SUCCESSIONS INTER VIVOS
I now reach the most difficult and obscure part of the subject.
It remains to be discovered whether the fiction of identity 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.
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 trespassing.A way, until it becomes a right of way, is just as little susceptible of being held by a possessory title 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 assume 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, and which was at least 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 title.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 analogy 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 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 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 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.Aman might transfer the whole or any part of his property by delivering possession of it to a trustee who, within twelve months, handed it over to the beneficiaries. 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. If the word became enlarged in meaning, it is probably because the thought which it conveyed was turned to new uses.The transaction seems to have fallen half-way between the institution 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. 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.
