freedom from unpleasant proximity to arrest declared the sacred character with which he was invested." "The most high and absolute power of the realme of England," says Sir Thomas Smith, not less learned, be it remembered, in the mysteries of law than of politics,10 "consisteth in the Parliament;" but even so noteworthy an assembly cannot bind the Crown by its statutes.11 Indeed, its position is even more privileged since the Crown, by prerogative, takes advantage of statute.12 Fictions 13 and estoppel 14 pale into insignificance before the overmastering power of its presence. Laches 15 and prescription 16 lose their meaning when the Crown has become desirous of action. It chooses its own court; 17 it may, save where, of its own grace, it has otherwise determined,18 avoid the payment of costs.19 Here, assuredly, is a power that does not need the sanction of collective terminology that men may recognize its strength.

14

Prerogative such as this would be intolerable did the Crown act as in theory it has warrant. But the English have a genius for illogical mitigation; and the history of ministerial responsibility enshrines not the least splendid contribution we have made to the theory of representative government. The seventeenth century in England makes definite a practice which, if irregular in its operation, can yet trace its pedigree back to the dismissal of Longchamp in 1190; 20 the execution of Strafford and the impeachment of Danby are only the two culminating peaks of its development. What ministerial responsibility has come to mean is that the King's ministers shall make answer for the advice they proffer and the acts which flow therefrom; and in the period in which the royal power is delegated, for practical purposes, to the Cabinet we have herein a valuable safeguard against its arbitrary abuse.

93 BL. COM. 289.

10 DE REPUBLICA ANGLORUM, ed. Alston, 48.

11 Magdalen College Case, 11 Co. Rep. 66; Sheffeild v. Ratcliffe, Hob. 334. 12 Rex v. Cruise, 21 Ch. 65 (1852).

13 Anon., Jenk. 287 (1613).

14 Coke's Case, Godb. 289.

15 Co. LITT., 57 b.

Yet ministers are not the Crown. What they urge and do does not, however politically unwise or legally erroneous, involve a stain upon the perfection of its character. It may be true that when they order action, the Crown has, in substance, been brought into play; but the responsibility for their acts remains their own since the King can do no wrong. The law knows no such thing as the government. When the King's ministers find their way into the courts it is still a personal responsibility which they bear. Statutory exceptions apart, no such action need cause a moment's qualms to the grim guardians of the royal treasury; the courts' decision does not involve a raid upon the exchequer.

In such an aspect, state-responsibility, in the sense in which continental theorists use that term, remains unknown. The state cannot be sued, because there is no state to sue. There is still no more than a Crown, which hides its imperfections beneath the cloak of an assumed infallibility. The Crown is irresponsible save where, of grace, it relaxes so stringent an attitude. Foreign writers of distinction have thus found it easy to doubt whether the protection the English constitutional system affords to its citizens is in fact as great as the formal claims of the "rule of law" would suggest.21 For while it is clear enough that the broad meaning of this principle is the subjection of every official to definite and certain rules, in the nature of things that which gives the official his meaning and is equivalent in fact to the incorporation of the people as a whole, escapes the categories of law.

Nor is this all. Careful analysis of the responsibility of a public servant suggests that the rule of law means less than may at first sight appear. There has been unconsciously evolved a doctrine of capacities which is in its substance hardly less mystical than Plowden's speculations about the kingly person. Certain protections are offered to the King's servants which go far to placing them in a position more privileged than the theory underlying the rule of law would seem to warrant. The growth, moreover, of administrative law in the special evolution characteristic of the last few years is putting the official in a position where it becomes always difficult and often impossible for the courts to examine his acts. We have nothing like the droit administratif of

21 M. LEROY in LIBRES ENTRETIENS, 4me series, 368.

the Continent of Europe; but we are nevertheless weaving its obvious implications into the general system of our law.

It is easy to understand that in the days when the functions of government were negative rather than positive in character, the consequences of its irresponsibility should hardly have pressed themselves upon the minds of men. For it is important to have constantly before us the fact that the essential problem is the responsibility of government. Our English state finds its working embodiment in the Crown; but if we choose to look beneath that noble ornament we shall see vast government offices full of human, and, therefore, fallible men. We choose to ignore them; or rather we know them only to make them pay for errors they have not committed on their own behalf. So do we offer vicarious victims for a state that hides itself beneath an obsolete prerogative.

Public money is, of course, a trust; and it is perhaps this that has involved the retention, in relation to the modern state, of a notion the antiquarian character of which is obvious the moment the real machinery of government is substituted for the clumsy fiction of the Crown. Public money is a trust; and thus it was that until the nineteenth century things less than the state, like charitable institutions, were beyond liability for the acts of their servants. But Mersey Docks Trustees v. Gibbs 22 emphasized, half a century ago, that defective administration in any enterprise not conducted by the Crown must entail its just and natural consequence. It is but obvious justice that if the public seek benefit, due care must be taken in the process not to harm the lesser interests therein encountered. It is a matter not less of political than of economic experience that the enforcement of liability for fault, often, indeed, without it,23 is the only effective means to this end. Where we refuse to take the state for what it in fact is, all we do is to make it superior to justice. Responsibility on the part of the Crown does not involve its degradation; it is nothing more than the obvious principle that in a human society acts involve consequences and consequences involve obligations. We are invested with a network of antiquarianism because the conceptions of our public law have not so far developed that they meet the new facts they encounter. We, in a word, avoid the pay22 L. R. 1 H. L. 93 (1866). 23 Cf. Laski, 26 YALE L. J. 105 f.

ment of our due debts by a shamefaced shrinking behind the kingly robe we have abstracted from the living ruler.

It is well to analyze the meaning of responsibility before we examine our remoteness from it. The modern state is, in the American phrase, nothing so much as a great public-service corporation. It undertakes a vast number of functions - education, police, poor-law, defense, insurance against ill-health and unemployment - many of which, it is worth while to note, were, in the past, provided for by private endeavor. State-acts are performed by individuals, even though the act is invested with the majesty of the Crown; for an abstract entity must work through agents and servants. To-day such acts are protected from the normal consequence of law. Often enough, indeed, the individual agent is not so protected; if he drives a mail van recklessly down the street he can be sued as a private person. But we cannot penetrate through him to the master by whom he is employed. The resources of the Postmaster-General are not at our disposal for the accidents that may be caused by the acts of his servants.24 Yet, in real and literal fact, these acts are not a whit different from those of other men. The Postmaster-General may be the depositary of special powers; but that should surely cast upon him rather a greater obligation than a freedom from responsibility for their exercise.

The theory of responsibility is, in this regard, no more than a plea that realism be substituted in the place of fiction. It urges that when the action of the state entails a special burden upon some individual or class of men, the public funds should normally compensate for the damage suffered. Everyone can see that if the state took over the railways it would be unfair to refuse the continuance of actions by those who had on some account previously commenced them; nor is it less clear that if a postal van runs over Miss Bainbridge she has, in precisely similar fashion, a claim that should not go unanswered. There must, in short, be payment for wrongful acts; and the source of those acts is unimportant. We can, indeed, see that there are reasonable grounds for certain exceptions. Complete freedom of judicial expression, without any penalization of utterance, is too clear a need to demand defense. In a less degree, a member of Parliament needs protection from the normal consequence of law, if he is at all fully to perform

24 Bainbridge v. Postmaster-General, [1906] 1 K. B. 178.

his function; though, even here, experience suggests the value of some extra-parliamentary means whereby the member can be made to weigh his words.25 Still, in general, the principle is clear. Government must pay where it wrongs. There are no arguments against it save, on the one hand, the dangerous thesis that the state-organs are above the law, and, on the other, the tendency to believe that ancient dogma must, from its mere antiquity, coincide with modern need. Dogmas, no less than species, have their natural evolution; and it may well result in serious injustice if they linger on in a condition of decay.

II

The personal liability of the Crown to-day is, broadly speaking, not merely non-existent in law, but unimportant also in political fact. No king is likely, as in Bagehot's classic illustration, to shoot his own Prime Minister through the head; though the servants of Elizabeth and her boisterous father must not seldom have stood in fear of personal violence. The real problem here concerns itself with government departments. They are the constitutional organs of the Crown, and their acts are binding upon it. But how are they to be reached if an injured person deem that he has suffered injustice? The law is clear upon this point beyond all question. The subject cannot bring action against the Crown, because the Crown can do no wrong. A government department lives beneath the widespread cloak of that infallibility, and it cannot, unless statute has otherwise provided, be sued in the courts. The law, indeed, is thick with all manner of survivals. For practical purposes, the Elder Brethren of Trinity House are under the jurisdiction of the Admiralty and the Board of Trade; but they are, in origin, a private body, and their acts thus render them liable to answer to the law.26 So, too, for certain purposes, the Secretary of State for India in Council is the successor of the East India Company, and where those purposes are concerned the courts will take cognizance of his acts; 27 but if the reader of Ma

25 This will be clear to anyone who follows the questions and speeches of Mr. Pemberton Billing through the Parliamentary Debates for 1917 and 1918.

26 Gilbert v. Trinity House, 17 Q. B. D. 795 (1886); Cairn Line v. Trinity House, [1908] 1 K. B. 528.

27 Jehanger M. Cursetji v. Secretary of State for India in Council, 1 L. R. 27 Bomb. 189 (1902).