Page:Harvard Law Review Volume 32.djvu/494

458 458 HARVARD LAW REVIEW "every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen." No one can doubt the value of this rule, for it constitutes the funda- mental safeguard against the evils of bureaucracy. Nor have its results been of little value. A colonial governor ®* and a secretary of state ^^ have been taught its salutary lesson; and it is, as a learned commentator has pointed out,®^ that which makes for the distinction between the pohcemen of London and the policemen of Berlin. It has the merit of enforcing a far more strict adher- ence to law than is possible within the limits of any other system. It restrains those notions of state prerogative which have an un- comfortable habit of making their appearance in the courts of the Continent. Nothing, at least on the surface of things, is more liable to make an official careful than the rule that he cannot make his superior liable for the act of which he has been guilty.^' Yet there are obvious difficulties about this system which must make us cautious about its too enthusiastic acceptance. Not only do immunities exist, but there is a broad field of discretion within which the courts do not venture interference. The plea of act of state is, of course, a final bar against all action; though when it operates so as to prevent government from paying to certain persons money received under treaty for that specific pur- pose,^^ it is not clear that the result is all gain. It is justifiable enough that an official should not be made liable for a contract he has made on behalf of the Crown; ®^ nor, on a similar ground, for money erroneously paid to him as its agent. ^" Here the real onus of our grievance Hes clearly against that principal whose a priori infalHbility is in law assumed. The problem of irresponsi- bility for advice given to the Crown is more difficult; ^^ for the actual organization of pohtical life makes it well-nigh impossible to separate the particular facts involved from the general policy " Most3m V. Fabrigas, Cowp. i6i (1774); Musgrave v. Pulido, 5 A. C. 102 (1879). " Entick i;. Carrington, 19 St. Tr. 1030 (1765). " I Hatschek, Englische Staatsrecht, 93. " Raleigh v. Goschen, i Ch. 73 (1898). '° Whitbreadc. Brooksbank, i Cowp. 66 (1774); Sadler ». Evans, 4 Burr. 1984 (1766). " West V. West, 27 T. L. R. 476 (1911).
 * Barclay v. Russell, 3 Ves. 424, 431 (1797).
 * See Palmer v. Hutchinson, 6 A. C. 619 (1881), where the cases are reviewed.