Front Page Titles (by Subject) SUMMARY - A Concise History of the Common Law
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
SUMMARY - Theodore Frank Thomas Plucknett, A Concise History of the Common Law 
A Concise History of the Common Law (Indianapolis: Liberty Fund, 2010).
About Liberty Fund:
The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.
Fair use statement:
The law of succession is an attempt to express the family in terms of property. To historians of early societies this branch of law has always been of exceptional interest and importance, for it states in precise terms the structure of the most significant of early institutions. Other branches of law shared this characteristic in earlier times: thus our own civil and criminal procedure, as we have already seen, was once largely a matter between families rather than individuals. The rise of the crown eventually withdrew these topics from family influences and placed them upon a strictly individual basis, but succession to property lay at the very heart of the problem, for families and their members derived their subsistence from land—and this statement was equally true of the king, the magnates, the country gentry, the copyholders and the villeins.
It was but natural, therefore, that property and succession should be the points at which the family sought most eagerly to preserve its stability and safety. As individuals or as members of other groups, mediaeval men filled our history with political turbulence, economic adventure and intellectual questionings. Conquests, the clash of races, and the forces of economic change are the most obvious of the factors which shaped the later history of the family. Less violent, but not less powerful, are the conflicts of ideas—the feudal view of life, the pressure of the crown, the doctrine of the Church which derived the family itself from the sacrament of marriage. In England the rival forces of local custom and common law, the conflicts of church and state, law and equity, succeeded in dividing our law of succession into fragments which have only just been reunited. The tenacity of English family law in withstanding all these assaults without making wholesale recourse to the splendid unity of the civilians’ system is well worth remembering; it may even temper somewhat the harshness of Maitland’s judgment:
“It is in the province of inheritance that our mediaeval law made its worst mistakes. They were natural mistakes. There was much to be said for the simple plan of giving all the land to the eldest son. There was much to be said for allowing the courts of the church to assume a jurisdiction, even an exclusive jurisdiction, in testamentary causes. We can hardly blame our ancestors for their dread of intestacy without attacking their religious beliefs. But the consequences have been evil. We rue them at the present day, and shall rue them so long as there is talk of real and personal property.”1