HOUSE OF LORDS
HOUSE OF LORDS
|- v -
The House took time for consideration.
1921. June 24.
My Lords, the
appellant in this case is the Chief Commissioner of the Dublin
Metropolitan Police. He was the defendant in an action in
which the respondent sued for the detention of 124 l. in cash
and a cheque for 4 l. 15 s. 6 d. The respondent was convicted
of being engaged in illegal drilling and there was found upon
him at the time of his arrest the cash and cheque now
claimed. The respondent is a naturalised citizen of the U.S.A.
and the detention is alleged by the appellant to be an act
of State. A certificate given by the Chief Secretary for
Ireland was put in at the trial and is as follows: "It
appearing that Richard H. Boyle, Inspector of the Dublin
Metropolitan Police, on 1st May 1918, arrested one William
Pedlar (an alien) at Blackrock, co. Dublin, on a Warrant
dated the 1st May 1918, signed by Mr. Swifte, K.C.,
Divisional Justice, for an offence under the Defence of the
Realm Act, and that the said Inspector Boyle searched the
said William Pedlar after said arrest, and that there were
found upon him ( inter alia ) a sum of 124 l. cash and a cheque
for 4 l. 15 s. 6 d. , both of which were taken and detained by an
officer of the Crown (who still detains same) as an Act of
State for the Defence of the Realm and for the prevention
of crime. Now, I, the Right Hon. Ian MacPherson, M.P.,
Chief Secretary for Ireland, in my capacity as a Minister of
the Crown and officer of State and official superior of the said
officer, do hereby formally ratify, adopt and confirm the said
seizure of the said cash and cheque and the detention of same
by the said officer on the grounds aforesaid. Dated this
19th day of June 1919. (Signed) IAN MACPHERSON."
The action was tried before Pim J., with a jury. The learned judge, after argument, directed the jury to find for the defendant. The Divisional Court, consisting of Dodd, Gordon and Moore JJ., dismissed a motion on behalf of the plaintiff that the verdict and judgment should be set aside. The Court of Appeal were divided in opinion. The Master of the Rolls held that the appeal should be dismissed, being of opinion that the plaintiff was in the position of an alien enemy and that no action was maintainable in respect of the seizure of the cash and cheque, as that had been adopted by the Crown as an act of State. Ronan and O'Connor L.JJ., however, held that as a subject of a State at peace with His Majesty, the plaintiff was in the position of a friendly alien, against whom the defence of act of State could not be raised. In accordance with the opinion of the majority of the Court the appeal was allowed and judgment was entered for the plaintiff for 124 l. and the delivery up to him of the cheque.
On the present appeal your Lordships are asked to restore the judgment of Pim J.
The plaintiff was born in Ireland. When very young he went first to Glasgow and afterwards to America, where he was naturalised as a citizen of the U.S.A. in January, 1916. In March of the same year he returned to Scotland and thence to Ireland, and took part in the rebellion of 1916 in Dublin. He was deported to Frongoch and on his release in May, 1917, returned to Ireland and continued to reside there. On May 1, 1918, he was arrested on a charge of illegal drilling. He was convicted and remained in Belfast gaol under sentence for six months. When he was arrested he had with him the money and cheque, which were seized by the police. When he was in gaol his solicitor wrote to the Chief Commissioner asking that the money should be returned to his wife. He was informed by letter of September 2, 1918, that the Chief Commissioner was advised that the money should be retained for the present by the police. The present action was then brought by a writ dated November 15, 1918.
The statement of claim alleged detention and conversion of the cash and cheque and claimed their return and damages.
The statement of defence was delivered on December 18, 1918, and was as follows: "1. The Defendant denies each of the several acts in the Statement of Claim alleged. 2. The Defendant denies that the money or cheque mentioned was, or is, the property of the Plaintiff as alleged. 3. The Defendant says that the said monies and cheque were the property of an illegal association and were in Plaintiff's possession for the illegal purpose of the said association at the time of the acts complained of. 4. The Plaintiff is an alien and the said monies and cheque were taken and detained by an Officer of the Crown by the direction of the Crown as an Act of State for the Defence of the Realm and for the prevention of crime, which is the detention and conversion complained of." The following particulars were delivered under para. 3: "The plaintiff was a member and organiser of an association by whatever name known whose objects were to arm and drill disaffected persons in Ireland in order to promote resistance to lawful authority by force and violence, and the monies mentioned were the monies of said association in Plaintiff's possession for the purpose of organising the arming and drilling of the members of the association as aforesaid."
A motion was made on behalf of the plaintiff to have the words alleging that the plaintiff was an alien struck out from para. 4 of the defence. The substantial question which this motion was intended to raise in a summary way was that it was immaterial that the plaintiff was an alien, as he was in Ireland and a citizen of a State at peace with His Majesty. This motion was refused by order of January 28, 1919.
On February 11, 1919, the plaintiff's reply was delivered joining issue and submitting that para. 4 of the defence was bad in law.
The certificate of the Chief Secretary which I have already set out was given on June 19, 1919, and the trial took place before Pim J., with a common jury, on July 3.
The plaintiff was called as a witness. He proved the facts as to his history which I have already stated. In the course of his evidence he stated that he was a member of the Clan na Gael; that the money did not belong to that or to any other organisation; that the 100 l. was a grant or loan made to him by the National Aid Association, which was an organisation for assisting those who had taken part in or were victimised for the part they had taken in the rebellion of 1916; that the grant was made by cheque, which he cashed, getting in exchange a banknote for 100 l. , part of the money taken by the police; and that the other money seized formed part of his earnings in business in Ireland. He admitted that he had been engaged in drilling and that he had advised the men to have bicycles, and that he did say that "they might be able to get arms, that there were chances."
The Crown Solicitor was called, and produced the certificate of the Chief Secretary above set out.
Pim J. asked the jury whether the sum of 124 l. , or any part of it, was the property of the plaintiff. The jury answered "Yes" as to the 24 l. , but could not agree as to the balance of 100 l. As directed by the learned judge, they found a verdict for the defendant, but in the Court of Appeal, as I have said, judgment was entered for the plaintiff.
The case turns upon the question whether the defence of "Act of State" is available as against the present plaintiff. Para. 3 of the defence was not proved.
It is the settled law of this country, applicable as much to Ireland as to England, that if a wrongful act has been committed against the person or the property of any person the wrongdoer cannot set up as a defence that the act was done by the command of the Crown. The Crown can do no wrong, and the Sovereign cannot be sued in tort, but the person who did the act is liable in damages, as any private person would be.
This rule of law has, however, been held subject to qualification in the case of acts committed abroad against a foreigner. If an action be brought in the British Courts in such a case it is open to the defendant to plead that the act was done by the orders of the British Government, or that after it had been committed it was adopted by the British Government. In any such case the act is regarded as an act of State of which a municipal Court cannot take cognizance. The foreigner who has sustained injury must seek redress against the British Government through his own Government by diplomatic or other means. This was established in 1848 in the well-known case of Buron v. Denman.(1) The defendant in that case, Captain Denman, was a British naval officer engaged on the coast of Africa in measures for the suppression of the slave trade. The plaintiff was a Spaniard engaged in that trade. The acts in respect of which the
action was brought were the destruction by the defendant of the barracoons in which the plaintiff kept slaves for shipment and the release of the slaves. The case was tried at Bar, and the summing up was delivered by Parke B. He laid down the law with regard to acts of State as I have above stated it, and the jury found for the defendant.
This doctrine has no application to any case in which the plaintiff is a British subject. If authority be wanted for the proposition that a British subject's right of action for any wrong to his person or property is not subject to this qualification with regard to acts of State it is enough to refer to the case of Walker v. Baird.(1) In that case the officers of the Crown had, with the authority of the Government, seized a lobster factory in Newfoundland belonging to British subjects. An action was brought in the Courts of Newfoundland against the officers engaged. The Superior Court of Newfoundland held that, in an action of this description, in which the plaintiffs are British subjects, for a trespass within British territory in time of peace, it was no answer to say in exclusion of the jurisdiction of the municipal Courts that the trespass was an act of State. An appeal to His Majesty in Council was dismissed. Lord Herschell said(2)that the suggestion that these acts could be justified as acts of State was wholly untenable.
The cases in which the defence of "Act of State" has hitherto been recognized, have been cases in which the acts complained of were committed out of British territory. The plaintiffs have been foreigners, and no question arose as to their being in any sense subjects of the British Crown, as it might have arisen if the wrongs complained of had been done in British territory. An alien in British territory is normally regarded as a British subject for the time being in virtue of local allegiance, and it is for this reason that in dealing with the defence of "Act of State" it is often said that the act must have been abroad as well as against a foreigner in order that the defence should succeed.
The plaintiff is not a subject of the British Crown, but he
was, at the time of his arrest, within British territory. It was contended for him that he must be treated for the purposes of the present case as a British subject, inasmuch as he was at the time resident in Ireland. Hale, in his Pleas of the Crown (vol. i., p. 542), after discussing a statute of Henry VIII. giving to any of the King's subjects whose goods have been taken away the right to a writ of restitution on conviction of the thief, says: "Though the Statute speak of the King's subjects, it extends to aliens robbed; for though they are not the King's natural born subjects, they are the King's subjects, when in England, by a local allegiance." The subject of a State at peace with His Majesty, while permitted to reside in this country, is under the King's protection and allegiance, and may be convicted of high treason in respect of acts committed here.
The proposition put forward on behalf of the appellant was that residence in this country does not put an alien in the same position as a British subject in respect of acts of State of the Government, and does not entitle him to bring an action against a tortfeasor, whose act has been ordered or adopted by the Government.
I am quite unable to accept this proposition as a correct statement of our law. On such a view of the law aliens in this country instead of having the protection of British law would be at the mercy of any department entitled to use the name of the Crown for an "Act of State." It would have effects upon aliens in this country of a far-reaching nature as to person and property. If an alien be wrongfully arrested, even by order of the Crown, it cannot be doubted that a writ of habeas corpus is open to him, and it would be surprising if he has not the right to recover damages from the person who has wrongfully imprisoned him. He has corresponding rights as regards his property. I am unable to find any ground either of principle or of authority for a proposition so sweeping, which would profoundly modify the position in this country of many aliens whose conduct, while resident here, has been quite without reproach.
But it does not necessarily follow that an alien who abuses for treasonable purposes the permission of the Crown to reside in this country, will still be at liberty to claim the rights of a British subject as against the servants of the Crown who have carried out any act of State affecting him or his property. While he is in this country the alien as a matter of law is in the allegiance of the Crown, and he cannot get rid of this "local allegiance" so as to acquire while here any immunity for crimes committed against the State. But it would be a somewhat startling proposition that an alien who is engaged in acts of rebellion can claim as against the Crown or its agents that he enjoys the immunity of a British subject in respect of acts of State. While repudiating all the obligations can he retain as between himself and the Crown all the benefits attaching to the status of a British subject? One who is by birth or by naturalisation a British subject and commits treason still, of course, remains for all purposes a British subject, and must be treated as such in every respect. But the alien in this country remains an alien still, although for the time also a British subject in virtue of local allegiance. If he be guilty of treasonable acts, can he be permitted to assert for his own benefit, against the servants of the Crown, the status of a subject of the Government which he is endeavouring to subvert?
Prima facie the subject of a State at peace with His Majesty is, while resident in this country, entitled to the protection accorded to British subjects, but if it be proved in the Court before which the question arises that the alien is by overt acts showing that he is in active hostility to the Government, though he does not thereby lose the protection of the law for his person and property as against private individuals, can he further claim all the privileges of a British subject as against the Crown and its servants?
These questions may arise in some other case. They cannot be decided in the present. I have touched upon them to show that the decision of the Irish Court of Appeal in this case does not necessarily involve consequences which might be described as "fantastic." But no such defence has been attempted in the case now under appeal. There is no allegation in the defence that the plaintiff was concerned in treasonable acts while in Ireland. Para. 4 of the defence is confined to the assertion that he is an alien, and is bad in law. This is not a mere matter of pleading. We were informed by the counsel for the appellant that he had advisedly taken up the position that an allegation of alienage was a good defence to an action in respect of an act of State in Ireland. There may have been serious difficulties which prevented the defendant from taking on himself the burthen of proving treasonable acts by the plaintiff while in Ireland. But the defence of act of State cannot be made good as to acts in the King's Dominions on a bare averment that the plaintiff is an alien.
It follows that this appeal must be dismissed with costs.
When a wrong has been done by the King's officer to a British subject, the person wronged has no legal remedy against the Sovereign, for "the King can do no wrong"; but he may sue the King's officer for the tortious act, and the latter cannot plead the authority of the Sovereign, for "from the maxim that the King cannot do wrong it follows, as a necessary consequence, that the King cannot authorize wrong": Tobin v. The Queen(1); Feather v. The Queen.(2)On the other hand, where the person injured is an alien resident abroad, the above rule does not apply; and if the act causing the injury is adopted by the Sovereign as an act of State, the alien is without redress except by diplomatic action taken through the Government of his own country: Buron v. Denman(3); Secretary of State for India v. Kamachee Boye Sahaba.(4)
But there is a third case - namely, where the person aggrieved is an alien ami resident here; and I think that it is the established law that such a case falls within the first and not within the second of the above categories. In early times an alien had no rights in public law, and in private law his rights were much restricted. It was laid down by Littleton (s. 198) that an alien could bring no action, real or personal, but as regards an alien ami this proposition was disputed by Coke, who said: "In this case the law doth distinguish betweene an alien, that is a subject to one that is an enemy to the King, and one that is subject to one that is in league with the King; and true it is that an alien enemie shall maintaine neither reall nor personall action, , that is, untill both nations be in peace; but an alien that is in league, shall maintain personall actions; for an alien may trade and traffique, buy and sell, and therefore of necessity he must be of ability to have personall actions; but he cannot maintaine either reall or mixt actions": Co. Litt. 129 b . Certainly Littleton's rule was not recognized by the law merchant or in Chancery; and before the end of the sixteenth century it was established that at common law an alien friend could own chattels and sue on a contract or in tort in the same manner as a British subject: Dyer 2 b .No doubt a friendly alien is not for all purposes in the position of a British subject. For instance, he may be prevented from landing on British soil without reason given: Musgrove v. Chun Teeong Toy(1); and having landed, he may be deported, at least if a statute authorizes his expulsion: Attorney-General for Canada v. Cain(2); and see In re Adam.(3) But so long as he remains in this country with the permission of the Sovereign, express or implied, he is a subject by local allegiance with a subject's rights and obligations: Hale's Pleas of the Crown, vol. i., p. 542; Calvin's Case(4); De Jager v. Attorney-General of Natal(5); Porter v. Freudenberg: per Lord Reading C.J.(6),
including the right to sue the King's officer for a legal wrong.
Some observations by Lord Kyllachy in Poll v. Lord Advocate(1),if taken generally, might appear to be inconsistent with this view; but they were directed to the case of an alien who had been prevented from landing in Scotland and not to that of an alien resident there.
Further, an alien resident in this realm is entitled by statute to hold personal property here in the same manner in all respects as a natural-born British subject: British Nationality and Status of Aliens Act, 1914, s. 17; and it would be a serious derogation from that right if it were held that his property might be seized by an agent of the Crown without legal authority and without redress.
The above observations are sufficient to cover the present case, which your Lordships were invited to determine on broad lines. If it were necessary to go into the particular facts of this case, it would have to be considered whether the seizure by a police officer of money found on a person arrested within the realm can properly be described, even though ratified by a Minister, as an "act of State." It has been said that such an act must be done outside British territory: Cobbett's Leading Cases, vol. i., p. 18; see Musgrave v. Pulido(2), and again that the expression "act of State" denotes "a catastrophic change constituting a new departure": per Moulton L.J., in Salaman v. Secretary of State for India(3); but it is unnecessary in the present case to determine whether the meaning of the term is so restricted. It is enough to say that in this case the defence of "an act of State" cannot prevail.
I should add that the judgment of O'Connor M.R. in the Court of Appeal was mainly founded upon the view that the right of a resident alien to protection is contingent on his observing the duty of allegiance while in the realm, and that the respondent, having been guilty of treasonable acts, had thereby forfeited his right to the protection of the King's
Courts. But this question was not raised in the defence, and (either for that reason or because a decision on the wider question was desired) was not seriously argued in your Lordships' House, and accordingly I think it best to express no opinion upon it.
For the reasons given above I am of opinion that this appeal fails and should be dismissed.
The right relied upon was the right by virtue of an act of State, and for the defence of the realm to take possession of and detain the respondent's property. Observations, therefore, as to absence of any right in the Crown to confiscate the property of a subject or of a friendly alien living within the realm, or as to the necessity for inquisition and office found to entitle the Crown to the ownership of property appear to me to be rather irrelevant.
It is on the authorities quite clear that the injury inflicted upon an individual by the act of State of a sovereign authority does not by reason of the nature of the act by which the injury is inflicted cease to be a wrong. What these authorities do establish is that a remedy for the wrong cannot be sought for in the Courts of the sovereign authority which inflicts the injury, and that the aggrieved party must depend for redress upon the diplomatic action of the State, of which he is a subject.
The best definition, I think, of an act of State, as well as the descriptions of the consequences flowing from it, is that given in the judgment of Lord Kingsdown in the case of Secretary of State for India v. Kamachee Boye Sahaba.(1)
In that case, the Rajah of Tanjore, a native independent sovereign, who was, by virtue of certain treaties, under the protection of the East India Company, died without leaving issue male. Thereupon, the East India Company, in exercise of their sovereign power and in trust for the British Government, seized the Raj of Tanjore and the whole property of the deceased rajah as an escheat, on the ground that the dignity of the raj was extinct for want of a male heir, and that this property lapsed to the British Government. It was held first, as it was held in Buron v. Denman(1), that an act done by an agent of the Government, though in excess of his authority, on being ratified and adopted by the Government, was of the same authority as if it had originally been directed by the Government, that the effect of the ratification is, in the language of Parke B. in Buron v. Denman(2),this, that it only leaves a remedy against the Crown (such as it is), and exempts from all liability the person who commits the trespass, and, second, that the seizure made by the British Government acting as a sovereign power through its delegate, the East India Company, was an act of State to inquire into the propriety of which a municipal Court had no jurisdiction. Lord Kingsdown, in delivering the judgment of the Privy Council, said(3): "Acts done in the execution of these sovereign powers were not subject to the control of the municipal courts, either of India or Great Britain." He cites several authorities in support of this proposition, and then proceeds: "The next question is, what is the real character of the act done in this case? Was it a seizure by arbitrary power on behalf of the Crown of Great Britain of the dominions and property of a neighbouring State, an act not affecting to justify itself on grounds of municipal law? Or was it, in whole or in part, a possession taken by the Crown under colour of legal title to the property of the late Rajah of Tanjore, in trust for those who, by law, might be entitled to it on the death of the last possessor? If it were the latter, the defence set up" ( i.e ., that the seizure was an Act of State), "of course, has no foundation."
He then proceeds: "If there had been any doubt upon the original intention of the Government, it has clearly ratified and adopted the acts of its agent, which according to the principle of the decision in Buron v. Denman(1) is equivalent to a previous authority. The result, in their Lordships' opinion, is, that the property now claimed by the Respondent has been seized by the British Government, acting as a sovereign power, through its delegate the East India Company; and that the act so done, with its consequences, is an act of State over which the Supreme Court of Madras has no jurisdiction. Of the propriety or justice of that act, neither the Court below nor the Judicial Committee have the means of forming, or the right of expressing if they had formed, any opinion. It may have been just or unjust, politic or impolitic, beneficial or injurious, taken as a whole, to those whose interests are affected. These are considerations into which their Lordships cannot enter. It is sufficient to say that, even if a wrong has been done, it is a wrong for which no Municipal Court of justice can afford a remedy."
That statement has been many times approved of, especially in Musgrave v. Puledo(2) and Cook v. Sprigg.(3)
In this latter case the paramount Chief of Pondoland had granted certain valuable concessions to the plaintiffs, including mineral rights and forest lands, certain railway and trading rights, etc. The grantees had spent large sums in developing the property so granted. Pondoland was annexed by Her Majesty Queen Victoria, and the action was brought against the Prime Minister of Cape Colony for a declaration that as against the Crown the plaintiffs were entitled to the property so granted to them, and for 5000 l. damages sustained by them by reason of the defendant's interference with them in the exercise and enjoyment of their claimed rights.
Lord Halsbury delivered the judgment of the Judicial Committee, composed of Lords Watson, Hobhouse, Macnaghten and Morris and himself. He said(4): "It is a
well-established principle of law that the transactions of independent States between each other are governed by other laws than those which municipal courts administer. It is no answer to say that by the ordinary principles of international law private property is respected by the sovereign which accepts the cession and assumes the duties and legal obligations of the former sovereign with respect to such private property within the ceded territory. All that can be properly meant by such a proposition is that according to the well-understood rules of international law a change of sovereignty by cession ought not to affect private property, but no municipal tribunal has authority to enforce such an obligation. And if there is either an express or a well-understood bargain between the ceding potentate and the Government to which the cession is made that private property should be respected, that is only a bargain which can be enforced by sovereign against sovereign in the ordinary course of diplomatic pressure."
He then quotes with approval the second passage from Lord Kingsdown's judgment which I have already quoted.
The last words of Lord Halsbury's judgment clearly suggest that the Government of this country cannot assert as a defence against one of their own subjects that an act done to the latter's injury was an act of State, since such a subject clearly could not rely on his own sovereign bringing diplomatic pressure against himself to right the subject's wrong. In conformity with this principle it was held in Walker v. Baird(1) that where the plaintiffs are British subjects in an action for trespass committed within British territory in time of peace it is no answer that the trespass was an act of State, and that thereby the jurisdiction of the municipal Courts was ousted. And even where the person aggrieved was an independent rajah, against whom the East India Company made war, and having made him prisoner, seized his property, it was apparently considered by Sir John Romilly M.R., in Ex-Rajah of Coorg v. East India Company(2), that the company, notwithstanding that this act was an act of State,
could have been sued in respect of any property seized by them which belonged to the rajah in his private capacity as his personal property and not in his character of rajah.
The case of Sirdar Bhagwan Singh v. Secretary of State for India(1) is a good example of a case falling within the second member of Lord Kingsdown's definition of an act of State. The question remains whether a friendly alien resident within Great Britain with the implied permission and under the protection of the Sovereign is in respect of acts of State in the same position as a British subject, with many of whose rights he is under the existing state of the law undoubtedly clothed.
The following three Irish cases, in each of which the plaintiff was a British subject, would at first sight appear to establish that an act of State can be pleaded by the Crown as a defence to an action brought by a subject for a wrong done to him. The cases are Napper Tandy v. Lord Westmoreland(2); Luby v. Lord Wodehouse(3); and Sullivan v. Earl Spencer.(4) In the second of these cases it was urged, and apparently to some extent admitted, that the first was badly reported. I therefore confine my remarks to the second and third of them. The second was an action of trespass brought against the Lord-Lieutenant (a Viceroy, not as in Musgrave v. Pulido(5) merely a Governor) while he held that position for an act of State alleged to have been directed by him personally in discharge of the duties of his office. The third was an action for assault, also brought against a Lord-Lieutenant personally while he was Lord-Lieutenant for injuries received by the plaintiff in the dispersal of a public meeting which it was alleged the Lord-Lieutenant had in discharge of the duties of his office personally directed to be dispersed. In each case it was decided that an action cannot be brought in an Irish Court against an existing Irish Viceroy personally for an act done by him while he was Viceroy in the discharge of the duties of his office, and the
writ was in each case ordered to be taken off the file. The cases turned upon the fact that the Lord-Lieutenant was sued personally and were decided on the ground that he could not be so sued for his administrative act in the Court of the country of which he was the Viceroy. I do not think, therefore, that these cases are in conflict with Walker v. Baird.(1)
By the common law of this country an alien enemy has no rights. He could be seized or imprisoned and could have no advantage from the laws of this country. He could not obtain redress for any wrong done to him in this country: Sylvester's Case.(2) The Crown may no doubt grant a licence to an alien enemy to reside in this country, which imports a licence to trade here, but in the absence of such a licence the property of an alien enemy may be seized for the use of the Crown: The Johanna Emilie.(3) But while in this country with a licence any alien enemy may bring an action: Wells v. Williams(4); Janson v. Driefontein Mines.(5)A mere non-interference with an alien enemy does not imply a licence to reside and trade. It is necessary for him to show that he resides in this country with the full knowledge and sanction of the Government: Boulton v. Dobree.(6) Aliens, whether friendly or enemy, can be lawfully prevented from entering this country and can be expelled from it: 1 Blackstone, 259; Attorney-General for Canada v. Cain.(7) And at any time the Crown may revoke its licence expressed or implied to an alien to reside: The Hoop.(8) In Vattel, Book 2, s. 108, it is stated that a friendly alien can at any time leave the country, the Government have no right to detain him, except for a time and for very particular reasons, as, for instance, the apprehension in war, lest such foreigners acquainted with the state of the country and of the fortified places should communicate knowledge to the enemy.
A friendly alien resident in this country can undoubtedly
be prosecuted for high treason: De Jager v. Attorney-General of Natal(1), because it can then be averred that he acted contra ligentiæ suæ debitum: Calvin's Case.(2)
For the same reason an alien enemy can be prosecuted for high treason if he has accepted the protection of the Sovereign, but not otherwise: Foster, 185.
I cannot find any authority for the proposition that if the property of a friendly alien resident in this country under the protection of the Crown and not violating in any way the allegiance he owes to the Crown which protects him be seized and detained by an act of State of the sovereign authority the alien cannot sue the officer of the Crown by whose act he is aggrieved in one of the municipal Courts of the country. The major proposition for which the Crown contends, that in such a case the alien could not sue here, is not, I think, sustainable. No authority was cited in support of it and it is not in harmony with the principles laid down in many cases as to the rights of a friendly alien such as I have described. The respondent in the present case is in a position wholly different from the friendly alien whom I have mentioned. The question is does his conduct deprive him of the remedy which would be open to a well conducted friendly alien resident peaceably within the realm?
I concur in the careful judgment of the Irish Master of the Rolls save as to what he says in the last four lines of it. These lines run thus: "I refuse to treat the Plaintiff in this action, who seeks to enforce civil rights, as an alien friend. I treat him as an alien enemy, and, in my opinion, his action ought to be dismissed." I cannot think that under the circumstances of this case the conclusion of the Master of the Rolls is sound.
It is true that the respondent flagrantly violated his allegiance. It is true that he abused the rights which the protection of the King secured for him. It is true that he might presumably have been tried for high treason. It is certain that he might have been expelled from the country. But none of those things have been done. The protection to
a resident alien is given by the Crown. The Crown alone can withdraw it. The appellant is still the subject of a State at amity with Great Britain. He does not come within the definition of an alien enemy, and the Crown has given no indication whatever that it has withdrawn his implied licence to reside within this realm. The fact that he has shown himself unworthy of the Sovereign's protection, has abused his privileges and violated his allegiance, cannot, in my view, ipso facto terminate the protection with all the rights which flowed from it which the Sovereign extended to him, or ipso facto withdraw the implied licence which the Sovereign gave to him to reside in this country.
The internment of the respondent was a measure of precaution against the commission of crime or of disloyal action. It was not a punishment for crime that had been committed, and it did not operate as a revocation of the implied licence he had to remain in this country: Schaffenius v. Goldberg.(1)
He states in his evidence, which is uncontradicted, that he took part in the rebellion in 1916 in Dublin. It does not appear that any proceedings were ever taken against him for that crime. It does appear that he was interned in Frongoch (why, is not stated) and was released at Christmas, 1916, that he returned to Ireland in March, 1917, and was again deported, this time to Oxford; that he was released in May, 1917, returned to Ireland, and after an entire year's residence there, was arrested in May, 1918, for illegal drilling, and was prosecuted, convicted and sentenced to four months' imprisonment, so that from April, 1916, when the Irish rebellion took place, till May 18, 1918, about two years, he was only absent from Ireland for about nine months. During the rest of the time he was resident in Ireland, his presence being apparently as little objected to by any of the Government authorities as that of any ordinary citizen, though they must, I think, be taken to have been aware of his presence.
There was no evidence given to show that he had in his possession the money taken from him for the purpose of procuring the commission of crime. Under these circumstances
I think it is impossible to treat the appellant as an enemy alien resident in this country without the express or implied licence of the Crown. I think, on the contrary, he must be treated as a friendly alien resident in the month of May, 1918, in this country with the implied licence and permission of the Crown, and clothed with all the rights the protection of the Crown gives him.
I cannot find any authority which justifies the taking from a man in the position, which I think the respondent occupied at the date of his arrest, of the money found upon his person and detaining it, and if that be so, it follows, from Porter v. Freudenberg(1), and the many authorities therein cited, that the respondent is entitled to sue for and recover his money,
I therefore think the appeal fails, and should be dismissed with costs.
In 1844 the law, as generally understood, was clear, that an alien amy could bring all personal actions in English Courts, and was liable to actions and to prosecutions as if he were a subject born. He was under certain disabilities
as to holding property, and, of course, was under many political and public disqualifications. It is true that this view of the law mainly rested upon statements made by institutional writers and not upon actual decisions, but they were of high and often of the highest eminence, and their tenor was uniform. That a difference existed between the alien's right of suit, when the Crown could be said to have an indirect concern in the defence, and that right, when the Crown had none, was nowhere decided, for it had never arisen for decision, but, I think, it would be too much to assume that the point can be treated as open now. If your Lordships have now the power to declare the law to be subject to an exception, hitherto unnoticed or unsuspected, and if all the authoritative statements of it made since the Stuarts first came to the throne have been unconsciously defective and incomplete, I am sure that it is a power not to be exercised except under the constraint of convincing and unanswerable argument.
The question has been treated very ingeniously as depending on the legal theory, which underlies the rights of action of the alien amy, such as they are, and their wide scope is admitted. As a judicial reason for recognizing the right of the alien amy to the same position before a Court as that of a subject, in so far as the defence of his rights may require, I think Lord Coke's words are entirely satisfactory - "an alien that is in league shall maintain personal actions; for an alien may trade and traffic, buy and sell, and therefore of necessity he must be of ability to have personal actions." How far, as a commentary on the text of Littleton (s. 198), this represents the law or the reason for it in Littleton's time is another matter, but, taking the law as he found it in his own, I think Lord Coke gives a better explanation of it than any other. No writer or judge, so far as I know, has ever advanced the appellant's theory - namely, that the real origin of these rights is to be found either in the grace of the Crown, permitting aliens to sue subjects so long as the Crown does not think fit to intervene but permitting them thus far and no farther, or in some constitutional struggle, quite unrecorded, by which aliens wrung these conditional rights from a reluctant sovereign, but failed to obtain all that subjects had previously obtained.
In 1844 an Act (7 & 8 Vict. c. 66, s. 4) was passed, which enacted that an alien amy "shall and may take and hold, by purchase, gift, bequest, representation, or otherwise, every species of personal property, except chattels real, as fully and effectually to all intents and purposes, and with the same rights, remedies, exemptions, privileges, and capacities, as if he were a natural-born subject of the United Kingdom." By the next section capacity was given to hold lands for twenty-one years. It is plain on the language of this Act (and the history of the legislation fully confirms it) that it was an amending Act, dealing with the two respects in which for private purposes the position of an alien amy was less advantageous than that of a subject born. The Naturalisation Act of 1870 and the British Nationality and Status of Aliens Act, 1914, have since completed this emancipation, giving the alien power to hold and dispose of all kinds of property (British ships always excepted) in the same manner in all respects as a natural-born subject. I think that the Legislature thus recognized a pre-existing equality for private purposes between the alien amy and the subject born, except for those disabilities as regards the holding of property, which it proceeded by successive steps to remove. The Act says, in effect, that this respondent is entitled to hold and dispose of his money, as if he had never ceased to be a British subject; the appellant says that he is not; that, on the contrary, he, the appellant, is entitled to hold it indefinitely, and so to prevent the respondent from disposing of it by delivery; that at most the barren title remains to the respondent as its owner. The result is that, till the Chief Secretary intervened, Pedlar, the citizen of the State of Pennsylvania, held that property in the same manner as Pedlar, the British subject, would have held it, which is what the Act says; but that, after that intervention, he held it quite otherwise - namely, precariously, and only so far as the Crown might suffer him to enjoy it. The point that these Acts do not name the Crown and so do not affect its rights, in my opinion, does not arise. No claim is made here to prevent the Crown from ratifying the respondent's action in detaining the money, but only to prevent the respondent from personally pleading that ratification as an effective defence to a private wrong, which he has committed personally. The rights of the Crown remain unaffected, but their exercise is less beneficial to Colonel Johnstone than might otherwise have been the case. I think that is all.
The language of Lord Kyllachy in Poll v. Lord Advocate(1)was relied on as supporting the appellant's contention, which doubtless in terms it seems to do. The words are "except in a question with its own subjects, the sovereign power - the supreme executive - of every state, must be held to be absolute. .... An alien .... cannot sue the state, or the head of the state; at least he cannot do so in respect of a wrong done or threatened in the national interest," and, more important still, the plea sustained by the judgment was in these words, "no action lies in the courts of this country at the suit of a foreigner, either against the Crown or the servants of the Crown in respect of an act of state by command of Her Majesty's Government." The actual issue raised and decided in that case is not germane to the present appeal. It is not disputed that no alien is entitled as of right to enter the realm, from which it follows that no action lies for excluding him, and neither in Poll's Case(1) nor since has it been said, that by crossing the limit of territorial waters and reaching Aberdeen Harbour for a purpose which the officers of the Crown were instructed to prevent, Poll put himself in a better position than if he had been turned back at the unmarked boundary three miles out to sea. As applied to the present case both the language of the plea, which Lord Kyllachy sustained, and that of his judgment appear to me to be in conflict with the whole current of prior authority.
The appellant relied on Buron v. Denman(2), and in effect
contended that the rule there laid down by Parke B. is equally applicable when the alien amy is resident within the realm at the time of the acts in question and himself suffers them within the realm. They argued, as I understood, that Buron v. Denman(1) shows that the executive has, as against aliens, a general right to commit by its agents what would be actionable wrongs in private persons and, as a necessary consequence, to shelter those agents themselves from liability under the ægis of the Crown's authority. How else, it was asked, could this right be effectually enjoyed? That Buron was injured in a savage part of Africa was an accident. Accordingly it was incumbent on the respondent to show how and when that right became limited to acts done without the realm. No constitutional change could be traced in favour of aliens, either historically or as a development of legal theory, such as that by which the King's Courts assumed or obtained jurisdiction to review the acts of his servants in favour of subjects upon the principle of the maxim that the King can do no wrong.
My Lords, the speculation is interesting but, as I think, fallacious. Buron v. Denman(1) is a case rather of the inability of the Court than of the disability of the suitor. Municipal Courts do not take it upon themselves to review the dealings of State with State or of Sovereign with Sovereign. They do not control the acts of a foreign State done within its own territory, in the execution of sovereign powers, so as to criticise their legality or to require their justification. What the Crown does to foreigners by its agents without the realm is State action also, and is beyond the scope of domestic jurisdiction. As soon as it appeared that it was based on such an act of the Crown, Buron's claim was one which an English Court could not support, although only a subject was made party to the suit. To consider the steps by which long ago the King's Courts held that they had jurisdiction to try such claims against private persons or persons in a private capacity and to require that their acts should be justified not under the ægis of the Crown but under
the shield of the law is, equally with the steps by which they came to entertain any suit by an alien at all, no longer a relevant inquiry. As soon as it is found to be settled, as the law of our Courts, that they are open to aliens as well as to subjects, I think it follows that they are presumably equally open to them, so far, that is, as actions are brought in support of such civil rights as are recognized in aliens from time to time. The foundation of these rights of action is that the Courts have defined their jurisdiction so as to admit them, not that the Crown has granted a right of suit, with or without restriction on the prerogative. A historical inquiry into the steps by which alien friends were admitted to sue in the King's Courts would be of great interest, though I doubt if all the necessary material is yet available. I assume that there was a time when the goods of the alien friend were at the King's mercy. It seems to have been so at the time of the Great Charter, and even in 1295 by command of the King a sheriff seized all the wool and other merchandise of alien traders and kept them as forfeited to the King's use, and all the remedy asserted was an action for the return of the price, which the aliens had paid to the English subjects, who had sold the wool (Select Cases before the King's Council, Selden Society, 1918, p. 13). From this to Calvin's Case(1)is a far cry, but until the appellant can establish that the alien's right to bring the police officer to book is in the nature of a grant by the Crown or a derogation from the prerogative, the inquiry is of historic interest only.
It is to be observed that the form which the right of the Crown took in Buron's Case, like the plea in the present case, is a right to legalise a wrong, that is to say, a right not merely to shelter its servant from the consequences of his wrong, as might be done by pardoning him after conviction for a crime, but by its ratification to make that right which had been done as a wrong. Had Captain Denman burnt Buron's barracoons under a prior command, Buron would all along have stood face to face with the Crown, and if he was to sue at all must have sued the Crown. In an English Court that
cannot be done. For action taken abroad the Crown would not be in the position of being obliged to shelter its servant but would be unassailable in respect of its own act, and no theory of a grant by the Crown of access to the Courts would touch the point, for such a grant goes only to admitting the alien to be heard not to subjecting the Crown itself to the jurisdiction. When admitted to sue in the Courts the alien would get no higher right than the subject and the subject cannot sue the Crown, but why should he get any less right?
The appellant also laid some stress on a narrower contention - namely, that, in this case at any rate, Pedlar's hostile attitude towards the authority of the Crown and the peace of the realm disentitled him to occupy the position of a subject, if he would otherwise have enjoyed it in this litigation. Reliance was placed, as it was also by O'Connor M.R., on the passage in Calvin's Case(1): "So long as he is here, he oweth unto the King a local obedience or ligeance, for that the one (as it hath been said) draweth the other." On this foundation was raised the argument expressed in the words of the Master of the Rolls: "There is a mutuality in the obligations. .... Local allegiance, which gives the right to the King's protection, must of necessity be the allegiance of the individual and, if the latter refuses it, he has no claim to the rights or privileges which flow from it."
Personally, I do not think that either Lord Coke's language or the maxim to which he refers - "Protectio trahit subjectionem, et subjectio protectionem" - points to such a conclusion. The matter, which he had in hand, is the contrast between ligeantia localis, which begins no earlier than and continues no longer than the presence of the alien amy within the realm, and the lasting allegiance of the subject born. I do not think that Lord Coke conceived of it as quasi-contractual or as involving mutuality. The principle that the Sovereign can refuse the alien permission to enter the realm and that the alien has no right to enter is inconsistent with the existence of any such basis for local ligeance. It is clear that the obligation to obey the laws and that civil and criminal
liability in case of disobedience to them are not dependent on anything in the nature of an actual grant of protection or recognition of the alien's presence or licence to him to remain, and if, his entry having been prohibited, he should contrive to enter surreptitiously and for a time be undetected, I conceive that during that interval he would still be liable to suit or prosecution for his acts done in defiance of the ordinary law. There seems, therefore, to be no foundation for the theory of mutuality, and the argument must really be either that the alien's conduct may give to the Crown a right to forfeit his protection or that it may be so inimical to the peace of the realm as to warrant exceptional action towards him under the Crown's authority and by the hands of its servants, on the principle that "Salus reipublicæ suprema lex," and because the Crown is the supreme defender of the realm.
No such case, of course, is pleaded, but, if defect of pleading were the only difficulty, as the point has been considered in at least one judgment below and was argued at your Lordships' Bar, I think your Lordships would not be bound to refuse to consider it. The plaintiff, regardless of the burden of proof on the pleadings as they stood, gave evidence against himself in chief, which, I imagine, he would not have been compellable to give in cross-examination, evidence which showed that, by his own account of it, he had been a rebel, who might justly have been sent to the scaffold for high treason. This would seem to have been mere bravado on his part, but, if he had thus proved such facts as the appellant requires to raise his contention, I do not think the respondent would have been entitled to have the contention dismissed on the mere ground that it had not been pleaded.
The necessary facts, however, are not proved. Forfeiture, if a tenable basis at all, at least involves some election made on the Crown's behalf to withdraw the alien's protection. There had been nothing of this kind before action brought. Ratification here only amounts to an indirect attempt to deprive the respondent of his money temporarily, a thing which could not have been done, except directly and permanently, when forfeitures were still legal, and since their abolition cannot be done at all. I suppose, further, that, if illegal drilling had been a felony, Pedlar would have been a convict, and an administrator of his property under the Forfeiture Act, 1870, might have been appointed who could and should have brought detinue against the appellant and, being a British subject, would have been at once entitled to succeed. There is, accordingly, no evidence that the Crown has, in fact, forfeited the plaintiff's right to protection in respect of his chattels, even if in law it could do so under any circumstances.
On the other hand, the evidence does not establish the existence in 1918 of any exigency, if such there be, to warrant the exercise of a supposed right to deal with an alien amy of hostile intentions otherwise than in accordance with the law. The prerogative of the Crown for the defence of the realm in time of war is one thing; the powers of the executive for the maintenance of order and the punishment of crime quite another. The difference does not disappear merely because the offence is an offence against public tranquillity, or because it is committed in time of war. The Executive, which holds office and wields power, thanks to the support of Parliament, ought constitutionally to seek wider powers from Parliament, if the existing law is insufficient, nor, if so, would the enactment of wider powers be refused. If it has not taken that course, we must presume that no such necessity had arisen, but that the existing powers sufficed. The acts of the Executive and its officers have to be justified within these powers as they existed. Accordingly, I agree that the appellant's second contention does not arise for decision on the present occasion.
My Lords, I will only add, without purporting to decide the question, that I share the noble and learned Viscount's doubt as to this police action being an "Act of State" under any circumstances. I think I should use a very different term, but as the question does not arise I refrain from attempting to qualify it affirmatively. I agree that the appeal should be dismissed.
When a subject sues another subject for a supposed tort, the defendant cannot plead as a defence that he did the act that is said to be a tort by authority of the King. The maxim "The King can do no wrong" is to be applied to litigation in this way: No one complained of for an act which is said to be a tort can withdraw the cognizance of that claim from the Courts of the land by averring that he did the act by command of the King; because if it was a lawful act, such averment is unnecessary, and if it was an unlawful act, he cannot be admitted to say that he was told to do it by the King. The defence set up in the present case is sometimes called the defence of an act of State. As regards this way of looking at it, I cannot put the matter better or more tersely than as I found it put in one of the reasons given by the successful plaintiffs in their case as respondents before the Privy Council in Walker v. Baird(1): "Because between Her Majesty and one of her subjects there can be no such thing as an act of State." And this proposition was finally accepted in the case of Walker v. Baird.(1)
The next matter, then, that remains for inquiry is whether the subject for this purpose must be a natural-born or naturalised subject or whether the word also comprehends a temporary subject, that is, the citizen or subject of a friendly State residing in this country. As regards such aliens, the rules of international law and the common law of England and Ireland which agrees with international law are, I think, well established. To begin with the alien takes his character from his State. If his State is at war with ours his individual friendliness avails him nothing unless it enures to procure for him the special favour of licence from the King. If his State is in amity with ours he is considered an alien ami even though his personal intentions are hostile. His individual hostility does not entitle him to the character of an
alien enemy. He can be executed for high treason, and is not entitled to be considered as a prisoner of war. By parity of reason neither does his individual hostility disentitle him to the rights conferred by law upon an alien ami, once he has entered this realm with permission from the King.
The King, however, can refuse any alien admission to the realm. This was established by the decision of the Privy Council in Musgrove v. Chun Teeong Toy(1); and that permission may in some respects be conditioned. Every State may, according to international law, make special laws regulating the acts and property of aliens within the realm. By the common law of England and Ireland an alien could not hold real estate, not even chattels real, for more than a short term. The droit d'aubaine existed in France till the Revolution. Most countries, including our own, have from time to time passed Alien Acts.
But an alien ami is never exlex, he is never subject to the arbitrary dispositions of the King. His rights may be limited, but whatever rights he has he can enforce by law just as an ordinary subject can. That is, I believe, both international law and the law of this country. No trace of any other doctrine is to be found in the text books, or in decided cases. The alien ami, once he is resident within the realm, is given the same rights for the protection of his person and property as a natural born or naturalised subject.
The only indication of a difference that I have found is that in Walker v. Baird(2), one of the judges of the Court in Newfoundland, Pinsent J., when delivering his judgment in agreement with that of the Chief Justice that the supposed defence could not avail, treating the case as the argument of a point of law, and assuming for this purpose certain facts, says that he assumes that the plaintiffs in that case are British subjects, as in fact they almost certainly were. On the other hand in Musgrave v. Pulido(3) the successful plaintiff, whose name was wholly Spanish, and against whom security for costs was obtained on the ground that he was
resident in Venezuela, was, I think, for these and other reasons, almost certainly an alien. I may here say that I have had access to and have perused the original cases and appendices, as preserved at the Privy Council, in Musgrave v. Pulido(1) and Walker v. Baird.(2)
From these propositions it would seem to follow that an alien ami complaining of a tort is in the position of an ordinary subject, and that no more against him than against any other subject can it be pleaded that the wrong complained of was, if a wrong, done by command of the King or was a so-called act of State.
From the moment of his entry into the country the alien owes allegiance to the King till he departs from it, and allegiance, subject to a possible qualification which I shall mention, draws with it protection, just as protection draws allegiance.
Then is there anything special in this case? The respondent has indeed no merits. On his own admission, he might have been tried, convicted and executed for high treason. His conduct shows evidence of much hostile feeling. He has since been expelled and rightly expelled from the country. But at the time when his money was taken from him, he was residing in the country, like any other alien, with the tacit permission of the King. He owed temporary allegiance to the King and for that reason could have been tried for high treason; but he was entitled till his trial to ordinary protection.
The case of an alien who would be refused admission to the country if his entrance had been known and who lands surreptitiously and continues to be in the country surreptitiously might give rise to other considerations. This is not such a case.
Also, I can conceive a case where an alien, though a citizen of a friendly State, might land on our shores with private hostile intent, and continue in our country with that same intent so that his whole stay was one transaction, and a continuous act of high treason. To such an alien, suing for
a tort or possibly some particular class of tort, or possibly suing a public officer, it might be pleaded that he was disentitled to sue, or that the act was specially warranted, inasmuch as he had not the ordinary right to protection accorded by the King to an alien ami. I should not, however, like to do more than reserve my opinion till I had before me the precise language of the plea.
But, again, this is not the case before your Lordships' House. Counsel for the appellant desired to rest their case on the fourth paragraph of the statement of defence, and in that paragraph, the only character attributed to the plaintiff is that he was an alien. For the reasons given in the earlier part of my opinion this defence cannot stand.
If it should be necessary, as counsel for the appellant suggest, that in the disturbed state of Ireland there should be special provision in respect of aliens, this must be effected by legislation. As things are this citizen of the United States is entitled to our judgment, and the appeal should fail.
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