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. 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, 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. 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, for guests in general are likened to servants in their legal position. 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 trespass against a servant for converting cloth which he was employed to sell, and the American cases go the full length of the old doctrine.It has often been remarked ;hat 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 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, 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 emancipation.
I have shown in the first Lecture 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." It is very true that in modern times many of the effects of either relation--master and servant or principal 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 title 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 principal 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 principal 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 principal, is a case of master and servant. 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 principals 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 servant.I allow myself a few words, because I shall not be able to return to the subject.
