Page:Harvard Law Review Volume 9.djvu/547

THE NATURE OF AGENCY. 519 define It as the instructions by the principal to the agent, neglect- ing the fact that the principal may put it out of his power to have recourse to these by reason of his representations to others. If the views herein contended for are correct, it will be seen that the New York rule, while not strictly accurate in its expression, con- forms nevertheless more truly than the other to the trilateral character of the relation, and is therefore more consonant with justice. It is often said that the law of agency depends upon a fiction. Judge Holmes, in the article to which I have previously referred,^ endeavors at great length to establish this proposition. His diffi- culty is this: while he admits the " plain good sense" of holding the principal responsible for " commanded acts," by which it is clear that he means acts dependent upon direct instructions of the principal to the agent, he cannot understand a responsibility for acts not so commanded. He therefore relegates all such responsi- bility to a fiction of *' identity " between the principal and agent, for which he strives to account historically as a survival of the old doctrines as to the patna potestas, and the merging of individual identity in that of th.Q familia. So far as it works practical justice, he would retain this fiction ; but he conceives that it has been carried to excessive lengths in actual decision. His theory is open to several criticisms. In the first place, it is quite doubtful whether he has successfully established any connec- tion between the doctrines as to patria potestas and our common law. The former are natives of Rome, and it may be questioned whether they were ever domiciled in England. His argument on that point is far from convincing. In the second place, it is the veriest abdication of our reason to base a rule of law on a fiction, trusting it to work practical justice, and to stop there. His obvious duty was to ascertain a theory and standard of practical justice, and then discard the fiction. Without such an extrinsic standard what limit can he put on its operation? In the third place, and this is the fundamental criticism, he fails to recognize that the principal by his representations to others may render himself accountable to them for acts not commanded, or even for acts which, as between himself and his agent, he has forbidden. Such a liabiHty is as plain good sense as that for commanded acts, and will explain many of 1 4 Harv. L. Rev. 345, continued in 5 ibid. i. See also an article, " Why is a Master liable for the Tort of his Servant ? " by Frank W. Hackett, 7 Harv. L. Rev. 107.