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 emancipation.

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 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. 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 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 [230] servant.  I allow myself a few words, because I shall not be able to return to the subject.