Page:Harvard Law Review Volume 32.djvu/487

451 RESPONSIBILITY OF THE STATE IN ENGLAND 451 the Continent of Europe; but we are nevertheless weaving its ob- vious 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 re- sponsibihty 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. Gihhs "^ emphasized, half a century ago, that defective administration in any enterprise not conducted by the Crown must entail its just and natural conse- quence. It is but obvious justice that if the public seek benefit, due care must be taken in the process not to harm the lesser in- terests 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,^^ 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 con- ceptions of our public law have not so far developed that they meet the new facts they encounter. We, in a word, avoid the pay- 22 L. R. I H. L. 93 (1866).
 * • Cj. Laski, 26 Yale L. J. 105/.