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 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.

[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 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, 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 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.