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. 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 latitude 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 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. This choice of heirs
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 constitute his heirs." 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. 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 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 passed 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 not be admitted to the succession according to the ancient law. 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. One the early forms of instituting an heir was a sale of the familia or headship of the family to the intended heir, with all its rights and duties. 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. We are told by one of the great jurisconsults that in general universal successors stand in the place of heirs. 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 identity between heir and ancestor followed as of course.
