Attorney-General v De Keyser's Royal Hotel  All ER 80;  AC 508
LORD DUNEDIN:....That the act of taking by the Crown was in itself legal is necessarily admitted by both sides. It is the basis of the case for the Crown, who said at the time that they took under the Defence of the Realm Act, and now add in argument that, whether that was so or not, they took de facto and can justify that taking, under the powers of the prerogative. It must necessarily be admitted by the respondents, for if taking in itself was purely illegal then it would be a tort not committed by the Crown, who cannot commit a tort, but by the officers of the Crown, and the petition of right would not lie. The question in the case is, therefore, narrowed to one point and one point only. The Crown having legally taken, is it bound to pay compensation ex lege, or is the offer to pay compensation ex gratia, as that compensation may be fixed by the Losses Commission, a sufficient offer and an answer to all demands? I have already quoted the letter of May 1, which shows that the War Office propose to take possession of the hotel under the Defence of the Realm Regulations, but in the argument in the court below and before your Lordships the taking has been justified by the power of the prerogative alone, and there has been a very exhaustive citation of authority of the powers of the Crown in virtue of the prerogative.
I do not think it necessary to examine and comment on the various cases cited. The foundations of the contention are to be found in the concessions made in the speech of Mr. St. John in R v Hampden, Ship Money Case, and in the opinion of the consulted judges in King's Prerogative in Saltpetre. The most that could be taken from them is that the King, as suprema potestas endowed with the right and duty of protecting the realm is, for the purpose of the defence of the realm, in times of danger entitled to take any man's property, and that the texts gives no certain sound as to whether this right to take is accompanied by an obligation to make compensation to him whose property is taken. In view of this silence it is but natural to inquire what has been the practice in the past. An inquiry as to this was instituted in this case, and there has been placed before your Lordships a volume of extracts from various records. The search is admittedly not exhaustive, but it is sufficient to be illustrative. The learned Master of the Rolls in his judgment has analysed the document produced. He has divided the time occupied by the search into three periods, the first prior to 1788, then from 1788 to 1798 and the third subsequent to 1798. The first period contained instances of the acquiral of private property for the purposes of defence by private negotiation in all of which, it being a matter of negotiation, there is reference to the payment to be offered for the land taken. With the second period we begin the series of statutes which authorise the taking of lands and make provision for the assessment of compensation, the statutes being, however, of a local and not of a general character, dealin, each with the particular lands proposed to be acquired. The third period begins with the introduction of general statutes not directed to the acquisition of particular lands, and again making provision for the assessment and payment of compensation. I shall refer to the statutes presently, but, speaking generally, what can be gathered from the records as a matter of practice seems to resolve itself into this. There is a universal practice of payment restina on bargain before 1708, and on statutory power and provision after 1708. On the other hand, there is no mention of a claim made in respect of land taken under the prerogative, for the acquisition of which there ivas neither bargain nor statutory sanction. Nor is there any proof that any such acquisition had taken place. I do not think that from this usage of payment there can be imposed on the Crown a customary obligation to pay, for, once the taking itself is admitted to be as of right, the usage of payment so far as not resting on statutory provision is equally consistent with a payment ex lege and a payment ex gratia. On the other hand, I think it is admissible to consider the statutes in the light of the admitted custom to pay, for in the face of a custom of payment it is not surprising that there should be consent on the part of the Crown that this branch of the prerogative should be regulated by statute. It is just here that the full investigation into the statutory history which has been made in this case...serves to dislodge a view which I cannot help thinking, was very influential in determining, the judgment of the Court of Appeal in Re Petition of Right. Digressing for the moment to that case, I am bound to say that I do not think that this case can be distinguished from that in essential particulars. The existence of a state of war is common to both. As to the necessity for the taking over of the particular subject, the Crown authorities must be the judge of that, and the evidence as to the necessity for the occupation of these premises, in the opinion of the Crown advisers, is just as distinct and uncontradicted in this case as it was in that.
The view which I think prevailed in Re Petition of Right was that the prerogative gives right to take for use of the moment in a time of emergency, that when you come to the Defence Acts of 1803 and 1842 you find a code for the taking of land permanently in times of peace as well as of war, and that consequently the two systems could well stand side by side; and then, as there was no direct mention of the prerogative in the statutes, you were assisted by the general doctrine that the Crown is not bound by a statute unless specially mentioned....On this point I think the observation of the learned Master of the Rolls is unanswerable. He says: "What use would there be in imposing limitations if the Crown could, at its pleasure, disregard them and fall back on prerogative?" The prerogative is defined by a learned constitutional writer as "the residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Grown." Inasmuch as the Crown is a party to every Act of Parliament it is logical enough to consider that when the Act deals with something which before the Act would be effected by the prerogative and specially empowers the Crown to do the same thing, but subject to conditions, the Crown assents to that, and by that Act, to the prerogative being curtailed.
I have read very carefully and considered the judgments delivered in Re Petition of Right, and it is, I think, apparent that the view of the series of statutes there presented was that the general statutes had their inception for the purpose of permanent acquisition in times of peace as well as of war, but in the fuller citation that has been made in this case we find that this is not so. It is somewhat significant that in the first statute of all dealing with the acquisition of land, 7 Anne, c. 26, we have a reference to "the usual methods" that had been taken to prevent extortionate demands, and the usual methods are said to be a valuation by jury. It is also significant that in the whole statutory series there is no trace of any claim to take under the prerogative and not to pay.... But the real point seems to me to be that we find that even before the idea of a general Act, that is to say, when the Acts were limited in time to the continuance of a war, there is provision made for a temporary taking, and for payment, or, in other words, for getting by statute, with the concomitant obligation of payment, that very temporary possession which, according to the view expressed above, was the function of the prerogative to provide free of charge, leaving it to statute to provide for a permanent acquisition....
I now come to the Defence of the Realm (Consolidation) Act, 1914, the Act under the powers of which the Crown professes to take. Now, just as the statutes must be interpreted in view of what the rights and practices antecedent to them had been, so we must look at the Defence of the Realm Act in view of the law as it stood previous to its passing. The Act of 1914, passed on Nov. 27, 1914, declares by s.1(1) that His Majesty has power during the continuance of the war to issue regulations for securing the public safety and the defence of the realm. Subsection (2) says that any such regulations may provide for the suspension of any restrictions on the acquisition or user of land under the Defence Acts 1842 to 1875. Pursuant to this Act a regulation was issued on Nov.28, 1914, which empowered the competent naval or military authority, or any person authorised by him, when for the purpose of securing the public safety or the defence of the realm it is necessary so to do" (sub-s.(a), to take possession of any land, and sub-s.(b) to take possession of any buildings). It is clear that under these subsections the taking possession of De Keyser's Hotel was warranted, but there was no necessity for the public safety of the defence of the realm that payment should not be made, such payment being on the hypothesis that the views above expressed as to the Act of 1842 were sound - a necessary concomitant to taking. The very structure of the Act points the same way. Why provide by sub-s.(2) for the suspension of restrictions under the existing Act which allowed of taking of land if a mere taking simpliciter was all that was wanted?
There are two other matters as to which I should say a few words. The learned Attorney-General laid great stress on the words of s. 1 of the Defence of the Realm (Acquisition of Land) Act, 1916, which, providing for a continuation of powers after the war, begins thus:
"Where, during the course of or within the week immediately preceding the commencement of the present war, possession has been taken of any land by or on behalf of any government department for purposes connected with the present war, whether in exercise or purported exercise of any prerogative right of His Majesty, or of any powers conferred by or under any enactment relating, to the defence of the realm, or by agreement, or otherwise, it shall be lawful...."
This, he argued, was a statutory confirmation and declaration of the power to take under the prerogative. So it may be, but if the views expressed in the first part of my remarks are right it leaves those views untouched. And further, the words used really amounts to this. They do not in any way define the rights which the Crown has to take, but they say if the Crown has de facto taken quocumque modo then it shall be lawful as thereafter provided to continue possession....
LORD MOULTON:....In deciding the issues raised herein between the Crown and the suppliants, the first question to be settled might in the present case be treated as a question of fact namely : Was possession in fact taken under the royal prerogative or under special statutory powers giving to the Crown the requisite authority? Regarded as a question of fact, this is a matter which does not admit of doubt. Possession was expressly taken under statutory power.... It is not competent to the Crown, who took and retained such possession, to deny that their representative was acting tinder the powers given to it by these regulations, the validity of which rests entirely on statute. It was not a matter of slight importance whether the demand for possession purported to be made under the statutory powers of the Crown or the royal prerogative. Even the most fervent believer in the scope of the royal prerogative must admit that the powers of the Crown were extended by the Defence of the Realm Consolidation Act and the regulations made thereunder. It was for that purpose that the Act was passed and the regulations made. But even if that were not so, there was a manifest advantage in proceeding under the statutory powers. It rendered it impossible for the subject to contest the right of the Crown to take the premises by the exercise of the powers given by the statute. The statutory powers of the Crown were formulated in the regulations in a manner which was beyond mistake....But when the Crown elects to act under the authority of a statute, it like any other person, must take the powers that it thus uses cum onere. It cannot take the powers without fulfilling the condition that the statute imposes on the use of such powers.
[I]t would be unsatisfactory in a ease of such general importance to leave unconsidered the question whether, apart from the fact that the Crown expressly purported to be acting under powers given to it by statute, the suppliants' claim could be maintained. To decide this question one must consider the nature and extent of the so-called royal prerogative in the matter of taking or occupying land for the better defence of the realm. I have no doubt that in early days, when war was carried on in a simpler fashion and on a smaller scale than is the case in modern times, the Crown, to whom the defence of the realm was entrusted, had wide prerogative powers as to taking, or using the lands of its subjects for the defence of the realm when the necessity arose. But such necessity would be in general an actual and immediate necessity arising in face of the enemy and in circumstances where the rule salus populi suprema lex was clearly applicable. The necessity would in almost all cases be local, and no-one could deny the right of the Crown to raise fortifications on or otherwise occupy the land of the subject in the face of the enemy, if it were necessary so to do. Nor have I any doubt that in those days the subject who had suffered in this way in war would not have been held to have any claim against the Crown for compensation in respect of the damage they had thus suffered. It must not be forgotten that in those days the costs of war were mainly borne by the royal revenues, so that the King himself was the heaviest sufferer. The limited and necessary interference with the property of the subjects, of which I have spoken, would have been looked upon as part of the damage done by the war which it had fallen to their lot to bear, and there is no reason to think that anyone would have thought that he had a claim against the Crown in respect of it. Certainly no trace of any such claim having been put forward is to be found. This state of things lasted for several centuries....But in the last three centuries very important changes have occurred which have completely altered the position of the Crown in such matters. In the first place, war has become far more complicated, and necessitates costly and elaborate preparations in the form of permanent fortifications and otherwise which must be made in times of peace. In the second place, the cost of war has become too great to be borne by the royal revenues, so that the money for it has to come from the people through the legislature, which has long ago assumed and has since retained the command of all national resources. In the third place, the feeling that it was equitable that burdens borne for the good of the nation should be distributed over the whole nation, and should not be allowed to fall on particular individuals, has grown to be a national sentiment.
The effect of these changes is seen in the long series of statutes relating to the occupation of land for the purposes of fortifications or otherwise for national defence, to which I have already referred, and which cover the last two centuries. In all these Acts provision was made for compensation to the individual whose lands were taken or used, and indeed there is clear evidence that for many years prior to the first of these statutes the Crown acted on this principle. It is not necessary to examine these Acts in detail....But towards the beginning of the last century the Acts take on a more general and permanent form, and eventually they culminate in the Defence Act, 1842, which gives to the Crown, through its properly appointed officials, the widest possible powers of taking land and buildings needed for the defence of the realm under a minutely defined procedure set out in the Act. It contemplates that the acquisition shall, as a rule, be by agreement, but it gives ample powers of compulsory acquisition if the necessity be duly vouched, or in case of an actual invasion. In all cases compensation for the taking or using of the land by the Crown is to be assessed by a jury who (in the words of the Act) have to find "the compensation to be paid, either for the absolute purchase of such lands, buildings, or other hereditaments or for the possession or use thereof, as the case may be....."
What effect has this course of legislation upon the royal prerogative? I do not think that it can be said to have abrogated that prerogative in any way, but it has given to the Crown statutory powers which render the exercise of that prerogative unnecessary, because the statutory powers that have been conferred upon it are wider and more comprehensive than those of the prerogative itself. But it has done more than this. It has indicated unmistakably that it is the intention of the nation that the powers of the Crown in these respects should be exercised in the equitable manner set forth in the statute, so that the burden shall not fall on the individual, but shall be borne by the community. This being so, when powers covered by this statute are exercised by the Crown it must be presumed that they are so exercised under the statute, and, therefore, subject to the equitable provision for compensation which is to be found in it. There can be no excuse for reverting to prerogative powers simpliciter - if, indeed, they ever did exist in such a form as would cover the proposed acquisition, a matter which is far from clear in such a case as the present - when the legislature has given to the Crown statutory powers which are wider even than anyone pretends that the prerogative possessed, and cover all that is necessary for the defence of the nation, and which are, moreover, accompanied by safeguards to the individual that are in agreement with the demands of justice. Accordingly, if the commandeering of the buildings in this case had not been expressly done under statutory powers, I should have held that the Crown must be presumed to have acted under these statutory powers, and thus given to the subject the statutory right to compensation. I am, therefore, of opinion that the suppliants are entitled to the declaration in the form approved of by the Court below, and that this appeal should be dismissed with costs.