Page:Harvard Law Review Volume 32.djvu/488

452 452 HARVARD LAW REVIEW ment of our due debts by a shamefaced shrinking behind the kingly robe we have abstracted from the ^ving rulfer. It is well to analyze the meaning of responsibility before we ex- amine our remoteness from it. The modern state is, in the Ameri- can phrase, nothing so much as a great pubHc-service corporation^ It undertakes a vast nimiber 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 conse- quence 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 servai^ts.^^ 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 ob- ligation 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 con- tinuance 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 ex- ceptions. 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 2* Bainbridge v. Postmaster-General, [1906] i K. B. 178. i