/1/
I may here return to the case of goods in a chest delivered under lock and key, or in a bale, and the like. It is a rule of the criminal law, that, if a bailee of such a chest or bale wrongfully sells the entire chest or bale, he does not commit larceny, but if he breaks bulk he does, because in the former case he does not, and in the latter he does, commit a trespa.s.s.
/2/ The reason sometimes offered is, that, by breaking bulk, the bailee determines the bailment, and that the goods at once revest in the possession of the bailor. This is, perhaps, an unnecessary, as well as inadequate fiction. /3/ The rule comes from the Year Books, and the theory of the Year Books was, that, although the chest was delivered to the bailee, the goods inside of it were not, and this theory was applied to civil as well as criminal cases. The bailor has the power and intent to exclude the bailee from the goods, and therefore may be said to be in possession of them as against the bailee. /4/
[225] On the other hand, a case in Rhode Island /1/ is against the view here taken. A man bought a safe, and then, wishing to sell it again, sent it to the defendant, and gave him leave to keep his books in it until sold. The defendant found some bank-notes stuck in a crevice of the safe, which coming to the plaintiff"s ears he demanded the safe and the money. The defendant sent back the safe, but refused to give up the money, and the court sustained him in his refusal. I venture to think this decision wrong. Nor would my opinion be changed by a.s.suming, what the report does not make perfectly clear, that the defendant received the safe as bailee, and not as servant or agent, and that his permission to use the safe was general. The argument of the court goes on the plaintiff"s not being a finder. The question is whether he need be. It is hard to believe that, if the defendant had stolen the bills from the safe while it was in the owner"s hands, the property could not have been laid in the safe-owner, /2/ or that the latter could not have maintained trover for them if converted under those circ.u.mstances. Sir James Stephen seems to have drawn a similar conclusion from Cartwright v. Green and Merry v. Green; /3/ but I believe that no warrant for it can be found in the cases, and still less for the reason suggested.
It will be understood, however, that Durfee v. Jones is perfectly consistent with the view here maintained of the [226] general nature of the necessary intent, and that it only touches the subordinate question, whether the intent to exclude must be directed to the specific thing, or may be even unconsciously included in a larger intent, as I am inclined to believe.
Thus far, nothing has been said with regard to the custody of servants. It is a well-known doctrine of the criminal law, that a servant who criminally converts property of his master intrusted to him and in his custody as servant, is guilty of theft, because he is deemed to have taken the property from his master"s possession. This is equivalent to saying that a servant, having the custody of his master"s property as servant, has not possession of that property, and it is so stated in the Year Books. /1/
The anomalous distinction according to which, if the servant receives the thing from another person for his master, the servant has the possession, and so cannot commit theft, /2/ is made more rational by the old cases. For the distinction taken in them is, that, while the servant is in the house or with his master, the latter retains possession, but if he delivers his horse to his servant to ride to market, or gives him a bag to carry to London, then the thing is out of the master"s possession and in the servant"s. /3/ In this more intelligible form, the rule would not now prevail. But one half of it, that a guest at a tavern has not possession of the plate with which he is served, is no doubt still law, [227] for guests in general are likened to servants in their legal position. /1/
There are few English decisions, outside the criminal on the question whether a servant has possession. But the Year Books do not suggest any difference between civil and criminal cases, and there is an almost tradition of courts and approved writers that he has not, in any case. A master has maintained trespa.s.s against a servant for converting cloth which he was employed to sell, /2/ and the American cases go the full length of the old doctrine. It has often been remarked that a servant must be distinguished from a bailee.
But it may be asked how the denial of possession to servants can be made to agree with the test proposed, and it will be said with truth that the servant has as much the intent to exclude the world at large as a borrower. The law of servants is unquestionably at variance with that test; and there can be no doubt that those who have built their theories upon the Roman law have been led by this fact, coupled with the Roman doctrine as to bailees in general, to seek the formula of reconciliation where they have. But, in truth, the exception with regard to servants stands on purely historical grounds. A servant is denied possession, not from any peculiarity of intent with regard to the things in his custody, either towards his master or other people, by which he is distinguished [228] from a depositary, but simply as one of the incidents of his status. It is familiar that the status of a servant maintains many marks of the time when he was a slave. The liability of the master for his torts is one instance. The present is another. A slave"s possession was his owner"s possession on the practical ground of the owner"s power over him, /1/ and from the fact that the slave had no standing before the law. The notion that his personality was merged in that of his family head survived the era of emanc.i.p.ation.
I have shown in the first Lecture /2/ that agency arose out of the earlier relation in the Roman law, through the extension pro hac vice to a freeman of conceptions derived from that source.
The same is true, I think, of our own law, the later development of which seems to have been largely under Roman influence. As late as Blackstone, agents appear under the general head of servants, and the first precedents cited for the peculiar law of agents were cases of master and servant. Blackstone"s language is worth quoting: "There is yet a fourth species of servants, if they may be so called, being rather in a superior, a ministerial capacity; such as stewards, factors, and bailiffs: whom, however, the law considers as servants pro tempore, with regard to such of their acts as affect their master"s or employer"s property." /3/
[229] It is very true that in modern times many of the effects of either relation--master and servant or princ.i.p.al and agent--may be accounted for as the result of acts done by the master himself. If a man tells another to make a contract in his name, or commands him to commit a tort, no special conception is needed to explain why he is held; although even in such cases, where the intermediate party was a freeman, the conclusion was not reached until the law had become somewhat mature. But, if the t.i.tle Agency deserves to stand in the law at all, it must be because some peculiar consequences are attached to the fact of the relation. If the mere power to bind a princ.i.p.al to an authorized contract were all, we might as well have a chapter on ink and paper as on agents. But it is not all. Even in the domain of contract, we find the striking doctrine that an undisclosed princ.i.p.al has the rights as well as the obligations of a known contractor,--that he can be sued, and, more remarkable, can sue on his agent"s contract. The first precedent cited for the proposition that a promise to an agent may be laid as a promise to the princ.i.p.al, is a case of master and servant. /1/
As my present object is only to show the meaning of the doctrine of identification in its bearing upon the theory of possession, it would be out of place to consider at any length how far that doctrine must be invoked to explain the liability of princ.i.p.als for their agents" torts, or whether a more reasonable rule governs other cases than that applied where the actor has a tolerably defined status as a [230] servant. I allow myself a few words, because I shall not be able to return to the subject.
If the liability of a master for the torts of his servant had hitherto been recognized by the courts as the decaying remnant of an obsolete inst.i.tution, it would not be surprising to find it confined to the cases settled by ancient precedent. But such has not been the fact. It has been extended to new relations by a.n.a.logy, /1/ It exists where the princ.i.p.al does not stand in the relation of paterfamilias to the actual wrong-doer. /2/ A man may be held for another where the relation was of such a transitory nature as to exclude the conception of status, as for the negligence of another person"s servant momentarily acting for the defendant, or of a neighbor helping him as a volunteer; /3/ and, so far as known, no princ.i.p.al has ever escaped on the ground of the dignity of his agent"s employment. /4/ The courts habitually speak as if the same rules applied to brokers and other agents, as to servants properly so called. /5/ Indeed, it [231] has been laid down in terms, that the liability of employers is not confined to the case of servants, /1/ although the usual cases are, of course, those of menial servants, and the like, who could not pay a large verdict.
On the other hand, if the peculiar doctrines of agency are anomalous, and form, as I believe, the vanishing point of the servile status, it may well happen that common sense will refuse to carry them out to their furthest applications. Such conflicts between tradition and the instinct of justice we may see upon the question of identifying a princ.i.p.al who knows the truth with an agent who makes a false representation, in order to make out a fraud, as in Cornfoot v. Fowke, /2/ or upon that as to the liability of a princ.i.p.al for the frauds of his agent discussed in many English cases. /3/ But, so long as the fiction which makes the root of a master"s liability is left alive, it is as hopeless to reconcile the differences by logic as to square the circle.
In an article in the American Law Review /4/ I referred [232] to an expression of G.o.defroi with regard to agents; eadem est persona domini et procuratoris. /1/ This notion of a fict.i.tious unity of person has been p.r.o.nounced a darkening of counsel in a recent useful work. /2/ But it receives the sanction of Sir Henry Maine, /3/ and I believe that it must stand as expressing an important aspect of the law, if, as I have tried to show, there is no adequate and complete explanation of the modern law, except by the survival in practice of rules which lost their true meaning when the objects of them ceased to be slaves. There is no trouble in understanding what is meant by saying that a slave has no legal standing, but is absorbed in the family which his master represents before the law. The meaning seems equally clear when we say that a free servant, in his relations as such, is in many respects likened by the law to a slave (not, of course, to his own detriment as a freeman). The next step is simply that others not servants in a general sense may be treated as if servants in a particular connection. This is the progress of ideas as shown us by history; and this is what is meant by saying that the characteristic feature which justifies agency as a t.i.tle of the law is the absorption pro hac vice of the agent"s legal individuality in that of his princ.i.p.al.
If this were carried out logically, it would follow that an agent const.i.tuted to hold possession in his princ.i.p.al"s name would not be regarded as having the legal possession, or as ent.i.tled to trespa.s.s. But, after what has been said, no opinion can be expressed whether the law would go so far, unless it is shown by precedent. /4/ The nature of the case [233] will be observed. It is that of an agent const.i.tuted for the very point and purpose of possession. A bailee may be an agent for some other purpose. A free servant may be made a bailee. But the bailee holds in his own as we say, following the Roman idiom, and the servant or agent holding as such does not.
It would hardly be worth while, if s.p.a.ce allowed, to search the books on this subject, because of the great confusion of language to be found in them. It has been said, for instance, in this connection, that a carrier is a servant; /1/ while nothing can be clearer than that, while goods are in custody, they are in his possession. /2/ So where goods remain in the custody of a vendor, appropriation to the contract and acceptance have been confounded with delivery. /3/ Our law has adopted the Roman doctrine, /4/ that there may be a delivery, that is, a change of possession, by a change in the character in which the vendor holds, but has not always imitated the caution of the civilians with regard to what amounts to such a change. /5/ Bailees are constantly spoken of as if they were agents to possess,--a confusion made [234] easier by the fact that they generally are agents for other purposes. Those cases which attribute possession to a transferee of goods in the hands of a middleman, /1/ without distinguishing whether the middleman holds in his own name or the buyer"s, are generally right in the result, no doubt, but have added to the confusion of thought upon the subject.
German writers are a little apt to value a theory of possession somewhat in proportion to the breadth of the distinction which it draws between juridical possession and actual detention; but, from the point of view taken here, it will be seen that the grounds for denying possession and the possessory remedies to servants and agents holding as such--if, indeed, the latter have not those remedies--are merely historical, and that the general theory can only take account of the denial as an anomaly. It will also be perceived that the ground on which servants and depositaries have been often likened to each other, namely, that they both hold for the benefit of another and not for themselves, is wholly without influence on our law, which has always treated depositaries as having possession; and is not the true explanation of the Roman doctrine, which did not decide either case upon that ground, and which decided each for reasons different from those on which it decided the other.
It will now be easy to deal with the question of power as to third persons. This is naturally a power coextensive with the intent. But we must bear in mind that the law deals only or mainly with manifested facts; and hence, when we speak of a power to exclude others, we mean no more than a power which so appears in its manifestation. [235] A ruffian may be within equal reach and sight when a child picks up a pocket-book; but if he does nothing, the child has manifested the needful power as well as if it had been backed by a hundred policemen. Thus narrowed, it might be suggested that the manifestation of is only important as a manifestation of intent. But the two things are distinct, and the former becomes decisive when there are two contemporaneous and conflicting intents. Thus, where two parties, neither having t.i.tle, claimed a crop of corn adversely to each other, and cultivated it alternately, and the plaintiff gathered and threw it in small piles in the same field, where it lay for a week, and then each party simultaneously began to carry it away, it was held the plaintiff had not gained possession. /1/ But the first interference of the defendant had been after the gathering into piles, the plaintiff would probably have recovered. /2/ So where trustees possessed of a schoolroom put in a schoolmaster, and he was afterwards dismissed, but the next day (June 30) re-entered by force; on the fourth of July he was required by notice to depart, and was not ejected until the eleventh; it was considered that the schoolmaster never got possession as against the trustees. /3/
We are led, in this connection, to the subject of the continuance of the rights acquired by gaining possession. To gain possession, it has been seen, there must be certain physical relations, as explained, and a certain intent. It remains to be inquired, how far these facts must continue [236] to be presently true of a person in order that he may keep the rights which follow from their presence. The prevailing view is that of Savigny. He thinks that there must be always the same animus as at the moment of acquisition, and a constant power to reproduce at will the original physical relations to the object. Every one agrees that it is not necessary to have always a present power over the thing, otherwise one could only possess what was under his hand.
But it is a question whether we cannot dispense with even more.
The facts which const.i.tute possession are in their nature capable of continuing presently true for a lifetime. Hence there has arisen an ambiguity of language which has led to much confusion of thought. We use the word "possession," indifferently, to signify the presence of all the facts needful to gain it, and also the condition of him who, although some of them no longer exist, is still protected as if they did. Consequently it has been only too easy to treat the cessation of the facts as the loss of the right, as some German writers very nearly do. /1/
But it no more follows, from the single circ.u.mstance that certain facts must concur in order to create the rights incident to possession, that they must continue in order to keep those rights alive, than it does, from the necessity of a consideration and a promise to create a right ex contractu, that the consideration and promise must continue moving between the parties until the moment of performance. When certain facts have once been made manifest which confer a right, there is no general ground on which the law need hold the right at an end except the manifestation of some fact inconsistent with its continuance, [237] the reasons for conferring the particular right have great weight in determining what facts shall be to be so. Cessation of the original physical relations to the object might be treated as such a fact; but it never has been, unless in times of more ungoverned violence than the present. On the same principle, it is only a question of tradition or policy whether a cessation of the power to reproduce the original physical relations shall affect the continuance of the rights. It does not stand on the same ground as a new possession adversely taken by another. We have adopted the Roman law as to animals ferae naturae, but the general tendency of our law is to favor appropriation. It abhors the absence of proprietary or possessory rights as a kind of vacuum. Accordingly, it has been expressly decided, where a man found logs afloat and moored them, but they again broke loose and floated away, and were found by another, that the first finder retained the rights which sprung from his having taken possession, and that he could maintain trover against the second finder, who refused to give them up. /1/
Suppose that a finder of a purse of gold has left it in his country-house, which is lonely and slightly barred, and he is a hundred miles away, in prison. The only person within twenty miles is a thoroughly equipped burglar at his front door, who has seen the purse through a window, and who intends forthwith to enter and take it. The finder"s power to reproduce his former physical relation to the gold is rather limited, yet I believe that no one would say that his possession was at an end until the burglar, by an overt [238] act, had manifested his power and intent to exclude others from the purse. The reason for this is the same which has been put with regard to the power to exclude at the moment of gaining possession. The law deals, for the most part, with overt acts and facts which can be known by the senses.
So long as the burglar has not taken the purse, he has not manifested his intent; and until he breaks through the barrier which measures the present possessor"s power of excluding him, he has not manifested his power. It may be observed further, that, according to the tests adopted in this Lecture, the owner of the house has a present possession in the strictest sense, because, although he has not the power which Savigny says is necessary, he has the present intent and power to exclude others.
It is conceivable that the common law should go so far as to deal with possession in the same way as a t.i.tle, and should hold that, when it has once been acquired, rights are acquired which continue to prevail against all the world but one, until something has happened sufficient to divest ownership.
The possession of rights, as it is called, has been a fighting-ground for centuries on the Continent. It is not uncommon for German writers to go so far as to maintain that there may be a true possession of obligations; this seeming to accord with a general view that possession and right are in theory coextensive terms; that the mastery of the will over an external object in general (be that object a thing or another will), when in accord with the general will, and consequently lawful, is called right, when merely de facto is possession. /1/ Bearing in mind what was [239] said on the question whether possession was a fact or right, it will be seen that such an ant.i.thesis between possession and right cannot be admitted as a legal distinction. The facts const.i.tuting possession generate rights as truly as do the facts which const.i.tute ownership, although the rights a mere possessor are less extensive than those of an owner.
Conversely, rights spring from certain facts supposed to be true of the person ent.i.tled to such rights. Where these facts are of such a nature that they can be made successively true of different persons, as in the case of the occupation of land, the corresponding rights may be successively enjoyed. But when the facts are past and gone, such as the giving of a consideration and the receiving of a promise, there can be no claim to the resulting rights set up by any one except the party of whom the facts were originally true--in the case supposed, the original contractee,--because no one but the original contractee can fill the situation from which they spring.
It will probably be granted by English readers, that one of the essential const.i.tuent facts consists in a certain relation to a material object. But this object may be a slave, as well as a horse; /1/ and conceptions originated in this way may be extended by a survival to free services. It is noticeable that even Bruns, in the application of his theory, does not seem to go beyond cases of status and those where, in common language, land is bound for the services in question, as it is for rent. Free services being [240] so far treated like servile, even by our law, that the master has a right of property in them against all the world, it is only a question of degree where the line shall be drawn. It would be possible to hold that, as one might be in possession of a slave without t.i.tle, so one might have all the rights of an owner in free services rendered without contract.
Perhaps there is something of that sort to be seen when a parent recovers for the seduction of a daughter over twenty-one, although there is no actual contract of service. /1/ So, throughout the whole course of the canon law and in the early law of England, rents were regarded as so far a part of the realty as to be capable of possession and disseisin, and they could be recovered like land by all a.s.size. /2/
But the most important case of the so-called possession of rights in our law, as in the Roman, occurs with regard to eas.e.m.e.nts. An eas.e.m.e.nt is capable of possession in a certain sense. A man may use land in a certain way, with the intent to exclude all others from using it in any way inconsistent with his own use, but no further. If this be true possession, however, it is a limited possession of land, not of a right, as others have shown. But where an eas.e.m.e.nt has been actually created, whether by deed or prescription, although it is undoubtedly true that any possessor of the dominant estate would be protected in its enjoyment, it has not been so protected in the past on the ground that the eas.e.m.e.nt was in itself an object of possession, but by the survival of precedents explained in a later [241] Lecture. Hence, to test the existence of a mere possession of this sort which the law will protect, we will take the case of a way used de facto for four years, but in which no eas.e.m.e.nt has yet been acquired, and ask whether the possessor of the quasi dominant tenement would be protected in his use as against third persons. It is conceivable that he should be, but I believe that he would not.
/2/
The chief objection to the doctrine seems to be, that there is almost a contradiction between the a.s.sertions that one man has a general power and intent to exclude the world from dealing with the land, and that another has the power to use it in a particular way, and to exclude the from interfering with that.
The reconciliation of the two needs somewhat artificial reasoning. However, it should be borne in mind that the question in every case is not what was the actual power of the parties concerned, but what was their manifested power. If the latter stood thus balanced, the law might recognize a kind of split possession. But if it does not recognize it until a right is acquired, then the protection of a disseisor in the use of an eas.e.m.e.nt must still be explained by a reference to the facts mentioned in the Lecture referred to.
The consequences attached to possession are substantially those attached to ownership, subject to the question the continuance of possessory rights which I have touched upon above. Even a wrongful possessor of a [242] chattel may have full damages for its conversion by a stranger to the t.i.tle, or a return of the specific thing. /1/
It has been supposed, to be sure, that a "special property" was necessary in order to maintain replevin /2/ or trover. /3/ But modern cases establish that possession is sufficient, and an examination of the sources of our law proves that special property did not mean anything more. It has been shown that the procedure for the recovery of chattels lost against one"s will, described by Bracton, like its predecessor on the Continent, was based upon possession. Yet Bracton, in the very pa.s.sage in which he expressly makes that statement, uses a phrase which, but for the explanation, would seem to import ownership,--"Poterit rem suam petere." /4/ The writs of later days used the same language, and when it was objected, as it frequently was, to a suit by a bailee for a taking of bona et catalla sua, that it should have been for bona in custodia sua existentia, it was always answered that those in the Chancery would not frame a writ in that form.
/5/
The substance of the matter was, that goods in a man"s possession were his (sua), within the meaning of the writ. But it was very natural to attempt a formal reconciliation between that formal word and the fact by saying that, although the plaintiff had not the general property in the [243] chattels, yet he had a property as against strangers, /1/ or a special property. This took place, and, curiously enough, two of the earliest instances in which I have found the latter phrase used are cases of a depositary, /2/ and a borrower. /3/ Brooke says that a wrongful taker "has t.i.tle against all but the true owner." /4/ In this sense the special property was better described as a "possessory property," as it was, in deciding that, in an indictment for larceny, the property could be laid in the bailee who suffered the trespa.s.s. /5/
I have explained the inversion by which a bailee"s right of action against third persons was supposed to stand on his responsibility over, although in truth it was the foundation of that responsibility, and arose simply from his possession. The step was short, from saying that bailees could sue because they were answerable over, /6/ to saying that they had the property as against strangers, or a special property, because they were answerable over, /7/ and that they could sue because they had a special property and were answerable over. /8/ And thus the notion that special property meant something more than possession, and was a requisite to maintaining an action, got into the law.
The error was made easier by a different use of the phrase in a different connection. A bailee was in general liable for goods stolen from his custody, whether he had a lien or not. But the law was otherwise as to a [244] pledgee, if he had kept the pledge with his own goods, and the two were stolen together. /1/ This distinction was accounted for, at least in Lord c.o.ke"s time, by saying that the pledge was, in a sense, the pledgee"s own, that he had a special property in it, and thus that the ordinary relation of bailment did not exist, or that the undertaking was only to keep as his own goods. /2/ The same expression was used in discussing the pledgee"s right to a.s.sign the pledge, /3/ In this sense the term applied only to pledges, but its significance in a particular connection was easily carried over into the others in which it was used, with the result that the special property which was requisite to maintain the possessory actions was supposed to mean a qualified interest in the goods.
With regard to the legal consequences of possession, it only remains to mention that the rules which have been laid down with regard to chattels also prevail with regard to land. For although the plaintiff in ejectment must recover on the strength of his own t.i.tle as against a defendant in possession, it is now settled that prior possession is enough if the defendant stands on his possession alone Possession is of course sufficient for trespa.s.s.5 And although the early remedy by a.s.size was restricted to those who had a technical seisin, this was for reasons which do not affect the general theory.
Before closing I must say a word concerning ownership and kindred conceptions. Following the order of a.n.a.lysis [245] which has been pursued with regard to possession, the first question must be, What are the facts to which the rights called ownership are attached as a legal consequence? The most familiar mode of gaining ownership is by conveyance from the previous owner. But that presupposes ownership already existing, and the problem is to discover what calls it into being.
One fact which has this effect is first possession. The captor of wild animals, or the taker of fish from the ocean, has not merely possession, but a t.i.tle good against all the world. But the most common mode of getting an original and independent t.i.tle is by certain proceedings, in court or out of it, adverse to all the world. At one extreme of these is the proceeding in rem of the admiralty, which conclusively disposes of the property in its power, and, when it sells or condemns it, does not deal with this or that man"s t.i.tle, but gives a new t.i.tle paramount to all previous interests, whatsoever they may be. The other and more familiar case is prescription, where a public adverse holding for a certain time has a similar effect. A t.i.tle by prescription is not a presumed conveyance from this or owner alone, it extinguishes all previous and inconsistent claims. The two coalesce in the ancient fine with proclamations where the combined effect of the judgment and the lapse of a year and a day was to bar claims. /1/
So rights a.n.a.logous to those of ownership may be given by the legislature to persons of whom some other set of facts is true.
For instance, a patentee, or one to whom the government has issued a certain instrument, and who in fact has made a patentable invention.
[246] But what are the rights of ownership? They are substantially the same as those incident to possession. Within the limits prescribed by policy, the owner is allowed to exercise his natural powers over the subject-matter uninterfered with, and is more or less protected in excluding other people from such interference. The owner is allowed to exclude all, and is accountable to no one. The possessor is allowed to exclude all but one, and is accountable to no one but him. The great body of questions which have made the subject of property so large and important are questions of conveyancing, not necessarily or generally dependent on ownership as distinguished from possession. They are questions of the effect of not having an independent and original t.i.tle, but of coming in under a t.i.tle already in existence, or of the modes in which an original t.i.tle can be cut up among those who come in under it. These questions will be dealt with and explained where they belong, in the Lectures on Successions.
[247]
LECTURE VII. -- CONTRACT.--I. HISTORY.
The doctrine of contract has been so thoroughly remodelled to meet the needs of modern times, that there is less here than elsewhere for historical research. It has been so ably discussed that there is less room here elsewhere for essentially new a.n.a.lysis. But a short of the growth of modern doctrines, whether necessary or not, will at least be interesting, while an a.n.a.lysis of their main characteristics cannot be omitted, and may present some new features.
It is popularly supposed that the oldest forms of contract known to our law are covenant and debt, and they are of early date, no doubt. But there are other contracts still in use which, although they have in some degree put on modern forms, at least suggest the question whether they were not of equally early appearance.
One of these, the promissory oath, is no longer the foundation of any rights in private law. It is used, but as mainly as a solemnity connected with entering upon a public office. The judge swears that he will execute justice according to law, the juryman that he will find his verdict according to law and the evidence, the newly adopted citizen that he will bear true faith and allegiance to the government of his choice.
But there is another contract which plays a more important part.
It may, perhaps, sound paradoxical to mention [248] the contract of suretyship. Suretyship, nowadays, is only an accessory obligation, which presupposes a princ.i.p.al undertaking, and which, so far as the nature of the contract goes, is just like any other. But, as has been pointed out by Laferriere, /1/ and very likely by earlier writers, the surety of ancient law was the hostage, and the giving of hostages was by no means confined to international dealings.