of the government. Nor is there liability for a tort done in the exercise of a discretion conferred by law, so long as there is an absence of malice or improper motive.72 The courts are unwilling, and with obvious reason, to substitute their own view of policy for that of the recognized agents of administration. So, too, protection must be afforded to the police or the proper execution of a warrant; 73 it would be intolerable if a mere defect of technical procedure brought with it liability to an unconscious agent who was also the humblest minister of the law.

Far more questionable is the refusal to enforce liability against an officer for the torts of his subordinate. Problems of public policy apart, the negligence of a postman ought not less to affect the Postmaster-General 74 than the stupidity of a teacher may affect her employers.75 If there is to be equality before the law in any fundamental sense, there must be equality in the persons affected by its application; and the irresponsibility of a government official in this aspect is, at bottom, excused only by introducing exactly that notion of state which it is the purpose of the rule of law to avoid. Nor, save on similar grounds, can the Public Authorities Protection Act be defended; 76 for what, essentially, it does is to put certain officials on a different footing from other men. Both these categories of protection raise here the general question that is involved. The obvious aim of the system is to prevent the individual official from violating the law. It does not, as on the Continent, look to the sufferer's loss. It simply insists that if an official has made a legal mistake he must pay for it. But it is, to say the least, far from clear whether the rule results in justice. To throw upon a humble man the burden of a mistake he commits to the profit of another is surely hard measure. There will, for the most part, be no adequate opportunity for the complainant to have adequate remedy. Broadly speaking, it must be enough for him that he has vindicated a principle otherwise left empty. Nor does the protection come, damages apart, where it is most needed. For the main business of the

ordinary citizen who wreaks his vengeance upon an unconscious offender is to reach those superiors whom the law does not permit him to touch. No protection is offered against the negligence or stupidity of an official so long as he keeps within the strict letter of his statute. His order may be wanton or arbitrary, but it is law. The burden of its error will fall upon the humble official who acts rather than upon the man in office who issues a valid order. The system may, as Mr. Lowell has aptly said," make liberty depend upon law, but it is a liberty which denies regard to that equality fundamental to its operation.

It intensifies, moreover, the tendency of the state to escape the categories of law. For, by emphasizing a remedy that is in no real sense substantial, it conceals the real defects involved in the system. It is true, of course, that the number of officials to whom the system applies is smaller than on the Continent; for the English state does not throw the cloak of its sovereignty about its local constituents. But the number of officials is growing; 78 and the real problem is simply the maxim of whether a principal should be responsible for the acts of his agent. In private law, that is obvious enough; yet the state, by a subterfuge, escapes its operation. The protection of individual rights is not maintained except at the expense of other individuals; where the real point at issue is to maintain them at the expense of the illegally assumed rights of the state. For, theory apart, the Crown has not less acted when a colonel mistakenly orders his men to fire upon a mob than when the King by his signature turns a bill into an Act of Parliament.

The lack, again, of any control over acts that are technically legal is thrown into clearer relief by the recent development of administrative law. Indeed, it may be here suggested that what that development essentially reveals is the limitation of the rule of law where the rule operates in the presence of an irresponsible state. If, under the Second Empire, the Napoleonic police arbitrarily suppress a newspaper,79 or destroy the proof-sheets of a work by the Duc d'Aumale,80 it is not difficult to perceive that the invasion of individual liberty, where no cause save the will

77 2 LOWELL, GOVERNMENT OF ENGLAND, 503.
78 Cf. WALLAS, THE GREAT SOCIETY, 7.

79 DALLOZ, 1856, III, 57.

80 Ibid., 1867, III, 49.

of government is shown, is, in fact, most serious. A state, in brief, the officials of which can act without the proof of reasonableness inherent in the methods of their policy, has gone far to destroy the notion which lies at the basis of law.

This recent development has, indeed, a history that goes back to the tendency of the official to show deep dissatisfaction with the slow-moving methods of the law. The technicalities of the Merchant Shipping Act, for instance, actually operate, so we are told, to make its provisions for detaining unseaworthy ships substantially null and void. Effort has in recent years been made to free the administrative process from the hampering influence of the rule of law. Where, a generation ago, Parliament laid down with strict minuteness the conditions of taxation, to-day the Board of Customs and Excise has practically legislative powers.82 "Wise men," said Sir Henry Taylor in a remarkable sentence,83 "have always perceived that the execution of political measures is in reality the essence of them"; and it is this which makes so urgent the rigorous regard of executive practice. In the stress of conflict, perhaps, cases like R. v. Halliday 84 may be pardoned; though it is well even there to consider whether the end the means is to serve may not be lost sight of in the means a narrow expediency seems to dictate.85 But a far wider problem is set in the Arlidge case. 86 For here, in fact, not only is the court excluded from the consideration of an administrative decision, but the tests of judicial procedure which have been proved by experience are excluded without means at hand to force their entrance. What, broadly, the Arlidge case means is that a handful of officials will, without hindrance from the courts, decide in their own fashion what method of application an Act of Parliament is to have. And where the state that is acting through their agency is an irresponsible state, we have in fact a return to those primitive methods of justice traditionally associated with the rough efficiency of the Tudor age.87

81 DICEY, LAW OF THE CONSTITUTION, 8 ed., 393.

82 Fourth Report of the Royal Commission on the Civil Service (1914), Cd. 7338, 28. 83 THE STATESMAN, 89.

87 Cf. Pound, Address to the New Hampshire Bar Association, June 30, 1917.

This is not to say that administrative law represents a mistaken evolution. The most striking change in the political organization of the last half century is the rapidity with which, by the sheer pressure of events, the state has been driven to assume a positive character. We talk less and less in the terms of nineteenth-century individualism. The absence of governmental restraint has ceased to seem the ultimate ideal. There is everywhere almost anxiety for the extension of governmental functions. It was inevitable that such an evolution should involve a change in the judicial process. Where, for example, great problems like those involved in government insurance are concerned, there is a great convenience in leaving their interpretation to the officials. who administer the Act. They have gained in its application an expert character to which no purely judicial body can pretend; and their opinion has a weight which no community can afford to neglect. The business of the state, in fact, has here become so much like private business that, as Professor Dicey has emphasized,88 its officials need "that freedom of action necessarily possessed by every private person in the management of his own personal concerns." So much is tolerably clear. But history suggests that the relation of such executive justice to the slow infiltration of a bureaucratic regime is at each stage more perilously close; and the development of administrative law needs to be closely scrutinized in the interests of public liberty. If a government department may make regulations of any kind without any judicial tests of fairness or reasonableness being involved, it is clear that a fundamental safeguard upon English liberties has disappeared. If administrative action can escape the review of the courts, there is no reality in official responsibility; and cases like Entick v. Carrington 89 become, in such a contest, of merely antiquarian interest. If the Secretary of State, under wide powers, issues a regulation prohibiting the publication of any book or pamphlet he does not like without previous submission to a censor, who may suppress it without assignment of cause, the merest and irresponsible caprice of a junior clerk may actually be the occasion for the suppression of vital knowledge; 90 nor will there

90 Defence of the Realm Act, Order No. 51. Cf. The London Nation, § 8, 1917.

be the means judicially at hand for controlling the exercise of such powers. The legislative control that misuse will eventually imply is so slow in coming that it arrives almost always too late. And the cabinet system, with its collective responsibility, virtually casts its enveloping network of protection about the offender. A member of Parliament may resent the stupid imprisonment of a distinguished philosopher; but his resentment will rarely take the form of turning out the government as a protest.91

In such a situation, it is obvious that we must have safeguards. It is not adequate to give a half-protection in the form of the rule of law, and then to destroy the utility of its application. What, in fact, is implied in a state which evades responsibility is, sooner or later, the irresponsibility of officials immediately the business of the state is complex enough to make judicial control a source of administrative irritation. Administrative law, in such an aspect, implies the absence of law; for the discretion of officials sitting, as in the Arlidge case, in secret, cannot be called law. What is needed is rather the frank admission that special administrative courts, as on the Continent, are needed, or the requirement of a procedure in which the rights of the private citizen have their due protection.92 What, in any case, is clear is the fact that the official will not, in any other way, be substantially subject to the rule of law. In the vital case the avenue of escape is sufficiently broad to make legal attack of little use. It is hardly helpful to be able to bring a policeman into court if the real offender is the Home Secretary. It is utterly useless even to make protestation if the government is, by virtue of its growing business, to take its acts from the public view. Growing functions ought rather to mean growing responsibility than less; and if that should involve a new system of rights it makes thought about its content only the greater need. The ordinary citizen of to-day is so much the mere subject of administration that we cannot afford to stifle the least opportunity of his active exertions. The very scale, in fact, of the great society is giving new substance to Aristotle's definition of citizenship.

91 On the private member's protest, cf. Low, GOVERNANCE OF ENGLAND, 5 ed., Chap. IV.

92 As in the United States. New York v. Public Service Commission, 38 Sup. Ct. Rep. 122 (1917).