Page:Harvard Law Review Volume 4.djvu/369

Rh women. The early law dealt with married women on the footing of servants. It called both wives and servants chattels. The wife was said to be in the nature of a servant, 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 her husband's, that whereas, in general, assigns could not vouch upon a warranty unless they were expressly mentioned in it, a husband could always 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.

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 particlar [sic] 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. But the idea and its historical starting-point were the same throughout. When considering the later cases, the reader will remember that it is incontrovertibly 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 wall be my task to interpret.

I now take up the liability of a master for the torts of his