In the Lecture on Possession, I tried to show that the notion of possessing a right as such was intrinsically absurd. All rights are consequences attached to filling some situation of fact. A right which may be acquired by possession differs from others simply in being attached to a situation of such a nature that it may be filled successively by different persons, or by any one without regard to the lawfulness of his doing so, as is the case where the situation consists in having a tangible object within one's power.
When a right of this sort is recognized by the law, there is no difficulty in transferring it; or, more accurately, there is no difficulty in different persons successively enjoying similar rights in respect of the subject-matter. If A, being the possessor of a horse or a field, gives up the possession to B, the rights which B acquires stand on the same ground as A's did before. The facts from which A's rights sprang have ceased to be true of A, and are now true of B. The consequences attached by the law to those facts now exist for B, as they did for A before. The situation of fact from which the rights spring is continuing one, and any one who occupies it, no matter how, has the rights attached to it. But there is no possession possible of a contract. The [341] fact that a consideration was given yesterday by A to B, and a promise received in return, cannot be laid hold of by X, and transferred from A to himself. The only thing can be transferred is the benefit or burden of the promise, and how can they be separated from the facts which gave rise to them? How, in short, can a man sue or be sued on a promise in which he had no part?
Hitherto it has been assumed, in dealing with any special right or obligation, that the facts from which it sprung were true of the individual entitled or bound. But it often happens, especially in modern law, that a person acquires and is allowed to enforce a special right, although that facts which give rise to it are not true of him, or are true of him only in part. One of the chief problems of the law is to explain the machinery by which this result has been brought to pass.
It will be observed that the problem is not coextensive with the whole field of rights. Some rights cannot be transferred by any device or contrivance; for instance, a man's right a to bodily safety or reputation. Others again are incident to possession, and within the limits of that conception no other is necessary. As Savigny said, "Succession does not apply to possession by itself." /1/
But the notion of possession will carry us but a very little way in our understanding of the modern theory of transfer. That theory depends very largely upon the notion of succession, to use the word just quoted from Savigny, and accordingly successions will be the subject of this and the following Lecture. I shall begin by explaining the theory of succession to persons deceased, and after that is done shall pass to the theory of transfer between living [342] people, and shall consider whether any relation can be established between the two.
The former is easily shown to be founded upon a fictitious identification between the deceased and his successor. And as a first step to the further discussion, as well as for its own sake, I shall briefly state the evidence touching the executor, the heir, and the devisee. In order to understand the theory of our law with regard to the first of these, at least, scholars are agreed that it is necessary to consider the structure and position of the Roman family as it was in the infancy of Roman society.
Continental jurists have long been collecting the evidence that, in the earlier periods of Roman and German law alike, the unit of society was the family. The Twelve Tables of Rome still recognize the interest of the inferior members of the family in the family property. Heirs are called sui heredes, that is, heirs of themselves or of their own property, as is explained by Gaius. /1/ Paulus says that they are regarded as owners in a certain sense, even in the lifetime of their father, and that after his death they do not so much receive an inheritance as obtain the full power of dealing with their property. /2/
Starting from this point it is easy to understand the [343] succession of heirs to a deceased paterfamilias in the Roman system. If the family was the owner of the property administered by a paterfamilias, its rights remained unaffected by the death of its temporary head. The family continued, although the head died. And when, probably by a gradual change, /1/ the paterfamilias came to be regarded as owner, instead of a simple manager of the family rights, the nature and continuity of those rights did not change with the title to them. The familia continued to the heirs as it was left by the ancestor. The heir succeeded not to the ownership of this or that thing separately, but to the total hereditas or headship of the family with certain rights of property as incident, /2/ and of course he took this headship, or right of representing the family interests, subject to the modifications effected by the last manager.
The aggregate of the ancestor's rights and duties, or, to use the technical phrase, the total persona sustained by him, was easily separated from his natural personality. For this persona was but the aggregate of what had formerly been family rights and duties, and was originally sustained by any individual only as the family head. Hence it was said to be continued by the inheritance, /3/ and when the heir assumed it he had his action in respect of injuries previously committed. /4/
Thus the Roman heir came to be treated as identified with his ancestor for the purposes of the law. And thus it is clear how the impossible transfers which I seek to explain were accomplished in that instance. Rights to which B [344] as B could show no title, he could readily maintain under the fiction that he was the same person as A, whose title was not denied.
It is not necessary at this point to study family rights in the German tribes. For it is not disputed that the modern executor derives his characteristics from the Roman heir. Wills also were borrowed from Rome, and were unknown to the Germans of Tacitus. /1/ Administrators were a later imitation of executors, introduced by statute for cases where there was no will, or where, for any other reason, executors were wanting.
The executor has the legal title to the whole of the testator's personal estate, and, generally speaking, the power of alienation. Formerly he was entitled to the undistributed residue, not, it may fairly be conjectured, as legatee of those specific chattels, but because he represented the person of the testator, and therefore had all the rights which the testator would have had after distribution if alive. The residue is nowadays generally bequeathed by the will, but it is not even now regarded as a specific gift of the chattels remaining undisposed of, and I cannot help thinking that this doctrine echoes that under which the executor took in former times.
No such rule has governed residuary devises of real estate, which have always been held to be specific in England down to the present day. So that, if a devise of land should fail, that land would not be disposed of by the residuary clause, but would descend to the heir as if there had been no will.
Again, the appointment of an executor relates back to the date of the testator's death. The continuity of person [345] is preserved by this fiction, as in Rome it was by personifying the inheritance ad interim.
Enough has been said to show the likeness between our executor and the Roman heir. And bearing in mind what was said about the heres, it will easily be seen how it came to be said, as it often was in the old books, that the executor "represents the person of his testator." /1/ The meaning of this feigned identity has been found in history, but the aid which it furnished in overcoming a technical difficulty must also be appreciated. If the executor represents the person of the testator, there is no longer any trouble in allowing him to sue or be sued on his testator's contracts. In the time of Edward III., when an action of covenant was brought against executors, Persay objected: "I never heard that one should have a writ of covenant against executors, nor against other person but the very one who made the covenant, for a man cannot oblige another person to a covenant by his deed except him who was party to the covenant." /2/ But it is useless to object that the promise sued upon was made by A, the testator, not by B, the executor, when the law says that for this purpose B is A. Here then is one class of cases in which a transfer is accomplished by the help of a fiction, which shadows, as fictions so often do, the facts of an early stage of society, and which could hardly have been invented had these facts been otherwise.
Executors and administrators afford the chief, if not the only, example of universal succession in the English [346] law. But although they succeed per universitatem, as has been explained, they do not succeed to all kinds of property. The personal estate goes to them, but land takes another course. All real estate not disposed of by will goes to the heir, and the rules of inheritance are quite distinct from those which govern the distribution of chattels. Accordingly, the question arises whether the English heir or successor to real estate presents the same analogies to the Roman heres as the executor.
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 in............