21 April 1964
|Burmah Oil Co. (Burma Trading) Ltd|
At delivering judgment on 21st April 1964,—
The pursuers aver that, in accordance with directives from His Majesty's Government in the United Kingdom, the G.O.C. Burma on 3rd February 1942 issued instructions that in order to prevent these and other installations and stocks from falling into the hands of the enemy they should, when necessary, be destroyed and put out of action, because this would deny to the enemy industrial resources and facilities likely to be of use to him. It is said that the view of H.M. Government was that such demolition would be of the greatest service to the general prosecution of the war by Britain and her allies. Preparations for this destruction were supervised by an expert sent from this country. The battle of the Sittang river on 22nd February settled the fate of Rangoon, and orders for evacuation and destruction of installations and property in that neighbourhood were issued on 6th March. These orders were carried out on 7th March and Rangoon was occupied by the enemy on 8th March. Other installations farther north were destroyed between that date and 19th April. The last British forces left Burma on 20th May. It is averred that the principal object of the British forces during this period was to gain time to enable the defences of India to be built up; the demolitions were not intended to secure the defence of Burma. It is admitted that the military situation rendered this destruction expedient for the defence of His Majesty's other territories.
It is admitted that these demolitions were carried out lawfully. The respondent avers in his answer 8 that by virtue of the Defence of Burma Act, 1940, and Rules made under it no action lies against the Crown in respect of them. But that is denied by the appellants on various grounds, and that matter has not yet been considered or investigated. The respondent has chosen to challenge the relevancy of the appellants' averments, as he was quite entitled to do. So the only question now before your Lordships is whether the First Division were correct in holding that these averments are irrelevant. This appeal must therefore be decided on the basis that the appellants can prove their averments, and we cannot look beyond those averments and such admissions as the appellants have made. On that basis we must assume that there was no statutory authority for the demolitions and that there is no statute dealing with or regulating any right to compensation.
The case has been conducted on the footing that the law of Scotland is applicable—perhaps because the law of any other country would have been a question of fact requiring proof. This would seem strange, because the only connection which the case has with Scotland is the fact that the persons who have suffered loss are Scottish companies. They were quite entitled to sue the Crown in Scotland, but it does not follow that Scots law is relevant. I think, however, that we can properly deal with the matters involved in this appeal, because it does not appear that as regards them there is any material difference between the law of Scotland, the law of England and the law applicable in Burma in 1942.
The appellants' case is that the demolitions were carried out by an exercise of the royal prerogative. At one time this was denied. It was said that this was an operation which any subject was entitled to carry out in the defence of the country and that neither the Crown nor a subject can have any obligation to pay compensation for such an operation. No doubt there are occasions when a subject is entitled to act on his own initiative in the defence of the realm, particularly if there is no one in authority there to direct him. But I find it impossible to suppose that any subject could have been entitled to carry out these demolitions on his own initiative. As this point was not argued before your Lordships, it is unnecessary to deal with it further. So we must now take it that these demolitions were carried out by an exercise of the royal prerogative, and the question for decision is whether such an exercise of the royal prerogative gives any legal right to compensation to the persons who have suffered loss thereby.
It is not easy to discover and decide the law regarding the royal prerogative and the consequences of its exercise. Apart from In re A Petition of Right and Attorney-General v. De keyser's Royal Hotel  AC 508 there have been no cases directly raising the matter for some centuries, and orbiter dicta and the views of institutional writers and text-writers are not always very helpful. The definition of Dicey always quoted with approval—"the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown"—does not take us very far. It is extremely difficult to be precise, because in former times there was seldom a clear-cut view of the constitutional position. I think we should beware of looking at older authorities through modern spectacles. We ought not to ignore the many changes in constitutional law and theory which culminated in the Revolution Settlement of 1688–9 and there is practically no authority between that date and 1915. I am no historian, but I would suppose that Maitland is as good a guide as any. In his Constitutional History he says:
"I do not wish you to think that a definite theory to the effect that while legislative power resides in king and parliament, the so-called executive power is in the king alone, was a guiding theory of medieval politics. On the contrary, the line between what the king could do without a parliament, and what he could only do with the aid of parliament, was only drawn very gradually, and it fluctuated from time to time."
(P. 196.) And again:
"Where is sovereignty ? I have before now given my reasons why we should not ask this question when studying the Middle Ages—why we should understand that no answer can be given."
(P. 297.) So it appears to me that we must try to see what the position was after it had become clear that sovereignty resided in the King in Parliament. Any rights thereafter exercised by the King (or the executive) alone must be regarded as a part of sovereignty which Parliament chose to leave in his hands. There is no doubt that control of the armed forces has been left to the prerogative (see Chandler v. Director of Public Prosecutions ), subject to the power of Parliament to withhold supply and to refuse to continue legislation essential for the maintenance of a standing army: and so also has the waging of war. But it may be interesting to note in passing the Act, 1703, cap. 5, which provided that "no person being King or Queen of Scotland and England shall have the sole power of making war with any Prince, Potentate or State whatsomever without consent of Parliament; and that no Declaration of War without consent foresaid shall be binding on the subjects of this Kingdom, Declaring always that this shall no ways be understood to impede the Sovereign of this Kingdom to call forth, command and employ the subjects thereof to suppress any insurrection within the Kingdom, or repel any invasion from abroad, according to former laws."
The reason for leaving the waging of war to the King (or now the executive) is obvious. A schoolboy's knowledge of history is ample to disclose some of the disasters which have been due to Parliamentary or other outside attempts at control. So the prerogative certainly covers doing all those things in an emergency which are necessary for the conduct of war. It has been suggested that some greater right arises in an extreme emergency, but it would be very strange if the law prevented or discouraged necessary preparations until a time when it would probably be too late for them to be effective. But, as I shall try to show later, there are some kinds of action for which the need only arises in an extreme emergency in face of the enemy, and there the position is different.
There is difficulty in relating the prerogative to modern conditions. In fact no war which has put this country in real peril has been waged in modern times without statutory powers of an emergency character. The taking of property for defence purposes was authorised by statute not only in the last war and in the 1914 war but also in the Napoleonic wars, and it could only be taken subject to payment of compensation.
What we have to determine in this case is whether or when, in a case not covered by any statute, property can be taken by virtue of the prerogative without compensation. That could only be an exceptional case, because it would be impracticable to conduct a modern war by use of the prerogative alone, whether or not compensation was paid. The mobilisation of the industrial and financial resources of the country could not be done without statutory emergency powers. The prerogative is really a relic of a past age, not lost by disuse, but only available for a case not covered by statute. So I would think the proper approach is a historical one: how was it used in former times and how has it been used in modern times ?
As regards modern times extensive investigation in connection with the De Keyser case failed to disclose a single instance of taking or interfering with land without payment. And if moveables had been taken without compensation at any time after 1660, I feel sure that historians would have found evidence of that. People in influential positions may have been very willing to give their services, but they were very sensitive about property. It would certainly have been a grievance if property had been taken without payment, yet there is no mention of such a grievance either in 1688–9 or at any other time. Negative evidence may not amount to proof, but it is so strong that I would hold it established that the prerogative was never used or attempted to be used in that way in modern times before 1914.
As regards earlier times I think that the Ship Money case (Rex v. Hampden ) deserves rather more consideration than it received in the De Keyser case or than it has received in this case. In the course of very long and elaborate arguments and opinions, extending to 425 columns in the report, every aspect of the royal prerogative connected with defence was examined and every known precedent was set out and discussed. I have not attempted to study the whole report but I find many instances given where the King paid for goods taken to supply and equip his troops on active service. Some are given by Mr St John (cols. 890 et seq.) immediately before the passage in his argument on which the Crown rely. And I have not noticed any reference to any instance in which the King took the property of a subject without payment, except in conditions where both parties were agreed that it was the right and duty of every man to take and use anything he could lay hands on in order to fight the approaching enemy. Looking to some similar passages scattered among the arguments and judgments, I think that Mr St John must have had that sort of thing in mind in the passage quoted from his argument. And I feel sure that if there were any passage in the report showing any wider use of the prerogative or any argument supporting any wider right, we would have been referred to it. What the King was contending for was a right to require his subjects to contribute to defence expenditure. The argument seems to have been that it was the duty of the King to defend his subjects, and that, if imminent danger required extraordinary expenditure, his subjects must be bound to contribute, because all ought to pay their share of expenditure made for the benefit of all. There is no suggestion that I can find that the King could have avoided at least part of this expenditure even in time of war by taking for nothing supplies or other property required for the conduct of the war. Without further investigation I would not rely too much on this case, but it does seem to indicate that even at the zenith of the royal prerogative no one thought that there was any general rule that the prerogative could be exercised, even in times of war or imminent danger, by taking property required for defence without making any payment for it.
Before turning to the cases which arose out of the 1914 war I would make these observations. First, there is nothing novel in the idea that a prerogative right to take property carries with it an obligation to pay compensation: that has apparently always been recognised with regard to the prerogative rights of purveyance and angary. And, secondly, it was well established that taking or destroying property in the course of fighting the enemy did not give rise to any claim for compensation whether that was done by the armed forces of the Crown or by individuals taking arms to defend their country or by the enemy. What had never been clarified was the question whether compensation was payable when property was taken deliberately for defence purposes, and in modern times such purposes would at least include training of troops, manufacture of munitions, obtaining the wide variety of supplies necessary to maintain the forces on active service, and economic warfare and various purposes essential to the conduct of the war but not immediately concerned with the maintenance of the fighting services. I may say at this point that it was rightly not argued that the fact that property is taken for destruction and not for use can make any difference.
I must now turn to examine the authorities which arose out of the 1914 war. In In re A Petition of Right the military authorities took possession of land for Shoreham Aerodrome. The owners were dissatisfied with the compensation offered and sought a declaration that they were entitled to proper compensation. The Crown pleaded that the land had been taken by the royal prerogative or, alternatively, under the Defence of the Realm Act, 1914. It was held that no compensation was legally due under either. The question whether the royal prerogative gave rise to compensation received little attention. The report of the arguments shows that counsel for the subject only cited some authorities which seem to have little to do with the matter, and there was only cited for the Crown an obiter dictum of Buller, J., in Meredith's case. Warrington, L.J., said (at p. 666) that it was admitted that no compensation was due under the prerogative. Pickford, L.J., did not deal with the matter, and Lord Cozens-Hardy, M.R., appears to have assumed that no compensation was legally due. So I cannot regard this as a case of great weight on this matter.
In De Keyser's case the Crown took possession of a London hotel for use as headquarters of the Royal Flying Corps. The owners sought a declaration that they were entitled to rent and they succeeded on the ground that the Crown had acted under the Defence of the Realm Acts and that compensation was due in respect of the use of statutory powers. By no means all the authorities cited in this case were cited, but a large volume of records of instances of dealing with land was produced. That volume has been re-examined in this case and little help has been found in it on the question whether or when compensation is due for damage caused by an exercise of the royal prerogative. Lord Dunedin said (at p. 524) "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." He pointed out that all the older statutes had made provision for compensation and said (at p. 527):
"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."
Lord Atkinson, adopting what he held to be the conclusion of Swinfen Eady, M.R., said (at p. 539):
"The conclusion, as I understand it, is this: that it does not appear that the Crown has ever taken for these purposes [defence of the realm] 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."
And later he said (at p. 544):
"Again it appears to me to be almost inconceivable that the Crown should claim the right to do such things as prostrate fences, take possession of the great industrial works mentioned, or cause any buildings to be destroyed, without being bound at law to compensate the owners therefor."
Lord Moulton made some observations about earlier times. He thought there were wide prerogative powers to take and use lands when the necessity arose. "But such necessity would be in general an actual and immediate necessity arising in face of the enemy and in circumstances where the rule Salus populi suprema lex was clearly applicable…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" (p. 552). He then pointed out that in the last three centuries the position of the Crown has completely altered, and referred (at p. 553) to "the feeling that it was equitable that burdens borne for the good of the nation should be distributed over the whole nation." He said that the course of legislation "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." It is not easy to say whether he meant that if the prerogative was used otherwise than in "actual and immediate necessity arising in face of the enemy" compensation would now be due.
I do not find it easy to get any clear guidance from Lord Sumner's speech. He did say (at p. 562):
"A prerogative right to take without paying must have been a right to take without paying out of the Royal funds, but, in truth, prerogative can, at most, extend to taking, and stands quite apart from payment. There is no prerogative right to elect not to pay."
And he seems to say (at p. 565) that there is no right to compensation in a case "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." But if the criterion is whether the subject would have had the right to act on his own initiative, I find difficulty in his explanation of the Shoreham case:
"Rightly or wrongly, the facts of the Shoreham case were assumed to have been analogous to the case of raising bulwarks."
Surely no one could think that a subject could have been entitled without authority to take possession of the land required for an aerodrome. What would he do with it when he had taken it ?
Lord Parmoor said (at p. 568):
"It is not necessary to enquire how far, in certain cases of necessity, for the public defence, the Executive has power to act without statutory authority."
But he did discuss the matter. He said (at p. 569):
"Assuming that there is a public necessity to take possession of land for administrative purposes in connection with public defence, there can be no reason why this necessity should be urged as an answer to a claim for compensation."
So he had no doubt that in some cases at least an exercise of the prerogative can entail payment of compensation. Thus he discusses the Saltpetre Case and says (at p. 571):
"The saltpetre was taken under the Right of Purveyance, and payment was made."
Where I find difficulty is in his statement:
"A right common both to the Crown and all subjects is not in the strict sense a prerogative right of the Crown."
But I need not pursue that, because I think it is now admitted that the destruction of the appellants' property was done by an exercise of the prerogative.
Some importance was attached in argument to Crown of Leon (Owners) v. Admiralty Commissioners, where the owners contended that their ship had been wrongly requisitioned and used. With reference to the degree of emergency necessary to justify the use of the prerogative Lord Reading, C.J., said (at p. 604):
"…it is suggested that it is only where there is what was called ‘instant and urgent necessity,’ that is to say, a then existing urgent necessity, that the prerogative can be invoked. That does not mean that to justify the use of the prerogative you must be able to show that at the precise moment there is such a state of things existing that unless the prerogative is invoked the nation will succumb. That is far too limited a meaning. What, I think, it means is that there must be a national emergency, an urgent necessity for taking extreme steps for the protection of the Realm."
I entirely accept that. I have already said that it would be very strange if the law prevented action until it was probably too late to be effective. But the wider the scope of the prerogative, the stronger is the case for compensation. Darling, J., said (at p. 606), concurring with Lord Reading:
"The rule undoubtedly is that the King, acting in regard to what is called prerogative ‘regale et legale,’ has the right on behalf of his subjects to take their property for the defence of the Realm and to protect the interests of the subjects, compensation of course being fairly made. Nowadays compensation is made by reason of exact provisions, but it ought always to be made, because what is taken for the general good should be paid for by the general community."
Finally there is the dictum of Lord Parker in The Zamora:
"The municipal law of this country does not give compensation to a subject whose lands or goods are requisitioned by the Crown."
That dictum was entirely obiter, and I agree with the view of Atkin, L.J., in Commercial and Estates Co. of Egypt v. The Board of Trade (at p. 296) that "municipal law by a series of statutes, if not by the common law, provides for compensation either in full or with some restrictions when the subject's property is taken for the defence of the realm. Lord Parker's dictum to the contrary in The Zamora,delivered after the decision in In re A Petition of Right and before the decision in Attorney-General v. De Keyser's Royal Hotel, is no longer justified by the authorities."
Taking the series of cases which arose out of the 1914 war, the present question never had to be decided and diverse opinions about it were expressed. But my conclusion is that on balance the weight of opinion was against there being any general rule that no compensation can be due for loss caused by an exercise of this prerogative.
Turning now to the law of Scotland, there is virtually no native authority. But none of the learned judges who took part in this case had any doubt about the general rule. The Lord Ordinary, Lord Kilbrandon, said:
"When the Sovereign exercises this right, he is bound to cause the loss occasioned thereby to be shared equally among the beneficiaries, with whom is included the private owner despoiled, so that it falls on the state and not on an individual."
The Lord President said:
"Hence it would seem to follow as a matter of general principle that when in the exercise of the royal prerogative a subject is deprived of his property by the Sovereign in some emergency for the benefit of the state, the subject is entitled to be compensated therefor."
Lord Carmont said that a British subject can be deprived of his possessions for the common good "by exercise of the royal prerogative operating the residual rights of the Crown to manage the affairs of the nation, and this prerogative exercise usually involves payment of compensation appropriate to what the subject has lost." Lord Sorn said:
"I am prepared to state it as my opinion that, for all such acts [prerogative acts] the Sovereign is in fact under a legal obligation to compensate the subject."
And Lord Guthrie said:
"I am therefore prepared to accept the general proposition…that, where an individual is deprived of his property under the lawful authority of the Sovereign for the public good, the loss to the individual must be made good at the public expense."
The reason why the First Division decided this case against the appellants was that they held that on its facts this case fell within an exception to the general rule. I must deal with that exception later, but for the moment I am concerned to establish the existence of the general rule.
In the absence of native authority Scots lawyers commonly turned to the Roman Law or the works of continental commentators and that tendency was increased by the fact, as noted by Lord Macmillan in Stewart v. London, Midland and Scottish Railway Co., at p. 38, that in the seventeenth and eighteenth centuries most of the eminent Scots lawyers had studied law at Leyden or Utrecht University. Though the civil law was never "received" in Scotland as it was in some continental countries, the writings of the civilians had great influence. And it is apparent from passages cited from Sir G. Mackenzie, Erskine and Bankton that their views about dominium eminens had been generally accepted. For that reason, it is important to examine the passages cited in argument.
Dominium eminens of the sovereign (not very happily translated as eminent domain) is a conception which fits easily into a system where the dominium directum of the superior and the dominium utile of the vassal are of fundamental importance. What the commentators were doing was to set out the limitations and conditions under which it could be exercised. The sovereign, the prince, was still regarded as being under the law in the sense that he had no right to act contrary to the law of nature, the law of nations or the law of God. When the prerogative took shape it was that part of sovereignty left in the hands of the king by the true sovereign, the King in Parliament. Since the seventeenth century we have lost the idea that our sovereign, the King in Parliament, is under the law so that an Act of Parliament could be, in modern parlance, ultra vires. But the prerogative, having been virtually dormant or in abeyance, should not, in my view, be regarded as any wider to-day than it was three centuries ago. If, therefore, I find among these writers a consensus of opinion as to the limits of dominium eminens I would regard that as very good evidence of the limits of the prerogative. In this connection it is not irrelevant to note that about 1600 Sir Thomas Craig wrote:
"The law of Scotland is compounded of the law of nature, the law of nations, and native civil or municipal law"
(Jus Feudale, I, viii, 6, Lord Clyde's translation, vol. i, p. 105), and a little earlier Lord President Balfour began his Practicks with the sentence—"The law is devydit in there partis; in the law of nature, in the law of God, and in the positive law."
Grotius wrote in De Jure Belli ac Pacis (Carnegie edition, 1913, p. 807):
"I have said elsewhere that the property of subjects belongs to the state under the right of eminent domain; in consequence the state, or he who represents the state, can use the property of subjects, and even destroy it or alienate it, not only in case of direct need (ex summa necessitate) which grants even to private citizens a measure of right over others' property, but also for the sake of public advantage…But, we must add, when this happens, the state is bound to make good at public expense the damage to those who lose their property."
Passages to the same effect were cited from Jason, Crusius and Textor.
A little later there is introduced the exception on which the First Division decided this case against the appellants. Bynkershoek, whose reputation stood very high, wrote in Quaestiones Juris Publici(Carnegie edition, 1930):
"Furthermore, for whatever cause property or claims of private persons be occupied or destroyed for public purposes, it is equitable and just, as Grotius says in the passage cited, that the owners be reimbursed from the public treasury"
(p. 221). Then he discusses various cases, including a case in 1672, when the dikes were cut to check the enemy (p. 223). He approves of the decision that no compensation was due "because the damage was apparently in the nature of ordinary damage caused by war, just as though that very ground had been chosen for the battlefield or for the position of the camp, or something else of that nature. Losses sustained in the misfortunes of war all subjects must suffer with equanimity, and there is never any restitution made for it." Other writers of about the same date say much the same thing rather less clearly.
Finally much importance has been attached to the opinion of Vattel. By his time Scots lawyers had ceased to pay so much attention to continental sources. But I think that he sums up the views of his predecessors. The relevant passage is in Le Droit des Gens,Book III, chapter 15—I quote from an English translation published in 1834:
"Is the state bound to indemnify individuals for the damages they have sustained in war ? We may learn from Grotius that authors are divided on this question. The damages under consideration are to be distinguished into two kinds,—those done by the state itself or the Sovereign, and those done by the enemy. Of the first kind, some are done deliberately and by way of precaution, as, when a field, a house, or a garden, belonging to a private person, is taken for the purpose of erecting on the spot a town rampart, or any other piece of fortification,—or when his standing corn or his store-houses are destroyed, to prevent their being of use to the enemy. Such damages are to be made good to the individual, who should bear only his quota of the loss. But there are other damages, caused by inevitable necessity, as for instance, the destruction caused by the artillery in re-taking a town from the enemy. These are merely accidents,—they are misfortunes which chance deals out to the proprietors on whom they happen to fall. The Sovereign, indeed, ought to show an equitable regard for the sufferers, if the situation of his affairs will admit of it; but no action lies against the state for misfortunes of this nature,—for losses which she has occasioned, not wilfully, but through necessity and by mere accident, in the exertion of her rights. The same may be said of damages caused by the enemy. All the subjects are exposed to such damages: and woe to him on whom they fall! The members of a society may well encounter such risk of property, since they encounter a similar risk of life itself."
In my judgment, those authorities and others quoted in their opinions afford ample justification for the decision of the First Division with regard to the general rule, and no contrary Scots authority has been cited. This case therefore turns, in my view, on the extent of the exception of what has been called battle damage.
Such damage must include both accidental and deliberate damage done in the course of fighting operations. It cannot matter whether the damage was unintentional or done by our artillery or aircraft to dislodge the enemy or by the enemy to dislodge our troops. And the same must apply to destruction of a building or a bridge before the enemy actually capture it. Moreover, it would be absurd if the right to compensation for such a building or bridge depended on how near the enemy were when it was destroyed. But I would think that Vattel is right in contrasting acts done deliberately (librement et par précaution) with damage caused by inevitable necessity (par une nécessité inévitable). His examples show that he means something dictated by the dispositions of the opposing forces. It may become necessary during the war to have new airfields or training grounds and the necessity may be inevitable, but that kind of thing would not come within the exception as stated by any of the commentators, and there are many other preparatory acts which are in a sense inevitably necessary because there is really no choice: for example, there may be only one factory in the country or one site suitable for a particular purpose.
The peculiarity of this case is that, although the destructions took place while the enemy was approaching, they were not done to hamper his advance. If H. M. Government had decided not to try to defend Burma and there had been no fighting there, the need to destroy these installations would have been just the same. On the pursuers' averments the purpose was "to deny to the enemy industrial resources and facilities"—really a form of economic warfare. Suppose that the appellants had held in Rangoon a stock of wolfram or some other material which it was important to keep out of enemy hands, and had been themselves unable to remove it. The Government would certainly have taken it: suppose they could have brought it home and used it, could it then have been said that no compensation was due because the enemy advance had made the taking inevitably necessary ? They would probably have had to throw it into the sea because no ships were available, but admittedly there is no difference in principle between taking for use and taking for destruction. I need not consider whether the measure of compensation would be the same. I can see no difference between that case and the destruction of these installations, except perhaps that the destruction of the wolfram would have been inevitable, whereas if early reconquest of Burma had been at all likely, it might have been decided that it was better to leave the installations intact in the hope that they would be recovered in a more or less usable state.
The Lord President held that the destruction was so intimately tied up with the actual fighting that it must be regarded as battle damage. Lord Carmont based his opinion on the ground that the destruction was action taken by a competent military authority in the course of military operations and deemed by that authority necessary. Lord Guthrie regarded the destruction as an incident of the armed struggle brought about by the force of immediate events. For the reasons I have given, those do not appear to me to be the right tests. Lord Sorn's ground was perhaps wider—that, although the necessity did not arise in connection with the local military operations, it was sufficient that the destruction was a necessary act done in the course of military operations. But, as I have said, I do not see why the immediate occasion for the destruction should matter if the necessity did not arise out of the military operations.
It only remains to consider the American authorities which were cited. These are fully dealt with by my noble and learned friend, Lord Pearce, and I shall not cover the ground again. I do not know whether the President's defence powers are directly descended from the royal prerogative. If they are not, these authorities are not directly in point. If they are, then I am afraid I must disagree with some of the reasoning in United States v. Caltex . It would seem that the decision turned largely on the proper interpretation of the Fifth Amendment—"…nor shall private property be taken for public use without just compensation," and it was held that taking for destruction was not taking for public use.
In the opinion of the majority delivered by Vinson, C.J., it is said (at p. 154) "the common law had long recognised that in times of imminent peril—such as when fire threatened a whole community—the sovereign could, with immunity, destroy the property of a few that the property of many and the lives of many more could be saved." I have already given my reasons for holding that an exercise of the prerogative need not await "imminent peril," that it is legitimate to act in good time during war without delaying until the last moment, and that the right to compensation cannot depend on whether the executive does wait until the last moment. So if this principle is to be applied in this country, where there is no difference between taking for use and taking for destruction, it must follow that at any time during the emergency the executive can take without compensation "the property of a few"—which I take to mean any man's property—if that property is required for use so "that the property of many and the lives of many more could be saved"; and in the context of war that must mean so that the war may be waged more efficiently and victory may come more speedily. In effect that would mean that compensation is never due for loss caused by an exercise of this prerogative and I have already given my reasons for holding that that is not the law of this country. If, on the other hand, this principle was intended by the Supreme Court to be limited to what I have called "battle damage," I have already given my reasons for holding that the destruction in the present case does not come within that category.
This statement of the law was to a large extent founded on the judgment of Field, J., in United States v. Pacific Railroad Co. There it seems to me that the damage could well be regarded as battle damage, and I think that the citation of the passage from Vattel which I have already quoted and the observations of that learned judge on page 234 show that that was what he had in mind. I am not persuaded by anything said in the Caltex case or in the other American cases cited that the views which I have already expressed are wrong.
It follows that in my judgment the appeals must succeed and I must not seek to anticipate questions which may arise if the facts proved should differ from those averred by the appellants. But there is one matter on which I must say a word to avoid any misunderstanding. I am deciding nothing about the proper measure of compensation. The appellants appear to be claiming the full value of these installations in time of peace. I am holding that they are entitled to compensation and it will be necessary to consider whether compensation must not be related to their loss in the sense of what difference it would have made to them if their installations had been allowed to fall into the hands of the enemy instead of being destroyed.
As regards the respondent's cross-appeals on the applicability of the Public Authorities Protection Act, 1893, I am satisfied that the decision of the First Division is correct and I do not think it necessary to add to the reasons given by the Lord President. I would dismiss the cross-appeals. I would therefore recall the interlocutors of the First Division so far as appealed against, remit the cases for proof before answer and award to the appellants their costs in this House and expenses in the Court of Session since 14th August 1962.
There are two things that I must say by way of preliminary. The first is that, with respect, I cannot imagine why we have been invited to consider the rights of the appellants as if they were in some way regulated by the principles of the law of Scotland. How could they be ? Their claim is put forward as arising out of prerogative acts performed by the servants of the Crown in Burma, at a time when that territory was a British possession. Whatever system of law regulated the consequences of such acts, it was not Scottish law, since these consequences could not be determined either by the fact that the appellants were limited companies registered and having their head offices in Scotland or by the fact that, for reasons which no doubt seemed good to them, they initiated their proceedings in Edinburgh.
I think therefore that we are bound to consider the case as if the prerogative under which the acts are said to have been done was the prerogative as known to the common law of England, subject to any ordinances or regulations then in force in Burma by which it was controlled or affected. We have not been referred to any such instruments, nor has either side placed any reliance upon them for the purposes of its argument. I am relieved to be able to add that I have not seen any reason for supposing that the law of Scotland is in fact in any relevant way different from the law of England on the issue before us, and, if I had to govern my opinion on the case by what I believe the Scottish law to be, I should come to just the same conclusion.
The second preliminary observation that I have to make is that I am not at all satisfied that the acts now in question are properly to be regarded as exercises of the prerogative at all. Such war-time acts, for instance, as the selection of land for the site of a camp, the occupation of the terrain of battle, the clearing of the field of fire, the felling of trees and other destruction to retard enemy pursuit, although certainly interferences with and overriding of property interests, do not present themselves to my mind as acts done in reliance upon prerogative right. I incline to the view that the destruction of property in the face of an advancing enemy, in order to deny to him the use of it, falls within the same category of act. My approach to this point is the same as that of Lord Sorn in the Inner House, whose opinion, if I may say so, I find very convincing. Such acts are directed by the Sovereign, as he says, by virtue of necessity. But, since necessity is in itself a word which is capable of being used with several different shades of meaning, and since our law affords no comprehensive definition of a prerogative act which marks what actions are covered by it or what are not, or which, as a matter of course, excludes the concept of necessity, I think that it is more useful to start consideration of this appeal by treating the acts of destruction as carried out under the prerogative and by asking what, if any, are the consequent rights of the appellants, if the acts were indeed of this nature.
What then, do we mean by the prerogative in this connection ? I say "this connection" because in our history the prerogatives of the Crown have been many and various, and it would not be possible to embrace them under a single description. Some of them were or came to be beneficial or sources of profit to the Crown—these, I suppose, had their origin in the military tenures and the status of the feudal superior, and examples of them would be wardship and purveyance and the right to the royal minerals. Others were as much duties as rights and were vested in the Sovereign as the leader of the people and the chief executive instrument for protecting the public safety. No one seems to doubt that a prerogative of this latter kind was exercisable by the Crown in circumstances of sudden and extreme emergency which put that safety in peril. There is no need to say that the imminence or outbreak of war was the only circumstance in which that prerogative could be invoked. Riot, pestilence and conflagration might well be other circumstances; but without much more recorded history of unchallenged exercises of such a prerogative I do not think that for present purposes we need say more than that the outbreak or imminence of war, provided that it carried with it the threat of imminent invasion or attack, did arm the Crown with what may be called the war prerogative.
It is of some importance to speak of this as the war, not as the defence, prerogative. Whatever else may be deduced from the lengthy historical researches made for the purposes of the De Keyser Hotel case, it does seem clear that the Crown never claimed or sought to exercise in time of peace a right to take land, however much required for the defence of the realm, except by agreement or under statutory powers. The two main reasons were probably that in peace there could be no sufficient "necessity" and that in peace Parliament was accessible. The prerogative was for resort in time of war, and even then there is some ground for saying that it was not just the state of war that called it forth, but that condition imagined as being "when the course of justice is stopped and the Courts of Justice shut up" (Mr Oliver St John's argument in the Ship Money case). It was in that time of war "when there is an enemy in the field" that "the king may take goods from the subject" (Hutton, J., in the same case). I could not say that later thinking, so far as there has been any, has confined the war prerogative to Mr St John's conditions.
I do not know who is in a position to say on what occasions and for what purposes this war prerogative was exercised in our history. Nevertheless it has remained a matter of general acceptance that there was such a power, and since it was a power that came into existence on the occurrence of a sudden emergency, no one could well be in a position to categorise the acts that it authorised, since, depending on the necessity of the occasion, their nature would be determined by the nature of that occasion. To put the matter quite generally, the Crown was supposed to have the right in such an emergency to command and direct the services of its subjects and to take their land and property for the purpose of protecting the realm from its enemies.
An instance of an undoubted exercise of the war prerogative in recent time is the Proclamation issued by the Crown on 3rd August 1914 (one day before war began) authorising the Admiralty to requisition British ships for war purposes. No statute authorised the making of this Proclamation, and in both The Broadmayne and The Crown of Leon it was accepted as an act of prerogative power. It is to be noted that the Proclamation, while providing for hire and damage compensation to be paid to owners, as by that date it was settled that it was its public duty to do, established an ad hoctribunal of arbitration to settle the proper terms of hire and indemnity in any case in which voluntary agreement could not be arrived at. If the requisitioning of ships under the prerogative carries with it a legal right to compensation which is enforceable in a court of law, the tribunal of arbitration could have received no authority to determine a ship-owner's rights against his will, and its awards could not have ousted the jurisdiction of the courts. There seems to be no reported case in which the tribunal's functions were challenged on these grounds. On the contrary, in Lobitos Oilfields Ltd. v. Admiralty Commissioners the Board was held to be a regular tribunal of arbitration to which the High Court could send an order directing the stating of a special case.
A similar difficulty of explanation attends the status of the Defence of the Realm Losses Royal Commission, which was set up by Warrant in March 1915. It had no statutory authority of any kind until it was turned into the War Compensation Court by the Indemnity Act, 1920, yet it dealt with and recommended ex gratia payments in respect of various types of losses and damages, of which some, if not most, would appear to have had their origin in prerogative acts. Its recommendations were to be based on "reason and fairness," and I can feel no doubt that it was regarded as dispensing what has been called "the bounty of the Crown."
The great part of this account has been of only antiquarian or theoretical importance during the last two centuries, since so many of the prerogative powers of acting in a war emergency have become merged in or have been overtaken by Acts of Parliament or Defence Regulations having the force of statutes, which provide in their own terms for what powers may be exercised, and regulate the conditions and legal consequences of their exercise. In that sense there is relevance in quoting Dicey's definition of the prerogative as "the residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown." But in Dicey's terminology every executive action not cognisable in a court of law tended to be categorised as arbitrary or irresponsible, and generations of English lawyers have since found salvation in this faith. Where we are dealing, as here, with executive acts of the Crown under the war prerogative, I should have thought that they are conspicuously not discretionary or arbitrary in any typical sense. On the contrary, they are acts of necessity, performed in sudden and extreme emergency, when there is, in effect, only one thing to be done for the public safety.
A more just and, I think, a more illuminating conception of what is involved in the prerogative power of the Executive is to be found in John Locke's True End of Civil Government, the 14th chapter of which is entitled Of Prerogative. I draw on Locke because his work was profoundly influential, not only with the Whigs who dominated so much of English politics for 150 years after 1688, but also with the founders of the American Constitution. I will take liberty to quote a passage from his chapter:—
"For the legislators not being able to foresee and provide by laws for all that may be useful to the community, the executor of the laws, having the power in his hands, has by the common law of Nature a right to make use of it for the good of the society, in many cases where the municipal law has given no direction, till the legislative can conveniently be assembled to provide for it; nay, many things there are which the law can by no means provide for, and those must necessarily be left to the discretion of him that has the executive power in his hands, to be ordered by him as the public good and advantage shall require; nay, 'tis fit that the laws themselves should in some cases give way to the executive power, or rather to this fundamental law of Nature and government—viz., that as much as may be all the members of the society are to be preserved. For since many accidents may happen wherein a strict and rigid observation of the laws may do harm, as not to pull down an innocent man's house to stop the fire when the next to it is burning; and a man may come sometimes within the reach of the law, which makes no distinction of persons, by an action that may deserve reward and pardon; 'tis fit the ruler should have a power in many cases to mitigate the severity of the law, and pardon some offenders, since the end of government being the preservation of all as much as may be, even the guilty are to be spared where it can prove no prejudice to the innocent. This power to act according to discretion for the public good, without the prescription of the law and sometimes even against it, is that which is called prerogative…"
The essence of a prerogative power, if one follows out Locke's thought, is not merely to administer the existing law—there is no need for any prerogative to execute the law—but to act for the public good, where there is no law, or even to dispense with or override the law where the ultimate preservation of society is in question. Whether the law itself, and I mean by that the common law administered by the judges without any statutory authority to assist them, can compel the provision of compensation at the public expense when a subject has suffered from some exercise of this prerogative is the question that we have to decide in this case. A priori, I do not know that I should have expected the common law to have charge of such a matter.
We may take the requisitioning or use of private property as a typical theoretical instance of the exercise of prerogative power in sudden emergency. I have to say "theoretical" since, as will appear later, most of the needs of requisitioning have long been dealt with by direct or indirect statutory authority. I do not mean, either, that such usurpations are by any means the only cases in which prerogative acts may interfere with private rights or liberty and cause resulting damage; but lawyers are trained to a particular vigilance in the field of property, and it is convenient for this stage of the argument to limit it to the "taking" of property under prerogative power and to treat a destruction of property under the war prerogative as being the equivalent of a taking. I doubt very much whether it is correct simply to equate destruction with "taking" for this purpose, but I am for the moment ignoring any distinction. Now, have we ground for saying that by the law of the land such a taking of property creates a legal right in the deprived person to have compensation paid to him by the Crown ?
To begin with, one must clear the ground with one or two short propositions. There is not in our history any known case in which a court of law has declared such compensation to be due as of right. There is not any known instance in which a subject, having suffered from such a taking, has instituted legal proceedings for the recovery of such compensation in a court of law. No payment has been identified as having been made by the Crown in recognition of a legal right to such compensation, irrespective of the institution of legal proceedings for its recovery. Lastly, no text-writer of authority has stated that there is this legal right under our law.
If, then, such a legal right is to be declared for the first time, its existence has to be deduced from some general current of lawyers' thinking, so strong as to make the denial of it unacceptable in principle. Certainly, the war prerogative itself has been acknowledged for many centuries: has there been a similar tradition of a right to compensation, not as something that ought to be provided by Parliament or Crown on a fair understanding of their public duty, but as something to which the subject is absolutely entitled by the judgment of a court of law ?
We must get what help we can from the English authorities. I should say that they fall into two groups for this purpose, first, those decided prior to the end of the seventeenth century and, secondly, those of later date, which second group means in practice cases decided in relation to the War of 1914–18. I agree that there is a great gulf fixed between these two, if only because so much that could be said about the war prerogative as an active power before the days of the Civil War has been rendered out of date by the encroachment of statutory provision upon the field of the prerogative and its consequent erosion. I do not think, therefore, that the first group calls for anything but brief notice.
What we get from them down to the Saltpetre Case, in 1606, is merely a general recognition that in times of sudden peril to general safety, such as the outbreak of fire or the arrival of enemy forces or a storm threatening a ship, the common law authorised private property rights to be ignored, as by destroying houses, entering or occupying land, damaging crops and trees, or jettisoning cargo. The law provided no remedy for this, given the emergency; a man must suffer for the sake of the common weal. The actions envisaged are not specifically those of the Crown, nor are they spoken of as prerogative acts: on the contrary, they seem to be acts of one's "neighbours" acting in the public interest. The background is one of a rather rudimentary social organisation, poor communications and local self-help.
The Saltpetre Case is on a different footing, though I do not regard it as having any direct bearing on the present case. There the judges recognised in the Crown a prerogative right to enter upon the land of subjects in order to dig for and acquire saltpetre. The justification for this was said to be that saltpetre was a muniment required for the defence of the realm, but the right was not treated as an emergency or war-time prerogative, nor was it limited to the occasion of war. The court prescribed an elaborate set of conditions subject to which this right was to be exercisable, including an obligation to restore and make good the land dug up. It is odd that among all these conditions they did not mention an obligation to pay the owner for the value of his saltpetre (which was no royal mineral), but, since they described and, I think, intended to justify the taking of it as a "purveyance," they may well have meant to imply the necessity of payment, since purveyance as a royal prerogative was historically a pre-emptive right of purchase or hire for the use of the king's household or his castles and garrisons. According to Stubbs (Constitutional History, 3rd ed., vol. ii, p. 564), purveyance was a royal prerogative which was at one time universal throughout Europe and was, I think, essentially related to the military tenures and the king's feudal rights both in peace and in war. On the other hand, the right was claimed to be one to pay in the king's own time and with tallies only, so the judges may well have thought that they had better leave the question of payment alone. What is interesting in this decision and at any rate of some importance is that the prerogative of the Crown to override property rights in case of public extremity is, in effect, deduced from the old common law rule that "every man may come upon my land for the defence of the realm" and that "for the commonwealth a man shall suffer damage"; and the familiar instances appear, destined to be resorted to so often in this context, of gravel dug for the making of bulwarks, houses plucked down against the spread of fire and suburbs destroyed to secure a city's defence. These are not put forward as compensable (to use the ancient word) actions, nor would they have been compensable by the old common law right of necessity: but it is said that, "after the danger is over, the trenches and bulwarks ought to be removed so that the owner shall not have prejudice by his inheritance." This last qualification, which may conceivably be a reflection of Magna Carta's pledge against disseisin, calls for restoration of land to its former state, but the judges do not seem to have had in mind anything amounting to indemnity against loss by occupation and disturbance.
Once we leave the times of the Spanish Armada and the seventeenth century there is nothing to say about the war prerogative until the period of the French Revolutionary or Napoleonic Wars. History gives us nothing firm to go upon with regard to the Jacobite landings of 1715 and 1745. What we do know is that, so far as concerned the taking of land for defence purposes in time of peace or war, Parliament from the beginning of the eighteenth century onwards had begun to step in and to confer and regulate by statute the necessary power. It was invariable practice to require the payment of full compensation. When we come to the Napoleonic Wars, when invasion became for a time an imminent possibility, we can see from the Act 38 Geo. III, cap. 27, in effect re-enacted by the Act 43 Geo. III, cap. 55, that Parliament was in a position to provide a considered statutory code regulating or conferring executive powers for acting in an emergency and continuing them for the period of the emergency. What happens is that what would otherwise be the acknowledged but undefined emergency powers of the king, "the powers by law vested in him for preventing and repelling an invasion," to quote from the preamble to the 1798 Act, become defined statutory powers, to be exercised only under the conditions thus prescribed. The defined powers include power to remove transport, flocks, provisions and anything else likely to be of advantage to the enemy, to take them for the public service or to destroy them. Careful provision is made to secure indemnity for persons injured by any exercise of powers under the Act.
These Acts afford a good instance of the way in which under what are becoming modern conditions the war prerogative is displaced by powers defined and limited by Act of Parliament. Several different considerations must have argued for the change—the feeling that the extreme actions that might be required ought to receive explicit Parliamentary approval, the desirability of defining and, very likely, of extending and supplementing the range of admitted executive powers, and, thirdly, the advantage of Parliament's imposing whatever conditions or consequences it thought proper upon the exercise of such powers. One of these conditions was the payment of compensation for injury suffered. It can only be a matter of speculation whether a fourth reason for turning prerogative into parliamentary powers was that it was supposed that compensation could not otherwise have been required as of right. Whether this was so or not, given the statute, the moneys paid by way of compensation were paid by parliamentary grant and not in pursuance of any judicial award under the common law.
The war prerogative is, however, by its very nature something which takes an unconscionable time to die. In the same year that saw the enactment of the Defence Act of 1803 another Act (43 Geo. III, cap. 96) was passed which referred to His Majesty's "ancient and undoubted prerogative, in requiring the military service of his liege subjects in case of invasion of the Realm." Nothing appears clearer, said Pitt in debate in the House, than "the proposition that the State has the right to call the people to defend it, and that in the Crown, being the depository of the power of the State, is vested the right of so calling upon the people in a great emergency. The right is exercised by the Constitution 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."
The Napoleonic menace ended in 1815. It was 99 years before this country faced any similar emergency. To those who had to inspect the rusty weapons of the war prerogative in the summer of 1914 it must or should have appeared that some of them had become permanently unreliable. The Defence Act of 1842 had provided a standing code for the taking of land, in war or peace, and whether for occupation or for title. The Army Act of 1881, Part III, sec. 115, had laid down a scheme for the commandeering of transport for the military forces upon a declaration of emergency by the Queen and had thereby continued and made permanent statutory powers which had been contained in successive Mutiny Acts since 1692. Both these Acts made it obligatory to afford compensation for what was taken. Moreover, the first month of war, August 1914, saw the immediate conferment of further statutory powers for the emergency. On 7th August, section 115 of the Army Act was extended to cover the requisitioning of "food, forage and stores of every description" and on 28th August the Admiralty received similar powers on behalf of the Navy. In the same month Parliament empowered the Board of Trade, if authorised by Royal Proclamation, to take possession of foodstuffs and any articles of commerce, stocks of which were being unreasonably withheld, upon paying a price, to be determined by arbitration in default of agreement. Finally, although I am not trying to give any exhaustive list of legislation which took over what might otherwise have been the Crown's prerogative war powers, there were the two Defence of the Realm Acts of 1914, under which His Majesty in Council was authorised to issue regulations "for securing the public safety and the defence of the realm" upon certain defined subjects, the list of which grew as the war continued.
It might have been thought that, with Parliament continuously accessible and the device of Defence Regulations available, the war prerogative would have been looked upon by the Crown and by lawyers generally as no longer a permissible source of executive acts. This, however, would be far from the fact. I have already referred to the Proclamation of 3rd August 1914 with regard to the requisitioning of ships, and no doubt with regard to naval matters at any rate there were other active uses of the prerogative such as the prerogative of bounty. Indeed, put generally, the nature and limits of the war prerogative proved to be quite a live question in the courts.
I ought to mention at this point the right of angary, the right to requisition neutral property within the jurisdiction, if required for war purposes and upon payment of compensation. This was the right that was considered in The Zamora and in Commercial & Estates Co. of Egypt v. The Board of Trade . Angary, however, as those cases made plain, was only a Crown right recognised by our municipal law because it was a belligerent right recognised by international law and there acknowledged to be subject to the condition of providing compensation to the deprived neutral. Its assertion was in fact an aspect of the Crown's foreign relations. It would be wrong to argue by analogy from the nature and conditions of the right of angary to the nature and conditions of a prerogative right whose origin is local to our municipal law.
I turn now to see what was said by judges in our courts when the subject of the war prerogative came before them in relation to the 1914–1918 war. If there had been a consensus of opinion that to take property under it implied compensation at common law, even though there was no actual decision to that effect, I should regard that as significant support for the appellants' present argument. But if the current of opinion was in the opposite direction, I think that there can have been no tradition as to the existence of such a legal right, and, if it was not part of the common law then, I do not see how it can have become so now.
The score stands this way. When the case of the Shoreham Airport came before the courts in 1915, Avory, J., after reviewing the authorities, held that the war prerogative entitled the Crown to take possession of land and to continue to occupy it, without liability for compensation (p. 653). In the Court of Appeal Cozens-Hardy, M.R., agreed with this conclusion (pp. 660–661); so, as I understand him, did Warrington, L.J., (p. 666), though he mistakenly states that Sir Leslie Scott, K.C., counsel for the petitioners, had admitted that, if the act was under the prerogative, there could be no legal compensation. These views, which were only relevant, of course, if a prerogative right had in fact been exercised, were neither overruled nor contradicted by any subsequent authority.
The next occasion when the war prerogative was mentioned was in The Zamora. Lord Parker stated (p. 100):
"The municipal law of this country does not give compensation to a subject whose lands or goods are requisitioned by the Crown."
There is no need to make too much of this observation. Lord Parker could not foresee, for example, what the Indemnity Act, 1920, was going to provide, nor could he have meant to say that, where requisitioning was covered by statute, compensation was not allowed for. Secondly, the proposition, whether correct or not, was not part of the decision: it was no more than a proposition advanced in support of the actual decision. On the other hand, the somewhat flurried attempts made in this House in the De Keyser case to represent the statement as only an unattributed quotation from what was then the recent decision in In re A Petition of Right seem to me, with respect, not quite worthy of the subject. Lord Parker was delivering an opinion on behalf of a Board consisting of Lord Sumner, Lord Parmoor, Lord Wrenbury, Sir Arthur Channell and himself, of whom at least a majority must have agreed with the opinion; and I do not think that it is the practice of leading judges to avow a general proposition of law, of considerable constitutional importance, merely on the faith of a decision of another court which does not bind them. If they had the decision in mind, they must have been ready, as then advised, to endorse and accept it.
Then there is the De Keyser case. So far as the Court of Appeal was concerned, the two members who formed the majority (Swinfen Eady, M.R., and Warrington, L.J.) distinguished the previous decision of their court in In re A Petition of Righton the ground that there was a difference between a taking for military purposes, which could be within the prerogative, and a taking for administrative purposes, which could not, and then went on to hold that in the case before them the taking was not in fact under the prerogative but under the powers of the Defence Act, 1842, and that under that Act compensation was an obligatory condition. Neither of them dealt with what the consequences would have been had there been an entry under the prerogative. Duke, L.J., on the other hand, who dissented, thought that the entry had been made under the prerogative, that the prerogative had not been abrogated or displaced by statute and that, on that basis, "such an occupation does not of itself create or raise the presumption of a right in the suppliants to have compensation assessed to them." I must add his name, therefore, to the list of those judges in recent times who have expressed opinions to the effect that a prerogative taking, if it occurs, creates no legal right to compensation.
When the case went to the House of Lords, the view of the majority of the Court of Appeal was upheld, but there was added to their holding that the taking had not in fact been under the prerogative the holding that in law there was no prerogative to take under. It is plain that the reasoning that was adopted by this House, that the continued existence of a prerogative right to take land without compensation was inconsistent with the right to take under the Defence Acts subject to compensation, and that therefore the prerogative right had been merged or abrogated or suspended, meant that the decision of In re A Petition of Right was no longer good law, since the same argument had been advanced, but rejected, in that case. But it would be incorrect to say that that conclusion in itself overruled or disapproved of what had been said by the judges in that case as to the relationship between a prerogative right and compensation in any case where that right existed and had in truth been exercised. I have searched the speeches of the members of this House on that question, and I find the result to be markedly inconclusive. Lord Dunedin was neutral—"The texts," he said, "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." Lord Atkinson too was neutral. He was unwilling to lay down any rule of general application by which the limits of the royal prerogative might be determined. His remark that it would be almost inconceivable that the Crown should claim to do such things as take possession of great industrial works or destroy buildings without being bound by law to make compensation has sometimes been misunderstood. It is not a reflection upon the limits or nature of the prerogative. It is a consideration advanced to support his conclusion that the Defence Regulations ought not to be construed as abrogating the compensation rights granted by the Defence Act and that the Crown could not be heard to say that it had exerted a non-compensable power at a time when it had compensable power equally available. Lord Moulton was clearly of opinion that "in early days" subjects injured by a use of the war prerogative would have failed to obtain recognition of any legal right to compensation. He thought, however, that during the last three centuries very important changes had taken place, those changes consisting of a long series of statutes granting special powers and making provision for compensation. These had rendered the use of the prerogative unnecessary and a taking under a relevant statute was to be presumed. My own opinion coincides with this, so far as it goes: but our difficulty in the present case is that here we are required to assume that no statute conferred the requisite power or provides compensation, and we must go back to the old "naked" prerogative. In that situation Lord Moulton must be counted as another judge who divorces compensation from a prerogative taking.
Lord Sumner again I count as neutral, since he too refused to delimit the "precise extent" of the prerogative, while I cannot truly say that I know what Lord Parmoor's opinion was, except that he thought that the Crown had not proved a prerogative right to use and occupy a hotel without paying compensation.
I cannot find, on the other hand, that any English judge has ever expressed a view that action under the war prerogative can only be taken subject to a legal right to compensation. I ought, however, to notice the words of Darling, J., in The Crown of Leon, at pp. 606–607. "The rule undoubtedly is that the King, acting in regard to what is called prerogative ‘regale et legale,’ has the right on behalf of his subjects to take their property for the defence of the Realm and to protect the interests of the subjects, compensation of course being fairly made. Nowadays compensation is made by reason of exact provisions, but it ought always to be made, because what is taken for the general good should be paid for by the general community." Whether this is intended as a statement of law or, as I should suppose, of a general public principle, I cannot be sure. If the latter, it adds nothing to ordinary public sentiment, so long as it is regarded as a general principle: if the former, it would have to be placed in opposition to the views of the other judges which I have already enumerated.
It is just in that distinction between what is expected by public sentiment and what is actually obtainable by legal right that our present difficulty lies. We know that by long tradition private property appropriated for public use is treated as the subject of compensation and we look to the Government to secure this, either by moving Parliament to provide it or by some ex gratia payment which will afterwards receive parliamentary sanction. The recent war, for instance, gave us both the Compensation (Defence) Act, 1939,which, speaking generally, was intended to provide compensation to persons affected by defined acts in exercise of emergency powers (including prerogative powers of the Crown), and the War Damage Act, 1943, the purpose of which was to introduce a scheme of insurance as cover against war damage due to enemy action. The present case is strictly an anomaly because, relating to acts done in Burma outside the scope of the United Kingdom statutes and not, so far as at present appears, within the scope of any other statutes, it requires us to consider the acts of destruction as "pure" prerogative acts without the control of legislative provisions that would obviously be available if the case were not wholly exceptional.
With great respect to those who think otherwise, however, I cannot see that that circumstance entitles us to import into the common law a legal right that has not hitherto been recognised to exist. By what title do we do it ? There is no principle of justice or equity made visible to us that has not by now been apparent for centuries: and if hitherto the justice of the matter has been administered through other channels, I do not think that there is any adequate reason to open the law courts to such claims. Indeed, as I shall hope to show later, the balance of public advantage and, perhaps, constitutional propriety argue against it. But, first, I must say something about two lines of reference, extraneous to our own common law, which were debated before us by counsel with great particularity and which have been much considered in the Court of Session. One of these sources consists of the opinions of jurists and institutional writers based on the Civil Law: the other is a collection of decisions in courts of the United States of America, of which United States v. Caltex (Philippines) Inc . is the most recent and by far the most directly in point.
Of these two sources, which can, of course, be no more than persuasive in the ascertainment of our common law about the prerogative, I am bound to say that I regard the American cases as much the more important. I appreciate the special contribution that civilian lawyers, more particularly of the Roman-Dutch school of law, made to the development of the law of Scotland during the seventeenth and eighteenth centuries, and I am sure that in appropriate cases they can still be a valuable point of reference. It was for that purpose, no doubt, that they were so fully considered by the learned judges in the Court of Session. But then in this case we are not dealing with any question of law that has any special relationship with the law of Scotland, and considerations that are, I believe, indisputable lead me to think that there is little that we can derive from these writers, however eminent, that will aid in the solution of the present problem. It is not one of international law: on the contrary, it is essentially one of municipal law and therefore, even if such writers as Grotius and de Vattel were to treat the right of eminent domain as dependent on international law, as I do not understand them to do at all, its principles could not be said to be incorporated into and form part of our municipal law according to the rules laid down in West Rand Central Gold Mining Co. v. The King . What they are addressing themselves to are the principles of public law that in their view should be observed according to natural right in a civilised polity, and the principles that they lay down, not indeed without reference to recorded historical instances, are intended for the observance of whatever power may be sovereign or "prince" in any particular state. They are not concerned with those divisions of sovereignty which in this country are expressed in the phrases "the Crown in right of the prerogative" and "the Crown in Parliament," nor are they describing the actual legal situation in any given country. The English constitution after the 1688 settlement enjoyed a general high reputation among political theorists on the continent during the eighteenth century, but I do not think that we can say that in the development of our public law any direct contribution was made by civilian or institutional jurists. Probably their works were read and respected by the educated man of public affairs and by some lawyers and did assist in forming and maintaining a climate of public opinion in which compensation for property expropriated for public use became a commonplace of parliamentary practice. But an uncompromising respect for the individual's property rights in opposition to sovereign power has its own history in this country, one much older than even the period of Whig governments of the eighteenth century, and it is tied up with the struggle for parliamentary liberties in the preceding century and the mediaeval precedents that were then interpreted or misinterpreted by the contending parties. Somehow all this has to be reconciled with the general acknowledgment of the continued existence of the prerogative.
If the civilian writers are consulted, bearing in mind the scope of the limitations that I have mentioned, there is not much room for dispute about their general view. The sovereign power in a state has the power of eminent domain over the property of subjects, but may exercise its power only for the public welfare or advantage or in case of necessity. The former category would include the latter, but some writers, for instance, Burlamaqui, do not appear to contemplate any case but that of necessity. The power covers use, acquisition and destruction. If it is exercised, compensation to the person dispossessed is "manifest equity" (Pufendorf), since it is not fair that one citizen should be required against his will to make a disproportionate sacrifice to the common wealth. A system of progressive taxation was evidently not in their minds. The majority of the writers deal with expropriation in time of war as if it did not raise any special considerations different from those appropriate to expropriation in time of peace; but there are two, Bynkershoek and de Vattel, who do recognise such a distinction, one which, I should have thought, was almost unavoidable in any realistic treatment of the subject. The former, while proposing a "general principle that all loss sustained by private citizens for common necessity or utility should be shared by all and should be paid for from the public treasury," recognises that war-time damage introduces considerations of its own. One, which none of us is entitled to forget, is that the state treasury may not be able to pay for it: the other is that expropriation or destruction suffered under war conditions may be in the nature of "ordinary damage caused by war." "Losses sustained in the misfortunes of war all subjects must suffer with equanimity, and there is never any restitution made for it." (Quaestiones Juris Publici, II, xv).
De Vattel, while no less supporting the general principle of compensation, gives separate attention to the question—Is the state bound to indemnify individuals for the damages they have sustained in war ? His answer is to divide such damages into two kinds: those done "librement et par précaution," as when a field is taken "for the purpose of erecting on the spot a town rampart, or any other piece of fortification…or when his standing corn or his storehouses are destroyed, to prevent their being of use to the enemy," and those caused by "nécessité inévitable," as, for instance, destruction caused by artillery in retaking a town. The former require compensation, the latter do not, because they are "merely incidents," which the state does not cause "librement, mais par nécessité et par accident" (Le Droit des Gens, Book III, chapter 15). In terms this opinion would place the appellants' case firmly within the category of compensable loss. But, if the line of division lies where deliberate precautionary choice ends and the necessities of war begin, it is very doubtful to me on which side their damage would lie, for, though the conduct of war and military operations constantly involve choices, those choices would not normally be described as taken freely or merely by way of precaution. I have referred to this passage of de Vattel in some detail, because it is quoted in full in the opinion of the Supreme Court of the United States in United States v. Pacific Railroad and is there cited in support of the view that destruction of property by way of denial in face of the enemy is not compensable. To that decision I must now turn.
I am quite unqualified to expound any aspect of the public law of the United States, but it seems to me impossible that, in considering our own problem of the legal consequences of denial damage in war time, we should not give much weight to the fact that on two occasions in two different wars the United States Supreme Court has refused to regard such damage as carrying a legal right to compensation, and this in face of the explicit provision of the Fifth Amendment to the Federal Constitution. That provision, part of the original Bill of Rights inserted in the Constitution, was intended to serve as a guarantee of a fundamental nature, controlling both legislation and executive action and ensuring that no individual was to suffer the condemnation of his property for the public use without receiving a corresponding right to just compensation for his loss. I could not say from what source this natural and "self-evident" right was thought to be derived, but it cannot be wrong to say that, compared with the legal structure of this country, with its unfettered parliamentary master, the sanctity of individual property in any contest with state power was protected in America that much more dramatically and more effectively. Indeed, it was an understatement on the part of Chief Justice Taney when he said in Mitchell v. Harmony, referring to Lord Mansfield's judgment in Mostyn v. Fabrigas, "This case shows how carefully the rights of private property are guarded by the laws in England; and they are certainly not less valued nor less securely guarded under the constitution and laws of the United States."
How, then, has it come about that private property destroyed in the face of an enemy in order to deny him the advantage of it has come to be regarded as non-compensable and as much outside the constitutional guarantees as, say, tax receipts or property condemned under the "police power"? Plainly the exemption of property so destroyed has not come about by any inadvertence.
There have been in the United States many cases dealing with the principles upon which the sovereign's power over private property in times of extreme emergency is to be judged, apart, of course, from the inexhaustible jurisprudence of eminent domain itself: and, with the Mexican Wars and the Civil War between North and South and the last war hostilities in the Philippines, practical instances have had to be brought to practical conclusions. Nor have there been wanting unqualified assertions in the Supreme Court itself to the effect that damage of this kind necessarily involves legal compensation (see Mitchell v. Harmony and United States v. Russell ), although it is true that neither case involved an actual decision of the court to that effect. Nevertheless we must, I think, take it from the decision in United States v. Caltex (Philippines) Inc., the case that dealt with the destruction of terminal facilities and installations belonging to private oil companies in the Philippines, that this is not compensable damage by the law of the United States. As I understand it, the reason adopted by the majority of the court was that a war-time destruction of private property by military forces to prevent its imminent capture and use by an advancing enemy was not a taking of property at all in the sense that that word is used in the Fifth Amendment. Where the purpose of the exercise of state power is confined to destroying "property of strategic value to prevent the enemy from using it to wage war the more successfully," the property never becomes appropriated to the public use at all. It and its owners suffer one of those appalling catastrophes that are part of the fortunes of war, and the Fifth Amendment is not to be understood as a "comprehensive promise that the United States will make whole all who suffer from every ravage and burden of war." The court stressed that, in their view, there was no legal significance in the fact that the destruction was effected before withdrawal and that the military authorities exercised deliberation in singling out the particular property and took it under their control in order to carry out the devastation.
To treat the matter this way seems to me equivalent to saying that in the crisis of the war emergency the sovereign power, when in the face of the enemy, has authority to commit acts of war upon the property of its own subjects without incurring any legal liability for the consequences. It is a harsh doctrine, but the emergencies of war are harsh too. The decision in the Caltex case was regarded by the majority as being in accordance with the principle governing such acts of destruction laid down by Field, J., when delivering the opinion of the Supreme Court in United States v. Pacific Railroad, a case arising out of military devastation carried out in the course of the Civil War. The opinion was not delivered until 1887 and is therefore later in date than Mitchell v. Harmony and United States v. Russell . The acts in question were the destruction by military forces of bridges belonging to a railroad company, and the passage to which the Supreme Court referred in the Caltex case was as follows:
"The war, whether considered with reference to the number of troops in the field, the extent of military operations, and the number and character of the engagements, attained proportions unequalled in the history of the present century. More than a million of men were in the armies on each side. The injury and destruction of private property caused by their operations, and by measures necessary for their safety and efficiency, were almost beyond calculation. For all injuries and destruction which followed necessarily from these causes no compensation could be claimed from the Government. By the well settled doctrines of public law it was not responsible for them. The destruction or injury of private property in battle, or in the bombardment of cities and towns, and in many other ways in the war, had to be borne by the sufferers alone as one of its consequences. Whatever would embarrass or impede the advance of the enemy, as the breaking up of roads, or the burning of bridges, or would cripple and defeat him, as destroying his means of subsistence, were lawfully ordered by the commanding general. Indeed, it was his imperative duty to direct their destruction. The necessities of the war called for and justified this. The safety of the State in such cases overrides all considerations of private loss—Salus populiis then, in truth, suprema lex."
I find this treatment of the matter very persuasive upon the question that is now before us. It assists me to form certain conclusions. One is that, though, I suppose, the Crown's acts of destruction in Burma can be spoken of as prerogative acts, since no one has ever defined the limits of prerogative acts in an emergency, given the emergency, their legal consequences can better be appreciated if they are regarded as acts of war taken in the face of the enemy and for the purpose of defeating that enemy. As such, there is no legal right to stop them in advance and there emerges no legal right to compensation or anything else, once they have taken place. This, I think, is the point that the learned Attorney-General was seeking to put before us in his argument about rights of necessity apart from prerogative acts, an argument which got somewhat obscured by the question whether a private individual could have been within the law in carrying out such works of destruction for the public safety, a question which I regard as quite irrelevant to the issue. It is also the point which is involved in most, if not all, of the opinions of the learned Lords of the Inner House, though they arrive at their conclusions by a somewhat different route and do not exclude the possibility that there can be acts of other kinds under the war prerogative which, though lawful, carry a right at law to receive compensation. This I do not accept, as at present advised, unless they are acts customarily recognised to amount to purchase and the right exercised therefore no more than a right of purchase or hire: in which case it is the fair price, hire or wage, not compensation, that is due. Experience shows, however, that such appropriation of chattels would be covered either by permanent or emergency statutes, and the right exercised would thus be statutory, not prerogative.
My second conclusion is that, where war damage is concerned, the long-standing absence of any recognition that there is jurisdiction in the courts to award compensation is based on sound considerations of public policy. Such damage is a matter, being unpredictable in extent and range, that must be controlled by that department of the sovereign power that is responsible for the raising and expenditure of public money. There is not a legal line between those divisions of that damage that carry a legal right to compensation and those that do not. Damage inflicted by the enemy may be terrible individual loss, and it is certainly suffered in the common cause. Moreover, it is likely to fall with disproportionate weight on some citizens who suffer in that cause, a fact familiar in the last war to those whose homes or places of business were close to an object of strategic importance and so peculiarly exposed to air or missile attack. Damage inflicted by one's own side, accidentally, or to prevent its capture and the enrichment of the enemy, does not seem to me different in kind, unless the element of deliberation marks off the latter, a distinction which I would agree with the Supreme Court in regarding as unreal. And no one can find an equation between the personal loss that war inflicts and its inroads upon property.
None of this is an argument against the propriety or indeed urgent desirability of the state providing compensation schemes to take care, so far as possible, of all war damage, of person or property. But it is for those who fill and empty the public purse to decide when, by whom, on what conditions and within what limitations such compensation is to be made available. After all, states lose wars as well as win them: and at the conclusion of a war that has seen massive destruction, whether self-inflicted through the medium of a "scorched earth" policy or inflicted by the enemy, there may well be urgent claims for reconstruction priorities that make it impossible in advance to mortgage the public treasury to legal claims for full individual compensation for such destruction as we have now to consider. Indeed, what in legal terms does "compensation" mean in this case ? The act of destruction was lawful, that is conceded (though I should myself prefer to say that it is was not unlawful), so we are not to think of damages and the legal rules for their assessment. Has the law any principle for measuring compensation as a legal right when an act has been done in circumstances so special that the ordinary conceptions of property do not apply to it ? Can the state be asked to pay a requisition price for something for which there was at the time no conceivable purchaser ? I do not think so, but, if this action is to proceed on its way, it is better that I should not trench further on this point.
For the reasons that I have given I think that this appeal ought to be dismissed. I do wish, however, to make it quite plain that my opinion does not amount to saying that it is the law that compensation or indemnity should not be provided for such loss as the appellants suffered. That would misrepresent my position, which is that the common law itself never has provided and does not now provide any remedy for these actions of the Crown which were admittedly lawful, and therefore there is no law on the matter to which we can give effect. That there is something which may, by a permissible transfer of language, be called a public law which requires the careful attention of the state to damage thus inflicted and calls upon it to make such provision for compensation as the recognised equity in favour of compensation may demand, I would be glad to agree. But that, I think, is not for us.
I agree that the respondent's defence under the Public Authorities Protection Act, 1893, fails.
It is necessary first to state the scope of the prerogative under consideration, and I can do no better than cite from the judgment of the Earl of Reading, C.J., in Crown of Leon (Owners) v. Admiralty Commissioners, a decision of the Divisional Court of the King's Bench Division. He first quoted the following passage from Chitty's Prerogatives of the Crown, at p. 50, which reads—"What is termed the war prerogative of the King is created by the perils and exigencies of war for the public safety, and by its perils and exigencies is therefore limited. The King may lay on a general embargo, and may do various acts growing out of sudden emergencies; but in all these cases the emergency is the avowed cause, and the act done is as temporary as the occasion. The King cannot change by his prerogative of war, either the law of nations or the law of the land, by general and unlimited regulations." He then added—"Those words were apparently spoken by Lord Erskine, in a speech in Parliament with reference to the Orders in Council. It is to be observed that it is not a judicial pronouncement, but it is quoted by the learned author as a correct statement of the law. Be that as it may, there is nothing in that statement which would lead us to the conclusion in this case that this exercise of the prerogative exceeded the powers of the Crown. The argument is that the avowed cause must be an emergency and that the act done is merely temporary, and it is suggested that it is only where there is what was called ‘instant and urgent necessity,’ that is to say, a then existing urgent necessity, that the prerogative can be invoked. That does not mean that to justify the use of the prerogative you must be able to show that at the precise moment there is such a state of things existing that unless the prerogative is invoked the nation will succumb. That is far too limited a meaning. What, I think, it means is that there must be a national emergency, an urgent necessity for taking extreme steps for the protection of the Realm."
I have set out this passage in full not only because I think it gives an accurate description of the prerogative which falls for consideration but also because the argument in this case has been complicated by the contention on the part of the Crown that the acts with which your Lordships are concerned are not, or need not be, considered as prerogative acts at all but rather as acts performed in virtue of such necessity as gives no right to compensation, whether they be done by Crown or subject.
It has been said that necessity knows no choice and that in an emergency it is not only the right but the duty of the Crown and subject alike to take all steps available to them to defeat the enemy. It is added that the only distinction between the subject and the Crown is that the subject may in a given case find it difficult or impossible to justify his actions, whereas the Crown, in exercise of its supreme authority to protect the realm, is not faced with the same restriction on the use of its power to perform the duty. Without in any way seeking to throw doubt on the validity of the argument of necessity so far as it relates to private individuals (the long recognised example being the right to cast overboard merchandise if a tempest arise at sea levandae navis causa and for the salvation of the lives of men (see Mouse's Case) without having to recompense the owner of the merchandise). I find myself in full agreement with the Lord Ordinary, who, in the course of his opinion, stated his conclusion to be that the right of an individual to encroach on his neighbour in case of necessity is a right different not in degree but in kind from the sovereign's prerogative right which is in this case in question. Not only are the sovereign's powers greater than those of the subject but, as the facts averred in this case show, he has a wider choice in the method by which the power is exercised, which is not comparable with that which is available to the subject, who would seldom be in a position to take a decision on the ground of necessity on behalf of the public. It would be approaching the absurd to suggest that the decision to destroy the pipe-lines and installations of the appellants could be taken except at a high executive level.
It is not disputed by the appellants that the acts of the Crown were lawful, being, as they were, within the wide prerogative powers available to the Crown in times of national emergency in relation to property, and it is unnecessary for your Lordships to consider in detail other aspects of the prerogative, defined by that learned constitutional writer Professor Dicey as "the residue of discretionary or arbitrary authority which at any given time is left in the hands of the Crown." This definition is, however, important as drawing attention to the limitations on the prerogative which are from time to time imposed by Acts of Parliament.
As Lord Dunedin pointed out in the case of Attorney-General v. De Keyser's Royal Hotel, "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 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." The actual decision was that the Crown had no power to take possession of the suppliants' building in the emergency created by the 1914 war in right of its prerogative simpliciter but that the suppliants were entitled to compensation in the manner provided by the Defence Act, 1842. This was an example of the prerogative right curtailed by legislation.
As the Master of the Rolls pertinently said in his judgment in the Court of Appeal, "…what use would there be in imposing limitations, if the Crown could at its pleasure disregard them and fall back on prerogative ?"
Where, as here, no statute imposes a limitation, it was, I think, the accepted opinion of writers and judges down to and including the period of the 1914 war that no compensation is payable when the prerogative has been used in an emergency as a power to do anything necessary for the defence of the realm. In the case In re A Petition of Right the right to refuse compensation, as such, was not disputed, the argument being directed to the contention that the prerogative was not available until actual invasion by the enemy rendered immediate action necessary. As Warrington, L.J., observed in the course of his judgment (at p. 666), "I think, therefore, that what has been done would be justified as an exercise of the prerogative, and in such case it is admitted that no claim to compensation arises." There is a later dictum of Lord Parker to the same effect in The Zamora. He said:
"The municipal law of this country does not give compensation to a subject whose land or goods are requisitioned by the Crown."
This dictum was thought by Atkin, L.J., in Commercial and Estates Co. of Egypt v. The Board of Trade to be no longer justified in view of the decision in De Keyser's case, to which I must now revert.
In De Keyser's case In re A Petition of Rightwas distinguished in the Court of Appeal on the ground that the requisition of a hotel for administration purposes was different in kind from the requisitioning of land for an aerodrome. The same opinion was expressed by Lord Sumner in this House at page 565. Duke, L.J., in the Court of Appeal, although dissenting in the result, having regard to the view he took as to the width of the prerogative, which he held to be sufficient to cover taking possession of the hotel for administrative purposes, was clearly of opinion that where the prerogative was duly exercised, payment was left at the discretion of the Crown. The Zamora was considered in the De Keyser case and is expressly referred to by Lord Sumner at page 565 of the report. The House did not and was not concerned to overrule the decision in In re A Petition of Right, but it must, I think, be right to accept that the fuller investigations of the history of the use of the prerogative and its legislative concomitants where land was requisitioned indicate at least some uncertainty whether the Crown was in such a case entitled to withhold compensation. I have in mind the observations of Lord Dunedin at page 524 to the effect that the king is for the purpose of the defence of the realm in times of danger entitled to take any man's property but that the texts give no certain sound as to whether this right to them is accompanied by an obligation to make compensation to him whose property is taken. In the course of his speech Lord Atkinson, at page 544, said that it appeared to him almost inconceivable that the Crown claims the right to do such things as, for example, cause any buildings to be destroyed without being bound at law to compensate the owners therefor. It was in this connection that Acts of Parliament extending over the centuries were studied and led to the conclusion that in those statutes, with one exception (viz., 4 Henry VIII, cap. 1, which provided "bulwarks…and other fortifications shall be made by the seaside in Cornwall…by assignment of the justices of the peace. To endure to the next Parliament"), there is no trace of any claim to take under the prerogative and not to pay. This seems to me what one would expect to find, but it does not dispose of the Crown's contention, adhered to throughout until the present time, that without legislative curtailment the prerogative powers have nothing to say about compensation. I would therefore not agree that Lord Parker's dictum in The Zamora is inconsistent with or overruled by the judgments in De Keyser's case, if that is what Atkin, L.J., had in mind in saying it was no longer justified by the authorities.
I have begun by referring to the position as dealt with by the more recent English cases because I do not understand it to be contended that there is a difference between the law of England and the law of Scotland so far as the prerogative of the Crown is concerned. Nor would I expect such a contention to be raised, seeing that the Crown, in and out of Parliament, occupies the same position and performs the same duties in each of the two realms.
The existence of a right to compensation is, however, said to receive support from general principles engrained in our law and in part introduced by the acceptance of the views of the civilians and institutional writers whose works have influenced judicial opinion in both realms but more especially in Scotland. So far as the common law is concerned, I would accept that there is a natural leaning in favour of compensation in the construction of a statute. In this connection Salter, J., said, after citation of authority, in Newcastle Breweries Ltd. v. The King :
"It is an established rule that a statute will not be read as authorising the taking of a subject's goods without payment unless an intention to do so be clearly expressed."
This principle does not assist greatly in consideration of the extent of the prerogative when in a state of emergency "arms impose silence on the laws." True, that Parliament will be expected to legislate and by its legislation give compensation where compensation is considered to be justly due, but in the absence of legislation the prerogative can still remain intact.
What, then, of the civilian and institutional writers ? The Lord Ordinary appeared to regard the principles derived from the institutional writers as part of the common law of Scotland and he was able to derive from them that, in so far as the prerogative had not been revoked by statute, still in cases where statute has no effect and the residuary sovereign's right exists and is exercised, the exercise is lawful, subject to the equitable obligation to make compensation.
With all respect to the Lord Ordinary I cannot go all the way with him in this. The position was, I think, more accurately put by counsel for the appellants in addressing your Lordships when he relied on these writers as being of persuasive rather than of binding authority; see the observations of Lord Macmillan in Stewart v. London, Midland and Scottish Railway Co. The civilian writers, basing themselves on the law of nations, undoubtedly support the view that, when the sovereign exercises his right of eminent domain, he is bound to cause the loss occasioned thereby to be shared equally amongst the beneficiaries, with whom is included the private owner despoiled, so that it falls on the state and not on an individual.
In my opinion, this principle, even if sound as a matter of policy, has not been incorporated into our law so as to make it possible for the subject to sue the state for compensation in the courts. There are, needless to say, great practical difficulties in the way of the courts dealing with the particular circumstances in which claims are likely to arise, and the weight to be given to facts tending to inflate or deflate the claims which may be made. For example, in the case of consumable stores which are doomed to fall into the hands of the enemy the moral claim for compensation for their destruction would not seem to be strong. Other considerations apply to permanent installations which the enemy would be expected to use if he could. These are matters more suitable to be dealt with by Parliament through legislation than to be left to be determined by action in the courts. That the general principle is not novel so far as the common law is concerned is shown by the acceptance of the Rhodian Law, called in this country the law of general average. Maritime law, for the purposes of public policy and the advantage of trade, as Bowen, L.J., said in Falcke v. Scottish Imperial Insurance Co., imposes "a liability upon the thing saved," but "no similar doctrine applies to things lost upon land, nor to anything except ships or goods in peril at sea." In times of emergency it is, I should have thought, most desirable that Parliament should, if so advised, lay down not only the extent of compensation but the section of the community which should bear the burden. The common law has not readily available the machinery for this purpose.
The doctrine of eminent domain is, no doubt, an aspect of sovereignty, but it has not the same scope as the prerogative with which your Lordships are concerned. At the same time the writers on that topic do, as all the judges in the Scottish courts have recognised and indeed founded upon, provide guidance which is appropriate by its language to cover incidents which occur in an emergency, such as those averred by the appellants. I will not repeat the survey of those passages which are set out in detail in the judgment of the Lord Ordinary and again examined by the Lord President and the other members of the Inner House and have been again examined meticulously by counsel who have addressed your Lordships. Even if one accepts the persuasive effect of these writings as leading to the conclusion that compensation must be payable unless it fall within the exception described as "battle damage," when, it was conceded, the loss must lie where it falls, the difficulties in the way of the appellants are, to my mind, insuperable.
An attempt was made to draw a distinction between acts done in the heat of battle, when infliction of loss is said to be accidental, and damage done deliberately and by way of precaution. This distinction is most clearly made in a passage from de Vattel, book III, chapter 15, paragraph 232, relied upon by the appellants. They say that the destruction of their property was done deliberately by way of precaution and not accidentally. I find this test difficult of application and one which at the present day is perhaps unworkable, having regard to the extent to which the activities of modern warfare far exceed the limits of the ancient battlefield. The Lord Ordinary faced the difficulty presented by this distinction and felt able to conclude that the acts founded upon by the appellants fell upon that side of the line which included deliberate acts for which compensation was payable and not on that side where it was conceded that the loss, being "battle damage," lay where it fell. The real difficulty is, I think, that of defining with any precision what is "battle damage." The adjective "accidental" does not seem to me to be appropriate, but counsel were not able to find a better substitute. Students of military history would no doubt readily agree that that adjective often fits very well as descriptive of what happens in combat, but it can hardly be appropriate to describe all the damage which is inflicted as if only a minor part were deliberate. The same difficulty is present if one seeks to draw a distinction between tactical and strategic damage, as I think the Lord President recognised, and I respectfully agree with him, and with the other members of the Inner House who reached the same conclusion, that the line cannot be drawn so as to treat as matters separate from the actual fighting the lawful acts of destruction performed in this case in the exercise of the prerogative power.
Much of the debate that has taken place has related to the taking of property and not to its destruction. This distinction can be disposed of shortly, for the Crown does not argue that it is in any different position because the property of the appellants was destroyed and not only taken over or confiscated.
I must, however, make reference to an American decision, namely, United States v. Caltex (Philippines) Inc., which is on its facts indistinguishable in any material respect from the present case, although the law applicable is not precisely the same. There, reviewing a decision of the Court of Claims, the Supreme Court held that the wartime destruction of private property by the army to prevent its imminent capture and use by an advancing enemy did not entitle the owner to compensation under the Fifth Amendment to the Constitution, which reads—"nor shall private property be taken for public use, without just compensation." In so far as the decision turned on the fact that a distinction was there drawn between taking and destroying, your Lordships are not concerned, as I apprehend, to express any opinion. The decision did not, however, rest wholly on this ground. The majority based themselves also on the ground that the common law had long recognised that in times of imminent peril, such as when fire threatened a whole community, the sovereign could, with immunity, destroy the property of a few that the property of many and the lives of many more could be saved. That the acts were deliberate acts was put forward in that case, as in this, as a ground for treating them as if they had different legal consequences from acts performed in the heat of battle. This argument was rejected, but that there was a live issue of the same kind as that before your Lordships is clear from the dissenting opinions of Douglas and Black, JJ., who stood for the principle that, whenever the Government determines that one person's property—whatever it may be—is essential to the war effort and appropriates it for the common good, the public purse, rather than the individual's, should bear the loss.
The American cases to which your Lordships were referred show the extent to which the doctrine of eminent domain has been received into the law of the United States, and the decision in the Caltexcase was reached after consideration of the cases in which the doctrine was discussed and relied upon. I regard the decision of the Supreme Court as not only entitled to the greatest respect but directly relevant to the issue to be decided.
I agree with the reasons given in the Scottish courts for rejecting the plea of the Crown that the action is barred by the Public Authorities Protection Act, 1893, but, for the reasons which I have given, I would dismiss the appeal.
The learned Attorney-General seeks to narrow this aspect of the prerogative by limiting it to actual occasions of extreme danger and necessity in the face of an enemy who has embarked on active operations. It is, he argues, co-extensive with the right and the duty, based on necessity, which appertain to magistrate and citizen alike, to deal either with the enemy at the gates, or with riot and rebellion, by taking or destroying without liability to compensate; and the only difference between the rights and duties of the citizen and of the Crown on such occasions is that the citizen may in practice have to justify his acts by the exigencies of the crisis, whereas the Crown is the judge of the necessity for its acts.
It may well be that, so far as riot and rebellion within the realm are concerned, "the power of the Crown, like the power of any other magistrate and, indeed, of every citizen, is derived from and measured by the necessity of the case." See Professor Holdsworth's History of English Law, vol. 10, pp. 708–9, where he concludes that, although divergent views were held in the eighteenth and nineteenth centuries and there was considerable controversy, that view in substance is the one taken by our modern law. But the right of the Crown to take extreme measures or declare martial law against its own subjects differs from its rights when there is a state of war against enemy subjects and is more jealously regarded by the law. And no authority has been cited to show that the Crown prerogative in war has been regarded as having the same limitations as its rights in dealing with riot and rebellion.
It is not possible that the war prerogative of the warrior king should dwindle to the right and duty of "every man in a brown coat" (as Lord Thurlow expressed it) and should come into effect only when things are so desperate that the citizen may use his own initiative in improvising defences and burning stores. It would, indeed, be an odd state of affairs if the Crown had no power to blow up these oil wells, at a damage of some millions of pounds for strategic reasons which demanded a knowledge of secret information and a consideration of the whole future conduct of the war, unless and until things had reached a pass at which the man in the street was entitled to blow them up.
I cannot find any ground for isolating from the general war prerogative one limited aspect of it which in times of ultimate peril is co-extensive with the rights and duties of the citizen. The prerogative power in the emergency of war must be one power, whether the peril is merely threatening or has reached the ultimate stage of crisis. Bulwarks are as necessary for the public safety when they are constructed in good time against a foreseen invasion as when they are hastily improvised after the enemy has landed. The Crown must have power to act before the ultimate crisis arises. And if it be the fact that it must pay compensation for acts of deliberate taking or destruction done with wise prescience at the proper time, I find it hard to see why similar acts done tardily in the moment of crisis should have immunity from compensation. There is, of course, obvious force in the distinction drawn by de Vattel and other institutional writers between damage which is done deliberately well in advance of the battle and damage which arises in the conflict and hazards of the battle itself. But one cannot found any such distinction on some difference between the nature of the Crown's acts done in defence of the realm in the general emergency of war and the nature of the Crown's acts in moments of ultimate crisis.
The difficulty in the Crown's contention is this. A claim to take whatever it needs from the subject without payment in the general emergency of war is too wide to be supported by any doctrine of mere necessity alone. Such a power has never been laid down by any authority. Indeed, if it existed, war taxation would be largely unnecessary, since the armed forces could simply take what they needed in time of war. Yet nobody suggested its existence in Hampden's Case of the ship money. Assume that there comes an ultimate degree of crisis in which the citizen can take or destroy without payment (and it is to be noted that such a situation has not been the subject of any very precise decision at common law); then can the Crown, albeit not needing that degree of crisis to justify its right to take (since that right already exists in the general emergency before the ultimate crisis), use that degree of crisis to justify a failure to compensate ?There seems no adequate reason for this, since the Crown and the citizen are not in the same position with regard to payment. If justice requires that the sacrifice of one person's property for the common good be compensated by the rest, which is the principle found in our law of general average (see Mouse's Case) and other legal systems as early as the lex Rhodia, the Crown is better placed than the citizen for collecting contribution from the commonalty. The Crown or the state can, but the citizen cannot.
The prerogative in time of war has never been defined with precision. Swinfen Eady, M.R., in De Keyser's Royal Hotel Ltd. v. The King considered "what powers are by law vested in the Sovereign, and exercised by the executive Government, over the lands and houses of subjects required for the defence and security of the realm. Those powers which the executive exercises without parliamentary authority are comprised under the comprehensive term of the prerogative." He cited with approval (at p. 217) a passage from Chitty on the Prerogatives of the Crown (p. 44):
"As the constitution of the country has vested in the King the right to make war or peace, it has necessarily and incidentally assigned to him on the same principles the management of the war; together with various prerogatives which may enable His Majesty to carry it on with effect. Thus…the King is solely entitled to erect, fortify, and govern forts and other places of strength, within his dominions."
"In case of necessity the King may enter on the lands of his subjects to make fortifications."
The Earl of Reading, L.C.J., in the Crown of Leoncase referred to Lord Erskine's words quoted in Chitty on the Prerogatives of the Crown:
"What is termed the war prerogative of the King is created by the perils and exigencies of war for the public safety, and by its perils and exigencies is therefore limited. The King may lay on a general embargo, and may do various acts growing out of sudden emergencies; but in all these cases the emergency is the avowed cause, and the act done is as temporary as the occasion. The King cannot change by his prerogative of war, either the law of nations or the law of the land, by general and unlimited regulations."
Lord Reading there pointed out (at p. 604) that the existing urgent necessity which would justify the invocation of the war prerogative need not be such that "at the precise moment there is such a state of things existing that unless the prerogative is invoked the nation will succumb"; but there must be a national emergency. Undoubtedly such an emergency existed in 1939, when the war started.
In 1939 the sovereign Parliament could have enacted that the Crown could take or damage the property of the subject without any duty to compensate. In fact, however, it accepted liability to compensate for damage caused in the United Kingdom by action taken in the exercise of emergency powers (Compensation (Defence) Act, 1939, section 1) including acts of destruction (section 17 (2)). This acceptance, which was in line with modern thought, also largely accorded with the notions of law and justice expressed by the institutional writers in the seventeenth and eighteen centuries. But it did not extend to damage in Burma.
Since Burma was then a crown colony, the law applicable to these matters is the common law of England. There has been considerable discussion both here and in the courts below as to the law of Scotland. Though not necessarily similar in all respects on this matter, the laws of England and Scotland have sufficient similarity to make the consideration of Scots law a valuable help in ascertaining what is the law of England.
The Crown can by virtue of its prerogative in stress of war take that which it deems necessary, subject to the effect of any relevant legislation. See Attorney-General v. De Keyser's Royal Hotel . Whether the true effect of any such legislation would be to abridge the prerogative or curtail or supersede it temporarily is not of direct relevance to the question now before your Lordships, since you have not been referred to any legislation that applies to property in Burma. The right to take, however, is not equivalent to the right to take without compensation. For although taking may be justified by necessity, there is no such necessity to take without compensation if in fact the Crown or the state has the means to pay. (See Attorney-General v. De Keyser's Royal Hotel, at pp. 529, 542, 562, 569.) It is rightly conceded that deliberate destruction was for this purpose equivalent to taking.
The general question, therefore, is whether at common law the Crown, by virtue of its war prerogative, can take the subject's property without any compensation. If there is a general duty to compensate, the particular question arises whether, in the circumstances averred, that general duty to compensate was excluded by the fact that the destruction was battle damage or was done in the course of military operations. The Lord Ordinary answered both questions in favour of the pursuers, but the Inner House answered the second question in favour of the Crown.
The prerogative or right of sovereignty or eminent domain (as Grotius and other institutional writers called it) was, theoretically at least, subject to the public law, by which the citizens either individually or as a whole had certain rights. And it is those rights which the writers on eminent domain recognised and which, in their view, the sovereign was bound to respect, although there might in practice be no one strong enough to call him to account if he failed to do so. But the King in Parliament is limited by no such restraints, since, when king and citizens consent together, they can curtail either the rights of sovereignty or the liberties of the subject. Where, however, the prerogative survives, it remains the ancient sovereignty within the limits of the law existing side by side with the King in Parliament that can alter the law.
Bracton's theory that the Crown was subject to the rule of law has, after some vicissitudes in Stuart times, prevailed. The Crown was under the law quia lex facit regem. Non est enim Rex ubi dominatur voluntas et non lex (Bracton folio 5 B). See Professor Holdsworth's History of English Law, vol. 10, pp. 647, 648. And even in Stuart times Crooke, J., in his dissenting judgment in Hampden's Case, after referring to Magna Charta, said:
"Fortescue Chief justice setteth down what the law of England is in that kind, as instructions for the young prince. Saith he ‘The king governeth his people by power, not only royal but also politic.’ If this power over them were royal only, then he might change the laws of his realm, and charge his subjects with taillage, and other burdens, without their consent. Thus the king can change no laws, nor yet charge them with strange impositions against their wills. He setteth down, as the head is the chief of the body, so the king is the head of his people: He cannot take any thing from them, without their ordinary consent; the common consent is in parliament. Cap. 3, an express clause there, hoc individuo. Show me any book of law against this, that the king shall take no man's goods, but he shall pay for it, though it be for his own provision; or lay any burden upon his subjects, but he must do it by their consent in parliament."
The prerogative is the residue of the power of sovereignty that has not been superseded or abridged or supplanted temporarily by the power of the King in Parliament. The law and Parliament have so altered and curtailed (and in parts confirmed) the various aspects of the prerogative that the whole subject is obscure and difficult. It would appear that when Parliament gives a power concurrent with that of the prerogative but subject to certain imposed limits, such as an obligation to pay compensation, the prerogative cannot then act without observing those limits; and if the statutory power were repealed, the prerogative power would apparently re-emerge as it existed before the statute (see the case of De Keyser's Royal Hotel). Whether one refers to sovereignty as prerogative, or suprema potestas or eminent domain, it was the power of the sovereign, who in peace and war had the right and duty to perform acts necessary to govern and protect its citizens. The institutional writers discussed eminent domain at length, and your Lordships have been referred to many passages in which they propounded views which are a blend of theory and practice.
The law of eminent domain has been accepted by the United States courts as applicable to their law, and de Vattel has been relied on in more than one case dealing with the duty of the state to compensate. All the judges in this case have drawn on the institutional writers and have accepted their authority as influential on Scots law. The English law never had that close association which Scots law had with the universities of Holland in the seventeenth and eighteenth centuries. Nevertheless, I think in English law also one should give weight to their writings, as showing what was the general view of natural justice and the practice and theory of monarchy. From those writings it would appear that there was a duty on the eminent domain to compensate citizens in respect of injuries which it inflicted on them as being necessary for the general good. Almost all the writings agree that there is a line, hard to define, which excludes from compensation some kind of damage, whether one describes it as battle damage, or damage due to the fortunes of war or by some other definition.
It is plainly just and equitable that, when the state takes or destroys a subject's property for the general good of the state, it shall pay him compensation. Are there good grounds of authority or theory or practice for saying that in England the prerogative had no such general duty to compensate ?
The Year Books deal with certain cases where trespass by private citizens was said to be justified by necessity, but they throw little light on the duty of the Crown to compensate. In the Year Book of 1468 (8 Edw. IV; also referred to in Brooke's Graunde Abridgement, p. 207, case number 45) private trespass was held to be justified by exigencies of invasion, when "the enemy were coming." Apparently the ground of defence was a custom of Kent, and it remained open whether the defence would have been good at common law. In 1506 (21 Henry VII, page 27, case number 5; also referred to in Brooke's Graunde Abridgement, p. 293, case number 213) in a case of trespass it was said obiterthat "in time of war one may justify entry on to another's land to make bulwarks for the defence of the King and the Realm, and such things are justifiable and lawful for the maintenance of the Commonwealth." Again, in 1521 (Year Book 12 Henry VIII, Folio 16, case number 1) it was said, obiter "…for the sake of the commonwealth one must suffer damage as a house may be pulled down if the house next to it is burning, and the suburbs of cities can be pulled down in time of war as this is for the benefit of the commonwealth, and a thing which is for the benefit of the commonwealth anyone can do without being liable to action so then in the common each commoner has an interest for ‘the common’ means the same as in common with others and each person who has any interest can lawfully save and defend it."
The pulling down of houses to prevent a fire spreading is clearly a difficult question which needs further precision. As to compensation in such cases no English authority has been cited to your Lordships; certain American cases against the civic authority were cited, but I do not find them helpful (Mayor of New York v. Lord; Mayor of New York v. Stone ). The razing of suburbs in time of war was a favourite example with the institutional writers, who studied the question with greater precision.
These imprecise dicta in the Year Books, unsupported by any direct authority, were repeated again in the case of The King's Prerogative in Saltpetre, where all the justices made certain resolutions. They held that "inasmuch as this concerns the necessary defence of the realm,…the King may take it [the saltpetre] according to the limitations following for the necessary defence of the kingdom." There were seven limitations. The first was that his servants who dug for saltpetre must "leave the inheritance of the subject in so good a plight as they found it, which they cannot do if they might cut the timber growing, which would tend to the disinheritance of the subject, which the King by prerogative cannot do; for the Kingg (as it is said in our books cannot do any wrong." They then distinguished the case of gravel for the King's own private house or bridge, for which he cannot charge his subjects. "For that doth not extend to public benefit; but when enemies come against the realm to the sea-coast, it is lawful to come upon my land adjoining to the same coast, to make trenches or bulwarks for the defence of the realm, for every subject hath benefit by it. And therefore by the common law, every man may come upon my land for the defence of the realm, as appears 8 Ed. 4. 23. And in such case on such extremity they may dig for gravel, for the making of bulwarks: for this is for the public, and 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;" (the italics are mine) "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 action, as it is said in 3 H. 8. fol. 15." (This appears on investigation to be an inaccurate reference to the dictum above cited in 12 H. 8. folio 16.) "And in this case the rule is true, Princeps et respublica ex justa causa possunt rem meam auferre."
The second limitation held that "this taking of saltpetre is a purveyance of it for the making of gunpowder for the necessary defence and safety of the realm." Also it was non-transferable, to be used only for the defence of the realm. The third limitation prohibited digging so as to weaken buildings. And the fourth laid down that "they ought to make the places in which they dig, so well and commodious to the owner as they were before." It was observed that no licences were granted until 1589, "the next year after the Spanish invasion," when two licences were granted—in one or both of which it was observed "that no power is given to dig in any mansion-house, barns, dove-houses, etc. but, as appears in the last clause, in mud-walls, stables, and grounds; for the clause of reparation ought without question to extend to all the places to which the power to dig extends, &c."
The fact that the king's right was a purveyance seems to show that the king had to pay for the saltpetre, since purveyances (before their abolition in 1660) were pre-emptive rights of purchase (see Blackstone's Commentaries (1765 ed.), vol. 1, pp. 277–278, cap. 8, Royal Revenue). No case has been cited where a purveyance has not entailed any payment; nor any case which suggests that payment is unnecessary when the enemy is at the gates.
It is to be noted that the right of the king to come upon a man's land for saltpetre was justified as being necessary for the defence of the realm by reference to examples taken from moments of war and "extremity" and crisis. And yet there are limitations which compel the Crown to pay and compel the Crown's servants to "leave the inheritance of the subject in so good a plight as they found it" and "to make the places in which they dig so well and commodious to the owner as they were before."
After the Saltpetre Case there is a dearth of any authority bearing on the question whether compensation should be paid or not. But researches into the Crown records made in the case of De Keyser's Royal Hotel have shown that a practice of compensation obtained from early times.
The practice to be gathered from the records was thus described by Lord Dunedin (Attorney-General v. De Keyser's Royal Hotel, at p. 525):
"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 statutory sanction. Nor is there any proof that any such acquisition had taken place."
The first statute dealing with acquisition of land (7 Anne, cap. 26) refers to preventing extortionate demands by a valuation by a jury. References to extravagant claims are made in other statutes, e.g., in 1757 during the Seven Years' War (31 Geo. II, cap. 39). And later, when there was a threat of invasion from France and Spain, the statute of 20 Geo. III, cap. 38, says:
"And whereas many of the owners and proprietors of the lands…necessary to be purchased, may insist on large and extravagant demands for the purchase of such lands…or for the damage and injury they may pretend that they shall sustain by reason of such fortifications and intrenchments."
It is odd that Parliament should fear extravagant claims if the Crown was under no liability and merely made ex gratia payments. It would have been easy to make that fact clear by refusal to pay or by declaration in a statute. After referring to various statutes Lord Dunedin marks the significance of the fact that in the whole statutory series there is no trace of any claim to take under the prerogative and not to pay. "But the real point," he said (at p. 527)"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 temporary 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, it was the function of the prerogative to provide free of charge, leaving it to statute to provide for a permanent acquisition." The statutory series culminated in the Defence Act, 1842, passed in time of peace, which also provided, inter alia, for temporary taking "during such time as the exigency of the public service shall require" with payment. Lord Atkinson (at p. 539), in agreeing with the conclusion of the Master of the Rolls on the effect of the records, said:
"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."
Lord Sumner (at p. 563), in referring to the incompleteness of the "search for documents relating to the taking of land for fortifications and similar purposes in times past," said:
"So far as it went, it is said to have been inconclusive. Probably it will never go any further, for the result has scarcely been such as would encourage the Executive to proceed with it, and the subject does not greatly attract the student of history."
No further searches have been revealed to us.
In 1914, however, after attacks upon the coast, the Crown took over for war purposes an aerodrome at Shoreham and successfully asserted a prerogative right to take without compensation (In re A Petition of Right). There was an appeal to your Lordships' House which was settled (1916 W. N. 311, and see per Lord Parmoor in Attorney-General v. De Keyser's Royal Hotel ). The Court of Appeal did not, however, have the benefit of the historical researches (and arguments) that were before it in the later case of De Keyser's Royal Hotel. If it had, it may be that the result would have been different, since Warrington, L.J., who was a party to both decisions, was clearly influenced by them in the later case. He felt himself, however, able to distinguish it from the earlier case on the facts. In the case of De Keyser's Royal Hotel the House of Lords unanimously held that the plaintiff was entitled to compensation for premises that had been requisitioned, and thereafter In re A Petition of Right could no longer, I think, be regarded as good law.
The point at issue in the case of De Keyser's Royal Hotel was not the same as the question now before your Lordships, and the opinions do not answer that question. Nevertheless they throw much light on it. The case decided that the plaintiffs were entitled to compensation in the manner provided by the Defence Act, 1842, and that in the light of the statutory provisions the Crown could not by virtue of prerogative take without payment. Its general effect is fairly summed up by Atkin, L.J., in a later case (Commercial and Estates Co. of Egypt v. The Board of Trade, at p. 296):
"Municipal law by a series of statutes, if not by common law, provides for compensation either in full or with some restrictions when the subject's property is taken for the defence of the realm. Lord Parker's dictum to the contrary in The Zamora delivered after the decision in In re A Petition of Right and before the decision in Attorney-General v. De Keyser's Royal Hotel is no longer justified by the authorities."
I take the word "restrictions" to refer to the method of compensation under the Defence Act, 1842.
In The Zamora Lord Parker, giving the judgment of the Privy Council, had reversed a decision of the Prize Court relating to rights of requisitioning cargo in neutral shipping. His dictum(as may be seen if the words be read in full) was not essential to the decision or even to the reasoning on which the decision was founded; it was merely an illustration. "The municipal law of one nation in respect of the right to requisition the property of its subjects differs, or may differ, from that of another nation. The circumstances under which, the purposes for which, and the conditions subject to which the right may be exercised need not be the same. The municipal law of this country does not give compensation to a subject whose land or goods are requisitioned by the Crown. The municipal law of other nations may insist on compensation as a condition of the right. The circumstances and purposes under and for which the right can be exercised may similarly vary. It would be anomalous if the international law by which all nations are bound could only be ascertained by an enquiry into the municipal law which prevails in each. It would be a still greater anomaly if in times of war a belligerent could, by altering his municipal law in this respect, affect the rights of other nations or their subjects."
Whatever was the municipal law of this country, the reasoning would have been the same. The illustration was correct at the time when it was given, in view of the Court of Appeal's decision in the Shoreham case. Three years later, after the decision of your Lordships' House in the case of De Keyser's Royal Hotel, it was not correct. But even after that case the illustration would have been just as valid by removing the word "not" from the sentence relating to our municipal law and inserting it in the next sentence, which referred to the possible law of other nations. It is unreal, I think, to suppose that Lord Parker was intending to make a deep pronouncement on a difficult subject in a sentence which was only used as an illustration and which accorded with the law as then laid down in a case which had been cited in argument. In the case of De Keyser's Royal Hotel the dictum was unsuccessfully relied on by the Crown, and Lord Parmoor (at p. 573) said:
"In the course of his judgment Lord Parker does incidentally refer to the authority of the Royal Prerogative within the domain of municipal law, but this was not a matter in issue in the case, and there was no argument addressed to the question now in appeal before your Lordships."
A right of confiscation must be clearly shown to exist before the law will give effect to it. If authority be needed for this inherent rule of justice, one may take the words of Salter, J., in Newcastle Breweries Ltd. v. The King :
"It is plain that this provision may deprive the subject of part…of the sum to which he was entitled by statute, and that it authorises for an indefinite time the taking by the Crown of the subject's goods without payment of the pecuniary equivalent at the time of requisition. It is an established rule that a statute will not be read as authorising the taking of a subject's goods without payment unless an intention to do so be clearly expressed: see Attorney-General v. Horner; London and North Western Ry. Co. v. Evans; Regina v. Abbott; Commissioner of Public Works (Cape Colony) v. Logan ."
In my view, the matters on which the Crown relies are too slender to support such an infringement of the subject's rights. There are the imprecise dicta in the Year Books about coming on land in time of crisis to make bulwarks in defence of the king and his realm and the power of pulling down suburbs, and so forth. These are repeated in the Saltpetre Case, but the finding in the case is that the king must pay for his saltpetre and the king's servants must leave the inheritance of the subject in so good a plight as they find it, and have a duty to make the places in which they dig so well and commodious to the owner as before. In Stuart times there are some admissions in seventy pages of learned argument by Hampden's counsel in the Ship Money Case, but it is unwise to regard the admissions of counsel as establishing the law. There is the decision in In re A Petition of Right, but I agree with the observation of Atkin, L.J., and in my view it cannot stand in the light of the subsequent case of De Keyser's Royal Hotel. Nor can the incidental reference of Lord Parker in The Zamora to the law as it then stood.
These matters are greatly outweighed by the indications to the contrary. There are the thoughtful institutional writings which, on a balanced view, concluded that justice as it was in fact, or ought to be in theory, required compensation for losses inflicted on subjects for the benefit of the community. There is the absence of any decision that the Crown may seize without compensation. On the contrary, there is the Saltpetre Case, which held that the Crown must pay and make reparation for damage caused in a taking of saltpetre which was justified on the ground of war prerogative. There are the opinions of your Lordships' House in the De Keyser's Royal Hotelcase. Above all, there is the fact that from early days, by bargain or by statutory compensation, the Crown has always paid, so far as records show. And the 1939 legislation shows, if any doubt on the matter could exist, that our modern view of what is equitable on this point accords with that of the institutional writers.
There is and there should be a wide residue of power to govern in the crisis of war if for any reason Parliament were unable to pass the necessary legislation in time. It is right that in time of war the government or the armed forces should have the power to take or destroy the property of the subject so far as they deem necessary for the safety of the realm. But the express practice of Parliament for two hundred and fifty years and more has clearly shown that there is no concurrent necessity to deprive the subject of compensation. "The safety of the State is best secured by a general average contribution and not by making jettison of individual interests." (Regina v. Abbott, at p. 405, approved in Cannon Brewery Co. Ltd. v. Central Control Board (Liquor Traffic), at p. 110.) To allow the Government and the armed forces to take and destroy arbitrarily without compensation in time of war, although no necessity for confiscation exists, and Parliament has never sought to impose it (except to some extent for a brief period in 1512—4 Hen. 8, cap. 1), would be an unjust deprivation of the rights of subjects for which I can see no adequate justification. For this purpose one might perhaps steal the attractive thunder of Mr St John's final peroration in the Ship Money Case(at col. 923) "…the disuse shows that these claims of theirs were not legal. Bracton in his fourth book folio 209 saith that ‘longa patientia trahitur and consensum.’ The non-claims therefore of so many Kings and Queens I shall present into your Lordships as so many le voets and declarations of their general consents, that without assent in Parliament they could not have laid the like sess upon any of their subjects as is now laid upon my clients." Lord Loreburn, L.C., said in Winstanley v. North Manchester Overseers (at p. 11):
"I strongly incline to find, or even to presume, a lawful origin for a long-continued immunity, if the case admits of it."
And he referred to the "common law which is rooted in custom." Where both custom from early times and equity alike favour compensation, it would be strange if your Lordships should deny it.
So far as concerns the law of Scotland, I respectfully accept the judgments of the Lord Ordinary and the Lord President on the question of the general right to compensation. And indeed those of the other learned Lords of the Inner House were very similar. They confirm the view which is, in my opinion, to be derived from English authority and practice.
Is there anything in the United States which should lead one to a contrary conclusion ? Several important cases have been cited. In one respect they are not in pari materia. For the Fifth Amendment provided in express terms "nor shall private property by taken for public use without just compensation." Thus subjects started with a clear and overriding expression of their rights such as is not to be found in English law. And as a natural consequence the cases tended to turn on the effect of the Fifth Amendment rather than on the effect of the common law as it would be without the Amendment. Nevertheless they carry considerable weight and show the considerations involved in the present case, particularly with regard to how the line should be drawn at which liability to compensate vanishes in the dust of battle.
Respublica v. Sparhawk was decided on the common law before the Constitution. It was an attempt to make the state liable in trespass because it ordered the removal of the plaintiff's stores to a store-place to prevent their falling into the hands of the British. The stores when moved were captured, but it seems that they would have been captured had they not been removed; and the Court rightly held that, though the removal of the stores would have been a trespass in time of peace, yet it was lawful flagrante bello.
Thereafter, the cases turn largely on the Fifth Amendment. In Mitchell v. Harmony, in the Supreme Court of the United States, Taney, C.J., stated the law in clear general terms:
"There are, without doubt, occasions in which private property may lawfully be taken possession of or destroyed to prevent it from falling into the hands of the public enemy; and also where a military officer, charged with a particular duty, may impress private property into the public service or take it for public use. Unquestionably, in such cases, the government is bound to make full compensation to the owner; but the officer is not a trespasser. But we are clearly of opinion, that in all these cases the danger must be immediate and impending; or the necessity urgent for the public service, such as will not admit of delay, and where the action of the civil authority would be too late in providing the means which the occasion calls for. It is impossible to define the particular circumstances of danger or necessity in which this power may be lawfully exercised. Every case must depend on its own circumstances. It is the emergency that gives the right, and the emergency must be shown to exist before the taking can be justified."
Your Lordships were referred to the judgments in three cases in the Court of Claims, the cases of Baldwin, Grant and Wiggins. But those cases go too far, I think, in favour of the pursuers, since their reasoning would justify compensation in all circumstances and they cannot be considered valid in view of the later cases in the Supreme Court.
The principle of Mitchell v. Harmony was followed in United States v. Russell, where it is said (at p. 628) that "the rule is well settled that the officer taking private property for such a purpose, if the emergency is fully proved, is not a trespasser, and that the government is bound to make full compensation to the owner." And again (at p. 629):
"Private rights, under such extreme and imperious circumstances, must give way for the time to the public good, but the government must make full restitution for the sacrifice."
In United States v. Pacific Railroad Co. the court considered the limitations on the broad principle in respect of damage caused by military operations. Field, J., said (at p. 233):
"More than a million men were in the armies on each side. The injury and destruction of private property caused by their operations, and by measures necessary for their safety and efficiency, were almost beyond calculation. For all injuries and destruction which followed necessarily from these causes no compensation could be claimed from the government. By the well settled doctrines of public law it was not responsible for them. The destruction or injury of private property in battle, or in the bombardment of cities and towns, and in many other ways in the war, had to be borne by the sufferers alone as one of its consequences. Whatever would embarrass or impede the advance of the enemy, as the breaking up of roads, or the burning of bridges, or would cripple and defeat him, as destroying his means of subsistence, were lawfully ordered by the commanding general. Indeed, it was his imperative duty to direct their destruction. The necessities of the war called for and justified this. The safety of the state in such cases overrides all considerations of private loss. Solus populi is then, in truth, suprema, lex."
He then cites various authorities and quotes from de Vattel. He concluded by observing (at p. 239):
"In what we have said as to the exemption of government from liability for private property injured or destroyed during war, by the operations of armies in the field, or by measures necessary for their safety or efficiency, we do not mean to include claims where property of loyal citizens is taken for the service of our armies, such as vessels…or buildings…or claims for supplies seized and appropriated. In such cases, it has been the practice of the government to make compensation for the property taken. Its obligation to do so is supposed to rest upon the general principle of justice that compensation should be made where private property is taken for public use, although the seizure and appropriation of private property under such circumstances by the military authorities may not be within the terms of the constitutional clause. Mitchell v. Harmony; United States v. Russell ."
The actual facts of the case are far from clear. There was a claim in respect of bridges blown up as an act of military necessity, some by one army, some by the other, and a set-off claiming payment in respect of bridges which the Confederate army rebuilt as an act of military necessity. Both claims were disallowed. I do not find it clear from the report how the bridges were blown up—as a preliminary precaution, or in the heat of battle. If Field, J., was founding on de Vattel, as it seems, it would appear that the blowing up came more into the latter category.
Finally in United States v. Caltex the Supreme Court, reversing the Court of Claims, refused compensation under the Fifth Amendment in respect of terminal facilities, such as wharves, rails, pumps, storage tanks and other property of oil companies destroyed at Manila at the time of the Japanese attack on Pearl Harbour to prevent its imminent capture and use by the enemy. The Government had paid for all stocks of petrol and transportation equipment which were either used by the army or destroyed. The court adopted the dictum of Field, J., in United States v. Pacific Railroad Co. and distinguished Mitchell v. Harmony and United States v. Russell . The Caltex case has great similarity to the present case. Douglas and Black, JJ., expressed their dissent in concise terms which clearly mark the point at issue:
"The property was destroyed, not because it was in the nature of a public nuisance, but because its destruction was deemed necessary to help to win the war. It was as clearly appropriated to that end as animals, food and supplies requisitioned for the defense effort. As the Court says, the destruction of this property deprived the enemy of a valuable logistic weapon. It seems to me that the guiding principle should be this: Whenever the government determines that one person's property—whatever it may be—is essential to the war effort and appropriates it for the common good, the public purse, rather than the individual, should bear the loss."
The learned Chief Justice, however speaking for the majority, distinguished Mitchell v. Harmony and United States v. Russell by saying:
"But the language in those two cases is far broader than the holdings. Both cases involved equipment which had been impressed by the Army for subsequent use by the Army. In neither was the Army's purpose limited, as it was in this case, to the sole objective of destroying property of strategic value to prevent the enemy from using it to wage war the more successfully."
Having citied the dictum of Field, J., he said of it:
"The principles expressed were neither novel nor startling, for the common law had long recognised that in times of imminent peril—such as when fire threatened a whole community—the sovereign could, with immunity, destroy the property of a few that the property of many and the lives of many more could be saved."
The ratio of his opinion seems to me to be contained in the words:
"The short of the matter is that this property, due to the fortunes of war, had become a potential weapon of great significance to the invader. It was destroyed, not appropriated for subsequent use. It was destroyed that the United States might better and sooner destroy the enemy. The terse language of the Fifth Amendment is no comprehensive promise that the United States will make whole all who suffer from every ravage and burden of war."
He then points out that each case must be judged on its own facts.
We have been supplied with copies of the briefs that were before the court and have thus been able to see the arguments involved. If I am right in thinking that a great part at least of the ratio of the majority was that the property was destroyed, not appropriated for subsequent use, I respectfully accept that distinction for the purposes of the Fifth Amendment, with which the learned Chief Justice was dealing; but for the purposes of English common law I prefer the reasoning of the minority, that the destroyed property was as clearly appropriated to winning the war as animals, food and supplies requisitioned for that end. It has not been contended before us that the deliberate destruction of property to deny it to the enemy is any less a taking than is the acquisition of it for use. Nor do I think that such a distinction is valid at common law. Both alike are taken for military purposes. There may, however, well be a distinction in terms of compensation. Petrol which is taken and used may be worth its full value. Petrol which is blown up when it is about to pass into the hands of an enemy who will undoubtedly consume it without paying the owner may be valueless. But that matter has not been argued and is not yet relevant. On the general question, whether a right to compensation, be it substantial or minimal, exists, I find myself unable to accept a dividing line between acquisition and destruction.
Whether one accepts in general terms the line indicated by de Vattel or by the dictum of Field, J., in the Pacific Railroadcase, which was to some extent founded on it, or the lines indicated either by the Lord Ordinary or by the Inner House, it is clear that some line must be drawn. In cases that lie far from the line it is easy to see what justice requires. In respect of a house that has the misfortune to be in the centre of a battlefield and is inevitably demolished by the Crown's artillery, it is clear, on the principles which have been almost unanimously set out, that the subject can have no claim. In respect of a house that is demolished by the Crown with wise forethought, long before any battle, to provide a fort or a clear field of fire in case of threatened invasion I think it is equally clear that the subject should obtain compensation. Cases which lie close to that line, wherever it be drawn, must depend on fact and degree. The Lord Ordinary wisely observed:
"The real answer, I think, is that the line has to be drawn somewhere and on one side of it, however artificial it may seem, legal consequences are different from what they may be on the other. The practical consequences may differ very little, and this may be the kind of case in which that is specially true. Although the principles of the common law direct me to decide that this case falls on that side of the line which means that compensation is payable, my decision says nothing as to the value of such right to compensation."
I think that the line drawn by de Vattel marks substantially the area in which damage ceases to be payable. I would define the line as excluding damage done in the battle or for the necessities of the battle. If an evacuating army destroys as it goes, I would exclude from compensation any damage which it does for the purposes of its survival, for example, ammunition which will be turned against it by the enemy, or petrol which will be used by the enemy to pursue it, or food which will sustain the enemy during their attacks upon it. But more general damage done with a view to weakening or depriving the enemy in the not immediate future, especially when the scene of battle will have moved elsewhere, comes in the category of deliberate destruction done outside the battle. The destruction of oil wells, like various forms of economic warfare, is quite outside the battle damage, and the fact that the battle may have dictated the date of the destruction is irrelevant.
When the motive of destruction is a deliberate long-term strategy, then, unless it be shown by the Crown that the damage has also an impact and importance for the purpose of the battle and would have been done for that purpose in any event, the subject is entitled to compensation.
It must not be thought that by compensation I mean the full cost of reinstatement. It was argued that the claim was irrelevant because it set out a demand for compensation on that basis. In my opinion, the pursuers are entitled to put forward their claim on that basis, since that is the starting point for a consideration of the amount payable as compensation for the value lost. The argument did not, however, go into the further questions which must, I think, be considered. For it would seem that the value of property that is about to pass, possibly for ever, into the hands of the enemy must depend on the nature of the property and the chances of its survival and restoration, intact or damaged, to the pursuers.
I agree with what has been said in both courts as to the Public Authorities Protection Act.
I would allow the appeal and restore the interlocutor of the Lord Ordinary.
As three of your Lordships have already pointed out, the relevant law is that of Burma and, as we are precluded from looking at any of the relevant Defence Acts relating to Burma or any Defence Regulations made thereunder, the law of Burma as it was in 1941 must be assumed to be the law of England rather than the law of Scotland. That there is any difference has hardly been argued before us and I agree with your Lordships that to all intents and purposes the relevant law of Scotland is the same as the law of England. True it is, the law of Scotland has always derived more inspiration from the civilian writers than does the law of England, but in this particular field of constitutional law with which we are concerned, where authority both of Scotland and of England is so sparse and uncertain (as Lord Dunedin pointed out in the De Keyser Royal Hotel case in words already quoted by some of your Lordships), I find the writings of the civilians of peculiar assistance. These writers were not purporting, as I read them, to propound a general principle of international law but only to lay down the proper judicial concept of the municipal law of any civilised country; accordingly they are of great persuasive force, particularly the views of Vattel. Furthermore, although it cannot be a decisive or even perhaps important consideration, it would be most astonishingly inconvenient if, notwithstanding that England and Scotland have been united since 1707, the Crown had the right to seize and use the property of its subjects on the suspected approach of the enemy if they landed on the south bank of the Tweed on different terms than if they chose to land on the north bank.
As I see it, the ultimate question which your Lordships have to decide is whether the Crown, in taking the property of its subjects, in the exercise of its prerogative, is bound to make payment therefor. But, before I deal with that question, I shall try to deal with some arguments which have, I think, tended to obscure the true issue. The learned Attorney-General on behalf of the respondent has argued that the prerogative of the Crown in the circumstances of this case is no more than the right of the local magistrate or even the individual himself to act in a grave and immediate emergency in the face of the enemy. I reject this argument. If that was the only prerogative which the Crown could exercise, then it would seem to me to be no exercise of any prerogative at all, but only an exercise of rights common to all subjects. Rejecting this submission, therefore, I do not propose to explore the early cases which deal with the right of the individual to raise a bulwark against the invading enemy, or to pull down his neighbour's house to prevent the spread of fire, for they seem to me to have nothing to do with the present case. So I shall not examine the Saltpetre Case, relevant only for its observations on the right of an individual in times of emergency, nor the many cases arising out of the disastrous fire in New York in 1835 nor other cases which were cited to us when commanders of ships have been held not liable for the destruction of their own ships to avoid them falling into the hands of the enemy. No doubt in earlier times the individual had some such rights of self-help or destruction in immediate emergency, whether caused by enemy action or by fire, and the legal answer was that he could not in such circumstances be sued for trespass on or destruction of his neighbour's property. Those rights of the individual are now at least obsolescent. No man now, without risking some action against him in the courts, could pull down his neighbour's house to prevent the fire spreading to his own; he would be told that he ought to have dialled 999 and summoned the local fire brigade. No man now could conceivably erect a bulwark to prevent enemy invasion. This was a practical problem when there were piratical raids from Brittany to the coast of Cornwall, or when it was thought that there might be invasion from Normandy into the coast of Kent, but to-day no citizen can do more than build a shelter for his own protection against an air raid. In war now, as we all know, all defences down to the last acre of the United Kingdom are under the jurisdiction of army commanders and district, area and subordinate commanders. How well was this illustrated when in 1940 it was the local commanders who organised pill-boxes, who broke down piers to prevent them being used as access for landing, and so on; all no doubt by statutory authority, but recognising the futility of self-help in conditions of to-day.
But apart from this, it is absurd to suppose that anyone could properly undertake the destruction of these vast oil installations in Burma under a claim to do so by virtue of these ancient but now obsolescent rights of the individual. It is clear that if the citizen (most extraordinarily) was possessed of the requisite knowledge and equipment for the purpose of carrying out the necessary destruction, he could not possibly have justified these great demolitions on the basis of these ancient trivial and individual rights, and the Crown, on the Attorney-General's argument, could not have done so either. The destruction of such vast and valuable installations must necessarily be left to the executive government, in the exercise of the prerogative if no statutory authority is available.
Now it is admitted on both sides that the destruction was lawful, and, as it seems to me quite clear that it cannot have been done in exercise of any individual right, it must have been done in exercise of—to quote Dicey's words—"the residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown." This looks like a pleading point and to some extent it is, having regard to the Attorney-General's argument, and I am bound to say I do share the views expressed by Lord Radcliffe in the opening paragraphs of his opinion. But there it is. However, it is not entirely a pleading point, for it seems to me equally clear that in principle the Crown, assuming that there are no statutory powers available to it, must have a prerogative right to take whatever step is necessary for the protection of the state and in order to wage war successfully against its enemies. The right of the Crown cannot possibly be limited, as was suggested by the Attorney-General, to the cases of imminent danger and necessity in face of an enemy who has embarked on active operations. That limitation was rightly negatived in In re A Petition of Right, where Lord Cozens-Hardy, M.R., said (at p. 659):
"The existence of the prerogative was not distinctly challenged by counsel for the suppliants, but they sought to limit it to a case of actual invasion rendering immediate action necessary. In my opinion there is no foundation for this limitation of the prerogative. To postpone action until the enemy has landed, or until the authorities are satisfied that a landing in a particular neighbourhood is imminent, would, or might, be fatal to the security of the realm."
It was strange to hear the submission of this limited jurisdiction from the mouth of the Attorney-General.
It is clear that the Crown alone must be the judge of the precise emergency and exact point of time when it is necessary to exercise the prerogative in order to defend the country against apprehended invasion or, indeed, to take steps to prepare the country for war against a foreign power. Let me take one example only, mentioned by Lord Radcliffe—the proclamation issued on 3rd August 1914, requisitioning ships the day before the United Kingdom declared and waged war upon Germany. As a matter of common sense, when the Crown is satisfied that an emergency exists, its prerogative power to requisition goods and to take possession of land for the benefit of the country arises and, so far as the area of its activities is concerned, it must be co-extensive with the territory of the United Kingdom itself and cannot be limited to any particular area of immediately expected hostilities.
Before I turn to the question whether the Crown must pay for its activities, let me clear out of the way two points. First—and the contrary was hardly suggested in argument—it matters not whether the Crown takes property for the purpose of using it or for the purpose of destroying it to deny its use to the enemy. This distinction is relevant only when I come to consider the Caltex case decided in the United States of America. Secondly, the Attorney-General has submitted that before the Crown Proceedings Act of 1947the subject would have had no means of bringing his claim against the Crown for doing an admittedly lawful act. I am not impressed by this argument, because it confuses the right and the remedy, and if before 1947 the subject had no remedy in such a case, a matter on which I express no opinion, it certainly cannot affect the rights and wrongs of the matter since the Crown Proceedings Act, 1947.
Therefore I come to the question, upon what terms is the sovereign entitled to take and use or destroy for public purposes the property of the subject, the emergency of course being admitted ? I have already mentioned the great dearth of authority in this matter apart from the few cases arising out of the World War of 1914.
Some very early statutes have been referred to. A number of them were passed with regard to the defence of Cornwall and Kent, but they do not help.
In the Napoleonic wars many statutes were passed giving large powers of requisition to the Crown, and then in peace time Parliament, with a far-seeing eye, passed the Defence Act, 1842, which enabled the Crown to exercise many powers in time of emergency—see the De Keyser case itself. All these statutes, however, provided for the assessment of compensation to the subject.
In the De Keyser case much time was spent in researches into early practice when the Crown compulsorily took the property of the subject, with apparently negative results. For what it is worth, and it may not be very much, that does seem to me on the whole to support the view that the Crown did not take property without paying compensation. I would have thought that, had the contrary been the practice, there would have been some clear evidence of it. So it seems to me that the practice of the Crown, so far as it can be ascertained, and the course of statutory enactments at any rate from Napoleonic times entitling the Crown to seize, use and destroy the subject's property support the view that this could only be done upon payment. Furthermore, it is clearly settled that, where the executive is authorised by a statute to take the property of a subject for public purposes, the subject is entitled to be paid, unless the statute has made the contrary intention quite clear (see London and North Western Ry. Co. v. Evans, per Bowen, L.J., at p. 18). As the Lord President pointed out in this case, it would be strange if there should be a different rule at common law, and he then referred to a passage to the same effect in the opinion of Lord Atkinson in the De Keyser case. The actual decision in the De Keyser case is not, of course, in point, for that decided that the Crown must be taken to have exercised statutory powers and not to be acting under the prerogative; but there were many observations in the speeches of their Lordships in that case upon this question of the prerogative; they have been summarised in the opinion of Lord Reid; I do not propose to summarise them again. But it seems to me that, apart from Lord Moulton, all of their Lordships support the view that the prerogative of seizing, taking and using is in general only exercisable on payment then or thereafter. Even Lord Moulton's view, which on the whole is to the contrary, seems to have been expressed because he took the view that in early days the emergency which entitled the Crown to take the subject's property "would be in general an actual and immediate necessity arising in face of the enemy and in circumstances where the rule Salus populi suprema lex was clearly applicable." I read that as meaning that he thought all such cases would fall within Vattel's second class, which I shall mention later. If so, Lord Moulton's view is not against the view that in general the prerogative can only be exercised on payment.
I agree with Lord Pearce in thinking that In re A Petition of Right can no longer be regarded as law; furthermore, I agree that the dictum of Lord Parker in The Zamora, at p. 100 is, as Atkin, L.J., said in a later case, no longer justified by the authorities. Accordingly in my view the English authorities, such as they are, permit the conclusion that in general the prerogative of the Crown to take the property of the subject in times of necessity for the public good is exercisable only upon payment by the state then or thereafter. It is in this state of the authorities at home that it seems to me that the writings of the civilians are valuable and helpful in formulating the right legal conclusions. In argument before your Lordships it was in the end almost a matter of common consent that the effect of the civilian writers was best set out in the writings of Vattel. The relevant passage has been cited in the opinion of Lord Reid, and I do not propose to set it out again. Vattel propounds two classes of damage done to property by the state or the sovereign. First, damage done deliberately and by way of precaution, and, secondly, damage caused by inevitable necessity.
Rightly he attempted no further definition, because that would be impossible, but he gives examples to illustrate his two classes. In the former, he cites the taking of property to prevent its being of use to the enemy; in the second class, he refers, by way of example, to the destruction caused by artillery in retaking a town from the enemy. In the former class the Crown must pay compensation, in the latter not, for that is one of the risks of war to which every inhabitant of every country is subject. All their Lordships of the First Division, apart possibly from Lord Sorn, accepted this general classification and they differed only from the Lord Ordinary in that they came to the conclusion that the damage in this case fell into the latter class rather than in the former. The difficulty in this case is caused by the impossibility of attempting any precise definition of the necessities causing loss for which the subject can have no redress. Believing as I do in the great justice of the principle that if the Crown takes the property of the subject for the public good, whether for use or destruction, the Crown should pay for it, justice, which has been followed by the King in Parliament for a long time in passing statutes for the same purpose, demands that the second class should be a limited one. No doubt in the actual battle the property of the subject may be seriously damaged. It may be damaged by both sides and it may be quite impossible to find out, indeed, how the damage did in fact arise. But where even the day before the battle some property is razed to the ground to provide some better field of fire, or something of that sort, is it unreasonable to compensate the subject for that loss, providing he can prove how it took place ? However, we do not have to decide that narrow question. And so it really is a question of fact; that is, as I see it, in which class ought the destruction of these vast oil installations to be placed ?
I am bound to confess that I have never had any feeling of doubt upon this point. We must take the facts as we find them pleaded in the condescendence for the pursuers. On 19th January 1942 the Japanese armies began the invasion of Burma. The British War Cabinet apparently considered that, if it was not possible to defend Burma, the oil installations should be demolished to deny them to the enemy, as their demolition would be of the greatest service to the general prosecution of the war by the United Kingdom and her allies. Shortly afterwards an expert, a Mr Forster, was despatched from the United Kingdom by H. M. Government for the particular purpose of advising upon the manner in which the demolitions and destructions might most effectively be carried out. Of course, all these preparations were conditional upon the failure of the troops to contain and hold the enemy. It was not until 22nd February that a battle took place on the Sittang River in which the forces of the United Kingdom were seriously defeated and the competent military opinion was that the fate of Burma was thereby sealed. Accordingly, from then onwards the destruction of the oil installations was only a matter of time and the timing was left naturally to the commander, General Alexander. The General did decide on 6th March to order the final evacuation of Rangoon and the destruction of the oil and other installations and property in and around Rangoon. This destruction was not ordered by General Alexander to help him in battle by delaying the enemy and so to allow the withdrawal of his troops; he ordered it because he was so instructed by the War Cabinet as a matter of overall global strategic importance, the timing alone being his decision, once the battle for Burma was lost. And, with all respect to the opinions to the contrary expressed in the Inner House, I would think that it was quite clear that the destruction of the installations in this case fell within Vattel's first classification; it was done by way of precaution in the general prosecution of the overall strategy. It was not done in the heat of battle. So I would allow this appeal.
In conclusion I desire to say a few words about the authorities in the United States of America which were cited to us. I would think that down to and including the case of United States v. Pacific Railroad the law, as I have ventured to state it, agrees entirely with the law as stated in that case, where the observations of Vattel were adopted. That case was correctly decided, because I see no reason to suppose that the destruction of the bridges was done otherwise than in the heat of battle and their reconstruction by the United States government for their own purposes was not a matter for which the railroad could be made to pay. The Juragua Iron Co. v. United States was a special case and really turned upon the point that the property of the subject of the United States was in fact on foreign soil and therefore deemed to be enemy property, for which of course no compensation was payable. The difficulty that I feel is caused by the decision in the recent case of United States v. Caltex . The principal point at issue in that case was whether the destruction of the oil installations in Manila fell within the Fifth Amendment, which was in these terms:
"…nor shall private property be taken for public use without just compensation."
The Caltex case appears to decide that taking property for the purpose of destroying it, and so denying the advantage of the installation to the enemy, is not taking it for public use within the meaning of that Amendment. Reading and re-reading, as I have, the judgments, it seems to me that they were really concerned with that and that only. And my own view about this case, though I believe it may not commend itself to all of your Lordships, is that the point with which we are concerned was never really clearly presented to the Court or dealt with in their judgments. It seems never to have been seriously argued that, apart altogether from the Fifth Amendment, the taking by the United States of these oil installations for the purposes of destruction should be held within the first class laid down by Vattel rather than the second class. We have seen the printed briefs and this point was taken very briefly on page 50 of the Caltex brief and it finds, as I think, no reflection in either majority or minority judgment. In my view, properly understood, both the majority judgment delivered by Vinson, C.J., and the dissenting minority judgment of Douglas, J., and Black, J., had only in mind the Fifth Amendment. So, therefore, for my part I think that the earlier United States authorities assist in the conclusion which I have ventured to reach and the Caltex case must be regarded as a special one depending on its own facts and decided upon the arguments effectively presented to the court.
In conclusion, I would agree that the Public Authorities Protection Act of 1893 does not assist the respondent in this case.
For these reasons, I would allow this appeal.
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