daries unwritten right and custom. In England, indeed, right is derived from what is unwritten, which usage has approved.’ He continues: ‘There are also in England several and diverse customs according to the diversity of places, for the English have many things by custom which they have not by (written) law, as in divers counties, cities and boroughs, and vills, where it will always have to be inquired what is the custom of the place, and in what manner they who allege the custom observe the custom.’[1]
Another and still earlier legal author, Glanville, who wrote in the time of Henry II., tells us in his chapter on inheritance that primogeniture was the rule of common law. In reference to the land of a ‘free socman,’ however, he tells us that it has to be ascertained whether the land was partible by ancient custom. If so, the sons take equally, saving that the first-born has the chief dwelling-house on the terms of making recompense in value to the others. If the land is not partible, then, according to the custom of some, the first-born shall have the whole inheritance; according to the custom of others, however, the last-born is heir.[2]
If a man owning houses or tenements within the city of Gloucester at the present time dies intestate, his youngest son, and not the eldest, succeeds to the property. This is a remarkable survival, and a similar custom formerly prevailed, or still does, in Leeds, Derby, Leicester, Nottingham, Stafford, and Stamford.[3] It prevailed not only in these boroughs, but in many manors in various counties, especially in Sussex, Suffolk, Surrey, Essex, Norfolk, Middlesex, and in a special part of Somerset. It still exists, or has been shown to have existed, also, to
