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¿VICIOUSI VICIOUS!|
January 21, 1941.
By Walt Disney
WALT DISNEY Denbard by King Features Bridicase, inc
EVACUATION TEST CASE: TEXT OF THIS MORNING'S JUDGMENT
FROM PAGE ONE
The plaintiff took out her writ two
Counsel's Arguments Mr d'Almeda's argument for the plaintiff falls conveniently under two heads
and immigrants.
Two Examples
Two reported cuses arc to
of me
particular interest in
therea
be
00
man who
business was, but these were not
Judger And Security
purport
all
of
the
summary
view when
the regulation was made, namely, to
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not hold the regulations to be bad on them in ́ald of Mr. d'Almada's sub-j 77 at page 107.): "Those who are have been so framed as to make this that ground were there sufficient nu-mission, that regulation 3 cannot responsible for the national security a good answer to the application for i thority given by a statule of the realm apply to persons domiclled in Hong- must be the sole judges of what the possession, still leaving that question
lo those by whom the regulation was
to be decided by a court of law. made. Mogna Carte has not remain on but at most only to transients national security requires."
But the regulation as framed forbids ed untouched; and like every other
the owner of the properly access, to As applied to the present case law of England it is not condemned
all legal tribunals in regard to this these words construed strictly, seem matter. Tils might, of course, legal- to that immunity from development)
to mean that if the King in Councilly be done by Act of Parliament; but or improvement which was attributed
is entrusted with the duty of making considering the present case to the laws of the Medes and both of them concern Orders of regulations for the national security. be inflicted only by direct enactment think this extreme disability can 1. So radical, so drastic an invasion Persians."
The authority for Mr
prohibiting of the liberties of the subject cannot
A competent authority
the the Judges cannot enter into the d'Almnda's be Justified unless the statute by submission
Legislature itself, and that so from entering or residing in question whether the plaintif
regulations of that the considered virtue of which action purports to be opinion of the British Government is. a defined area in Britain in which issued for that purpose have or have rave an invasion of the rights of taken authorises auch Invasion in the that any serious Invasion of
area lay his home and his business, not any tendency to promote the subjects was not intended by the clearest and most unequivocal termy.berty of the subject should be They are Rex v. Denison ex parte pubile safety and defence of the stature to be accomplished by n ob- No such regulation has been made in achieved by Act of Parliament and
Nagale
departmental order. It is to be (1010),
85 LJ.K.D. 1744, and realm.
served that this regulation not only and others England, and the considered view of not by Defence Regulations and Ronnfeldt v. Phillips
I think, however, that is stating the dep the British government as expressed
(1910) 35 T.L.R. 40.
powers granted to the King in Coun- deprives the subject of his ordinary Newfound In the issue of the Solleitors' by the Lord Chancellor when dia-Journal for 3rd August, 1940: (84 Sol.
In neither of these cases was the ell rather more widely than the right to seek justice in the Courts cussing a comparatively minor
validity of the regulation under statute justifies. I do not think that of Law, but provides that merely whit that to resort there without the per- encroachment on the
liberty of the J-457).
which action purported to be taken a regulation is valid merely because mission of the Minister of Muni- subject, is that it would be
"Replying to the debate the Lord challenged. In the earlier case it it is issued by Improper
the King In to make any such inroads except by Chancellor observed that, strictly was held that in the absence of as one of the regulations under the bad at
tlons first had and obtained, shall Council on statute. If the regulations have any speaking, there was no need for the evidence that the military authority Defence of the Realm Act, 1914. But and
10 render the secker validity they must be limited in their Government to introduce the Bill did not honestly suspect the person I doubt whether the further limita-justice liable to imprisonment and
the whole application to persons temporarily because they could do
to whom the order was directed the tion is quite correctly stated in the fine. I allow that in stress of war we resident in Hongkong, and
cannot thing by Orders In Council under court would not interfere to protect form in which it was put in argument. may rightly be obliged, as we should apply to percons domiciled here who, the
the Defence Regulations,
the but
In my judgment regulation be ready, to forgo much of Gur no Hongkong in their home, are part Government took the view that,uch person, and that it could not
enquire whether the ground upon which, upon the face of it, could not liberty, but I hold that this elemental of the "realm" the protection of which | an they were dealing with
the which the military authorities is the declared object of the Act, rights and liberties of ordinary suspected such person were ressis possibly aid in securing the public right of the subjects of the Drillah out or the defence of the realm Crown cannot be thus easily taken The courts are ever rightly jealous of cillzens, it would be a monstrous able.
be outside the legislative ter- from them." the liberty of the subject, and will thing to use that power without
In the latter case Bankes L. J. said ritory assigned by the Act to the
Original Purpose construe every statute, and, a fortiori, bringing it before the attention of no doubt the appellant felt very King in Council. Lord Atkinson in subsidiary legislation in favour of Parliament,” ~
acutely the position in which he had Rex v. Halliday suggests, without de The purpose in
de- Avary J. puts the position thus: liberty; and-
Differs Radically
been placed by the order. It was ciding, some such limitation. II. The regulations complained of. On this citation I would only say not difficult to wax eloquent about says at page. 272 "Two conditions are, prevent the disturbance of munition cannot on any reasonable construc- tion be held to be reasonably neces- that the considered opinion of Iis the hardships suffered by
who however, imposed. First, regulations workers in their dwellings, may, sary for any of the purposes for which | Majesty's Government on the ques-had been prevented for all this time can only be issued during use war without doubt, be said to be reason~ | under the Act Defence Regulations tion then before the House of Lords from entering the locality where his and, second, whatever they may be made.
appears to differ radically and Irre-Dusmes. In a time of grave] of securing the public safety and the prevent such disturbance, providing | to do must be done for the purposeable; and a regulation designed to conellably from the Authority Quoted
opinion that ordinary Government held at that time about national peril it was necessary that defence of the
that no order for ejectment should be realm. It by noHAS
nomade excopt under conditians Mr d'Almada has referred me to evacuation In Hongkong, as
the the
the competent military authorities men
means follows, however, that it on prescribed, would probably be held the well known passage in Black- affidavit of Mr N. L. Smith shows, should be clothed with wide powers the face of a regulation it enjoined or to be intra, vires the statute; but the
lo net. Honest mistakes stone's Commentaries which is found but that is a matter for the
might required something to be
to be done which objection which is made to the regu- at page 133 of Volume I of Kerr's deration of the Executive Govern- easily be made and if they were could not in any reasonable why ald lation as it stands is that it deprives edition of 1857:
ment of the Colony, and cannot have honestly made the consequences must to securing the publle safety and the the King's subjects of their right of "A natural and regular conse-any bearing on the conclusions to be borne as one of the consequences defence of the realm it would not be access to the Courts of Justice and quence of this personal liberty which D court of justice may come. of a lamentable war, and Scrution ultra vires and void. It is not neces-renders them liable to punishment if is that every Englishman may elnim It is interesting too to note that Lord L. J. characteristically said the courts sary to decide this precise point on they have the temerity to ask for a right to abide in his own country Simon had no doubt in his own mind were always anxious to protect the the present occasion."
Justice in any of the King's Courts. so long as he pleases, and not to be about the competence of a Defence liberty of the subject. They did so Limitation of PowerS In my opinion there is not to be found driven from it except by the sentence Regulation to achieve the same end both in the Interests of the subject In my Judgment some such limita- in the statute anything to authorise of the low. The Sovereign in deed, as the statute the House was then and in the Interests of the State. In tion of the powers as suggested by or justify a regulation having that by his royal prerogative, may issue debating.
time of war there must be out his writ ne exent regno, and As to what is the proper construc-modifications in the interests of the Lord Atkinson does properly arise result; and nothing less than express hibit any of his subjects from going tion to be placed on such legislative Sinte. It had been sold that a war out of the description of the delegated words in the statute taking away the
be conducted on
to make regulations right of the King's subject of access. Into foreign paris without leence enactments as the Emergence Powers coul
would to the Courts of Justice and the the for securing the public safety This may be necessary for the publle (Defence) Act, 1939 and the Defence principles of the Sermon on defence of the realm. If h
authorise or justify fi.. service and safeguard of the Com- Regulations the position is I think Mount. It might also be said that a is such
Sweeping Powers 21, war could not be carried on accord- K.B. monwealth. But no power on earth, clear. In re Boater 1015
fine the securing
Sankey J. said: It is true that the except the authority & Parlament, Scrutton J. (as he then was) said: ing to the principles of Magna Carta.it, conceivably aid in defence power to make a regulation to pre-
"It is of course quite
Executive's Wide Powers
safety of the public and competent can send any subject_of_England
not, in my realm, it is
my opinion, vent the successful prosecution of out of the land against his will: no of the King of any right either ab- to the Executive to act on suspicion are conferred during the war on His wide and sweeping character, but
Parliament-to-deprive any subject Very wide powers had been given within the legislative powers which the war being endangered is of a not even a criminal, for exile and solutely or in part. But the Inngunge in matters affecting the interests of Majesty in Council. The third limi- decline to hold that Parliament in- I transportation are punishments un- known to the Common Law. To this of any such statute should be jeal the State. The
for tatlon responsibility
may be stated as
as follows: Re-tended by these general words to give ously watched by the courts purpose, the Great Charter declares should not be extended beyond its the Judges but with the representa show that they cannot afford any any of the King's Courts against his
and giving these powers rested not with gulations which, on the face of them, to
to the Executive the right to close! that no freeman shall be banished tenst onerous meaning unless clear lives of the people in Parliament, assistance in securing the public subjects unless they unless by the judgment of his peers words are used to justify such ex- The power was given not to the safety and the defence of the realm sanction of a Minister to resort
obtained or by the law of the land. The law tension.". And in ex parte Zadig Judges but to the naval and military are not within the powers conferred thereto. I should be slow to hold that so benignly and R. V. Halliday, (1917) A.C. 200 Lord authorities and it was upon them and by the legislature on the King in Parliament ever conferred such a liberally come for the benefit of Atkinson in his speech at page 274 not upon the Judges that the Counell."
power unless it expressed it in the the subject that, though within the sald "For myself 1 must say that responsibility for the exercise of that
The
foundation
and realm the Sovereign may command never could appreciate the conten-power rested. Looking at the words d'Almada's argument on behalf of the should never hold that it was given
clearest possible language, ot the afterxlance and service of all his tion that statutes invading the liberty of the regulation it was plain that the plaintiff is Chester v. Bateson 1020 Indirectly by ambiguous regulations llegemen yet he cannot send any man of the subject should be construed authorities had very wide power, and 1 K.B. 829. The regulation in ques made in pursuance of any Act. out of the realm, even upon the after one manner and statules not he protested against the Judges' being tion in the case provided that "no 1920, three Fears after the House of tremo and peculiar facts of the case. Chester v Bateson was decided in held to be justified only by the ex- public service; excepting soldiers and invading it after another; that cerentied upon do sed, how the war person shall without the consent of sailors the nature of whose employ-tain words should in the first class should be carried on, ment necessarily implies an
the Minister of Munitions take any Halliday. That decision was bluding Governor excep-have a meaning put upon them dif-
I have
considered as carefully as proceeding the purpose tion. He cannot even constitute aferent from what the same words can all the reported cases in which ing an order ur decree for the re- on the Divisional Court in 1920 and Prison: ex parte Foy (1820) 04 J.P. man Lord Deputy or Lieutenant of would have put upon
when Defence of the Realm Regulations or Ireland against his will, nor make used in the second. I think the Defence Regulations have been covery of possession of, or him a foreign Ambassador, for this tribunnt whose duly it is to interpret challenged as ultra vires, from in the lettment of a tenant of, any dwelling otcinson in loop-itole lot by Lord British subject without trial after the might in reality be no more than an a statute of the one class or the other matter of a Petition of Right (1915) house in a 'special area' and in which Atkinson in his speech in Hallday's armistice but before the date of the ofcial termination of the war. There
E BOMBERS : should endeavour to find out what, K.B. G10 to E. H. Jones Machine munition worker is living."
of the learned The Judgments of
Common Law Rights
Avery J. said: "I wish' only to add Interesting Authority according to the well-known rules and Tools Limited v Farrell and Muir-
ATHENS, Jan 20 (Reuter)- principles of construction, the smith (Tines Newspaper 3rd August, Court have been so much referred to year,
Judges who
who constituted
In a later case tried in the same that Chester v. Bateson is an illus British fightore engaged the
Newcastle Breweries Ltd v. the way in which Court statement of the law is part II of Sir statute incans, and if the meaning be 1840), and from that examination in argument that I feel I must cite The King (1920) 1 KB. 354, it was jealously guards its power and u Italian planes that raided Plages
to apply it in that
certain principles sense.
There is a presume in favour It is objected that the regulation is | ported to deprive
from them freely. Darling
J. sald: held that a regulation which pur-thority to interfere in any case in (port of Athens) to-day, shoot- of England where at page 47 the equally susceptible of two meu
persons
whose which the Executive has exceeded early authorities are collected. In leading to
forbids any person, goods were an invasion of the in this case the honesty view of Governmen.'s avowed inten-ilberly of the subject and the other Executive is not challenged. It must Munitions, to take or cause to be right to the fair market value and analogous to the present, it would a British communique.
requisitioned by the the powers conferred on it by statule.g one bomber down into the to rend the plainting not to anot, it may well be that the latter not be assumed that the powers con- taken any proceedings to recover to a judicial decision of the amount, have to be said that the regulation part of His Majesty's Dominion but should be preferred the
upon the Executive by Statute ground authorities is interesting.
is in this
honourable exlle.”
to-1
arid
The authority relied on for that
them
some
appear.
the
powers as
of
of the
A
powere
real
a regulato
Mr
for the
the Divisional
the
I
$42.50 each
SKIN GLOVES
IN
WINE, NAVY, BLACK, CLOVER,
FAWN and BROWN"
From $8.95 pair
WHITEAWAY, LAIDLAW & Co., Ltd.
Lords had adjudicated in Rex. V. It is referred to also in Rex, DOG FIGHT
Chester V, Bateson was
case.
decided
V.
of Wormwood Scrubbs
04. a case of the internment of a
OVER ATHENS
R.A.F. DAMAGE
Edward Coke's Institutes of the Lows Should the statute be ambs. of reasonableness and honesty, bad because it 10 of the Minister of naval or military authorities of their To make the decision in that case sea and damaging another, states ·
tion
to
one
on
ferred
and
of the without the consent
a foreign country, one of these of the presumed intention of the entirety the statement of Greer
1511 be abused. I adopt in its possession of his own house, was ultra vires. Saller J, in the which is now in question forbade any
44 E 3) who was warden of the Cinque Ports, and had divers offices, annuities and lands graunted to him Mc d'Almada's second point
Sir
at 476 and 470.
J
fo
manchard to serve him in Ireland, of Ultra Virce writes at page 445 Italinuance of the present war. (2) these worded; and, further, on Court given in express torins by a regulation is one that is reasonably
by advice of his 'Councell seized nintended to be not only constitutional intention of securing the public be done which could Hudson's Bay Co. v. Madhav.
ใหม่
think
the
the
quite right in
regarding the decision
powers in
A British plane crashed on landing and burst into flames.
Roosevelt's Representative LONDON Jan. 20 (Reuter). Colonel William Donovan, President Roosevelt's personal representative; arrived at Sona to-day. He has Albania and British troops in action to Athens and seen the Bghting in In North Afrien.
Japanese Dive Bomb Train
legislature not to interfere with it (as he then was) in, Hudson's Bay cert
eject འ tenant
from it, course of his judgment said: "Sir Richard Penbrugh's case (Rol. That is a wholly different matter."
where the tonant is employed
in Chester v. Bateson it was decided person to apply to this court for a writ of habeas corpus, whereas it certain work connected Co. v. MacLay (1920) 20 T.L.R. 409 material. I found my judgment on Regulations Is Invalid.
with war that regulation 2 (a) (2) of these does nothing of the kind. The Second Point
The judg
Reasonableness At Issue Limits Assigned
the passage in Rex. v. Halliday ment in that case are, in substance, where Lord Finlay for life and in fee by the King under tion of the authorities. It is not sur- of this legislative territory
The task before me can be necessarily involves a close examina-
says that Parlia applicable here. That Regulation "What are the boundaries or limits ment may entrust great powers to deprived a class of subjects, in cer-shortly stated in the words of Atkin very the Great Scale, pro servitio im- prising that in such a matter
thus His Majesty in Council, feeling certain circumstances, of the common J. In Lipton v. Ford, 1917.2 KB, 647. penso
et impendendo, the King com-authority is not available. Mr. Street assigned to the King in Council? (1) toin that such powers will be rea- law right of access to a particular "All that I have to see is whether the
They must continue only during the in is recent work on the
sonably Doctrine
of Lord Atkinson in the recent statute.” as his Deputy there, which he ab- will be
of "It They must be exercised honestly with same cate: "it by no means follows,
capable
being a regulation for That decision was not tested on securing the public safety and the de- solutely refused, whereupon the King will be presumed a statute is the
that
that if on the face of appeal but it was severely criticised fence of the realm. If It Is I do not safety and defence of the realm (eco
enjoined or required by Greer J. In his Judgment in think the Court is
ls entitled to question things grounted to him pro servitio reasonable. Statutes must be Lord Wreabury in Rex v. Halliday something to
"I the discretion of the Executive to impendendo
(In respect of that interpreted so as not to lead to 1917 A.C. 260). It is argued that not, in any reasonable way aid in think the plaintiff's Counsel was whom Parliament han entrusted lauso) but he was not upon that absurdity. An Ordinance providing there milation, must be reason-defence of the realm it would not be in the Newenstle Breweries Case as
is n third limitation, namely securing the pubile safety and
in such wide terms. convicted outside persons
that ∙∙resolution committed to prison as the Colony could not mean enfety and the defence of the rein the present occasion, but 1 desire to lof co-ordinate jurisdiction and is as regard to the term of the niidavit of day morning blew, up a freight.
To that que that record it. appeareth; and the
could be banished if they ably cap
capable of securing the public ultra vires and vold. It is not neces-strongly in their favour. It is, how of the Regulations their plain and question, giving the words reason was because his refusall was
sary to decide this precise point on ever, a recent decision of a Judge ordinary meaning, and having due lawful and if the refusall was low- and convicted when temporarily out- decisions of Judges of this Division hold myself free to deal with it when I understand, under appeal. If and Mr N. L. Smith, there can In my train west of Kwangsin in the
that persons domiciled in
in the Colony, There Is considerable authority full to serve in Ireland, parcell of the side venter v. R. 1907 T. 8, 010). may be such a limitation on the... · King's Dominions, a fortiori, & re-
be Banished from their and the Court of
that there it ariseng
so far as it involves the proposition judgment be only one answer. The fusall is lawful to
any and a penalty prescribed for entering powers of
Securing Public Safety that the King in Council has In Council. Lord
not pe King in foreign country."
north-west of Kinngsi province, Defence (Entry Restrictions) Reguld power to issue. regulations Here I think It does at last arise; will enable the country to acquire ultra vires and this action therefore Made The Answer
which tions, 1940, are in my opinion not it was announced here, not be Wrenbury, however, appears to think and I ask myself whether It is the Colony without a a pass cannot be meant to apply to an inhabitant of that provided the honesty of the necessary, or even a reasonable, way is necessary stores at less than cukr falls. There must be judgment for train, blowing up several cars as wall The Japanese dive-bombed on tho The answer to this contention is the Colony who received a trakicing authority to which the legislative to aid in securing the public safety rent market prices, I regret that the given succinctly in the Judgment of licence to find a home elsewhere but power is delegated is not challenged and, the defence of the realm to win And it impossible to agree with the defendants, and the Inlerlin in as destroying railway tracks and Darling J, as he then was, in Chester is
is obliged to
to return, v. Zibi
granted by me 1028
and the
is intended to be power to a Minister to forbid any regulation Bateson (1920) 1 K.B. 829 at 832. ED.L. 240)."
13th warehouses near the town ton made for the purposes of the Act, person to institute any proceedings
December and extended on 8th **Mr. Langdon has contended that this "Interesting and opposite as these there is no other limit on the power to recover possession of a house se Chester v. Bateson is elted with is discharged.
Peculiar Facts.
January until the trial of the action 328, I desire to say that in view of regulation violates Magna Carta, casos at first sight seem to be I am to fasuo regulations under the Act.
the great pubile. Importance of theso where the King declares: "To no one unable in the absence of reports of
long as a war werker is living in it. approval in Fowle v. Menseil 1921 In view of the conclusion to which proceedings, their importance both to will we sell, to no one will we refuse the cases and the text of the statutes passage from Lord Farker's Judge whether the occupant is a workman from the Judgments in that case thes for costs, but, following McCardlo J, that the Crown ought not to enforce This view seems to agree with the The main question to be decided is 90 L.J.KB, 108,... but it is clear I have come I must make an order the subject and to the State, I think or delay right or justice." I could there under consideration, to invoke mont in The Zamora (1918) § A.C. 40 employed, and the regulation might the decision In Chester's case was in Shuller v, Rolfe, (1920) 30 TLR the costs,
serve in
homes
decision."
Junction
on
In Kiangai Province TOKYO, Jan. 21 (Reuter).- Japanese naval aircraft yester