would be that they sustained that persona, pro hac vice. For that purpose they were one with the paterfamilias. Justinian's Institutes tell us that the right of a slave to receive a binding promise is derived ex persona domini.1 And with regard to free agents, the commentators said that in such instances two persons were feigned to be one.15

Such a formula, of course, is only derivative. The fiction is merely a convenient way of expressing rules which were arrived at on other grounds. The Roman praetor did not make innkeepers answerable for their servants because "the act of the servant was the act of the master," any more than because they had been negligent in choosing them. He did so on substantive grounds of policy - because of the special confidence necessarily reposed in innkeepers. So when it held that a slave's possession was his owner's possession, the practical fact of the master's power was at the bottom of the decision."

16

But when such a formula is adopted, it soon acquires an independent standing of its own. Instead of remaining only a short way of saying that when from policy the law makes a master responsible for his servant, or because of his power gives him the benefit of his slave's possession or contract, it treats him to that extent as the tort-feasor, possessor, or contractee, the formula becomes a reason in itself for

14 Inst. 3, 17, pr. 18, in the older editions.

15 D. 45, 1, 38, § 17, Elzevir ed., Gothofred. note 74, Cf. D. 44, 2, 4, note 17.

16 The Common Law, 228.

making the master answerable and for giving him rights. If "the act of the servant is the act of the master," or master and servant are "considered as one person," then the master must pay for the act if it is wrongful, and has the advantage of it if it is right. And the mere habit of using these phrases, where the master is bound or benefited by his servant's act, makes it likely that other cases will be brought within the penumbra of the same thought on no more substantial ground than the way of thinking which the words have brought about.

I shall examine successively the English authorities with regard to agency in tort, contract, ratification, and possession. But some of those authorities are of equal importance to every branch of the proposed examination, and will prove in advance that the foregoing remarks are not merely hypothetical. I therefore begin with citations sufficient to establish that family headship was recognized as a factor in legal rights and duties; that this notion of headship was extended by analogy so as to cover the relation of a master to freemen filling a servile place for the time being, and that the relations thus embraced were generalized under the misleading fiction of identity.

The familia, Bracton says, embraces "those who are regarded in the light of serfs, such as, etc. So, too, as well freemen as serfs, and those over whom one has the power of command." 17

17 “Et etiam familiae appellatio eos complectitur qui loco servorum habentur, sicut sunt mercenarii et conductitii. Item tam liberi quam servi, et quibus poterit imperari." Bract., fol. 171b.

18

In West's Symboleography, a work which was published towards the beginning of the reign of James I., and which, though mainly a form book, gives several glimpses of far-reaching insight, we read as follows:

"The person is he which either agreeth or offendeth, and beside him none other.

"And both may be bound either mediately, or immediately.

"Immediately, if he which is bound doe agree.

"Mediately, when if he, which by nature differeth from him, but not by law, whereby as by some bond he is fained to be all one person, doth contract, or offend, of which sort in some cases be those which be in our power, as a wife, a bondman, servant, a factor, an Attourney, or Procurator, exceeding their authority."

Here we see that the patria potestas is the substantive ground, that it is extended to cover free agents, who are not even domestic servants, and that it finds its formal expression in the fiction of identity.

So, at the beginning of the next reign, it was said that an action for fire, due to the negligence of a wife, or servant, lay "vers patrem familias." 19 The extension of the liability, as shown by West, is sometimes expressed in later books by saying that it is not confined to cases where the party stands in the

18 Lib. I., § 3, ad fin. "Of the Fact of Man."

19 Shelley and Barr's Case, I Roll. Abr. 2, pl. 7 (M.I Car.I.).

20 but

relation of paterfamilias to the wrong-doer; this only means that the rule extends to other servants besides domestic servants, and admits the analogy or starting-point."1

Every one is familiar with the fiction as applied to married women. The early law dealt with married women on the footing of servants. It called both wives and servants chattels.22 The wife was said to be in the nature of a servant,23 and husband and wife were only one person in law." So far was this identification carried, so far was the persona of the wife swallowed up in and made part of the husband's, that whereas, in general, assigns could not vouch upon a warranty unless they were expressly mentioned in it,25 a husband always could vouch upon a warranty made to his wife before marriage. By marriage, as was said in Simon Simeon's case. "it vested in the person of the husband." That is to say, although what actually happened was that the right to enforce a contract was transferred to a stranger, in theory of law there was no transfer, because the stranger had become the same person as the contractee.26

20 Bac. Abr., Master and Servant, K; Smith's Master and Servant, 3d ed, 260.

21 Laugher v. Pointer, 5 B. & C., 547, 554 (1826). Cf. Bush v. Steinman, I Bos. & P. 404 (1709).

22 Y. B. 19 Hen. VI. 31, pl. 59; 2 Roll. Abr. 546 (D).

23 I Roll. Abr. 2, pl. 7.

24 Dial. de Scaccario II., Ch. 18.; Bract., fol. 429b; Y. B. 22 Hen. VI. 38, pl. 6; Litt. §§ 168, 191; 3 Salk. 46; Com. Dig. Baron & Feme (D); 1 Bl. Comm. 442.

25 The Common Law, 375, n. 2, 401, n. 1.

26 Simon Simeon's Case, Y. B. 30 Ed. III. 14; s.c. ib. 6; 29 Ed.

Of course the identification between husband and wife, although by no means absolute, was far more complete than that between master and menial servant, just as in the latter case it went farther than in that of an agent employed for some particular transaction. Even in the case of villeins, while the lord might take advantage of their possession or their title, he could not take advantage of contracts or warranties made to them.27 But the idea and its historical starting-point were the same throughout. When considering the later cases, the reader will remember that it is incontrovertably established that a wife was on the footing of a servant, that the consequences of the relation were familiarly expressed in terms of the fiction of identity, and, therefore, that the applicability of this fiction to the domestic relations generally must have been well known to the courts long before the date of the principal decisions, which it will be my task to interpret.

I now take up the liability of a master for the torts of his servant at common law. This has been supposed in England to have been manufactured out of the whole cloth, and introduced by the decision

III. 48. I have seen no reason to change the views expressed in The Common Law, Lecture XI., to meet the suggestions of Prof. Ames in 3 Harv. Law Rev. 388, n. 6. Undoubtedly the letter of credit was known in the reign of Henry III. 1 Royal Letters, Hen. III. 315. But the modern theory of contract applied to letters of credit, in my opinion, was not the theory on which assigns got the benefit of a warranty. Norcross v. James, 140 Mass. 188.

27 Y. B. 22 Ass. pl. 27, fol. 93; Co. Lit. 117a.