[HOUSE OF LORDS.]

AND

AND

AND

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ET E CONTRA.

Crown - Prerogative - War - Destruction of private property - Order of commanding officer of army - Enemy advancing - Denying resources to enemy - Right to compensation.

Limitation of Action - Public authority - Crown, claim against - Destruction of private property in war - Order of commanding officer of army - Public Authorities Protection Act, 1893 (56 & 57 Vict. c. 61), s. 1.

During the war of 1939-45 the General Officer Commanding in Burma ordered the installations of the appellant companies near Rangoon to be destroyed. The Japanese army was advancing and he acted in pursuance of the policy of the United Kingdom Government to deny resources to the enemy, as far as possible. The destruction was immediately carried out on March 7, 1942, the day before the Japanese occupied Rangoon. Destruction elsewhere was subsequently carried out. In 1961 the appellant companies, which had their registered offices in Scotland, commenced an action, in which they averred the above facts, claiming compensation for the damage sustained. The First Division of the Court of Session having sustained pleas that the averments of the appellants were irrelevant, they appealed to the House of Lords:-

Held, (1) (Viscount Radcliffe and Lord Hodson dissenting) that the circumstances of the destruction gave the appellants a right to claim compensation.

The demolitions being carried out lawfully in exercise of the royal prerogative, though without statutory authority, there is no general rule that the prerogative can be exercised, even in time of war or imminent danger, by taking or destroying property without making payment for it. The taking or the destruction of property in the course of actually fighting the enemy does not give rise to any claim for compensation, but these demolitions did not fall under the head of battle damage, because, although the enemy was approaching, they did not arise out of the military operations.

Attorney-General v. De Keyser's Royal Hotel Ltd. [1920] A.C. 508; 36 T.L.R. 600, H.L. applied.

(2) (Unanimously) that the action was not barred by the Public Authorities Protection Act, 1893.

Decision of the First Division of the Court of Session, 1963 S.C. 410, reversed.

APPEALS from the First Division of the Court of Session.

These were four actions which had been brought against the Lord Advocate under the Crown Suits Act, 1857, by four associated oil companies, Burmah Oil Co. (Burma Trading) Ltd., Burmah Oil Co. (Burma Concessions) Ltd., Burmah Oil Co. (Overseas) Ltd. and Burmah Oil Co. (Pipe Lines) Ltd., all having their registered offices in Glasgow. Each case arose out of the total or partial destruction of certain property and assets of each company in Burma, which was carried out in 1942 under the directions from H.M. Government in the United Kingdom. In each case the company concerned sought (1) a declarator that it was entitled to payment out of the revenues of the Crown in the United Kingdom of such sum as would make good to them the damage sustained by each of them as a result of that total or partial destruction, and (2) a declarator relating to the amount of money which in each case would make good the respective damage suffered by each of them.

The first company, the pursuer in the first action, carried on business in Burma purchasing and marketing petroleum products and for this purpose owned property, including stocks of crude petroleum and petroleum products, in and around Rangoon. In December, 1941, war broke out between the United Kingdom and Japan. In January, 1942, the Japanese invaded Burma. On March 6, 1942, General Sir Harold Alexander, being then G.O.C. Army in Burma, ordered the destruction of the company's

property. That destruction was carried out on March 7, 1942. The Japanese occupied Rangoon on March 8, 1942.

The appeal in the second action raised the same question as that in the first. The second company carried on a business of exploiting and producing crude petroleum from oilfields in Burma. at Yenangyat, Singu, Yenangyaung, Palanyon and Minbu. The property and assets which they owned and which were destroyed consisted (inter alia) of producing wells, buildings, plant, machinery, storage tanks, stores, floating craft and rolling stock. The orders for the destruction of these oilfields were issued by General Alexander on April 14, 1942, civil jurisdiction having been previously assumed by him, and the destruction of the oilfields and the company's property and assets thereat were carried out between April 15 and 19, 1942.

The third company carried on a business of refining oil products at refineries, which it owned, and the fourth company, which owned pipe lines, pumping stations and other installations, carried on a business of conveying the petroleum produced to the refineries. Their property was likewise destroyed.

The four companies now appealed against an interlocutor of the First Division of the Court of Session in Scotland dated March 14, 1963, in which their Lordships allowed a reclaiming motion by the Lord Advocate, the original respondent and cross-appellant, from an interlocutor of the Lord Ordinary, Lord Kilbrandon, dated August 14, 1962. The Lord Ordinary had repelled pleas that the averments of the pursuers (the present appellants) were irrelevant and allowed proof before answer. The First Division had sustained these pleas and dismissed the actions. The appellants now sought to have the interlocutors of the Lord Ordinary restored. The respondent, the Lord Advocate, cross-appealed.

The facts stated by Lord Reid were as follows. The pursuers averred that, in accordance with directives from His Majesty's Government in the United Kingdom, the G.O.C., Burma on February 3, 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 was 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 a Mr. W. L. Forster, an expert

sent from Britain by the Government for that purpose. The battle of the Sittang river on February 22 settled the fate of Rangoon, and orders for evacuation and destruction of installations and property in that neighbourhood were issued on March 6. These orders were carried out on March 7 and Rangoon was occupied by the enemy on March 8. Other installations farther north were destroyed between that date and April 19. The last British forces left Burma on May 20. It was 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 was admitted that the military situation rendered this destruction expedient for the defence of His Majesty's other territories.

It was admitted that these demolitions were carried out lawfully. The respondent averred in his Answer 8 that, by virtue of the Defence of Burma Act, 1940, and rules made under it, no action lay against the Crown in respect of them. But that was denied by the appellants on various grounds, and that matter had not yet been considered or investigated.

Sir Milner Holland Q.C. (of the English Bar), Henry Keith Q.C. (of the English Bar, Q.C. of the Scottish Bar), J. Hobhouse(of the English Bar) and J. J. Clyde (of the Scottish Bar) for the appellant companies. The following questions arise: (1) Whether a deliberate planned act of destruction of an entire industry in order to deny it to the enemy is (a) something done in exercise of the prerogative power for the benefit of the whole country or (b) an act of necessity which the Crown and the subject alike could lawfully perform and which is therefore not actionable, by reason of the defence of necessity. It is submitted that this case falls within the first alternative. (2) Whether, assuming that what was done was an exercise of the royal prerogative, compensation was payable. It is submitted that all deliberate acts of the taking of the property of the subject and all acts of destruction of his property for the prosecution of a war and the safety of the realm attract compensation; this includes the deliberate destruction of property which may be of advantage to the enemy. The only exception is accidental destruction in the course of battle in the sense that it is accidental on whom the loss falls. (3) If such a principle exists that compensation is due in those circumstances, is it payable where the destruction was done under pressure of extreme necessity? It is submitted that it is. (4) The respondent contends that compensation

is not payable for property destroyed in the face of an advancing enemy, against whom it can no longer be held and when the destruction is carried out to deprive the enemy of that asset. The appellants submit the contrary. The destruction of the subject's property to prevent it giving comfort to the enemy gives rise to a right to compensation. (5) The respondent contends that no compensation is payable for damage done in the course of necessary military operations. The appellants submit that all waging of war is to be regarded as a military operation and that the respondent's contentions, if accepted, would have the effect of depriving the subject of all compensation in all circumstances during wartime. (6) The respondent contends that, when capture by the enemy is certain, destruction of the property so threatened has the same effect as regards compensation as if the enemy had captured and destroyed it. But the whole underlying reason for its destruction by the British forces is that the enemy would not destroy it but would use it. (7) Whether the Public Authorities Protection Act, 1893, applies. It is submitted that it does not.

The appellants' case is summarised in the Lord Ordinary's judgment.¹ In his judgment he refers to Esso Petroleum Co. Ltd. v. Southport Corporation,² but that case is far from anything to be considered here, save for what Devlin J. said as to the defence of necessity but, as the Lord Ordinary says, the Crown in the present case has done an act which would not be open to the ordinary citizen. In the matter of necessity, the rights of private individuals have nothing to do with the rights of States, since the acts of the former are limited to their own necessity, but those of the latter are not. The prerogative right of the State to take the citizen's property is founded on necessity. There is a distinction between this and the right of every citizen to defend his own property. The fact that the State may be under the necessity to take property for the public need does not justify a taking without compensation. There is no analogy between pulling down houses to stop the spread of a fire, which is not for the benefit of the whole realm, and the right of the State to damage the citizen's property for the benefit of the whole community. From the eighteenth century it has been doubtful whether there is a prerogative right to appropriate land. In time of war the commander of the armed forces on the spot conducts

1 1963 S.C. 410, 421.

2 [1956] A.C. 218, 227, 235; [1956] 2 W.L.R. 81; [1955] 3 All E.R. 864, H.L.

a campaign as if it were being conducted by the prince in the medieval sense. Parliament has nothing to do with it. So where there is no question of the supremacy of Parliament authorising a taking without compensation, compensation is payable in respect of a sacrifice required of the individual for the benefit of the State. The appellants put forward the broad principle that full compensation is payable for the taking of the subject's property by the State. On this point the unanimity of the civilians and commentators is remarkable and therefore of considerable force as authority. Where there is no modern authority one must go back to the civilians and to Justinian and, if there is virtually complete unanimity among them, that is at least strongly persuasive, though one cannot say that any particular passage is binding. As to the authority of the institutional writers, see Stewart v. London, Midland & Scottish Railway Co.³

Reliance is placed on the authorities referred to by the Lord Ordinary: Sir George Mackenzie's Jus Regium (1722 ed.), Vol. II, p. 452; Grieve v. Edinburgh & District Water Trustees⁴; Jason's Super Digesta Veteri. De Officio Praetoris (1553) 1 Barbarius (D.1.14.3), para. 44; Grotius's De Jure Belli ac Pacis (1853 ed), Book II, c. 14, para. 7; De Vattel's Droit des Gens (1758 ed.); The Law of Nations (1797 ed.), I, XX, para. 244; III, XV, para. 232; Pufendorf's De Jure Naturae et Gentium (1934 ed.), VIII, V, 7; Burlamaqui's The Principles of Politic Law (1752), Part 3, c. V, paras. 26-29, pp. 211-213; British Cast Plate Manufacturers Co. v. Meredith.⁵ In the Saltpetre case⁶ there was a plain implication of the right to claim compensation for damage due to the exercise of the royal prerogative. (The reference to "3 H VIII, fol. 15" in the resolution of the judges should be 13 H VIII, fol. 15.) Purveyance was akin to compulsory purchase. (See also Blackstone's Commentaries (1765 ed.), Vol. I, c. 8, pp. 277-278, on Royal Revenue).

Reliance is also placed on Newcastle Breweries Ltd. v. The King⁷; In re a Petition of Right⁸ and Attorney-General v. De Keyser's Royal Hotel Ltd.⁹ The Lord Ordinary makes the proper

3 1943 S.C.(H.L.) 19, 38-39.

4 1918 S.C. 700, 709.

5 (1792) 4 Term Rep. 794, 797.

6 (1606) 12 Co.Rep. 12, 13.

7 [1920] 1 K.B. 854, 865-866; 36 T.L.R. 276.

8 [1915] 3 K.B. 649, 650; 31 T.L.R. 596, C.A.; (1916) 115 L.T. 49; 32 T.L.R. 699, H.L.

9 [1919] 2 Ch. 197, 203, 211, 215, 218, 229, 230, 231-232, 236, 241-242; 35 T.L.R. 418, C.A.; [1920] A.C. 508, 523, 561, 564, 570, 571-572; 36 T.L.R. 600, H.L.

use of this case. See also Commercial and Estates Co. of Egypt v. Board of Trade.¹⁰

The old English authorities which are relevant are the statute 4 Hen. VIII, c. 1 (Bulwarks of the Coast Act, 1512), Year Book 8 Edw. IV (1468), 1680 ed., p. 23 (Case No. 41), Year Book 21 Hen. VII (1506), 1679 ed., p. 27 (Case No. 5), Year Book 12 Hen. VIII (1521) 1679 ed., Folio 16 (Case No. 1) and Brooke's Graunde Agridgement (1573), Vol. I, p. 207 (Customs) (Case No. 45), Vol. II, p. 293 (Trespass) (Case Co. 213).

The relevant American authorities are United States v. Caltex (Philippines) Inc.,¹¹ Mitchell v. Harmony,¹² United States v. Russell,¹³ United States v. Pacific Railroad Co.,¹⁴ Juragua Iron Co. Ltd. v. United States,¹⁵ Bowditch v. Boston¹⁶ and Mayor of New York v. Stone.¹⁷

The question is whether this is the sort of act to which the defence of necessity is an answer in law. It is easy to confuse the prerogative right of the Crown to defend the realm and the right to interfere with the property of the subject. On this point Crown of Leon (Owners) v. Admiralty Commissioners¹⁸ is relied on; it shows that the foundation of the prerogative right is a state of affairs (for example, imminent invasion) which gives rise to extreme necessity. In such a case as the present it might depend on the plans for the future whether or not there was no choice but to destroy these installations. If there had been an immediate plan to retake Burma, it might have been better not to carry out complete destruction.

The legislation dealing with the French Revolutionary and Napoleonic Wars, in particular sections 7, 11 and 22 of the statute 38 Geo. 3, c. 27, in effect re-enacted by the statute 43 Geo. 3, c. 55, shows that destruction and acquisition were regarded in the same light and that denial of material to the enemy was regarded as in pari materia with acquisition for the public service. Compensation in respect of both was contemplated. It would be absurd to suggest that any private person could take upon himself, without authority, to do any of the things contemplated by the Act. The extreme necessity of the thing done does not justify a refusal to pay compensation: see de

10 [1925] 1 K.B. 271, 294-296, C.A.

11 (1952) 344 U.S. 149.

12 (1852) 13 How. 115.

13 (1871) 13 Wall. 623.

14 (1887) 120 U.S. 227, 233-234.

15 (1909) 212 U.S. 297, 305.

16 (1879) 101 U.S. 16.

17 (1840) 25 Wendell 157, 162, 173.

18 [1921] 1 K.B. 595, 597, 602-603; 37 T.L.R. 65, D.C.

Keyser's case.¹⁹ There is no necessity not to pay compensation. Loss falling on the individual for the common weal ought to he borne by the community: Reg. v. Abbott²⁰ and Cannon Brewery Co. Ltd. v. Central Control Board (Liquor Traffic).²¹ The right to compensation rests on general principles engrained in the law of England and Scotland, especially of Scotland, which is the law here applicable. It rests on acceptance of the views of the civilians and the institutional writers.

As to what is regarded as war damage, see sections 1 and 2 of the War Damage Act, 1943. If the present type of destruction had been carried out in England, for example, destroying the refinery on the island of Grain in the face of an advancing enemy, it would have fallen within section 1 (1) (c) of the Compensation (Defence) Act, 1939.

Various tests were proposed in the course of the judgments in the courts below: (1) The Lord Ordinary²² was right in deriving from de Vattel's work the test: Were the acts precautionary measures, deliberately adopted, or accidents of battle? It is submitted that in the present case, since the installations were selected for destruction, this case falls within the former alternative. (2) The test favoured by the Lord President²³ was: Is the destruction part of the overall strategy of the war rather than a matter of military tactics? If he had thought this destruction fell within the former alternative he would have been in favour of the appellants. We submit that it did. (3) Lord Carmont²⁴ rested his decision on war necessity or military necessity. In what he said as to the distinction between calculated policy and the haphazard results of actual combat he was in favour of the appellants since this destruction was the result of calculated policy. (4) Lord Sorn²⁵ puts so much out of the field of compensation, namely, everything within the field of military operations and defence of the realm, that he cannot be right. (5) Lord Guthrie²⁶ seemed to think that the matter depended on whether what happened was or was not near the enemy. That is not the right test.

What happened in this case fell within the grand strategic design, just as much as if the appellants' whole industry had been taken over and used for the purposes of the war. What

19 [1920] A.C. 508, 540-541, 542-544, 561-562, 568-569.

20 [1897] 2 Ir.R.(Q.B.) 362, 405.

21 [1918] 2 Ch. 101, 110; 34 T.L.R. 459, C.A.

22 1963 S.C. 410, 426.

23 Ibid. 456.

24 Ibid. 459-460.

25 Ibid. 464-465, 468-469.

26 Ibid. 476-477, 479-480.

would have been outside the principle relied on would have been something done in the course of battle to check the advance of the enemy or to defeat him, that would have been within the competence of the commander in the field of battle. But this destruction was not part of the battle in Burma; it was done for the defence of India. In the law of Scotland compensation for destruction covers the same field as taking for use. The application of the principle is not affected by the fact that the destruction was in the face of the enemy. There is no Scottish or English case suggesting the existence of a prerogative right to seize or destroy the subject's property without compensation. What was done here could only have been done in the exercise of the prerogative power.

Henry Keith Q.C. following. This is a novel problem in the courts of Great Britain but it has arisen in the United States of America. American law has been influenced by the writings of the civilians on which the appellants found. The Caltex case²⁷ has been relied on by the respondent, but the actual terms of the opinions in that case must be read against their background. There are three groups of American cases: (a) Respublica v. Sparhawk,²⁸ which was decided before the Fifth Amendment, and where the claim was apparently based on trespass. (b) Mayor of New York v. Lord,²⁹ Mayor of New York v. Stone,³⁰ Russell v. Mayor of New York³¹ and Bowditch v. Boston,³² dealing with the pulling down of houses to prevent the spread of fire, and Pennsylvania Coal Co. v. Mahon.³³ These cases deal with overriding necessity and show that that can be pleaded as between private individuals but it does not apply in relation to the State's powers under the doctrine of eminent domain. (c) Cases dealing with the right to recover compensation when property is taken or destroyed by the State and concerned primarily with the construction of the Fifth Amendment.

The general propositions to be extracted from the United States cases are: (1) The law of the United States has absorbed from the civilians the concept of eminent domain involving, as an incident of its exercise, the obligation to compensate the individual who loses his property. (2) The law of the United States regards the defence of necessity as a conception applicable only

27 344 U.S. 149.

28 (1788) 1 Dallas 357.

29 (1837) 17 Wendell 285; 18 Wendell 126.

30 (1838) 20 Wendell 139; (1840) 25 Wendell 157.

31 (1845) 2 Denio 461.

32 101 U.S. 16.

33 (1922) 260 U.S. 461.

to the acts of private individuals and one which is not relevant to cases of public necessity as creating a situation where eminent domain may be exercised. (3) The law of the United States accepts as sound de Vattel's classification of acts causing damage to private property in time of war and his statement of the incidents of each category of acts. (4) In the United States authorities the question into which category any case falls is treated as a question of fact and degree. In the later cases the actual terms of the Fifth Amendment are very significant in regard to the taking of private property for public use.

These propositions are to be deduced from the cases in the three categories already mentioned: (a) Respublica v. Sparhawk³⁴ sets out some general principles, but it is of little assistance, since the claim was based wholly on trespass. (b) Mayor of New York v. Lord³⁵ and Mayor of New York v. Stone³⁶ are not really in point. Russell v. Mayor of New York³⁷ is nearer the present point. See also Bowditch v. Boston³⁸ and Pennsylvania Coal Co. v. Mahon.³⁹ (c) As to the right to recover compensation when property is taken or destroyed by the State, the following cases are relevant: Mitchell v. Harmony⁴⁰; Baldwin v. United States⁴¹; Grant v. United States⁴²; Wiggins v. United States⁴³; United States v. Russell⁴⁴; Dow v. Johnson⁴⁵; United States v. Pacific Railroad Co.⁴⁶; Taylor v. Nashville & Chattanooga Railroad Co.⁴⁷; Juragua Iron Co. Ltd. v. United States⁴⁸ and United States v. Caltex (Philippines) Inc.⁴⁹

A military commander in the field may lawfully appropriate property. But that does not mean that no compensation is payable when the executive takes or destroys property. One must not confuse the question whether what is done is a lawful act with the question whether compensation is payable in respect of it. The Pacific Railroad case⁵⁰ falls within de Vattel's battle damage category (which was accepted by the court) as relating to an act done to affect the outcome of the

34 1 Dallas 357.

35 17 Wendell 285, 289-290, 297; 18 Wendell 126, 129-130.

36 20 Wendell 139; 25 Wendell 157, 173, 176-177.

37 2 Denio 461, 464, 483, 487.

38 101 U.S. 16.

39 260 U.S. 393, 412, 417.

40 13 How. 115.

41 (1860) Report No. 259 by the Court of Claims to the 36th Congress (2nd Session).

42 (1863) 1 Ct.Cl. 41.

43 (1867) 3 Ct.Cl. 412.

44 (1871) 13 Wall. 623, 627.

45 (1879) 100 U.S. 158.

46 120 U.S. 227, 233-234.

47 (1869) 6 Coldwell 676, 679.

48 212 U.S. 297, 305, 307.

49 344 U.S. 149.

50 120 U.S. 227.

military operation in progress. The Juragua case⁵¹ was a special case because the property there in question was deemed to be enemy property. In the Caltex case^52-56 the decision turned on the construction of the Fifth Amendment. The decision was inconsistent with the distinction drawn by de Vattel and with all prior authorities. Its force is confined to the facts of the particular case. So far as it is against the appellants, its reasoning is not of such cogency that the House of Lords ought to follow it.

The fundamental question is whether or not the present case comes within de Vattel's battle damage category. It is submitted that it does not. See Droits de Gens (1758 ed.), Book I, c. 20, pp. 90-95, and Book III, c. 15, pp. 87-88.

Full compensation is payable when property is destroyed by the State just as much as when it is taken for use, since it is destroyed in the public interest. It would be absurd to say that when a house is knocked down to make a road no compensation is payable, because the house is not used.

Sir John Hobson Q.C., A.-G., G. C. Emslie Q.C. (of the Scottish Bar), A. J. Mackenzie Stuart Q.C. (of the Scottish Bar) and J. Mackay (of the Scottish Bar) for the respondent. The doctrine of eminent domain has not formed any part of the law of England since the time of Charles I. No claim has ever been put forward in England or Scotland for compensation for damage or injury to property based on the lawful exercise of the royal prerogative save in the cases of purveyance, angary and the requisition of ships by statute. There has been no case of a claim where in the lawful exercise of the royal prerogative in the face of an invading enemy damage has been done to the property of the subject. There the loss lies where it falls. Here the appellants admit the lawfulness of the destruction, but do not specify the basis of the legality, save to say that it was done in the exercise of the royal prerogative.

A right to compensation in the form of damages arises from an act unlawful at common law and a right to compensation as such arises under a statute for an act, otherwise unlawful, made lawful by the statute; but there is never a right to compensation in either form for an act lawful at common law. In England until the Crown Proceedings Act, 1947, the remedy against the Crown was by petition of right in contract or quasi-contract. It is conceded that if this action had been brought in contract or

51 212 U.S. 297.

52-56 344 U.S. 149.

quasi-contract it is one in which a remedy would have been provided by petition of right. The action has not been so brought. If, before the Crown Proceedings Act, 1947, the military servants of the Crown had destroyed or seized property the only remedy would have been to sue them. If they could justify their acts on the basis of the royal prerogative, they could not be liable and it would be strange to hold that the Crown, which could not be sued in this way, was liable to pay compensation while its servants were not.

The eases of war-time loss are grouped with the "necessity" cases like those dealing with measures to prevent the spread of fire, when it is the public necessity which justifies the knocking down of an intervening house. The difference between the cases where the Crown does, and those where it does not, pay compensation does not depend on any differences within the prerogative itself, but on whether or not the Crown has acted lawfully. The De Keyser case⁵⁷ is a marginal case and may be regarded as the extreme limit of the Crown acting lawfully under necessity. In re a Petition of Right⁵⁸ was also a marginal case. At the time when the events in question occurred there was a German battle fleet near the Channel. In the case of the hypothetical destruction of the refinery on the Isle of Grain suggested in the argument for the appellants, that would have been justified if enemy troops had been advancing through Kent because the necessity of the situation would have demanded it. It would be a "necessity" case: see De Keyser's case.⁵⁹ In 1939 there could not have been said to be any imminent necessity when the Germans were on the Rhine, but in May, 1940, the works erected on the south coast to resist invasion could have been carried out without compensation if Parliament had not provided for it. But there would have been no imminent necessity for destroying a refinery on the Clyde. It is conceded by the appellants that sometimes the Crown would not be liable for compensation. The only question is where one draws the line. The line is to be drawn between where the prerogative is lawfully exercised and where it is not.

The appellants contend that the doctrine of eminent domain has been absorbed into the law of Scotland and that on that basis compensation is payable here. They are seeking to attach the right to compensation to the exercise of the prerogative because it attached to eminent domain. But in England and Scotland

57 [1920] A.C. 508.

58 [1915] 3 K.B. 649.

59 [1920] A.C. 508, 565.

that doctrine was early swallowed up in the doctrine of the sovereignty of Parliament. What applied to the absolute monarchies of Europe does not apply to Parliamentary sovereignty. The autocratic powers of the monarchs could not be opposed, but could be mitigated by the right to compensation. The tests of the lawful exercise of the prerogative to be applied in such a case as this are: (1) Does the taking or destruction arise in the course of military operations, although arising out of wider considerations than the local military situation? (2) Do the course of those military operations, the needs and dangers of one's own troops and the movements of the enemy, dictate the answer to the problems whether and when a particular destruction should be carried out? The appellants' reliance on the competence of the commander in the field is unintelligible. Hitler controlled "the Battle of the Bulge" in Normandy, while, by contrast, Nelson in the Mediterranean assumed wide authority for naval, military and political acts. That concept creates more difficulties than it solves and is unrelated to any known principles of law. It was suggested that this destruction was carried out, not as part of the battle in Burma, but for the defence of India. But the object of General Alexander was to get as much of his force as he could back to India and one of the reasons for the necessity for this destruction was the safety of those forces. Further, in 1942 the situation was that both Burma and India were under the Crown. The immobilisation of an army is better achieved in modern times by depriving it of petrol than by blowing up a bridge. Many industrial plants would be of little relevance to the continuance of a war, but supplies of oil and petrol and their refining are vital since armies, navies and air forces depend on them. The oil installations in Burma would have enabled the Japanese to maintain themselves there indefinitely and any military commander who left them undestroyed would have been guilty of gross negligence. In principle there is no difference between the cases of any of the appellants' property.

As to the appellants' reliance on the doctrine of eminent domain, in the Pacific Railroad case⁶⁰ and the Caltex case⁶¹ the decisions were not related to the doctrine of eminent domain. The appellants are wrongly seeking to attach that doctrine to the exercise of the prerogative of the Crown. England is different from foreign countries in this respect. See Blackstone's Commentaries (1765 ed.), Vol. I, pp. 119, 134, as to the absolute

60 120 U.S. 227.

61 344 U.S. 149.

right to property. As to Scotland, see Sir George Mackenzie's Jus Regium (1772 ed.), Vol. II, pp. 450, 451. See also the Scottish Act of Parliament, 1661, c. 5, an "Act asserting His Majesty's royal prerogative in the militia and in making peace and war." In the Scottish Acts of 1667 and 1678 granting subsidies to the Crown it was enacted that when a subsidy had been paid in any particular district there should be no free quartering of troops there but elsewhere there should be free quartering allowed. (See the Acts of Parliament of Scotland printed in 1683, Vol. II, pp. 611-613, 639.) By the Convention at Edinburgh in 1689, which offered the Crown to William and Mary, free quartering was only disapproved in time of peace. The first reference to the adoption in Scotland of the views of the civilians on eminent domain is in Erskine's Institutes (1766), Book II, Title I, paragraph 2, adopting Grotius, but at the most what is said amounts to an assertion of the supremacy of Parliament. This book is contemporary with Kames's Principles of Equity, but there is not there any reference to a right to compensation on a lawful taking by the Crown under the prerogative. It has never been part of the law of Scotland that the Crown could take the property of the subject on payment of compensation. This does not touch the power of the Crown to take property in times of imminent danger and in extreme necessity.

In England there is no such doctrine as that of eminent domain. Therefore it could not apply in Burma where at the time the common law of England and not of Scotland applied. The House of Lords ought not to create a divergence between the law of England and that of Scotland in relation to the royal prerogative, since on this matter the law is the same in both countries and the doctrines of the Continental civilians form no part of it.

Two principles apply to this claim: (a) Any servant of the Crown can justify a trespass if he is acting in a common danger or in imminent necessity. (b) Any citizen can justify such a trespass in war if he is acting in a situation of immediate danger or to deprive the enemy of valuable advantages. It cannot be that the only persons who have the right are the military servants of the Crown. If that were correct Winston Churchill in his famous exhortation to fight upon the beaches and everywhere should have added the qualification "if acting under proper military authority." But in the circumstances contemplated any citizen would have had the right to destroy the property of a fellow citizen and the Crown would have been under no liability.

In necessity there is no choice. Crown and subject alike have a duty to take all steps available to defeat the enemy. The sole distinction between the two is that, while the subject may not always be able to justify his actions, the Crown can rely on its supreme authority to protect the realm and is not restricted, as the subject is, in the use of its powers and is the judge for the necessity of its acts. In general, both the Crown and the citizen have the right to deal with riot, rebellion or the approach of the enemy by seizing or destroying property without liability to pay compensation. When one is in the field of an actual attack by an enemy the citizen's rights are co-extensive with the Crown's prerogative. It is less the right than the duty of the Crown to defend the realm. This destruction was admittedly carried out to promote the success of the war. As to the position in Scotland, see MacDowall's Institute of the Law of Scotland (1751 ed), Vol. I, p. 523 (Book II, Title II, Section II). (The author became Lord Bankton.) As to the position in England, see Holdsworth's History of English Law, Vol. X, p. 708.

The relevant English authorities are: Year Book 8 Edw. IV (1468) 1680 ed., p. 23 (Case No. 41); Year Book 21 Hen. VII (1506) 1679 ed., p. 27 (Case No. 5); the Statute of 1512, 4 Hen. VIII, c. 1; Year Book 12 Hen. VIII (1521) 1679 ed., Folio 16 (Case No. 1); Brooke's Graunde Abridgement (1573), Vol. I, p. 207 (Customs) (Case No. 45) Vol. II, p. 293 (Trespass) (Case No. 213); the Saltpetre Case⁶²; Reg v. Hampden⁶³; Viner's Abridgement (1st ed.), Vol. XX, p. 476, Trespass B. A. 4; Bacon's Abridgement (3rd ed. 1770), Vol. V, p. 180, F. No. 27; British Cast Plate Co. v. Meredith⁶⁴; Gordon v. Rimmington⁶⁵; Butler v. Wildman⁶⁶; In re a Petition of Right⁶⁷; The Zamora⁶⁸; Commercial and Estates Co. of Egypt v. Board of Trade⁶⁹; Attorney-General v. De Kayser's Royal Hotel Ltd.⁷⁰ and the Crown of Leon case.⁷¹

The terms of the Compensation (Defence) Act, 1939, are wholly irrelevant to any question which the House has to decide here. See also section 9 of the Emergency Powers (Defence)

62 12 Co.Rep. 12, 13.

63 (1637) 3 St.Tr. 825, 903-904, 1012, 1134-1135, 1162, 1194-1195, 1198-1199.

64 4 Term Rep. 794, 796.

65 (1807) 1 Camp. 123.

66 (1820) 3 B. & Ald. 398, 403, 404, 406.

67 [1915] 3 K.B. 649, 654-655, 658, 664, 665, 666.

68 [1916] 2 A.C. 77, 83, 99-100, 106.

69 [1925] 1 K.B. 271, 295.

70 [1919] 2 Ch. 197, 201, 203, 217, 220-221, 225, 229, 235, 244-245, 249, C.A.; [1920] A.C. 508, 517, 518, 523-524, 528-529, 539, 540-544, 549, 551, 554, 561-562, 568-569, 571, 575, H.L.

71 [1921] 1 K.B. 598, 602-604.

Act, 1939, dealing with the prerogative powers. The situation here is not analogous to compulsory purchase under statutory powers.

In the United States the position is complicated by the Fifth Amendment and the fact that in the law there the doctrine of eminent domain is in full force. See the definition of eminent domain in Bouvier's Law Dictionary (3rd ed.), Vol. I, pp. 1008-1034.

As to Mr. Keith's four propositions. The respondent agrees with (1) but would add that the principle has never been applied in the United States in time of war save in Baldwin's Case,⁷² Grant's case⁷³ and Wiggins's case,⁷⁴ all necessarily overruled by the Caltex case⁷⁵ because the decision of the Court of Claims, which it overruled, depended on them. It rested on the concept of imminent peril. The distinction between destruction and taking rested only on the Fifth Amendment. The respondent does not agree with (2). As to (3), the United States law absorbed de Vattel's classification, but on the basis of his two categories of (a) acts done "librement et par précaution" and (b) "dommages ... causés pare une nécessité inévitable" (Droits des Gens (1758 ed.), Book III, c. 15, para. 232, p. 87). As to (4), it is agreed that in each case the question is treated as one of fact and a precise line cannot be laid down.

Among the United States cases, see Respublica v. Sparhawk,⁷⁶ Mayor of New York v. Lord,⁷⁷ Mayor of New York v. Stone,⁷⁸ Russell v. Mayor of New York⁷⁹ and Mitchell v. Harmony.⁸⁰

As to the Public Authorities Protection Act, 1893, the destruction was carried out by persons acting in the performance of a public duty; this action is barred by section 1 of the Act. The words "any act done" mean "any act done, whether wrongful or not." The relevant authorities are Bradford Corporation v. Pickles,⁸¹ Holsworthy Urban District Council v. Holsworthy Rural District Council,⁸² Kaufmann Brothers v. Liverpool Corporation, ⁸³ Bradford Corporation v. Myers,⁸⁴ G. Scammell &

72 (1960) Report No. 259 by the Court of Claims to the 36th Congress (2nd Series).

73 1 Cr.Cl. 41.

74 3 Cr.Cl. 412.

75 344 U.S. 149.

76 1 Dallas 357, 358, 362, 383.

77 18 Wendell 126, 131, 132-133.

78 25 Wendell 157, 162, 171, 174-175.

79 2 Denio 461, 484-485.

80 13 How. 115, 135-136.

81 [1895] A.C. 587; 11 T.L.R. 555, H.L.

82 [1907] 2 Ch. 62, 74; 23 T.L.R. 452.

83 [1916] 1 K.B. 860, 862; 32 T.L.R. 402, D.C.

84 [1916] 1 A.C. 242, 246, 257-258, 264; 32 T.L.R. 113, H.L.

Nephew Ltd. v. Hurley,⁸⁵ Selmer v. Judge,⁸⁶ Delaney v. Metropolitan Water Board,⁸⁷ Robert Baird Ltd. v. Glasgow Corporation,⁸⁸ M'Phail v. Lanark County Council⁸⁹ and Blackley v. Ayr County Council.⁹⁰

G. C. Emslie Q.C. following. The appellants contend that where in lawful exercise of the prerogative the Crown takes or destroys the property of the subject, then in principle under the doctrine of eminent domain compensation must be paid, but they concede an exception where damage results from battle in the field. The expression "battle damage" is an invention of the appellants and is not found in any of the texts referred to. They say that even if the right of the Crown to take the action which it did depends on necessity, there was no necessity not to pay compensation. But that argument would apply equally to "battle damage." The doctrine of eminent domain cannot be applied to a constitution which recognises the sovereignty of Parliament. It rests on control by an autocrat limited by certain obligations to the citizens of the State. But Parliament is not controlled in that way. There is no decision by any Scots court and no statement by any of the institutional writers to the effect that the exercise of the prerogative in war imposes an obligation to pay compensation to individuals adversely affected by it. Those civilians who deal with the matter say that when damage is inflicted on individuals in the course of military operations in the face of an active enemy no compensation is payable. Nothing is said by the civilians of any test which makes the issue turn on whether the damage is inflicted to serve a tactical or a strategic advantage or both. Nor is anything said about whether the property damaged is heritable or movable, large or small. Nothing is made to turn on whether the damage done is within the military competence of the commander in the field.

Although one may consult the civilians, the Roman law is only relevant as showing the foundation of the law of Scotland. It is the law of Scotland which is in question: see Lord Dunedin in Cantiere San Rocco S.A. v. Clyde Shipbuilding and Engineering Co. Ltd.⁹¹ The writings of the civilians may be divided into three groups for the present purpose: (A) Those which deal with the doctrine of eminent domain solely in the context of the right of the sovereign to take the goods of private citizens in peacetime

85 [1929] 1 K.B. 419; 45 T.L.R. 75, C.A.

86 (1871) L.R. 6 Q.B. 724.

87 (1867) L.R. 2 C.P. 532, 534.

88 1934 S.C. 359, 361.

89 1951 S.C. 301.

90 1934 S.L.T. 398.

91 [1924] A.C. 226, 244.

conditions and not in the immediate presence of military events. See Jason's Super Digesto Veteri, De Officio Praetoris (1553), 1 Barbarius (D. 1. 14. 3); Textor's Synopsis Juris Gentium XX 28 (Classics of International Law, Carnegie edition, 1916); Voet, Commentary on the Pandects, 1. 4. 7; Grotius, De Jure Belli ac Pacis, II, XIV; VII, III; XX, VII. (B) Those which while purporting to deal with the doctrine of eminent domain indicate that they would like to regard all war damage inflicted by the sovereign on the subject as entailing the same consequences as when property is taken in peace, but these go too far even by the appellants' standards, having regard to their concessions. See Crusius, Opuscula Varia, Tractatus de Praeeminenti Dominio Principis (1688), c. I, paras. 2, 3, 7, 8, 14; c. IV, paras. 1, 12, 15, 16; c. V, paras. 5, 6, 7; Pufendorf, De Jure Naturae et Gentium, VIII, V, 7 (Classics of International Law, Carnegie edition, 1934); Burlamaqui, The Principles of Politic Law (1752), Part 3, c. V, paras. 24, 26, 27 and 28 (pp. 211-213); Heineccius, Elementa Juris Naturae et Gentium (1738), II, VIII, CLXVIII, CLXXI, CLXXIII. (C) Only two writers try to deal with damage caused to property by war and to devise a test to determine whether such damage is compensatable: Bynkershoek, Quaestiones Juris Publici II, XV, pp. 218-220, 222-224 (Classics of International Law, Carnegie edition, 1930) and de Vattel, Droits des Gens, I, XX, para. 244; III, XV, para. 232. In de Vattel there is a sufficiently clear indication of the category of damage which attracts no compensation and a sufficiently clear test which can be applied to this case. Bynkershoek's test was whether the damage was within the category of the ordinary damage caused by war and the examples he gives show that he is dealing with a wide category.

In the works of the institutional writers there is no trace of a suggestion that the doctrine of eminent domain is the foundation of the law of the royal prerogative in war or that the exercise of the royal prerogative in war involves the payment of compensation to those who suffer from its exercise. There is no suggestion that the subject has a right to compensation for damage so inflicted on him in the course of making war in the face of the enemy. See Bell's Principles of the Law of Scotland, paras. 956, 957 and 960 (pp. 395-396); MacDowall's Institute of the Law of Scotland (Lord Bankton), II, III, I; Kames's Principles of Equity (1825 ed.), I. 1. I (p. 35); Bell's Dictionary and Digest of the Law of Scotland (11th ed.), p. 631, "dominium eminens," p. 633, "King," p. 833, "prerogative"; and Baron Hume's Lectures,

Vol. III, p. 205 (Vol. 15 of the Stair Society's Publications). As to the authority of these lectures see Fortington v. Lord Kinnaird⁹²

The destruction in the present case was the fruit of the interaction of the combatants and was dictated by the operations of the Japanese for whom it was important to seize the installations, while it was important for the British to prevent this. The destruction was done as a matter of duty. On the broad language of Bynkershoek the appellants' averments fail to support their case. Their averments put them out of court and there is no need to go to proof. The reasoned approach to the problem of Bynkershoek and de Vattel, as explained in the United States Supreme Court, removes many difficulties in finding what damage is compensatable and what is not and provides a result which is broadly equitable. The test is: Did the course of the military operations and the action of the enemy determine whether and where a particular military destruction should be carried out.

Further, the appellants' averments are irrelevant, because they claim compensation on the basis of the full cost of reinstatement. That ignores the question what would now have been the value of the installations had they been captured by the Japanese.

As to the royal prerogative in Scottish statutes, see the Act of 1606, c. 1, and the Acts of 1661, cc. 2, 3, 4, 5 and 11. After the Claim of Right, 1689, in making war the prerogative of the Crown remained unimpaired. See also Bank voor Handel en Scheepvaart N.V. v. Administrator of Hungarian Property.⁹³

Sir Milner Holland Q.C. in reply. Six questions of principle are raised: (1) To determine the nature and extent of the power of the Crown to take and destroy the subject's property for the defence of the realm in time of war. The Attorney-General's contention is that the Crown's power only applies in times of dire and extreme emergency in the face of an active enemy. (2) To examine the nature and extent of the defence of necessity and see whether it can apply in the circumstances which occurred here. (3) To examine whether the right is exercisable today without giving rise to any right to compensation and whether in some cases the exercise of this power gives rise to such a right, while in others it does not. (4) Assuming that there is some damage like battle damage which gives rise to no claim by those whose property is injured, what is the extent of this exception and could it apply to the facts here averred without further

92 1942 S.C. 239, 253.

93 [1954] A.C. 584, 637-638; [1954] 2 W.L.R. 867; [1954] 1 All E.R. 969, H.L.

examination? (5) In answering these questions what weight should be attached to the writings of the civilians, the commentators and the Scottish institutional writers? If weight is to be attached to them, what is a fair assessment of their conclusions? Further, what weight is to be attached to the decisions in the United States? (6) Does the Public Authorities Protection Act apply?

The Attorney-General submits that the Crown's right of destruction is limited to conditions of imminent danger and necessity in the face of an active enemy. Compare the submissions for the Crown in De Keyser's case.⁹⁴ The analysis of that case by the Lord Ordinary in the present case⁹⁵ was correct. It would be a novel proposition if a narrow interpretation of a prerogative right were to make the power of the executive too restricted to work. This was not the view taken in In re a Petition of Right.⁹⁶ To suggest that the prerogative right is more limited than it is there expressed to be would set the courts an impossible task. See also the Crown of Leon case⁹⁷ and The Zamora.⁹⁸ There is not one prerogative right to take without paying compensation and another right to take subject to payment of compensation. In the Saltpetre Case⁹⁹ the judges held that the Crown could take saltpetre, but hedged the right about with limitations. Today the defence of necessity in the case of trespass to land would be limited to trespasses for the purpose of repelling an enemy or saving life see Mouse's Case.¹⁰⁰

In considering whether the prerogative act can be done in the circumstances suggested without attracting a liability to pay compensation, a relevant factor is that, if the right claimed had existed, there would never have been any need for emergency legislation: see De Keyser's case.¹⁰¹ See the Acts passed in relation to the wars in the eighteenth century and the Napoleonic wars at times when there was an acute emergency: 20 Geo. 3, c. 38 (1780), in particular the preamble; 22 Geo. 3, c. 80 (1782); 38 Geo. 3, c. 27 (1798); and 43 Geo. 3, c. 55 (1803). The inference to be drawn from the provisions of these Acts is that there is no power to do the things specified in them without paying compensation. It is contrary to the national feeling today that property should be so taken. The question is not whether in times of emergency

94 [1920] A.C. 508, 514.

95 1962 S.L.T. 347, 354.

96 [1915] 3 K.B. 649, 659-660, 666.

97 [1921] 1 K.B. 595, 602-604.

98 [1916] 2 A.C. 77, 106-107.

99 12 Co.Rep. 12, 13.

100 (1608) 12 Co.Rep. 63.

101 [1919] 2 Ch. 197, 210-211, 221, 232, C.A.; [1920] A.C. 508, 539, 551, 552, 553, 562, 575, H.L.

there is a prerogative right to take or destroy property but whether such a right exists without any liability to pay compensation. In the Defence Act, 1842 (5 & 6 Vict. c. 44), there is no trace of any assumption of a prerogative right to take the property of the subject without compensation: see sections 19, 23 and 24. See also section 1 of the Compensation (Defence) Act, 1939. One starts with a presumption against the possibility of confiscation without compensation. Lord Moulton's approach in De Keyser's case¹⁰² is correct. See also the appendix to the printed case on the appeal to the House of Lords in De Keyser. In Vol. II there are extracts from the War Office Records, 1645-1822. In particular at pp. 59-62 there are minutes relating to compensation for houses demolished by the Crown during the rebellion of 1715.

As to Hampden's case,¹⁰³ see what was said by Lord Parmoor in De Keyser's case.¹⁰⁴ In Hampden's case¹⁰⁵ the principle of "general average contribution" was subscribed to. As to the Saltpetre Case,¹⁰⁶ see what Lord Parmoor said in the De Keyser case.¹⁰⁷ The passages in the Saltpetre Case¹⁰⁸ only deal with the narrow question whether in the circumstances considered a trespass had been committed and with no more than that. It is altogether inconclusive on the question of compensation and the passages relied on by the Crown do not support the proposition that no compensation is payable. To say that land may be entered is only to say that there shall be no action for trespass. Nothing emerges from that ease which did not emerge from the De Keyser case.¹⁰⁹

As to the field of battle damage, there must be instances of injury to property for which there is no right to compensation, for example, the indiscriminate and haphazard damage which occurs in actual fighting. As a practical matter, one could not in most cases find by whom it was done. It would be too wide to claim that any damage done to advance the war was compensatable. Battle damage is inflicted by the commander on the spot, while other damage is done for deliberate and wider purposes. It would be an over-simplification to say that the difference is between what is tactical and what is strategic, but that is the right sort of distinction. The military commander in Burma would probably not have decided to destroy all the oil

102 [1920] A.C. 508, 552-554.

103 3 St.Tr. 825.

104 [1920] A.C. 508, 510.

105 3 St.Tr. 825, 859, 1149, 1184.

106 12 Co.Rep. 12.

107 [1920] A.C. 508, 531.

108 12 Co.Rep. 12.

109 [1920] A.C. 508.

installations on his own responsibility, because he would not have known what was the general policy for the direction of the war. There is a contrast between damage done in the course of waging war and inflicting damage on the enemy and the entirely different legal concept of taking, using or destroying the property of the subject in defence of the realm. Some help by analogy is to be found in section 2 of the War Damage Act, 1943, in considering damage for which no legal claim to compensation could be made.

As to the writings of the civilians, the commentators and the institutional writers, on the question whether there is a prerogative right to destroy the subject's property without compensation, the page of our own authority is almost blank, and it is helpful to look at these other sources of our law to find the general principles. It is not submitted that the doctrine of eminent domain is to be imported in considering the extent of the Crown's prerogative. But those writers are discussing the proper consequences of the exercise of the power of taking property for the benefit of the community. In our own constitution we recognise the absolute power of Parliament to confiscate. In the passages cited from Textor and Grotius they were not merely referring to peace time. Crusius and Burlamaqui in the passages cited were not considering battle damage, because it had nothing to do with eminent domain. The reasoning behind de Vattel's observations might well be accepted today. In the passage cited from his writings the contrast is between "libriment" (deliberately) and by necessity, which does not denote a deliberate choice in the destruction of property. The contrast is between a conscious selection in advance of the property to be destroyed and haphazard damage in a mêlée.

As to the American authorities, the Caltex case¹¹⁰ should not be followed because it turned on the Fifth Amendment and has no relevance to English law. The contrast drawn¹¹¹ between taking for use and taking for destruction is not valid. What is also said¹¹² about the rights of the state in times of imminent peril has no warrant in English law. The question here is whether the destruction may be carried out without compensation. Mitchell v. Harmony¹¹³ and United States v. Russell¹¹⁴ were not overruled by the Caltex case.¹¹⁵ See also Respublica v. Sparhawk.¹¹⁶

110 344 U.S. 149.

111 Ibid. 201.

112 Ibid. 200.

113 13 How. 115.

114 13 Wallace 623.

115 344 U.S. 149.

116 1 Dallas 357.

[Lord Reid intimated that their Lordships did not require to hear further argument on the Public Authorities Protection Act.]

The summary of the appellants' contentions is: (1) The Crown's war prerogative in relation to the subject's property is the wide and general power to do all acts necessary for the defence of the realm in the emergency. (2) The defence of necessity open to the citizen in English law is extremely narrow and is probably limited to trespass on land for the purpose of saving life or repelling the enemy. (3) It does not apply here. (4) The prerogative right of the Crown to damage or destroy the property of the individual is exercised subject to his right to compensation. The statutory provisions on this matter would have had less point if there had been a right to take without compensation. (5) The analogy of the concept of eminent domain is persuasive as illustrating the bias against a prerogative right to take without compensation. (6) The courts are reluctant to give enactments a confiscatory meaning. (7) The damage in the present case was not battle damage. (8) The American decisions do not apply so clearly that they should be followed.

Their Lordships took time for consideration.

April 21. LORD REID. My Lords, there are before your Lordships four appeals by associated companies in actions brought by them against the Lord Advocate under the Crown Suits Act, 1857. When war broke out with Japan these companies owned extensive properties in Burma, including oil wells, pipe lines, refineries and other buildings and stocks of petroleum and other goods. When the Japanese invaded Burma these were destroyed by order of the British Government. The appellants claim that they are entitled to payment of such sum as will make good to the pursuers the damage sustained by them as a result of that destruction. The Lord Ordinary, Lord Kilbrandon, repelled pleas that the pursuers' averments are irrelevant and allowed proof before answer. The First Division by interlocutors of March 14, 1963, sustained the pleas to relevancy and dismissed the actions. The appellants now seek to have the interlocutors of the Lord Ordinary restored.

The pursuers aver that, in accordance with directives from His Majesty's Government in the United Kingdom, the G.O.C., Burma on February 3, 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 February 22 settled the fate of Rangoon, and orders for evacuation and destruction of installations and property in that neighbourhood was issued on March 6. These orders were carried out on March 7 and Rangoon was occupied by the enemy on March 8. Other installations further north were destroyed between that date and April 19. The last British forces left Burma on May 20. 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 Right¹ and Attorney-General v. De Keyser's Royal Hotel Ltd.,² there have been no cases directly raising the matter for some centuries, and obiter dicta and the views of institutional writers and text writers are not always very helpful. The definition of Dicey (Law of the Constitution, 10th ed., p. 424), 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 1688-89, 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

1 [1915] 3 K.B. 649; 31 T.L.R. 596, C.A.; (1916) 115 L.T. 419; 32 T.L.R. 699, H.L.

2 [1920] A.C. 508; 36 T.L.R. 600, H.L.

resides in king and parliament, the so-called executive power is in the king alone, was a guiding theory of mediaeval 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 Prosecutions³ 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 Scottish Act, 1703, c. 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 wise 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 repell 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

3 [1964] A.C. 763; [1962] 3 W.L.R. 694; [1962] 3 All E.R. 142, H.L.(E.).

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 case⁴ failed to disclose a single instance of taking or interfering with land without payment. And if movables 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 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. Hampden⁵ deserves rather more consideration than it received in the De Keyser case⁶ 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

4 [1920] A.C. 508.

5 (1637) 3 St.Tr. 826.

6 [1920] A.C. 508.

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. John⁷ 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

7 3 St.Tr. 826, 890 et seq.

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 Right⁸ 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 British Cast Plate Manufacturers Co. v. Meredith.⁹ Warrington L.J. said¹⁰ 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 case¹¹ 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 said¹²: "... the texts give no certain sound as to whether

8 [1915] 3 K.B. 649.

9 (1792) 4 Term Rep. 794.

10 [1915] 3 K.B. 649, 666.

11 [1920] A.C. 508.

12 Ibid. 524.

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 said¹³: "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., said¹⁴: "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 so do by virtue of the royal prerogative." And later he said¹⁵: "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."¹⁶ He then pointed out that in the last three centuries the position of the Crown has completely altered, and referred¹⁷ 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

13 [1920] A.C. 508, 527.

14 Ibid. 539.

15 Ibid. 544.

16 [1920] A.C. 508, 552.

17 Ibid. 553, 554.

Sumner's speech. He did say¹⁸: "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 say¹⁹ 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."²⁰ 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 said²¹: "It is not necessary to inquire how far, in certain cases of necessity, for the public defence, the executive has power to act without statutory authority." But he did discuss the matter. He said²²: "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 Case²³ and says²⁴: "The saltpetre was taken under the right of purveyance, and payment was made." Where I find difficulty is in his statement²⁴: "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,²⁵ 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. said²⁶: "... it

18 [1920] A.C. 508, 562.

19 Ibid. 565.

20 Ibid. 564-565.

21 Ibid. 568.

22 Ibid. 569.

23 (1606) 12 Co.Rep. 12.

24 [1920] A.C. 508, 571.

25 [1921] 1 K.B. 595; 37 T.L.R. 65, D.C.

26 [1921] 1 K.B. 595, 604.

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 state 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 actions 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, concurring with Lord Reading²⁷: "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 Zamora²⁸: "The municipal law of this country does not give compensation to a subject whose land 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. Board of Trade²⁹: "... 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,³⁰ delivered after the decision in In re a Petition of Right³¹ and before the decision in Attorney-General v. De Keyser's Royal Hotel,³² 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

27 [1921] 1 K.B. 595, 606-607.

28 [1916] 2 A.C. 77, 100; 32 T.L.R. 436, P.C.

29 [1925] 1 K.B. 271, 296, C.A.

30 [1916] 2 A.C. 77, 100.

31 [1915] 3 K.B. 649.

32 [1920] A.C. 508.

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, said³³: "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 said³⁴: "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 said³⁵ 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 said³⁶: "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 said³⁷: "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 & Scottish Railway Co.,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

33 1963 S.C. 410, 429.

34 Ibid. 449.

35 Ibid. 458.

36 Ibid. 461.

37 Ibid. 475.

38 1943 S.C.(H.L.) 19, 38.

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 asystem 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 today 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 i, 105)) and a little earlier Lord President Balfour began his Practicks with the sentence: "The law is devydit in thre 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 dykes 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 Droits des Gens, Book III, Chap. 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 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 (Philippines) Inc.³⁹ 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

39 (1952) 344 U.S. 149.

destruction was not taking for public use. In the opinion of the majority delivered by Vinson C.J. it is said⁴⁰: "... the common law had lone 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.⁴¹ 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 judge⁴² show that that was what he had in mind. I am not persuaded by anything said in the Caltex case⁴³ 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

40 344 U.S. 149, 154.

41 (1887) 120 U.S. 227.

42 Ibid. 234.

43 344 U.S. 149.

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 August 14, 1962.

VISCOUNT RADCLIFFE. My Lords, I regard this as a very exceptional case. It is argued, inconveniently, I think, merely upon pleadings. I doubt very much whether it is proceeding upon a true basis. Both sides agree that the acts of destruction in question were lawful and the appellants' case at any rate rests wholly upon the theory that they were done in exercise of the prerogative. Much, but not all, of the respondent's argument accepted this position. As we know only vaguely what this prerogative is and have even vaguer information as to when and on what occasions it has been asserted throughout history, I have become more and more uncertain what it is that we are really talking about.

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,⁴⁴ 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 case⁴⁵. 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 case⁴⁶. 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

44 [1920] A.C. 508.

45 3 St.Tr. 829, 903.

46 Ibid. 1198.

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 August 3, 1914 (one day before the war began), authorising the Admiralty to requisition British ships for war purposes. No statute authorised the making of this Proclamation, and in both The Broadmayne⁴⁷ and Crown of Leon⁴⁸ 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 hoc tribunal 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 shipowner'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 Commissioners⁴⁹ 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

47 [1916] P. 64; 32 T.L.R. 304, C.A.

48 [1921] 1 K.B. 595.

49 (1917) 86 L.J.K.B. 1444; 33 T.L.R. 472, D.C.

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" (Law of the Constitution, 10th ed., p. 424). 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 observance 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 to 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 17th 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 Case⁵⁰ in 1607, 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.

50 12 Co.Rep. 12.

The Saltpetre Case⁵⁰ 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

50 12 Co.Rep. 12.

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 17th 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 18th 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. 3, c. 27, in effect re-enacted by the Act 43 Geo. 3, c. 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 paliamentary approval, the desirability of defining and, very likely, of extending and supplementing the range of admitted executive powers and, thirdly, the advantage of Parliament 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. 3, c. 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, s. 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 August 7, section 115 of the Army Act was extended to cover the requisitioning of "food, forage and stores of every description" (4 & 5 Geo. 5, c. 26), and on August 28 the Admiralty received similar powers on behalf of the Navy (4 & 5 Geo. 5, c. 20). 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 (4 & 5 Geo. 5, c. 51 and c. 65). 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 August 3, 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 Zamora⁵¹ and in Commercial and Estates Co. of Egypt v. Board of Trade.⁵² 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 1914-18 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 (In re a Petition of Right⁵³

51 [1916] 2 A.C. 77.

52 [1925] 1 K.B. 271.

53 [1915] 3 K.B. 649.

Avory J., after reviewing the authorities, held⁵⁴ that the war prerogative entitled the Crown to take possession of land and to continue to occupy it, without liability for compensation. In the Court of Appeal Cozens-Hardy M.R. agreed with this conclusion⁵⁵; so, as I understand him, did Warrington L.J.,⁵⁶ 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.⁵⁷ Lord Parker stated⁵⁸: "The municipal law of this country does not give compensation to a subject whose land 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 case⁵⁹ to represent the statement as only an unattributed quotation from what was then the recent decision in In re a Petition of Right⁶⁰ 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.⁶¹ So far as the Court of Appeal was concerned,⁶² the two members who formed the majority (Swinfen Eady M.R. and Warrington L.J.) distinguished

54 [1915] 3 K.B. 649, 653.

55 Ibid. 660-661.

56 Ibid. 666.

57 [1916] 2 A.C. 77.

58 Ibid. 100.

59 [1920] A.C. 508.

60 [1915] 3 K.B. 649.

61 [1920] A.C. 508.

62 [1919] 2 Ch. 197; 35 T.L.R. 418, C.A.

the previous decision of their court in In re a Petition of Right⁶³ on 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,⁶⁴ 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 Right⁶⁵ 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,⁶⁶ "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

63 [1915] 3 K.B. 649.

64 [1919] 2 Ch. 197, 251.

65 [1915] 3 K.B. 649.

66 [1920] A.C. 508, 524.

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 opinion⁶⁷ 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 refused⁶⁸ 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 Leon⁶⁹: "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

67 [1920] A.C. 508, 552.

68 [1920] A.C. 501.

69 [1921] 1 K.B. 595, 606-607.

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 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.⁷⁰ 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. Ltd. v. The King.⁷¹ 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

70 344 U.S. 149.

71 [1905] 2 K.B. 391; 21 T.L.R. 562, D.C.

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 wartime 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