Page:Harvard Law Review Volume 5.djvu/27

11 AGENCY. II royal remedies, the assizes, were confined to those who had a feudal seisin, and the party who had the seisin could recover as well when his lands were subject to a term of years as when they were in charge of agents or servants. 1 Ratification is the only doctrine of which the history remains to be examined. With regard to this I desire to express myself with great caution, as I shall not attempt to analyze exhaustively the Roman sources from which it was derived. I doubt, however, whether the Romans would have gone the length of the modern English law, which seems to have grown to its present extent on English soil. Ulpian said that a previous command to dispossess another would make the act mine, and, although opinion was divided on the subject, he thought that ratification would have the same effect. He agreed with the latitudinarian doctrine of the Sabin- ians, who compared ratification to a previous command. 2 The Sabinians' " comparison " of ratification to mandate may have been a mere figure of speech to explain the natural conclusion that if one accepts possession of a thing which has been acquired for him by wrongful force, he is answerable for the property in the same way as if he had taken it himself. It therefore is hardly worth while to inquire whether the glossators were right in their comment upon this passage, that the taking must have been in the name of the assumed principal, — a condition which is am- biguously mentioned elsewhere in the Digest. 3 Bracton copied Ulpian, 4 still, so far as I have observed, not going beyond cases of distress 6 and disseisin. 6 The first reported cases known to me are again assizes of novel disseisin. 7 But later decisions went much beyond this point, as may be illus- trated by one of them. 8 In trespass de bonis asportatis the de- fendant justified as bailiff. After charging the inquest Gascoigne 1 Bract., fol. 207 a. Cf. ib., 220. Heusler, Gewere, 126. a D. 43, 16, 1, §§ 12, 14. Cf. D. 46, 3, 12, § 4. 3 D. 43, 26, 13 (Pomponius). 5 Fol. 1 58 b, 1 59 a. 6 Fol. 171. But note that by ratification " suam facit injuriant, et ita tenetur ad utrumque, ad restitutionem, s. et ad pcenam." Ibid. b. 7 Y. B. 30 Ed. I. 128 (Horwood) (where, however, the modern doctrine is stated and the Roman maxim is quoted by the judge) ; 38 Ass., pi. 9, fol. 223; s. C. 38 Ed. III. 18; 12 Ed. IV. 9, pi. 23 ; Plowden, 8 ad fin., 27, 31. 8 Y. B. 7 H. IV. 34, 35, pi. 1.
 * Bract., fol. "] b.