CO129-532-7 Anti-piracy guards- China Navigation Company v. H.M. Attorney General 19-1-1931 - 20-4-1932 — Page 44

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the trade and say we will go on at our own risk and not require

your services. But they wanted the guards and as they could not

get them without paying they said they would pay but under protest

because they said they were entitled to them without paying.

The case was put before me upon the basis of the well

known cases about officers who, especially heartened by the war legislation, have attempted to receive payments in respect of the

exercise of their powers. We had the case of the Shipping

Controller. He thought when he was authorised to license ships

for particular purposes and to ensure particular objects that

that entitled him to make a charge for it, for excellent reasons

no doubt, but it did not entitle him to do it. So the Food

Controller thought if he could regulate the sale of milk he could

charge for his permission. So did the Licensing Authority in the

advertisements case which was also referred to. Over and over

again officials who are given powers think that because they have the power to give or withhold approval they have the power to give or withhold on terms, which they have not. They have only power

to give or withhold according to the exercise of the discretion for

proper purposes which is specially given to them.

That is per- fectly well known as regards officers; it is very interesting.

Now in this case that doctrine is sought to be applied to the Crown in respect of what is called its duty to use its

armed forces for the protection of its nationals. It is said that the Shipping Controller or the Food Controller cannot charge for the permits which he gives: you, the Government, cammot charge for performing your function of using the armed forces of the

nation for protection of nationals. It seems to me here again as was said in another case the analogy fails because of the duty which is spoken of. The word "duty" in the two cases is made to describe two totally different things. In the case of the officers they have a duty to perform the functions confided to them by the Statutes in question, a duty in the eye of the courts of law; but

in the case of the Crown in the use of its forces what is called

the duty is not that sort of obligation at all. It is not an

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