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generally, the long series of enactments from the Statutes of Westminster the Second-13 Edward I., Chapter 21-to the Judicature Acts which confer a large part of the powers exercised daily by the Courts of this do not give any rights to the subject as against the Crown. The country, amendments made by the Petition of Right Act, 1860, are amendments of procedure only and coupled with a proviso in section 7 that nothing therein contained shall be construed to give to the subject any right against the Crown in any case in which he would not have been entitled to such remedy before the passing of this Act."
CC
C
In the present case the Suppliants are not proceeding under the jurisdiction the Court has to restore possession of property. They seek to recover payment of a debt upon one or other of the grounds of claim on which they rely.
The claim of the Suppliants for money due for use and occupation was, in my opinion, rightly disallowed by the learned judge at the trial. An agreement for such a payment cannot be implied where the occupation which is relied upon has been had against the will of the Claimant or where the circumstances are inconsistent with a contract for payment. (See Churchward v. Ford, 2 Hurlstone and Norman, page 146, and Stoper v. Saunders, 29 Law Journal, Exchequer, page 275.) The facts of the case, as I have already stated them, show that this ground of claim cannot prevail.
C
The claim of the Suppliants that an entry upon land in the exercise of the prerogative of the Crown, always gives a right to compensation, was not supported by reference to any authority, but was said to be warranted by the past practice of the Crown and by necessary presumption. In the case of Zamora (L.R. 1916, 2 Appeal Cases, page 100), however, Lord Parker expressed his opinion that "the municipal law of this country "does not give compensation to a subject when land or goods are requisitioned by the Crown." The same view appears in the old cases with regard to necessary entry upon land for defence. Counsel for the Suppliants cited Statutes and text looks on subjects such as Purveyance, the requisition of ships, and the requisition of vehicles, and rely much upon a variety of documents produced from the Record Office which show payments by the Crown for lands acquired under statutory powers with rights of compensation or purchased or rented. No instance appears in these documents of payment upon any claim such as is made in the present case, or indeed, of the occurrence of such a claim. It is the fact that when prerogative rights existed which have been abolished by statute, they, in some cases, carried with them at the time of their abolition, certain customary or common law rights on the part of the subject to receive payment in respect of the exercise of the prerogative. The origin of every such right on the part of the subject can, I believe, he traced. The course of events in such cases is well illustrated by the history of the Royal prerogative with regard to the impressment of ships. Selden, in his famous treatise on the Maritime Rights of the Crown (Mare Clausum, Edition 1636, Chapter 20), sets forth writs issued during a period commencing with the reign of King John, which seem to be in a common form, and which direct the impressment of ships without provision for payment. The Rolls of Parliament show that in many successive reigns this compulsory service without a legal right to payment, or with such payment only as the Crown might direct, was recognised by the House of Commons as a burdensome but lawful obligation of ship-masters, and one for which some relief ought to be devised. instance, in 1317 (21 Edward III.)-Parliament Rolls, Volume 2, page 171 -the House of Commons by an address to the Crown represents that whereas shipmen are assessed to all taxes and tollages, nevertheless their ships are taken and sometimes lost without reward to them and by long con-
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tinuance of such losses, English shipping is in danger of being destroyed.” To the prayer that the King "Will be pleased to ordain a remedy' the King replied: "Le roi l'avisera." There is a like transaction in 1371, and in 17 Edward III. the King upon petition that compensation might be given to shipowners for necessary repairs and renewal of masts and rigging replied: tiel regard nad pas este fait avant les haures." A like representation was made in 2 Richard II. (Parliament Rolls III., page 16) without effect, but upon a renewed address in the following year (Parliament Rolls III., page 66a) there is the record of an ordinance by the Crown that when ships are arrested for the service of the King, they shall have their reward for each quarter of a year 38. 4d, per ton as that this Ordinance shail continue till the next Parliament. The continuance or discontinuance of payment under this provision is the subject of memorials in the same reign, and in the reigns of Henry IV. and Henry V. (Parliament' Rolls III,, pages 2237, 253, and 554; Parliament Rolls IV., page 79a), and the payment is ultimately described in Parliament Rolls as customary. Selden's statement of the case in Mare Clausum shows that in Stuart times the practice of payment had become established, and that when ships were impressed for the Royal Navy congrua merces Ultimately (as Counsel for the present Suppliants pointed out) statutes esset præestranda. were passed making impressment of ships without payment illegal. The distinction between statutes of this kind and the statutes dealing with entries by the Crown, upon land of the subject is that none of these latter statutes renders illegal an entry by the Crown under any pre-existing right. Assuming the occupation of the Suppliants premises by the Crown to be an occupation by virtue of the Royal Prerogative, I am of opinion that such an occupation does not of itself create or raise the presumption of a right in the Suppliants to have compensation assessed to them. The reason for this opinion extend to claims in respect of an occupation under the Defence of the Realm Consolidation Act, 1914, Section 1, taking the view which I take as to the effect of section 2. Payment is, I think, left at the discretion of the Crown.
C
*
There remains the claim of the Suppliants under the Defence Act, 1842. Section 2 of the Defence of the Realm Consolidation Act, 1911, empowers His Majesty in Council to provide by Regulation for "the suspension of any restrictions on the acquisition or user of land or the exercise of the power of making byelaws or any other power under the Defence Acts, 1512 to 1875, or the Military Lands Acts, 1891 to 1993." Regulation 17 (A), made in November 1914, is an exercise of the authority so provided in respect of the making of byelaws. No regulation has been made to suspend the restrictions on the acquisition or user of land under the several Acts mentioned in the section. Regulation 2, on the other hand, gave an unqualified power to the competent naval and military authorities to take possession of land and buildings for purposes of public safety or the defence of the realm during the war. Regulations have been made providing for the assessment of compensation in respect of some acts done under the powers of the Act of 1914 in derogation of the rights of the subject. So far as regards the exercise generally of the exceptional powers of the Crown during the War, the only provision which has been made is that contained in the Royal Commission. Regulation (e) was discussed before us as being possibly a reference to hearing before the Commission as the manner in which claims for compensation under these regulations are determined. I do not know whether this is its true meaning, and it is not necessary to form an opinion on the subject. No regulation made under the statute of 1911 purports to create any right to compensation in respect of the occupation of land or to provide any means of assessing compensation for land taken, in place of the means provided in
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