The English heir is not a universal successor. Each and every parcel of land descends as a separate and specific thing.

Nevertheless, in his narrower sphere he unquestionably represents the person of his ancestor. Different opinions have been held as to whether the same thing was true in early German law. Dr.

Laband says that it was; /1/ Sohm takes the opposite view. /2/ It is commonly supposed that family ownership, at least of land, came before that of individuals in the German tribes, and it has been shown how naturally representation followed from a similar state of things in Rome. But it is needless to consider whether our law on this subject is of German or Roman origin, as the principle of identification has clearly prevailed from the time of Glanvill to the present day. If it was not known to the Germans, it is plainly accounted for by the influence of the Roman law. If there was anything of the sort in the Salic law, it was no doubt due to natural causes similar to those which gave rise to the principle at Rome. But in either event I cannot doubt that the modern doctrine has taken a good deal of its form, and perhaps some of its substance, from the mature system [347] of the civilians, in whose language it was so long expressed. For the same reasons that have just been mentioned, it is also needless to weigh the evidence of the Anglo-Saxon sources, although it seems tolerably clear from several pa.s.sages in the laws that there was some identification. /1/

As late as Bracton, two centuries after the Norman conquest, the heir was not the successor to lands alone, but represented his ancestor in a much more general sense, as will be seen directly.

The office of executor, in the sense of heir, was unknown to the Anglo-Saxons, /2/ and even in Bracton's time does not seem to have been what it has since become. There is, therefore, no need to go back further than to the early Norman period, after the appointment of executors had become common, and the heir was more nearly what he is now.

When Glanvill wrote, a little more than a century after the Conquest, the heir was bound to warrant the reasonable gifts of his ancestor to the grantees and their heirs; /3/ and if the effects of the ancestor were insufficient to pay his debts, the heir was bound to make up the deficiency from his own property.

/4/ Neither Glanvill nor his Scotch imitator, the Regiam Majestatem, /5/ limits the liability to the amount of property inherited from the same source. This makes the identification of heir and ancestor as complete as that of the Roman law before such a limitation was introduced by Justinian. On the other hand, a century [348] later, it distinctly appears from Bracton, /1/ that the heir was only bound so far as property had descended to him, and in the early sources of the Continent, Norman as well as other, the same limitation appears. /2/ The liabilities of the heir were probably shrinking. Britton and Fleta, the imitators of Bracton, and perhaps Bracton himself, say that an heir is not bound to pay his ancestor's debt, unless he be thereto especially bound by the deed of his ancestor. /3/ The later law required that the heir should be mentioned if he was to be held.

But at all events the identification of heir and ancestor still approached the nature of a universal succession in the time of Bracton, as is shown by another statement of his. He asks if the testator can bequeath his rights of action, and answers, No, so far as concerns debts not proved and recovered in the testator's life. But actions of that sort belong to the heirs, and must be sued in the secular court; for before they are so recovered in the proper court, the executor cannot proceed for them in the ecclesiastical tribunal. /4/

This shows that the identification worked both ways. The heir was liable for the debts due from his ancestor, and he could recover those which were due to him, until [349] the executor took his place in the King's Courts, as well as in those of the Church.

Within the limits just explained the heir was also bound to warrant property sold by his ancestor to the purchaser and his heirs. /1/ It is not necessary, after this evidence that the modern heir began by representing his ancestor generally, to seek for expressions in later books, since his position has been limited. But just as we have seen that the executor is still said to represent the person of his testator, the heir was said to represent the person of his ancestor in the time of Edward I. /2/ So, at a much later date, it was said that "the heir is in representation in point of taking by inheritance eadam persona c.u.m antecessore," /3/ the same persona as his ancestor.

A great judge, who died but a few years ago, repeats language which would have been equally familiar to the lawyers of Edward or of James. Baron Parke, after laying down that in general a party is not required to make profert of an instrument to the possession of which he is not ent.i.tled, says that there is an exception "in the cases of heir and executor, who may plead a release to the ancestor or testator whom they respectively represent; so also with respect to several tortfeasors, for in all these cases there is a privity between the parties which const.i.tutes an ident.i.ty of person." /4/

But this is not all. The ident.i.ty of person was carried [350]

farther still. If a man died leaving male children, and owning land in fee, it went to the oldest son alone; but, if he left only daughters, it descended to them all equally. In this case several individuals together continued the persona of their ancestor. But it was always laid down that they were but one heir. /1/ For the purpose of working out this result, not only was one person identified with another, but several persons were reduced to one, that they might sustain a single persona.

What was the persona? It was not the sum of all the rights and duties of the ancestor. It has been seen that for many centuries his general status, the sum of all his rights and duties except those connected with real property, has been taken up by the executor or administrator. The persona continued by the heir was from an early day confined to real estate in its technical sense; that is, to property subject to feudal principles, as distinguished from chattels, which, as Blackstone tells us, /2/ include whatever was not a feud.

But the heir's persona was not even the sum of all the ancestor's rights and duties in connection with real estate. It has been said already that every fee descends specifically, and not as incident to a larger universitas. This appears not so much from the fact that the rules of descent governing different parcels might be different, /3/ so that the same person would not be heir to both, as from the very nature of feudal property. Under the feudal system in its vigor, the holding of land was only one [351] incident of a complex personal relation. The land was forfeited for a failure to render the services for which it was granted; the service could be renounced for a breach of correlative duties on the part of the lord. /1/ It rather seems that, in the beginning of the feudal period under Charlemagne, a man could only hold land of one lord. /2/ Even when it had become common to hold of more than one, the strict personal relation was only modified so far as to save the tenant from having to perform inconsistent services. Glanvill and Bracton /3/ a tell us that a tenant holding of several lords was to do homage for each fee, but to reserve his allegiance for the lord of whom he held his chief estate; but that, if the different lords should make war upon each other, and the chief lord should command the tenant to obey him in person, the tenant ought to obey, saving the service due to the other lord for the fee held of him.

We see, then, that the tenant had a distinct persona or status in respect of each of the fees which he held. The rights and duties incident to one of them had no relation to the rights and duties incident to another. A succession to one had no connection with the succession to another. Each succession was the a.s.sumption of a distinct personal relation, in which the successor was to be determined by the terms of the relation in question.

The persona which we are seeking to define is the estate. Every fee is a distinct persona, a distinct hereditas, or inheritance, as it has been called since the time of Bracton. We have already seen that it may be sustained by more [352] than one where there are several heirs, as well as by one, just as a corporation may have more or less members. But not only may it be divided lengthwise, so to speak, among persons interested in the same way at the same time: it may also be cut across into successive interests, to be enjoyed one after another. In technical language, it may be divided into a particular estate and remainders. But they are all parts of the same fee, and the same fiction still governs them. We read in an old case that "he in reversion and particular tenant are but one tenant." /1/ This is only a statement of counsel, to be sure; but it is made to account for a doctrine which seems to need the explanation, to the effect that, after the death of the tenant for life, he in reversion might have error or attaint on an erroneous judgment or false verdict given against the tenant for life. /2/

To sum up the results so far, the heir of modern English law gets his characteristic features from the law as it stood soon after the Conquest. At that time he was a universal successor in a very broad sense. Many of his functions as such were soon transferred to the executor. The heir's rights became confined to real estate, and his liabilities to those connected with real estate, and to obligations of his ancestor expressly binding him. The succession to each fee or feudal inheritance is distinct, not part of the sum of all the ancestor's rights regarded as one whole. But to this day the executor in his sphere, and the heir in his, represent the person of the deceased, and are treated as if they were one with him, for the purpose of settling their rights and obligations.

The bearing which this has upon the contracts of the [353]

deceased has been pointed out. But its influence is not confined to contract; it runs through everything. The most striking instance, however, is the acquisition of prescriptive rights.

Take the case of a right of way. A right of way over a neighbor's land can only be acquired by grant, or by using it adversely for twenty years. A man uses a way for ten years, and dies. Then his heir uses it ten years. Has any right been acquired? If common sense alone is consulted, the answer must be no. The ancestor did not get any right, because he did not use the way long enough.

And just as little did the heir. How can it better the heir's t.i.tle that another man had trespa.s.sed before him? Clearly, if four strangers to each other used the way for five years each, no right would be acquired by the last. But here comes in the fiction which has been so carefully explained. From the point of view of the law it is not two persons who have used the way for ten years each, but one who has used it for twenty. The heir has the advantage of sustaining his ancestor's and the right is acquired.

LECTURE X. -- SUCCESSIONS INTER VIVOS

I now reach the most difficult and obscure part of the subject.

It remains to be discovered whether the fiction of ident.i.ty was extended to others besides the heir and executor. And if we find, as we do, that it went but little farther in express terms, the question will still arise whether the mode of thought and the conceptions made possible by the doctrine of inheritance have not silently modified the law as to dealings between the living. It seems to me demonstrable that their influence has been profound, and that, without understanding the theory of inheritance, it is impossible to understand the theory of transfer inter vivos.

[354] The difficulty in dealing with the subject is to convince the sceptic that there is anything to explain. Nowadays, the notion that a right is valuable is almost identical with the notion that it may be turned into money by selling it. But it was not always so. Before you can sell a right, you must be able to make a sale thinkable in legal terms. I put the case of the transfer of a contract at the beginning of the Lecture. I have just mentioned the case of gaining a right by prescription, when neither party has complied with the requirement of twenty years'

adverse use. In the latter instance, there is not even a right at the time of the transfer, but a mere fact of ten years' past trespa.s.sing. A way, until it becomes a right of way, is just as little susceptible of being held by a possessory t.i.tle as a contract. If then a contract can be sold, if a buyer can add the time of his seller's adverse user to his own, what is the machinery by which the law works out the result?

The most superficial acquaintance with any system of law in its earlier stages will show with what difficulty and by what slow degrees such machinery has been provided, and how the want of it has restricted the sphere of alienation. It is a great mistake to a.s.sume that it is a mere matter of common sense that the buyer steps into the shoes of the seller, according to our significant metaphor. Suppose that sales and other civil transfers had kept the form of warlike capture which it seems that they had in the infancy of Roman law, /1/ and which was at least [355] partially retained in one instance, the acquisition of wives, after the transaction had, in fact, taken the more civilized shape of purchase. The notion that the buyer came in adversely to the seller would probably have accompanied the fiction of adverse taking, and he would have stood on his own position as founding a new t.i.tle. Without the aid of conceptions derived from some other source, it would have been hard to work out a legal transfer of objects which did not admit of possession.

A possible source of such other conceptions was to be found in family law. The principles of inheritance furnished a fiction and a mode of thought which at least might have been extended into other spheres. In order to prove that they were in fact so extended, it will be necessary to examine once more the law of Rome, as well as the remains of German and Anglo-Saxon customs.

I will take up first the German and Anglo-Saxon laws which are the ancestors of our own on one side of the house. For although what we get from those sources is not in the direct line of the argument, it lays a foundation for it by showing the course of development in different fields.

The obvious a.n.a.logy between purchaser and heir seems to have been used in the folk-laws, but mainly for another purpose than those which will have to be considered in the English law. This was to enlarge the sphere of alienability. It will be remembered that there are many traces of family ownership in early German, as well as in early Roman law; and it would seem that the transfer [356] of property which originally could not be given outside the family, was worked out through the form of making the grantee an heir.

The history of language points to this conclusion. Heres, as Beseler /1/ and others have remarked, from meaning a successor to the property of a person deceased, was extended to the donee mortis causa, and even more broadly to grantees in general.

Hereditare was used in like manner for the transfer of land.

Hevin is quoted by Laferriere /2/ as calling attention to the fact that the ancient usage was to say heriter for purchase, heritier for purchaser, and desheriter for sell.

The texts of the Salic law give us incontrovertible evidence. A man might transfer the whole or any part of his property /3/ by delivering possession of it to a trustee who, within twelve months, handed it over to the beneficiaries. /4/ To those, the text reads, whom the donor has named heredes (quos heredes appellavit). Here then was a voluntary transfer of more or less property at pleasure to persons freely chosen, who were not necessarily universal successors, if they ever were, and who nevertheless took under the name heredes. The word, which must have meant at first persons taking by descent, was extended to persons taking by purchase. /5/ If the word became enlarged in meaning, it is probably because the thought which it conveyed was turned to new uses. The transaction seems [357] to have fallen half-way between the inst.i.tution of an heir and a sale. The later law of the Ripuarian Franks treats it more distinctly from the former point of view. It permits a man who has no sons to give all his property to whomsoever he chooses, whether relatives or strangers, as inheritance, either by way of adfathamire, as the Salic form was called, or by writing or delivery. /1/

The Lombards had a similar transfer, in which the donee was not only called heres, but was made liable like an heir for the debts of the donor on receiving the property after the donor's death.

/2/2 By the Salic law a man who could not pay the wergeld was allowed to transfer formally his house-lot, and with it the liability. But the transfer was to the next of kin. /3/

The house-lot or family curtilage at first devolved strictly within the limits of the family. Here again, at least in England, freedom of alienation seems to have grown up by gradually increased lat.i.tude in the choice of successors. If we may trust the order of development to be noticed in the early charters, which it is hard to believe [358] accidental, although the charters are few, royal grants at first permitted an election of heirs among the kindred, and then extended it beyond them. In a deed of the year 679, the language is, "as it is granted so do you hold it and your posterity." One a century later reads, "which let him always possess, and after his death leave to which of his heirs he will." Another, "and after him with free power (of choice) leave to the man of his kin to whom he wishes to"

(leave it). A somewhat earlier charter of 736 goes a step further: "So that as long as he lives he shall have the power of holding and possessing (and) of leaving it to whomsoever he choose, either in his lifetime, or certainly after his death." At the beginning of the ninth century the donee has power to leave the property to whomsoever he will, or, in still broader terms, to exchange or grant in his lifetime, and after his death to leave it to whom he chooses,--or to sell, exchange, and leave to whatsoever heir he chooses. /1/ This choice of heirs [359]

recalls the quos heredes appellavit of the Salic law just mentioned, and may be compared with the language of a Norman charter of about the year 1190: "To W. and his heirs, to wit those whom he may const.i.tute his heirs." /1/

A perfect example of a singular succession worked out by the fiction of kinship is to be found in the story of Burnt Njal, an Icelandic saga, which gives us a living picture of a society hardly more advanced than the Salian Franks, as we see them in the Lex Salica. A lawsuit was to be transferred by the proper plaintiff to another more versed in the laws, and better able to carry it on,--in fact, to an attorney. But a lawsuit was at that time the alternative of a feud, and both were the peculiar affair of the family concerned. /2/ Accordingly, when a suit for killing a member of the family was to be handed over to a stranger, the innovation had to be reconciled with the theory that such suit belonged only to the next of kin. Mord is to take upon himself Thorgeir's suit against Flosi for killing Helgi, and the form of transfer is described as follows.

"Then Mord took Thorgeir by the hand and named two witnesses to bear witness, 'that Thorgeir Thofir's son hands me over a suit for manslaughter against Flosi Thord's son, to plead it for the slaying of Helgi Njal's son, with all those proofs which have to follow the suit. Thou handest over to me this suit to plead and to settle, and to enjoy all rights in it, as though I were the rightful next of kin. Thou handest it over to me by law; and I [360] take it from thee by law.'" Afterwards, these witnesses come before the court, and bear witness to the transfer in like words: "He handed over to him then this suit, with all the proofs and proceedings which belonged to the suit, he handed it over to him to plead and to settle, and to make use of all rights, as though he were the rightful next of kin. Thorgeir handed it over lawfully, and Mord took it lawfully." The suit went on, notwithstanding the change of hands, as if the next of kin were plaintiff. This is shown by a further step in the proceedings.

The defendant challenges two of the court, on the ground of their connection with Mord, the transferee, by blood and by baptism.

But Mord replies that this is no good challenge; for "he challenged them not for their kinship to the true plaintiff, the next of kin, but for their kinship to him who pleaded the suit."

And the other side had to admit that Mord was right in his law.

I now turn from the German to the Roman sources. These have the closest connection with the argument, because much of the doctrine to be found there has been transplanted unchanged into modern law.

The early Roman law only recognized as relatives those who would have been members of the same patriarchal family, and under the same patriarchal authority, had the common ancestor survived. As wives pa.s.sed into the families of their husbands, and lost all connection with that in which they were born, relationship through females was altogether excluded. The heir was one who traced his relationship to the deceased through males alone. With the advance of civilization this rule was changed. The praetor gave the benefits of the inheritance to the blood relations, although they were not heirs, and could [361] not be admitted to the succession according to the ancient law. /1/ But the change was not brought about by repealing the old law, which still subsisted under the name of the jus civile. The new principle was accommodated to the old forms by a fiction. The blood relation could sue on the fiction that he was an heir, although he was not one in fact. /2/

One the early forms of inst.i.tuting an heir was a sale of the familia or headship of the family to the intended heir, with all its rights and duties. /3/ This sale of the universitas was afterwards extended beyond the case of inheritance to that of bankruptcy, when it was desired to put the bankrupt's property into the hands of a trustee for distribution. This trustee also could make use of the fiction, and sue as if he had been the bankrupt's heir. /4/ We are told by one of the great jurisconsults that in general universal successors stand in the place of heirs. /5/

The Roman heir, with one or two exceptions, was always a universal successor; and the fiction of heirship, as such, could hardly be used with propriety except to enlarge the sphere of universal successions. So far as it extended, however, all the consequences attached to the original fiction of ident.i.ty between heir and ancestor followed as of course.

[362] To recur to the case of rights acquired by prescription, every universal successor could add the time of his predecessor's adverse use to his own in order to make out the right. There was no addition, legally speaking, but one continuous possession.

The express fiction of inheritance perhaps stopped here. But when a similar joinder of times was allowed between a legatee or devisee (legatarius) and his testator, the same explanation was offered. It was said, that, when a specific thing was left to a person by will, so far as concerned having the benefit of the time during which the testator had been in possession for the purpose of acquiring a t.i.tle, the legatee was in a certain sense quasi an heir. /1/ Yet a legatarius was not a universal successor, and for most purposes stood in marked contrast with such successors. /2/

Thus the strict law of inheritance had made the notion familiar that one man might have the advantage of a position filled by another, although it was not filled, or was only partially filled, by himself; and the second fiction, by which the privileges of a legal heir in this respect as well as others had been extended to other persons, broke down the walls which might otherwise have confined those privileges to a single case. A new conception was introduced into the law, and there was nothing to hinder its further application. As has been shown, it was applied in terms to a sale of the universitas for business purposes, and to at least one case where the succession was confined to a single specific thing. Why, then, might not every gift or sale be regarded as a succession, so far as to insure the same advantages?

[363] The joinder of times to make out a t.i.tle was soon allowed between buyer and seller, and I have no doubt, from the language always used by the Roman lawyers, that it was arrived at in the way I have suggested. A pa.s.sage from Scaevola (B. C. 30) will furnish sufficient proof. Joinder of possessions, he says, that is, the right to add the time of one's predecessor's holding to one's own, clearly belongs to those who succeed to the place of others, whether by contract or by will: for heirs and those who are treated as holding the place of successors are allowed to add their testator's possession to their own. Accordingly, if you sell me a slave I shall have the benefit of your holding. /1/

The joinder of times is given to those who succeed to the place of another. Ulpian cites a like phrase from a jurisconsult of the time of the Antonines,--"to whose place I have succeeded by inheritance, or purchase, or any other right." /2/ Succedere in loc.u.m aliorum, like sustinere personam, is an expression of the Roman lawyers for those continuations of one man's legal position by another of which the type was the succession of heir to ancestor. Suecedere alone is used in the sense of inherit, /3/ and successio in that of "inheritance." /4/ The succession par excellence was the inheritance; and it is believed that scarcely any instance will be found in the Roman sources where "succession" does not convey that a.n.a.logy, and indicate the partial [364] a.s.sumption, at least, of a persona formerly sustained by another. It clearly does so in the pa.s.sage before us.

But the succession which admits a joinder of times is not hereditary succession alone. In the pa.s.sage which has been cited Scaevola says that it may be by contract or purchase, as well as by inheritance or will. It may be singular, as well as universal.

The jurists often mention ant.i.thetically universal successions and those confined to a single specific thing. Ulpian says that a man succeeds to another's place, whether his succession be universal or to the single object. /1/

If further evidence were wanting for the present argument, it would be found in another expression of Ulpian's. He speaks of the benefit of joinder as derived from the persona of the grantor. "He to whom a thing is granted shall have the benefit of joinder from the persona of his grantor." /2/ A benefit cannot be derived from a persona except by sustaining it.

It farther appears pretty plainly from Justinian's Inst.i.tutes and the Digest, that the benefit was not extended to purchasers in all cases until a pretty late period. /3/