1941-01-21 — Page 2

THE CHINA MAIL, JANUARY 21, 1941

MAGNA CARTA HAS NOT REMAINED UNTOUCHED

(Continued from Page 1)

Gf the Colonial Secretary, and the Colonial Secretory may revoke or decision of the com- vary any petent authority.

V. If any person fails to com- ply with any condition imposed under regulation 3 he shall be deemed to have contravened the provisions of that regulation and, without prejudice to any pro- ceedings which may be taken against him under regulation 81

cellor when discussing a comparn-, tributed to the laws of the Medos reports of the cases, and the text in Council. Lord Wrenbury, how- tively minor encroachment on the and Parsians." liberty of the subject, is that it would be improper to make any such inroads except by statuto,

any

The

The Authority

3

of the statutes there under con. ever, appears to think that pro- sideration, to invoke them in the vided the honesty of the Authori aid of Mr. D'Almada's 'submission ty to which the legislative power that regulation

cannot ap-is delegated is not challenged and authority

Mr. ply for

to

domiciled persons

in the regulation is intended to be. d'Almada's submission that

the Hong Kong but at most made for the purposes of the Act, considered opinion of the British only to transients and immigrants. there is no other limit on the pow- Government is that any serious

er to issue regulations under the Invasion of the liberty of the sub-

1916 Case

Act. ject should be achieved by

Two reported cases are to me of Parliament and not by Defence

in of particular interest in consider- Regulations is to be found the issue of the Solicitors' Journaling the present case as both for 3rd August, 1940: (84 Sol. J. them concern orders of a 457.) "Replying to the debate the potent authority, prohibiting

that. plaintiff from entering or residing Lord Chancellor observed no in a defined area in Britain ila

Act

of

coin- the

Zamora Case

for the national

If the regulations have validity they must be limited in their application to persons tem- porarily resident in Hong Kong, and cannot apply to persons do miciled here who, as Hong Kong is their home, are part of the "realin" the protection of which

This view seems to agree with is the declared object of the Act of the Defence Regulations, 1949. The courts are ever rightly jealous

the passage from Lorá Parker's as applied by these regulations

judgment in The Zamora (1916) 2- (b) he may, in the discretion of

of the liberty of the subject, and

A.C. 77 at page 107): "Those who the competent authority, be de- will construe every sta.ute, and, tained in police custody until an

a fortieri, subsidiary

are responsible legislation strictly speaking, there was

need for the Government to in-which area lay his home and busi- opportunity ccurs of returning in favour of liberty, and--

ness. they

They are Rex v Denison ex security must be the sole judges of what the national security re- him to his port of embarkation i Twn, the regulations complain- troduce the Bill, because

As applied to the pre- or to the country of which he is ed of cannot on any reasonable could do the whole thing by Or- parte Nagule (1916), 85 L.J.K.D.

sent case these ders in Council under the Defence 1744, and Ronnfeldt & Phillips and quires," a national or of sending him to construction be held to be reason

words construed,

Jus destination.

ably necessary for any of the Regulations, but the Government others (1918) 35 T.L.R. 46.

strictly seem to mean that if the In neither of these cases that. which under purposes for

view

was King in Council is entrusted with the took

dealing Act, Defence Regulations may be they

the the validity of the regulation un- with

the duty of making regulations for made.

der which action purported to be rights and liberties of ordinary

the national security, the Judges In the earlier

cannot enter into the question citizens, it would be a monstrous taken challenged. Mr. d'Aln ada has referred mething to use

that power without case it was held that in the ab-

whether the regulation issued los to the well known passage in bringing it before the attention of sence of evidence that the mili-

that purpose have or have not tary authority did not honestly Blackstone's commentaries which Parliament."

the any tendency to promote the pub- suspect the person to whom

lic safety and defence is found at page 123 of Volume

I calm. I of Kerr's edition of 1857:

I think, however, that is der was directed the court could not interfere to protect such per- "A natural and regular en

son, and it could not enquire whe-stating the powers granted to the I would have gone sooner had 1-sequence of this personal liberty

her the ground on which the mi- King in Council rather more wide- been well enough but I was not is that every Englishman may

iitary authorities suspected such ly than the statute justifles. At to travel until that date. My claim a right to abide in his own departure was therefore not con- | country so long as he pleuses, and | ion that Government held at that person were reasonable.

Affidavit

The plaintif in an ..Adava Aled on 13th December, 1940, the alie gations of fact in which an outradicted, says

Paragraph 3. On 2nd July last

I jest diorg Kom

health and proceeded to Manila. '

Bond Furnished

Law And Subject

the

were

On this citation I would

as

only

Hong

Froper Construction

of the

I do not think that a regulation is valid merely because it is issued by the King in Council as one of . the egulations under the De- fence of the Realm Act, 1914. But elo- I doubt whether the further limi..

must be borne as one of the con- lamentable war,

the courts were always

say that the considered opinion of His Majesty's Government on the question then before the House of Lords appears to differ radically and irreconellably from the opin-|

neeted with the recent evacuation not to be driver from it except time about evacuation in

In the latter case Bankes L.J.

of women and cinkdren.

by the sentence of the law. The Kong, as the affidavit of Mr. N. and no doubt the appellant feb In November I decided to re- sovereign in deed, by his Royal L. Smith shows, but that is a very acute y the position in which turn to the Colony without my progative, may issue out his writ matter for the consideration of the he had been placed by the order. husband's knowledge as my health ne exeat regno, and prohibit any Executive Government of the Co- was not difficult to wax in Manila was still unsatisfactory of his subjects from going into lony, and cannot have any bearquent about the hardships sufferation is quite correc'ly stated in ed by a man who had been pre-¦ the turm in which it was put in and my private affairs required| foreign parts without Heenee.ing on the conclusions to which a urgent attention, and I obtained af This may be

It is vented for all this time from en- argument. In my judgment a re- necessary for the court of justice may come.

gulation which, upon the face of passage on the SS. "Tjijalengka public service and safeguard of interesting, too to note that Lord tering the locality where his busi- to Amoy via Hong Kong.

ness was, but these were not or-| P^, could not possibly aid in se- 1 did | the Commonwealth. But no pow- Simon had no doubt in his own this because the steamship

dinary times. In a time of grave curing the public safety or the de- com- er on earth, except the authority mind about the competence of a

fence of the realm would be out- pany would not give me a passage of Parlament, can send any sub- Defence Regulation to achieve the national peril it was necessary that unless I paid the fare to Amoy. jeet of England out of the land same end as the statute the House the competent military authorities side the legislative territory as

The vessel sailed on 10th No- against his will no. not even a

should be clothed with wide pow signed by the Act to the King in was then debating.

ers to act. Honest mistakes might Council. Lord Atkinson in Rex vember and therefore knowriminal, for exile and transporta- nothing whatever of the regulation are punishments unknown to

easily be made and If they were v. foliiday suggests, without de- tions published on that date in the Common Law. To this pur-

honestly made the consequencer elding, some such limitation. He Hong Kong. I had a British pas- pose the Great Charter declares As to what is the proper con-

says at page 272 “Two conditions port.

that no freeman shall be banished struction to be placed on such le-sequences of a

are, however, imposed. First re- unless by the judgment of his gislative enactments as the Emer- und Scrutton L.J. characteristical-gulations can only be issued dur

cers or by the law of the land,

gence Powers (Defence Act) 1939 ly said and the Defence Regulations the anxious to protect the liberty of the war, and second, what- the subject. They did so both done for the purpose of securing ever they purport to do must be On arrival in Hong Kong

the

In re- position is I think clear.

the interest of the subject and in Police at first refused me permis-

Boaler 1915 1 K.B, 21, Scutton J.

the public safety and the defence sion to land but ultimately I was

The law is in this respect SO (as he then was) said: "It is of the interest of the State. In time allowed to land and was taken to benignly and liberally construed

of war there must be some modi- of the realm. It by no means tol- course quite competent to Parlia-

fications in the interest of the lows, however, that if on the face the Immigration Office where for the benefit of the subject that, ment to deprive any subject of the

of a regulation it enjoined or re- It had been said that a was told I must proceed on Sun- though, within the realm

the King of any right either absolute- State.

to be done day 24th November,

Sovercign may command the at-ly or in part.

But the language war could not be conducted on the quired something tendance and service of all his of any such

statute should Le principles of the Sermon on the which could not in any reasonable However, on the Saturday }

Mount. It might also be said way aid in securing the public safe- went with my husband to the Imlicgemen yet he cannot send any jealously watched by the courts

the public service; excepting sol-yond its least onerous man out of the realm, even upon and should not be extended

be- that a war could not be carried on and the defence of the realm it meaning according to the principles of the would not be ultra vires and void.

It is not necessary to decide this: diers and sailors the nature of unless clear words are used

Magna Carta. 10

precise point on the present -oc- whose employment necessarily justify such extension." And in

casion." implies an exception, He carmot ex parte

Zadig R. V. Ralliday, even constitute a man Lord De (1917) A.C. 260 Lord Atkinson in puty or lieutenant of Ireland his speech at page 274 said "For

gainst his will, nor make him a myself I must say that I foreign Ambassador, for might in reality be no more than that statutes invading the liberty sibility

this could appreciate the contention of the subject should be construed after one manner and statutes not invading it after another; that certain words should in the first a meaning put upon them different from what the same words would have put upon them when used in the second. I think the tribunal whose duty it is to interpret a statute of the one class or the other should endeavour to find out what, according to the well-known rules and and principles of construction, the statute means, and if the mean- ing be clear to apply it in that sense. Should the statute be am- higuous, equally susceptible of two meanings, one leading to an invasion of the liberty of the sub-

over

migration office and succeeded in getting permission to stop until 30th November on furnish- ing a bond for $300.00.

I did not sat on the 30th No- vember and on the 11th Decem- be I received the following let- ter from the Colonial Secretary.

"Madam, I am directed to in-

vite your attention to your failure to comply with the con- ditions attached to your recent entry into the colony from Man- ila. As you know, this condi- tion was that you should leave the Colony by the 30th Novem- ber last, and you and your hus- band entered into a bond to se- cure the performance of that

condition.

in

an honourable exile."

The authority relied on for that statement of the law is part II of Sir Edward Coke's Institutes of the Laws of England where at page 47 the early authorities are collected. In view of Govern ment's avowed intention to send the plaintiff not to a part of Flis Majesty's Dominion but to a for- eign country, one of these authori- ties is interesting.

class have

Wide Powers

Very wide powers had been giv- en to the Executive to act on sus- never picion in matters affecting the in- terests of the State. The respon- for giving these powers rested not with the judges but with the representatives of the people in Parliament, The power was given not to the Judges but to the naval and military authori- ties and upon then the responsi- bility for the exercise of that power rested.

Looking at words of the regulation, it plain that the authorities had very wide power, and he protested against the Judges' being called upon to say how the war should be carried on:

the

was

In

Limitation Of Powers

my judgment,

some sugh limitation of the powers as sug- gested by, Lord Atkinson does pro- perly arise out of the description

the delegated powers as pow- ers to make regulations for sè- curing the public safety and the defence of the realm.

If a regulation is such that It cannot, on the face of it, conceivably sid in securing the safety of the public and the defence of the realm, it is not,» In

my opinion, within the legislative powers which aro conferred during the war on His Majesty in Council.

As you are still the Colony and have therefore not complied with the condition above referred to I am to point] out that you have thereby con- Penbrugh Case travened regulation 3 of the De- fence (Entry Restrictions) Re- "Sir Richard Penbrugh's case gulations, 1040, published as) (Rol. 44 E.3) who was warden of Government Notification. No. the Cinque Parts, and had divers 1268 in the Gazette Extraordin-affees, annuities and lands grant- ary of November 19th, 1940. ed to him for life and in fee by I am now to inform you that the King under the Great Seale, ject and the other not, it may vires, from in the matter of a Pe- enquiry is being made as to pro servitlo imperso et impen- well be that the latter should be when shipping accommodation dendo, the King commanded preferred on the ground of theto E. H. Jones. Machine Tools conferred by the legislators on the will be first available to enable Sir Richard to serve him in Ire-presumed intention of the legis- you to leave for Manila, and land, as his Deputy there, which lature not to interfere with It. that the Police will be directed he absolutely refused, whereupon That is a wholly different inat- in accordance with the provi-the King by advice of his Councell ter." sions of regulation G (b) | seized all things graunted to him to take you into custody shortly pro servitio impendendo. (in re

before the ship sails and to ar- spect of that clause) but he was range for your departure on it. not upon that resolution commi- Mr. D'Almada's second point I trust that it will be clearly ted to prison as by that record it necessarily involves a close ex- understood that the action re-appeareth; and the reason was amination of the authorities. ferred to above is not to be because his refusall was lawful is not surprising that in such a taken as a mere threat but that and if the refusall was lawful to matter direct authority: is not

most serious 'attention."

Writ Taken Out

The plaintiff took out her writ two days later.

"1

I have considered as carefully The third limitation maybe as I can all the reported cases in stated as follows::... Regulations, which "Defence of the Realm Re- which, on the face of them, show gulations or Defence Regulations that they cannot afford any as- have been challenged as ultra sistance in securing the public safety and the defence of the tition of Right (1915) 3 K.B. 619 realm are not, within the powers Limited v Farrell and Muirsmith King in Council."

Times Newspaper 3rd August. 1940) and from that examination Real Foundation certain principles clearly appear.

our of reasonableness and hones-

Mr.

V

area and in which a munition.

The real foundation of Doctrine Of Ultra Virės Honesty Not Challenged d'Almada's argument on behalf

There is a presumption in fav- of the plaintiff is Chester

Bateson 1920 1 K.B. 829. The ty, and in this case the honesty of regulation in question in that It the Executive is not challenged. It case provided that "no person shall without the consent of the must not be assumed that the

Minister of Munitions take any powers conferred, upon the Exe- you will give this matter your serve in Ireland, parcell, of the available. Mr. Street in his re-cutive by Statute will be abused obtaining an order or decree for

proceeding for the purpose of....... King's Dominions, a fortiori, à re-cent work on the Doctrine of 1 adopt in its entirey the statement fusall is lawful to serve in any Ultra Vires, writes at page 443 of Greer J. (as he then was) in the recovery of possession of, or foreign country."

"It will be presumed that a statute Hudson's Bay co, v McLay (1920) for the ejectment of a tenant of The answer to this contention is is intended to be not only con- 16 TLR. 469 at 475 and 470, any dwelling house in a 'special given succantly in the judgment stitutional but reasonable, Statutes "What are the boundaries. or of Darling J. as he then was, in must be interpreted so as not to limits of this legislative territory worker is living." Chester v. Bateson (19200 1: K.B. lead to absurdity. An Ordinance thus assigned to the King in

The Judgments of the learned 820 at 832. "Mr, Langdon, has providing that persons, convicted Council? (1). They must be exorsional Court have been so much judges who, constituted the Divi- contended that this regulation outside a Colony could be banished cised honestly with the intention referred to in argument that I Mr. d'Almada's argument for the violates Magna Carta, where the if they entered the Colony, could of securing the public safety and feel I must cite from them freely, plaintiff falls conveniently under King declares: "To no one will we not mean that persons domiciled defence of the realm (see Lord two heads:--

sell, to no one will we refuse or in the Colony, and convicted when Wrenbury in Rex, v Halliday 1917 Darling 3. said "It is objecte:l One, so radical, so drastic an delay right or justice." I could temporarily outside it, could be A.C. 260). It is argued that there that the regulation is bad because it forbids any person, without invasion of the liberties of the not hold the regulations to be bad banished from their homes (Ven-is a third limitation namely that subject cannot be justified unless on that ground were there suffter v: 31007 x T.S. 910), and the regulation must be reasonably the consent of the Minister of

Munitions, to taito or cause to be. the statute by virtue of which ac- clent authority given by a statute penalty prescribed for entering of capable of securing the public taken any proceedings to recover tion purports to be taken au- of the realm to those by whom the the Colony who received a trek- safety and the defence of possession of his own house, or thorises such invasion in the clear regulation was made. Magna Ling licence to find a home else realm.

to eject a tenant from it, where est and most unequivocal terms. Carta has not remained untouch, where but is obliged to return. There is considerable authority the tenant is employed in certain No such regulation has been made ed; and like every other law of (R v Zibi 1928 E.D.L 246). In- in decisions of Judges of this work. connected with

war in England, and tho considered England it is not condemned to teresting and apposite as these Division and the Court of Appeal material. I found my judgment view of the British government that. Immunity from development cases at first sight, appear to be that there may be such a limith- on the passage in Rex v. Halliday 98. Syprusted by the Lord Chansor Improvement

«nità | min. Lanbide in the presence of tian, on the powers at the King (Continued on:Page 3)

Plaintiff's Case

E

the