Page:Harvard Law Review Volume 32.djvu/486

450 450 HARVARD LAW REVIEW Yet ministers are not the Crown. What they urge and do does not, however poHtically 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 responsibiHty 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 responsibiUty 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 citi- zens is in fact as great as the formal claims of the "rule of law" would suggest.^^ For while it is clear enough that the broad mean- ing 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 protec- tions 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 be- comes always difficult and often impossible for the courts to ex- amine his acts. We have nothing Hke the droit administratif of ^ M. Leroy in Libres Entretiens, 4me series, 368.