If the liability of a master for the torts of his servant had hitherto been recognized by the courts as the decaying remnant of an obsolete institution, it would not be surprising to find it confined to the cases settled by ancient precedent.  But such has not been the fact.  It has been extended to new relations by analogy, 1 It exists where the principal does not stand in the relation of paterfamilias to the actual wrong-doer. 2 A man may be held for another where the relation was of such a transitory nature as to exclude the conception of status, as for the negligence of another person’s servant momentarily acting for the defendant, or of a neighbor helping him as a volunteer; 3 and, so far as known, no principal has ever escaped on the ground of the dignity of his agent’s employment. 4 The courts habitually speak as if the same rules applied to brokers and other agents, as to servants properly so called. 5 Indeed, it [231] has been laid down in terms, that the liability of employers is not confined to the case of servants, 1 although the usual cases are, of course, those of menial servants, and the like, who could not pay a large verdict.

On the other hand, if the peculiar doctrines of agency are anomalous, and form, as I believe, the vanishing point of the servile status, it may well happen that common sense will refuse to carry them out to their furthest applications.  Such conflicts between tradition and the instinct of justice we may see upon the question of identifying a principal who knows the truth with an agent who makes a false representation, in order to make out a fraud, as in Cornfoot v.  Fowke, 2 or upon that as to the liability of a principal for the frauds of his agent discussed in many English cases. 3 But, so long as the fiction which makes the root of a master’s liability is left alive, it is as hopeless to reconcile the differences by logic as to square the circle.

In an article in the American Law Review 4 I referred [232] to an expression of Godefroi with regard to agents; eadem est persona domini et procuratoris. 1 This notion of a fictitious unity of person has been pronounced a darkening of counsel in a recent useful work. 2 But it receives the sanction of Sir Henry Maine, 3 and I believe that it must stand as expressing an important aspect of the law, if, as I have tried to show, there is no adequate and complete explanation of the modern law, except by the survival in practice of rules which lost their true meaning when the objects of them ceased to be slaves.  There is no trouble in understanding what is meant by saying that a slave has no legal standing, but is absorbed in the family which his master represents before the law.  The meaning seems equally clear when we say that a free servant, in his relations as such, is in many respects likened by the law to a slave (not, of course, to his own detriment as a freeman).  The next step is simply that others not servants in a general sense may be treated as if servants in a particular connection.  This is the progress of ideas as shown us by history; and this is what is meant by saying that the characteristic feature which justifies agency as a title of the law is the absorption pro hac vice of the agent’s legal individuality in that of his principal.