agnatic primogeniture, or patrilineal primogeniture, the degree of kinship (of males and females) is determined by tracing shared descent from the nearest common ancestor through male ancestors.[12] Those who share agnatic kinship (through solely male ancestors) 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 (compare to ultimogeniture) 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 diagram

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 (until their union under James VI and I) 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 (before 1700 and since 1830).

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, 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.

Esau Sells His Birthright for Pottage of Lentils, a 1728 engraving by Gerard Hoet

The earliest account of primogeniture to be known widely in modern times is that of Isaac's sons Esau, who was born first,[18] and Jacob, who was born second.[19] Esau was entitled to the "birthright" (bekhorah בְּכוֹרָה), but he sold the right to Jacob for a mess of pottage, i. e. a small amount of food.[20] 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.

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.[21] Although admission to the two highest ordines (orders), 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.[22] 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.[23] 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.[24] 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 ("esteem") that attended on senatorial or equestrian rank was refined further with additional titles, such as vir illustris, that were not inherited.[25]

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.[26] 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.

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.[21]

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:

[W]hen land was considered as the means, not of subsistence merely, but of power and protection, it was thought better that it should descend undivided to one. In those disorderly times, every great landlord was a sort of petty prince. His tenants were his subjects. He was their judge, and in some respects their legislator in peace and their leader in war. He made war according to his own discretion, frequently against his neighbours, and sometimes against his sovereign. The security of a landed estate, therefore, the protection which its owner could afford to those who dwelt on it, depended upon its greatness. To divide it was to ruin it, and to expose every part of it to be oppressed and swallowed up by the incursions of its neighbours. The law of primogeniture, therefore, came to take place, not immediately indeed, but in process of time, in the succession of landed estates, for the same reason that it has generally taken place in that of monarchies, though not always at their first institution.[27]

A case of agnatic primogeniture is exemplified in the French royal milieu, where the Salic Law (attributed to the Salian Franks) 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 (brother of Louis and uncle of John) over Joan II of Navarre (daughter of Louis and sister of John), the Estates-General of 1317 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 (the son of Charles’ uncle Charles of Valois) over Edward III of England (the son of Charles’ sister Isabella). 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 (Orange-)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 a form of 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 (such as daughters and sisters) were allowed to succeed, brothers failing. But usually the husband of the heiress became the real lord, assuming his wife's title (jure uxoris).

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.

• The Burgundian succession in 1361 was resolved in favor of King John II, son of a younger daughter, on basis of blood proximity, being a nearer cousin of the dead duke than Charles II of Navarre, grandson of the elder daughter and son of Jeanne. John was only one generation of consanguinity removed from the late duke instead of two for Charles.
• In dispute over the Scottish succession, 1290–92, the Bruce family pleaded tanistry and proximity of blood, whereas Balliol argued his claim based on primogeniture. The arbiter, Edward I of England, decided in favor of primogeniture. But later, the Independence Wars reverted the situation in favor of the Bruce, due to political exigency.
• The Earldom of Gloucester (in the beginning of 14th century) went to full sisters of the dead earl, not to his half-sisters, though they were elder, having been born of the father's first marriage, while the earl himself was from second marriage. Full siblings were considered higher in proximity than half-siblings.

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 (practically the same as Salic Law) 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 (to any widow strictly for life) then by primogeniture. Until the Statute of Wills was passed in 1540, a will could control only personal property. Real estate (land) 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 (see knight). 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.

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.[28] 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.[29] Canada had the same law but repealed it in 1851.[30]

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.[31]

In 2006, King Juan Carlos I of Spain decreed a reform of the succession to noble titles from male-preference primogeniture to absolute primogeniture.[32][33]

The order of succession for all noble dignities is determined in accordance with the title of concession and, if there is none, with that traditionally applied in these cases. When the order of succession to the title is not specified in the nobility title creation charter, the following rules apply:

• Absolute preference is given to the direct descending line over the collateral and ascending line, and, within the same line, the closest degree takes precedence over the more remote and, within the same degree, the elder over the younger, combined with the principles of firstborn and representation.
• Men and women have an equal right of succession to grandeeship and to titles of nobility in Spain, and no person may be given preference in the normal order of succession for reasons of gender.

A bill to reform hereditary peerage inheritance law was tabled in 2013 for absolute primogeniture. The Equality (Titles) 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.[34] A Lords' Committee was chosen for Committee Stage, which rejected it.