1. I am the permanent Secretary to the Commissioners for executing the Office of Lord High Admiral of the United Kingdom of Great Britain and Ireland.

2. During the course of the proceedings in this action the Plaintiffs transmitted to the Admiralty certain documents consisting of copies and originals of certain written communications that have passed between the Admiralty and the Plaintiffs and certain agreements that have been made between them and of communications between the Plaintiffs of the one part and the Admiral Commanding Coastguards and Reserves and his Secretary of the other part. All the said documents were submitted to Vice-Admiral Sir O. P., the second Sea Lord, for his inspection and examination on behalf of the said Commissioners, and after inspecting and examining them all, he directed me to write on behalf of the said Commissioners to the above-mentioned Plaintiffs and to require them not to disclose certain of the said documents or their contents to the Defendants or any one on their behalf nor produce them for inspection in this action and to require them to claim privilege for them on the ground that the said documents, which relate to the defence of the Realm and are in the nature of confidential communications, are State documents and that it would be injurious to the public interest that the same should be disclosed or produced for inspection and I accordingly on returning the documents to the Plaintiffs on the day of wrote to them to that effect.

3. On the above grounds I object on behalf of the Lords Commissioners of the Admiralty to the said documents or their contents being disclosed or inspected by the Defendants or any one on their behalf in this action.

BOOK VII.

Actions against Executive Officers of the Government.

CHAPTER I.

GENERAL PROPOSITIONS.

The Crown is not liable for the Wrongful Acts of its Servants. THIS legal fact, which rests logically and directly on the maxim that the King can do no wrong, has been fully discussed in Book III. of this work, pp. 350 sqq., with the object of showing that a petition of right will not lie in respect of a tort committed by a servant of the Crown. The matter, however, is not one of procedure, but of substance. As is pointed out in the cases there cited, if the Crown cannot do a wrong in the eyes of the law, it cannot authorise the doing of a wrong by another.

A Servant of the Crown cannot rely on the Authority of the Crown as a Defence to a Wrongful Act done to a Fellow Subject.

This proposition follows from, or is, rather, substantially identical with, the last. It was plainly laid down by Cockburn, C.J., in Feather v. R. (1865), 6 B. & S. 257; 35 L. J. Q. B. 200: "Let it not, however, be supposed that a subject sustaining a legal wrong at the hands of a minister of the Crown is without a remedy. As the Sovereign cannot authorise wrong to be done, the authority of the Crown would afford no defence to an action brought for an illegal act committed by an officer of the Crown The case of the general warrants, Money v. Leach (1765), 3 Burr. 1742, and the cases of Sutton v. Johnstone (1786), 1 T. R. 493, in error, and Sutherland v. Murray (1783), 1 T. R. 538, there cited, are direct authorities that an action will lie for a tortious act, notwithstanding it may have had the sanction of the highest authority in the State. But in our opinion no authority is needed to establish that a servant of the Crown is responsible in law for a tortious act done to a fellow subject,

though done by the authority of the Crown-a position which appears to us to rest on principles which are too well settled to admit of question, and which are alike essential to uphold the dignity of the Crown on the one hand, and the rights and liberties of the subject on the other."

"The authority of the Crown," as used in this proposition, includes also the authority of any Government Department or official to whom the Crown has deputed its powers in that behalf. "If any person commits a trespass (I use that word advisedly, as meaning a wrongful act or one not justifiable), he cannot escape liability for the offence; he cannot prevent himself being sued merely because he acted in obedience to the order of the executive Government or of any officer of State." (Romer, J., in Raleigh v. Goschen, [1898] 1 Ch. 73; 67 L. J. Ch. 59.) A similar statement was made by Jessel, M.R., in Hawley v. Steele (1877), 6 Ch. D. 521; 46 L. J. Ch. 782. See also Rogers v. Rajendro Dutt (1860), 13 Moo. P. C. 209; and Nireaha Tamaki v. Baker, [1901] A. C. 561, 575; 70 L. J. P. C. 66.

supra.

The words "done to a fellow subject" in the proposition are added on account of the case of Buron v. Denman (1848), 2 Ex. 167, which shows that the proposition does not extend outside a purely domestic forum. There a naval commander had seized slaves, and committed other trespasses without authority or justification, but his acts had been subsequently ratified by the Crown through its responsible ministers. The action was brought by a foreigner, the owner of the slaves, and it was held that the subsequent ratification of the defendant's act was equivalent to a prior command, and rendered it an act of State, for which the Crown was alone responsible. The case is thus dealt with by Cockburn, C.J., in Feather v. R., ubi "The case of Buron v. Denman . . . . only shows that where an act injurious to a foreigner, and which might otherwise afford a ground of action, is done by a British subject, and the act is adopted by the Government of this country, it becomes an act of the State, and the private right of action becomes merged in the international question which arises between our own Government and that of the foreigner. The decision leaves the question as to the right of action between subject and subject wholly untouched." With this case may be read Le Caux v. Eden (1781), 2 Doug. 594; Faith v. Pearson (1816), 6 Taunt. 439; Madrazo v. Willes (1820), 3 B. & A. 353; Dobree v. Napier (1836), 2 Bing. (N. C.) 781; 5 L. J. C. P. 273; and Carr v. Fracis Times & Co., [1902] A. C. 176; 71 L. J. K. B. 361. Contrast Walker v. Baird, [1892] A. C. 491; 61 L. J. P. C. 92, where the action was between two British subjects.

A similar principle was also applied recently in Poll v. L. A. (1899), 1 F. 823. An alien had been prevented from landing fish at Aberdeen, and brought a note of suspension and interdict against the Lord Advocate and against certain officers who had so prevented him. The officers pleaded that in so acting they were obeying the orders of the Secretary for Scotland on behalf of the Crown, and that the Lord Advocate was aware of and concurred in such orders, and also that the act complained of was an act of State, and that no action lay in the Courts of this country at the suit of a foreigner, either against the Crown or against the servants of the Crown, in respect of such an act. The Court gave judgment for the respondents on this last plea, following Buron v. Denman, ubi supra; but the Court further held that in an action against a Crown official, if the Crown by the Lord Advocate appears in process, and states that the actions complained of were duly authorised by the Crown, proof that such actions were unauthorised is incompetent. The statement in this form appears to be open to doubt. (See the cases above, p. 638.) The truth would rather seem to be that such proof would be irrelevant, because the authority of the Crown, whether given or not, would be no defence to the official if his act was wrongful, unless the complainant were an alien and the act constituted an act of State. See also Phillips v. Eyre (1870), L. R. 6 Q. B. 1, 23; 40 L. J. Q. B. 28; and Musgrove v. Chun Tecong Toy, [1891] A. C. 272; 60 L. J. P. C. 28.

It should be observed, however, that the general proposition enunciated at the head of this paragraph does not apply to servants of the Crown, such as governors or viceroys, who, by virtue of their commission, are placed in a position of sovereign authority, so that acts done by them by virtue, and within the limits, of their delegated authority can be regarded as amounting to acts of State; but it is for the Court to determine whether any particular act is within such authority, so as to be considered an act of State. (Musgrave v. Pulido (1879), 5 A. C. 102; 49 L. J. P. C. 20.)

The same observation applies to subjects in whom sovereign power has been vested by charter or other grant, such as the East India Company. (See Salaman v. Secretary of State in Council of India, [1906] 1 K. B. 613; 75 L. J. K. B. 418, and cases there cited.)

Further, no action lies against a military officer for an act done in the ordinary course of his duty as such officer, even if done maliciously and without reasonable or probable cause. (Dawkins v. Lord F. Paulet (1869), L. R. 5 Q. B. 94; 39 L. J. Q. B. 53, and cases there cited.) But see also Wilson v. 1st Edinburgh City Royal Garrison Artillery Volunteers (1904), 7 F. 168.

A Servant of the Crown is liable for his own Wrongful Acts only, and not for those of his Subordinates,

This principle was first laid down judicially in early cases with regard to the liability of the Postmaster-General.

Lane v. Cotton (1701), 1 Ld. Raym. 646, was an action on the case against the defendants as Postmaster-General, for the loss of exchequer bills from a letter by the default of subordinate officers. It was decided that the head of a public office under the Government, with power to appoint and remove the servants of the office, who are to be paid by the Government and to give at his discretion security to the Government, is not responsible to an individual for a loss occasioned by the default of such servants, but that such servants alone are responsible. The same result was arrived at in Whitfield v. Lord Le Despencer (1778), 2 Cowp. 754, where Lord Mansfield, C.J., said: "As to an action on the case lying against the party really offending, there can be no doubt of it, for whoever does an act by which another person receives an injury, is liable in an action for the injury sustained. If a man who receives a penny to carry the letters to the Post Office loses any of them, he is answerable; so is the sorter in the business of his department, so is the Postmaster for any fault of his own. Here, no personal neglect is imputed to the defendants, nor is the action brought on that ground, but for a constructive negligence only, by the act of their servants. In order to succeed, therefore, it must be shown that it is a loss to be supported by the Postmaster, which it certainly is not. As to the argument that has been drawn from the salary which the defendants enjoy, in a matter of revenue and police under the authority of an Act of Parliament the salary annexed to the office is for no other consideration than the trouble of executing it. The case of the Postmaster, therefore, is in no circumstance whatever similar to that of a common carrier; but he is like all other public officers, such as the Lords Commissioners of the Treasury, the Commissioners of the Customs and Excise, the Auditors of the Exchequer, &c., who were never thought liable for any negligence or misconduct of the inferior officers in their several departments." See also Roning v. Goodchild (1773), 2 W. Bl. 906, and Jones v. Monsell (1871), Ir. R. 6 C. L. 155. These cases were discussed in the recent case of Bainbridge v. Postmaster-General, [1906] 1 K. B. 178; 75 L. J. K. B. 366, which decided that the PostmasterGeneral is not liable in his official capacity, as head of the Telegraph Department of the Post Office, for wrongful acts done by his subordinates in carrying on the business of the Department.

C.P.

TT