prerogatives by exception. The first of these rules in practice exempts the State from liability to the subject for the wrongful acts of its officers and servants. The rule of exemption from statutes operates in general in rather a different way. From the fact that our statute law deals in the main with matters of public regulation or administration-matters of 'police' in the widest sense-and with matters of revenue, the rule works out practically to this: that the property of the central government is exempt from administrative regulation and especially from taxing Acts, and that the functions of central government are exercised independently of and not subject to the fiscal or administrative regulations imposed by statutes, or by the several subordinate authorities created and empowered by these statutes. The modern sense of the rule is that the executive government of the State is not bound by statute unless that intention is manifest'-per Griffith C.J. in Roberts v. Ahern, 1 Commonwealth Law Reports, at p. 4181. It need not be added that whatever privileges belong to the Crown in England belong equally to the several colonial governments, and that not merely in their own, but in other jurisdictions within the Empire (Young v. SS. Scotia [1903] A. C. 501-a claim for salvage against the Dominion of Canada in the Supreme Court of Newfoundland).

One other practical consequence of the rule exempting the Crown from statutes must be noticed. The common law prohibits generally, and knows no exemption of the King save that which attends his immunity from legal proceedings; the same is of course true in the case of those statutes which bind the Crown. It is trite law that in these cases the shield of the Crown cannot extend to

1 For example: a postmaster letting horses for a public express on the service of government is not within a statute requiring persons who let horses for travelling post to deliver a stamp-office ticket (R. v. Cook (1793) 3 T. R. 519). Where a postmaster has in his possession scales belonging to the Crown for the purpose of his office and those scales are found to be untrue, he cannot be prosecuted under the Weights and Measures Act therefor, even though he be actually carrying on a business of his own on the same premises; he would of course be liable for user if he used the scales in his business (Queen v. Justices of Kent (1889) 24 Q. B. D. 181). Income tax is not payable by justices on the value of a building used for the administration of justice (Ooomber v. Justices of Berks (1883) 9 App. Cas. 61). A servant of the War Office employed in driving a locomotive is not subject to the municipal regulations prescribing the maximum rate of driving through the borough (Cooper v. Hawkins [1904] 2 K. B. 164). Property held by the commanding officer of a volunteer corps solely for the service of the corps is not assessable for contribution to the cost of paving (Hornsey Urban Council v. Hennell [1902] 2 K. B. 73). By-laws of a sanitary authority requiring the inspection of buildings before use do not apply to prison buildings which are state property, and 'over which the local authorities have no control whatever' (Gorton Local Board v. Prison Commissioners [1904] 2 K B. 165 note). Persons under contract with a Department of State, even though not technically its servants, for the performance of sanitary services in connexion with premises used by the Department, are not in relation to that service subject to a statute imposing a penalty on all persons performing services of the kind without the licence of the municipality (Roberts v. Ahern [1904] I Commonwealth Law Reports, 406).

protect the officer or agent from the consequences of his wrongdoing; this is one of the most vital doctrines of our constitutional law. But in the case of acts prohibited by statute, the exemption of the King rests upon an intention that the act in question should in the King's case be free of restriction, and if the privilege of exemption is one which to be effective must extend to the officers and agents of the Crown acting in the course of their duty, they are free of all liability, for they have done no wrong (see Cooper v. Hawkins [1904] 2 K. B. 13, 164).

This question then becomes important-who and what are covered by the shield of the Crown? The obvious answer is, those who are in truth the agents and instruments of the Crown (Mersey Docks Trustees v. Gibbs, L. R. 1 H. L. 93; Gilbert v. Corporation of Trinity House (1886) 17 Q. B. D. 795; Fox v. Government of Newfoundland [1898] A. C. 667). As a matter of history it is easy to connect a great part of the organs of public government in England with the use and service of the Crown, from which they have emanated and on which they have depended. The Chancellor and the Secretaries of State, now great Departments of State, were in origin mere means of declaring the King's will. The Privy Council, not less than the Chancellor of immediate dependence upon the King, was for long the general government of the realm, and in modern times its Committees have been the cradle of what have ultimately become separate Departments of State-the Board of Trade, the Local Government Board, the Education Department, the Board of Agriculture. Again, departments such as those of the Lord-Lieutenant of Ireland and his Chief Secretary are clearly within the present principle, either because-in the case of the LordLieutenant--there is a direct representation of the King, or because the offices are constituted for the performance of functions which would otherwise belong to one of the departments already mentioned the latter is true also of the Secretary for Scotland. Again, the command and government of the forces of the realm belong to the King; the Departments of War and of the Admiralty are his instruments. He has a treasure, the sinews of war and government, and the officers for the collection and administration of that treasure are his officers-the Treasury, the Exchequer, the Customs, the Excise, the Commissioners of Woods and Forests are instruments of the King because they are the means of carrying out powers or exercising rights assigned to the King in the government of the country. The Post Office grew out of the private arrangements of the King for the convenience of himself and his Court (Anson, 2. 173), and before the end of the seventeenth century became not merely a function but a monopoly of the Crown, forming a branch of

revenue and police (Whitfield v. Lord De Spencer, Cowper 765). The King is also 'the fountain of justice and general conservator of the peace of the kingdom' (Bl. 1 Com. 266); and 'the administration of justice, the maintenance of order, and the repression of crime,' primary and inalienable functions of government, are attributable to the Crown, though in a particular case the duty of administration has been cast upon local authorities (Coomber v. Justices of Berks, (1883) 9 App. Cas. 61). We are reminded of Hobbes's Ministers of the State-Treasury, Militia, Instruction, Judicature, Execution ('to procure the execution of judgments, to publish the sovereign's commands, to suppress tumults, to apprehend and imprison malefactors, and do other acts tending to the preservation of the peace'). 'For every act they do by such authority is the act of the Commonwealth, and their service answerable to that of the hands in a body natural' (Leviathan c. 23).

Of course, the functions now committed to the several departments far exceed any which belonged to the prerogative; many of them are of purely statutory origin. Yet their connexion with the Crown is sufficiently close for the shield of the Crown to cover them. The departments to which they are committed are emanations from the Crown stricto sensu.

But when we pass from the great departments of State which proceed from the King, the case becomes more difficult. With the extension of the sphere of government in modern times, new functions have been created by statute and are increasing in number and variety: these functions have been in many cases committed to appropriate administrative or executive organs established by law for their performance; in other cases they have been cast upon existing authorities. Nice questions arise as to the status of these bodies. For a time it was considered that these organs, existing for public purposes solely and not for profit, were mere administrative conveniences with a legal personality strictly confined to the lawful purposes of their incorporation, and that particularly they were no more responsible for the wrong of the persons they appointed, than is the public officer liable qua employer for his subordinates on the principle of Lane v. Cotton, I Salkeld 17, and Whitfield v. Lord De Spencer, 2 Cowper 765, that they were in fact incorporated public officers whose official liability

1 Cf. Bracton, De Legibus, fo. 14: Things which constitute the Crown itself, and regard the common interests such as peace and justice, which has many species.' 'But those things which are of jurisdiction and of peace, and those things which are annexed to justice and to peace pertain to nobody unless to the Crown and the royal dignity, nor can they be separated from the Crown since they constitute the Crown itself. For it belongs to the King's Crown to do justice and judgment and to maintain peace and the like, without which the Crown cannot stand' (fo. 55 b). [Sir T. Twiss's translation has been corrected so far as necessary.—ED.] VOL. XXIII.

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was anomalous and by no means to be inferred. But at length the decisions of the House of Lords in the Mersey Docks cases (Mersey Docks Trustees v. Cameron, 11 H. L. C. 443; Same v. Gibbs (1866) L. R. 1 H. L. 93) held that the mere public purposes of a body did not prevent it from bearing the ordinary characteristics of a juristic person that its legal position was that of a subject and not a part of the sovereignty. It must pay rates (11 H. L. C. 442), it must answer for the wrongs of its servants (L.R. 1 H. L. 23). The only principle of immunity to be recognized was that of the Crown and its servants, and of those public purposes which are required and created by the government of the country, and are therefore to be deemed part of the use and service of the Crown' (11 H. L. C. at p. 505, per Lord Westbury). From these cases it is clear that if we have to stop short of 'public purposes,' we must extend the shield of the Crown beyond the case of servants or agents in any sense in which these terms would ordinarily be used in private law. (See also Leith Harbour Courts v. Poor Inspectors, L. R. 1 H. L. (Sc.) 17.) And here we are brought face to face with the ambiguity of the Crown.'

What do we mean by the King' and 'the Crown'? From the powers and attributes ascribed to the King by the Constitution there flow, as we have seen, many functions and organs of government. But still in this aspect he is a part only of the government, and his powers, though extensive, are far from exhausting the whole field of government. On the other hand, the King is, in the words of Burke, more than an executive officer; he is the head of the State in all its various manifestations, and in him alone does it attain an ideal personification albeit an imperfect one. It is not necessary to do more than allude to the struggles whereby our law of treason reached the conclusion that attempts upon the security of the State as constituted by law were constructively attacks upon the life of the King, to illustrate the forcing of this doctrine to meet the practical necessities of state existence. Probably the doctrine has nowhere received clearer expression than in the arguments for the Crown in the prosecution of Hardy for treason in 1798: 'The power of the King in name is the State itself. All the powers of the State, legislative and executive, are nominally in him. . . . The consequence is that he is to all intents and purposes the State; and in his name every act is done' (SolicitorGeneral's speech, 24 Howell's State Trials, 1183).

In brief, the Crown' may mean either 'the State' or an organ of government. In the case of Gilbert v. Corporation of Trinity House (1886) 17 Q. B. D. 795, the Court evidently considers that state representation is limited to those organs of government which are

emanations from 'the Crown,' in the narrower sense- All the great officers of State are, if I may say so, emanations from the Crown. They are delegations by the Crown of its own authority to particular individuals' (per Day J. at p. 801). The Court of Appeal in Ireland takes a larger view in Dunbar v. Guardians of Ardee Union [1897] 2 Ir. Rep. 76 (C. A.), where Fitzgibbon L. J. expressly disagrees with the limited doctrine of exemption enunciated by the English Court, and declares that the principle and the reasons for it apply more or less to every public department (p. 88). This is probably more in accord with the opinions of the Lords in the Mersey Docks cases. There, the imputation of immunity to the Crown' is accompanied with references to the service of the public,' 'the primary and inalienable functions of a constitutional government'; and such expressions as 'must be deemed part of the use and service of the Crown' (Lord Westbury, II H. L. C. at p. 504), and extending in some instances the shield of the Crown to what might more fitly be described as the general government of the country' (Lord Cranworth at p. 508), suggest that the true ground of immunity is that the organ or function forms part of the general executive government of the country and is imputed to the Crown as personifying the State 1.

The question then presents itself in this form-Is the officer or department an emanation from the Crown stricto sensu? If not, is he or it an organ of the general executive government? First, it must be pointed out that it is not because an organ of government has received separate incorporation that it is thereby cut adrift from the government, and submitted to all the incidents of corporate life. The Secretary of State for India in Council, the Secretary for War, the Postmaster-General, the Commissioners of Woods and Forests, the Commissioners of Public Works and Buildings, and some other departments have been incorporated, but do not, on that account merely, cease to be a part of the government. What is intended. by the incorporation must be gathered from the circumstances of each particular case. The individual servant of the Crown is not liable upon contracts made by him for the public service, whether he is or is not duly authorized (Macbeath v. Haldimand, 1 T. R. 176, Dunn v. Macdonald [1897] 1 Q. B. 401, 555); if he is liable for tort it is in an action brought against him in a personal and not an official capacity (Raleigh v. Goschen [1898] 1 Ch. 73). But the incorporated agent has no existence other than its official life; it is

1 One recalls Mr. Justice Holmes's comment on another matter: 'Whenever it is said that a certain thing is essential to liability but that it is conclusively presumed from something else, there is always ground for suspicion that the essential element is to be found in that something else, and not in what is said to be presumed from it' (The Common Law, p. 134).