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 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 passages 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 cum 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 entitled, 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 constitutes an identity of person." /4/

But this is not all. The identity 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 assumption 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 title that another man had trespassed 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.