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to regulate their internal arrangements as may seem to His Majesty most consistent with political propriety". According to Blackstone (8th edition, volume 1, page 251): "In the exertion of those prerogatives which the law has given him, the King is irrefutable and absolute, according to the forms of the constitution. And yet, if the con- sequence of that exertion be manifestly to the grievance a dishonour of the Kingdom, the Parliament will call his advisers to a just and severe account".
"Prerogative is the discretionary power for acting for the public good", (Locke on Government, 2, paragraph 166), quoted by Blackstone, ibid. "The King has the sole power of raising and regulating fleets and armies". iHe is first in military command, within the kingdom". (Blackstone, ibid, 262). "It is true that the prerogative is created and limited by the common law and that the sovereign can claim no prerogatives except such as the common law allows". (Comyns' Digest Prerogative). "But in so far as such pre- rogative includes the government of the Army, the Court cannot consider the propriety of its exercise. Upon any doubtful point of prerogative the Crown and its Ministers must bow to the decision of the legal tribunals". (Halsbury's Laws of England, Volume 6, page 382). But, in so far as in my view the powers here under consideration are within the prerogative, the function of the Court is exhausted in so deciding.
I am of opinion that a declaration cannot be made against the Crown if, in its discretion, it refuses the provision of military protection to a subject unless such protection is paid for by the subject.
(c) Lastly, I have to consider whether the Crown or its Ministers can demand money from the subject colore officii as a term of the performance of the duty of pro- tection.
In order to determine this matter it is necessary first to consider whether the Crown has a duty to protect the subject, and, if so, what is the nature of that duty. It is not suggested by Sir Leslie Scott that the duty for which he contends is one directly enforceable by the sub- ject by process of law. It is, he says, a duty of imper- fect obligation. The best passage for his purpose is that of Lord Justice Brett in Attorney-General v. Tomline (14 Chancery Division, page 58), in which he uses the phrase "Duty of imperfect obligation". The duty there under consideration was the duty to protect the Realm from the inroads of the sea. He says: "Supposing that the King were to neglect that duty, I know no legal means that is no process of law - common law or statute law by which the Crown could be forced to perform that duty. It is a right which as against the Crown the subject has no means to enforce. Nevertheless, the right exists". (At page 66). In the Isle of Ely case (10 Reports, 141a), Chief Justice Coke said: "The King ought of right to save and defend his realm as well against the sea as against the enemies, protectio trahit subjectionem et subjectio protectionem, that it should not be drowned or wastes". A declaratory Statute, 23 Henry V111., Chapter 5, says: "By reason of our dignity and prerogative royal we are bound to provide for the safety and preservation of our Realm of England".
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