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16 Seton Hall L. Rev. 656 (1986)
The First English Adoption Law and Its American Precursors

handle is hein.journals/shlr16 and id is 672 raw text is: THE FIRST ENGLISH ADOPTION LAW AND ITS AMERICAN PRECURSORS C.M.A. McCauliff * In the long history of English law, adoption is quite a recent phenomenon. Despite the ancient roots of adoption in Roman law, the dominance of primogeniture' and the role of the heir at law2 excluded the possibility of adoption in England until 1926. American common law jurisdictions, however, departed from the strictures of English property law by statutorily abolishing primo- geniture. Subsequently, American statutes permitting adoption were enacted during the nineteenth century. The American experience with inheritance and adoption previewed the directions later followed in English law from 1925 to 1949. This article examines the relevant legal considerations at selected points in time. The Roman law of adoption, classical English property law of the high Middle Ages, Tudor-Stuart soci- ety, and the American experience are highlighted. The article then focuses on the enactment of the first English adoption law of 1926 in light of the history of English real property law. I. THE ROMAN LAW OF ADOPrION Adoption existed in the earliest period of Roman law for religious reasons. The important memorial services performed for a family's ancestors could not be carried out if the last re- maining family member died childless.3 To prevent extinction, an old, childless man was permitted to adopt a person of any age, * Associate Professor of Law, Seton Hall University School of Law. A.B., Bryn Mawr College 1965; Ph.D., University of Toronto 1969; J.D., University of Chicago 1975. The author wishes to thank Michal R. Belknap for his comments on an ear- lier version of this article. I Primogeniture is defined as follows: The state of being the first-born among several children of the same parents; seniority by birth in the same family. The superior or exclusive right possessed by the eldest son, and particularly, his right to succeed to the estate of his ancestor, in right of his seniority by birth, to the exclusion of younger sons. BI.ACK'S LAw DICTIONARY 1072 (5th ed. 1979). 2 Heir at law is defined as he who, after his ancestor dies intestate, has a right to all lands, tenements, and hereditaments which belonged to him or of which he was seised. Id. at 650. : See 2 C. SHERMAN, ROMAN LAW IN THE MODERN WORLD 84 (3d ed. 1937). 656

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