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possible. I pause to add that on the principle laid down in Thomas v. Reg., Law Reports, 10, Queen's Bench, page 31, upon the authority of The Bankers Case (Howell, 5 Mod. Skinner), an affirmative finding upon the suppliants' allegation of an agreement between them and the Crown would have entitled then to the judgment of the Court, and that my ultimate opinion upon their appeal depends in the first place upon the fact that there was no such agreement.
The right of the Crown to occupy the suppliants' premises for necessary purposes of public defence in time of war was based by the Attorney-General upon the royal prerogative, and, alternatively, upon the Defence of the Realm (Consolidation) Act, 1914, and the Defence of the Realm Regulations. The ground of prerogative was the ground most elaborately discussed before us. The argument for the Crown was in effect that at common law there is in the Sovereign the duty of defending the realm, that this duty carries with it all necessary rights for the doing of things incident to the performance of the duty, so far as they are not unlawful, and that one of these incidental things is the occupation of land whenever military necessity so requires. As to legality, it was said for the Crown that temporary occupation for defence is not a disseisin within the prohibition of Magna Charta. As to necessity, it was contended that the Sovereign is constitutionally the arbiter. The common law duty of the Sovereign to defend the realm appears clearly in the arguments and judgment in Hampden's Case (Howell's State Trials, volume 3, page 826) in the Case of Shipmoney. The right of the Crown to enter upon lands of a subject for purposes of public defence was affirmed by the unanimous opinion of the Judges, given consultatively to the Crown in the Case of Mr. St. John's argument against Saltpetre. 12 The Reports, page 13.
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the Crown in the Case of Shipmoney throws a clear light upon the class of questions here under discussion, and the Judges there, although they were divided as to the matter which was immediately to be decided, were unanimous as to certain questions which are material to the present case. I shall refer only to the judgments of two of the Judges whose opinions were given adversely to the claim of the Crown. Mr. Justice "The law provides a Crooke said in discussing the prerogative:
remedy in case of necessity and danger, for then the King may "command his subjects without Parliament to defend the kingdom. "How?
By all men of aring whatsoever for the land, and by all ships whatsoever for the sea, which he may take from all parts "of the kingdom and join them with his own Navy, which hath been the practice of all former kings." Mr. Justice Hutton said: “The King is bound to defend the kingdom." Mr. St. John for the defendant had said, "It must needs be granted that in the business of defence the suprema potestas is inherent in His Majesty. Neither hath the law only entrusted the care of defence to His Majesty, but it hath likewise put the amat potestas and means of defence wholly into his hands
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Neither is His Majesty armed only with his primitive prerogative of gene- but also with all other powers ralissimo and commander-in-chiet requisite for the full execution of all things incident to so high a place as well in times of danger as of actual war.” One of the grounds on which Hampden's resistance to shipmoney was based by Mr. St. John was the existence of "the many prerogatives which the law hath settled in the Crown for the defence of the kingdom." A right to summon all subjects to defend the realm by personal service; Foster, 157, 158, Fitzherbert, Nat. Prov. Coke on Litt. 75, 76; the power of the subject to issue commissions of array, Parliament Rolls, 2 Rush 1229; power of impressment of ships and men for the Navy, Chitty, cap. lv, Selden Mare Clausum, cap. xx.; 1 Blackstone, cap. 419; 51 R. 276; and the exclusive
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authority to erect fortifications (Comyn's Digest: Prerogative), have been considered clear instances of prerogative rights which existed at common law. The right to enter upon lands within the realm, as and when military defence requires it, is claimed in this case as such a right, and is said to be exemplified in the decision of various courts of law, which were cited in the Shoreham Case with regard to the raising of bulwarks to repel invasion. As was pointed out for the Appellants, these were all decisions in litigation between subjects and not express determination as to the rights of the Sovereign. Litigation upon such a question as between the subject and the Crown could hardly occur. The subject would not be likely to ask
or get the royal flat for a petition of right, and the Sovereign, obstructed in what he deemed the necessary defence of the realm, would probably not resort to a prosecution for misdemeanour. The absence of legal records was relied upon by the suppliants as proof of non-existence of the alleged right. It is true that the Year Books, the more modern Reports, the Parliament Rolls, and the public accounts show no trace of a previous occurrence of such a controversy as this. It is equally true that, within the time of legal memory, armies arrayed under the authority of the Crown have repeate:lly occupied large areas of land in all parts of the country to the exclusion, for longer or shorter periods of time, of the owners of the land. There are no records of complaints by action at law, or, so far as I know, by petition to the Crown, or by parliamentary protest, and the searches mule by the parties in the Record Office produced no proofs of payment except for lands purchased or rentel under statutory powers or by agreement. On the whole, the absence of decided cases and of records of payments or other admissions of liability by the Crown seems to me not to support the suppliants' case in this regard, but rather to tend to destroy it. The cases between subjects in which the plea of nerossity in time of war for public defence was successfully raised in early times in actions of trespass are fairly numerous. In 8 Edward IV. a custom in Kent, when the enemy came to the coast, to enter upon land adjoining the same coast in defence and safeguard of the realm, and then to make there trenches and bulwark; for the defence of the realm, was held to be well pleaded. In 21 Henry VII. entry upon land in time of war, "pur faire bulwarke in defence du Roy et le Realm," was held to be justifiable as a thing necessary for the commonwealth though otherwise illegal." In 1 Henry VIII. the opinion of the Court of Common Pleas is recorded to the effect that suburbs d' cities seront plucked down in temps d' guerre; pur ceo que ceo est pur le commonwealth chescun poit faire sans aver action. This alleged right is affirmed in Chitty on the Prerogative. The Case of Saltpetre declares the opinion of all the judges in 1607 that there is in the Crown a right of entry on all lands for a purpose esse tial for defence, though the purpose originate within the time of legal memory. That is to say,
the right is not limitel to cises in which it has from time to time been exercise.l. Not the nature of the user, but the fact of necessity, is the decisive consideration which governs the right. In my opinion the law was before the Defence Acts, and now is that, in case of necessity for public defence, the Crown may, of right, enter upon the land of the subject, and may remain in occupation while the necessity continues. This Court so decided in the Shoreham Case, and I think that the observa- tions of Lord Parker in the Zamara indicate the concurrence of the noble an i learne i Lord in the view of the law expressed in that decision.
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The answer of the suppliants to the claim made under the prerogative was, firstly, that whatever rights of the kind in question existed at common law-not admitting them-such rights have been abrogated by modern legislation. Reliance was placed upon a series of enactments, temporary measures enacted at intervals in the period from 1 Henry VIII. to
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