Attorney-General v De Keyser's Royal Hotel Ltd

Lorp Atkinson. My Lords, the facts have been already
stated by my noble and learned friend who has preceded me.
If anything be clear in this important case, it is, on the corre-
spondence already referred to, this: that the Army Council,
acting through their agent, Captain R. C. Coles, did not claim
to take possession of the respondents' hotel by virtue of the
unrestricted and unqualified prerogative of the Crown. On
the contrary, they justified their action, and claimed the right
to do what they, in fact, did, by virtue of the power and
authority conferred upon them by the legislative provision of
the Defence of the Realm Regulation in force on May 1, 1916.

It is, I think, equally clear that the respondents never
admitted that the Crown possessed, under these Regulations,
the power it claimed to exercise. This is apparent from

_ Mr. Whinney's letters of May 3 and 5, 1916.

In only three ways, it would appear to me, could the
respondents resist or oppose the action of the Crown: (1.) By
physical force—which is, of course, impossible; (2.) By
immediate proceedings at law; and (3.) by. protest. They
adopted the last named of these methods, but, subject to that,

yielded only to force majeure. Mr. Whinney no doubt |

informed Captain Coles that, notwithstanding what he had
said, all those interested in the hotel felt that every assistance
should be given to the military authorities, and that no steps
should be taken which would cause inconvenience or delay,

531
H. L. (E.)
1920

ATTORNEY-
GENERAL

Lord Dunedin.

and, further, that he had caused notice to be given to all the -

guests in the hotel, and would hand over possession in accord-
ance with the notice (i.e., the letter of May 1, 1916). Possession
N 2 3

532

H, L. (E.)
1920

——

ATTORNEY-

GENERAL
Vv
DE
KEYSER'S
Roya
Hore.

Lord Atkinson.

HOUSE OF LORDS (1920)

was handed over accordingly on May 8. It appears to me
impossible, on these facts, to hold that this handing over by
the respondents of the possession of their hotel was not in
reality done in invitum.

The respondents having done this, and expressly preserved
all their legal rights, they, like good citizens, without prejudice
to those rights, facilitated these officers in taking over the
possession in order to help the Aerial Service to be better
carried on. If anything resembling what has taken place in:
this case had taken place between two citizens, it is obvious
that the most appropriate remedy of the party aggrieved
would have been to sue in trespass for damages. The
respondents cannot proceed by Petition of Right to get redress
for a tort like trespass, for the King can do no wrong, and the
principle of respondeat superior does not apply to the Crown
where a wrong is committed by its officers. It by no means
follows, however, that because the respondents cannot sue
in tort by petition of right they can sue in contract for
compensation for the use and occupation of their premises.

It is no doubt quite true that a private person, or in some
instances a public body, can, as it is phrased, waive a tort and
sue in contract, but that can only be true where both of these
remedies are open to him or it. The aggrieved party may.
then elect which remedy to pursue, and this, though both
causes of action arise out of the same transaction. The case
of a passenger in a railway train who takes and pays for a
ticket to be carried to his destination and is injured in transitu
by the negligence of the company's servants is a familiar
instance of this. He can sue the company in either form of
action. That, however, of course does not apply to a case
where a trespasser enters into and holds possession of a man's
land against his will, while purporting to act under a power
the existence of which the owner challenges, and against the
exercise of which he protests.

The Court of Appeal, as I understand their judgment, held
that the Crown could be proceeded against by Petition of
Right to recover compensation in use and occupation for the
breach of its contract to pay for the use and enjoyment of

A. C. AND PRIVY COUNCIL. 533

the respondents' hotel. And several authorities had been H.L. (E.)
cited to support this view. 1920

Differing—as I do—on this point, from the views of the two Arrornry-
learned Lord Justices who constituted the majority, and eae
entertaining—as I do—the most sincere respect for the sur- cueeek
vivor of those two Lord Justices, as well as for the memory Roya
of the distinguished Lord Justice since unhappily deceased, I eed
feel bound to justify my dissent from their views by an —_ a
examination of the authorities on the point, at greater length,
perhaps, than might otherwise be excusable. These authori-
ties establish, I think, this proposition, that, in order to recover
in the ordinary action for use and occupation, the plaintiff
must prove the existence of an agreement, express or implied,
between him and the defendant, to the effect that the latter
shall at least be the tenant at will of the former of the lands
or premises occupied, and shall pay for that occupation.

In Phillips v. Homfray (1) Bowen L.J., as he then was, said :—

** Actions for use and occupation, according to the better
opinion, have been confined to the class of cases where
defendant is not a trespasser setting up an adverse title,
and where there are no circumstances that negative the
implication of a contract: see Churchward v. Ford (2), per
Pollock C.B.; Birch v. Wright.(3) No doubt the mere
enjoyment by one man of another man's property, real or
personal, may be had under such circumstances as leave
still open, as a reasonable inference, the presumption that
it is taken on the terms of payment, just as a man who takes
a bun from the refreshment counter at a railway station,
takes it on the implied promise to pay for it."

A familiar example of the class of cases in which the circum-
stances negative the implication of such a contract is where a
purchaser enters with the owner's permission into possession
of property sold under a contract of sale, the purchase of
'which subsequently goes off. In Howard v. Shaw(4) Parke B.
said :—

"' Tf the defendant had entered under an agreement for a

(1) 24 Ch. D. 439, 461. (3) (1786) 1 T. R. 378.
(2) 2H. & N. 446. (4) (1841) 8 M. & W. 118, 122.

534

H. L. (E.)
1920

——~
ATTORNEY-
GENERAL

Lord Atkinson.

'HOUSE OF LORDS . (1920)

lease, there is no doubt he would have been a tenant at will
until the lease was granted. Here it may be assumed that
he entered into possession under the agreement for sale,
which was to have been carried into effect by the convey-
ance... . I quite agree, however, that while the agreement
subsisted, the defendant was not bound to pay a com-
pensation for the occupation of the land, because the con-
tract shews that he was to occupy without compensation ....
_ but still he was tenant at will. When the agreement went
off, he still continued tenant at will; but after that, there
was nothing to shew that he was not to pay a compensation
for his occupation, because the stipulated compensation, by
payment of the purchase money, was at an end. From
that time, therefore, he became liable to be sued for such
compensation, in an action for use and occupation."

Alderson B. gave judgment to the like effect, as also did
Palles C.B. in Markey v. Coote. (1)

Even on the assumption that the Crown went into possession
of the hotel, not: by virtue of a legislative title, or by force of
@ paramount power, but by the permission of the respondents,
which, for the reason already given, I think it impossible to
hold, I am at a loss to see how an agreement binding at law
to pay compensation for the occupation can be inferred, in
face of the distinct refusal of Captain Coles in his letter of
May 1, 1916, to pay any compensation whatever ex debito, but
merely ex gratia.

In Churchward v. Ford(2) Pollock C.B. in delivering
judgment said :—

"There are authorities to the effect that where nothing
appears except that one person is entitled to land which
another has occupied and enjoyed, an action for use and
occupation may be maintained, because a contract may
be implied. That explains the decision in - Hellier 'v.
Sillcox. (3) But the taking possession as of right by a dis-
seisor could not be turned into a contract, on the notion
that the trespass may be waived and some imaginary

(1) Ge I. B. 100. L. 149. (2) 2H. & N. 446, 448,
~ (3) (1850) 19 L. J. (Q. B.) 295. .

A. ¢. AND PRIVY COUNCIL.

contract substituted. Here the defendant was in posses-

sion claiming title under Mrs. Foss with whom he in fact

contracted: It cannot therefore be implied that there was

a contract with the plaintiffs."'

It would certainly appear to me that in this case the position
of the Crown in reference to this matter resembles more closely
that of the disseisor whom Pollock C.B. mentioned than it
does that of a person entering with the permission of the
owner of the premises. I now turn to the BE relied
upon by the Court of Appeal.

. The first of these is the case of the Marquis Camden v.
Batterbury (1 ), on appeal from the common pleas. There a
certain builder named J. W. Elliott entered into agreement
-with the landlord of certain lands, the plaintiff in the action,
to build certain houses on these lands, the plaintiff agreeing,
'as soon as one or more of these houses should be erected,
to make a lease to Elliott for a term of years upon certain
'terms of each plot upon which a house was built. By the
articles of agreement Elliott contracted that, until the land
with the buildings upon it should be leased to him, he would
'pay the same yearly rents or sums as were to be received
by the lease when granted. Elliott assigned his interest in
this agreement to the defendant, who took possession of the
lands, erected certain buildings upon them, paid the stipulated
yearly sums, and then assigned his interest to one White.
The action was brought for money claimed to be payable
by the defendant (White) to the plaintiff in respect of the
defendant's use by the plaintiff's permission of certain of the
Jatter's lands and premises. It was held, affirming the judg-
ment of the Court of Common Pleas, that neither Elliott nor
the defendant acquired any interest in the land under the
building agreement, nor was any tenancy from year to year
-ereated thereby, or by the occupation of the lands and the
"payment of the stipulated sums. With all respect, this case
'is, I think, an authority rather against the proposition it was
cited to support than in favour of it. The next case is that
'of Levi v. Lewis (2), affirmed on appeal to the Exchequer

(1) (1860) 7 C. B. (N. 8.) 864. - (2) (1859) 6 C. B. (N. S.) 766.

'535

H.L. (E:)
1920

—— "
ATTORNEY-
pikes see

Dr
KrysEr's
Royvan
-Hovret.

Lord Atkinson.

536

H. L. (E.)
1920

——

ATTORNEY-

GENERAL
V.
DE
KEYSER'S

Roya
Hote.

Lord Atkinson.

HOUSE OF LORDS [1920]

Chamber. (1) There Knight, the superior landlord, let the
subject of the occupation to Levi the plaintiff for a term
of years. Levi underlet to Lewis, the defendant, for the
whole term, leaving no reversion to himself. The interest of
both having expired together, Lewis applied to Knight to
allow him to become his (Knight's) tenant. Knight refused,
and referred to Levi as still his tenant. Lewis continued to
occupy, and Knight, to the knowledge of Lewis, continued
to insist on holding Levi liable. Levi then sued Lewis for use
and occupation of the land since the expiration of the term,
and Levi then paid the rent for that period to Knight, who
accepted it. The trial Judge, Willes J., holding that there was
no evidence to go to the jury of the use and occupation of
the premises by Lewis as Levi's tenant, directed a non-suit.
The Court of Common Pleas held that there was evidence to
go to the jury on an implied contract by Lewis to pay Levi for
the occupation of the premises. Willes J., in delivering judg-
ment, said(2): "' Conceding that the relative position of the
parties would not alone have enabled Levi to bring the action,
yet the conduct of the parties was such that we think there
was evidence from which a jury might infer an understanding
or implied contract between Levi and Lewis, that Lewis should
pay for the occupation of the premises. .... The jury might
have thought that Lewis must have known that he was not
considered as tenant to Knight, but that he was considered
as tenant to Levi, and that Knight and Levi severally shew
by their conduct that they each took the same view of the
case,' adding, however, .that the Court gave no opinion as
to the conclusion to which the jury ought to come. On
appeal to the Exchequer Chamber, Wightman, Crompton,
and Hill JJ. held that the decision of the Court of Common
Pleas was right, and should be affirmed. Bramwell and
Channell BB. thought it was wrong, and should be reversed,
Bramwell B. adding that Martin B. when he left the Court
was very much of his (Bramwell's) opinion. If Lewis
immediately on the termination of the term had told Levi
that he stoutly refused to admit that he was under any legal

(1) (1861) 9 C. B. (N. S.) 872. (2) 6 C. B. (N. 8.) 770.

ALC. AND PRIVY COUNCIL.

liability to pay compensation for his future occupation of
the premises, there might possibly be some resemblance
between this case and the present. As matters stand, there
does not appear to me to be any resemblance whatever
between them.
' The next case is that of Hellier v. Sillcox:(1) In reference
to this case Bowen L.J. in Phillips v. Homfray (2) said :—
"There have been, no doubt, instances in which, nothing
further appearing in evidence but that one person is the
owner of land and that another person had taken possession
of and enjoyed it, an action for use and occupation under

the statute has been upheld: see Hellier v. Sillcow. (1)

In-such cases the inference, in the absence of proof to the

contrary, has been allowed to be drawn, that the enjoyment

was by permission of the rightful owner."

Then follow the passages as to the more correct view
already cited. The two facts: (1.) that the Crown, in my
view, did not enter into possession with the free leave and
consent of the respondents but by the coercion of a superior
power; and (2.) that the Crown, when it did, through its
officers, enter into possession absolutely refused to acknowledge
any legal liability to pay compensation in respect of the use
and enjoyment of the hotel, fundamentally distinguish all
these cases from the present case.

In: my opinion, therefore, a Petition of Right not based
upon the statutes of 1798, 1842 or 1914, or the Regulations
made under them, but merely on such legal liability as arises
'between citizens when one occupies and enjoys the property
of another, with the express or implied permission of that
other to pay compensation for that enjoyment, would, on
the facts of this case, fail. It is an entirely different question
whether on those same facts these statutes and Regulations
do not impose upon the Crown a statutory liability to pay
reasonable compensation, in the form of a rent or otherwise,
for the possession, occupation, use, and enjoyment, acquired
compulsorily, of the respondent's hotel.

The late Master of the Rolls in the following pregnant

(1) 19 L. J. (Q. BS 295. (2) 24 Ch. D. 439, 461.

537

H. L. (E.)
1920

ek
ATTORNEY-
GENERAL
Vv.

Dr
KEYSER'S
Roya
Horet.

Lord Atkinson.

538 HOUSE OF LORDS £1920)

H.L. (E.) passage of his judgment put a rather unanswerable question.
1920 He said :—

'APTORNEY- ""Those powers which the executive exercises without
shai Parliamentary. authority are comprised under the com-
ae prehensive term of the prerogative. Where, however,
seers Parliament has intervened and has provided by statute for

Pee. POwer) previously within the prerogative, being exercised ;
= in a particular manner and subject to the limitations and
provisions contained.in the statute, they can only be so
exercised. Otherwise, what use would there.be in imposing
limitations, if the Crown could at its pleasure disregard

them and fall back on prerogative ? "'

It was not contended, it could not, I think, be successfully
contended, that the Act of 1842 and the Defence of the Realm
Consolidation Act of 1914 (hereinafter referred to as the Act
of 1914) do not bind the Crown, seeing that they deal with
what is the special trust and duty of the King to provide for—
namely, the defence and security of the realm—and prescribe
the mode in which, and the methods by which, land or its
use is to be acquired by the Crown's officers, the Ordnance
Department, the Admiralty, the Army Council, the members
of His Majesty's forces, and other persons acting on his behalf,
for these very purposes. Whether one applies the test
suggested in Bacon's Abridgement, 7th ed., vol. vii., 462,
quoted, apparently, with approval by Jessel M.R. in Hx parte
Postmaster-General (1) or that laid down by Lord Lindley
in Wheaton v. Maple (2), that the Crown is never bound by a
statutory enactment unless the intention of the Legislature
to bind the Crown is clear and unmistakable, I think these
statutes and Regulations satisfy both those tests. Before
dealing with them I desire to express my complete concurrence
in the conclusion at which the late Master of the Rolls arrived
as to the result of the searches made by the Crown touching
the nature and particulars of the commissions issued in early
times, in order to determine what sums were paid ex gratia
where lands were taken by the Crown or-its officers for the
'defence of the realm, and the occupation of them connected

-(1) (1879) 10 Ch. D. 595, 601. (2) [1893] 3 Ch. 48, 64.

A. C. AND PRIVY COUNCIL.

therewith by the military. The conclusion, as I understand
it, is this: that it does not appear that the Crown has ever
taken for these purposes the land of the subject without paying
for it, and that there is no trace of the Crown having, even
in the times of the Stuarts, exercised or asserted the power
or right to do so by virtue of the Royal Prerogative. I also
concur with the conclusion at which that distinguished and
learned judge arrived as to the purpose, object, and effect
of the body of legislation passed from the year 1708 to the year
1798, enabling land, or the use of it, to -be compulsorily
acquired by the Crown on the terms of the owner being paid
for it.

I further concur with him in his analysis of the provisions
of the Acts passed in 1803, 1804, 1819, dealing with the public
service. I agree that in all this legislation there is not a
trace of a suggestion that the Crown was left free to ignore
these statutory provisions, and by its unfettered prerogative
do the very things the statutes empowered the Crown to
.do, but free from the conditions and restrictions imposed
by the statutes.

It is quite obvious that it would be useless and meaningless
for the Legislature to impose restrictions and limitations
upon, and to attach conditions to, the exercise by the Crown
-of the powers conferred by a statute, if the Crown were free
at its pleasure to disregard these provisions, and by virtue
of its prerogative do the very thing the statutes empowered
ittodo. One cannot in the construction of a statute attribute
to the Legislature (in the absence of compelling words) an
intention so absurd. It was suggested that when a statute
is passed empowering the Crown to do a certain thing which
it might theretofore have done by virtue of its prerogative,
the prerogative is merged in the statute. I confess I do not
think the word "' merged "' is happily chosen. I should prefer
'to say that when such a statute, expressing the will and
intention of the King and of the three estates of the realm,
is passed, it abridges the Royal Prerogative while it is in force
to this extent: that the Crown can only do the particular

thing under and in.accordance with the statutory provisions,

539

H. L. (E.)
1920

ae

ATTORNEY-
GENERAL

Vv

Dr

KrYSER'S
Royab
HOTEL.

Lord Atkinson.

540 HOUSE OF LORDS [1920]

H.L. (E.) and that its prerogative power to do that thing is in abeyance.
1920 Whichever mode of expression be used, the result intended
Arrorney- to be indicated is, I think, the same—namely, that after the
ru ""* statute has been passed, and while it is in force, the thing it
Sate empowers the Crown to do can thenceforth only be done
Royat by and under the statute, and subject to all the limita-

Horen. |. ae ee hes Be
ieee tions, restrictions and conditions by it imposed, however
re unrestricted the Royal Prerogative may theretofore have

been. .

If that be so, as I think it is, then the first question to
be determined is what particular things the Defence Act of
1842, which is really the culmination of the legislation passed -
from 1800 downwards, enacts: what the Defence of the
Realm Consolidation Act of 1914, coupled with the Regulations
issued under it, empowers the Crown to do, and what are the
conditions, if any, imposed upon the doing of it.

By s. 2, sub-s. 2, of the Defence of the Realm Consolidation
Act, 1914 (6 Geo. 5, c. 8), passed on November 27, 1914,
the two previous statutes (4 & 5 Geo. 5, c. 29,and 4 & 5 Geo. 5,
c. 63) are repealed, but it is provided that nothing
in that repeal shall affect any orders made thereunder,
and that all such Orders in Council shall, until altered
or revoked by an Order in Council under this Act (ie.,
5 Geo. 5, c. 8), continue in force and have effect as if made
under the latter Act. :

By s. 1, sub-s. 1, it is provided that during the continuance
of the then present war His Majesty may issue regulations
for securing the public safety and the defence of the realm,
and as to the powers and duties for that purpose of the
Admiralty and Army Council and the members of His
Majesty's forces and other persons acting on his behalf, and
may by such regulations authorize the trial by court-martial,
or, in cases of minor offences, by Courts of Summary Juris-
diction, and punishment of persons committing offences against
the Regulations, and in particular against any of the pro-
visions and Regulations designed for the five particular purposes
there mentioned. The Regulations must be designed to
secure the public safety and defence of the realm. Sub-s. 2

A. C. AND PRIVY COUNCIL.

provides that any such Regulations—that is, any Regulations
issued to effect those two objects—may provide for the sus-
pension of any restrictions on the acquisition or user of land,
or the exercise of the power of making by-laws, or any other
power under the Defence Acts, 1842 to 1875, or the Military
Lands Acts, 1891 to 1903. There is no independent express
provision in this Act of 1914 enabling the Crown, in the
emergency of the war, to acquire land or the use of it for the
purpose of securing the public safety and the defence of the
realm. It must, therefore, I think, be assumed that, by reason
of the provisions of this second sub-section, it was designed
and intended by the Legislature that the ample powers for
the acquisition of land or the use of it, either by agreement
of purchase or compulsorily, conferred upon the Crown by
the Act of 1842, should be availed of. Whether the land or
its use were presumed to be acquired by voluntary. purchase
under its sixteenth section, or compulsorily under its nineteenth
section, the owner in each case was to be paid or compensated
for what he parted with.

In addition, by its twenty-third section, a further restriction
was placed upon the exercise of the power of compulsory
purchase. That section enacted that no lands or building
or other hereditament should be taken without the consent
of the owner unless the necessity or expediency of taking
it should be certified by the Lord-Lieutenant of the county
in which the land or hereditament lay, or in the alternative,
by one or more of the other public functionaries named,
and unless the taking of the land or building or other here-
ditament should be authorized by a warrant signed by the
Lord High Treasurer or one or more of the Commissioners of
the Treasury of the United Kingdom for the time being.

The methods of modern warfare have so vastly changed
since this Act of 1842 was passed, that, if it was availed of, as
it stood, by the Crown in the course of the late war, the
restrictions might seriously delay and embarrass the Crown
in taking, through its officers, adequate measures to secure
the public safety and the defence of the realm, while if the
restrictions were removed its amended machinery might be

541

H. L. (E.)
1920

—_——
ATTORNEY-
GENERAL
Vv.

Dr
KEYSER'S
Roya
Horvret,

Lord Atkinson.

$42 . HOUSE OF LORDS [1920]

H.L. (E.) adequate for the occasion. It is apparently with this view
1920 that sub-s. 2 of the Act of 1914 is confined to the removal
Arrorney- of those restrictions. There is no attempt to set up new
a machinery. The powers conferred by the Act of 1842, thus
ee unfettered, are to be allowed to remain operative and available
oan for use. The words of sub-s. 2, moreover, are "restrictions
ce the acquisition or user of land." When those restrictions
oe are examined it is, in my mind, clear that the legal obligation
to pay for the land or its use, temporarily or permanently
acquired, is not a restriction upon the acquisition of either,
or a condition precedent to its acquisition. There is nothing
in the statute to suggest that the liability to pay is to be
affected or taken away by the Regulations which may beissued,
and if the Regulations purported to do that I doubt if they
would not, having regard to the wording of sub-s. 2, be ultra
vires. Neither the public safety nor the defence of the realm
requires that the Crown should be relieved of a legal liability |
to pay for the property it takes from one of its subjects.
The recognized rule for the construction of statutes is that,
unless the words of the statute clearly so demand, a statute
is not to be construed so as to take away the property of.a
subject without compensation. Bowen L.J. in London and
North Western Ry. Co. v. Evans (1) said: '' The Legislature
cannot fairly be supposed to intend, in the absence of clear
words shewing such intention, that one man's property shall
be confiscated for the benefit of others, or of the public,
without any compensation being provided for him in respect
of what is taken compulsorily from him. Parliament in
its omnipotence can, of course, override or disregard this
ordinary principle .... if it sees fit to do so, but, it is not
likely that it will be found disregarding it, without plain
expressions of such a purpose."" There is not in the Act of
1914 or in the Regulation framed under it any indication

of such a confiscatory purpose.
The Regulations 2, 2a, do "not expressly somenlie any
restrictions on the acquisition of or user of land imposed by
the Defence Act of 1842. The Regulations commence with

(1) [1893] 1 Ch. 16, 28.

A.C. AND PRIVY COUNCIL. 543

the statement that the enjoyment of property will be inter- H.L. (E.)

fered with as little as may be permitted by the exigencies of 1920

the measures required to be taken for securing the public Arrorney- "

safety and the defence of the realm; and provide that the SE ra,

Admiralty, Army Council and Air Council and Members of coe

the Naval and Military Forces, and the other persons executing Roya

the Regulations shall, in carrying them into effect, observe HONE:
oe ° eat aee Lord Atkinson,

these general principles. Thus by Regulation 2 it is further = —

provided that the Naval and Military Authority (defined in

Regulation 62), or any person duly authorized by him, may,

when necessary for the purpose expressly indicated—namely,

for securing the public safety and defence of the realm—do

several things involving the taking possession of land and user

of the real property of the subject without any of the pre-

liminaries prescribed by the Defence Act of 1842; for

instance, he may take possession of any land, construct

military roads thereon, remove any trees, hedges or fences

therefrom ; take possession of any buildings or other property,

including works for the supply of gas, electricity or water, or

any sources of water supply; take such steps as may be

necessary for placing any buildings or structures in a state

of defence ; cause any buildings to be destroyed, and finally

do any other act involving interference with private rights of

property for the aforesaid purposes. As to real property, no

preliminary procedure of any kind is prescribed, and no mention

whatever is made as to payment or compensation in respect

of it. As regards personal property, however, it is provided

by the last clause of Regulation 2a that if, after the competent

naval authority has issued notice that he has taken or intends

to take possession of any movable property in pursuance of

that Regulation, any person, having control of any such

property, sells, removes or secretes it without the consent

of the competent. military authority, he shall be guilty of

an offence against the Regulations. Presumably some such

notice should be given in the case of real property, though

that is not expressly provided. Then one finds a most sig-

nificant provision in Regulation 23—namely, that where any

goods, the possession of which has been so taken, are required

544 HOUSE OF LORDS [1920}

H.L. (E.) by the Admiralty, Army Council or Air Council or the Minister

1920 of Munitions, the price to be paid for them is to be determined

Arrorney- in the manner therein provided. These Regulations on their

ore """ very face justify an immediate taking possession of the real

eee s property of the subject without any preliminary formality or

me procedure. They are in absolute conflict with the provisions

Telia teil of the Defence Act of 1842 imposing restrictions on the

oom acquisition of land or its use, and prescribing formalities.

The two cannot be reconciled, and the irresistible conclusion

must, therefore, be that the earlier provisions have been
suspended by the later.

Again it appears to me to be almost inconceivable that the

Crown should claim the right to do such things as prostrate

fences, take possession of the great industrial works mentioned,

or cause any buildings to be destroyed, without being bound

at law to compensate the owners therefor. The fact that no

provision to a contrary effect has been introduced into these

Regulations in reference to real property, while one is introduced

touching goods acquired, suggests, I think, that the provisions

of the Defence Act of 1842 touching payment or compensation

for real property taken or used were left to apply. There is

nothing in these Regulations inconsistent with their being so

left. Much reliance was placed by the Crown on the Defence

of the Realm (Acquisition of Land) Act, 1916 (6 &7 Geo. 5,

c. 63). First, because in its first section it recognizes that.

possession of land may be taken by a Government department,

for the purposes connected with the war, in exercise of a

prerogative right of His Majesty, as well as under any statute:

relating to the defence of the realm, or by agreement, or other-

wise ; and it enables this department to continue in possession

of the land for any period not exceeding two years after the:

termination of the war. And, second, because by the same.

section it provides that the department which continues to

occupy the lands after the termination of the war shall pay a.

rent in respect of this continued occupation. As the Regula-

tions to be issued under the Defence of the Realm Consolidation.

Act, 1914, can only be issued and be operative during the war,

of course they could not deal with possession of land after

A. C. AND PRIVY COUNCIL.

the war had ended, and therefore further possession had to
be provided for; but it is difficult to see upon what just or
rational principle the owner of land should be paid a rent for
his land in respect of the possession of it, while held by a
department after the war has terminated (obviously for the
purposes of winding up the business of the Department), and
not paid a rent or compensation for its use and possession
by a department of the State while the war continued. This
last provision it would appear to me hinders rather than helps
the contention of the Crown. I should be sorry to attempt
to lay down any rule of general application by which the limits
of the Royal Prerogative might be determined. That is not
necessary, in my view, in this case. In my opinion in this
case a statutory liability is imposed upon the Crown to pay
for the use and occupation of the respondent's property. I
base that opinion upon the facts of the case and the provisions
of the legislation upon which the officers of the Crown justified
their action. The Attorney-General in his able argument
relied much on the word " temporary ''—'"' temporary use,"
"temporary occupation."" What does the word "' temporary "'
mean in such a connection? It might cover years, yet mean
only the duration of the war. In this case it covered over
three years. At the beginning or early stages of a war its
duration never could be prophetically fixed, even approxi-
'mately. It has already been decided in your Lordships'
House in several instances that contracts whose performance
is interrupted by war are terminated because the duration of
the interruption cannot be, even approximately, foretold ;
so that the word '' temporary "' would in the result mean in
most cases of this kind the duration of the war, which might
be years.

The only remaining point is whether a Petition of Right will
lie in respect of the statutory liability for an unliquidated
amount, not a fixed sum. In my opinion, based on the
authority of Reg. v. Doutre(1) and Windsor, &c., Ry. Co. v.
Reg.(2), there is no valid distinction between a sum due under
a contract or grant made by or on behalf of the Crown as

(1) (1884) 9 App. Cas. 745. (2) 11 App. Cas. 607.
A.C. 1920. BH 230 3

545

H. L. (E.)
1920

ATTORNEY-
GENERAL
Vv.

Dr
KrysER's,
Royab
Hore..

Lord Atkinson.

546 HOUSE OF LORDS [1920]

H.L. (E.) mentioned by Erle C.J. in Jobin v. Reg. (1), and such
1920 a liability, due for the lawful and authorized use and

ee enjoyment by the officer of the Sovereign, on the Sovereign's
ENERAL

= behalf, of the lands or buildings of a subject. Both seem
ee i equally untainted by tort, both equally untouched by the
Royat principle that the King can do no wrong.
I therefore think that the appeal fails, that the judgment
of the Court of Appeal was right and should be affirmed, and

this appeal be dismissed with costs.

Word Atkinson.

Lorp Movtron. My Lords, the present appeal is in the
matter of Petition of Right presented by De Keyser's Royal
Hotel, Ld., the owners of the well-known hotel of that name,
for compensation for the compulsory occupation of certain
parts of their premises by the War Office acting in the name
and on behalf of the Crown for purposes connected with the
defence of the realm during the late war. The Crown contests
the right of the suppliants to compensation for such compulsory
occupation, and pleads that it was an exercise of the Royal
Prerogative, and gave no right of compensation.

The facts of the case are not substantially in dispute, the
real issue being a question of law of great and general
importance. I shall therefore deal very shortly with the
evidence as to what actually took place at the time when
occupation of the premises was taken by the Crown.

In April, 1916, the authorities at the War Office came to
the conclusion that the premises in question were the most
suitable for housing the heads of the department having
charge of the Army Air Service, and accordingly they, by
a letter dated April 18, 1916, instructed the Office of Works
to make immediate arrangements to acquire them for that
purpose. Negotiations were thereupon commenced between
the Office of Works and Mr. Whinney (who then represented
the suppliants' interests) for such acquisition. It was at
first proposed that they should be acquired voluntarily
at an agreed rent, but as the parties differed as to the amount
of this rent the Board of Works abandoned the negotiations,

(1) (1864) 16 C. B. (N. S.) 310.

ACG! AND PRIVY COUNCIL.

and informed Mr. Whinney that they were about to '"' com-
municate with the War Office with a view to the total premises
(excluding the shops) being . under eee Defence
of the Realm Acts in the usual manner.'

The War Office agreed to this course being taken, and on
May 1 the Office of Works, by their direction, wrote to
Mr. Whinney a letter, the material parts of which are
as follows :—

'" DE Keryser's Royat Horen, E.C.
'"* Dear Sir,

'"'T am instructed by the Army Council to take possession
of the above property under the Defence of the Realm
Regulations (excluding the shops, the other portions sub-let,
and the wine cellars). .... We do not propose to take pos-
session until the 8th inst., but I shall be glad if you will
accept this as formal notice of the Department's intention
to take possession on that day."

In accordance with this notice a representative of the
War Office attended on the 8th inst., and took possession
of the premises, which were forthwith occupied by the
military authorities, and continued to be so occupied throughout
the period of the war. It is in respect of this occupation
that the suppliants claim compensation.

The representatives of the Crown have throughout insisted
that possession was taken of the premises under the Royal
Prerogative, and that therefore the suppliants were not
entitled as of right to any payment by way of compensation,
but that their sole remedy was to apply to a certain
Commission, named the Defence of the Realm Losses
Commission, for an ex gratia allowance in respect of the losses
that they would suffer by the occupation of their premises
on behalf of the Crown. This Commission was appointed
by Royal Order on March 31, 1915, "to inquire and
determine and to report what sums (in cases not otherwise
provided for) ought in reason and fairness to be paid to
applicants . . . . in respect of direct and substantial loss and
damage sustained by them by reason of interference with
their property or business in the United Kingdom through

202 3

547

H.L. (E.)
1920

eee
ATTORNEY-
GENERAL
@

Der
KEYSER'S
Royab
Hore.

Lord Moulton.

548

H. L. (E.)
1920

——_

ATTORNEY-

GENERAL
wv.

DE
KEYSER'S
Roya
Hore.

Lord Moulton.

HOUSE OF LORDS [1920]

the exercise by the Crown of its rights and duties in the
Defence of the Realm." It is evident that the existence
of the powers of this Commission can have no bearing upon
the question raised by this Petition of Right. Its jurisdiction
is restricted to '' cases not otherwise provided for," and the
whole basis of this Petition of Right is that the case is already
provided for. The suppliants claim that they have a legal
right to the compensation, and it is that right which they
are seeking to enforce by this petition.

In the petition the suppliants put forward an alternative
ground for their claim—namely, that the premises were given
up to the Government by them voluntarily under circumstances
which would in law imply a contract on the part of the Crown
to pay for use and occupation of the premises. Without
discussing the conditions under which such a contract may be
implied, it suffices to say that in my opinion it is abundantly
clear that the premises were not surrendered voluntarily
but were taken compulsorily. Both parties in their letters
written at the time treat it as a case of commandeering,
as it in fact was, and Mr. Whinney protested strongly against
the action of the Government in the matter. In short, he
did everything to prevent their taking the premises short of
refusing to give them up unless the Government used physical
force to obtain anentry. Had he gone further in his resistance
than he actually did he would clearly have put himself in
the wrong, for whatever be the suppliants' right as to com-
pensation, the Government were undoubtedly entitled to
commandeer the premises if they needed them for the purposes
of the defence of the realm.

In deciding the issues raised herein between the Crown
and the suppliants, the first question to be settled in the
present case might be, to my mind, treated as a question of
fact—namely, Was possession in fact taken under the Royal
Prerogative or under special statutory powers giving to the
Crown the requisite authority? Regarded as a question of
fact, this is a matter which does not admit of doubt. Pos-
session was expressly taken under statutory powers. The
letter of May 1, 1916, from the representative of the Army

A. C. AND PRIVY COUNCIL.

Council to Mr. Whinney says: 'I am instructed by the
Army Council to take possession of the above property under
the Defence of the Realm Regulations." It was in response
to this demand that possession was given. It is not competent
to the Crown, who took and retained such possession, to deny
that their representative was acting under the powers given
to it by these Regulations, the validity of which rests entirely
on statute.

It was not a matter of slight importance whether the demand
for possession purported to be made under the statutory
powers of the Crown or the Royal Prerogative. Even the most
fervent believer in the scope of the Royal Prerogative must
admit that the powers of the Crown were extended by the
Defence of the Realm Consolidation Act and the Regulations
made thereunder. It was for that purpose that the Act
-was passed and the Regulations made. But even if that
were not so there was a manifest advantage in proceeding
under the statutory powers. It rendered it impossible for
the subject to contest the right of the Crown to take the
premises by the exercise of the powers given by the statute.
The statutory powers of the Crown were formulated in the
Regulations in a manner which was beyond mistake. For
example, the Regulations gave to the Crown the power "to
take possession of any buildings." Mr. Whinney therefore
was clearly bound to surrender the premises when demanded.
It would have been a very different matter had the demand
been made under the Royal Prerogative. This litigation
itself is enough to show how debatable a proposition it would
have been if the claim had been made that the ancient
prerogative of the Crown covered the taking of a hotel in
London for the more comfortable housing of a military staff
and its clerks and typewriters. All such questions were
put at rest by the Legislature giving express statutory
authority by the Regulations. There could henceforward
be no doubt that the Crown possessed the powers formulated
in the Regulations, and this was the object of the legislation.
But when the Crown elects to act under the authority of a
statute, it, like any other person, must take the powers that

549

H. L. (E.)
1920

res
ATTORNEY-
GENERAL
OP
Dr
KErYSER'S

Roya
Hote.

Lord Moulton.

550

H. L. (E.)
1920

pe
ATTORNEY-
GENERAL
Vv.

DE
KEYSER'S
Royvab
Hove..

Lord Moulton.

HOUSE OF LORDS [1920]

it thus uses cum onere. It cannot take the powers without
fulfilling the condition that the statute imposes on the use of
such powers.

The Defence of the Realm Consolidation Act, 1914, com-
menced by enacting that '' His Majesty in Council has power
to issue regulations for securing the public safety and the
defence of the realm, and as to the powers and duties for that
purpose of the Admiralty and Army Council and of the Mem-
bers of His Majesty's forces and other persons acting on his
behalf."" It then goes on to particularize certain subjects to
which these Regulations may relate, and in sub-s. 2 it deals
with the question of the acquisition of land as follows :—

'"' Any such regulations may provide for the suspension
of any restrictions on the acquisition or user of land or the
exercise of the power of making bye-laws, or any other
power under the Defence Acts, 1842 to 1875, or the Military
Lands Acts, 1891 to 1903."'

The Defence Act, 1842 (which may be taken to represent
the whole of the Defence Acts inasmuch as the later Acts
only modify it in details which do not concern the matter in
this case), is the last of a series of Acts regulating the acquisition
of lands and interests in land for purposes of the defence of
the realm. These Acts commence in 1708, and occur at
intervals up to 1842. At first they related only to land for
fortifications at places mentioned in the Act, but later they
became more general in their character, and authorized the
Crown to select suitable land and acquire it. In all cases
compensation was given to the owners for the land taken.
But it is not necessary to dwell on their provisions, seeing that
the Defence Act, 1842, repealed all such existing Acts and laid
down general provisions which have regulated since that time
the procedure for the acquisition by the Crown of land for
such purposes.

This Act gives very wide powers to the Crown. It has
unrestricted powers of selection of the necessary lands, build-
ings, etc., to be taken. It contemplates in the first instance
voluntary purchase, but, if that cannot be arranged, then the
lands, etc., may be acquired compulsorily subject to certain

A. C. AND PRIVY COUNCIL.

certificates being obtained as to the necessity or expediency
of the acquisition or in case of actual invasion. I am satisfied
that it enables the Crown to acquire either the property or the
possession or use of it as it may need. In all cases com-
pensation is to be paid by the Crown, the amount to be settled
by a jury.

The Regulations and the Act under which they are made
must, of course, be read together, and it is in my opinion a
sound inference from the language of sub-s. 2 that the Legis-
lature intended that, so far as the acquisition or user of land
was concerned, the Regulations should take the form of action
under the Defence Act, 1842, facilitated by the suspension
of some or all of the restrictions which it imposes. The
particular provisions relating to the taking of land or buildings
are to be found in s. 2 of the Regulations. They empower the
military authorities to take possession of any land or of any
buildings where for the purposes of the defence of the realm
it is necessary so to do. These are very wide powers, but
so general are the powers of the Defence Act, 1842, that they
would be attained by simply suspending the restrictions
therein contained and allowing its powers to be put in force
without them. Reading therefore this Regulation with sub-s. 2
of the Act, I think it is clear that in the case of acquisition and
user of land under the Regulations we ought to consider them
as authorizing action being taken under the Defence Act, 1842,
save that no restrictions therein appearing are to be enforced.
The duty of paying compensation cannot be regarded as a
restriction. It is.a consequence of the taking, but in no way
restricts it, and, therefore, as the acquisition is made under
the Defence Act, 1842, the suppliants are entitled to the
compensation provided by that Act.

On these grounds therefore I am of opinion that the aipniants
are entitled to our judgment in this appeal. But it would
be unsatisfactory in a case of such general importance to
leave unconsidered the question whether, apart from the
fact that the Crown expressly purported to be acting under
powers given to it by statute, the suppliants' claim could be
maintained. |

551

H. L. (E.)
1920

ey
ATTORNEY-
GENERAL
v.

Der
KEYSER'S
Roya
Hove.

Lord Moultor.

552

'HL. (E.)
1920

Sams
-ATTORNEY-
GENERAL
Vv,

DE
IX EYSER'S
Royvau
Hore..

Lord Moulton.

HOUSE OF LORDS [1920]

To decide this question one must consider the nature and
extent of the so-called Royal Prerogative in the matter of
taking or occupying land for the better defence of the realm.
I have no doubt that in early days, when war was carried on
in a simpler fashion and on a smaller scale than is the case in
modern times, the Crown, to whom the defence of the realm
was entrusted, had wide prerogative powers as to taking or
using the lands of its subjects for the defence of the realm
when the necessity arose. But such necessity would be in
general an actual and immediate necessity arising in face of
the enemy and in circumstances where the rule Salus populi
suprema lex was clearly applicable. The necessity would in
almost all cases be local, and no one could deny the right of
the Crown to raise fortifications on or otherwise occupy the
land of the subject in the face of the enemy, if it were necessary
so to do.

Nor have I any doubt that in those days the subjects who
had suffered in this way in war would not have been held to
have any claim against the Crown for compensation in respect
of the damage they had thus suffered. It must not be forgotten
that in those days the costs of war were mainly borne by the
Royal Revenues, so that the King himself was the heaviest
sufferer. The limited and necessary interference with the
property of the subjects, of which I have spoken, would have
been looked upon as part of the damage done by the war
which it had fallen to their lot to bear, and there is no reason
to think that anyone would have thought that he had a claim
against the Crown in respect of it. Certainly no trace of any
such claim having been put forward is to be found.

This state of things lasted for several centuries. The records
of the preparations made by Queen Elizabeth to resist the
attack of the Spanish Armada, which are contained in the
papers in this case, show that it was in full force in her time.
I am not surprised that the careful (though necessarily incom-
plete) researches into the Public Records have found no
precedent for the claim as of right against the Crown, for acts
done under its prerogative in occupying or using land under
the stress of such a necessity as I have spoken of, and I do

A. ¢. AND PRIVY COUNCIL.

not think that a complete investigation would have met with
greater success.

But in the last three centuries very important changes have
occurred, which have completely altered the position of the
Crown in such matters. In the first place, war has become
far more complicated, and necessitates costly and elaborate
preparations in the form of permanent fortifications, and
otherwise, which must be made in times of peace. In the
second place, the cost of war has become too great to be borne
by the Royal Revenues, so that the money for it has to come
from the people through the Legislature, which long ago
assumed, and has since retained, the command of all national
resources. In the third place, the feeling that it was equitable
that burdens borne for the good of the nation should be distri-
buted over the whole nation and should not be allowed to fall
on particular individuals has grown to be a national sentiment.
'The effect of these changes is seen in the long series of statutes
relating to the occupation of land for the purposes of fortifica-
tions or otherwise for national defence, to which I have
already referred and which cover the last two centuries. In
all these Acts provision was made for compensation to the
individual whose lands were taken or used, and indeed there is
clear evidence that for many years, prior to the first of these
statutes, the Crown acted on this principle. It is not necessary
to examine these Acts in detail. They were mostly local in
their operation and frequently temporary, and usually related
to specific fortifications which it was proposed to erect.

But towards the beginning of the last century the Acts take
'on a more general and permanent form, and eventually they
culminate in the Defence Act, 1842, which gives to the Crown,
through its properly appointed officials, the widest possible
powers of taking land and buildings needed for the defence of
the realm undera minutely defined procedure set out in the Act.
It contemplates as I have already said that the acquisition
shall, as a rule, be by agreement, but it gives ample powers
of compulsory acquisition if the necessity be duly vouched,
or in case of an actual invasion. In all cases compensation
for the taking or using of the land by the Crown is to be

553

H. L. (E.)
1920

ae
ATTORNEY-
GENERAL
v.

Dr
KEYSER'S
Roya
Horve..

Lord Moulton.

554

H. L. (E.)
1920

tes
ATTORNEY-
GENERAL
UY.

Ds
KEYSER'S
Roya
Horve..

Lord Moulton.

HOUSE OF LORDS [1920}

assessed by a jury who (in the words of the Act) have to find
"' the compensation to be paid, either for the absolute purchase
of such lands, buildings, or other hereditaments, or for the
possession or use thereof, as the case may be."

This Act was not limited either in time or place, and with
small modifications, which are not material for our present.
purpose, is still in force.

What effect has this course of legislation upon the Royal
Prerogative ? I do not think that it can be said to have
abrogated that prerogative in any way, but it has given to the
Crown statutory powers which render the exercise of that
prerogative unnecessary, because the statutory powers that
have been conferred upon it are wider and more comprehensive
than those of the prerogative itself. But it has done more than
this. It has indicated unmistakably that it is the intention
of the nation that the powers of the Crown in these respects
should be exercised in the equitable manner set forth in the
statute, so that the burden shall not fall on the individual,
but shall be borne by the community.

This being so, when powers covered by this statute are
exercised by the Crown it must be presumed that they are so
exercised under the statute, and therefore subject to the
equitable provision for compensation which is to be found in
it. There can be no excuse for reverting to prerogative
powers simpliciter—if indeed they ever did exist in such a
form as would cover the proposed acquisition, a matter which
is far from clear in such a case as the present—when the
Legislature has given to the Crown statutory powers which
are wider even than anyone pretends that it possessed under
the prerogative, and which cover all that can be necessary
for the defence of the nation, and which are moreover
accompanied by safeguards to the individual which are in
agreement with the demands of justice. Accordingly, if the
commandeering of the buildings in this case had not been
expressly done under statutory powers, I should have held
that the Crown must be presumed to have acted under these
statutory powers, and thus given to the subject the statutory
right to compensation.

A. C. AND PRIVY COUNCIL.

In the argument for the Crown reference was made to the
Defence of the Realm (Acquisition of Land) Act, 1916. This
Act was passed subsequently to the taking of the suppliants'
lands, and therefore has no bearing on the question before
this House. There is nothing in it which purports to take away
any right already acquired by the suppliants, and, if it modifies
in any way the quantum of the compensation, that is a matter
for the tribunal which will have to assess it, and is not relevant
to the present appeal. I am therefore of opinion that the
suppliants are entitled to the declaration in the form approved
of by the Court below, and that this appeal should be dismissed
with costs.

Lorp Sumner. My Lords, the petition alleges in substance
two rights to compensation, one for a rent for the use and
occupation of this hotel, of which the Crown took possession
with Mr. Whinney's permission, the other for a fair rent as
compensation because he voluntarily delivered possession,
though protesting against the rights then alleged and
maintaining his own claims of right, whatever they might be.

The answer and plea, beside traverses, allege an exercise
of the Royal Prerogative for the defence of the realm and also
rely on the Defence of the Realm Consolidation Act, 1914,
and the Regulations issued thereunder. Mention is made of
an offer to pay whatever the Defence of the Realm Losses
Commission might award, but I think this topic has no
relevance. The payment would have been none the less an
ex gratia payment, though the sum to be paid had been cal-
culated under the forms of a judicial proceeding. Its
acceptance would have involved a waiver of the suppliants'
alleged right ; its refusal cannot be an answer to that right,
if they can establish it.

Another introductory argument may be mentioned to be
put aside. The appellant, as I understand it, contends that
what was done was done under the prerogative and not
otherwise. If the prerogative was exceeded then every
servant of the Crown who used the premises would be personally
guilty of trespass, and trespass being the suppliants' real

555

H. L. (E.)
1920

——_~
ATTORNEY-
GENERAL

Lord Moulton.

556

H. L. (E.)
1920

——

ATTORNEY-

GENERAL

HOUSE OF LORDS [1920]

remedy, the Crown succeeds. It is the typists and the clerks
who are liable. If, on the other hand, the prerogative was
not exceeded, the Crown succeeds again. The singularity of
this result certainly invited criticism, and I was at first inclined
to think that there might be an answer analogous to the rule
of waiving a tort and suing on an implied assumpsit. When
a civil right may be vindicated in more ways than one, there
is a choice of remedies: Rodgers v. Maw(1); nor does it
necessarily follow that this choice only arises between such
remedies as are available against one and the same party.
If the servant of a company, acting ultra vires the company,
converts a stranger's chattel, and, having sold it, pays the
proceeds into the company's account as its servant, I suppose
an action for conversion would lie against the servant and for
money had and received against the company: cf. Smith v.
Hodson. (2) I have, however, come to the conclusion that
no real advantage will be gained by pursuing arguments
turning on forms of actions, for this reason. The suppliants
must make out their right, and when they allege a right
under the Defence Acts they negative any wrong done in the
name of the Crown. There was no trespass by the clerks and
the typists. They acted on a possession lawfully taken by
the Crown, but a possession taken upon terms, and those
terms were such as gave the suppliants a right to compensa-
tion. The only question is whether there is a statutory right
against the Crown under the Defence Acts.

In terms the Crown purported to requisition under the
Defence of the Realm Acts, and, on the correspondence, I
think that there was no such request by the Crown for leave
to occupy, followed by consent on the part of the respondents,
as would support a claim to a quantum meruit compensation
or rent apart from the statutes. There was nevertheless
such assent as prevents the occupation from having been taken
wholly in invitos, so as to leave the respondents no position
but that of the sufferer of a wrong. Obviously Mr. Whinney's
duty and interest alike impelled him to insistence on compen-
sation, not to resistance to taking possession. It was money,

(1) (1846) 15 M. & W. 444, 448. (2) (1791) 4'T. R. 211.

A. C. AND PRIVY COUNCIL.

not the hotel, that he wanted, and it does not matter whether
- he knew or not on what legal ground to put his claim. The
question does not really turn on permission or submission.
On the facts he cannot say that he so gave possession as to
imply a contract for rent, but I see nothing in them to exclude
his assertion of a right to compensation, if he can establish
that right in law.

The Crown has throughout purported to act on statutory
rights (whether fully or correctly referred to or not), and the
prerogative has not been vouched except in argument in the
present case. I do not mean that it is not open to the Law
Officers to rely on the prerogative now, or that I assume the
writer of the letter dated April 29, 1916, to have had any
authority to bind the Crown by an election between its
statutory and its prerogative rights. If, however, under the
statutes, including the Defence of the Realm Acts, which deal
with taking buildings for the public safety and the defence
of the realm, the Crown had the power to requisition this
building on terms as to compensating the respondents, I
think it cannot contend now, that by the course taken the
exercise of statutory powers was excluded and that none were
in fact exercised.

To begin with 1914, the question arises, whether the
premises could have been acquired simply under the Defence
of the Realm Consolidation Act, 1914 and the Regulations
made thereunder, to the exclusion of the Defence Acts and so
to the exclusion of any right to compensation, or whether, if
statutory powers were exercised at all, they must have included
the powers (and the obligations) for which these Acts provided.
I think that no real importance attaches to the rearrangement
of s. 1, which was made when the statute of November 27, 1914,
superseded that of August 8. The Defence of the Realm
Consolidation Act, 1914, does not purport to embody in the
form of an enactment the Crown's existing prerogative. The
Act empowers the Crown to issue Regulations. Now there is
no prerogative to make Regulations, though it may be that
some of the things, which may be regulated under the Act,
might also be done under the prerogative. It is, however,

557

H. L. (E.)
1920

. -——
ATTORNEY:
GENERAL
Vv.

DE
KEYSER'S
Royvan
Hortet.

Lord Sumner,

558

H.L. (E.)
1920

55
ATTORNEY-
GENERAL
v.

Dz
KErYSER'S
Roya
Horvet.

Lord Sumner.

HOUSE OF LORDS {1920]

also clear that some things, which may be validly ordered
under Regulations under the Act, could not have been done
under the pre-existing prerogative.

Further, under this Act alone no building could be requisi-
tioned, unless and until some Regulation had been issued to
that effect. Two kinds of Regulations might be issued, one
for the purpose of securing the public safety and the defence
of the realm, and the other in order to alter existing Acts of
Parliament for the time being by providing for the suspension
of any restrictions on the acquisition or user of land contained
in sundry named Acts. Sect. 1, sub-s. 1, provides for the
first kind; s. 1, sub-s. 2, for the second.

Of the Regulations No. 2 is that material to the present
purpose ; it deals with taking possession of any buildings and
with doing any act (other than those specially described)
involving interference with private rights of property. If
the Crown were to exercise the powers of taking buildings,
which are given by the Defence Acts, this Regulation could
well be held to dispense with the formalities prescribed by
them. They would be restrictions, which the Regulation
would have suspended. The obligation to pay compensation
to the dispossessed owner, which that Act provides for, is,
however, not a restriction on the acquisition of his land. It
might discourage the exercise of the power of acquisition,
but it does not limit that power. The power is complete
independently of payment, and it is fully exercised before
the obligation to pay arises.

The next question is, should Regulation 2 be regarded as
having been made in exercise of the powers given by the first
or by the second sub-section of s. 1 of the Defence of the
Realm Consolidation Act ? In other words, is it to be regarded
as an exercise of a power to requisition under Regulations
issued for the purpose, or as an exercise of the power to facili-
tate requisitioning already authorized? It is true that it
authorizes the competent naval or military authority to do
the above-mentioned things "for the purpose of securing the
public safety of the Defence of the Realm," but that is the
purpose mentioned in s. 16 of the Defence Act, 1842, and the

A. C. AND PRIVY COUNCIL.

words may only be a reference to that section. Furthermore,
the Regulation deals with many matters beside the acquisition
of land and buildings, and these would in any case require a
substantive reference to the above purposes, which sufficiently
accounts for the use of the words without its being necessary
to read them as pointing to the exercise of a new power of
requisitioning. With all respect to the opinion expressed by
Avory J. (1) I think it should be treated as only an exercise
of the power of suspending restrictions given by sub-s. 2.
_ If it were held that this Regulation is to be deemed to have
been made, so far as the acquisition of land or buildings is
concerned, in exercise of new powers given by sub-s. 1, on the
ground that the Regulations to be issued are Regulations as
to the powers of the Army Council from time to time and not
merely as to the exercise of its powers, then it would follow
that the Crown, having full power of accomplishing the desired
acquisition under the Act of 1842, and of suspending any
inconvenient restrictions on that power, must be deemed to
have been advised to exercise a new power of accomplishing
the same object, differing from the existing power in one
respect only—namely, that it is accompanied by no obligation
to pay the subject anything. I think it should not be assumed
that, even if the Crown has such a power under s. 1, it has been
advised to exercise it solely to avoid paying a subject for the
exclusive use of his property. The presumptions must be,
both that the executive action was taken under powers by
which it can be justified, rather than beyond all powers what-
-ever,and that the available powers have been exercised so as to
prevent and not so as to cause avoidable injury to the subject.
Further, the Defence of the Realm Consolidation Act by
sub-s. 2 of s. 1 gives an express and limited power of altering
by Regulation what is enacted by the Defence Acts. I think
that no further power of restricting those enactments is
intended to be conferred by the general words of sub-s. 1, nor
ought that sub-section, couched as it is in general terms only,
to be construed as authorizing the Crown to do by Regulation
what the Legislature itself has already fully provided for by

(1) (1915) 84 L. J. K. B. 1961, 1963.

559

H. L. (E.)
1920

Ewe;
ATTORNEY-
GENERAL
v
Dr
KEYSER'S
Roya
HOTEL.

Lord Sumner.

560

H. L. (E.)
1920

ed

ATTORNEY-

GENERAL

Lord Sumner.

HOUSE OF LORDS [1920]

statute, least of all when that Regulation would have the
effect of taking the subject's property without compensation
contrary to the intention of the prior Acts.

The next question must be, is the Defence Act, 1842, with
the other Defence Acts, adequate to enable the Crown to effect
for the purpose of the defence of the realm such an object
as that involved in the taking of this hotel? It is true that
the Act enables much more to bedone, and that the provisions
for a greater or a less exercise of the power of taking lands
are not kept separate. The same series of sections enables
the Crown to take lands under the Act in peace or in war, in
absolute ownership and in perpetuity or for temporary occupa-
tion only, but there is no difficulty in severing these provisions.
It is true that, except for an express saving in s. 34, the Royal
Prerogatives are not named, but the powers of taking land
are such as only the Crown by its proper officers and depart-
ments can exercise, and the restrictions on the exercise of the
statutory powers, which the Act requires, must necessarily be
restrictions upon the powers of the Crown. It is true that
some of these restrictions might in time of war be inconvenient
in moments of extreme peril: of these the most formidable
is the giving of a fourteen days' notice, though I observe that
some overtures for this hotel were made in November, 1915,
and when the officials came to business in 1916 eleven days
were spent in negotiating for a rent, and the parties got as
close together as 19,000/. and 17,500/., before it was thought
necessary to refer to the Defence of the Realm Act. If,
however, formalities not inconsistent with the exigencies of a»
state of war in 1842 would have been prejudicial to the public
service in 1916, the powers given by sub-s. 2 of s. 1 of the Act
of 1914 had only to be exercised, as in fact they were, and all
these difficulties would vanish. 1 see no reason to doubt that
the Act of 1842 gave all the powers necessary for the exigencies
of the recent war, subject only to the removal of restrictions
contained in it, and there is therefore nothing to rebut the
natural presumption that Regulation 2 is, in so far as it deals
with matters to which the Defence Acts would apply, only
an exercise of the power of removing existing statutory

A. C. AND PRIVY COUNCIL.

restrictions, and is not new legislation by which the Crown
takes new and unrestricted powers in order to obtain the
same result.

The appellant further contended that all that was done
could be done, and was done, independently of any statute,
by virtue of the Royal Prerogative alone. I do not think
that the precise extent of the prerogative need now be dealt
with. The Legislature, by appropriate enactment, can deal
with such a subject-matter as that now in question in such
a way as to abate such portions of the prerogative as apply
to it. It seems also to be obvious that enactments may have
this effect, provided they directly deal with the subject-matter,
even though they enact a modus operandi for securing the
desired result, which is not the same as that of the prerogative.
If a statute merely recorded existing inherent powers, nothing
would be gained by the enactment, for nothing would be
added to the existing law. There is no object in dealing
by statute with the same subject-matter as is already dealt

561

H. L. (E.)
1920

aes

ATTORNEY-
GENERAL

wv

DE

KEYSER'S
Roya
Hore..

Lord Sumner.

with by the prerogative, unless it be either to limit or at least

to vary its exercise, or to provide an additional mode of
attaining the same object. Even the restrictions (such as
they were) imposed by the Defence Acts on any powers of
requisitioning buildings in time of war were in no way
inconsistent with an intention to abate the prerogative in
this respect, if not absolutely, (see New Windsor Corporation v.
Taylor (i)), at least for so long as the statute operates. In
truth, the introduction of Regulations so reasonable only
strengthens the substance of the Royal authority by removing
all semblance of arbitrary power. When, however, the matter
is looked at, as it now must be, in the light of Regulation 2,
no room for doubt remains. The Regulation has the force
of statute, and under its amelioration of the Defence Acts
everything could be done for this purpose that could be
done under the prerogative, equally efficiently and with equal
speed. One difference, and one only,can be found. According
to the argument, under the prerogative the subject could
elaim no compensation for losing the use of his property ;
(1) [1899] A. C. 41, 49.
A.C. 1920. 2P 3

562

H. L. (E.)
1920

—
ATTORNEY: |
GENERAL

Lord Sumner.

HOUSE OF LORDS [1920]

under the statute he could. Is it to be supposed that the
Legislature intended merely to give the Executive, as advisers
of the Crown, the power of discriminating between subject
and subject, enriching one by electing to proceed under the
statuté and impoverishing another when it requisitions under
the alleged prerogative? To presume such an intention
seems to me contrary to the whole trend of our constitutional
history for over two hundred years.

Nor is it a reasonable interpretation to say that the object
of the Defence Acts was merely to supplement the prerogative
by enabling the Crown to pay compensation out of public
funds to a subject damnified by the exercise of the prerogative,
which otherwise it would not be able to do. A prerogative
right to take without paying must have been a right to take
without paying out of the Royal funds, but, in truth,
prerogative can, at most, extend to taking, and stands quite
apart from payment. There is no prerogative right to elect
not to pay. Conversely, if there is adequate power to do
all that is required by proceeding under the statute, where is
the emergency and public necessity which is the foundation
for resort to the prerogative ?

My Lords, for these reasons I think that the Executive
did not take possession under the prerogative, for the Defence
Acts had superseded it ; that the Act of 1914 and Regulation 2
did not in themselves enable possession to be taken; that
the taking of possession must be referred to the powers given
by the Defence Acts, and that, in consequence, the suppliants
are entitled to be compensated in accordance therewith.
I do not refer to the many statutes which preceded the
Defence Act, 1842, from the time of Queen Anne, because
they only seem to me to justify without altering my reasons
for this conclusion.

This being so, there are only two further matters to which
I wish to refer. They are the search which was made into the
Public Records at the suggestion of the late Master of the
Rolls, and the passages which have been cited from the
opinion of the Judicial Committee in the case of The Zamora. (1)

(1) [1916] 2A. C. 77.

A. C. AND PRIVY COUNCIL.

That the search for documents relating to the taking of
land for fortifications and similar purposes in times past was
left incomplete and indeed was not much more than begun,
is matter of considerable regret. So far as it went, it is said
to have been inconclusive. Probably it will never go any
further, for the result has scarcely been such as would encourage
the Executive to proceed with it, and the subject does not
greatly attract the student of history. The records cover
both peace and war. The result, as it stands at present,
seems to be this. Many documents are forthcoming which
relate to the taking of land for such purposes by agreement
and on payment of compensation. None can be found
relating to taking land as of right and without any compen-
sation at all, even in time of war. No petition of right is to
be found in which a suppliant seeks to recover compensation,
but whether this be, as the Crown suggests, because no subject
ever had the temerity to put forward such a contention, or,
as the respondents argue, because the Crown never gave him
occasion to do so, is a matter which remains unknown. There
appears to be no reported case which has decided that the
subject is entitled to compensation for lands taken by the
Crown, in purported exercise of the prerogative, but to this

563

H. L. (E.)
1920

—_—
ATTORNEY-
GENERAL

Lord Sumner.

circumstance the same observation applies. The point that —

no suppliant has presented a Petition of Right with such an
object seems to me to be in itself of minor importance.
Experience in the present war must have taught us all that
many things are done in the name of the Executive in
such times purporting to be for the common good, which
Englishmen have been too patriotic to contest. When the
precedents of this war come to be relied on in wars to come,
it must never be forgotten that much was voluntarily submitted
to which might have been disputed, and that the absence
of contest and even of protest is by no means always an ad-
mission of the right. In a lesser degree I see no reason why
similar courses may not have been taken in times of less gravity.
At any rate the fact remains that the claim of prerogative
right maintained by the appellant is one, of the exercise of
which history has preserved no record.
2P2 3

564

H. L. (B.)
1920

4

ATTORNEY-

GENERAL

Lord Sumner.

HOUSE OF LORDS [1920]

As to the judgment in The Zamora (1), I conceive what was
there said to have been correct, but I think that it has been
pressed beyond anything for which, truly understood, it is
an authority. What has to be borne in mind is that no
issue as to the Royal Prerogative arose for determination
in that case. The question was, whether it was consistent
with the Law of Nations that a Court of Prize should release to
the Crown, against deposit of the value in Court, the property
of a neutral held in its custody pending adjudication, whenever
the Crown duly declared that it was necessary for the defence
of the realm to requisition it. As part of the reasoning of the
judgment their Lordships dealt with two points: first, that
such requisitioning imposed no greater burden on the neutral
than was borne by the subject, but rather less ; and, second,
that, if on comparison of the municipal laws of different
countries the power of requisitioning was found to be
exercisable in some cases with compensation and in some
without (of which latter class this country was an
example: p. 100), this circumstance would only show that
the right contended for was, as against the neutral, as
moderate as any municipal law warrants, and more so than
what is warranted by our own. The legislation on the
subject of national defence was not material, and was not
discussed.

. I think it is plain that the judgment in The Zamora (1)
made, and could make, no attempt to formulate an exhaustive
definition of the prerogative as to requisitioning; that it
took and could only take decisions on the subject as it found
them, in order to draw from them legitimate inferences
throwing light on the matter in hand. The Shoreham Case,
as it is now called, for obvious reasons meagrely reported as
to the facts under the name of Jn re A Petition of Right (2),
was the most recent exemplification of the ancient rule traced
back to the Year Books that for the purpose of repelling
invasion, the King, and indeed the subject too, may enter
another's close in order to raise bulwarks therein without
committing a trespass. Rightly or wrongly, the facts of the

(1) [1916] 2 A. C. 77. (2) [1915] 3 K. B. 649.

A. ¢. AND PRIVY COUNCIL.

Shoreham Case (1) were assumed to have been analogous
to the case of raising bulwarks.

No question arose of the taking of buildings for the mere use
of administrative officials, although employed in one of the
combatant branches of the administration. The statement
about the absence of compensation was an exact statement
of the state of the reported cases then existing. It did not
purport to lay down that no right to compensation could
exist in law, but merely recorded that none had been decided
to exist. The statement that no Court ought, in time of war,
to require of the officers of the Crown proof (ex hypothesi
public proof) of the reasons of State, which had led them
to hold that in a particular case a certain course should be
taken, seems to me to be an obvious statement. It is not in
conflict with what seems to me to be an equally obvious
proposition—namely, that when the Court can see from the
character and circumstances of the requisition itself that the
case cannot be one of imminent danger, it is free to inquire
whether the conditions, resting on necessity, which were held
to exist in the Shoreham Case (1) are applicable to the case in
hand. If so, the argument in the judgment of The Zamora (2)
did not touch such a case. Unless the Court has such a power,
the mere fact that the competent military authority honestly
believed that what he demanded was needed for the defence
of the realm, would, on the appellant's argument, enable
everything to be taken and nothing paid. Of course, with the
progress of the art of war, the scope both of emergencies and
of acts to be justified by emergency extends, and the preroga-
tive adjusts itself to new discoveries, as was resolved in the
Saltpetre Case (3); but there is a difference between things
belonging to that category of urgency, in which the law arms
Crown and subject alike with the right of intervening and
sets public safety above private right, and things which,
however important, cannot belong to that category, but, in
fact, are simply committed to the general administration of
the Crown.

(1) [1915] 3 K. B. 649. (2) [1916] 2 A. C. 77.
(3) 12 Rep. 12.

565

H. L. (E.)
1920

Ss
ATTORNEY-
GENERAL
v.

DE
KErYSER's
Roya
Hote.

Lord Sumner.

566

H. L. (E.)
1920

——

ATTORNEY:

GENERAL

55
Dr
KEYSER'S
Roya
HOTEL.

HOUSE OF LORDS [1920]

My Lords, I think that the judgment of the Court of
Appeal was in accordance with the law, and ought to be
affirmed.

Lorp Parmoor. My Lords, the question in debate in
this appeal is whether the respondents are entitled to rent
or compensation for the temporary use and occupation of
the De Keyser's Royal Hotel, on the Thames Embankment.
Possession of the hotel was taken, during the war, by the
Executive Government, as representing the Crown, for purposes
admittedly connected with the defence of the realm. It is not
necessary to restate in detail to your Lordships the negotiations
and letters which passed between the representatives of the
Executive Government and the respondents in connection
with taking possession of the hotel.

On May 8, 1916, Mr. Fane, of the Office of Works, attended
at the hotel to take over possession from Mr. Whinney,
who delivered possession by giving the keys to Mr. Fane.
Mr. Whinney protested against the proceedings, and only
surrendered possession under protest. It was stated that the
Office of Works did not recognize any claim for occupation rent,
and required that any claim for compensation should be sent
to them for transmission to the "' Defence of the Realm Losses
Commission," and that the premises had been commandeered
for military purposes under the Defence of the Realm Acts.
It is contended by the appellant that compensation, if payable
at all, is only payable ex gratia at the discretion of the
Commission, and not as a matter of legal claim. This Commis-
sion was appointed to inquire and report to the Treasury
with regard to claims for direct and substantial loss and
damage "'in cases not otherwise provided for." In my
opinion the case under appeal is a case "' otherwise provided
for,' and therefore a case which the Commission would have
no jurisdiction to entertain.

On February 14,1917, the respondents presented a Petition
of Right, alleging that Mr. Whinney had delivered up possession
of the hotel to representatives of the Crown, and that the use
and occupation thereof by the Executive Government was by

A. ¢. AND PRIVY COUNCIL.

permission of respondents, and they claimed a sum as rent
in respect thereof. Having come to the conclusion that the
representatives of the Crown took possession under rights
conferred by statute, it is not necessary to determine whether
or not there was any use and occupation of the hotel by per-
mission of the respondents. The respondents further claimed
that they were entitled to a fair rent for use and occupation
by way of compensation under the Defence Act, 1842, and
it is under this head that a declaration had been made by the
Court of Appeal in their favour. On October 15, 1917, the
Attorney-General filed his answer and plea, on behalf of
His Majesty, traversing the allegation in the petition that
Mr. Whinney voluntarily delivered up possession of the hotel
to the representatives of the Crown, and that the Crown's
use and occupation of the hotel was by permission of the
respondents, and pleading that such possession was properly
and lawfully taken by virtue of His Majesty's Royal Pre-
rogative, as well as by virtue of the powers conferred by the
Defence of the Realm Consolidation Act, 1914, and of the
Regulations issued thereunder, and that His Majesty had
acquired no right in or over the premises, beyond the right
to take and use the same for so long as might be necessary
for securing the public safety in the defence of the realm
during the continuance of war. Peterson J. dismissed the
petition with costs, but this judgment was reversed in the
Court of Appeal, and a declaration made that the respondents
were entitled to a fair rent for use and occupation by way
of compensation under the Defence Act, 1842.

The first question, raised and argued at great length before
your Lordships, was whether the Executive Government
could justify their action in taking possession of the hotel,
without payment of rent or compensation, under the sanction
of the Royal Prerogative. The Royal Prerogative connotes
a discretionary authority or privilege, exercisable by the
Crown, or the Executive, which is not derived from Parliament,
and is not subject to statutory control. This authority or
privilege is in itself a part of the common law, not to be
exercised arbitrarily, but '"'per legem" and "sub modo

567

H. L. (E.)
1920

——~
ATTORNEY-
GENERAL
v.

DE
KEYSER'S
Royab
Horvret.

Lord Parmoor.

568 HOUSE OF LORDS [1920]

H. L. (E.) legis." In the present appeal, it is not alleged that, if the
1920 Royal Prerogative did authorize the taking of possession of

——_

Arrornrey- the premises of the respondents, for temporary use and occupa-

sea """ tion, without payment of rent or compensation, the authority

was used improperly or in an arbitrary manner. Under this

Rovat head no objection is put forward.

== The growth of constitutional liberties has largely consisted
Lord Parmoor. S

—— in the reduction of the discretionary power of the executive,

and in the extension of Parliamentary protection in favour

of the subject, under a series of statutory enactments. The

result is that, whereas at one time the Royal Prerogative gave

legal sanction to a large majority of the executive functions

of the Government, it is now restricted within comparatively

narrow limits. The Royal Prerogative has of necessity been

gradually curtailed, asa settled rule of law has taken the place

of an uncertain and arbitrary administrative discretion. A

similar tendency may be traced in the growth of our legal

system. Portions of the Common Law have been syste-

matically incorporated in or modified by Acts of Parliament,

and in this way the obligations which the law imposes have

become more definite, and more certain in their application.

Apart from the implication from precedents, which will be

referred to later, the appellant states that he relies on the

Royal Prerogative, because, in a case of necessity for the

public defence, the Crown has by the common law a preroga-

tive right, which has not been abated, abridged or curtailed

by any of the Defence Acts of 1842-1873, or by any other

statute, to enter upon or to take possession of, or to occupy

and use, the land of any subject without payment of com-

pensation. It is not necessary to inquire how far, in certain

cases of necessity, for the public defence, the Executive has

power to act without statutory authority, but a generalization

of this wide character requires careful analysis in its application

to special conditions such as have arisen in the present appeal.

In this instance the De Keyser Hotel was required for

administrative purposes. Under modern conditions the use

and occupation of land for administrative facilities is a matter

of necessity for public defence, but the necessity is not of the

A. C. AND PRIVY COUNCIL.

same character and cogency as arise when the use and
occupation of land is required on the occurrence of invasion,
or during the occurrence of actual fighting. On this point I
agree with the decision of the Court of Appeal. Assuming
that there is a public necessity to take possession of land for
administrative purposes in connection with public defence,
there can be no reason why this necessity should be urged as
an answer to a claim for compensation. It is clear on the
negotiations and correspondence that Mr. Whinney did not
raise any objection to handing over the hotel for the use and
occupation of the Executive Government, but that his protest
was limited to the claim of the Executive Government to take
the hotel, and, at the same time, to deny any claim for
compensation except such as might be offered, as a matter
of grace, by a reference to the Defence of the Realm Losses

Commission. An illustration of the distinction, which arises'

in the character and cogency of the necessity when land or
buildings are required for the exigency of the public service, is
to be found in s. 23 of the Defence Act, 1842, which provides
certain safeguards for the protection of the subject "' unless
the enemy shall have actually invaded the United Kingdom
at the time when such lands, buildings or other hereditaments
shall be so taken."

It is further noticeable that the prerogative right claimed is
limited to an entry upon, or to taking temporary possession of,
or to the temporary occupation and use of the land, of any
subject without payment of compensation. It is not claimed
that it can be extended to a case of disseisin. Since Magna
Carta the estate of a subject in lands or buildings has been
protected against the prerogative of the Crown. It is not
easy to see what the distinction is between disseisin and an
indefinite use and occupation, which may extend beyond the
estate of any particular owner. The later statute law gives
the same claim to compensation to the subject in either case.
An analogy arises in the case of taxation. Money is of primary
necessity for public defence during war, but it has long been
established that in order to obtain the requisite supplies, the
Executive must follow constitutional precedent, and obtain

569

H.L. (E.)
1920

—_
ATTORNEY-
GENERAL

Lord Parmoor.

570

H. L. (E.)
1920

—
ATTORNEY-

GENERAL

Lord Parmoor.

HOUSE OF LORDS [1920]

Parliamentary sanction. If, however, it could be established
that there had been at one time such a prerogative right as is
claimed by the appellant, I am unable to accept the further
proposition that such right has not been abated, abridged, or
curtailed by any of the Defence Acts, 1842-1873, or any other
statute. The provisions, however, of the statute law, as
they affect the Royal Prerogative which the appellant claims,
will be considered subsequently.

The precedents on which the appellant relies in support of
his appeal are Hampden's Case (1); The Saltpetre Case (2) ;
Hole v. Barlow (3); and The Zamora. (4) No one would
dispute the high character of the arguments of Mr. St. John
against the Crown in the case of ship money, but admissions
made in such an argument do not constitute precedents, and
the arguments applicable to the Royal Prerogative before the
revolutionary period must be read subject to the restrictions
which have been subsequently imposed. Duke L.J., in his
exhaustive review, refers to the judgments of two of the judges
whose opinions were given adversely to the claim of the Crown,
and quotes passages from the judgments of Crooke J. and
Hutton J. The quotation from Crooke J.is: '' The law pro-
videth a remedy, in case of necessity and danger; for then
the King may command his subjects, without Parliament,
to defend the kingdom. How? By all men of arms what-
soever, for the land; and by all ships whatsoever, for the sea,
which he may take from all parts of the kingdom and join
them with his own navy; which has been the practice of all
former Kings."

This opinion of Crooke J. would in any case be no precedent
for the claim made in the present appeal, but it is doubtful
whether the Royal Prerogative would at the present time cover
so wide an exercise of authority. During the war a Con-
scription Act was passed and Parliamentary authority was
obtained. The quotation from Hutton J.is: '' The care for
the defence of the Kingdom belongeth inseparably to the
Crown." There is no need to question the accuracy of this

(1) 3 How. St. Tr. 825. (3) 4 C. B. (N. S.) 334.
(2) 12 Rep. 12. (4) [1916] 2 A. C. 77.

A. C. AND PRIVY COUNCIL.

general statement, but it cannot be intended to cover the
proposition that the Executive Government is entitled,
without regard to the limitations which have been imposed
from time to time, to take all such steps as in the discretion
of the Government, for the time being, may be considered
necessary for this purpose.

The Salipetre Case (1) was decided in 1606, at a time when
the claim to act by Royal Prerogative was carried to an extreme
limit.. This case, however, is no precedent for the contention
put forward by the appellant. The saltpetre was taken under
the Right of Purveyance, and payment was made. Purvey-
ances were abolished in 1660 by 12 Car. 2,c. 4. The volume
of extracts from Public Records made for the purposes of this
case by the Record Agent contains warrants for the searching
for saltpetre, but in every case on the payment of rent or
compensation. The importance of the case consists in the
terms of the resolution of the judges :—

"" When enemies come against the realm to the sea coast,
it is lawful to come upon my land adjoining to the same
coast, to make trenches or bulwarks for the defence of the
realm, for every subject hath benefit by it. And therefore
by the Common Law, every man may come upon my land,
for the defence of the realm, as appears 8 Ed. 4, 23. And
in such case on such extremity they may dig for gravel,
for the making of bulwarks; for this is for the public, and
everyone hath benefit by it; but after the damage is over,
the trenches and bulwarks ought to be removed, so that the
owner shall not have prejudice in his inheritance: and for
the commonwealth, a man shall suffer damage; as, for
saving of a city or town, a house shall be plucked down if
the next be on fire: and the suburbs of a city in time of
war for the common safety shall be plucked down; and a
thing for the commonwealth every man may do without
being liable to an action, as it is said in 3 H. 8, fol. 15."

A right common both to the Crown and all subjects is not
in the strict sense a prerogative right of the Crown. Royal
Prerogative implies a privilege in the Crown of a special and

(1) 12 Rep. 12.

571

H. L. (E.)
1920

-—~
ATTORNEY-
GENERAL

Lord Parmoor.

572 HOUSE OF LORDS [1920}

H. L. (E.) exclusive character, but in any case the illustrations contained
1920 in the resolution cannot be relied upon in support of the claim
Arrorney- made by the appellant. To take premises for administrative
i te purposes is essentially different from an entry upon land,
De | adjoining to the coast, to protect the realm from a landing by
Royat enemy forces. The analogy of plucking down a house, if the
eee next be on fire, for the saving of a city or town, is an apt
— instance of the restrictive limitations under which the right
referred to in the resolution can be exercised, and it would
be impossible to suggest that any subject would have been
entitled to take possession of the hotel of the respondents for
temporary use and occupation. A statute of 4 Hen. 8, c. 1}
(1512), which was to endure to the next Parliament, makes
special provision for the protection of the County of Cornwall
against invasion from Bretayne and also the Haven of Brest,
and authorizes everyone of the King's subjects under the
conditions mentioned to enter upon land for the making of
bulwarks, etc., without any manner of payment to be demanded
or any manner of action, by any manner of person or persons
at any time thereafter to be attempted. This statute illus-
trates the nature of a right, whichis based, not on an exclusive
privilege of the Crown, but on the duty of all subjects within
the specified area to make common cause in defence of the
realm. Duke L.J. refers to a series of cases between subjects
in which there was no determination of the rights as between
the Crown or the Executive Government and the subject.
The decisions in these cases do not, in my opinion, assist to

solve the questions raised in this appeal.

The Zamora (1) was a prize case, which raised a question of
the authority of Royal Prerogative in International Law and
of the right to requisition vessels or goods in the custody
of the Prize Court of a belligerent power. As regards the
authority of the Royal Prerogative the dictum of Lord Stowell
in The Fox (2) was disapproved, and it was held that, prior
at any rate to the Naval Prize Act, 1864, there was no power
in the Crown, by Order in Council, to prescribe or alter the
law which Prize Courts have to administer. So far the case

(1) [1916] 2 A. C. 77. (2) (1811) Edw. 311.

A. C. AND PRIVY COUNCIL.

cannot be quoted in favour of the claim to take possession of
the property of the subject without payment of compensation.
In the course of his judgment Lord Parker does incidentally
refer to the authority of the Royal Prerogative within the
domain of municipal law, but this was not a matter in issue
in the case, and there was no argument addressed to the
question now in appeal before your Lordships. So far as the
Shoreham Case (1) is concerned, it need only be added that
Lord Parker was sitting in your Lordships' House when the
arrangement was come to which made a formal judgment
unnecessary. The dictum of Willes J. in Hole v. Barlow (2)
_ is not in favour of the contention of the appellant. It states
the general proposition that every man has a right to the
enjoyment of his land, and then, by way of illustration, limits
the application of the power of the Royal Prerogative to the
event of a foreign invasion. Apart from legal precedent, it
was urged by the appellant in the Court of Appeal during the
argument, that, where lands had been taken over for temporary
use and occupation for the purposes of the Defence of the
Realm, without obligation on the part of the Crown to pay rent
or compensation, special commissions had been issued from
time to time to determine what payment should be made by
the Crown ex gratia. Consequently a search was made with
the result stated in the judgment of the Master of the Rolls.
''The result of the searches which have been made is
that it does not appear that the Crown has ever taken
subject's land for the defence of the country, without paying
for it; and even in the Stuart times I cannot trace any claim
by the Crown to such a prerogative."" These latter words are
important in considering the claim of the Executive Govern-
ment in the present case to act under the Royal Prerogative.
If no precedents can be found prior to the year 1688 of a claim
to use and occupy the land of the subject for an indefinite
time without the payment of compensation, it would be im-
probable that such precedents would be found at a later date.

The documents and warrants extracted from Public Records
give no support to the claim put forward by the appellant. A

(1) [1915] 3 K. B. 649. (2) 4 C. B. (N. §.) 345.

#

573

H.L. (E.)
1920

——
ATTORNEY-
GENERAL

Lord Parmoor.

574 HOUSE OF LORDS [1920]

H.L. (E.) large number of them are concerned with the acquisition of
1920 estates in land, which admittedly could not be acquired com-
Arrornry- pulsorily by the exercise of the Royal Prerogative. In some
GENERAL Of the instances it is difficult to determine whether an estate .
te in the land was acquired or possession was taken for tem-
RoyaL porary use and occupation. The extracts to which the
aan attention of your Lordships was specially directed during the
ae argument are as follows. On November 24, 1668, and on
December 22, 1688, there are two ordinance minutes orde1ing

in one case the payment of rent for ground upon which a

battery is standing, and in the other case compensation for

damage at the time of "' Ye proveing the Morter peece nere
Bishopps hall." Both these minutes appear to relate to a

case of temporary use and occupation. On September 4, 1805,

a letter was written urging the necessity of obtaining the mills

at Cheshunt for purposes of increasing the supplies of gun-

powder for His Majesty's service. The Board concurred in the

opinion, and recommended to the Master-General to authorize

the mills of Cheshunt to be taken possession of under the

Defence Act, which will be attended also with the further
advantage of removing some legal obstacles arising from a

claim of the poor of the neighbourhood to have their corn

ground at the mill. Proceedings were accordingly taken under

the Defence Act to get possession of the mills, in order that,

by the acquisition of the water, the manufacture of gun-

powder might be'increased. The subsequent orders and

minutes relate to valuation for the purchase of all interests

in the premises. At this date the Act 43 Geo. 3, c. 55, was in

force, authorizing His Majesty to survey and mark out ground

wanted for public service and to treat and agree for '' posses-

sion and use of it during such time as the exigence of the

public service shall require," and in default of agreement
compensation to be paid for possession and use, to be ascer-

tained by a jury. In the following year a further Act was

passed enabling land required for the exigencies of the service

to be purchased absolutely and for ascertainment of the price

by a jury in default of agreement. These acts were tem-

porary in character, but contained provisions similar to those

A. ¢. AND PRIVY COUNCIL.

which were made permanent in the Defence Act, 1842. On
June 20, 1813, a report was made on the claims of a Mr. Cowl,
of Margate, and other persons in reference to damage done by
stopping up gateways by which farmers drew up seaweed from
the beach as a manure for lands at a time when an enemy
landing was apprehended. A money payment appears to
have been made in each case with the further recommendation
that the gateway should be reopened at the expense of the
Government. It was stated at the hearing before the Court
of Appeal that the documents which had been extracted were
illustrative, and that there was no reason for thinking that a
further search would disclose documents of a different import.
The conclusion is that the Executive Government has not
established a right under the Royal Prerogative to take the
hotel of the respondents for temporary use and occupation
during war without the payment of compensation or by
referring the respondents to a Commission which could only
make grants "' ex gratia"? within the limits of its jurisdiction.

I am further of opinion that the plea of the appellant that
the prerogative right of the Crown, whatever it may have
been, has not been abated, abridged or curtailed by any
of the Defence Acts, 1842-1873, or by any other statute,
cannot be maintained. I propose to examine the main
statutory provisions which regulate the rights of the subject
and the obligations of the Executive when lands or buildings
are taken temporarily for use and occupation on the occasion
of a public exigency. The constitutional principle is that
when the power of the Executive to interfere with the property
or liberty of subjects has been placed under Parliamentary
control, and directly regulated by statute, the Executive no
longer derives its authority from the Royal Prerogative of
the Crown but from Parliament, and that in exercising such
authority the Executive is bound to observe the restrictions
which Parliament has imposed in favour of the subject.
I think that the statutory provisions applicable to the
interference by the Executive with the land and buildings
ot the respondents, bring the case within the above principle.
It would be an untenable proposition to suggest that Courts

575

H. L. (E.)
1920

——
ATTORNEY-
GENERAL

Lord Parmoor.

576 HOUSE OF LORDS [1920]

H.L. (E.) of law could disregard the protective restrictions imposed by
1920 statute law where they are applicable. In this respect the
ATTORNEY- sovereignty of Parliament is supreme. The principles of
asa construction to be applied in deciding whether the Royal
De ._ Prerogative has been taken away or abridged are well ascer-
Royau tained. It may be taken away or abridged by express words,
dh alae by necessary implication, or, as stated in Bacon's Abridge- —
— "ment, where an Act of Parliament is made for the public
good, the advancement of religion and justice, and to prevent
injury and wrong. Statutes which provide rent or compensa-
tion as a condition to the right of the Executive to take over
the temporary possession of lands or buildings on the occasion
of public exigency come, in my opinion, within the category
of statutes made for the advancement of justice and to prevent
injury and wrong. This is in accord with the well-established
principle that, unless no other interpretation is possible,
justice requires that statutes should not be construed to enable
* the land of a particular individual to be confiscated without
payment. Iam further of opinion that where a matter has
been directly regulated by statute there is a necessary implica-
tion that the statutory regulation must be obeyed, and that
as far as such regulation is inconsistent with the claim of a
Royal Prerogative right, such right can no longer be enforced.
In 1798 (38 Geo. 3, c. 27) power is given to take possession
of land during such time as the exigencies of public service
should require, with a provision for compensation ; but this
Act was limited in its operation to the continuance of the

then present war.
In 1803, by 43 Geo. 3, c. 55, similar powers are given.
This, again, was a temporary Act during the then present war
_ with France. A doubt arose whether this Act would enable
the Executive to take land for a definite period of time,
extending beyond the immediate exigency. In consequence
it was repealed in 1804, and 44 Geo. 3, c. 45, enacts that land
may be acquired either by absolute purchase for public service
or for use and possession during such time as the exigence of
the public service may require. Sects. 11 and 12 provide com-
pensation either for the purchase of land or for its temporary

A. C. AND PRIVY COUNCIL.

use. In 1842 the Defence of the Realm Act was passed to
consolidate and amend the laws relating to the services of
the Ordnance Department and the vesting and purchase of
lands and hereditaments for those services, and for the defence
and security of the realm. This Act has been subsequently
amended, but not on any subject material to this appeal,
prior to 1914. Sect. 16 empowers the principal officers of
Her Majesty's Ordnance to treat and agree with the owner
or owners of lands, buildings, and hereditaments, or with
any person or persons interested therein either for the
absolute purchase thereof or for the possession or use thereof
during such time as the exigence of the public service shall
require. Sect. 19 enacts that if bodies or other persons thereby
authorized to contract on behalf of themselves or others or
other person or persons interested in any such lands, buildings,
or other hereditaments, shall, for the space of fourteen days
next after notice in writing decline to treat or agree, or shall
refuse to accept such sum of money, as shall be offered for
absolute purchase, or such annual rent or sum as shall be
offered for hire or rent thereof either for a time certain, or for
such period as the exigence of the public service may require,
the principal officers may require two or more justices of the
peace, or other authority named, to put them or any person
- appointed by them into immediate possession of such lands,
buildings, or other hereditaments. Then follows a complete
provision for summoning a jury to assess the compensation
to be paid either for the absolute purchase of such lands,
buildings, or other hereditaments, or for the possession or
use thereof, as the case may be.

Sect. 23 provides that no such lands, buildings, or other
hereditaments shall be taken without the consent of the owner
or owners or other interested person or persons unless the
necessity or expediency of the taking the same has been certi-
fied as directed, or '"' unless the enemy shall have actually
invaded the United Kingdom at the time when such lands,
buildings, or other hereditaments shall be taken."' This
latter provision is important, since it clearly shows that the
Legislature was providing against such an emergency as

A.C. 1920. 2Q 3

577

H. L. (E.)
1920
ATTORNEY-
GENERAL
Vv
Dr
KEYSER'S
Royvan
Hore.

Lord Parmoor,

7978

H. L. (E.)
1920

——

_ATTORNEY- *
Ordnance to bring actions, suits, or other proceedings, provided
that in all such actions, suits, or other proceedings, the legal

GENERAL

Lord Parmoor.

. HOUSE OF LORDS.. [1920]

invasion, which might occur during a period of war, and
introducing in such a case an exceptional procedure.
Sect. 34 empowers the principal officer of Her Majesty's

rights, privileges, and prerogatives of Her Majesty, her heirs
and successors, shall not be defeated or abridged. It is not
alleged that procedure by Petition of Right defeats or abridges
the legal rights, privileges, or prerogatives of the Crown, if
the conditions are such as entitle the respondents to resort
to this form of procedure. If this Act and the amending Acts
prior to 1914 had stood alone it would have been no answer
to say that the statutory conditions were inconvenient or

unduly cumbrous to meet the exigency of the public service

in defence of the realm. It is for Parliament to determine
what the exigency of the public service may require, and, if
amending provisions are found to be necessary; to enact them
in: an amending statute. It will appear subsequently that
this course was followed on the outbreak of the war in 1914.,
. 'It was further argued on: behalf of the appellant, that,
apart from the: Royal Prerogative, or from any power vested
in the Executive under preceding statutes, a subject was
deprived. of his right to compensation by virtue of the powers
conferred by the Defence of the Realm Consolidation Act,
1914, and of the Regulations issued thereunder. Under this
Act '' His Majesty in Council has power during the continuance
of the present, war to issue Regulations for securing the public
safety and the defence of the realm." There is a. special pro-
vision that such Regulations may. provide for the 'suspension
of:any restrictions on the acquisition or user of land,. or the
exercise of the power of making byelaws or any other power
under the Defenee Acts, 1842 to 1873, or the Military Lands
Acts, 1891 to 1903. The: Regulations issued authorize the
competent. naval or military authority; and any person duly
authorized by him, where for the purpose' of securing the
public safety or defence of the realm it is necessary so to do,
to take possession of any land, building, or other. property, or
to do any other act involving interference with private rights

A.C... AND PRIVY COUNCIL.

of property. which is necessary for the purpose aforesaid.
The effect of this Regulation is to enable the competent naval
or military authority to take immediate possession of land or
buildings, where it is necessary for securing the public safety
or defence of the realm. In Regulation 62, the competent
naval or military authority may be any commissioned officer,
not below the rank of a Lieutenant-Commander in the Navy, or
Field Officer in the Army or Air Force. There is no provision
for compensation for acts done under the powers conferred
by Regulation 62. Nor is any such provision necessary.

Compensation was already assured under statutory enactment.:

Regulation 28 does contain a method of determining the
price to be paid on taking possession of war material, food,

forage, and stores in default of agreement, and the attention'
of your Lordships was not called to any eat statute:

containing a right to compensation.

-My. Lords, I agree in:the view expressed by Warrington L.J..

that the Defence Acts; 1842°to 1873, and the Act of 1914
and the Regulations made thereunder must be read together.

The power to take possession of land or buildings for
temporary use or occupation is derived from the Defence Act, :
1842, and the Act of 1914, and the Regulations made
thereunder adapt the exercise of the powers conferred. by. the.
Defence. Act of 1842 to the exigencies of modern warfare.

during a period of war; but they do not affect the provisions

of the Defence Act, which confer a right to compensstion,

and provide procedure for assessment of the amount in default
of agreement. I think that -there is no difficulty in applying

the ordinary rules of construction, but, if there is room for :
ambiguity, the principle is established that, in the absence of.
words clearly indicating such an intention, the property of»

one subject shall not be taken without compensation for the
benefit to others or to.the public: Attorney-General v.

Horner (1); London and North Western Ry. Co. v. Evans. (2):

So long as the possession of land or buildings can immediately

be taken for purposes of public safety there is no inconsistency
in subsequently determining under statutory procedure the:

(1) (1884) 14 Q. B.D. 245, -. . 1) (142) [1893] 1 Ch. 16.
2Q2 3

579°

H.L. (E.)?
1920

_——
ATTORNEY-
GENERAL

Lord Parmoor.«

580.

H. L. (E.)
1920

HOUSE OF LORDS (1920).

amount of payment either by way of rent or compensation.
It is not necessary in your Lordships' House to distinguish
the present appeal from In re A Petition of Right. (1)
Peterson J. thought that the present case was covered by the
judgment of the Court of Appeal in that case, but when that
case came before your Lordships' House, an arrangement was
made rendering it unnecessary to give a formal judgment.

The appellant in the statement of contentions tabled in
the appellant's case, claimed ''that the Legislature had,
by the Defence of the Realm (Acquisition of Land) Act, 1916,
recognized the existence of and had confirmed the prerogative.""
Reliance is placed on the words in s. 1, which allows the
Government department in possession of lands to continue
in possession for the specified time, where possession had been
taken, whether in exercise or purported exercise of any pre-
rogative right of His Majesty, or.of any powers conferred
by or under any enactment relating to the defence of the
realm. This section does not enlarge or extend the Royal
Prerogative in any direction, or deprive the subject of com-
pensation if, apart from this section, he would have been
entitled to claim it.. In the letter of May 9, 1916, the Controller
of Supplies states that the premises have been commandeered
by the military authorities under the Defence of the Realm
Act, and this statement.is, in my opinion, well founded.

If the respondents are entitled to a declaration in the terms
of Head No. 4 of the Petition of Right, the proper form of
procedure to obtain such a declaration in favour of a subject
against the Crown has been followed. There is no allegation
of any tortious conduct on the part of the Crown. On the
contrary the claim to compensation assumes that the entry
on, and the taking of possession of, the hotel, are acts which
are legally justifiable. In an ordinary case, under the Lands
Clauses Acts, when promoters enter into possession of lands
in-conformity with their statutory rights, and delay or refuse
to put in force the necessary procedure for the assessment
of compensation in default of agreement, the remedy is by
mandamus. This remedy would not be applicable against

(1) [1915] 3 K. B. 649,

A. CG. AND PRIVY COUNCIL. 581

the Crown. I did not understand the Attorney-General to H. L. (E.)
raise any objection to the procedure by petition of right — 1920
if the respondents could establish a claim to compensation, Avronnry-
or to the form of the declaration made by the Court of Appeal. ear
My Lords, in my opinion, the appeal should be dismissed sel

with costs. Royan
Hore.

Order of the Court of Appeal affirmed, and appeal
dismissed. The costs incurred by the respond-
ents in respect of the appeal to be paid to
them in the manner directed by 23 & 24 Vict.
c. 34.

Lord Parmoor.

Lords' Journals, May 10, 1920.