AGENCY. 13 him to make justifiable an act which was without justification when it was done, and, if that is material, which was followed by no possession on the part of the alleged principal. 1 For such a purpose why should ratification be equivalent to a previous com- mand ? Why should my saying that I adopt or approve of a tres- pass in any form of words make me responsible for a past act? The act was not mine, and I cannot make it so. Neither can it be undone or in any wise affected by what I may say. 2 But if the act was done by one who affected to personate me, new considerations come in. If a man assumes the status of my servant pro hac vice, it lies between him and me whether he shall have it or not. And if that status is fixed upon him by my sub- sequent assent, it seems to bear with it the usual consequence as incident that his acts within the scope of his employment are my acts. Such juggling with words of course does not remove the sub- stantive objections to the doctrine under consideration, but it does formally reconcile it with the general framework of legal ideas. From this point of view it becomes important to notice that, however it may have been in the Roman law, from the time of the glossators and of the canon law it always has been required that the act should have, been done in the name or as agent of the per- son assuming to ratify it. " Ratum quis habere non potest quod ipsius nomine non est gestum." 3 In the language of Baron Parke in Buron v. Denman, 4 " a subsequent ratification of an act done as agent is equal to a prior authority." And all the cases from that before Gascoigne downwards have asserted the same limita- tion. 5 I think we may well doubt whether ratification would ever have been held equivalent to command in the only cases in which that fiction is of the least importance had it not been for the further circumstance that the actor had assumed the position of a servant for the time being. The grounds for the doubt become stronger 1 Buron v. Denman, 2 Exch. 167 (1848).
- Ratification had a meaning, of course, when the usual remedy for wrongs was a
blood feud, and the head of the house had a choice whether he would maintain his man or leave him to the vengeance of the other party. See the story of Howard the Halt, 1 Saga Library, p. 50, ch. 14, end. Compare " although he has not received him " in Fitz. Abr., Corone, pi. 428, cited 4 Harv. Law Rev. 355. 8 Sext. Dec. 5. 12 de Reg. Jur. (Reg. 9) It made the difference between excom- munication and a mere sin in case of an assault upon one of the clergy. Ibid. 5, II, 23. 4 2 Exch. 167. 6 Su/>ra, pp. n,i2,n See also Fuller & Trimwell'sCase, 2 Leon. 215, 216; New Eng- land Dredging Co. v. Rockport Granite Co., 149 Mass. 381, 382 ; Bract., fol. 28 b, 100$.
