Page:Harvard Law Review Volume 9.djvu/89

61 A PROBLEM AS TO RATIFICATION. 6l says: " Omnis ratihabitio retro trahitur et mandate aequiparatur." ^ " Comparatur " and " aequiparatur " are certainly not quite synony- mous; but it seems that changes in language do not necessarily indicate a difference in doctrine,^ nor even an attempt to secure greater accuracy. Bracton, Coke, and all the lawyers of the three centuries separating them used Latin in their profession as almost a living language. In that state of facts, to substitute one Latin word for another, or to add a word here and there, was easy and natural ; and perhaps this is the reason why paraphase rather than quotation is common in the early books. The several forms of the maxim, substantially identical in lan- guage and precisely identical in spirit, have been used so long as to make it certain that they are accurate descriptions of the general effect of ratification. Unquestionably ratification and original au- thorization are similar ; and unquestionably ratification, unless some rule prevents it from having efficacy, relates back, and is thereupon substantially equivalent to original authorization. Yet there are many instances where ratification is wholly inefficacious, where rela- tion does not take place, and where ratification and original author- ization turn out to be very different things indeed. Of course too much must not be expected from any maxim. The whole law can- not be compressed into a sentence. In this particular instance the maxim carries upon its very face a warning to those who would use it as an infallible panacea. When a maxim says that two ac- tually distinct things are equivalent, it obviously represents simply an approximation to accuracy ; and when it lays down as an inva- riable rule a doctrine of relation, it gives emphatic notice that in many cases the solution prescribed by the rule must be disregarded. Hence, it is not at all strange that the ancient maxim as to ratifi- cation gives for many problems inadequate solutions or none at all, and that it has had to receive elaborate appendices defining the cases in which ratification is possible. One of these supplemental rules is that ratification is impossible if, meanwhile, rights of strangers have intervened ; ^ and apparently this is true whether such strangers did or did not know of the original transaction.^ A 1 Co, Lit. 207 a. 2 An opposite view is expressed by Mr, Justice Holmes, in 5 Harvard Law Review, 12. 8 Bird V. Brown, 4 Exch. 786 {1850) ; Pollock v. Cohen, 32 Ohio St. 514 (1877). Robinson, 14 Cal. 396 (1859), and the cases in the preceding note; but ^^o., contra, Wharton on Agency, § 80. It maybe of importance to inquire whether the stranger was simply acting maliciously. Bowen v. Hall, 6 Q. B. D. 333 (1881).
 * This seems a fair inference from Wood v. M'Cain, 7 Ala. 800 (1845), Taylor v.