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The Attorney-General by his answer claims that possession of the said premises was lawfully taken by or under the authority of the competent Military Authority for the use of His Majesty, by virtue of His Majesty's Royal Prerogative, as well as by virtue of the powers conferred by the Defence of the Realm Consolidation Act, 1914 and of the Regulations issued thereunder by His Majesty in Council,
The Attorney-General further states that His Majesty claims as against the Suppliants no right or interest in the premises beyond the right to take and use them for so long as may be necessary for securing the public safety and the Defence of the Realin during the continuance of a state of War between His Majesty and any foreign Power. The Attorney-General denies that any rent or compensation is by law payable to the Suppliants either under the Defence Act, 1812, or at all.
It is therefore necessary to consider what powers are by law vested in the Sovereign, and exercised by the Executive Government, over the lands and houses of subjects required for the defence and security of the Realm.
Those powers which the Executive exercises, without Parliamentary authority are comprised under the comprehensive term of the Prerogative. Where, however, Parliament has intervened and has provided by statute for powers previously within the prerogative, being exercised in a particular manner and subject to the limitations and provisions contained in the statute, they cannot be so exercised. Otherwise, what use would there be, in imposing limitations, if the Crown could at its pleasure disregard them, and fall back on prerogative. Indeed, it was expressly admitted by the Solicitor-General (Sir Ernest Pollock) that where a matter within the prerogative is provided for by statute, the prerogative is merged in the statute. In Ea parte Postmaster-General, 10 Chancery Division 595, Sir George Jessel, Master of the Rolls, said: "The general rule as expressed in "Bacon's Abridgment (7th edition, at page 462) is that where an Act of Par- liament is made for the public good, the advancement of religion and justice, "and to prevent injury and wrong, the King shall be bound by such Act, As instances of the exercises 'although not particularly named therein."""
of the Royal Prerogative in the past, which are dealt with in the law books, the Crown relied particularly upon the right of entering upon the land of a subject to dig trenches and make fortifications: and to the right to take salt petre for the purpose of making gunpowder. Various passages from writers of authority were cited dealing with these matters. Thus in Chitty As the constitution of the country on the Prerogative of the Crown:
las vested in the King the right to make war or peace, it has necessarily "and incidentally assigned to him on the same principles the management "of the war, together with various prerogatives which may enable His Majesty to carry it on with effect." Chitty on the Prerogatives of the Thus the King is solely Crown, Chapter IV., Section V., page 41.
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entitled to erect, fortify, and govern forts and other places of strength within his dominions. (2 Institute 30, 1 Ibid 5). In case of necessity, the King may enter on the land of his subject to make fortifications (1 Rolle Reports, page 152). In the Saltpetre Case (1607) (12 Reports, 12) it was resolved: "When enemies come against the realm to the Sea Coast it is lawful to come upon my land adjoining to the same Coast, to make tranches or bulwarks for the defence of the realm, for every subject hath benefit by it. And therefore by the common law, every man may come upon my land, for the defence of the realm, as appears by 8 Edward IV., Chapter 23, and in such place on such extremity, they may dig for gravel, for the making of bulwarks; for this is for the public, and everyone hath benefit by it; but after the danger is over, the trenches and bulwarks ought to be removed, so that the owner shall not have prejudice in his inheritance; and for the
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commonwealth, a man shall suffer damage: as for saving of a city or town, a house shall be plucked down, if the next he on fire; and the suburbs of a city in time of war for the common safety shall be plucked down; and a thing for the commonwealth every man may do without being liable to an action, as it is said in 3 Henry VIII. Fol. 15." Although it thus appears by the Saltpetre case that at common law even the public were entitled to enter upon another man's land to dig for gravel to make bulwarks, a statute to the same effect was passed in 1512-IV Henry VIII., Chapter 1 (Extracts, page 436). This provided that it should be lawful for all the King's subjects by the advice and assignment of the justices of the peace or sheriff to make all manner of bulwarks in every man's ground and to dig and delve for earth and stones for the making of the bulwarks and without any manner of payment, or any manner of action by anyone, against any of the King's subjects for any such matter or causĘ, The Act was a temporary one to endure to the next Parliament.
The power to enter to make trenches and erect bulwarks obviously has reference to preventing or repelling invasion, when enemies come against the country and when active measures are necessary at or along the coast, and particularly at or near the places threatened.
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With regard to saltpetre, this was a matter of "Purveyance,'' and was paid for. The first warrant for searching for it, in evidence in these proceedings, is 7 Henry VII. (1492); it assigned to James Hede to take material "suitable and requisite for the making of salt petre for our ordnance, wheresoever they can be found, as well within liberties as without, the fee of the Church only excepted, for our moneys in this behalf reasonably to be paid." Another warrant, in the 6 Henry VIII. (1515), granted to Hans Wolf for the like purpose (Extracts, page 400) provides for all damage being agreed and paid for. Another warrant,
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31 Elisabeth (1589)-(Extracts, page 407), requires the petre or powder- makers to make good all damage making up all places. Digged or overthrown in as good perfection and state as they or any of them did find the same." A similar warrant, of much greater length (Extracts, page 400) was issued under the Privy Seal, in 41 Elisabeth (1599). This requires the grantee, at their own proper costs and charges to make up and repair every place "hindered or defaced by their operations; and concludes by a clause which should satisfy those who contend for the greatest prerogative-" notwithstanding any statute, Act of Parliament, "Order, Proclamation, Ordinance, law, usage, custom, or any other matter whatsoever to the contrary." In the Book of Extracts there follows a warrant by King James I., and the last of the series was granted by King Charles I. on the 28th April 1629. (Extracts, page 431.) This recites that: "At this present time, we have more than ordinary occasion to provide good and sufficient saltpetre and powder to furnish our stores for the defence and safety of our realms and dominions." It then grants powers to take all material fit for making saltpetre and to make the saltpetre into gunpowder and for that purpose "to have and take workhouses for our said service, and houses and stables, outhouses and yards, of any of our subjects and therein to set up vessels and to bestow their servants, cattle, and other necessary provisions for the effecting the same our service, paying unto the owners or present possessors of such houses, barus, stables, yards, and outhouses, reason- able rents and rates for the same for the time they shall be used for our service." It will be noticed that this grant was not a private monopoly. It was made after the abolition of monopolies by the statute 21 James I., chapter 3. It was for the obtaining material for the defence of the realm, and the occupation of all lands and buildings was to be paid We were told that after the year 1665, or thereabouts, there are not
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