Page:Harvard Law Review Volume 32.djvu/499

463 RESPONSIBILITY OF THE STATE IN ENGLAND 463 be the means judicially at hand for controlling the exercise of such powers. The legislative control that misuse will eventually imply is so slow in coming that it arrives almost always too late. And the cabinet system, with its collective responsibility, virtually casts its enveloping network of protection about the offender. A member of Parliament may resent the stupid imprisonment of a distinguished philosopher; but his resentment will rarely take the form of turning out the government as a protest. ^^ In such a situation, it is obvious that we must have safeguards. It is not adequate to give a half-protection in the form of the rule of law, and then to destroy the utility of its application. What, in fact, is impHed in a state which evades responsibility is, sooner or later, the irresponsibiHty of officials immediately the business of the state is complex enough to make judicial control a source of administrative irritation. Administrative law, in such an aspect, imphes the absence of law; for the discretion of offi- cials sitting, as in the Arlidge case, in secret, cannot be called law. What is needed is rather the frank admission that special administrative courts, as on the Continent, are needed, or the re- quirement of a procedure in which the rights of the private citizen , have their due protection.^^ What, in any case, is clear is the fact that the official will not, in any other way, be substantially subject to the rule of law. In the vital case the avenue of escape is sufficiently broad to make legal attack of little use. It is hardly helpful to be able to bring a policeman into court if the real of- fender is the Home Secretary. It is utterly useless even to make protestation if the government is, by virtue of its growing busi- ness, to take its acts from the public view. Growing functions ouglt rather to mean growing responsibility than less; and if that should involve a new system of rights it makes thought about its content only the greater need. The ordinary citizen of to-day is so much the mere subject of administration that we cannot afford to stifle the least opportunity of his active exertions. The very scale, in fact, of the great society is giving new substance to Aris- totle's definition of citizenship. '1 On the private member's protest, cf. Low, Governance of England, 5 ed., Chap. IV. ^ As in the United States. New York v. Public Service Commission, 38 Sup, Ct. Rep. 122 (1917).