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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 Coke'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 assign 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 title 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 trespass。5 And although the early remedy by assize 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 analysis ＇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 title good against all the world。 But the most common mode of getting an original and independent title 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 title； but gives a new title 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 title 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 analogous 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 title； but of coming in under a title already in existence； or of the modes in which an original title 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 analysis。 But a short of the growth of modern doctrines； whether necessary or not； will at least be interesting； while an analysis 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 principal 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。
In the old metrical romance of Huon of Bordeaux； Huon； having killed the son of Charlemagne； is required by the Emperor to perform various seeming impossibilities as the price of forgiveness。 Huon starts upon the task； leaving twelve of his knights as hostages。 /2/ He returns successful； but at first the Emperor is made to believe that his orders have been disobeyed。 Thereupon Charlemagne cries out； 〃I summon hither the pledges for Huon。 I will hang them； and they shall have no ransom。〃 /3/ So； when Huon is to fight a duel； by way of establishing the truth or falsehood of a charge against him； each party begins by producing some of his friends as hostages。
When hostages are given for a duel which is to determine the truth or falsehood of an accusation； the transaction is very near to the giving of similar security in the trial of a cause in court。 This was in fact the usual course of the Germanic procedure。 It will be remembered that the earliest appearance of law was as a substitute for the private feuds between families or clans。 But while a defendant who did not peaceably submit to the jurisdiction of the court might be put outside the protection of the law； so that any man might kill him at sight； there was at first ＇249＇ no way of securing the indemnity to which the plaintiff was entitled unless the defendant chose to give such security。 /1/
English customs which have been preserved to us are somewhat more advanced； but one of the noticeable features in their procedure is the giving of security at every step。 All lawyers will remember a trace of this in the fiction of John Doe and Richard Roe； the plaintiff's pledges to prosecute his action。 But a more significant example is found in the rule repeated in many of the early laws； that a defendant accused of a wrong must either find security or go to prison。 /2/ This security was the hostage of earlier days； and later； when the actions for punishment and for redress were separated from each other； became the bail of the criminal law。 The liability was still conceived in the same way as when the bail actually put his own body into the power of the party secured。
One of Charlemagne's additions to the Lex Salica speaks of a freeman who has committed himself to the power of another by way of surety。 /3/ The very phrase is copied in the English laws of Henry I。 /4/ We have seen what this meant in the story of Huon of Bordeaux。 The Mirror of Justices /5/ says that King Canute used to judge the mainprisors according as the principals when their principals not in judgment； but that King Henry I。 confined Canute's rule to mainprisors who were consenting to the fact。
As late as the reign of Edward III。； Shard； an English judge； after stating the law as it still is； that bail are a prisoner's ＇250＇ keepers； and shall be charged if he escapes； observes； that some say that the bail shall be hanged in his place。 /1/ This was the law in the analogous case of a jailer。 /2/ The old notion is to be traced in the form still given by modern writers for the undertaking of bail for felony。 They are bound 〃b