Hunter and Company v Coleman
| Jurisdiction | Ireland |
| Judge | K. B. Div. |
| Judgment Date | 15 June 1914 |
| Court | King's Bench Division (Ireland) |
| Date | 15 June 1914 |
K. B. Div.
CASES
DETERMINED BY
THE KING'S BENCH DIVISION
OF
THE HIGH COURT OF JUSTICE IN IRELAND,
AND ON APPEAL THEREFROM IN
THE COURT OF APPEAL,
AND BY
THE COURT FOR CROWN CASES RESERVED.
1914.
Customs — Prohibition of importation of arms into Ireland — Proclamation — Seizure — Forfeiture — Customs Consolidation Act, 1876 (39 & 40 Vict. c. 36), s. 43.
Held (by Cherry, L.C.J., and Dodd, J., Kenny, J., diss.) that in a proclamation under the section the area into which importation is prohibited may be limited, and that a royal proclamation prohibiting the importation of arms, ammunition, and the component parts of arms, empty cartridge-cases, explosives and combustibles for warlike purposes into Ireland, was valid under the authority of the section.
Held also, by Cherry, L.C.J., and Dodd, J., that where goods are imported in violation of such a proclamation, the fact that a Customs officer who seizes the goods causes or permits them to be destroyed before proceedings are taken to have them condemned, does not give the owner of the goods any right of action against him.
Motion on behalf of defendant for judgment or a new trial.
The plaintiffs, who were carrying on business as gunsmiths at Royal Avenue, Belfast, ordered some cases of guns from Hamburg. The guns were duly shipped, consigned to the plaintiffs, and arrived at the port of Belfast. On the 4th December, 1913, while the guns were on their way, the proclamation set out below was issued:—
By The King.
A Proclamation
For Prohibiting the Importation of Military Arms and Ammunition, into Ireland.
GEORGE, R.I.:
Whereas, by sec. 43 of the Customs Consolidation Act, 1876, it is provided that the importation of arms, ammunition, gunpowder, or any other goods, may be prohibited by proclamation.
And whereas it is expedient that the importation into Ireland of arms and ammunition, and the other goods hereinafter mentioned, should be prohibited:
Now, therefore, We, by and with the advice of Our Privy Council, in pursuance of the said Act, and of all other powers enabling Us in that behalf, do hereby proclaim, direct, and order as follows:—
As from and after the date of this Proclamation, and subject as hereinafter provided, arms and ammunition, and the following goods, that is to say, the component parts of any arms, empty cartridge-cases, and explosives and combustibles for warlike purposes, shall be prohibited to be imported into Ireland:
Provided always and it is hereby declared that nothing in this Proclamation shall apply to any arms or the component parts of any arms, or any ammunition, or any empty cartridge cases, which in the opinion of the Commissioners of Customs and Excise are adapted for use, or intended to be used, solely for sporting purposes, or to any explosives or combustibles which in the opinion of the said Commissioners are intended to be used solely for mining or any other unwarlike purposes.
Given at Our Court of Saint James, this 4th day of December, in the year of Our Lord one thousand nine hundred and thirteen, and in the fourth year of Our Reign.
God Save The King.
A proclamation under the authority of sect. 8 of the Customs and Inland Revenue Act, 1879, was issued at the same time, prohibiting the carriage coastwise of the like articles.
On their arrival at Belfast the guns were seized by the defendant, an officer of customs, purporting to act under the authority of the proclamation, and they were subsequently destroyed by the police, to whom he had handed them over. No legal proceedings had been taken to declare them forfeited. The plaintiffs claimed damages for the detention and trover and conversion of the goods. The defendant, in addition to traverses, pleaded that the seizure was effected under the authority of the proclamation set forth above, and counter-claimed that the arms might be declared to have been forfeited, and for penalties in respect of them. The claim by the defendant for penalties was subsequently abandoned on the hearing of the motion. The plaintiffs by their reply, in addition to joining issue, pleaded that the proclamation was void, ultra vires, and not authorized by the statute.
At the trial before Boyd, J., in Belfast, the findings of the jury were as follows:—
“1. Were the plaintiffs owners of the goods in question? Answer—Yes. 2. Did the defendant convert the goods to his own use? Answer—Yes. 3. Did the defendant detain the said goods from the plaintiffs? Answer—Yes. 4. Damages, if any?—£92 5s. 7d.” The sum found for damages was a sum agreed upon between the parties as representing the value of the guns.
Boyd, J., thereupon entered a formal judgment for the plaintiffs, without expressing any opinion as to the validity of the proclamation, leaving that question to be determined by the Divisional Court.
The nature of the arguments sufficiently appears from the judgments.
Sect. 43 of the Customs Consolidation Act, 1876, provides that “The importation of arms, ammunition, gunpowder, or any other goods may he prohibited by proclamation or order in council.”
The Attorney-General (Moriarty, K.C.) and the Solicitor-General (Jonathan Pim, K.C.) (with them P. A. O'C. White) for the defendants.
Ronan, K.C., and Campbell, K.C. (with them Gordon, K.C., and James Andrews), for the plaintiffs.
Dodd, J.:—
The action is brought by a firm of merchants in Belfast, trading as Hunter & Son, against Mr. Coleman, who is the collector of Custom and Excise in the city of Belfast.
The statement of claim avers that the defendant, as such collector of customs, on the 18th of December wrongfully and unlawfully seized certain goods of the plaintiffs, to wit, eight packages containing arms, which were consigned to the plaintiffs from Hamburg. The claim is also put alternatively as for detention of goods, and for conversion of goods.
The questions submitted to the jury were on the counts for conversion and detention, on which they found for the plaintiffs. The damages were agreed to at £92 5s. 7d., and judgment was entered for that amount.
The defendant, in addition to other matters of defence not now relied upon, justifies under a proclamation of the King, dated the 4th December, 1913. He also, as collector of Customs, counter-claims for a declaration that the said goods were forfeited, and prays judgment for the sum of £100 penalties under the Act.
The proclamation relied upon purports to be made under sect. 43 of the Customs Consolidation Act of 1876, and under all other powers enabling His Majesty in that behalf.
It has not been argued before us that there are any other powers enabling His Majesty in that behalf. Mr. Ronan, in a brilliant argument, enriched with quotations from jurists of unquestioned authority, contended respectfully that His Majesty had no such power by virtue of his Royal prerogative. The learned law officers did not rely in their argument upon any ground of justification save the section mentioned in the proclamation.
The section runs:— “The importation of arms, ammunition, gunpowder, or any other goods may be prohibited by proclamation or order in Council.”
The sole question for our adjudication is—Can His Majesty limit his proclamation to Ireland?
The result of Mr. Ronan's argument is that His Majesty could not, without the assent of Parliament, in the exercise of his prerogative, make such a proclamation, even though the proclamation was extended to the United Kingdom. This would be a new law, and the previous assent of Parliament is necessary for every new law, whether of a general or a temporary nature. His Gracious Majesty cannot legislate.
It is not contested, however, that His Majesty has power under this section to make a proclamation prohibiting the importation of arms, ammunition, gunpowder, and any goods into the United Kingdom. The proclamation in this case would, it is conceded, be good if the words “United Kingdom” had been inserted in the proclamation instead of “Ireland.” It gives therefore a power in addition to His Majesty's prerogative. The question, therefore, becomes narrower and narrower. What is the limit, if any, to the power thus entrusted to the Sovereign by Parliament?
I propose to find an answer to the question within the Act in which this section finds a place. It is necessary to consider the section in its context, and to have regard to the law as it stood before the statute was passed.
The Act of 1876 was a Consolidation Act. It reproduced in identical words some sections of an earlier Act of 1853, and I accept Mr. Ronan's contention that we must go back to that Act, to the scope of that Act, and to the law as it stood before that Act was passed, to ascertain the true meaning of the section we are to interpret.
Sects. 39 to 44 in the Act of 1876 correspond to sects. 41 to 46 in the Act of 1853. The Act of 1853 superseded an Act of 1845. That Act in turn superseded an Act of 1833. It, in its turn, superseded an Act of 1825. It is not necessary to go back further. The learned Solicitor-General, as the result of his research, says that the provision in the Act of 1845 as to arms and ammunition and gunpowder can be traced back, at any rate, as far as the Stuart kings. All that I can look at for purposes of comparison is, I think, the Act of 1845.
Under that Act, by sect. 63, arms, ammunition, and utensils of war by way of merchandise were absolutely prohibited for be imported into the United Kingdom, except by licence from Her Majesty for furnishing Her Majesty's public stores only; and in the same Act (sect. 112) the exportation of arms, ammunition, and gunpowder, military and naval stores, and any articles (except copper) which Her Majesty shall judge capable of being converted into or made useful in increasing the quantify of military or naval stores, may be prohibited by proclamation or order in Council.
The law, therefore, as it stood at the time the Act of 1853 came to be passed gave special control to the monarch in respect of...
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