Page:Harvard Law Review Volume 8.djvu/180

164 1 64 HARVARD LAW REVIEW. in war and otherwise ; villeins, who held and worked the land of the nobleman. Everything turned on the land. The fundamental idea was that there should always be some one ready to perform the various services which the land was supposed to owe. This governing principle was especially evident in the laws of succes- ion after death. ^ The land went to the eldest son, not because as a child he had any right to it, for the youngest son and the daugh- ters were as near relatives, but because he was presumably better qualified to perform the services, and it was therefore for the lord's interest to have him succeed. A father could not inherit from his son ; females took nothing while there were living males of the same degree of relationship ; and the second son nothing so long as his elder brother was alive. About 1540, a statute made all lands devisable by will. The object of the statute, however, was not to enable the owner to distribute his land, but to give him power to disinherit an incompetent eldest son and leave all the property to the one best fitted to keep up the family prestige. ^ At this point the English law remained practically stationary till 1825. Such were the laws of England when our forefathers came to this country. They were designed to protect an hereditary aristocracy, and many of their provisions were so evidently out of keeping with democratic ideas that the colonists never adopted them in full, — primogeniture, for instance, and distinctions of sex, — though for many years the eldest son took a double portion. ^ Our present law is the result of many modifications of the English, but its underlying principles, so far as it can be said to have any, are still those of feudal England. In no other way can we explain laws which allow any relative, however remote, to take the whole estate, and yet leave to the owner the option of excluding his own child, for no better reason than because it is his whim to do so. It seems to me high time that the absurdity and injustice of such laws were pointed out, and that our laws of succession after death were made more conformable to what is admittedly their true theory. It is time that we recognized, on the one hand, the right of the child is not to be disinherited without cause ; and on the other hand, that no mere relationship to the deceased can give one per- son the right to millions of dollars which was the property of another and is now at the disposal of the State. iDalrymple, Essay on Feuds, Chapter on Succession; Wright on Tenures ; DuCange, Glossarium,tit. "Beneficium "andP"eudum ; Beames's Glanvill,pp. 1,47. Beames's Glanvill, 140, n. ; Mill, Pol. Econ. Bk. 2, ch. 2, § 4 ; 40 Edin. Rev. 350.
 * 6 Glasson, Droits, &c. del'Angleterre, 234^/^^^.; Bl. Com. Bk. 2, ch. "Devise;"
 * Body of Liberties, §§ 81, 83.