Page:Harvard Law Review Volume 8.djvu/177

161 THE THEORY OF INHERITANCE. i6i THE THEORY OF INHERITANCE.^ rp^HE foundation of Bentham's attack on the Jurisprudence of -*- his time was its inaptness for its own acknowledged ends. Laws and courts were admittedly established to secure rights of person and of property ; and yet it was obvious that in many cases, owing to the undue importance given to forms of procedure, the merits of the contest were never passed upon and the property of the litigants became the spoil of the successful pleader. Forms and rules were of course necessary in the administration of jus- tice; it was desirable, too, that they should be consistent. But as Bentham pointed out, the lawyers in striving for the minor vir- tues of consistency and formality were constantly committing the deadly sin of injustice. In working out the system of pleading they forgot that the first test was how well it secured justice ;that consistency was of only secondary importance. Many laws of to-day are open to the same sort of criticism, that they overpass the reasons for them. It is, for instance, highly desir- able " to promote the progress of science and useful arts by secur- ing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Art. I. Constitution U. S., sec. 8. The admitted object of granting patents is to benefit the public by encouraging inventors. That this advantage should be secured as cheaply as possible no one, I suppose, will deny. And yet, though no end attainable by granting patents would be defeated by a condition giving the government a right to purchase and cancel any patent at some fixed price, we issue them without restrictions, and present unnecessarily and unreasonably to indi- viduals rights which should be reserved to the public. The most striking example, however, of such unreasoning legis- lation is seen in the law regulating the succession to property on the death of the owner. In everyday affairs no laws are of more importance ; yet they have received but little attention, and their underlying principles seem to be but imperfectly understood or acted upon. Hale and Blackstone denied that any such principles existed, and asserted that inheritance was a mere matter of legisla- tive caprice;^ Coke explained that the descent of property followed what we should call the law of gravitation. The feudal laws of 1 This article is the Law Part at the last Harvard Commencement, and is reprinted substantially as spoken. No effort was made to collect the authorities on the subject. ' Hale, Hist. Com. Law, 301 n., 320; Bl. Com. Bk. 2, ch, l; Coke Ins. L. 3, ch.6, § 385; Co. Litt. 18 b.; Mass. Geo. Sts. 1873, cb. 91, § i.