Peeling the Onion of History: Ancient Laws of Succession-part I

• Publication year: 1991
• Pages: 49

20 Colo.Law. 49 Colorado Lawyer 1991.

1991, January, Pg. 49. Peeling the Onion of History: Ancient Laws of Succession-Part I

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49

Vol. 20, No. 1, Pg. 49

Peeling the Onion of History: Ancient Laws of Succession---Part I

by E. David Griffith

Editor's Note: This series of three articles on ancient law reviews three critical periods in the development of the laws of succession. The purpose of the series is to delineate for practitioners the sources of our current law. This article examines the feudal law of England instituted during and after the Norman Conquest. Part II will cover the origin of the laws of succession in the newly formed United States. Part III will discuss the laws of succession during the time of the Roman Republic, which absorbed the attention of our founding fathers, as well as early appellate lawyers and judges

As the following quote from Hodel v. Irving(fn1) indicates, U.S. Supreme Court Justice Sandra Day O'Connor finds the force of history persuasive. The fact that the Hodel opinion introduces the laws of succession to a generation of law students, via the Dukeminier/Johanson textbook,(fn2) makes Justice O'Connor's observations of history all the more significant and adds weight to the role of historical analysis in the determination of precedent:

[T]he regulation here amounts to virtually the abrogation of the right to pass on a certain type of property--- the small undivided interest---to one's heirs. In one form or another, the right to pass on property---to one's family in particular---has been part of the Anglo-American legal system since feudal times.... Accordingly, we find that this regulation, in the words of Justice Holmes, 'goes too far.'(fn3) (Emphasis added.)

A passage from another book on the history of law underscores the connection between the area of probate law and historical analysis:

If an attempt were made to demonstrate in England the superiority of the historical method of investigation to the modes of inquiry concerning jurisprudence which are in fashion among us, no department of law would better serve as an example than Testaments or Wills.(fn4)

Background

It is appropriate to begin this historical analysis of the laws of succession with the Colorado Supreme Court's observations on the subject. The opinion in Brown v. Elder(fn5) apparently disagrees with Justice O'Connor's basic historical premise:

[T]he right to take property by devise or descent is a creature of the law, and not a natural right, and therefore the authority which confers it may impose conditions upon it.(fn6)

To question the right of transmitting or receiving property interests by devise and by descent is a worthy historical inquiry, one which leads necessarily to the time of the Magna Charta. A general answer to this question can be found by studying the works of the great English writers, as well as specific acts, edicts, charters and decisions made over the ages. Once encountered, the theme on which this historical analysis is based--- that of the tension which appears to exist between the wishes of the testator, the force of intestacy and the power of the state---begins to show its timeless and tireless role in human history. It is a reminder that the laws of succession are organically rooted in the essential human condition and lie at the basis of the social compact

As if to...