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347
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THE PREROGATIVE POWERS. The Prerogative powers claimed could only comy) rights of the kind existed at common law had The answer of the supplants to the claim made under the Prorogative was, first, that whatever (if in question should the security of the kingdom be been abrogated by modern legalation Reliance was threatened by a foreign enemy. The alleged rights placed upon of the Crown had their origin before the time of legat Henry VIII. to 38 George III., and, among permanent measures enacted at intervals to the period from 4 memory and were incongruous with modern praction. Acts. the Defence Act, 1842 to 1875, but more parti- a Berles of enactments, temporary The jurisdiction of the Court was no greater than cularly the Defence Act, 1843. That an Act of Parlia it was in the 17th century. Four things had to be sacertainod—namely, the true state of facts as to
ment might determine alleged agreement; the rights of the Grown, if any, rights of the Crown were not taken to be abated by the right of the Crown could not be disputed, but the once and for all an ancient apart from agreement in respect of the properly statute unless the intention of the Legislature to that The rights of the
the subject apart from agreetgant in respect of the alleged sets of the public authorities; Lindley in Wheaton v. Maple
edect was clear and unmistakable (sce per Lord And the jurisdiction of his Majesty's Courts to pro- 18, at p. 64), Coomber v. Harks Justices 19 App. Ca... nounce a judgment upon the suppliante several : 61, at p. 76), and per Mr. Justice!
and Co. (1805) 3 Ch matters of complaint.
then examined the facts and cante
Day
in Gorton Local
Board v. Prison Commission (1904] 2 K.B., 165m, st to the that the premises
p. 187). That the temporary statutes could be ment under an agreement between the Crown sad the in the language of the Defence Act, 1942, to suggest
were being occupied by the Govern-
Lordship) Impossible. And there was nothing any intention to deprive the Crown of any of its common law powets.
THE STATUTORY POWERS.
Eission that the allegation in the petition supposed to act the Prorogative seemed to him
suppilante could not be Bustalund: ha proceeded to deal with the Crown's
and
contention with regard to the Royal Prerogative, and said that the with argument for the Crown was in effect that at law there was in the
the realm, that this dueign the duty offensive
Carried with it all necessary
rights for the doing of things incident to the perform
sche
complained of, not only by the Royal Prerogativa, but The Attorney-General justified the possession also by the powers conferred by the Defence of the Realm (Consolidation) Act, 1914, and the regulations thereunder. The effect of section of the Act was considered fa R. v.
▼. Halliday ([19171 A.C., daling not with right
200) case of the subject and in property but with the liberty absolute pature of the powers reposed in the Crown by the section must be exerived honestly, but there
in the light of the judgmenta
Was clear in then
The power auth limit
upon the acta
10
there is no other that the regulations may Lard Wrenbury
A.C., at P. 307). that it should be lawful for the competent naval or
authorize "pion 2 made the her provided
military authority when, for the by
ance of the duty. 60 LAF as they were not unlawful, and that one of these incidental things was the occupa tion of land wherever military neurity required it. An to legality, it was said for the Crown that Pary occupation for defence within the prohibition of Magna Carta. As to neces-
Was not sity, it was contanded that the Sovereign was con- stitutionally the arbiter. The common law duty of the Sovereign to defend the realm appeared clearly from Hampdent's case (3 Howell's State Trials, The right of the
the Crown to enter jert
for
iter upon lands of a sub- purposes of public defence was affirmed unanimous opinion of the Judges given consultatively to the Crown in the one of Saltpetre (12 Co. Rop., 13). The Judges in Hampden's case (the case of money), although divirled
Abip as to the matter imme distris to be decided, were unanimage to rvetain questions which were material bere. Thus Mr. Instico Crooke, whose opinion was advere to the Crown's claim, zaid (3 Howell's State Trials, at p. 1,134), in discussing the Prerogative:—
** The law provides a remedy in case of necessity and danger, for then the King may command his subjecta without Parliament to defend the kingdom. How ? By all men of arms whatsoever, for the land; and by al ships whatsoever, for the sen, which he may take own Navy, which hath been the practice of all former kings."
His Lordship then referred to the judgment of Mr. Justice Hulton on the argument of Mr. St. John in the same case, and said that one of the grounds on which Hampden's resistance to ship money was based by Mr. St. John was the existence of the many Prerogatives which the law bath settled in the Crown for the defence of the kingdom." ▲ right to summon all subjects to defend the realm by personal crries-Foster, 157, 158, and Co. lat, 75.76: the power of the Sovereign to issue commissions of the power of implement of ships and men for the
Jarny Navy; and the tions (Comen's Digest Tit. Prerogative-had been con sothoitty to erect fortificar sidered clear instances of Prerogative rights which exited a common law. lanels within the realm as and when military defenca
The right to ent
enter upen required It.
was claimed in this case as such a right; and it was said to be exemplided in the decisions of various Courts of Law, which were cited in fe a Petition of Right (31 The Timsa L... 596; 10151 K.B.. 649) with regard to the raising of bulwarks to repel invasion.
worda
the
the public safety or the defence of the resin, it was the purpose of securing necessary so to do(a) to
take and (b) to take possesion of any buildings, The possession of any land, supplanta bad not challenged the action of the Begument was founded on Grown on the ground of absence of power given by the regulation to cases where, for the
Dercing T
but AH on the purpose of securing the
the public safety of the realm, it was necessary:
or the defence v: and it was said that possession without compensation could never be of enmponention, and the test of necessity was incon- necessary for the defined was that the words had
purposes. The answe no relation to the question testably established
from all parts of the kingdom and join them with his Crown (see per Low By the determination of the
THE SUBJECT AND THE CROWN.
Hi Lordship then referred to the absence of re ported cases of litigation between the subject and the Crows in this donnexion and of records of payments or other admissions of liability by the Crown, and said that the records deemed to him not to support the supplimat's case, but rather to tend to destroy it. The cases between subjecte in which the ples of necessity in time of war for public defence was excess- raised in early times in actions of trespass were fully fairly numerous. In the Year-book 8 Edward TV 11.41.a custom in Kent" when the enemy come to the Count
to enter upon land adjoining the same coast in defence and safeguard of the realm and then to make there trenches and bulwarks for the defence of the realm was held to be well pleaded. In the Yene- Look 27 Henry VII.. T. 276, the entry upon land in time Realm Paire bulwarke in defence du Boy ot
at le was held to be justliable as a thing neces AFT for the Commonwealth, though otherwise illegal." In 14 Henry VIII., pl. 18, the opinion of the Court of Common Pleas was recorded to the effect that suburbs d'eltics seront plucked down in temps guerre pur ceo que ceo est pur le Comonwealth chosen poit faire mon aver action. right was confirmed in Chitty on the Prerogative, This alleged The case of Saltpetre (supra) declared the opinion of all the Judges in 1607 that there was in the Crown a right of entry on all lands for a purpose essential for delence, though the purpose originated within the time of legal memory-
of war **
in a (his Lordship's) opinion the law was befors the Defence Acte, and now was, that in case of nece. sily for public defence the Crown might of right enter upon the land of the subject and might remain in occupation while the necessity continued. Cou so decided in in re a Petition of right (mpra), That and the observations of Lord Parket in the Zamora (32 The Times L.R., $26 ; [1916] A.G. 77) Indiosted the concurrence of the noble and learned lord in that
Parker
confirming a declaration of the law made in this Court
ker in the Zamora (supra); in In re Fetition of right
Pedantic too
It
the reflections natur- ally would be provoked
by insistenca upon prerogative rights at a time when most of the relations of the subject with statute. That consideration related, however, to the Crown public policy and not to legal rights.
had for centuries been determined by
Government in times of public peril was properly Any restriction of the powers of the Executive subjected to careful scrutiny. Powers which under conditions of personal autocracy might be regarded able to prevent an oppressive exercise of such powers As invidis, right under modem conditions be not only valuable, but essential. by the Executive.
Parliament was weit
As to the
THE POSTIZON OF THE HIGH COFF Hls Lordship, continuing, said that he proposed to consider what were the powers of the High Court of Justice in respect of demands made against the Crown by petition of right. This process was sval!- able to the subject for the recovery of real or petsoun! the Crown, and for obtaining judicial anthority for property which was wrongfully in the possession of Payment out of the Exchequer of money due upon contractual obligations of the Crown. former class, Chief Justice Holt pointed out in the Bankers' case (14 Howell's Htato Trials at p. 34) that the function of a petition of right was "to destroy the King's title." As to the second class, the decision of the House of Lords in the Bankers' case na
LR. 10, Q.B. 31) established the authority of English by the Court of Queen's Bench in Thoman
applied Reg. Courts of law to examine upon petition of right provided they arose er contracts. Beyond these two money claims of the subject against the Crown
petition of right did not extend. classes of cases the jurisdiction of the Courts upon
of
2
from the Statute of Westminster the Second (13 Spanking generally, the long serice of enactmenta Edward I., c. 24) to the Judicature Acts did not giva any rights to the subject list the Crown. The amendments made by the Petition of Right Act, 1860, were amendments of procedure only. In the present case the suppliants were not proceeding under the of property. They sought to recover payment jurisdiction that the Court had to restore posression debt upon one or other of the grounds of claim on which they relied. The claim of the suppliants for money due for me and occupation was rightly dis allowed by the learned Judge at the trial. Agreement for such a payment could not be implied when the occupation had been against the will of the claimant or when the circumstances were inconsistent with contract for payment. (See Churchward v. Ford H. and N., 446) and Sloper v. Saunders (20 L.J., Ex. 2781.] The claim of the suppliants that s of the Crown siwala gave a right to compensation entry upon land in the exercise of the Prerogative was not supported by reference to any authority. but was said to be warranted by the naat practice
An
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