Page:Harvard Law Review Volume 32.djvu/495

459 RESPONSIBILITY OF THE STATE IN ENGLAND 459 of the government. Nor is there liability for a tort done in the exercise of a discretion conferred by law, so long as there is an absence of mahce or improper motive. ^^ The courts are unwill- ing, and with obvious reason, to substitute their own view of policy for that of the recognized agents of administration. So, too, protection must be afforded to the police or the proper ex- ecution of a warrant ;^^ it would be intolerable if a mere defect of technical procedure brought with it UabiHty to an unconscious agent who was also the humblest minister of the law. Far more questionable is the refusal to enforce UabiHty against an officer for the torts of his subordinate. Problems of public pohcy apart, the negligence of a postman ought not less to affect the Postmaster-General ^^ than the stupidity of a teacher may af- fect her employers. ^^ If there is to be equahty before the law in any fundamental sense, there must be equality in the persons af- fected by its appUcation; and the irresponsibility of a government official in this aspect is, at bottom, excused only by introducing exactly that notion of state which it is the purpose of the rule of law to avoid. Nor, save on similar grounds, can the Public Au- thorities Protection Act be defended; ^^ for what, essentially, it does is to put certain officials on a different footing from other men. Both these categories of protection raise here the general question that is involved. The obvious aim of the system is to prevent the individual official from violating the law. It does not, as on the Continent, look to the sufferer's loss. It simply in- sists that if an official has made a legal mistake he must pay for it. But it is, to say the least, far from clear whether the rule re- sults in justice. To throw upon a humble man the burden of a mistake he commits to the profit of another is surely hard meas- ure. There will, for the most part, be no adequate opportunity for the complainant to have adequate remedy. Broadly speak- ing, it must be enough for him that he has vindicated a principle otherwise left empty. Nor does the protection come, damages apart, where it is most needed. For the main business of the « Tozer v. ChUd, 7 E. & B. 377 (1857). " 24 Geo. II, c. 44 (1751). " Lane v. Cotton, i Ld. Raym. 646 (1701). " Smith V. Martin, [191 1] 2 K. B. D. 775. ^* 56 & 57 Vict. c. 61.