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"It is a duty of what is called imperfect obligation. Supposing that the king were to neglect that duty, I know of no legal means that is, no process of law common law or statuts law by which the Crown could be forced to perform that duty, but there is that duty of imperfect obligation on the part of the Royal authority" (per Lord Justice Brett in Attorney-General v. Tomline, 14. Chancery Division, page 661.
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Whatever may be the extent of the duty which the King owes as liege lord or as defender of the realm - and I do not propose to attempt to define the limits of that duty- I am clearly of opinion that it does not extend to the provision of military guards for the Plaintiff Com- pany's ships in the circumstances of the present case. If the aid of the armed Forces of the Crown were available and were required in order to defend a British ship which was actually being attacked by pirates at the time, en- tirely different considerations would arise. That, how- ever, is not the case here; the Plaintiff Company realis- ing that if it continues the Chinese passenger traffic such continuance will almost certainly lead to further in- ternal piracy but being unwilling to discontinue that traffic has asked the Crown to provide military guards in order to assist its officers and crews in controlling the persons whom it intends to invite to become passengers in its ships and in preventing those passengers after they have been taken on board from committing piracy: in other words, has asked the Crown by means of its armed Forces to assist it to continue its Chinese passenger traffic with more safety and thus enable it to earn the resulting profit. In the circumstances I entirely agree with the view expressed by the Crown to the shipowners that the provision of preventative measures against in- ternal piracy is essentially a matter for the owners and forms no part of the duty of the crown. It would, I think, be stretching the duty of the Crown beyond all reasonable limits to hold that it extended to providing military guards on ships belonging to private traders en- gaged in the Chinese passenger traffic in view of the fact that such traders are free to continue or discontinue this traffic as they please, and that the Crown has no right to control or interfere with the manner in which that business is conducted. I know of no authority which lends countenance to the suggestion that it is the duty of the King either as liege lord or as defender of the realm to provide military guards for the protection of a ship which her owner voluntarily takes into foreign ports with the intention of embarking passengers some of whom to his knowledge may turn out to be pirates in disguise.
In the result I have come to the conclusion that there was no common law duty on the Crown to provide the military guards for the Plaintiff Company's ships, and consequently no question as to the Crown having demanded payment for the performance of a duty which it owed by the common law arises in this case. This conclusion, however, by no means disposes of the case. There remains the important and difficult question whether assuming the Crown to be under no common law duty to provide the mili- tary guards but having in its discretion decided that it was a proper thing to do under the circumstances, the Crown can legally demand a money payment as a condition of rendering those services. This question has given rise to an interesting discussion on the position occupied by the Crown in relation to the Royal Forces.
The contention of the Flaintiff Company stated shortly was that all prerogative powers in relation to the Army in
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