Page:Harvard Law Review Volume 32.djvu/503

467 RESPONSIBILITY OF THE STATE IN ENGLAND 467 The Anglo-American system exists in isolation; and it is, in a sense, the only one which has remained true to the logical condi- tions of its origin. In France and Germany a regime exists which, while in no sense antithetic, may be usefully contrasted with the more logical effort here discussed."^ No text, indeed, declares in France the responsibility gf the state; such concession to the his- toric content of sovereign power is here, as elsewhere, deemed fundamental. But the courts have little by little been driven through circumstances to desert this rigidity, so that in the France of to-day the older notion of irresponsibility is no longer existent. The state, indeed, is in nowise liable for the consequence of its legislative acts; though the demand for compensation in cases where a state monopoly has been created are not without their interest. Nor must we miss the significance of ministerial protest against the easy thesis that the obligations of the state are hable to instant change by statute."^ What is perhaps more significant than the substance of the de- cisions is the manner in which this jurisprudence has been evolved. We start, as in England, with an irresponsible state. Little by little a distinction is made between the acts of the state in its sovereign capacity, where irresponsibility remains, and in its non- sovereign aspect, where habiUty is assumed. But it has been in the last decade seen that such distinction is in fact untenable and that the test of liability must be sought in different fashion. While, therefore, the sovereignty of the state finds its historic emphasis within the chamber,^^^ it is less and less insistent before the Council of State. And even within the Chamber suggestions of a notable kind have been made. It was M. Clemenceau who pro- posed statutory compensation for unlawful arrest;"^ and a vote of credit for this purpose has been made in every budget since 1910. "* The literature of the responsibility of the state in France and Germany is now enormous. The two best treatises on the former country are those of Teissier and Tirard. On Germany the best general discussion is still that of Otto Mayer, Deutsches Verwaltungsrecht, Bk. Ill, § 17. Cf. also Loening, Die Hafttjng DES Staates. "• DuGuiT, Les Transformations du Droit Public, 235-39 (a translation of this work will be shortly published). 1" Cf. my Authority in the Modern State, Chap. V. "' DuGxnT, op. cit., 252.