Page:Harvard Law Review Volume 32.djvu/502

466 466 HARVARD LAW REVIEW law, indeed, has many anomalies about it. A company which serves as a mail carrier is not responsible to the owner of a pack- age for its loss;"° it is here an agent pi government, and so, as it seems, protected from the consequences of its acts. But a mail contractor will be liable for the negligence of the carrier whom he employs."^ Once an official engages a private servant to per- form a task, the ordinary rules of principal and agent are said to apply .*^^ Certain mystic words are here, as elsewhere, the vital point in the evasion of law. Such facts converge towards an argument first stated in a dis- tinct form by Paley. " Sovereignty," he says,^^^ "may be termed absolute, omnipotent, uncontrollable, arbitrary, despotic, and is alike so in all countries." Certainly the forms of government could in no two countries remain more substantially distinct than those of England and the United States; yet, in each, the attri- butes of sovereign power admit no differentiation. What mitiga- tion there is of a rule hard alike in intent and execution is the mitigation of the sovereign's generosity; that is to say, a mitiga- tion which stops short where the Treasury becomes concerned. For this theory of an auto-limitation of the sovereign's power has in fact nothing of value to contribute to our problems. The real need is the enforcement of responsibility, and that cannot be effected if the test is to be our success in convincing the sovereign power of its delinquencies. The fact isr that here, as elsewhere, the democratic state bears upon itself the marks of its imperial origin. The essence of American sovereignty hardly differs, under this aspect, from the attributes of sovereignty as Bodin distin- guished them three centuries ago."^ What emerges, whether in England or in the United States, is the fact that an Austinian state is incompatible with the substance of democracy. For the latter implies responsibility by its very definition; and the Austin- ian system is, at bottom, simply a method by which the faUibility of men is concealed imposingly from the pubUc view. "" Bankers' Mutual Casualty Co. v. Minneapolis, etc. Ry., 117 Fed. 434 (1902). "1 Sawyers. Corse, 17 Gratt. (Va.) 230 (1867). J" Dunlop V. Munroe, 7 Cranch (U. S.) 242 (1812). "' Moral and Political Philosophy, Bk. VI, Chap. VI. Cf. my Authority in THE Modern State, 29 /. "* De La Ri;puBLiQUE, I, 8, 9. Cf. Chauvir£, Bodin, 311 /.