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THE  CASE  OF 
REQ  [JISITION 


OXFOED  UNIVERSITY  PRESS 

LONDON         EDINBURGH         GLASGOW        NEW  YORK 
TORONTO     MELBOURNE     CAPE   TOWN     BOMBAY 

HUMPHREY   MILFORD 

PUBLISHER  TO  THE  UNIVERSITY 


THE  CASE  OF  El^UiSlTION 

','  /'\  ]■>.  H^  *'>'  i*^'.  i' » i-^  '' 
In  re  a  PETITION  OF  RIGHT  of 

DE   KEYSER'S    ROYAL   HOTEL   LIMITED 

DE   KEYSER'S 
ROYAL   HOTEL  LIMITED 

THE   KING 


By  LESLIE  SCOTT 

Of  the  Inner  Temple,  formerly  Exhibitioner  of  New  College,  one  of  His 
Majesty's  Counsel,  and  Member  of  Parliament  for  the  Exchange  Division  of  Liverpool 

And  ALFRED  HILDESLEY 

Of  the  Inner  Temple,  Barrister-at-Law,  formerly  Scholar  of  Pembroke  College 


With  an  Introduction 
By  the  Right  Honourable  SIR  JOHN  SIMON 

Of  the  Inner  Temple,  Fellow  of  All  Souls  College,  one  of  His  Majesty's  Counsel 
and  sometime  Attorney-General  to  His  Majesty 


OXFORD 

AT     THE     CLARENDON    PRESS 
1920 


JFMS 
S&53 


CONTENTS 

CHAP.  PAGE 

TABLE  OF  STATUTES  CITED    .         .         .      vii 


TABLE  OF  CASES  CITED  . 
INTRODUCTION. 
I.    THE  HISTORY  OF  THE  CASE  . 
II.    THE  DEFENCE  ACTS 

III.  THE  PREROGATIVE  OF  THE  CROWN 

IV.  THE    DEFENCE    OF    THE    REALM    CON 

SOLIDATION  ACT    . 

V.    THE   EFFECT   OF  STATUTE   UPON   THE 
PREROGATIVE 

VI.    PETITION  OF  RIGHT 


X 

XV 

1 

10 

42 

79 

105 
114 


EXCURSUS 

I.  NOTES  ON  THE  RIGHT  TO  COMPENSA- 
TION IN  RESPECT  OF  REQUISITIONED 
PROPERTY  OTHER  THAN  LAND  .         •     136 

II.    THE  INDEMNITY  ACT,  1920       .         .         .158 

APPENDICES 

A.  JUDGMENTS     IN    ATTORNEY-GENERAL 

7.     DE     KEYSER'S     ROYAL     HOTEL, 
LIMITED 168 

B.  STATUTES     NOT     PRINTED     IN     RUFF- 

HEAD'S  EDITION 220 

C.  DOCUMENTS     RELATING    TO     VESTING 

ACTS     AND     COMMISSIONS,     INQUISI- 
TIONS, PROCEEDINGS,  AND  DECREES     229 


vi  CONTENTS 

PAGE 

D.  EXTRACTS     FROM     THE     REPORT     OF 

BRUCE  IN  1798  ON  THE  ARRANGE- 
MENTS FOR  THE  DEFENCE  OF  THE 
KINGDOM  AT  THE  TIME  OF  THE 
SPANISH  ARMADA 247 

E.  WARRANTS      AND      LETTERS      PATENT 

RELATING  TO  SALTPETRE    .         ,         .261 

F.  EXTRACTS  FROM  WAR  OFFICE  RECORDS     277 

G.  EXTRACTS  FROM  BOTULI  PARLIAMEN- 

TORUM  RELATING  TO  THE  IM- 
PRESSMENT OF  SHIPS  ....     296 

INDEX         .         .         .         .         .         .  .305 


TABLE  OF   STATUTES 

PAGE 

Magna  Carta,  1215      .         .  43,  61,  106 

9  Hen.  Ill  (Magna  Carta,  1225)    ...        61,  209 

3  Edw.  I,  c.  32  (1275)  Purveyance       ....       62 

8  Edw.  I  (1280)  Statute  of  Petitions  .         .         .116 

12  Edw.  I  (1284)  Ordinance  of  Petitions       .         .116 

13  Edw.  I,  Stat.  2,  c.  6  (Statute  of  Winchester,  1285)  View  of 

Arms 137 

25  Edw.  I,  Stat,  i,  c.  1  (1297)  Confirmatia  Cartarum        .  .     106 

25  Edw.  I,  Stat,  i,  c.  5  (1297)  Confirmatia  Cartarum        .  .       53 

1  Edw.  Ill,  Stat.  2,  c.  5  (1327)  Military  Service         .         .  .137 

14  Edw.  Ill,  Stat,  i,  c.  19  (1340)  Purveyance  ...  52,  63 
18  Edw.  Ill,  Stat,  ii,  c.  7  (1344)  Purveyance  .  .  .  .137 
25  Edw.  Ill,  Stat,  v,  c.  8  (1356)  Military  Service  .  .  .137 
34  Edw.  Ill,  c.  2  (1360)  Purveyance  ...  53,  54 
36  Edw.  Ill,  Stat,  i,  c.  2  (1362)  Purveyance      ...  63,  64 

46  Edw.  Ill  (1372)    {Rot.    Pari.)    Impressment    of 

ships 149,  296 

47  Edw.  Ill  (1373)    {Rot    Pari.)    Impressment    of 

ships      .         .         .         .         .       149, 297 

2  Ric.  II  (1397)    {Rot.    Pari.)    Impressment    of 

Ships 149,297 

9  Ric.  II  (1385)    {Rot.    Pari.)    Impressment    of 

Ships 149,298 

4  Hen.  IV,  c.  13  (1402)  Military  Service         .         .         .137 

4  Hen.  IV  ^  (1402)    {Rot.    Pari.)    Impressment    of 

Ships 149,298 

5  Hen.  IV  (1403)  {Rot.  Pari.)  Commissions  of  Array     138 

3  Hen.  V  (1415)    {Rot.    Pari.)    Impressment    of 

Ships      ....        149,  152,  300 

20  Hen.  VI  (1442)    {Rot.    Pari.)    Impressment    of 

Ships 150,299 

4  Hen.  VIII,  c.  i  (1512)  Bulwarks  .  12,  50,  211,  220 
4  &  5  Pb.  &  M.,  c.  2  (1557)  Military  Service  .  .  .138 
13  Eliz.,  c.  4  (1570)  Receivers  ....  73 
1  Jac.  I,  c.  25                         (1604)  Statute  law  revision .         .         .138 

21  Jac.  I,  c.  3  (1623)  Statute  of  Monopolies  .  .  58 
16  Car.  I,  c.  14  (1640)  Shipmoney  declared  unlawful  .  62 
16  Car.  I,  c.  21                       (1640)  Importation  of  gunpowder  .       58 

12  Car.  II,  c.  24  (1660)  Abolition  of  Knights  Service  and 

Purveyance              .  58,  138,  153, 210 

13  Car.  II,  Stat,  i,  c.  8           (1661)  Royal  Progresses  .         .         .139 

14  Car.  II,  c.  20  (1662)  Royal  Progresses  .  .  140,  222 
18  &  19  Car.  II,  c.  8 

(19  Car.  II,  c.  5,  Ruff)  (1666)  Rebuildmg  of  London        .         .     Ill 

22  Car.  II,  c.  11  (1670)  Rebuilding  of  London  .  .  Ill 
22  &  23  Car.  II,  No.  23  (1672)  Fortifications  ...  13,  226 
1  Jac.  II,  c.  8  (1685)  Importation  of  gunpowder  .  58 
1  Jac.  II,  c.  11  (1685)  Transport  for  Navy  and  Ordnance 

140,  228 


vm 


TABLE  OF  STATUTES 


1  Will.  &  M.,  c.  5 

1  Will.  &  M.,  Sess.  2,  c.  2 

2  Will.  &  M.,  Sess.  2,  c.  6 
4  Will.  &  M.,  c.  13 

4  WiU.  &  M.,  c.  24 

11  Will.  Ill,  c.  13  (11  &  12 
Will.  Ill,  c.  13,  Ruff.) 

12  &  13  Will,  m,  c.  2 
7  Anne,  c.  26 

4  Geo.  I,  c.  7  (Ireland) 

13  Geo.  II,  c.  17 

la  Geo.  II,  c.  3  (Ireland) 
23  Geo.  II,  c.  2  (Ireland) 
31  Geo.  II,  c.  38 

31  Geo.  II,  0.  39 

32  Geo.  II,  0.  26 

32  Geo.  II,  0.  30 

33  Geo.  II,  c.  11 

2  Geo.  Ill,  c.  37 

7  Geo.  Ill,  0.  6  (Ireland) 
20  Geo.  Ill,  0.  38 
22  Geo.  Ill,  0.  80 

34  Geo.  Ill,  c.  54 

37  Geo.  ni,  c.  2  (Ireland) 

38  Geo.  Ill,  c.  23 
38  Geo.  ni,  c.  27 
38  Geo.  Ill,  0.  46 
41  Geo.  ni,  c.  45 
41  Geo.  Ill,  c.  66 
43  Geo.  Ill,  c.  55 
43  Geo.  in,  0.  96 

43  Geo.  Ill,  0.  120 

44  Geo.  in,  c.  95 

1  &  2  Geo.  IV,  c.  69 

3  Geo.  IV,  c.  108 

2  &  3  Will.  IV,  c.  25 

5  &  6  Vict.,  c.  94 


8  &  9  Vict.,  0.  18 

17  &  18  Vict.,  c.  67 

18  &  19  Vict.,  c.  117 

20  &  21  Vict.,  c.  44 

21  &  22  Vict.,  c.  106 

22  Vict.,  c.  12 

'23  &  24  Vict.,  c.  24 

23  &  24  Vict.,  c.  106 
23  &  24  Vict.,  c.  112 

27  &  28  Vict.,  c.  57 

28  &  29  Vict.,  c.  65 
33  &  34  Vict.,  c.  71 
36  &  37  Vict.,  c.  72 
36  &  37  Vict.,  c.  69 


(1688)  Mutiny    •         .         .         . 
(1688)  Bill  of  Rights  . 
(1690)  Mutiny    .         .         .         . 
(1692)  Mutiny    .         .         .         . 
(1692)  Expiring  laws  continuance 


(1700)  Expiring  laws  continuance 

(1700-1)  Act  of  Settlement . 

(1708)  Fortifications    .         .  13, 

(1717)  Fortifications    . 

(1740)  Impressment    . 

(1745)  Fortifications    . 

(1749)  Fortifications    . 

(1757)  Fortifications    . 

(1757)  Fortifications  .       15,  16,  74,  173 

(1758)  Fortifications  . 
(1758)  Fortifications  . 
(1760)  Fortifications  . 
(1762)  Fortifications  . 
(1767)  Fortifications  . 
(1780)  Fortifications  . 
(1782)  Fortifications  . 
(1794)  Habeas  Corpus  Suspension 

(1797)  Fortifications   . 

(1798)  Mutiny    .  .  .  , 
(1798)  Defence   .  22,  24,  26,  31,  142, 
(1798)  Impressment    . 
(1801)  Mutiny    . 
(1801)  Indemnity 
(1803)  Defence   .            22,  142,  172,  213 
(1803)  MHitary  Service         .         .        33, 

(1803)  Military  Service 

(1804)  Defence   .         .       11,  23,  29,  174 

(1821)  Defence  .         . 

(1822)  Defence  . 
(1832)  Defence  . 
Defence  Act,  1842       .        10,  35-41,  81, 

109,    174,   182,   183,   184,   186,    193, 

209,  215 
Lands  Clauses  Consolidation  Act-  1845 

38: 
Defence  Act,  1854       .... 
Ordnance  Board  Transfer  Act,  1855 
Crown  Suits  (Scotland)  Act,  1857 
Government  of  India  Act,  1858    . 
Defence  Act,  1859       .... 
Petitions  of  Right  Act,  1860         .      117, 

122, 
Lands  Clauses  Consolidation  Act,  1860 
Defence  Act,  1860       .         .         .         . 
Admiralty  Lands  and  Works  Act,  1864 
Defence  Act,  1865       . 
National  Debt  Act,  1870      . 
Defence  Acts  Amendment  Act,  1873 
Petitions  of  Right  (Ireland)  Act,  1873 


PAGE 
.       141 

43,  141 
.  141 
.  141 
.     140 

.     140 

.     106 

20,  173 

.       23 

.     153 

.       23 

23 

.       15 

229 

15 

16 

16 

18 

23 

19 

14,20 

.     169 

.       23 

.     142 

173,215 

.     153 


142 

159 

215 

174 

34 

215 

35 

35 

35 

108, 

195, 


133 

10 

36 

117 

118 

10 

120, 

134 

38 

10 

10 

10 

73 

10 

117 


TABLE  OF  STATUTES  ix 

PAGE 

42  &  43  Vict.,  c.  33  Army  Discipline  and  Regulation  Act, 

1879 141 

44  &  45  Vict.,  c.  58  Army  Act,  1881  .  98,  140,  142,  145 

54  &  55  Vict.,  c.  54  Ranges  Act,  1891        ...  10,  38 

55  &  56  Vict.,  c.  43  Militaiy  Lands  Act,  1892     ...       10 

10 
10 
10 
10 
10 


58  &  59  Vict.,  c.  35  Naval  Works  Act,  1895 

59  &  60  Vict.,  c.  14  Short  Titles  Act,  1896 

60  &  61  Vict.,  c.  6  Military  Lands  Act,  1897 
63  &  64  Vict.,  c.  56  Military  Lands  Act,  1900 


3  Edw.  VII,  c.  47  Military  Lands  Act,  1903 

7  Edw.  VII,  c.  9  Territorial    and    Reserve    Forces    Act, 

1907 10 

8  Edw.  VII,  c.  25  Naval  Lands  (Volmiteers)  Act,  1908      .       10 

3  Geo,  V,  c.  2  Army  (Annual)  Act,  1913    .         .         .145 

4  &  5  Geo.  V,  c.  26  Army  (Supply  of  Food,  Forage,   and 

Stores)  Act,  1914  ...  98,  146 
4  &  5  Geo.  V,  c.  29  Defence  of  the  Realm  Act,  1914  .         .       84 

4  &  5  Geo.  V,  c.  63  Defence  of  the  Realm  (No.  2)  Act,  1914      85 

4  &  5  Geo.  V,  c.  65  Articles   of   Commerce   (Returns,    &c.) 

Act,  1914 147 

4  &  5  Geo.  V,  c.  70  Naval  Billeting,  &c.  Act,  1914      .        98,  145 

5  Geo.  V,  c.  8  Defence  of  the  Realm  Consolidation  Act, 

1914       .       40,  78,  104,  169,  174,  182,  184, 
186   192   199  201   217 

6  Geo.  V,  c.  26  Army  (Amendment)  Act,  1915  '    .    '    98',  146 

5  &  6  Geo.  V,  c.  58  Army  (Amendment)  No.  2  Act,  1915     .     146 

6  &  7  Geo.  V,  c.  63  Defence  of  the  Realm  (Acquisition  of 

Land)  Act,  1916  .  85,  176,  188,  196,  218 
6  &  7  Geo.  V,  c.  68  New  Ministries    and   Secretaries    Act, 

1916       ....  99,  103,  148 

8  &  9  (^o.  V,  c.  59  Termination     of     the     Present     War 

(Definition)  Act,  1918  .  .  .103 
10  &  11  Geo.  V,  c.  48  Indemnity  Act,  1920  .  89,  90,  101, 121, 

130,  158-67 


TABLE   OF   CASES 

PAGE 

Adams  v.  London  and  Blackwall  Railway  Co.  (1856)  2  Mac.  &  G.  118  ; 

2  Hall.  &  Tw.  285  ;  19  L.J.Ch.  557  ;    14  Jur.  679  ;   42  E.R.  46     134 
Anglo-Newfoundland  Development  Co.   Ltd.  v.  The  King  (1920) 

2K.B.  214;  89  L.J.K.B.  570 122 

Att.-Gen.  v.  Brown  (1920)  1  K.B.  773  ;  122  L.T.  558  ;  36  T.L.R.  165 

97,  107 
Att.-Gen.  v.  De  Keyser's  Royal  Hotel,  Ltd.  {see  under  De  Keyser's 

Hotel,  Ltd.  V.  R.). 
Att.-Gen.  v.  Donaldson  (1842)  10  M.  &  W.  117;    11  L.J.Ex.  338; 

152  E.R.  406 108 

Att.-Gen.  v.  Homer  (1884)  14  Q.B.D.  245;   54  L.J.Q.B.  227;    33 

W.R.  93  ;  49  J.P.  326 92,218 

Att.-Gen.  to  Prince  of  Wales  v.  Grossman  (1866)  L.R.  1  Ex.  381 ; 

4  H.  «&  C.  568  ;   35  L.J.Ex.  215  ;    12  Jur.  (N.S.)  712  ;    14  L.T. 

856  ;   14  W.R.  996 78 

Bamford  v.  Turley  (1862)  3  B.  &  S.  62 ;   31  L.J.Q.B.  286 ;   9  Jur. 
/     (N.S.)377;  10  W.R.  803  ;   122  E.R.  25  ....       68 

v/Bankers'  Case  (1700)  14  How.  St.  Tr.  184  ;  5  Mod.  29  ;  Skinner  601 ; 

1  Freem.  337 114,  129 

Blundell  V.  R.  (1905)  1  K.B.  516  ;  74  L.J.K.B.  91 ;  92  L.T.  53  ;  53 

W.R.  412  ;  21  T.L.R.  143 38 

Boaler,  In  re  (1915)  1  K.B.  21  ;  53  L.  J.K.B.  1629  ;  24  Cox  C.C.  335  ; 

111L.T.  497;  30T.L.R.  580;  58S.J.  634     .         .         .         .102 
Bombay  and  Persia  Steam  Navigation  Co.  Ltd.  v.  Maclay  (1920) 

The  Times,  July  15,  1920 123 

British  Cast  Plate  Manufacturers  v.  Meredith  (1792)  4  T.R.  794 ; 

100  E.R.  1306 68 

Broadmayne,  The  (1916)  P.  64;    85  L.J.P.  153;    114  L.T.  891; 

32  T.L.R.  304  ;  60  S.J.  367 136 

Camden  (Marquis)  v.   Batterbury  (1856)   7  C.B.   (N.S.)  864;    28 

L.J.C.P.  335  ;  5  Jur.  (N.S.)  1405  ;  7  W.R.  616  ;   141  E.R.  1055     180 
Central  Control  Board  (Liquor  Traffic)  v.  Cannon  Brewery  Co.  Ltd. 

(1919)  A.C.  744  ;  88  L.J.Ch.  464  ;  121  L.T.  361 ;  35  T.L.R.  552  ; 

17  L.G.R.  569 93 

Chester  v.  Bateson  (1920)  1  K.B.  829  ;  89  L.  J.K.B.  387  ;   18  L.G.R. 

212  ;   122  L.T.  684  ;  84  J.P.  65  ;  36  T.L.R.  255       .  .         97,  102 

China  Mutual  Steam  Navigation  Co.  v.  Maclay  (1918)  1  K.B.  33 ;  . 

87  L.  J.K.B.  95  ;  117  L.T.  831 ;  14  Asp.  M.C.  175  ;  34  T.L.R.  81  \ 

95,  123,  136,  155 
Churchward  v.  Ford  (1857)  2  H.  &  N.  446  ;  26  L.J.Ex.  354 ;  5  W.R. 

831  ;   157  E.R.  184 178 

Churchward  v.  Reg.  (1865)  L.R.  1  Q.B.  173  ;  6  B.  &  S.  807  ;  14  L.T. 

57  ;  122  E.R.  1391 130 

Commercial  and  Estates  Co.  of  Egypt  v.  Ball  (1920)  W.N.  172  ; 

36  T.L.R.  526 72 

Commissioner  of  Public  Works   (Cape   Colony)  v.   Logan   (1903) 

A.C.  355  ;  72  L.J.P.C.  91 ;  88  L.T.  779  ;   19  T.L.R.  545  .         .       92 


TABLE  OF  CASES  xi 

PAGE 

Coomber  v.  Berks.  Justices  (1884)  9  A.C.  61 ;    53  L.J.Q.B.  239 

50  L.T.  405  ;  32  W.R.  525  ;  48  J.P.  421  ..         .       113,  172 

Cooper  V.  Hawkins  (1904)  2  K.B.  164  ;  73  L.  J.K.B.  113  ;  89  L.T.  476 

52  W.R.  233  ;  68  J.P.  25  ;  19  T.L.R.  620  ;  1  L.G.R.  833  .         .113 
/Oooke's  Case  (1691)  1  Shower  K.B.  208  ;  93  E.R.  540  .         .         .     Ill 

De  Bode  (Baron)  in  re  (1838)  6  Dowl.  776  ;  I  W.W.  &  H.  332  .  .     134 

De  Bode  (Baron)  v.  Reg.  (1840)  2  Ph.  85  ;  41  E.R.  874  ;  1  Coop,  t 
Cott.  143;  47  E  R.  786.  (1845)  8  Q.B.  208;  115  E.R.  854, 
(1848)  13  Q.B.  364;    116  E.R.  1302.     (1851)  3  H.L.C.  449 

10  E.R.  176 117,  123,  129 

De  Dohs6  V.  Reg.  (1886)  66  L.  J.Q.B.  422  n. ;  3  T.L.R.  114     .         .     124 
De  Keyser's  Royal  Hotel,  Ltd.  v.  R.  ( 1918)  34  T.L.R.  329  (Peterson,  J. ) 
(1919)  2  Ch.  197  ;  88  L.J.Ch.  415  ;  120  L.T.  396 ;  63  S.J.  445 

35  T.L.R.  418  (C.A.) .  .  .  Sub  nomine.    Att.-Gen.  v.  De  Keyser' 
Royal  Hotel,  Ltd.  (1920)  A.C.  508;  122  L.T.  691 ;  64  S.J.  513 

36  T.L.R.  600 passim 

Doss  V.  Secretary  of  State  for  India  in  Council  (1875)  L.R.  19  Eq.  509 

32  L.T.  294  ;  23  W.R.  773 

Dunn  V.  Reg.  (1896)  1  Q.B.  116;   65  L.J.Q.B.  279;   73  L.T.  695 

44  W.R.  243  ;  60  J.P.  117 

Dyson  v.  Att.-Gen.  (1911)  1  K.B.  410 ;  80  L.J.K.B.  531 ;   103  L.T 

707  ;  55  S.J.  168  ;  27  T.L.R.  143 


/Ellis  V.  Earl  Grey  (1833)  6  Sim.  214  ;  2  L.  J.Ch.  181 ;  58  E.R.  574 

/Entick  V.  Carrington  (1765)  19  How.  St.  Tr.  1030;    2  Wils.  275 

95  E.R.  807 


118 
124 
123 
129 
125 


Feather  v.  Reg.  (1865)  6  B.  &  S.  257  ;  35  L.J.Q.B.  200  ;  12  L.T.  114 

122  E.R.  1191 124,  125,  130 

V^ox,  Ex  parte  (1793)  5  T.R.  276  ;   101  E.R.  155     .         .         .         .     153 
Fox,  The  (1811)  Edw.  312  ;  2  Roscoe  E.P.C.  61     .         .         .         .212 

Gorton  Local  Board  of  Health  v.  Prison  Commissioners  (1887)  (1904) 

2  K.B.  165  n.  ;  73  L.  J.K.B.  114  n.  ;  89  L.T.  478  n. ;  68  J.P.  27  ; 
1L.G.R.  838n 113 

Guaranty  Trust  Co.  v.  Hannay  (1915)  2  K.B.  536  ;  84  L.J.K.B.  1465  ; 

113  L.T.  98  ;  59  Sol.  J.  302  ;  21  Com.  Cas.  67         .         .         .     122 

Harding  v.  MetropoUtan  Railway  Co.  (1872)  L.R.  7  Ch.  154 :   41 

L.  J.Ch.  371 :   26  L.T.  109  :  20  W.R.  321  ....     134 

Hawkins  v.  Gathercole  (1857)  6  De  G.M.  &  G.  1 ;   24  L.J.Ch.  332  ; 

3  Eq.  Rep.  348  ;   1  Jur.  (N.S.)  481 ;  3  W.R.  194  ;  43  E.R.  1129     107 
Haynes  v.  Haynes  (1861)  1  Drew.  &  Sm.  426  ;  30  L.J.Ch.  578  ;  4  L.T. 

199;  7  Jur.  (N.S.)  595;  9  W.R.  497;  62  E.R.  442  .  .  .134 
Hellier  v.  Silcox  (1850)  19  L.J.Q.B.  295  ;  14  Jur.  573  .  .  179,  181 
Henley  &  Co.,  In  re  (1879)  9  Ch.  D.  469  ;  48  L.J.Ch.  147  ;  39  L.T.  53  ; 

,     26  W.R.  885 113 

vHeydon's  Case  (1584)  3  Rep.  7  ;  76  E.R.  637         ...         .     107 
Hodge  V.  Att.-Gen.  (1839)  3  Y.  &  C.  Ex.  342  ;  8  L.J.Ex.Eq.  28  ;  160 

E.R.  734 123 

Hole  V.  Barlow  (1858)  4  C.B.  (N.S.)  334 ;   27  L.J.C.P.  207  ;   4  Jur. 

(N.S.)  1019  ;  6  W.R.  619  ;   140  E.R.  1113       .         .  68,  210,  212 

Hosier  v.  Earl  of  Derby  (1918)  2  K.B.  671 ;    87  L.J.K.B.  1009 ; 

119  L.T.  351 ;  34  T.L.R.  477 123 


xii  TABLE  OF  CASES 

PAGE 

Howard  v.  Shaw  (1841)  8  M.  &  W.  118  ;  10  L.  J.Ex.  334  ;  151  E.R.  973     179 
Hudson's  Bay  Co.  v.  Maclay  (1920)  W.N.  170  ;  36  T.L.R.  469    99,  101,  136 

Incorporated  Society  v.  Reg.  (1900)  1  I.R.  464       .         .         .         .29 

Irwin  V.  Earl  Grey  (1862)  3  F.  &  F.  635 120 

Islington  Market  Bill,  In  re  (1835)  3  CI.  &  F.  513 ;    6  E.R.  153  ; 

12  M.  &  W.  20  n.  ;   152  E.R.  1094 112 

Kirk  V.  Reg.  (1872)  L.R.  14  Eq.  558 130 

Leaman  v.  R.  (1920)  36  T.L.R.  835 124 

Levi  V.Lewis  (1859)6  C.B.(N.S.)  766;  28  L.J.C.P.  304;  5Jur.(N.S.) 

1408  ;  141  E.R.  652  ;  (1861)  9  C.B.  (N.S.)  872  ;  30  L.J.C.P.  141  ; 

7  Jur.  (N.S.)  759  ;  9  W.R.  388  ;  142  E.R.  343  ..  .  180 
Liptonv.  Ford(1917)2K.B.  647;  86  L.J.K.B.  1241 ;  116  LT.  632; 

15  L.G.R.  699  ;  33  T.L.R.  459 96 

Lobitos  Oilfields  v.  Admiralty  Commissioners  (1917)  86  L.J.K.B. 

1444  ;  117  L.T.  28  ;  33  T.L.R.  472 90 

London  and  North  Western  Railway  v.  Evans  (1893)  1  Ch.  16 ; 

62  L.  J.Ch.  1 ;  2  R.  120  ;  67  LT.  630  ;  41  W.R.  149         92,  186,  218 


VMacbeath  v.  Haldeman  (1786)  1  T.R.  173  ;  99  E.R.  1036 
vjlagdalen  College  Case  (1616)  1  Rep.  746  ;  77  E.R.  1247 
^Maleverer  v.  Spinke  (1537)  1  Dyer  36  ;  73  E.R.  81 

Markeyv.  Coote(1876)Ir.  R.  lOC.L.  149      .  .  . 

Mitchell,  In  re  (1896)  12  T.L.R.  324 

Mitchell  V.  Reg.  (1896)  1  Q.B.  121,  n. ;  6  T.L.R.  181,  332 

Monckton  v.  Att.-Gen.  (1850)  2  Mac.  &  G.  402  ;  42  E.R.  156  . 
V  Money  v.  Leach  (1765)  19  How.  St.  Tr.  1001  ;  3  Burr.  1692  ;  97  E.R, 
/        1050  ;  3  W.  Bla.  555  ;  96  E.R.  320        ...         . 
^Monopolies,  Case  of  (1602)  11  Rep.  84b ;  77  E.R.  1260  . 


130 
120 
68 
179 
119 
124 
121 

125 
58 

38 


Ned's  Point  Battery,  In  re  (1903)  2  I.R.  192  ... 

Newcastle  Breweries  Ltd.  v.  R.  (1920)  1  K.B.  854  ;  89  L.J.K.B.  392 

123  L.T.  58  ;  36  T.L.R.  276  .         .        97,  98,  100»  136,  147,  165,  175 
New  Windsor  Corporation  v.  Taylor  (1899)  A.C.  41 ;  68  L.J.Q.B.  87  ; 

79  L.T.  450 ;  63  J.P.  164 113,  202 

Oldham  v.  Treasury  Commissioners  (not  reported)  .         .         .129 

Petition  of  Right,  In  re  a  ('Shoreham  Aerodrome  Case')  (1915) 
3  K.B.  649  ;  84  L.  J.K.B.  1961 ;  113  L.T.  575 ;  31  T.L.R.  596  ;  59 
S.J.  665  (1916)  W.N.  311    xix,  5, 66,  69, 169, 171, 172, 173, 200, 205, 218 

'Phillips  V.  Homfray  (1883)  24  Ch.D.  439  ;  52  L.J.Ch.  833  ;  49  L.T. 

5  ;  32  W.R.  2  ;  affirmed  (1886)  11  A.C.  466    .         .         .       178,  181 

Postmaster-(^neral,  Ex  'parte  :   In  re  Bonham  (1879)  10  Ch.D.  595  ; 

/        48  L.J.B.K.  84  ;  40  L.T.  16  ;  27  W.R.  325     .         .         .       110,  182 
*"  Proclamations,  Case  of  (1611)  12  Rep.  74  ;  77  E.R.  1352         .  43,  47 

R.  V.  Abbott  (1897)  2  I.R.  362 32,  35,  38,  92 

R.  V.  Birmingham  and  Oxford  Junction  Railway  Co.  (1850)  15  Q.B. 

634  ;  20  LJ.Q.B.  304  ;  117  E.R.  599 134 

V^.  V.  Broadfoot  (1743)  Foster,  Cr.  Cas.  154    .  .  .  .  .152 

R.  V.  Casement  (1917)  1  K.B.  98  ;  86  LJ.K.B.  467  ;   115  L.T.  277  ; 

25  Cox  C.C.  480  ;  60  S.J.  656  ;  32  T.L.R.  667  ..         .       56 

R.  V.  Doutre  (1884)  9  A.C.  745  ;  53  LJ.P.C.  84  ;  51  L.T.  669       130,  189 


TABLE  OF  CASES  xiii 

PAGE 

R.  V.  Halliday  (1917)  A.C.  260  ;   86  L.J.K.B.  1119  ;    116  L.T.  417  ; 
y      81  J.P.  237  ;  61  S.J.  443  ;  33  T.L.R.  336        .         .  96,  102,  104 

v4l.  V.  Hampden  (1637)  3  How.  St.  Tr.  825       .  xxiii,  59,  67,  138,  139,  147, 

148,  151,  170,  210 
R.  V.   Inland  Revenue  Commissioners:    In  re  Nathan  (1884)   12 

Q.B.D.  461  ;  53  L.J.Q.B.  229  ;  51  L.T.  46  ;   32  W.R.  543  ;   48 

/      J.P.  452 121 

^.  V.  King  (1694)  Comb.  245  ;  90  E.R.  456 153 

R.  V.  Leman  Street  Police  Station  Inspector:    Ex  parte  Venicoff 

(1920)  3  K.B.  72 '97 

R.  V.  London  and  North  Western  Railway  Co.  (1894)  2  Q.B.  512  ; 

63  L.J.Q.B.  695  ;   10  R.  359  ;  58  J.P.'^719       .  .  .  .134 

R.  V.  Powell  (1841)  1  Q.B.  352  ;   113  E.R.  1166      .         .         .  .     134 

R.  V.  Secretary  of  State  for  Home  Affairs  :   Ex  parte  Venicoff  (1920) 

3  K.B.  72 97 

R.  V.  Treasury  Commissioners  (1872)  L.R.  7  Q.B.  387 ;  41  L.J.Q.B. 
y      178  ;  26  L.T.  64  ;  20  W.R.  336  ;   12  Cox.  C.C.  277  .  .         .     134 

VK.  r.  Tubbs(1776)2Cowp.  512;  98E.R.  1215      .         .         .         .153 
R.  V.   Wormwood  Scrubbs  Prison  Governor  (1920)  2  K.B.   305  ; 

84  J.P.  94  ;  36  T.L.R.  432 96,  103 

Robinson  &  Co.,  Ltd.  v.  R.  (1920)  36  T.L.R.  773  .  .  .  .  101 
Robson,  In  re  (1846)  2  Ph.  84  ;  16  L.J.  105  ;  41  E.R.  873  .  .  117 
Rodgers  v.  Maw  (1846)  15  M.  &  W.  444  ;  4  D.  &  L.  66  ;  16  L.J.Ex. 

137  ;  153  E.R.  924 147 

Rolt,  Inre(1859)2DeG.  &  J.  44;  45E.R.  18  .  .  ,  .117 
Rooney  v.  Department  of  Agriculture  (1920)  1  I.R.  176  .  .93 

Russian  Bank  for  Foreign  Trade  v.  Excess  Insurance  Co.  (1918) 

2  K.B.  123  ;   87  L.J.K.B.  872  ;   24  Com.  Cas.  55  ;   63  L.T.  40 ; 

35  T.L.R.  42  ;  aflBrmed  (1919)  1  K.B.  39         .         .         .  .136 

Ryves  v.  Duke  of  Wellington  (1846)  9  Beav.  579 ;    15  L.J.Ch.  461 ; 

10  Jur.  697  ;  50  E.R.  475 119 

Saltpetre,  Case  of  (1606)  2  Rep.  12  ;  77  E.R.  1294  47-59-  170,  206, 210 
SanspareilH.M.S.(1900)P.  267;  69  L.  J.P.  127 ;  82  L.T.  606  :  9  Asp. 

M.L.C.  78  ;  16  T.L.R.  390 .126 

Sarpen,  The  (1916)  P.  306  ;  85  L.J.P.  209  ;  114  L.T.  1011 ;  32  T.L.R. 

575;  60  S.J.  538 136 

Sheffield  Conservative  and  Unionist  Club  v.   Brighten  (1916)  85 

L.J.K.B.  1669  ;  (1916)  W.N.  277  ;  32  T.L.R.  598  .  .  .  96 
Shenton  v.  Smith  (1895)  A.C.  229;   64  L.J.P.C.  119;    11  R.  375; 

72  L.T.  130  ;  43  W.R.  637 124 

Shotts  Iron  Co.  v.  Inglis  (1882)  7  A.C.  518 68 

V^mith  V.  Hodson  (1791)  4  T.R.  211 ;   100  E.R.  979  ..         .     198 

i/Stradling  v.  Morgan  (1684)  1  Plow.  199  ;  75  E.R.  305     .         .         .     107 

Thomas  v.  R.  (1874)  L.R.  10  Q.B.  31  ;  44  L.J.Q.B.  9  ;  31  L.T.  439  ; 

23  W.R.  176 129 

Tiverton  and  North  Devon  Railway  Co.  v.  Loosemore  (1884)  9  A.C. 

480  ;  53  L.J.Ch.  812  ;  50  L.T.  637  ;  32  W.R.  929  ;  48  J.P.  372  134 
Tobm  V.  R.  (1863)  14  C.B.  (N.S.)  505  ;  32  L. J.C.P.  216  ;  9  Jur.  (N.S.) 

1130  ;  8  L.T.  392  ;  11  W.R.  701 ;  143  E.R.  543  .  .  .  120 
Tobin  V.  R.  (1864)  16  C.B.  (N.S.)  310;  33  L.J.C.P.  199;  10  Jur. 

(N.S.)  1029  ;  10  L.T.  762  ;  12  W.R.  838  ;  143  E.R.  1148 

115,  125,  130,  135,  189 


xiv  TABLE  OF  CASES 

PAGE 

Von  Frantzius,  In  re  (1858)  2  De  G.  &  J.  126  ;  27  L.J.Ch.  368  ;  44 

E.R.  936 117,  130 

Wheaton  v.  Maple  (1893)  3  Ch.  48 ;   62  L.J.Ch.  963 ;   69  L.T.  203  ; 

41  W.R.  677 113,  172,  182 

*^ilkes  V.  Lord  Halifax  (1769)  19  How.  St.  Tr.  1076        .         .         .125 

-Wilkes  V.  Wood  (1763)  19  How.  St.  Tr.  1153  :  Lofft.  1 ;  98  E.R.  489     125 

viVillion  V.  Berkley  (1560)  Plowd.  223  ;  75  E.R.  339         ..  .     108 

Windsor  and  Annapolis  Railway  Co.  v.  R.  (1886)  11  A.C.  607  ;    55 

•  L.J.P.C.  41 ;  55  L.T.  271 ;  51  J.P.  260  .         .         .         .       130,  189 

Y.B.  8  Edw.  IV,  H.  41  (1469) 49 

Y.B.  21  Hen.  VII,  T.  27  b  (1506) 49 

Y.B.  3  Hen.  VIII,  fo.  115(1512) 211 

Y.B.  14  Hen.  VIII,  T.  pi.  16  (1522) 49 

Zamora  (1916)  P.  27  ;   113  L.T.  649  ;   31  T.L.R.  513  ;  59  S.J.  614  ; 

13  Asp.  M.L.C.  144 ;   1  Brit.  &  Col.  P.C.  309  ;  4  Lloyds  P.C.  1       72 
Zamora,  The  (1916)  2  A.C.  77;    85  L.J.P.  89;    114  L.T.  626;    32 

T.L.R.436;  60  S.J.  41 6;  13  Asp.  M.C.  330;  2  Brit.  &  Col.  P.C.  1 ; 

4  Lloyds  P.C.  1    .         .  6,  70,  95,  102,  203,  204,  206.  210,  212 


INTRODUCTION 

Leading  cases  in  Constitutional  Law  are  chiefly 
concerned  with  establishing  the  rights  of  individual 
citizens  in  the  face  of  exceptional  interference  by 
the  Executive,  and  a  heavy  crop  of  judicial  decisions 
on  this  subject  might,  at  first  sight,  have  been 
expected  in  the  years  1914-19.  But  in  fact  the 
instances  in  which  such  questions  were  raised  and 
decided  by  Enghsh  Courts  are  few.  It  is  instructive 
to  observe  the  reason  for  their  scarcity ;  certainly 
the  explanation  is  not  to  be  found  in  the  slightness 
or  infrequency  of  official  interference  with  private 
rights  within  these  islands  during  those  anxious 
years. 

The  Great  War  necessarily  involved  such  action 
in  an  unprecedented  degree.  But  public  opinion 
and  the  House  of  Commons  generally  recognized 
as  inevitable  the  claim  of  the  Authorities  to  interfere 
drastically  in  the  interests  of  national  defence  with 
individual  rights,  and  the  conduct  of  the  Crown's 
advisers  was  not  regarded  as  opposed  to  the  interests 
of  citizens  but  rather  as  representing  the  claims  of 
the  whole  body  politic  against  some  individual 
member. 

In  the  seventeenth  century,  on  the  contrary, 
constitutional  rights  were  fought  for  in  the  Law 
Courts  and  insisted  upon  in  Parliamentary  debate 
because  the  Crown  on  the  one  side  was  felt  to  be 
opposed  to  Parliament  and  people  on  the  other. 
The  jealousy  and  suspicion  of  Executive  interference 
which   were   thus   engendered   profoundly   affected 


xvi  INTRODUCTION 

the  course  of  constitutional  practice  in  times  of 
crisis  thereafter.  Claims  by  the  Crown  to  disregard 
private  rights  on  the  plea  of  the  needs  of  national 
defence  were  jealously  scrutinized.  Even  in  a  year 
of  disaster  like  1757  the  authority  of  Parhament 
was  invoked  to  provide  (and,  be  it  noted,  to  pay  for) 
lands  urgently  needed  for  the  fortification  of  Ports- 
mouth, Chatham,  and  Plymouth.  The  powers  of 
taking  lands  which  Pitt  exercised  to  protect  the 
realm  against  the  danger  of  Napoleon's  projected 
invasion  were  based  upon  express  ParHamentary 
sanction.  But  in  the  century  which  followed 
Waterloo  there  was  little  occasion  to  analyse  the 
extent  of  the  powers  which  the  Crown  might  employ 
without  Parliamentary  authority  in  disregard  of 
private  rights  for  the  purpose  of  national  defence  ; 
and  when  in  August  1914  the  emergency  arose  the 
Government  could  count  with  confidence  on  general 
acquiescence  in  the  steps  it  felt  bound  to  take  on 
behalf  of  a  united  people. 

Moreover,  Parliament  in  the  early  days  of  the 
war  rushed  through  a  piece  of  emergency  legislation 
which  authorized  the  Executive,  without  further 
reference  to  the  Legislature,  to  make  and  enforce 
regulations  '  for  securing  the  pubHc  safety  and  the 
defence  of  the  realm  '.^     The  original  regulations 

^  The  original  Defence  of  the  Realm  Bill  was  introduced  on 
Friday,  August  7,  1914,  and  was  passed  through  all  its  stages 
at  that  sitting  of  the  Commons  without  discussion.  As  no  printed 
copies  were  available  (for  Bills  are  not  officially  printed  for  the 
use  of  Members  till  they  have  been  read  a  first  time)  the  Home 
Secretary  read  the  terms  of  the  Bill  to  the  House  {Pari.  Debates, 
vol.  Ixv,  col.  2192),  and  announced  a  special  Saturday  sitting 
next  day  when  the  Royal  Assent  might  be  given  to  the  Bill 
after  it  had  passed  the  Lords.    The  limited  scope  of  this  first 


INTRODUCTION  xvii 

were  few  in  number  and  were  addressed  to  obvious 
risks  of  danger  to  national  safety  arising  from  the 
conditions  of  such  a  war.  But  these  Regulations 
multiplied  so  fast  and  soon  touched  upon  so  great 
a  variety  of  topics  that  lawyers  as  well  as  laymen 
found  it  almost  impossible  to  ascertain  whether 
official  claims,  alleged  to  be  based  on  one  or  other  of 
these  Regulations,  were  legally  justified.  It  was 
not  until  the  actual  fighting  was  over,  though  the 
operation  of  many  of  these  Regulations  continued, 
that  a  challenge  as  to  their  scope  and  vaHdity  began 
to  be  commonly  heard. 

In  the  meantime  administrative  convenience  and 
patriotic  acquiescence  combined  to  encourage  the 
belief  that  prerogative  powers  in  time  of  war  were 
practically  without  limit.  The  correction  which  the 
Law  Courts  could  have  applied  was  not  sought,  so 
that  the  few  cases  on  this  subject  which  have 
recently  come  up  for  judicial  decision  have  a  special 
value  and  importance  because  they  have  helped  to 
re-establish  the  true  constitutional  view.  Amongst 
these  cases,  the  litigation  which  the  authors  of  this 
volume  have  called  '  The  Case  of  Requisition '  may 
fairly  claim  to  be  the  chief.  In  the  com?se  of  that 
case  the  official  contention  that  the  Crown  could 
acquire  compulsorily  the  use  of  a  subject's  land  for 
the  purposes  of  national  defence  without  incurring 
any  obligation  to  pay  for  it  was  shown  to  be  without 

enactment  was  indicated  by  the  Minister's  remark  that  summary 
Courts  jnight  be  needed  for  '  cases  of  tapping  wires  or  attempts 
to  blow  up  bridges '.  Yet  it  was  from  this  modest  beginning 
that  there  developed,  during  the  next  four  years,  under  the 
unprecedented  conditions  of  war,  the  portly  volume  of  nearly 
four  hundred  pages  known  as  the  '  Consolidated  Defence  of  the 
Realm  Regulations '.    Parturiunt  mures,  nascetur  terribilis  mons. 

2388  ^ 


xviii  INTRODUCTION 

historical  or  legal  foundation,  and  the  House  of 
Lords  by  a  unanimous  judgment  laid  it  down 
that  while  public  necessity  may  justify  expropriation 
it  cannot  destroy  the  subject's  right  to  be  paid 
for  the  land  so  taken. 

The-actual  question  raised  in  the  litigation  which 
is  the  subject  of  this  book  was  simple  enough.  The 
War  Office,  desiring  to  house  the  Head-quarters 
Staff  of  the  Royal  Flying  Corps,  decided  that  a  well- 
known  hotel  building  on  the  Thames  Embankment 
was  suitable  for  the  purpose  and  took  possession  of 
it  from  the  owners.  In  thus  acting,  the  War  Office 
was  following  a  course  which  had  repeatedly  been 
taken  during  the  war  by  Government  departments 
in  London  and  elsewhere.  The  duration  of  such 
occupation  by  the  Crown  was  indefinite  and  would 
depend  upon  the  exigences  of  the  Pubhc  Service, 
of  which  the  department  would  be  the  sole  judge. 
The  department  were  willing  that  payment  should 
be  made  out  of  public  funds  for  the  use  of  the  hotel 
as  a  matter  of  grace,  and  proposed  to  refer  the  matter 
of  the  amount  to  be  paid  to  a  Commission  which 
had  been  set  up  to  advise  the  Crown  what  payments 
should  '  in  reason  and  fairness '  be  made  in  respect 
of  direct  and  substantial  loss  incurred  through  the 
exercise  of  the  Crown's  rights  and  duties  under 
the  Defence  of  the  Realm,  in  cases  where  the  subject 
had  no  other  remedy.  But  the  Crown  denied  that 
the  Hotel  Company  had  any  '  right '  to  compensation. 

The  Hotel  Company  insisted  that  it  had,  and  the 
question  was  therefore  precisely  raised  whether  when 
the  Crown  requisitions  property  in  time  of  war  for 
the  Defence  of  the  Realm  there  arises  any  legal 
obligation  to  pay  for  the  property  thus  requisitioned. 


•   INTRODUCTION  xix 

The  Suppliants  in  launching  their  Petition  of 
Right  were  faced  with  the  difficulty  that  this 
que^ion  appeared  to  have  been  already  answered  in 
favour  of  the  Crown's  contention  in  a  previous 
decision.  This  was  the  Shoreham  Aerodrome  Case/ 
in  which  the  Court  of  Appeal  had  unanimously 
affirmed  the  view  expressed  by  Mr.  Justice  Avory 
that  the  Crown,  both  by  virtue  of  the  Royal  Pre- 
rogative and  under  the  Defence  of  the  Realm 
Regulations,  was  entitled  to  take  possession  of  and 
occupy  land  and  premises  for  the  purposes  of  the 
defence  of  the  realm  without  making  any  com- 
pensation therefor.  It  seemed  fairly  clear  that 
this  decision  would  apply  to  the  question  raised 
in  connexion  with  the  requisition  of  De  Keyser's 
Hotel,  but  advocates  faced  with  a  decision  which 
is  opposed  to  their  contention  struggle  to  find 
a  ground  of  distinction  and  are  sometimes  assisted 
in  these  refinements  by  a  sympathetic  Judge. 
The  Shoreham  Aerodrome  case,  like  the  De  Keyser 
Hotel  case,  was  concerned  with  the  requisition 
of  real  property  for  purposes  connected  with  the 
Air  Services  of  the  Crown,  but  it  was  suggested 
that  there  might  be  a  distinction  between  the 
compulsory  taking  of  land  to  accommodate  a  fight- 
ing unit  on  the  coast,  and  the  requisition  of 
a  building  in  the  MetropoUs  for  the  purpose  of 
housing  an  administrative  body.  Mr.  Justice  Peter- 
son, before  whom  the  De  Keyser  Hotel  case  first 
came,  having  come  to  the  conclusion  that  the  occupa- 
tion of  the  hotel  was  necessary  for  the  purpose  of 
securing  the  public  safety  and  the  defence  of  the 
realm,  considered  the  question  of  law  which  he  had 
^  In  re  a  Petition  of  Right  [1915]  3  K.B.,  649. 


XX  INTRODUCTION 

to  decide  as  answered  for  him  by  the  Court  of 
Appeal  in  the  Shoreham  Aerodrome  case  :  '  There- 
fore,' he  said  in  his  judgment,  '  it  is  not  my  opinion 
which  I  am  expressing  when  I  come  to  the  conclusion 
that  the  present  Petition  must  be  dismissed.  What- 
ever may  be  the  ultimate  decision  on  the  rights  of 
subjects  as  against  the  Crown  in  cases  of  this 
description,  for  the  present  purpose  I  must  recognize 
that  I  am  bound  by  the  decision  of  the  Court  of 
Appeal  and  accordingly  I  must  dismiss  the  Petition.' 
The  Suppliants  thereupon  appealed  to  the  Court 
of  Appeal  and  endeavoured  to  distinguish  the  present 
case  from  its  predecessor  by  urging  that  the 
Shoreham  Aerodrome  case  was  analogous  to  an 
entry  upon  land  by  the  sea  .coast  to  dig  trenches, 
and  was  not  analogous  to  the  taking  of  lands  or 
buildings  for  purely  administrative  purposes.  The 
attempt  thus  to  distinguish  the  two  cases  gained 
in  piquancy  from  the  circumstance  that  one  of  the 
Lords  Justices  had  also  been  a  party  to  the  earlier 
decision.  When  the  judgment  came  to  be  given 
the  Master  of  the  Rolls  insisted  upon  the  suggested 
distinction  and  said  of  the  Shoreham  Aerodrome 
case  :  ^  '  Whether  rightly  decided  or  not — and  it 
is  of  course  still  open  to  review  in  the  House  of  Lords 
— ^it  has  no  application  to  such  a  case  as  the  present, 
namely,  taking  possession  of  land  and  buildings  for 
administrative  purposes.'  Lord  Justice  Warrington 
also  found  it  possible  to  draw  the  required  distinction, 
and  thus  the  Suppliants  succeeded  in  obtaining  the 
support  of  the  majority  in  the  Court  of  Appeal  and 
the  Crown  became  Appellants  in  the  House  of 
Lords.  It  is  amusing  to  note  that  in  the  supreme 
1  (1919)  2  Ch.,  229. 


INTRODUCTION  xxi 

tribunal  (where  the  previous  decision  of  the  Court 
of  Appeal  in  the  Shoreham  case  could  not  cojitrol 
the  issue)  the  attempt  to  find  distinctions  which 
advocates  and  judges  had  been  driven  to  draw  in 
the  Courts  below,  did  not  find  much  favour.  '  I  am 
bound  to  say ',  observed  Lord  Dunedin,^  '  that 
I  do  not  think  that  this  case  can  be  distinguished 
from  that  in  essential  particulars.  The  existence 
of  a  state  of  war  is  common  to  both.  As  to  the 
necessity  for  the  taking  over  of  the  particular 
subject,  the  Crown  Authorities  must  be  the  judge 
of  that,  and  the  evidence  as  to  the  necessity  for  the 
occupation  of  these  premises  in  the  opinion  of  the 
Crown's  advisers  is  just  as  distinct  and  uncontradicted 
in  this  case  as  it  was  in  that.  I  confess  that  had  I 
been  sitting  in  the  Court  of  Appeal  I  should  have 
held  the  same  view  as  was  expressed  by  Peterson,  J., 
— ^namely,  that  it  was  ruled  by  the  case  of  In  re 
a  Petition  of  Right.'' 

Here  then  is  a  pretty  illustration  of  the  working 
of  precedents  in  EngHsh  Case  Law !  The  majority 
of  the  Court  of  Appeal  and  all  the  Judges  in  the 
House  of  Lords  arrived  at  the  same  conclusion — but 
by  different  means.  In  the  Court  of  Appeal  where 
the  earlier  decision  mattered,  the  Court  reached 
the  correct  result  by  drawing  a  distinction  between 
the  two  cases  ;  in  the  House  of  Lords  where  the 
earher  decision  created  no  obstacle,  the  distinction 
was  declared  not  to  exist,  the  earlier  decision  was 
overruled,  and  the  Court  of  Appeal's  later  view  was 
approved. 

But  it  may  be  safely  asserted  that  the  real  reason 
for  the  view  taken  by  the  Court  of  Appeal  is  to 
1  App.  A,  p.  171. 


xxii  INTRODUCTION 

be  found  in  the  historical  researches  which  had 
taken  place  since  the  Shoreham  case,  and  in  the 
light  which  these  threw  upon  an  obscure  and  almost 
forgotten  corner  of  constitutional  law.  The  Sup- 
pHants  were  the  first  to  institute  a  search  and  they 
presented  such  material  as  they  had  to  the  Court 
of  Appeal  in  the  course  of  their  argument.  The 
Master  of  the  Rolls  thereupon  decided  that  the 
hearing  should  be  adjourned  in  order  that  a  more 
complete  examination  of  the  records  might  be  made 
with  the  resources  which  the  Crown  had  at  hand. 
The  conclusion  was  a  remarkable  one  :  '  The  result 
of  the  searches  which  have  been  made ',  said  the 
late  Lord  Swinfen/  '  is  that  it  does  not  appear 
that  the  Crown  has  ever  taken  the  subject's  land 
for  the  defence  of  the  realm  without  paying  for  it ; 
and  even  in  Stuart  times  I  can  trace  no  claim  by 
the  Crown  to  such  a  prerogative.'  Lord  Justice 
Warrington  similarly  observed,  in  reference  to  the 
many  ancient  records  which  were  brought  to  the 
notice  of  the  Court  of  Appeal,^  '  There  is  no  trace 
in  any  of  them  of  an  assertion  on  the  part  of  the 
Crown  of  a  right  to  take  and  hold  possession  of  the 
subject's  land  without  paying  for  it '.  Lord  Dunedin, 
in  his  speech  in  the  House  of  Lords,  analysed  the 
effect  of  the  records  as  follows :  ^  '  There  is  a  uni- 
versal practice  of  payment  resting  on  bargain  before 
1708,  and  on  statutory  power  and  provision  after 
1708.  On  the  other  hand,  there  is  no  mention  of 
a  claim  made  in  respect  of  land  taken  under  the 
Prerogative  for  the  acquisition'  of  which  there  was 
neither   bargain   nor   statutory   sanction.      Nor   is 

1  (1919)  2  Ch.,  221.  2  (1919)  2  Ch.,  232. 

3  App.  A,  p.  171. 


INTRODUCTION  xxiii 

there  any  proof  that  any  such  acquisition  had  taken 
place.'  The  decision  in  the  Shoreham  case  was 
given  before  this  investigation  of  ancient  records 
had  been  made  and  it  is  useful  both  for  historians 
and  for  lawyers  to  observe  how  greatly  the  historical 
inquiry  assisted  the  conclusion  ultimately  reached 
as  a  matter  of  law. 

The  analogy  to  this  instance  of  history  coming 
in  to  correct  the  first  impressions  of  some  lawyers  is 
to  be  found  in  the  famous  case  of  Ship-Money,^  and 
in  the  course  of  the  argument  for  the  Suppliants 
in  the  Court  of  Appeal  it  was  thought  not  unseemly 
to  remind  the  Lords  Justices,  who  were  troubled 
by  the  Shoreham  decision,  of  the  parallel.  Sir 
George  Crooke  was  one  of  the  Justices  of  the  Court 
of  King's  Bench  who  upheld  the  side  of  Hampden, 
but  he  was  also  one  of  the  Judges  who  previous  to 
Mr.  St.  John's  two-days'  argument  in  that  trial — '  the 
finest  argument  that  had  ever  been  heard  in  West- 
minster Hall '  as  Lord  Campbell  reminds  us — had 
signed  an  opinion  for  the  King  asserting  the  legality 
of  ship-money.  Sir  George  Crooke  in  his  judgment 
explains  that»he  signed  the  Opinion  because  it  was 
the  view  of  the  majority  of  the  Judges  though  he 
did  not  himself  share  it, — ^thus  acting  in  the  same 
way  as  a  dissenting  member  of  the  Judicial  Com- 
mittee would  act  to-day  when  reporting  to  the 
Crown  the  advice  of  the  supreme  Imperial  tribunal. 
But  Mr.  Justice  Crooke  was  not  content  to  justify 
his  apparent  change  of  view  by  drawing  a  distinction 
between  his  advisory  and  his  judicial  functions, 
for  he  is  at  pains  to  add :  '  And  if  I  had  been  of 
that  opinion  absolutely,  now  having  heard  all  the 
1  3  How.  St.  Tr.  825. 


xxiv  INTRODUCTION 

arguments  on  both  sides,  and  the  reasons  of  the 

King's  Counsel  to  maintain  this  writ,  and  why  the 

Defendant  is  to   be  charged;    and  the  argument 

of  the  Defendant's  counsel  against  the  writ,  and  their 

reasons  why  the  Defendant  should  not  be  charged 

to  pay  the  money  assessed  him,  and  having  duly 

considered  the  records  and  precedents  showed  unto 

me,  especially  those  of  the  King's  side,  I  am  now 

of  an  absolute  opinion  that  this  writ  is  illegal,  and 

declare  my  opinion  to  be  contrary  to  that  which  is 

subscribed  by  us  all.    And  if  I  had  been  of  the  same 

opinion    that    was    subscribed,    yet    upon    better 

advisement  being  absolutely  settled  in  my  judgment 

and  conscience  in  a  contrary  opinion,   I  think  it 

no  shame  to  declare  that  I  do  retract  that  opinion, 

for  humanum  est  errare,  rather  than  to  argue  against 

my  own  conscience,  and  therefore  none  having,  as  I 

conceive,  removed  those  difficulties,  I  shall  proceed 

to  my  argument,  and  show  the  reasons  of  my  opinion, 

and  leave  the  same  to  my  lords  and  brothers.    Not 

one  precedent  nor  record  in  any  precedent  time, 

that  hath  been  produced  or  showed  unto  me,  that 

doth  maintain  any  writ,  to  lay  such  a  charge  upon 

any  county,  inland  or  maritime.' 

This  curious  extract  from  the  3rd  volume  of  the 

State  Trials^  is  from  a  judgment    pronounced  in 

1637.     But  the  judgment  in  the  Case  of  Requisition 

283  years  later  teaches  the  same  lesson, — the  lesson 

that  the  foundations  of  constitutional  law  He  deeply 

embedded  in  ground  which  is  in  the  joint  occupation 

of  historians  and  lawyers,  and  that  the  protection  of 

private  citizens  against  unfounded  claims  by  the 

Executive  is  one  of  the  most  valuable  functions  of 

the  judiciary.  JOHN  SIMON. 

1  p.  1146. 


CHAPTER  I 

THE  HISTORY  OF  THE  CASE 

The  following  statement  of  the  facts  is  taken 
from  the  judgement  of  Lord  Dunedin  ^ : 

*  In  April  1916  the  Army  Council  finding  it 
necessary  to  have  accommodation  in  London  for 
the  head- quarters  personnel  of  the  Royal  Flying 
Corps  and  for  the  design  section  of  the  same,  com- 
municated with  the  Board  of  Works  with  a  view  to 
their  finding  a  suitable  building.  That  Department, 
which  had  previously  had  some  tentative  offers 
from  the  Receiver  and  Manager  in  possession  of  the 
premises  belonging  to  the  De  Keyser  Hotel  Com- 
pany, Limited,  came  to  the  conclusion  that  the 
building  known  as  De  Keyser' s  Hotel  would  suit. 
They  communicated  with  the  War  Office  to  that 
effect  on  the  18th  April  1916,  and  on  the  same  date 
applied  to  the  Receiver  to  see  on  what  terms  he 
would  let.  After  a  short  period  of  ineffectual 
negotiation,  the  Board  of  Works,  on  the  29th  April, 
informed  the  Receiver  that  "  after  full  consideration 
of  the  matter  the  Board  are  of  the  opinion  that  it 
will  be  to  the  advantage  of  all  concerned  to  refer 
the  question  of  the  amount  to  be  paid  by  the 
Government  for  the  use  of  such  of  the  hotel  premises 
as  will  be  required  to  the  Defence  of  the  Realm 
Losses  Commission.  In  these  circumstances  the 
Board  have  no  option  but  to  communicate  with  the 
War  Office  with  a  view  to  the  hotel  premises, 
excluding  the  shops,  being  requisitioned  under  the 
Defence  of  the  Realm  Acts  in  the  usual  manner." 
Following  on  this  communication  the  War  Office, 

1  See  App.  A,  p.  168. 


2388 


B 


2      '  /         ''    CASE' OF  REQUISITION 

on'tiie^ist'  May* 'wrote  as  follows  to  the  Receiver  : 
"  De  Keyser's  Royal  Hotel,  E.G.     I  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.  ...  I  enclose  forms  of 
claim  for  submission  to  the  Defence  of  the  Realm 
Losses    Commission.      Compensation,    as    you    are 
probably  aware,  is  made  ex  gratia  and  is  strictly 
limited   on   the   actual   monetary   loss    sustained." 
On  receipt  of  this  letter  the  Receiver  expressed  his 
willingness  to  facilitate  the  taking  possession,  but  at 
the  same  time  he  safeguarded  his  position  by  the 
following  letter  on  May  3rd  :    "I  write  to  inform 
you  that  I  have  instructed  Messrs.   John  Barker 
&  Son,  Limited,  to  represent  me  at  the  making  of 
the  inventory  of  the  contents  of  this  hotel,   and 
also  to  meet  your  representative,  there  to-morrow 
and   to    render   every    facility   in    order    that    the 
necessary  work  may  be  done  with  the  utmost  expe- 
dition.    I  desire,  however,  to  inform  you  that  the 
steps  that  I  am  taking  are  without  prejudice  to  the 
question  as  to  whether  the  Army  Council  are  within 
their  rights  in  acquiring  possession  of  the  above 
property  under  their  notice  dated  1st  May  1916, 
as  to  which  I  am  being  advised."    This  was  followed 
up  by  a  letter  of  5th  May  to  the  following  effect : 
"  Referring  to  the  letter  of  the   1st  instant  from 
Captain  Cole  of  the  Lands  Branch,  War  Office,  it 
does  not  seem  to  me  that  the  acquisition  of  this 
building  as  offices  is  necessary  for  the  purpose  of 
securing  the  public  safety  or  the  Defence  of  the 
Realm,  or  that  such  an  acquisition  is  within  the 
powers    conferred   by   the   Defence    of   the   Realm 
Consolidation  Regulations,  1914.    I  must,  therefore, 
enter  a  protest  against  the  notice  contained  in  the 
letter  if  acted  upon,  and  you  must  understand  that 
anything  which  I  am  doing  in  the  matter  is  without 
prejudice  to  the  rights  of  all  parties  interested  in 


THE  HISTORY  OF  THE  CASE  3 

the  hotel.  I  think  that  a  fair  rent  might  be  fixed 
by  a  personal  negotiation  between  the  representative 
of  the  authority  acquiring  the  building  and  myself, 
but  failing  this  I  would  ask  you  to  agree  to  submit 
the  question  to  arbitration."  To  this  the  Office  of 
Works  replied  on  the  9th  May  :  "  With  regard  to 
your  letter  of  the  5th  instant,  the  premises  having 
been  commandeered  by  the  Military  Authorities 
under  the  Defence  of  the  Realm  Acts,  the  amount 
of  payment  to  the  Applicants  out  of  public  funds 
in  respect  of  direct  and  substantial  loss  incurred  and 
damage  sustained  by  them  by  reason  of  interference 
with  the  applicants'  property  or  business  through 
the  exercise  of  the  Crown  of  its  rights  and  duties  in 
Defence  of  the  Realm  will  be  determined  by  the 
Defence  of  the  Realm  Losses  Commission.  Having 
regard,  therefore,  to  paragraph  4  of  your  letter  it 
would  seem  advisable  for  a  claim  to  be  made  on 
a  form  prepared  for  the  purpose,  a  supply  of  which 
I  believe,  you  have,  as  soon  as  possible."  As  no 
settlement  was  arrived  at  and  the  Receiver  declined 
to  go  before  the  Losses  Commission  there  was 
presented  a  Petition  of  Right  by  the  De  Keyser 
Company.' 

The  prayer  of  the  Petition  claimed  : 

(1)  A  declaration  that  your  Suppliants  are  entitled 
to  payment  of  an  annual  rent  so  long  as  your 
Majesty's  Principal  Secretary  of  State  for  the  War 

department  of  Your  Majesty's  Army  Council  or  any 
>ther  person  or  persons  acting  on  your  Majesty's 
>ehalf  continues  in  use  and  occupation  of  the  said 
)remises. 

(2)  The  sum  of  £13,520  lis.  Id,  for  use  and  occupa- 
tion of  your  Suppliants'  said  premises  by  your 
Suppliants?  permission  from  the  8th  day  of  May 
1916  to  the  14th  day  of  February  1917. 

(3)  In  the  alternative  an  inquiry  as  to  .what  is 
a  fair  rent  of  the  said  premises  and  payment  of  the 
sum  to  be  found. 

B2 


4  CASE  OP  REQUISITION 

(4)  A  declaration  that  your  Suppliants  are 
entitled  to  a  fair  rent  for  use  and  occupation  by- 
way of  compensation  under  the  Defence  Act,  1842. 

(5)  Further  a  declaration  that  your  Suppliants 
are  entitled  compensation  pursuant  to  the  Defence 
Act  1842  for  such  other  losses  and  injurious  con- 
sequences as  aforesaid. 

(6)  Such  other  declaration  as  to  your  Suppliants' 
rights  in  the  premises  as  Your  Majesty's  High  Court 
of  Justice  may  deem  right  and  proper. 

By  his  Answer  and  Plea  His  Majesty's  Attorney- 
General  raised  the  following  contentions  : 

(4)  On  or  about  the  29th  April  1916,  in  conse- 
quence of  the  state  of  war  then  and  still  existing 
between  His  Majesty  and  certain  Foreign  Powers, 
it  became  necessary  for  the  purpose  of  securing  the 
public  safety  and  the  defence  of  the  Realm  that 
possession  of  the  Suppliants'  land  and  premises 
known  as  the  De  Keyser's  Royal  Hotel  should  be 
taken  by  the  Competent  Military  Authority  on 
behalf  of  and  for  the  use  of  His  Majesty. 

(5)  By  reason  of  the  aforesaid  necessity  possession 
was  on  or  about  the  1st  May  1916  taken  of  the  said 
lands  and  premises  by  and  under  the  authority  of 
the  Competent  Military  Authority  on  behalf  of  and 
for  the  use  of  His  Majesty.  Such  possession  was 
properly  and  lawfully  taken  by  virtue  of  His  Majesty's 
Royal  Prerogative  as  well  as  by  virtue  of  the  powers 
conferred  by  the  Defence  of  the  Realm  Consolidation 
Act,  1914,  and  of  the  Regulations  issued  thereunder 
by  His  Majesty  in  Council. 

(6)  The  Attorney-General  further  gives  the  Court 
to  understand  and  be  informed  that  His  Majesty 
has  acquired  from  the  Suppliants  no  right  in  or 
over  the  said  lands  and  premises,  and  that  beyond 
the  right  to  take  and  use  the  same  for  so  long  as 
may  be  necessary  for  the  purpose  of  securing  the 
public  safety  and  the  Defence  of  the  Realm  during 
the   continuance   of   a   state   of   war   between   His 


THE  HISTORY  OF  THE  CASE  6 

Majesty  and  any  Foreign  Power  His  Majesty  claims 
as  against  the  Suppliants  no  right  or  interest  in  the 
said  lands  and  premises. 

(7)  No  rent  or  compensation  is  by  law  payable  to 
the  Suppliants  in  respect  of  the  matters  aforesaid 
or  any  of  them  either  under  the  Defence  Act,  1842 
or  at  all.  The  Suppliants  have  been  offered  on 
behalf  of  His  Majesty  payment  of  such  sum  as  in 
the  opinion  on  the  Defence  of  the  Realm  Losses 
Commission  ought  in  reason  and  fairness  to  be  paid 
to  them  out  of  public  funds  in  respect  of  direct  and 
substantial  loss  incurred  and  damage  sustained  by 
them  by  reason  of  interference  with  their  property 
or  business  in  the  United  Kingdom  through  the 
exercise  by  the  Crown  aforesaid  of  its  rights  and 
duties  in  the  Defence  of  the  Realm.' 

The  Petition  was  heard  before  Mr.  Justice  Peterson 
on  March  20,  21,  and  22,  1918.  A  considerable  body 
of  evidence,  both  oral  and  documentary,  was  adduced 
for  the  purpose  of  establishing  that  the  Suppliants 
had  voluntarily  allowed  the  officers  of  the  Crown 
to  occupy  the  hotel  in  circumstances  from  which  an 
agreement  to  pay  rent  for  the  occupation  of  premises 
arose  by  implication.  This  question  of  fact  was 
decided  by  Mr.  Justice  Peterson  in  favour  of  the 
Crown,^  the  learned  judge  being  of  opinion  that  it 
was  impossible  to  come  to  the  conclusion  that 
possession  was  voluntarily  delivered,  or  that  the 
Crown  was  using  and  occupying  the  hotel  with  the 
Suppliants'  permission.  Having  regard  to  what 
was  said  in  In  re  a  Petition  of  Eight  ^  and  in  The 

1  De  Keyser's  Royal  Hotel,  Ltd.,  v.  The  King,  34  T.L.R.  .329. 

2  (1915)  3  K.B.  649.  Reported  under  this  title  for  the  reason 
that  it  was  inexpedient  at  the  time  to  refer  to  the  property  and 
locality  (an  aerodrome  at  Shoreham  in  Sussex)  which  was  the 
subject  of  the  litigation.    The  Shoreham  case  was  fully  argued 


6  CASE  OF  REQUISITION 

Zamora  ^  he  felt  bound  to  come  to  the  conclusion  that 
the  occupation  was  necessary  for  securing  the  public 
safety  and  the  defence  of  the  Realm.  While  ex- 
pressing no  opinion  upon  the  questions  of  law  argued 
in  In  re  a  Petition  of  Right  ^  (which  were  not  argued 
before  him),  the  learned  Judge  held  himself  bound 
by  the  decision  of  the  Court  of  Appeal  in  that  Case 
and  gave  judgment  for  the  Crown. ^ 

The  arguments  in  the  Court  of  Appeal  were 
mainly  directed  in  the  first  instance  to  a  detailed 
examination  of  the  legislation  relating  to  the  taking 
of  land  for  purposes  of  defence,  which  culminated  in 
the  Defence  Act,  1842.*  Another  line  of  historical 
investigation  was,  however,  developed  as  the  argu- 
ment proceeded.  In  preparing  themselves  to  argue 
the  Case  the  Suppliants  had  commenced  to  make 
investigations  at  the  Record  Office  into  the  practice 

in  the  House  of  Lords  but  no  judgment  was  given,  the  Attorney- 
General  (Sir  Frederick  Smith)  stating  on  the  fourth  day  of  hearing 
that  there  were  grounds  in  the  special  circumstances  of  the 
case  for  treating  the  matter  as  being  one  which  in  the  original 
contemplation  of  the  parties  was  to  be  dealt  with  under  the 
^Defence  Act,  1842,  The  Appeal  was  accordingly  withdrawn, 
the  Crown  consenting  to  pay  compensation  as  provided  by  the 
Defence  Act,  1842,  and  the  acts  amending  the  same,  to  be  settled 
by  arbitration— (1916)  W.  N.  311.  The  decision  of  the  Court 
of  Appeal  was  therefore  regarded  as  binding.  For  the  effect 
upon  this  decision  of  the  judgment  in  the  Case,  see  p.  69,  post. 

1  (1916)  2  A,  C,  77.  2  (1915)  3  k.  B.  649. 

^  The  counsel  appearing  were :  For  the  Suppliants,  Mr.  P,  O. 
Lawrence,  K.C.,  Mr.  Leslie  Scott,  K.C.,  M.P.,  and  Mr.  W. 
Copping  ;  for  the  Crown,  the  Attorney-General  (Sir  Frederick 
Smith,  K.C.,  M.P.),  the  SoUcitor-General  (Sir  Gordon  Hewart, 
K.C.,  M.P.),  Mr.  Austen-Cartmell,  Mr.  Lowenthal,  and  Mr. 
Giveen  (for  Mr.  Branson). 

*  5  &  6  Vict,,  c.  94.  For  the  amending  statutes,  see  p.  10, 
post,  note  (1). 


THE  HISTORY  OF  THE  CASE  7 

which  had  prevailed  in  former  wars  with  regard  to 
the  occupation  of  fand  for  the  purposes  of  defence. 
Having  regard  to  the  wealth  of  material  which  is 
available  these  inquiries  were  necessarily  incom- 
plete, but  the  Suppliants  were  in  a  position,  by 
reference  to  documents  which  had  been  transcribed 
from  the  public  records,  to  state  that  no  instance 
had  been  found  in  which  the  Crown  had  claimed, 
as  a  matter  of  right,  to  take  and  occupy  the  land 
of  the  subject  free  from  an  obligation  to  make 
compensation. 

The  evidence  produced  was  of  such  a  character 
as  to  satisfy  the  Court  that  further  inquiry  ought  to 
be  made.  The  argument  on  appeal,  which  had 
occupied  the  18th,  19th,  22nd,  and  23rd  of  July, 
1918  was  therefore  adjourned  by  direction  of  the 
Master  of  the  Rolls,  in  order  that  a  more  complete 
search  might  be  undertaken  by  the  Crown.  On 
October  22,  1918,  the  matter  was  mentioned  to 
the  Court  by  the  Attorney-General  who  suggested 
a  further  adjournment  on  account  of  the  complexity 
and  number  of  the  documents  which  required  exami- 
nation. On  December  3,  1918  Mr.  Austen-Cartmell 
informed  the  Court  that,  while  the  search  might 
proceed  indefinitely,  the  time  had  come  when  it  would 
be  right  to  say  that  no  advantage  would  be  gained  by 
continuing  the  investigation,  it  being  reasonable  to 
anticipate  that  nothing  more  would  be  found  beyond 
what  was  in  pari  materia  with  what  had  already 
been  discovered.  The  Court  assenting  to  this  view, 
a  selection  of  typical  documents  was  made  by 
Junior  Counsel  for  the  parties  and  included  in  an 
Appendix  of  Documents  printed  for  use  in  the  Court 
of  Appeal  and  in  the  argument  of  the  Case  in  the 
House  of  Lords. 


8  CASE  OF  REQUISITION 

The  arguments,  in  the  course  of  which  this  his- 
torical evidence  was  considered,  were  resumed  in 
the  Court  of  Appeal  on  January  21,  1919  and  heard 
on  that  and  the  two  following  days.^ 

Judgment  was  delivered  on  April  9,  1919  ^ 
allowing  the  appeal.  The  Master  of  the  Rolls 
(Sir  Charles  Swinfen-Eady)  ^  and  Lord  Justice 
Warrington  delivered  judgment  in  favour  of  the 
Suppliants,  while  Lord  Justice  Duke  *  dissented. 

The  following  declaration  was  made  : 

'  That  the  Suppliants  are  entitled  to  a  fair  rent 
for  use  and  occupation  of  De  Keyser's  Royal  Hotel 
on  the  Thames  Embankment  in  the  City  of  London 
by  way  of  compensation  under  the  Defence  Act, 
1842.' 

1  Mr.  P.  0.  Lawrence  having  on  November  6,  1918,  been 
raised  to  the  Bench  as  a  Judge  of  the  Chancery  Division,  Sir  John 
Simon,  K.C.V.O.^  K.C.,  was  instructed  to  appear  as  leading 
counsel  for  the  Supplants.  The  Great  Seal  having  on  January  30, 
1919,  been  delivered  to  Sir  Frederick  Smith,  who  on  being  raised 
to  the  peerage  took  the  title  of  Baron  Birkenhead  in  the  County 
of  Chester,  Sir  Gordon  Hewart  was  on  January  30  appointed 
Attorney-General,  Mr.  Ernest  Pollock,  K.C.,  M.P.,  at  the  same 
time  succeeding  him  in  the  office  of  Solicitor-General  and  being 
subsequently  knighted. 

2  (1919)  2  Ch.  197.  In  the  opinion  of  the  majority,  the  premises 
were  occupied  and  taken  by  the  consent  of  the  owners  in  such 
circumstances  as  to  raise  an  implication  of  a  contract  to  pay  for 
the  use  of  the  property.  This  view  of  the  facts  was  not  put 
forward  by  the  Suppliants  on  the  appeal  to  the  House  of  Lords, 
their  case  being  based  on  an  implied  obligation  of  payment  either 
at  Common  Law  or  by  statute  where  property  is  taken  for 
purposes  of  defence. 

3  Sir  Charles  Swinfen-Eady  (who  had  resigned  his  office  on 
October  31,  1919,  and  had  been  raised  to  the  peerage  on 
November  1,  under  the  title  of  Baron  Swinfen  of  Chertsey  in 
the  County  of  Surrey),  died  on  the  15th  of  November  of  that  year. 

*  Appointed  President  of  the  Probate,  Divorce,  and  Admiralty 
Division,  October  31,  1919. 


THE  HISTORY  OF  THE  CASE  9 

The  Crown  appealed  to  the  House  of  Lords,  the 
Case  being  argued  before  Lords  Dunedin,  Atkin- 
son, Moulton,  Sumner,  and  Parmoor  ^  on  March  1, 
2,  4,  5,  8,  and  9,  1920.  Their  Lordships  took  time 
for  consideration,  and  on  May  10,  1920,  unanimously 
delivered  judgment  dismissing  the  appeal.^ 

1  Lord  Wrenbury  sat  as  one  of  the  Lords  of  Appeal  on  the 
first  and  second  days,  but  did  not  attend  during  the  remainder 
of  the  proceedings.  The  possibility  of  an  equal  division  of 
opinion  was  thereby  obviated. 

2  The  Judgments  (which  are  reported  sub  nomine  Attorney - 
General  v.  De  Keyser's  Royal  Hotel,  Limited  (1920)  A.  C.  508)  are 
set  out  in  full,  App.  A,  p.  168.  The  documents  printed  in  Appen- 
dices C,  E,  and  F  have  been  selected  from  those  which  were 
printed  for  use  in  the  Court  of  Appeal  and  in  the  House  of 
Lords. 


CHAPTER  II 

THE  DEFENCE  ACTS 


At  the  outbreak  of  war  in  August  1914  there 
were  in  force  in  relation  to  the  acquisition  and  user 
of  land  for  purposes  of  defence  the  Defence  Acts, 
1842  to  1873  ^  of  which  the  principal  act  is  the 
Defence  Act,  1842.  In  the  submission  of  the  Sup- 
pliants these  acts  applied  equally  in  peace  and  in 
war  and  provided  for  the  payment  of  compensation 
for  the  temporary  use  and  occupation  of  lands 
taken  by  the  Crown  for  purposes  of  defence,  and 
also  for  such  loss  and  injurious  consequences  as 
follows  from  such  occupation. 

The  advisers  of  the  Crown  claimed  a  right  on 

1  5  ife  6  Vict.,  c.  94  ;  17  &  18  Vict.,  c.  67  ;  22  Vict.,  c.  12  ; 
23  &  24  Vict.,  c.  112  ;  28  &  29  Vict.,  c.  65  ;  and  36  &  37  Vict., 
c.  72.  These  statutes  may  be  cited  by  the  collective  title  of 
'  the  Defence  Acts,  1842  to  1873  '  (Short  Titles  Act,  1896,  59  & 
60  Vict.,  c.  14).  Reference  may  also  be  made  to  the  Military 
Lands  Acts,  1892  to  1903,  which  comprise  the  Military  Lands 
Acts,  1892  (55  &  56  Vict.,  c.  43)  ;  1897  (60  &  61  Vict.,  c.  6)  ; 
1900  (63  &  64  Vict.,  c.  56  ;  and  1903  (3  Edw.  VII,  c.  47)  ;  to  the 
Territorial  and  Reserve  Forces  Act,  1907  (7  Edw.  VII,  c.  9, 
s.  4),  and  to  the  Ranges  Act,  1891  (54  &  55  Vict.,  c.  54)  which, 
as  repealed  in  part  by  section  28  of  the  Military  Lands  Act,  1892, 
provides  for  the  settlement  by  arbitration  of  the  compensation  for 
land  acquired  under  the  Defence  Acts.  As  regards  Admiralty 
Lands,  vide  the  Admir£(,lty  Lands  and  Works  Act,  1864  (27  &  28 
Vict.,  c.  57) ;  the  Naval  Works  Act,  1895  (58  &  59  Vict.,  c.  35, 
s.  2) ;  and  the  Naval  Lands  (Volunteers)  Act,  1908  (8  Edw.  VII, 
c.  25). 


THE  DEFENCE  ACTS  11 

behalf  of  the  Executive  Government  to  enter  into 
temporary  occupation  of  land  in  time  of  national 
emergency  free  from  any  legal  obligation  to  pay 
compensation.  That  claim  was  based  on  the  alleged 
powers  of  the  Crown  at  Common  Law  in  virtue  of 
the  Royal  Prerogative  existing  in  time  of  war,  such 
powers  being  (it  was  contended)  independent  of 
and  neither  abated,  abridged,  nor  curtailed  by  legis- 
lation. The  existence  and  extent  of  the  prerogative 
powers  of  the  Crown  ;  the  effect  upon  such  powers 
of  statute ;  and  the  right  to  take  possession  under 
the  powers  conferred  upon  the  executive  by  legisla- 
tion passed  to  meet  the  emergencies,  arising  out  of 
the  war,  are  reserved  for  consideration  in  later 
chapters  after  first  examining  the  statutory  pro- 
visions relating  to  the  occupation  of  land  which  were 
in  force  at  the  outbreak  of  war.  The  Act  of  1842 
is  by  no  means  the  first  statute  dealing  with  com- 
pulsory acquisition  of  land  for  purposes  of  defence 
either  in  peace  or  in  war.  So  far  is  this  from  being 
the  case  that  the  Act  will  be  found  to  be  a  con- 
solidating and  amending  statute  founded  upon 
earlier  statutes  and  particularly  the  Defence  Act  of 
1804  ^  enacted  in  the  emergency  of  the  Napoleonic 
wars.  This  Act  was  in  force  when  the  Act  of  1842 
was  passed  and  is  repealed  by  that  Act. 

An  historical  examination  of  the  earlier  statutes 
throws  considerable  light  not  only  on  the  origin  of 
the  existing  acts,  but  on  the  conceptions  which 
underlay  the  action  of  the  Executive  and  of  Parlia- 
ment in  regard  to  the  prerogative  powers  of  the 
Crown  at  Common  Law  to  enter  upon  the  land  of 
the  subject  in  time  of  war.     The  practice  during  the 

1  44  Geo.  Ill,  c.  95. 


12  CASE  OF  REQUISITION 

Napoleonic  wars  of  relying  solely  on  powers  expressly 
conferred  by  statute,  taken  in  conjunction  with 
a  uniform  practice  dating  from  still  earlier  times  of 
making  compensation,  and  with  the  absence  of  the 
assertion  of  any  claim  to  act  by  virtue  of  Prerogative 
powers  derived  from  the  Common  Law,  if  estab- 
lished, renders  it  difficult  to  accept  the  existence  of 
any  such  prerogative.  It  is  from  this  point  of  view 
as  well  as  by  way  of  illustrating  the  history  and 
position  of  the  Defence  Act,  1842  in  our  constitu- 
tional system  that  it  is  necessary  to  consider  the 
earlier  statutes. 

Although  the  statutory  history  of  the  modern 
Defence  Acts  may  be  said  to  commence  in  the  reign 
of  Anne,  references  to  legislation  on  the  subject 
of  the  acquisition  of  land  by  the  Crown  for  purposes 
of  defence  are  to  be  found  in  the  reign  of  Charles  II. 
Thus  in  1681  an  Ordnance  Minute  relating  to  the 
fortification  of  Hull,  records  an  order  that  a  state- 
ment be  prepared,  after  inquiring  as  to  '  what 
measures  were  taken  and  what  course  was  used 
aboute  takeing  in  of  the  lands  for  the  new  works 
at  Plymouth  and  after  what  method  the  owners  of 
those  lands  were  satisfied  and  paid  for  the  same  ' 
and  gives  a  direction  '  to  see  what  statutes  there 
are  concerning  takeing  up  of  peoples  lands  for 
building  of  fortifications  upon  '.^  In  this  instance 
the  question  arose  in  time  of  peace  and  was  confined 
to  the  permanent  acquisition  of  land.     The  only 

^  Ordnance  Minutes  (War  Office  Records),  App.  F,  p.  284. 
The  only  statute  dating  from  earlier  times  which  has  been  dis- 
covered is  an  Act  of  4  Hen.  VIII  (1512),  authorizing  entry  on 
land  for  the  making  of  bulwarks  by  every  one  of  the  King's 
subjects  in  anticipation  of  an  apprehended  invasion  of  Cornwall, 
see  p.  50,  post,  and  App.  B,  p.  220. 


THE  DEFENCE  ACTS  13 

statute  which  has  been  traced  in  this  period  is  an 
Act  of  1672  ^  which  confirms  an  agreement  for  pay- 
ment of  the  purchase  money  and  for  vesting  and 
setthng  in  the  Crown  the  fee  simple  of  lands  '  which 
have  been  taken  into  and  spoyled  by  makeing  new 
fortifications  about  the  Towne  of  Portsmouth  '.  The 
land  was  apparently  taken  in  time  of  peace  although 
possibly  in  anticipation  of  the  outbreak  of  the  second 
Dutch  War  which  commenced  on  the  17th  March 
1672,  and  continued  until  1674. 

II.    Legislation  before  the  Defence  Act,  1798. 

In  1708  a  statute  was  enacted  ^  in  a  form  which 
was  employed  with  modifications  throughout  the 
eighteenth  century.  This  Act  was  passed  during  the 
war  of  the  Spanish  Succession  (the  battle  of  Oude- 
narde  was  fought  on  the  11th  of  July  of  that  year). 
The  Act  of  Union  with  Scotland  in  the  previous  year 
had  aroused  the  adherents  of  the  Pretender,  who 
put  to  sea  from  Dunkirk  in  March  but  failed  to 
effect  a  landing,  his  fleet  being  dispersed  by  Admiral 
Byng.  Whatever  may  have  been  the  emergency, 
the  Act  relates  only  to  the  compulsory  acquisition 
by  purchase,  the  preamble  being  as  follows  : 

'  Whereas  for  the  better  securing  her  Majesty's 
docks,  ships  of  war  and  stores,  'tis  highly  necessary 

1  22  &  23  Car.  II,  no.  43.  This  Act  is  not  printed  in  any 
edition  of  the  Statutes  and  is  taken  from  the  Parliament  Roll, 
see  App.  B,  p.  226.  The  object  of  the  Act  was  merely  to  give 
effect  to  an  agreement.  It  is  referred  to  as  an  early  instance  of 
a  statutory  agreement  for  compensation  following  upon  a  taking 
of  land  which  may  or  may  not  have  been  unlawful,  and  as  the 
first  statute  of  the  kind  which  has  been  traced  ;  and  also  for  its 
form,  which  is  to  some  extent  followed  in  the  later  Acts. 

2  7  Anne,  c.  26. 


14  CASE  OF  REQUISITION 

to  enlarge  or  strengthen  the  fortifications  at  or  near 
Portsmouth,  Chatham,  and  Harwich,  and  in  order 
thereto  to  purchase  several  lands,  tenements  and 
hereditaments,  some  of  which  are  or  may  be  the 
estates  of  infants,  femes  covert,  ecclesiastical  cor- 
porations, or  other  persons  who  by  law  are  disabled 
to  make  any  contracts  or  conveyances ;  in  all  which 
cases,  as  likewise  where  any  proprietors  designing 
to  obstruct  the  public  service  or  to  make  any 
unreasonable  gain  to  themselves,  insist  on  extrava- 
gant rates,  'twill  be  necessary  to  have  recourse  to 
the  usual  methods  that  have  been  taken  in  such 
like  cases.' 

The  reference  to  the  '  usual  methods  that  have 
been  talien  in  such  like  cases  '  (which  occurs  also 
in  a  later  Act  of  1782)  ^  is  obscure,  but  would  seem 
to  point  to  some  settled  form  of  procedure  for 
assessing  compensation  in  default  of  agreement. 
This  no  doubt  involved  an  inquisition  and  verdict 
by  a  jury,  an  early  instance  of  which  is  to  be  found 
in  1664,  albeit  in  time  of  peace,  when  one  Clark, 
the  storekeeper  at  Portsmouth,  was  directed  by 
the  Office  of  the  Ordnance  to  '  treat  once  more  with 
the  proprietors '  of  ground  at  Portsmouth  '  and 
bring  them  if  possible  to  reasonable  terms '  and  in 
the  event  of  his  failing  to  arrive  at  an  agreement  to 
'  desire '  the  Mayor  or  Aldermen  to  appoint  a  jury 
to  value  the  property.^ 

Many  similar  statutes  were  passed  from  time  to 
time,  some  in  peace  and  some  in  war,  all  of  which, 
although  in  form  public  acts,  relate  to  particular 
localities  and  are  in  this  sense  '  local '.  Thus 
statutes  were  passed  in  1757  and  1758  during  the 

1  22  Geo.  Ill,  c.  80,  p.  20  post. 

2  Ordnance  Minutes  :  War  Office  Records,  Class  47,  vol.  vi, 
fo.  16,  see  App.  F,  p.  279. 


THE  DEFENCE  ACTS  1,5 

Seven  Years'  War  dealing  with  fortifications  at 
Milford  ^  and  at*  Portsmouth,  Chatham,  and  Ply- 
mouth.2  The  state  of  affairs  in  1757  presented, 
in  the  words  of  Pitt,  '  a  gloomy  scene  for  this 
distressed  disgraced  country  '  ^  while,  according  to 
Burke,  '  the  Nation  trembled  under  a  shameless 
panic  too  public  to  be  concealed,  too  fatal  in  its 
consequences  ever  to  be  forgotten.' 

The  constitutional  lawyer,  faced  with  the  fact 
that  in  a  year  of  extreme  national  peril,  it  was 
thought  necessary  to  invoke  the  aid  of  Parliament, 
in  order  to  acquire  private  property  for  the  urgent 
needs  of  national  defence,  is  driven  to  ask  himself 
whether  this  does  not  indicate  that  the  prerogative 
powers  of  the  Crown  were  regarded  as  more  limited 
in  scope  and  application  than  was  sometimes  sup- 
posed during  the  late  war.  Why  should  the  Ord- 
nance department  procure  statutory  authority  to 
take  over  land  needed  to  resist  a  threatened  invasion, 
if  the  Crown  had  a  right  quite  independently  to 
do  what  it  pleased  with  private  property  without 
making  compensation  so  long  as  this  was  necessary 
for  the  defence  of  the  Realm  ? 

The  gloom  of  1757  was  soon  dissipated  by  the 
glorious  successes,  both  in  the  new  world  and  in 
the  old,  of  1759,  but  the  fact  remains  that  at  a  time 
when  it  could  hardly  have  been  anticipated  how 

1  31  Geo.  II,  c.  38  ;  32  Geo.  II,  c.  26  ;  32  Geo.  II,  c.  30. 

2  31  Geo.  II,  c.  39  ;  32  Geo.  II,  c.  30.  Ancillary  provisions 
relating  mainly  to  the  application  of  moneys  payable  for  com- 
pensation are  contained  in  an  Act  of  1760  (33  Geo.  II,  c.  11), 
which  also  provides  for  taking  down  and  removing  a  magazine 
at  Greenwich  and  for  the  erection  of  a  new  one  at  Purfleet. 

3  For  a  full  account  of  the  military  and  political  situation, 
see  Worsfold,  Life  of  Pitt,  i.  337. 


16  CASE  OF  REQUISITION 

the  tide  of  the  national  fortunes  would  turn  at 
Quebec,  at  Plassey,  and  at  Quiberon  Bay,  Parlia- 
mentary authority  should  have  been  required  to 
secure  the  ground  necessary  to  fortify  the  arsenals 
at  Chatham  and  Portsmouth. 

The  emergency  is  recited  in  the  pream.ble  to  the 
Act  of  1757  ^  providing  for  fortifications  at  Ports- 
mouth, Chatham,  and  Plymouth  in  these  terms  : 

'  Whereas  by  the  unjust  and  hostile  invasion 
lately  made  on  his  Majesty's  Dominions  in  America 
and  the  Mediterranean  and  by  great  preparations 
made  in  France  for  invading  these  Realms,  it 
became  absolutely  necessary  for  the  Security  of 
his  Majesty's  Docks  Ships  of  War  and  Stores  to 
erect  and  raise  Fortifications  and  Intrenchments 
near  the  Docks  of  Portsmouth  Chatham  and  Ply- 
mouth :  And  whereas  certain  lands  herein  after 
particularly  mentioned  lying  near  the  said  Docks  of 
Portsmouth  Chatham  and  Plymouth  have  been 
made  use  of  in  making  Intrenchments  and  raising 
Lines  and  Fortifications,  for  the  Defence  and 
security  of  the  said  Docks  :  And  whereas  some  part 
of  the  said  Lands  made  use  of  for  that  purpose  lies 
open  and  in  common  to  many  Owners  and  Pro- 
prietors of  Lands  near  adjoining,  for  which  they 
claim  a  Right  of  Common  of  the  said  Lands  and 
other  parts  of  the  said  Lands  so  made  use  of  are 
so  limited  by  Settlement  that  the  Owners  thereof 
cannot  make  a  clear  Title  and  Conveyance,  without 
the  authority  of  Parliament  and  other  parts  of  the 
said  Lands  may  be  the  Property  of  Ecclesiastical 
Persons,  or  Persons  not  capable  of  making  a  legal 
Conveyance  thereof  ;  and  all  the  said  Lands  may 
be  subject  and  liable  to  Quit-Rents,  Tythes,  and 
other  small  Outgoings,  from  which  the  Owners 
thereof  may  not,  without  the  Authority  of  Parlia- 

1  31  Geo.  II,  c.  39. 


THE  DEFENCE  ACTS  17 

ment  be  able  to  discharge  the  said  Lands  :  And 
whereas  many  of  the  Owners  and  Proprietors  of  the 
said  Lands  so  niade  use  of  (to  make  an  unreasonable 
Gain  to  themselves)  may  insist  on  large  and  ex- 
travagant Demands  for  the  damage  and  injury  they 
may  pretend  to  have  sustained  by  means  or  reason 
of  erecting  the  said  Fortification :  And  whereas 
many  Persons  may  pretend  or  claim  to  have  Title 
to  the  same  Lands  so  that  it  may  be  doubtful  to 
whom  a  Compensation  ought  to  be  made  which 
cannot  be  determined  without  the  aid  of  Parliament : 
To  the  end  therefore  that  the  true  and  real  value 
of  the  said  Lands  may  be  ascertained  and  the  actual 
and  real  Owners  and  Proprietors  may  have  a  just 
and  reasonable  satisfaction  for  the  said  Lands  or 
for  any  claim  or  Right  thereto.  .  .  .' 

From  this  recital  it  would  appear  that  works 
were  actually  carried  out  before  the  passing  of  the 
Act.  It  may  be  that  this  points  to  possession  having 
been  taken  either  under  a  general  power  of  the 
Crown  by  virtue  of  the  prerogative  to  enter  for 
purposes  of  defence,  founded  on  the  necessity  for 
immediate  action,  the  emergency  being  such  as  to 
justify  the  entry  without  awaiting  Parliamentary 
sanction  ;  or  to  a  recognition  that  the  entry  was 
unlawful  and  required  confirmation  by  an  Act  of 
Parliament.  At  all  events  the  preamble  contains 
no  reference  to  any  entry  on  lands  having  been 
made  by  virtue  of  prerogative  powers,  while  the  right 
of  the  subject  to  compensation  is  clearly  recognized. 
A  noteworthy  feature  of  the  Act  is  the  distinct 
recognition  of  the  rights  of  adjoining  owners  who 
'  have  received  any  damage,  by  making  and  raising 
the  said  intrenchments,  lines,  and  fortifications  '.^ 

1  31  Geo.  II,  c.  39,  s.  10.  For  the  method  of  assessing 
damages  under  this  section,  see  App.  C,  pp.  229,  236. 

2388  Q 


18  CASE  OF  REQUISITION 

The  coasts  of  Sussex,  Kent,  and  Southampton 
are  dealt  with  in  the  following  reign,  during  the  war 
with  Spain.    An  Act  of  1762  ^  recites  that : 

'  Whereas  the  Coasts  of  Sussex  Kent  &  South- 
ampton lay  open  and  exposed  to  the  hostile  inva- 
sions of  His  Majesty's  Enemies  :  And  whereas  our 
late  most  Gracious  Sovereign  Lord  George  the 
Second  out  of  his  paternal  Affection,  tendering  the 
Welfare  and  Protection  of  his  dutiful  and  loyal 
Subjects  did  order  and  direct  the  Master  General 
Principal  Officers  of  his  Ordnance,  to  erect  and  build 
several  Forts  and  Batteries,  at  convenient  Distances 
upon  the  said  Coasts  :  And  whereas  in  pursuance  of 
such  Orders,  Forts  and  Batteries  have  been  erected 
by  and  with  the  consent  of  the  Owners  and  Pro- 
prietors of  the  several  Lands  herein  after  mentioned 
on  which  the  same  are  respectively  erected.' 

This  recital,  if  it  is  to  be  taken  as  containing  any 
reference,  however  indirect,  to  an  exercise  of  pre- 
rogative powers,  points  to  a  restriction  upon  their 
exercise  of  which  there  is  no  reflection  in  the  Ports- 
mouth Act  of  1757.2  The  works  were  erected  in 
time  of  war,  but  '  by  and  with  the  consent  of  the 
owners  '.  The  entry  on  the  lands  as  well  as  the 
execution  of  the  works  was  purely  consensual, 
subject  to  the  assessment  of  the  amount  of  com- 
pensation in  accordance  with  the  machinery  pro- 
vided. The  right  to  enter  lands  otherwise  than  by 
agreement  for  the  purpose  of  erecting  fortifications 
is  similarly  negatived  by  the  preambles  to  Acts  of 
1780,  1782,  and  1783,  passed  when  the  country  was 
involved  in  war  with  the  North  American  Colonies, 
and  with  France  and  with  Spain  which  was  termi- 

1  2  Geo.  Ill,  c.  37.  2  31  Qeo.  II,  c.  39. 


THE  DEFENCE  ACTS  19 

nated  in  1783  by  the  Peace  of  Versailles.    The  Act 
of  1780  1  recites  that : 

'  Whereas  by  reason  of  the  hostile  Intentions  of 
the  Courts  of  France  and  Spain  to  invade  these 
Realms  and  of  the  great  Preparations , made  in  the 
said  Kingdoms  for  that  purpose  it  has  become 
absolutely  necessary  for  the  present  and  future 
Protection  and  Security,  as  well  of  his  Majesty's 
Docks,  Ships  of  War,  and  Stores,  at  Plymouth  and 
Sheerness,  as  of  the  Passage  of  the  River  Thames  at 
Gravesend  and  Tilbury  Fort,  to  erect  and  raise 
additional  fortifications  and  Intrenchments  near  the 
same  :  And  whereas  the  lands  herein  after  men- 
tioned lying  near  the  said  Docks  of  Plymouth  and 
Sheerness  and  also  near  the  Passage  of  the  River 
Thames  at  or  near  Gravesend  and  Tilbury  Fort 
aforesaid,  are  wanted  for  the  purpose  of  being  made 
use  of  to  erect  a,nd  raise  such  Fortifications  and 
Intrenchments  :  And  whereas  many  of  the  Owners 
and  Proprietors  of  the  Land  Tenements  and  Here- 
ditaments necessary  to  be  purchased^ may  insist  on 
large  and  extravagant  Demands  for  the  Purchase  of 
such  Lands  Tenements  and  Hereditaments  or  for 
the  Damages  and  Injury  they  may  pretend  that 
they  shall  sustain  by  reason  of  such  Fortifications 
and  Intrenchments  :  And  whereas  many  persons 
may  pretend  or  claim  to  have  Title  to  the  same  lands 
Tenements  and  Hereditaments  so  that  it  may  be 
doubtful  to  whom  a  Compensation  ought  to  be 
made  which  cannot  be  determined  without  the  aid 
of  Parliament :  To  the  end  therefore  that  the  true 
and  real  Value  of  such  Lands  Tenements  and 
Hereditaments  may  be  ascertained  and  the  actual 
and  real  Owners  and  Proprietors  may  have  a  just 
and  reasonable  Satisfaction  for  such  Lands,  Tene- 
ments and  Hereditaments,  or  for  any  claim  or  right 
thereto.'  .  .  * 

1  20  Geo.  Ill,  c.  38. 
c  2 


20  CASE  OF  REQUISITION 

The  Act  of  1782  i  recites  that  it  is 

'  highly  necessary  to  enlarge  or  strengthen  the 
Fortifications  at  or  near  Portsmouth  and  Chatham 
and  in  order  thereunto  to  purchase  several  Lands, 
Tenements  &  Hereditaments  some  of  which  are  or 
may  be  the  Estates  of  Infants,  Femes-covert, 
Ecclesiastical  Corporations  or  other  Persons  who  by 
Law  are  disabled  to  make  any  Contracts  or  Convey- 
ances in  all  which  Cases  as  likewise  when  any 
Proprietors  designing  to  obstruct  the  Publick  service 
or  to  make  any  unreasonable  Gain  to  themselves 
insist  on  extravagant  Rates  it  will  be  necessary  to 
have  Recourse  to  the  usual  methods  that  have  been 
taken  in  Cases  of  the  like  Nature :  To  the  end 
therefore  that  the  time  and  real  Value  of  the  said 
Estates  may  be  ascertained  and  the  Owners  and 
Proprietors  thereof  may  have  a  just  and  reasonable 
Satisfaction  for  the  same.' 

The  reference  in  this  recital  to  the  '  usual  methods  ' 
occurs  as  has  already  been  pointed  out  in  the  Act 
of  1708.2  Whatever  may  have  been  the  precise 
nature  of  the-  procedure  in  1708,  the  machinery 
has  assumed  a  more  or  less  stereotyped  form  at  the 
time  of  these  later  eighteenth-century  acts.  Under 
the  existing  legislation  this  has  been  substantially 
modified  ;  it  may,  however,  be  useful  to  examine 
the  machinery,  which  was  to  some  extent  super- 
seded by  the  Act  of  1842  as  illustrating  the  care  with 
which  the  observance  of  somewhat  complicated 
statutory  provisions  was  enforced  in  times  of 
national  danger. 

The  execution  of  the  acts  was  in  all  cases  en- 
trusted to  Commissioners  appointed  by  Letters 
Patent  under  the  Great  Seal.     Except  in  cases  in 

1  22  Geo.  Ill,  c.  80,  p.  14  ante.  ^  7  Anne,  c.  26. 


THE  DEFENCE  ACTS  21 

which  the  lands  to  be  taken  are  set  out  in  the  Act, 
the   Commissioners   are   authorized  to   survey   and 
set  them  out,  and  are  given  power  to  hear  and 
determine   in   a  summary  way   all  the  titles   and 
claims  to  and  controversies  concerning  such 'lands 
and  to  make  such  orders  and  decrees  relating  thereto 
as  they  may  think  proper,  subject  to  the  right  of 
parties  claiming  to  be  interested  to  have  such  titles, 
claims,   and   controversies    determined  by  a   jury. 
After  the  making  of  a  survey  (or,  in  cases  where  the 
lands  are  set  out  in  the  Act,  upon  the  passing  of 
the  Act)  the  lands  are  to  vest  in  trustees  for  the 
benefit  of  the  parties  interested  until  payment  of 
the  purchase  money.     The  Commissioners  are  im- 
powered  to  treat  and  agree  with  the  owners  for 
purchase.     In  the  event  of  refusal  or  neglect  to 
treat  and  agree  for  thirty  days  after  service  of  notice 
in  writing  or  in  case  of  infancy,  coverture  or  other 
disability,    the    Commissioners    are    authorized    to 
issue  a  warrant  or  warranto  to  the  Sheriff  of  the 
County  commanding  him  to  summon  a  jury  to  assess 
the  compensation.    All  orders,  judgments,  decrees, 
agreements,   and   verdicts   are  to   be   entered   and 
engrossed  and  certified  by  the   Commissioners  to 
the  Clerk  of  the  Crown  in  Chancery  and  to  the 
King's  Remembrancer  in  the  Court  of  Exchequer. 

Certificates  are  to  be  given  to  the  parties  interested 
containing  a  description  of  the  premises  to  which 
they  relate  and  stating  the  amount  which  they  are 
to  receive.  These  certificates  constitute  an  au- 
thority to  the  Surveyor-General  of  the  Ordnance  to 
make  out  bills  to  the  parties  entitled,  upon  which 
debentures  are  prepared  by  the  Clerk  of  the  Ord- 
nance. Upon  payment  of  the  amount  stated  in 
such  debentures  by  the  Treasurer  of  the  Ordnance 


22  CASE  OF  REQUISITION 

the  trustees  are  to  stand  seised  of  the  premises  for 
the  use  of  the  Crown.  In  the  event  of  any  person 
refusing  to  accept  a  certificate,  such  certificate  is 
to  be  deposited  with  the  Clerk  of  the  Peace,  whereupon 
the  Lands  are  to  be  vested  to  the  use  of  the  Crown 
as  if  such  certificate  had  been  received  by  the  party 
or  parties  entitled  thereto. 

These  Acts  were  in  each  case  followed  by  a  second 
Act  which,  after  reciting  the  proceedings  taken  under 
the  original  Act,  makes  provision  for  the  sums 
required  out  of  moneys  provided  by  Parliament 
and  effects  a  final  vesting  of  the  lands  in  the  Crown. 
These  '  Vesting  Acts  ',  the  principal  object  of  which 
was  to  effect  a  final  clearing  of  titles,  follow  the 
original  Acts  in  every  case  until  the  procedure  was 
simplified  by  the  provisions  of  the  Act  of  1842. 

The  records  preserved  at  the  Record  Office  con- 
tain a  number  of  Commissions,  Decrees,  and  Inqui- 
sitions under  the  Acts  passed  during  this  period, 
including  instances  in^' which  payment  was  ordered 
to  be  made  as  compensation  for  damage  to  the 
lands  of  adjoining  owners  as  well  as  on  account  of 
purchase  money  for  lands  permanently  acquired. 
An  instance  of  a  Commission  issued  under  the  Act 
of  1757  followed  by  Inquisition  and  Decree  is 
printed  in  Appendix  C  ^  by  way  of  illustration. 

III.    The  Napoleonic  Wars. 

The  Acts  thus  far  considered  deal  mainly  with 
the  permanent  acquisition  of  land  by  purchase,  and 
are  restricted  to  the  taking  of  land  in  particular 
locahties.       The    legislation    of    1798,^    1803,^    and 

1  p.  229,  post.  2  38  Qeo.  HI,  c.  27. 

3  43  Geo.  Ill,  c.  55. 


THE  DEFENCE  ACTS  23 

1804  ^  presents  several  contrasts.  In  the  first 
place  the  Defence  Acts  of  those  years  are  of  general 
application,  the  powers  conferred  being  exercisable 
under  the  Act  of  1798  throughout  England  and 
Scotland,  while  the  Acts  of  1803  and  1804  apply- 
also  to  Ireland,  whose  affairs  had  become  subject 
to  the  control  of  the  British  Parliament  since  the 
Act  of  Union  of  1801.^  In  the  next  place,  the 
Acts  of  1798  and  1803  are  temporary,  the  Act  of 
1798  (as  also  that  of  1803)  providing  (sect.  22)  that 
it  should  '  have  continuance  during  the  present  war 
with  France  '.  It  therefore  lapsed  on  the  conclusion 
of  peace  by  the  Treaty  of  Amiens  on  the  27th  March 
1802.  War  having  broken  out  again  on  the 
29th  April  1803,  a  statute  ^  was  enacted  in  identical 
terms  (except  for  a  slight  verbal  alteration  in  the 
preamble)  and  received  the  Royal  Assent  on  the 
11th  June.  This  Act  remained  in  force  until  the 
Treaty  of  Vienna  in  1815.  Thirdly,  the  Acts  of 
1798  and  1803  deal  with  defence  generally  and  not 
merely  with  the  occupation  of  land.  Fourthly,  as 
regards  land,  the  opinion  was  apparently  entertained 
that  the  Acts  provided  only  for  temporary  occupa- 
tion and  user.  Accordingly  the  Act  of  1804  ^ 
which  is  an  Act  '  to  amend  certain  provisions  '  of 
the  Act  of  1803,  and  recites  that  '  doubts  have 
arisen  whether  the  said  provision  of  the  said  Act 

1  44  Geo.  Ill,  c.  95. 

2  The  Irish  Parliament  did  not  pass  a  Defence  Act.  A  statute 
similar  to  the  English  acts  relating  to  particular  localities  was 
enacted  in  1717  (4  Geo.  I,  c.  7)  for  the  fortification  of  Cork 
Harbour  and  was  followed  by  the  Acts  of  19  Geo.  II,  c.  3  ;  23 
Geo.  II,  c.  2  ;  and  7  Geo.  Ill,  c.  6.  An  Irish  Act  of  1797  (37 
Geo.  Ill,  c.  2)  related  only  to  voluntary  enlistment. 

3  43  Geo.  Ill,  c.  55.  *  44  Geo.  II,  c.  95. 


24  CASE  OF  REQUISITION 

extends  to  the  purchasing  or  taking  any  lands  or 
hereditaments  for  permanent  purposes '  proceeds 
(sect.  3)  ^  to  remove  those  doubts.  Fifthly,  these 
Acts  provide  in  terms  for  payment  out  of  public 
funds  for  the  temporary  user  of  land,  and  contain 
elaborate  provisions  for  the  method  of  obtaining 
possession  and  for  the  assessment  of  compensation 
iji  default  of  agreement.  Finally,  they  contain  no 
definite  recital  of  any  prerogative  right  of  the 
Crown,  unless  the  reference  in  the  preamble  to  the 
powers  by  law  vested  in  the  Crown  ought  to  be 
read  as  such.  The  reference  can  hardly  amount  to 
more  than  a  general  saving  in  somewhat  wide 
terms  of  such  powers  as  may  have  existed. 

It  is  hardly  necessary  to  dwell  upon  the  emergency 
in  which  these  Acts  were  placed  upon  the  Statute 
book.  The  fear  of  invasion  formed  the  constant 
pre-occupation  of  all  classes  from  the  spring,  of 
1798  (the  year  of  the  Irish  rebellion)  when  Napoleon 
commenced  to  assemble  his  forces  at  Boul^ne 
until  the  final  collapse  of  his  projects  of  invasion  in 
1805  after  the  battle  of  Trafalgar.^  The  first 
general  Defence  Act "  was  introduced  and  read 
a  first  time  in  the  House  of  Commons  on  March  27, 
1798.^  The  1^111  was  read  a  second  time  on  the 
following  day  and  committed  to  a  committee  of 

^  See  p.  29,  post. 

2  For  a  detailed  account  of  the  French  preparations,  see 
Desbriere,  1793-1805.  Projets  et  Tentatives  de  Debarquement  aux 
lies  BritanniqueSy  published  under  the  direction  of  the  historic 
section  of  the  French  staff,  1900  to  1902.  Napoleon  and  the 
Invasion  of  England,  by  Wheeler  and  Broadley,  contains  a 
lively  and  accurate  account  of  the  preparations  and  counter- 
preparations  for  invasion,  see  also  Mahan,  Infiuemce  of  Sea  Power 
upon  the  French  Revolution,  chaps,  ix  and  xv. 

3  38  Geo.  Ill,  c.  27.  *   53  Com.  Journ.  426. 


THE  DEFENCE  ACTS  25 

the  whole  house.  ^  The  third  reading  followed  on 
April  2nd.2  The  bill  was  agreed  by  the  Lords  on 
April  4th  ^  and  received  the  Royal  Assent  on 
April  5th. 

Here  again,  in  1798,  the  same  reflection  forces 
itself  upon  the  mind  of  the  student  of  prerogative 
law  as  was  suggested  by  the  Parliamentary  action 
taken  in  1757.  The  recourse  to  Parliament  was 
presumably  thought  to  be  necessary,  and  if  Par- 
liamentary authority  was  necessary,  authority  by 
the  mere  exercise  of  the  prerogative  cannot  have 
existed  to  the  same  extent  and  degree.  And  in  this 
later  instance,  the  authority  sought  is  not  for  the 
permanent  acquisition  of  private  property  for  the 
purpose  of  national  defence  but  for  the  temporary 
occupation  needed. 

As  we  shall  see,  the  statutes  then  being  passed, 
though  on  their  true  construction  perhaps  applicable 
both  to  temporary  and  permanent  occupation,  were 
liable  to  be  construed  as  authorizing  temporary- 
occupation  only,  and  were  recognized  as  having  this 
for  their  primary  purpose  in  an  Act  of  ParHament 
which  was  enacted  a  few  years  later.  The  objects  of 
the  Act  of  1798  ^  are  recited  in  the  preamble  in  the 
following  words  : 

'  Whereas  it  is  expedient  that  His  Majesty  should 
be  enabled  to  exercise,  in  the  most  effectual  Manner 
the  Powers  by  Law  vested  in  him  for  preventing 
and  repelling  an  Invasion  of  this  Kingdom  by 
His  Majesty's  enemies  ;  and  that  for  such  purpose. 
Provision  should  be  made  to  enforce  prompt  Obedi- 
ence to  such  Orders  as  His  Majesty  shall  think  fit 
to  issue  for  procuring  the  Information  necessary  to 

1  Ibid.  436.  2  Ibid.  440.  ^  41  Lords'  Joum.  528. 

4  38  Geo.  Ill,  c.  27. 


26  CASE  OF  REQUISITION 

the  effectual  exercise  of  such  Powers  upon  any 
emergency  ;  and  for  applying  in  the  most  expe- 
ditious Manner,  and  with  the  greatest  Effect,  the 
voluntary  services  of  his  loyal  Subjects  for  the 
Defence  of  the  Kingdom  ;  and  also  to  enable  His 
Majesty  to  procure  ground  which  may  be  wanting 
for  erecting  Batteries,  Beacons  and  other  Works, 
which  may  be  deemed  necessary  for  the  public 
Service  ;  and  aiso  to  provide  for  the  Indemnity 
(in  certain  Cases)  of  Persons  who  may  suffer  in  their 
Property  by  Measures  which  may  be  taken  for  the 
Defence  and  Security  of  the  Country,  and  Annoyance 
of  the  Enemy.' 

The  Act  ^  which  is  entitled  '  An  Act  to  enable 
His  Majesty  more  effectually  to  provide  for  the 
defence  and  security  of  the  realm  during  the  present 
war  and  for  indemnifying  persons  who  may  suffer 
in  their  property  by  such  measures  as  may  be 
necessary  for  the  purpose '  contains  the  following 
provisions  with  regard  to  land  : 

Sect.  10.  '  That  it  shall  be  lawful  for  His  Majesty 
to  authorise  any  General  Officer  or  Officers  or  other 
person  or  persons  commissioned  for  such  Purpose, 
to  survey  and  mark  out  any  Piece  of  Ground  wanted 
for  the  Public  service,  and  to  treat  and  agree  with 
the  Owner  or  Owners  thereof,  or  any  Person  or 
Persons  having  any  interest  therein,  for  the  Posses- 
sion or  use  thereof  during  such  Time  as  the  Exigence 
of  the  Service  shall  require  ;  and  in  case  the  Owner 
or  Owners  of  any  such  Ground  or  any  Person  or 
Persons  having  any  interest  therein  shall  refuse  or 
decline  to  enter  into  such  contract  the  same  as 
shall  be  satisfactory  to  such  Officer  or  Officers,  or 
other  Person  or  Persons  commissioned  as  aforesaid 
or  shall  be  unable  to  do  so  by  reason  of  Infancy, 
Coverture  or  other  Disability  it  shall  be  lawful  for 

1  38  Geo.  Ill,  c.  27. 


THE  DEFENCE  ACTS  27 

the  Person  or  Persons  so  authorised  by  His  Majesty 
to  require  two  or  more  Justices  of  the  Peace,  or 
Deputy     Lieutenants     for     the     County,     Riding, 
Stewartry,    City,    or    Place,    where    such   piece    of 
Ground  shall  be,  to  put  His  Majesty's  Officers  into 
immediate  possession  of  such  Piece  of  Ground  which 
such    Justices    or    Deputy    Lieutenants    shall    ac- 
cordingly do,  and  shall  for  that  Purpose  issue  their 
Warrant,  under  their  Hands  and  Seals,  commanding 
Possession  to  be  so  delivered,  and  shall  also  issue 
their  warrants  to  the  Sheriff  of  the  County,  Riding, 
Stewartry,   City,   or  Place,   wherein  such    piece    of 
ground  shall  be  situate,  to  summon  a  jury  to  appear, 
and  be  on  a  Day  and  at  a  Place  on  such  Warrant 
to  be  mentioned  to  enquire  of  and  ascertain  the 
Compensation   which    ought   to   be   made   for   the 
Possession  or  Use  of  such  Piece  of  Ground  during 
the  Time  for  which  the  same  shall  be  required  for 
the  Public  Service,  to  the  several  persons  interested 
therein,  and  to  whom  the  same  ought  to  be  paid, 
the  Verdict  of  which  Jury  shall  be  certified  by  such 
Justices   or   Deputy   Lieutenants   to   the   Receiver 
General  of  the  Land  Tax  of  the  County,  Riding, 
Stewartry,  City,  or  Place,  where  such  Lands  shall 
lie,  which  Receiver  General  shall,  out  of  any  Money 
in  his  Hands  pay  such  Compensation  to  such  Person 
or  Persons,  in  such  Manner  and  for  such  Purposes  as 
by  such  Verdict  shall  be  directed,  Provided  Always 
that  no  such  Piece  of  Ground  shall  be  so  taken  for 
the   Public   Service,   without   the   Consent   of   the 
Owner  or  Owners  thereof  unless  the  Necessity  for 
the    Same    shall    be    first    certified    by    the    Lord 
Lieutenants  or  two  of  the  Deputy  Lieutenants  of 
the  County,  Riding,  Stewartry,  City,  or  Place,  in 
which  such  Land  shall  lie  or  unless  the  Enemy  shall 
have  actually  invaded  the  Kingdom  at  the  Time 
when  such  Piece  of  Ground  shall  so  be  taken.' 

This  section  (as  well  as  the  corresponding  section 


28  CASE  OF  REQUISITION 

of  the  Act  of  1803  ^  which  is  in  identical  terms) 
presents  the  following  characteristics.  In  the  first 
place  '  use  &  possession '  are  alone  specifically 
referred  to,  the  section  being  silent  with  regard  to 
permanent  acquisition.  Secondly,  the  surrender  of 
possession  is  to  be  consensual,  at  all  events  in  the 
first  instance,  the  authorities  being  authorized  to 
'  treat  &  agree '.  Thirdly,  in  the  event  of  the 
refusal  or  disability  of  an  owner  to  treat,  the  pro- 
cedure for  assessing  compensation  which  had  already 
become  usual  in  the  earlier  eighteenth-century 
Acts  is  to  be  followed,  but  provision  is  made  for 
putting  the  officers  of  the  Crown  into  immediate 
possession.  Fourthly,  land  can  only  be  taken  in 
the  absence  of  consent  either  where  the  necessity 
for  taking  is  duly  certified  by  the  proper  authority, 
or  in  the  event  of  actual  invasion. 

The  Acts  of  1798  and  of  1803  contain  provisions  ^ 
for  the  requisition  of  boats,  wagons,  and  other 
chattels  subject  to  compensation  being  made.  These 
sections  are  considered  hereafter  ^  in  connexion 
with  the  subject  of  chattels,  but  it  is  important  to 
note  that  they  provide  for  compensation  for  the 
destruction  of  buildings  in  the  event  of  actual  or 
of  apprehended  invasion,  such  compensation  to 
be  agreed  with  representatives  appointed  by  the 

1  43  Geo.  Ill,  c.  55. 

2  Sections  7  and  11.  These  sections  are  not  reproduced  in 
the  Act  of  1804,  which  deals  only  with  permanent  acquisition. 
It  should  be  noted  that  the  Act  of  1803  remained  in  force  until 
the  end  of  the  war  in  1815.  For  the  opposition  in  Parliament 
to  the  policy  of  '  driving  the  country  '  on  the  ground  of  the 
doubtful  advantage  of  anticipating  damage  which  an  enemy 
might  ultimately  fail  to  inflict,  see  36  Pari.  Hist.  142. 

^  p.  142,  post. 


THE  DEFENCE  ACTS  29 

Treasury  for  that  purpose  and  in  default  of  agree- 
ment by  two  Justices  of  the  Peace. 

Before  the  lapsing  of  the  Act  of  1803  at  the 
conclusion  of  the  War  in  1815,  it  had  been  amended 
by  the  Act  of  1804^  which  is  the  first  permanent 
Act  of  general  application.  That  this  Act  covers 
both  permanent  acquisition  and  temporary  user  is 
made  clear  by  section  3  which  provides  : 

'  And  be  it  further  enacted,  That  it  shall  be 
lawful  for  his  Majesty,  or  for  the  Lord  Lieutenant 
or  other  Chief  Governor  or  Governors  of  Ireland  for 
the  Time  being  in  Ireland,  from  Time  to  Time  to 
authorise  any  General  Officer  or  Officers,  or  other 
Person  or  Persons  Commissioned  for  that  purpose 
to  survey  and  mark  out  any  Lands  or  Grounds 
wanted  for  the  publick  Service  and  to  treat  and 
agree  with  the  Owner  or  Owners  thereof  or  any 
Person  or  Persons  interested  therein,  either  for  the 
absolute  purchase  thereof  for  the  Publick  Service, 
or  for  the  Possession  or  Use  thereof,  during  such 
time  as  the  Exigence  of  the  publick  Service  shall 
require.' 

Provision  is  also  made  by  section  11  for  the 
removal  from  lands  taken  for  a  term  of  years  or 
for  such  period  as  the  exigency  of  the  public  service 
may  require  of  buildings  and  other  erections  which 
have  been  placed  thereon  before  the  lands  are 
restored  to  the  owner  and  for  the  payment  of  com- 
pensation by  agreement  or  by  assessment  by  a  jury 
for  all  damage  sustained  by  the  erection  of  buildings 
'  or  otherwise  in  consequence  of  the  same  having 
been  occupied  for  the  public  service  '.^ 

1  44  Geo.  Ill,  c.  95. 

2  The  section  was  held  by  the  Court  of  Appeal  in  Ireland, 
FitzGibbon,  L.  J.,  dissenting  (Incorporated  Society  v.  The  Queen 
(1900)  1  l.R.  465),  not  to  impose  on  the  Crown  an  obligation 


30  CASE  OF  REQUISITION 

Reference  has  already  been  made  to  the  fact 
that  the  Act  of  1804  remained  in  force  until  1842 
and  that  the  Defence  Act  of  that  year,  by  which  it 
was  repealed,  is  closely  modelled  upon  its  provisions. 

Assuming  a  prerogative  right  to  have  existed  at. 
any  time  by  virtue  of  which  the  Crown  was  entitled 
to  the  temporary  user  of  lands  in  times  of  national 
emergency,  free  from  any  legal  obligation  to  make 
compensation,  how  far  is  the  existence  of  such 
a  right  to  be  traced  during  the  Napoleonic  Wars  ? 
That  the  Executive  in  fact  acted  under  Statutory 
powers  is  clear  upon  an  examination  of  the  Defence 
Acts  and  the  contemporary  records.  Whether  any 
such  prerogative  right  with  respect  to  land  could 
have  survived  this  legislation  is  in  effect  one  of  the 
questions  raised  in  the  Case.  So  far  as  the  modern 
acts  are  concerned  that  question  has  now  been  deter- 
mined :  the  Crown  is  bound  by  the  Defence  Acts  and 
has  no  right  to  elect  to  proceed  otherwise  than  under 
statutory  powers.  No  record  is  to  be  found  in  the 
reports  of  any  claim  by  the  Crown  to  take  land  under 
Common  law  powers  during  the  Napoleonic  wars, 
and  the  historical  evidence  which  will  be  examined 
in  dealing  with  the  prerogative  at  Common  Law 
discloses  no  trace  of  any  claim  at  this  period  to 
act  otherwise  than  by  agreement  or  under  the 
statutes.  It  remains  to  consider  how  far,  if  at  all, 
contemporary  statesmen  concerned  themselves  with 
the  question. 

In  the  light  of  the  contentions  discussed  in  the 
Case  the  conception  entertained  by  the  Government 
of  the  day  of  the  executive  powers  entrusted  to  it 

to  restore  the  land  to  its  original  condition,  or  to  make  compensa- 
tion for  damage  done.  It  is  respectfully  submitted  that  this 
decision  is  open  to  question. 


THE  DEFENCE  ACTS  31 

by  the  constitution  naturally  suggests  itself  as 
a  subject  of  inquiry.  That  Pitt  was  not  unmindful 
of  the  lessons  of  the  past  appears  from  the  fact 
that  he  obtained  from  John  Bruce,  the  Keeper  of 
the  State  Paper  Office,  a  detailed  report  of  the 
arrangements  for  the  defence  of  the  Kingdom  at 
the  time  of  the  Spanish  Armada.  Bruce's  report  ^ 
deals  mainly  with  the  raising  and  disposition  of  the 
forces,  the  protection  of  shipping  in  the  ports  and 
the  provision  of  security  against  the  enemy's 
approach  to  the  capital.  In  regard  to  the  execution 
of  works,  full  provision  is  made  for  payment  for 
labour  and  material,  but  the  report  is  silent  upon 
the  subject  of  payment  for  the  occupation  of  land. 
Whether  or  not  a  practice  obtained  in  the  time  of 
Elizabeth  to  compensate  owners  of  land  in  the 
circumstances  which  prevailed  in  1586,  the  question 
does  not  appear  to  have  been  discussed  two  cen- 
turies later  when  the  Act  of  1798  was  before  Parlia- 
ment. On  the  contrary  the  Government  proceeded 
upon  the  view  that  losses  incurred  by  individuals 
in  the  general  interest  should  be  made  good  by  the 
State,  and  this  was  made  abundantly  clear  by  the 
Secretary  of  State  for  the  War  Department,^  who 
in  introducing  the  Bill  informed  the  House  that : 

'  One  great  provision  in  the  Bill  will  be  to  make 
compensation  to  those  who  shall  suffer  by  the 
attempts  of  the  enemy  and  the  measures  taken  to 
resist  them  ;  and  in  order  that  no  person  may  be 
induced  to  withdraw  his  stock  from  the  general 
service  of  the  country,  or  may  suffer  from  any  part 
his  stock  being  destroyed  by  the  enemy,  or  appro- 
priated by  the  country  for  this  purpose,  the  pro- 

1  App.  D,  p.  247.     A  MS.  copy  is  in  the  British  Museum. 
The  report  was  printed  for  official  use. 

2  Henry  Dundas,  afterwards  Lord  Melville. 


32  CASE  OF  REQUISITION 

visions   of  the   Bill   go   to   render   indemnification 
certain.  .  .  . 

It  must  occur  to  every  one  that  in  the  prospect 
of  an  invasion  it  will  become  necessary,  in  particular 
districts  though  it  is  impossible  to  point  where  at 
present,  to  erect  covers  for  batteries,  and  to  raise 
works  in  critical  situations  where  the  operations 
of  the  enemy  are  most  likely  to  be  directed,  for  this 
purpose  it  may  be  found  necessary  that  pieces  of 
ground  should  be  appropriated  for  such  erections  ; 
but  if  it  is  expedient  to  check  the  attempts  of  the 
enemy  by  such  means,  it  is  no  less  so  that  it  should 
be  fully  understood  that  complete  indemnification 
will  be  made,  and  that  no  man  will  suffer  by  any 
aid  which  he  may  contribute  to  the  public  service.'  ^ 

It  is  apparent,  therefore,  that  whatever  reserva- 
tions may  have  been  intended  by  the  reference  in 
the  preamble  to  the  powers  by  law  vested  in  the 
Crown  for  preventing  and  repelling  an  invasion, 
the  right  of  the  subject  to  compensation  was  fully 
recognized  in  the  clearest  possible  language.  The 
prerogative  was  not  invoked  either  in  1798,  or  when 
the  Statute  of  that  year  was  re-enacted  in  1803. 
But  the  assumption  that  the  Governments  of  the 
day  were  ignorant  of  their  executive  powers  at 
Common  Law  or  unwilling  to  exercise  them  in 
a  proper  case  cannot  be  justified  in  the  light  of  the 

1  33  Pari.  Hist.  1358.  So  in  R.  v.  Abbott  (1897)  2  I.R.  362 
(a  decision  under  the  Defence  Act,  1842).  O'Brien,  L.  C.  J.,  says 
(p.  405)  :  '  The  safety  of  the  State  is  best  secured  by  a  general 
average  contribution,  and  not  by  making  jettison  of  individual 
interests.'  Presumably  the  Government  took  the  advice  of  the 
Law  Officers.  The  Attorney-General  in  1798  was  Sir  John  Scott, 
afterwards  Lord  Eldon  ;  the  Solicitor-General  was  Sir  John 
Mitford,  afterwards  Lord  Redesdale.  The  fact  that  Parliament 
at  this  time  was  composed  almost  entirely  of  landowners  may 
have  had  some  influence  upon  the  policy  of  the  Government. 


THE  DEFENCE  ACTS  33 

legislation  of  the  latter  year.  The  Defence  Acts  of 
1798  and  of  1803  dealt,  amo'ng  a  number  of  other 
matters,  with  the  enrolment  of  men  who  should 
be  willing  to  engage  themselves  for  service  in  the 
Defence  of  the  United  Kingdom.  In  1803  these 
provisions  were  found  to  be  insufficient  and  the 
Government  promoted  and  carried  legislation  con- 
taining elaborate  provisions  for  compulsory  enrol- 
ment and  training.  One  of  the  Acts  by  which  this 
object  was  sought  to  be  effected^  is  entitled, 

'  An  act  to  amend  and  render  more  effectual,  an 
Act  passed  in  the  present  Session  of  Parliament 
intituled,  An  Act  to  enable  his  Majesty  more 
effectually  to  provide  for  the  Defence  and  Security 
of  the  Realm  during  the  present  War,  and  for 
indemnifying  persons  who  may  suffer  in  their  pro- 
perty by  such  measures  as  may  be  necessary  for 
that  Purpose ;  and  to  enable  his  Majesty  more 
effectually  and  speedily  to  exercise  his  ancient  and 
undoubted  Prerogative  in  requiring  the  Military 
Service  of  his  liege  Subjects  in  case  of  Invasion  of  the 
Realm.' 

In  the  debate  on  the  Bill  on  July  18,  Pitt,  in 
explaining  that  the  object  of  the  measure  was  that 
when  people  were  e?alled  out  they  should  be  trained 
to  military  evolutions,  claimed  for  the  Crown 
a  prerogative  '  whenever  the  country  is  threatened 
with  invasion  to  call  out  all  subjects  for  defence ' — 
a  position  which  was  not  challenged  in  debate.^ 
But  in  1804  Fox,  who  had  followed  Pitt  in  the 
debate  on  the  Military  Service  Bill  of  1803  and  had 
confined  himself  to  the  contention  that  the  measure 
would  not  prove  effective,  moved  that  it  be  referred 
to  a  committee  of  the  whole  House  to  revise  the 

1  43  Geo.  Ill,  c.  96.  2  36  parf.  Hist.  1642. 

2388  Tk 


34  CASE  OF  REQUISITION 

several  bills  for  the  defence  of  the  country,   and 
took  exception  to  the  recital  in  the  Military  Ser- 
vice Act  of  1803,^  which,  he  suggested,  had  been 
overlooked.^       Pitt   supported   the   motion    (which 
was    defeated)    but    maintained    his    position   with 
regard  to  the  Common  Law  right  of  the  Crown  to 
call  for  military  service  for  purposes  of  defence. 
'  Nothing    appears    clearer '    (he    said)    *  than    the 
proposition  that  the  State  has  the  right  to  call  the 
people  to  defend  it,  and  that  in  the  Crown,  being 
the  depositary  of  the  power  of  the  State,  is  vested 
the  right  of  so  calling  upon  the  people  in  a  great 
emergency.    The  right  is  recognized  by  the  Constitu- 
tion and  custom  of  the  country — a  right  inherent 
in  the  Crown  to  exercise  this  right  according  to 
necessity  of  such  case  as  may  arise  and  to  be  limited 
by  that  necessity.  ...  As  such  is  the  undoubted 
right  and  prerogative  of  the  Crown,  I  should  think 
that    legislative    provision    should,  in   the    present 
juncture,  a  little  anticipate  the  justifiable  necessity 
— at  least  so  far  as  to  put  every  man  in  the  maritime 
counties  likely  to  be  the  seat  of  the  enemy's  attempt 
under  the  immediate  power  of  the  Crown  in  case 
of  actual  or  imminent  danger  of  invasion.'  ^     The 
discussion  which  followed  is  confined  entirely  to  the 
right  to  demand  military  service.     In  relation  to 
the   compulsory   occupation   of   land  under  powers 
not  conferred  by  statute  the  complete  silence  which 
attended  the  introduction  of  the  Defence  Acts  of 
1798,  of  1803,  and  of  1804  remains  unbroken. 

So  far,  therefore,  the  statutory  law  on  this  subject 

^  43  Geo.  Ill,  c.  96.    The  prerogative  is  recited  in  identical 
terms  in  an  amending  act  of  the  saine  Session  (c.  120). 
2  Cobb,  Pari  Deb.  ii.  194.  s  Ibid.  222. 


THE  DEFENCE  ACTS  35 

follows  in  the  first  instance  the  line  of  authorizing 
the  specific  appropriation  of  private  lands  by  the 
Crown  in  defined  localities,  or  during  a  special 
emergency,  where  such  lands  are  required  for 
national  defence.  Later  it  provides  by  way  of 
permanent  enactment  for  the  exercise  by  the  Crown 
under  certain  safeguards,  of  a  power  to  take  property 
for  the  defence  of  the  realm  when  and  where  the 
needs  of  the  country  justify  a  requisition.  So 
matters  remained  until  the  fourth  decade  of  the 
last  century — a  period  when  Parliament  devoted 
itself  to  framing  a  series  of  consolidating  statutes, 
each  of  which  would  constitute  a  general  and 
permanent  code.  The  Defence  Act,  1842  is  an 
instance  of  the  parliamentary  activity  which  fol- 
lowed the  passing  of  the  first  Reform  Bill,  other 
examples  of  which  are  the  amendment  and  con- 
solidation of  the  law  relating  to  Municipal  Corpora- 
tion and  of  the  Poor  Law,  and  the  legislation 
relating  to  railways,  and  to  the  compulsory  acqui- 
sition of  land  for  public  purposes. 

IV.  The  Defence  Act,  1842.^ 
The  Defence  Act  of  1804  was  repealed,  together 
with  Statutes  containing  minor  amendments  ^  by 
the  Defence  Act,  1842,  which  is  closely  modelled  on 
the  Act  of  1804  and  is  expressed  to  a  great  extent 
in  the  same  language.^  Both  statutes  cover  the 
same  ground. 

1  5  &  6  Vict.,  c.  94.      For  the  amending  Acts,  see  p.  10,  ^ 
note  1,  ante. 

2  1  &  2  Geo.  IV,  c.  69  (1821) ;    3  Geo.  IV,  c.  108  (1822) ; 
2  &  3  Will.  IV,  c.  25  (1832). 

3  Per  Lord  Dunedin,  App.  A,  p.  174.     See  also  R.  v.  Abbott 
(1897),  2  I.R.,  p.  406. 

D  2 


36  CASE  OF  REQUISITION 

The  Act  of  1804  was  passed  in  time  of  war  but  was 
applicable  to  times  of  peace  ;  the  Act  of  1842  was 
passed  in  time  of  peace  and  has  now  been  finally 
held  to  apply  in  time  of  war. 

The  principal  provisions  are  as  follows  : 

Sect.  16.  '  That  it  shall  be  lawful  for  the  principal 
Officers  of  Her  Majesty's  Ordnance^  for  the 
Time  being  to  enter  on,  survey  and  mark  out,  or 
to  cause  to  be  surveyed  and  marked  out,  any  Lands, 
Buildings,  or  other  Hereditaments  or  Easements 
wanted  for  the  service  of  the  Ordnance  Department, 
or  for  the  Defence  of  the  Realm,  or  to  stop  up  or 
divert  any  Public  or  Private  footpaths  or  Bridle- 
roads,  and  to  treat  and  agree  with  the  Owner  or 
Owners  of  such  Lands,  Buildings,  Hereditaments, 
or  Easements,  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.  18.  'It  shall  be  lawful  ...  to  contract  and 
agree  with  such  principal  Officers  either  for  the 
absolute  sale  of  such  Lands,  Buildings  or  other 
Hereditaments,  or  for  the  Grant  of  any  Lease,  either 
for  any  Term  of  Years  certain  therein,  or  for  such 
Period  as  the  Exigence  of  the  public  Service  shall 
1  The  functions  of  the  Principal  Officers  of  the  Ordnance  were 
transferred  to  the  Principal  Secretary  of  State  for  War  by  the 
Ordnance  Board  Transfer  Act  (1855)  (18  &  19  Vict.,  c.  117). 
For  the  history  of  the  Ordnance  Board  and  of  the  Barrack 
Department,  see  Clode,  Military  Forces  of  the  Crown,  i.  74,  253  ; 
ii.  204,  238-251,  683.  The  separation  of  powers  between  these 
two  departments  is  due  to  the  historic  fear  of  a  standing  army 
and  the  consequent  restrictions  on  the  erection  of  barracks. 
Cf .  Blackstone,  i.  413,  '  the  soldiers  should  live  intermixed  with 
the  people,  no  separate  camps,  no  barracks,  no  inland  fortress 
should  be  allowed  '.  This  separation  survives  in  the  proviso  to 
section  19  of  the  Defence  Act,  1842  (which  is  amended  by 
22  Vict.,  c.  12,  s.  4). 


THE  DEFENCE  ACTS  37 

require,  and  to  convey,  surrender,  demise,  or  grant 
the  same  to  such  principal  Officers,  in  Trust  for  Her 
Majesty,  Her  Heirs,  and  Successors,  accordingly ;  and 
all  such  Contracts,  Sales,  Conveyances,  Surrenders, 
Leases  and  Agreements  shall  be  Valid  and  effectual 
in  Law  to  all  Intents  and  Purposes  whatsoever.' 

Sect.  19.  '  That  in  case  any  such  Bodies  or  other 
Persons  hereby  authorized  to  contract  on  behalf 
of  themselves  or  others  as  aforesaid,  or  any  other 
Person  or  Persons  interested  in  any  such  Lands, 
Buildings,  or  other  Hereditaments  which  shall  be 
so  marked  out  and  surveyed  as  aforesaid  shall  for 
the  space  of  Fourteen  Days  next  after  Notice  in 
Writing  subscribed  by  or  on  behalf  of  the  said 
principal  Officers  shall  have  been  given  to  the  Chief 
Officer  or  Officers  of  any  such  Body,  or  to  such  other 
Persons  hereby  authorized  to  contract  on  behalf 
of  others,  or  interested  themselves,  as  aforesaid, 
or  left  at  his,  her  or  their  usual  Place  of  Abode, 
refuse  or  decline  to  treat  or  agree,  or  by  reason  of 
absence  shall  be  prevented  from  treating  or  agreeing 
with  the  said  principal  Officers,  or  shall  refuse  to 
accept  such  sum  of  money  as  shall  be  offered  by 
the  said  principal  Officers  as  the  Consideration  for 
the  absolute  Purchase  of  such  Lands,  Buildings,  or 
other  Hereditaments  or  such  annual  Rent  or  Sum 
as  shall  be  offered  for  the  hire  thereof,  either  for 
a  Time  certain  or  for  a  period  as  the  Exigence  of 
the  public  Service  may  require,  then  and  in  such 
case  it  shall  be  lawful  for  the  said  principal  Officers 
to  require  two  or  more  Justices  of  the  Peace  or 
Three  or  more  Deputy  Lieutenants  (One  of  whom 
shall  be  a  Justice  of  the  Peace)  or  two  or  more 
Deputy  Governors  for  the  County,  Riding,  Stewartry, 
City  or  Place  where  such  Lands,  Buildings  or  other 
Hereditaments  shall  be,  to  put  the  said  principal 
Officers,  or  any  Person  appointed  by  them,  into 
immediate  Possession  of  such  Lands,  Buildings  or 
other  Hereditaments  which  such  Justices  or  Deputy 


38  CASE  OF  REQUISITION 

Lieutenants  or  Deputy  Governors  are  hereby  required 
to  do,  and  shall  for  that  purpose  issue  their  Warrants 
under  their  Hands  and  Seals  commanding  Possession 
to  be  so  delivered  and  shall  also  issue  their  Warrants 
to  the  Sheriff  of  the  County,  Riding,  Stewartry,  Cit^, 
or  Place  wherein  such  Lands,  Buildings  or  Heredita- 
ments shall  be  situate  to  summon  a  Jury^  .  .  . 
and  the  Jury  on  hearing  any  Witnesses  and  Evidence 
that  may  be  produced  shall  on  their  Oaths  (which 
Oaths  as  also  the  Oaths  of  such  Witnesses,  the  said 
Justices,  Deputy  Lieutenants  or  Governors  respec- 
tively are  hereby  empowered  and  required  to  ad- 
minister) 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.' 

The  marked  resemblance  borne  by  these  sections 
to  the  corresponding  provisions  of  the  earlier  legis- 
lation and  more  particularly  of  the  Act  of  1804 
requires  no  comment,  while  that  resemblance  is  no 
less  close  when  the  remaining  provisions  of  the 
Act  come  to  be  considered  in  detail.  The  Act  is 
built  up  on  the  framework  of  the  Act  of  1804  and 
to   a   great   extent    adopts    its    precise    language.^ 

1  The  powers  given  to  promoters  of  undertakings  under  the 
Lands  Clauses  ConsoUdation  Act,  1845  (8  &  9  Vict.,  c.  18) 
are  by  section  7  of  the  Lands  Clauses  Consolidation  Act,  1860 
(23  &  24  Vict.,  c.  106)  made  available  in  respect  of  land  wanted 
for  the  service  of  the  Admiralty  or  of  the  War  Department  or 
for  the  Defence  of  the  Realm.  Section  11  of  the  Ranges  Act, 
1911  (54  &  55  Vict.,  c.  54)  enables  the  acquiring  authority  to 
require  compensation  to  be  settled  by  arbitration  instead  of 
by  reference  to  a  jury.  For  the  measure  of  compensation  (which 
includes  injurious  affection  of  adjoining  lands),  see  Blundell  v. 
The  King  (1905),  1  K.B.  516  ;  following  R.  v.  Abbott  (1897), 
2  I.R.  362  ;  and  In  re  Ned's  Point  Battery  (1903),  2  I.R.  192. 

2  See  note  (3),  p.  35,  ante. 


THE  DEFENCE  ACTS  39 

The  reference  to  temporary  occupation  in  the 
expression  '  during  such  time  as  the  exigency  of 
the  pubHc  service  shall  require ',  which  is  taken 
from  section  10  of  the  Act  of  1798,  furnishes  the 
best  instance  of  such  literal  adoption.  On  what 
ground,  then,  can  the  Act  be  said  to  be  inapplicable 
to  the  facts  of  the  Case  ?  Is  there  any  emergency 
left  uncovered  by  the  Act  and  therefore  necessitating 
recourse  to  such  prerogative  powers  as  may  exist  ? 
That  the  Act  applies  in  time  of  war  is  clear  from 
the  provisions  of  section  23,  which  is  in  the  following 
terms  : 

'  No  such  Land,  Buildings  or  other  Hereditaments 
shall  be  so  taken  without  the  Consent  of  the  Owner 
or  Owners  thereof,  or  of  any  such  Person  or  Persons 
as  aforesaid  acting  for  or  on  the  Behalf  of  the  Owner 
or  Owners  thereof,  unless  the  Necessity  or  Expediency 
of  taking  the  same  shall  be  first  certified  by  the 
Lord  Lieutenant,  or  Two  of  the  Deputy  Lieutenants, 
or  by  the  Governor  or  two  Deputy  Governors  of 
the  County,  Riding,  Stewartry,  City,  or  Place  in 
which  such  Lands,  Buildings  or  other  Hereditaments 
lie,  and  unless  the  taking  of  such  Lands,  Buildings 
or  other  Hereditaments  be  authorised  by  a  Warrant 
under  the  Hand  or  Hands  of  the  Lord  High  Treasurer 
or  of  the  Commissioners  of  Her  Majesty's  Treasury 
of  the  United  Kingdom  of  Great  Britain  and  Ireland, 
for  the  time  being,  or  any  Three  or  more  of  them  or 
unless  the  Enemy  shall  have  actually  invaded  the 
United  Kingdom  at  the  time  when  such  Lands, 
Buildings  or  other  Hereditaments  shall  be  so  taken.' 

Actual  invasion  is  therefore  provided  for:  and  in 
such  case  the  officers  of  the  Crown  are  authorized 
to  take  possession  without  observing  the  prescribed 
formalities,  such  as  obtaining  an  order  for  possession 
under  section  19,  or  a  certificate  under  section  23. 


40  CASE  OF  REQUISITION 

These  formalities,  in  fact,  have  a  direct  bearing  upon 
the  argument.  If  they  must  be  compHed  with  what- 
ever may  be  the  emergency,  it  is  possible  to  imagine 
cases  in  which  the  duty  of  compliance  might  call 
for  the  exercise  of  powers  by  which  the  statutory 
duty  would  be  overridden.  No  such  necessity  arose 
in  the  Case,  for  the  officers  of  the  Crown  were  con- 
tent to  negotiate  until  they  failed  to  come  to  terms. 
Conceivably  an  emergency  might  arise  in  which  the 
Crown  would  be  justified  in  acting  without  com- 
plying with  the  statutory  requirements,  more  espe- 
cially when  Parliament  is  not  sitting.^  Such  a 
case,  however,  is  purely  hypothetical  in  relation  to 
the  conditions  prevailing  in  1916  for  the  reason 
that  it  was  covered  by  the  express  statutory  pro- 
visions of  the  Defence  of  the  Realm  Consolidation 
Act,  1914,2  ]3y  section  2  (2)  of  which  power  is  given 
'  to  provide  by  regulation  for  the  suspension  of  any 
restrictions  on  the  acquisition  or  user  of  land,  or 
the  exercise  of  the  power  of  making  by-laws  or  any 
other  powers  under  the  Defence  Acts,  1842  to  1875, 
or  the  Military  Lands  Acts,  1891  to  1903  '.  It  is 
therefore  in  the  words  of  Lord  Moulton  ^  '  a  sound 
inference  from  the  language  of  subsection  (2)  that 
the  Legislature  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  suspension  of  some  or  all 
of  the  restrictions  which  it  imposes  '.  In  fact,  '  if 
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 

1  See  p.  66,  post.  2  5  Qeo.  V,  c.  8.    See  p.  84,  post. 

3  App.  A,  p.  193. 


THE  DEFENCE  ACTS  41 

subsection  (2)  of  section  1  of  the  Act  of  1914  had 
only  to  be  exercised,  as  in  fact  they  were  and  all 
these  difficulties  would  vanish.'  ^ 

The  whole  field,  therefore,  of  the  prerogative  in 
the  matter  of  the  acquisition  of  land  or  rights  therein 
is  covered  by  the  Act,^  and  the  Act  makes  full 
provision  for  the  payment  of  compensation  for  lands 
taken.^  Whether  in  these  circumstances  the  Crown 
is  entitled  to  rely  on  any  prerogative  powers  inde- 
pendent of  Statute  remains  for  consideration  in 
a  later  chapter. 

1  Per  Lord  Sumner,  App.  A,  p.  201. 

2  Per  Lord  Dunedin,  App.  A,  p.  174.  Section  34  contains 
a  saving  of  the  prerogative  with  regard  only  to  litigation.  See 
p.  109,  post. 

3  The  point  that  the  obligation  to  make  compensation  is 
not  a  '  restriction  '  is  dealt  with  at  p.  88,  post. 


CHAPTER  III 

THE  PREROGATIVE   OF  THE  CROWN 


The  contentions  raised  on  behalf  of  the  Crown 
have  been  set  out  in  outHning  the  history  of  the 
Case.i  It  is  now  proposed  to  examine  the  claim 
to  enter  upon  and  occupy  lands  by  virtue  of  powers 
derived  from  the  Royal  Prerogative,  that  is  to  say, 
under  the  Common  Law  independently  of  Statute. 
Lord  Sumner  in  his  judgment  ^  points  out  that  the 
Crown  '  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  29th  April  1916  to  have  had  any 
authority  to  bind  the  Crown  by  an  election  between 
its  statutory  and  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.' 

Such  Common  Law  powers  of  the  Crown  there- 
fore, as  can  be  exercised  under  the  Royal  Preroga- 
^  Ante,  p.  4.  ^  App.  A,  p.  198. 


THE  PREROGATIVE  OF  THE  CROWN         43 

tive,  require  to  be  considered  only  if  the  facts  of 
the  case  are  not  covered  by  Statute  binding  on  the 
Crown.  In  the  Supphants'  submission  the  Defence 
Act,  1842  appKed  and  gave  a  statutory  right  to 
compensation.  The  advisers  of  the  Crown  on  the 
other  hand,  while  contending  that  the  Defence  Act 
had  no  application,  relied  on  the  Defence  of  the 
Realm  Acts  and  Regulations  as  excluding  the  right 
to  compensation,  and  maintained  that  if  that  right 
was  not  expressly  excluded,  it  was  inconsistent  with 
a  right  claimed  on  behalf  of  the  Crown  at  Common 
Law,  not  only  to  requisition  private  property,  but 
to  do  so  free  from  any  legal  obligation  of  payment. 
It  therefore  becomes  necessary  to  examine  the 
nature  and  extent  of  the  alleged  Common  Law 
powers. 

In  considering  the  prerogative  in  relation  to  the 
questions  arising  in  the  Case,  it  is  happily  now 
unnecessary  to  review  the  controversies  which 
culminated  in  the  great  historical  documents  such 
as  Magna  Carta  or  the  Bill  of  Rights  upon  which 
our  constitutional  liberties  are  based.  No  one 
would  suggest  in  these  days  that  the  Sovereign 
would  incur  personal  responsibility  for  any  action 
of  the  executive  government — still  less  that  the 
King  himself  would  claim  to  be  in  any  respect 
above  the  law.  On  the  contrary  '  the  King  has  not 
any  Prerogative  but  such  as  the  law  allows  ',^ 
a  principle  which  applies  both  to  the  personal 
status  of  the  Sovereign,  and  also  and  in  no  less 
a  degree  to  such  powers  as  are  exercised  in  the 
name  of  the  King  by  the  Executive.     The  Crown 

1  The  Case  of  Proclamations  (1611)  12  Rep.  74;  77  E.R. 
1352. 


44  CASE  OF  REQUISITION 

has  been  aptly  described  as  a  convenient  working 
hypothesis  based  on  the  theory  that  '  while  the 
making  of  laws  is  entirely  the  work  of  the  legislature, 
the  circumstances  of  putting  the  law  into  execution 
must  frequently  be  left  to  the  discretion  of  the 
executive  magistrate  '/  The  discretion  is  in  fact 
delegated  and  its  exercise  is  largely  circumscribed 
by  statutory  enactment.  Prerogative  is  the  residue 
of  that  executive  power  which  the  King  in  the 
early  stages  of  our  history  once  possessed  in  all 
the  departments  of  Government.^  This  power, 
reduced  in  compass  and  limited  in  exercise  by  many 
conventional  and  practical  restrictions,  remains  as 
'  that  discretionary  or  arbitrary  authority  which 
at  any  given  time  is  legally  left  in  the  hands  of  the 
Crown '  ^  and  '  every  act  which  the  executive 
government  can  lawfully  do  without  the  authority 
of  an  Act  of  Parliament  is  done  by  virtue  of  this 
prerogative'.^  The  extent  of  this  authority  is  not 
easy  to  define. 

'  We  find ',  says  the  late  Professor  Maitland,^ 
'  that  there  is  often  great  uncertainty  as  to  the 
exact  limits  of  the  royal  prerogative.  Since  the 
settlement  of  1688  very  little  has  been  done  towards 
depriving  the  King  by  any  direct  words  of  any  of 
his  legal  powers.  Those  powers  were  great  and  they 
were  somewhat  indefinite.  Very  seldom  has  any 
statute  expressly  taken  them  away,  very  seldom  has 
any  statute  said  in  so  many  words  "  it  shall  not  be 
lawful   for  the   King  to   do  this ".      But   without 

^  Blackstone,  Comm.,  i.v270. 

2  Anson,  Law  and  Custom  of  the  Constitution,  vol.  ii,  pt.  i 
(3rd  ed.),  p.  3. 

3  Dicey,  Law  of  the  Constitution  (8th  ed.),  p.  420. 

4  Ibid.,  p.  421. 

^  Constitutional  History  of  England,  p.  418. 


THE  PREROGATIVE  OF  THE  CROWN    45 

directly  destroying  these  prerogative  powers  statutes 
have  created  a  large  number  of  powers  dealing  with 
the  same  matters,  some  given  to  the  king,  some 
to  one  or  to  another  of  his  great  officers.  Such  modern 
powers  have  been  definite  and  adapted  to  the  wants 
of  modern  times,  and  they  have  been  freely  used. 
On  the  other  hand  the  old  prerogative  powers  have 
become  clumsy  and  antiquated,  and  have  fallen 
into  disuse  ;  the  very  uncertainty  as  to  their  limits 
has  made  them  impracticable.  Still  they  have  not 
been  expressly  abolished,  and  to  the  legal  student 
the  question  must  often  occur  whether  they  are  or 
are  not  in  existence.  Remember  this,  that  we  have 
no  such  doctrine  as  that  a  prerogative  may  cease 
to  exist  because  it  is  not  used.  On  the  other  hand 
we  shall  often  find  that  it  would  be  extremely 
difficult  to  use  these  prerogative  powers  without 
doing  something  definitely  unlawfid.' 

The  right  of  the  Crown  to  take  the  property  of 
a  subject  without  his  consent  can  only  be  justified 
on  the  ground  of  necessity — Solus  reipublicae  suprema 
lex.  The  immediate  question  in  the  Case  was 
whether  the  subject  is  entitled  to  compensation  for 
interference  with  his  proprietary  rights,  the  necessity 
for  that  interference  being  assumed,  rather  than 
whether  the  right  to  requisition  itself  rests  upon 
any  legal  foundation.  The  argument  for  the  Crown 
was  constructed  on  a  broader  basis.  The  right  to 
requisition  private  property,  it  was  contended,  is 
a  right  to  take  without  a  corresponding  obligation 
to  pay.  The  right  to  take,  use,  or  occupy  is  not 
enough  :  its  exercise  is  not  limited  or  conditioned 
by  any  such  obligation.  In  order  to  test  this 
asserted  right,  whether  in  its  broader  or  in  its 
narrower  aspect,  it  becomes  necessary  to  examine 
the  authorities  upon  which  the  prerogative  right  is 


46  CASE  OF  REQUISITION 

founded,  and  the  limitations  set  by  law  upon  its 
exercise. 

Inquiry,  it  is  submitted,  has  established  a  practice 
on  the  part  of  the  Crown,  uniformly  followed  down 
to  1914,  to  compensate  the  subject  where  his 
property  is  taken  for  the  public  service,  be  it  land, 
chattels,  or  ships. 

The  claim  of  the  suppliants  in  the  Case  was  to  be 
compensated  for  the  loss  of  a  piece  of  land.  It  is 
obvious  that  the  suppliants  might  endeavour  to 
make  good  their  claim  by  the  use  of  a  broader 
argument,  which  would  apply  to  movables  as  well 
as  to  immovables.  This  broader  argument  would 
take  the  general  form  that  when  the  Crown  in 
an  emergency  compulsorily  deprives  a  subject  of 
property  of  any  sort,  there  arises  an  obligation  in 
the  Crown  on  behalf  of  the  whole  community 
to  compensate  the  individual  who  suffers  this 
special  loss,  and  this  argument  was  employed  in 
arguing  the  Case.  But  the  suppliants  had  a 
narrower  argument  which  was  sufficient  for  the  pur- 
pose in  hand,  namely  that  the  taking  of  landed 
property  is  exhaustively  covered  by  statutory  enact- 
ment which  secures  compensation  to  the  private 
owner;  with  the  result  that,  at  all  events  in  the 
case  of  land,  there  was  no  room  for  the  application 
of  the  alleged  right  of  the  Crown  to  take  without 
payment.  So  far  as  land  is  concerned,  the  Case 
decides  that  the  right  to  compensation  now  rests 
upon  statute,  and  that  the  Crown  cannot,  by 
vouching  the  prerogative,  take  land  for  national 
defence  while  repudiating  the  obligation  of  payment 
imposed  by  statute. 

In  preparing  to  argue  the  case  on  the  question 
of  prerogative,  it  became  necessary  to  investigate 


THE  PREROGATIVE  OF  THE  CROWN         47 

the  circumstances  under  which  property  generally 
was  requisitioned  in  the  past  in  order  to  ascertain 
whether  the  right  claimed  by  the  Crown  could  be 
said  to  exist  at  all ;  whether  it  still  exists  ;  the  con- 
ditions of  its  exercise ;  and  the  principles  upon  which 
compensation  was  formerly  paid.  Except  in  so  far 
as  they  relate  to  land  these  inquiries  are,  perhaps, 
not  directly  in  point ;  if,  however,  they  lead  to  the 
conclusion  that  the  underlying  principles  are  identi- 
cal in  all  cases,  not  only  is  the  case  with  regard  to 
land  fully  established,  but  some  contribution  is 
made  to  the  solution  of  similar  questions  arising 
out  of  the  requisitioning  of  chattels  and  of  ships.^ 

II.    The  Cases, 
The  Case  of  Saltpetre. 

The  argument  for  the  Crown  rested  mainly  upon 
two  cases. 

The  Case  of  Saltpetre  ^  is,  like  other  cases  to  be 
found  in  Coke's  Reports,^  not  a  decision  in  any 
litigation,  but  a  record  of  resolutions  of  the  judges 
summoned  in  their  consultative  capacity  as  advisers 
of  the  Crown.  The  judges,  having  been  summoned 
to  consult  what  prerogative  the  King  had  in  digging 
and  taking  up  saltpetre  to  make  gunpowder  by  the 
law  of  the  Realm,  resolved  that  the  King  may 
take  saltpetre  within  the  Realm  subject  to  the 
following  limitations  : 

1.  Although  •the  King  cannot  take  trees  of  the 
subject  growing  upon  his  freehold  and  inheritance 
and  although  he  cannot  take  gravel  for  reparation 

1  See  Excursus  I,  p.  136  post. 

2  (1606)  12  Rep.  12  ;  77  E.R. 1294. 

3  See  for  example  The  Case  of  Proclamations,  (1611)  12  Rep. 
74  ;  77  E.R.  1352. 


48  CASE  OF  REQUISITION 

of  his  house,  yet  he  may  dig  for  saltpetre,  but  the 
ministers  who  dig  for  saltpetre  are  bound  to  leave 
the  inheritance  in  as  good  a  plight  as  they  found  it. 

2.  The  case  of  gravel  for  the  reparation  of  the 
King's  houses  is  not  to  be  compared,  for  the  case  of 
saltpetre  extends  to  the  defence  of  the  whole  Realm 
in  which  every  subject  hath  benefit .  .  .  When  enemies 
come  against  the  Realm  to  the  sea-coast,  it  is  lawful 
to  come  upon  my  land  adjoining  to  the  same,  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  Edw.  IV,  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  every  one  hath  benefit 
by  it ;  but  after  the  danger  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,  fo.  15.  And  in  this  case  the  rule 
is  true,  Princeps  et  respuhlica  ex  iusta  causa  possunt 
rem  meam  auferre, 

3.  This  taking  of  saltpetre  is  a  purveyance  of  it 
for  the  making  of  gunpowder  for  necessary  defence 
and  safety  of  the  Realm  and  for  this  cause,  as  in 
other  purveyances,  it  is  an  incident  inseparable 
to  the  Crown,  and  cannot  be  granted  demised  or 
transferred,  but  ought  to  be  taken  only  by  the 
ministers  of  the  King. 

4.  The  ministers  of  the  King  cannot  undermine 
weaken  or  impair  the  walls  or  foundations  of  any 
houses  or  other  buildings  and  cannot  dig  in  the  floor 
of  my  mansion  house  which  serves  for  the  habitation 


THE  PREROGATIVE  OF  THE  CROWN    49 

of  man  or  in  the  floor  of  any  barn  employed  for  the 
safe  custody  of  corn,  hay,  etc.  But  they  may  dig 
in  the  floors  of  stables,  or  ox-houses,  so  that  there  be 
sufficient  room  for  horses  and  other  cattle  of  the 
owner,  and  so  that  they  repair  it  in  convenient 
time,  in  so  good  a  plight  as  it  was  before. 

What  bearing  have  these  resolutions  upon  the 
questions  in  the  Case?  How  far  do  they  support 
the  argument  of  the  Crown  ?  The  question  before 
the  judges  was  the  right  of  the  '  ministers  '  of  the 
Crown  to  enter  land  and  to  dig  for  saltpetre,  that  is 
to  say,  to  enter  land  for  making  '  purveyance '  of 
this  necessary  commodity. 

The  Crown  relied  strongly  upon  the  passage  in 
the  second  resolution  which  is  printed  in  italics. 
To  what  does  this  araount  ?  It  is  lawful  to  enter 
another  man's  land  in  case  of  invasion,  but  by  what 
right  ?  The  reference  to  the  right  of  every  subject 
in  like  case  to  commit  what  would  otherwise  con- 
stitute a  trespass  makes  it  clear  that  this  right  is 
in  no  way  to  be  ascribed  to  any  prerogative  of  the 
Crown,  but  is  merely  that  of  every  individual  to 
make  a  temporary  entry  where  such  entry  is 
justified  by  necessity,  as  in  the  case  of  a  fire  which 
threatens  to  spread  to  adjoining  land  or  houses. 
This   right  is  fully  recognized  in  the  Year  Books  ^ 

1  A  custom  in  Kent  *  when  the  enemy  come  to  the  coast ' 
to  enter  upon  land  adjoining  the  same  coast  in  defence  and 
safeguard  of  the  Realm  and  then  to  make  there  trenches  and 
bulwarks  for  the  Defence  of  the  Realm — held  to  be  well  pleaded 
(Y.  B.  8  Edw.  IV,  H.  41).  An  entry  upon  landin  time  of  war  *  pur 
faire  bulwark  in  defence  du  Roy  et  le  Realm ' — held  justifiable 
as  a  thing  necessary  for  the  commonwealth  though  otherwise 
illegal  (Y.B.  21  Hen.  VII,  T.  27b).  Suburbs  '  d'cities  seront 
plucked  down  in  temps  d'guerre  :  pur  ceo  que  ceo  est  pur  le 
commonwealth  chescun  poit  faire  sans  aver  action '  (Y.  B. 
14  Hen,  VIII,  T.  pi.  16). 

2388  jj      . 


50  CASE  OF  REQUISITION 

and  the  Statute  4  Hen.  VIII,  c.  i,  to  which  reference 
has  already  been  made,^  was  therefore  declaratory 
of  the  Common  Law,  or  at  all  events  embodied 
a  recognized  principle,  and  perhaps  regulated  the 
conditions  in  which  that  right  was  to  be  exercised 
in  a  particular  case. 

'  The  profitable  prerogative  of  purveyance  and 
pre-emption ',  says  Blackstone,^  '  was  a  right 
enjoyed  by  the  Crown  of  buying  up  provisions  and 
other  necessaries,  by  the  intervention  of  the  king's 
purveyors,  for  the  use  of  his  royal  household,  at 
an  appraised  valuation  in  preference  to  all  others, 
and  even  without  consent  of  the  owner  ;  and  also 
of  forcibly  impressing  the  carriages  and  horses  of 
the  subject,  to  do  the  king's  business  on  the  public 
roads,  in  the  conveyance  of  timber,  baggage,  and  the 
like,  however  inconvenient  to  the  proprietor,  upon 
paying  him  a  settled  price.  A  prerogative,  which 
prevailed  pretty  generally  throughout  Europe,  during 
the  scarcity  of  gold  and  silver,  and  the  high  valuation 
of  money  consequential  thereupon.  In  these  early 
times  the  king's  household  (as  well  as  those  of 
inferior  lords)  were  supported  by  specific  renders 
of  corn,  and  other  victuals,  from  the  tenants  of 
the  respective  demesnes ;  and  there  was  also 
a  continual  market  kept  at  the  palace  gate  to  furnish 
viands  for  the  royal  use.  And  this  answered  all 
purposes  in  those  ages  of  simplicity,  so  long  as  the 
king's  court  continued  in  any  certain  place.  But 
when  it  removed  from  one  part  of  the  kingdom  to 
another  (as  was  formerly  very  frequently  done)  it 
was  found  necessary  to  send  purveyors  beforehand 
to  get  a  sufficient  quantity  of  provisions  and  other 
necessaries  for  the  household  ;  and,  lest  the  unusual 
demand  should  raise  them  to  an  exorbitant  price, 
the  powers  before-mentioned  were  vested  in  these 

1  Ante,  p.  12.  2  Comm.  i.  287. 


THE  PREROGATIVE  OF  THE  CROWN         51 

purveyors  ;  who  in  process  of  time  very  greatly 
abused  their  authority  and  became  a  great  oppression 
to  the  subject  though  of  httle  advantage  to  the  Crown.' 

References  to  purveyance  are  to  be  found  as  early 
as  Magna  Carta  of  1215,  which  forbids  any  constable 
or  bailiff  of  the  King  to  take  corn  or  other  provisions 
from  any  freeman  without  tendering  money  there- 
fore, unless  he  can  have  postponement  thereof  by 
permission  of  the  seller,^  and  further  prohibits  the 
taking  by  any  sheriff  or  royal  bailiff  of  horses  or 
carts  for  transport  duty  without  the  consent  of 
a  free  owner.  These  prohibitions  were  probably 
directed  against  requisitions  by  the  King's  officers 
in  their  own  interest  and  placed  no  restrictions 
upon  the  practice  for  the  legitimate  purposes  of 
the  King's  household,^  with  the  result  that  the 
right  of  purveyance  was  grossly  abused.  The 
practice  appears  to  have  been  universal  throughout 
Europe.^  Its  early  history  in  England  is  obscure  ; 
the  accounts  do  not  contain  any  allusions  to  the 
practice  before  the  middle  of  the  reign  of  Edward  II.* 
Stubbs  suggests  ^  that  the  abuse  may  have  been 
of  comparatively  late  origin,  or  else  that  its  early 
traces  were  submerged  in  the  general  oppression. 
However  that  may  be,  purveyance  appears  as 
a  constant  ground  of  complaint  when  men  began 
to  formulate  their  grievances  in  the  shape  of 
petitions  by  the  Commons,  upon  many  of  which 
statutes  were  framed. 

1  Cap.  28,  30.  Similar  provisions  are  found  in  Magna  Carta 
of  1225  (9  Hen.  Ill),  cap.  5,  19,  21. 

2  McKechnie,  Magna  Carta,  p.  330. 

3  Stubbs,  ii.  536. 

*  Thorold  Rogers,  Hist,  of  Agriculture  and  Prices,  i.  117. 
^  ii.  536,  quoting  Archbishop  Islip,  Speculum  Regis,  c.  4. 

E  2 


62  CASE  OF  REQUISITION 

The  principal  grievances  were  the  taking  of 
chattels  without  payment  or  only  in  exchange  for 
exchequer  tallies,^  a  vexatious  anticipation  of 
taxation  since  these  could  only  be  used  in  payment 
of  Crown  dues :  ^  the  corruption  of  the  purveyors, 
who  made  requisitions  in  excess  of  what  was 
required,  and  exacted  payment  for  the  release  of  the 
goods,  and  the  arrogation  to  themselves  by  powerful 
subjects  of  a  right  which  was  possessed  only  by 
the  King  and  to  some  extent  by  his  family.^ 

Historical  writers  in  dealing  with  the  subject  are 
apt  to  convey  the  impression  that  the  exercise  of 
this  prerogative  was  confined  to  the  taking  of 
chattels  for  the  personal  use  of  the  King  and  of  his 
family,  such  as  provisions  for  his  house  and  horses 
and  carriages  for  the  conveyance  of  the  King  and 
of  his  retinue  when  on  royal  progress  through  the 
country,  an  impression  which  proves  to  be  inaccurate 
upon  a  detailed  examination  of  the  statutes  relating 
to  purveyance.  It  is  true  that  a  number  of  these 
refer  in  terms  only  to  the  furnishing  of  the  King's 
house  and  'carriage',  doubtless  because  they  are 
directed  to  the  grievances  arising  out  of  that  par- 
ticular form  ,of  purveyance ;  but  there  are  occasional 
references  to  the  garrisons  of  castles,  while  a  statute 
of  1340  deals  expressly  with  purveyance  for  the 
King's  house  and  wars.^  As  early  as  1275  the 
statute  of  Westminster  the  First  ^  recites  the  evil 
of  taking  victual  and  other  things  to  the  King's 
use  upon  credence  or  for  the  garrison  of  a  castle, 
and  provides  that  the  lands  of  those  who  having 
received  payment  from  the  exchequer  or  otherwise 

1  e.  g.  3  Edw.  I  (1275),  c.  32.  2  McKechnie,  p.  330. 

3  As  in  the  case  of  Hugh  Spencer  ;   Thorold  Rogers,  loc.  cit. 

4  14  Edw.  Ill,  Stat,  i,  c.  19.  ^  3  Edw.  I,  c.  32. 


THE  PREROGATIVE  OF  THE     CROWN        53 

withhold  it  from  the  owners  shall  be  liable  to  be 
taken  in  execution  for  the  sums  due  and  for  damages, 
and  that  those  who  take  horses  or  carriages  for  the 
King's  use  beyond  what  are  needed  shall  be 
grievously  punished  by  the  Marshals  (although  no 
penalty  is  specified).  In  1360  ^  purveyance  is 
declared  to  be  properly  confined  to  the  use  of  the 
King,  the  Queen,  and  the  King's  eldest  son,  while 
by  a  statute  of  1362  ^  it  is  restricted  to  the  King 
and  Queen,  and  the  '  heinous  name '  of  purveyor  is 
changed  to  that  of  buyer,  while  commissions  to  pur- 
veyors are  to  be  issued  under  the  great  seal  and 
renewed  every  half  year.  At  a  time  when  the 
King  made  war  out  of  his  own  purse,  with  the  help 
of  such  aids,  prises,  or  other  assistance^  as  he 
might  be  able  to  obtain,  it  is  hardly  surprising  that 
the  distinction  between  purveyance  for  his  own 
personal  use  and  for  the  purposes  of  war  should 
appear  somewhat  faint.  The  statute  of  1340,* 
however,  makes  it  clear  that  the  right  of  purveyance 
was  exercisable  for  either  purpose.  It  provides  that 
purveyances  made  for  the  houses  of  the  King  and 
Queen,  both  where  they  live  and  where  they  pass 
through  the  country,  shall  be  made  by  warrant ; 

1  34  Edw.  Ill,  c.  2. 

2  36  Edw.  Ill,  Stat,  i,  c.  2. 

3  A  statute  of  1297  (25  Edw.  I,  Stat,  i,  c.  5)  recites  that  divers 
people  are  in  fear  that  the  aids  and  tasks  they  have  given  towards 
the  King's  wars  and  other  business,  of  their  own  grant  and  good- 
will, might  turn  to  a  bondage,  and  likewise  for  the  prises  taken 
by  the  King's  ministers,  and  proceeds  '  we  have  granted  that  we 
shall  not  draw  such  aids,  tasks  nor  prises  into  a  custom,  and 
no  such  aids  tasks  or  prises  are  to  be  taken  in  future  except 
by  the  common  assent  of  the  Realm  and  for  the  profit  thereof, 
saving  the  ancient  aids  and  prises  due  and  accustomed  '. 

4  14  Edw.  Ill,  Stat,  i,  c.  19. 


54  CASE  OF  REQUISITION 

and  only  by  agreement  with  the  vendors,^  but 
that  the  '  great  purveyances  '  (an  expression  which 
would  seem  to  point  to  a  distinction  between  sup- 
plies for  the  domestic  use  of  the  King  and  provision 
for  his  needs  in  time  of  war,  such  as  carts,  fish,  and 
other  victuals)  for  the  King's  wars  and  to  victual 
his  castles  and  towns  in  Scotland,  England,  and 
elsewhere  shall  be  made  by  certain  merchants  and 
good  people  deputed  by  the  Treasurer,  but  without 
commission  from  the  King,  provided  that  no  one 
shall  be  forced  to  sell  anything  without  his  consent. 
Once  it  is  established  that  the  Crown's  right  of 
purveyance  covers  both  the  right  of  the  royal 
household  to  be  provided  with  supplies  for  its  own 
maintenance  and  the  right  of  the  King  as  the  head 
of  his  people  to  get  material  for  munitions  of  war, 
such  as  saltpetre,  the  inference  that  the  requisition 
of  chattels  for  national  defence  had  the  authority 
of  the  Common  Law  and  was  on  a  basis  of  payment 
to  the  subject  becomes  exceedingly  clear.  For  no 
one  suggests  that  the  right  of  the  King's  household 
to  take  the  provisions  it  needed  was  a  right  to  take 
without  payment — the  controversy  on  this  subject 
arises  from  the  difficulty  of  making  the  King's 
officers  pay  what  was  constitutionally  due — and  if 
this  is  true  of  one  sort  of  purveyance  it  seems 
difficult  to  believe  that  another  application  of  the 
same  right  of  purveyance  did  not  lead  to  a  similar 
constitutional  right  to  be  paid.  Indeed,  to  the 
lawyers  of  the  Middle  Ages  the  two  sorts  of  pur- 
veyance would  have  been  indistinguishable.     The 

^  This  restriction,  which  is  inconsistent  with  the  exercise 
of  the  right  of  purveyance,  is  not  re-enacted  in  the  later  statutes. 
See  for  example  34  Edw.  Ill  (1360),  c.  2.  36  Edw.  Ill,  c.  2  (1362), 
provides  that  none  need  obey  without  ready  payment. 


THE  PREROGATIVE  OF  THE  CROWN         55 

King  was  the  head  of  his  people  in  peace  and  war, 
and  he  provided  himself  with  supplies  for  his  house- 
hold and  with  munitions  of  war  by  virtue  of  the 
same  title  and  in  the  exercise  of  the  same  function 
as  head  of  the  State.  If,  therefore,  payment  was 
due  in  one  case,  it  was  certainly  due  in  the  other. 

The  statutes  had  little  if  any  effect  in  remedying 
these  abuses,  which  formed  the  subject  of  a  com- 
plaint in  1604.  In  that  year  the  Commons  presented 
a  petition  setting  forth  their  grievances  in  respect 
of  purveyance,  in  which  it  was  asserted  that  the 
practice  had  been  restrained  by  no  less  than 
36  statutes.  This,  among  other  grievances,  was 
referred  to  a  Committee  in  whose  proceedings  Bacon 
took  an  active  part.  A  conference  with  the  Lords 
followed  but  the  matter  ultimately  dropped.^ 

Two  years  later  '  upon  a  grievous  complaint '  by 
the  Commons  '  concerning  many  grievances  suffered 
in  the  execution  of  commissions  granted  to  certain 
persons  for  getting  saltpetre',  the  King  replied  that 
'  he  had  never  an  intention  to  make  any  application 
of  his  prerogative  therein  further  than  might  stand 
with  the  lawful  and  necessary  use  thereof  '.^  All 
commissions  and  grants  were  thereupon  revoked,^ 
and  the  question  of  the  limits  within  which  the 
right  might  be  lawfully  exercised  submitted  for  the 
opinion  of  all  the  judges,  whose  resolutions  have 
been  already  referred  to.  Coke's  report  of  the  case 
mentions  two  commissions  in  the  31st  year  of 
Elizabeth,  one  of  which,  now  in  the  Public  Record 
Office,  was  included  in  the  documents  in  the  Case.* 
His  statement  that  Elizabeth's  commissions  were 

1  HaUam,  Const,  Hist.y  ed.  1884,  i.  204. 

2  3  Inst.  82.  3  Ibid. 
*  App.  E,  p.  261. 


56  CASE  OF  REQUISITION 

the  first  of  their  kind  is  not  entirely  accurate.^ 
The  first  document  which  has  come  to  Hght  is 
a  warrant  in  1492,^  from  Henry  VII  to  one  Stoke, 
Clerk  of  the  Ordnance,  authorizing  him  to  provide 
so  many  houses,  land,  vessels,  wood,  coal,  and  other 
fuel  suitable  for  making  saltpetre  for  the  Ordnance, 
'  the  fee  of  the  Church  only  excepted,  for  our  moneys 
in  this  behalf  reasonably  to  be  paid  '  and  to  arrest  ^ 
and  take  artificers,  labourers,  and  workmen  who  are 
to  'serve  us  at  our  wages'.  In  I4I5  Henry  VIII 
having  appointed  one  Wolf  to  be  gunpowder  maker 
within  the  Tower  of  London  authorized  him  to  dig 
for  saltpetre  wheresoever  found  and  with  such 
labourers  as  should  be  necessary  to  dig  and  labour, 
provided  always  that  he  first  agree  and  then  after 
to  content  and  pay  such  persons  where  he  and  his 
labourers  shall  labour  and  break  any  ground  truly 
and  conveniently  for  the  harm  of  such  persons  or 
their  grounds.*  A  warrant  ^  of  the  3 1st  year  of 
Elizabeth  to  Evelyn  and  others  (doubtless  one  of 
the  two  licences  referred  to  in  the  Case  of  Saltpetre) 

1  With  regard  to  Coke's  accuracy,  Sir  F.  Pollock,  in  a  note  to 
R.  V.  Casement  (1917)  1  K.B.,  p.  141,  points  out  that  his  authority 
as  to  the  law  as  understood  in  his  own  time  must  be  distinguished 
from  his  opinions  in  historical  and  antiquarian  matters. 

2  Patent  Roll,  5  Hen.  VII,  m.  28  d  (8  d)  (Record  Office). 

3  The  extension  of  purveyance  to  the  impressment  of  labour 
is  common  throughout  the  Middle  Ages.  Hallam  (Middle  Ages, 
ed.  1878),  iii.  149,  cites  a  commission  (Rymer,  Foedera, 
vi.  417)  from  Edward  III  to  William  of  Walsingham  empowering 
him  to  collect  as  many  painters  as  might  suffice  for  '  our  works 
in  St.  Stephen's  Chapel  at  Westminster '.  Hallam  adds  that. 
Windsor  owes  its  massive  magnificence  to  labourers  impressed 
from  every  part  of  the  Kingdom.  It  is  to  be  observed  that  the 
commissions  for  the  taking  of  saltpetre  provide  that  all  labourers 
be  paid. 

*  State  Papers  Dom.,  x,  no.  79.  ^  App.  E,  p.  261. 


THE  PREROGATIVE  OF  THE  CROWN         57 

directs  that  letters  patent  be  issued  to  the  grantees 
which,  after  reciting  the  Prerogative  Royal,  direct 
petre  or  powder  makers  to  make  good  all  damage, 
and  that  any  '  variance '  with  owners  of  land  be 
referred  to  two  justices  of  the  peace.  All  persons 
assisting  are  to  be  paid  their  reasonable  charges, 
and  carriages  are  to  be  paid  for  at  the  fixed  rate  of 
fourpence  the  mile.  Similar  but  more  elaborate 
provisions  are  contained  in  a  warrant  of  41  Eliza- 
beth ^  directing  letters  patent  to  be  issued  to  the 
same  grantees  for  a  term  of  eleven  years,  the 
grantees  being  required  at  their  own  proper  costs 
and  charges  to  make  up  and  repair  every  place 
'  broken,  stirred,  digged,  or  in  any  sorte  decayed 
hindered  or  defaced  ',  and  the  letters  patent  conclude 
with  a  comprehensive  clause,  '  Notwithstanding  any 
statute.  Act  of  Parliament,  order,  proclamation, 
ordinance,  law,  usage,  custom,  or  other  matter  what- 
soever to  the  contrary.'  A  warrant  was  also  issued 
containing  the  form  of  Indenture  to  be  made  with 
the  grantees  which  incorporates  similar  provisions.^ 

An  illustration  of  the  manner  of  making  pur- 
veyance of  saltpetre  after  the  resolutions  of  the 
Judges  in  1606  is  to  be  found  in  a  warrant  of 
Charles  I,  1629/  when,  as  the  warrant  recites, 
there  was  '  more  than  ordinary  occasion  to  provide 
good  and  sufficient  saltpetre  and  powder  to  furnish 
stores  for  the  defence  and  safety  of  the  realm '. 
At  this  time  England  was  actually  at  war  with 
Spain  (the  war  with  France  was  concluded  in  April 
by  the  peace  of  Susa).  After  reciting  the  Hoyal 
Prerogative,  power  is  given  to  enter,  break  open, 

1  (1599)  App.  E,  p.  263. 

2  Chancery  Warrants,  series  ii,  file  1636  (Record  Office). 

3  App.  E,  p.  272. 


58  CASE  OF  REQUISITION 

and  work  for  saltpetre  as  well  within  the  houses, 
lands,  grounds,  or  possessions  of  the  King,  his  heirs 
and  successors  as  well  as  within  those  of  his  subjects. 
The  warrant  ^  then  makes  full  provision  for  payment 
of  compensation  by  '  paying  to  owners  or  present 
possessors  of  such  houses,  barns,  stables,  yards,  and 
outhouses,  reasonable  rents  and  rates  for  the  time 
they  shall  be  used  for  our  service  '.  And  if  such 
owners  or  possessors  '  shall  be  obstinate  and  un- 
reasonable in  their  demands  ',  compensation  is  to 
be  assessed  by  the  mayors  in  boroughs  and  two 
justices  in  rural  places. 

Purveyance,  then,  was  a  right  of  pre-emption, 
exercisable  on  definite  conditions.  A  purveyor 
required  the  authority  of  a  warrant  or  commission, 
and  must  pay  a  fair  price  or  compensation  for 
chattels,  and  for  transport,  and  these  conditions 
apply  equally  in  peace  and  in  war. 

Purveyance  was  finally  abolished  in  1660  at  the 
Restoration  by  an  '  act  for  taking  away  the  Court 
of  Wards  and  Liveries  and  tenures  in  capite  and  by 
Knight's  service  and  purveyance,  and  for  settling 
a  revenue  on  his  Majesty  in  lieu  thereof  '.^     The 

1  It  appears  from  the  warrant  of  1599  that  the  grant  con- 
stituted a  monopoly.  Three  years  later  the  illegality  of  monopolies 
was  affirmed  in  the  Case  of  Monopolies  (11  Rep.  846).  The 
warrant  of  1629  (the  Statute  of  Monopolies  (21  Jac.  I,  c.  3)  had 
been  passed  in  1623)  does  not  purport  to  grant  any  exclusive 
right.  An  Act  of  1640  (16  Car.  I,  c.  21),  after  reciting  that 
the  importation  of  gunpowder  has  been  of  late  times  prohibited, 
gives  liberty  to  all  persons  to  import  it  and  also  saltpetre.  In 
1685  the  importation  of  gunpowder  was  prohibited  except  by 
licence  (1  Jac.  II,  c.  8).  There  appear  to  be  no  documents  of 
record  referring  to  saltpetre  after  1665,  or  thereabouts,  as  the 
substance  was  then  obtained  in  increased  quantities  from  India. 

2  12  Car.  II,  c.  24,  s.  11. 


THE  PREROGATIVE  OF  THE  CROWN         59 

Act  marks  the  end  of  the  feudal  system  of  providing 
supply,  founded  mainly  on  tenure  and  other  feudal 
institutions,  for  which  it  substitutes  the  modern 
constitutional  practice  of  regular  taxatioij  granted 
by  Parliament. 

At  this  point  the  statutory  history  of  Purveyance 
as  such  comes  to  an  end.  The  subsequent  history 
of  the  right  to  impress  chattels  and  transport  is 
dealt  with  hereafter.^ 

The  Case  of  Ship-money. 

B.  V.  Hampden,^  the  celebrated  case  of  ship- 
money,  occupies  a  wider  field  and  indeed  forms  an 
almost  inexhaustible  storehouse  for  the  study  of 
questions  connected  with  the  prerogative  of  the 
Crown  in  time  of  war.  It  will  be  desirable  to  give 
a  short  account  of  the  case  in  order  to  recall  as 
succinctly  as  possible  the  circumstances  in  which  it 
came  to  be  argued,  and  to  make  clear  the  precise 
relevance  of  the  citations  from  the  judgments  and 
arguments  upon  which  reliance  was  placed  in  the  Case. 

That  ships  were  in  fact  requisitioned  by  the 
Crown  for  the  public  service  throughout  the  Middle 
Ages  admits  of  no  doubt,^  and  instances  of  the 
requisitioning  of  ships  had  occurred  as  recently  as 
1626  during  the  war  with  Spain.*  Professor  Holds- 
worth  ^    cites     instances    in    which    in   the    Tudor 

1  p.  139,  post. 

2  (1637)  3  How.  St.  Tr.  826.  The  report  incorporates  a 
number  of  documents  printed  in  Rushworth's  Historical  Collec- 
tionSy  which  are  the  most  authentic  source  of  information. 

3  See  p.  148,  post.  *  Gardner,  vi.  132. 

^  See  the  learned  article  on  '  The  power  of  the  Crown  to 
requisition  British  ships  in  a  national  emergency  ',  L.  Q.  R., 
XXXV.  12. 


60  CASE  OF  REQUISITION 

period  the  seaport  towns  and  maritime  districts 
had  found  the  expense  of  furnishing  their  contingent 
of  ships  burdensome  and  had  attempted  to  obtain 
contributions  from  the  neighbouring  districts.  In 
1619  the  ports  were  assessed  not  in  terms  of  ships, 
but  in  money.  The  decision  to  adopt  the  expedient 
of  levying  money  instead  of  contributing  ships  was 
made  in  1634  on  the  suggestion  of  Noy,  the  Attorney- 
General,  a  plan  which  if  successful  had  the  obvious 
advantage  from  the  point  of  view  of  Charles  I  of 
relieving  him  of  the  necessity  of  summoning  Parlia- 
ment.^ The  first  writs,  issued  in  1634,  were  confined 
to  the  maritime  counties  and  were  followed  in  1635 
by  a  second  series  of  writs  which  laid  the  whole 
country  under  contribution.  In  the  face  of  the 
opposition  which  was  aroused,^  it  was  decided  to 
obtain  an  opinion  of  the  Judges  before  the  legality 
of  the  writs  could  be  tested  in  the  Courts  at  the 
instance  of  a  subject.^  Accordingly  Coventry,  the 
Lord  Keeper,  delivered  to  the  Judges  a  letter 
enclosing  a  Case  which  propounded  the  questions 
'  when  the  good  and  safety  of  the  kingdom  in 
general  is  concerned,  and  the  whole  kingdom  is  in 
danger;  Whether  may  not  the  King  by  writ  under 
the  Great  Seal  of  England,  command  all  the  subjects 

1  Gardner,  vii.  356. 

2  Particularly  in  the  City  of  London  and  in  Oxfordshire. 
Gardner,  vii.  102. 

3  In  1636  one  Richard  Chambers,  merchant,  commenced 
an  action  for  trespass  and  false  imprisonment  against  Sir  Edward 
Bromfield,  who  had  imprisoned  him  for  refusing  to  pay  ship- 
money  during  Bromfield's  mayoralty  of  the  City  of  London  ; 
Knight,  J.,  refused  to  allow  the  case  to  be  proceeded  with  on 
the  ground  that  '  many  things  which  might  not  be  done  by  the 
rule  of  law  might  be  done  by  the  rule  of  government ',  Rushworth, 
pt.  ii,  vol.  i,  p.  323. 


THE  PREROGATIVE  OF  THE  CROWN         61 

of  this  Idngdom,  at  their  charge,  to  furnish  and 
provide  such  number  of  ships,  with  men,  victuals, 
and  munition  and  for  such  time  as  he  shall  think 
fit,  for  the  defence  and  safeguard  of  the  kingdom 
from  such  danger  and  peril ;  and  by  law  compel 
the  doing  thereof,  in  case  of  refusal  or  refractoriness  ? 
And  whether,  in  such  a  case,  is  not  the  king  sole 
judge,  both  of  the  danger,  and  when  and  how  the 
same  is  to  be  prevented  and  avoided  ? '  ^  These 
questions  the  judges  unanimously  answered  in  the 
affirmative.  '  If  these  men  ',  says  Clarendon,  '  had 
preserved  the  simplicity  of  their  ancestors  in  severely 
and  strictly  defending  the  laws,  other  men  had 
observed  the  modesty  of  theirs,  in  humbly  and 
dutifully  obeying  them.' 

The  form  of  the  questions  is  not  without  impor- 
tance. The  principal  question  assumes  the  danger 
of  which,  by  the  second  question,  the  Judges  are 
invited  to  declare  the  King  to  be  the  sole  Judge. 

Thereupon,  on  October  9,  1637,  the  third  writ 
was  issued.  It  was  no  longer  possible  to  regard 
ship-money  as  a  temporary  burden  to  meet  a  specific 
emergency  :  it  was  evidently  intended  to  remain 
as  a  permanent  tax  upon  the  nation. ^  An  assess- 
ment of  forty  shillings  having  been  made  upon 
John  Hampden  which  he,  in  common  with  others 
in   the    county  of  Buckingham,    declined   to  pay,^ 

1  3  St.  Tr.  844.  Coventry's  speech  to  the  Judges  is  at  p.  839. 
'  The  Lord  Keeper  Coventry  approved  and  assisted  the  project 
as  far  as  his  learning  in  these  matters  did  extend,  and  that  was 
not  far,'  Oldmixon. 

2  '  For  a  spring  and  magazine  that  should  have  no  bottom 
and  for  an  everlasting  supply  of  all  occasions,'  Clarendon. 

3  A  facsimile  of  the  return  made  by  the  Assessors  in  the 
parish  of  Great  Kimble  is  printed  in  Nugent's  Memorials  of 
Hampden.    The  assessors  and  constables  who  signed  the  return 


62  CASE  OF  REQUISITION 

proceedings  were  taken  against  him  in  the  Ex- 
chequer whereto  he  demurred  as  being  insufficient 
in  law.  The  same  judges  by  a  majority  of  one 
decided  in  favour  of  the  legaHty  of  the  writ,  and 
ship-money  continued  to  be  levied  (although  in 
decreasing  amounts)  until  1640  when  by  '  An  Act  ^ 
for  declaring  unlawful  and  void  the  late  proceedings 
against  ship-money  and  for  the  vacating  of  all 
records  and  process  concerning  the  same  '  it  was 
declared  and  enacted  '  that  the  said  charge  imposed 
upon  the  Subject,  for  the  providing  and  furnishing 
of  Ships,  commonly  called  Ship-Money,  and  the 
said  extra  judicial  Opinion  of  the  said  Judges  and 
Barons,  and  the  said  Writs,  and  every  of  them,  and 
the  said  Agreement  or  Opinion  of  the  greater  part 
of  the  said  Justices  and  Barons,  and  the  said  Judg- 
ment given  against  the  said  John  Hampden,  were 
and  are  contrary  to  and  against  the  laws  and 
Statutes  of  this  Realm,  the  Bight  of  Property,  the 
Liberty  of  the  Subjects,  former  Resolutions  in 
Parliament,  and  the  Petition  of  Right  made  in  the 
third  Yeare  of  the  Reign  of  his  Majesty  that  now  is.' 
In  these  circumstances,  for  what  proposition  is 
the  Case  of  Ship-money  an  authority  ?  The  Act 
of  1640  recites  the  main  grounds  upon  which  the 

had  the  good  taste  to  include  their  own  names  in  the  list  of  those 
returned  as  refusing  to  pay.  The  amount  of  Hampden's  assess- 
ment was  3l5.  Qd.  The  assessment  of  205.  upon  which  the 
proceedings  were  founded  was  in  respect  of  lands  in  the  neigh- 
bouring parish  of  Stoke  Mandeville.  The  sum  immediately 
in  question  was  therefore  assessed  only  on  a  portion  of  Hampden's 
lands  (Hallam,  ii.  17).  For  the  amounts  fixed  during  the  reign 
of  Charles  I,  the  application  of  the  moneys,  and  the  method  of 
assessment  and  collection,  see  Royal  Hist.  Soc.  Transactions, 
3rd  series,  iv.  141  ;  Hallam,  ii.  17. 
1  16  Car.  I,  c.  14. 


THE  PREROGATIVE  OF  THE  CROWN         63 

majority  of  the  Judges  gave  their  decision.  They 
are  thus  formulated :  '  that  when  the  good  and 
safety  of  the  Kingdom  in  general  is  concerned  and 
the  whole  Kingdom  in  danger,  the  King  might  by 
Writ  under  the  Great  Seal  of  England  command  all 
the  subjects  of  this  his  Kingdom,  at  their  Charge, 
to  provide  and  furnish  such  Number  of  Ships  with 
Men,  Victuals,  and  Munition,  and  for  such  time  as 
the  King  should  think  fit,  for  the  Defence  and 
Safeguard  of  the  Kingdom  from  such  Danger  and 
Peril,  and  that  by  Law  the  King  might  compel  the 
doing  thereof  in  case  of  Refusal  or  Refractoriness  ; 
and  that  the  King  is  the  sole  Judge,  both  of  the 
Danger  and  when  and  how  the  same  is  to  be  pre- 
vented and  avoided.' 

The  case  therefore  turned  not  on  the  legality  of 
the  prerogative  to  requisition  ships  but  on  the 
legality  of  the  right  to  levy  ship-money. 

The  argument  on  behalf  of  Hampden  was  en- 
trusted to  Oliver  St.  John  ^  and  Robert  Holborne. 
St.  John's  argument,  apart  from  its  great  learning, 
is  remarkable  for  the  skill  with  which  he  made 
admissions  which  did  not  impair  the  force  of  his 
case,  in  order  to  smooth  the  way  for  Judges  who 
had  already  in  their  extra-judicial  opinion  expressed 
themselves  adversely  to  his  principal  contention. 
Thus  he  made  no  distinction  between  the  levy  of 
ship-money  in  the  inland  as  compared  with  the 
maritime  counties.  In  dealing  with  the  question 
whether  the  King  was  the  sole  judge  of  necessity 

1  Lord  Campbell,  whose  appreciation  of  St.  John  is  far  from 
sympathetic,  characterizes  it  as  the  finest  that  had  ever  been 
delivered  in  Westminster  Hall  (Lives  of  the  Chief  Justices,  i.  453). 
'  He  had  not  been  taken  notice  of  in  Westminster  Hall  till  he 
argued  the  case  of  shipmoney  '  (Clarendon). 


64  CASE  OF  REQUISITION 

he  made  the  admission  upon  which  reUance  was 
placed  by  the  Crown  in  the  Case. 

'  The  law,'  he  admits/  '  hath  made  his  Majesty 
sole  judge  of  dangers  from  foreigners,  and  when 
and  how  the  same  are  to  be  prevented  ;  and  to 
come  nearer,  fiath  given  him  power  by  Writ  under 
the  great  seal  of  England  to  command  the  inhabi- 
tants of  each  county  to  provide  shipping  for  the 
Defence  of  the  kingdom,  and  may  by  law  compel 
the  doing  thereof.' 

How  does  this  admission  bear  upon  the  argument 
in  the  Case  ?  It  is  an  admission  by  counsel  made, 
perhaps  unnecessarily,  in  order  not  to  put  his  case 
higher  than  was  requisite  in  order  to  establish  his 
proposition.  '  Admissions  made  in  such  a  case  do 
not  constitute  precedents,  and  the  arguments  appli- 
cable to  the  Royal  Prerogative  before  the  revolu- 
tionary period  must  be  read  subject  to  the  restrictions 
which  have  been  subsequently  imposed.'  ^  St.  John 
proceeds  to  show  that  the  necessity  being  once 
admitted,  it  must  be  met  by  constitutional  means, 
when  such  means  are  available,  that  is  to  say  by 
recourse  to  Parliament.  In  other  words  even 
admitting  that  the  ordinary  means  had  been  all 
used,  but  proved  insufficient,  the  Crown  cannot, 
without  the  consent  of  Parliament,  '  alter  the 
property  of  the  subject's  goods  '.^  The  Crown 
can  obtain  supplies  from  Parliament,  for  '  the  law 
hath  foreseen  and  provides  the  supplies  accordingly 
without  the  way  of  the  writ  '.*  The  danger,  it  is 
true,  may  be  such  as  to  justify  the  taking  of  the 
subject's  goods  without  his  consent,  but  that  can 
only  be  tempore  belli — and  tempus  belli  when  property 

1  3  St.  Tr.  862.  2  per  Lord  Parmoor,  App.  A,  p.  210. 

3  3  St.  Tr.  881.  «  Ibid.,  877. 


THE  PREROGATIVE  OF  THE  CROWN    65 

ceaseth  '  is  not  upon  every  intestine  or  defensive  war, 
but  only  at  such  times  whe^i  the  course  of  justice  is 
stopped,  and  the  Courts  of  Justice  shut  up '  ^  and  for 
this  Hmited  or  technical  meaning  of  the  expression 
'  in  time  of  war  '  he  cites  authorities.^ 

Holborne  in  his  argument  goes  farther.  Having 
first  denied  the  danger,  which  the  writ  did  not  refer 
to  as  imminent,  he  proceeds  to  consider  what 
constitutes  actual  danger.  '  If  there  be  an  actual 
war,  the  subject  may,  without  any  direction  do 
any  act  upon  any  man's  land  and  invade  any 
property  towards  defence  :  it  is  the  law  of  necessity 
that  doth  it.'  ^  But  the  King  cannot  charge  the 
subject  out  of  Parliament  and,  so  long  as  the  resort 
to  Parliament  is  open,  the  King  cannot  act  under 
extraordinary  powers.* 

Of  the  judgments,  it  is  only  necessary  to  refer 
to  those  of  Sir  George  Crooke  and  of  Sir  Richard 
Hutton,  both  of  whom  had  been  parties  to  the 
original  resolution  in  favour  of  the  legality  of  ship- 
money  and  who  now,  together  with  Sir  John  Den- 
ham,  Sir  Humphrey  Davenport,  and  Sir  John 
Bramston,  formed  the  minority.^  Crooke  admits 
that  there  may  exist  cases  '  in  which  course  may  be 
taken  for  defence  till  a  Parliament  be  had '  ^  and 
holds  that  '  royal  power  is  to  be  used  in  cases  of 
necessity  and  imminent  danger  when  ordinary  courses 
will  not  avail,  for  it  is  a  rule  Non  occurrendum  est 
ad  extraordinaria  quando  fieri  potest  per  ordinariaJ 

1  3  St.  Tr.  903.  2  ibid.  904.  ^  ibid.  975. 

*  Ibid.  971. 

^  For  the  subsequent  proceedings  in  Parliament  and  the 
impeachment  of  the  judges  who  formed  the  majority,  see 
3  St.  Tr.  1254. 

«  Ibid.  1135.  '  Ibid.  1162. 

2388  V 


66  CASE  OF  REQUISITION 

He  then  proceeds  to  show  that  the  writ  imposed 
taxation,  and  that  no  such  emergency  had  arisen 
as  would  justify  the  course  adopted.  '  If  there  be 
time  to  make  ships,  or  prepare  ships  at  the  charge 
of  the  counties,  then  is  there  time  enough  for  his 
Majesty,  if  he  pleases  to  call  his  parliament,  to 
charge  his  commons,  by  consent  in  Parliament,  and 
to  have  a  subsidiary  aid,  as  always  hath  been  done 
in  such  cases.  And  they  are  not  so  long  coming  or 
meeting,  but  they  will  make  provision  for  defence, 
it  being  for  all  their  safeties.'  ^ 

Sir  Richard  Hutton  bases  his  judgment  on  the 
absence  of  any  necessity  which  would  justify  the 
imposition  of  a  tax.  The  former  opinion  of  the 
Judges  was  based  on  the  assumption  that  there 
was  imminent  danger.  '  I  do  agree  in  time  of 
war  ^  when  there  is  an  enemy  in  the  field,  the 
King  may  take  goods  from  the  subject;  such  a 
danger,  and  such  a  necessity,  ought  to  be  in  this 
case,  as  in  case  of  a  fire  like  to  consume  all  without 
help,  such  a  danger  as  tends  to  the  overthrow  of 
the  Kingdom.'  ^  But  there  being  here  no  such 
imminent  necessity  (and  it  was  not  even  recited  in 
the  writ,  the  words  quod  salus  regni  pericUtahatur 
having  been  subsequently  inserted  in  the  mittimus)  * 
the  law  cannot  compel  subjects  to  part  with  their 
interest  in  their  goods. 

Another  passage  from  Button's  judgment  was 
cited  by  Avory,  J.,  in  In  re  a  Petition  of  Eight. ^ 

1  3  How.  St.  Tr.  1159. 

2  Doubtless  the  phrase  is  used  in  the  technical  sense  in  which 
St.  John  employed  it. 

3  3  St.  Tr.  1198.  *  Ibid.  1199. 

5  (1915)  3  K.B.  at  p.  652.  See  further  as  to  this  case  p.  69, 
post. 


THE  PRER0GATIVJ3  OF  THE  CROWN         67 

'  There  are  some  inseparable  prerogatives  belonging 
to  the  Crown  such  as  the  Parliament  cannot  sever 
from  it.  .  .  .  Such  is  the  case  for  the  defence  of  the 
Kingdom,  which  belongeth  inseparably  to  the  Crown 
as  head  and  supreme  protector  of  the  Kingdom.'  ^ 
This  passage  is  but  a  faint  echo  of  the  pretensions  to 
absolute  power  advanced  by  the  supporters  of  the 
Royal  Prerogative  in  Stuart  times,  of  which  numerous 
examples  might  be  cited  from  the  judgments  of 
the  majority  of  the  Court  in  the  ship-money  case. 
Berkley  for  example,  says  ^ :  '  The  law  knows  no 
such  King-yoking  policy.  The  law  is  of  itself  an 
old  and  trusty  servant  of  the  King's,  it  is  his  instru- 
ment or  means  which  he  useth  to  govern  his  people 
by.  I  never  heard  nor  read  that  Lex  was  Rex,  but 
it  is  common  and  most  true  that  Rex  is  Lex,  for  he 
is  "  Lex  loquens  "  a  living,  a  speaking,  an  acting 
law.'  Finch  says  ^ :  '  Acts  of  Parliament  to  take 
away  (the  King's)  royal  power  in  the  defence  of  his 
Kingdom  are  void  .  .  .  for  no  Acts  of  Parliament 
make  any  difference.' 

Language  such  as  this  affords  interesting  illus- 
trations of  the  attitude  of  mind  which  prevailed 
among  sixteenth-century  lawyers  with  regard  to  the 
Royal  Prerogative.  It  cannot  be  suggested  as 
applicable  to  any  legitimate  exercise  of  prerogative 
powers  at  the  present  day.* 

1  3  How.  St.  Tr.  1194. 

2  Ibid.  1098. 

3  Ibid.  1235. 

*  See   the  passage  from  the  judgment   of   Lord    Parmoor, 
cited  p.  64,  ante. 


72 


68  CASE  OF  REQUISITION 

in 

How  do  the  principles  to  be  deduced  from  the 
Case  of  Saltpetre  and  the  Case  of  Ship-money 
assist  the  determination  of  the  questions  arising  in 
the  Case  of  Requisitions  ^  ?  It  is  scarcely  per- 
missible to  suggest  any  close  analogy  upon  the 
facts.    The  Case  of  Saltpetre  deals  with  purveyance 

1  A  few  cases  were  cited  in  argument  which  contain  general 
expressions — in  each  case  entirely  obiter — upon  which  reliance 
was  placed  on  behalf  of  the  Crown.  In  Maleverer  v.  Spinke 
(1537)  1  Dyer  36  ;  73  E.R.  81  (an  action  for  waste,  decided  on 
demurrer  on  a  point  of  pleading)  it  is  said  '  In  time  of  war  a  man 
may  justify  making  fortifications  on  another  man's  land  without 
licence  '.  In  Hole  v.  Barlow  (1858)  4  C.B.  (N.S.),  p.  345  ;  140 
E.R.,  p.  1118,  Willes,  J.,  says  '  Every  man  has  a  right  to  the 
enjoyment  of  his  land,  but  in  the  event  of  a  foreign  invasion,  the 
Queen  may  take  the  land  for  the  purpose  of  setting  up  defences 
thereon  for  the  general  good  of  the  nation.'  The  action  was 
for  a  nuisance  from  burning  bricks.  The  point  decided  viz. 
the  proper  direction  to  a  jury,  was  overruled  in  Bamford  v. 
Turley  (1862)  3  B.  &  C.  73  ;  122  E.R.  29  ;  and  in  Shott's  Iron  Co. 
V.  Inglis  (1882)  7  A.C.  518.  In  British  Cast  Plate  Manufacturers 
V.  Meredith  (1792)  4  T.R.  794  ;  100  E.R.  1306,  BuUer,  J.,  says 
*  there  are  many  cases  in  which  individuals  sustain  an  injury, 
for  which  the  law  gives  no  action  ;  for  instance  pulhng  down 
houses,  or  raising  bulwarks,  for  the  preservation  and  defence 
of  the  Kingdom  against  the  King's  enemies.  The  Gvil  Law 
writers  indeed  say,  that  the  individuals  who  suffer  have  a  right 
to  resort  to  the  public  for  a  satisfaction  ;  but  no  one  ever 
thought  that  the  Common  Law  gave  an  action  against  the 
individual  who  puUed  down  the  house.'  See  also  Bac.  Abr.  Tit. 
Prerog.  (7th  ed.),  vi.  434.  *  The  King  in  consequence  of  his 
power  in  making  war  and  peace  hath  a  prerogative  in  the  coin 
and  Royal  mines,  in  saltpetre  and  gunpowder ;  may  enter  into 
a  man's  land  to  make  fortifications  (1  Roll.  R.  152) . . .  and  though 
in  many  instances  relating  to  these  matters  the  strict  letter  of 
the  law  may  be  exceeded,  yet  from  the  necessity  of  order, 
government  and  discipline  are  they  countenanced  and  allowed  : 
quod  necessitas  cogit  defendit.' 


THE  PREROGATIVE  OF  THE  CROWN         69 

of  chattels,  to  which  the  right  to  enter  land — 
subject  to  considerable  restrictions — is  merely  inci- 
dental. The  Case  of  Ship-money  negatives  the  right 
of  the  Crown  to  impose  a  money  charge  without 
the  consent  of  Parliament.  The  judicial  opinions 
upon  which  reliance  was  placed  in  the  arguments  of 
the  Crown  in  the  Case  assert  a  right  inherent,  not 
in  the  Crown  in  virtue  of  any  prerogative,  but  in 
every  subject  in  the  common  interest,  to  enter  upon 
lands  for  the  purpose  of  defence  in  the  event  of 
invasion,  and  embody  a  proposition  fully  covered 
by  ancient  authority.^  They  assume  an  emergency 
which  would  render  the  ordinary  procedure  for 
obtaining  parliamentary  sanction  entirely  nugatory 
and  inadequate.  No  such  emergency  was  suggested 
to  have  arisen  in  the  circumstances  of  the  Case  :  if 
it  had  existed,  sufficient  provision  had  been  made 
under  Parliamentary  authority  to  meet  it.^ 

The  Case  of  Saltpetre  and  the  Case  of  Ship-money 
were  recently  discussed  In  re  a  Petition  of  Right,^ 
the  decision  of  which  in  favour  of  the  Crown  by 
Mr.  Justice  Avory  and  by  the  Court  of  Appeal  was 
mainly  based  upon  the  passages  in  the  old  cases 
which  have  been  referred  to  and  discussed  in  this 
chapter.  The  researches  at  the  Public  Record 
Office  had  not  been  made  when  this  case  was  argued. 
The  Master  of  the  Rolls  distinguished  the  present 
Case  for  the  reason  that  in  In  re  a  Petition  of  Right  ^ 
the  ground  was  actually  required  for  the  purposes 
of  hostilities  in  the  air  and  was  analogous  to  the 
erection  of  bulwarks  against  invasion.  It  therefore 
had  no  application  to  the  taking  of  possession  of 
lands  and  buildings  for  administrative    purposes.^ 

1  See  p.  49,  ante,  note  1.  ^  Ante,  p.  39. 

3  (1915)  3  K.B.  649.  *  (1919)  2  Ch.  p.  229. 


70  CASE  OF  REQUISITION 

In  re  a  Petition  of  Right  was  taken  on  appeal  to  the 
House  of  Lords  when  the  appeal  was  withdrawn  on 
the  terms  of  the  Crown  agreeing  to  pay  compensa- 
tion.^ The  decision  of  the  Court  of  Appeal  in  that 
case,  although  not  expressly  overruled  in  any  judg- 
ment delivered  in  the  Case,  cannot  now  be  considered 
as  binding.  Lord  Sumner,^  while  regarding  it  as 
an  exemplification  of  the  ancient  rule  traced  back 
in  the  Year  Books  ^  that  both  King  and  subject 
may  enter  land  for  the  purpose  of  raising  bulwarks, 
points  out  that  the  case  was  decided,  rightly  or 
wrongly,  upon  this  analogy.  Lord  Dunedin  ^  goes 
farther.  He  was  satisfied  upon  the  evidence  that 
the  custom  of  payment  in  former  times  was  estab- 
lished, and  expressed  the  opinion  that  In  re  a  Petition 
of  Right  and  the  Case  cannot  be  distinguished  in 
essential  particulars. 

One  other  recent  decision  which  was  discussed 
requires  mention.  The  opinion  of  Lord  Parker  in 
The  Zamora  ^  contains  a  statement  that  '  the 
municipal  law  of  this  country  does  not  give  com- 
pensation to  a  subject  whose  land  or  goods  are 
requisitioned  by  the  Crown  '.^  If  this  statement  is 
to  be  taken  as  a  considered  opinion,  founded  on  the 
examination   of  the   authorities   (the   documentary 

1  See  p.  5,  ante,  note  2.  2  ^pp  ^^  p  205. 

3  See  p.  49,  ante,  note  1.  *  App.  A,  p.  171. 

5  (1916)  2  A.C.  77.       ' 

^  Observations  made  by  judges  in  the  course  of  an  argument 
ought  not,  of  course,  to  be  cited  as  representing  a  considered 
opinion.  It  may,  however,  be  permissible  to  state  that  during 
the  argument  in.  In  re  a  Petition  of  Right  in  the  House  of  Lords, 
Lord  Parker  appears  to  have  used  expressions  which  seem  to 
indicate  that  he  did  not  regard  it  as  by  any  means  clear  that 
where  a  requisition  was  lawfully  made  the  subject  had  no  legal 
right  to  compensation. 


THE  PREROGATIVE  OF  THE  CROWN    71 

evidence  produced  in  the  Case  had  not  at  that  time 
been  examined)  and  intended  to  formulate  any 
proposition  upon  the  right  of  the  subject  to  com- 
pensation according  to  the  law  of  England,  it  must 
of  course  be  regarded  as  directly  in  point.  But 
the  passage  occurs  in  an  opinion  of  the  Privy  Council 
on  an  appeal  from  the  Prize  Court,  the  question 
being  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  declares  that 
a  requisition  was  necessary  for  the  defence  of  the 
Realm.  The  rule  of  the  law  of  nations  that  a  requi- 
sition is  lawful,  subject  to  payment  of  the  appraised 
value  of  ship  or  cargo,  was  affirmed,  in  favour  of  a 
neutral,  on  the  ground  that  such  a  requisition  imposed 
no  greater  burden  on  neutral  than  on  British  subjects. 
The  passage  referred  to  therefore  merely  embodies 
an  assumption  upon  which,  if  it  be  justified,  the 
requisition  of  neutral  property  subject  to  payment 
of  compensation  constitutes  an  interference  the 
burden  of  which  is  not  greater,  and  may  conceivably 
be  less,  than  must  be  borne  by  a  British  subject  in 
the  event  of  his  property  being  required  for  purposes 
of  defence.^  The  Royal  Prerogative  which  was  in 
issue  was  the  right  according  to  the  law  of  nations 
to  requisition  vessels  or  goods  in  the  custody  of  the 
Prize  Court  of  a  belligerent  power.  The  reference 
to  the  prerogative  in  the  domain  of  English  municipal 
law  was  therefore  merely  incidental  and  was  not 
in  issue  in  the  proceedings.^ 

1  Per  Lord  Sumner,  App.  A,  p.  205. 

2  Per  Lord  Parmoor,  App.  A,  p.  212.      The  right  in  question 
in  The  Zamora  is,  of  course,  closely  analogous  to  the  right  of 


72  CASE  OF  REQUISITION 

Upon  the  authorities  it  is  accordingly  submitted 
that  the  Crown  has  no  right  by  virtue  of  any  pre- 
rogative to  enter  the  land  of  the  subject  without 
consent  and  that  where  an  entry  in  the  case  of  an 
instant  danger  is  lawful,  it  is  justified,  not  under 
any  such  prerogative  but  in  accordance  with  the 
right  common  both  to  the  Crown  and  to  its  subjects, 
to  take  what  steps  are  necessary  at  the  moment  to 
meet  the  emergency.  The  element  of  time  is, 
therefore,  all-important,  and  it  is  only  in  circum- 
stances in  which  recourse  to  Parliament  in  order  to 
obtain  powers  over  and  above  those  which  are 
recognized  by  law  as  being  vested  in  the  Crown  will 
involve  such  delay  as  would  imperil  the  national 
defence  that  it  can  be  said  that  '  the  King  is  the 
sole  judge  of  the  danger '.  For  the  judgment  of 
the  King,  modern  constitutional  practice  has  sub- 
stituted the  discretionary  power  of  the  Executive. 
The  extent  to  which  that  discretion  is  subject  to 
the  control  of  the  Courts  will  be  dealt  with  here- 
after.i 

IV.    The  Historical  Evidence, 

The  time  covered  by  the  documents  relating  to 
land  which  were  considered  in  the  Case  falls  naturally 
into  three  periods.  Firstly,  before  the  statute  of 
Anne  of  1708,  secondly  from  1708  to  the  first  general 

angary  which  is  recognized  by  the  law  of  nations.  The  authorities 
upon  this  right  are  collected  in  the  report  of  the  argument  in 
The  Zamora  in  the  Prize  Court  (1916),  P.  30.  For  a  recent 
instance  in  which  the  right  was  recognized  in  the  English  Courts, 
see  Commercial  and  Estates  Company  of  Egypt  v.  Ball  (1920) 
36  T.L.R.  526. 
1  pp.  82,  94,  post. 


THE  PREROGATIVE  OF  THE  CROWN         73 

Defence  Act  of  1798,  and  thirdly  the  period  subse- 
quent to  1798. 

In  the  first  period  the  following  are  typical  in- 
stances. The  warrant  of  Charles  I  in  1629  ^  authoriz- 
ing the  entry  upon  land  for  the  purpose  of  obtaining 
saltpetre,  subject  to  the  payment  of  rent,  has  already 
been  referred  to.^  Instances  in  which  powder  mills 
were  ordered  to  be  impressed  occur  in  1664.^ 

An  Ordnance  Minute  of  1664  *  suggests  that 
a  jury  be  summoned  if  the  proprietors  of  ground 
at  Portsmouth  persist  in  their  unreasonable  demands. 
At  this  time  war  with  Holland  was  imminent,  acts 
of  war  having  occurred  throughout  the  year,  fol- 
lowed on  March  4,  1665,  by  the  formal  outbreak  of 
the  first  Dutch  war.  During  the  interval  of  peace 
between  the  first  and  second  Dutch  wars  payments 
are  recorded  (in  1668)  for  the  rent  of  ground  for  a 
battery,^  and  for  damage  done  by  proving  a  mortar 
piece.  ^  In  the  same  year  instructions  were  given  to 
contract  for  and  buy  ground  for  batteries  at  Chatham 
'  for  the  cheapest  rates  you  or  they  can  agree  '.'     In 

1  App.  E,  p.  272.  2  p,  57^  ^/iig^ 

^  App.  F,  pp.  277,  278.  The  popular  association  of  the  word 
'  impressment '  with  the  notion  of  not  pa3dng  is  fallacious.  The 
word  '  imprest '  is  derived  from  impraestare  (Ft.  prefer)  and  is 
applied  to  money  advanced  for  a  particular  purpose.  So  '  Im- 
prest money  '  was  the  sum  advanced  to  soldiers  upon  enlistment. 
The  expression  '  to  imprest  unto  '  in  the  document  printed  in 
App.  F,  p.  281,  is  therefore  the  equivalent  of  '  authorized  by 
warrant '.  So  an  Act  13  Eliz.,  c.  4,  refers  to  '  Receivers  of  any 
sum  of  money  imprest,  or  otherwise  for  the  use  of  the  Queen's 
Majesty  '.  In  the  National  Debt  Act,  1870  (33  &  34  Vict.,  c.  71, 
s.  44)  'money  issued  for  the  payment  of  dividends  is  to  be  paid 
to  the  chief  cashier  of  the  bank  by  way  of  imprest. 

*  App.  F,  p.  279.  5  Ibid.,  p.  285. 

6  Ibid.,  p.  285.  7  Ibid.,  p.  282. 


74  CASE  OF  REQUISITION 

1674,  shortly  after  the  end  of  the  second  Dutch 
war,  the  storekeeper  at  Portsmouth  is  directed  to 
ascertain  what  storerooms  may  be  hired  :  ^  similar 
directions  are  given  with  regard  to  Hull  in  1682.^ 
In  1681  directions  are  given  to  ascertain  what 
statutes  there  are  for  making  fortifications.^  In 
1705,  the  year  of  the  siege  of  Namur,  immortalized 
in  English  literature  by  Sterne,  compensation  was 
given  for  the  destruction  of  houses  on  Tower 
Wharf.  ^ 

The  second  period  is  marked  by  the  long  succession 
of  local  but  permanent  acts  following  that  of  1708, 
the  method  of  carrying  out  of  which  has  already 
been  referred  to.^  A  minute  of  February  1718 
(war  with  France  broke  out  later  in  the  same  year) 
records  that  an  owner  who  is  willing  to  sell  has 
a  tenant  whQ  is  making  exorbitant  demands,  and 
instructs  the  storekeeper  at  Plymouth  to  endeavour 
to  come  to  an  agreement.^  A  number  of  receipts 
for  rent '  are  extant  in  respect  of  land  on  Hilsea 
Common  (which  was  included  in  the  Act  of  1757  ^ 
relating  to  Portsmouth),  the  amount  paid  in  some 
cases  including  compensation  for  damage.  In  other 
cases  attention  is  called  to  the  necessity  of  obtaining 
an  Act  of  Parliament :  as  in  1719  during  the  war 
with  Spain.  ^  The  difficulty  in  this  instance  appears 
to  have  been  due  to  the  fact  that  necessary  parties 
were  under  disability.  This  is  just  such  a  case  as 
would  call  for  the  exercise  of  powers  under  the 
prerogative  if  it  existed.    In  point  of  fact  in  a  similar 

1  App.  F,  p.  285.  2  Ibid.,  p.  285. 

3  Ibid.,  p.  284.  *  Ibid.,  p.  287. 

5  Ante  p.  20.  «  App.  F.,  p.  288. 

7  Ibid.,  p.  288.  8  31  Geo.  II,  c.  39,  ante,  p.  17. 
»  App.  F,  p.  288. 


THE  PREROGATIVE  OF  THE  CROWN  75 

case  in  1804  ^  possession  was  directed  to  be 
taken  under  the  Defence  Act,  another  instance  of 
resort  to  legislation  to  solve  a  difficulty  which,  if 
Common  Law  powers  had  sufficed,  need  not  have 
arisen.  A  case  in  which  rent  was  paid  for  tem- 
porary barracks  occurs  in  1775  during  the  American 
War.2 

The  principal  feature  of  the  documents  during 
the  third  period  is  the  constant  reference  to  the 
Defence  Acts  as  affording  the  means  for  obtaining 
possession.  One  instance  in  1804  has  just  been 
referred  to.^ 

A  further  illustration  is  afforded  by  protracted 
negotiations  which  took  place  in  1805  in  connexion 
with  the  Cheshunt  Water  which  the  Board  of 
Ordnance  had  actually  purchased,  the  object  being 
to  lead  it  to  the  Koyal  powder  mills  at  Waltham 
Abbey.  The  story  begins  with  a  letter  dated 
August  4,  1805,*  from  the  Comptroller  of  the 
Mills  to  the  Board  of  Ordnance  calling  attention  to 
'  the  great  demand  which  will  soon  be  made  for 
gunpowder  to  replace  what  has  been  expended  in 
the  late  actions '.  The  reference  is  obviously  to 
the  naval  operations  which  were  then  in  progress.^ 
These  demands  make  the  Comptroller  '  very  anxious 
for  the  Ordnance  to  avail  themselves  of  the  Cheshunt 
Water  they  have  purchased  '.  On  August  17,^  the 
Comptroller  is  suggesting  an  application  to  the 
Government  to  impower  the  Ordnance  to  take 
possession  of  the  Water  '  for  as  long  a  time  as  the 

1  Ibid.,  p.  290.  2  Ibid.,  p.  289. 

3  Ibid.,  p.  290.  *  Ibid.,  p.  290. 

^  Sir  Robert  Calder's  indecisive  encounter  with  Villeneuve 
had  taken  place  on  July  22. 
6  App.  F,  p.  291. 


76  CASE  OF  REQUISITION 

Service  may  require  it ' — a  phrase  which  is  borrowed 
from  the  Defence  Act  of  1804 — allowing  a  reasonable 
compensation  to  the  proprietors  of  the  corn  mills 
at  Cheshunt  and  at  Waltham  Abbey.  It  is  then 
suggested  that  '  the  exigency  of  the  public  service 
renders  it  indispensable'  to  authorize  the  mills  at 
Cheshunt  to  be  taken  possession  of  under  the 
Defence  Act,  which  will  be  attended  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  mills.  The  Board 
of  Ordnance  approves  the  suggestion.^  Protracted 
negotiations  followed  with  the  freeholder  of  the 
mills  and  with  his  tenants,  whose  attitude  reflects 
little  credit  upon  their  patriotism.  Possession  was 
in  fact  taken  under  the  Defence  Act.^  on  September  29, 
less  than  a  month  before  the  battle  of  Trafalgar. 
The  legal  significance  of  this  incident  in  one 
of  the  gravest  crises  of  our  history  cannot  possibly 
be  exaggerated  and  calls  for  no  comment,  except 
that  it  is  difficult  to  imagine  a  more  appropriate 
case  for  the  use  of  the  prerogative  power  of  the 
Crown,  if  such  powers  were  available. 

An  instance  ^  occurs  in  which  compensation 
was  given  in  1 81 3  in  respect  of  damage  done  by 
stopping  up  gateways  by  which  farmers  in  the  Isle 
of   Thanet   drew   up   seaweed  in   order   to   obtain 

1  App.  F,  p.  291. 

2  Terms  were  ultimately  agreed  for  the  sale  of  the  freehold, 
but  the  tenants'  demands  were  considerably  in  excess  of  what 
the  authorities  were  willing  to  pay.  The  offer  of  the  Crown 
to  submit  the  question  of  compensation  to  arbitration  having 
been  refused,  the  value  of  the  lessees'  interest  was  ultimately 
(apparently  not  until  May  1808)  assessed  by  a  jury  (App.  F, 
p.  292). 

3  App.  F,  p.  293. 


THE  PREROGATIVE  OF  THE  CROWN         77 

manure  for  their  lands.  The  gateways  had  been 
stopped  up  in  1804  when  an  invasion  was  antici- 
pated. Money  payments  were  ordered  in  the  case 
of  each  complainant  and  a  recommendation  is 
recorded  for  the  re-opening  of  one  if  not  more  of 
the  gateways. 

Finally  an  undated  document  ^  from  the  Earl 
of  Chatham's  papers  (endorsed  September  1819) 
would  seem  to  refer  to  a  period  before  the  passing 
of  the  Defence  Act  of  1804.  It  records  the  case  of 
an  owner  who  is  willing  to  grant  a  lease  of  his  land 
for  the  duration  of  the  war,  but  who  declines  to 
sell,  and  it  is  suggested  that  it  will  be  necessary  to 
introduce  a  Bill  in  Parliament  to  empower  the 
Board  jof  Ordnance  to  purchase  the  property. 

It  remains  to  consider  the  conclusions  to  be 
drawn  from  these  documents.  No  instance  has 
come  to  light  in  which  a  Petition  of  Right  has  been 
presented  or  filed  in  support  of  a  claim  to  compensa- 
tion, a  fact  upon  which  the  Crown  relied  as  incon- 
sistent with  the  existence  of  any  basis  in  law  for  any 
such  claim,  no  subject  having  ever  had  the  temerity 
to  put  forward  such  a  contention.^  On  the  other 
hand  the  Suppliants  argued  that  the  fact  that 
payments  were  regularly  made,  coupled  with  a 
complete  absence  of  instances  of  refusal  or  of 
payment  expressed  to  have  been  made  ex  gratia, 
show  that  the  subject  never  had  occasion  to  resort 
to  litigation — ^the  Crown  always  paid.  As  regards 
land,  then,  there  was  a  universal  practice  of  pay- 
ment resting  on  bargain  before  1708  and  on  statu- 
tory power  and  provision  after  that  date.  Lord 
Dunedin^  declines  to  infer  a  customary  obligation 

1  App.  F,  p.  295.  2  Per  Lord  Sumner,  App.  A,  p.  204. 

3  App.  A,  p.  171. 


78  CASE  OF  REQUISITION 

to  pay  '  for  once  the  taking  itself  is  admitted  to  be 
as  of  right,  the  usage  of  payment  is  equally  consistent 
with  a  payment  ex  lege  and  a  payment  ex  gratia  \ 
But  he  finds  an  admitted  custom  to  pay,  in  the 
face  of  which  it  is  not  surprising  that  there  should 
be  consent  on  the  part  of  the  Crown  that  this  branch 
of  the  prerogative  should  be  regulated  by  statute.^ 

The  conclusion,  then,  is  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  '.^  It  is  submitted,  therefore,  that 
the  alleged  prerogative  is  not  established  Vy  ^h^ 
evidence,  and  that  the  subject  has  a  constitutional 
right  to  the  enjoyment  of  his  land,  while  the  Crown 
is  under  a  corresponding  obligation  to  pay  com- 
pensation where  in  case  of  emergency  that  right  is 
affected.^ 

1  App.  A,  p.  171. 

2  Per  Lord  Atkinson,  App.  A,  p.  183. 

3  The  onus  of  proof  would  as  between  subjects  be  upon  the 
party  alleging  the  right,  and  it  is  submitted  that  the  Crown  is 
in  no  better  position.  '  It  is  for  the  officers  of  the  C5rown  to  make 
out  clearly  the  Prerogative  in  any  case  where  they  claim  to  be 
on  a  different  footing  from  the  subject  as  regards  procedure  in 
any  litigation  '  {Attorney -General  to  Prince  of  Wales  v.  Grossman 
(1866)  L.R.  1  Ex.  386).  The  prerogative  with  regard  to  procedure 
is  expressly  preserved  by  section  34  of  the  Defence  Act,  1842. 
There  appears  to  be  no  decision  which  affects  the  ordinary  rules 
as  to  the  burden  of  proof,  but  in  the  light  of  the  cases  cited  in 
Robertson,  Givil  Proceedings  against  the  Grown,  p.  595,  the 
proposition  that  the  onus  of  proof  is  on  the  Crown  may  be  open 
to  some  doubt. 


CHAPTER  IV 

THE  DEFENCE  OF  THE  REALM  CONSOLIDA- 
TION ACT,   1914 


The  officers  of  the  Crown  purported  to  take 
possession  under  statutory  powers  conferred  by  the 
Defence  of  the  Realm  ConsoUdation  Act,  1914.^ 
Briefly,  the  contention  advanced  on  behaH  of  the 
Crown  was  that  upon  the  proper  construction  of 
the  Act  and  Regulations  the  competent  military 
authority  was  authorized  to  take  possession  of  land 
while  the  subject  had  no  legal  right  to  compensation. 

Whatever  rights  to  compensation  the  Suppliants 
might  have  had  under  the  general  law  as  it  stood 
in  August  1914,  those  rights,  it  was  argued,  were 
taken  away  by  the  authority  conferred  by  the 
Defence  of  the  Realm  Consolidation  Act,  1914  ^ 
to  make  regulations  for  the  suspension  of  any 
restrictions  .on  the  acquisition  and  user  of  land 
under  the  Defence  Acts  1842  to  1875.2  The  argu- 
ment, therefore,  was  that  the  liability  of  the  Crown 
to  compensate  the  subject  for  land  taken  for  pur- 
poses of  national  defence  was  a  '  restriction '  of 
which  Parliament  authorized  the  suspension  by  the 
Regulation  referred  to.  The  answer  to  this  con- 
tention was  twofold. 

In  the  first  place,  the  liability  to  make  compensa- 
tion when  land  is  taken  for  purposes  of  defence  is 

1  5  Geo.  V,  c.  8. 

2  Ag  ^Q  which  see  p.  10,  ante,  note  1. 


80  CASE  OF  REQUISITION 

not  a  '  restriction '  on  the  acquisition  or  user  of 
land  at  all.  It  is  founded  upon  the  right  of  the 
subject,  correlative  to  that  of  the  Crown  to  take 
and  use  the  land,  and  does  not  in  any  way  limit  or 
interfere  with  the  acquisition  and  user.  What  is 
referred  to  as  a  restriction  is  contained  in  the  pro- 
visions of  the  Defence  Act,  1842,  which  impose  upon 
the  officers  of  the  Crown  the  obligation  to  comply 
with  certain  formalities  before  possession  can  be 
obtained.  The  effect  of  the  Regulation  is  to  enable 
the  Crown  to  acquire  and  use  forthwith  and  without 
the  authority,  previously  obtained,  of  the  Lord- 
Lieutenant  or  other  officers ;  the  right  of  the 
subject  to  compensation  remains  wholly  unaffected. 

Secondly,  the  regulation  if,  upon  its  true  con- 
struction, it  purported  to  take  away  the  right  of 
the  subject  to  compensation,  would  be  invalid 
because  it  would  not  satisfy  the  statutory  con- 
dition of  being  a  regulation  for  the  '  public  safety 
and  the  Defence  of  the  Realm  '.  It  cannot  contribute 
to  the  public  safety  for  a  subject  to  be  deprived  of 
compensation  to  which  he  is  otherwise  entitled. 
The  Defence  of  the  Realm  is  not  promoted  by 
denying  compensation  where  it  is  due  ;  the  relief 
to  the  Treasury  and  the  general  body  of  tax-payers 
which  results  if  one  subject  is  to  bear  his  own  loss 
instead  of  the  loss  being  rateably  borne  by  the 
whole  community  is  not  what  is  meant  by  the 
Defence  of  the  Realm. 

The  judgments  in  the  House  of  Lords  sustained 
both  these  answers,  though  either  of  them  was 
sufficient  to  destroy  the  Crown's  argument  under 
this  head. 

The  Defence  Act,  1842,  has  already  been  shown  ^ 
1  p.  35,  ante. 


DEFENCE  OF  THE  REALM  ACT  81 

to  bear  striking  resemblances  to  the  Acts  of  1798, 
of  1803,  and  of  1804  as  regards  both  matter  and 
form.  The  Defence  of  the  Realm  Consolidation 
Act,  1914^  presents  equally  marked  contrasts. 
The  earlier  statutes  not  only  designate  the  subject- 
matter,  they  also  regulate  the  manner  in  which 
the  powers  conferred  by  them  are  to  be  administered. 
The  Acts  themselves  prescribe  in  detail  the  methods 
of  obtaining  possession  and  of  assessing  compensa- 
tion in  the  absence  of  agreement.  The  powers  of 
the  Executive  are  therefore  fully  defined  and  regu- 
lated by  Parliament  itself,  no  power  to  make 
regulations  being  conferred  by  the  older  Acts  upon 
the  Executive  or  upon  any  subordinate  authority. 

Under  the  Defence  of  the  Realm  Act,  on  the 
other  hand.  Parliament  merely  marks  out  the  field 
within  which  it  delegates  to  the  Executive  authority 
to  frame  rules  or  regulations  for  giving  effect 
to  its  intentions.  It  is  only  when  a  regulation 
is  outside  the  ambit  of  the  statute,  or,  in  other 
words,  when  the  government  in  the  exercise  of  its 
statutory  mandate  has  exceeded  its  authority,  that 
a  regulation  can  be  challenged  as  being  ultra  vires. 

According  to  strict  constitutional  theory  the 
Executive  governs,  while  Parliament  legislates ; 
the  delegation  of  legislative  authority  to  the  Crown 
in  Council  therefore  presents  a  paradox  by  ap- 
parently investing  the  same  authority  with  both 
legislative  and  executive  functions.^    The  authority 

1  5  Geo.  V,  c.  8. 

2  Upon  the  subject  of  subordinate  law-making  bodies  generally, 
see  Dicey,  Law  and  Custom  of  the  Constitution,  c.  ii ;  Ilbert, 
Legislative  Methods  and  Forms,  c.  iii,.  Statutory  rules  and  orders 
*  stand  on  the  debatable  borderland  between  legislative  and 
executive  action  ',  Ilbert,  The  Mechanics  of  Law-making,  p.  139. 

2388  Q 


82  CASE  OF  REQUISITION 

none  the  less  remains  a  delegated  one.  It  is  therefore 
subject  to  control,  and  that  control  takes  two 
distinct  forms. 

In  the  first  place  Parliament  remains  supreme  ; 
it  can  revoke  its  authority  and — at  all  events  in 
theory — can  even  repudiate  it.  It  can  also  .declare 
that  authority  to  have  been  exceeded  and  call  its 
agents  to  account.  Parliamentary  control,  however, 
tends  to  become  less  effective  under  the  increasing 
pressure  of  public  business  and  the  corresponding 
tendency  to  restrict  the  opportunities  for  parlia- 
mentary criticism  of  the  details  of  administration. 

In  the  second  place,  the  Courts  will  declare  action 
under  the  delegated  authority  to  be  invalid  and 
ultra  vires,  if  the  Executive  travels  outside  the  area 
within  which  its  delegated  authority  may  legiti- 
mately range.  The  grounds  upon  which  the  validity 
of  a  particular  act  of  the  Executive  may  be  challenged 
are  twofold.  Such  an  act  may  be  in  excess  of  the 
authority  conferred  by  the  regulation  under  which 
it  is  done ;  or  the  regulation  may  itself  be  ultra 
vires. 

In  construing  the  Defence  of  the  Realm  Con- 
solidation Act,  1914,^  the  criterion  to  be  adopted 
by  the  Courts  as  laid  down  by  Parliament  is  that  of 
necessity — the  validity,  whether  of  an  executive 
Act  itself,  or  of  the  regulation  under  which  it  is 
performed  depending  upon  whether  it  be  necessary 
for  securing  the  public  safety  and  the  defence  of 
the  realm.  The  question  therefore  arises  as  to  how 
far  it  is  open  or  practicable  for  the  Courts  to  deter- 
mine the  question  of  necessity.  In  the  Constitu- 
tional controversies,  of  the  seventeenth  century  the 

1  5  Geo.  V,  c.  8. 


DEFENCE  OF  THE  REALM  ACT  83 

question  was  how  far  was  the  King  the  sole  judge  of 
the  danger  ;  in  the  twentieth,  although  assuming 
a  somewhat  different  form,  it  remains  in  essence  the 
same. 

II 

The  material  provisions  of  the  Defence  of  the 
Realm  Consolidation  Act,  1914  ^  are  as  follows : 

Sect.  1  (1).  '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,  and  as  to  the  powers  and  duties 
for  the  purpose  of  the  Admiralty  and  Army  Council 
and  of  the  members  of  His  Majesty's  forces  and  other 
persons  acting  in  his  behalf ;  and  may  by  such 
regulations  authorise  the  trials  by  courts-martial, 
or  in  the  cases  of  minor  offences  by  courts  of  summary 
jurisdiction,  and  punishment  of  persons  committing 
offences  against  the  regulations  and  in  particular 
against  any  of  the  provisions  of  such  regulations 
designed — 

(a)  to  prevent  persons  communicating  with  the 
enemy  or  obtaining  information  for  that 
purpose  or  any  purpose  calculated  to  jeopar- 
dise the  success  of  the  operations  of  any  of 
His  Majesty's  forces  or  the  forces'  of  his  allies 
or  to  assist  the  enemy  ;  or 

(b)  to  secure  the  safety  of  His  Majesty's  forces 
and  ships,  and  the  safety  of  any  means  of 
communication  and  of  railways,  ports,  and 
harbour  ;    or 

(c)  to  prevent  the  spread  of  false  reports  or 
reports  likely  to  cause  disaffection  to  His 
Majesty  or  to  interfere  with  the  success  of 
His  Majesty's  forces  by  land  or  sea  or  to 
prejudice  His  Majesty's  relations  with  foreign 
powers  ;   or 

1  5  Geo.  V,  c.  8. 
Q2 


84  CASE  OF  REQUISITION 

(d)  to  secure  the  navigation  of  vessels  in  accordance 

with  directions  given  by  or  under  the  authority 
of  the  Admiralty  ;   or 

(e)  otherwise  to  prevent  assistance  being  given  to 

the  enemy  or  the  successful  prosecution  of 
the  war  being  endangered. 

(2).  Any  such  regulations  may  provide  for  the 
suspension  of  any  restrictions  on  the  acquisition  of 
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  Mihtary  Lands  Acts, 
1891  to  1903,  and  any  such  regulations  or  any  orders 
made  thereunder  affecting  the  pilotage  of  vessels 
may  supersede  any  enactment,  charter,  bye-laws, 
regulation  or  provision  as  to  pilotage.' 

The  form  of  this  enactment  calls  for  some  comment. 
It  is  declared  that  '  His  Majesty  has  power  to 
make  regulations  '.  Does  this  point  to  a  recognition 
of  any  existing  powers  of  the  Crown  under  its 
prerogative,  or  does  it  refer  merely  to  such  powers 
as  are  derived  from  statute  ?  It  was  at  one  stage 
of  the  argument  in  the  Case  contended  on  behalf  of 
the  Crown  that  there  is  to  be  inferred  from  these 
words  something  in  the  nature  of  a  recital  or  recog- 
nition of  prerogative  powers  at  Common  Law. 
But  this  contention  loses  its  force  when  reference 
is  made  to  the  earlier  Defence  of  the  Realm  Acts, 
which  were  superseded  by  the  Consolidation  Act  in 
which  their  provisions  were  incorporated.  The 
first  of  these  Acts,^' which  received  the  Royal  Assent 
on  August  8,  1914,  was  entitled,  '  An  Act  to  confer 
on  His  Majesty  power  to  make  regulations  during 
the  present  war  for  the  defence  of  the  Realm.'  It 
was  limited  to  regulations  for  the  prevention  of 

1  4  &  5  Geo.  V,  c.  29. 


DEFENCE  OF  THE  REALM  ACT      85 

communication  with  the  enemy  and  to  securing 
the  safety  of  means  of  communication,  or  of  rail- 
ways, docks,  and  harbours.  An  amending.  Act  of 
August  28,^  enlarged  the  scope  of  the  first  Act 
and  contains  the  earliest  reference  to  the  Defence 
Acts  by  the  insertion  of  the  provisions  which  are  now 
incorporated  in  section  1  (2)  of  the  Consolidation 
Act.  Neither  the  amending  nor  the  Consolidation 
Act  reproduces  the  title  to  the  Act  of  August  8. 
The  Consolidation  Act  does  not  in  terms  '  confer  ' 
power  ;  it  enacts,  that  '  His  Majesty  in  Council 
has  power  during  its  continuance  of  the  present 
war  to  issue  regulations  for  securing  its  public 
safety  and  the  defence  of  the  Realm  '.  It  is  perhaps 
hardly  material  to  consider  whether  the  omission 
from  the  Consolidation  Act  of  the  title  of  the  Act 
of  August  8,  and  the  rearrangement  of  the  topics 
which  are  enumerated  in  the  Acts  which  it  super- 
sedes, justify  any  inference  that  the  existence  of 
any  prerogative  power  is  given  statutory  recog- 
nition. The  Consolidation  Act  does  not  purport 
to  embody  in  the  form  of  an  enactment  the  Govern- 
ment's existing  prerogative  ;  it  merely  empowers 
the  Crown  to  issue  regulations — and  there  is  no 
prerogative  to  make  Regulations.^  The  wording  of 
the  Consolidation  Act,  therefore,  throws  no  light 
upon  the  existence  or  extent  of  the  prerogative 
powers  claimed.  Reliance  was  also  placed  in  the 
argument  on  behalf  of  the  Crown  upon  the  terms 
of  the  Defence  of  the  Realm  (Acquisition  of  Land) 
Act,  1916,^  which  makes  provision  for  the  con- 
tinuance in  possession  by  any  government  depart- 
ment for  a  limited  period  after  the  termination  of 
1  4  &  5  Geo.  V,  c.  63.  ^  p^r  Lord  Sumner,  App.  A,  p.  199. 
3  6  &  7  Geo.  V,  c.  63. 


86  CASE  OF  REQUISITION 

the  war,  and  for  the  permanent  acquisition  of  land 
of  which  possession  has  been  taken,  subject  to  the 
payment  of  compensation  to  be  assessed  in  case  of 
dispute  by  the  Railway  and  Canal  Commission. 
Sect.  1(1)  commences  '  Where  during  the  course  or 
within  the  week  immediately  preceding  the  com- 
mencement of  the  present  war  possession  has  been 
taken  of  any  land  by' or  on  behalf  of  any  Govern- 
ment department  for  purposes  connected  with  the 
present  war  in  exercise  or  purported  exercise  of  any 
prerogative  right  of  His  Majesty  or  of  any  powers 
conferred  by  or  under  any  enactment  relating  to 
the  defence  of  the  Realm  or  by  agreement  or 
otherwise.  .  .  .'  The  words  in  italics,  it  was  con- 
tended, are  a  statutory  confirmation  and  declaration 
of  the  power  to  take  under  the  prerogative.  The 
ansjver  is  that  (1)  if  the  prerogative  does  not  extend 
to  thQ  taking  of  land  without  an  obligation  to  make 
compensation,  reference  to  prerogative  powers  cannot 
extend  their  scope,  and  (2)  the  words  do  not  define 
the  prerogative,  but  say  that  if  the  Crown  has  de 
facto  taken,  quocunqite  modo,  it  shall  be  lawful  to 
continue  in  possession.^ 

It  would  be  superfluous  to  enlarge  upon  the 
extent  to  which  the  power  to  make  regulations  has 
been  exercised  during  the  progress  of  the  war. 
Regulation  1  lays  down  the  general  principles  to  be 
observed.  '  The  ordinary  avocations  of  life  and 
the  enjoyment  of  property  will  be  interfered  with 
as  little  as  may  be  permitted  by  the  exigencies  of 
the  measures  required  to  be  taken  for  securing  the 
public  safety  and  the  defence  of  the  Realm,  and 
ordinary  civil  offences  will  be  dealt  with  by  the 

1  Per  Lord  Dunedin,  App.  A,  p.  176  ;  per  Lord  Atkinson, 
ibid.,  p  188  ;  per  Lord  Moulton,  ibid.,  p.  196. 


DEFENCE  OF  THE  REALM  ACT  87 

civil  tribunals  in  the  ordinary  course  of  law.'  It  is 
only  necessary  to  peruse  the  Regulations  made 
under  the  power  conferred  by  the  Defence  of  the 
Realm  Act  in  order  to  appreciate  how  the  execu- 
tive found  it  impossible  or  inexpedient  to  refrain 
from  interference  with  almost  every  department  of 
national  and  private  activity. 

The  occupation  of  land  and  buildings  is  provided 
for  by  Regulation  2  in  the  following  terms  : 

'  It  shall  be  lawful  for  the  competent  naval  or 
military  authority  and  any  person  duly  authorised 
by  him,  where  for  the  purpose  of  securing  the  public 
safety  and  the  defence  of  the  Realm  it  is  necessary 
so  to  do  : 

(a)  to  take  possession  of  any  land  and  to  construct 

military  works,  including  roads,  thereon,  and 
to  remove  any  tree,  hedges,  and  fences 
therefrom ; 

(b)  to  take  possession  of  any  buildings  or  other 
property  including  works  for  the  supply  of 
gas,  electricity,  or  water,  and  of  any  sources 
of  water  supply  ; 

(c)  to   take  such  steps  as  may  be  necessary  for 

placing  any  buildings  or  structures  in  a  state 
of  defence  ; 

(d)  to  cause  any  buildings  or  structures  to  be 
destroyed  or  any  property  to  be  moved  from 
one  place  to  another,  or  to  be  destroyed  ; 

(e)  to  do  any  other  act  involving  interference  with 

private  rights  of  property  which  is  necessary 
for  the  purpose  aforesaid.' 

To  revert  once  more  to  the  alleged  prerogative. 
It  is  obvious  that  if  the  Common  Law  Powers  of 
the  Crown  had  sufficed  to  meet  the  emergency, 
there  could  have  been  no  necessity  to  confer  the 
same  powers  by  means  of  regulations.    If  regulations 


88  CASE  OF  REQUISITION 

were  required  not  merely  to  formulate  and  declare  the 
Common  Law  powers  of  the  Crown — still  more  if 
they  were  designed  to  augment  them — ^they  must  be 
clearly  expressed  and  intra  vires  the  statute  from 
which  they  derive  their  authority. 

In  examining  the  effect  of  the  Act  and  Regula- 
tions two  principal  matters  have  to  be  borne  in 
mind.  Firstly  the  Act  gives  power  by  regulation 
to  remove  restrictions  on  the  acquisition  and  user 
of  land,  and  makes  specific  reference  to  the  Defence 
Acts  and  the  analogous  legislation  under  the  Military 
Lands  Acts.^  Secondly,  no  regulation  has  been 
made  purporting  to  deal  with  the  question  of 
compensation  for  such  acquisition  or  user  ;  both 
the  Act  and  the  regulations  are  entirely  silent  on 
the  subject  of  compensation. 

The  restrictions  imposed  by  the  Defence  Acts 
have  already  been  referred  to.^  So  far  as  the  facts 
of  the  Case  are  concerned,  no  restriction  contained 
in  the  Act  of  1842  could  have  operated  to  the 
prejudice  of  the  national  interest.  The  Suppliants 
did  not  refuse  to  '  treat  and  agree  '.  Had  they  done 
so  the  provisions  of  section  19  of  the  Defence  Act, 
1842  ^  were  available,  and  it  could  not  be  suggested 
that  the  emergency  was  such  as  to  render  compliance 
with  the  formality  of  giving  fourteen  days'  notice 
injurious  to  the  public  interest.  The  Suppliants 
did  not  refuse  to  give  up  possession  ;  there  was 
therefore  no  occasion  to  obtain  a  certificate  under 
section  23.  But  it  was  suggested  that  the  liability 
to  make  compensation  was  itself  a  '  restriction '. 
In  the  broad  sense  every  liability  to  pay  is  a  restric- 

^  As  to  the  Military  Lands  Acts,  see  p.  10,  ante,  note  1. 
2  p  4Q^  ^^^g  3  5  ^  e  Vict.,  c.  94. 


I 


DEFENCE  OF  THE  REALM  ACT      89 

tion,  but  the  restrictions  for  which  section  1  (2)  of 
the  ConsoHdation  Act  provide  are  '  restrictions  on 
the  acquisition  or  user  of  land '.  '  When  those 
restrictions  are  examined,'  says  Lord  Atkinson/ 
'  it  is  to  my  mind  clear  that  the  legal  obligation  to 
pay  for  the  land  or  its  use,  temporarily  or  per- 
manently acquired,  is  not  a-  restriction  upon  the 
acquisition  of  either  or  a  condition  precedent  to  its 
acquisition.'  'The  obligation  to  pay  might  dis- 
courage 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  of  payment  arises.'  ^ 

In  so  far  then  as  the  Defence  Act,  1842,  imposed 
restrictions,  no  such  restrictions  operated  to  impede 
the  officers  of  the  Crown  in  the  performance  of  their 
duties.  Had  it  been  otherwise  the  Consolidation 
Act  gave  power  to  reheve  them  of  the  impediment. 

Ill 

The  Crown  claimed  that  the  sole  remedy  of  the 
Suppliants  was  to  apply  to  a  Commission  known 
as  the  Defence  of  the  Realm  Losses  Royal  Com- 
mission ^  for  a  grant  by  way  of  compensation  for 
the  loss  they  would  suffer  by  reason  of  the  occupation 
of  their  premises.  The  Commission  was  appointed 
by  warrant  dated  March  31,  1915,  '  to  inquire  and 
determine,  and  to  report  what  sums  (in  cases  not 
otherwise  provided  for)  ought  in  reason  and  fair- 
ness to  be  paid  out  .of  public  funds  to  applicants 

1  App.  A,  p.  185. 

2  Per  Lord  Sumner,  App.  A,  p.  200. 

3  Under  the  Indemnity  Act,  1920  (10  &  11  Geo.  V,  c.  48)  the 
Commission  is  now  styled  the  War  Compensation  Court.  For  its 
constitution,  jurisdiction,  and  functions  see  p.  159,  jpost. 


90  CASE  OF  REQUISITION 

who  (not  being  subjects  of  an  enemy  State)  are 
resident  or  carrying  on  business  in  the  United 
Kingdom,  in  respect  of  direct  and  substantial  loss 
incurred  and  damage  sustained  by  them  by  reason 
of  interference  with  their  property  or  business  in 
the  United  Kingdom  through  the  exercise  by  the 
Crown  of  its  rights  and  duties  in  the  defence  of  the 
Realm  '.^  The  Commission  therefore  administered 
the  bounty  of  the  Crown.  It  had  no  jurisdiction  in 
cases  '  otherwise  provided  for '  and  declined  to  deal 
with  cases  in  which  an  applicant  had  or  claimed  to 
have  any  rights  enforceable  in  a  Court  of  law  under 
any  statutory  enactment  or  under  any  agreement 
to  which  the  Crown  was  a  party. 

The  Defence  of  the  Realm  Losses  Commission 
was    (with   certain    exceptions)  ^   the    tribunal    ap- 

1  The  warrant  is  set  out  in  full  in  the  first  Report  of  the 
Commissioners  (Cd.  8359/1916).  This  report  should  be  referred 
to  for  the  principles  upon  which  the  Commissioners  have  acted 
in  executing  the  terms  of  their  warrant.  Further  reports  have 
been  published  in  1917  (Cd.  8751) ;  1918  (Cd.  9181)  ;  and  1919 
(Cd.  404).  See  now  the  schedule  to  the  Indemnity  Act,  1920, 
for  the  principles  upon  which  compensation  is  to  be  assessed. 

2  Claims  arising  out  of  the  requisitioning  of  ships  are  submitted 
to  the  Admiralty  Transport  Arbitration  Board  constituted 
under  a  Royal  Proclamation  dated  August  3,  1914  {Manual  of 
Emergency  Legislation,  p.  386).  See  the  notification,  dated 
August  11  (ibid.,  p.  387)  and  the  amending  notification  dated 
August  31,  1914  (ibid.,  p.  390).  The  Board  has  been  held  to  be 
a  regular  tribunal  of  arbitration  whose  members  can  be  ordered 
to  state  a  Special  Case  for  the  opinion  of  the  High  Court  under 
section  19  of  the  Arbitration  Act,  1889  {Lohitos  Oilfields  v. 
Admiralty  Commissioners,  86  L.J.K.B.  1444 ;  117  L.T.  28 ; 
33  T.L.R.  472).  For  the  substituted  procedure  by  way  of  appeal 
to  the  Court  of  Appeal,  see  the  Indemnity  Act,  1920  (10  &  11  Geo. 
V,  c.  48,  s.  2).  The  Board  is  also  designated  under  the  Defence 
of  the  Realm  Regulation,  39  B.B.B.,  as  the  tribunal  for  deter- 
mining claims  under  the  extended  powers  thereby  conferred 


DEFENCE  OF  THE  REALM  ACT  91 

pointed  under  the  Defence  of  the  Realm  Consohda- 
tion  Act,  1914,  to  deal  with  applications  for 
compensation  where  private  property  had  been 
requisitioned  for  purposes  of  defence. 

The  tribunal  was  an  appropriate  one  if,  and  only 
if,  the  right  to  requisition  extended  to  the  taking  of 
the  property  of  the  subject  free  from  a  legal  obliga- 
tion to  make  compensation.  The  Commission  had 
no  statutory  authority  and  could  only  deal  with 
claims  ex  gratia.  It  was  not  a  legal  tribunal,  whose 
decisions  would  be  subject  to  review  in  the  Courts, 
and  the  principles  which  it  adopted  in  carrying  out 
the  terms  of  the  warrant  under  which  it  was  con- 
stituted could  not  be  challenged  by  way  of  appeal. 
If  the  subject  claimed  a  right  enforceable  by  law 
his  remedy  was  in  the  Courts.  In  regard  to  the 
occupation  of  land  that  right  has  been  vindicated 
by  the  judgments  in  the  Case. 

The  majority  of  requisitions  made  during  the 
war  purported  to  be  made  under  powers  derived 
from  Regulations  made  under  the  Defence  of  the 
Realm  Acts.  If  the  right  of  requisition  be  founded 
on  the  Acts  and  Regulations,  the  denial  of  a  right 
ex  lege  to  compensation  can  only  be  justified  if,  upon 
the  proper  construction  of  the  Acts  and  Regulations, 

upon  the  Shipping  Controller.  Provision  has  also  been  made 
in  some  cases  for  the  determination  of  claims  by  a  single  arbitrator 
to  be  appointed  in  manner  provided  by  order  of  an  official  or 
department ;  as  in  the  case  of  requisitions  by  the  Food  Controller 
under  Regulation  2  F.  By  Regulation  7,  compensation  for  the 
requisition  of  the  output  of  factories  is  to  be  determined  by  the 
arbitration  of  a  Judge  of  the  High  Court  to  be  selected  by  the 
Lord  Chief  Justice  (in  Scotland  by  a  Judge  of  the  Court  of 
Session,  selected  by  the  Lord  President,  and  in  Ireland  by  a  Judge 
of  the  High  Court  of  Ireland  selected  by  the  Lord  Chief  Justice 
of  Ireland). 


92  CASE  OF  REQUISITION 

that  right  be  excluded.  If  the  right  survives,  the 
machinery  provided  by  the  Defence  of  the  Realm 
Losses  Commission  is  clearly  inapplicable. 

The  Consolidation  Act,  it  has  been  said,  makes  no 
reference  to  compensation,  while  the  regulations, 
although  they  contain  some  provisions  for  the 
assessment  of  compensation  in  respect  of  the  requi- 
sition of  ships  and  chattels,  contain  no  reference 
whatever  to  compensation  for  the  taking  of  land. 
So  far  as  the  questions  in  the  Case  are  concerned,  it 
is  only  necessary  to  consider  whether,  assuming 
a  right  to  compensation  to  exist,  either  at  Common 
Law  or  under  the  Defence  Acts,  that  right  is 
destroyed  by  the  provisions  of  the  Consolidation 
Act.  Statutes  which  affect  existing  rights,  but 
make  no  express  provision  for  compensation  for  the 
loss  of  those  rights  or  for  interference  with  their 
exercise,  are  to  be  interpreted  according  to  a  well- 
known  canon  of  construction : 

'  It  is  a  proper  rule  of  construction  not  to  construe 
an  Act  of  Parliament  as  interfering  with  or  injuring 
persons'  rights  without  compensation,  unless  one 
is  obliged  so  to  construe  it.  If  it  is  clear  and  obvious 
that  Parliament  has  so  ordered,  and  there  is  no 
other  way  of  construing  the  words  of  the  Act,  then 
one  is  bound  to  so  construe  them,  but  if  one  can 
give  a  reasonable  construction  to  the  words  without 
producing  such  an  effect,  to  my  mind  one  ought  to 
do  so.'  ^ 

So  in  London  &  North  Western  Railway  Co,  v. 
Evans, '^  Bowen,  L.  J.,  says  : 

^  Per  Brett,  M.R.,  Attorney -General  v.  Horner  (1884)  14 
Q.B.D.  245,  257. 

2  (1893)  1  Ch.  16,  28.  See  also  Reg.  v.  Abbott  (1897)  2  I.R. 
362,  405,  Commissioner  of  Public  Works  (Cape  Colony)  v.  Logan 


DEFENCE  OF  THE  REALM  ACT      93 

'  The  legislature  cannot  fairly  be  supposed  to  intend, 
in  the  absence  of  clear  words  showing  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  dis- 
regard this  ordinary  principle  as  it  can  override 
the  former,  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.' 

The  application  of  these  principles  to  the  facts 
of  the  Case  is  simplified  by  the  fact  that,  while  the 
Defence  Act,  1842,  expressly  provides  for  the 
assessment  and  payment  of  compensation,  neither 
the  Consolidation  Act  nor  the  Regulations  purport 
in  express  terms  to  negative  the  existence  of  such 
a  right.  The  position  therefore  is  that  certainly  in 
the  case  of  land,  and  possibly  as  regards  other 
property,  the  Defence  of  the  Realm  Acts  and  Regu- 
lations must  be  read  in  the  light  of  existing  Statutes 
by  which  the  legal  right  of  the  subject  to  compen- 
sation is  secured.  If  the  Defence  Acts  entirely 
omit  to  deal  with  that  right,  the  canon  of  construc- 
tion as  laid  down  in  Attorney-General  v.  Horner^ 
and  London  d;  North  Western  Railway  v.  Evans  ^ 
applies  and  the  right  remains  unimpaired. 

But  the  argument  on  behalf  of  the  Crown  niay  be 
tested  in  another  way.  Assuming  the  Regulations 
to  have  provided  in  express  terms  that  property 
may  be  taken  without  making  compensation,  such 
a  provision,  made  not  by  statute,  but  under  the 

(1903)  A.C.  355,  363.  Central  Control  Board  {Liquor  Traffic)  v. 
Cannon  Brewery  Co.  Ltd.  (1919)  A.C.  744.  Rooney  v.  Department 
oj  Agriculture  (1920)  1  Ir.  R.  176. 

^  Ubi  supra.  ^  Ubi  supra. 


94  CASE  OF  REQUISITION 

authority  delegated  to  the  Executive  can  only 
be  justified  on  the  ground  of  such  a  necessity  for  the 
defence  of  the  Realm  as  would  satisfy  the  express 
terms  of  the  Act.  Now  that  the  taking  itself  was 
justified  on  this  ground  was  not  disputed.  Can  it, 
however,  be  said  that  it  was  '  necessary  for  the 
public  safety  and  the  defence  of  the  Realm '  that  the 
property  of  the  subject  should  be  taken  free  from  any 
obligation  of  payment  ?  Judged  by  this  test,  there 
can  be  no  doubt  that  such  a  Regulation  is  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.'  ^  * 

IV   ' 

What  has  already  been  said  in  this  chapter  covers 
the  ground  traversed  in  the  argument  and  judg- 
ments in  the  case  so  far  as  the  Defence  of  the  Realm 
Consolidation  Act  and  Regulations  are  concerned. 
It  may,  however,  be  useful  to  indicate  some  of  the 
more  general  considerations  which  are  applicable 
when  the  Act  and  Regulations  are  examined. 

The  decision  in  the  Case  furnishes  an  instance  in 
which  the  Courts  have  considered  the  question  of 
necessity  and  decided  it  adversely  to  the  contentions 
of  the  Crown.  The  principles  to  be  applied  by  the 
Courts  in  considering  this  question  are  not  easy  to 
formulate.  Where  the  issue  is  whether  a  particular 
executive  act  done  under  the  authority  of  a  regulation 
which  is  itself  intra  vires  be  necessary,  or  not,  the 
duty  cast  upon  the  Courts  is  peculiarly  onerous,  and 
it  may  be  assumed  that  they  will  not  interfere  with 

1  Per  Lord  Atkinson,  App.  A,  p.  186. 


DEFENCE  OF  THE  REALM  ACT      95 

the  discretion  of  the  Executive,  where  that  dis- 
cretion has  been  properly  exercised.  Thus  in  The 
Zamora  ^  Lord  Parker  says  : 

'  A  judge  ought  as  a  rule,  to  treat  the  statement  on 
oath  of  the  proper  officer  of  the  Crown  to  the  effect 
that  the  vessel  or  goods  which  it  is  desired  to 
requisition  are  urgently  required  for  use  in  connection 
with  the  Defence  of  the  Realm,  the  prosecution 
of  the  war,  or  other  matters  involving  national 
security,  as  conclusive  of  the  fact.  .  .  .  Those  who  are 
responsible  for  the  national  security  must  be  the 
sole  judges  of  what  the  national  security  requires. 
It  would  be  obviously  undesirable  that  such  matters 
should  be  made  the  subject  of  evidence  in  a  Court 
of  law  or  otherwise  discussed  in  public' 

To  this,  as  a  general  proposition,  no  one  will 
demur  ;  but  it  is  possible  to  conceive  cases  in  which 
an  executive  act  may  so  obviously  fail  to  be  justified 
by  the  emergency  that  the  Courts  will  interfere. 
Apart  from  cases  of  this  character,  the  question  is 
primarily  whether  a  particular  executive  act  can  be 
justified  as  being  within  the  authority  under  which 
it  purports  to  be  done.  Thus  in  China  Mutual  Steam 
Navigation  Company  Limited  v.  Maclay,^  while  the 
requisition  of  the  plaintiffs'  steamers  was  assumed 
to  be  valid,  a  direction  that  they  were  to  be  run  for 
the  account  of  the  Government,  crediting  full  earnings 
and  debiting  net  charges,  was  held  to  go  beyond  the 
powers  conferred  on  the  Shipping  Controller,  inas- 
much as  the  effect  was  to  requisition  not  only  the 
steamers,  but  also  the  services  of  the  owners  and  of 
their  staff. 

The  doctrine  that  the  validity  not  merely  of  an 
executive  act  but  of   a  regulation  made  by  a  duly 

1  (1916)  2  A.C.  77,  106.  2  (1918)  1  k.B.  33. 


96  CASE  OF^  REQUISITION 

authorized  department  of  government  is  not  open 
to  review  in  the  Courts  receives  some  support 
from  the  Judgments  in  R,  v.  Halliday^  which 
dealt  with  the  vahdity  of  Regulation  14  B,  empower- 
ing the  Secretary  of  State  to  order  the  internment 
of  any  person  '  of  hostile  origin  or  associations ', 
where  on  the  recommendation  of  a  competent 
naval  or  military  authority  it  appears  to  him 
expedient  for  securing  the  public  safety  and 
the  defence  of  the  llealm.  The  validity  of  the 
Regulation  as  justifying  the  preventive  detention  of 
suspected  persons  was  upheld  in  the  House  of  Lords 
with  one  dissentient.^  '  It  may  be  necessary,' 
says  Lord  Finlay,  '  in  a  time  of  great  public  danger 
to  entrust  great  powers  to  his  Majesty  in  Council 
and  that  Parliament  may  do  so  feeling  certain 
that  such  powers  will  be  reasonably  exercised.'  ^ 
It  is  submitted  that  the  Lord  Chancellor  did  not 
intend  to  lay  down  so  broad  a  proposition  as  that 
the  method  by  which  the  authority  conferred  by 
Parliament  is  exercised  is  not  open  to  review  in  the 
Courts.  Lord  Atkinson  indeed,*  in  suggesting  that 
a  regulation  which  on  its  face  required  something 
to  be  done  which  could  not  in  any  reasonable  way 
aid  in  securing  the  public  safety  and  the  defence  of 
the  Realm  might  be  ultra  vires  and  void,  expressly 

1  (1917)  A.C.  260. 

2  The  Judgment  of  Lord  Shaw  of  Dunfirmline  contains 
a  powerful  vindication  of  the  right  of  the  subject  to  personal 
liberty  and  of  the  supremacy  of  Parliament.  See  the  passage 
quoted  at  p.  104,  post. 

^  Sheffield  Conservative  and  Unionist  Club  v.  Brighten  (1916) 
85  L.J.  (K.B.)  1669 ;  Lipton  v.  Ford  (1917)  2  K.B.  647  ;  Bex  v. 
Governor  of  Wormwood  Scruhbs  Prison :  Ex  parte  Foy  (1920) 
2  K.B.  305. 

*  (1917)  A.C.  p.  272. 


DEFENCE  OF  THE  REALM  ACT  97 

reserved  the  point  for  consideration  if  and  when  it 
should  become  necessary  to  decide  it.  The  question 
in  such  a  case  would  be,  not  whether  the  donee  of 
a  discretionary  power  would  exercise  the  power 
unreasonably,^  but  whether  he  has  the  power  at 
all,^  and  it  is  from  this  point  of  view  that  the 
criterion  of  necessity  has  been  applied  in  several 
cases  in  the  Courts  of  first  instance,  none  of  which 
have  so  far  been  argued  on  appeal. 

In  Chester  v.  Bateson^  the  validity  of  Regula- 
tion 2  A  (2)  was  successfully  challenged  on  the 
ground  that  it  cannot  be  a  necessary  or  even  reason- 
able way  to  aid  in  securing  the  public  safety  and 
the  defence  of  the  Realm  to  give  power  to  a  minister 
to  forbid  any  person  to  exercise  the  ordinary  right 
of  citizens  to  resort  to  the  King's  Courts  in  order 
to  obtain  redress  for  a  wrong. 

In  Newcastle  Breweries  Limited  v.  The  King  * 
two  points  were  decided.  The  Admiralty  having 
requisitioned  a  quantity  of  rum,  claimed  that  by 
virtue  of  Regulation  2  B  the  owners  were  entitled 

1  A  donee  of  discretionary  power  (as  for  instance  the  Home 
Secretary  under  Art.  12  (1)  of  the  Aliens  Order,  1919,  made  by 
virtue  of  the  Aliens  Restriction  Act,  1914  (4  &  5  Geo.  V,  c.  12, 
s.  1,  sub-sec.  1  (c))  is  an  executive,  and  not  a  judicial  officer,  and 
is  therefore  not  bound  to  hold  an  inquiry,  or  to  give  to  a  person 
agaiQst  whom  he  proposes  to  make  an  order  an  opportunity  of 
being  heard.  R.  v.  Inspector  of  Leman  Street  Police  Station  : 
Ex  parte  Venicoff.  R.  v.  Secretary  of  State  for  Home  Affairs  : 
Ex  parte  Venicoff  (1920)  3  K.B.  72. 

2  See  Attorney-General  v.  Brown  (1920)  1  K.B.  773, 791,  in  which 
it  was  held  that  the  power  conferred  on  the  Crown  to  prohibit 
the  import  of  arms,  ammunition,  gunpowder,  or  any  other  goods 
by  Proclamation  or  Order  in  Council  does  not,  upon  the  applica- 
tion of  the  ejusdem  generis  rule  of  construction,  extend  to  goods 
of  any  class  other  than  that  specified. 

3  (1920)  1  K.B.  829.  *  Ibid.,  854. 


98  CASE  OF  REQUISITION 

by  way  of  compensation  to  be  paid  less  than  the 
market  price  ;  and  further  that  in  the  absence  of 
agreement  the  claim  of  the  owners  to  compensation 
fell  to  be  determined  by  the  Defence  of  the  Realm 
Losses  Commission.  The  decision  of  Mr.  Justice 
Salter  on  both  points  was  in  favour  of  the  owners. 
With  regard  to  the  tribunal,  he  was  of  opinion  that 
a  Begulation  which  takes  away  the  right  of  a  subject 
to  a  judicial  decision  or  transfers  the  adjudication 
of  his  claim,  without  his  consent,  from  a  Court  of 
law  to  named  arbitrators,  cannot  fairly  be  held  to 
be  a  regulation  for  securing  the  public  safety  and 
the  defence  of  the  Realm,  or  a  Regulation  designed 
to  prevent  the  successful  prosecution  of  the  war 
being  endangered,  within  the  meaning  of  these 
words  in  the  Consolidation  Act.  The  second  point 
bears  a  close  analogy  to  the  questions  in  the  Case. 
It  depended  upon  the  existence,  before  the  enact- 
ment of  the  Defence  of  the  Realm  Acts,  of  a  statutory 
right  to  compensation.  That  right  was  secured  to 
the  owners  of  goods  under  the  provisions  of  the 
Army  Act,  1881,^  as  extended  by  the  Army  (Supply  of 
Food,  Forage,  and  Stores)  Act,  1914,^  the  Naval 
Billeting  Act,  1914,^  and  the  Army  (Amendment) 
Acts,  1915,^  the  effect  of  which  is  to  give  to  the 
owner  of  food,  forage,  and  stores  of  every  description 
which  are  requisitioned  the  right  to  the  fair  market 
value  of  his  goods,  and  the  further  right  to  have  the 
value  assessed  in  the  event  of  dispute  by  a  County 
Court  Judge.  In  the  case  of  requisitions  of  land, 
the  right  to  compensation  and  the  tribunal  by  which 
compensation    is    to    be    assessed    depend    entirely 

1  44  &  45  Vict.,  c.  58.  24^5  q^q  y  ^  25. 

3  Ibid.,  c.  70.  *  5  Geo.  V,  c.  26  &  c.  58. 


DEFENCE  OF  THE  REALM  ACT  99 

upon  statute,  and  no  express  provision  purporting 
to  affect  either  the  right  or  the  remedy  is  to  be 
found  in  the  Defence  of  the  Realm  Acts  and  Regula- 
tions. In  Newcastle  Breweries  Ltd.  v.  The  King  ^ 
the  rights  of  the  subject  were  also  defined  by  statute 
and  the  decision  depended  upon  the  extent  to  which 
specific  regulations  made  to  meet  a  particular 
emergency  were  inconsistent  with  the  existing 
statutory  provisions. 

HudsoTi's  Bay  Co.  v.  3Iaclay,^  in  which  the 
validity  of  Regulations  39  B.B.B.  and  39  D.D.  was 
unsuccessfully  challenged,  stands  upon  a  somewhat 
different  footing.  The  office  of  Shipping  Controller 
was  constituted  under  the  New  Ministries  and 
Secretaries  Act,  1916,^  section  6  of  which  provides 
that  it  shall  be  his  duty  '  to  control  and  regulate 
any  shipping  available  for  the  needs  of  the  country 
in  such  manner  as  to  make  the  best  use  thereof, 
having  regard  to  the  circumstances  of  the  time,  and 
to  take  such  steps  as  he  may  think  best  for  providing 
and  maintaining  an  efficient  supply  of  shipping '. 
He  is  to  have  '  such  powers  or  duties  of  any  Govern- 
ment department  or  authority,  whether  conferred 
by  statute  or  otherwise,  as  His  Majesty  may  by 
Order  in  Council  transfer  to  him  or  authorise  him 
to  exercise  or  perform  concurrently  with  or  in  con- 
sultation with  the  Government  department  or 
authority  concerned,  and  also  such  further  powers 
as  may  be  conferred  on  him  by  regulations  under  the 
Defence  of  the  Realm  Consolidation  Act,  1914,  and 
regulations  may  be  made  under  that  Act  accordingly.' 

Under  the  powers  conferred  by  regulations 
39   B.B.B.    and   39   D.D.   the   Shipping   Controller 

1  (1920)  1  K.B.  854.  2  (1920)  36  T.L.R.  469. 

3  6  &  7  Geo.  V,  c.  68. 

H  2 


100  CASE  OF  REQUISITION 

claimed  power  to  grant  or  refuse  licenses  enabling 
British  vessels  to  put  to  sea  ;  to  order  vessels  to 
load  such  cargoes  as  he  might  direct  (as,  for  example, 
cargoes  carried  for  the  Royal  Commission  on  wheat 
supplies),  and  to  order  vessels  to  carry  cargoes  so 
loaded  between  named  ports  and  to  fix  the  rates  of 
freight  at  which  such  cargoes  should  be  carried. 
Mr.  Justice  Greer  arrived  at  the  conclusion  that  the 
regulations  in  question  were  not  ultra  vires.  With 
regard  to  the  right  to  regulate  the  rates  of  freight, 
he  founded  his  opinion  mainly  upon  the  view  that 
it  would  have  been  of  little  use  to  give  to  the  Shipping 
Controller  power  to  direct  vessels  to  carry  cargo  at 
the  market  rate.  Inasmuch  as  the  object  of  the 
Regulations  was  to  assist  in  the  reduction  of  the 
cost  of  the  carriage  of  food  and  of  raw  materials, 
that  object  was  difficult  if  not  impossible  of  fulfil- 
ment so  long  as  the  market  rate  was  permitted  to 
obtain.  This  decision  involves  the  proposition 
that  a  power  to  fix  prices  and  terms  for  the  carriage 
of  goods  for  a  government  department  is  within  the 
powers  which  may  be  granted  by  regulations  made 
for  securing  the  public  safety  and  the  defence  of 
the  Realm.  It  involves  the  further  proposition  that 
it  is  for  the  King  in  Council  to  decide  how  those 
prices  are  to  be  ascertained. 

Upon  the  question  of  the  right  to  designate  by 
means  of  regulation  the  method  of  ascertaining 
compensation  the  recent  decisions  disclose  some 
difference  of  judicial  opinion.  It  rilay  be  that  with 
regard  to  goods  requisitioned  for  the  use  of  the 
Army  and  Navy  the  statutory  provisions  for  the 
assessment  of  compensation  at  the  market  rate 
exclude  any  power  to  provide  for  assessment  on 
a  different  principle  and  by  a  different  tribunal. 


DEFENCE  OF  THE  REALM  AOF    ;;,;,' 101; 

If,  however,  the  judgment  of  Mr.  Justice  Salter  in 
Newcastle  Breweries  Limited  v.  The  King  ^  involves 
the  proposition  that  the  King  in  Council  has  not 
power  to  issue  regulations  which  will  enable  the 
country  to  acquire  its  necessary  stores  at  less  than 
current  market  prices,  or  at  prices  fixed  by  a  board 
of  arbitrators  and  based  on  cost  and  reasonable 
profit,  Mr.  Justice  Greer  in  Hudson's  Bay  Co,  v. 
Maclay  ^  does  not  agree,  while  Mr.  Justice  Darling 
in  Eohinson  and  Company,  Limited  v.  The  King  ^ 
(decided  under  Regulation  2B)  is  in  accord  with 
Mr.  Justice  Greer. 


The  following  conclusions  may,  it  is  submitted, 
be  drawn  from  the  decisions  upon  the  Defence  of 
the  Realm  Consolidation  Act,  and  the  Regulations  ^ : 

(1)  Regulations  purporting  to  be  made  under  the 
Act  are  only  valid  in  virtue  of  the  authority  which 
Parliament  has  seen  fit  to  delegate.  No  regulation, 
therefore,  can  be  valid  if  the  authority  does  not 
extend  so  widely  as  to  cover  it.  The  authority  is 
in  many  ways  an  extremely  wide  one,  but  the 
limitation  that  regulations  are  to  be  made  '  for  the 
public  safety  and  the  defence  of  the  Realm '  lays 
down  boundaries  which  cannot  effectively  be  passed. 

(2)  Where  a  regulation  is  of  a  character  which 
would,  in  ordinary  circumstances,  fall  within  the 
statutory  objects  and  purposes  thus  defined,  the 
question  may  arise  whether  the  regulation  is  in 
fact  inside  or  outside  this  object  and  purpose. 
There  is  clear  authority  to  show  that  in  such  cases 

1  (1920)  1  K.B.  854.      2  (1920)  36  T.L.R.  469.      ^  ibid.,  773. 
*  For  the  effect  of  the  provisions  of  the  Indemnity  Act,  1920 
(10  &  11  Geo.  V,  c.  48),  vide  p.  158,  post. 


'Jt^  '  ■ ' ; '     ; :    ?  CASE  OF  REQUISITION 

the  Executive  must  be  the  judge  and  that  the 
Courts  cannot  conduct  an  inquiry  into  the  question 
whether  the  pubUc  safety  and  the  defence  of  the 
Realm  in  fact  call  for  a  particular  regulation.^ 

(3)  But  it  is  quite  possible  to  imagine  a  regulation 
which,  having  regard  to  its  subject-matter,  could 
not  be  regarded  as  made  for  the  public  safety  and 
the  Defence  of  the  Realm,  and  in  such  a  case  the 
courts  would  not  hesitate  to  declare  it  invalid.  For 
example,  it  cannot  be  within  the  statutory  purpose 
to  provide  by  regulation  that  a  subject  shall  be 
barred  from  recourse  to  the  courts  of  law ;  and 
a  regulation  which  attempts  to  deprive  a  subject 
of  his  remedy  in  the  courts  has  been  declared  ultra 
vires,^  In  the  same  way  the  much-debated  question 
whether  a  regulation  providing  for  the  internment 
of  a  British  subject  on  the  ground  of  his  hostile 
origin  or  associations  without  previous  conviction 
or  trial  could  be  valid  was  answered  by  a  majority 
of  the  House  of  Lords  in  the  affirmative.^ 

(4)  Certain  other  questions  which  suggest  them- 
selves as  to  the  scope  of  the  Regulations  must  be 
regarded  as  unsettled.  For  example,  the  Regulations 
themselves  could  have  no  operative  effect  beyond 
a  period  defined  by  reference  to  the  '  duration  of 
the  war  '.  But  assuming  a  regulation  to  have  been 
made  at  a  time  when  actual  hostilities  are  still 
proceeding  and  to  have  been  validly  made  for  the 
public  safety  and  the  defence  of  the  Realm,  is  it 

1  Vide,  per  Lord  Parker  in  The  Zamora  (1916)  2  A.C., 
p.  106. 

2  Chester  v.  Bateson  (1920)  1  K.B.  829.  For  the  constitutional 
right  of  access  to  the  Courts,  see  In  re  Boater  (1915)  1  K.B.  21,  per 
Scrutton,  L.T.,  p.  36. 

3  Rex  V.  Halliday  (1917)  A.C.  260. 


DEFENCE  OF  THE  REALM  ACT  103 

clear  that  everything  done  under  such  a  regulation 
down  to  the  time  when  the  war  has  been  technically 
determined  is  valid  ?  Or  can  it  be  successfully 
argued  that  the  validity  of  action  taken  under 
a  regulation  does  not  depend  solely  upon  whether 
the  regulation  was  valid  when  originally  made  and 
whether  the  war  is  still  technically  continuing,  but 
also  upon  whether  the  action  when  taken  can  in 
fact  be  regarded  as  done  for  the  public  safety  and 
the  defence  of  the  Realm  ?  This  question  was 
mooted  in  Rex  v.  Governor  of  Wormwood  Scrubbs 
Prison  ^  but  was  not  decided,  since  the  Divisional 
Court  held  that  in  any  event  the  test  suggested  was 
satisfied  by  the  date  of  the  applicant's  internment. 

To  give  another  illustration :  assuming  a  regula- 
tion relating  to  the  control  of  the  supply  of  food  ^ 
to  have  been  valid  when  made  at  a  time  when  the 
food  supplies  of  the  country  were  being  threatened 
by  German  submarines,  is  the  regulation  necessarily 
such  as  to  authorize  and  justify  administrative 
action  until  the  technical  termination  of  thp  war  ?  ^ 

1  (1920)  2  K.B.  305. 

2  The  office  of  Food  Controller  was  constituted  '  for  the 
purpose  of  economizing  and  maintaining  the  food  supply  of  the 
country  during  the  present  war  '  (New  Ministries  and  Secretaries 
Act,  1916  (6  &  7  Geo.  V,  c.  68)  s.  3).  That  of  the  Shipping 
Controller  was  created  '  for  the  purpose  of  organizing  and 
maintaining  the  supply  of  shipping  in  the  national  interests  in 
connexion  with  the  present  war  '  (ibid.,  s.  5). 

3  Under  the  Termination  of  the  Present  War  (Definition) 
Act,  1918  (8  &  9  Geo.  V,  c.  59)  the  Crown  may  declare  by  Order 
in  Council  what  date  is  to  be  treated  as  the  date  of  termination. 
War  with  Germany  was  declared  to  have  been  terminated  on 
January  10,  1920,  by  an  Order  in  Council  of  February  9,  1920 
(S.R.  &  O.  1920,  no.  264).  An  Order  in  Council  declaring  war 
with  Austria  to  have  been  terminated  on  July  16,  1920,  was  made 
on  July  22  (London  Gazette,  July  23,  1920,  p.  7765). 


104  CASE  OF  REQUISITION 

The  search  for  positive  criteria  by  which  to  test 
the  vaHdity  of  regulations  made  under  the  wide 
powers  conferred  upon  the  Executive  by  the  Defence 
of  the  Realm  Acts  induces  the  reflection  that  such 
interference  with  the  liberty  of  the  subject,  whether 
in  regard  to  person  or  property,  as  may  be  neces- 
sary for  the  successful  prosecution  of  war  should, 
as  far  as  possible,  be  imposed  by  the  direct  authority 
of  Parliament  rather  than  by  administrative  action. 

'  The  form  in  modern  times ',  says  Lord  Shaw  of 
Dunfermline  in  his  dissenting  judgment  in  Rex  v. 
Halliday,  ^  '  of  using  the  Privy  Council  as  the 
executive  channel  for  statutory  power  is  measured, 
and  must  be  measured  strictly,  by  the  ambit  of 
the  legislative  pronouncement.  And  that  channel 
itself,  seeing  that  under  the  Constitution  His  Majesty 
acts  only  through  his  Ministers,  is  simply  the  Govern- 
ment of  the  day.  The  author  of  the  power  is  Parlia- 
ment ;  the  wielder  of  it  is  the  Government.  Whether 
the  Government  has  exceeded  its  statutory  mandate 
is  a  question  ultra  or  intra  vires  such  as  that  which 
is  now  being  tried.  In  so  far  as  the  mandate  has 
been  exceeded,  there  lurk  the  elements  of  a  transition 
to  arbitrary  government  and  therein  of  grave 
constitutional  and  public  danger.  The  increasing 
crush  of  legislative  efforts  and  the  convenience  to 
the  Executive  of  a  refuge  to  the  device  of  Orders 
in  Council  would  increase  that  danger  tenfold  were 
the  judiciary  to  approach  any  action  of  the  Govern- 
ment in  a  spirit  of  compliance  rather  than  of  inde- 
pendent scrutiny.  That  way  also  would  lie  public 
unrest  and  public  peril.  On  all  this  there  is  no 
disputing.' 

1  (1917)  A.C.,  at  p.  287. 


CHAPTER  V 

THE   EFFECT   OF  STATUTE  UPON  THE 
PREROGATIVE 

'  The  word  prerogative  has  been  much  used, 
though  seldom  understood.  The  notion  the  greatest 
men  of  our  law  have  had  of  it,  has  been  that  it  is 
a  power  lodged  in  the  Crown  for  which  there  is  no 
law,  but  not  repugnant  to  any  law.  The  meaning 
is,  the  execution  of  it  being  vested  in  the  King, 
and  it  being  impossible  the  legislature  should  foresee 
all  cases  that  may  happen,  have  left  a  power  with 
the  chief  magistrate  to  use  his  discretion  upon 
extraordinary  occasions,  and  to  exercise  the  supreme 
authority  in  all  cases  where  the  law  of  the  land  has 
not  directed  or  limited  the  execution.'  ^ 

This  description  of  the  prerogative  powers  of  the 
Crown  emphasizes  the  fact  that  the  prerogative 
is  a  survival — the  residue  of  the  discretionary 
powders  of  the  Executive  which  are  not  definitely 
regulated  by  law.  The  history  of  the  prerogative 
is,  therefore,  a  history  of  the  legislation  by  which 
the  executive  functions  of  the  Crown  have  been 
declared,  regulated,  and  restricted.  The  first  stage 
in  this  process  is  mainly  if  not  entirely  declaratory. 
Constitutional  documents  such  as  Magna  Carta, 
the  Bill  of  Rights,  and  the  Act  of  Settlement  are 
often  regarded  as  in  their  nature  contractual, 
representing  a  bargain  between  King  and  people 

^  Dartmouth's  note  to  Burnet's  History  of  his  own  Time 
(Oxford  ed.,  1823,  ii.  98). 


106  CASE  OF  REQUISITION 

arrived  at  by  way  of  compromise  as  the  result  of 
negotiation.^  While  this  view  may  be  accurate  in 
regard  to  the  Act  of  Settlement  it  is  perhaps  hardly 
justified  in  connexion  with  the  two  earlier  documents. 
Magna  Carta,  in  particular,  is  in  its  essence  declara- 
tory of  an  assumed  or  existing  body  of  legal  principle.^ 
The  point  emerges  clearly  in  the  confirmation  of  the 
Great  Charter  in  the  time  of  Edward  I.^  '  Our 
justices,  sheriffs,  mayors,  and  other  ministers  who 
under  us  have  the  laws  of  our  land  to  guide  shall 
allow  the  said  charters  in  pleas  before  them  and 
judgments  in  all  their  points  ;  that  is  to  say  the 
Great  Charter  of  Liberties  as  common  law  and  the 
Charter  of  the  Forest  according  to  the  Assize  of 
the  Forest,  for  the  relief  of  our  people.'  The 
Statute  Book  therefore  commences  with  an  affirma- 
tion of  the  common  law,  embodying  a  declaration 
of  existing  law  rather  than  an  enactment  of  anything 
new.  The  doctrine  that  the  Crown  is  not  bound  by 
statute  unless  specifically  named  only  emerges  in 
the  subsequent  history  of  legislation  when  the 
restrictive  operation  of  statutes  becomes  more 
pronounced. 

Modern  statutes  are,  however,  assumed  to  have 
an  operative  effect,  and  not  merely  to  record 
existing  rights.  '  If  a  statute  merely  recorded 
existing  inherent  powers,  nothing  would  be  gained 

1  Boutmy,  Studies  in  Constitutional  Law^  pt.  i,  s.  iv. 

2  This  aspecj^i  of  the  Great  Charter  is  fully  developed  in 
Professor  Mcllwain's  paper  on  '  Magna  Carta  and  the  Common 
Law  '  in  Magna  Carta  Commemoration  Essays  (193-7).  '  The 
Common  Law  has  been  largely  encroached  on  by  Act  of  Parlia- 
ment, and,  in  our  own  day,  it  is  possible  that  it  may  come  to 
owe  the  whole  of  its  binding  force  to  statute  ',  Maine,  Early 
Hist,  of  Institutions,  p.  361. 

3  25  Edw.  I,  Stat,  i,  c.  1. 


STATUTE  AND  THE  PREROGATIVE         107 

by  the  enactment,  for  nothing  would  be  added  to 
the  existing  law.'  ^  The  general  principles  to  be 
applied  in  construing  statutes  are  thus  summarized 
by  Mr.  Justice  Sankey  in  Attorney-General  v.  Brown,^ 
'  In  construing  an  Act  of  Parliament  it  is,  in  my 
view,  legitimate  to  consider  (1)  the  state  of  the  law 
at  the  time  the  Act  of  Parliament  was  passed,  and 
the  changes  it  was  passed  to  effect ;  (2)  the  sections 
and  structure  of  the  Act  of  Parliament  as  a  whole  ; 
see  Stradling  v.  Morgan,^  where  it  is  said,  '  The 
Judges  of  the  law  in  all  times  past  have  so  far 
pursued  the  intent  of  the  makers  of  statutes,  that 
they  have  expounded  Acts,  which  were  general  in 
words,  to  be  but  particular,  where  the  intent  was 
particular.  .  .  .  The  sages  of  the  law  heretofore  have 
construed  statutes  quite  contrary  to  the  letter  in  some 
appearance,  and  those  statutes  which  comprehend  all 
things  in  the  letter,  they  have  expounded  to  extend 
but  to  some  things, .  . .  which  expositions  have  always 
been  founded  upon  the  intent  of  the  Legislature, 
which  they  have  collected  sometimes  by  considering 
the  cause  and  necessity  of  making  the  Act,  sometimes 
by  comparing  one  part  of  the  Act  with  another  and 
sometimes  by  foreign  circumstances.  So  that  they 
have  ever  been  guided  by  the  intent  of  the  Legisla- 
ture, which  they  have  always  taken  according  to  the 
necessity  of  the  matter,  and  according  to  that  which 
is  consonant  to  reason  and  good  discretion  '  :  and 
see  also  Hey  don's  Case  ^  and  Hawkins  v.  Gather  cole, '^ 
per  Turner,  L.  J.,  where  he  says  :  '  In  determining 
the  question  before  us  we  have  therefore  to  consider 

1  Per  Lord  Sumner,  App.  A,  p.  202.       2  (1920)  1  K.B.  773, 791. 

3  (1560)  Plowd.  199,  204  ;   75  E.R.  305,  312. 

4  (1584)  3  Rep.  7  ;   76  E.R.  637. 

5  (1855)6DeG.M.&G.  1,21. 


108  CASE  OF  REQUISITION 

not  merely  the  words  of  this  Act  of  Parhament  but 
the  intent  of  the  Legislature,  to  be  collected  from 
the  cause  and  necessity  of  the  Act  being  made,  from 
a  comparison  of  its  several  parts,  and  from  foreign 
(meaning  extraneous)  circumstances,  so  far  as  they 
can  justly  be  considered  to  throw  light  upon  the 
subject.' 

These  general  principles  of  construction  are, 
however,  to  be  applied  subject  to  the  rule  which  is 
generally  stated  in  the  form  that  the  Crown  is  nob 
bound  by  a  statute  unless  expressly  named,  a  doctrine 
which  is  thus  formulated  in  Willion  v.  Berkley^: 
'  It  is  usual  for  the  legislature,  in  Acts  of  Restraint 
which  they  intend  to  bind  the  King,  to  name  him 
expressly,  and  if  he  is  not  expressly  named,  it  has 
always  been  taken  heretofore  that  the  legislature 
intended  only  to  bind  the  subjects,  and  to  make  the 
Act  extend  to  them,  and  not  to  the  King,  for  he 
is  favoured  in  all  expositions  of  acts.  And  because 
it  is  not  an  act  without  the  King's  assent,  it  is  to 
be  intended  that  when  the  King  gives  his  assent,  he 
does  not  mean  to  prejudice  himself  or  to  bar  himself 
of  his  liberty  and  privilege,  but  he  assents  that  it 
shall  be  a  law  among  his  subjects.'  ^ 

It  was  contended  in  the  argument  of  the  Case 
on  behalf  of  the  Crown  that  in  case  of  necessity  for 
the  public  defence  the  alleged  prerogative  has  not 
been  abated,  abridged,  or  curtailed  by  any  statute. 
If,  as  has  been  established,  the  Defence  Acts,  1842 
to  1873,^  with  or  without  the  provisions  of  the 
Defence   of   the   Realm   Consolidation  Acts,  1914  * 

1  (1560)  Plowd.  223,  239  ;  75  E.R.  339,  365. 

2  Cited  Attorney-General  v.  Donaldson  (1842)  10  M.  &  W. 
117, 123  ;   152  E.R.  406,  408. 

3  See  p.  10,  ante,  note  1.  *  5  Geo.  V,  c.  8. 


STATUTE  AND  THE  PREROGATIVE         109 

make  all  necessary  provision  to  meet  the  emergency 
with  which  it  became  necessary  to  deal,  there  is 
involved  in  this  contention  the  proposition  that  the 
Crown  has  a  right  to  elect  between  proceeding 
either  at  Common  Law  or  under  the  statutes.  If 
this  proposition  can  be  maintained,  it  follows  that 
the  Crown  may  disregard  the  express  provisions 
of  the  legislature  whatever  may  be  the  restrictions 
or  limitations  imposed  by  statute  upon  the  powers 
which  the  Crown  requires  to  exercise.  The  result 
would  be  that  the  Crown  could  either  act  in  all  cases 
independently  of  the  statutes  and  refuse  to  make 
compensation  ;  or  might  conceivably  discriminate 
as  between  subject  and  subject  '  enriching  one  by 
electing  to  proceed  under  the  statute  and  impoverish- 
ing another  when  it  requisitions  under  the  alleged 
Prerogative  '.^ 

The  only  reference  to  the  prerogative  which  occurs 
in  the  Defence  Acts,  1842  to  1873,  is  in  section  34 
of  the  Act  of  1842,  by  which  power  is  given  to  the 
principal  Officers  of  the  Ordnance  ^  to  sue  under 
their  official  titles  without  naming  the  individuals 
who  for  the  time  being  hold  office  in  that  department. 
The  section  contains  a  proviso  that : 

'  Nothing  herein  contained  shall  be  taken  to  defeat 
or  abridge,  in  any  such  Action,  Suit,  or  other 
Proceedings  the  legal  Rights,  Privileges,  and  Preroga- 
tives of  Her  Majesty,  Her  Heirs,  and  Successors, 
but  that  in  all  such  Actions,  Suits,  or  other  Pro- 
ceedings, brought  or  instituted  in  the  Name  and  on 
behalf  of  the  principal   Officers  of  Her  Majesty's 

1  Per  Lord  Sumner,  App.  A,  p.  203. 

2  Now  the  Principal  Secretary  of  State  for  War,  see  p.  36, 
ante,  note  1. 


110  CASE  OF  BEQUISITION 

Ordnance,  and  in  all  Matters  relating  thereunto, 
it  shall  be  lawful  for  the  said  principal  Officers  to 
claim,  exercise,  and  enjoy  all  the  same  Rights, 
Privileges,  and  Prerogatives  which  have  been  hereto- 
fore claimed,  exercised,  and  enjoyed  in  any  Actions, 
Suits,  or  other  Proceedings  whatsoever  in  any 
Court  of  Law  or  Equity,  by  Her  Majesty  or  Her 
Predecessor  in  the  same  Manner  as  if  the  Subject 
Matter  of  the  said  Suits  or  other  Proceedings  were 
vested  in  the  Crown,  and  as  if  the  Crown  were 
actually  a  Party  to  such  Actions,  Suits,  or  other 
Proceedings  :  Provided  also  that  it  shall  be  lawful 
for  Her  Majesty  to  proceed  by  Information  in  Her 
Court  of  Exchequer,  or  by  any  other  Crown  Process, 
legal  or  equitable,  in  any  Case  in  which  such  Actions, 
Suits,  Arbitrations,  or  other  Proceedings  might  have 
been  otherwise  instituted.' 

The  object  of  the  proviso  is  clearly  to  preserve 
the  prerogative  rights  of  procedure  in  litigation, 
as  for  example  the  right  of  the  Crown  to  refuse  to 
give  discovery  ^  or  the  right  to  select  the  venue.  ^ 
Except  to  this  limited  extent  the  Crown  is  not  named. 
Is  the  Crown  none  the  less  bound  ? 

The  test  is  formulated  in  Bacon's  Abridgement  ^ : — 

'  Where  an  Act  is  made  for  the  public  good,  the 
advancement  of  religion  and  justice,  and  to  prevent 
injury  and  wrong  the  King  shall  be  bound  by  such 
Act,  though  not  particularly  named  therein.  But 
where  a  statute  is  general  and  thereby  any  preroga- 

1  See  Robertson,  Civil  Proceedings  by  and  against  the  Crown, 
p.  598. 

2  Ibid.,  p.  581. 

3  7th  ed.,  p.  462.  Cited  Ex  parte  Postmaster -General :  In  re 
BonJiam  (1879)  10  Ch.  D.  595.  See  also  the  Case  of  Magdalen 
College  (1616)  11  Rep.  74  b  ;  77  E.R.  1247,  and  the  authorities 
cited  in  Chitty,  Prerog.,  c.  xv. 


STATUTE  AND  THE  PREROGATIVE         111 

tive,  right  title  or  interest  is  devested  or  taken  from 
the  King,  in  such  case  the  King  shall  not  be  bound, 
unless  the  statute  is  made  by  express  terms  to 
extend  to  him.' 

These  propositions  are  supported  by  numerous 
ancient  authorities,  of  which  the  following  may  be 
taken  as  illustrations.  There  was  undoubtedly  an 
ancient  customary  right  in  the  Crown  in  virtue 
of  its  prerogative  to  exact  contributions  from 
merchants  for  tonnage  and  poundage,  and  also 
charges  upon  the  wool  merchants  in  respect  of  each 
bale  of  wool,  and  the  like.  But  as  soon  as  the 
Commons  have  made  a  grant  to  the  King  of  a  subsidy 
which,  by  the  terms  of  a  grant,  is  derived  from  one 
of  these  sources,  from  which  the  King  had  by  his 
prerogative  a  right  to  collect  a  contribution,  the 
Statutory  right  is  lost  and  the  revenue  is  thenceforth 
to  be  derived  from  the  grant  and  is  not  to  be  collected 
under  the  prerogative.^ 

Another  illustration  is  to  be  found  in  CrooJce^s 
Case  ^  in  which  the  question  was  whether  the 
King  was  bound  by  a  Statute  ^  by  which  it  was 
enacted  that  two  parishes  in  London  should  be 
united  and  should  be  established  as  one  parish. 
It  was  provided  that  the  first  presentation  should 
be  made  by  the  patron  of  the  living  whereof  the 
endowment  was  of  the  greatest  value.  The  King 
being  the  patron  of  one  living  and  a  subject  of  the 

1  RoUe,  Abr.  Tit.  Prerog.  le  Roy,  p.  180,  no.  50.  See  generally 
on  this  subject,  Hall,  History  of  the  Custom-Revenue. 

2  (1691)  1  Shower  K.B.  208  ;   89  E.R.  540. 

3  22  Car.  II,  c.  11,  s.  68  (1670)  '  An  additional  Act  for  re- 
building the  City  of  London,'  i.e.  after  the  great  fire  of  1666. 
An  earlier  Act  had.  been  passed  in  1666  (18  &  19  Car.  II,  c.  8 : 
19  Car.  II,  c.  3,  Ruff.). 


112  CASE  OF  REQUISITION 

other  and  more  valuable  one,  the  King  nevertheless 
claimed  the  nomination.  The  report  in  Shower  only- 
gives  the  argument.  '  The  King  takes  a  benefit 
by  this  clause  ;  it  is  plain  that  he  is  bound,  for 
otherwise  he  could  not  have  any  presentment  to 
this  Church  at  all,  and,  if  he  take  it,  he  must  take  it 
under  the  mode  and  qualifications  that  the  act  gives 
him.'  In  the  result  the  subject  '  had  institution  and 
enjoyed  it  without  further  trouble  as  ever  I  heard  '.^ 

The  Defence  of  the  Realm  falls  peculiarly  within 
the  province  of  the  Crown.^  '  Where  Parliament 
has  intervened  and  has  provided  by  statute  for 
powers  previously  within  the  Prerogative  being 
exercised  in  a  particular  manner  and  subject  to 
the  limitations  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  upon  the 
Prerogative  ?  ^  And  where  the  whole  field  is  covered 
by  statute,  the  subject-matter  being  identical, 
there  is  '  no  room  for  asserting  an  unrestricted 
Prerogative  right  as  existing  alongside  with  the 
statutory  powers  '.* 

Where  an  Act  of  Parliament  has  according  to  its 
true  construction  '  embraced  and  confirmed '  ^ 
a  right  which  has  previously  existed  by  custom 
or  prescription,   that  right   becomes  henceforward 

1  The  report  adds  '  There  were  two  instances  where  under 
colour  of  this  Prerogative,  the  King's  presentee  was  first  preferred, 
though  his  living  was  of  less  value.  But  this  was  done  by- 
Jeffries,  and  never  contested  '.  ^  Chitty,  Prerog.,  c.  iv,  s.  5. 

3  Per  Swinfen-Eady,  M.  R.  (1919)  2  Ch.,  216,  cited  by  Lord 
Atkinson,  App.  A,  p.  182.        *  Per  Lord  Sumner,  App.  A,  p.  202. 

^  Per  Littledale,  J.,  In  the  matter  of  Islington  Market  Bill 
(1835),  3  CI.  and  F.,  p.  518  ;  6  E.R.  153. 


STATUTE  AND  THE  PREROGATIVE         113 

a  statutory  right.  '  The  lower  title  by  custom  or 
prescription  is  merged  in  and  extinguished  by  the 
higher  title  derived  from  the  Act  of  Parliament '/ 

The  effect  of  statutory  upon  prerogative  powers 
is,  therefore,  that  where  the  subject-matter  is  identi- 
cal,^ and  the  whole  ground  of  something  which 
could  be  done  under  the  Prerogative  is  covered  by 
statute,  it  is  the  statute  that  rules,^  and  the 
statutory  powers  alone  can  be  employed.  The 
Common  Law  powers  are  not  in  the  strict  sense 
merged  in  the  statute ;  it  is  more  accurate  to 
say  *  that  '  when  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, 
and  its  prerogative  power  to  do  it  is  in  abeyance  '.^ 

1  Per  Lord  Shand,  New  Windsor  Corporation  v,  Taylor  (1899) 
A.C.,  p.  49. 

2  Per  Lord  Sumner,  App.  A,  p.  202. 

3  Per  Lord  Dunedin,  App.  A,  p.  172. 
*  Per  Lord  Atkinson,  App.  A,  p.  184. 

5  The  test  as  formulated  in  Bacon's  Abridgement  may  also 
be  regarded  as  an  example  of  the  general  principle  that  the 
Crown  is  bound  by  statute  only  when  the  intention  of  the 
legislature  to  bind  it  is  clear  and  unmistakable  {Wheaton  v. 
Maple  (1893)  3  Ch.,  64).  See  also  In  re  Henley  &  Co.  (1879) 
9  Ch.  D.  469  ;  Coomber  v.  Berks.  Justices  (1883)  9  A.C.  66  ; 
Gorton  Local  Board  v.  Prison  Commissioners  (1887)  reported  in 
note  to  Cooper  v.  Hawkins  (1904)  2  K.B.  164. 


2388 


CHAPTER   VI 

PETITION  OF  RIGHT 


The  form  of  procedure  by  which  the  Supphants 
asserted  and  vindicated  their  legal  rights  involves 
the  recognition  of  certain  prerogative  rights  of  the 
Crown  in  respect  of  litigation.  '  The  King  hath 
a  prerogative  not  to  be  sued  by  writ '  ^  and  it  is 
beyond  dispute  that  an  action  does  not  lie  against 
the  Crown  at  the  suit  of  a  subject.^  '  I  take  it  to 
be  generally  true,'  says  Lord  Somers,^  '  that  in  all 
cases  where  the  subject  is  in  the  nature  of  a  Plaintiff, 
to  recover  anything  from  the  King,  his  only  remedy 
at  Common  Law  is  to  sue  by  petition  to  the  person 
of  the  King.' 

The  remedy  by  Petition  of  Right  has  a  long 
history  which  it  would  be  unnecessary  to  recite  in 
any  detail  in  this  essay.*  Its  origin,  which  is 
surrounded  by  some  obscurity,  has  been  ascribed  to 
a  statute  of  Edward  I — before  whose  time  it  has 
been  said  that  claims  against  the  sovereign  could  be 
brought  by  ordinary  action.^  The  authority  for 
this  statement  is  confined  to  two  statements  by 

1  Staundford,  Praerog.,  p.  42a. 

2  Com.  Dig.  Action,  c.  1  ;  Chitty,  Prerog.,  p.  339 ;  Dicey, 
Parties  to  an  Action,  p.  5. 

3  The  Bankers'  Case  (1700)  14  How.  St.  Tr.  184. 

*  See  the  learned  work  on  Petition  of  Right  by  the  late 
Walter  Clode,  to  which  the  authors  desire  to  acknowledge  their 
indebtedness  in  preparing  the  following  historical  summary. 

^  Cutbill,  Inquiry  into  the  History  and  Nature  of  Petition  of 
Bight  (1874).    Allen,  Essay  on  the  King's  Prerogative  (1849),  p.  95. 


PETITION  OF  RIGHT  115 

counsel  in  argument  and  two  judicial  dicta — all  in 
the  reign  of  Edward  III/  No  such  statute  has  been 
found  ;  and  an  unrestricted  right  to  sue  the  Crown 
is  hardly  consistent  with  the  constitutional  position 
of  the  Crown  at  this  time,  or  with  the  course  of 
development  followed  by  English  civil  procedure. 
'  It  is  not  probable ',  says  Erie,  C.  J.,  in  Tohin  v. 
The  Queen ^  '  that  the  subject  would  have  a  defined 
right  to  the  writ  against  the  King  when  the  rights 
between  subject  and  subject  and  the  writs  for 
enforcing  them  were  in  an  unsettled  state.' 

Whatever  may  be  the  origin  of  this  form  of  pro- 
cedure, the  practice  of  petitioning  the  Crown  in 
Parliament  for  the  redress  of  grievances  dates  back 
to  an  early  period  and  was  regulated  and  developed 
in  the  reign  of  Edward  I.  Petitions  were  common 
in  regard  to  grievances  which  could  only  be  remedied 
by  the  benevolence  of  the  Crown  as  well  as  to  matters 
of  complaint  which  might  properly  form  the  subject 
of  investigation  by  legal  tribunals.  Petitions  of 
both  classes  are  to  be  found  in  great  numbers  in  the 
Rolls  of  Parliament.  The  great  variety  of  matters 
led  to  a  classification  of  petitions  according  to  the 
remedy  which  was  considered  appropriate.  Thus 
if  the  petition  touched  the  revenue,  or  was  a  matter 
of  account  between  the  subject  and  the  Crown,  it 
was  referred  to  the  Treasurer  and  Barons  of  the 
Exchequer  ;  if  a  pure  matter  of  law,  to  the  ordinary 
tribunals ;  if  a  matter  of  local  custom,  to  the 
Chancellor.  If  no  appropriate  tribunal  existed, 
a  special  tribunal  was  created  in  the  form  of  a  body 
of    commissioners,    to    inquire    and   report    to   the 

1  Set  out,  Clode,  Petition  of  Right,  p.  3,  where  the  adverse 
statements  of  text  writers  are  also  collected. 

2  (1864)  16  C.B.  (N.S.),  310,  p.  357  ;    143  E.R.  1148,  p.  1166. 

12 


116  CASE  OF  REQUISITION 

King.  In  regard  to  matters  which  involved  a  claim 
against  the  Crown  founded  on  legal  considerations 
the  petitions  were  apparently  confined  to  claims 
for  the  restitution  of  property.  In  such  cases  the 
question  of  title  was  referred  to  commissioners  in 
order  that  the  facts  might  be  ascertained,  after 
which  the  petition  was  remitted  to  a  regular  legal 
tribunal  for  adjudication. 

Parliament  having,  as  early  as  the  reign  of 
Edward  I,  become  overburdened  with  the  multiplicity 
of  petitions,  two  statutes  were  enacted  to  relieve  the 
pressure.  The  object  of  the  Statute  of  Petitions  ^ 
and  of  the  Ordinance  of  Petitions  ^  was  to  transfer 
to  the  Chancellor,  the  Exchequer,  and  the  Judges 
such  petitions  as  fell  within  their  respective  pro- 
vinces. But  there  remained  a  substantial  residue 
which  continued  to  be  presented  to  Parliament 
until,  in  the  reign  of  Richard  II,  a  threefold  division 
of  bills  and  petitions  was  adopted.  Firstly,  '  Bills 
of  Parliament '  were  heard  in  open  Parhament,  and 
on  receiving  the  Royal  Assent  became  statutes. 
Secondly,  '  Bills  of  Council ',  which  included  all  the 
remaining  petitions  except  those  for  which  the 
personal  answer  of  the  King  was  necessary,  no  longer 
went  before  Parliament  to  be  referred  to  a  commission, 
but  were  dealt  with  by  committees  of  the  King's 
Council^ — which  in  course  of  time  developed  into  such 
tribunals  as  the  Court  of  Chancery,  the  Privy  douncil, 
the  Star  Chamber,  and  the  Court  of  Requests. 

1  8  Edw.  I  (1280),  Clode,  p.  15.  Not  in  RufPhead  or  in  the 
Statutes  of  the  Realm. 

2  12  Edw.  I  (1284),  Clode,  p.  15.  Not  printed  in  the  collec- 
tions referred  to.  For  legislation  by  Ordinance  at  this  time,  see 
Maitland,  Constitutional  History,  p.  186. 

3  Clode,  p.  17.     Baldwin,  The  King's  Council,  pp.  188,  258,  284. 


'      PETITION  OF  RIGHT  117 

Finally,  petitions  which  contained  legal  claims 
against  the  Crown,  that  is  to  say  claims  in  which 
the  subject  asserted  a  legal  right  were  classified  as 
Bills  of  Grace,  and  '  baillez  au  Eoy  mesmes '. 
These  still  required  an  answer  or  endorsement  by 
the  King.  It  is  this  procedure  which  has  survived 
in  substance,  although  with  considerable  modifica- 
tions in  the  direction  of  simpHcity,  to  the  present 
day,  in  the  modern  form  of  a  Petition  of  Right. 

II 

The  old  procedure,  although  not  abolished  by 
the  Petitions  of  Right  Act,  1860,^  which  merely 
provides  an  alternative,  was  exceedingly  antiquated 
and  cumbersome,  and  is  not  likely  to  be  adopted 
in  future  by  any  litigant  who  may  have  occasion  to 
present  a  legal  claim  against  the  Crown.  The 
arcana  of  the  subject  may  be  studied  in  Baron  de 
Bode  V.  The  Queen, ^  which  was  commenced  in 
1839  and  finally  decided  by  the  House  of  Lords  in 
1851,  and  is  reported  in  all  its  stages. 

The  effect  of  the  Petitions  of  Right  Act,  1860,^ 
is  to  apply  the  existing  practice  of  the  Courts  to 
petitions  of  right,  subject  to  such  prerogative  rights 
of  the  Crown  as  existed  at  the  date  when  the  act 
became  law.^    Section  7  provides  that : 

1  23  &  24  Vict.,  c.  24. 

2  (1840)  2  Ph.  85  ;  41  E.R.  874  ;  1  Coop.  t.  Cott.  143  ; 
47  E.R.  786  ;  (1845)  8  Q.B.  208  ;  115  E.R.  854  ;  (1848)  13 
Q.B.  364  ;  116  E.R.  1302  ;  (1851)  3  H.L.C.  449  ;  10  E.R.  176. 
See  also  In  re  Robson  (1846)  2  Ph.  84  ;  41  E.R.  873  ;  In  re  von 
Frantzius  (1858)  2  DeG.  &  J.  126 ;  44  E.R.  936 ;  In  re  Bolt 
(1859)  2  DeG.  &  J.  44  ;  45  E.R.  18. 

3  The  procedure  under  the  Petitions  of  Right  Act,  1860 
(23  &  24  Vict.,  c.  24)  is  applied  to  Ireland  by  the  Petitions  of 


118  CASE  OF  REQUISITION 

'  So  far  as  the  same  may  be  applicable,  and  except 
in  so  far  as  may  be  inconsistent  with  this  Act,  the 
laws  and  Statutes  in  force  as  to  pleading,  evidence, 
hearing  and  trial,  security  for  costs,  amendment, 
arbitration,  special  cases,  the  means  of  procuring 
and  taking  evidence,  set-off,  appeal,  and  proceedings 
in  error  in  suits  in  equity,  and  personal  actions 
between  subject  and  subject,  and  the  practice  and 
course  of  procedure  of  the  said  Courts  of  Law  and 
Equity  respectively  for  the  time  being  in  reference 
to  such  suits  and  personal  actions,  shall  unless  the 
Court  in  which  the  petition  is  prosecuted  shall 
otherwise  order,  be  apphcable  and  apply  and  extend 
to  such  petition  of  right.  Provided  always  that 
nothing  in  this  Statute  shall  be  construed  to  give 
to  the  subject  any  remedy  against  the  Crown  in 
any  case  in  which  he  would  not  have  been  entitled 
to  such  remedy  before  the  passing  of  this  Act.' 

The  procedure  is,  therefore,  assimilated  to  that 
which  governs  actions  between  ordinary  litigants.^ 
But  that  the  Crown  can  still  be  sued  only  if  it 
consent  is  made  clear  by  section  2  of  the  Act  which 

Right  (Ireland)  Act,  1873  (36  &  37  Vict.,  c.  69)  with  the  necessary 
modifications.  In  Scotland  the  procedure  by  Petition  of  Right 
is  unknown  and  the  Crown  may  be  sued  like  a  subject — see 
20  &  21  Vict.,  c.  44  :  'An  Act  to  regulate  the  Institution  of 
Suits  at  the  instance  of  the  Crown  and  the  Public  Departments 
in  the  Courts  of  Scotland,'  section  1  of  which  provides  that 
suits  may  be  raised  in  the  name  and  at  the  instance  of  or  directed 
against  Her  Majesty's  Advocate  for  the  time  being.  Petitions 
of  Right  in  the  Colonies  and  Dependencies  are  regulated  by  a 
number  of  Colonial  Statutes  and  ordinances  which  are  tabulated 
by  Clode,  App.  B.  In  India  suits  against  the  Crown  are  brought 
against  the  Secretary  of  State  in  Council  (Government  of  India 
Act,  1858  (21  &  22  Vict.,  c.  106),  s.  65 ;  Doss  v.  Secretary  of 
State  for  India  in  Council  (1875)  L.R.  19  Eq.  509). 

^  For  the  details  of  the  practice,  see  Robertson,  Civil  Pro- 
ceedings by  and  against  the  Crown,  Book  III. 


PETITION  OF  RIGHT  119 

governs  the  initial  stages  of  a  Petition  of  Right  by 
providing  that 

'  The  said  petition  shall  be  left  with  the  Secretary 
of  State  for  the  Home  Department,  in  order  that  the 
same  may  be  submitted  to  Her  Majesty  for  Her 
Majesty's  gracious  consideration,  and  in  order  that 
Her  Majesty,  if  she  shall  think  fit,  may  grant  her 
fiat  that  right  be  done,  and  no  fee  or  sum  of  money 
shall  be  payable  by  the  Suppliant  on  so  leaving  such 
petition,  or  upon  his  receiving  back  the  same.' 

The  practice  is  as  follows.  The  Home  Secretary, 
in  order  to  qualify  himself  to  advise  the  Crown 
whether  the  petition  shall  be  allowed  to  proceed, 
forwards  the  petition  to  the  department  of  state 
concerned — the  Admiralty,  War  Office,  or  as  the 
case  may  be,  and  obtains  from  such  department 
a  memorandum  dealing  with  the  questions  raised 
in  the  petition.  The  petition  and  memorandum  are 
then  forwarded  to  the  Law  Officers  of  the  Crown 
who  advise  whether  the  case  is  one  in  which  a  fiat 
ought  to  be  granted. 

Obviously  the  Home  Secretary  ought  not  capri- 
ciously to  refuse  to  consider  a  petition,^  although 
it  has  been  doubted  ^  whether  in  so  improbable  Un 
event  any  legal  remedy  is  available  to  the  subject.^ 

1  In  Ryves  v.  Duke  of  Wellington  (1846)  9  Beav.  p.  600  ; 
50  E.R.  475  (decided  in  1846,  before  the  passing  of  the  Petitions 
of  Right  Act)  Lord  Langdale,  M.R.,  says  '  I  am  far  from  thinking 
that  it  is  competent  to  the  King,  or  rather  to  his  responsible 
advisers,  to  refuse  capriciously  to  put  into  a  due  course  of  investi- 
gation any  proper  question  raised  on  a  Petition  of  Right.  The 
form  of  the  application  being,  as  it  is  said,  to  the  grace  and  favour 
of  the  King  affords  no  foundation  for  any  such  suggestion  \ 

2  In  re  Mitchell  (1896)  13  T.L.R.  324. 

3  In  Manning's  Exchequer  Practice  (1827)  at  p.  84  it  is  stated 
that  the  prayer  of  the  Petition  is  granted  ex  debito  justitiae. 


120  CASE  OF  REQUISITION 

But  if  section  2  imposes  upon  the  Home  Secretary 
a  duty  to  the  Supphant  as  well  as  to  the  Crown,  it 
may  be  that  the  Courts  would  enforce  it.  An 
instance  of  an  action  in  which  damages  were  claimed 
against  the  Home  Secretary  for  failing  to  submit 
a  Petition  of  Right  to  the  Crown  is  to  be  found 
in  Irwin  v.  Grey,^  in  which  the  Home  Secretary 
was  called  as  a  witness  by  the  plaintiff  and  gave 
evidence  that  he  had  submitted  the  Petition,  but 
had  advised  that  a  fiat  be  not  granted.  It  was 
held  that  there  was  no  case  to  go  to  the  jury,  and 
the  action  failed  upon  the  facts. 

The  responsibility  for  advising  the  Crown  whether 
a  petition  ought  to  be  allowed  to  proceed  rests  with 
the  law  officers  of  the  Crown,  who  are  accountable 
to  Parliament,  and  to  Parliament  alone,  for  such 
advice  as  they  may  tender.  That  the  granting  of 
a  fiat  remains  an  act  of  grace  is  clear  from  the 
wording  of  the  section.  '  It  is  said ',  says  Erie,  C.  J., 
in  ToUn  v.  The  Queen,^  '  that  sect.  7  of  23  &  24 
Vict.,  c.  34  applies,  and  that  the  legislature  has 
taken  away  the  Queen's  prerogative  and  gives 
a  right  of  action.  I  think  that  the  words  of  the 
statute  by  no  means  justify  that  statement.  The 
words  of  sect.  2,  so  far  from  giving  the  subject 
a  right  of  action  against  the  Queen  absolutely, 
which  every  subject  has  who  claims  to  have  an  action 
against  a  fellow-subject  by  suing  out  a  writ,  are  as 

This  presumably  refers  to  the  granting  of  the  prayer  after  the 
Suppliant  has  established  his  right  by  prosecuting  his  petition 
in  the  Courts.  The  statement  in  Chitty  {Prerog.,  p.  341)  that 
*  a  petition  is  the  birth-right  of  the  subject '  cannot  be  taken 
literally. 

1  (1862)  3  F.  &  F.  635. 

2  (1863)  As  reported  32  L.J.C.P.  at  p.  221.  The  report  in 
14  C.B.  (N.S.)  at  p.  521 ;  143  E.R.  549  is  not  so  clear  on  this  point. 


PETITION   OF  RIGHT  121 

follows  (he  then  quotes  part  of  the  section).  The 
prerogative  is  recognised  and  remains.'  ^ 

It  may  be  urged  that  some  restriction  on  the 
right  to  bring  actions  against  the  Crown  is  in  accor- 
dance with  public  policy,  and  that  in  the  absence 
of  some  form  of  control  the  Courts  might  be  bur- 
dened with  large  numbers  of  actions  in  support  of 
entirely  unfounded  claims.  From  this  point  of 
view  the  survival  of  the  prerogative  right  of  the 
Crown  is  not  without  its  use  as  providing  machinery 
for  the  elimination  of  frivolous  proceedings.  It  has 
been  said  to  exist  '  for  the  purpose  of  reconciling 
the  dignity  of  the  Crown  and  the  rights  of  the 
subject,  and  to  protect  the  latter  against  any  injury 
arising  from  the  rights  of  the  former  '.^ 

In  practice  it  is  extremely  unlikely  that  a  fiat 
would  be  refused  in  any  case  in  which  any  real  issue 
would  fall  to  be  determined.  '  Everybody  knows ', 
says  Bowen,  L.  J.,^  '  that  that  fiat  is  granted  as 
a  matter,  I  will  not  say  of  right,  but  as  a  matter  of 
invariable  grace  by  the  Crown  whenever  there  is 
a  shadow  of  a  claim,  nay,  more,  it  is  the  constitu- 
tional duty  of  the  Attorney-General  not  to  advise 
a  refusal  of  the  fiat  unless  the  claim  is  frivolous.' 

^  While  the  appeal  in  the  Case  was  pending  in  the  Court  of 
Appeal  and  in  the  House  of  Lords  the  fiat  to  numerous  Petitions 
of  Right  was  refused  on  the  ground  that  the  decision  in  the  Case 
would  determine  the  legal  rights  of  the  several  petitioners  and 
would  render  it  unnecessary  that  these  petitions  should  proceed 
to  trial.  The  refusal  was  not  absolute,  the  granting  of  the  fiat 
being  merely  suspended  for  the  time  being.  Some  of  these 
petitions  have  received  the  fiat  since  the  decision  of  the  House 
of  Lords  in  the  Case.  For  the  effect  of  the  Indemnity  Act 
(10  &  11  Geo.  V,  c.  48)  see  p.  158,  'post. 

2  Per  Lord  Cottenham,  L.  C,  Monclcton  v.  Attorney -General 
(1850)  2  Mac.  &  G.  402,  412  ;  42  E.R.  156,  160. 

3  In  re  Nathan  (1884)  12  Q.B.D.  479. 


122  CASE  OF  REQUISITION 

If  the  procedure  by  Petition  of  Right  were 
abolished,  sufficient  protection  might  perhaps  be 
afforded  by  extending  the  jurisdiction  of  the  High 
Court  to  stay  actions  which  are  frivolous  or  vexatious 
or  which  disclose  no  reasonable  cause  of  action.^ 

Ill 

The  Petitions  of  Right  Act  ^  relates  purely  to 
procedure  and  affords  little,  if  any,  assistance  in 
determining  the  nature  of  the  rights  which  form 
the  proper  subject-matter  of  a  petition.  The 
proviso  to  section  2  makes  it  clear  that  '  nothing  in 
this  statute  shall  be  construed  to  give  to  the  subject 
any  remedy  against  the  Crown  in  any  case  in  which 
he  would  not  have  been  entitled  to  such  remedy 
before  the  passing  of  this  Act '.  '  Relief  '  is  by 
sect.  16  declared  to  '  comprehend  every  species  of 
relief  claimed  or  prayed  for  in  any  such  Petition  of 
Right  whether  a  restitution  of  any  incorporeal 
right,  or  a  return  of  lands  or  chattels,  or  a  payment 
of  money  or  damages,  or  otherwise ',  while  the  form 
of  rehef  is  to  be  by  way  of  a  Declaration  of  the 
SuppHant's  right  (sect.  9).  The  procedure  under 
this  section  is  therefore  analogous  to  that  which  is 
provided  under  Order  25,  rule  5,  of  the  Rules  of  the 
Supreme  Court  in  respect  of  declaratory  .judge- 
ments  in   actions    between    subjects.^     The    right 

^  Where  a  contract,  the  subject  of  a  Petition  of  Right,  con- 
tains a  submission  to  arbitration,  proceedings  may  be  stayed 
under  sect.  4  of  the  Arbitration  Act,  1889  (52  &  53  Vict.  c.  49) 
but  a  stay  will  not  necessarily  be  granted  at  the  instance  of  the 
Crown  where  a  dispute  involves  an  important  constitutional 
question — Anglo-Newfoundland  Development  Co.  v.  R.  (1920) 
2  K.B.  214. 

2  23  &  24  Vict.,  c.  34. 

^  Under  this  rule  *  the  Court  may  make  binding  declarations 


PETITION  OF  RIGHT  123 

having  been  declared,  the  Crown  will  cause  effect 
to  be  given  to  it,  while  machinery  is  provided  for 
the  satisfaction  by  the  Treasury  of  a  judgment 
for  any  sum  of  money  due,  and  for  costs,  upon  the 
judgment  being  certified  by  one  of  the  judges  of 
the  Court  in  which  such  petition  shall  have  been 
prosecuted  (sections  13  &  14). 

While  the  procedure  is  now  regulated  by  the  Act 
of  1860,  it  is  necessary,  in  order  to  ascertain  whether 
any  particular  complaint  can  properly  be  prosecuted 
by  means  of  that  procedure,  to  inquire  whether  the 
category  of  claims  which  can  form  the  subject- 
matter  of  a  Petition  of  Right,  embraces  all  causes 
of  action  which  can  be  prosecuted  as  between 
subject  and  subject,  or  whether  it  is  confined 
within  narrower  limits.  That  the  ambit  of  the 
procedure  is  not  wider  than  that  which  applies 
between  subjects  is  clear,  for  the  remedy  is  restricted 
to  claims  founded  upon  a  legal  cause  of  action. 

of  right  whether  any  consequential  relief  is  or  could  be  claimed 
or  not '.  For  the  principles  governing  the  granting  of  relief  by 
way  of  declaration,  which  is  a  matter  of  discretion,  see  Guaranty 
Trust  Co.  V.  Hannay  (1915)  2  K.B.  536.  The  procedure  enables 
an  action  to  be  brought  against  the  Attorney- General  as  repre- 
senting the  Crown,  and  this  offers  an  alternative  (in  certain  cases) 
to  proceeding  by  Petition  of  Right.  It  is  apparently  a  condition 
that  the  rights  of  the  Crown  be  not  directly  affected — Dyson  v. 
Attorney -General  (1911)  1  K.B.  410,  following  Hodge  v.  Attorney- 
General  (1839)  3  Y.  &  C.  Ex.  342.  For  an  instance  in  which 
a  declaration  was  obtained  against  an  officer  of  a  pubUc  depart- 
ment as  defendant,  the  Attorney-General  not  being  joined  as 
a  party,  see  China  Mutual  Steam  Navigation  Co.  v.  Maclay  (1918) 
1  K.B.  33.  An  action  is,  however,  not  maintainable  against 
a  servant  of  the  Crown  for  a  declaration  as  to  the  construction 
of  a  contract,  for  the  reason  that  substantive  reUef  can  be  only 
claimed  against  the  Crown  itself  by  Petition  of  Right — Hosier  v. 
Earl  of  Derby  (1918)  2  K.B.  671  ;  see  also  Bombay  and  Persia 
Steam  Navigation  Co.,  Ltd.  v.  Maclay,  The  Times,  July  15,  1920. 


124  CASE  OF  REQUISITION 

Thus  in  Baron  de  Bode  v.  The  Queen, ^  in  answer  to 
a  suggestion  by  Mr.  Serjeant  Manning  that  the 
proceeding  by  Petition  of  Right  did  not  render  it 
necessary  for  the  Supphant  to  show  a  legal  right, 
and  that  it  was  sufficient  for  him  to  show  that  his 
claim  was  founded  in  justice,  Maule,  J.  is  reported 
to  have  observed  that  neither  the  Queen's  Bench 
nor  any  other  Court  of  Law  administers  justice  in 
general ;  and  that  if  the  Suppliant's  claim  was  not 
cognizable  by  the  Queen's  Bench  in  law,,  it  might 
be  that  the  Court  had  no  power  to  give  any  judg- 
ment at  all.  Similarly  in  Feather  v.  The  Queen  ^ 
Lord  Coleridge,  C.  J.,  says  that  '  the  Petition  of 
Right,  unlike  a  petition  addressed  to  the  grace  and 
favour  of  the  sovereign,  is  founded  on  the  violation 
of  some  right  in  respect  of  which,  but  for  the 
immunity  from  all  process  with  which  the  law  sur- 
rounds the  person  of  the  Sovereign,  a  suit  at  law  or 
equity  could  be  maintained.  The  petition  must 
therefore  show  on  the  face  of  it  some  ground  of 
complaint  which,  but  for  the  inability  of  the  subject 
to  sue  the  Sovereign,  might  be  made  the  subject  of 
a  judicial  proceeding.'  In  this  respect,  the  ambit 
of  a  Petition  of  Right  is  not  wider  than  that  which 
embraces  actions  between  subjects.  Thus  a  servant 
of  the  Crown,  whether  civil  ^  or  military,*  who  holds 
his  office  only  during  the  pleasure  of  the  Crown  has 
no  right  of  action,  and  a  Petition  of  Right,  even 
if  allowed  to  proceed  to  trial,  would  be  dismissed. 

1  (1848)  13  Q.B.  387  n.  ;    116  E.R.  1311  n. 

2  (1865)  6  B.  &  S.  295  ;   122  E.R.  1205. 

3  Shenton  v.  Smith  (1895)  A.C.  229  ;  De  Dohse  v.  The  Queen 
(1886)  66  L.J.Q.B.  422  n.  ;  3  T.L.R.  114 ;  Dunn  v.  The  Queen 
(1896)  1  Q.B.  116. 

*  Mitchell  V.  The  Queen  (1896)  1  Q.B.  121  n. ;  Leaman  v. 
The  King  (1920)  36  T.L.R.  835. 


PETITION  OF  RIGHT  126 

If,  then,  a  Petition  of  Right  must  be  founded 
upon  the  assertion  of  a  legal  right,  it  follows  that 
there  may  be  cases  in  which  the  procedure  is 
inapplicable  because  the  Crown  is  not  legally  liable 
for  acts  which,  if  done  by  a  subject,  would  give 
a  good  cause  of  action  as  between  subject  and 
subject.  To  this  extent,  the  remedy  by  Petition  of 
Right  may  be  said  to  cover  a  more  limited  category 
of  complaints  than  is  open  to  a  subject  when  suing 
a  fellow  subject.  A  familiar  illustration  of  this 
limitation  may  be  drawn  from  the  fact  that  pro- 
ceedings founded  upon  tort  cannot  be  sustained 
against  the  Crown — a  point  which  was  finally 
decided  in  Tobin  v.  The  Queen  ^  after  an  exhaustive 
examination  of  the  authorities.  The  principle  that 
'  the  King  can  do  no  wrong  '  does  not  merely  relieve 
the  sovereign  from  personal  liability  for  a  tort,  but 
goes  further.  If  the  King  can  do  no  wrong,  it 
follows  that  he  cannot  authorize  a  wrong.  The 
maxim  respondeat  swperior  cannot,  therefore,  apply 
to  transfer  from  an  officer  to  the  Crown  liability 
for  a  tortious  act  done  by  such  officer.^  To  say 
that     a     Petition     of    Right  •  '  does    not    lie '     in 

1  (1864)  16  C.B.  (N.S.)  310  ;   143  E.R.  1148. 

2  See  also  Feather  v.  The  Queen  (1865)  6  B.  &  S.  257,  per  Cock- 
burn,  L.  C.  J.,  at  p.  296,  who  points  out  that  it  does  not  follow 
that  a  subject  sustaining  a  legal  wrong  at  the  hands  of  a  minister 
of  the  Crown  is  without  a  remedy.  Instances  in  which  damages 
have  been  recovered  against  a  servant  of  the  Crown  who  has 
acted  without  or  in  excess  of  his  authority  are  numerous.  See 
e.  g.  the  litigation  arising  out  of  the  issue  of  general  warrants, 
Mcmey  v.  Leax^h  (1765)  19  How.  St.  Tr.  1001  ;  3  Burr.  1692, 
1765  ;  97  E.R.  1050,  1075  ;  3  W.  Blackst.  555  ;  96  E.R.  320 ; 
WilkesY.  Wood  (1763)  19  How.St.Tr.  1153;  Lofft  1 ;  98  E.R.489  ; 
Wilkes  V.  Lcyrd  Halifax  (1769)  19  How.  St.  Tr.  1076  ;  Entich  v. 
Carrington  (1765)  19  How.  St.  Tr.  1030  ;  2  Wils.  275  ;  95  E.R. 
807.    The  practice  of  the  Crown  to  indemnify  an  ofl&cer  against 


126  CASE  OF  REQUISITION 

respect  of  a  tort  is  merely  to  affirm  and  illustrate 
the  principle  that  inasmuch  as  no  legal  right 
of  action  arises  against  the  Crown  where  the 
complaint  is  founded  on  tort,  such  a  complaint  is 
not  one  upon  which  a  right  to  redress  can  be  asserted 
by  .means  of  any  form  of  legal  procedure.  If  the 
procedure  by  Petition  of  Right  were  to  be  abolished, 
a  subject  complaining  of  a  tortious  act  would  be  in 
no  better  position,  for  he  would  be  unable  to  frame 
a  cause  of  action  against  the  Crown  which  the 
Courts  would  entertain.  The  exclusion  of  claims 
founded  upon  tort  is  not  due  to  any  arbitrary  or 
inherent  hmitation  upon  the  classes  of  cases  to  which 
the  procedure  by  Petition  of  Right  is  applicable 
but  to  the  fact  that  a  ground  of  complaint  which 
may  give  a  good  cause  of  action  as  between  subjects 
does  not  necessarily  disclose  a  cause  of  action  against 
the  Crown. 

Apart  from  cases  of  tort,  there  is  now  little,  if  any, 
distinction  between  causes  of  action  which  may  be 
prosecuted  between  subjects  and  causes  of  action 
which  can  properly  form  the  subject  of  a  Petition  of 
Right ;  but  it  is  only  in  comparatively  recent  times 
that  the  absence  of  any  such  distinction  has  been 
definitely  recognized,  and  the  judgments  in  the  case, 
as  will  be  seen,  contribute  to  its  final  obliteration. 

A  notion  that  a  Petition  of  Right  lies  only  in  cases 
in  which  questions  of  title  are  in  dispute,  or  at  the 
most  for  the  recovery  of  specific  sums  of  money, 

whom  judgment  is  obtained,  thereby  securing  to  the  Plaintiff 
the  fruits  of  his  judgment,  may  be  illustrated  by  reference  to 
colUsion  cases  in  Admiralty  in  which  a  King's  ship  is  involved. 
The  Navigation  officer  is  sued  as  defendant,  the  defence  being 
undertaken  by  the  Treasury-Solicitor — H.M.8.  Sans  Pareil 
(1900),  P.  267. 


PETITION  OF  RIGHT  127 

or  of  chattels,  was  apparently  entertained  by  the 
older  text  writers,  and  receives  some  support  from 
the  fact  that  there  is  until  recent  times  an  almost 
entire  absence  of  claims  founded  upon  contract. 
Staundford,  writing  in  the  year  1573,^  says  :  '  Peti- 
tion is  all  the  remedy  the  subject  hath  when  the 
King  seizeth  his  lands  or  taketh  away  his  goods 
from  him,  having  no  title  by  order  of  his  laws  so  to 
do  in  which  case  the  subject  for  his  remedy  is  driven 
to  sue  unto  his  Sovereign  by  way  of  petition  only, 
for  other  remedy  hath  he  none.'  Blackstone, 
writing  nearly  two  hundred  years  later,^  expresses 
himself  in  similar  terms.  Petition  of  Right  'is  of 
use  where  the  King  is  in  full  possession  of  the 
hereditaments  or  chattels  and  the  party  suggests 
such  a  right  as  controverts  the  title  of  the  Crown, 
grounded  on  facts  disclosed  in  the  Petition  itself  '.^ 
In  the  early  part  of  the  nineteenth  century  it  was 
recognized  that  the  remedy  by  Petition  of  Right 
occupies  a  wider  field.  Thus  Chitty,  in  his  work 
on  the  Prerogative  published  in  1820,  after  quoting 
the  passage  already  cited  from  Staundford,  adds  * : 
'  A  Petition  seems  also  to  be  the  only  remedy  where 
a  King  does  not  pay  a  debt,  as  an  annuity  or  wages, 
etc.,  due  from  him,  or  in  the  case  of  unliquidated 
damages  occasioned  by  any  breach  of  contract 
with  the  King  himself  ;  or  in  case  the  King,  without 
any  office,  take  or  detain  a  subject's  goods.' 
Manning  ^  regards  the  Petition  as  '  in  the  nature  of 
an  action  against  the  King,  or  of  a  writ  of  right 
against  the  party,  though  chattels  real,  or  personal, 

1  Praerog.,  c.  xxii. 

2  The  Commentaries  were  first  published  in  1765. 

3  Comm.  iii.  256.  *  p.  344. 
5  Exchequer  Practice  (1827),  p.  84. 


128  CASE  OF  REQUISITION 

debts  or  unliquidated  damages  may  be  recovered 
under  it '. 

The  fact  that  Petitions  of  Right  were  until 
recently  confined  almost  exclusively  to  claims  for 
the  restitution  of  property  is  doubtless  due  to  the 
practice  under  which  money  claims  were  not  in 
fact  prosecuted  in  the  ordinary  Courts  of  law,  but 
were  presented  to  the  authorities  of  the  Treasury, 
who  secured  that  money  claims,  when  properly 
authenticated  were  paid  under  the  authority  of 
Royal  Warrants.^  There  was  thus  a  special  form 
of  procedure  for  the  payment  of  debts,  initiated  by 
petition,  although  not  (in  the  technical  sense)  by 
a  Petition  of  Right.  If  the  claim  was  not  disputed, 
authority  to  pay  was  given  to  the  officials  in  the 
form  of  a  writ  of  '  liberate  '  which  issued  under  the 
Great  Seal.  Where  the  claim  was  referred  for 
adjudication  it  was  heard  before  the  Treasurer  and 
Barons  of  the  Exchequer,  whose  ultimate  endorse- 
ment of  the  petition  constituted  sufficient  authority 
to  the  Treasury  for  payment.  There  being  therefore 
a  special  procedure  for  the  payment  of  claims  pre- 
sented to  the  Treasury  the  procedure  by  Petition 
of  Right  was  limited  to  cases  in  which  specific 
property  was  sought  to  be  recovered  from  the 
Crown.  The  limited  category  of  claims  to  which, 
according  to  Blackstone,  it  was  appropriate  in  his 
time  is  thus  explained. 

It  is  a  remarkable  fact  that  the  remedy  by  Petition 
of  Right  would  appear  to  have  remained  dormant 
from  about  the  year  1550  until  about  1800,  during 
which  period  there  appear  to  be  no  recorded  cases.^ 
The  explanation  suggested  byClode  is  that  the  class  of 

1  Clode,  p.  21.  2  Ibid.,  65. 


PETITION  OF  RIGHT  129 

claims  to  which  it  was  regarded  as  pecuharly 
appHcable  was  in  respect  of  property  which  came 
into  the  possession  of  the  Crown  through  the  working 
of  the  feudal  system  with  its  fines,  forfeitures,  and 
escheats.  The  greater  proportion  of  this  class  of 
business  came  to  be  dealt  with  by  alternative  forms 
of  procedure  known  as  '  monstrans  de  droit '  and 
'  traverse  of  office ',  while  the  little  that  remained 
was  put  an  end  to  by  the  abohtion  of  feudal  tenures 
in  the  reign  of  Charles  II.  The  revival  is  explained 
as  being  due  '  not  to  any  new  necessity  for  a  method 
of  recovering  land,  but  rather  for  some  means  by 
which  contracts  entered  into  by  Crown  agents  for 
the  supply  of  the  public  service  could  be  enforced  '.^ 
That  a  Petition  of  Right  will  lie  for  a  breach  of 
contract  resulting  in  unliquidated  damages  was 
finally  settled  in  1874  by  the  Court  of  Queen's 
Bench  in  Thomas  v.  The  Quttn^  in  which  the 
judgment  of  the  Court  in  favour  of  the  subject 
on  demurrer  by  the  Crown  was  given  by  Black- 
burn, J.,  mainly  on  the  authority  of  the  Bankers' 
Case,^  Judicial  expressions  of  opinion  that  a  Petition 
of  Right  will  lie  for  breach  of  contract  are  to  be 
found  in  modern  cases  dating  from  the  beginning 
of   the   nineteenth   century,*  but   it  was  not  until 

1  Clode,  p.  66.  2  L.R.  10  Q.B.  31. 

3  (1700)  14  How.  St.  Tr.  1.  Incomplete  Reports  are  to  be 
found  in  5  Mod.  29 ;  87  E.R.  500 ;  in  Skinner,  601  ;  90  E.R. 
270  ;  and  in  1  Freem.  331  ;  89  E.R.  246.  It  should  be  noted 
that  the  proceedings  took  the  form  of  a  petition  to  the  Barons 
of  the  Exchequer  and  that  one  of  the  principal  matters  of  con- 
troversy was  whether  the  proper  remedy  was  not  by  Petition  of 
Right.  For  an  analysis  of  the  case,  see  the  judgment  of 
Blackburn,  J.,  in  Thomas  v.  The  Queen  at  pp.  39  to  43. 

*  Oldham  v.  Treasury  Commissioners  (not  reported)  cited  in 
Ellis  V.  Earl  Orey  (1833)  6  Sim.  214,  220 ;    58  E.R.  574,  576 ; 

2388  xr 


130  CASE  OF  REQUISITION 

Thomas  v.  The  Queen  ^  came  to  be  argued  that  the 
older   authorities   were   considered   in   their   direct 
bearing  on  the  point.     The  decision  has  since  been 
followed   in    numerous    cases,^    and   the    principle 
has    now    received    statutory    recognition    in    the 
Indemnity  Act,  1920.^   It  is  unnecessary,  therefore, 
to  discuss  it  in  detail.    Whether  or  not  the  case  was 
rightly  decided  is  now  a  matter  merely  of  anti- 
quarian interest,  which  may  be  gratified  by  reference 
to     Clode's     criticism.*      The     learned     author    of 
Civil  Proceedings  by  and  against  the  Crown ^  while 
inclining  to  the  view  that  the  decision  was  wrong, 
suggests  that  had  it  been  to  the  contrary  a  remedy 
must    have    been    provided    by    legislation.      The 
decision  has  been  consistently  followed,  and  having 
been  twice   approved   by  the   Privy   Council^  has 
now  been  adopted  by  the  House  of  Lords  in  the 
Judgments  delivered  in  the  Case. 

Barcm  deBode  v.  The  Queen  (1845)  8  Q.B.  p.  274;  115  E.R.  p.  879, 
in  which  Denman,  L.  C.  J.,  expresses  an  unconquerable  repug- 
nance to  the  suggestion  that  the  door  ought  to  be  closed  against 
all  redress  and  remedy.  See  also  Tobin  v.  The  Queen  (1864) 
16  C.B.  (N.S.)  355;  143  E.R.  1165;  Feather  v.  The  Queen  (1865) 
6  B.  &  S.  p.  294  ;  122  E.R.  p.  1205 ;  Churchward  v.  The  Queen 
(1865)  L.R.  103,  173.  In  In  re  von  Frantzius  (1858)  2  De  G.  &  J. 
126  ;  44  E.R.  936,  no  objection  appears  to  have  been  taken  on 
the  ground  that  the  claim  was  for  unliquidated  damages  and  the 
same  observation  appHes  to  Kirk  v.  The  Queen  (1872)  L.R.  14  Eq. 
558.  For  an  earlier  dictum,  see  Macbeath  v.  Haldemand  (1786) 
1  Term  Rep.  172,  per  BuUer,  J.,  at  p.  176;   99  E.R.  1036,  1038. 

1  (1874)  L.R.  10  Q.B.  31. 

2  See  Kirk  v.  The  Queen  (1872)  L.R.  14  Eq.  558  ;  R.  v. 
Doutre  (1884)  9  A.C.  745  ;  Windsor  and  Annapolis  Railway  Co.  v. 
The  Queen  (1886)  11  A.C.  607. 

3  10  &  11  Geo.  V,  c.  48,  s.  1  (1)  (b). 

*  Clode,  p.  116.  5  Robertson,  p.  339. 

^  See  note  2,  supra. 


PETITION  OF  RIGHT  131 


IV 


In  order  to  appreciate  the  full  bearing  of  the 
Case  upon  the  true  scope  of  the  procedure  by  Petition 
of  Right,  it  is  necessary  to  see  precisely  what  the 
House  of  Lords  decided.  The  judgments  for  the 
first  time  explain  the  nature  of  the  legal  right  which 
arises  out  of  a  requisition  of  property  for  purposes 
of  defence.  The  SuppHants'  right  did  not  rest  upon 
any  consensual  foundation,  for  it  was  clear  upon 
the  facts  that  possession  was  taken  in  invitum. 
The  parties  having  failed  to  agree  upon  the  amount 
of  compensation,  the  officers  of  the  Crown  threatened 
to  take  possession  under  the  compulsory  powers 
with  which  they  claimed  to  be  invested  by  law. 
Possession  was  in  fact  given  by  the  Suppliants, 
acting  as  good  citizens,  in  order  that  the  authorities 
should  not  be  hampered  in  the  discharge  of  their 
duties  in  providing  for  the  public  safety  and  the 
Defence  of  the  Realm,  but  the  surrender  was  made 
under  protest  and  under  full  reservation  of  the 
Suppliants'  legal  rights  and  remedies. 

Clearly,  if  the  possession  had  not  been  justified, 
the  entry  by  the  officers  of  the  Crown  would  have 
been  tortious,  and  would  have  involved  the  result 
that  all  remedy  by  Petition  of  Right  would  have  been 
excluded,  although  the  individual  officers  who  autho- 
rized and  carried  out  the  taking  of  possession  would 
have  been  personally  liable  in  actions  for  damages. 

But  the  necessity  for  taking  possession  was  not 
disputed,  the  only  controversy  being  with  reference 
to  compensation  and  to  the  amount.  The  act  of 
taking  was  legal,^  and  indeed  the  Suppliants  when 

1  Per  Lord  Dunedin,  App.  A,  p.  169. 
K2 


132  CASE  OF  REQUISITION 

they  alleged  a  right  to  compensation  undef  the 
Defence  Acts  necessarily  negatived  any  wrong  done 
by  the  Crown.  ^ 

The  notion  of  tort  being  excluded,  the  question 
next  arose  whether  the  Supphants  were  entitled  to 
rely  on  any  right  arising  ex  contractu.  If  it  could 
be  established  that  possession  was  taken  by  the 
Crown  under  circumstances  from  which  an  agree- 
ment to  pay  rent  or  compensation  could  be  implied, 
the  difficult  questions  which  were  involved  in  the 
assertion  by  the  Suppliants  of  a  right  to  compen- 
sation either  by  statute  or  at  Common  law  would 
disappear,  while  the  procedure  by  Petition  of  Right 
clearly  covered  a  claim  in  the  nature  of  damages 
arising  out  of  a  contract.  It  was  accordingly  sub- 
mitted in  the  Petition  by  way  of  alternative  conten- 
tion that  possession  was  taken  by  permission  of 
the  Supphants,  and  that  they  were  entitled  to  com- 
pensation on  this  ground  by  way  of  rent  for  use 
and  occupation.  Upon  the  view  of  the  facts  taken 
by  the  majority  of  the  Court  of  Appeal  this  con- 
tention was  held  to  be  sound,^  and  the  Suppliants 
were  held  entitled  in  that  Court  to  succeed  on  this 
comparatively  simple  point.  ^ 

In  presenting  their  argument  in  the  House  of 
Lords,  ,this  contention  was  abandoned  by  the 
Supphants,  it  being  recognized  that  in  the  circum- 
stances no  such  consent  was  to  be  inferred  as  would 
justify  the  imphcation  of  any  contractual  relation, 

^  Per  Lord  Sumner,  App.  A,  p.  198. 

2  (1919)  2  Ch.  p.  227,  per  Swinfen-Eady,  M.  R. ;  per 
Warrington,  L.  J.  p.  231. 

^  For  a  detailed  examination  of  the  authorities  on  the  right 
to  sue  for  use  and  occupation,  see  the  judgment  of  Lord  Atkinson, 
App.  A,  p.  178. 


PETITION  OF  RIGHT  133 

and  the  argument  proceeded  upon  the  footing  that 
the  taking  amounted  to  a  pure  requisition  indepen- 
dent of  the  consent  of  the  SuppHants  and  incon- 
sistent with  any  entry  upon  their  land  by  their 
permission. 

The  claim  of  the  Crown  to  take  land  free  from 
a  legal  obligation  to  pay  compensation  so  far  as  it 
was  based  on  the  alleged  prerogative  was,  as  has 
been  seen,  not  established.  Had  the  right  to  take 
the  Suppliants'  property  depended  upon  powers  of 
the  Crown  resting  upon  a  prerogative  at  Common 
law  the  Suppliants  would,  it  is  submitted,  have 
been  entitled  ex  jure  to  compensation.  But  no 
decision  was  given  founded  on  any  right  to  compen- 
sation at  Common  law,  and  the  Suppliants'  right 
was  held  to  depend  upon  statute  under  which  the 
requisition  was  recognized  as  lawful,  the  notion  of 
a  liability  on  the  part  of  the  Crown  arising  ex  con- 
tractu being  expressly  negatived. 

How  is  such  a  right  enforceable  against  the 
Crown  ?  On  what  ground  can  it  be  said  that 
a  Petition  of  Right  does  not  lie  ?  That  the  Defence 
Act  gives  a  legal  right  to  the  subject  to  have  proper 
compensation  assessed  and  paid  is  beyond  dispute. 
It  is  equally  clear  that  appropriate  machinery 
exists  as  between  subject  and  subject  for  enforcing 
the  analogous  statutory  right  of  compulsory  acquisi- 
tion ;  as  in  the  case  of  a  corporation  which  has 
taken  possession  of  land  under  statutory  powers,^ 
but  declines  to  take  the  necessary  proceedings  for 
the  assessment  of  compensation.  The  parties  in 
such  a  case  are  not  placed  by  the  operation  of 

1  As  under  section  85  of  the  Lands  Clauses  Consolidation 
Act,  1845  (8  &  9  Vict.,  c.  18). 


134  CASE  OF  REQUISITION 

a  notiqe  to  treat  in  a  contractual  relationship, 
although  their  position  is  analogous  to  that  of 
vendor  and  purchaser/  An  owner  is  not  entitled 
by  the  mere  fact  that  his  land  has  been  taken  under 
compulsory  powers  to  be  paid  compensation  ;  his 
right  is  to  have  the  amount  of  compensation 
assessed,  and  that  right  can  be  enforced  by  man- 
damus.^ The  remedy  by  mandamus  is  not,  how- 
ever, applicable  against  the  Crown.  ^  The  question 
therefore  arises  whether  there  be  anjrthing  in  the 
law  governing  the  procedure  by  Petition  of  Eight 
which  would  exclude  a  petition  praying  for  a  declara- 
tion that  the  Suppliant  is  entitled  to  compensation. 
The  definition  of  the  word  '  relief  '  in  section  16  of 
the  Petitions  of  Right  Act,  1860,^  is  in  its  terms 
sufficiently  wide  to  cover  a  claim  for  such  a  declara- 
tion. The  proviso  to  section  7  limits  the  remedy  to 
such  remedies  as  existed  before  the  passing  of  the 
Act  and  would,  no  doubt,  operate  to  exclude  claims 
which  could  not  before  the  passing  of  the  Act  form 
the  subject-matter  of  a  Petition  of  Right.  But  if 
the  procedure  by  Petition  of  Right  be  appHcable  to 
all  cases  in  which  the  subject  is  in  a  position  to 

1  Adams  v.  London  and  Blackwall  Railway  Go.  (1856)  2  Mac. 
&  G.  118  ;  42  E.R.  46  ;  Haynes  v.  Haynes  (1861)  1  Drew  &  Sm. 
426,  450  ;  62  E.R.  442,  451  ;  Harding  v.  Metropolitan  Railway 
Co.  (1872)  L.R.  7  Ch.  154  ;  Tiverton  and  North  Devon  Railway 
Go.  V.  Loosemore  (1884)  9  A.C.  480  at  pp.  493,  511. 

2  JB.  V.  Birmingham  and  Oxford  Junction  Railway  Go.  (1850) 
15  Q.B.  634  ;  117  E.R.  599  ;  Tiverton  and  North  Devon  Railway 
Go.  V.  Loosemore  (1884)  9  A.C.  p.  493  ;  R.  v.  London  and  North 
Western  Railway  Go.  (1894)  2  Q.B.  512. 

3  In  re  Baron  de  Bode  (1838)  6  Dowl.  776  :  1  W.W.  &  H.  332 ; 
R.  V.  Powell  (IS4:1)  1  Q.B.  352;  113  E.R.  1166;  R.  y.  Lords 
Commissioners  of  the  Treasury  (1872)  L.R.  7  Q.B.  387. 

4  23  &  24  Vict.,  c.  24. 


PETITION  OF  RIGHT  135 

assert  a  legal  right  against  the  Crown,  the  absence 
of  any  instance  in  which  that  right  was  founded 
upon  a  statutory,  basis  does  not,  it  is  submitted, 
preclude  a  subject  from  vindicating  it  by  the  only 
form  of  procedure  which  is  open  to  him  as  against 
the  Crown.  Indeed,  once  it  is  established  that 
a  claim  to  compensation  rests  on  a  legal  right  it  is 
difficult  to  formulate  any  principle  upon  which  the 
remedy  by  Petition  of  Right  ought  to  be  excluded. 
'  I  can  see  no  valid  distinction ',  says  Lord  Atkinson,^ 
'  between  a  sum  due  under  a  contract  or  grant  made 
on  behalf  of  the  Crown  mentioned  by  Chief  Justice 
Erie  in  Tohin  v.  The  Queen,'^  and  compensation  due 
for  the  lawful  and  authorized  use  and  enjoyment  by 
the  officer  of  the  Sovereign  on  the  Sovereign's 
behalf  of  the  lands  or  buildings  of  a  subject.  Both 
seem  equally  untainted  by  tort,  both  equally 
untouched  by  the  principle  that  the  King  can  do  no 
wrong.' 

And  so  Lord  Dunedin  ^  arrives  at  the  conclusion 
that  a  Petition  of  Right  will  lie  '  when  in  consequence 
of  what  has  been  legally  done  any  resulting  obliga- 
tion emerges  on  behalf  of  the  subject  '.* 

1  App.  A,  p.  189. 

2  (1864)  16  C.B.  (N.S.)  p.  355  ;   143  E.R.  p.  1165. 

3  App.  A,  p.  176. 

*  For  the  effect  of  the  Indemnity  Act,  1920  (10  &  11  Vict., 
c.  48),  see  p.  158,  post. 


EXCURSUS  I 

NOTES  ON  THE  RIGHT  TO  COMPENSATION  IN  RESPECT 
OF    REQUISITIONED    PROPERTY    OTHER    THAN 

LAND 

• 

The  right  to  requisition  property  other  than 
land  has  not  so  far  been  tested  in  the  Hght  of  historical 
evidence  in  any  recent  legal  proceeding.  The  recent 
decisions  of  the  Courts  as  regards  chattels  ^  and 
shipping  2  are  founded  upon  the  Defence  of  the 
Realm  Acts  and  Regulations,  no  claim  having  been 
advanced  by  the  Crown  to  Act  under  powers  derived 
from  the  prerogative.  The  following  notes  have 
been  compiled  in  support  of  the  general  proposition 
that,  assuming  an  emergency  which  justifies  the 
requisitioning  of  private  property  for  the  purposes 
of  defence,  the  right  to  requisition  is  conditioned  by 
an  obligation  to  pay  compensation. 

1  Newcastle  Breweries  Limited  v.  The  King  (1920)  1  K.B.  854. 

2  China    Mutual    Steam   Navigation    Go.    v.    Maclay    (1918) 

1  K.B.  33  ;  Hudson's  Bay  Co.  v.  Maclay  (1920)  36  T.L.R.  469. 
In  Russian  Bank  for  Foreign  Trade  v.  Excess  Insurance  Co.  (1918) 

2  K.B.  123,  Bailhache,  J.,  expressed  the  opinion  that  the 
Admiralty  had  no  authority  to  requisition  ships  otherwise  than 
within  the  British  Isles  or  the  waters  adjacent  thereto.  The 
point  was  not  fully  argued.  On  Appeal  the  Crown  (which  was 
not  a  party  to  the  litigation)  was  prepared  to  vindicate  the 
requisition  as  an  exercise  of  the  prerogative,  but  the  Court  held 
that  it  was  unnecessary  to  decide  this  question  (1919)  1  K.B.  39. 
The  prerogative  to  requisition  British  ships  was  not  disputed 
in  The  Broadmayne  (1916),  P.  64 ;  The  Sarpen,  ibid.,  306. 
Requisitions  of  ships  at  present  have  statutory  authority  under 
the  powers  conferred  by  Defence  of  the  Realm  Regulation 
39  B.B.B.  on  the  Shipping  Controller,  as  to  whose  office  vide 
p.  103,  antCy  note  2. 


THE  RIGHT  TO  COMPENSATION  137 


The  duty  to  provide  arms  in  early  times  was 
incidental  to  the  obligation  of  personal  service, 
which  in  itself  was  based  mainly  on  tenure.  But 
whatever  the  foundation  of  the  obligation,  this  duty 
was  from  early  times  strictly  regulated  by  statute. 
Thus  the  Statute  of  Winchester  of  1285,^  which 
provides  that  '  View  of  Arms  be  made ',  requires 
that  every  man  have  in  his  house  harness  '  for  to 
keep  the  peace  after  the  ancient  Assize ',  that  is  to 
say  that  every  mrfn  between  fifty  and  sixty  shall  be 
assessed  and  sworn  to  armour  according  to  the 
quantity  of  his  lands  and  goods,  the  particulars  of 
the  arms  and  armour  to  be  provided  being  set  out 
according  to  the  value  of  each  man's  property. 
A  statute  of  Edward  III  ^  records  the  King's  will 
that  no  man  shall  be  charged  to  arm  himself  other- 
wise than  he  was  wont  in  the  time  of  his  progenitors. 
Kings  of  England ;  and  '  that  no  man  shall  be 
compelled  to  go  out  of  his  shire,  but  where  necessity 
requireth,  and  sudden  coming  of  strange  enemies 
into  the  Realm,  and  then  it  shall  be  done  as  hath 
been  used  in  times  past  for  defence  of  the  Realm '. 
Later  in  the  same  reign  it  is  made  clear  ^  that  no  man 
shall  be  constrained  to  find  men-at-arms,  hoblers,  or 
archers  other  than  in  accordance  with  their  tenures, 
unless  by  common  assent  and  grant  made  in  Parlia- 
ment ;  and  these  statutes  were  confirmed  in  the 
reign  of  Henry  IV.*    It  is  unnecessary  to  set  out  in 

1  13  Edw.  I,  Stat.  2,  c.  6. 

2  (1327)  1  Edw.  Ill,  Stat.  2,  c.  5. 

3  (1356)  25  Edw.  Ill,  Stat.  5,  c.  8. 

*  (1402)  4  Hen.  IV,  c.  13,  confirming  the  statutes  of  1327  and 
1356,  and  also  18  Edw.  Ill,  Stat.  2,  c.  7  (1344),  which  deals 
with  purveyance  and  provides  that  men  of  arms,  hoblers,  and 


138  CASE  OF  REQUISITION 

detail  the  many  enactments  which  dealt  with  the 
subject  of  military  service,  all  of  which  were  super- 
seded in  the  reign  of  Philip  and  Mary  by  a  consolidat- 
ing statute  of  1555/  which  imposed  on  owners  of 
land,  according  to  their  estates,  an  obligation  to 
keep  and  sustain  within  the  Realm  horses  and  armour 
for  defence.  The  obligation  was  therefore  purely 
ratione  tenurae,  and  did  not  survive  the  abolition  of 
military  tenures  and  purveyance  in  the  time  of 
the  Commonwealth  by  the  Act  of  1660.^  So  far, 
then,  as  military  equipment  is  ccyicerned  the  right 
to  demand  it  was  incidental  to  the  obligation  of 
service  which  was  intimately  connected  with  the 
holding  of  land,  or  was  imposed  by  Parliament 
as  a  tax  upon  property. 

II 

The  prerogative  of  purveyance,  which  was 
primarily  exercisable  in  respect  of  provisions  and 

archers  chosen  to  go  in  the  King's  service  out  of  England  shall 
be  at  the  King's  wages  from  the  day  that  they  depart  out  of  the 
counties  where  they  were  chosen  till  their  return. 

1  4&5Ph.&M.,c.2.  This  statute  was  repealed  by  a  statute - 
law  revision  act  of  1604  (1  Jac.  I,  c.  25,  s.  46)  and  the  repeal 
was  relied  on  by  the  opponents  of  Charles  I  as  reviving  the 
earlier  statutes.  St.  John  in  R.  v.  Hampden  (3  How.  St.  Tr. 
877)  declines  to  discuss  the  question  whether  the  earlier  statutes 
were  still  in  force  in  his  day.  They  are  enumerated  in  Rush  worth, 
iii.  655-722,  under  the  heading  '  Commission  of  Array,  the 
legality  of  it  controverted  and  other  passages  relating  to  the 
putting  it  in  execution  '.  The  claim  of  Charles  I  to  issue  Com- 
missions of  array  under  powers  alleged  to  have  been  conferred 
by  statute  in  5  Hen.  IV  (Rot.  Pari.  iii.  526)  was  one  of  the 
causes  which  led  to  the  outbreak  of  the  Civil  War.  For  the 
Militia,  as  the  constitutional  force  for  the  Defence  of  the  ^^ealm 
since  the  Restoration,  see  Clode,  Military  Forces  of  the  Crown, 
c.  iii  ;  Bruce's  Report,  App.  D,  at  p.  252. 

2  12Car.  II,  c.  24,'s.  12. 


THE  RIGHT  TO  COMPENSATION  139 

transport,  although  it  extended  to  such  munitions  of 
war  as  saltpetre  for  the  making  of  gunpowder,  was 
finally  abolished  by  statute  in  1660.  The  system, 
as  has  been  shown,^  extended  to  making  provision 
for  the  needs  of  the  King  in  time  of  war  as  well  as  to 
the  supply  of  his  domestic  and  personal  requirements 
in  time  of  peace.  The  statutes,  in  insisting  upon 
the  restriction  of  the  exercise  of  the  prerogative,  were 
but  giving  effect  to  the  principles  of  the  Common 
Law  that  the  King  '  cannot  alter  the  property  of  his 
subjects'  goods  except  by  consent  of  Parliament  '.^ 

After  the  Restoration,  the  right  of  purveyance 
was  revived  in  a  limited  form  by  an  Act  of  1661  ^ 
'  for  providing  necessary  carriages  for  His  Majesty 
in  his  royal  progress  and  removals '.  The  Act 
recites  that  the  Act  of  1660  '  may  prove  very 
prejudicial  and  inconvenient  to  the  King's  Majesty 
in  his  Royal  Progresses  upon  his  necessary  occasions 
to  several  parts  of  this  Realm,  in  case  any  person 
or  persons  shall  obstinately  refuse  voluntarily  to 
provide  sufficient  carriages  for  royal  service  at 
ordinary  and  usual  rates  for  such  carriages  as  are 
paid  by  others  of  his  subjects  in  such  places,  contrary 
to  the  true  intent  and  meaning  of  the  said  Act '. 
Provision  is  accordingly  made  empowering  the  clerk 
or  officer  of  the  King's  carriages  by  warrant  from  the 
Board  of  Green  Cloth  to  provide  carts  and  carriages 
for  his  Majesty's  use.  Penalties  are  imposed  for 
refusal  to  provide  what  is  required,  but  no  horse  or 
carriage  is  to  be  requisitioned  for  more  than  a  day's 
journey,  and  payment  is  to  be  in  ready  money. 

1  Ante,  p.  52. 

2  St.  John,  arguendo,  B.  v.  Hampden  (1637)  3  How.  St.  Tr.  .881. 

3  13  Car.  II,  Stat,  i,  c.  8,  s.  2.     Repealed  by  Statute  Law 
Revision  Act,  1863  (26  &  27  Vict.,  c.  125). 


140  CASE  OF  REQUISITION 

In  1662  ^  was  passed  the  first  of  a  series  of  statutes, 
the  modern  counterpart  of  which  is  to  be  found  in 
the  Army  Act,  1881,^  as  annually  re-enacted,  by 
which  the  naval  and  military  authorities  were 
authorized  to  resort  to  impressment  for  the  purpose 
of  obtaining  transport.  By  an  Act  ^  of  that  year 
for  providing  carriage  by  land  and  by  water  '  for 
the  use  of  His  Majesty's  Navy  and  Ordnance  '  it 
was  provided  that  as  often  as  the  service  of  the  Navy 
or  Ordnance  should  require  carriages  might  be 
impressed  under  the  hand  and  seal  of  the  Lord  High 
Admiral  or  of  certain  specified  officers,  directed  to 
two  or  more  justices  of  the  peace,  who  were  to  issue 
their  warrants  accordingly,  at  rates  of  hire  which 
are  set  out  in  the  act,  to  be  paid  in  ready  money. 
Similar  powers  are  given  to  impress  or  take  up 
ships,  hoys,  lighters,  boats,  or  any  vessel  as  should 
be  necessary,  the  owners  to  receive  hire,  according 
to  the  rates  usually  paid  by  merchants  from  time 
to  time  and  in  the  absence  of  agreement  to  be 
settled  by  the  Brotherhood  of  Trinity  House. 

The  Act  was  to  remain  in  force  until  the  end  of 
the  first  session  of  the  next  Parliament.  It  was 
revived  in  1685  ^  for  seven  years  and  continued  by 
successive  Acts  of  1692*  and  1698-9,^  until  it  finally 
expired  in  1707.  It  is  to  be  observed  that  these 
Acts  (of  which  the  Acts  of  1692*  and  1698-9^  were 
passed  in  time  of  war)  gave  power  only  to  re- 
quisition transport.  The  right  of  impressment  is  con- 
fined to  making  provision  for  the  King's  Progresses 

1  14  Car.  II,  c.  20,  App.  B,  p.  222,  post. 

2  44  &  45  Vict.,  c.  58. 

3  1  Jac.  II,  c.  11,  App.  B,  p.  228,  post. 
'    /         44  Will.  &  M.,  c.  24. 

s  11  Will.  Ill,  c.  13  (11  &  12  Will.  Ill,  Ruff.). 


THE   RIGHT  TO  COMPENSATION  141 

and  for  the  necessities  of  the  Navy  and  Ordnance. 
Impressment  for  the  transport  of  troops  was  not 
authorized  by  statute  until  1692  when  similar  powers 
were  given  to  justices  of  the  peace,  when  authorized 
by  Royal  Order,  under  section  27  of  the  Mutiny 
Act  of  that  year.i  These  Acts  contain  no  refer- 
ence to  any  right  to  requisition  victuals,  forage,  or 
any  other  articles,  and  indeed  the  Mutiny  Act  of 
1692,  which  was  passed  in  time  of  war  (the  right  of 
billeting  troops  is  expressly  limited  to  the  duration 
of  the  war)  provides  in  terms  for  the  purchase  of 
clothes,  arms,  and  accoutrements  of  war,  which 
are  to  be  bought  only  in  England,  Wales,  and  the 
town  of  Berwick  and  not  elsewhere,  but  contains 
no  suggestion  of  purchase  under  compulsory  powers. 
Similar  provisions  are  found  in  the  annual  Mutiny 
Acts,  which,  although  passed  primarily  in  order  to 
render  legal  the  maintenance  of  a  standing  force 
in  time  of  peace,  notwithstanding  the  provisions 
of  the  Bill  of  Bights,  were  passed  annually  (with 
a  tendency  to  increase  in  length)  until  1879,  when 
the  Act^  upon  which  is  founded  the  Army  Act  of 
1881  (now  re-enacted  annually  with  such  amend- 
ments as  may  be  necessary),  came  into  force. 
Passing  to  the  time  of  the  Napoleonic  wars,  j.t 

1  4  Wm.  &  M.,  c.  13.  The  first  Mutiny  Act  (1  WiU.  &  M.,  c.  5) 
had  been  passed  before  the  Bill  of  Rights  (1  Will  &  M.,  Sess.  2, 
0.  2)  to  deal  with  the  mutiny  at  Ipswich  and  the  troops  favourable 
to  James  I  who  were  to  be  shipped  to  the  Low  Coimtries.  The 
Act  merely  provided  for  the  punishment  of  mutiny  and  sedition 
in  the  army  by  courts-martial,  and  for  the  constitution  of  such 
courts,  while  enacting  that  nothing  in  the  Act  should  exempt 
any  officer  or  soldier  from  the  ordinary  process  of  law.  More 
elaborate  provisions  are  contained  in  the  Acts  of  1689  (1  Will. 
&  M.,  Sess.  2,  c.  4)  and  1690  (2  Will.  &  M.,  Sess.  2,  c.  6). 

2  Army  Discipline  and  Regulation  Act,  1879  (42  &  43  Vict.),  c  33. 


142  CASE  OF  REQUISITION 

should  be  noted  that  the  annual  Mutiny  Acts 
contained  provisions  for  the  taking  up  of  transport 
for  the  conveyance  of  troops  on  the  march,  following 
the  general  lines  of  the  Act  of  1692.  The  power  to 
requisition  transport  is  entrusted,  under  these  Acts  ^ 
not  to  the  military,  but  to  the  civil  power.  The 
concurrent  legislation  embodied  in  the  Defence  Act 
of  1798  2  (and  re-enacted  in  the  Act  of  1803^) 
covers  a  wider  field.  Section  1  provides  that  the 
County  and  Deputy  Lieutenants  shall  procure 
returns  of  {inter  alia) : 

'  all  boats.  Barges,  Waggons,  Carts,  Horses,  and  other 
Cattle  and  Sheep,  and  of  all  Hay,  Straw,  Corn,  Meal, 
Flour,  and  other  Provisions,  and  of  all  Mills  and 
Ovens,  and  all  other  Matters  and  Things  which  may 
be  useful  to  an  enemy,  or  applicable  to  the  Public 
Service,  within  the  said  Counties,  Ridings,  Stewart  ries, 
Cities,  and  Places  respectively  and  which  of  such 
Boats,  Barges,  Waggons,  Carts,  and  Horses  the 
owners  thereof  are  willing  to  furnish,  in  case  of 
Emergency,  for  the  public  Service,  either  gratuitously 
or  for  Hire,  and  with  what  Number  of  Boatmen, 
Bargemen,  Drivers,  and  other  necessary  Attendants, 
and  upon  what  Terms  and  Conditions,  and  of  all 
such  other  Particulars  as  his  Majesty  shall  require, 
for  the  Purpose  of  enabling  his  Majesty,  and  the 
persons  acting  under  his  Majesty's  Authority  to 
give  such  orders  as  may  be  necessary  for  the  Removal, 
in  case  of  Danger,  of  such  persons  as  shall  be  in- 
capable of  removing  themselves,  and  for  the  Removal 

1  See  the  Acts  of  1798  (38  Geo.  Ill,  c.  23),  s.  45,  and  of  1801, 
(41  Geo.  Ill,  c.  11),  s.  45.  Section  46  of  the  latter  Act  contains 
provisions  for  the  requisition  in  cases  of  emergency  of  horses, 
carriages,  and  of  vessels  used  on  canals  and  navigable  rivers 
similar  to  those  which  are  now  included  in  section  115  of  the 
Army  Act,  1881. 

8  38  Geo.  Ill,  c.  27.  ^  43  Qgo.  m,  c.  65. 


THE  RIGHT  TO  COMPENSATION  143 

of  all  Boats,  Barges,  Waggons,  Carts,  Horses, 
Cattle,  Sheep,  Hay,  Straw,  Corn,  Meal,  Flour,  and 
other  Provisions,  Matters,  and  things  aforesaid,  or 
for  the  Employment  thereof  in  his  Majesty's  service, 
or  otherwise,  as  the  Exigency  of  the  Case  shall 
require,  and  generally  to  give  such  Directions 
touching  such  matters  respectively,  as  may  be 
deemed  most  likely  to  defeat  the  Views  of  the 
Enemy,  and  most  advantageous  for  the  public 
Service.' 

Section  7  provides  that : 

'  It  shall  be  lawful  for  his  Majesty,  in  case  of 
actual  Invasion  of  this  Kingdom,  or  if  his  Majesty 
shall    see    special    Cause    to    apprehend   that    such 
Invasion  will  be  actually  attempted  by  the  Enemy, 
to    authorize    and   empower    by    Order    under    his 
Sign    Manual,  the    said    Lieutenants    and   Deputy 
Lieutenants,  or  any  of  them,  on  any  Emergency, 
and  on  the  Requisition  of  the  Officer  commanding 
within  the  District  respectively  or  of  such  other 
Persons  as  his  Majesty  shall  specially  empower  to 
make  such  Requisition,  to  give  all  such  Orders  as 
shall  be  necessary  for  the  Removal  of  any  BtDats, 
Barges,  Waggons,  Carts,  or  other  Carriages,  Horses, 
Cattle,  Sheep,  Hay,  Straw,  Corn,  Meal,  Flour,  or 
Provisions  of  any  Kind  or  any  other  Things  which 
may  be  of  advantage  to  an  Enemy,  or  useful  for 
the  public  Service,  and  to  take  the  same,  if  necessary, 
for  the  public  Service,  and  also  to  give  such  orders 
as  shall  be  necessary  for  the  Removal  of  the  Inhabi- 
tants  of   any  House,   Hamlet,   District,   or  Place, 
or  any  of  them,  and  especially  such  as  by  reason 
of  Infancy,  Age,  or  Infirmity,  or  other  Cause,  shall 
be   incapable   of   removing   themselves   in   Case   of 
Danger :    and  also,  in  case  of  Necessity,  to  destroy 
any    Boats,    Barges,    Waggons,    Carts,    or    other 
Carriages,  Horses,  Cattle,  Sheep,  Hay,' Straw,  Corn, 
Meal,  Flour,  or  Provisions  of  any  Kind,  or  any  Thing 


144  CASE  OF  REQUISITION 

which  may  be  of  Advantage  to  an  Enemy  ;  and  to 
remove,  destroy,  or  render  useless,  any  House,  Mill, 
Bridge,  or  other  Building,  or  any  Matter  or  thing 
whatsoever  ;  and  generally  to  do  and  act  in  the 
premises  as  the  public  Service  and  the  Exigencies 
of  particular  Cases  shall  require.' 

The  assessment  of  Compensation  is  dealt  with  by 
section  11,  as  follows  : 

'  That  when  it  shall  have  been  found  necessary 
to  take,  for  the  public  Service,  remove,  or  destroy, 
any  Waggons,  Carts,  or  other  Carriages,  Horses, 
Cattle,  Sheep,  Hay,  Straw,  Corn,  Meal,  Flour,  or 
other  Provisions,  or  any  other  Articles  whatsoever, 
or  to  destroy  or  injure  any  House,  Mill,  Bridge,  or 
other  Buildings,  or  any  Matter  or  Thing  of  Value, 
under  the  Directions  aforesaid,  the  Commissioners 
of  his  Majesty's  Treasury  shall  appoint  persons  to 
inquire  into  and  ascertain  the  Value  of  such  Articles, 
and  the  Compensation  which  ought  to  be  made 
for  the  same,  by  way  of  Purchase  or  Hire,  or  Recom- 
pence  for  Damage,  or  otherwise,  according  to  the 
Nature  of  the  Case ;  and  if  the  Owner  or  Owners, 
or  Person  or  Persons  interested,  shall  be  willing  to 
accept  the  Compensation  which  shall  be  so  ascer- 
tained, the  same  shall  be  paid  by  the  said  Commis- 
sioners of  his  Majesty's  Treasury  or  such  Person  or 
Persons  as  shall  be  appointed  by  them  for  that 
Purpose,  in  pursuance  of  a  Certificate  under  the 
Hands  of  the  Persons  so  employed  to  ascertain 
the  same,  and  if  the  Owner  or  Owners,  or  Person  or 
Persons  interested  shall  not  be  willing  to  accept 
such  Compensation,  it  shall  be  lawful  for  his  Majesty 
to  order  two  Justices  of  the  Peace  of  the  County, 
Riding,  Stewartry,  City,  or  Place,  to  settle  and 
ascertain  the  Compensation  which  ought  to  be  made 
to  such  Owner  or  Owners,  or  Persons  interested  ; 
which  Justices  shall  settle  and  ascertain  the  same 
accordingly,  and  shall  grant  a  Certificate  thereof 


THE  RIGHT  TO  COMPENSATION  145 

to  the  Commissioners  of  his  Majesty's  Treasury  who 
shall  order  the  same  to  be  paid  to  the  Person  or 
Persons  entitled  thereto,  out  of  any  Money  granted 
for  the  Supply  of  the  Year.' 

During  the  Napoleonic  wars  it  is,  therefore,  clear 
that  the  right  to  payment  for  the  requisitioning 
of  chattels  was  expressly  secured  by  statute. 

The  Army  Act,  1881,^  gives  no  general  power  to 
requisition  chattels,  but  follows  the  lines,  in  regard 
to  the  impressment  of  transport,  of  the  Mutiny  Acts, 
upon  which  it  is  based.  The  provision  of  trans- 
port is  entrusted  to  the  civil  power,  the  duty  of 
impressing  carriages  and  horses  being  delegated  to 
the  justices  of  the  peace. ^  The  right  of  impress- 
ment is  limited  to  the  provision  of  transport  of 
regimental  baggage  and  stores,  to  be  moved  in 
accordance  with  a  route  issued  to  commanding 
officers  of  regular  forces.  In  cases  of  emergency 
(to  be  certified  by  a  Secretary  of  State)  a  general 
or  field  officer  may  be  authorized  to  requisition 
carriages  and  animals,  whether  for  the  purpose  of 
carriage  or  haulage,  '  and  also  vessels  (whether 
boats,  barges,  or  other)  used  for  the  transport  of 
any  commodities  whatsoever  upon  any  canal  or 
navigable  river.'  ^  Payment  for  regimental  trans- 
port under  section  112  is  to  be  at  the  rates  set  out 
in  the  third  schedule  to  the  Act,  subject  to  temporary 

^  44  &  45  Vict.,  c.  58.  Instructions  to  prepare  a  bill  were  first 
given  to  Lord  Thring  in  1 867 .  The  various  stages  in  the  discussion 
and  preparation  of  the  measure  are  described  by  the  draughts- 
man in  his  Practical  Legislation  at  p.  9.  The  papers  written 
to  explain  the  law  alone  fill  a  folio  volume  of  1,067  printed  pages. 

2  s.  112.  Aircraft  were  first  included  under  the  Army  (Annual) 
Act,  1913  (3  Geo.  V,  c.  2). 

3  s.  115.  Extended  to  the  Naval  authorities  by  the  Naval 
Billeting  Act,  1914  (4  &  5  Geo.  V,  c.  70). 

2388  L 


146  CASE  OF  REQUISITION 

increases  to  be  assessed,  if  necessary,  by  the  authorities 
specified  in  section  113.  Transport  requisitioned 
in  cases  of  emergency  is  to  be  paid  for  by  the  Army 
Council,  the  amount  being  referred,  in  cases  of 
dispute,  to  the  County  Court. ^ 

The  right  to  impress  chattels  is  conferred  by  the 
Army  (Supply  of  Food,  Forage,  and  Stores)  Act, 
1914,2  which  received  the  Royal  Assent  on  August  7, 
1914,  three  days  after  the  outbreak  of  war.  These 
increased  powers  are  conferred  by  the  insertion  in 
section  113  (2)  of  the  Army  Act,  of  the  words  '  and 
also  of  food,  forage,  and  stores  of  every  description  '. 
The  jurisdiction  of  the  County  Court  is  preserved 
and  its  exercise  regulated  by  section  3  (1)  of  the  Army 
(Amendment)  Act,  1915,^  and  by  the  provisions 
for  determining  the  amount  to  be  paid  contained 
in  the  schedule  to  that  Act.  The  basis  of  assessment 
laid  down  by  Clause  3  of  the  Schedule  is  the  fair 
market  value  of  the  article  requisitioned  on  the  day 
on  which  it  was  required  to  be  furnished  as  between 
a  willing  buyer  and  a  willing  seller.  Under  Section  1 
the  decision  of  a  County  Court  Judge  is  directed 
to  be  final. 

It  is  hardly  necessary  to  enlarge  upon  the  impor- 
tance of  these  regulations  as  illustrating  the  applica- 
tion of  fundamental  constitutional  principles  in  the 
exercise  of  the  right  of  requisition.  The  right  itself 
is  conferred  by  statute.  The  obligation  to  make 
full  compensation,  not  as  a  matter  of  grace,  but  as 

1  s.  115  (4). 

2  4  &  5  Geo.  V,  c.  26. 

3  5  Geo.  V,  c.  26.  A  full  list  of  amendments  consequential 
on  the  Army  (Supply  of  Food,  Forage,  and  Stores)  Act,  1914, 
is  contained  in  the  Schedule  to  the  Army  (Amendment),  No.  2, 
Act,  1915  (5  &  6  Geo.  V,  c.  58). 


THE  RIGHT  TO  COMPENSATION  147 

of  right,  is  expressly  recognized.  In  so  far  as  the 
subject's  right  to  free  access  to  the  Courts  is  restricted 
by  the  withdrawal  of  the  ordinary  right  of  appeal, 
this  restriction  is  imposed  by  the  direct  authority 
of  Parhament,  while  the  whole  machinery  for 
ascertaining  the  amount  of  compensation  as  well  as 
the  basis  of  assessment  is  the  subject  of  specific 
statutory  provision.  In  regard  to  requisitions  of 
chattels  for  the  use  of  the  military  forces,  Regula- 
tion 2  B,  made  under  the  authority  of  the  Defence  of 
the  Realm  Acts,  which  formed  the  subject  of  the 
discussion  in  Newcastle  Breweries  Limited  v.  The 
King  ^  seems  in  direct  conflict  with  these  statutory 
provisions,  and  was  in  that  case  held  to  be  ultra  vires. 
But  the  fact  that  in  the  case  of  chattels  required 
for  the  use  of  the  military  forces,  the  method  of 
requisition  is  prescribed  in  detail  under  direct 
Parliamentary  authority  points  to  a  recognition  by 
Parliament  in  the  early  days  of  the  war  of  the 
principle  enunciated  by  Sir  George  Crooke  in  the 
Case  of  Ship-money  ^  that  the  Common  Law  '  gives 
a  man  a  freedom  and  property  in  his  goods  and  estate 
that  it  cannot  be  taken  from  him  but  by  his  consent 
in  specie,  as  in  Parliament,  or  by  his  particular 
assent  '.^ 

1  (1920)  1  K.  B.  854.  2  3  How.  St.  Tr.  p.  1129. 

^  A  further  instance  in  which  Parliament  by  direct  action 
restricted  the  right  of  the  subject  to  use  his  property  as  he  chooses, 
free  from  interference,  is  to  be  found  in  the  Unreasonable  With- 
holding of  Food  Supplies  Act,  1914  (4  &  5  Geo.  V,  c.  51)  repealed 
and  superseded  by  the  Articles  of  Commerce  (Returns)  Act, 
1914  (4  &  5  Geo.  V,  c.  65)  which  gives  power  to  the  Board  of 
Trade  to  take  possession  of  articles  of  commerce  unreasonably 
withheld  from  market,  subject  to  an  obligation  to  pay  such  price 
as  may,  in  default  of  agreement,  be  decided  to  be  reasonable, 
having  regard  to  all  the  circumstances  of  the  case,  by  the  arbitra-  / 

L2 


148  CASE  OF  REQUISITION 


III 


That  the  practice  of  requisitioning  ships  prevailed 
generally  until  the  Restoration  in  1660  admits  of 
no  doubt. ^  To  a  great  extent  the  obligation  to 
supply  vessels  rested  upon  the  foundation  of  tenure ; 
the  maritime  towns,  and  more  particularly  the 
Cinque  Ports,^  holding  their  franchises  on  condition 
that  they  should  provide  a  quota  of  ships  ^  (and 
in  some  cases  money)  ^  for  the  King's  service.  But 
innumerable  instances  may  be  cited  in  which  ships, 
both  British  and  foreign,  were  '  stayed '  or  '  arrested ' 
when  required,  independently  of  any  obligation 
founded  on  tenure  or  on  contract.^  That  provision 
was  made  for  payment  is  equally  clear,  the  proceeds 
of  such  taxes  as  the  grand  customs  of  the  mark 
and  demy-mark  ;  upon  wool,  wood-fells,  and  leather  ; 
tonnage  and  poundage  ;  and  the  petty  customs, 
as  well  as  aids  granted  on  particular  occasions, 
being  specifically  allocated  to  the  sea-service.® 

The  right  to  payment  was  constantly  asserted 
by    Parliament    and    acknowledged    by   the    King. 

tion  of  a  Judge  of  the  High  Court  selected  by  the  Lord  Chief 
Justice  in  England  (in  Scotland  by  a  judge  of  the  Court  of  Session 
selected  by  the  Lord  President,  and  in  Ireland  by  a  Judge  of 
the  High  Court  of  Ireland  selected  by  the  Lord  Chief  Justice  of 
Ireland).  The  Act  is  not  repealed  by  or  referred  to  in  the  New 
Ministries  and  Secretaries  Act,  1916  (6  &  7  Geo.  V,  c.  68). 

1  Numerous  instances  are  referred  to  in  Professor  Holds- 
worth's  learned  essay  on  '  The  Power  of  the  Crown  to  requisition 
British  ships  in  a  National  Emergency  ',  35  L.  Q.  R.  12. 

2  For  a  general  account  of  which  see  Burrows,  The  Cinque 
Ports,  London,  1892. 

3  See  instances  cited  R.  v.  Hampden  (1637)  3  How.  St.  Tr. 
869,  870. 

*  As  in  the  cases  of  Lewes  and  Colchester,  ibid.,  869. 
^  See  Professor  Holds  worth's  essay,  passim. 
«  3  How.  St.  Tr.  874. 


THE  RIGHT  TO  COMPENSATION  149 

Thus  in  1372,  a  petition  of  the  Commons^  complains 
of  the  decHne  of  '  La  Navie  '  (namely  of  merchant 
shipping)  the  principal  cause  being  'the  long  "  arrest " 
often  made  in  times  of  war  ;  that  is  to  say  a  quarter 
of  a  year  or  more  before  they  have  passed  from 
their  ports  without  obtaining  anything  for  the 
wages  of  their  mariners  during  that  time,  the 
masters  receiving  no  reward  for  the  furnishing  of 
their  ships.'  The  royal  answer  is  equivocal.  '  La 
Navie  '  is  to  be  maintained  and  preserved  '  a  greindre 
ease  et  profit  que  faire  se  poet '.  This  complaint 
appears  to  be  directed  rather  to  the  loss  suffered 
by  the  detention  of  vessels  in  port  while  awaiting 
orders  to  sail,  than  to  the  withholding  of  payment 
while,  on  active  service.  A  similar  complaint  in 
the  following  year  ^  concludes  with  a  prayer  that 
payment  be  made  from  the  time  of  '  arrest '  until 
the  end  of  their  voyage  and  calls  forth  a  definite 
admission,  that  ships  are  only  to  be  arrested  when 
necessary  ;  and  reasonable  payment  is  to  be  made. 
A  definite  rate  of  hire  is  claimed  in  1385  as  having 
formerly  been  ordained,^  and  the  King  assents  to 
a  payment  of  two  shillings  every  quarter  for  each 
tun-tyght  ^  until  the  next  Parliament.  In  1415  ^ 
complaint  is  made  that  in  the  time  of  the  King's 
predecessors  it  was  accustomed  and  ordained,  that 
when  the  ships  of  the  Kingdom  were  doing  their 
service  in  war  or  otherwise,  owners  should  have  their 

1  Eot.  Pari.  46  Edw.  Ill  (vol.  ii,  p.  311),  App.  G,  p.  296,  post, 

2  RoL  Pari.  47  Edw.  Ill  (vol.  ii,  p.  319),  App.  G,  p.  297,  post. 
See  also  (1379)  Rot.  Pari.  2  Ric.  II  (vol.  iii,  p.  66),  App.  G,  p. 
297,  post ;  (1402)  Rot.  Pari.  4  Hen.  IV  (vol.  iii,  p.  501),  App,  G, 
p.  298,  post. 

3  Rot.  Pari.  9  Ric.  II  (vol.  iii,  p.  212),  App.  G,  p.  298,  post. 
*  This   word  probably  means   complete    or    measured  tons. 

See  Oppenheim,  Administration  of  the  Royal  Navy,  p.  8,  note  (2). 
5  Rot.  Pari.  3  Hen.  V  (vol.  iv,  p.  79),  App.  G,  p.  299,  post. 


150  CASE  OF  REQUISITION 

'  tonnage  '  on  the  said  ships,  as  well  as  the  wages 
of  the  mariners,  which  are  set  out,  and  that  this 
tonnage  has  been  duly  and  loyally  paid  from  time 
to  which  memory  runneth  not  to  the  contrary 
until  the  time  of  the  King's  father.  The  Royal 
answer  is  that  the  King  will  have  that  done  which 
right  and  reason  demand.  In  1442  ^  a  sta-tute 
provides  that  '  purveyance  be  made  to  have  on  the 
sea  continually  from  Candlemas  to  Martinmas  eight 
ships  with  forestages  each  attended  by  a  barge  and 
a  balinger,^  and  manned  by  150  men,  together 
with  four  spynes.'  The  rates  of  hire  and  of  pay  are 
fully  set  out  and  the  ships  which  are  to  be  impressed 
are  named,  together  with  the  ports  where  they  are 
to  be  found,  and  in  many  cases  the  owners. 

These  early  statutes,  therefore,  recognize  the  right 
to  impress  ships,  while  insisting  upon  an  obligation 
on  the  part  of  the  Crown  to  pay  for  the  services 
rendered.  The  exercise  of  the  right  of  impressment 
may  be  illustrated  from  the  enormous  number  of 
writs  and  the  Commissions  to  Admirals  which  were 
issued  from  time  to  time.  Many  of  these  documents 
contain  no  reference  to  payment,  but  it  is  submitted 
that  the  right  to  compensation  is  to  be  implied  from 
the  earlier  statutes,  while  instances  of  express 
directions  to  make  compensation  are  not  uncommon. 
Thus    a   commission^  of  Elizabeth  (in  whose  time 

1  RoL  Pari,  20  Hen.  VI  (vol.  v,  p.  59),  App.  G,  p.  300  post. 

2  Spanish,  ballenere,  long  low  vessels  for  oar  and  sails  intro- 
duced in  the  fourteenth  century  by  the  Biscayan  Builders. 
Oppenheim,  op.  cit.,  p.  13,  note  (2). 

3  Rymer,  Foedera  (ed.  1742),  vol.  vii,  pt.  i,  p.  219.  This 
commission  is  printed  in  Prothero,  Statutes  and  Constitutional 
Documents,  p.  163.  Two  later  commissions  of  James  I  (Rymer, 
vol.  vii,  pt.  iii,  pp.  86,  221)  omit  all  reference  to  payment,  as 
is  to  be  expected  at  this  period. 


THE  RIGHT  TO  COMPENSATION  151 

the  regular  Navy  had  attained  substantial  propor- 
tions) in  1599  appointing  Thomas,  Lord  Howard 
de  Walden  '  to  be  our  Lieutenant  and  Captain 
General,  leader,  governor,  and  admiral  of  our  said 
navy  and  forces  therein  serving  which  we  have 
set  to  the  seas  for  the  defence  of  our  Realm  and 
people  against  the  Spaniard  '  directs  that : 

'  forasmuch  as  it  may  be  needed  for  our  service  to 
take  up  vessels  and  other  material  for  the  use  of 
our  service,  we  do  hereby  give  full  authority  to  the 
said  Thomas  to  direct  his  warrants  to  our  treasurer 
of  our  navy  or  to  his  deputy  in  his  absence  to  make 
payment  of  all  such  sums  of  money  as  he  the  said 
Thomas  shall  find  necessary  to  direct  him  to  lay 
out  in  which  case  the  warrant  of  our  said  admiral 
shall  be  to  our  said  treasurer  or  his  deputy  sufficient 
discharge  upon  the  making  of  his  account.' 

In  Stuart  times,  the  right  to  requisition  vessels 
was  admitted  by  St.  John  in  his  argument  in  the 
Case  of  Ship-money,  subject  to  certain  qualifi- 
cations. The  issue  was  not  whether  the  Crown 
had  the  right  to  requisition  ships,  but  whether 
the  imposition  of  a  tax  in  terms  of  the  Writ  could  be 
justified.  In  the  course  of  his  argument  he  sets 
forth  the  constitutional  means  by  which  provision 
is  made  for  the  sea-service,^  in  support  of  his  general 
proposition  that  the  property  of  the  subject  cannot 
be  taken  without  the  consent  of  Parliament,  unless 
it  be  tempore  belli,  that  is  to  say  when  in  the  agony 
of  invasion  Parliament  is  not  sitting  and  the  Courts 
are  closed.^  The  right  to  compensation  is  expressly 
asserted  by  another  sixteenth-century  lawyer  whose 
reputation  is  not  inferior  to  that  of  St.  John.    Selden 

1  3  How.  St.  Tr.  869.  ^  ^^^g^  p,  54, 


152  CASE  OF  REQUISITION 

in  his  Mare  Clausum,  published  in  1635,  two  years 
before  the  argument  in  the  Case  of  Ship-money, 
repubUshed  in  1652  in  EngHsh  under  the  title  of 
The  Dominion  of  the  Sea,  asserts :  ^ 

'  But  what  has  been  alleged  about  the  staying 
of  ships  and  lifting  them  for  the  King's  service  you 
are  always  to  understand  it  was  so  done  according 
to  equity  that  competent  pay  was  to  be  allowed 
them  answerable  to  the  proportion  of  tons  and  also 
to  the  number  of  seamen  that  were  so  taken  into 
employment.  Touching  which  particular,  there  are 
several  Testimonies  also  to  be  found  in  the  Becords 
of  Parliament' 

In  support  of  this  proposition  he  refers  to  the 
statute  of  3  Hen.  V,^  already  cited.  The  same  view 
is  expressed  a  century  later  by  Sir  Michael  Foster 
in  his  '  discourse  '  to  the  jury  in  Bex  v.  Broadfoot,^ 
on  the  subject  of  the  right  of  impressment,  which, 
although  directed  mainly  to  the  subject  of  impress- 
ment of  sailors,  contains  a  number  of  references 
to  the  impressment  of  ships,  and  cites  a  large 
number  of  commissions  to  Admirals.  '  Though  the 
affair  of  pressing  ships  is  not  now  before  me,  yet 
I  could  not  well  avoid  mentioning  it  because  many 
of  the  precedents  I  have  met  with  and  must  cite 
go  as  well  to  that,  as  to  the  business  of  pressing 
mariners,  and  taken  together,  they  serve  to  show  the 
power  the  Crown  has  constantly  exercised  over  the 
whole  naval  force  of  the  Kingdom,  as  well  shipping 
as  mariners,  whenever  the  public  service  required 
it.  This,  however,  must  be  observed,  that  no  man 
served  the  Crown  in  either  case  at  his  own  expense. 

1  Dominion  of  the  Sea,  p.  352. 

2  Eot.  Pari,  iv.  79,  App.  G,  p.  299,  post. 

3  (1743)  Foster,  Crown  Cases,  154. 


f  THE  RIGHT  TO  COMPENSATION  153 

Masters  and  mariners  received  full  wages,  and  owners 
were  const antty  paid  a  full  freight.'  ^ 

The  effect  of  the  statute  by  which  purveyance 
was  abolished,^  and  of  the  Act  of  1662^  with  its 
subsequent  re-enactments  is  not  free  from  difficulty. 
Professor  Holdsworth*  is  of  opinion  that  the  preroga- 
tive to  requisition  ships  is  not  affected  by  these 
statutes,  on  the  ground  that  '  the  power  to  requi- 
sition with  which  they  deal  refers  not  to  the  power 
of  requisition  for  purposes  of  national  defence,  but 
to  the  power  which  was  in  the  nature  of  the  power 
of  purveyance  abolished  by  the  Act  of  1660  to 
requisition  for  other  purposes  '.  He  points  out  that 
inasmuch   as   the   Crown   had   the   power,   in   the 

1  Ibid.,  p.  160.  'This  prerogative,  which  has  been  much 
attacked  and  is  certainly  a  blot  on  English  freedom,  is  founded 
on  immemorial  usage,  recognized,  admitted,  and  sanctioned  by 
various  Act  of  Parliament,'  Chitty,  Prerogative,  p.  47.  For  cases 
recognizing  the  legaUty  of  impressment  of  mariners,  see  R.  v. 
King  (1694)  Comb.  245  ;  90  E.R.  456  ;  Ex  parte  Fox  (1793) 
5  T.R.  276;  101  E.R.  155;  and  R.  v.  Tubbs  (1776)  2  Cowp.  512; 
98  E.R.  1215.  In  R.  v.  Tubbs  the  return  to  a  Habeas  Corpus 
was  held  insufficient  and  the  men  discharged  '  upon  their  promise 
to  go  into  His  Majesty's  Service  after  three  weeks  respite  '.  In 
R.  V.  Tubbs,  it  is  said  that  the  right  is  founded  on  immemorial 
usage,  and  that  there  may  be  a  legal  right  of  exemption  upon 
the  same  foundation.  A  usage  exempting  from  impressment 
men  admitted  as  watermen  of  the  City  of  London  to  attend 
upon  the  Lord  Mayor  and  Aldermen  was  held  not  proved. 
Similarly  in  Ex  parte  Fox  a  sea-faring  man  holding  the  office  of 
headborough  was  held  not  to  be  exempt.  For  instances  of 
statutory  recognition  of  the  right,  see  13  Geo.  II,  c.  17  (exemption 
of  certain  seamen  and  apprentices) ;  and  38  Geo.  Ill,  c.  46  (relating 
to  apprentices  and  fishermen  who  were  exempt  under  earlier 
statutes).  It  has  never  been  suggested  that  men  pressed  for  the 
service  were  not  entitled  to  be  paid. 

2  (1660)  12  Car.  II,  c.  24.  ^  ^^^g^  p^  149. 
*  35  L.  Q.  R.,  p.  32. 


154  CASE   OF  REQUISITION 

Middle  Ages,  to  requisition  for  both  purposes,  there 
was  no  need  to  distinguish  the  powers,  but  that  the 
distinction  became  apparent  as  the  result  of  these 
statutes,  which  are  not  referred  to  when  ships  are 
requisitioned  for  other  purposes.  Whether  or  not 
Professor  Holdsworth's  conclusion  be  justified,  his 
researches  are  directed  rather  to  the  legality  of 
impressment  of  ships  than  to  the  question  whether 
the  exercise  of  the  right  involves  an  obligation  of 
payment.  As  illustrating  his  argument  he  cites 
an  Admiralty  Order  in  Council  of  1691,  which 
recites  the  Act  of  1685  and  provides  for  the  taking 
up  of  ships  for  the  ca.rriage  of  provisions  and  stores 
to  the  plantations  in  the  West  Indies.  At  this  time 
England  was  at  war  with  France,  and  the  requisitions 
made  under  the  statute  were  (and  were  expressed 
to  be)  subject  to  an  obligation  of  payment.  The 
illustrations  cited  in  which  no  reference  is  made  to 
statutory  powers  cover  a  period  from  1676  to  1689. 
In  1676  the  commander  of  a  ship  ordered  to  proceed 
to  Virginia  to  assist  in  suppressing  a  Rebellion  is 
authorized  '  to  have  or  otherwise  imprest  and  take 
up  in  Virginia  any  one  or  more  ships,  vessels,  boats, 
and  what  seamen  shall  be  needful  for  the  manning 
of  the  same,  for  the  performance  of  any  service 
which  shall  be  judged  by  him  to  be  requisite  for  the 
suppression  of  the  Rebellion,  he  paying  for  the  same 
upon  the  place  out  of  the  contingent  money  to  be 
appointed  for  that  service '.  The  remaining  in- 
stances cited  by  Professor  Holdsworth  contain  no 
express  provision  for  payment.  He  points  out  that 
the  practice  of  requisitioning  ships  gradually  ceased, 
and  that  though  barges  and  hoys  were  requisitioned, 
the  warrants  tend  in  general  to  relate  only  to  the 
pressing  of  men. 


\ 


THE  RIGHT  TO  COMPENSATION  155 

In  the  period  of  the  Napoleonic  wars,  sea-going 
vessels  were  not  requisitioned.  China  Mutual  Steam 
Navigation  Co.  v.  Maclay  ^  was  not  decided  upon 
the  prerogative,  but  the  plaintiffs  adduced  evidence  ^ 
(which  was  not  contradicted  or  even  challenged  in 
cross-examination)  to  the  effect  that  all  vessels 
taken  up  by  the  Government  were  in  fact  chartered 
in  the  open  market.  Until  1794  ships  were  procured 
both  for  the  Army  and  Navy  by  the  Navy  Board  ; 
after  that  date  the  requirements  were  provided  for 
by  a  separate  Transport  Board.  No  indication  was 
found  of  the  use  of  compulsory  powers,  while  ships 
were  constantly  being  offered  by  brokers  and 
owners.  Both  Boards  operated  through  agents, 
generally  naval  officers,  stationed  at  the  ports, 
whose  duties  were  defined  by  printed  regulations 
which  include  instructions  that  when  an  order  for 
a  ship  is  received  from  any  proper  authority,  the 
agent  is  to  take  pains  to  obtain  a  ship  as  cheaply 
as  possible,  and  as  near  as  possible  to  the  terms  of 
the  charter  parties  made  out  in  the  Transport  Office. 
No  proclamation  requisitioning  ships  was  found 
in  any  list  of  Proclamations  either  during  the 
Napoleonic  wars  or  at  any  later  period.  In  fact, 
therefore,  no  requisitions  of  ships  were  made  during 
the  Napoleonic  wars  either  under  Common  I^aw 
powers  or  under  any  powers  conferred  by  the  Defence 
Act  of  1795  and  of  1803. 

1  (1918)  1  K.B.  33. 

2  The  evidence  was  given  by  Marcus  Slade,  Esq.,  of  the  Inner 
Temple,  who  had  made  a  search  at  the  Record  Office  for  that 
purpose. 


156  CASE  OF  REQUISITION 


IV 


The  right  to  requisition  ships  was  asserted  at  the 
outbreak  of  war  in  1914  by  a  Royal  Proclamation  ^ 
'  for  authorizing  the  Lords  Commissioners  of  the 
Admiralty  to  requisition  any  British  ship  or  British 
vessel  within  the  British  Isles  or  the  waters  adjacent 
thereto '.  The  proclamation  is  in  the  following 
terms  : 

'  Whereas  a  national  emergency  exists  rendering 
it  necessary  to  take  steps  for  preserving  and  defending 
national  interests  : 

And  whereas  the  measures  approved  to  be  taken 
require  the  immediate  employment  of  a  large  number 
of  vessels  for  use  as  Transports  and  as  Auxiliaries 
for  the  convenience  of  the  Fleet  and  other  similar 
services  but  owing  to  the  urgency  of  the  need  it 
is  impossible  to  delay  the  employment  of  such 
vessels  until  the  terms  of  engagement  have  been 
mutually  agreed  upon : 

Now,  therefore,  we  authorize  and  empower  the 
Lords  Commissioners  of  the  Admiralty  by  warrant 
under  the  hand  of  their  Secretary  or  under  the  hand 
of  any  Flag  Officer  of  the  Royal  Navy  holding  any 
appointment  under  the  Admiralty  to  requisition 
and  take  up  for  Our  service  any  British  ship  or 
British  vessel  as  defined  in  the  Merchant  Shipping 
Act,  1894,  within  the  British  Isles  or  the  waters 
adjacent  thereto,  for  such  period  of  time  as  may  be 
necessary  on  condition  that  the  owners  of  all  ships 
and  vessels  so  requisitioned  shall  receive  payment 
for  their  use,  and  for  services  rendered  during  their 
employment  in  the  Government  service,  and  com- 
pensation for  loss  or  damage  thereby  occasioned, 
according  to  terms  to  be  arranged  as  soon  as  possible 
after  the  said  ship  has  been  taken  up,  either  by 
mutual  agreement  between  the  Lords  Commissioners 
1  Maniml  oj  Emergency  Legislation,  p.  387. 


THE  RIGHT  TO  COMPENSATION  167 

of  the  Admiralty  and  the  owners  or  faihng  such 
agreement  by  the  Award  of  a  Board  of  Arbitration 
to  be  constituted  and  appointed  by  Us  for  this 
purpose.' 

The  Proclamation,  which  was  not  issued  under 
statutory  powers,  while  asserting  a  right  to  requi- 
sition ships,  recognizes  the  principle  that  the  rates 
of  hire  are  a  matter  for  negotiation  and  agreement. 
Standard  rates  of  hire  as  well  as  standard  forms  of 
charter-party  were  settled  in  the  early  days  of  the 
war  by  sub-committees  appointed  to  deal  with 
liners,  cargo-steamers  and  other  classes  of  vessels.^ 
The  right  to  requisition  ships  '  in  order  that  they 
may  be  used  in  the  manner  best  suited  to  the  needs 
of  the  country  '  has  since  been  expressly  conferred 
on  the  Shipping  Controller  by  Regulation  39  B.B.B. 
of  the  Defence  of  the  Realm  Regulations.^  The 
power  of  the  Shipping  Controller  to  requisition 
vessels  for  this  purpose,  as  distinguished  from  his 
right  to  control  the  movements  of  ships  or  to  regulate 
the  rates  of  freight  has  not,  so  far,  been  challenged 
in  the  Courts. 

1  The  Reports,  under  which  what  are  known  as  <  Admiralty 
blue-book  rates  '  were  fixed,  have  been  printed,  but  are  not  on 
sale  by  the  Government  printers. 

2  Ante,  p.  99. 


EXCURSUS  II 
THE  INDEMNITY  ACT,  1920 

At  the  time  when  judgment  was  given  by  the 
House  of  Lords  in  the  Case  there  had  been  introduced 
in  Parhament  a  Bill  which,  after  considerable  dis- 
cussion and  amendment  in  both  Houses  and  before 
a  select  committee  of  the  House  of  Commons, 
received  the  Royal  Assent  on  August  16,  1920, 
under  the  title  of  the  Indemnity  Act,  1920.^ 

The  Act  materially  affects  the  legal  obligations 
of  the  Crown  to  the  subject  in  respect  of  claims 
arising  out  of  the  war.  As  a  precedent  for  future 
legislation,  the  Act  is  of  importance — sinister  or 
benevolent — according  to  individual  views  of  the 
ethical  considerations  by  which  its  effect  upon 
established  constitutional  rights  may  be  either 
deprecated  or  justified. 

While  embodying  the  features  hitherto  associated 
with  Acts  of  Indemnity,  the  Act  contains  much  that 
is  novel  in  the  history  of  our  legislation.  '  An  Act 
of  Indemnity ',  says  Professor  Dicey,^  '  is  a  statute, 
the  object  of  which  is  to  make  legal  transactions 
which  when  they  took  place  were  illegal,  or  to  free 
individuals  to  whom  the  statute  applies  from 
liability  for  having  broken  the  law.'  Such  enact- 
ments, he  observes,  being  as  it  were  the  legalization 
of  illegality  are  the  highest  exertion  of  the  sovereign 
power   wielded   by    Parliament,^    and    '  afford   the 

1  10  &  11  Geo.  V,  c.  48. 

2  Law  of  the  Constitution  (8th  ed.),  pp.  47,  547. 

3  Ibid.,  p.  48.   See  also  Maitland,  Constitutional  History,  p.  386. 


THE  INDEMNITY  ACT,    1920  159 

practical  solution  of  the  problem  which  perplexed 
the  statemanship  of  the  sixteenth  and  seventeenth 
centuries,  how  to  combine  the  maintenance  of  law 
and  the  authority  of  the  Houses  of  Parliament  with 
the  free  exercise  of  that  kind  of  discretionary  power 
or  prerogative  which  under  some  shape  or  other, 
must  at  critical  junctures  be  wielded  by  the  executive 
government  of  every  civilized  country  '/ 

Numerous  instances  of  Acts  of  this  character  are 
to  be  found  in  the  statutes  which  have  followed  the 
suspension  from  time  to  time  of  the  Habeas  Corpus 
Acts,^  with  the  usual  concomitant  of  detention  bv 
the  executive  of  suspected  persons  without  trial. 
Many  cases  suggest  themselves  in  which  servants 
of  the  Crown  in  times  of  national  emergency  may 
have  committed  acts  which,  although  clearly  done 
in  the  public  interest,  were  either  illegal  or  at  all 
events  of  doubtful  legality.  The  form  taken  by 
Acts  of  Indemnity  in  the  past  has  been  to  relieve 
from  the  legal  consequences  of  their  action  such 
persons  as  may  have  incurred  liability  to  individuals. 
This  traditional  object  of  an  Act  of  Indemnity  is 
one  of  the  two  principal  provisions  contained  in 
section  1  of  the  Act  of  1920,  subsection  1  of  which, 
provides  that : 

'  No  action  or  other  legal  proceedings  whatsoever, 
whether  civil  or  criminal,  shall  be  instituted  in  any 
court  of  law  for  or  on  account  of  or  in  respect  of 
any  act,  matter  or  thing  done,  whether  within  or 
without  His  Majesty's  Dominions,  during  the  war  ^ 
before  the  passing  of  this  Act,  if  done  in  good  faith, 

1  Ibid.,  p.  48. 

2  See  for  example  34  Geo.  Ill,  c.  54  (1794)  annually  re-enacted 
until  1801,  and  the  Act  of  Indemnity  (41  Geo.  Ill,  c.  66)  passed 
in  the  latter  year.  ^  Defined  by  section  7  (3). 


160  CASE   OF  REQUISITION 

and  done  or  purported  to  be  done  in  the  execution 
of  his  duty  or  for  the  defence  of  the  realm  or  the 
pubhc  safety,  or  for  the  enforcement  of  disciphne, 
or  otherwise  in  the  pubhc  interest,  by  a  person 
holding  office  under  or  employed  in  the  service  of 
the  Crown  in  any  capacity,  whether  naval,  military, 
air-force  or  civil,  or  by  any  other  person  acting  under 
the  authority  of  a  person  so  holding  office  or  so 
employed;  and,  if  any  such  proceeding  has  been 
instituted  whether  before  or  after  the  passing  of 
this  Act,  it  shall  be  discharged  and  made  void, 
subject  in  the  case  of  a  proceeding  instituted  before 
the  twentieth  day  of  July,  nineteen  hundred  and 
twenty,  to  such  order  as  to  costs  as  the  court  or 
a  judge  thereof  may  think  fit  to  make  :  ' 

But  the  section  has  plainly  a  far  wider  operation 
than  would  be  necessary  in  order  to  give  to  servants 
of  the  Crown  the  traditional  form  of  relief  against 
actions  founded  upon  the  exercise  of  illegal  or  exces- 
sive powers/  It  provides  not  only  for  indemnity 
to  the  servants  of  the  Crown  against  personal 
liability,  but  prohibits  all  legal  proceedings,  of  what- 
ever nature,  against  the  Crown,  in  respect  of  any- 
thing done  during  the  war  and  in  terms  provides^ 
that  for  the  purposes  of  the  section  a  Petition  of 
Right  shall  be  deemed  to  be  a  '  legal  proceeding  '. 

^  The  immunity  from  legal  proceedings  conferred  by  section  1 
is  of  course  subject  to  the  condition  that  the  Act  complained  of 
was  done  in  good  faith  and  in  the  execution  of  duty  or  for  the 
defence  of  the  realm  or  the  pubhc  safety  or  for  the  enforcement 
of  discipline  '  or  otherwise  in  the  public  interest '  by  a  person 
holding  office  under  or  employed  in  the  service  of  the  Crown. 
A  certificate  by  a  Government  Department  is  sufficient  evidence 
of  authority  (s.  1  (3)).  Acts  done  under  such  authority  are 
presumed  to  have  been  done  in  good  faith,  the  onus  of  proving 
the  contrary  being  upon  the  complainant  (ibid.). 

2  Sect.  1,  subsect.  (2). 


THE  INDEMNITY  ACT,    1920  161 

This  prohibition  is,  no  doubt,  subject  to  certain 
modifications,  of  which  the  most  material  is  the 
proviso  to  sect.  1,  subsect.  (1)  that  '  except  in  cases 
where  a  claim  for  payment  of  compensation  can  be 
brought  under  section  two  of  this  Act  this  section 
shall  not  prevent  (inter  alia) : 

(b)  '  the  institution  or  prosecution  of  proceedings  in 
respect  of  any  rights  under,  or  alleged  breaches  of, 
contract,  if  the  proceedings  are  instituted  within  one 
year  from  the  termination  of  the  war  or  the  date 
when  the  cause  of  action  arose,  whichever  may 
be  the  later.' 

But  whilst  the  procedure  by  Petition  of  Right  is 
thus  generally  preserved  as  regards  actions  for  breach 
of  contract  the  effect  of  the  exception  contained  in 
the  proviso  is  to  prevent  any  petition  being  brought 
for  compensation  for  the  requisition  of  private 
property.  Such  claims  are  referred  to  a  special 
tribunal  under  the  provisions  of  section  2,  sub- 
section (1)  of  which  is  as  follows  : 

'  Notwithstanding  anything  in  the  foregoing  section 
restricting  the  right  of  taking  legal  proceedings,  any 
person  not  being  a  subject  of  a  state  which  has  been 
at  war  with  His  Majesty  during  the  war  and  not 
having  been  a  subject  of  such  a  state  whilst  that 
state  was  so  at  war  with  His  Majesty — 

(a)  being  the  owner  of  a  ship  or  vessel  which  or 
any  cargo  space  or  passenger  accommodation 
in  which  has  been  requisitioned  at  any  time 
during  the  war  in  exercise  or  purported 
exercise  of  any  prerogative  right  of  His 
Majesty  or  of  any  power  under  any  enactment 
relating  to  the  defence  of  the  realm,  or  any 
regulation  or  order  made  or  purporting  to 
be  made  thereunder,  shall  be  entitled  to 
payment  or  compensation  for  the  use  of  the 

2388  jjj 


162  CASE  OF  REQUISITION 

same  and  for  services  rendered  during  the 
employment  of  the  same  in  Government 
service,  and  compensation  for  loss  or  damage 
thereby  occasioned ;  or 
(h)  who  has  otherwise  incurred  or  sustained  any 
direct  loss  or  damage  by  reason  of  interference 
with  his  property  or  business  in  the  United 
Kingdom  through  the  exercise  or  purported 
exercise,  during  the  war,  of  any  prerogative 
right  of  His  Majesty  or  of  any  power  under 
any  enactment  relating  to  the  defence  of  the 
realm,  or  any  regulation  or  order  made  or 
purporting  to  be  made  thereunder,  shall  be 
entitled  to  payment  or  compensation  in 
respect  of  such  loss  or  damage  ; 

and  such  payment  or  compensation  shall  be  assessed 
on  the  principles  and  by  the  tribunal  hereinafter 
mentioned,  and  the  decision  of  that  tribunal  shall 
be  final : 

Provided  that — 

(i)  The  provisions  as  to  the  statement  of  a  case 
in  any  enactment  relative  to  arbitrations 
shall  not  apply  to  any  such  tribunal,  but  if 
either  party  feels  aggrieved  by  any  direction 
or  determination  of  the  tribunal  on  any  point 
of  law,  he  may,  within  the  time  and  in  accord- 
ance with  the  conditions  prescribed  by  rules 
of  court,  appeal  to  the  Court  of  Appeal,  or 
as  respects  Scotland  to  either  division  of 
the  Court  of  Session,  and  the  decision  of 
the  Court  of  Appeal  or  Court  of  Session  on 
any  such  appeal  shall,  with  the  leave  of  that 
Court  but  not  otherwise,  be  subject  to  appeal 
to  the  House  of  Lords  ; 

(ii)  nothing  in  this  section  shall  confer  on  Si,ny 
person  a  right  to  payment  or  compensation 
unless  notice  of  the  claim  has  been  given  to 
the  tribunal  in  such  form  and   manner  as 


THE  INDEMNITY  ACT,   1920  16& 

the  tribunal  may  prescribe  within  one  year 
from  the  termination  of  the  war  or  the  date 
when  the  transaction  giving  rise  to  the  claim 
took  place,  whichever  may  be  the  later.' 

This  section  it  will  be  observed  covers  all  cases 
of  requisition,  whether  of  ships,  of  land,  or  of  chattels. 
Under  subsection  (2)  of  section  2,  compensation  is 
to  be  assessed  in  accordance  with  the  following 
principles  : 

(i)  Where  under  any  Regulation  or  order  made  or 
purporting  to  be  made  under  any  enactment 
relating  to  the  defence  of  the  realm,  any 
special  principle  for  assessment  of  any  pay- 
ment (including  any  price  to  be  paid)  or 
compensation  or  the  rate  thereof,  is  con- 
tained in  the  Regulation  or  order,  such  pay- 
ment or  compensation  shall  be  assessed  in 
accordance  with  that  principle  or  rate  : 

Provided  that  nothing  in  this  provision 
shall  prevent  the  tribunal  in  assessing  the 
payment  or  compensation  from  taking  into 
consideration  any  circumstances  which,  under 
the  regulation  in  question,  it  would  have  been 
entitled  to  take  into  consideration. 

(ii)  Where  the  payment  or  compensation  is  claimed 
under  paragraph  {a)  of  subsection  (I)  of  this 
section,  it  shall  be  assessed  in  accordance 
with  the  principles  upon  which  the  Board 
of  Arbitration  constituted  under  the  pro- 
clamation issued  on  the  third  day  of  August 
nineteen  hundred  and  fourteen  has  hitherto 
acted,  which  principles  are  set  forth  in  Part  I. 
of  the  Schedule  to  this  Act. 

^        (iii)  In    any    other   case,  compensation  shall  be 
assessed  as  follows  : — 

(a)    If  the  claimant  would,  apart  from 
this  Act,  have  had  a  legal  right  to  compensa- 

M2 


164  CASE  OF  REQUISITION 

tion  the  tribunal  shall  give  effect  to  that 
right,  but  in  assessing  the  compensation 
shall  have  regard  to  the  amount  of  the 
compensation  to  which,  apart  from  this 
Act,  the  claimant  would  have  been  legally 
entitled,  and  to  the  existence  of  a  state  of 
war  and  to  all  other  circumstances  relevant 
to  a  just  assessment  of  compensation  : 

Provided  that  this  subsection  shall  not 
give  any  right  to  payment  or  compensation 
for  indirect  loss. 

(b)  If  the  claimant  would  not  have  had 
any  such  legal  right,  the  compensation 
shall  be  assessed  in  accordance  with  the 
principles  upon  which  the  Commission 
appointed  by  His  Majesty  under  Commis- 
sions dated  the  thirty-first  day  of  March, 
nineteen  hundred  and  fifteen,  and  the 
eighteenth  day  of  December,  nineteen  hun- 
dred and  eighteen  (commonly  known  as 
the  Defence  of  the  Realm  Losses  Commis- 
sion), has  hitherto  acted  in  cases  where  no 
special  provision  is  made  as  to  the  assess- 
ment of  compensation,  which  principles  are 
set  forth  in  Part  II.  of  the  Schedule  to 
this  Act.' 

Claims  for  compensation  accordingly  fall  under 
three  heads.  Firstly,  the  special  principles  of  assess- 
ment which  have  been  laid  down  in  the  Defence  of  the 
Realm  Regulations  are  to  apply,  with  the  result  (for 
example)  that  for  the  existing  market  price  of  chattels 
there  is  to  be  substituted  an  assessment  on  the  basis 
of  cost,  with  the  addition  of  an  allowance  for  profit 
usually  earned  before  the  war.  Secondly,  claims  by 
shipowners  are  to  be  assessed  in  accordance  with 
the  principles  hitherto  acted  upon  by  the  Admiralty 
Transport  and  Arbitration  Board.      Thirdly,  a  dis- 


THE  INDEMNITY  ACT,    1920  165 

tinction  is  drawn  between  cases  in  which,  apart 
from  the  Act,  a  claimant  would  have  had  a  legal 
right  to  compensation,  and  cases  in  which  he  would 
have  had  no  such  right. 

The  application  of  the  rules  laid  down  under 
the  third  head  will,  it  may  be  anticipated,  give 
rise  to  considerable  difficulty.  In  the  first  place 
compensation  on  a  somewhat  more  generous  scale 
appears  to  be  contemplated  in  cases  in  which 
a  claimant  can  establish  a  legal  right,  apart  from  the 
Act,  than  in  those  in  which  his  loss  is  not  of  such 
a  nature  as  would  give  him  a  legal  cause  of  action. 
An  instance  of  a  case  in  which  a  legal  right  to  com- 
pensation exists  is  that  of  the  occupation  of  land,  as 
laid  down  in  the  judgments  in  the  Case,  the  measure 
of  compensation  being  that  which  is  provided  by  the 
Defence  Acts,  and  the  Defence  of  the  Realm  Regula- 
tions lay  down  '  no  special  principle  for  assessment '. 
How  the  Courts  will  in  such  cases  interpret  the 
direction  that  regard  is  to  be  had  to  the  war  and  to 
all  other  relevant  circumstances,  it  is  not  easy  to 
forecast.  In  the  case  of  ships,  however,  and  still 
more  in  the  case  of  chattels  the  position  is  even 
more  obscure.  According  to  the  decision  in  Newcastle 
Breweries  Ltd,  v.  The  King,^  the  right  to  com- 
pensation for  goods  requisitioned  for  the  Navy  or 
Army  is  a  statutory  right,  the  compensation  being 
assessable  on  the  basis  of  the  fair  market  value. 
But  for  this  measure  there  is  now  substituted 
the  principle  of  assessment  upon  the  basis  of  cost, 
together  with  an  allowance  for  profit  at  the  rate 
usually  earned  before  the  war,  as  provided  by  Defence 
of  the  Realm  Regulation  2  B.    Is  an  owner  of  chattels 

1  (1920)  1  K.B.  854. 


166  CASE  OF  REQUISITION 

so  requisitioned  entitled  to  the  benefit  of  an  assess- 
ment under  subsection  (2)  (iii)  (a)  on  the  footing 
that  he  is  in  a  position,  apart  from  the  Act,  to 
estabhsh  a  legal  right  ?  And,  further,  assuming 
a  case  of  requisition  in  which  the  claim  to  compensa- 
tion rests  entirely  on  common  law  principles  which 
have  not  been  determined  by  adjudication  in  the 
Courts,  is  he  to  undertake  the  burden  of  establishing 
a  legal  right  to  compensation,  in  order  to  bring  his 
claim  within  the  operation  of  subsection  (2)  (iii)  (a)  ? 

If  section  2  (iii)  (a)  had  provided  that  the  tribunal 
shall  give  effect  to  a  legal  right,  if  and  when  estab- 
lished, without  qualification,  the  ordinary  rules  of 
law  for  the  assessment  of  damage  or  compensation 
would  apply.  But  the  subsection  affords  no  guidance 
as  to  how  the  tribunal  is  to  '  have  regard  to  '  what 
are  apparently  intended  to  be  modifications  of  the 
ordinary  principles  of  legal  assessment. 

In  the  next  place  claims  for  '  indirect  loss  '  are 
excluded.  If  this  expression  be  intended  as  an 
affirmation  of  the  rule  that  only  direct  and  not 
remote  damages  are  recoverable  in  law,  it  would 
appear  to  be  superfluous.  If,  on  the  other  hand, 
the  effect  be  to  introduce  the  somewhat  restricted 
principles  upon  which  compensation  has  been  hither- 
to awarded  by  the  Defence  of  the  Realm  Losses 
Commission,  the  distinction  between  cases  falling 
within  subsection  (a)  and  those  which  fall  within 
subsection  (b)  would  to  some  extent  disappear. 

It  is  not  within  the  scope  of  this  excursus  to 
suggest  solutions  of  these  difficulties,  and  indeed  any 
attempt  to  do  so  would  be  premature,  until  some 
indication  has  been  afforded  by  the  decisions  of  the 
tribunal  constituted  by  the  Act,  of  the  proper 
construction  to  be  placed  upon  its  provisions. 


THE  INDEMNITY  ACT,   1920  167 

For  the  ancient  form  of  procedure  by  Petition 
of  Right  the  Act  substitutes  special  tribunals  under 
section  2  (4)  : 

'  The  tribunal  for  assessing  payment  or  compensa- 
tion shall,  where  by  any  of  the  Defence  of  the  Realm 
Regulations  any  special  tribunal  is  prescribed,  be 
that  tribunal,  and  in  cases  where  the  claim  is  made 
under  paragraph  (a)  of  subsection  (1)  of  this  section 
be  the  said  Board  of  Arbitration,  and  in  any  other 
case  be  the  said  Defence  of  the  Realm  Losses  Com- 
mission.' 

The  principal  burden  will  no  doubt  fall  in  future 
upon  the  Defence  of  the  Realm  Losses  Commission 
under  its  new  title  of  the  War  Compensation  Court, 
over  which  a  Judge  of  the  High  Court  of  Justice, 
or,  in  cases  where  the  claim  is  in  respect  of  inter- 
ference with  property  or  business  in  Scotland 
a  Judge  of  the  Court  of  Session  will  preside/ 
The  legal  character  of  the  tribunals  charged  with 
the  duty  of  assessing  compensation  is  further  empha- 
sized by  the  provisions  for  appeals  on  questions  of  law 
contained  in  proviso  (i)  to  section  2,  subsect.  (l).^  . 

^  s.  2,  subsect.  (5). 


APPENDIX  A 

Ibouee  of  Xorb6- 

Monday,  May  10,  1920. 

THE  ATTORNEY-GENERAL  (on  behalf  of  His 

Majesty)         .......        Appellant 

AND 

DE  KEYSER'S  ROYAL  HOTEL,  LIMITED     .  Eespondents, 

Lords  present  : 

LORD  DUNEDIN. 
LORD  ATKINSON. 
LORD  MOULTON. 
LORD  SUMNER. 
LORD  PARMOOR. 

JUDGMENT  1 

LORD  DUNEDIN  :  My  Lords,  it  will  be  well  that  I  should 
first  set  forth  succinctly  the  facts  which  give  rise  to  the  present 
Petition,  all  the  more  that  as  regards  them  there  is  no  real 
controversy  between  the  parties.  [His  Lordship  then  stated 
the  facts  as  set  out  at  pp.  I  to  3,  ante.]  The  relief  asked  was  :  '  (1) 
A  declaration  that  your  suppliants  are  entitled  to  payment  of 
an  annual  rent  so  long  as  Your  Majesty's  Principal  Secretary  of 
State  for  the  War  Department  or  Your  Majesty's  Army  Council 
or  any  other  person  or  persons  acting  on  Your  Majesty's  behalf 
continues  in  use  and  occupation  of  the  said  premises.  (2)  The 
sum  of  £13,520  lis.  Id.  for  use  and  occupation  of  your  suppliants' 
said  premises  by  your  suppliants'  permission  from  the  8th  day 
of  May  1916  to  the  14th  day  of  February  1917.  (4)  A  declaration 
that  your  suppliants  are  entitled  to  a  fair  rent  for  use  and 
occupation  by  way  of  compensation  under  the  Defence  Act, 
1842.'  To  this  reply  was  made  by  the  Attorney-General  on 
behalf  of  His  Majesty  to  the  following  effect  :  '  (7)  No  rent  or 
compensation  is  by  law  payable  to  the  suppliants  in  respect  of 
the  matters  aforesaid  or  any  of  them  either  under  the  Defence 
Act,  1842,  or  at  all.    The  suppliants  have  been  offered  on  behalf 

^  From  the  shorthand  notes  of  Walsh  &  Sons,  4  New  Court,  Carey  Street,  W.C. 


JUDGMENT   (LORD  DUNEDIN)  169 

of  His  Majesty  payment  of  such  sum  as  in  the  opinion  of  the 
Defence  of  the  Realm  Losses  Commission  ought  in  reason  and 
fairness  to  be  paid  to  them  out  of  public  funds  in  respect  of 
direct  and  substantial  loss  incurred  and  damage  sustained  by 
them  by  reason  of  interference  with  their  property  or  business  in 
the  United  Kingdom  through  the  exercise  by  the  Crown  as 
aforesaid  of  its  rights  and  duties  in  the  Defence  of  the  Realm/ 
The  case  depended  before  Mr.  Justice  Peterson,  who  dismissed 
the  Petition,  ^  holding  himself  bound  by  the  decision  of  the  Court 
of  Appeal  in  In  re  Petition  of  Right.^  Appeal  being  taken 
to  the  Court  of  Appeal,  that  Court,  by  a  majority,  Lord  Justice 
Swinfen  Eady  (Master  of  the  Rolls)  and  Lord  Justice  Warrington, 
Lord  Justice  Duke  dissenting,  reversed  the  decision  of  Mr.  Justice 
Peterson  and  made  the  following  declaration  :  '  And  this  Court 
doth  declare  that  the  suppliants  are  entitled  to  a  fair  rent  for 
use  and  occupation  of  De  Keyser's  Royal  Hotel  on  the  Thames 
Embankment,  in  the  City  of  London,  by  way  of  compensation 
under  the  Defence  Act,  1842.'  ^  Against  this  Order  the  present 
Appeal  has  been  brought. 

My  Lords,  I  shall  mention  first,  in  order  to  put  it  aside,  one 
argument  put  forward  by  the  respondents.  It  was  that  the 
Crown  should  pay  a  reasonable  sum  for  use  and  occupation  of 
the  premises  upon  the  ground  of  an  implied  contract,  the  entry 
of  the  Crown  to  the  premises  having  been  permitted  by  the 
Receiver,  and  taken  by  the  Crown  in  virtue  of  the  Receiver's 
permission.  The  simple  answer  to  this  argument  is  that  the  facts 
as  above  recited  do  not  permit  of  its  application.  In  any  case 
of  implied  contract  there  must  be  implied  assent  to  a  contract 
on  both  sides.  Here  there  was  no  such  assent.  There  was  no 
room  for  doubt  as  to  each  party's  position.  The  Crown  took  as 
of  right,  basing  that  right  specifically  on  the  Defence  of  the 
Realm  Act.*  The  Receiver  did  not  offer  physical  resistance  to 
the  taking,  and  was  content  to  facilitate  the  taking.  He  emphati- 
cally reserved  his  rights,  and  gave  clear  notice  that  he  main- 
tained that  the  Crown  was  wrong  in  its  contention,  and  that  no 
case  for  taking  under  the  Defence  of  the  Realm  Act  had  arisen  : 
in  other  words,  that  the  Crown  had  under  these  circumstances, 
according  to  their  proposals,  unlawfully  taken.  To  spell  out 
of  this  attitude  on  either  side  an  implied  contract  is,  to  my  mind, 
a  sheer  impossibility.    Now  that  the  act  of  taking  by  the  Crown 

1  34  T.L.R.  329.  ^  19^5^  3  k.B.  649.  «  (1919)  2  Ch.  197. 

*  Defence  of  the  Realm  Consolidation  Act,  1914,  5  Geo.  V,  c.  8. 


170   ATT.-GEN.  v.  DE  KEYSERS  HOTEL,  LTD. 

was  in  itself  legal  is  necessarily  admitted  by  both  sides.  It  is 
the  basis  of  the  case  for  the  Crown,  who  said  at  the  time  that 
they  took  under  the  Defence  of  the  Realm  Act,  and  now  add  in 
argument  that  whether  that  was  so  or  not  they  took  de  facto, 
and  can  justify  that  taking  under  the  powers  of  the  Prerogative. 
It  must  necessarily  be  admitted  by  the  respondents,  for  if  taking 
in  itself  was  purely  illegal,  then  it  would  be  a  tort  not  committed 
by  the  Crown,  who  cannot  commit  a  tort,  but  by  the  Officers  of 
the  Crown,  and  the  Petition  of  Right  would  not  lie.  The  question 
in  the  case  is  therefore  narrowed  to  one  point,  and  one  point 
only  ;  the  Crown  having  legally  taken,  is  it  bound  to  pay  com- 
pensation ex  lege,  or  is  the  offer  to  pay  compensation  ex  gratia, 
as  that  compensation  may  be  fixed  by  the  Losses  Commission, 
a  sufficient  offer  and  an  answer  to  all  demands  ? 

My  Lords,  I  have  already  quoted  the  letter  of  May  1,  which 
shows  that  the  War  Office  propose  to  take  possession  of  the 
hotel  under  the  Defence  of  the  Realm  Regulations,  but  in  the 
argument  in  the  Court  below,  and  before  your  Lordships,  the 
taking  has  been  justified  by  the  power  of  the  Prerogative  alone, 
and  there  has  been  a  very  exhaustive  citation  »of  authority  on 
the  powers  of  the  Crown  in  virtue  of  the  Prerogative.  I  do  not 
think  it  necessary  to  examine  and  comment  on  the  various  cases 
cited.  The  foundations  of  the  contention  are  to  be  found  in  the 
concessions  made  in  the  speech  of  Mr.  St.  John  in  Hampden' s 
Case}  and  in  the  opinion  of  the  consulted  Judges  in  the  Saltpetre 
Case.^  I  do  not  quote  them,  for  they  are  fully  quoted  in  the 
judgments  of  the  Courts  below  and  in  the  opinions  of  the 
learned  Judges  in  In  re  a  Petition  of  Right.  The  most  that  could 
be  taken  from  them  is  that  the  King,  as  suprema  potestas, 
endowed  with  the  right  and  duty  of  protecting  the  Realm,  is 
for  the  purpose  of  the  defence  of  the  Realm  in  times  of  danger 
entitled  to  take  any  man's  property,  and  that  the  texts  give  no 
certain  sound  as  to  whether  this  right  to  take  is  accompanied  by 
an  obligation  to  make  compensation  to  him  whose  property  is 
taken.  In  view  of  this  silence  it  is  but  natural  to  inquire  what 
has  been  the  practice  in  the  past.  An  inquiry  as  to  this  was 
instituted  in  this  case,  and  there  has  been  placed  before  your 
Lordships  a  volume  of  extracts  from  the  various  records.  The 
search  is  admittedly  not  exhaustive,  but  it  is  sufficient  to  be 
illustrative.  The  learned  Master  of  the  Rolls  in  his  judgment  ^ 
has  analysed  the  documents  produced.     He  has  divided  the 

(1637)  3  How.  St.  Tr.  825.      »  (1606)  12  Rep.  12.       «  (1919)  2  Ch  221. 


JUDGMENT  (LORD  DUNEDIN)  171 

time  occupied  by  the  search  into  three  periods,  the  first  prior 
to  1708,  then  from  1708  to  1798,  and  the  third  subsequent  to 
1798.  The  first  period  contained  instances  of  the  acquiral  of 
private  property  for  the  purposes  of  defence  by  private  negotia- 
tion, in  all  of  which,  it  being  a  matter  of  negotiation,  there  is 
reference  to  the  payment  to  be  offered  for  the  land  taken.  With 
the  second  period  we  begin  the  series  of  statutes  which  authorize 
the  taking  of  lands  and  make  provision  for  the  assessment  of 
compensation,  the  statutes  being,  however,  of  a  local  and  not  of 
a  general  character,  dealing  each  with  the  particular  lands  pro- 
posed to  be  acquired.  The  third  period  begins  with  the  intro- 
duction of  general  statutes  not  directed  to  the  acquisition  of 
particular  lands,  and  again  making  provision  for  the  assessment 
and  payment  of  compensation. 

I  shall  refer  to  the  statutes  presently,  but,  generally  speaking, 
what  can  be  gathered  from  the  records  as  a  matter  of  practice 
seems  to  resolve  itself  into  this.  There  is  a  universal  practice  of 
payment  resting  on  bargain  before  1708,  and  on  statutory  power 
and  provision  after  1708.  On  the  other  hand,  there  is  no  mention 
of  a  claim  made  in  respect  of  land  taken  under  the  Prerogative 
for  the  acquisition  of  which  there  was  neither  bargain  nor  statu- 
tory sanction.  Nor  is  there  any  proof  that  any  such  acquisition 
had  taken  place.  My  Lords,  I  do  not  think  that  from  this  usage 
of  payment  there  can  be  imposed  on  the  Crown  a  customary 
obligation  to  pay,  for  once  the  taking  itself  is  admitted  to  be  as 
of  right  the  usage  of  payment  so  far  as  not  resting  on  statutory 
provision  is  equally  consistent  with  a  payment  ex  lege  and  a  pay- 
ment ex  gratia.  On  the  other  hand,  I  think  it  is  admissible  to 
consider  the  statutes  in  the  light  of  the  admitted  custom  to  pay, 
for  in  the  face  of  a  custom  of  payment  it  is  not  surprising  that 
there  should  be  consent  on  the  part  of  the  Crown  that  this  branch 
of  the  Prerogative  should  be  regulated  by  statute.  It  is  just  here 
that  the  full  investigation  into  the  statutory  history  which  has 
been  made  in  this  case,  and  of  which  the  Court  of  Appeal  and 
your  Lordships  have  had  the  advantage,  serves  to  dislodge  a  view 
which  I  cannot  help  thinking  was  very  influential  in  determining 
the  judgment  of  the  Court  of  Appeal  in  the  case  of  In  re  a 
Petition  of  Right. ^  Digressing  for  the  moment  to  that  case, 
I  am  bound  to  say  that  I  do  not  think  that  this  case  can  be 
distinguished  from  that  in  essential  particulars.  The  existence 
of  a  state  of  war  is  common  to  both.    As  to  the  necessity  for  the 

>  (1916)  3  K.B.  649. 


172     ATT.-GEN.  v.  DE  KEY8ER8  HOTEL,  LTD. 

taking  over  of  the  particular  subject,  the  Crown  Authorities 
must  be  the  judge  of  that,  and  the  evidence  as  to  the  necessity 
for  the  occupation  of  these  premises  in  the  opinion  of  the  Crown 
advisers  is  just  as  distinct  and  uncontradicted  in  this  case  as  it 
was  in  that.  I  confess  that  had  I  been  sitting  in  the  Court  of 
Appeal  I  should  have  held  the  same  view  as  was  expressed  by 
Mr.  Justice  Peterson,  namely,  that  it  was  ruled  by  the  case  of 
In  re  a  Petition  of  Right. ^  This,  however,  is  immaterial,  for 
In  re  a  Petition  of  Right  ^  is  not  binding  on  this  House,  and  it 
would  have  been  equally  proper  for  the  learned  Master  of  the 
Rolls,  Lord  Justice  Swinfen  Eady,  and  for  Lord  Justice  Warring- 
ton who  had  obviously  changed  his  opinion  on  further  argument, 
to  give  your  Lordships  the  benefit  of  the  opinions  they  had  come 
to  on  the  merits,  even  if,  being  unable  to  distinguish  between 
the  two  cases,  their  judgment  had  been  formally  given  to  the 
opposite  effect  from  what  it  was. 

Now  the  view  which  I  think  prevailed  in  In  re  a  Petition  of 
Right  was  that  the  Prerogative  gives  a  right  to  take  for  use  of  the 
moment  in  a  time  of  emergency,  that  when  you  come  to  the 
Defence  Acts  of  1803  and  1842  you  find  a  code  for  the  taking  of 
land  permanently  in  times  of  peace  as  well  as  of  war,  and  that 
consequently  the  two  systems  could  well  stand  side  by  side  ;  and 
then  as  there  was  no  direct  mention  of  the  Prerogative  in  the 
statutes  you  were  assisted  by  the  general  doctrine  that  the 
Crown  is  not  bound  by  a  statute  unless  specially  mentioned. 
That  in  cases  where  the  burden  or  tax  is  imposed  the  Crown  must 
be  specifically  mentioned,  no  one  doubts.  Instances  are  given 
by  the  Master  of  the  Rolls  in  the  cases  of  Wheaton  v.  Maple,^ 
and  Coomber  v.  Justices  of  Berks,^  and  there  are  manyothers. 
None  the  less,  it  is  equally  certain  that  if  the  whole  ground  of 
something  which  could  be  done  by  the  Prerogative  is  covered 
by  the  statute,  it  is  the  statute  that  rules.  On  this  point  I  think 
the  observation  of  the  learned  Master  of  the  Rolls  is  unanswer- 
able. He  says  :  '  What  use  would  there  be  in  imposing  limita- 
tions if  the  Crown  could,  at  its  pleasure,  disregard  them  and 
fall  back  on  Prerogative  ?  '  The  Prerogative  is  defined  by  a 
learned  constitutional  writer  as  '  The  residue  of  discretionary  or 
arbitrary  authority  which  at  any  given  time  is  legally  left  in 
the  hands  of  the  Crown.'  Inasmuch  as  the  Crown  is  a  party 
to  every  Act  of  Parliament,  it  is  logical  enough  to  consider  that 
when  the  Act  deals  with  something  which  before  the  Act  could 
»  (1915)  3  K.B.  649.  ^  (1393)  3  ch.  64.  ^  (1883)  9  A.C.  61. 


JUDGMENT  (LORD  DUNEDIN)  173 

be  effected  by  the  Prerogative  and  specially  empowers  the  Crown 
to  do  the  same  thing  but  subject  to  conditions,  the  Crown  assents 
to  that,  and  by  that  Act,  to  the  Prerogative  being  curtailed. 

I  have  read  very  carefully  and  considered  the  judgments 
delivered  in  In  re  a  Petition  of  Right}  and  it  is,  I  think,  apparent 
that  the  view  of  the  series  of  statutes  there  presented  was  that 
the  general  statutes  had  their  inception  for  the  purpose  of  perma- 
nent acquisition  in  times  of  peace  as  well  as  of  war,  but  in  the 
fuller  citation  that  has  been  made  in  this  case  we  find  that  this 
is  not  so.  It  is  somewhat  significant  that  in  the  first  statute  of 
all  dealing  with  the  acquisition  of  land,  7  Anne,  c.  26,  we  have 
a  reference  to  '  the  usual  methods  '  that  had  been  taken  to 
prevent  extortionate  demands,  and  the  usual  methods  are  said  to 
be  a  valuation  by  jury.  It  is  also  significant  that  in  the  whole 
statutory  series  there  is  no  trace  of  any  claim  to  take  under  the 
Prerogative  and  not  to  pay.  On  the  contrary,  for  instance,  in 
31  Geo.  II,  c.  39,  date  1757,  we  find  during  the  war  (that  is  the 
Seven  Years  War)  land  had  actually  been  taken,  that  extravagant 
claims  were  feared,  and  then  that  is  followed  by  a  statutory 
provision  for  vesting  the  lands  taken  in  trustees  till  the  price 
may  be  paid  as  fixed  by  assessment  by  jury,  and  then  on  payment 
the  trustees  are  to  hold  for  His  Majesty.  But  the  real  point 
seems  to  me  to  be  that  we  find  that  even  before  the  idea  of 
a  general  Act,  that  is  to  say,  when  the  Acts  were  limited  in  time 
to  the  continuance  of  a  war,  there  is  provision  made  for  a  tem- 
porary taking  and  for  payment,  or,  in  other  words,  for  getting 
by  statute,  with  the  concomitant  obligation  of  payment,  that 
very  temporary  possession  which,  according  to  the  view  expressed 
above,  was  the  function  of  the  Prerogative  to  provide  free  of 
charge,  leaving  it  to  statute  to  provide  for  a  permanent  acqui- 
sition. Thus  in  38  Geo.  Ill,  c.  27,  date  1798,  in  the  middle  of 
the  war  with  the  revolutionary  Government  of  France,  which 
began  in  February  1793  and  ended  with  the  Peace  of  Amiens  in 
March  1802,  we  find  in  section  10  powers  given  to  His  Majesty  to 
authorize  a  general  officer  to  mark  out  any  piece  of  ground 
wanted  for  the  public  service,  and  to  treat  with  the  owner  thereof 
or  any  person  or  persons  having  any  interest  therein  '  for  the 
possession  or  use  thereof  during  such  time  as  the  exigencies  of 
the  service  shall  require  ',  and  in  case  of  refusal,  to  take  the  land 
and  get  the  value  assessed  by  jury.  This  Act  was  limited  to  the 
continuance  of  the  war.  War  again  broke  out  against  France  on 
»  (1915)  3  K.B.  649. 


174   ATT. -GEN.  v.  DE  KEYSETS  HOTEL,  LTD. 

April    29,    1803,    Napoleon    being    first    Consul    for    life,    and 

43  Geo.  Ill,  c.  35,  July  1803,  repeated  the  provisions  of 
38  Geo.  Ill,  c.  27.  It  again  was  limited  to  the  duration  of  '  the 
present  hostilities  with  France  '.  Then  in  1804,  there  being 
still  war  with  France  and  a  prospect  of  invasion  by  Napoleon, 

44  Geo.  Ill,  c.  95,  was  passed.  This  had  no  temporary  clause. 
It  recited  that  doubts  had  arisen  as  to  whether  the  Act  of  1803 
authorized  permanent  acquisition,  and  it  proceeded  to  provide 
for  temporary  taking,  using  the  old  phrase  '  for  such  time  as 
the  exigencies  of  the  public  service  may  require  ',  and  contained 
the  old  arrangements  for  assessment  of  the  payment  by  a  jury. 
This  Act  was  the  forerunner  of,  and  was  superseded  by,  the 
existing  Act  of  1842,^  which  again  repeats  the  words  '  during  the 
exigencies  of  the  public  service  '.  This  Act  was  passed  in  time 
of  peace.  It  thus  appears  that  the  inception  of  the  legislation 
was  during  that  very  period  and  connected  with  that  very 
requirement  which,  if  the  argument  in  In  re  a  Petition  of  Right 
was  sound,  was  satisfied  by  the  powers  of  the  Prerogative  alone, 
that  is  to  say,  it  dealt  with  temporary  acquisition  during  a  period 
of  war,  and  the  Act  of  1842  only  continued  that  legislation. 
It  is  therefore  impossible,  in  my  opinion,  to  say  that  the  whole 
field  of  the  Prerogative  in  the  matter  of  the  acquisition  of  land 
or  rights  therein  was  not  covered  by  the  Act  of  1842.  It  follows 
from  what  I  have  said  above  that  there  is  no  room  for  asserting 
an  unrestricted  Prerogative  right  as  existing  alongside  with  the 
statutory  powers  authorizing  the  Crown  to  acquire  on  certain 
terms.  The  conclusion  is  that  the  Crown  could  not  take  the 
Petitioners'  premises  by  the  powers  of  the  Prerogative  alone. 

I  now  come  to  the  Defence  of  the  Realm  Consolidation 
Act  of  1914,2  the  Act  under  the  powers  of  which  the  Crown 
professes  to  take.  Now,  just  as  the  statutes  must  be  interpreted 
in  view  of  what  the  rights  and  practices  antecedent  to  them 
had  been,  so  we  must  look  at  the  Defence  of  the  Realm  Act  in 
view  of  the  law  as  it  stood  previous  to  its  passing.  The  Defence 
of  the  Realm  Consolidation  Act,  1914,  passed  on  November  27, 
1914,  declares  by  section  1,  subsection  (1),  that  His  Majesty 
has  power  during  the  continuance  of  the  war  to  issue  regulations 
for  securing  the  public  safety  and  the  defence  of  the  realm. 
Subsection  (2)  says  that  any  such  regulations  may  provide  for 
the  suspension  of  any  restrictions  on  the  acquisition  or  user  of 
land  .  .  .  under  the  Defence  Acts,  1842  to  1875.     Pursuant  to 

1  5  &  6  Vict.  c.  94.  2  5  Geo.  V,  c.  8. 


JUDGMENT  (LORD  DUNEDIN)  175 

this  Act  a  regulation  was  issued  on  November  28,  1914,  which 
empowered  the  competent  Naval  or  Military  Authority,  or  any 
person  authorized  by  him,  *  when  for  the  purpose  of  securing  the 
public  safety  or  the  defence  of  the  realm  it  is  necessary  to  do  so 
(subsection  (a))  to  take  possession  of  any  land,  and  (subsection 
(6))  to  take  possession  of  any  buildings.'  It  is  clear  that  under 
these  subsections  the  taking  possession  of  De  Keyser's  Hotel 
was  warranted,  but  there  was  no  necessity  for  the  public  safety, 
or  the  defence  of  the  realm,  that  payment  should  not  be  made, 
such  payment  being  on  the  hypothesis  that  the  views  above 
expressed  as  to  the  Act  of  1842  were  sound — a  necessary  con- 
comitant to  taking.  The  very  structure  of  the  Act  points  the 
same  way.  Why  provide  by  subsection  (2)  for  the  suspension 
of  restrictions  under  the  existing  Act  which  allowed  of  taking 
land  if  a  mere  taking  simpliciter  was  all  that  was  wanted  ?  The 
thing  may  be  tested  in  another  way.  Suppose  the  regulation  as 
to  taking  land  had  had  added  to  it  the  words  '  without  making 
any  payment  therefor  '.  That  would  have  left  no  doubt  as  to 
the  regulation.  The  question  would  have  been,  was  it  ultra 
vires  ?  It  could  only  be  intra  vires  if  it  were  necessary  for  the 
safety  of  the  realm,  and  that  is  the  same  question  over  again, 
and  again  the  existence  of  the  powers  of  subsection  (2)  of  the 
Act  can  be  appealed  to.  The  argument  is  practically  analogous 
to  the  argument  that  prevailed,  and  I  think  rightly  prevailed, 
in  the  judgment  of  Mr.  Justice  Salter  in  the  case  of  Newcastle 
Breweries  Company  v.  The  King}  where  the  taking  of  the  goods 
was  held  a  necessity,  but  the  extrusion  of  the  subject  where 
goods  were  taken  from  the  King's  Courts  in  the  event  of  non- 
agreement  as  to  value  was  not.  It  will  have  been  noticed  that 
the  regulation  which  authorizes  the  taking  of  land  says  nothing 
about  doing  away  with  restrictions,  or,  in  other  words,  does 
not  specifically  purport  to  be  made  in  virtue  of  subsection  (2) 
of  the  Act.  None  the  less,  it  may  well  be  held  to  be  virtually  so. 
There  are  various  restrictions  as  to  the  initiation  of  proceedings, 
notices,  &c.,  which  I  have  not  thought  it  necessary  to  quote. 
These  may  be  taken  as  swept  away  by  the  simple  authority  to 
take.  There  remains  the  question  whether  the  obligation  to  pay 
can  be  considered  as  a  restriction  and  also  swept  away.  I  think 
it  cannot.  The  word  '  restriction  '  seems  to  me  appropriate  to 
the  various  provisions  as  to  notice,  but  not  at  all  appropriate  to 
the  obligation  to  make  compensation. 

»  (1920)  1  K.B.  854. 


176   ATT.-GEN.  v.  DE  KEY8ERS  HOTEL,  LTD, 

There  are  two  other  matters  as  to  which  I  should  say  a  few 
words.  The  learned  Attorney-General  laid  great  stress  on  the 
words  of  section  1  of  the  Defence  of  the  Realm  (Acquisition  of 
Land)  Act,  1916,^  which,  providing  for  a  continuation  of  powers 
after  the  war,  begins  thus  :  '  Where  during  the  course  of  or  within 
the  week  immediately  preceding  the  commencement  of  the 
present  war  possession  has  been  taken  of  any  land  by  or  on 
behalf  of  any  Government  Department  for  purposes  connected 
with  the  present  war,  whether  in  exercise  or  purported  exercise 
of  any  Prerogative  right  of  His  Majesty,  or  of  any  power  conferred 
by  or  under  any  enactment  relating  to  the  defence  of  the  realm 
or  by  agreement  or  otherwise,  it  shall  be  lawful,'  &c.  This,  he 
argued,  was  a  statutory  confirmation  and  declaration  of  the 
power  to  take  under  the  Prerogative.  So  it  may  be,  but  if  the 
views  expressed  in  the  first  part  of  my  remarks  are  right  it 
leaves  those  views  untouched.  And,  further,  the  words  used 
really  amount  to  this.  They  do  not  in  any  way  define  the  rights^ 
which  the  Crown  has  to  take,  but  they  say  if  the  Crown  has  de 
facto  taken  quo  cunque  modo  then  it  shall  be  lawful  as  thereafter 
provided  to  continue  possession. 

The  other  point  is  as  to  the  remedy.  I  am  of  opinion  that 
a  Petition  of  Right  lies,  for  it  will  lie  when  in  consequence  of 
what  has  been  legally  done  any  resulting  obligation  emerges  on 
behalf  of  the  subject.  The  Petition  of  Right  does  no  more  and 
no  less  than  to  allow  the  subject  in  such  cases  to  sue  the  Crown. 
It  is  otherwise  when  the  obligation  arises  from  tort,  but,  as 
already  insisted  on,  what  was  done  here,  so  far  as  the  taking  of 
the  premises  was  concerned,  was  perfectly  legal. 

On  the  whole  matter  I  am  therefore  of  opinion  that  the 
judgment  of  the  Court  of  Appeal  was  right  and  ought  to  be 
afiirmed,  and  the  Appeal  dismissed  with  costs. 

LORD  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 
correspondence  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 
1  6  &  7  Geo.  V,  c.  63. 


JUDGMENT  (LORD  ATKINSON)  177 

of  the  Realm  Regulations  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 
they  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,  and  further, 
that  he  had  caused  notice  to  be  given  to  all  the  guests  in  the 
hotel  and  would  hand  over  possession  in  accordance  with  the 
notice  (i.  e.  the  letter  of  May  1,  1916).  Possession  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  reserved  all 
their  legal  rights,  they,  like  good  citizens,  without  prejudice  to 
those  rights,  facilitated  those  oiB&cers  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  appro- 
priate 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  respondent  superior 
does  not  apply  tp  the  Crown  where  the  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  familiar 
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 

2388  jq- 


178   ATT.-GEN,  v.  DE  KEYSETS  HOTEL,  LTD. 

by  the  negligence  of  the  company's  servants  is  an  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  the  respondents' 
hotel,  and  several  authorities  had  been  cited  to  support  this  view. 
Differing  as  I  do  on  this  point  from  the  views  of  the  two  learned 
Lords  Justices  who  constituted  the  majority,  and  entertaining,  as 
I  do,  the  most  sincere  respect  for  the  survivor  of  those  two 
Lords  Justices  as  well  as  for  the  memory  of  the  distinguished 
Lord  Justice  since  unhappily  deceased,  I  feel  bound  to  justify 
my  dissent  from  their  views  by  an  examination  of  the  authorities 
on  the  point  at  greater  length,  perhaps,  than  might  otherwise  be 
excusable.  These  authorities  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, 
expressed  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  occupa- 
tion. In  Phillips  V.  Homfray,^  Lord  Justice  Bowen,  as  he  then 
was,  at  page  461 ,  said  :  '  Actions  for  use  and  occupation  according 
to  the  better  opinion  have  been  confined  to  the  class  of  cases 
where  the  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,^  per  Pollock 
C.B.).  No  doubt  the  mere  enjoyment  by  one  man  of  another 
man's  property,  real  or  personal,  may  be  held  under  such  cir- 
cumstances as  leave  still  open  as  a  reasonable  inference  the 
presumption  that  it  is  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  circumstances  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 

*  (1883)  24  Ch.  D.  439 :  affirmed  on  the  ground  that  the  appeal  was  out  of 
time  (1886)  11  A.C.  466.  ^  (1357)  2  H.  &  N.  446  ;   157  E.R.  184. 


JUDGMENT  (LORD  ATKINSON)  179 

goes  off.  In  Howard  v.  Shaw,^  Baron  Parke,  at  page  122,  said  : 
*  If  the  defendant  had  entered  into  possession  under  an  agree- 
ment there  is  no  doubt  he  would  have  been  a  tenant  at  will 
until  the  lease  was  granted.  Here  he,  may  be  assumed  to  have 
entered  into  possession  under  an  agreement  for  sale  which  was 
to  be  carried  into  effect  by  a  conveyance.  ...  I  quite  agree, 
however,  that  while  the  agreement  subsisted,  the  defendant  was 
not  bound  to  pay  any  compensation  for  the  occupation  of  the 
land,  because  the  contract  shows  that  he  was  to  occupy  without 
compensation,  but  still  he  was  tenant  at  will.  When  the  agree- 
ment went  off  he  was  still  tenant  at  will,  but  after  that  there 
was  nothing  to  show  that  he  was  not  to  pay  compensation 
because  the  stipulated  compensation  by  payment  of  the  purchase 
money  was  at  an  end.  From  that  time,  therefore,  he  became 
liable  to  be  sued  in  an  action  for  use  and  occupation.'  Baron 
Alderson  gave  judgment  to  the  like  effect,  as  did  also  Chief 
Baron  Palles  in  Markey  v.  Coote.^ 

Even  on  the  assumption  that  the  Crown  went  into  possession 
of  the  hotel,  not  by  virtue  of  a  legislative  title  or  by  force  of 
a  paramount  power,  but  by  the  permission  of  the  respondents, 
for  which  the  reasons  already  given  I  think  it  impossible  to  hold, 
I  am  at  a  loss  to  see  how  an  agreement  binding  at  law  to  pay  for 
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. 
Chief  Baron  Pollock  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.  Silcox.^  But  the  taking  of  possession  as  of  right 
by  a  disseisor  could  not  be  turned  into  a  contract  on  the  notion 
that  the  trespass  may  be  waived  and  some  imaginary  contract 
substituted.  Here  the  defendant  was  in  possession  claiming 
title  under  Mrs.  Foss  with  whom  he  had  contracted.  It  cannot 
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  Chief  Baron  Pollock  mentions  than  it 

1  (1841)  8  M.  &  W.  118  ;   151  E.R.  973. 

2  (1876)  I.R.  10  C.L.  149. 

3  (1850)  19  L.J.  (Q.B)  295. 

.N2  . 


180   ATT,-GEN.  v.  DE  KEY8ERS  HOTEL,  LTD. 

does  that  of  a  person  entering  with  the  permission  of  the  owner 
of  the  premises. 

I  now  turn  to  the  authorities  relied  upon  by  the  Court  of 
Appeal.  The  first  of  these  is  the  case  of  the  Marquis  of  Camden 
V.  Batterhury}  reported  on  appeal  from  the  Common  Pleas. 
There  a  certain  builder  named  J.  W.  Elliott  entered  into 
an  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  messuage  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  reserved 
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  latter's  lands  and  premises. 
It  was  held,  affirming  the  judgment  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  created  thereby,  nor  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,^  affirmed  on  appeal  to  the  Exchequer  Chamber.^ 
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,  Mr.  Justice  Willes,  holding  that 

1  (I860)  7  C.B.  (N.S.)  864  ;  141  E.R.  1055. 

2  (1859)  6  C.B.  (N.S.)  766  ;  141  E.R.  652. 

3  (1861)  9  C.B.  (N.S  i  872  ;  142  E.R.  343. 


JUDGMENT  (LORD  ATKINSON)  181 

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.      Mr.  Justice  Willes  in  delivering 
judgment  said,   '  Conceding  that  the  relative  position  of  the 
parties  would  not  have  enabled  Levi  to  bring  an  action,  yet  their 
conduct  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  might 
have  known  he  was  not  considered  tenant  to  Knight,  but  that  he 
was  considered  tenant  to  Levi,  and  that  Knight  and  Levi  had 
severally  shown  by  their  conduct  that  they  severally  took  that 
view,  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  Justices  Wightman,  Crompton,  and  Hill 
held  that  the  decision  of  the  Court  of  Common  Pleas  was  right 
and  should  be  affirmed.    Barons  Bramwell  and  Channel  thought 
it  was  wrong  and  should  be  reversed,  Baron  Bramwell  adding 
that  Baron  Martin  when  he  left  the  Court  was  very  much  of  his 
(Baron   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  liability  to  pay  for  com- 
pensation 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.  Silcox.^     In  reference  to  this  case.  Lord  Justice 
Bowen  in  Phillips  v.  Homfray,^  at  page  461,  said,  '  There  have 
been,  no  doubt,  instances  in  which,  nothing  further  appearing 
in  evidence,  but  that  one  person  is  the  owner  of  the  land  and 
that  another  person  has  taken  possession  of  it  and  enjoyed  it, 
an  action  for  use  and  occupation  under  the  Statute  has  been 
upheld  ^  (see  Hellier  v.  Silcox).      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  follows  the  passage  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  ; 
»  (1850)  19  L.J.  (Q.B.J  295.  ^  (1883)  24  Ch.  D.  439. 


182   ATT, -GEN.  v.  DE  KEYSER8  HOTEL,  LTD. 

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  their  use  and  enjoy- 
ment of  the  hotel,  fundamentally  distinguish  all  these  cases  from 
the  present.  In  my  opinion,  therefore,  a  Petition  of  Right, 
not  based  upon  the  statutes  of  1798,  1842,  or  1914,  nor  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  imposeupon 
the  Crown  a  statutory  liabiUty  to  pay  reasonable  compensation,  in 
the  form  of  a  rent  or  otherwise,  for  the  possession,  occupation,  use 
and  enjoyment,  acquired  compulsorily,  of  the  respondents' hotel. 
The  late  Master  of  the  Rolls  in  the  following  pregnant  passage 
of  his  judgment  ^  put  a  rather  unanswerable  question.  He  said : 
*  Those  powers  which  the  executive  exercises  without  Parliamen- 
tary authority  are  comprised  under  the  comprehensive  term 
"  Prerogative  ".  Where,  however.  Parliament  has  intervened 
and  has  provided  by  statute  for  powers  previously  within  the 
Prerogative  being  exercised  in  a  particular  manner  and  subject 
to  the  limitations  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  upon  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,  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  Sir  John  Jessel  (Master  of  theRolls)  in 
Ex  parte  Postmaster-General  ^  or  that  laid  down  by  Lord  Lindley  in 
Wheaton  v.  Maple,^  viz.  that  the  Crown  is  never  bound  by 
1  (1919)  2  Ch.  216.  2  5  Geo.  V,  c.  8. 

»  (1879)  10  Ch.  D.  595.  *  (1893)  3  Ch.  64. 


JUDGMENT  (LORD  ATKINSON)  183 

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   tests. 
Before  dealing  with  them,  I  desire  to  express  my  complete  con- 
currence 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 
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,  and  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  the  statutory  provisions  and  by  its 
unfettered  Prerogative  do  the  very  things  these  statutes  em- 
powered the  Crown  to  do,  but  free  from  the  statutory  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  condi- 
tions to  the  exercise  by  the  Crown  of,  the  powers  conferred  by 
a  statute  if  the  Crown  were  free  at  its  pleasure  to  disregard  all 
these  provisions,  and  by  virtue  of  its  Prerogative  do  the  very 
things  the  statutes  empowered  it  to  do.     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 

*  The  reference  should  be,  not  to  an  Act  of  Parliament,  but  to  the  extract 
from  the  Earl  of  Chatham's  papers  printed  App.  F,  p.  295  'post,  from  which  it 
appears  that  legislation  was  contemplated — see  per  Swinfen  Eady,  M.R.  (1919) 
2  Ch.  p.  223. 


184     ATT. -GEN.  v.  DE  KEYSETS  HOTEL,  LTD, 

statute.  I  confess  I  do  not  think  the  word  *  merged  '  is  happily 
chosen.  I  should  prefer  to  say  that  when  such  a  statute  express- 
ing 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  parti- 
cular thing  under  and  in  accordance  with  the  statutory  provisions, 
and  its  Prerogative  power  to  do  it  is  in  abeyance.  Whichever  mode 
of  expression  be  used,  the  result  intended  to  be  indicated  is,  I  think, 
the  same,  viz.  that  after  the  statute  has  been  passed  and  while  it 
is  in  force  the  thing  it  empowers  the  Crown  to  do  can  thenceforth 
only  be  done  by  and  under  the  statute  and  subject  to  all  the 
limitations,  restrictions,  and  conditions  thereby  imposed,  however 
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  Consolida- 
tion Act  of  1914,2  coupled  with  the  regulations  issued  under  it, 
empowers  the  Crown  to  do,  and  what  are  the  conditions,  if  any, 
imposed  upon  the  doing  of  them.  By  section  2  (1)  of  the  Defence 
of  the  Realm  Consolidation  Act,  1914  (5  Geo.  V,  c.  8),  passed  on 
November  27,  1914,  the  two  previous  statutes  4  &  5  Geo.  V, 
c.  29,  and  4  &  5  Geo.  V,  c.  63,  are  repealed,  but  it  is  provided 
that  nothing  in  that  repeal  shall  affect  any  orders  made  there- 
under and  that  all  such  Orders-in-Council  shall  until  altered  or 
revoked  by  an  Order-in-Council  under  this  Act  (i.e.  5  Geo.  V, 
c.  8)  continue  in  force  and  be  in  effect  as  if  made  under  this 
latter  Act.  By  section  1,  subsection  (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  duty  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  jurisdiction  and 
punishment  of  persons  committing  offences  against  the  regula- 
tions, and  in  particular  against  any  of  the  provisions  and 
regulations  designed  for  the  five  particular  purposes  mentioned. 
The  regulations  must  be  designed  to  secure  the  public  safety 
and  defence  of  the  realm.  Section  2  provides  that  any  such 
regulations,  that  is,  any  regulations  issued  to  effect  those  two 
»  5  &  6  Vict.,  c.  94.  '^  5  Geo.  V,  c.  8. 


JUDGMENT  (LORD  ATKINSON)  185 

objects,  may  provide  for  the  suspension  of  any  restrictions  on 
the  acquisition  or  user  of  land,  or  the  exercise  of  the  power  of 
making  by-laws  or  any  other  powers  under  the  Defence  Acts, 
1842  to  1875,1  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  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  or 
purchase  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  com- 
pulsory purchase.  That  section  enacted  that  no  lands  or  buildings 
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  buildings  or  other  hereditament  should  be  author- 
ized 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  must  be  adequate  for  the  occasion.  It  is 
apparently  with  this  view  that  section  2  of  the  Act  of  1914  is 
confined  to  the  removal  of  those  restrictions.  There  is  no 
attempt  to  set  up  new  machinery.  The  powers  conferred  by  the 
Act  of  1842,  thus  unfettered,  are  to  be  allowed  to  remain  operative 
and  available  for  use.  The  words  of  section  2,  however,  are 
*  restrictions  on  the  acquisition  or  use  of  land  '.  When  those 
»  See  n.  1,  p.  10,  ante.  25^6  Vict.,  c.  94. 


186   ATT. -GEN.  v.  DE  KEYSETS  HOTEL,  LTD. 

restrictions  are  examined  it  is,  in  my  mind,  clear  that  the  legal 
obligation  to  pay  for  the  land  or  its  use,  temporarily  or  perman- 
ently 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  this  liability  to  pay  is  to  be  affected 
or  taken  away  by  the  regulations  which  may  be  issued,  and  if 
the  regulations  purported  to  do  that  I  doubt  if  they  would  not, 
having  regard  to  the  wording  of  section  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,  the  statute  is  not  to  be  construed  so 
as  to  take  away  the  property  of  a  subject  without  compensation. 
Lord  Justice  Bowen,  in  London  and  North-Western  Railway 
Company  v.  Evans,^  at  page  28,  said  :  '  The  Legislature  cannot 
fairly  be  supposed  to  intend,  in  the  absence  of  express  words 
showing  such  intention,  that  one  man's  property  shall  be  con- 
fiscated 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 
override  or  disregard  this  ordinary  principle  ...  if  it  sees  fit  to 
do  so,  but  it  is  not  likely  that  it  will  be  found  to  disregard  it 
without  plain  expression  of  such  a  purpose.'  There  is  not  in  the 
Act  of  1914  2  or  in  the  regulations  framed  under  it  any  indication 
of  such  a  confiscatory  purpose.  The  Regulations  2,  2a,  do  not 
expressly  suspend  any  restrictions  on  the  acquisition  of  or  user 
of  land  imposed  by  the  Defence  Act  of  1842.^  They  commence 
with  the  statement  that  the  enjoyment  of  property  will  be 
interfered  with  as  little  as  may  be  permitted  by  the  emergency 
of  the  measures  required  to  be  taken  for  securing  the  public 
safety  and  the  defence  of  the  reabn,  and  provide  that  the 
Admiralty,  Army  Council,  and  Air  Council,  and  members  of  the 
Naval  and  Military  Forces  and  the  other  persons  executing  the 
regulations  shall,  in  carrying  them  into  effect,  observe  these 
general  principles.  Thus,  by  section  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 
i  (1893)  1  Ch.  16.  «  5  Geo.  V,  c.  8.  ^  6kQ  Vict.,  c.  94. 


JUDGMENT  (LORD  ATKINSON)  187 

the  subject  without  any  of  the  preliminaries  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  the  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 
section  2  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 
significant  provision  in  section  2b,  namely,  that  where  any  goods 
the  possession  of  which  has  been  so  taken  are  acquired  by  the 
Admiralty,  Army  Council  or  Air  Council  or  the  Minister  of 
Munitions,  those  regulations  on  their  very  face  justify  an 
immediate  taking  possession  of  the  real  property  of  the  subject 
without  any  preliminary  formality  or  procedure.  They  are  in 
absolute  conflict  with  the  provisions  of  the  Defence  Act  of  1842,^ 
imposing  restrictions  on  the  acquisition  of  land  or  its  use  and 
prescribing  formalities.  The  two  cannot  be  reconciled,  and  the 
irresistible  conclusion  must  therefore  be  that  the  earlier  provi- 
sions 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  thereof  therefor.  The  fact  that  no  pro- 
vision to  a  contrary  effect  has  been  introduced  into  these  regula- 
tions touching  real  property,  while  one  is  introduced  touching 
goods  acquired,  suggests,  I  think,  that  the  provisions  of  the 
Defence  Act,  1842,^  touching  payment  or  compensation  for  real 
»  5  &  6  Vict.,  c.  94. 


188   ATT.-GEN.  v.  DE  KEY8ERS  HOTEL,  LTD, 

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  ^ :  First,  because  in 
its  first  section  it  recognizes  that  possession  of  land  may  be 
taken  by  a  Government  Department  for  the  purposes  con- 
nected 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  otherwise.  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  Depart- 
ment which  continues  to  occupy  the  lands  after  the  termination 
of  the  war  shall  pay  a  rent  in  respect  of  this  continued  occupation . 
As  the  regulations  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  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  Depart- 
ment 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  appUcation  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  respondents'  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  '  tem- 
porary ' — temporary  use,  temporary  occupation.  What  does 
the  word  *  temporary  '  mean  in  such  a  connexion  ?  It  might 
cover  years,  yet  mean  only  the  duration  of  the  war.  In  this 
case  it  covered  over  three  years.  At  the  beginning  of  the  early 
stages  of  a  war  its  duration  never  could  be  prophetically  fixed 
even   approximately.     It   has   already   been   decided   in   your 

1  6  &  7  Geo.  V,  c.  63. 


JUDGMENT  (LORD  MOULTON)  189 

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  fore- 
told, 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  The 
Queen  v.  Doutre,^  and  Windsor  and  Annapolis  Railway  Company 
V.  The  Queen  and  the  Western  Counties  Railway  Company,"^  such 
a  Petition  will  lie.  I  can  see  no  valid  distinction  between  a  sum 
due  under  a  contract  or  grant  made  on  behalf  of  the  Crown 
mentioned  by  Chief  Justice  Erie  in  Tobin  v.  The  Queen, ^  and 
compensation  due  for  the  lawful  and  authorized  use  and  enjoy- 
ment by  the  Officer  of  the  Sovereign  on  the  Sovereign's  behalf 
of  the  lands  or  buildings  of  a  subject.  Both  seem  equally 
untainted  by  tort,  both  equally  untouched  by  the  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. 

LORD  MOULTON  :  My  Lords,  the  present  Appeal  is  in  the 
matter  of  a  Petition  of  Right  presented  by  De  Keyser's  Royal 
Hotel,  Limited,  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  CroAvn  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  occupa- 
tion, and  pleads  that  it  was  an  exercise  of  the  Royal  Prerogative 
and  gave  no  right  of  compensation  to  the  subject.  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 

»  (1884)  9  A.C.  745  ^  (1886)  11  A.C.  607. 

=»  (1863)  16C.B.  (N.S.)310. 


190   ATT.-GEN.  v.  DE  KEYSERS  HOTEL,  LTD. 

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'  interest)  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  and  informed  Mr.  Whinney  that  they  were  about 
to  '  communicate  with  the  War  Office  with  a  view  to  the  total 
premises  (excluding  the  shops)  being  requisitioned  under  the 
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  Keyser's  Royal 
Hotel,  E.G.  Dear  Sir,  I  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 
unlet,  and  the  wine  cellars).  .  .  .  We  do  not  propose  to  take 
possession  until  the  8th  instant,  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  instant 
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  occupa- 
tion 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  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 


JUDGMENT  (LORD  MOULTON)  191 

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,  viz.  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  abun- 
dantly 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  an  entry. 
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  compensation,  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  might  in  the  present 
case  be,  to  my  mind,  treated  as  a  question  of  fact,  viz.  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.  Possession  was  expressly  taken 
under  statutory  powers.  The  letter  of  May  1,  1916,  from  the 
representative  of  the  Army  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 


192   ATT. -GEN.  v,  DE  KEYSER8  HOTEL,  LTD. 

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  Grown  were  formulated  in  the  regulations  in 
a  manner  which  was  beyond  mistake.  For  example,  the  regula- 
tions gave  to  the  Crown  the  pgwer  *  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  an  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  hencefor- 
ward 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  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  Members  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  subsection  (2)  it  deals  with  the 
question  of  the  acquisition  of  land  as  follows  :  '  (2)  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  by-laws,  or  any  other  power  under  the  Defence  Acts, 
1842-75,  or  the  Military  Lands  Acts,   1891-3.'     The  Defence 

1  5  Geo.  V,  c.  8. 


JUDGMENT   (LORD  MOULTON)  193 

Act,  1842  1  (which  may  be  taken  to  represent  the  whole  of  the 
Defence  Acts,  inasmuch  as  the  latter  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,  buildings,  &c.,  to  be  taken.     It  contemplates, 
in  the  first  instance,  voluntary  purchase  ;   but,  if  that  cannot  be 
arranged,  then  the  lands,  &c.,  may  be  acquired  compulsorily, 
subject  to  certain  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  compensation  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  subsection  (2), 
that  the  Legislature  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  suspen- 
sion 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  section  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  subsection    (2) 
of  the  Act,  I  think  it  is  clear  that  in  the  case  of  acquisition  and 


2388 


1  6  &  6  Vict.,  c.  94. 
O 


194   ATT. -GEN.  v.  DE  KEYSER'8  HOTEL,  LTD. 

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  pajdng  compensation  cannot  be  regarded  as  a  restric- 
tion. 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  sup- 
pliants 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. 
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  the  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  neces- 
sary 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  any  one  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  record 


JUDGMENT   (LORD  MOULTON)  195 

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  incomplete)  re- 
searches 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  not  think  that  a  com- 
plete 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  distributed  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  fortifications  or  otherwise  for  national  de- 
fence, to  which  I  have  already  referred  and  which  cover  the  last 
two  centuries.  In  all  these  Acts  provision  was  made  for  com- 
pensation 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,  1842,2  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  under  a  minutely  defined  procedure  set  out  in  the 
Act.  It  contemplates  that  the  acquisition  shall,  as  a  rule,  be  by 
agreement,  but  it  gives  ample  powers  of  compulsory  acquisition 
»  App.  D,  p.  247,  post.  ^  5&6  Vict.,  c.  94. 

02 


196   ATT. -GEN.  v.  DE  KEY8ERS  HOTEL,  LTD. 

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  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  Koyal 
Prerogative  ?  I  do  not  think  that  it  can  be  said  to  have  abro- 
gated 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  con- 
ferred 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  com- 
munity. 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  equi- 
table 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  any 
one  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  indi- 
vidual 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. 

In  the  argument  for  the  Crown,  reference  was  made  to  the 

Defence  of  the  Realm  (Acquisition  of  Land)  Act,  1916.1     This 

Act  was  passed  subsequently  to  the  taking  of  the  suppliants' 

lands,  and,  therefore,  has  no  bearing  on  the  question  before  this 

»  6  &  7  Geo.  V,  c.  63. 


JUDGMENT  (LORD  SUMNER)  197 

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. 

LORD  SUMNER  :  My  Lords,  the  petition  alleges  in  sub- 
stance 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  compen- 
sation because  he  voluntarily  delivered  possession,  though  pro- 
testing 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  calculated  under  the  forms  of  a  judicial  pro- 
ceeding. 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  Crowii  who 
used  the  premises  would  be  personally  guilty  of  trespass,  and 
trespass  being  the  suppliants'  real  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),^  nor 
does  it  necessarily  follow  that  this  choice  only  arises  between 
such  remedies  as  are  available  against  one  and  the  same  party. 
»  5  Geo.  V,  c.  8.  "  (1846)  15  M.  &  W.  444  ;   153  E.R.  924. 


198     ATT. -GEN.  v.  DE  KEYSERS  HOTEL,  LTD, 

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 
conversion  would  lie  against  the  servant  and  for  money  had  and 
received  against  the  company  (cf.  Smith  v.  Hodson).^  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 
compensation.  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  of  rent  apart  from  the  statutes. 
There  was  nevertheless  such  assent  as  prevents  the  occupation 
from  having  been  taken  wholly  in  invitum,  so  as  to  leave  the 
respondents  no  position  but  that  of  the  sufferers  of  a  wrong. 
Obviously  Mr.  Whinney's  duty  and  interest  alike  impelled  him 
to  insistence  on  compensation,  not  to  resistance  to  taking  posses- 
sion. It  was  money,  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  legally  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  estab- 
lish 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  autho- 
rity 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 
1  (1791)  4  T.R.  211  ;   100  E.R.  979. 


JUDGMENT   (LORD  SUMNER)  199 

for  the  public  safety  and  the  defence  of  the  Realm,  the  Crown 
had  the  power  to  requisition  this  building  on  terms  as  to  com- 
pensating 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  then  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  re-arrangement  of  section  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  regula- 
tions, 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,  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  requisitioned  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  safely  and  the  defence  of  the  Realm,  and  the  other  in  order 
to  alter  the  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.  Section  1, 
subsection  1,  provides  for  the  first  kind  ;  section  1,  subsection  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  dis- 
possessed owner,  which  that  Act  provides  for,  is,  however,  not 

»  5  Geo.  V,  c.  8. 


200   ATT. -GEN.  y.  DE  KEYSETS  HOTEL,  LTD. 

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  subsection  of  section  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  facilitate 
requisitioning  already  authorized  ?    It  is  true  that  it  authorizes 
the  competent  naval  or  military  authority  to  do  the  above-men- 
tioned things  *  for  the  purpose  of  securing  the  public  safety, 
or  the  Defence  of  the  Realm  ',  but  that  is  the  purpose  mentioned 
in  section  16  of  the  Defence  Act,  1842,^  and  the  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  Mr.  Justice  Avory,^  I  think  it  should 
be  treated  as  only  an  exercise  of  the  power  of  suspending  restric- 
tions given  by  subsection  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  subsection  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,  diflPering  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  section  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  whatever,  and  that  the 

1  5  Geo.  V,  c,  8.  "  5  «&  6  Vict.,  c.  94.  ^  (1915)  3  K.B.,  p.  653. 


JUDGMENT  (LORD  SUMNER)  201 

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  subsection  2  of  section  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  subsection  1,  nor  ought  that  subsection, 
couched  as  it  is  in  general  terms  only,  to  be  construed  as  authoriz- 
ing the  Crown  to  do  by  regulation  what  the  Legislature  itself  has 
already  fully  provided  for  by  statute,  least  of  all  when  that 
regulation  would  have  the  effect  of  taking  the  subject's  property 
without  comJ)ensation  contrary  to  the  intention  of  the  prior 
Acts. 

The  next  question  must  be,  is  the  Defence  Act,  1842,2  with 
the  other  Defence  Acts,  adequate  to  enable  the  Crown  to  effect 
such  an  object  for  the  purpose  of  the  Defence  of  the  Realm 
as  that  involved  in  the  taking  of  this  hotel  ?  It  is  true  that 
the  Act  enables  much  more  to  be  done  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  section  XXXIV, 
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  passed 
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  subsection  2  of  section  1  of  the  Act  of  1914  ^  had  only 
to  be  exercised,  as  in  fact  they  were,  and  all  these  difficulties 
1  5  Geo.  V,  c.  8.  2  5  &  6  Vict.,  c.  94. 


202   ATT. -GEN.  v.  DE  KEY  SERB  HOTEL,  LTD. 

would  vanish.  I  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  the  matters  to 
which  the  Defence  Acts  would  apply,  only  an  exercise  of  the 
power  of  removing  existing  statutory  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  Legis- 
lature 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  enact- 
ment, 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  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  incon- 
sistent with  an  intention  to  abate  the  Prerogative  in  this  respect, 
if  not  absolutely  (New  Windsor  Corporation  v.  Taylor  2),  at 
least  for  so  long  as  the  statute  operates.  In  truth,  the  intro- 
duction of  regulations  so  reasonable  only  strengthens  the  sub- 
stance 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  claim  no  compensation  for  losing  the  use  of 
1  5  &  6  Vict.,  c.  94.  2  (1899)  A.C.  49. 


JUDGMENT  (LORD  SUMNER)  203 

his  property  ;  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  statute,  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  200  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  Pre- 
rogative 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.^ 

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 
1  (1916)  2  A.C.  77. 


204   ATT.-GEN.  v.  DE  KEYSERS  HOTEL,  LTD. 

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  compensa- 
tion. None  can  be  found  relating  to  taking  land  as  of  right  and 
without  any  compensation  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  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  of  minor  importance.  Ex- 
perience 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  admission  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. 

As  to  the  judgment  in  The  Zamora,^  I  concede  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 
1  (1916)  2  A.C.  77. 


JUDGMENT  (LORD  SUMNER)  205 

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 
(page  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  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  legiti- 
mate 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  In  re  a  Petition  of 
Right,  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  com- 
mitting a  trespass.  Rightly  or  wrongly,  the  facts  of  the  Shoreham 
case  ^  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  par- 
ticular case — a  certain  course  should  be  taken,  seems  to  me  to 
be  an  obvious  statement.  It  is  not  in  conffict  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  are  held  to  exist  in  the  Shoreham  case,^  are  applicable  to 
»  In  re  a  Petition  of  Right  (1915)  3  K.B.  649. 


206     ATT.-OEN.  v.  DE  KEYSERS  HOTEL,  LTD. 

the  case  in  hand.  If  so,  the  argument,  in  the  judgment  of  The 
Zamora,^  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  pre- 
rogative adjusts  itself  to  new  discoveries,  as  was  resolved  in 
the  Saltpetre  Case ;  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. 

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

LORD  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  Govern- 
ment as  representing  the  Crown  for  purposes  admittedly  con- 
nected 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  connexion  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  posses- 
sion 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  trans- 
mission to  the  Defence  of  the  Realm  Losses  Commission,  and 
that  the  premises  had  been  commandeered  for  military  pur- 
poses 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 
»  (1916)  2  A.C.  77. 


JUDGMENT  (LORD  PARMOOR)  207 

a  matter  of  legal  claim.  This  Commission  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  Com- 
mission would  have  no  jurisdiction  to  entertain.  On  Feb- 
ruary 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  per- 
mission of  the  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  has  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.  Whin- 
ney 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  Prerogative,  as  well  as 
by  virtue  of  the  powers  conferred  by  the  Defence  of  the  Reabn 
ConsoKdation  Act,  1914,  and  of  the  regulations  issued  there- 
under, 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  the  war. 
Mr.  Justice  Peterson  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 


208   ATT. -GEN.  v.  DE  KEYSER'S  HOTEL,  LTD. 

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  legis.  In  the  present  Appeal  it  is  not  alleged  that 
if  the  Royal  Prerogative  did  authorize  the  taking  of  possession  of 
the  premises  of  the  respondents  for  temporary  use  and  occupation 
without  payment  of  rent  or  compensation,  the  authority  was  used 
improperly  or  in  an  arbitrary  manner.  Under  this  head  no  objec- 
tion is  put  forward.  The  growth  of  constitutional  liberties  has 
largely  consisted  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,  as  a  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  systematically  incor- 
porated 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  implica- 
tion from  precedents  which  will  be  referred  to  later,  the  appellant 
states  that  he  relied  on  the  Royal  Prerogative,  because  in  a  case 
of  necessity  for  the  public  defence  the  Crown  has  by  the  Common 
Law  a  Prerogative  Right  which  has  not  been  abated,  abridged, 
or  curtailed  by  any  of  the  Defence  Acts  of  1842-73,  or  by  any 
other  statute,  to  enter  upon,  or  take  possession  of,  or  to  occupy 
and  use  the  land  of  any  subject  without  payment  of  compensa- 
tion. It  is  not  necessary  to  inquire  how  far  in  certain  cases  of 
necessity  for  public  defence  the  Executive  has  power  to  act 
without  statutory  authority,  but  a  generalization  of  thi^  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  modem  conditions  the  use  and  occupation  pf 
land  for  administrative  facilities  is  a  matter  of  necessity  for 
public  defence,  but  the  necessity  is  not  of  the  same  character 
and  cogency  as  arise  when  the  use  and  occupation  of  land  is 
required  on  the  occurrence  of  invasion  or  during  the  occurrence 


JUDGMENT  (LORD  PARMOOR)  209 

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  connexion 
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  this  action  and  at  the  same  time  to  deny  any  claim  for 
compensation  except  such  as  might  be  oJBfered,  as  a  matter  of 
grace,  by  a  reference  to  the  Defence  of  the  Realm  Losses  Com- 
mission. 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  section  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 
the  lands  or  buildings  have  been  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 
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  a  right  has  not  been  abated,  abridged,  or 
curtailed  by  any  of  the  Defence  Acts,  1842-73,  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. 

1  5  &  6  Vict.,  c.  94. 
2388  p 


210   ATT.-GEN.  v.  DE  KEYSERS  HOTEL,  LTD, 

The  precedents  on  which  the  appellant  relies  in  support  of  his 
Appeal  are  R.  v.  Hampden,^  the  Case  of  Saltpetre,^  Hole  v.  Barlow,^ 
and  The  Zamora.^  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. 
Lord  Justice  Duke  in  his  exhaustive  review  ^  refers  to  the  judg- 
ments of  two  of  the  Judges  whose  opinions  were  given  adversely 
to  the  claim  of  the  Crown,  and  quotes  passages  from  the  judg- 
ments of  Mr.  Justice  Crooke  and  Mr.  Justice  Hutton.  The 
quotation  from  Mr.  Justice  Crooke  is  :  '  The  law  provides 
a  remedy  in  case  of  necessity  and  danger,  for  then  the  King  may 
command  his  subjects  without  Parliament  to  defend  the  king- 
dom. How  ?  By  all  men  of  arms  whatsoever  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 
Mr.  Justice  Crooke  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  Conscription  Act  was 
passed,  and  Parliamentary  authority  was  obtained.  The  quota- 
tion from  Mr.  Justice  Hutton  is  :  '  The  King  is  bound  to  defend 
the  kingdom.' '  There  is  no  need  to  question  the  accuracy  of  this 
general  statement,  but  it  cannot  be  intended  to  cover  the  proposi- 
tion 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  Saltpetre  Case  ^  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.  Purveyances 
were  abolished  in  1660  by  12  Charles  II,  c.  24.  The  volume  of 
extracts  from  Public  Records  made  for  the  purposes  of  this  case 
by  the  Record  Agent  contains  warrants  for  the  searching  for 

»  (1637)  3  How.  St.  Tr.  825.      ^  (igogj  12  Rep.  12  ;  77  E.R.  1294. 
^  (1858)  4  C.B.  (N.S.)  334  ;  140  E.R.  1113.         *  (1916)  2  A.C.  77. 
«  (1919)  2  Ch.  238.       «  3  How.  St.  Tr.  1134.       '  Ibid.  1195. 


JUDGMENT  (LORD  PARMOOR  )  211 

saltpetre,  but  in  every  case  on  the  payment  of  rent  or  compensa- 
tion. 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  by  8  Edward  IV,  23,  and 
in  such  place  on  such  extremity,  they  may  dig  for  gravel  for 
the  making  of  bulwarks  :  for  this  is  for  the  public,  and  every  one 
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  the  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  Henry  VIII, 
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 
exclusive  character,  but  in  any  case  the  illustrations  contained  in 
the  Resolution  cannot  be  relied  upon  in  support  of  the  claim 
made  by  the  appellant.  To  take  premises  for  administrative 
purposes  is  essentially  different  from  an  entry  upon  land  adjoining 
to  the  coast  to  protect  the  realm  from  a  landing  by  enemy  forces. 
The  analogy  of  plucking  down  a  house  if  the  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  thp  respondent  for  temporary  use  and  occupation.  A  Statute  * 
of  4  Henry  VIII,  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  every  one  of  the  King's 
subjects  under  the  conditions  mentioned  to  enter  upon  land  for 
the  making  of  bulwarks,  &c.,  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 
illustrates  the  nature  of  a  right  which  is  based,  not  on  an  exclusive 

1  App.  B,  p  220,  post. 
P2 


212   ATT.-OEN.  v.  DE  KEY8ERS  HOTEL,  LTD. 

privilege  of  the  Crown,  but  on  the  duty  of  all  subjects  within  the 
specified  area  to  make  common  cause  in  defence  of  the  Realm. 
Lord  Justice  Duke  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  ^  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  ^ 
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  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  judg- 
ment. 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  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  Mr.  Justice  Willes 
in  Hole  v.  Barlow,^  is  not  in  favour  of  the  contention  of  the 
appellant.  It  states  the  general  proposition  that  every  man  has 
a  right  to  the  enjojrment  of  his  land,  and  then  by  way  of  illustra- 
tion 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  tem- 
porary 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  searches  which  have  been  made  is  that  it  does  not  appear 

1  (1916)  2  A.C.  77.  2  (1811)  g^w.  312. 

2  (1858)  4  C.B.  (N.S.)  345  ;   140  E.R.  1118. 


JUDGMENT  (LORD  PARMOOR)  213 

that  the  Crown  has  ever  taken  subjects'  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  Government  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  improbable  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  large  number  of  them  are  concerned  with  the  acquisition  of 
estates  in  land  which  admittedly  could  not  be  acquired  com- 
pulsorily  by  the  exercise  of  the  Royal  Prerogative.  In  some  of 
the  instances  it  is  difficult  to  determine  whether  an  estate  in 
the  land  was  acquired  or  possession  was  taken  for  temporary 
use  and  occupation.  The  extracts  to  which  the  attention  of 
your  Lordships  was  specially  directed  during  the  argument  are 
as  follows  :  On  November  24,  1668,  and  on  December  22,  1688, 
there  are  two  Ordnance  Minutes  ^  ordering  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  occupa- 
tion. On  September  4,  1805,^  a  letter  was  written  urging  the 
necessity  of  obtaining  the  mills  at  Cheshunt  for  purposes  of 
increasing  the  supplies  of  gunpowder  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 
gunpowder  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.^  Ill,  c.  55,  was  in 
force,  authorizing  His  Majesty  to  survey  and  mark  out  ground 
wanted  for  public  service  and  to  treat  and  agree  for  '  possession 
1  App.  F,  pp.  284,  285,  post.  ^  Ibid.,  p.  291,  post. 


214   ATT. -GEN.  v.  DE  KEYSERS  HOTEL,  LTD. 

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  ascertained  by  the  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  agree- 
ment. These  Acts  were  temporary  in  character,  but  contained 
provisions  similar  to  those  which  were  made  permanent  in  the 
Defence  Act,  1842.  On  June  20,  181 3, ^  a  report  was  made  on 
the  claims  of  a  Mr.  Cowel,  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  Govern- 
ment has  not  established  a  right  under  the  Royal  Prerogative 
to  take  the  hotel  of  the  respondents  for  temporary  use  and 
occupation  during  war  without  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,  1842-73,  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  con- 
stitutional 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 
1  App.  F,  p.  293,  post. 


JUDGMENT   (LORD  PARMOOR)  215 

the  interference  by  the  Executive  with  the  land  and  buildings 
of  the  respondents  bring  the  case  within  the  above  principle. 
It  would  be  an  untenable  proposition  to  suggest  that  courts 
of  law  could  disregard  the  protective  restrictions  imposed  by 
statute  law  where  they  are  applicable.    In  this  respect  the  sove- 
reignty of  Parliament  is  supreme.    The  principles  of  construction 
to  be  applied  in  deciding  whether  the  Royal  Preroggitive  has  been 
taken  away  or  abridged  are  well  ascertained.    They  may  be  taken 
away  or  abridged  by  express  words,  by  necessary  implication, 
or,  as  stated  in  Bacon's  Abridgement,  where  an  Act  of  Parlia- 
ment is  made  for  the  public  good,  the  advancement  of  reHgion 
and  justice,  and  to  prevent  injury  and  wrong.     Statutes  which 
provide  rent  or  compensation  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  advance- 
ment 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.    I  am  further  of  opinion  that 
where  a  matter  has  been  directly  regulated  by  statute  there  is 
a  necessary  implication  that  the  regulation  must  be  obeyed,  and 
that,  as  far  as  such  regulation  is  inconsistent  with  the  claim  of 
a  Royal  Prerogative  right,  such  right  can  be  no  longer  enforced. 
In  1798  (38  Geo.  Ill,  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.  Ill,  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.  Ill,  c.  95,  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.    Sections  11  and  12  provide 
compensation  either  for  purchase  of  land  or  for  its  temporary 
use.     In  1842  the  Defence  Act  ^  was  passed  to  consolidate  and 
amend  the  laws  relating  to  the  services  of  the  Ordnance  Depart- 

5  &  6  Vict.,  c.  94. 


216   ATT.-GEN.  v.  DE  KEYSERS  HOTEL,  LTD. 

ment  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.  Section  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.  Section  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  \vriting  decline  to  treat  or  agree,  or  shall  refuse  to 
accept  such  sum  of  money  as  shall  be  offered  for  absolute  pur- 
chases, 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  heredita- 
ments. 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  heredita- 
ments, or  for  the  possession  or  use  thereof  as  the  case  may  be. 
Section  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  certified 
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  provid- 
ing against  such  an  emergency  as  invasion  which  might  occur 
during  a  period  of  war  and  introducing  in  such  a  case  an  excep- 
tional procedure.  Section  34  empowers  the  principal  officer  of 
Her  Majesty's  Ordnance  to  bring  actions,  suits  or  other  proceed- 
ings, provided  that  in  all  such  actions,  suits  or  other  proceedings, 
the  legal  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 


JUDGMENT  (LORD  PARMOOR)  217 

if  the  conditions  are  such  as  entitle  the  respondent  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  provision  that  such  regulations 
may  provide  for  the  suspension  of  any  restrictions  on  the  acquisi- 
tion or  user  of  land,  or  the  exercise  of  the  power  of  making  by- 
laws or  any  other  power  under  the  Defence  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  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  2.  Nor 
is  any  such  provision  necessary.  Compensation  was  already 
assured  under  statutory  enactment.  Regulation  2b  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, 

1  5  Geo.  V,  c.  8. 


218   ATT. -GEN.  v.  DE  KEYSER8  HOTEL,  LTD, 

and  the  attention  of  your  Lordships  was  not  called  to  any- 
preceding  statute  containing  a  right  to  compensation.  My  Lords, 
I  agree  in  the  view  expressed  by  Lord  Justice  Warrington,  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..  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  compensation  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  ^ ;  London  and  North-  Western  Railway  Company 
V.  Evans  ^).  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  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  Eighty 
1915.3  Mr.  Justice  Peterson  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  arrange- 
ment was  made  rendering  it  unnecessary  to  give  a  formal  judg- 
ment.* 

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  section  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  Prerogative  Right  of  His 

1  (1884)  14  Q.B.D.  245.  ^  (1893)  1  Ch.  16. 

3  (1915)  3  K.B.  649.  *  (1916)  W.N.  311. 

5  6  &  7  Geo.  V,  c.  63. 


JUDGMENT   (LORD  PARMOOR)  219 

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  compensation  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 
j  ustifiable .  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.  The  remedy  would  not 
be  applicable  against  the  Crown.  I  did  not  understand  the 
Attorney-General  to  raise  any  objection  to  the  Procedure  by 
Petition  of  Right  if  the  respondents  could  establish  a  claim  to 
compensation,  or  to  the  form  of  the  declaration  made  by  the 
Court  of  Appeal. 

My  Lords,  in  my  opinion,  the  Appeal  should  be  dismissed 
with  costs. 

Questions  put : 

That  the  Order  appealed  from  be  reversed  ? 

The  Not  Contents  have  it. 

That  the  Order  appealed  from  be  affirmed  and  this  Appeal 

dismissed  with  costs  ? 

The  Contents  have  it. 


220  STATUTES 

APPENDIX  B 

STATUTES  NOT  PRINTED  IN  RUFFHEAD'S 
EDITION 

PUBLIC  RECORD  OFFICE.    PARLIAMENT  ROLLS 
No.  133.     (10.) 

{Statutes  of  the  Realm,  iii.  48.) 

Act  of  Parliament.    4  Henry  VIII.    Cap.  1.    A.D.  1512 

For  making  Bulwarks 

Rotulus  Parliamenti  de  Anno  Regni  Regis  Henrici  Octavi 
Quarto,  A.D.  1512 

Prayen  the  Comons  in  this  present  parliament  assembled  that 
for  asmoch  as  the  land  of  Bretayne  and  also  the  haven  of  Brest 
lyeth  streight  ayenst  the  south  see  costes  of  the  Countie  of  Corn- 
wall and  that  the  frenchemen  our  auncien  enemy es  and  Bretaynes 
enemy es  by  reason  of  their e  fysshyng  upon  the  se  costes  knowe 
aswell  every  haven  and  creke  within  the  sayde  Countie  as  every 
landyng  place  in  as  large  maner  as  any  subgiectt  of  our  Soveraigne 
Lorde  the  Kyng  dooth  ;  And  that  the  said  Countie  is  thre  score 
and  ten  myle  in  length  and  the  substance  thereof  right  litle  more 
than  six  myle  in  brede  from  the  southsee  to  the  northsee,  by 
reason  whereof  they  also  Imowe  that  grete  multitude  of  people 
can  not  shortly  resort  to  put  theym  of  at  theire  landyng  ;  And  that 
in  divers  and  many  of  the  seyd  landyng  places  nother  pile  blok- 
house  ne  Bulwark  is  made  to  greve  or  annoye  theym  at  their 
landyng  :  Whiche  consideracions  unto  our  sayd  enemyes  grete 
audacite  comfort  and  corage  gyveth  to  arrive  and  land  in  the 
same  parties,  to  the  grete  annoyance  of  our  Sayd  Soveraigne 
Lorde's  subgiettes  there  and  to  the  utterly  undoyng  of  dyvers 
and  many  of  theym  oonles  a  remedie  be  the  soner  provyded  : 
Therfor  be  it  enacted  by  the  Kyng  our  Soveraign  Lord  his  Lordes 
Spirituell  and  temporell  and  the  Comons  in  this  present  parlia- 
ment assembled  and  by  auctorite  of  the  same  that  the  Justices 
of  the  Peace  and  Shiref  of  the  sayd  Countie  do  ride  and  viewe 
all  the  sayd  south  cost  from  Plymmouth  westward,  to  the 
Landes  end.  And  that  doone  incontynent  to  appoynt  within 
theym  self  such  boroughes  townes  and  parisshens  as  they  shall 
thinke  resonable  to  make  bulwerkes  brayes  walles  diches  and  al 
other  fortificacions  for  the  same  cause  in  maner  and  forme  and 


STATUTES  221 

facioii  as  shalbe  thought  by  theire  discrecion  in  every  of  the  sayd 
laridyng  places  betwene  this  and  the  first  day  of  Marche  next 
now  comyng. 

And  ferder  be  it  enacted  by  the  sayd  auctorite  that  every 
Maire  and  Constable  of  the  sayd  countie  by  the  sayd  Justiebs 
of  Peace  or  Shirief  appoynted  do  comaunde  all  the  inhabitantes 
within  the  precyncte  of  theire  office,  to  bee  at  the  see  side  with 
such  instrumentes  as  they  have  or  can  gett  for  the  makynge  of 
the  sayd  bulworkes  and  other  the  premisses  in  such  landyng 
places  as  shalbe  assigned  by  the  sayd  Justices  of  the  Peace  or 
Shirief,  and  that  the  said  Maire  or  Constables  do  comytte  to 
warde  all  such  wilfuU  persones  as  will  not  obey,  come  nor  send 
any  oder  person  to  the  see  side  to  make  the  sayd  Bulworkes  and 
oder  the  premisses  at  the  day  and  tyme  by  the  said  Maire  or 
Constables  to  be  appoynted,  and  there  to  remayne.  without 
baile  or  maynprise  by  the  space  of  x  daies  or  lesse  at  the  discrecion 
of  the  sayd  Maire  or  Constables.  And  if  any  of  the  sayd  Maires 
or  Constables  do  not  theire  dutie  as  is  aforesayd  that  then  the 
Justices  of  the  Peace  next  adjoyning  do  comytte  to  warde  the 
same  Maire  or  Constable  so  offendyng,  there  to  remayne  without 
baile  or  maynprise  by  the  space  of  a  moneth  or  lesse  at  the 
discrecion  of  the  Justice  of  Peace. 

And  be  it  also  enacted  by  the  sayd  auctorite  that  goode  and 
substanciall  bulworkes  brayes  walles  diches  and  all  oder  fortifica- 
cions  in  every  landyng  place  in  maner  forme  and  facion  as  is 
aforeseid,  as  well  from  Plymouth  aforesayd,  by  the  se  costes 
estward  as  in  all  other  parties  within  the  realme  of  Englond, 
be  made  there  as  the  Justices  of  the  peace  and  Shirief  within 
that  shire  where  any  such  landyng  places  be  shall  thynke  nedefuU. 
And  that  every  Justice  of  Peace  Maire  and  Constable  within 
every  shire  where  any  such  landyng  places  be,  have  like  and  as 
good  auctorite  by  this  present  acte  to  comaunde  the  inhabitantes 
of  every  borough  towne  and  parisshe  adjoynyng  to  the  see  side  ^ 
or  els  where  after  the  discrecions  of  the  Justices  of  Peace,  to  make 
the  sayd  bulwerkes  and  other  the  premisses  and  also  to  comitte 
to  warde  all  such  wilfuU  personnes  as  will  not  obeye  in  like 
maner  as  the  Justices  of  the  peace  Maires  and  Constables  of 
the  sayd  Countie  of  Cornwall  may  do  bi  any  of  the  actes  aforeseid. 

And  over  this  be  it  enacted  by  the  sayd  auctorite  that  it  be 
laufuU  for  every  of  the  Kynge's  subgiettes  within  this  Realme 
of  Englond  by  thadvyse  and  assignement  of  the  sayd  Justices 
of  the  Peace  or  Shirief  to  make  all  maner  of  bulwerkes  and  oder 


222  STATUTES 

the  premisses  in  every  mannys  grounde  of  what  astate  or  degree 
he  be  of  and  also  to  digge  and  to  delve  aswell  for  erth  stones  and 
turfes  as  to  cutte  and  to  hew  heth  in  any  mannes  grounde  for 
the  makyng  of  any  such  bulworkes  and  other  the  premisses  as 
ofte  and  as  many  tymes  as  nede  shall  require,  and  the  sayd 
erth  stones  turfes  and  hethe  to  take  occupie  and  carrie  awey 
out  of  the  sayd  ground  to  any  oder  mannes  grounde  for  makyng 
of  any  such  bulwarkes  and  other  the  premisses  in  whos  grounde 
so  ever  the  sayd  erth  stones  turfes  and  heth  happen  to  be  without 
any  interupcion  or  lett  of  any  person  or  persones  beyng  lord  or 
lordes  of  any  such  grounde  or  having  any  oder  interest  in  the 
same,  And  without  any  maner  of  payment  to  be  demaunded  for 
any  of  the  premisses  or  any  maner  of  accion  bi  any  maner  of 
person  or  persones  at  any  tyme  herafter  to  be  attempted  or  in 
any  wise  mayntened  ayenst  any  of  the  Kynge's  subgiettes  for 
any  such  matier  or  cause.  And  this  acte  to  endure  to  the  next 
parliament. 

^     Responsio — ^le  Roy  le  vulte. 

[Endorsed] 

Rotulus  Parliamenti  prorogati  usque  quartum  diem  Novem- 
bris  anno  regni  Regis  Henrici  octavi  quarto  et  postea  de  die  in 
diem  usque  vicesimum  diem  Decembris  extunc  proximo  sequen- 
tem  continuati  et  extunc  usque  septimum  diem  Novembris 
proximo  sequentem  prorogati. 

Anno  Quarto. 


STATUTES  OF  THE  REALM.    14  CHARLES  II.    Cap.  20 

An  Act  for  providing  carriage  by  land  and  by  water  for  the  use 
of  his  Majesty's  Navy  &  Ordnance. 

Whereas  by  an  Act  entitled  an  Act  for  taking  away  the  Court 
of  Wards  and  Liveries  and  Tenures  in  capite  and  by  knights' 
service  and  purveyance,  and  for  settling  a  revenue  upon  His 
Majesty  in  lieu  thereof,  it  was  amongst  other  things  enacted, 
for  the  reasons  and  recompense  therein  expressed,  that  from 
thence  forth  no  person  or  persons  by  any  warrant,  commission 
or  authority  under  the  Great  Seal  or  otherwise  by  colour  of 
buying  or  making  provision  or  purveyance  for  His  Majesty  or 
any  Queen  of  England  for  the  time  being,  or  of  any  the  children 
of  any  King  or  Queen  of  England  that  shall  be  or  for  his,  their 


STATUTES  223 

or  any  of  their  household,  shall  take  any  cart,  carriage  or  other 
thing  whatsoever  of  any  of  the  subjects  of  His  Majesty,  His 
heirs  or  successors  without  the  free  and  full  consent  of  the 
owner  or  owners  thereof,  had  or  obtained  without  menace  or 
enforcement,  nor  shall  summon,  warn,  take  use  or  require  any  of 
the  said  subjects  to  furnish  or  find  any  horses,  oxen  or  other 
cattle,  carts,  ploughs,  wains  or  other  carriages  for  the  use  of 
His  Majesty,  His  Heirs  and  successors,  or  of  any  Queen  of  England 
or  any  child  or  children  of  any  the  Kings  or  Queens  of  England 
for  the  time  being,  for  the  carrying  the  goods  of  His  Majesty, 
His  Heirs  or  successors  or  the  said  Queens  or  children  or  any  of 
them,  without  such  full  and  free  consent  as  aforesaid,  any  law, 
statute,  custom  or  usage  to  the  contrary  notwithstanding.  Be 
it  notwithstanding  enacted  by  the  King's  most  Excellent  Majesty, 
by  and  with  the  advice  and  consent  of  the  Lords  Spiritual  and 
Temporal;  and  the  Commons  in  this  present  Parliament  assembled, 
and  by  the  authority  of  the  same,  that  from  and  after  the  four 
and  twentieth  day  of  June  in  the  year  of  Our  Lord,  one  thousand 
six  hundred  sixty  and  two,  as  often  as  the  service  of  His  Majesty's 
Navy  or  Ordnance  shall  require  any  carriages  by  land  within  the 
Kingdom  of  England,  and  dominion  of  Wales  and  town  of  Berwick 
upon  Tweed,  upon  notice  given  in  writing  by  warrant  under  the 
hand  and  seal  of  the  Lord  High  Admiral  of  England  for  the  time 
being  or  under  the  hands  and  seals  of  two  or  more  of  the  principal 
officers  or  commissioners  of  His  Majesty's  Navy,  or  under  the 
hand  and  seal  of  the  Master  of  His  Majesty's  Ordnance  for  the 
time  being,  or  under  the  hand  and  seal  of  the  lieutenant  of  [His] 
Majesty's  Ordnance  for  the  providing  of  carriages  for  the  respec- 
tive service  of  the  Navy  or  Ordnance  unto  two  or  more  Justices 
of  the  Peace  dwelling  near  unto  the  place  where  the  said  carriages 
shall  be  required,  the  said  Justices  of  the  Peace  may  and  shall 
immediately  issue  forth  their  warrants  to  such  of  the  adjacent 
parishes,  hundred  or  divisions  as  they  shall  judge  fit  within  their 
respective  counties  or  divisions,  not  being  above  twelve  miles 
distant  from  the  place  of  lading  for  the  sending  to  a  certain  place 
and  at  certain  times  (to  be  specified  and  appointed  in  the  said 
warrants)  such  numbers  of  carriages  with  horses  or  oxen  sufficient 
for  the  said  service  as  by  the  Lord  High  Admiral  of  England  for 
the  time  being  or  by  the  master  or  lieutenant  of  His  Majesty's 
Ordnance  for  the  time  being,  or  by  the  principal  officers  or 
commissioners  of  His  Majesty's  Navy  respectively  as  abovesaid 
shall  be,  by  writing  under  their  hands  and  seals,  required,  the 


224  STATUTES 

owners  of  which  carriages  or  their  servants  shall  receive  for  every 
load  of  timber  per  mile,  one  shilling  for  every  reputed  mile  which 
they  shall  go  laden,  and  for  other  provisions,  the  sum  of  eight 
pence  per  mile  for  every  ton  they  shall  carry. 

And  be  it  further  enacted  by  the  authority  aforesaid  that  it 
may  and  shall  be  lawful  for  the  Lord  High  Admiral  of  England 
for  the  time  being  by  warrant  under  his  hand  and  seal  and  also 
for  the  principal  officers  and  commissioners  of  His  Majesty's 
Navy  by  warrants  under  the  hands  and  seals  of  any  two  or  more 
of  them  as  also  for  the  Master  of  His  Majesty's  Ordnance  for  the 
time  being  by  warrant  under  his  hand  and  seal,  and  also  for  the 
lieutenant  of  His  Majesty's  Ordnance  by  warrants  under  the 
hands  and  seals  of  either  of  them  as  often  as  the  service  of  His 
Majesty's  Navy  or  Ordnance  respectively  shall  require  any 
carriage  by  water,  to  appoint  such  person  or  persons  as  they  shall 
judge  fitting  to  impress  and  take  up  such  ships,  hoys,  lighters, 
boats  or  any  other  vessel  whatsoever  as  shall  be  necessary  for 
the  accommodation  of  His  Majesty's  said  service,  the  owners  of 
which  said  ships,  hoys,  lighters,  boats  or  other  water  carriage 
aforesaid,  or  such  as  they  shall  appoint,  shall  receive  for  the  hire 
of  every  such  ship,  hoy,  lighter,  boat  or  other  vessel  per  ton 
according  to  the  rates  usually  paid  by  merchants ^  from  time  to 
time,  and  in  case  His  Majesty's  officers  and  the  owners  of  such 
ships,  hoys,  lighters,  boats  or  other  vessels  shall  not  agree  on 
the  said  rates,  then  the  rate  to  be  settled  by  the  Brotherhood  of 
Trinity  House  of  Deptford,  Strand. 

And  be  it  further  enacted  by  the  authority  aforesaid  that  in 
case  any  of  His  Majesty's  subjects  of  this  Realm  shall  refuse  or 
wilfully  neglect,  after  reasonable  notice,  to  make  their  appear- 
ance with  sufficient  carriages  by  land  or  to  fit  provide  and  furnish 
their  ships,  hoys,  lighters,  boats  or  other  vessels  for  the  service 
of  His  Majesty's  Navy  or  Ordnance,  as  is  before  expressed,  or 
shall  after  they  shall  have  undertaken  such  service,  neglect  or 
delay  the  same,  that  then  upon  due  proof  and  conviction  of  such 
refusal  or  neglect  by  the  oath  of  the  constable,  or  other  officer 
or  two  other  credible  witnesses,  before  the  said  Justices  of  the 
Peace  of  the  county  or  Maior  or  other  chief  officer  of  the  city  or 
corporation  where  he  or  they  inhabit  (which  oath  they  shall 
have  power  to  administer)  for  the  land  carriages  and  for  the 
water  carriages,  by  the  oath  of  such  person  as  shall  be  appointed 
by  the  Lord  High  Admiral,  the  principal  officers  or  commissioners 
of  His  Majesty's  Navy,  the  Master  of  His  Majesty's  Ordnance, 


STATUTES  225 

or  the  lieutenant  of  His  Majesty's  Ordnance,  as  aforesaid,  or 
other  two  credible  witnesses,  before  the  principal  officers  or 
commissioners  of  His  Majesty's  Navy  or  Master  or  Lieutenant 
of  His  Majesty's  Ordnance  respectively  (which  oath  they  shall 
have  likewise  power  to  administer)  the  party  so  refusing  or 
neglecting  shall  for  every  such  refusal  or  neglect  forfeit  the 
sum  of  twenty  shillings  for  the  land  carriage  and  for  carriage  by 
wat^  treble  the  freight  of  such  ship  or  vessel  not  exceeding  fifty 
pounds  in  the  whole,  to  the  King's  Majesty's  use  to  be  forthwith 
levied  in  default  of  payment  upon  demand  by  distress  and  sale 
of  his  goods  and  chattels  by  warrant  from  the  said  Justices  of 
the  Peace,  Mayor  or  other  chief  officer  or  from  the  principal 
officers  or  commissioners  of  His  Majesty's  Navy  or  Master  or 
lieutenant  of  His  Majesty's  Ordnance  respectively  (rendering  to 
the  parties  the  overplus  upon  every  such  sale  if  there  should  be 
any)  the  charge  of  distraining  being  first  deducted. 

Provided  always  that  no  horses,  oxen,  cart,  wain  or  other  land 
carriage  shall  be  enforced  to  travel  more  days  journey  from  the 
place  where  they  receive  their  lading  or  be  compelled  to  continue 
longer  in  the  employment  than  shall  be  appointed  by  the  Order 
of  the  said  Justices  of  the  Peace  and  that  ready  payment  shall 
be  made  in  hand  for  the  said  carriages  at  the  place  of  lading 
without  delay  according  to  the  aforesaid  rates. 

Provided  always  that  in  case  any  Justice  of  the  Peace,  Mayor, 
Chief  Officer  or  Constable  or  any  person  or  persons  which  shall 
be  appointed  by  the  Lord  High  Admiral,  the  principal  officers 
or  commissioners  of  His  Majesty's  Navy,  the  Master  of  His 
Majesty's  Ordnance  or  the  lieutenant  of  His  Majesty's  Ordnance 
as  aforesaid  respectively,  shall  take  any  gift  or  reward  to  spare 
any  person  or  persons  from  making  such  carriage  by  land  or  by 
water  or  shall  injuriously  charge  or  grieve  any  person  or  persons 
through  envy,  hatred  or  evil  will  who  ought  not  to  make  such 
carriage  or  shall  impress  more  carriages  than  the  necessity  of  the 
service  shall  require  or  than  he  shall  be  commanded  to  impress 
by  his  superiors,  that  then,  upon  due  proof  and  conviction  thereof, 
the  parties  so  offending  shall  forfeit  the  sum  of  £10  to  the  party 
thereby  grieved,  who  may  sue  for  the  same  to  be  recovered  by 
action  of  debt  in  any  of  His  Majesty's  Courts  of  Record,  wherein 
no  essoign,  protection  or  wager  of  law  shall  be  allowed,  and  in 
case  any  person  or  persons  shall  presume  to  take  upon  him  or 
them  to  impress  any  horses,  o^^en,  wains  or  carriages  for  land,  or 
any  ships^  hoys,  lighters,  boats  or  other  vessel  for  the  service  of 

2388  rk 


226  STATUTES 

His  Majesty's  Navy  or  Ordnance  other  than  the  persons  so 
empowered  as  aforesaid,  then  he  or  they  so  offending  shall  upon 
due  conviction  of  the  said  offence,  incur  or  suffer  the  punishment 
in  the  first  recited  Act. 

Provided  always,  and  be  it  enacted,  that  no  ship,  hoy,  barge 
or  any  other  vessel  whatsoever,  that  shall  be  really  and  bona  fide 
fraighted  by  charter  party  if  there  be  other  vessels  in  the  port 
fitting  for  the  service,  nor  any  vessel  quarter  laden  with^  any 
goods,  wares  or  merchandizes  outward  bound  shall  be  liable  to 
be  impressed  for  any  the  services  aforesaid,  any  thing  in  this 
Act  to  the  contrary  notwithstanding. 

Provided  that  this  Act  and  the  powers  therein  contained  shall 
continue  and  be  in  force  until  the  end  of  the  first  session  of  the 
next  Parliament  and  no  longer,  anything  herein  contained  to  the 
contrary  in  any  wise  notwithstanding. 

Provided  nevertheless  that  in  regard  of  the  more  than  ordinary 
charge  and  burden  which  the  inhabitants  of  the  New  Forest 
in  the  county  of  Southampton,  will  be  liable  unto  by  reason  of 
the  quantities  of  timber  usually  felled  and  carried  thence  for  the 
use  of  His  Majesty's  Navy,  it  shall  and  may  be  lawful  for  the 
Justices  of  the  Peace,  who  shall  by  warrant  summon  the  carts 
and  carriages  within  the  division  of  the  New  Forest  in  the  county 
of  Southampton  aforesaid,  to  have  power  (as  to  the  carriage  of 
timber  only)  to  allow  as  aforesaid  to  the  several  owners  of  such 
carts  and  carriages  not  exceeding  fourpence  per  mile  for  so 
many  miles  as  any  cart  or  carriage  so  summoned  shall  go  empty 
to  the  place  of  lading,  anything  in  this  Act  contained  to  the 
contrary  in  any  wise  notwithstanding. 


An  Act  for  vesting  and  setling  the  Fee  Simple  of  certaine  Lands 
on  his  Maty  his  Heyres  &  Successors,  which  haue  been  taken 
into,  &  Spoyled  by  makeing  new  Fortifications,  about  the 
Towne  of  Portsmouth. 

Ann).  22°  et  23°  Car  :  2^1  No.  43. 
Whereas  his  Maiesty  hath  caused  the  Fortifications  of  his 
Towne  of  Portsmouth,  in  the  County  of  Southampton,  to  be 
enlarged,  and  new  Fortifications  to  be  made  there,  and  about 
the  Dockyard  neere  the  said  Towne,  in  order  to  the  rendring  that 
Place  more  Defensible,  for  the  doing  whereof,  the  seuerall  parcells 
of  ground  of,  and  belonging  to  the  seuerall  persons,  and  of  the 
particular  quantities,  qualities,  apd  yearly  values,  in  a  schedule 
hereunto  annexed,  mentioned,  and  expressed,  haue  been  inclosed, 


( 


STATUTES  227 

Spoyled,  and  taken  away,  as  well  within  the  said  Workes,  as  by 
the  Counterscarpes,  and  forelands  belonging  to  the  same,  and 
other  Damages  haue  been  there  done  ;  And  whereas  the  Lords 
Comissioners  of  his  Maiesties  Treasury,  being  by  Order  of  his 
Maiesty  in  Councell  directed,  to  purchase  the  said  Lands  for  his 
Maiesties  vse,  and  to  make  satisfaction  for  the  Damages  afore- 
said, and  being  certifyed  by  his  Maiesties  Surveyor  Generall, 
that  the  Sume  of  Thirteene  hundred  and  Nynety  pounds,  would 
be  a  sufficient  compensation  for  the  same,  haue  made  an  Agree- 
ment with  Richard  Norton  of  Southwicke  in  the  County  of 
Southampton  Esq.  (who  is  Owner  of  parte  of  the  said  Lands, 
and  hath  authority  from  the  rest  of  the  Owners,  and  persons 
concerned  in  the  same,  to  make  an  Agreement,  on  their  behalfe, 
for  the  purchase  of  the  said  Lands,  and  the  said  Damages) 
that  in  consideration  of  the  said  Sume  of  Thirteene  hundred 
and  Nynety  pounds,  to  be  payed  to  the  said  Richard  Norton, 
for  the  vse  of  himselfe,  and  the  rest  of  the  Owners,  Pro- 
prietors, and  persons  concerned  in  the  said  Lands,  in  full 
satisfaction  for  the  purchase  thereof,  and  for  their  said  Damages, 
the  said  Lands  shall  be  conveyed  to  his  Maiesty,  his  Heyres 
and  Successors,  and  that  all  persons,  who  haue  done  any 
injury  to  any  of  the  said  Owners  of  the  said  Lands,  by  reason  of 
the  makeing  of  the  Fortifications  aforesaid,  shall  be  discharged 
of  and  from  the  same.  And  his  Maiesty  haveing  approved  of  the 
said  Agreement,  hath,  by  his  Letters  of  Privy  Scale,  directed  the 
said  Lords  Comissioners  of  his  Treasury  to  give  order  for  payment 
of  the  said  Thirteene  hundred  and  Nynety  pounds  to  the  said 
Richard  Norton,  for  the  use  aforesaid,  when  his  Maiesty  shalbe 
Legally  vested  and  setled  in  the  Possession  of  the  said  Lands, 
and  for  payment  of  the  Interest  thereof,  in  the  mean  time.  And 
they  haue  thereupon  given  Order  to  the  Officers  of  the  Receipt 
of  his  Maiesties  Exchequer,  for  payment  of  the  same  accordingly, 
Now  for  that  the  said  Lands  belong  to  many  seueraU  persons, 
who  live  in  seuerall  Places,  some  whereof  are  very  remote,  and 
the  haueing  particular  Conveyances,  and  Assurances  of  their 
seuerall,  and  respective  Interests  in  the  same,  from  euery  one 
of  them,  will  be  very  troublesome,  and  a  delay  to  the  payment 
of  the  said  purchase  money,  And  to  the  intent  the  said  money 
may  be  speedily  paid  to  the  said  Richard  Norton,  for  their  vse. 
And  for  that  the  said  Richard  Norton  for  himselfe,  and  the  said 
Owners,  and  Proprietors  of  the  said  Lands,  hath  consented,  that 
the  said  Lands  shalbe  setled  on  his  Maiesty,  his  Heyres,  and 

.Q2 


228  STATUTES 

Successors  by  Act  of  Parliament,  BEE  it  Enacted  by  the  Kings 
most  Excellent  Maiesty,  by  and  with  the  Consent  of  the  Lords 
Spirituall,  and  Temporall,  and  of  the  Comons  in  this  ParUament 
assembled,  and  by  Authority  of  the  same.  That  his  Maiesty  his 
Heyres  and  Successors  shall,  from  henceforth,  and  for  euer 
hereafter  stand,  and  be  seized  of  a  good,  sure,  perfect,  absolute, 
and  indefeazible  Estate  of  Inheritance  in  Fee  Simple,  of,  and  in 
all,  and  singular  the  Lands,  Tenements  and  Hereditaments,  in 
the  Schedule  hereunto  annexed,  mentioned,  and  of,  and  in  euery 
part  and  parcell  thereof,  with  their,  and  euery  of  their  Rights, 
Members,  and  Appurtenances  whatsoever,  and  that  all  and  euery 
persons  whatsoeuer  (who  by  reason  of  the  entring  upon  the  said 
Lands,  to  make  the  said  Fortifications  as  aforesaid,  haue  done 
any  Trespasse,  Damage,  or  injury  whatsoever  to  any  of  the 
Owners,  Proprietors,  or  persons  concerned  in  the  said  Lands,  or 
to  their  Corne,  or  Grasse  standing,  or  growing,  or  which  did 
stand  &  grow  upon  the  said  Lands)  their  Executors  and  Adminis- 
trators and  euery  of  them  be,  and  are  hereby  acquitted  pardoned. 
Released,  and  Discharged  of,  and  from  all  such  Trespasses, 
Damages,  and  injuries  whatsoeuer.  And  of,  and  from  all  Actions, 
and  suites  and  Cause  and  Causes  of  Actions,  and  Suites,  already 
had  or  brought,  or  hereafter  to  be  had  or  brought  against  them, 
or  any  of  them,  their  or  any  of  their  Heyres,  Executors,  or  Admin- 
ist?"8  for,  or  in  respect  of  the  same. 

A  Particular  of  the  Lands  vested,  and  setled  in  his  Maiesty, 
his  Heyres  and  Successors  by  virtue  of  this  Act. 

(Schedule  oj  Lands  Vested.) 


STATUTES  OF  THE  REALM.    1  JAMES  II.    Cap.  11 

An  Act  for  reviving  an  Act  for  providing  of  carriages  by  land  and 
by  water,  for  the  use  of  His  Majesty's  Navy  and  Ordnance. 

Whereas  an  Act  of  Parliament  was  made  and  passed  in  the 
thirteenth  and  fourteenth  years  of  the  reign  [of]  His  Late  Majesty 
of  Blessed  Memory,  entitled.  An  Act  for  providing  carriages  by 
land  and  by  water  for  the  use  of  His  Majesty's  navy  and  ordnance, 
which  said  Act  is  since  expired. 

And  whereas  the  said  Act  hath  been  by  experience  found  to  be 
of  necessary  use  and  fit  to  be  revived  and  continued,  be  it  there- 
fore enacted  by  the  King's  Most  Excellent  Majesty,  by  and  with 


STATUTES  229 

the  advice  and  consent  of  the  Lords  Spiritual  and  Temporal,  and 
of  the  Commons,  in  this  present  ParUament  assembled,  and  by 
the  authority  of  the  same,  that  the  said  Act  and  aU  and  every 
the  clauses,  sentences  and  articles  therein  contained  shall  by 
virtue  of  this  Act  be  revived  and  continued  and  have  the  full 
force,  power  and  virtue  of  a  law  during  the  continuance  of  this  Act* 
And  be  it  further  enacted  and  declared  by  the  authority  afore- 
said, that  this  Act  shall  continue  and  be  in  force  during  the  space 
of  seven  years  from  the  four  and  twentieth  day  of  June,  in  the 
year  of  Our  Lord  1685,  and  from  thence  to  the  end  of  the  First 
Sessions  of  Parliament  then  next  ensuing  and  no  longer. 


APPENDIX  C 

DOCUMENTS  RELATING  TO  VESTING  ACTS  AND 
COMMISSIONS,  INQUISITIONS,  PROCEEDINGS, 
DECREES,  ETC. 

(1759.— PORTSMOUTH,  CHATHAM,  AND  PLYMOUTH.) 

Crown  Office  (Chancery)  Commissions,  Inquisitions,  &  Decrees 
relating  to  the  purchase  of  land  &c  for  the  purchase  of  land  for 
Fortifications  No.  2. 

George  the  Second  by  the  Grace  of  God  of  Great  Britain 
France  and  Ireland  King  Defender  of  the  Faith  And  so  forth 
To  our  Right  Trusty  and  Welbeloved  Councillor  Arthur  Onslow 
Esquire  Speaker  of  Our  House  of  Commons  Charles  Marquis  of 
Winchester  James  Marquiss  of  Carnarvon  Lord  Harry  Powlet 
Lord  George  Sackville  Sir  William  Courtney  Baronet  Sir  John 
Barrington  Baronet  Sir  Thomas  Hales  Baronet  Sir  Francis 
Henry  Drake  Baronet  Sir  Richard  Warwick  Bampfylde  Baronet 
Sir  William  Gardiner  Baronet  Sir  George  Yonge  Baronet  Sir 
John  Molesworth  Baronet  Sir  James  Creed  Knight  Henry  Bilson 
Legge  Lewis  Watson  Robert  Fairfax  Charles  Yorke  Charles 
Pratt  James  West  Samuel  Martin  James  Buller  John  Buller 
Richard  Edgcombe  Jonathan  Rashleigh  Richard  Hussey  John 
Harris  Henry  Reginald  Courtney  George  Treby  Browse  Trist 
John  Harris  of  Pickwell  John  Evelyn  John  Tuckfield  John 
Rolle  Walter  Andrew  Wilkinson  Nicholas  Haddock  Isaac  Town- 
send  Charles  Frederick  Gabriel  Hanger  Mathew  Robinsoil 
Morris  the  younger  Charles  Whitworth  Alexander  Thistlethwaite 


230  ACQUISITION  OF  LAND 

Job  Staunton  Charlton  Henry  Penton  Thomas  Lee  Dummer 
Thomas  Holmes  Major  General  Holmes  Harry  Burrard  Anthony 
Langley  Swymmer  Charles  Cocks  Robert  Bristow  Henry  Archer 
WilUam  Rawlinson  Earle  Hugh  Valence  Jones  William  Glanville 
Phillips  Gybbon  Henry  Gould  Thomas  Stan3rford  William  Davy 
Philip  Drake  Thomas  Bewes  Frederick  Rohers  John  Ommanney 
William  Basturd  Thomas  Neale  John  Parker  WiUiam  Eyre 
John  Richmond  Webb  Richard  New  Richard  Hughes  Pusy 
Brooke  John  Peachy  Thomas  Missing  John  Moody  John  Gringo 
William  Yalding  William  Pescod  Thomas  Cooper  James  Best 
Joseph  Brooke  Thomas  Fletcher  John  Russell  Roger  Pilcher 
Thomas  Chiffinch  Charles  Petley  John  Cockain  Sole  Samuel 
lEyre  Charles  Taylor  Jacob  Pickering  John  HoUis  Richard  Leigh 
Francis  Filmer  Charles  Robinson  and  William  Hay  Esquires 
Greeting  Whereas  in  and  by  One  Act  of  Parliament  made  in 
the  last  Session  Entituled  An  Act  for  vesting  certain  Messuages 
Land  Tenements  and  Hereditaments  for  the  better  securing 
His  Majestys  Docks  Ships  and  Stores  at  Portsmouth  Chatham 
and  Plymouth  and  for  the  better  Fortifying  the  Town  of  Ports- 
mouth and  Citadel  of  Plymouth  in  Trustees  for  certain  Uses  and 
for  other  Purposes  therein  mentioned  It  was  Enacted  that  for 
the  better  ascertaining  the  several  Owners  and  Proprietors  of 
certain  Lands  therein  particularly  mentioned  lying  near  the 
Docks  of  Portsmouth  Chatham  and  Plymouth  which  have  been 
made  use  of  in  making  Intrenchments  and  raising  Lines  and 
Fortifications  for  the  Defence  and  Security  of  the  said  Docks 
and  their  respective  Titles  and  Claimes  thereto  It  should  and 
might  be  Lawfull  to  and  for  Us  by  One  or  more  Commission  or 
Commissions  by  Letters  Patent  under  the  Great  Seal  of  Great 
Britain  to  Authorize  and  Appoint  any  Number  of  Persons  to 
be  Commissioners  to  hear  and  Determine  all  Titles  and  Claims 
that  shall  or  may  be  made  to  the  said  Lands  Tenements  and 
Hereditaments  or  to  any  part  or  parcel  thereof  which  Commis- 
sioners so  to  be  Appointed  or  any  Five  or  more  of  them  are 
thereby  Authorized  and  Required  and  shall  and  may  in  a  sum- 
mary manner  Proceed  Act  and  Determine  by  and  upon  the 
Testimony  of  Witnesses  upon  Oath  (Which  Oath  they  or  any 
Five  or  more  of  them  are  thereby  impowered  to  Administer) 
Inspection  and  Examination  of  Deeds  Writings  and  Records  or 
by  Inquest  of  Twelve  good  and  lawfull  Men  to  be  Impanelled 
and  Sworn  in  manner  therein  mentioned  and  directed  or  by  all 
or  any  of  the  said  Ways  or  otherwise  according  to  their  Direc- 


COMMISSIONS  AND  PROCEEDINGS  231 

tions  all  and  all  manner  of  Rights  Estates  and  Interests  and  all 
Controversies  Debates  and  Questions  which  shall  happen  and 
arise  between  any  Person  or  Persons  whatsoever  or  any  other 
matter  or  thing  relating  to  any  of  the  Premisses  or  any  part 
thereof  as  in  and  by  the  said  recited  Act  of  Parliament  amongst 
other  things  therein  contained  relation  being  thereunto  had 
may  more  fully  and  at  large  appear  Now  Know  Yb  that  we 
reposing  especial  Trust  and  Confidence  in  your  Great  Abilities 
Care  Fidelity  and  Circumspection  Have  Nominated  Constituted 
and  Appointed  And  do  by  these  presents  Nominate  Constitute 
and  Appoint  You 

{Here  follow  the  names  of  Commissioners) 

or  any  Five  or  more  of  you  to  be  Commissioners  for  Putting  in 
Execution  the  said  Act  of  Parliament  And  to  you  or  any  five  or 
more  of  you  as  aforesaid  We  do  by  these  Presents  Give  full 
Power  and  Authority  to  do  Perform  and  execute  or  cause  to 
be  done  Performed  and  executed  all  Powers  Directions  Clauses 
Matters  and  Things  Whatsoever  in  the  said  Act  contained 
Hereby  Willing  and  Requiring  you  or  any  Five  or  more  of  you 
as  is  aforesaid  from  time  to  time  to  proceed  and  act  according  to 
the  Rules  and  Directions  of  the  said  Act  of  Parliament  and 
diligently  to  Intend  the  execution  thereof  in  all  things  as 
becometh  And  these  Presents  or  the  Inrollment  or  Exemplifi- 
cation thereof  shall  be  to  you  and  every  of  you  a  sufficient 
Warrant  and  Discharge  in  that  behalf  In  Witness  whereof  we 
have  caused  these  Our  Letters  to  be  made  Patent  Witness 
ourselves  at  Westminster  the  Twenty  Seventh  day  of  July  in 
the  Thirty  Second  Year  of  Our  Reign 

York  &  York 

{Here  follow  the  signatures  of  six  Commissioners) 

Inquisition  indented  had  made  and  taken  at  the  house  of 
Timothy  Bayly  Scituate  in  Plymouth  Dock  in  the  County  of 
Devon  the  Eleventh  day  of  September  in  the  Thirty  Second 
year  of  the  Reign  of  our  Sovereign  Lord  George  the  Second  (by 
the  Grace  of  God)  of  Great  Britain  France  and  Ireland  King 
Defender  of  the  Faith  and  so  forth  and  in  the  year  of  Our  Lord 
One  thousand  Seven  Hundred  and  Fifty  eight  Between  the 
severall  Commissioners  whose  hands  and  Seals  are  hereunto  set 
appointed  amcJbg  others  by  his  Majesty's  Letters  Patent  under 
the  Great  Seal  of  Great  Britain  pursuant  to  an  Act  of  Parliament 


232  ACQUISITION  OF  LAND 

made  and  passed  the  last  Sessions  of  Parliament  intitled  an  Act 
for  vesting  certain  Messuages  Lands  Tenements  and  Heredita- 
ments for  the  better  securing  his  Majesty's  Docks  Ships  and 
Stores  at  Portsmouth  Chatham  and  Plymouth  and  for  the  better 
fortifying  the  Town  of  Portsmouth  and  Citidel  of  Plymouth  in 
Trustees  for  certain  uses  and  for  other  purposes  therein  men- 
tioned of  the  one  part  and  Richard  Doidge  John  Harris  Robert 
Lake  Thomas  Lear  Waltham  Savery  Evans  Cove  John  Charles 
Hayne  William  Kitson  Rawlin  Mallock  William  Neyle  Nicholas 
Brooking  John  Wolston  Arthur  Tremayne  Arthur  Kelley  Arthur 
Champernowne  John  Hawking  John  Powell  William  Strode 
and  Charles  Hale  Esquires  good  and  lawfull  men  Substantial 
Gentlemen  and  Freeholders  of  the  said  County  of  Devon  Im- 
pannelled  and  returned,  before  the  said  Commissioners  by  Peter 
Comyns  Esquire  High  Sherriff  of  the  said  County  of  Devon 
pursuant  to  a  precept  from  Five  of  the  said  Commissioners  to 
the  said  Sheriff  directed  duly  Sworn  and  Charged  to  inquire 
into  and  present  the  true  and  real  values  of  the  Messuages  Lands 
Tenements  and  Hereditaments  in  the  said  Act  comprized  and 
mentioned  to  be  situate  within  the  said  County  of  Devon  and  of 
every  part  and  parcell  thereof  at  the  time  they  were  first  made 
Use  of  for  the  purposes  in  the  Act  mentioned  And  who  respectively 
are  the  Owners  and  propreitors  thereof  and  their  respective 
Estates  and  Interests  therein  and  all  Controversies  Debates 
and  Questions  touching  or  concerning  the  same  or  any  part 
thereof  of  Whom  the  underwritten  being  twelve  of  the  said 
Jurors  say  and  present  upon  their  Oath  that  the  True  Value  of 
all  the  said  Messuages  Lands  Tenements  and  Hereditaments  and 
of  every  part  and  parcell  thereof  and  who  respectively  are  the 
Owners  and  propreitors  thereof  and  their  respective  Estates  and 
Interests  therein  are  mentioned  expressed  and  Sett  down  in  the 
Schedule  hereunto  annexed  Signed  by  the  said  Jurors  In  Testi- 
mony whereof  to  one  part  of  this  Inquisition  remaining  with  the 
said  Jury  the  said  Commissioners  (partys  hereunto)  have  here- 
unto sett  their  Hands  and  Seals  and  to  the  other  part  thereof 
returned  with  the  said  Commission  the  said  Jurors  have  hereunto 
Interchangeably  putt  their  Hands  and  Seals  the  Day  and  year 
above  written. 

(Here  follow  the  signatures  of  twelve  Jurors) 

A  ScHEDTTLE  of  the  true  and  reall  Value  of  the  Messuages 
Lands  Tenements  and  Hereditaments  at  the  time  they  were 


COMMISSIONS  AND  PROCEEDINGS  233 

• 
first  made  use  of  for  the  purposes  in  the  Act  mentioned  and 

every  Part  and  Parcell  thereof  and  who  respectively  are  the 

Owners  and  proprietors  thereof  and  their  respective  Estates 

and  Interests  therein  referred  to  by  the  Indenture  annexed. 

Whereas  in  pursuance  of  an  Act  of  Parliament  made  in  the 
last  Sessions  Intitled  an  Act  for  vesting  certain  Messuages  Lands 
Tenements  and  Hereditaments  for  the  better  securing  his 
Majesties  Docks  Ships  and  Stores  at  Portsmouth  Chatham  and 
Plymouth  and  for  the  better  fortifying  the  Town  of  Portsmouth 
and  Citadel  of  Plymouth  in  Ti'ustees  for  certain  Uses  and  for  other 
purposes  therein  mentioned  And  by  Virtue  of  a  Commission 
under  the  Great  Seal  of  Great  Britain  issued  in  pursuance  of 
the  said  Act  bearing  Date  at  Westminster  the  Twenty  seventh 
day  of  July  last  past  directed  to  us  and  others  Wee  Sir  Richard 
Warwick  Bampfylde  Baronet  Sir  William  Courtenay  Baronet 
Sir  John  Molesworth  Baronet  John  RoUe  Walter  John  Tuckfield 
James  BuUer  John  BuUer  Henry  Reginald  Courtenay  George 
Treby  Charles  Cocks  Browse  Trist  Frederick  Rogers  Wilham 
Basturd  John  Ommanney  Charles  Taylor  Esquires  and  William 
Davy  Esquire  Serjeant  at  Law  Being  Sixteen  of  the  Commis- 
sioners thereby  named  and  authorised  having  taken  upon  Us  the 
Execution  of  the  said  Commission  as  to  such  part  of  ike  Mes- 
suages Lands  Tenements  and  Hereditaments  in  the  said  Act 
mentioned  as  are  situate  in  the  County  of  Devon  did  on  the 
Eleventh  Day  of  September  in  the  two  and  thirtieth  year  of  the 
Reign  of  our  Lord  George  the  Second  meet  at  the  House  of 
Timothy  Bayley  known  by  the  name  or  Sign  of  the  Kings  Arms 
in  Plymouth  Dock  and  proof  was  duly  made  before  us  on  Oath 
and  otherwise  That  Notice  in  Writing  was  fixed  up  at  the  Dock 
Gate  of  his  Majesty's  Yard  and  at  the  Town  Hall  of  the  Borough 
of  Plymouth  and  likewise  published  in  the  London  Gazette 
thirty  Days  and  more  before  this  meeting  and  as  well  on  the 
Testimony  of  Witnesses  Inspection  and  Examination  of  Deeds 
Writings  and  Records  as  by  and  upon  the  Inquest  of  Richard 
Doidge,  John  Harris,  Robert  Lake,  Thomas  Lear,  Waltham 
Savery,  Evans  Cove,  John  Wise,  Charles  Hayne,  WilHam 
Kitson,  Rawlyn  Mallock,  William  Neyle,  Nicholas  Brooking, 
John  Wolston,  Arthur .  Tremayne,  Arthur  Kelley,  Arthur 
Champernowne,  John  Hawkins,  John  Powell,  William  Stroude 
and  Charles  Hale  Esquires  good  and  lawfull  Men  Substantial 
Gentlemen  and  Freeholders  Impannelled  Summoned  and  re- 


234  ACQUISITION  OF  LAND 

• 
turned  by  Peter  Comyns  Esquire  Sheriff  of  the  said  County  of 

Devon  to  take  the  Inquest  Twelve  of  whom  upon  their  Oaths 
duly  administred  upon  the  Holy  Evangelists  did  present  and 
say  that  Sir  John  St.  Aubyn  Baronet  is  seized  in  his  Demesne 
as  of  Freehold  for  the  Term  of  his  natural  Life  Remainder  to 
John  St.  Aubyn  son  of  the  said  Sir  John  St.  Aubyn  and  all  and 
every  other  the  sons  of  the  said  Sir  John  St.  Aubyn  in  Tail  Male 
Remainder  to  John  Molesworth  Esquire  for  his  life  Remainder 
to  his  first  and  other  Sons  in  Tail  Male  Remainder  to  Wilham 
Molesworth  Esquire  for  his  Life  Remainder  to  his  first  and  other 
Sons  in  Tail  Male  Remainder  to  the  Right  Heirs  of  Sir  WiUiam 
Morice  deceased  of  and  in  the  severall  par  cells  of  Land  herein- 
after more  particularly  described  and  containing  together  One 
hundred  Eighteen  Acres  three  Rood  and  Eleven  Rod  and  that 
the  true  and  real  Value  of  the  said  several  pieces  or  parcells  of 
Land  at  the  Time  they  were  first  made  use  of  for  the  purpose  in 
the  said  Act  mentioned  was  the  Sum  of  Thirteen  thousand  One 
hundred  Twenty  six  pounds  Ten  shillings  of  lawfull  Money  of 
Great  Britain  Now  wee  the  said  Commissioners  do  on  mature 
Consideration  order  direct  adjudge  decree  and  determine  that 
the  said  Sir  John  St.  Aubyn  is  Seized  in  his  Demesne  as  of 
Freehold  during  the  Term  of  his  naturall  Life  Remainder  to 
John  St.  Aubyn  son  of  the  said  Sir  John  St.  Aubyn  and  all  and 
every  other  the  sons  of  the  said  Sir  John  St.  Aubyn  in  Tail  Male 
Remainder  to  John  Molesworth  Esquire  for  his  Life  Remainder 
to  his  first  and  other  Sons  in  Tail  Male  Remainder  to  William 
Molesworth  Esquire  for  his  Life  Remainder  to  his  first  and  other 
Sons  in  Tail  Male  Remainder  to  the  Right  Heirs  of  Sir  William 
Morice  deceased  of  and  in  a  piece  of  Land  called  Little  Cliff  Field 
(Description  of  property  follows)  All  which  said  pieces  or  parcells 
of  Land  contain  together  One  hundred  and  eighteen  Acres 
three  Rood  and  eleven  Rodd  and  that  the  true  and  reall  Value 
of  the  said  several  pieces  of  Land  and  premises  at  the  time  they 
were  first  made  use  of  for  the  purposes  in  the  Act  mentioned 
was  the  Sum  of  Thirteen  thousand  One  hundred  Twenty  six 
pounds  and  Ten  shillings  of  lawfull  Money  of  Great  Britain 
And  that  the  said  Sir  John  Aubyn  and  the  persons  in  Remainder 
are  intituled  to  the  said  Sum  of  Thirteen  thousand  one  hundred 
Twenty  six  pounds  and  Ten  shillings  to  be  laid  out  in  the  pur- 
chase of  other  Freehold  Messuages  Lands  Tenements  and 
Hereditaments  to  be  settled  to  the  same  Uses. 
2.  Pritchard  Esquire.    And  the  Jurors  aforesaid  upon  their 


COMMISSIONS  AND  PROCEEDINGS  235 

Oath  aforesaid  did  further  present  and  say  that  John  Pritchard 
Esquire  is  possessed 

{Here  follow  statements  of  property  dk  tenure  &  value) 

Now  wee  the  said  Commissioners  do  adjudge  decree  &  deter- 
mine that  the  said  John  Pritchard  is  possessed  etc.  etc. 

And  that  the  true  and  reall  Value  of  the  said  several  pieces  of 
Land  and  premises  last  mentioned  at  the  time  they  were  first 
made  use  of  for  the  purposes  aforesaid  was  the  Sum  of  etc. 

{Following  finding  of  Jury) 

And  Wee  do  further  adjudge  decree  and  determine  that  etc.  etc. 
(Here  follows   apportionment   of  purchase  money  and  next 
follow  a  number  of  similar  findings  etc.) 

{Here  follow  the  signatures  of  twelve  Commissioners) 

Whereas  in  Pursuance  of  an  Act  of  Parliament  made  in  the 
last  Sessions  Intitled  An  Act  for  Vesting  certain  Messuages 
Lands  Tenements  and  Hereditaments  for  the  better  securing 
his  Majesty s  Docks  Ships  and  Stores  at  Portsmouth  Chatham  and 
Plymouth  and  for  the  better  Fortifying  the  Town  of  Portsmouth 
and  Citadel  of  Plymouth  in  Trustees  for  certain  Uses  and  for 
other  purposes  therein  mentioned  and  by  Virtue  of  a  Com- 
mission under  the  Great  Seal  of  Great  Britain  Issued  in  Pur- 
suance of  the  said  Act  bearing  Date  at  Westminster  the  Twenty 
seventh  day  of  July  last  past  Directed  to  us  and  others  We 
Henry  Gould  Charles  Whitworth  Charles  Petley  Thomas  Chiffinch 
Joseph  Brooke  Thomas  Cooper  Thomas  Fletcher  James  Best 
Jacob  Pickering  Samuel  Eyre  and  John  Russell  Esquires  being 
Eleven  of  the  Commissioners  thereby  named  and  Authorised 
having  taken  upon  us  the  Execution  of  the  said  Commission  as 
to  such  part  of  the  Messuages  Lands  Tenements  and  Heredita- 
ments in  the  said  Act  mentioned  as  are  scituate  in  the  County 
of  Kent  Did  on  the  First  day  of  November  in  the  Thirty  second 
Year  of  the  Reign  of  our  Sovereign  Lord  George  the  Second  meet 
at  the  Guildhall  of  the  City  of  Rochester  scituate  in  Rochester 
in  the  County  of  Kent  and  Proof  was  duly  made  before  us  on 
Oath  and  otherwise  that  Notice  in  writing  was  fixed  up  at  the 
Dock  Gate  of  his  Majesty's  Yard  at  Chatham  and  at  the  Town 
Hall  of  the  City  of  Rochester  and  likewise  published  in  the  London 
Gazette  Thirty  days  and  more  before  this  Meeting  and  as  well 
on  the  Testimony  of  Witnesses  Inspection  and  Examination  of 


236  '         ACQUISITION  OF  LAND 

Deeds  Writings  and  Records  as  by  and  upon  the  Inquest  etc. 
[Here  follow  the  names  of  Jurors]  who  upon  their  Oaths  duly 
Administered  upon  the  Holy  EvangeUst  Did  present  and  say 
&c.  Now  Wee  the  said  Commissioners  Do  Adjudge  Decree  and 
Determine  etc.  etc.  [Here  follow  findings  etc,  of  Commissioners 
in  accordance  with  the  findings  of  the  Jury.] 

And  We  the  said  Commissioners  in  further  Execution  of  the 
said  Commission  to  us  Directed  do  hereby  Certify  That  we  have 
in  pursuance  of  the  said  Act  of  Parliament  upon  the  Complaint 
of  Thomas  Feild  the  Tenant  of  Lands  adjoyning  to  the  said 
Fortifycations  of  Damages  done  to  his  said  Lands  heard  and 
Enquired  as  well  by  the  Oaths  of  Witnesses  as  the  Inquest  of 
the  Jurors  Sworn  as  aforesaid  into  the  Damages  so  Done  and 
do  Estimate  the  Damage  sustained  by  the  said  Thomas  Feild  to 
his  Lands  aforesaid  at  the  Sum  of  Five  Pounds  of  lawful!  Money 
of  Great  Britain 

{Here  follow  similar  findings  as  to  the  damage  sustained  by 
adjoining  Owners] 

All  which  damages  were  sustained  by  means  of  making  and 
Erecting  the  said  Fortifications, 

{Here  follow  the  signatures  of  twelve  Commissioners) 


[Crown  Office  (Chancery)  Commissions,  Inquisitions,  and  Decrees 
relating  to  the  purchase  of  land  &c.  for  Fortifications  No.  4] 

Geobge  the  Second  by  the  Grace  of  God  of  Great  Britain 
France  and  Ireland  King  Defender  of  the  Faith  and  so  forth  To 

{Here  follow  the  names  of  Commissioners) 
Greeting  Whereas  in  and  by  One  Act  of  Parliament  lately 
Passed  Entituled  An  Act  for  taking  down  and  removing  the 
Magazine  for  Gunpowder  and  all  Buildings  thereto  belonging 
Situate  near  Greenwich  in  the  County  of  Kent  and  Erectmg 
instead  thereof  a  New  Magazine  for  Gunpowder  at  Purfleet  near 
the  River  Thames  in  the  County  of  Essex  and  Appljdng  a  Sum 
of  Money  Granted  in  this  Session  of  Parliament  towards  those 
Purposes  and  for  Obviating  Difficulties  arisen  upon  An  Act 
made  in  the  last  Session  of  Parliament  for  making  Compensation 
for  Lands  and  Hereditaments  Purchased  for  his  Majestys  Ser- 
vice at  Portsmouth  Chatham  and  Plymouth  It  was  Enacted  that 
it  should  and  might  be  Lawfull  to  and  for  Us  by  One  or  more 
Commission  or  Commissions  by  Letters  Patent  under  the  Great 


COMMISSIONS  AND  PROCEEDINGS  237 

Seal  of  Great  Britain  to  Authorize  and  Appoint  any  Number  of 
Persons  to  be  Commissioners  for  Surveying  and  Setting  out  all 
such  Messuages  Mills  Lands  and  Tenements  and  Hereditaments 
as  it  will  be  necessary  to  Purchase  in  Order  to  Build  such  intended 
Magazine  for  Gunpowder  and  other  Buildings  at  Purfleet  afore- 
said and  for  executing  the  other  purposes  of  the  said  Act  in 
manner  thereinafter  mentioned  and  that  it  should  and  might 
be  LawfuU  for  the  said  Commissioners  so  to  be  appointed  or  any 
Five  or  more  of  them  or  such  Persons  as  they  or  any  Five  or 
more  of  them  shall  appoint  to  Enter  upon  make  Surveys  of  and 
set  out  and  Describe  by  Lines  Stakes  or  other  Marks  such 
Messuages  Mills  Lands  Tenements  and  Hereditaments  at  Pur- 
fleet aforesaid  as  they  the  said  Commissioners  so  to  be  Appointed 
or  any  Five  or  more  of  them  shall  think  Proper  to  be  purchased 
in  Order  for  the  Erecting  and  Building  a  Magazine  for  Gunpowder 
and  the  Guard  House  Barracks  and  other  Convenient  Buildings 
there  as  in  and  by  the  said  Recited  Act  of  Parliament  amongst 
other  things  therein  contained  Relation  being  thereunto  had 
may  more  fully  and  at  large  appear  Now  know  ye  that  We 
Reposing  Especial  Trust  and  Confidence  in  Your  Great  Abilities 
Care  FideUty  and  Circumspection  have  Nominated  Constituted 
and  Appointed  and  do  by  these  Presents  Nominate  Constitute 
and  Appoint  You 

(Here  follow  names  of  Commissioners) 

or  any  Five  or  more  of  You  to  be  Commissioners  for  Surveying 
and  Setting  out  all  such  Messuages  Mills  Lands  Tenements  and 
Hereditaments  as  will  be  necessary  to  Purchase  in  Order  to 
Build  according  to  the  Directions  of  the  said  Act  a  Magazine  for 
Gunpowder  and  other  Buildings  at  Purfleet  near  the  River  Thames 
in  the  County  of  Essex  and  for  Executing  all  and  eyery  other 
the  Purposes  of  the  said  Act  as  far  the  same  doth  relate  to  the 
Erecting  a  New  Magazine  for  Gunpowder  at  the  Place  aforesaid 
And  We  do  hereby  Impower  and  Authorise  You  Our  said  Com- 
missioners or  any  Five  or  more  of  You  upon  the  Complaint  of 
any  Owner  or  Owners  Occupyer  or  Occupyers  of  any  the  Mes- 
suages Lands  and  Hereditaments  for  this  Purpose  Described  and 
mentioned  in  the  said  Act  and  adjoining  to  any  part  of  the  Lands 
and  Hereditaments  by  that  Act  Vested  in  the  Trustees  therein 
mentioned  that  He  She  or  they  have  Received  any  Damage  by 
bringing  Loading  or  Carrying  any  Materials  necessary  to  Erect 
or  Compleat  any  the  Works  therein  mentioned  or  by  any  other 


238  ACQUISITION  OF  LAND 

means  whatsoever  to  Examine  into  and  hear  every  such  Com- 
plaint and  if  the  same  shall  be  made  out  to  your  Satisfaction 
then  to  make  such  Recompence  for  such  Damages  to  the  Party 
or  Party s  Injured  out  of  the  Moneys  by  the  said  Act  Granted  as 
to  you  Our  said  Commissioners  or  any  Five  or  more  of  You  shall 
from  time  to  time  seem  Just  and  Reasonable  And  We  do  also 
by  these  Presents  Authorize  Impower  and  Direct  You  Our 
said  Commissioners  or  any  Five  or  more  of  You  to  do  Perform 
and  Execute  all  and  every  the  Matters  and  things  whatsoever 
which  by  the  said  Act  such  Commissioners  are  Authorized  and 
Required  to  do  Perform  and  Execute  Heri^by  Willing  and 
Requiring  You  or  any  Five  or  more  of  You  as  aforesaid  from 
time  to  time  to  Proceed  and  Act  according  to  the  Rules  and 
Directions  of  the  said  Act  of  Parliament  and  Dilligently  to 
Intend  the  Execution  thereof  in  all  things  as  becometh  And 
these  Presents  or  the  Inrollment  or  Exemplification  thereof 
shall  be  to  You  and  every  of  You  a  sufficient  Warrant  and 
Discharge  in  that  behalf  In  witness  whereof  We  have  caused 
these  Our  Letters  to  be  made  Patent  Witness  Ourself  at 
Westminster  the  Seventeenth  Day  of  September  in  the  Thirty 
Fourth  Year  of  Our  Reign 

YORKE   &   YORKE 

By  Writ  of  Privy  Seal 

Filed  23  Febry  1761 
[Endorsement  of  execution  by  six  Commissioners] 

At  a  Meeting  of  the  Commissioners  appointed  by  his  Majesty's 
Commission  under  the  Great  Seal  of  Great  Britain  bearing  date  at 
Westminster  the  Seventeenth  Day  of  September  in  the  thirty 
fourth  Year  of  his  Reign  for  carrying  into  execution  an  Act 
passed  in  the  last  Session  of  Parliament  intituled  An  Act  for 
taking  down  and  removing  the  Magazine  for  Gunpowder  and  all 
Buildings  thereto  belonging  situate  near  Greenwich  in  the 
County  of  Kent  and  erecting  instead  thereof  a  New  Magazine 
for  Gunpowder  at  Purfleet  near  the  River  Thames  in  the  County 
of  Essex  and  applying  a  Sum  of  Mony  granted  in  this  Session  of 
Parliament  towards  those  Purposes  and  for  Obviating  Difficulties 
arisen  upon  an  Act  made  in  the  last  Session  of  Parliament  for 
making  Compensation  for  Lands  and  Hereditaments  purchased 
for  his  Majesty's  Service  at  Portsmouth  Chatham  and  Plymouth 
on  Thursday  the  twenty  third  day  of  October  One  thousand 
seven  hundred  and  sixty  at  the  Publick  House  at  Purfleet  called 
the  Crown, 


COMMISSIONS  AND  PROCEEDINGS  239 

Pbesent 

{Here  follow  names  of  Commissioners  present) 

The  Commission  having  been  read  the  said  Commissioners  being 
more  than  five  in  number  now  here  Entred  upon  made  Surveys 
of  and  set  out  and  described  and  caused  to  be  set  out  and 
described  by  Lines  Stakes  and  other  Marks  the  Messuages  Mills 
Lands  Tenements  and  Hereditaments  at  Purfleet  in  the  County 
of  Essex  herein  after  mentioned  which  they  the  said  Commis- 
sioners think  are  proper  to  be  purchased  in  order  for  the  erecting 
and  building  a  Magazine  for  Gunpowder  and  the  Guardhouse 
Barracks  and  other  convenient  Buildings  there. 

And  it  is  hereby  agreed  by  all  the  said  Commissioners  now 
present  that  the  Messuages  Mills  Lands  Tenements  and  Heredita- 
ments by  them  set  out  and  described  and  caused  and  directed 
to  be  set  out  and  described  in  manner  before  mentioned  are 
proper  and  are  hereby  Ordered  to  be  purchased  for  the  purposes 
mentioned  in  an  Act  passed  the  last  Session  of  Parliament 
INTITLED  An  Act  for  taking  down  and  removing  the  Magazine 
for  Gunpowder  and  all  Buildings  thereto  belonging  situate  near 
Greenwich  in  the  County  of  Kent  and  erecting  instead  thereof 
a  new  Magazine  for  Gunpowder  at  Purfleet  near  the  River  Thames 
in  the  County  of  Essex  and  applying  a  Sum  of  Mony  granted  in 
this  Session  of  Parliament  towards  those  purposes  and  for 
obviating  Difficulties  arisen  upon  an  Act  made  in  the  last 
Session  of  Parliament  for  making  Compensation  for  Lands  and 
Hereditaments  purchased  for  his  Majesty's  Service  at  Portsmouth 
Chatham  and  Plymouth  Which  said  Messuages  Mills  Lands 
Tenements  and  Hereditaments  so  ordered  to  be  purchased  with 
their  several  Abuttals  and  Boundaries  are  as  herein  after  men- 
tioned that  is  to  say 

{Here  follows  description  of  messuages) 

All  which  said  Messuages  Mills  Lands  and  Premisses  are  situate 
lying  and  being  in  the  Parishes  of  West  Thurrock  Avely  and 
Wennington  some  or  one  of  them  in  the  County  of  Essex  and 
are  more  fully  delineated  and  described  in  the  Plan  hereto 
annexed 

And  the  said  Commissioners  do  adjourn  this  Meeting  to  Thurs- 
day the  Eleventh  day  of  December  next  at  ten  o'clock  in  the 
Forenoon  to  the  Angel  Inn  at  Ilford  in  the  County  aforesaid. 


240  ACQUISITION  OF  LAND 

At  a  Meeting  of  the  said  Commissioners 
at  the  Angel  Inn  at  Ilford  in  the  County  of 
Essex  the  eleventh  of  December  One  thousand 
seven  hundred  and  sixty. 

Present 

{Here  follow  names  of  Commissioners  present) 

Some  of  the  Owners  and  persons  interested  in  the  Messuages 
Mills  Lands  Tenements  and  Hereditaments  surveyed  and  set 
out  as  proper  to  be  purchased  for  erecting  a  Magazine  for  Gun- 
powder and  a  Guardhouse  Barracks  and  other  convenient 
Buildings  at  Purfieet  appear  and  offer  to  treat  But  make  so  high 
Demands  for  their  respective  Interest  in  the  same  that  the  said 
Commissioners  cannot  agree  for  the  Purchase  thereof  Other  of 
the  said  Owners  and  persons  interested  appear  but  are  unpre- 
pared or  unable  to  treat  with  the  said  Commissioners  and  others 
of  the  said  Owners  and  persons  interested  do  not  appear  to  treat 
and  agree  with  them  And  thereupon  the  said  Commissioners  do 
order  and  direct  That  an  Offer  be  made  to  the  Several  and 
respective  persons  Bodys  Politick  and  Corporate  Ecclesiastical 
or  Civil  herein  after  mentioned  for  their  several  and  respective 
Interest  in  the  said  Messuages  Mills  Lands  Tenements  and 
Hereditaments  so  surveyed  and  set  out  the  several  and  respective 
Sum  and  Sums  of  Money  herein  after  mentioned  that  is  to  say. 

(Here  follow  particulars  of  Claimants  and  sums  offered) 

And  the  said  Commissioners  do  further  order  and  direct  that 
a  Jury  be  impanelled  summoned  and  returned  by  the  Sheriff  of 
the  County  of  Essex  on  Monday  the  nineteenth  Day  of  January 
next  at  Ten  o'clock  in  the  Forenoon  at  this  place  .before  the 
Commissioners  who  shall  then  meet  on  their  Oath  to  inquire  into 
and  ascertain  the  true  and  real  value  of  the  Messuage  Mills  Lands 
Tenements  and  Hereditaments  of  such  person  or  persons  Bodies 
Politick  or  Corporate  Ecclesiastical  or  civil  as  shall  then  and 
there  refuse  or  neglect  to  treat  and  agree  with  the  said  Commis- 
sioners or  shall  refuse  to  accept  what  the  said  Commissioners 
think  a  reasonable  Recompence  or  Satisfaction  for  their  respective 
Interest  therein  And  of  such  person  or  persons  as  through  any 
Disability  by  Nonage  Coverture  or  special  Limitations  in  any 
Settlement  or  Settlements  or  by  reason  of  any  controversy  in 
Law  or  Equity  or  any  other  Impediment  cannot  treat  and  agree 
with  the  said  Commissioners     And  that  the  said  Jury  do  on 


f 


COMMISSIONS  AND  PROCEEDINGS  241 

Friday  the  Sixteenth  Day  of  the  said  Month  of  January  View 
the  said  Messuages  Mills  Lands  Tenements  and  Hereditaments 
so  surveyed  and  set  out  and  intended  to  be  purchased  in  order 
for  their  better  ascertaining  the  true  and  real  Value  thereof 

And  the  said  Commissioners  do  hereby  direct  a  Precept  under 
their  Hands  and  Seals  to  the  Sheriff  of  the  County  of  Essex  to 
impanel  summon  and  return  such  Jury  in  the  Words  and  Figures 
or  to  the  effect  following  (that  is  to  say) 

(Here  follows  the  form  of  the  Precept) 

And  the  said  Commissioners  do  further  Order  and  direct  that 
Mr.  Thomas  Stanyford  do  give  Notice  and  make  the  said  offers 
respectively  to  the  said  respective  Owners  of  the  said  Messuages 
Mills  Lands  Tenements  and  Hereditaments  so  intended  to  be 
purchased  in  writing  Thirty  Days  before  the  said  nineteenth  Day 
of  the  said  Month  of  January  and  that  a  Jury  will  be  impanelled 
summoned  and  returned  and  have  a  View  of  the  said  Premises 
before  that  time 

And  the  said  Commissioners  do  adjourn  this  Meeting  to 
Monday  the  nineteenth  Day  of  January  next  at  this  place  at  ten 
o'clock  in  the  Forenoon. 

« 
At  a  Meeting  of  the  said  Commissioners 

at  the  Angel  Inn  at  Ilford  on  Monday  the 

nineteenth  Day  of  January  One  thousand  seven 

hundred  and  Sixty  one 

Present 

{Here  follows  names  of  Commissioners  present) 

Proclamation  is  made  for  all  persons  owners  of  or  interested  in 
the  Messuages  Mills  Lands  Tenements  or  Hereditaments  described 
and  set  out  by  Lines  Stakes  or  other  Marks  as  proper  to  be  pur* 
chased  for  the  erecting  a  Magazine  for  Gunpowder  and  a  Guard- 
house Barracks  and  other  convenient  Buildings  at  Purfleet  in 
the  County  of  Essex  do  appear  and  make  out  their  Title  and 
Claim  and  to  agree  with  the  said  Commissioners  now  met  for 
their  Estate  and  Interest  therein. 

And  thereupon  the  said  Commissioners  agreed  with  John  Pelly 
Esquire  for  the  compleat  and  absolute  Purchase  of  his  Estate 
and  Interest  in  the  Words  and  Figures  or  to  the  Effect  following 
(that  is  to  say) 

Be  it  remembered  that  on  the  nineteenth  Day  of  January  in 


2388 


B 


242  ACQUISITION  OF  LAND 

the  first  Year  of  the  Reign  of  our  Sovereign  Lord  George  the 
Third  by  the  Grace  of  God  of  Great  Britain  France  and  Ireland 
King  Defender  of  the  Faith  and  so  forth  and  in  the  Year  of  Our 
Lord  One  thousand  seven  hundred  and  sixty  one  between  The 
Reverend  Doctor  William  Parker  Sir  James  Creed  Kn*  John 
Hopkins  John  Peter  Desmaretz  Henry  More  Matthew  Dove 
Joseph  Bird  and  Matthew  Bateman  Esquires  being  Eight  of  the 
Commissioners  nominated  and  appointed  by  his  late  Majesty's 
Commission  under  the  Great  Seal  of  Great  Britain  bearing 
date  at  Westminster  the  Seventeenth  Day  of  Septembeo  in 
the  thirty  fourth  Year  of  his  said  late  Majesty's  Reign  for 
carrjdng  into  Execution  An  Act  passed  the  last  Session  of  Par- 
liament amongst  other  things  for  taking  down  and  removing 
the  Magazine  for  Gunpowder  at  Greenwich  and  erecting  instead 
thereof  A  new  Magazine  for  Gunpowder  at  Purfleet  in  the  County 
of  Essex  of  the  one  part  and  John  Pelly  of  Upton  in  the  County 
of  Middlesex  Esquire  of  the  other  part  It  is  witnessed  that 
the  said  Commissioners  Have  Treated  Consented  and  Agreed 
And  by  these  Presents  Do  treat  Consent  and  Agree  That  the  said 
John  Pelly  shall  be  paid  the  Sum  of  One  hundred  and  fifty 
Pounds  of  lawful  Money  of  Great  Britain  for  the  compleat  and 
absolute  Purchase  of  his  Interest  in  and  the  Freehold  and 
Inheritance  of  all  that  piece  or  parcel  of  Marsh  Land 

{Here  follows  description  oj  the  property) 

as  proper  to  be  purchased  in  order  for  the  erecting  and  building 
a  Magazine  for  Gunpowder  and  the  Guardhouse  Barracks  and 
other  convenient  Buildings  there  pursuant  to  the  said  Act  of 
Parliament  And  the  said  John  Pelly  doth  hereby  consent  and 
agree  to  and  with  the  said  Commissioners  that  he  the  said  John 
Pelly  shall  and  will  accept  receive  and  take  the  said  Sum  of  One 
hundred  and  fifty  Pounds  in  full  satisfaction  for  the  compleat 
and  absolute  Purchase  of  the  said  Lands  Tenements  and  Here- 
ditaments hereinbefore  mentioned  And  that  after  Payment  of 
the  said  Sum  of  One  hundred  and  fifty  Pounds  in  manner  as  in 
the  said  Act  is  mentioned  the  said  Lands  Tenements  and  Heredita- 
ments now  vested  in  the  Trustees  named  in  the  said  Act  shall 
be  and  remain  to  and  for  the  use  of  his  Majesty  his  Heirs  and 
Successors  free  of  and  from  all  Charges  and  Incumbrances  what- 
soever made  by  the  said  John  Pelly  or  any  of  his  Ancestors 
In  Witness  whereof  the  said  Commissioners  and  the  said  John 
Pelly  have  hereunto  set  their  Hands. 


COMMISSIONS  AND  PROCEEDINGS  243 

And  no  other  person  being  prepared  to  agree  with  the  Com- 
missioners for  any  other  of  the  said  Messuages  Lands  Tenements 
or  Hereditaments  the  Sheriff  is  called  upon  for  a  return  of  his 
Warrant  dii-ected  to  him  in  the  words  and  manner  herein  before 
mentioned  And  thereupon  he  returns  the  said  Warrant  with 
the  Panel  thereto  annexed  and  thereby  certified  to  the  Com- 
missioners in  the  said  Warrant  named  That  by  virtue  of  that 
Precept  to  him  directed  he  had  caused  the  Places  in  question  to 
be  viewed  by  twenty  two  of  the  Jurors  in  the  said  panel  thereto 
annexed  named  and  that  the  Residue  of  the  Execution  of  the 
said  Warrant  appears  in  the  said  Panel  which  is  in  the  words  and 
figures  following  that  is  to  say 

Essex  to  wit  The  Names  of  the  Jurors 
summoned  to  Inquire  upon  their  Oaths  as  by 
the  annexed  Precept  is  directed. 

{Here  follow  names  of  Jurors) 

And  after  the  Owners  and  other  persons  interested  in  the 
said  Messuages  Mills  Lands  and  Hereditaments  marked  out  for 
the  purpose  aforesaid  had  been  informed  that  if  they  or  any  of 
them  would  challenge  any  or  either  of  the  Jury  impanelled  and 
returned  they  should  challenge  them  as  they  came  to  the  Book 
before  they  were  sworn. 

{Here  follow  names  of  Jurors) 

...  appearing  took  the  oath  following 

You  swear  that  you  will  well  and  indifferently  without  favour 
or  Affection  Hatred  or  Malice  enquire  into  ascertain  and  assess 
the  true  and  real  value  of  such  Messuages  Mills  Lands  Tenements 
and  Hereditaments  as  shall  be  given  to  you  in  charge  and  are 
now  set  out  and  described  by  Lines  Stakes  or  other  Marks  as 
proper  to  be  purchased  in  order  for  the  erecting  and  building 
a  Magazine  for  Gunpowder  and  a  Guard  House  Barracks  and 
other  convenient  Buildings  at  Purfleet  in  this  County  pursuant 
to  an  Act  passed  the  last  Session  of  Parliament  Intituled  An 
Act  for  taking  down  and  removing  the  Magazine  for  Gunpowder 
and  all  Buildings  thereto  belonging  situate  near  Greenwich  in 
the  County  of  Kent  and  erecting  instead  thereof  a  New  Magazine 
for  Gunpowder  at  Purfleet  near  the  River  of  Thames  in  the 
County  of  Essex  and  appl3dng  a  Sum  of  Money  granted  in  this 
Session  of  Parliament  towards  those  Purposes  and  for  obviating 
Difficulties  arisen  upon  an  Act  made  in  the  last  Session  of  Par- 

R2 


244  ACQUISITION  OF  LAND, 

liament  for  making  Compensation  for  Lands  and  Hereditaments 
purchased  for  his  Majesty's  Service  at  Portsmouth  Chatham  and 
Plymouth  and  who  are  the  Owners  and  Proprietors  thereof  and 
of  every  part  and  parcel  thereof  and  the  true  and  real  value  of 
their  each  and  every  of  their  respective  Rights  Estates  and 
Interest  and  a  true  Verdict  give  according  to  the  best  of  your 
Judgment  and  Knowledge 

So  help  you  God 
After  the  Jury  were  sworn  Caleb  Grantham  Esq^  by  his 
Council  appears  and  claims  to  be  seized  in  his  Demesne  as  of 
Fee  of  and  in  the  Messuages  Lands  and  Hereditaments  herein 
after  next  mentioned  And  Sir  Matthew  Fetherstonhaugh 
Baronet  by  His  Council  appears  and  claims  to  be  possessed  of 
part  of  the  said  Messuages  Lands  and  Hereditaments  by  virtue 
of  a  Lease  to  him  granted  for  the  Remainder  of  Sixty  one  years 
And  Thomas  Keene  appears  and  claims  part  of  the  said  Lands 
as  Tenant  to  the  said  S^  Matthew  Fetherstonhaugh  John  Pettit 
appears  by  his  Agent  and  claims  to  be  possessed  of  other  part 
of  the  said  Messuages  by  virtue  of  a  Lease  thereof  granted  to 
Henry  Woodin  for  the  remainder  of  a  Term  of  twenty  one 
Years  After  hearing  Councel  and  an  Agreement  between  the 
said  Caleb  Grantham  and  Sir  Matthew  Fetherstonhaugh  being 
admitted  by  the  Councel  on  each  Side  that  the  said  Jurors  now 
sworn  should  in  the  consideration  of  their  respective  Interests 
ascertain  the  Rent  that  should  be  abated  by  the  said  Caleb 
Grantham  to  the  said  Sir  Matthew  Fetherstonhaugh  in  respect 
of  such  Messuages  Lands  and  Hereditaments  now  purchased  and 
after  examining  Witnesses  as  well  on  behalf  of  the  said  Caleb 
Grantham  as  of  the  said  Sir  Matthew  Fetherstonhaugh  The 
said  Jurors  upon  mature  consideration  had  upon  their  Oath 
do  present  and  say 

{Here  follow  findings  of  Jury) 

And  thereupon  the  said  Commissioners  do  adjudge  decree  and 
determine  that  the  true  and  real  value  of  the  said  Messuages 
Lands  Tenements  Hereditaments  and  Premises  last  mentioned 
with  the  Appurtenances  is  the  Sum  of  Two  thousand  two 
hundred  Eighty  six  Pounds  ninteen  Shillings  and  Six  Pence  of 
lawful  money  of  Great  Britain    And  that  etc.  etc. 

(here  follows  the  apportionment)  I 

Tuesday  the  twentieth  Day  of  January  One  thousand  seven 


COMMISSIONS  AND  PROCEEDINGS  245 

hundred  and  sixty  one  at  a  Meeting  of  the  said  Commissioners 
at  the  Angel  Inn  at  Ilford. 

Present 

{Here  follow  names  of  Commissioners  present) 

The  like  Proclamation  made  as  herein  before  mentioned  and 
the  Jury  being  called  over  all  appear  and  Sarah  Hallett  Widow 
appears  and  by  her  Councel  claims  to  be  seized  in  her  Demesne 
as  of  Freehold  for  the  Term  of  her  Life  of  and  in  the  Messuage  or 
Tenement  and  Hereditaments  herein  after  mentioned  Remainder 
thereof  to  Mary  Turner  an  Infant  her  Granddaughter  and  her 
Heirs  for  ever  Subject  to  the  annual  reserved  Rent  of  Ten 
shillings  payable  to  Dame  Mary  Lake  for  her  life  and  after  her 
Decease  to  Sir  James  Winter  Lake  Baronet  an  Infant  and 
subject  to  a  Mortgage  thereof,  made  to  Rachael  Dickens  Widow 
and  her  Heirs  for  securing  the  Repayment  of  One  hundred 
pounds  and  Interest  after  the  rate  of  Four  Pounds  per  Cent 
per  Annum  and  the  said  respective  claims  not  being  controverted 
the  Jurors  aforesaid  upon  their  Oath  aforesaid  Do  present  and 
say  that  Sarah  Hallett  Widow  is  seized  in  her  Demesne  as  of 
Freehold  for  and  during  the  Term  of  her  natural  life  of  and  in 

{Here  follows  description  of  parcels) 

as  proper  to  be  purchased  in  Order  for  the  erecting  and  building 
a  Magazine  for  Gunpowder  and  the  Guardhouse  Barracks  and 
other  convenient  Buildings  there  pursuant  to  the  said  Act  of 
Parliament  Remainder  thereof  to  her  Granddaughter  Mary 
Turner  and  her  heirs  for  ever  Subject  to  a  Rent  of  Ten  Shillings 
a  Year  to  Dame  Mary  Lake  for  her  life  Remainder  to  Sir  James 
Winter  Lake  in  Fee  and  to  a  Mortgage  thereof  made  by  Indentures 
of  Lease  and  Release  bearing  Date  respectively  the  twenty 
fourth  and  twenty  fifth  days  of  October  which  was  in  the  Year 
of  our  Lord  One  thousand  seven  hundred  and  fifty  four  between 
the  said  Sarah  Hallet  and  Spencer  Turner  and  Sarah  his  wife  of 
the  one  part  and  Rachael  Dickens  of  the  other  part  whereby  the 
said  Sarah  Halhet  and  Spencer  Turner  and  Sarah  his  wife  grant 
and  convey  the  said  Messuage  or  Tenements  and  Premises  last 
mentioned  with  the  Appurtenances  by  the  name  and  description 
of  etc. 

{Description  of  parcels) 

that  the  true  and  real  Value  of  the  said  Messuage  Tenement  or 
Dwelling  house  and  Premises  last  mentioned  with  the  Appur- 


246  ACQUISITION  OF  LAND 

tenances  is  the  Sum  of  Foiir  hundred  and  sixteen  Pounds  ten 
Shillings  of  lawful  Money  of  Great  Britain  And  that  the  said 
Estate  and  Interest  of  the  said  Rachel  Dickens  of  and  in  the 
said  Messuage  or  Tenement  and  Premises  last  mentioned  with 
the  Appurtenances  is  of  the  true  and  real  value  of  One  hundred 
Pounds  And  the  said  Estate  and  Interest  of  the  said  Sarah 
Hallet  and  Mary  Turner  is  of  the  true  and  real  Value  of  Three 
hundred  Pounds  And  that  the  said  Dame  Mary  Lake  and  Sir 
James  Winter  Lake's  interest  therein  is  of  the  true  and  real 
Value  of  Sixteen  Pounds  ten  shillings. 

And  the  said  Commissioners  do  Adjudge  Decree  and  Deter- 
mine that  the  true  and  real  Value  of  the  said  Messuage  Tenement 
or  Dwelling  house  and  Premises  last  mentioned  with  the  Appur- 
tenances is  the  sum  of  Four  hundred  and  sixteen  Pounds  ten 
shillings  of  lawful  money  of  Great  Britain  and  that  the  said 
Rachael  Dickens  for  her  Estate  and  Interest  thereon  be  paid 
the  Sum  of  One  hundred  Pounds  part  of  the  said  Sum  of  Four 
hundred  and  Sixteen  Pounds  ten  shillings  and  that  the  Sum  of 
Three  hundred  Pounds  other  part .  of  the  said  Sum  of  Four 
hundred  and  sixteen  Pounds  ten  shillings  be  paid  to  the  Deputy 
of  the  King's  Remembrancer  at  the  Court  of  Exchequer  at 
Westminster  for  the  Estate  and  Interest  of  the  said  Sarah  Hallet 
and  Mary  Turner  in  the  same  pursuant  to  the  Directions  of  the 
said  Act  of  Parliament  And  that  the  Sum  of  Sixteen  Pounds 
ten  shillings  the  Residue  of  the  said  Sum  of  Four  hundred  and 
sixteen  Pounds  ten  shillings  be  paid  to  the  said  Deputy  of  the 
King's  Remembrancer  for  the  Interest  of  the  said  Dame  Mary 
Lake  and  Sir  James  Winter  Lake  pursuant  to  the  Directions  of 
the  said  Act  of  Parliament. 

{Here  follow  similar  proceedings  and  findings) 

At  a  Meeting  of  the  said  Commissioners 
on  Monday  the  Sixteenth  day  of  February  in 
the  Year  of  our  Lord  One  thousand  seven 
hundred  and  Sixty  one  at  the  Crown  and 
Anchor  Tavern  in  the  Strand  in  the  County  of 
Middlesex. 

Present  : 
{Here  follow  names  of  Commissioners  present) 
Wee  whose  names  are  hereunto  subscribed  met  for  the  further 
Execution  of  the  said  Commission  pursuant  to  the  said  Act  of 


COMMISSIONS  AND  PROCEEDINGS  247 

Parliament  do  hereby  certify  to  the  Clerk  of  the  Crown  in 
His  Majesty's  High  Court  of  Chancery  that  the  said  Commis- 
sioners have  pursuant  to  the  Powers  and  Authorities  to  them 
given  by  the  said  Commission  proceeded  to  carry  the  said  Act 
into  execution  and  have  caused  their  Surveys  Agreements  Orders 
Judgments  Decrees  and  Verdicts  to  be  entered  in  a  Book  in  the 
Words  and  Figures  above  mentioned. 

{Signatures  follow) 

An  exact  Survey  of  the  Lands  necessary  to  be  purchased  by 
the  Crown  pursuant  to  an  Act  of  Parliament  for  Erecting 
a  Powder  Magazine  and  other  Buildings  at  Purfleet  in  the 
County  of  Essex. 

{Here  follow  particulars) 


APPENDIX  D 

EXTRACTS  FROM  THE  REPORT  BY  BRUCE  IN  1798  ON 
THE  ARRANGEMENTS  FOR  THE  DEFENCE  OF  THE 
KINGDOM  AT  THE  TIME  OF  THE  ARMADA 

In  1586  directions  were  given  to  the  Lord  Lieutenants  requiring 
them  to  issue  orders  to  the  different  Captains  in  their  Lieutenancy 
to  meet  at  appointed  places  on  or  before  the  20th  of  March  in  order 
to  make  up  their  musters  of  men  and  of  arms  to  Deputy  Lieuten- 
ants, to  mark  out  to  the  Captains  the  posts  which  they  were  to 
occupy,  and  to  cover  these  posts  by  batteries,  dig  pits,  and  plant 
stakes,  to  stop  the  progress  of  the  enemy  if  he  landed  :  to  assign 
stations  for  the  horses  and  field  pieces  :  to  fix  on  places  for  the 
powder  magazines  :  to  appoint  days  for  the  horses  to  be  trained 
and  to  name  the  places  of  rendezvous  :  taking  care  to  have  roads 
and  fords  repaired,  and  cross-bars  ready,  to  stop  the  enemy 
after  landing. 

This  general  instruction  was  followed  up  in  1587  by  an  order 
for  completing  the  musters  of  the  forces  in  the  different  counties, 
and  for  having  them  fully  accoutred  and  in  readiness  to  march 
on  the  first  notice  ;  requiring  at  the  same  time  that  returns 
should  be  made  of  the  amount  of  the  musters,  both  of  men  and 
arms,  to  Her  Majesty  in  Council. 

But  that  the  Queen's  orders,  in  so  far  as  regarded  the  maritime 
counties,  might  be  more  fully  explained  and  understood,  instruc- 


248  BRUCE'S  REPORT 

tions  applicable  to  each  county  were  sent  on  the  10th  of  February 
1587  (that  to  the  county  of  Devon  may  be  taken  as  a  specimen) 
requiring — ^that  the  number  of  Deputy  Lieutenants  should  be 
completed — ^that,  under  the  warrant  of  Her  Majesty,  orders 
should  be  issued  for  putting  the  men  in  array  and  in  readiness 
at  their  different  stations,  that  convenient  places  should  be 
assigned  to  five  General  Captains  (as  they  were  termed)  who 
were  made  answerable  for  the  effective  numbers  of  500  each, 
and  to  two  additional  Captains  for  250,  making  in  the  whole 
a  band  of  regiment  of  3,000  foot,  to  be  reviewed  and  exercised, 
and  in  readiness  to  go  on  service  on  the  sea  coasts  under  the 
orders  of  the  General  Commander  of  the  coast,  to  be  afterwards 
named  by  Her  Majesty  ;  that  the  five  Captains  should  likewise 
muster  the  bands  of  horsemen,  to  be  divided  into  troops  of  50, 
for  each  cornet,  and  appoint  places  of  muster  for  the  same  ; 
that  the  whole  may  be  returned  in  general  muster  rolls  as  ready 
for  service,  and  exercised  at  least  25  at  a  time  to  qualify  them  for 
duty ;  that  a  survey  of  the  places  where  the  enemy  may  land 
should  be  taken,  and  means  provided  more  speedily  to  convey 
under  proper  leads  the  forces  to  resist  him,  and  directions  given 
to  raise  ramparts  not  only  against  his  progress  in  the  country  ; 
that  a  proper  number  of  pioneers  should  be  raised  to  act  on  this 
duty  ;  that  every  justice  of  the  peace,  being  of  quorum,  should 
furnish  two  horsemen,  and  every  other  justice  one,  that  the 
towns  within  the  county  should  provide  the  necessary  store  of 
ammunition  at  a  reasonable  price  ;  that  beacons  should  be 
erected  on  the  sea  coast  and  men  placed  near  them  to  watch 
the  motions  of  the  enemy's  ships  ;  and  that  ports  should  be  in 
readiness  to  carry  information  of  his  approach  ;  that  return  should 
be  made  to  the  Queen  of  the  due  execution  of  these  instructions  ; 
and  that  each  band  of  500  footmen  should  be  formed  into 
a  regiment  and  attended  by  700  horsemen,  besides  the  horsemen 
furnished  by  the  justices  of  the  peace  ;  the  whole  properly 
arrayed  and  in  good  order  to  withstand  any  attempt  which  the 
enemy  may  make  to  land  or  to  advance. 

Notwithstanding  these  precautions  it  appears  that  in  some 
of  the  counties,  though  the  lower  and  middling  orders  were  well 
disposed  and  had  made  laudable  exertions  to  fulfil  Her  Majesty's 
intention  of  putting  the  country  in  a  state  of  defence,  yet  that 
several  of  the  higher  orders,  under  the  pretext  that  the  danger 
was  not  so  immediate,  had  either  refused  to  furnish  the  necessary 
horses  and  carriages,   or  postponed  their   services  under  the 


BRUCE'S  REPORT  249 

pretext  that  they  were  necessary  only  after  the  invasion  should 
actually  take  place. 

These  circumstances  Lord  Sussex,  with  an  honest  and  loyal 
indignation,  represents  as  unjustifiable,  because  the  resistance 
was  to  be  made  against  an  enemy  '  whose  malice  and  preparations 
were  great '  ;  adding  what  in  every  crisis  must  appear  an 
evidence  of  a  decided  loyalty  that  to  discharge  his  duty  with 
effect  he  must  have,  without  favour  or  partiality  to  any  man, 
the  selection  of  such  officers  to  serve  under  him  as  can  execute 
the  great  duty  of  defending  his  country  with  credit  to  themselves 
and  to  their  Commander. 

In  the  counties  such  as  Lincoln  where  an  attack  was  not  so 
much  apprehended  as  on  the  coasts  more  immediately  skirting 
the  seas  by  which  the  embarkation  from  Spain  must  approach, 
the  instruction  (in  December  1587)  directed  the  Deputy  Lieuten- 
ants to  require  the  inhabitants  in  the  three  divisions  of  Lindesey, 
Kesteven,  and  Holland,  to  put  the  coast  in  a  posture  of  defence 
lest  the  Duke  of  Parma  should  land  his  army  when  accounts 
should  reach  him  of  the  arrival  of  the  Armada,  expected  on  the 
coast  of  Cornwall  and  Devon. 

The  anxiety  felt  by  the  Ministers  of  Elizabeth  from  the  daily 
accounts  which  they  received  of  the  preparations  of  the  enemy 
induced  the  Queen's  Council  on  the  2nd  April  1588  to  address 
an  Order,  in  the  form  of  a  letter,  to  the  Lord  Lieutenants  of  the 
different  counties  requiring  them  to  obtain  returns  from  their 
Deputies  of  the  state  of  preparations  in  the  different  districts, 
and  to  forward  the  same  for  the  Queen's  information  that  she 
might  have  full  knowledge  of  the  strength  in  each  county,  and 
be  prepared  to  oppose  the  attack  of  the  enemy. 

Of  the  same  date,  and  strongly  marking  the  anxiety  of  the 
Council  at  this  crisis,  were  the  instructions  sent  to  the  Lord 
Lieutenants  of  the  different  counties  requiring  them  to  send 
in  lists  of  the  names  of  the  officers  of  every  rank  and,  in  case 
of  proper  persons  not  being  found  in  any  one  county,  to  fill 
these  stations,  the  vacancy  or  the  defect  was  to  be  suppUed  by 
persons  recommended  to  the  Queen  as  able  to  discharge  this  trust. 

Not  relying,  however,  on  these  general  instructions,  the  Queen, 
on  the  6th  of  April  1588,  appointed  Sir  John  Norris,  with  full 
powers  to  direct  the  arrangements  for  the  internal  defence  of 
the  maritime  counties  of  Kent,  Sussex,  Hampshire,  Dorset, 
Essex,  Norfolk  and  Suffolk  ;  and  addressed  a  letter  to  the 
Lieutenants  or  their  deputies  of  these  counties,  requiring  them 


250  BRUCE'S  REPORT 

to  give  every  necessary  information  and  aid  to  this  General, 
and  to  follow  all  his  orders  in  putting  the  coast  in  a  state  of 
defence  either  to  obstruct  the  landing  or  progress  of  the  enemy. 
Sir  John  Norris  was  for  this  end  to  fix  on  stations  to  which  the 
guards  of  the  coast  might  if  overpowered  retreat  and  form  an 
army  to  harass  the  enemy's  march,  or  resist  his  entrance  into 
the  interior  of  the  country. 

These  instructions  were  accompanied  with  topographical 
directions  given  on  30th  of  April  1588.  Those  for  the  county  of 
Norfolk  are  so  precise  and  correct  that  they  may  be  selected  as 
a  specimen  applicable  (allowing  for  differences  in  local  situation) 
to  the  other  counties  during  the  existing  danger. 

These  directions  set  out  with  describing  the  points  on  the 
east  coast  where  the  attack  might  be  expected,  viz.  Waburne, 
Hoope,  Cleyhaven,  Waaham,  Winterton  and  Yarmouth,  at  each 
of  which  for  the  protection  of  the  shipping  as  well  as  of  the  coasts 
where  the  depth  of  water  would  admit  the  enemy's  vessels, 
ramparts  were  ordered  to  be  erected,  defended  by  trenches 
reaching  from  one  salt  marsh  to  another.  The  causeways  were 
to  be  broken  up,  parapets  to  be  built,  the  old  Hythe  to  be 
entrenched  and  defences  raised  at  the  distance  of  a  mile  from 
Lynn  where  the  channel  is  narrowest,  and  defended  by  a  propor- 
tion of  cannon.  On  the  approach  of  the  enemy  the  bridges  on 
the  Ouse  were  to  be  broken  down,  and  the  banks  cut,  to  impede 
his  progress.  Bodies  of  horse  and  foot  were  to  patrol  and  obstruct 
his  march,  galling  him  at  the  same  time  with  the  ordnance  from 
Winterton  and  Bromhall. 

For  the  purpose  of  carrying  these  measures  into  execution 
the  shire  was  to  be  divided  into  districts,  and  the  forces  placed 
in  such  stations  as  might  enable  them  most  easily  to  concentrate 
at  Yarmouth.  The  detachments  of  foot  were  to  consist  of  300, 
one  half  trained  and  the  other  irregulars,  accompanied  by  73 
pioneers  and  20  carriages  ;  each  carriage  was  to  be  conducted 
by  two  men,  and  the  whole  to  be  in  readiness  for  forwarding  the 
necessary  works. 

The  directions,  further,  miautely  specify  the  commanders  and 
the  proportion  of  force  under  them  who  were  to  act  at  successive 
times  as  reliefs  to  each  other,  from  the  13th  of  May  to  the  9th  of 
July  inclusive  ;  point  out  the  mode  of  giving  the  alarm  on  the 
approach  of  the  enemy  by  beacons  on  which  fires  were  to  be 
lighted  ;  described  the  lines  in  which  the  trained  men  under  the 
Deputy  Lieutenants  were  to  advance  against  him,  and  enjoin 


BRUCE'S  REPORT  251 

the  multitude  to  avoid  assembling  or  creating  confusion  or 
disorder. 

In  the  event,  however,  of  the  enemy  reaching  Waburn  such 
strength  as  the  county  can  assemble  was  to  be  brought  up 
against  him,  but  if  unable  to  retard  his  progress  the  foot  and 
horse  were  to  retire  for  the  protection  of  the  important  town 
of  Norwich,  take  station  on  the  height  of  Montefurroy  which 
commands  the  city,  and  defend  the  town  till  an  army  can  be 
marched  from  the  neighbouring  counties  to  the  relief  of  the 
place.  In  the  event,  however,  of  the  enemy  debarking  between 
Yarmouth  and  Bromhall,  the  forces  were  to  take  post  at  Flegge, 
defend  the  bridges,  or,  if  untenable,  to  break  them  down ; 
should  he  take  the  road  by  Thetford  towards  London  the  forces 
of  Norfolk  were  to  hang  on  his  rear,  harass  his  march  and  prevent 
his  foraging  parties  laying  waste  the  country.  The  magazine 
was  to  be  at  Norwich,  and  on  the  approach  of  the  enemy  the  corn 
was  to  be  burned  down,  the  cattle  drove  inland,  and  bridges 
and  roads  broken  up  to  impede  his  march.  In  case  the  attack 
be  made  on  the  side  of  Lynn,  the  Governor  was  to  take  care  that 
no  horses  or  carriages  be  left  behind  to  be  seized  by  the  enemy. 

For  all  these  purposes  special  commissions  were  given  in  the 
different  districts  to  particular  officers  to  superintend  each  branch 
of  these  diversified  services,  and  strict  orders  issued  for  keeping 
regular  guards  at  the  different  bridges  to  stop  all  suspected 
persons,  particularly  in  the  night  time,  and  to  bring  them  before 
the  justices  for  examination. 

These  justices  were  to  be  assisted  by  constables,  and  post- 
horses  were  to  be  kept  in  constant  readiness  to  convey  intimation 
of  the  appearance  or  approach  of  the  enemy's  fleet  to  the  coast. 

Another,  and  perhaps  the  most  important  station  to  be 
guarded,  was  the  coasts  bordering  upon  the  mouths  of  the 
Thames  as  will  appear  from  the  accompanying  chart.  This 
subject  seems  early  to  have  attracted  the  Queen's  notice,  as  the 
charges  for  the  chains  and  forts  guarding  the  Medway  were 
made  up  in  the  month  of  January  1588,  amounting  to  1,470Z. 
The  defences  appear  to  have  had  two  objects  :  the  protection 
of  the  shipping  in  the  river  and  security  against  the  enemy's 
approach  to  the  capital. 

For  these  purposes  a  great  chain  was  fixed  to  cross  the  river 
at  the  opposite  point  from  Upnore  Castle,  with  a  wood- work 
to  cover  two  large  wheels  for  moving  it ;  and  lighters  were 
provided  with  cables  and  anchors  for  buoying  it  up.    St.  Mary's 


252  BRUCE'S  REPORT 

and  the  other  creeks  were  to  be  protected  by  batteries,  and 
Upnore  Castle  repaired  by  platform,  dykes,  &c. 

The  Queen's  exactness  in  the  article  of  charges  appears 
to  have  been  more  particularly  explained  by  an  Order  of  Council 
dated  the  25th  August  1588,  in  which  she  requires  from  the 
different  Lord  Lieutenants  an  account  of  the  monies  that  had 
been  levied  in  their  counties  for  her  service,  and  the  purposes 
to  which  the  sums  had  been  applied,  specifying  that  exact 
payments  must  be  made  to  the  soldiery,  and  prohibiting,  under 
pain  of  her  displeasure,  any  money  to  be  accepted  in  lieu  of 
services. 

A  barrier  was  to  be  made  at  Warham  Bridge  to  obstruct  the 
enemy  in  case  the  retreat  of  the  Queen's  forces  should  be  neces- 
sary, in  which  case  the  roads  were  to  be  cut  and  the  water  let  in. 

These  instructions  were  followed  up  in  June  1589  with  orders 
to  the  Lord  Lieutenants  to  direct  their  Deputies  to  publish  the 
Lord  Lieutenant's  Commission  in  the  county,  to  muster  and 
exercise  the  men  within  their  districts,  and  to  return  lists  of  all 
the  men  able  to  serve  ;  to  appoint  to  every  50  horse  a  captain 
and  cornet ;  to  survey  the  coasts  and  make  the  necessary 
fortifications  for  defending  the  places  where  the  enemy  might 
land  ;  to  survey  the  country  inland  that  in  case  of  his  advancing 
forward  stations  might  be  fortified  where  his  progress  may  be 
checked  ;  to  assign  to  certain  bodies  of  the  trained  men  the 
duty  of  repairing  to  these  places  ;  to  appoint  pioneers  to  every 
general  band  ;  to  provide  the  necessary  carriages  ;  to  have  at 
least  300  or  400  horsemen  trained  to  firearms  ;  to  require  every 
justice  of  the  Quorum  to  furnish  two  petronels  on  horseback,  and 
every  other  justice  one,  who  should  attend  the  Lord  Lieutenant 
to  see  that  all  suspected  persons  be  disarmed  ;  to  administer 
the  oaths  of  supreme  act  to  the  Captains  and  trained  soldiers  ; 
to  see  all  farmers  enrolled  in  places  adjacent  to  where  the 
trained  hands  meet ;  and  to  take  care  that  the  persons  having 
authority  shall  have  the  proportion  of  powder  in  store  at  the 
Queen's  price. 

By  the  33  Geo.  Ill,  cap.  8,  provision  has  been  made  for 
the  families  of  militia  men ;  by  the  34  of  Geo.  Ill,  cap.  16, 
Lord    Lieutenants   are   empowered   to   accept   offers  to   raise 


BRUCE'S  REPORT  253 

volunteer  companies,  and  also  additional  volunteers  to  regiments  ; 
and  by  cap.  31  corps  of  volunteers  are  authorised  to  be  raised 
for  the  defence  of  counties,  towns  or  coasts,  or  for  the  general 
defence  of  the  kingdom  during  the  present  war  and,  by  cap.  47 
farther  relief  is  provided  for  the  families  of  militia  men.  This  was 
farther  explained  by  the  35  of  the  King,  cap.  81 ;  and  still  farther, 
by  the  36th,  cap.  114.  By  the  37  of  the  King,  cap.  3,  the  militia 
were  farther  augmented,  and  by  cap.  4,  aprovisional  cavalry  for  the 
defence  of  the  kingdom  was  embodied.  By  cap.  22,  His  Majesty 
was  empowered  to  embody  the  augmented  militia  in  case  of 
necessity  for  the  defence  of  these  kingdoms,  and  by  cap.  23 
the  provisional  cavalry  was  to  be  embodied  ;  and  farther  aug- 
mented, by  cap.  139.  By  the  38  of  the  King,  cap.  17,  a  proportion 
of  the  men  in  the  augmented  militia  was  allowed  to  enlist  in  His 
Majesty's  other  forces,  and  to  serve  only  until  six  months  after 
the  conclusion  of  a  general  peace  ;  by  cap.  18,  His  Majesty  was 
authorised  to  order  out  a  certain  proportion  of  the  supplementary 
militia  and  to  incorporate  them  with  the  several  companies  of 
militia  ;  and  this  was  farther  explained  by  cap.  19,  and  still 
farther  by  the  Act,  more  effectually  to  provide  for  the  defence 
and  security  of  the  realm  during  the  present  war,  and  for 
indemnifjdng  persons  who  may  suffer  in  their  property  by  such 
measures  as  may  be  necessary  for  that  purpose. 


4.  That  the  Crown  by  its  Lord  Lieutenant  exercised  during 
the  reign  of  Queen  Elizabeth  the  power  of  calling  on  counties, 
town  bodies  corporate,  beneficed  ecclesiastics  and  others,  to 
furnish,  in  cases  of  menaced  invasion,  quotas  of  arms,  ammuni- 
tion, military  stores,  pioneers,  artificers,  &c.,  necessary  for  the 
army  ;  and  armed  vessels,  mariners  and  a  proportion  of  victuals 
for  them  to  assist  in  repelling  the  common  enemy  ;  making  the 
Lord  Lieutenant,  his  Deputies  and  the  Justices  judges  of 
such  services.  That  the  Crown,  by  the  like  power  delegated  to 
the  Lord  Lieutenants,  could  call  on  all  land  holders,  farmers,  &c., 
to  furnish  carriages,  posts  to  convey  information  of  the  approach, 
or  actual  landing  of  the  enemy,  and  by  himself,  or  by  his  Deputies 
to  issue  orders  for  driving  away  the  cattle  and  horses  from  the 
coast  inland  ;  for  burning  and  destroying  the  com,  or  whatever 
might  be  of  use  to  the  enemy  ;  for  breaking  down  bridges, 
cutting  up  roads,  and,  in  general,  for  doing  everything  which 
might  prevent,  or  might  check  if  he  actually  landed,  his  progress 


254  BRUCE'S  REPORT 

in  conquest ;  measures  which  the  recited  Acts  of  the  Legislature 
have  in  part  adopted,  and  in  which  the  general  loyalty  of  the      J 
subject  in  the  present  crisis  has  happily  co-operated.  '     * 


APPENDIX.  No.  II 

The  Points  of  the  Directions  given  to  the  Lord  Lieutenants  of 
the  Marityme  Counties  in  the  beginning  of  March  last  1586 

1.  The  Lieutenants  to  cause  several  captaynes  to  assemble 
their  bandes,  at  a  place  appointed,  by  the  20th  of  March,  and  to 
view  them,  and  to  supply  dead  and  lame  mens'  roomes. 

2.  To  muster  their  bandes,  in  places  neare  the  sea  coasts, 
where  they  are  appointed  to  repair,  and  to  punish  or  reforme 
defects. 

3.  The  Lieutenants,  or  their  deputyes,  to  lead  the  captaynes 
to  the  places  of  descent,  to  acquaynt  them  with  the  ground. 

4.  To  devise  how  to  cover  the  soldiers  from  th'  ennemy  by 
nature  of  the  place,  sconces,  trenches,  parapets. 

5.  To  empeach  the  landing  in  places  of  danndger,  by  making 
pits  and  planting  stakes. 

6.  To  appoint  a  place  of  keeping,  for  certain  field  peeces  and 
horses  and  carriages  to  draw  them. 

7.  To  appoint  a  place  for  the  store  of  powder  and  match. 

8.  To  cause  the  horse  to  be  viewed  and  trayned,  by  a  day 
to  be  appoynted  by  the  Lieutenant. 

9.  To  appoint  places  of  rendezvous. 

10.  To  appoint  gardes  to  repaire  to  passages  and  fords,  and  to 
take  order  for  erecting  of  turnpykes,  uppon  landing  of  th'  ennemye. 

April  10th,  1789. 
Exd.  J.  Bruce. 


APPENDIX  No.  IV 

Instructions  for  the  putting  in  Strengthe  of  all  Her  Ma'ties 
subjects  within  the  countie  of  Devon,  for  Defence  of  the  same 
countrie,  uppon  anye  invasion  to  be  made  uppon  the  same. 

February  10th,  1587. 

:iC9|ci|::|::i::)c:)::(::i::|c 

Itm.  The  said  five  persons,  or  in  absence  of  anie  one,  the  rest 
shall   newlie   consider   of    the  places,    where  an   enemy   male 


BRUCE'S  REPORT  255 

descend  to  lande  to  the  offence  of  the  countrye  ;  and  consider 
that  impeachment  may  be  devised  to  withstand  theire  landinge  ; 
and  thereof  to  make  provision,  how  the  same  defences  maie 
be  put  in  order  and  executed.  And  to  consider,  alsoe,  howe 
convenient  forces  maie  be  spedilie  brought  to  theis  landing  places, 
to  withstand  the  enemy,  and  to  expell  him.  For  which  purpose, 
according  to  the  orders,  the  last  yere,  directed  by  the  Lieutenant, 
it  would  be  considered,  howe  such  nombers  of  pioners  maie  be 
in  redines,  under  conductors  and  leaders,  both  with  weapons 
and  toles,  fit  for  work  by  ditching,  trenching,  or  levienage  of 
rampiers,  to  withstand  to  the  accesse  or  landings  of  the  enemie. 
or  otherwise,  in  places  of  straights,  after  theire  landings,  to 
impeach  theire  coming  forward. 

Itm.  Divers  other  partes  of  the  said  orders  shall  be  presently 
vewed  and  prepared  in  readiness,  tending  to  the  impeaching  of 
the  landings  of  the  enemie,  which  being  well  forseene,  and 
diligently  followed  then  tyme  should  require,  maie  serve  more 
to  purpose  to  be  done,  with  few  nombres  of  souldiers  trained, 
and  strong  pioners,  to  be  spedilie  conducted  to  the  place  of 
service,  under  wise  and  valiant  captains,  than  after  the  oppor- 
tunitie  of  the  tyme  omitted,  tenne  times  so  manie  shall  be  hable 
to  remedie  the  danger. 


APPENDIX  No.  V 

Letter  from  the  Earle  of  Sussex  to  the  Lords  of 
CouNSELL,  30th  November  1587 

It  maie  please  yo  Hono  at  my  retorne,  into  the  countrie, 
I  came  by  Basinge  and  there  having  conference  with  my  Lords 
Marques,  we  agreed  to  viewe  the  whoU  shire  o  selves  ;  and 
he  having  taken  the  one  parte,  and  I  the  other,  we  are  no  we  in 
accompUshinge  the  same  ;  and  for  my  own  parte,  I  wolde  not 
for  anythinge,  but  that  I  should  have  done  yt,  for  so  farre 
as  I  have  yett  passed,  I  have  found  neither  armour,  weapon, 
nor  shott,  nor  men,  accordinge  to  my  expectacon  ;  but  it  falleth 
owt,  as  I  have  often  saied,  friendshippe,  favour,  or  somewhat 
else,  doth  make,  that  the  best  able  be  most  favored  the  welthiest 
most  easilye  chardged,  and  the  willinge  most  pressed  and  bur- 
dened, but  at  the  finishing  of  this  my  travelsome  jorney,  I  hope 
to  write  unto  yo  Hono.  of  some  amendment  thereof,  as  by 
certificate    of   th'increase,    shall    then    more   plainlie   appeare. 


256  BRUCE'S  REPORT 

Yo  Hono  wolde  thinke  these  speeches  to  be  strange,  if  you  shold 
heare  them,  the  meaner  and  poorer  sort,  to  sale,  he  that  wold 
not  sell  horse  and  carte  to  defend  his  prince,  countrye,  famiUe, 
and  children,  it  were  pittie  he  had  any  thinge  ;  and  the  higher 
and  next  sorte  to  sale,  we  are  much  chardged.  manie  waies,  and 
when  the  Enemy  comes  we  will  provide  for  him,  but  he  will  not 
come  yett.  I  am  forced  to  use  these  kind  of  perswasions  to  the 
poorer  and  willinge,  who  yealdeth  more  than  theire  abilitie  ; 
I  promise  it  shall  remayne,  but  as  a  thing  done  of  their  dewtiful 
good  wills,  for  this  present,  considering  the  malice  and  preparacon 
of  the  enemies,  and  not  to  remain,  as  a  continual  chardge  upon 
them,  and  to  the  better  and  other  sorte,  I  perswade  as  they  have 
most  to  lose,  so  ought  they,  besides  their  dewtie  towards  their 
Prince  and  love  to  their  countrie,  so  to  provide  and  have  in 
readynes,  such  store  of  all  thyngs  as  shall  best  defende  the 
same,  whereby  they  male  be  better  thought  of,  amongst  the 
best,  and  also  the  more  beloved  of  neighbours  for  theire  good 
example  ;  wherein  if  I  shall  find  them  unwilling,  as  they  thereby e 
shall  geve  me  greate  and  just  cawse  of  mistrust  in  them  so  shall 
they  be  assured,  that  in  all  taxacons,  cessments  or  other  im- 
posicons,  and  taking  uppe  for  services,  I  will  burdem  them  to  the 
uttermost,  which  I  hope  will  so  take  place  with  them,  as  there 
shall  be  some  amendment. 

My  goode  Lorde,  I  am  most  hartelye  and  earnestlye,  not  onelie 
to  require,  but  also  for  the  better  defence  of  the  realme,  as 
dewty  bindest  me  to  chardge  your  Hono  to  be  a  meane,  for  the 
present,  sending  downe  of  the  gonners,  without  whom  I  wish  the 
ordinance  to  the  tower  again,  the  platformes  to  be  repaired  and 
that  of  the  round  tower  to  be  made  new  for  that  it  is  so  owld  and 
rotten,  as  on  the  dale  of  the  Q.  Ma' ties  coronation,  I  durst  not 
shoote  of  one  peece,  which  place  is  the  onelie  chiefest,  for  the 
defence  and  safe  guarde  of  the  haven.  The  come  powder,  for 
the  small  shott,  and  all  the  other  necessaries,  are  presently  to  be 
sent  awaie,  if  Hir  Ma'tie  to  your  Honors  do  expecte  any  enemies, 
but  if  you  thinke  all  things  doe  stand  secure  and  saife,  you  male 
perhappes  detract  tyme,  so  longe  as  it  male  be  to  late  repented. 
Goode,  my  Lorde,  beare  with  my  plaine  writinge,  for  what  you 
knowe  there,  I  here  not,  but  I  can  not  lerne  here,  but  that  it  is 
most  necessarie  to  be  presentlie  readie. 

It  pleased  my  Lorde  Chancell  and  your  Hono  and  the  rest, 
that  I  shold  confer  with  the  justices  of  the  circuite,  towchinge 
the  justices  of  the  peace,  and  leaving  a  note  of  my  opinion  of 


BRUCE'S  REPORT  257 

suche,  as  I  thought  most  fitt,  and  specially,  in  this  time,  I 
nominated  three  to  be  newlie  put  in,  viz.,  Mr.  John  Seymour, 
Sonne  to  Sir  Henry  Seymour,  Mr.  William  Uvedall,  and  Mr.  John 
White,  of  Sowthwicke  ;  the  last  of  them  three  is,  as  I  am  informed 
left  owt,  and  yet  all  kinds  of  waies  most  fittest,  and  by  me 
thought  most  meetest,  for  some  parte  of  my  own  ease,  being 
weries,  having  no  helpe,  but  Mr.  Francis  Cotton.  The  man  is, 
for  his  good  discretion  and  government,  upright  dealing,  good 
hospitalitie,  and  chargeable  service,  for  his  prince  and  countrie 
inferior  to  fewe  or  none,  hereabowts,  and  seing,  as  I  am  put  to 
service,  I  would  be  gladd  to  have  some  in  credit,  that  I  might 
best  trust,  of  whom  he  is,  besides  his  abilitie,  one  of  the  chiefest, 
and  I  thinck  will  best  discharg  the  same. 

The  earthe  works  will,  by  the  end  of  this  moneths  paie,  be 
very  neere  finished ;  and  then  must  I  know  her  Ma'ties  pleasure 
what  shall  farthest  be  done  with  the  men,  and  how  they  shall  be 
employed.  I  thinke  it  very  necessarie  and  most  meet,  that  the 
stone  wall,  from  the  platforme  to  the  Pointe  Gate,  be  rampared 
with  earth,  which  male  be  done  with  those  labourers  and  men, 
which  shall  be  continued  for  the  guarding  of  the  towne,  and  so 
bothe  to  be  but  one  chardge.  And  so,  I  must  humblye  comit 
your  Honor  to  God. 

From  Portsmouth,  this  last  of  November  1587. 

Your  Honors  Assured, 
to  his  power, 
Sussex. 

April  10th,  1798. 
Exd.  J.  Bruce. 


APPENDIX  No.  X 

Directions  lefte  by  mee,  Sr.  Thomas  Leighton,  Knt.,  for  all 
Martiall  Causes,  in  the  Countie  of  Norfolk,  with  Sr.  Edward 
Clere  and  Sr.  William  Heydon,  Knights  Deputie  Lieutenants 
of  the  said  Countie,  and  with  Ralph  Lane,  Esquier,  appointed 
by  their  Lordships  to  assist  them  in  the  Execution  thereof  and 
with  Captaine  Havers,  Captain  Helme,  and  Captn.  Pepper. 
The  Last  of  April  1588 

Firste,  for  as  much  as  Waburne  Hoope  and  Cley  Howen, 
Waxham,  Winterton,  and  Yarmouthe  are  the  places  of  greateste 
danger,  within  the  said  countye,  by  reason  there  are  good  roades 

2388  g 


258  BRUCE'S  REPORT 

for  shippinge,  and  also  the  sea,  upon  all  those  coasts,  are  shoare 
deep,  so  as  the  enemye  may,  with  greate  easse,  land  his  forces, 
except  good  order  bee  taken  to  impeache  hym  ;  I  do  thinke 
meete,  so  followethe  : 

The  sconce  at  Waburne  Hoope  to  bee  inlarged,  according  to 
the  platte  delivered  unto  you,  withe  the  trenche  adjoyinge, 
alonge  the  Salt  Marsh,  till  you  meete  with  the  mayne  channell 
which  comme  from  the  Salthowse. 

Also,  that  the  Cawsey,  leadinge  from  Salt  howse  to  the  Lodge 
in  Sr.  Willm.  Heydon's  warren,  be  cut,  upon  occasion. 

A  small  sconce,  to  be  made  at  Black  Eye,  to  gard  the  entrie 
at  Cley  Haven. 

The  clyjffes  at  Sheringham  and  Cromer  to  bee  cutte  sloping 
and  the  passage  downe  the  water  to  be  curved  up,  and  parapet 
made  upon  the  toppe. 

The  old  Hythe  to  be  intrenched,  impeache  the  comynge  up 
of  the  enemy  there. 

A  skonce  to  be  made  at  the  Crotche,  a  myle  distant  from 
Lynne,  where  the  channell  is  narrowest,  at  the  charge  of  the 
inhabitants  of  the  said  towne,  and  to  be  furnished  with  ordinance 
and  munition  by  them.  And  for  that,  the  said  towne  of  Lynn, 
is  a  place  of  great  importance,  for  manie  respectes  yt  is  verie 
expediente,,  that  some  man,  of  good  experience  and  sufiiciencie, 
bee  appointed  to  have  the  care  of  the  directinge  the  towne  and 
forte,  and  Bycause  Sr.  John  Peyton  is  of  sufficient  skill,  and 
resident  in  the  towne  the  thynk  him  fytte  to  undertake  the  same 
charges,  yf  happelie  hee  shall  not  otherwise  bee  employed  by  Her 
Majestis  speciall  commaundement.  And  then,  the  Deputie 
Lieutenants  to  make  choise  of  some  other,  whose  sufficientie  is 
answerable  thereunto. 

Also  that  the  governor  of  Lynne  shall,  have  care  to  take 
speedie  order,  upon  anie  offered  occasion,  for  the  keepinge  of  the 
bridges,  upon  the  river  of  Ouse,  between  Brandon  and  Lynne  to 
hinder  the  passage  of  the  enemye. 

Lykewyse,  yf  the  enemy  shall  happen  to  approache  neare  the 
same  towne,  that  he  geve  direction,  for  the  cuttinge  of  the  cawsey 
at  Estgate,  and  the  cuvreinge  up  of  the  posturnes,  and  the 
cuttinge  of  the  bankes,  to  let  in  the  sea,  to  inviron  the  towne 
and  further  to  doe  whatsoever  hee  shall  hold  needful  to  bee 
performed,  for  the  defence  thereof. 

And,  as  for  the  coaste  from  Bromehall  to  Eckles,  Waxam, 
Winterton,  and  Yarmouth^,  being  at  the  least  ten  myles  distance 


BRUCE'S  REPORT         •  259 

and,  in  all  places,  easie  to  make  discente,  I  doe  not  see  anie 
further  meane  to  fortifie  the  same,  other  then,  with  certaine 
bandes  of  footemen  and  some  horsemen,  to  bee  in  redines,  to 
repel  the  enemie,  and  that  the  ordnance,  at  Winterton  and 
Bromhall,  be  mounted  and  placed  to  the  beste  advantage  for 
the  beatinge  of  the  roade. 

And  for  the  towne  and  haven  of  Yarmouthe,  that  present  care 
be  had,  for  the  making  suche  ravellings  and  ditches,  according 
to  such  directions  and  plattes,  as  I  leave  with  the  Deputie 
Lieutenants. 

And  for  the  better  execution  and  perfectinge  these  fortifica- 
tions and  strengtheninge  the  sea  coast e,  against  f  orraine  attempts, 
I  have  thought  requisite,  that  an  equall  division  of  the  sheire 
bee  made,  that  the  one  moytie  of  the  bandes  of  the  souldiers 
and  pioners,  of  the  hundreds  adjacent  unto  Wabume  Hoope,  may 
repaire  thether,  and  the  other  moytie  of  the  countie,  convenientlie 
situated  for  Yarmouthe,  may  resort  thither  to  be  employed  as 
occasion  shall  require,  according  to  the  forme  underwritten. 

Everie  the  captaines  of  the  footebandes  to  have  the  one  haulf 
of  their  footebandes,  where  of  one  hundredth  and  fiftie  to  be 
of  the  trained  sorte,  and  the  other  hundred  and  fiftie  of  the 
untrained,  together  with  73  pioners,  and  twenty  carriages ;  and 
to  everie  carriage,  two  able  men,  with  spades,  to  be  at  the  places 
and  tymes,  under  written  ;  that  the  souldiers  may  bee  trained 
and  instructed  in  matiall  discipline,  by  the  officers  and  to  spend 
some  tyme  everie  day  in  f orwardinge  the  workes  of  f ortyfication  ; 
and  the  pioners  and  carters  to  be  only  employed  in  those  labours, 
and  dismissed  everie  Saturday  night. 

And  for  that  the  yt  were  necessarie,  also,  the  horsement, 
might  bee  there  attendinge,  as  well  to  joyne,  within  them  in 
resistinge  the  enemye,  as  also,  to  be  exercised  and  made  apte 
for  the  use  of  ther  weapon  ;  yt  is  likewise  determined,  that 
the  captaines  of  the  light  horses  and  petronells,  with  their  parti- 
cular chargei's,  according  to  the  order  underwritten,  shall  observe 
the  same  course. 


S2 


260  BRUCE'S  REPORT 


APPENDIX  No.  XI 


A  Note  of  the  Charges  for  the  Chajnie  Guarding  of  the 
Navye   Roy  all,  &c. 

Januarye,  1588. 
A  note  of  charges  susteyned  and  paide  for  the  guarding  of 
Her  Mate  navye  RoyaU,  with  extra  menne  residente,  as  well  in 
Her  Higness  shippes,  as  also  in  barques,  pinnaces,  brigandines 
and  frigats  and  for  the  charge  of  a  great  chayne  to  crosse  the 
ryver,  over  against  Upnore  Castle,  with  a  pyece  of  timber  worke 
made  on  both  sides  the  saide  ryver ;  and  for  a  house,  and  twoe 
greate  wheeles,  made  to  the  sayde  chayne,  with  lighters  anchors 
and  cables,  allsoe  to  ryde  by  for  the  boyinge  upp  of  the  chayne 
as  alsoe  for  the  stopping  upp  of  Sajmte  Marye  Creeke  and  other 
creekes  there  ;   and  for  repayer  of  Upnore  Castell,  together  with 
the  new  makinge  of  plattformes,  flanckers,  dyches,  &c.  requysite 
for  the  better  defence  of  the  saide  navye,  viz. — 

For  the  greate  chaine  of  iron,  with  the  workman- 
shippe  and  other  charges,  incidents  for  the  bringing 
therof  from  London  to  Chatham,  amounteth  to  the 
somme  of  .......         £250 

For  the  great  pyle  and  tymberwoorke,  sett  upp,  on 
both  sides  the  ryver,  as  well  to  fasten  the  saide 
chaine  as  also  a  house,  and  twoe  greate  wheeles 
necessareylye  made,  for  the  windinge  toughte  of 
the   said   chaine   and   for   lighters,    anckers,   and 
cables,  also  to  ryde  by,  for  the  boying  upp  of  the 
same  ;  amounteth  to  the  somme  of     .  .         .  360 

For  the  stopping  uppe  of  Sajnte  Marye  creeke,  and 
sundrye  other  creekes  there,  requisite  for  the  more 
safety  of  Her  Highnes  shippes,  amountinge  to  the 
somme  of  .......  100 

For  the  repa5rringe  of  Upnore  Castell  with  tymber, 
plancke,  bricke,  lyme,  sande,  lead  workmannship 
&c.  together  with  the  newe  makings  of  platformes, 
flankers   dyches   and   rampyers,  needful    for   the 
better  defence  of  the  navye  amountinge  to  the 
somme  of  .         .         .         .  .         .         .  240 

For  the  charges  in  guardinge  of  the  Navy  Royall 
w"th  ext'  ordinarye  menne,  as  well  in  barques, 
pinnaces  brigandines  and  frigotts,  as  alsoe  in  Hir 
Highness  shippes  ;  and  for  extraordinarie  watche,  at 


BRUCE'S  REPORT  261 

sundrye   beacons,   next   adjoininge   to   the   saide 
shippes,  on  both  sides  the  water  :   amountinge  to  420 

For  rewards  unto  captaines  and  others  attendinge 
the  saide  servyce,  aboard  Her  Highnes  shippes,  as 
allsoe  downe  the  ryver  to  and  fro'  withe  barques 
pinnaces  frigottes  &c.  dureing  the  saide  service 
amountinge  to  the  somme  of  ...  100 

Summa  totall   .         .      £1,470 

W.  Wynter. 
John  Hawkins. 
William  Holstock. 


APPENDIX  E 

WARRANTS  AND  LETTERS  PATENT  RELATING 
TO  SALTPETRE 

(Record  Office) 

24  January  1588-1589. 
CHANCERY  WARRANTS,  Series  II.   Jan.  31  Eliz.    File  1497. 

Memorand  qd  xxviij  die  Januar  Anno  infrascripto  istud  bre 
delibatum  fuit  Dno  Cancellar  Angt  apud  Westinr  exequend, 

Elizabeth  by  the  grace  of  God  Queene  of  England  Fraunce  and 
Ireland  defender  of  the  fayth  &c.  To  our  right  trusty  and  wel- 
beloved  Councellor  Sir  Christofer  Hatton  Knight  our  Chancellor 
of  England  greeting  We  will  and  commaund  you  that  under 
our  greate  scale  of  England  ye  cause  our  letters  patentes  to  be 
made  furth  in  forme  following  Elizabeth  by  the  grace  of  God  &c. 
To  all  and  singular  our  Justices  of  peace  Maiors  Sheriffes  Bay- 
liffes  Constables  Headboroughes  and  to  all  other  our  ofl&cers 
ministers  and  subiectes  to  whom  these  presentes  shall  come 
greeting.  Know  ye  that  in  consideracon  of  a  greate  quantyty 
of  good  Corne  powder  yearely  to  be  made  and  delivered  into  our 
•store  within  the  Tower  of  London  and  at  a  meane  rate  agreaed 
and  covenaunted  by  our  welbeloved  subiectes  George  Evelyn 
esquier  Richard  HiUs  and  John  Evelyn  gentlemen  of  our  speciall 
grace  certen  knowledge  and  mere  motion  and  of  our  prerogative 
royall  by  these  presentes  do  gyve  and  graunt  full  power  lycence 


262  SALTPETRE 

and  auethorytie  unto  the  said  George  Evelyn  Richard  Hills  and 
John  Evelyn  their  deputies  factors  and  assignes  and  to  every 
or  any  of  them  to  digge  open  and  worke  for  salt  Peter  within 
our  Realmes  of  England  and  Ireland  and  dominions  of  the 
same  and  all  other  our  dominions  where  the  said  Salt  peter 
without  fraude  or  coven  shalbe  thought  meete  and  convenient 
to  be  digged  for  and  founde  as  well  within  our  owne  proper  lands 
growndes  &  possessions,  as  also  within  the  landes  growndes  and 
possessions  of  any  our  subiects  set  lying  or  being  in  any  parte  of 
these  our  Realmes  aforesaid  (except  the  Cyty  of  London,  and 
two  myles  distant  rounde  about  from  the  walles  of  the  same  City 
of  London,  and  the  County es  of  Yorke  Northumberland  West- 
morland Cumberland  and  the  Bishopricke  of  Durham  And  the 
same  Salt  peter  to  trye  out  and  make  into  powder  for  our  pro- 
vision as  aforesaid  for  and  during  the  terme  of  eleven  y^ares 
next  ensuing  the  date  hereof  And  further  our  expresse  will  and 
pleasure  ys  that  the  said  George  Evelyn  Richard  Hills  and  John 
Evelyn  their  deputies  factors  or  assignes  shall  from  tyme  to 
tyme  during  this  our  graunte  erecte  make  up  againe  and  lay  all 
flowers  stables  walles  or  any  other  place  that  shalbe  by  them  or 
any  of  them  stirred  digged  overthrowen  or  pulled  downe  for  the 
use  aforesaid  in  as  good  perfection  and  state  as  they  or  any  of 
them  did  finde  the  same  And  yf  any  varience  shall  happen  to 
arrise  betwene  the  Petermakers  and  owners  of  the  said  growndes 
for  the  causes  aforesaid  then  our  will  and  pleasure  is  that  two 
of  our  Justices  of  Peace  next  adioyning  shall  have  power  by  this 
our  graunte  to  here  and  determyn  the  same  And  lykewise  our 
expresse  will  and  pleasure  is  that  presently  upon  the  sealing  of 
these  our  letters  of  Comission  for  the  making  of  Peter  or  powder 
aforesaid  all  former  Comissions  heretofore  made  to  any  person 
or  persons  for  the  making  of  Peter  or  powder  to  be  utterly  voyde 
and  of  none  effecte  Willing  and  comaunding  you  and  every  of 
you  by  these  presentes  to  be  ayding  and  assisting  unto  the  said 
George  Evelyn  Richard  Hills  and  John  Evelyn  their  deputies 
factors  or  assignes  in  all  things  that  shalbe  fytt  and  convenient 
for  the  making  of  Peter  and  Powder  aforesaid  upon  their  reason- 
able charges  having  and  taking  cariages  after  the  rate  of  four 
pence  the  myle.  In  witnes  whereof  &ce.  Gyven  under  or. 
pryvy  scale  at  our  Mannor  of  Richmond  the  f oure  and  twentyth 
day  of  January  in  the  one  and  thirtyth  yeare  of  our  reigne. 

Will.  Packer. 


WARRANTS  AND  LETTERS  PATENT         263 

CHANCERY  WARRANTS.    Series  II.    File  1636.    September. 

41  Elizabeth. 

Md  qd  septimo  die  Septembr  Anno  Regni  Eliz  Rne  quadragesimo 
primo  (A.D.  1599)  istud  bre  delibat  fuit  dno  Custod  magni 
Sigilli  Anglic  apud  Westni  exequed. 
Elizabeth  by  the  grace  of  God  Queene  of  England  Fraunce  and 
Ireland  defendo'  of  the  faith  &c.  To  our  right  trustie  and  wel- 
beloved  Counsellor  Sir  Thomas  Egerton  Knight  keeper  of  our 
greate  seale  of  England  Greeting  We  will  and  comaund  you 
that  under  our  said  greate  seale  being  in  your  custodie  ye  cause 
our  Ires  patentes  to  be  made  f urth  in  forme  f oUowinge  Elizabeth 
by  the  grace  of  God  &c.  To  all  and  singular  our  justices  of  peace 
Maio^s  sheriffes  bayliffes  constables  headboroughes  and  to  all 
other  o^  officers  ministers  stibjectes  to  whom  these  presentes 
shall  come  Greeting  Whereas  we  by  our  Ires  patentes  bearing 
date  the  eight  and  twentith  daie  of  January  in  the  one  and 
thirtith  yere  of  our  reigne  for  the  consideracon  therin  menconed 
did  geve  and  graunt  full  power  licence  and  authoritie  unto  our 
welbeloved  subjectes  George  Evelyn  Esquio^"  Richard  Hill  and 
John  Evelyn  gent,  their  deputies  facto^^  and  assignes  and  to 
everie  or  any  of  them  to  digge  open  and  worke  for  saltepeeter 
w^bin  our  Realmes  of  England  and  Ireland  and  Dominions  of  the 
same,  and  all  other  o^  dominions  where  the  said  saltepeeter 
w'^^out  fraude  or  covyn  should  be  thought  meete  and  convenient 
to  be  digged  for  and  found  as  well  w^^in  our  proper  landes 
growndes  and  possessions  as  also  w^^in  the  landes  growndes  and 
possessions  of  any  of  our  subjectes  sett  lyeing  or  being  in  any 
part  of  those  our  realmes  aforesaid  (except  the  citie  of  London 
and  two  myles  distant  round  about  from  the  walles  of  the  same 
citie  of  London,  and  the  counties  of  Yorke  Northumberland 
Westmerland  Cumberland  and  the  Bishoprick  of  Duresme) 
And  the  same  saltepeeter  to  trie  out  and  make  into  powder  for 
our  provision  as  aforesaid,  for  and  during  the  terme  of  eleven 
yeres  next  ensuinge  the  date  thereof,  as  by  the  said  Ires  patentes 
amongest  other  thinges  more  at  large  doth  and  may  appeare 
And  wheras  also  we  by  other  our  Ires  patentes  under  the  greate 
seale  of  England  dated  the  eight  daie  of  January  in  the  two 
and  thirtith  yere  of  our  reigne  for  the  considera(5on  therin  men- 
Coned  did  geve  and  graunt  unto  Thomas  Robinson  and  Robert 
Robinson  or  either  of  them  his  or  their  deputies  facto'^  and 
assignes  or  either  of  them  to  be  allowed  from  time  to  time  by 


264  SALTPETRE 

the  Master  of  our  Ordenaunce  or  the  lieutenaunt  of  the  same 
office  full  power  license  and  authoritie  to  digge  open  and  worke 
for  making  of  saltepeeter  in  convenient  places  for  those  pur- 
poses w*Mn  our  cities  of  London  and  Westminster  and  either  of 
them,  and  w^^in  the  distance  of  two  myles  round  about  from  the 
walles  of  the  Citie  of  London  or  from  our  olde  pallace  of  Westm' 
w^^  is  our  citie  of  Westm',  as  well  w^^in  liberties  as  w%ut  and 
as  well  w^^in  our  owne  landes  growndes  and  possessions  as  also 
w*^^in  the  landes  growndes  and  possessions  of  any  of  our  loving 
subjectes  whatsoever  sett  lyeing  and  being  w*^^in  our  said  cities 
or  either  of  them  or  the  places  or  distances  aforesaid  To  have 
hold  exercise  and  enjoy  the  same  authoritie  unto  the  said 
Thomas  Robinson  and  Robert  Robinson  and  his  or  their  assignes 
to  be  allowed  as  is  before  menconed  for  and  during  the  terme  of 
tenne  yeres  next  ensuing  the  date  therof  fully  to  be  compleate 
and  ended  as  by  the  said  last  menconed  tres  patentes  more  at 
large  amongest  other  thinges  doth  appeare  w^^  said  severall 
ires  patentes  and  all  and  ev^y  the  power  and  powers  licence 
and  licences  authoritie  and  authorities  thereby  graunted,  and 
all  and  everie  thing  in  them  or  either  of  them  conteyned  are  by 
due  course  of  lawe  by  such  as  had  good  and  full  power  thereunto 
surrendered  and  yealded  up  unto  us  in  o'  Chauncery  to  be  can- 
celled wch  surrenders  we  doe  by  these  presentes  allowe  and 
accept  And  wheras  also  we  by  our  ires  patents  under  the  greate 
scale  of  England  bearing  date  the  six  and  twentith  day  of  Aprill 
in  the  one  and  thirtith  yere  of  our  reign  for  the  consideracon 
therin  menconed  did  geve  and  graunt  full  power  licence  and 
authoritie  unto  our  welbeloved  subject  George  Constable 
Esquio^  his  deputies  factors  or  assignes  to  digge  open  and  worke 
for  saltepeeter  w^in  all  or  any  our  counties  of  York  the  citie  of 
York  Nottingham  Lancaster  Northumberland  Westmerland 
Cumberland  and  the  Bishoprick  of  Duresme  aswell  w^^in  our 
landes  growndes  and  possessions,  as  also  w^^in  the  landes  growndes 
and  possessions  of  any  our  loving  subjects  sett  lyeing  or  being 
within  any  the  counties  aforesaid  To  have  hold  exercise  and 
enjoye  the  same  for  and  during  the  terme  of  eleven  yeres  next 
ensuing  the  date  thereof  fully  to  be  complete  and  ended,  as  by 
our  said  last  mengoned  Ires  patentes  amongest  other  thinges 
more  at  large  it  doth  and  may  appeare  And  wheras  our  loving 
subjects  John  Evelyn  Esquio'  Richard  Harding  Esquio^  Robert 
Evelyn  gent.  John  Wrenham  gent,  and  Symeon  Turner  gent, 
have  undertaken  to  deliver  yerely  into   our   store   w^^in  our 


WARRANTS  AND  LETTERS  PATENT         265 

Tower  of  London  a  greater  quantitie  of  good  perfect  and  service- 
able corne  gonnepowder  meete  and  serviceable  for  cannon  and 
calyver  shotte  at  a  lesser  and  lower  price  and  rate  then  before 
we  paid  for  the  like,  as  by  certain  indentures  bearing  the  date 
of  these  presentes  made  betwixt  us  of  th'one  pte  and  the  said 
John  Evelyn  Richard  Harding  Robert  Evelyn  John  Wrenham 
and  Symeon  Furner  of  the  other  part,  and  in  our  Court  of 
Chauncery  inrolled  or  to  be  inroUed,  wherby  we  shall  not  be 
driven  to  seek  the  said  proporeon  of  gonnepowder  out  of  any 
foraine  con  tries  but  shall  buy  the  same  w^^in  this  our  owne 
kingdome  and  at  a  meaner  and  lower  rate  and  price  then  we  have 
heretofore  paid  for  the  same  and  have  also  undertaken  to  furnish 
this  our  realm  of  England  with  sufficient  store  of  good  perfect 
and  serviceable  gonnepowder  for  the  use  and  provision  of  our 
subjectes  at  and  for  such  reasonable  price  as  in  the  said  indentures 
is  also  limited  and  appointed  And  wheras  our  loving  subjects 
are  nowe  and  of  long  time  have  been  greately  damnified  by  the 
excessive  waste  and  spoyle  of  woodes  and  are  like  to  be  more 
and  more  endamaged  if  the  same  be  not  prevented  :  And 
wheras  also  our  loving  subjects  have  been  excessively  charged 
and  encombred  w^^  the  carriages  of  the  said  woodes  and  of  other 
carriages  about  the  making  of  saltepeeter  and  gonnepowder, 
the  said  John  Evelyn  Richard  Harding  Robert  Evelyn  John 
Wrenham  and  Symeon  Furner  or  some  of  them  have  (as  we  be 
informed)  [injvented  devised  and  found  out  by  their  owne  travell 
industrie  costes  and  charges  a  very  good  and  profitable  device 
and  invencon,  by  meanes  wherof  in  making  of  such  quantities  of 
saltepeeter,  as  heretofore  have  been  made,  a  greate  part  as  well 
of  such  wood  and  fewell  as  hath  haretofore  been  wasted  and 
consumed,  as  also  of  such  carriages  as  have  been  heretofore 
employed  in  and  about  the  making  of  saltepeeter  and  gonne- 
powder shall  and  may  hereafter  be  saved  to  the  great  comoditie 
and  benefitt  of  this  Realm,  and  ease  of  our  loving  subjects, 
w«^  we  principally  respect :  Nowe  Knoew  Ye  that  we  of  our 
speciall  grace  certen  knowledge  meere  moCon  and  of  our  pre- 
rogative Royall  for  divers  good  consideracons  us  especially 
moving  have  given  and  graunted  and  by  these  presents  do  for 
us  our  heires  and  successors  giye  and  graunt  full  power  licence 
libertie  and  authoritie  unto  the  said  John  Evelyn  Richard 
Harding  Robert  Evelyn  John  Wrenham  and  Symeon  Furner 
and  every  of  them  their  and  every  of  their  executors  adminis- 
trators and  assignes  that  they  the  said  John  Evelyn  Richard 


266  SALTPETRE 

Harding  Robert  Evelyn  John  Wrenham  and  Symeon  Fumer 
and  every  of  them  their  and  everie  of  their  executor's  adminis- 
trators and  assignes  and  their  and  everie  of  their  deputies  factor's 
workmen  and  servantes  only  and  noe  others  shall  and  may  make 
and  worke  for  w^^in  our  Realms  of  England  and  Ireland  and 
either  of  them  and  all  other  our  dominions  all  and  all  manner  of 
saltepetter  and  gonnepowder  according  to  the  true  intent  and 
meaning  of  these  presentes  And  shall  and  may  have  the  use  and 
only  making  and  working  of  all  and  all  manner  of  saltepeeter 
and  gonepowder  w^^in  our  said  Realmes  and  either  of  them  and 
other  our  said  dominions  according  to  the  true  intent  and  meaning 
of  these  presentes  And  also  that  they  the  said  John  Evelyn 
Richard  Harding  Robert  Evelyn  John  Wrenham  and  Symeon 
Furner  their  executors  administrator's  and  assignes  and  their 
and  every  their  deputies  factors  workemen  and  servants  and 
every  of  them  and  noe  others  shall  and  may  according  to  the 
true  intent  and  meaning  of  these  presentes  enter  search  digge 
open  and  worke  for  saltepeeter  in  all  convenient  places  and  in 
due  and  reasonable  manner  aswell  w^Mn  the  landes  growndes 
or  possessions  of  us  our  heires  and  successor's  that  now  be  or 
hereafter  shalbe  in  the  handes  possession  or  occupacion  of  any 
the  farmers  or  tenantes  of  us  our  heires  or  successor's  as  also 
nv^^in  the  landes  growndes  or  possessions  of  any  the  subjects  of 
us  our  heires  or  successor's  aswell  w'^Hn  liberties  as  w^^out 
w^^in  any  of  our  realmes  or  dominions  where  it  shalbe  meete  and 
convenient  w^^out  fraude  or  covyn  for  working  and  digging  for 
saltepeeter  And  the  same  saltepeeter  to  have  take  and  enjoy 
to  their  and  everie  of  their  owne  uses  and  to  the  use  and  behoofe 
of  their  and  everie  of  their  executors  administrator's  and  assignes 
during  the  terme  of  tenne  whole  yeres  by  these  tres  patentee 
menconed  to  be  dismised  and  graunted  To  have  holde  exercise 
and  enjoy  the  sole  and  only  making  of  saltepeeter  and  gonne- 
powder, and  the  said  power  licence  libertie  and  authoritie  and 
other  the  premisses  in  and  throughout  or*  said  Realmes  of  England 
and  Ireland  and  all  other  our  Dominions  (Except  the  countie  of 
Yorke  the  citie  of  Yorke  the  counties  of  Nottingham  Lancaster 
Northumberland  Westmorland  Cumberland  and  the  Bishoprick 
of  Duresme)  unto  the  said  John  Evelyn  Richard  Harding  Robert 
Evelyn  John  Wrenham  and  Symeon  Furner  and  to  everie  of  them 
their  and  every  of  their  executor's  administrator's  and  assignes 
from  hencefurth  for  and  during  the  terme  of  tenne  whole  yeres 
from  hence  next  ensuing  and  fully  to  be  complete  and  ended 


WARRANTS  AND  LETTERS  PATENT         267 

And  to  have  holde  exercise  and  enjoye  the  sole  and  only  making 
of  salte-peeter  and  gonnepowder  and  the  said  power  license 
libertie  and  authoritie  in  the  said  countie  of  Yorke  citie  of  Yorke 
counties  of  Nottingham  Lancaster  Northumberland  Westmerland 
Cumberland  and  the  Bishoprick  of  Duresme  unto  the  said  John 
Evelyn  Richard  Harding  Robert  Evelyn  John  Wrenham  and 
Symeon  Fumer  their  and  every  of  their  executors  administrator's 
and  assignes  from  the  last  Day  of  Aprill  next  ensuinge  the  date 
hereof  for  and  during  the  residue  of  the  said  terme  of  tenne 
whole  yeres  then  next  following  and  fully  to  be  complete  and 
ended  And  our  will  and  pleasure  is  and  we  straightlie  charge 
and  comand  that  the  said  John  Evelyn  Richard  Harding  Robert 
Evelyn  John  Wrenham  and  Symeon  Furner  their  and  everie 
of  their  executor^s  administrators  and  assignes  and  their  and 
everie  of  their  deputies  factors  workemen  servantes  and  assignes 
shall  from  time  to  time  during  the  said  terme  of  tenne  whole 
yeres  at  their  owne  proper  costes  and  charges  well  and  sufficientlie 
erect  make  up  againe  laye  and  repaire  all  and  everie  such  place 
and  places  thing  and  thinges  as  shalbe  by  them  or  any  of  them 
broken  stirred  digged  or  in  any  sorte  decayed  hindered  or 
defaced  for  the  use  or  uses  aforesaid  in  as  good  sorte  as  the 
same  convenientlie  may  be  And  if  any  variance  strife  or  debate 
shall  happen  to  arrise  or  growe  betwene  any  person  or  persons 
hereby  authorised  or  having  or  pretending  to  have  authoritie  by 
or  under  these  our  tres  patentes  and  any  of  the  owner  or  owners 
possessor  or  possessor's  of  the  place  or  places  thing  or  thinges 
that  shalbe  or  may  be  digged  or  used  for  the  occasion  aforesaid 
by  vertue  of  these  presentes  for  or  about  the  same  or  for  or 
about  any  other  clause  or  graunt  article  libertie  or  authoritie  in 
these  our  tres  patentes  conteyned  or  menconed  touching  or 
concerning  the  digging  opening  or  working  for  saltepeeter  or 
for  the  erecting  making  up  layeng  or  repairing  of  any  of  the  said 
place  or  places  thing  or  things,  then  our  expresse  will  and 
pleasure  is  and  we  doe  hereby  for  us  our  heires  and  successors 
geve  full  power  and  authority  unto  two  Justices  of  the  Peace 
dwelling  next  the  place  where  any  such  variance  shall  happen 
if  the  same  be  out  of  any  citie  or  towne  corporate  being  a  countie 
of  it  self,  and  if  it  be  w*^^in  any  citie  or  towne  corporate  beinge 
a  countie  of  it  self,  then  to  the  principall  officer  or  officers  of 
such  Citie  or  towne  corporate  upon  complaynte  made  unto  them 
to  call  the  parties  before  them,  and  to  heare  and  determine  the 
controversies  betwene  them  according  as  they  shall  in  their 


268  SALTPETRE 

wisedomes  and  discreeons  thinke  and  judge  to  be  just  and  fitt, 
and  shalbe  according  to  reason  equitie  and  justice  w^^  to  doe  and 
execute  we  straightly  charge  and  comaund  them  and  everie  of 
them  upon  such  peines  and  penalties  as  belonge  to  such  as 
obstinately  contemne  our  comaundement  royall  And  we 
straightly  charge  and  comaund  that  such  orders  and  deter- 
minacons  as  shalbe  sett  down  in  that  behalf  shalbe  firmely 
observed  and  kepte  upon  the  peines  and  penalties  aforesaid  : 
And  yet,  if  noe  order  shalbe  sett  downe  and  taken  by  them  in 
that  behalfe,  or  if  they  cannot  ende  and  determine  the  same, 
then  we  hereby  for  us  our  heires  and  successors  do  geve  full 
power  and  authoritie  to  the  Master  of  the  Ordenaunce  for  the 
time  being  or  to  his  deputie  or  in  their  absence  to  the  Lieutenant 
of  the  Ordenaunce  for  the  time  being  to  heare  and  determine  the 
same  w"^  also  we  will  and  comaund  to  be  likewise  duely  and 
firmely  observed  and  kept  as  is  aforesaid  And  wheras  in  regard 
of  the  troublesomenes  of  this  age  it  is  necessarie  that  a  great 
quantitie  of  saltepeeter  and  gonne  powder  should  be  made  for 
the  better  furnishing  of  our  store  and  defence  of  our  realmes  and 
dominions  w^^  would  be  to  the  greate  damage  of  the  said  John 
Evelyn  Richard  Harding  Robert  Evelyn  John  Wrenham  and 
Symeon  Fumer  their  executor's  administrator's  and  assignes  if 
they  should  be  compelled  to  keepe  the  same  in  their  handes  and 
not  to  have  any  utterance  for  the  same  ;  We  therfore  not 
mynding  that  the  said  John  Evelyn  Richard  Harding  Robert 
Evelyn  John  Wrenham  and  Symeon  Furner  their  executor's 
administrator's  or  assignes  or  any  of  them  should  receave  any 
losse  or  hinderance  in  that  behalf  and  yet  w^^all  providing  for 
the  profitt  and  ease  of  our  loving  subjectes  of  our  speciall  grace 
certen  knowledge  and  mere  moSon  do  by  these  presentes  for  us 
or'  heires  and  successor's  geve  and  graunt  unto  the  said  John 
Evelyn  Richard  Harding  Robert  Evelyn  John  Wrenham  and 
Symeon  Furner  and  every  of  them  their  and  everie  of  their 
executors  administrator's  and  assignes  full  power  license  libertie 
and  authoritie  that  the  said  John  Evelyn  Richard  Harding 
Robert  Evelyn  John  Wrenham  and  Symeon  Furner  their  and 
everie  of  their  executor's  administrator's  and  assignes  and  their 
and  everie  of  their  deputies  factor's  gervantes  and  assignes  from 
time  to  time  and  at  all  times  for  and  during  the  said  terme  of 
tenne  whole  yeres  before  by  these  presentes  graunted  (our  owne 
provision  of  gonnepowder  being  duely  delivered  into  our  store 
w^Mn   our  Tower   of   London   according  to   the  purporte   and 


WARRANTS  AND  LETTERS  PATENT        269 

meaning  of  the  said  indentures,  and  excepting  so  much  being 
good  perfect  and  serviceable  come  gonnepowder  as  together 
w^  the  said  store  for  the  time  being  of  us  our  heires  or  successors 
shalbe  sufficient  for  the  defence  of  these  o'  Realmes  and 
Dominions,  and  over  and  above  the  same,  as  much  also  as  any 
merchant  or  merchantes  or  any  other  of  our  loving  subjectes  or 
of  our  heires  or  successors  will  buy  w^^in  any  of  our  Realmes  or 
Dominions  for  tenne  pence  a  pownde,  as  in  the  said  indentures 
is  menconed,  and  not  above,  w^^  they  and  everie  of  them  shall 
and  may  buy  at  their  will  and  pleasure)  shall  and  may  (payeng 
to  us  our  customes  subsidies  and  other  duties  whatsoever  in 
that  behalf)  by  license  of  the  lord  Trer  of  England  for  the  time 
being  under  his  hand  and  scale  in  writing,  transporte  carry  and 
convey  out  of  this  our  Realm  of  England  or  any  other  our 
Dominions  into  any  of  the  partes  beyond  the  seas  or  other  places 
wc^  at  the  time  of  such  transportaCon  carriage  and  conveyance 
shalbe  in  league  or  amitie  w^^  us  our  heires  or  successors,  only 
such  and  so  much  of  the  residue  and  overplus  of  all  such  salte- 
peeter  and  gonnepowder  wherof  they  shall  have  such  license, 
as  together  w*^  our  said  store  there  shalbe  sufficient  of  corne 
gonnepowder,  and  that  perfect,  good  and  serviceable,  for  the 
defence  of  our  Realmes  and  dominions,  and  over  and  above  the 
same,  as  much  also  as  any  merchant  or  merchantes  or  any  other 
of  our  loving  subjectes  or  of  our  heires  or  successors  will  buy 
w*^^in  any  of  our  Realmes  and  Dominions  for  or  at  the  rate  of 
tenne  pence  the  pownde,  as  in  the  said  indentures  is  mengoned, 
and  not  above,  w^^  they  and  every  of  them  shall  and  may  buy 
at  their  will  and  pleasure.  And  to  the  ende  that  the  said  John 
Eveljm  Richard  Harding  Robert  Evelyn  John  Wrenham  and 
Symeon  Fumer  and  every  of  them  their  and  everie  of  their 
executors  administrators  and  assignes,  shall  and  may  have  and 
enjoye  the  full  and  whole  benefitt  of  this  our  license  and  privi- 
ledge  to  them  before  in  these  presentes  graunted  according  to 
the  tenor  an(j  f,j>^Q  meaning  of  these  our  tres  patentes  We  doe 
hereby  for  us  our  heires  and  successors  of  our  speciall  grace 
certen  knowledge  and  meere  mocon  straightlie  charge  and 
comaund  aU  and  every  person  and  persons  whatsoever  of  what 
estate  degree  or  condidon  soever  he  or  they  be  (other  then  the 
said  John  Evelyn  Richard  Harding  Robert  Evelyn  John  Wren- 
ham  and  Symeon  Fumer  their  and  everie  of  their  executors 
administrators  deputies  factors  and  assignes  and  everie  of  them, 
and  other  then  the  said  George  Constable  his  deputies  factors 


270  SALTPETRE 

or  assignes,  during  the  residue  only  of  the  said  terme  menconed 
to  be  graunted  unto  him,  and  that  only  in  the  said  countie  of 
Yorke  citie  of  Yorke  counties  of  Nottingham  Lancaster  North- 
umberland and  Westmerland  Cumberland  and  the  Bishoprick  of 
Duresme  that  they  or  any  of  them  do  not  at  any  time  hereafter 
during  the  said  terme  of  tenne  whole  yeres  presume  or  attempt 
either  to  make  any  saltepeeter  or  gunnepowder  w*^in  any  of  our 
realmes  or  dominions,  or  to  transport,  bring  or  send  or  to  cause 
to  be  transported  brought  or  sent  out  of  any  foraine  contrie  into 
any  of  our  said  realmes  or  dominions  any  saltepeeter  or  gonne- 
powder  made  or  to  be  made  w^^out  our  said  realmes  or  dominions 
upon  peine  that  everie  person  and  persons  offending  in  any  of 
these  respects  shall  incurre  our  high  displeasure  and  suffer  such 
fyne  punishment  and  imprisonment  as  by  any  laws  or  statutes 
heretofore  made  or  hereafter  to  be  made  w^^in  our  said  Realmes 
of  England  or  Ireland  or  any  of  them  can  or  may  be  imposed  or 
inflicted  upon  them  and  every  or  any  of  them  for  their  contempt 
and  disobedience  in  w^^^tanding  our  comaundement  and 
prerogative  royall  Provided  alwaies  that  if  at  any  time  here- 
after the  said  John  Evelyn  Richard  Harding  Robert  Evelyn 
John  Wrenham  and  Symeon  Furner  or  some  of  them  or  their  or 
some  of  their  executor's  administrator^^  or  assigns  or  their  or  some 
of  their  deputie  or  deputies  factor  or  factor's  shall  not  have  so 
much  good  perfect  and  serviceable  corne  gonnepowder  as  is 
hereafter  limited  expressed  menconed  and  appointed,  that  is  to 
sale,  as  much  as  together  w^^  our  store  of  good  perfect  and 
serviceable  come  gonnepowder  shall  be  sufficient  for  the  service 
and  defence  of  our  said  realmes  and  dominions  and  also  over  and 
besides  the  same,  as  much  as  any  merchant  or  merchantes  or  any 
other  of  our  loving  subjectes  or  of  our  heires  or  successo^^^  wilbe 
willinge  and  desirous,  and  shall  require  to  buy  bona  fide,  at  the 
price  or  rate  of  tenne  pence  the  pownd  and  not  above,  according 
to  the  true  meaning  of  the  said  indentures  to  be  solde  bartred 
exchanged  or  otherwise  disposed  w^Mn  any  of  the  realmes  or 
dominions  of  us  our  heires  or  successor's  that  then  it  shall  and  may 
be  lawfuU  to  and  for  all  and  everie  subject  and  subjectes  of  us 
our  heires  and  successor's  to  transport  into  any  part  beyond 
the  seas  and  to  bring  in  into  this  realm  of  England  and  Ireland  or 
any  other  of  our  Dominions  from  any  the  partes  beyond  the 
seas,  and  to  bargaine  sell  exchange  and  barter  all  and  all  manner 
of  saltepeeter  and  gonnepowder  aswell  w^^in  our  said  realmes  and 
dominions  as  w%ut  payeng  therefore  to  us  our  heires  and  sue- 


WARRANTS  AND  LETTERS  PATENT         271 

cessC's  the  customes  subsidies  and  other  dueties  therefore  due 
and  accustomed  These  presentes  or  any  thing  therein  conteyned 
to  the  contrarie  not  w*^tanding  And  we  do  hereby  will  and 
comaund  you  our  said  Justices  of  Peace  Maio^^  sheriffes  bayliffes 
constables  and  headboroughs  and  all  and  singular  other  our 
officers  ministers  and  subjegtes  whomsoever  that  you  and 
everie  of  you  shall  from  time  to  time  and  at  all  tymes  during  the 
continuance  of  this  our  graunt  be  ay  ding  helping  and  assisting 
unto  the  said  John  Evelyn  Richard  Harding  Robert  Evelyn 
John  yVrenham  and  Symeon  Turner  and  every  of  them  their 
and  every  of  their  executo^^  administrator's  and  assignes  and 
their  and  everie  of  their  deputies  factors  servantes  and  workemen 
and  every  of  them  in  the  due  execucon  of  the  premisses  according 
to  the  true  intent  and  meaning  of  these  presentes,  and  for  the 
having  and  taking  of  convenient  carriages  after  the  rate  of  fower 
pence  the  myle  for  everie  carte  or  wayneloade  after  the  rate  of 
twentie  hundred  to  the  loade,  for  the  carryinge  of  such  thinges 
as  have  been  heretofore  accustomed  to  be  carried  in  or  about  the 
pr'emisses  or  any  of  them  And  our  further  will  and  pleasure  is 
and  we  doe  by  these  presents  for  us  our  heires  and  successor's 
graunt  to  the  said  John  Evelyn  Richard  Harding  Robert  Evelyn 
John  Wrenham  and  Symeon  Furner  their  executor's  adminis- 
trator's and  assignes  and  every  of  them,  that  these  our  ires 
patentes,  and  the  power  licence  libertie  and  authoritie  hereby 
graunted,  and  all  and  everything  and  thinges  herein  conveyned 
shalbe  good  and  effectuall  in  lawe  to  them  and  every  of  them 
their  and  every  of  their  executors  administrators  and  assignes 
according  to  the  true  intent  and  meaning  thereof  Notw^^standing 
the  misrecitall  of  the  said  before  recited  ?res  patentes  or  of  the 
term  or  termes  of  yeres  or  any  thinge  therin  conteyned  And 
notw^*^tanding  the  misrecitall  or  non-recitall  of  any  !res  patentes 
or  graunt  of  the  premisses  or  any  part  thereof  at  any  time  here- 
tofore made  And  notw  Standing  expresse  mencon  be  not  made 
of  the  thinges  hereby  menConed  to  be  graunted  or  of  the  true  or 
yerely  or  other  value  thereof.  And  notw^^standing  any  statute 
acte  of  parliament  order  proclamacon  ordenance  lawe  usage 
custome  or  any  other  matter  whatsoever  to  the  contrarie.  In 
witness  &c.  Gyven  under  our  Privy  Scale  at  our  Manno^  of 
Nonesuch  the  seconde  dale  of  September  in  the  one  and  fortieth 
yere  of  our  reigne. 

Will  Packer, 
Evelyn  et  at :  licence.  / 


272  SALTPETRE 


28  April  1629. 


Chancery  Warrants 
Series  II.    5  Charles  1 
Bundle  2042.    No.  33 

M^.  qd  vicesimo  octavo  die  Aprilis  Anno  quinto 
Caroli  R  :  ista  Billa  deliBat  fuit  Dno  Custodi 
Magni  Sigilli  Anglie  apud  Westm  exequend. 

Charles  R. 

Charles  by  the  grace  of  God  kinge  of  England  Scotland 
Fraunce  and  Ireland,  defendor  of  the  faith  &c.  To  our  right 
Trustie  and  right  welbeloved  Councellor  Richard  Lord  Weston 
or.  high  Threr:  of  England  and  to  our  right  trustie  and  right 
welbeloved  Cozens  and  Councellors  Robert  Earle  of  Lindsey  our 
Great  Chamberlen  of  England,  WiUiam  Earle  of  Pembrooke, 
Lord  Steward  of  or.  househould,  Edward  Earle  of  Dorsett  Lord 
Chamberlen  to  or.  dearest  Consorte  the  Queene,  Dudley,  Viscount 
Dorchester  one  of  our  principall  Secretaries  of  State,  to  or. 
trustie  and  right  welbeloved  Horace,  Lord  Vere,  Master  of  or. 
Ordinance,  and  to  or.  right  trustie  and  welbeloved  Councellor 
Sir  John  Coke  knight  one  of  or.  principall  Secretaries  of  State. 
And  to  all  and  Singuler  our  Justices  of  peace,  Maiors,  Sheriffs 
Bailiffs,  Constables,  Headboroughs,  and  to  all  other  our  officers 
and  subjectes  to  whom  it  shall  appertyne  or  to  whom  these 
presentes  shall  come,  Greeting.  Whereas  at  this  present  time 
we  have  more  than  ordinarie  occasion  to  provide  good  and 
sufficient  saltpeeter  and  powder  to  furnish  or.  stoares  for  the 
defens  and  safetie  of  or.  Realmes  and  dominions,  And  reposing 
especiall  truste  and  confidence  in  the  understandinge  fidelities 
and  care  of  you  the  said  Lord  Threr  :  Earle  of  Lindsey  Earle  of 
Pembrooke,  Earle  of  Dorrsett,  Viscount  Dorchester  Lord  Vere, 
and  Sir  John  Coke,  Of  or.  especiall  grace  certen  knowledge  meere 
mocion  and  of  or.  Prerogative  royall,  doe  by  these  presents  give 
and  graunte  full  power  licence,  libertie  and  authoritie  unto  you 
or  anie  thrie  or  more  of  you,  your  deputies,  factors,  workmen  and 
servantes  and  everie  of  them,  to  enter  break  open  and  worke  for 
Saltpeter  as  well  within  the  houses,  lands,  grounds  or  possessions 
of  us  our  heires  and  successors  that  nowe  be  or  hereafter  shalbe. 
As  also  in  the  houses,  lands,  grounds  or  possessions  of  anie  of 
our  subjects  within  or.  kingdome  of  England  and  dominion  of 
Wales  and  in  all  priviledged  places  within  them  or  anie  of  them. 


WARRANTS  AND  LETTERS  PATENT         273 

and  there  to  have  take  and  use  all  such  ground,  earth,  walles 
and  water  as  shalbe  thought  good,  meete  or  convenient  for  the 
making  of  good  and  serviceable  saltpeeter,  and  to  make  the 
same  saltpeeter  into  gunpowder  for  or.  onlie  and  speciall  service, 
without  fraud  or  covin,  also  to  have  and  take  cartes  and 
carriages  of  any  of  or.  loving  subjects  for  the  carrying  and 
transporting  of  all  such  thinges  as  are  to  be  used  in  or  about  or. 
said  service  at  and  for  the  pryse  of  fower  pence  the  myle  for 
everie  myle  that  everie  such  carte  shall  goe  laden  so  long  as  the 
Saltpeeter  men  shall  and  doe  performe  their  undertakings  to  us, 
the  myles  to  be  accompted  as  hath  been  accustomed  from  place 
or  place,  and  the  emptie  vessell  to  be  recaried  gratis  as  f  ormerlie 
hath  bene  used  and  accustomed  And  wee  doe  hereby  give  full 
power  and  authority  unto  the  said  Lord  Threr.  Earle  of  Lindsey, 
Earle  of  Pembrooke,  Earle  of  Dorsett,  Viscount  Dorchester, 
Lord  Vere  and  Sir  John  Coke  or  anie  three  or  more  of  you  and 
to  yor.  deputies  factors  and  servants  and  everie  of  them  to  have 
and  take  of  anie  of  or.  loving  subjects  Seacoles  at  and  for 
a  reasonable  pryse  to  be  given  for  everie  chaldron  of  coles  soe 
taken,  and  also  to  have  and  take  of  anie  of  our  subjects  Ashes 
at  and  for  reasonable  pryses  to  be  given  for  the  same  And  also 
to  have  and  take  workhouses  for  or.  said  service,  and  howese 
and  stables  outhowses  and  yards  of  anie  of  our  subjectes  and 
therein  to  set  up  vessels  and  to  bestow  their  servantes,  cattell 
and  other  necessarie  provisions  for  the  effecting  the  same  or. 
service  paying  unto  the  owners  or  present  possessors  of  such 
houses,  barnes,  stables,  yardes  and  outhouses,  reasonable  rents 
and  rates  for  the  same  for  the  tyme  they  shalbe  used  for  or. 
service,  And  if  it  shall  happen  that  the  owners  or  possessors  of 
such  houses,  outhouses,  barnes,  stables  and  yardes  shalbe  obsti- 
nate and  unreasonable  in  their  demands  for  or  concerning  the 
same,  then  our  will,  pleasure  and  commaund,  is  that  the  Maior 
or  other  principall  officer  of  anie  Cittie  Towne  Corporate,  or  anie 
other  priviledged  place  where  such  controversie  shall  aryse  doe 
view  and  see  the  places  and  upon  consideracion  had  thereof  and 
of  the  tyme  the  same  shalbe  used,  to  set  such  reasonable  and 
indifferent  pryses  as  they  shall  thinke  meete  to  be  given  in 
satisfaction.  And  if  it  shall  happen  to  be  out  of  anie  Cittie  or 
Towne  Corporate  or  privileged  place  then  or.  pleasure  and 
command  is  that  the  next  Justice  of  peace  doe  upon  like  con- 
sideracion taken,  set  reasonable  pryses  of  all  such  places  so 
desired  to  be  had  and  used  as  aforesaid,  according  to  which 

2388  rp 


274  SALTPETRE 

pryses  so  set  downe  we  likewise  command  that  paiement  be 
trulie  made  by  the  said  Lord  Threr.  Earle  of  Lindsey,  Earle  of 
Pembrooke,  Earle  of  Dorsett,  Viscount  Dorchester,  Lord  Vere 
and  Sir  John  Coke,  or  anie  three  or  more  of  them,  their  deputies, 
factors  or  servantes  or  by  some  of  them,  And  or.  will  and 
pleasure  is  and  wee  doe  hereby  straightlie  charge  and  command 
the  said  Lord  Threr.  Earl  of  Lindsey,  Earle  of  Pembrooke, 
Earle  of  Dorsett,  Viscount  Dorchester,  Lord  Vere  and  Sir  John 
Coke  or  anie  three  or  more  of  them  their  deputies,  factors,  work- 
men and  servantes  and  everie  of  them,  that  they  do  from  time 
to  time  with  all  convenient  speed  erect,  make  up  againe,  lay  and 
repaire  all  such  place  and  places,  thinge  or  thinges  whatsoever 
as  shalbe  by  them  or  anie  of  them  open,  digged,  stirred,  hindred 
or  defaced  for  any  of  the  purposes  aforesaid,  in  as  good  sort  as 
convenientlie  the  same  may  be.  And  if  anie  controversie,  variance, 
stryfe  or  debate  shall  happen  to  aryse  or  grow  betwixt  anie  of 
the  deputies  of  the  said  Lord  Threr.  Earle  of  Lindsey,  Earle  of 
Pembrooke,  Earle  .of  Dorsett,  Viscount  Dorchester,  Lord  Vere 
and  Sir  John  Coke,  or  anie  three  or  more  of  them,  or  anie  the 
workmen  or  servantes  of  the  said  deputies  and  anie  of  or.  lovinge 
subjectes  about  the  digging  or  working  for  Saltpeter,  or  about 
the  having  or  taking  of  anie  cartes,  carriages  or  other  things 
whatsoever  fitt  and  necessarie  and  before  granted  or  intended 
for  the  better  execucion  of  this  service,  or  about  the  making  up 
againe,  laying  or  repayring  of  anie  floores,  grounds  or  walls 
digged,  broken  or  used  for  the  same,  if  it  be  in  anie  cittie,  Towne 
Corporate,  or  other  privileged  place.  Then  or.  will,  pleasure 
and  command  is  that  the  Maior,  Sheriff,  Bayliff  or  other  principall 
officer  of  anie  such  place,  or  if  it  be  out  of  anie  such  Cittie,  Towne, 
Corporate  or  other  privileged  place,  that  then  the  next  or  nearest 
Justice  of  the  Peace  Upon  complaint  made  to  them  or  anie  of 
them,  call  all  such  persons  before  them  and  doe  heare,  decyde  and 
determine  all  and  everie  such  controversies  in  such  sorte  as  they 
in  their  discrecions  shall  thinke  to  be  agreeable  to  the  true 
intent  and  meaninge  of  these  presents  And  for  the  furtherance 
of  or.  said  service  we  straightlie  charge  and  command  all  and 
singular  our  Justices  of  Peace,  Maiors,  Sheriffs,  Bayliffs  and 
other  principall  officers  whom  according  to  the  true  intent  and 
meaning  hereof  it  shall  or  may  concerne,  to  do  and  execute  the 
premises  with  effect  as  they  tender  or.  royall  commandement 
and  the  furtherance  of  this  or.  so  great  and  waightie  service,  and 
what  order  or  orders  shalbe  by  them  or  anie  of  them  soe  made 


i 


WARRANTS  AND  LETTERS  PATENT         275 

and  sett  downe  being  according  to  the  true  intent  and  meaninge 
of  these  presents,  We  straightlie  charge  and  command  to  be 
observed  and  kept  And  if  no  order  shalbe  by  them  taken  or 
sett  downe,  Then  wee  doe  hereby  give  full  power  and  authority 
unto  the  said  Lord  Threr.  Earle  of  Lindsey,  Earle  of  Pembrooke, 
Earle  of  Dorsett,  Viscount  Dorchester,  Lord  Vere  and  Sir  John 
Coke  and  to  the  rest  of  the  Officers  of  or.  ordinance  for  the  time 
being  or  any  three  or  more  of  them  (whereof  the  Master  of  the 
Ordinance,  the  Lieutenant,  Master  Surveyor  or  Clerk  of  or. 
said  ordinance  to  be  alwaies  one)  by  their  warrantes  directed  and 
delivered  to  anie  the  messengers  of  or.  Chamber  to  call  before 
them  all  such  person  and  persons  as  shalbe  nominated  unto  them 
to  disobey  or.  authoritie  and  royall  commandement  herein,  or 
to  deny  unto  the  deputies  of  the  said  Lord  Threr.  Earle  of  Lind- 
sey, Earle  of  Pembroke,  Earl  of-  Dorsett,  Viscount  Dorchester, 
Lord  Vere  and  Sir  John  Coke,  or  anie  three  or  more  of  them  as 
aforesaid  or  unto  the  factors  workmen  or  servantes  of  the  said 
deputies  or  anie  of  them,  such  things  as  are  hereby  required  to 
be  allowed  unto  them  for  the  better  execucion  of  this  or.  Service, 
or  shall  delay  the  doing  thereof  or  be  partiall  therein  and  to 
examine,  heare,  decyde  and  determyne  all  such  controversies  or 
causes  as  shall  aryse  thereupon  and  to  inflict  punishment  upon 
every  such  offendor  and  offendors  by  imprisonment  or  otherwise 
as  contemnors  of  or.  royal  authoritie  and  command,  or  otherwise 
to  certifie  unto  the  Lords  of  or.  Privie  Councell,  such  offendors 
with  their  offences  that  such  further  course  may  be  therein  taken 
as  shalbe  thought  most  fitt.  And  for  doing  of  all  and  singuler  the 
premises  these  or.  letters  patents  or  the  inroUment  of  them 
shalbe  unto  all  men  whom  it  shall  concerne  a  sufficient  warrant 
and  discharge  without  any  other  commission  or  further  warrante 
to  be  had  procured  or  obteyned,  And  or.  will  and  pleasure  is 
that  all  such  orders  as  shall  according  to  or.  pleasure  herein 
declared  be  made  and  sett  downe  shalbe  inviolablie  kept  observed 
and  fulfilled.  And  or.  further  will  and  pleasure  is,  that  all  and 
everie  one  of  the  deputies,  factors,  workmen  and  servants  afore- 
said, and  everie  of  them  and  everie  of  their  horses,  cartes  and 
carriages  used  or  employed  in  about  or  conceminge  this  or. 
service  be  exempte  and  freed  from  all  other  service  or  services 
whatsoever  to  be  done  or  performed  for  or  to  us  or.  heires  or 
successors  and  from  paying  any  taxes  or  towle  in  anie  place  or 
places  within  this  or.  jiingdome  or  from  being  pressed  or  taken 
by  anie  of  or.  officers  for  any  other  service  whatsoever.     And 

T2 


276  SALTPETRE 

whereas  wee  are  given  to  understand  that  divers  persons  doe 
pave  or  gravell  their  dovehouses  or  use  other  devises  therein 
whereby  the  verie  generacion  of  the  myne  of  Saltpeeter  is  in 
danger  to  be  destroyed  and  that  few  doe  take  care  to  preserve 
and  increase  the  mynes  thereof,  wee  therefore,  for  the  preser- 
vacion  of  the  said  myne  which  is  so  usefull  and  necessarie  for 
the  safetie  of  or.  kingdomes,  doe  by  these  presentes  for  us  our 
heires  and  successors  give  unto  you  or  anie  three  of  you  power  to 
contract  with  any  of  your  deputies  for  making  of  saltpeeter  for 
a  certain  term  under  such  conditions  as  yee  shall  thincke  fitt 
for  our  service,  and  doe  straightlie  charge  and  command  all  and 
everie  person  and  persons  whatsoever  within  or.  said  Realmes 
and  dominions  that  they  nor  anie  of  them  doe  at  any  tyme  or 
tymes  hereafter  pave  or  gravell  their  dovehouses  or  use  anie  other 
meanes  whereby  the  said  myne  or  growth  of  saltpeeter  may  be 
prejudiced  but  shall  permitt  and  suffer  the  said  Lord  Threr. 
Earle  of  Lindsey,  Earl  of  Pembrooke,  Earl  of  Dorsett,  Viscount 
Dorchester,  Lord  Vere  and  Sir  John  Coke  or  anie  three  or  more 
of  them  their  deputies,  servants,  factors  and  workmen  and 
everie  of  them  to  digg  and  open  the  sames  in  convenient  manner 
and  at  convenient  tymes  of  the  day  and  to  lay  the  same  earth, 
which  they  digged  and  took  from  out  of  the  said  dovehouses, 
into  the  said  dovehouses  againe,  after  they  have  wrought  the 
same,  to  the  ende  the  myne  of  Saltpeeter  may  be  the  sooner 
renued,  upon  paine  of  contempt  and  of  or.  high  displeasure  in 
that  behalfe  And  wee  do  hereby  further  charge  and  command 
all  Justices  of  peace,  Maiors,  Sheriffs  Constables  and  other 
officers  within  and  thorough  or.  kingdom  of  England  and 
dominions  of  Wales,  that  they  and  everie  of  them  doe  from  tyme 
to  tyme  aide  and  assist  or.  saltpeeter  makers  and  Gunpowder 
makers  their  factors  and  servants  and  everie  one  of  them  in 
their  doing  of  this  or.  service,  And  in  taking  of  undelayed  order 
concerninge  all  controversies  that  shall  aryse  that  or.  service 
may  not  be  hindered  or  delayed  therebye,  nor  the  doers  thereof 
unjustlie  vexed  or  molested  in  or  for  the  doing  thereof.  And  or. 
will  and  pleasure  is  that  this  or.  commission  and  all  the  liberties, 
priviledges  and  authorities  therein  And  thereby  given  and 
graunted  unto  the  said  Lord  Threr.  Earle  of  Lindsey,  Earle  of 
Pembrooke,  Earle  of  Dorsett,  Viscount  Dorchester,  Lord  Vere 
and  Sir  John  Coke,  or  anie  three  or  more  of  them,  their  deputies, 
factors,  workmen  and  servants  shall  be  effectuall  to  all  intents, 
efects   and   purposes,    anie   law,    statute,    acte,    proclamacion, 


t 


WARRANTS  AND  LETTERS  PATENT         277 

restraint  or  provision  to  the  contrarie  hereof  made  notwith- 
standing. 

In  Witness,  &c.    Witness  &c. 

Exr.  per  Ro.  Heath. 
Maie  it  please  your  most  excell.  Ma**e. 
This  conteyneth  your  Ma*^  Commission  to  the  Lord  Threr.  and 
other  the  Commas,  for  the  Admiraltie  and  to  the  Maister  of  your 
Ordinance,  authorising  them  or  such  as  they  shall  appoint  to 
digge  and  take  earth  in  anie  place  or  places  for  the  making  of 
Saltpeeter  and  making  the  same  into  Gunpowder  for  yor.  M"es. 
speciall  service     And  is  done  with  the  like  clauses  conteyned 
in  a  commission  heretofore  made  to  the  Duke  of  Buckingham 
and  Earle  of  Totnes  for  the  execucion  of  this  Service. 
Signified  to  be  yor.  Ma^^s.  pleasure 
by  Mr.  Secretarie  Coke, 
Ro.  Heath. 

Recept  28  April  1629 
(Endorsed) 

Charles  R. 
Our  will  and  pleasure  is 
That  this  Bill  pass  by  imediate  warrant. 


APPENDIX  F 

EXTRACTS  FROM  WAR  OFFICE  RECORDS 

(Record  Office) 

WAR  OFFICE  RECORDS 
Class  55,  Vol.  331 
(Entry  Books  of  Warrants  and  Orders  in  Council) 
At  ye  Court  at  Whitehall  ye 
13th  day  of  Janu'y,  1664  (-65) 

Present : 
The  King's  Most  Excellent  Ma"e. 
His  R.H.  ye  Duke  of  Yorke 
L^  ArchbishPP,  of  Canterbury 
Lord  Privy  Scale 
Duke  of  Buckingham 


278  WAR  OFFICE  RECORDS 

Duke  of  Ormond 

Marquesse  of  Dorchester 

Lord  Chamberlaine 

Earle  of  Bathe 

Earle  of  Lauderdaile 

Earle  of  Carberry 

Lord  Bpp  of  London 

Lord  Wentworth 

Lord  Berkeley 

Lord  Ashley 

M^  Vice  Chamberlaine 

M'"  Treasurer 

M^  Secretary  Bennett 

M.^  Secretary  Morrice 

M^"  Chauncellor  of  y^  Dutchy 

WHEREAS  his  Mate  by  his  Warr*  under  his  Royall  Signe 
Manuell  and  Privy  Signett  to  us  directed  hath  Comanded  us  to 
make  contractes  w^^  powder-makers  for  y^  bringing  to  his  Male's 
stores  good  and  serviceable  powder  And  whereas  Josias 
Dewye  powder-maker  hath  made  a  contract  w^^  us  for  makeing 
of  gunpowder  and  bringing  y^  same  into  his  Male's  stores  in  y® 
Tower  soe  long  as  his  Ma^^  findes  him  Petre,  In  pursuance  of  his 
Mate's  comande  (and  y*  his  Male's  service  may  noe  wayes  bee 
hindred)  Wee  have  thought  fitt  and  doe  hereby  authorize  and 
appoint  you  the  said  Josias  Dewye  to  take  into  yo^  possession 
and  custody  ye  powdr  mills  and  workes  now  at  Chillworth  and 
att  Casshalton  in  y^  county  of  Surrey  or  any  other  place  y* 
belongs. 

Class  47,  Vol.  6,  FoUo  106 
(Ordnance  Minutes) 
(Vol.  endorsed.) — '  A  Journall  begining  the  8**  of  June  1664 
&  ending  the  21  ^^  Febry.  1664[-5].' 

'  At  ye  Court  att  Whithall  the  2^  of  January  1664[-5]. 

Present 
The  Kings  most  excelent  Maj"® 
His  R.  Highess  ye  Duke  of  Yorke. 
Lord  Privy  Scale. 
Duke  of  Albemarle. 
Duke  of  Buckingham. 


WAR  OFFICE  RECORDS  279 

Lord  G*  Chamberlaine. 

Lord  Chamberlain. 

Earle  of  Berkeshire. 

Earle  of  S*.  Alban. 

Earl  Beath. 

Earl  of  Lauderdaile. 

Lord  Bpp  of  London. 

Lord  Berkeley. 

Lord  Ashley. 

Mr.  Treasureur. 

Mr.  Vice  Camberline. 

Mr.  Secretary  Morrice. 

Mr.  Secretary  Bennett. 

Mr.  Chanceller  of  y«  Dutchy 
S^  Ed.  Nicholas. 
His  R.  Highnes  this  day  representeing  to  his  Ma"^  in  Counceil 
ye  great  want  of  Mills  to  be  imployed  for  y^  makeing  of  gunn- 
powder  his  Ma"e  necessarily  requireing  the  same  att  y^  season 
It  was  therupon  ordered  That  y®  Commas  for  Ma'  of  his  Ma"® 
Ordnance  and  y^  Officers  of  y®  same  are  authorized  to  impreste 
soe  many  Mills  for  y®  makeing  of  gunnpowder  for  his  Ma"® 
Service  as  they  shall  think  fitt.'' 

7°  January  1664 
(Fol.  109.) 

4c  :ic  :(c  4:  He  *  4(  *  *  4c 

Memorand. — Delivered  to  y®  Lord  Berkley  2  Estimates  y® 
one  for  providing  1500  Ordnance  of  Iron  Shott  carriages  and 
two  C.  tonne  of  Copper  Mettle  amounteing  to  The 

other  for  providing  of  peetre,  building  of  powd"^  Mills  and  stoneing 
and  repaireing  of  powd'. 

21  July  1664. 
Class  47,  Vol.  6,  Folio  16 
(Ordnance  Minute) 
(Vol.  endorsed.) — '  Journall  beginning  the  8th  of  June  1664 
&  ending  the  21st  Febry.  1664[-5].' 
'  Mr.  Clark.' 

'  Wee  have  reed.  yors.  both,  ye  one  dated  9  ye  other  17  July 
1664.  Ye  former  informes  us  of  ye  unreasonable  demands  of 
ye  proprietors,  of  ye  Ground  at  Portsmouth  which  is  intended 


280  WAR  OFFICE  RECORDS 

to  be  built  upon  for  his  Maties  Service.  Our  desire  is  yt.  you 
would  upon  ye  receipt  of  this  treat  once  more  w^^  them  and 
bring  them  if  possible  to  reasonable  Termes  wch.  if  they  will 
not  bee  perswaded  to  wee  would  have  you  repaire  to  ye  Mayo^ 
and  Aldermen  of  ye  towne  and  acquaint  them  wth.  his  Ma^^^. 
pleasure  of  purchaseing  yt.  ground  to  build  Storehowses  upon 
for  his  service,  and  desire  them  yt.  they  would  appoint  a  Jury 
to  make  a  reasonable  value  thereof  betweene  ye  King  and  them 
and  to  retume  this  Accompt  to  us  wth.  all  convenient  speede, 
By  ye  latter  of  yors.  wee  understand  Sr.  Phillip  Honyi^^ood  is 
upon  cleaning  the  Dock  and  that  hee  offers  to  furnish  ye  Clay 
and  soyle  if  wee  can  agree  for  the  filling  up  the  Gun  wharfe 
wch.  wee  intend  to  build.  Wee  desire  you  would  treat  wth. 
him  and  know  his  lowest  Rate  yt.  hee  will  afford  ye  same  by  ye 
yard  for  fiUing  up  a  Gun  wharfe  and  as  for  ye  timber  wch. 
Sr.  Wm.  Penn  proposed  to  you  wee  would  have  you  not  to  make 
any  further  mencion  of  it  till  you  receive  directions  from  us 
wch.  is  all  at  present  from 

Yor.  loveing  freinds ' 
'  Ofi&ce  of  the  Ordnce. 
21st  July  1664.' 


Class  55,  Vol.  332,  page  137 
(Warrants  and  Orders  of  the  Privy  Council) 
At  ye  Court  at  Whitehall 
the  3d  of  April,  1667. 
Present : 

The  King's  Most  Excellent  Ma"e 

His  Roy"  Highness  ye  Duke  of  Yorke  ' 

Lord  Arch  Bpp  of  Canterbury 

Lord  Chancellor 

Lord  Privy  Scale 

Duke  of  Albemarle 

Marques  of  Dorchester 

Lord  Chamberlain 

Earle  Bridgwater 

Earle  of  Berkshire 

Earle  of  Anglesey 

Earle  of  Bathe 

Earle  of  Carlisle 

Earle  of  Craven 


WAR  OFFICE  RECORDS  281 

Earle  of  Lauderdaill 

Viscount>  Fitz  Harding 

Lord  Arlington 

Lord  Berkeley 

Mj  Comptroller 

M^  Vice  Chamberlaine 

Mr  Sec^y  Morrice 

Sr.  W™.  Coventry- 
After  our  hearty  Comendations  Whereas  ye  King's  most 
Excellent  Ma"e  by  his  Warr*  to  us  directed  hath  thought  fitt 
to  erect  and  make  new  Fortes  at  Harden  ^nd  alsoe  to  fortifie 
his  Guarrison  of  Landguard  Fort,  for  y^  better  carrjdng  on  of 
yt  service,  and  for  ye  paying  of  workemen  and  likewise  for 
provideing  of  severall  provisions,  as  Timber,  Bricke,  Stone, 
Lime  and  other  Materialls  for  y®  same  Wee  have  thought  fitt 
to  imprest  unto  M^"  Francis  Nuby,  storekeeper  for  us  at  Harwc^ 
ye  sume  of  100^*,  These  are  therefore  to  pray  and  require  yo", 
forthw*^  to  make  an  allowance  unto  y®  y®  [sic]  said  Francis 
Nuby  by  way  of  imprest  and  upon  accompt  of  y®  s<^  sume  of 
100*  for  ye  use  aforesaid,  yo"  placeing  y®  same  upon  y^  Privy 
Scale  now  pasing  for  20000*.  for  new  fortificacons  &c.  hee  giveing 
an  accompt  to  us  whenever  required  how  and  w^^^  way  hee  shall 
lay  out  and  pay  y*  sume,  and  for  soe  doeing  this  shal  bee  your 
Warr*.    Soe  bidding  yo"  heartly  farewell  Wee  rest 

Yo^  loving  freinds 

J.  Berkeley 

J.  DUNCOMBE. 

To  our  honor**  freiend  Collo"  Legge 

L*  Gener**  of  his  Ma*y  Ordnance  &c. 


Class  47,  Vol.  19,  Part  1. 
(Ordnance  Minutes — Series  I) 

'  20tb  March  1668-9 
'  Present 
Lord  Berkley 
S^  John  Duncombe 
L*  Generall 
all  ye  Ofi&cers  but 
ye  Gierke  of  y® 
Deliveries  ' 

*  Memd.  a  signification  from  y®  Rt.  hono*'*^  ye  Com^^  for  execute- 
ing  ye  Office  of  Ma^^  of  His  Mats  Ordnance  appointing  ye  building 


282  WAR  OFFICE  RECORDS 

2  new  Forts  att  Chatham  by  Gillingham  and  Cockham  Wood 
S^  Bernard  De  Gome  Jonas  Moore  Esq'"  and  Major  Mathew  Baylie 
to  oversee  ye  same.  Signed — J.  Duncombe  Tho.  Chicheley  ' 
'  Tower  20*^  March  1668-9  ' 
'  To  our  honored  Freind  Coll.  W™  Legg  L*  Gene^i  of  his  Ma*^ 
Ordnance  and  to  our  Loveing  Freinds  y®  rest  of  y*  0£&cers  of  y® 
same.' 


Instructions  for  S^  Bernard  de  Gome  K*  his  Mats  cheife 
Engineer  Jonas  Moore  Esq'^  Assistant  Surveyor  and  Major 
Mathew  Bayley  Governour^  of  Upnor  Castle  appointed  Com^^ 
for  y6  Manageing  and  lookeing  after  y®  Building  2  new  Betteryes 
or  Redouts  neere  Gillingham  for  y^  better  security  and  safety 
of  his  Mats  Navy  in  y*  Harbour  In  pursuance  of  a  signification 
from  ye  R*  Hono^ie  ye  Coma's  for  Ma^^  of  His  Ma^^  Ordnance 
beareing  date  y^  20^^  day  of  this  instant ' 

'  You  are  forthwith  to  repair  downe  to  Gillingham  and  on 
yt  side  as  alsoe  at  Cockham  Woodend  (where  two  new  Batteryes 
or  Redoubts  are  designed  to  bee  erected  and  Built  y*  is  owne  at 
each  place)  and  there  to  sett  out  or  stake  out  at  each  of  y^ 
aforesaid  places  soe  much  ground  as  will  bee  necessary  for  this 
Service  w^*^  Batteryes  or  Redouts  are  to  be  built  according  to 
y®  Demensions  and  designs  of  S'"  Bernard  de  Gome  exprest  and 
sett  downe  in  his  two  severall  draughts  of  y^  same  presented  to 
ye  Com'^s  at  ye  stakeing  and  setting  out  of  w^h  ground  two  of  you 
at  least  are  to  bee  alwaies  present  whereof  Jonas,  Moore  Esq' 
to  bee  one  ' 

'  You  are  to  Contract  for  and  buy  such  and  soe  much  parcell 
of  Ground  at  each  of  ye  aforesaid  places  of  ye  Owners  and  Pro- 
prietors thereof  as  will  serve  to  Build  ye  said  Batteryes  or  Redouts 
upon,  and  at  ye  cheapest  rates  yo^  and  they  can  agree  for  att  all 
w°^  contracts  and  Bargaines  makeing  two  of  you  at  least  are 
alwaies  to  bee  present  and  to  sett  your  hands  to  all  such  Contracts 
and  Bargaines  made  whereof  Jonas  Moore  Esqr  alwaives  to 
bee  one  ' 

*  You  are  to  Contract  for  and  provide  all  such  Timber  Bricks 
Stone  Lyme  or  any  other  necessaries  as  shall  be  requisite  and 
fitting  for  ye  carrying  on  and  performance  of  ye  said  workes 
accordingly  and  to  hyer  and  employ  such  and  soe  many  Worke- 
men  as  you  shall  judge  requisite  and  fitting'to  bee  employed  for 
ye  more    speedy  and  effectuall  dispatch  thereof  in  ye  doeing 


WAR  OFFICE  RECORDS  283 

and  performeing  of  w^h  two  of  you  are  alwaies  to  bee  present  and 
signe  to  all  Contracts  agreements  or  bargaines  made  on  this 
behalf e  whereof  Jonas  Moore  Esqr.  is  alwaies  to  be  one  ' 

'  You  are  two  of  you  at  least  whereof  Jonas  Moore  Esq'  alwaies 
is  to  be  bee  one  to  signe  and  Drawe  Bills  from  tyme  to  tyme 
upon  such  persons  as  y^  Rt  hono^i®  ye  Com^^s  for  Ma'  of  his  Ma*^ 
Ordnance  and  y«  Board  shall  appoint  for  ye  payment  of  such 
moneys  as  you  shall  informe  y^  Board  will  bee  requisite  for 
carrying  on  y®  same  you  causeing  an  Accompt  to  bee  kept  how 
and  w^**  way  y®  said  Moneys  are  disbursed  and  for  what,  w^^ 
Accompts  yo  are  to  cause  to  be  sent  up  to  y^  Board  from  tyme 
to  tyme  soe  'often  as  it  shall  be  required  ' 

*  and  you  are  alsoe  by  vertue  of  this  Press  Warrant  herewith 
sent  you  to  take  up  and  imprest  such  and  soe  many  Vessells, 
Barkes,  Boates,  Carts,  horses  and  workemen  as  there  shall  bee 
occasion  to  bee  employed  about  y^  said  Ports  untill  such  tyme 
as  they  be  finished. 

F.N.  E.S.' 

'  Office  of  Ordnance 

20th  March  1668-9  ' 
'  To  S'  Bernard  De  Gome  K*  his  Mats  cheife  Engineer  Jonas 
Moore  Esq'^  Assistant  Surveyor,  and  Major  Bay  ley  Governour 
of  Upnor  Castle  or  two  of  them,  provided  Jonas  Moore  Esq^^  bee 
alwaies  one 

These.' 

*  Memd.  a  Press  Warr*  for  S'^  Bernard  De  Gome  Jonas  Moore 
Esq'  and  Major  Mathew  Bayley  Com'^  to  presse  workemen  for 
ye  Fortificacons  and  Redouts  to  bee  new  made  at  Gillingham 
and  Cockham  Wood  F.N.  E.S. 

*  To  S'  Bernard  de  Gome  Jonas  Moore  Esq'  or  Major  Mathew 
Bayley  or  two  of  them  provided  alwaies  Jonas  Moore  Esq' 
be  one.' 

1  Sept.  1681 


Oass  47,  Vol.  10,  Folio  78 
(Ordnance  Minutes) 
'  1st  September  1681  ' 
'  Present 

S'  John  Chicheley 
S'  Christop.  Musgrave 
L*  Generall 


284  WAR  OFFICE  RECORDS 

Surveyo' 

Storekeeper 

Gierke  of  the  Deliverys 

Ordered 

That  a  State  be  drawne  up,  fitt  to  be  presented  to  Councill 
by  the  Cornish's  for  Ma'.  Generall  of  his  Ma*^  Ordnance  of  the  case 
represented  by  Maj',  Beckman  in  his  Lre.  and  Certificate  from 
Hull  touching  the  purchase  of  some  ground  there  for  a  Fortifica- 
con  to  be  built  for  the  better  Strengthening  the  said  Towne  to 
enquire  of  S'  Bernard  De  Gome,  what  measures  were  taken  and 
what  course  was  used  aboute  takeing  in  of  the  Lands  for  the 
new  worke  at  Plymouth,  and  after  what  method  the  owners  of 
those  lands  were  sattisfied  and  paid  for  the  same  '. 

'  To  see  what  Statutes  there  are  concerneing  takeing  up  of 
Peoples  Lands  for  building  of  Fortificacons  upon  ' 

*  Coppy  of  Maj'  Beckmans  Lre.  and  Certificate  from  Hull 
touching  the  Demand  of  the  Owners  of  the  Ground  for  the 
purchase  thereof  for  a  new  Fortificacon  to  be  built  thereon  to 
be  sent  to  the  Lord  Mulgrave  Governo'  desireing  his  LordP 
would  please  to  give  such  effectual  Orders  for  promoteing  the 
dispatch  thereof  as  his  LordP.  should  thinck  fitt,  to  prevent 
the  Obstruction  of  the  goeing  on  therewith  \ 


'  10  Septemb.  1681  ' 
(FoUo  81) 
'  Present 

S'  Chris.  Musgrave 
L*  Generall  \ 

'  Ordered 
That  a  Bill  and  Debentur  be  forthwith  made  unto  M'  John 
Suffeild  for  the  sume  of  22^  10^  00^  for  his  charge  and  paines 
in  procureing  Coppies  of  the  Deedes  for  the  Land  taken  in  at 
Gosport '. 


Class  47,  Vol.  19,  Part  1. 
(Ordnance  Minutes — Series  I) 
*  24th  November  1668 ' 
*  Present 
Com'  Chicheley 
L*  of  y®  Ordnance 
All  y^  Officers 


WAR  OFFICE  RECORDS  285 

Ordered 
That  Major  Mathew  Bayly  Governor  of  Upnor  Castle  pay  unto 
John  Norwood  the  Sume  of  twenty  shillings  for  a  yeares  rent  for 
his  ground  upon  w^^  Middletons  Battery  stands  w^h  yeare  ended 
att  Middsumer  last  and  that  he  likewise  pay  30  shillings  more  to 
y«  owners  of  y®  Land  whereon  James's  Sconce  stands  for  a  yeares 
rent  ending  att  y®  same  tyme  ' 


Class  47,  Vol.  19,  Part  1.    Mmutes— Series  I 
(Ordnance  Minutes) 
'  22th  December  1668  ' 
*  Present 
Com^  Chicheley 
All  y^  Officers  except  y®  Clerke  of  the  Delyveryies 

Ordered 
That  y6  Sume  of  f ourty  shillings  be  allowed  and  Debenture  made 
to  M''  John  Burnsted  for  damage  done  to  his  Ground  &c.  Fence 
in  ye  time  of  y®  proveing  the  Morter  peece  nere  Bishopps  hall ' 


30  July  1674 
aass  47,  Vol.  19,  Part  11.— Minutes.— Series  I 
(Ordnance  Minutes) 
Present 

M^  Genii  Ordnance 
Lt.  Genii 
Clarke  Ord. 
Storekeeper 
Treasurer 

Ordered 
That  M^  Perkinns  att  Portsm^  be  writt  to,  to  finde  out  what 
convenient  Store  Roomes  are  to  be  hyred  there  for  lodgeings  his 
Mats  stores  for  this  Office  and  y*  he  send  up  word  to  y®  Office 
att  what  Rent  per  annum  y®  same  may  be  had. 


Class  46,  Vols.  I  &  II. 
(Out-letters — Master  General,  Board  and  Commander-in-Chief.) 

FoHo  214d 

A.D.  1660  to  1684 

CHARLES  R. 

WHEREAS  Wee  have  thought  fitt  for  the  better  defence  and 

Securitye  of  Our  Towne  of  Kingston  upon  Hull  to  strengthen 

the  same  with  a  New  Fortification  (Besides  the  Blockhouses  and 


286  WAR  OFFICE  RECORDS 

Castle,  Which  Wee  have  Ordred  likewise  to  be  Repaired  against 
any  Hostile  Attempts)  According  to  a  designe  drawne  &  Pre- 
sented to  us  by  Major  Martin  Beckman  One  of  our  Engineers 
and  by  us  well  approoved  of,  and  Confirmed  under  our  Signe 
Manuall  OUR  WILL  and  PLEASURE  is,  and  Wee  do  hereby 
Authorise  and  require  you,  that  you  doe  Forthwith  take  course 
to  beginn,  and  with  what  convenient  speed  may  be.  To  cause 
y®  said  Fortification  to  be  Erected,  and  Built  according  to  the 
above  mentioned  Designe  By  us  already  approoved  of.  AND 
if  any  Ground  *which  is  not  our  pwne  shall  be  found  Necessary 
to  be  taken  in  for  this  Service  Wee  doe  hereby  authorise  and 
Impower  you  to  cause  the  same  to  be  contracted  for  and  bought 
of  the  Owners  at  the  cheapest  Rates  the  same  may  be  had  AND 
Wee  doe  hereby  Further  Authorise  and  Impower  you  (in  case  you 
shall  Judge  it  requisite  and  Necessary  for  the  better  and  more 
Effectuall  carryeing  on  of  the  Said  Intended  Fortification)  to 
Nominate,  Constitute,  And  appoint  Such  Comission'^  or  Officers 
as  you  shall  thinck  Fitt.  (Our  Governo'  Lieu*  Governor  or 
Comander  in  chief e  for  the  time  being,  And  Majo'*  Martin  Beck- 
man,  or  one  of  them  to  be  alwayes  of  y^  QUORUM)  to  See  y^ 
worke  duely  Performed  according  to  Undertaking  and  Contract, 
and  to  make  unto  the  Officers  Such  Salaries,  Allowances, 
&.  Wages  for  theire  Care,  Paines  and  Attendance  therein,  and 
incident  charges  as  shall  by  you  be  thought  reasonable,  AND 
for  Soe  doeing  this  shall  be  yo^  Warrant.  GIVEN  at  Our  Court 
at  Windsor  the  Tenth  day  of  August  One  thousand  Six  hundred, 
Eighty  &  one,  And  in  the  Three  and  Thirtieth  yeare  of  our  Reigne. 

By  his  Maj  *»  Comand 
CONWAY. 
TO  our  Trusty  and  Wellbeloved  Our  Comission^'s  for  Executing 

ye  Office  of  Our  Ordnance,  Or  to  Our  Master  of  y®  Ordnance 

for  ye  time  being. 


Class  47,  Vol.  L 
(Ordnance.  Out -letters — ^Master  General,  Board  and  Commander- 
in-Chief.)     Folio  288d 
Mr  WATKINSON 

In  pursuance  of  an  Ord^  this  day  of  y^  Board  You  are  hereby 
desired  Forthw**^  to  take  Care  y©  all  his  Maj*  Stores  Lyeing  out 
in  hyred  Warehouses  or  Cellos  for  w^h  his  Maj^y  is  at  charge  of 
payeing  rent  be  Forthw^^  Remooved  and  Carried  into  y®  South 
Blockhouse  according  to  Former  Ord^  and  there  layd  as  well 
as  you  can  for  y^  present ;  till  Such  tyme  as  y®  Said  Storehouses 


WAR  OFFICE  RECORDS  287 

be  compleated  &  Fitted  up  That  you  may  lay  y®  Stores  in  bett' 
Ord^  hereafter,  The  Dept^  Gov^  of  Hull  hath  now  ord's  from 
ye  Rt  Hon^ie  ye  L^  Mulgrave  to  make  Roome  in  y^  South  Block- 
house for  ye  S^  Stores  accordingly,  w^i^  is  all  att  present  From 

Yo'-^  &ca 
190  Septemb'  1682. 
Att  Hull. 


Class  47,  Vol.  22  (Ordnance  Minutes — Series  II,  page  249) 

Sabbati  7°  Die  Julii,  1705. 
Present : 

Clke  Ordnance] 

Storekeeper      h  Ordered. 

Clke  Delies  ) 
That  upon  reading  a  petit  on  of  Mary  Clarke,  wife  of  Patrick 
Clarke,  setting  forth  that  in  cons  of  the  great  loss  her  father  and 
self  had  suffered  by  having  3  houses,  &c.,  pulled  down  w^^  stood 
on  Tower  Wharfe  which  he  had  purchased,  and  that  others  who 
had  suffered  in  the  like  kind,  had  received  a  valuable  considera- 
tion, and  her  father  and  she  only  the  liberty  of  a  small  shedd 
built  on  his  ground,  That  the  office  of  Ordnance  having  occasion 
for  the  same  peice  of  ground  to  build  a  Plumbery  on  for  the 
office  service  the  s^  shedd  was  pull'd  down  and  another  allotted 
her  in  compensaSon  by  the  Rt.  Honble.  the  L<i  Dartm^  and  the 
then  Principal  Officers  of  ye  Ord^e  over  against  where  ye  other 
stood,  all  weh  allegation  being  attested  by  Joseph  Hone  a  gunn' 
and  John  Robins  a  labourer  belonging  to  the  office  who  had 
lived  for  many  years  upon  ye  s<i  wharfe,  It  is  ordered  that  upon 
ye  af  d  cons  the  s^  M''^  Clarke  do  keep  in  posson  of  ye  s<*  shedd  by 
right  from  ye  office  of  Ord^e. 

Class  47,  Vol.  30 
(Ordnance  Minutes — Series  III) 
Old  Palace  Yard  Westminster— Martis  20°  die  Mali  1717. 
Present 


Lieut  Gen^ 

Surveyr  Gen^ 

Clk  of  the  Ordnance 

Storekeeper 

Clk  of  the  Deliveries 

& 
Chief  Engineer 


Order'd 


288  WAR  OFFICE  RECORDS 

Coll°  Lilly  informed  ye  Board  that  Mr.  Edgecumb  can  not 
grant  or  convey  the  ground  to  build  the  storehouses  upon  at 
Plym«  without  an  Act  of  Parliament,  whereupon  Mr.  Ash  was 
desired  to  speak  to  him  about  ye  same  and  to  give  one  Mr.  Moyle 
agent  f  or  .  .  .  notice  to  attend  the  next  board. 


Class  47,  Volume  32 

(Ordnance  Minutes — Series  III) 

Old  Pallace  Yard  Westminster — ^Martis  10°  Die  Februarii  1718-9 

Present 
Surveyor  Generall 
Clerk  of  the  Ordnance 
Storekeeper  \-  Ordered 

Clerk  of  the  Deliveries 
Chief  Engineer 

(A  letter)  to  Mr.  Dixon,  storekeeper  at  Plym^  advising  him, 
that  just  as  the  Board  was  concluding  an  agreem*  with  S^ 
Nicholas  Morrice  for  the  ground  whereon  to  build  a  gunwharfe 
and  storehouse  near  the  Dock,  one  Mr.  Kent  demands  an 
exorbitant  value  for  his  house  and  interest  of  part  of  that  ground 
let  to  him  upon  lease  by  S^  Nicholas  to  go  to  him  and  immediately 
offer  his  right  and  pretension  the  sum  of  £180 — which  is  more 
than  formerly  he  offered  to  sell  it  for  and  if  accepted,  to  gett 
Articles  of  Agreement  drawn  up  to  confirm  the  bargain. 

And  another  to  him  with  private  instructions  upon  that  head. 


Class  44.     Vol.  242 

(Ordnance  Minutes) 
Received  this  13th  day  of  April  1758  of  the  Right  Honble  and 
Honble  the  Principal  Officers  of  his  Majesty's  Ordnance  by  the 
hands  of  Farmer  Thomas  Hopkins  the  sum  of  Twenty  one 
pounds  and  eight  Pence  being  for  one  years  Rent  and  Damage 
sustained  for  the  enclosed  March  Land  I  occupy  adjoining  Hilsey 
Common  whereon  the  Line  &  Batteries  are  erected  near  Portsea 
Lake. 
"""^~  Witness  my  hand 

WiLLM.  Hopkins 


WAR  OFFICE  RECORDS  289 

Class  30,  Vol  54        No.  21 
General  Roy's  Papebs 
23rd  September  1775 

Dimensions  of  Mr.  Le  Marchant's  buildings  proposed  to 
Colonel  Roy  to  be  rented  to  Government  for  barrackS;  with 
the  conditions  of  such  rent 

Particulars  of  Building 

Mr.  Le  Marchant's  terms  are  to  receive  £150  down,  to  be  subject 
to  no  alterations  or  repairs,  for  one  year's  rent  of  the  above 
mentioned  buildings  and  ground,  and  if  kept  longer  than  a  year 
the  rent  to  be  reduced  to  £100  per  year,  to  be  advanced  every 
half  year,  at  the  beginning  of  each  half  year,  but  if  the  rent  is 
not  advanced,  then  Mr.  Le  Marchant's  demand  is  £160  for  one 
year  certain,  payable  £80  after  the  first  six  months,  and  the 
other  £80  at  the  year's  end 

And  after  the  first  year  the  rent  to  be  continued  by  the  half 
a  year  at  £100  a  year,  payable  half  yearly 

If  Government  thought  proper  to  allow  £20  towards  making 
a  pump  to  the  well,  as  it  is  so  deep,  Mr.  Le  Marchant,  for  the 
greater  conveniency,  would  pay  the  surplus,  the  pump  remaining 
afterwards  his  property,  the  use  of  the  said  well  or  pump  in  either 
case  to  be  also  preserved,  in  common  with  the  soldiers,  to  his 
people  and  tenants  on  the  premises 

Government  to  be  at  liberty  to  make  chimneys,  doors,  windows, 
and  partitions  in  any  of  the  premises,  and  to  erect  any  building 
on  the  ground  as  far  as  the  road,  but  if  necessary  the  same  to 
be  placed  at  such  a  distance  from  the  road  as  not  to  incommode 
the  persons  passing  through  the  same 

That  as  to  any  fixtures  of  beds  or  wooden  partitions  or  floors 
within  the  said  buildings,  that  Government  shall  have  a  right 
to  take  any  the  same  on  quitting  the  premises,  but  not  any 
doors,  windows,  masonry  work  or  the  rails  that  may  be  made 
to  enclose  the  premises 

Guernsey  the  23rd  September  1775 

Will  Le  Marchant 
P.  Emil  Irving        ^ 

Lieut.  Governor)  Witness 

Dorse  : — I  accede  to  these  proposals  made  by  Mr.  Le  Marchant 
except  the  pump  for  the  well,  which  may  not  be 
thought  necessary 

W.  Roy  D.Q.M.G1. 

2388  XJ 


290  WAR  OFFICE  RECORDS 

Also  on  Dorse  : — ^Mr.  Le  Marchant's  dimensions  of  his  build- 
ings, and  conditions  with  respect  to  the 
hiring  of  them  by  Government  for  tem- 
porary barracks 

Class  47,  Vol.  2565,  page  817.  (Ordnance.   Extracts  of  Minutes 

Series  II) 

From  25th  May  to  31st  December  1798 

At  Westminster  18th  July  1798 

Mr.  Henry  Simmonds  having  transmitted  his  Bill  for  three 

months  hire  of  Barton  Bam  for  use  of  the  Park  of  Artillery  at 

Canterbury,  and  requested  that  his  last  BiU  amounting  to  £84 

might  be  paid. 

Ordered  to  be  referred  to  the  Surveyor  General  for  allowance 
according  to  Agreement  and  that  John  Simmonds  be  acquainted 
when  the  leist  Bill  be  sent  and  which  he  describes  will  be  paid. 


Class  47,  Vol.  2580,  page  2313.    (Ordnance.  Extracts  of  Minutes 

Series  II) 
(Ordnance  Minute) 
At  Westminster,  20th  August  1804 

Rt.  Smith  Esquire  Assistant  to  the  Solicitor  having  by  letter 
of  the  18th  inst.,  stated  that  he  had  perused  General  Morse's 
letter  of  the  15th  Inst.,  accompanying  Brigadier  General  Evelegh's 
letter  regarding  the  Lands  at  Stamshaw  Point  near  Tipner,  and 
Little  Horsea  Island  near  Porchester,  that  belong's  to  Captain 
Farhill  and  to  the  trust  Estate  of  the  late  Mr.  Ridge  and  as  the 
Price  demanded  by  Captain  Farhill  was  very  extravagant  and 
there  was  some  legal  obstacles  to  the  purchase  of  Mr.  Ridge's 
Estate  he  conceived  it  would  be  expedient  to  take  Possession 
of  these  Lands  under  the  Authority  of  the  defence  Act. 

Ordered  that  Mr.  Smith  be  directed  to  take  possession  of  this 
Land  under  the  Authority  of  the  defence  Act ;  and  that  Brigadier 
General  Eveleigh  be  acquainted. 


Class  44.     Bundle  679.     Ordnance.     In-letters 
Minute 
(In  pencil)  'All  has  been  done  that  is 

possible  on  ye  Part  of  the 
Mast.  Genl.  the  business  is 
fully  before  the  Board. 
Dear  Sir,  ^  4th  August  1805. 

The  great  demand  which  will  soon  be  made  for  Gunpowder 
to  replace  what  has  been  expended  in  the  late  Actions  make 


WAR  OFFICE  RECORDS  291 

me  very  anxious  for  the  Ordnance  to  avail  themselves  of  the 
Chesshunt  Water  they  have  purchased.  I  therefore  beg  you  will 
let  me  know  the  instant  your  Solicitor  enables  the  Ordnance 
to  lead  the  Water  in  question  down  to  the  Royal  Powder  Mills. 
I  found  very  short  water  when  I  was  at  Waltham  Abbey  on 
Friday  last.  I  am  very  sorry  I  had  not  the  pleasure  of  meeting 
you  thereat.  The  People  at  the  Mills  having  told  me  you  was 
there  the  day  before. 

I  am,  dear  Sir, 

Faithfully  yours, 

W.  CONGREVE 

P.S. — ^The    Ordnance    has    a  Comptroller. 

very   small   stock   of 

New  Gun  Powder  in 

Store  at  PurfleetW.C. 
Colonel  Hadden, 
&ca.  &ca.  &ca. 

Powdr. 

Minute  Charlton  17  Aug.  1805 

(In  pencil)     Refer  to  Mr.  S.  Reed.  17th. 

Report 
Rt.  Honble. 
and  Hoble.  Gentn. 

At  this  Crisis,  I  beg  to  suggest  if  it  might  not  be  advisable  to 

apply  to  His  Majesty's  Ministers  to  impower  the  Ordnance  to 

take  possession  of  the  Cheshunt  Water  for  as  long  a  time  as  the 

Service  may  require  it,  allowing  a  reasonable  compensation  to  the 

Proprietors  of  the  Corn  Mills  at  that  place  and  Waltham  Abbey. 

I  have  the  honor  to  be 

Rt.  Honble. 

& 

Honble.  Gentn. 

Your  most  obedient  Servt. 

W.  CONGREVE 

The  Rt.  Honble.  Comptroller. 

&  Honble.  The  Board  of  Ordnance. 

4th  September  1805 

Ordered  that  a  Letter  be  written  to  L'  Colonel  Neville, 
desiring  that  he  wiU  acquaint  the  Master  General  that  in  conse- 
quence  of   the   urgent   Representations   from   Major   General 

U2 


292  WAR  OFFICE  RECORDS 

Congreve  Comptroller  of  the  Royal  Laboratory  of  the  necessity 
of  obtaining  Possession  of  the  Mills  at  Chestunt  for  the  Purpose 
of  increasing  the  Supply  of  Gunpowder  for  His  Majestys  Service, 
the  Board  have  had  a  Conference  with  Mr.  Smith,  Assistant  to 
the  SoUcitor,  upon  the  Subject,  and  finding  from  Mr.  Smith 
that  it  is  extremely  difficult  to  settle  the  Interests  of  all  the 
parties  concerned  in  the  Cheshunt  Mill  Property  and  that  the 
most  advisable  Measure  will  be  to  have  recourse  to  the  Defence 
Act  to  obtain  possession  of  the  Property.  And  the  Board  con- 
curring in  Opinion  with  Major  General  Congreve  that  the  Exigency 
of  the  PubUc  Service  renders  it  indispensable  to  secure  an  ample 
Supply  of  Water  to  increase  the  Stock  of  Gunpowder,  beg  leave 
to  recommend  to  the  Master  General  to  authorise  the  Mills  at 
Chestunt  to  be  taken  Possession  of  under  the  Defence  Act  [remainder 
in  pencil]  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. 

Letter  wrote  to  Col.  Neville. 
[Minute  in  ink] 

Powder  Reed.  3  May 

Right  Honourable  and  Honourable  Gentleman. 

The  business  of  the  Cheshunt  Mill  came  on  yesterday  before 
a  jury  under  the  Defence  Act  when  after  an  examination  of 
witnesses  on  both  sides  the  jury  assessed  the  value  of  the  Lessee's 
interest  at  seven  thousand  five  hundred  pounds. 

This  sum  carrying  interest  from  yesterday  until  payment  of 
the  money,  I  shall  lose  no  time  in  preparing  the  necessary  assign- 
ment of  the  Lease  from  Messrs  Bridgman  and  Rust  and  their 
Mortgagee,  Mr.  Corrie. 

I  have  the  honour  to  be 
With  the  greatest  respect, 

Right  Honble,  and  Honble  Gentln. 
Your  most  obedient  humble  servant, 
RoBT.  Smith, 
Assist,  to  the  Solr. 
Basinghall  St. 
3<i  May  1808 


WAR  OFFICE  RECORDS  293 

Class  47  (Board),  Vol.  269 
(Ordnance  Minutes) 
In  Pall  Mall— Monday  20th  January  1812 
Present 

Lieutenant  General 
Surveyor  General 
Clerk  of  the  Ordnance 


Mrs.  Elizabeth  Bayly  having  by  letter  dated  18th  instant  in 
reply  to  the  Board's  reference  of  the  8th  with  respect  to  the  land 
for  the  Battery  at  Weymouth  and  the  road  leading  to  it  from 
the  Barracks  observed  that  she  would  [be]  willing  to  grant 
a  lease  for  the  same  for  twenty  one  years  provided  all  the  buildings 
and  fences  which  might  be  erected  were  at  the  expiration  of  the 
lease  left  standing 

Ordered  that  Mrs.  Bayly  be  acq^  the  Board  cannot  accede  to 
the  condition  that  the  fences  should  remain  at  the  expiration  of 
the  lease  ;  but  the  Board  are  willing  to  execute  a  lease  for  twenty 
one  years  renewable  on  a  fine  certain  to  be  agreed  upon  And 
that  if  Mrs.  Bayly  declines  to  grant  a  lease  the  Board  will  be  under 
the  necessity  of  taking  possession  of  the  land  under  the  Defence 
Act. 


Class  44,  Vol.  516 

(Ordnance  Minutes) 

Engr.  Isle  of  Thanet 

Ramsgate, 
June  20th  1813 
Reed.  21 
Sir, 

In  obedience  to  the  Boards  orders  of  the  8th  inst.  I  have  to 
report  upon  the  claims  of  Mr.  Cowel  of  Margate,  Mr.  Tomlin 
of  Northdown  and  Mr.  Bristow  of  this  Island. 

About  eight  years  ago  when  a  landing  was  apprehended  on  this 
Coast  it  was  propos'd  among  the  means  of  defence  to  stop  up 
the  Gateways  by  which  the  farmers  draw  up  the  Seaweed  from 
the  Beach  as  a  manure  for  their  lands,  these  openings  being 
the  only  ones  for  several  miles,  by  which  an  Enemy  could 
penetrate. 


294  WAR  OFFICE  RECORDS 

Mr.  Pitt  assembled  the  Proprietors  at  the  Townhall  of  Margate, 
and  proposed  the  measure,  when  it  was  settled,  that  as  the  total 
Stoppage  of  the  Gates  would  occasion  serious  loss  and  inconveni- 
ence to  the  Farmers,  a  few  should  be  left  open  at  certain  intervals 
to  procure  the  Weed,  and  the  others  be  fill'd  up.  This  was 
accordingly  done,  I  believe  under  the  direction  of  the  Royal 
Staff  Corps,  and  the  openings  continued  shut  till  the  alarm 
subsided.  It  appears  that  some  of  the  Gates  were  then  open'd 
without  application  to  Government  and  some  with  their  per- 
mission ;  but  I  could  not  obtain  any  satisfactory  account  of  this 
part  of  the  transaction. 

It  is  however  perfectly  clear  to  me  that  the  measure  was  under- 
taken by  order  of  the  Government  to  the  loss  and  inconvenience 
of  the  owners  of  ground  in  the  neighbourhood  ;  and  as  the 
necessity  for  keeping  them  shut  no  longer  exists,  it  is  but  just 
that  they  should  be  reopen'd  at  the  expense  of  the  Public,  and 
a  fair  compensation  allowed  for  the  time  they  have  been  deprived 
of  their  use.  The  Sketch  I  now  send  will  shew  the  Position  of 
these  Gates,  and  the  reference  list,  the  Names  of  the  Proprietors, 
with  the  expense  of  opening,  compensation  &c. 

The  reopening  of  Mr.  Cowel's  Gate  No.  1  has  been  estimated 
by  a  man  at  Margate  at  £75,  but  as  I  think  it  can  be  done  for 
much  less  than  this  sum,  I  would  propose  to  send  a  party  under 
an  Officer  for  this  purpose.  The  loss  has  been  much  more  con- 
siderable to  this  Proprietor  than  to  the  others  from  the  great 
distance  he  has  been  obliged  to  go  for  the  Weed,  and  I  have  there- 
fore put  down  £10  a  year  as  a  moderate  sum  by  way  of  com- 
pensation. 

Should  the  Board  determine  that  the  Ordnance  discharge  this 
account,  the  Proprietors  will  have  to  receive  as  follows  ;  Viz. 

Mr.  Cowel       .      .      .     80£  and  his  gate  to  be  reopen'd  at  the 

expense  of  Government 
Mr.  Tomlin     .      .      .     55£ 
Mr.  Bristow    .      .      .     15£  15sh 

But  it  is  proper  to  state  that  the  Service  was  preformed  under 
the  direction  of  another  Department,  (I  presume  the  Q.M. 
generals)  and  therefore  it  may  perhaps  be  thought  right  to  refer 
the  account  for  settlement  to  that  Quarter.  With  this  view 
I  collected  all  the  information  that  two  days  of  examintion 
afforded  me,  so  as  to  give  as  little  trouble  as  possible  to  those 


WAR  OFFICE  RECORDS  295 

who  have  to  make  the  compensation,  in  case  they  may  think 
proper  to  act  upon  my  opinion. 

I  have  the  honor  to  be 
Sir, 
Your  very  obedt.  Servt. 
Hby.  L.  Ford. 

Lt.  Colonel  R.  Eng. 
R.  W.  Crew  Esq., 

&c.,  &c.,  &c. 
[In  pencil]     Collect  the  applications.    Refer  to  Q.M.G.'s  Depart- 
ment, stating  our  opinion  that  the  expence  belongs 
to  them,  &  asking  their  resolution  on  Col.  F's  State- 
ments 
[Endorsed]    25  Jime  1813.     Ordered  that  a  Reference  be  made 
to  the  Quarter  Master  General's  Department  and 
that  the  Boards  Opinion  be  stated  that  the  Expence 
belongs   to    them    and   that   the    Quarter   Master 
General  be  requested  to  signify  his  resolution  on 
Lt.  Col.  Ford's  statement 
R.W. 

Letter  wrote  to  Co.  Gordon 
[Plan] 

LIST  OF  REFERENCE  to  accompany  the  Sketch  of  the 
GATEWAYS  on  the  North  side  of  the  Isle  of  Thanet. 
June  19th  1813 

(Here  follow  particulars  of  the  several  claims  and  of  the  compensation 
awarded  in  each  case) 

Earl  of  Chatham's  Papers  (deposited  at  the  Public 
Record  Office) 
Bundle  243 
Endorsed  September  1819) 
Mr.  H.  Jeffery  J 

'  Mr.  Hunt  Jeffery  has  a  farm  between  Sandgate  and  Hythe 
nearer  to  Sandgate,  some  of  the  lands  adjoin  the  high  road  near 
the  sea.  The  Duke  of  Richmond,  as  Master- General  of  the 
Ordnance,  has  applied  to  Mr.  Jeffery  to  purchase  the  land  near 
the  sea  and  at  the  cliff  adjoining,  for  the  use  of  Government,  and 
to  erect  batteries  and  to  form  a  camp  there,  the  land  he  wants 
of  Mr.  Jeffery  is  about  one  hundred  and  forty  acres,  besides  the 
same  quantity  from  adjoining  proprietors,  who  refuse  to  give 
it  up.    Mr.  Jeffery  is  willing  to  grant  a  lease  of  the  land  for  the 


296  ROTULI  PARLIAMENTORUM 

benefit  of  the  country  during  the  war,  which  has  been  mentioned 
to  his  grace,  but  that  his  grace  declines,  as  it  will  be  wanted 
in  a  future  war,  and  alleges  that  then  it  will  be  an  additional 
expense  to  Government  to  renew  the  works,  and  therefore 
expresses  himself  determined  for  the  benefit  of  the  country,  as 
he  alleges,  to  purchase  the  land  in  question,  and  in  case  Mr.  Jeffery, 
persisting  in  the  refusal  to  sell,  to  bring  in  a  bill  in  Parliament 
to  empower  the  Board  of  Ordnance  to  purchase  the  land  in 
question  and  to  have  the  value  ascertained  by  a  jury,  as  is  usual, 
Mr.  Jeffery  hopes  that  it  may  be  sufficient  to  have  the  land  in 
question  during  the  war,  as  probably  in  future  wars  it  may  not 
be  necessary,  and  submits  that  if  he  give  the  present  accommoda- 
tion it  is  all  that  may  be  wanted.  He  is  ready  to  give  any  tem- 
porary accommodation,  and  the  fear  of  being  materially  injured 
by  the  sale  of  his  estate  has  made  him  desist  from  any  contribu- 
tion in  support  of  any  volunteer  companies,  or  by  personal 
service,  which  he  is  otherwise  induced  liberally  to  support.' 


APPENDIX  G 

EXTRACTS  FROM  ROTULI  PARLIAMENTORUM 

Rot.  Pari.,  46  Ed.  Ill  (1372) 
Vol.  II,  p.  311,  No.  vi 

Item  prie  la  Commune,  qe  come  les  Marchantz  &  Mariners 
d'Engleterre  q  xx  aunz  passez  &  toutdiz  a  devant  la  Navie  de 
dit  Roialme  estoit  en  touz  Portz  &  bones  Villes  sur  Mier  &  sur 
Ryvers  si  noble  &  si  pleintinouse,  q  touz  les  pays  tenoient  & 
appelloient  nre  a  van  dit  Si"-  le  Roi  de  la  Mier,  &  lui  &  tout  son 
pays  dotoient  le  pluis  par  mier  &  p  terre  par  cause  de  la  dite 
Navie  :  Et  ore  il  est  ensi  desencrescez  &  anientyz  par  diverses 
causes,  q  a  poy  yl  i  a  demure  suffisientis  a  defendre  la  dite  pays, 
si  grant  mestier  estoit,  encontre  Roial  Poiar  y  fuisse  a  grant 
perille  coement  de  tout  la  Roialme,  lesqeux  causes  serroit  trop 
longe  des  touz  escrivre.  Mes  une  cause  est  principal,  la  longe 
Arrest  q  sovent  ad  este  fait  sur  les  Niefs  en  temps  de  Guerre  ; 
c'est  assavoir,  par  un  quarter  d'an  ou  pluis  avant  q'ils  passent 
hors  de  lour  Portz  sanz  rien  prendre  pur  les  gages  de  lour 
Mariners  durant  cell  temps,  ou  les  Si's  des  Niefs  rien  prendre  de 


ROTULI  PARLIAMENTORUM  297 

guerdon  pur  les  Apparailementz  de  lour  ditz  Niefs  &  Custages. 
Dount  ils  priont,  en  eovre  de  charite,  covenable  remedie. 

Y  plest  au  Roi  q  la  Navie  soit  meintenue  &  gardee,  a  greindre 
ease  &  profit  q  faire  se  poet. 


Rot.  Pari.,  47  Ed.  Ill  (1373) 
Vol.  11,  p.  319,  No.  xvi 

Item  monstront  les  Seignrs  de  Niefs  par  tut  Engleterre,  qe 
come  ils  ont  sovent  foith'  avant  ses  houres  sywes  en  Parlement 
par  Petition  de  lour  anienticementz  de  lour  avoir  &  destrudlion 
de  la  Navie,  en  la  Manere  q'ensust ;  C'est  assaver,  q  come  lour 
Niefs  sont  arestuz  par  divers  temps  a  servir  iire  Sr  le  Roi,  & 
demuront  sur  eel  arest,  ascun  par  demy  an,  &  les  autres  par  un 
quarter  de  Tan,  ou  plus,  avent  q'ils  passeront  en  lour  Viages ; 
issint  qe  durant  eel  temps  les  Seignrs  de  Niefs,  ne  Mariners 
d'ycels,  rienz  ne  preignont  des  gages  ne  lowers,  en  grant  anien- 
ticement  &  empoverisement  de  lour  estates  par  cause  q  remedie 
sur  ceo  n'est  ordeigne.  Pur  qi  ils  priont  a  nostre  Sr  le  Roi 
&  a  son  Conseil,  en  eovere  de  charite,  ordeiner  &  graunter  en 
cest  present  Parlement,  qe  les  Seignrs  des  Niefs  puissont  estre 
paiez  de  lour  gages  del  comencement  de  lour  arest  des  Niefs 
tan  q  a  fin  de  lour  Viage,  en  reconfort  des  Seignrs  de  Niefs, 
&  encrees  &  amendement  de  tut  la  Navie. 

Areste  de  Niefs  ne  serra  fait  mes  quant  il  busoigne,  paiement 
lour  serra  fait  come  ad  este  use  resonablement. 


Rot.  Pari.,  2  Ric.  II  (1379) 
Vol.  Ill,  p.  66,  No.  xxiv 

Item  prie  la  Coe,  pur  ce  q  en  temps  passe  la  Terre  d'Engleterre 
estoit  Ibn  repleine  de  Navie,  auxi  tin  des  Niefs  grosses  come  des 
petites,  par  quiel  Navie  la  dee  Terre  estoit  a  celle  heure  grande- 
ment  enrichez,  &  des  toutes  Terres  environ  grandement  redoutez. 
Et  puis  la  comencement  de  la  Geurre  les  ditz  Niefs  ont  este  si 
sovent  arestuz  pur  diverses  Viages  sur  la  Meer,  p  ont  les  posses- 
sours  du  dit  Navie  ont  suffertz  si  grant  damage  &  perde,  si  t»n 
des  Niefs  &  Batelx  come  des  autres  attilementz  a  ce  appur- 
tenantz,  sanz  avoir  aucun  regard  du  Roi  ou  de  Roialme  :  Et 
auxint  leurs  Mariners  les  unes  armez,  &  les  autres  archiers,  ne 
preignent  q  IIII  d.  le  jour  ;  quelle  prise  leur  semble  si  petite 
q  grande  partie  des  Mariners  sont  retretz  des  ditz  offices,  issint 
par  une  voie  &  par  autre  les  possessours  des  Niefs,  &  la  Navie 
est  15n  pres  gaste  &  destruit.  Sur  quoy  pleise  ordeiner,  par 
advys  du  Conseil,  q  les  possessours  des  Niefs  aient  regard  pur 


298  ROTULI  PARLIAMENTORUM 

lour  Niefs  &  les  Marineres  lours  gages  oweles  as  autres  archiers, 
comenceant  les  dees  gages  a  lour  monstre  :   quelles  amendement 
ferront  si  grant  esploit  en  temps  a  venir,  q'il  toumera  a  grant 
profit  du  Roi  &  du  Roialme. 
Soit  usez  come  devant  ent  ad  este  usez. 


Rot.  Pari.,  9  Ric.  II  (1385) 
Vol.  Ill,  p.  212,  No.  28 

Item  priont  les  Goes  en  cest  present  Parlement  come  autre 
foitz  fuist  ordeigne,  q  les  Niefs  armez  sur  la  Mere  pur  la  sauve- 
garde  des  Marchantz,  &  en  defense  du  Roialme,  duissont  prendre 
pur  chescun  tun-tyght  trois  soldz  quatre  deniers  en  la  quarter, 
pur  Tapparaille  del  Nief  :  Vous  plese  ordeigner,  q  la  dite  Orde- 
nance  soit  tenuz  defore  en  avant  pur  salvation  &  sustenance 
des  Niefs  avant  ditz,  pur  I'apparaill  &  omement  de  les  ditz 
Niefs  lesquels  demandent  grantz  costages  ;  Considerantz  q  autre- 
ment  la  Navie  ne  poet  autrement  en  nuUe  manere  endurere. 

Eient  pur  Fapparaill'  &  ornement  des  Niefs  per  Chescun 
tun-tyght  II  s  en  le  quarter,  tan  q'al  prochein  Parlement. 


Rot.  Pari.,  4  Hen.  IV  (1402) 
Vol.  Ill,  p.  501,  No.  56 

A  TRES  excellent,  tres  redoubte,  &  tres  gracious  Sr  fire  Sr  le 
Roi  suppliount  voz  poverez  Communes,  cj  I'Estatut  fait  I'an 
primer  du  regne  luy  noble  Roi  E.  vre  aiel,  contenant,  Qe  null 
soient  destreintz  d'aler  hors  de  lour  Countees  sinoun  p  cause  de 
necessite  de  sodeigne  Venu  des  estraunges  Enemys  en  Roialme  : 
&  I'Estatut  fait  I'an  xviii  de  regne  du  dit  aiel,  Qe  Gentz  des 
Armes,  Hobelers,  &  Archiers,  esluz  pur  aler  en  le  service  le  Roy 
hors  d'Engleterre,  soient  as  Gages  le  Roi  de  jours  q'ils  deptirent 
hors  des  Countes  ou  ils  feurent  esluz  ;  &  ensement  I'Estatut  fait 
I'an  XXV  du  regnele  dit  aiel,  Qe  nul  soit  arte  de  trover  Gentz 
d'Armes,  Hobellers,  ne  Archers,  autres  q  ceuz  q  tiegnent  p  tieux 
services  s'il  ne  soit  p  commune  assent  &  graunt  fait  en  Parlement ; 
soient  firment  tenuz  &  gardez  en  toutz  pointz,  saunz  estre  en- 
freintz  en  ascun  manere.  Et  q  null  de  voz  ditz  Communes  soit 
destreint  d'aler  en  Gales,  ou  aillours  hors  du  Roialme  countre  la 
fourme  de  les  Estatutz  a  vaunt  ditz.  Et  q  toutz  les  Commissions 
&  Briefs  faitz  a  contraire  des  ditz  Estatutz,  &  toutz  les  endite- 
mentz  &  acusementz,  obligations,  &  liens  faitz  par  colour  des 
ditz  Commissions  ou  Briefs,  ove  toutz  les  dependences  &  cir- 


ROTULI  PARLIAIVIENTORUM  299 

Gumstances  d'icell,  soient  revokez,  cancellez,  cassez,  &  adnullez 
pur  toutz  jours,  come  choses  faits  encountre  la  Ley,  &  q  ne 
soient  trehez  en  ensample  en  temps  a  venir.  Et  si  aucunes  de 
voz  lieges  soient  emprisonez  p  force  des  ditz  enditementz  ou 
acusementz,  q'ils  soient  maintenant  deliverez,  &  les  ditz  Endite- 
mentz tenuz  pur  nuUes. 

Le  Roy  le  voet ;  p  ainsi  toutes  voies,  q  par  force  ou  colour  de 
la  dite  supplication,  ne  d'ascun  Estatut  sur  ceo  a  faire,  les 
Seignrs,  n'autres  qi  ount  Terres  &  Possessions  en  Pays  de  Gales, 
ou  en  la  Marche  d'icelle,  ne  soient  en  ascun  manere  excusez  de 
lour  Servicez  &  Devoirs  de  lour  ditz  Terres  &  Possessions  duez, 
ne  d'ascuns  autres  Devoirs  ou  chosesa  lesquelles  ils,  ou  ascuns  de 
eux,  sont  a  nre  dit  Sr  le  Roy  especialment  obligez  ;  comBn  q 
yceux  Seignrs  &  autres  aient  autres  Terres  &  Possessions  deintz 
le  Roialme  d'Engleterre  ;  ne  q  les  Seignrs  ou  autres,  de  quele 
estate  ou  condition  q'ils  soient,  qi  tiegnent  p  Escuage  ou  autres 
Services  duez  au  Roi  ascuns  Terres  ou  Possessions  dedeinz  le 
dite  Roialme,  ne  soient  ascunement  excusez  de  faire  les  Services 
&  Devoirs  des  ditz  Terres  ou  Possessions  duez,  ne  q  les  Seignrs, 
Chivalers,  Esquiers,  n'autres  persones,  de  quele  estate  ou  con- 
dition q'ils  soient,  q  tiegnent  &  ount  de  le  Graunt  ou  Confirmation 
de  nre  dit  Sr  le  Roi  Terres,  Possessions,  Fees,  Annuitees,  En- 
pensions,  ou  autres  Profitz  annuelx,  ne  soient,  n'ascun  de  eux 
soit,  excusez  de  lour  service  a  faire  a  nre  dit  Sr  le  Roy,  p  tiel 
manere  come  ils  sount  tenuz  par  cause  des  Terres,  Possessions, 
Fees,  Annuitees,  Enpensions,  ou  Profitz  suis  ditz. 


Rot.  Pari.,  3  Hen.  V  (1415) 
Vol.  IV,  p.  79,  No.  viii 

Item  suppliont  tres  humblement  voz  poveres  Communes,  Qe 
come  en  le  temps  des  tres  nobles  Progenitours  nre  Sr  le  Roy 
accustume  &  ordeine  estoit,  q  a  quell  temps  q  les  Niefs  du 
Roialme  fesoient  a  eux  service  en  lour  guerres  ou  autrement,  les 
Possessours  de  mesmes  Niefs,  aueroient  lour  tonnage  de  lour  ditz 
Niefs,  outre  les  gages  des  Mariners  de  mesmes  Niefs  ;  c'est 
assavoir,  a  chescun  tonneau  de  quell  portage  q  la  Nief  furent 
111  8,  1111  d.,  pur  le  quarter  d'an,  durant  le  temps  q'ils  firent 
service  au  Roy,  en  ascune  manere  come  desuis  est  dit,  le  quell 
tonnage  ad  estee  duement  &  loialment  paie,  de  temps  dount 
memoire  ne  court  tanq  a  temps  de  vre  Pier,  q  Dieu  assoile  ; 
puis  quell  temps  tanq  en  cea,  le  dit  tonnage  ad  este  detreei  & 


300  ROTULI  PARLIAMENTORUM 

abatu  des  Possessours  du  Naveye  de  vre  Roialme,  a  lour  tres 
graunt  anientisment :  p  quell  encheason  ascunes  des  Possessours 
du  dit  Naveie  sount  outrement  anientisez,  &  la  greindre  partie 
du  dit  Naveye  destrutz,  &  lessez  desolate,  a  tres  graund  damage 
de  Vous,  tres  soveraigne  Sr,  &  anientisment  de  vre  Roialme. 
pur  taunt  q  la  dit  Naveye  est  la  greindre  substance  du  Bn,  profit, 
&  prosperitee  du  vre  dit  Rioalme.  Pleise  a  vre  tres  hautisme 
magnifence  Roialme,  considerent  les  premisses,  si  t)n  pur  le 
bien  &  proufit  de  Vous,  tres  soveraigne  Sr,  &  de  vre  dit  Roialme, 
come  pur  I'encrees  &  renovellure  du  dit  Naveye,  ordeiner, 
ena6ler,  &  establir  en  ycest  present  Parlement,  q  des  ore  en 
avaunt  les  Possessours  du  dit  Naveye  eient  &  preignent  lour 
tonnage,  pur  lour  ditz  Niefs  &  Vesselxs,  durant  le  temps  q'ils 
ferrount  service  a  Vous,  tres  soverain  Sr  le  Roy,  &  a  voz  heirs, 
en  voz  guerres  ou  autrement,  come  il  ad  este  accustume  devaunt 
ces  heures,  saunz  ent  estre  forbarrez  ou  precludez. 

Le  Roy  vorry  f aire  ceo  q  droit  &  reson  demandent  ceste  partie. 


Rot.  Pari.,  20  Hen.  VI  (1442) 
Vol.  V,  p.  59,  No.  xiii 

Prayen  the  Communes,  that  hit  please  the  Kyng  our  Soverain 
Lord,  for  the  saufE  kepyng  of  the  See,  to  ordeyn  and  auctorise 
by  the  auctorite  of  this  Parlement,  certains  Articles  and  appoynt- 
mentes,  contained  in  a  Cedule  to  this  Bill  annexed. 

Tenor  vero  Cedule  predicte  sequitur  in  hec  verba. 

For  as  muche  as  it  is  thought  be  alle  the  Communes  of  this 
Lande,  that  it  is  necessarie  the  See  to  be  kepte,  there  moste 
purviaunce  be  made  for  certeine  Shippes  defensablez  in  maner 
and  fourme  after  oloWyng. 

First,  it  is  thought,  that  the  lest  purveaunce  that  can  be  made 
for  the  worship  of  the  Kyng  our  Soverain  Lord  and  welfare  and 
defence  of  this  Roialme  of  England,  is  for  to  have  upon  the  See 
continuelly,  for  the  sesons  of  the  yere  fro  Candilmes  to  Marty- 
messe,  viiie  Shippes  with  forstages  ;  ye  whiche  Shippes,  as  it 
is  thought,  most  have  on  with  an  other,  eche  of  hem  CL  men  ; 

c 

summa,  xii  men. 
Item,  every  grete  Shippe  most  have  attendyng  opon  hym 

XX 

a  Barge,  and  a  Balynger  ;    and  every  Barge  most  have  in  iiii 

c 

men  summa,  vi  and  XL  men. 

Item,  the  viii  Balyngers  most  have  in  eche  of  hem  XL  men  ; 
summa,  CCCXX  men. 


ROTULI  PARLIAMENTORUM  301 

Item,  there  most  be  awaytyng  and  attendaunt  opon  hem 
nil  Spynes,  in  eche  Spynes  XXV  men  ;  summa,  C  men.  Summa 
of  the  men,  MMCCLX  men.  Every  man  takyng  11  s  be  the 
month,  amomiteth  in  the  month  CCXXVI  li. 

Item,  XXIIII  Maisters,  eche  of  hem  overe  this  in  the  Month 
XL  d  ;   summa  IIII  ii. 

Item,  over  their  reward  for  the  quarter  Maisters  be  the 
month  IIII  li.  ;   summa  of  the  Wages,  CCCXXXIIII  ii. 

Item,  Vetaillyng  for  a  month,  drawith  atte  XIIII  d.  the  man 

c 

in  the  weke,  summa  v  XXVII  li.  vi  s  VIII  d.  ;   summa  for  the 

c 

month,  in  Vitaillyng  and  Wages,  vii  LXI  li.   VI  s.   VIII  d.  ; 

M        C 

summa  for  VI  moneths  for  this  yere.    IIII  D  LXVIII  li.  ;  summa 
for  VIII  monethes  yerely  f olowyng  duryng  the  graunte  of  Tonage 

and  Poundage,  VI  IIII  X  ti.  XIII  s.  IIII  d. 

Item,  it  is  to  be  remembred  where  the  saide  Shippes  shulle  be 
hadde ;  First,  at  Bristowe,  the  Nicholas  of  the  Toure  and 
Katerine  of  Burtons.  Item,  atte  Dertemouthe,  the  Spaynyshe 
ship  that  was  the  Lord  Pouns.  Item,  atte  Dertemouth,  Sir 
Phelip  Courteneys  grete  Ship.  Item,  in  the  Porte  of  London 
II  grete  Shippes,  one  called  Trinite,  and  that  other  called 
Thomas.  Item,  atte  Hull,  a  grete  Ship  called  Taverners,  ye 
name  Grace  Dieu.  Item  atte  the  New  Castell,  a  grete  Shippe 
called  the  George.  Item,  VIII  Barges  to  be  had  ;  first,  of  Herry 
Ruffell  of  Weymouth,  a  Barge.  Item  of  Phelip  Courteney 
Knyght,  1  Barge.  Item  at  Plymouth,  the  Barge  called  Mange- 
leke  in  the  water  of  Saltasshe.  Item,  atte  Wynchelse,  II  Barges, 
one  of  Morefores  called  the  Marie,  and  that  other  pratte  Barge 
called  Trinite.  Item,  of  London,  a  Barge  of  Beaufitz  and 
Bertyns  called  Valentyne.  Item,  of  Saltasshe,  a  Barge  called 
Slugge  Barge.  Item,  of  Falmouth,  a  Barge.  Item,  VIII 
Balingers  First,  atte  Newcastell,  with  the  grete  Ship  there, 
1  Balinger.  Item,  of  Sir  Phelip  Courteneys,  1  Balynger.  Item, 
atte  Fowy,  of  Sir  William  Bonviles,  a  Balynger  called  Palmer. 
Item,  atte  Dovyr,  a  Ballynger  called  Pigfygge,  of  Wardes  and 
Cooks.  Item,  atte  Sandewych,  a  Balynger  of  Hay  wardes. 
Item,  atte  Hampton  a  Baljmger  of  Clyfdons  called  Jaket.  Item, 
atte  Seynt  Ofes,  in  Essex,  a  Balynger.  Item,  of  London  p 
Chirch,  a  Balynger.  Item  atte  Falmouth,  a  Balynger.  Item, 
there  most  be  hadde  IIII  Spynes ;  First,  one  of  Henry  Russell. 
Item,  atte  Hastyng  a  Spynes.    Item,  atte  Dertmouth,  II  Spynes. 


302  ROTULI  PARLIAMENTORUM 

Item,  it  is  thought  that  there  shulde  be  chosen  and  nempned, 
viii  of  Knyghtes  and  worthy  Swyers  of  the  West,  of  the  South, 
and  of  the  North,  so  that  no  Cuntre  shulde  be  dispesid  ;  and 
yerof  the  Kyng  oure  Soveraigne  Lord  chiefe  suche  on  as  hym 
liketh  to  be  a  chief  Capytayne,  and  other  VII  as  the  Kyng  likoth 
of  the  saide  VIII,  for  to  attende  the  saide  chief  Capytayne  ;  so 
that  every  grete  Shippe  have  a  Capytayne  withy nne  borde. 

Item,  it  is  to  be  remembre,  that  the  Kyng  will  gyfif  hem  in 
charge,  be  his  Officers  to  hem  sent,  yt  aU  these  saide  Shippes 
stuffed  and  arrayed  make  their  first  assemble  in  the  Caumbre, 
there  to  obey  suche  rewle  and  governaunce,  as  be  their  Capitayne 
and  undre  Capitayns  shall  to  hem  be  ordeyned,  and  there  moustre 
of  every  Shippe  to  be  sene  by  suche  persones  as  the  Kjmge  will 
depute  therto  be  his  Commission. 

Item,  there  suche  Proclamation  and  Ordenaunce  to  be  made 
and  established  amongs  and  in  the  saide  Navie,  that  none  Shipp 
or  Shippes,  harme  ne  hurt  none  other  Shippe  of  oure  Freendes ; 
where  thorough  any  trouble  or  brekyng  of  pees  myght  falle 
betwene  the  Kyng  our  Soveraigne  Lord,  and  other  of  his  Freendes. 

Item,  it  is  thought  necessarie,  that  if  any  Shippe  or  Shippes 
be  taken  as  Ennemyes,  whenne  the  goodes  in  the  saide  Shippes 
be  brought  into  any  Port  of  this  Land  ;  that  the  godes  ne  the 
Shippes  be  nat  4isperbled  ne  devided,  into  the  tyme  that  it  be 
duly  knowen,  wheder  it  be  Enemyes  goodes,  or  Freendes  godes  : 
Forfene  alwey  that  ye  presse  be  made  withinne  VI  wekes  after 
the  landyng  or  havenyng  of  the  seide  Shippe  or  Shippes  and 
Goodes  so  taken. 

Item,  it  is  to  be  remembred,  how  in  tyme  passid  awners  of 
divers  Shippes,  that  have,  be  commaundement  of  the  Kynges 
Counseill,  sent  their  Shippes  to  the  See,  and  they  nought  sette 
in  their  Shippes  Maisters  ne  Mar3niers,  for  their  mesprision  on 
the  See  were  putte  in  grete  trouble  and  disease.  Wherfore  be  it 
nowe  ordejmed  by  authorite  of  this  Parlement,  that  noone  suche 
awner  of  any  Shippe  at  this  tyme  goyng  to  the  See,  or  here  after 
shall  goe  to  the  See,  for  kepyng  therof,  be  endaungered  or 
disseised,  lesse  thenne  he  be  in  the  See  with  his  Shippe  in  his 
persone,  or  ellis  be  partyner  of  such  goodes  mistaken  ;  and  if  he 
so  be  founden,  yan'  he  to  answere  to  the  partie  that  the  goodes 
be  mystake  of,  to  the  value  thereof  that  comes  to  his  hands,  and 
in  that  caas  he  to  be  beleved  be  his  othe,  and  II  or  III  of  his 
credible  neyghbours  with  hym  swome,  and  so  to  be  acquitte. 
Forthermore  it  is  avised,  yat  if  it  so  be  that  any  of  the  saide 


ROTULI  PARLIAMENTORUM  303 

Shippes  in  this  Ordenaunce  appoynted  be  nat  in  England,  ne  in 
the  Portes  afore  named,  or  mowe  not  be  had,  yt  yanne  it  shall 
be  lefuU  to  the  said  chief  Capytayne,  for  to  chefe  be  his  wisdome, 
an  other  Shipp  or  Shippes  like  to  hem  that  lakketh  of  thoo  that 
afore  ar  named  ;  and  that  every  under  Capitayne,  in  the  absence 
of  the  chief  Capitayne,  have  power  in  the  same  fourme,  and  in 
caas  like,  for  suche  Shippes  as  shall  be  necessarie. 

Item,  it  is  thought,  that  the  Goodes  and  Shippes  that  mowe 
happe  to  be  taken  by  hem,  or  by  any  of  hem,  in  the  See  of  our 
Enemys,  shall  be  departed  in  the  fourme  aftre  sewyng.  That  is 
to  say,  the  Maisters  of  the  Shippes,  Quarter  Maisters,  Shipmen 
and  Soudeours,  shul  have  half  the  Shippes  and  Goodes  so  taken 
and  oyere  half  of  the  Shippes  and  Goodes,  shall  be  departed  in 
three,  of  the  whiche  the  awners  of  the  Shippes,  Barges  Balingers 
and  Spinaces,  shall  have  II  partes,  and  the  chief  Capitain  and 
the  under  Capitayns  the  third  parte  ;  of  the  whiche  thrid  parte,* 
the  chief  Capitayne  shall  have  double  that  oon  of  the  under 
Capitayns  shall  have. 

Item,  that  the  IIII  the  parte  of  the  half  XV  me  now  graunted, 
after  the  fourme  of  exception  and  deduction  in  the  same  Graunt, 
and  after  the  rate  therof  according  the  deduction  of  suche  perte 
of  a  XV  me  by  Knyghts  of  the  Shire  last  made  and  after  the 
afferaunt  of  the  exceptions  in  this  Graunt,  be  arrerid  by  the 
CoUectours  therto  to  be  nevend,  and  by  hem  payed  into  the 
Kings  receipt,  at  the  moys  of  Estre  next  comyng  ;  and  that 
somme  to  be  delivered  by  the  Tresourer  of  England,  to  the 
Chief  Capitayn  and  undre  Capitayns  by  the  Kyng  to  be  nevend 
by  Endenture  bitwene  the  Kyng  and  the  seid  Capitayns  yerof 
to  be  named,  for  the  seid  Governaunce  and  keping  of  the  See, 
and  to  noon  oyere  use  ;  whiche  kepyng  shal  begynne  the  XVth 
day  of  May  next  comyng  and  endure  to  the  XVth  day  of 
November  yan  next  sewing.  And  yan,  at  ye  first  day  of  March 
next  aftre  the  said  XVth  day  of  November  the  keping  of  the 
See  begin  in  manere  and  fourme  as  is  aboveseid,  to  endure  for 
the  term  of  VIII  monethes  yan  next  f olwyng  ;  the  paiement 
therof  to  be  made  of  the  Tonage  and  Powndage  in  this  Parlement 
graunted,  by  the  Tresorer  of  England  for  the  tyme  beyng,  to 
such  Capytayne  and  Capitaynes  as  by  the  Kyng  shall  be  nevend, 
after  the  rate  of  the  seid  VI  monethes,  by  Endenture  bitwene 
the  Kyng  and  the  seid  Capitayns  to  be  made  ;  and  so  forth  ye 
next  yere  folowyng  in  slembable  wise  alwey  forsayn,  thatyf  ye 
seid  Capitains  or  any  of  theym  or  any  of  their  meyn  undre  them, 
absent  himself  out  of  the  See  any  of  the  monethes  or  part  of  hem 


304  ROTULI  PARLIAMENTORUM 

aforesaid,  that  yanne  he  or  they  be  disalowed  so  moch  of  their 
Wages  as  the  rate  comes  to  for  the  tyme  oi  her  absenc'  ;  lesse 
yan  the  seid  Capitain  or  Capitains  or  ony  man  under  yeym  so 
absent  leve  a  suffisaunt  man,  or  so  many  suffisant  men  in  there 
stede,  for  the  tyme  of  their  absence. 

Item,  that  noon  of  the  seid  Vesselles,  nor  noon  oyere  Vessel 
to  be  had  in  stede  of  any  of  hem  attending  to  the  same  Viage, 
be  arrested  for  any  Viage  of  oure  Soveraign  Lord  ye  Kyng, 
appoynted  or  to  be  appoynted,  nor  in  no  oyere  use,  during  the 
yeres  aforeseid. 

Soit  fait  come  il  est  desire,  durant  le  temps  de  la  sauf  garde 
de  le  Meer  deins  especifie. 


INDEX 


Angary,  71  n. 
Anson  :  on  Prerogative,  44. 
Abms,  duty  to  provide,  137. 
Army  :  see  under  Transport. 

Barracks,  36. 

Berkley  :  in  shipmoney  case,  67. 

Blaokstone  :  on  Prerogative,  44  ; 

purveyance,     50 ;      Petition    of 

Right,  127. 
Bruce's  Report,  31,  138,  195,  247. 
Bulwarks,  12,  49,  50,  68,  69,  205, 

211,  221. 
Burke  :  on  crisis  of  1757,  15. 

Chatham  :  on  crisis  of  1757,  15. 

Chattels,  requisition  of,  28,  97, 
146,  165. 

Cheshunt  Water,  75,  290. 

Chitty  :  on  Petition  of  Right,  127. 

Clarendon  :  on  shipmoney,  61. 

Commissions  for  executing  Acts, 
20,  229. 

Compensation  under  local  Acts, 
17,  21 ;  for  removal  of  buildings, 
29 ;  for  disturbance  of  access, 
76,  214 ;  under  Defence  Act, 
1842,  36-8;  refusal  not  *  neces- 
sary ',  80,  175 ;  right  to  deter- 
mine tribunal  by  Regulation, 
100 ;  mandamus  to  enforce, 
134 ;  right  foimded  on  Statute, 
17-41,  135,  188  ;  property  other 
than  land,  136-57 ;  imder  In- 
demnity Act,  161  ;  liability  not 
a  '  restriction  ',  88,  194,  199. 

Consent  :  taking  land  by,  18,  27, 
39 ;  in  relation  to  purveyance, 
54,  n. ;  no  consent  in  Case,  132, 
191. 

Courts  :  functions,  xv,  82,  94,  96 ; 
exclusion  of  jurisdiction,  102. 

Coventry  :  address  to  Judges,  60. 

Crooke:  on  shipmoney,  xxiiij65,147. 

Crown  :  contentions  formulated,  4 ; 
when  bound  by  statute,  108,  foil. 
See  Prerogative. 

Damage  :  by  erection  of  buildings, 
29;      stopping    gateways,     76; 


assessment  under  Act  of  1767, 
236.    See  Compensation. 

Dartmouth  :  on  Prerogative,  105, 

Defence  Act,  1798:  22,  24,  25. 
142,  173,  215,  253 ;  proceedings 
in  Parliament,  24,  31 ;  provi- 
sions, 25-8. 

Defence  Act,  1803 :  22,  142,  172, 
213,  215  ;  provisions,  25-8. 

Defence  Act,  1804:  11,  23,  29, 
35,  174,  215  ;  provisions,  36. 

Defence  Act,  1842 :  35-41 ; 
amendments,  10 ;  provisions, 
36 ;  applies  in  time  of  war,  39, 
172,  184,  193,  196,  201,  216; 
compared  with  legislation  of 
1798  to  1804,  23,  38;  with 
Defence  of  the  Realm  Act,  81  ; 
reference  to  Prerogative,  109. 

Defence  of  the  Realm  Act, 
1914  :  xvi,  78-104,  175, 184,  192, 
199  ;  provisions,  83  ;  '  restric- 
tions ',  40,  79,  88,  175,  184,  193, 
199, 217;  regulations,  xvii,  79,  83, 
87,  91,  97,  99,  101,  184,  186,  192, 
199  ;  compensation  not  referred 
to,  92,  217 ;  general  considera- 
tions, 94 ;  conclusions,  101-4. 

Defence  of  the  Realm  Losses 
Commission,  xviii,  89,  190,  197 ; 
under  Indemnity  Act,  164. 

Dicey  :  on  prerogative,  44 ;  on 
Acts  of  Indenmity,  158. 

Documents  :  see  Historical  Evi- 
dence. 

Dutch  Wars,  73. 

Executive  :  delegation  of  powers 
to,  XV,  81 ;  discretion,  95,  97, 102. 

Facts  of  Case,  1-9;  Suppliants' 
case  not  founded  on  consent,  132. 

Fiat  to  Petition  of  Right,  120. 

Finch  :  in  shipmoney  case,  67. 

Food  Controller,  103. 

Fortifications  :  Chatham,  14,  15, 
16,  20,  73,  229,  281 ;  Greenwich, 
15  ;  Harwich,  14,  281  ;  Hull,  12, 
74,  284,  285,  286;  Kent,  18, 
295;    Milford,    15;     Plymouth, 


306 


INDEX 


13,  15,  16,  19,  74,  229,  279; 
Portsmouth,  13,  15,  16,  20,  74, 
226,  229,  279;.  Sandgate,  77, 
293  ;  Sheemess,  19  ;  Southamp- 
ton, 18  ;  Sussex,  18  ;  Thames, 
19 ;  Ireland,  173. 
Foster,  Sir  M.  :  on  impressment, 
152. 

Gunpowder  :  Greenwich  and  Pur- 
fleet  magazines,  15,  236 ;  Chil- 
worth  Mills,  278;  Cheshunt 
Water,  75,  213,  290 ;  mills  im- 
pressed, 73,  278,  279  ;  importa- 
tion, 58. 

Hampden  :  assessed  for  shipmoney, 
61. 

Historical  Evidence,  xxii,  72-8  ; 
conclusions,  "77,  171,  204,  213 ; 
onus  of  proof,  78. 

HoLDSWORTH  :  on  right  to  requi- 
sition ships,  153. 

Home  Secretary  :  duties  in  rela- 
tion to  internment,  96  ;  Petition 
of  Right  to  be  submitted  to, 
119. 

HuTTON  :  on  shipmoney,  66. 

Impressment  :  does  not  exclude 
payment,  73 ;  ships,  59,  148, 
152,  296-304;  men,  56,  152; 
transport,  140,  222,  228;  chat- 
tels, 142,  145,  146. 

Indemnity  Act  of  1920 :  158-67 ; 
object  and  scope  of  former  Acts, 
159  ;  effect  on  Petition  of  Right, 
161 ;  measure  of  compensation, 
163. 

*  Indirect  Loss  ',  claims  for,  166. 

International  Law,  requisitions 
in,  71,  204. 

Invasion  :  Cornwall,  12,  220 ; 
Spanish  Armada,  31,  195,  247  ; 
Seven  Years'  War,  16;  Napo- 
leonic Wars,  19,  24 ;  provided 
for  in  Defence  Act,  1842,  39,  174, 
193,  201. 

Ireland  :  fortifications,  23. 

Lands  Clauses  Acts,  38,  133,  219. 

Magna  Carta,  51,  106,  209. 
Maitland  :  on  prerogative,  44. 
Mandamus  :    not  against   Crown, 
134. 


Manning  :    on  Petition  of  Right, 

127. 
Mariners  :  impressment,  152. 
Military     Service  :      debate    in 

1803,  33 ;   right  to  call  for,  137, 

253. 
Militia,  138,  252. 
Monopolies,  58. 

Napoleonic  Wars,  xvi,  12,  30,  33, 
174  ;  legislation  compared  with 
Defence  Act,  1842,  23,  38; 
ships  not  requisitioned,  155  ; 
prerogative  during,  30-4. 

Navy:  transport  for,  140,  222, 
228. 

Necessity  :  King  as  Judge,  65, 
194 ;  criterion  of  validity  of 
regulations,  82,  93,  94,  101,  109. 

NoY  :   suggests  shipmoney,  60. 

Ordnance  Department,  36,  222, 

228.    8ee  Defence  Acts. 

Parliament  :  authority  necessary 
for  requisitions,  25,  64,  74 ; 
delegation  of  functions,  81  ; 
executive  action  when  Parlia- 
ment not  sitting,  17,  72. 

Petition  of  Right  :  history,  114- 
17 ;  procedure,  117 ;  granting 
fiat,  120;  in  what  cases,  123, 
176;  tort,  125;  title,  126; 
breach  of  contract,  129  ;  statu- 
tory obligations,  131,  189  ;  effect 
of  Indemnity  Act,  161. 

Pitt  :  on  military  service,  33. 

Prerogative,  42-78  ;  not  referred 
to  in  statutes,  17,  109,  171 ;  in 
Napoleonic  wars,  30,  34;  mili- 
tary service,  33 ;  defined,  44, 
105  ;  onus  of  proof,  78  ;  under 
Defence  Acts,  86;  effect  of 
statute,  105-13;  in  litigation, 
111. 

Purveyance,  50 ;  Statutes,  51 ; 
in  relation  to  war,  54 ;  petition 
against,  55  ;  abolished,  58,  139  ; 
later  history,  139 ;  effect  on 
right  to  requisition  ships,  153. 

Restrictions  :  see  Defence  of 
Realm  Act. 

St.  John  :  argument  in  shipmoney 
case,  63. 


INDEX 


307 


Saltpetre  :  a  purveyance,  48  ; 
reference  to  judges,  55 ;  resolu- 
tions, 47  ;  Commissions,  65,  57, 
73,  261-77. 

Selden  :  on  impressment,  152. 

Shipmoney  :  first  writs,  60 ;  ques- 
tions submitted  to  judges,  61 ; 
Clarendon  on,  61  ;  third  writ, 
61 ;  declared  unlawful,  62  ;  St. 
John's  argument,  63 ;  judg- 
ments, 65,  66,  67,  147 ;  conclu- 
sions,  68. 

Shipping  Controller,  99,  103, 
157. 

Ships  :  requisitions  in  early  times, 
59,  148  ;  Holdsworth  on  right  to 
requisition,  153;  Selden,  152; 
Foster,  152 ;  Royal  Proclama- 
tion, August  1914,  156 ;  assess- 
ment of  compensation,  163 ; 
references  in  Rot.  Pari.,  296- 
304. 

Spanish  Armada,  31,  195,  247. 

Spanish  Succession,  War  of,  13. 

Statutes  :  interpretation  where 
existing  rights  affected,  92,  186, 
218  ;  effect  on  Prerogative,  105- 


13,  182,  203,  214 ;    not  a  mere 
record,   106 ;    when  binding  on 
Crown,  108,  172,  182. 
Staundford:  on  Petition  of  Right, 
114,  127. 

Temporary  Occupation,  10,  188, 
209,  213. 

Tort  :  Crown  not  liable,  125,  177  ; 
excluded  where  requisition  law- 
ful, 131,  198. 

Transport  :  in  Stuart  period,  140 ; 
Napoleonic  Wars,  141  ;  Mutiny 
Acts,  141  ;  Army  Acts,  145 ; 
Statutes,  222,  228,  and  see 
Purveyance. 

Use  and  Occupation,  132,  169, 
178-82. 

Vesting  Acts,  22,  229. 
Vienna,  Treaty  of,  23. 

War  Compensation  Court,  167. 
War  Office  Records,  12,  73-7 
277-95. 


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