The origin and development of the moral ideas

At higher stages of civilisation the rules of inheritance present the same characteristics as among many savages. During historic times, at least, the nations of culture have reckoned kinship through the father, and succession has been agnatic.81 In China women only inherit in the very last resort, failing all male relatives.82 Among the Hebrews, in ancient times, only sons, not daughters, still less wives, could inherit;83 but the later law conferred on daughters the right of heirship in the absence of sons.84 The Muhammedan law of inheritance in most cases awards to a female a share equal to half that of a male of the same degree of relationship to the deceased;85 but according to the old law of Medina women could not inherit at all.86 Of all the ancient nations with whose rules of inheritance we are acquainted, the Romans seem to have been the only one who gave daughters the same right of inheritance as sons.87 In India women had originally no such right at all, but in this, as in other matters relating to property, their position subsequently improved.88 In Attic law sons excluded daughters from succession,89 and the same was the case among the Scandinavian peoples still in the later Middle Ages.90 In England women are even to this day postponed to men in the order of succession to real property.91 Special privileges in the division of the father’s property were granted to the eldest son by the Hebrews92 and Hindus,93 and traces of primogeniture are met with in ancient Greek legislation.94 In the history of English law we find not only primogeniture, but ultimogeniture

as well.95 As regards the question of legitimacy, we notice that in China all sons born in the household have an equal share in the inheritance, whether born of the principal wife or a concubine or a domestic slave.96 Among the Hebrews the sons of concubines had a right of inheritance,97 but whether on an equality with the other sons we do not know.98 According to Muhammedan law no distinction in point of inheritance is made between the child of a wife and that borne by a slave to her master, if the master acknowledge the child to be his own.99 In Hindu legislation the legitimate sons have the nearest right to the inheritance of their father, but a son begotten by a Sûdra on a female slave may, if permitted by his father, take a share of it.100 The Roman law on the subject may be summed up thus:—With regard to its father a natural child has no right at all, and differs in no respect from a stranger; with regard to its mother it has the same right as a legitimate child.101 In Teutonic countries the position of illegitimate children as to succession was much more favourable in earlier times than later on when Christianity made its influence felt, depriving them of all title to inheritance.102 Strangers were formerly unable both to inherit and to transmit property.

For a long time it was the custom in Europe to confiscate their effects on their death; and not only persons who were born in a foreign country were subject to this droit d’aubaine, as it was called in France, but in some countries it was applied even to persons who removed from one diocese to another, or from the lands of one baron to another.103 Indeed, it is only in recent times that foreigners have been placed on a footing of equality with citizens with regard to inheritance. In 1790 the French National Assembly abolished the right of aubaine as being contrary to the principle of a human brotherhood.104 Later on, when the Code Napoléon was drawn up, a backward step was taken by restricting the abolition of this right to nations who acted with reciprocity; but this limitation only lasted till 1819, when all inequalities were finally removed in France.105 In England it was not until 1870 that foreigners were authorised to inherit and bequeath like British subjects.106