rule of the criminal law； that； if a bailee of such a chest or bale wrongfully sells the entire chest or bale； he does not commit larceny； but if he breaks bulk he does； because in the former case he does not； and in the latter he does； commit a trespass。 /2/ The reason sometimes offered is； that； by breaking bulk； the bailee determines the bailment； and that the goods at once revest in the possession of the bailor。 This is； perhaps； an unnecessary； as well as inadequate fiction。 /3/ The rule comes from the Year Books； and the theory of the Year Books was； that； although the chest was delivered to the bailee； the goods inside of it were not； and this theory was applied to civil as well as criminal cases。 The bailor has the power and intent to exclude the bailee from the goods； and therefore may be said to be in possession of them as against the bailee。 /4/
＇225＇ On the other hand； a case in Rhode Island /1/ is against the view here taken。 A man bought a safe； and then； wishing to sell it again； sent it to the defendant； and gave him leave to keep his books in it until sold。 The defendant found some bank…notes stuck in a crevice of the safe； which coming to the plaintiff's ears he demanded the safe and the money。 The defendant sent back the safe； but refused to give up the money； and the court sustained him in his refusal。 I venture to think this decision wrong。 Nor would my opinion be changed by assuming； what the report does not make perfectly clear； that the defendant received the safe as bailee； and not as servant or agent； and that his permission to use the safe was general。 The argument of the court goes on the plaintiff's not being a finder。 The question is whether he need be。 It is hard to believe that； if the defendant had stolen the bills from the safe while it was in the owner's hands； the property could not have been laid in the safe… owner； /2/ or that the latter could not have maintained trover for them if converted under those circumstances。 Sir James Stephen seems to have drawn a similar conclusion from Cartwright v。 Green and Merry v。 Green； /3/ but I believe that no warrant for it can be found in the cases； and still less for the reason suggested。
It will be understood； however； that Durfee v。 Jones is perfectly consistent with the view here maintained of the ＇226＇ general nature of the necessary intent； and that it only touches the subordinate question； whether the intent to exclude must be directed to the specific thing； or may be even unconsciously included in a larger intent； as I am inclined to believe。
Thus far； nothing has been said with regard to the custody of servants。 It is a well…known doctrine of the criminal law； that a servant who criminally converts property of his master intrusted to him and in his custody as servant； is guilty of theft； because he is deemed to have taken the property from his master's possession。 This is equivalent to saying that a servant； having the custody of his master's property as servant； has not possession of that property； and it is so stated in the Year Books。 /1/
The anomalous distinction according to which； if the servant receives the thing from another person for his master； the servant has the possession； and so cannot commit theft； /2/ is made more rational by the old cases。 For the distinction taken in them is； that； while the servant is in the house or with his master； the latter retains possession； but if he delivers his horse to his servant to ride to market； or gives him a bag to carry to London； then the thing is out of the master's possession and in the servant's。 /3/ In this more intelligible form； the rule would not now prevail。 But one half of it； that a guest at a tavern has not possession of the plate with which he is served； is no doubt still law； ＇227＇ for guests in general are likened to servants in their legal position。 /1/
There are few English decisions； outside the criminal on the question whether a servant has possession。 But the Year Books do not suggest any difference between civil and criminal cases； and there is an almost tradition of courts and approved writers that he has not； in any case。 A master has maintained trespass against a servant for converting cloth which he was employed to sell； /2/ and the American cases go the full length of the old doctrine。 It has often been remarked ；hat a servant must be distinguished from a bailee。
But it may be asked how the denial of possession to servants can be made to agree with the test proposed； and it will be said with truth that the servant has as much the intent to exclude the world at large as a borrower。 The law of servants is unquestionably at variance with that test； and there can be no doubt that those who have built their theories upon the Roman law have been led by this fact； coupled with the Roman doctrine as to bailees in general； to seek the formula of reconciliation where they have。 But； in truth； the exception with regard to servants stands on purely historical grounds。 A servant is denied possession； not from any peculiarity of intent with regard to the things in his custody； either towards his master or other people； by which he is distinguished ＇228＇ from a depositary； but simply as one of the incidents of his status。 It is familiar that the status of a servant maintains many marks of the time when he was a slave。 The liability of the master for his torts is one instance。 The present is another。 A slave's possession was his owner's possession on the practical ground of the owner's power over him； /1/ and from the fact that the slave had no standing before the law。 The notion that his personality was merged in that of his family head survived the era of emancipation。
I have shown in the first Lecture /2/ that agency arose out of the earlier relation in the Roman law； through the extension pro hac vice to a freeman of conceptions derived from that source。 The same is true； I think； of our own law； the later development of which seems to have been largely under Roman influence。 As late as Blackstone； agents appear under the general head of servants； and the first precedents cited for the peculiar law of agents were cases of master and servant。 Blackstone's language is worth quoting： 〃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。〃 /3/
＇229＇ It is very true that in modern times many of the effects of either relationmaster and servant or principal and agent may be accounted for as the result of acts done by the master himself。 If a man tells another to make a contract in his name； or commands him to commit a tort； no special conception is needed to explain why he is held； although even in such cases； where the intermediate party was a freeman； the conclusion was not reached until the law had become somewhat mature。 But； if the title Agency deserves to stand in the law at all； it must be because some peculiar consequences are attached to the fact of the relation。 If the mere power to bind a principal to an authorized contract were all； we might as well have a chapter on ink and paper as on agents。 But it is not all。 Even in the domain of contract； we find the striking doctrine that an undisclosed principal has the rights as well as the obligations of a known contractor；that he can be sued； and； more remarkable； can sue on his agent's contract。 The first precedent cited for the proposition that a promise to an agent may be laid as a promise to the principal； is a case of master and servant。 /1/
As my present object is only to show the meaning of the doctrine of identification in its bearing upon the theory of possession；
it would be out of place to consider at any length how far that doctrine must be invoked to explain the liability of principals for their agents' torts； or whether a more reasonable rule governs other cases than that applied where the actor has a tolerably defined status as a ＇230＇ servant。 I allow myself a few words； because I shall not be able to return to the subject。
If the liability of a master for the torts of his servant had hitherto been recognized by the courts as the decaying remnant of an obsolete institution； it would not be surprising to find it confined to the cases settled by ancient precedent。 But such has not been the fact。 It has been extended to new relations by analogy； /1/ It exists where the principal does not stand in the relation of paterfamilias to the actual wrong…doer。 /2/ A man may be held for another where the relation was of such a transitory nature as to exclude the conception of status； as for the negligence of another person's servant momentarily acting for the defendant； or of a neighbor helping him as a volunteer； /3/ and； so far as known； no principal has ever escaped on the ground of the dignity of his agent's employment。 /4/ The courts habitually speak as if the same rules applied to brokers and other agents； as to servants properly so called。 /5/ Indeed； it ＇231＇ has been laid down in terms； that the liability of employers is not confined to the case of servants； /1/ although the usual cases are； of course； those of menial servants； and the like； who could not pay a large verdict。
On the other hand； if the peculiar doctrines of agency are anomalous； and form； as I believe； the vanishing point of the servile status； it may well happen that common sense will refuse to carry them out to their furthest applications。 Such conflicts between tradition and the instinct of justice we may see upon the question of identifying a principal who knows the truth with an agent who makes a false representation； in order to make out a fraud； as in Cornfoot v。 Fowke； /2/ or upon that as to the liability of a principal for the frauds of his agent discussed in many English cases。 /3/ But； so long as the fiction which makes the root of a master's liability is left alive； it is as hopeless to reconcile the differences by logic as to square the circle。
In an article in the American Law Review /4/ I referred ＇232＇ to an expression of Godefroi with regard to agents； eadem est pers