Page:Harvard Law Review Volume 32.djvu/507

471 RESPONSIBILITY OF THE STATE IN ENGLAND 471 haps too little realize how much of historic fiction there is in the theory of the Enghsh state. Certainly there have been moments in its early development when it almost seemed as though the great maxim respondeat superior would apply to official persons; for in documents no less substantial than statutes the germ of official responsibility is to be found.^^^ But the doctrine seems to climb no higher than the sheriff or escheator, and it is in Council or ParHament that the greater men make what answer they deem fit. And, as Maitland said/^^ we should not expect to find the medieval King a responsible officer simply because he was every inch a man. When theory develops it was thus too late. The wholesome sight is beyond our vision. The state is still the King; and if an occasional judge, more deeply seeing or blunter than the rest, tells us that our cases in fact concern not the state or the Crown but the government, a phrase used oliter is not strong enough to point the obvious moral.^^^ Yet obvious it is; and if, for a moment, we move from law to its philosophy the groundwork of our difficulties will be clear enough. We are struggling to apply to a situation that is at each moment changing conceptions that have about them the special fragrance of the Counter-Reformation. It is then that the abso- lute and irresponsible state is born, and it is absolute and irre- sponsible from the basic necessity of safeguarding its rights against the Roman challenge.^^® But the attributes are convenient, es- pecially when they are in actual fact exercised by government. For then, as now, in the normal process of daily hfe what we in general fail to see is that acts of state are governmental acts which command the assent of the mass of men. The classic theory of sovereignty is unfitted to such a situation. The fundamental characteristic of political evolution is the notion of responsibility. If our King fails to suit us we behead or replace him; if our min- istry loses its hold, the result is registered in the ballot-boxes. But the categories of law have obstinately and needlessly resisted such transformation. The government has for the most part kept the realm of administration beclouded by high notions of prerogative. 133 Statute of Westminster II, 13 Edw. I, St. I, chap. 2, § 3 (1285); Articuli Super Cartas, § 18. ^^ 3 Collected Papers, 247. "' Mersey Docks v. Gibbs, L. R. i H. L. 93, iii, per Blackburn, J. "• Cf. my Authority in the Modern State, 22 /.