Page:Harvard Law Review Volume 32.djvu/496

460 ordinary citizen who wreaks his vengeance upon an unconscious offender is to reach those superiors whom the law does not permit him to touch. No protection is offered against the negligence or stupidity of an official so long as he keeps within the strict letter of his statute. His order may be wanton or arbitrary, but it is law. The burden of its error will fall upon the humble official who acts rather than upon the man in office who issues a valid order. The system may, as Mr. Lowell has aptly said, make liberty depend upon law, but it is a liberty which denies regard to that equality fundamental to its operation.

It intensifies, moreover, the tendency of the state to escape the categories of law. For, by emphasizing a remedy that is in no real sense substantial, it conceals the real defects involved in the system. It is true, of course, that the number of officials to whom the system applies is smaller than on the Continent; for the English state does not throw the cloak of its sovereignty about its local constituents. But the number of officials is growing; and the real problem is simply the maxim of whether a principal should be responsible for the acts of his agent. In private law, that is obvious enough; yet the state, by a subterfuge, escapes its operation. The protection of individual rights is not maintained except at the expense of other individuals; where the real point at issue is to maintain them at the expense of the illegally assumed rights of the state. For, theory apart, the Crown has not less acted when a colonel mistakenly orders his men to fire upon a mob than when the King by his signature turns a bill into an Act of Parliament.

The lack, again, of any control o er acts that are technically legal is thrown into clearer relief by the recent development of administrative law. Indeed, it may be here suggested that what that development essentially reveals is the limitation of the rule of law where the rule operates in the presence of an irresponsible state. If, under the Second Empire, the Napoleonic police arbitrarily suppress a newspaper, or destroy the proof-sheets of a work by the Due d'Aumale, it is not difficult to perceive that the invasion of individual liberty, where no cause save the will