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he should also be civilized; that he should have laid in the outline of the other sciences, as well as the light and shade of his own; that he should be reasonable, and see things in their proportion. Nay, more, that he should be passionate, as well as reasonable that he should be able not only to explain, but to feel; that the ardors of intellectual pursuit should be relieved by the charms of art, should be succeeded by the joy of life become an end in itself.
At Harvard College is realized in some degree the palpitating manifoldness of a truly civilized life. Its aspirations are concealed because they are chastened and instructed; but I believe in my soul that they are not the less noble that they are silent. The golden light of the University is not confined to the undergraduate department; it is shed over all the schools. He who has once seen it becomes other than he was, forevermore. I have said that the best part of our education is moral. It is the crowning glory of this Law School that it has kindled in many a heart an inextinguishable fire.
NOTE. The orator referred to above was James Russell Lowell; the poet was Oliver Wendell Holmes.
I PROPOSE in these lectures to study the theory of agency at common law, to the end that it may be understood upon evidence, and not merely by conjecture, and that the value of its principles may be weighed intelligently. I first shall endeavor to show why agency is a proper title in the law. I then shall give some general reasons for believing that the series of anomalies or departures from general rule which are seen wherever agency makes its appearance must be explained by some cause not manifest to common sense alone; that this cause is, in fact, the survival from ancient times of doctrines which in their earlier form embodied certain rights and liabilities of heads of families based on substantive grounds which have disappeared long since, and that in modern days these doctrines have been generalized into a fiction, which, although nothing in the world but a form of words, has reacted upon the law and has tended to carry its anomalies still farther. That fiction is, of course, that, within the scope of the agency, principal and agent are one. I next shall examine the early law of England upon every branch of the subject — tort, contract, possession, ratification - and show the working of survival or fiction in each. If I do not succeed in reducing the law of all these branches to a common term, I shall try to show that at least they all equally depend upon fiction for their present existence. I shall prove incidentally that agency in its narrower sense presents only a special application of the law of master and servant, and that the peculiar doctrines of both are traceable to a common source. Finally I shall give my reasons for thinking that the whole outline of the law is the resultant of a conflict at every point between logic and good sense — the one striving to work fiction out to consistent results, the other restraining and at last overcoming that effort when the results become too manifestly unjust.
* Harvard Law Review, Vol. IV. (1891).
A part of my task has been performed and my general view indicated in my book on the Common Law. It remains to discuss the matter systematically and in detail, giving due weight to the many difficulties or objections which are met with in the process.
My subject extends to the whole relation of master and servant - it is not confined to any one branch; so that when I choose the title “Agency,” I do not use it in the strict sense just referred to, but as embracing everything of which I intend to treat.
The first question proposed is why agency is a proper title in the law. That is to say, Does agency bring into operation any new and distinct rules of law? Do the facts which constitute agency have attached to them legal effects which are peculiar to it, or is the agency only a dramatic situation to which principles of larger scope are applied? And if agency has rules of its own incapable of being further generalized, what are they?
If the law went no farther than to declare a man liable for the consequences of acts specifically commanded by him with knowledge of circumstances under which those consequences were the natural results of those acts, it would need no explanation and introduce no new principle. There may have been some difficulty in arriving at this conclusion when the intervening agent was a free person and himself responsible. Speaking without special investigation, I do not remember any case in early law in which one could charge himself thus in contract or even in tort. Taking the allied case of joint trespassers, although it long has been settled that each wrong-doer is liable for the entire damages, the objection that "the battery of one cannot be the battery of the other” prevailed as late as James I.' It is very possible that liability even for the commanded acts of a free person first appeared as an extension of the liability of an owner for similar acts by his slave.
But however this may be, it is plain good sense to hold people answerable for wrongs which they have intentionally brought to pass, and to recognize that it is just as possible to bring wrongs to pass through free human agents as through slaves, animals, or natural forces. This is the true scope and
1 Sampson v. Cranfield, I Bustr, 157 (T. 9 Jac.).
meaning of “Qui facit per alium facit per se," and the English law has recognized that maxim as far back as it is worth while to follow it. So it is only applying the general theory of tort to hold a man liable if he commands an act of which the natural consequence, under the circumstances known to him, is harm to his neighbor, although he has forbidden the harm. If a trespass results, it is as much the trespass of the principal as if it were the natural, though unwished for, effect of a train of physical causes. In such cases there is nothing peculiar to master and servant; similar principles have been applied where independent contractors were employed."
No additional explanation is needed for the case of a contract specifically commanded. A difficulty has been raised concerning cases where the agent has a discretion as to the terms of the contract, and it has been called “absurd to maintain that a contract which in its exact shape emanates exclusively from a particular person is not the contract of such person [i.e., the agent], but is the contract of another.' But I venture to think that the absurdity is the other
2 In Tort: Y. B. 32 Ed. I., 318, 320 (Harwood); 22 Ass. pl. 43, fol. 94; 11 Hen. IV. 90, pl. 47; 9 Hen. VI. 53, pl. 37; 21 Hen. VI., 39; 4 Ed. IV. 36; Dr. and Stud., II., C. 42; Seaman and Browning's Casc, 4 Leon. 123, pl. 249 (M. 31 Eliz.). Conveyance: Fitz. Abr. Annuitie, pl. 51 (H. 33, Ed. I.), where the maxim is quoted. Account: 4. Inst. 109.
3 Gregory v. Piper, 9 B. & C. 591. C. The Common Law, 53, 54, and Lect. 3 and 4.
4 Bower v. Peate, 1, Q. B. D. 321.