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Chapter 45 (28th July 1804), enabling land so required to be purchased absolutely, and the price to be ascertained by a jury in default of agree-
ment.
In 1819 a question arose about some land between Sandgate and Hythe which the Master General of the Ordnance required for the use of the Crown to erect batteries and form a camp there; the owner was willing to grant a lease of the land during the war, but the Master General declined that proposal and expressed himself as determined for the benefit of the country to purchase the land in question, "and in case Mr. Jeffery persisting in the refusal to sell to bring in a Bill in Parliament to empower the Board of Ordnance to purchase the land in question, and to have the value ascertained by a jury as is usual." (Book of Extracts, page 419). No suggestion of taking by virtue of any prerogative was advanced by the Ordnance.
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The Defence Act, 1842, recites various Acts of George III., George IV., and William IV., whereby various provisions have been theretofore made for the purchase of land and hereditaments for the public service, and for the defence and security of the realm, and that it is expedient to consolidate, amend, and enlarge such powers and provisions. The Act then provides by sections 5 and 6 for vesting in the principal officers of Her Majesty's Ordnance, lands and hereditaments or any acquired and thereafter to be acquired for the defence and security of the realm. Section 9 confers power on the principal officers of Ordnance to purchase or take on lease lands desirable to be purchased for the defence of the realm, and to enter into any necessary contracts. Section 16 authorises the principal officers of Ordnance to enter on, survey, and mark out any lands or hereditaments wanted for the defence of the realm, and to treat and agree with the owners of the same either for the absolute purchase thereof, or for the possession or use thereof during such time as the exigence of the public service shall require." By section 19 if the parties interested fail to agree within 14 days upon the consideration for the absolute purchase or the annual rent or sum for the hire, either for a time certain, or for such period as the exigence of the public service may require, then certain justices of the peace, or other persons named in the statute are authorised and required to put the said principal officers into immediate possession of the said lands and hereditaments, and to issue their warrants to the sheriff to summon a jury, to value the premises and assess the compensation to be paid for the absolute purchase or for the possession or use thereof as the case may be. Then follows a proviso that it shall not be lawful for the principal officers to use any lands, buildings, or hereditaments taken under the compulsory process for the barrack service or to erect any barrack buildings thereon. By section 23 it is provided that no lands, buildings, or hereditaments shall be so taken without the consent of the owners, unless the necessity or expediency of taking the same shall be first certified by the Lord Lieutenant or certain other persons, or unless the enemy shall have actually invaded the United Kingdom at the time when such lands, It will thus be seen buildings, or other hereditaments shall be so taken.
that the Statute applies as well in time of war as in time of peace; but in time of war, and actual invasion by the enemy, one of the restrictions on using the compulsory powers, namely, the certificate of the Lord Lieutenant or other named persons, is unnecessary. This restriction, however, remains in war time, if the enemy has not actually invaded the kingdom; and there is also the restriction of having to allow 14 days to clapse before the principal officers are entitled to require that they shall be put into immediate possession of the property. The subsequent assessment and payment of compensation is not a restriction.
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obligation to pay follows on the acquisition of the interet in the land, but the assessment and payment take place after possession of the property has been given to the principal officers, and does not hinder or affect the principal officers in putting the property to such uses as they may think fit. After the outbreak of the great war, two statutes were passed in August 1914, the Defence of the Realm Act, 1914, and the Defence of the Realm (No. 2) Act, 1914. His Majesty in Council was thereby authorised, during the continuance of the war, to issue regulations for securing the public safety and the defence of the realm, "and may by such regulations also "provide 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, 1842 to 1875, or the Military Lands Acts, 1891 to 1903." These statutes thus provide for regulating the existing powers. Orders in Council were made under the power of these statutes. The Defence of the Realm Regulations, 1914, and the Defence of the Realm (No. 2) Regulations, 1914, were issued, and amended by an Order in Council dated 17th September 1914. These regulations provide for the stispension of certain restrictions. The fourteen days' delay provided for by Section 19 of the Defence Act, 1812, disappears, as authority is given to take immediate possession of land and buildings where necessary for the public safety or defence of the realm. Again, compulsory acquisition, whether permanent or temporary, is authorised, without the need for any invasion of the United Kingdom as a condition precedent to the exercise of compulsory powers. Thus during the continuance of the great war, and while the Defence of the Realm regulations remain in force, the powers of acquiring land compulsorily. (whether permanently or temporarily) under the Defence Acts are extended, and restrictions on its exercise removed, but no power was or could be conferred by the Regulations to take the land of a subject without payment. In order to secure the public safety and the defence of the realm, it may be necessary to obtain immediate possession of land and buildings, but neither the public safety nor the defence of the realm requires that the value of the subject's land, or of the temporary possession of it, should be confiscated. Again, if the Executive Government is authorised under the Defence Acts to take and occupy land on paying compensation, there is no necessity for the safety of the realm to take any other course, so long as any restrictions upon acquiring the immediate possession of the land are removed. Moreover, there is not any Defence of the Realm Regulation purporting to abolish the right to compensation; even if there had been such a regulation it would not in my opinion have been authorised by the powers conferred by the Defence of the Realm Act, 1914, or the (No. 2) Act, 1914. On this point I may refer to what was said by Lord Esher in The Attorney General v. Horner, 1 Queen's Bench Division, page 245, that: It is a proper rule of construction, not to construe an Act of Parliament as interfering with or injuring persons' rights without compensation unless one is obliged to so construe it." And also to the judgment of Lord Justice Bowen in London and North Western Railway Company v. Ecans, 1893, 1 Chancery, 16, at page 28. **The legislation cannot fairly be supposed to intend, in the absence of "clear words showing such intention, that one man's property shall be confiscated for the benefit of others, or of the public, without any compensation being provided for him in respect of what is taken compul- sorily from him. Parliament in its omnipotence can, of course, override or disregard this ordinary principle.. if it sees fit to do so, but it is not likely that it will be fold disregarding it, without plain expressions of such a purpose." The contention of the suppliants that the entry of the Crown upon the land was in fact under the Defence Act, 1812, and subsequent provisions, and that the liability to pay
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