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38 George III., and, among permanent Acts, the Defence Acts, 1812 to That an Act of 1875, but more particularly the Defence Act, 1812. Parliament may determine once and for all an ancient right of the Crown could not be disputed. Many rights under the prerogative in respect of defence have been abolished by statute. The legislation of the reign of Charles II. was cited, and the argument is well illustrated by numerous Acts of older date relating to purveyance. All these statutes, however, were specifically directed against the prerogative powers with which they dealt. The rights of the Crown are not taken to be abated by statute unless the intention of the legislature to that effect is clear and unmistakable upon- the face of the statute (see per Lord Lindley, L.J., in Wheaten v. Maple, Law Reports, 1893, 3 Chancery, page 64). There must be express words or plain and necessary implication (Coomber v. Berks, Law Reports, 9 Appeal Cases, page 96). It is probably not too strong a statement that the implication will not be made unless otherwise the legislation would be unmeaning. That the temporary statutes, including 38 George III., c. 27, can be supposed to affect the prerogative seems to me impossible. And there is nothing in the language of the Defence Act, 1842, which suggests to me an intention as a part of the legislature to deprive the Crown of any of its common law powers. All the clauses are enabling clauses, and none of them goes beyond the objects expressed in the title and the preamble, namely, the vesting and purchase of lands and hereditaments. The words lands and hereditaments must be taken to include interests therein. I am of opinion that the powers of the Crown under the prerogative are not alated by any of the temporary Acts which were cited or by the Defence Act, 1812.
Paragraph 2 of the Answer and Plea of the Attorney-General on behalf of the Crown justifies the possession complained of, not only by the prerogative, but also the powers conferred by the Defence of the Realm Consolidation Act, 1914, and the Regulations thereunder. The terms of section 1 of this Act of 1911 are therefore material for consideration. The section declares the powers of the Crown in terms which appear to me to affim the existence of prerogative rights, but it also confers new powers undefined by particular description and absolute in character. The effect of section I was considered in the House of Lords in Reg. v. Halliday, 1917 Appeal Cases, page 260, a case dealing, not with right in property, but with the liberty of the subject. The absolute nature of the powers reposed in the Crown by the section is clear in the light of the judgments then delivered. The powers must, of course, be exercised honestly by those entrusted with them by the Crown, but "there is no other limit upon the acts that the Regulations may authorise" (per Lord Wrenbury at page 307). Regulation 2, made under the absolute powers of the Crown declared or conferred by section 1 of the Act of 1914, provides that it shall be lawful for the competent naval or military authority, where, for the purpose of securing the public safety or the defence of the realm, it is necessary so to do, (a) to take possession of any land, and (b) to take possession of any buildings. The terms of section 2 in the statute were founded upon by the suppliants' counsel as a constructive limitation of the powers declared in section 1, but I see no reason in section 2 for supposing that the legislature intended to fetter the powers declared and conferred in section 1 by imposing any of the conditions which regulate the acquisition of land under the Defence Act of 1842. The effect of the words in the Regulation
where it is necessary "--does not properly arise for consideration in this case, as the suppliants have not challenged the action of the Crown on the ground of absence of necessity. An argument was founded, however, on these words in furtherance of a suggestion that possession without com- pensation cannot be necessary for the defined purposes. I cannot construe-
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the words as having any relation to the question of compensation. So far as the Crown itself is concerned, the test of necessity seeras to me to he incontestably established by the determination of the Crown. It could not be challenged even by petition of right to recover possession. The view which I have expressed as to necessity is, I think, that taken by Lord Parker in The Zamora, 1916, 2 Appeal Cases, at page 106. Confirming the declaration of the law which was made in this Court in the Shoreham Case, Lord Parker uses these words: "Those who are responsible for the "national security must be the sole judges of what the national security
requires."
C
Before I pass from the question of the existence in the Crown of the powers for the occupation of land other than those of the Defence Acts, 1812 to 1875, and the Military Land Acts, I think it worth while to mention that in section 1 of the Defence of the Realm (Acquisition of Land) Act, 1916, the Legislature takes notice of the fact that during the present war possession of land has been taken by the Crown for purposes connected with the war in exercise or purported exercise of prerogative rights" as well as under powers conferred by enactments relating to the defence of the realm.
K
It would be pedantic in an argument such as occurs in this litigation to ignore the reflections naturally provoked by insistence upon prerogative rights at a time when most of the relations of the subject with the Crown have for centuries been determined by statute, and when large powers outside the prerogative have been created by statute in regard to the particular matter. That consideration relates, however, to public policy and not to legal right. Any restriction of clear powers of the Executive Government in times of public peril is properly subjected to careful scrutiny, and powers which under conditions of personal autocracy might be regarded as invidious may, under modern conditions, be not only valuable but essential. Parliament is well able to prevent an oppressive exercise of such powers by the executive.
The several grounds of claim in respect of which the Suppliants ultimately asked for judgment were these, an implied agreement giving a right to recover reasonable payment for use and occupation, a common law right to compensation for loss caused by any exercise of the pre- rogative, and the right to have the same pecuniary advantages which would have resulted to them from the exercise of the powers of the Crown under the Defence Act, 1842.
Before dealing in detail with these claims, I propose to consider what are the powers of the High Court of Justice in respect of demands made against the Crown by Petition of Right. This process is available to the subject for the recovery of real or personal property which is wrongfully in the possession of the Crown, and for obtaining judicial authority for payment out of the Exchequer of money due upon contractual obligations of the Crown. As to the former of these classes of objects, Chief Justice Holt pointed out in the discussion in the Banker's Case reported as Hornby Rex, 5 Modern, page 57 (14 Howell, page 3), that the function of a Petition of Right is to destroy the King's title." As to the second class, the decision of the House of Lords in the Banker's Case, as applied by the Court of Queen's Bench in Thomas v. Reg. (Law Reports, 10 Queen's Bench, page 3), establishes the authority of English Courts of Law to examine upon Petition of Right money claims of the subject against the Crown, provuled they arise ex contractu. The jurisdiction declared in Thomas v. Reg, extends to the ascertainment of the rights of the subject against the Crown in respect of contracts broken by the officers of the Crown as well as in respect of contracts performed. Beyond these two classes of cases the jurisdiction of the Courts upon Petition of Right does not extend. Speaking
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