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LORD JUSTICE SCRUTTON: An English Shipping Company carrying
passengers and goods on the coast of China desires protection from the British Military Forces against what may be called "internal piracy." It receives for payment large numbers of Chinese passengers. Some of them coming on board under pretence of being passengers, but with the intent of robbery, during the voyage attack and overpower the ship's officers and rob the ship. Various means have been suggested for meeting this danger. For some time under Hong Kong Ordin- ances the local police supplied Indian guards for which the shipowners paid; but the shipowners came to the conclusion that such guards were inefficient. The British authorities suggested convoy by Naval Forces, but the owners of fast ships objected that their operations were handicapped by the slow pace of the convoy of inefficient ships. The local authori- ties favoured a grille system, which might enable armed of- ficers to defend themselves in a kind of fortress till assis- tance arrived; but the shipowners argued that the grille, if strictly worked, interfered with the working of the ship, and if worked with less rigid precautions, was no use. The sys- tem then tried was to put a small military guard of British soldiers in each ship; but the British Forces in the local- ity were not numerous enough to supply a guard for each ship. Some 200 British ships were concerned, and the Appellants calculated that they alone wanted 200 men. At first the British authorities provided such soldiers as they did pro- vide free, though in some cases the shipowners furnished the food. Ultimately, after the highest authorities had been consulted, by a letter of March 18, 1930, the shipowners were informed at first that regular guards would only be supplied if paid for by the shipping Companies in full. By a letter of March 26, 1930, the shipowners said they must under the circumstances accept guards from His Majesty's Forces to be paid for in full, but did so under protest. The Government required the Companies before guards were supplied to give a written assurance of agreement to the conditions as to cost and liability on the terms of a document of March 28, 1930, and payments were made accompanied by letters similar to that of June 19, 1930 (Correspondence, page 436).
The shipowners now bring, not a Petition of Right to recover the money paid, as paid under illegal duress, but an action against the Attorney-General for four declarations alleging in substance that the Crown has no authority to de- mand money for providing protection against piracy, the ship- owners being entitled to require the Crown to provide the nec- essary protection without payment. Mr. Justice Rowlatt de- cided in favour of the Crown, and the shipowners appeal.
The argument before this Court took rather a different course from that before the Judge below. As I understand, the argument below was mainly that the Crown was under a duty to supply protection and could not demand money pay- ments for performing their duty. The argument begins with the very general statement in Calvin's case (Coke's Reports, Volume 4, page 8): "For as the subject oweth to the King true and faithful ligeance and obedience, so the King is to govern and protect his subject" which in turn is founded on a passage in Glanville as to the relation between the land- lord and his tenant by homage. Henry II. would, I think, have been surprised to hear that if his tenant went to China, the King was bound to follow and protect him. The argument then relied on the authorities cited by Lord Justice Atkin in his dissentient Judgment in the Police case such as Dew