Page:Harvard Law Review Volume 5.djvu/30

14 14 HARVARD LA W REVIEW. if it be true that the liability even for commanded acts started from the case of owner and slave. In any event, ratification like the rest of the law of agency re- poses on a fiction, and whether the same fiction or another, it will be interesting in the conclusion to study the limits which have been set to its workings by practical experience. What more I have to say concerning the history of agency will appear in my treatment of the last proposition which I undertook to maintain. I said that finally I should endeavor to show that the whole outline of the law, as it stands to-day, is the resultant of a conflict between logic and good sense — the one striving to carry fictions out to consistent results, the other restraining and at last overcoming that effort when the results become too manifestly unjust. To that task I now address myself. I assume that common-sense is opposed to making one man pay for another man's wrong, unless he actually has brought the wrong to pass according to the ordinary canons of legal responsibility, — unless, that is to say, he has induced the immediate wrong-doer to do acts of which the wrong, or, at least, .wrong, was the natural consequence under the circumstances known tp the defendant. I assume that common-sense is opposed to allowing a stranger to my overt acts and to my intentions, a man of whom I have never heard, to set up a contract against me which I had supposed I was making with my personal friend. I assume that common-sense is opposed to the denial of possession to a servant and the assertion of it for a depositary, when the only difference between the two lies in the name by which the custodian is called. And I assume that the opposition of common-sense is intensified when the fore- going doctrines are complicated by the additional absurdities introduced by ratification. I therefore assume that common- sense is opposed to the fundamental theory of agency, although I have no doubt that the possible explanations of its various rules which I suggested at the beginning of this chapter, together with the fact that the most flagrant of them now-a-days often pre- sents itself as a seemingly wholesome check on the indifference and negligence of great corporations, have done much to reconcile men's minds to that theory. What remains to be said I believe will justify my assumption. I begin with the constitution of the relation of master and ser- vant, and with the distinction that an employer is not liable for the