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LORD JUSTICE SLESSER: In this case, declarations are sought
against the Crown to the effect, in substance, that the Crown is not entitled to charge the appellant Company for the use of troops employed to protect the property of the Company and the lives of their employees in circumstances stated by my Lords which I do not repeat.
The appellant Company seek to support their case on three grounds. First, they say that the powers of the Crown with regard to the Army are by law limited and that in particular the common law and Statutes which authorise or require the Crown to employ the Army do not authorise it to make charges for the use of the Army. Secondly, they argue that, in any event, even if the Crown has a discre- tion how it will protect the subject, yet that discretion should not be influenced by any consideration of the giving of money by the subject or the denial of such money. Thirdly, it is said that the Crown has a duty to protect the subject and that its officers cannot properly demand money from the subject, colore officii, as a term of the performance of that duty.
These three arguments I propose to consider in the order in which I have stated them. (a) As regards the alleged limitation of the prerogative of the Crown in its disposition of the Army. By Statute, 13. Charles II., chapter 6, it is declared that the sole supreme Government, command and discipline of the Militia and of all forces by sea and land is, and by the laws of England ever was the undoubted right of His Majesty and his Royal predecessors, Kings and Queens of England. This declaratory Act is still law, and, as late as the year 1863, by the Statute Law Revision Act, 26 and 27, Victoria, Chapter 125, Schedule, the words in the preamble of the Act of Charles II. which I have quoted, are expressly preserved. "His Majesty's pleasure supersedes all enquiry, as he has absolute direc- tion and command of the Army.
TT (Per Lord Kenyon in Mac- donald v. Steele, 1. Peake, 233, at page 235).
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The government of the Forces is vested in the Crown who has power to make regulations as to command and adminis- tration (25 Halsbury's Laws of England, page 37). "The supreme government and command of all forces by sea and land and of all forts and places of strength, is vested in the Crown by prerogative right at common law and by Statute." (6, Halsbury's Laws of England, page 418). This last quo- tation cites Comyns Digest to the like effect, and although Sir John Comyns appears to limit his statement that "the government and command of the militia and of all the forces by sea and by land belong only to the King" (Prerogative Command of the Forces, Fourth Edition, Volume 6, page 33) to prerogative in respect of the King's own subjects in time of war, apart from the legalisation of the Army by the Army Acts, his submission would appear to be equally true as regards time of peace. It is by virtue of his prero- gative that the King by Letters Patent in 1904 constituted the first Army Council, and it is there stated that the Army Council has been constituted "for the administration of matters pertaining to our military forces and the defence of our Dominions, that such power and authority for the purpose as has hitherto been exercised under our preroga- tive" by various officers. Although by Section 7 (1) of the Army Act 1881 express provision is made for removing doubts as to the powers of command vested or to be vested in officers, by subsection (2) of that Section it is ex- pressly provided that nothing in the Section shall be deemed to be in derogation of any other power otherwise vested in His Majesty.
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