opment. The Council of State was willing to insist upon damages for an unduly delayed appointment of a retired soldier to the civil service; it held the state responsible for the faulty construction of a canal.122 Most remarkable of all was perhaps the Pluchard case in which a civilian obtained damages for a fall occasioned by an involuntary collision with a policeman in pursuit of a thief.123 Nor has the evolution stopped there. It has become possible to overturn governmental ordinances the analogue of the English provisional order; or, at least, to obtain special compensation where hardship in the application of the ordinance can be proved.124 What practically has been established is governmental responsibility where the administrative act is in genuine relation to the official's duty. It is only where, as in the Morizot case,125 the official goes clearly outside his functions that the state repudiates liability.

No one will claim for this French evolution that it has been the result of a conscious effort to overthrow the traditional theory of sovereignty; on the contrary, its slow and hesitating development suggests the difficulties that have been encountered.126 But no French court will say again, as in the Blanco case,127 that problems of state are to be ruled by special considerations alien to the categories of private law. The real advantage, indeed, of the system is its refusal to recognize, within, at least, the existing limits of this evolution, any special privilege to the state. It judges the acts of authority by the recognized rules of ordinary justice. It asks, as it is surely right to ask, the same standard of conduct from a public official as would be expected from a private citizen. The method may have its disadvantages. There is undoubtedly a real benefit in the Anglo-American method of bringing the consequences of each act rigidly to bear upon the official responsible for it. Yet, as has been shown, this theory is far different from the application of the rule in practice; it does

122 Cf. DUGUIT, op. cit., 261.

123 RECUEIL (1910), 1029.

124 SIREY, 1908, III, 1, and see the account of the Turpin case in DUGUIT, op. cit., 266, for the application of responsibility to ministerial negligence of a special kind. 125 SIREY, 1908, III, 83.

126 The Ambrosini case, for example, SIREY, 1912, III, 161, suggests a revulsion of sentiment.

127 HAURIOU, PRÉCIS DE DROIT ADMINISTRATIF, 8 ed., 503, note 1.

not affect those upon whom the cloak of sovereignty is thrown; and it offers no prospect of any full relief to the person who has been prejudiced. These evils, at least, the French method avoids. It conceives of the state as ultimately no more than the greatest of public utilities, and it insists that, like a public utility in private hands, it shall act at its peril. In an age where government service has been so vastly extended, the merit of that concept is unquestionable.

It may, of course, be argued that such an attitude is only possible in the special environment of French administrative law. That system is, as Professor Dicey has taught us in his classical analysis,128 essentially a system of executive justice, basically incompatible with the ideals of Anglo-American law. Yet there are many answers possible to that attitude. French administrative law may be in the hands of executive officials; but no one who has watched its administration can urge a bias towards the administration on the part of the Council of State.129 Nor, if the fear remain, need we insist upon the rigid outlines of the French inheritance. The Prussian system of administrative law is administered by special courts, and it has won high praise from distinguished authority.130 If it be true that the pressure of executive business makes continuous recourse to the ordinary courts impossible, the establishment of such tribunals may be the necessary and concomitant safeguard of private liberty; and Mr. Barker has pointed out that in the English umpires and referees we have the foundation upon which an adequate system can be erected.131 Certain at least it is that in no other way than some such development can we prevent the annihilation of that sturdy legalism which was the real condition of Anglo-Saxon freedom.

VI

"It is a wholesome sight," said Maitland in a famous sentence,1 "to see 'the Crown' sued and answering for its torts." We per

128 LAW OF THE CONSTITUTION, 8 ed., 324-401.

129 Cf. E. M. Parker, 19 HARV. L. Rev. 335. Mr. Parker gives good examples of this tendency; but I do not think he has altogether realized the substantial character of Professor Dicey's strictures.

130 Cf. E. Barker, 2 POLITICAL QUART. 117.

131 Ibid., 135 f.

haps too little realize how much of historic fiction there is in the theory of the English state. Certainly there have been moments in its early development when it almost seemed as though the great maxim respondeat superior would apply to official persons; for in documents no less substantial than statutes the germ of official responsibility is to be found.133 But the doctrine seems to climb no higher than the sheriff or escheator, and it is in Council or Parliament that the greater men make what answer they deem fit. And, as Maitland said,134 we should not expect to find the medieval King a responsible officer simply because he was every inch a man. When theory develops it was thus too late. The wholesome sight is beyond our vision. The state is still the King; and if an occasional judge, more deeply seeing or blunter than the rest, tells us that our cases in fact concern not the state or the Crown but the government, a phrase used obiter is not strong enough to point the obvious moral.135

Yet obvious it is; and if, for a moment, we move from law to its philosophy the groundwork of our difficulties will be clear enough. We are struggling to apply to a situation that is at each moment changing conceptions that have about them the special fragrance of the Counter-Reformation. It is then that the absolute and irresponsible state is born, and it is absolute and irresponsible from the basic necessity of safeguarding its rights against the Roman challenge.136 But the attributes are convenient, especially when they are in actual fact exercised by government. For then, as now, in the normal process of daily life what we in general fail to see is that acts of state are governmental acts which command the assent of the mass of men. The classic theory of sovereignty is unfitted to such a situation. The fundamental characteristic of political evolution is the notion of responsibility. If our King fails to suit us we behead or replace him; if our ministry loses its hold, the result is registered in the ballot-boxes. But the categories of law have obstinately and needlessly resisted such. transformation. The government has for the most part kept the realm of administration beclouded by high notions of prerogative. 133 STATUTE OF Westminster II, 13 Edw. I, St. I, chap. 2, § 3 (1285); ARTICULI SUPER CARTAS, § 18.

134 3 COLLECTED PAPERS, 247.

135 Mersey Docks v. Gibbs, L. R. 1 H. L. 93, 111, per Blackburn, J. 136 Cf. my AUTHORITY IN THE MODERN STATE, 22 ƒ.

What is here argued is the simple thesis that this is legally unnecessary and morally inadequate. It is legally unnecessary because, in fact, no sovereignty, however conceived, is weakened by living the life of the law. It is morally inadequate because it exalts authority over justice.

It would not persist but for the use of antiquarian terminology. The Crown is a noble hieroglyphic; and it is not in the Law Courts that effort will be made to penetrate the meaning of its patent symbolism. Crown in fact means government, and government means those innumerable officials who collect our taxes and grant us patents and inspect our drains. They are human beings with the money-bags of the state behind them. They are fallible beings because they are human, and if they do wrong it is in truth no other derogation than the admission of their human fallibility to force responsibility upon the treasury of their principal. To avoid that issue results not merely in injustice. It makes of authority a category apart from the life that same authority insists the state itself must live. By its sanctification of authority it pays false tribute to an outworn philosophy. "Whatever the reasons for establishing government," said James Mill,137 "the very same are reasons for establishing securities." It is this absence of safeguards that makes inadequate the legal theory our courts to-day apply. Nor has it even the merit of consistency; for the needs of administration have necessitated governmental division into parts that may or may not be sovereign or irresponsible without regard to logic. The cause of this moral anachronism may be imbedded in history; but we must not make the fatal error of confounding antiquity with experience. We live in a new world, and a new theory of the state is necessary to its adequate operation. The head and center of practical, as of speculative effort, must be the translation of the facts of life into the theories of law. The effort to this end is slowly coming; but we have not yet taken to heart the burden of its teaching. The ghost of old Rome, as in Hobbe's masterpiece of phrase, still sits in triumph upon ruins we might fashion anew into an empire.

HARVARD UNIVERSITY.

Harold J. Laski.

137 Essays reprinted from the Encyclopedia Britannica, 5.

MARRIAGE BY PROXY AND THE CONFLICT

THE

OF LAWS

I

HE question whether a marriage may be celebrated by proxy has been of very little practical importance in modern times. So far as England and America are concerned no mention is made of marriage by proxy in the books of the nineteenth and twentieth centuries. The only discussion of the subject in the English language that has come to the notice of the writer is found in Swinburne's "Law of Espousals" which was first published in the latter part of the seventeenth century. The continental writers also, who are more inclined to discuss problems of a purely theoretical nature have paid little attention to the subject in recent times.2 The legislation of the present war, however, has given to the subject renewed importance, for in three of the continental countries Belgium, France, and Italy — marriage by proxy has been expressly sanctioned by law. The presence of so many American soldiers abroad naturally raises the question whether they may contract a marriage by proxy either by virtue of the American law or by virtue of the law of the country in which they may happen to be for the time being. Before an answer can be given to these questions the subject of marriage by proxy must be considered both from the standpoint of the internal law of the principal countries concerned and from the viewpoint of the American rules relating to the conflict of laws.

That marriage by proxy was allowed in the late Roman law and in the Canon Law is an established fact. Pomponius says: 3

"Mulierem absenti per litteras eius vel per nuntium posse nubere placet, si in domum eius deduceretur: eam vero quae abesset ex litteris vel nuntio 1 The first edition appeared in 1686, the second in 1711.

2 2 V. SCHERER, HANDBUCH DES KIRCHENRECHTS (page 192) gives the following bibliography: ARIENS, De Nuptiis, QUAE PER PROCURATOREM CONTRAHUNTUR, Traj. 1841; Kutschker, E. R. 4, 321-46; LUDEWIG, DE MATRIMONIO PRINCIPIS PER PROCURATORES, 1736; MÜLLER, DE MATRIMONIO ABSENTIUM, 1740; SANCHEZ, DE SANCTO MATRIMONII SACRAMENTO DISPUTATIONUM TOMI TRES, LII, Disp. 11; SCHÖPFER, DE MATRIMONIO PER SUBSTITUTUM CONTRACTO, 1709.

& DIGEST, XXIII, 2, 5.