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.
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