Page:Harvard Law Review Volume 32.djvu/504

468 Here, at least, is a clear admission that the sovereign state is a fallible thing.

But a more notable change even than this may be observed. The administration has become responsible for faults in the exercise of its functions. There has been evolved, if the phrase may be permitted, a category of public torts where the state becomes liable for the acts of its agents. And this is, in fact, no more than the admission of that realism which, in the Anglo-American system, has no opportunity for expression. For every state act is, in literal truth, the act of some official; and the vital need is simply the recognition that the acts of an agent involve the responsibility of his superior. Where the service of the state, that is to say, is badly performed in the sense that its operation prejudices the interest of a private citizen more especially than the interests of the mass of men, the exchequer should lie open for his relief. Obviously enough a responsibility stated in these terms becomes no more than equitable adjustment. If the state comes down into the market-place it must, as even American courts have observed, put off its robe of sovereignty and act like a human being.

This modern development goes back to a distinguished jurist's criticism of the Lepreux case in 1899. Lepreux was injured by the state-guard in the performance of its duties; and his plea for damages was rejected on the ground that it was an inadmissible attack on the sovereignty of the state. M. Hauriou argued that this was the coronation of injustice. He did not deny that there are cases where public policy demands irresponsibility; but he urged, in effect, that in the general business of daily administration negligence ought, as with the relations of private citizens, to have its due consequence. The result of his argument was seen in the next few years. In the Grecco case, for example, though the plaintiff was unsuccessful, the ground of his failure was not the irresponsibility of the state, but the fact that he had not proved his claim of negligence. It was thus admitted that the state was not infallible, and the way lay open to a striking