The Online Library of Liberty

A project of Liberty Fund, Inc.

• Pubusher's Note
• Foreword
• Preface to the First Edition
• Preface to the Eighth Edition
• Introduction
• Outline of Subject: the True Nature of Constitutional Law
• Part I: The Sovereignty of Parliament
• Chapter I: The Nature of Parliamentary Sovereignty
• Chapter II: Parliament and Non-sovereign Law-making Bodies
• Chapter III: Parliamentary Sovereignty and Federalism
• Part II: The Rule of Law
• Chapter IV: The Rule of Law: Its Nature and General Applications
• Chapter V: The Right to Personal Freedom
• Chapter VI: The Right to Freedom of Discussion
• Chapter VII: The Right of Public Meeting 1
• Chapter VIII: Martial Law
• Chapter IX: The Army 1
• Chapter X: The Revenue 1
• Chapter XI: The Responsibility of Ministers
• Chapter XII: Rule of Law Compared With Droit Administratif 1
• Chapter XIII: Relation Between Parliamentary Sovereignty and the Rule of Law
• Part III: The Connection Between the Law of the Constitution and the Conventions of the Constitution
• Chapter XIV: Nature of Conventions of Constitution
• Chapter XV: The Sanction By Which the Conventions of the Constitution Are Enforced
• Appendix
• Note I: Rigidity of French Constitutions
• Note II: Division of Powers In Federal States
• Note III: Distinction Between a Paruamentary Executive and a Non-parliamentary Executive
• Note IV: The Right of Self-defence
• Note V: Questions Connected With the Right of Public Meeting
• Note VI: Duty of Soldiers Called Upon to Disperse an Unlawful Assembly
• Note VII: The Meaning of an “unconstitutional” Law
• Note VIII: Swiss Federalism 89
• Note IX: Australian Federalism 101
• Note X: Martial Law In England During Time of War Or Insurrection 121
• Note XI: Constitution of the Tribunal Des Conflits 159
• Note XII: Proceedings Against the Crown
• Note XIII: Parliament Act, 1911 [i & 2 Geo. 5. Ch. Ch. 13.]

Note XII

PROCEEDINGS AGAINST THE CROWN

Technically it is impossible under English law to bring an action against the Crown, and this impossibility is often said to be based on the principle that the Crown can do no wrong. Hence well-informed foreign critics, and perhaps some Englishmen also, often think that there is in reality no remedy against the Crown, or in other words, against the Government, for injuries done to individuals by either,

• 1.The breach of a contract made with the Crown, or with a Government department, or
• 2.A wrong committed by the Crown, or rather by its servants.

This idea is however in substance erroneous.

AS TO BREACH OF CONTRACT

For the breach of a contract made with a Government department on behalf of the Crown a Petition of Right will in general lie, which though in form a petition, and requiring the sanction of the Attorney-General (which is never refused), is in reality an action.

Many Government departments, further, such for instance as the Commissioners of Works, who have the general charge of public buildings, are corporate bodies, and can be sued as such.

Contracts made with Government departments or their representatives are made on the express or implied terms of payment out of monies to be provided by Parliament, but the risk of Parliament not providing the money is not one which any contractor takes into consideration.

AS TO WRONGS

Neither an action nor a Petition of Right lies against the Crown for a wrong committed by its servants.

The remedy open to a person injured by a servant of the Crown in the course of his service is an action against the person who has actually done or taken part in doing the wrongful act which has caused damage. But, speaking generally, no injustice results from this, for the Crown, i.e. the Government, usually pays damages awarded against a servant of the State for a wrong done in the course of his service. Actions, for instance, have been constantly brought against officers of the Royal Navy for damage done by collisions with other ships caused by the negligence of such officers. The damage recovered against the officer is almost invariably paid by the Admiralty.

It would be an amendment of the law to enact that a Petition of Right should lie against the Crown for torts committed by the servants of the Crown in the course of their service. But the technical immunity of the Crown in respect of such torts is not a subject of public complaint, and in practice works little, if any, injustice.

It should be further remembered that much business which in foreign countries is carried on by persons who are servants of the State is in England transacted by corporate bodies, e.g. railway companies, municipal corporations, and the like, which are legally fully responsible for the contracts made on their behalf or wrongs committed by their officials or servants in the course of their service.163

[163]See Lowell, The Government of England, ii. pp. 490–494.