33
The right to protection is not necessarily limited to the Realm. "The protection and government of the King is general over all his dominions
Seeing power and protection draweth ligeance .
extendeth out of England, that ligeance cannot be local, or confined within the bounds thereof". (Per cur. in Calvin's Case: 4, Coke, page 9.) (See Chief Justice Cockburn in R.v Keyn: 2, Exchequer Division, page 63, at page 236, and 1, Blackstone, page 364). But Lord Justice Cotton, in Attorney-General v Tomline, expressly pointed out that the duty and obligation of the Crown was one which the subject could not enforce: "For this reason only, that the Crown is not amenable to the jurisdiction of the Court and any default of duty on the part of the Crown can- not be made the ground of an action" (at page 70).
The question then arises whether the many authorities which decide that money cannot be demanded colore officii have any application to a case where there is no enforceable duty, the performance of which can be refused unless payment is made. In the Attorney General v Wilts United Dairies (91 Law Journal, K.B.D., page 897) Lord Buckmaster pointed out at page 898 that no enactment enabled the Food Controller to levy any sum of money on any of His Majesty's subjects. That was a case where the Food Controller, an official having power under the Defence of the Realm Acts to make orders regulating the supply of milk products, obtained an agreement from the subject that in consideration of the issue of a licence to deal in milk he would pay a certain sum to the Food Controller. In the Court of Appeal (37 Times Law Reports, page 884) Lord Justice Bankes at page 885 said: "It is not disputed for the Crown that the Food Controller could not without Parliamentary authority impose the charge complained of". Lord Justice Atkin at page 886 points out that by the Bill of Rights no money can be levied for or to the use of the Crown except by grant of Parliament. See also Brocklebank Ltd. v. The King (1925, 1 King's Bench Division, page 52), where the Shipping Controller was similarly held not to be entitled to charge for granting a licence.
Other cases such as Wathen v. Sandys (2 Campbell, page 640), (a case of a sheriff being under a duty to erect hust- ings not being able to charge candidates with expenses, being part of a duty upon him in executing a writ to return members to Parliament); Morgan v. Palmer (2 Barnewall & Cresswell, page 729), (in which a Justice of the Peace sought a fee for renewing a licence of publicans); Steel v. Williams (8 Ex- chequer, page 625), (where a parish clerk sought illegally to make charges for extracts from a register book); Snowden v. Davis (1 Taunton, page 358); all establish the proposition stated by Baron Martin in Steel's case that a person who illegally takes money under cover of an Act of Parliament is liable to be sued for it. All these cases depended upon a duty existing in some person arising from his office, which duty that person refuses to perform, unless he receives payment. In so far as there is here no enforceable duty in the Crown or its officers to use the troops in any particular way or at all, these cases do not appear to me to assist the appellants.
In Glasbrook Brothers Ltd. v. Glamorgan County Council (1925 Appeal Cases, page 270) it was argued that as there was a duty on the police to provide protection, the discretion as to the way that should be done was not to be bought or sold. Viscount Cave at page 279 points out that power may exist where there is no absolute duty, that is the present case, and that
22.
No comments yet.
Private notes are available after approval.