Page:Harvard Law Review Volume 5.djvu/25

Rh To conclude this part of the discussion, I repeat from my book on the Common Law, that as late as Blackstone agents appear under the general head of servants; that the precedents for the law of agency are cases of master and servant, when the converse is not the case; and that Blackstone's language on this point is express: "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."

Possession is the third branch of the law in which the peculiar doctrines of agency are to be discovered, and to that I now pass.

The Roman law held that the possession of a slave was the possession of his master, on the practical ground of the master's power. At first it confined possession through others pretty closely to things in custody of persons under the patria protestas of the possessor (including prisoners bona fide held as slaves). Later the right was extended by a constitution of Severus. The common law in like manner allowed lords to appropriate lands and chattels purchased by their villeins, and after they had manifested their will to do so, the occupation of the villeins was taken to be the right of their lords. As at Rome, the analogies of the familia were extended to free agents. Bracton allows possession through free agents, but the possession must be held in the name of the principal; and from that day to this it always has been the law that the custody of the servant is the possession of the master.

The disappearance of the servant under the persona of his master, of which a trace was discovered in the law of torts, in this instance has remained complete. Servants have no possession of property in their custody as such. The distinction in this regard between servants and all bailees whatsoever is fundamental,