empowering the Sheriff of Lincoln to seize two ships belonging to the corporation. The Board of Trade gave notice to the Sheriff that the two ships in question were the property of His Majesty and requested him to withdraw. The position of the Sheriff, a disinterested third person, now is that two persons are claiming the property of which he is seized under a judicial order. In such circumstances, his usual procedure would be to bring what is called an interpleader summons to determine who is the true owner in law. But this cannot be done, because the court is rightly of opinion that 'the Crown cannot be made a party to an interpleader issue.' The result is that a judicial decision empowering X to have his debt satisfied is rendered nugatory by the mere veto of the Board of Trade. Moreover, the Board of Trade is acting with cynical disingenuousness. There is no sufficient evidence that the ships really belong to the Crown at all. Under a practice which grew up during the war, the Crown has merely been registered as owner, and the evidence would seem to indicate that in fact the Crown is only a hirer from the Russian Volunteer Fleet. Nevertheless, it has sufficient title to deprive the creditor of his manifest rights and impede the due course of law.*

It

But none of these cases equals in brutal cynicism the recent litigation by the Duff Development Company against the Government of Kelantan, in Malaya. may well be doubted whether in any other case a Crown department has, at every turn, so frankly avowed its intention to obstruct justice by any dishonourable means in its power. The facts lie within a small compass. At a time when Kelantan was a dependency of Siam, Mr Duff obtained certain concessions of land from its government. In 1909, by the Anglo-Siamese treaty, Kelantan passed under British suzerainty. It continued to be nominally ruled by its own Sultan, but 'with the advice of the British Government. Everybody knows that in such cases the real government is carried on by the Colonial Office, and it was hardly disputed that this was the actual state of facts in Kelantan. In 1912 the Duff Development Company surrendered its existing

* The Mogileff.

concessions and entered into a new agreement with the Crown agents for the Colonies, acting on behalf of the Government of Kelantan. The material part of this agreement, so far as the litigation is concerned, was that the Government undertook to construct a railway through part of the plaintiff's concession. This was not done, and the Company claimed as for a breach of contract. There was an arbitration clause in the agreement, and the parties proceeded to nominate arbitrators. The Government nominated several ex-colonial officials, to whom the Company not unnaturally objected; the Company nominated several distinguished lawyers, including two ex-Lord Chancellors, to whom the Government objected for reasons best known to itself. In this dispute the Secretary of State intervened, as provided by the contract, and nominated an ex-Chief Justice of Nigeria as arbitrator. The award was given in favour of the Company. The Government refused to abide by it, and moved Mr Justice Russell in the Chancery Division to set it aside. He emphatically declined; so, on appeal, did the Court of Appeal and the House of Lords.

It need hardly be said that by this time costs amounting to some thousands of pounds had been incurred, and these were, as usual, awarded in the successive Courts against the losers. After the decision in the Court of Appeal, the Colonial Office informed the Company in writing that it did not intend to submit to execution of the judgment. The Company, one may suppose, hardly took this intimation seriously; but it turned out to be very serious indeed. The Government refused to pay costs. The Company accordingly instituted garnishee proceedings to attach certain funds in the disposition of the defendants. It sounds incredible, but it is the fact that the Government produced a certificate from the Secretary of State to the effect that Kelantan was an independent sovereign state, and therefore not amenable to the jurisdiction of English Courts. In view of this declaration the Courts were, by an unmistakable rule of law, bound to dismiss the action. It is perfectly clear that the Government had abused the process of the Court by allowing long and expensive litigation to proceed from stage to stage, without the slightest intention of abiding by the judgment. It is equally

clear that all the Courts concerned regarded the Government defence as entirely without merits, and were undisguisedly chagrined at seeing justice burked by the ipse dixit of the Colonial Office. The Lord Chancellor gave the broadest of hints, amounting to a direct appeal, to the Government not to persist in a policy which every judge concerned considered scandalous. No notice was taken of his observations, and in further litigation as to the costs of the garnishee proceedings, the Crown gave another exhibition of its three-card tricks.

A writer in 'Truth,' who calls attention to this case, very properly observes: Throughout this case things have been done in the name of that Government [Kelantan] which are a disgrace to its masters in the Colonial Office.' The same journal, in its issue of July 4, 1923, reports another case in Malaya, concerning the State of Negri Sembilan. The plaintiff had been injured in a motor accident caused by the defective condition of a bridge, for the upkeep of which he claimed that the State of Negri Sembilan was liable. It was urged against him that he ought to have sued the Government of the Federated Malay States. The plaintiff is indeed between the devil and the deep blue sea, for on the one hand the judge doubts whether there is any such person in law as the Government of the Federated Malay States, and on the other Negri Sembilan claims to be a sovereign independent state, and therefore unsuable!

One final illustration, taken from a recent decision of the Court of Appeal, will show the difficulties of procedure which are opposed to a claimant against the Crown. In 1919, the Marshal Shipping Company obtained 3 -as it was legally bound to obtain-the permission of the Shipping Controller to sell one of its ships; but the Shipping Controller stipulated, for reasons which do not appear, that the Company should pay a toll of 20,000l. to the Exchequer on the sale. The Company did so, presumably under protest. This extraordinary habit of extorting money for the granting of a statutory licence had been growing up in different departments, and in 1922 the Courts declared it to be illegal. On this decision, the Company was clearly entitled to get back, as 'money had and received,' the 20,000l. it had paid to the Shipping Controller in 1919. But, in the meantime, the Shipping Vol. 240.-No. 477.

Controller had ceased to exist, all his liabilities passing, by an Act of 1921, to the Board of Trade. The Board of Trade refused to give back the money, and the plaintiffs proposed to sue for it. But the question was, whom and how were they to sue? Let us follow the course of the litigation. A writ is issued and served upon the solicitor to the Board of Trade. He refuses to accept service. The writ is then served on Sir Sydney Chapman, Permanent Secretary of the Board of Trade. He enters a conditional appearance on behalf of the Board, and then takes out a summons before a Master of the Supreme Court to set aside the writ on the ground that the Board of Trade as such, and as a Government department, cannot be sued.' The Master sets aside the writ. Appeal to a High Court Judge, who restores the writ and service. Appeal to the Court of Appeal, which holds that the service is bad, and that the only way in which the plaintiff can cure the technical defect is, in the words of Lord Justice Scrutton, 'by going to the several distinguished persons who constitute the committee and astonishing them by serving them with a writ which will probably bring it to their attention for the first time that they are members of a committee called the "Board of Trade." So the plaintiff must begin all over again; and the pitfalls that lie behind him are as nothing to those which lie before. Three highly controversial questions of law still remain to be solved: (1) Can the Board of Trade be sued at all, as such? Has it any legal personality, or is it merely an unincorporated Committee? (2) Should the action be laid in tort or in contract? If in tort (i.e. the wrong of 'extorting money colore officii'), should it lie against the Shipping Controller (who no longer exists) or against an individual, one Sir Joseph Maclay (who is no longer Shipping Controller)? (3) If in contract, should it lie against the Board of Trade as such, or against the Crown? On any one of these technical points, the claimant may well lose his whole case, notwithstanding that he has a clear right of law and justice to have his money back. No wonder Lord Justice Scrutton observed:

'I personally feel that the whole subject of proceedings against Government departments is in a very unsatisfactory

state. I feel that it is of great public importance that there should be prompt and efficient means of calling in question the legality of the action of Government departments which, owing to the great national emergencies arising out of the war, have been inclined to take action that they considered necessary in the interests of the State without any nice consideration of the question whether it was legal or not, and I hope that the committee which is now considering the question of proceedings against the Crown will be able to give the subject more effective remedies against Government departments than he has at present.'

These sentiments of a learned and fearless judgeit is not the first time that Lord Justice Scrutton has so expressed himself—are those of the public. There is at the present time profound and widespread dissatisfaction with the relations between State and subject. This is not merely part of the damnosa hereditas of the war; the bureaucratic tendency was developing long before 1914, but five years of emergency government have brought it to a pitch which is fast becoming intolerable. It is idle to boast of the glories of our constitution when the fountain of justice is polluted by the owner of the soil. The examples I have cited above are but a drop in the ocean of the cases which never come to judgment. Men are well aware by this time that if they have the hardihood or misfortune to engage in litigation with the Crown, they must be prepared for all the chicanery in which the Law Officers make it their business to excel. Obstructive and temporising methods are often successful, like those of the shady solicitor: claimants are 'bluffed' out of court. Money and patience are exhausted by 'the law's delays, the proud man's contumely,' and men prefer to submit to injustice and cut their losses rather than face the interminable prospect of damages and costs and perpetual postponements.

From no point of view can this pay, not even financially. It is false economy to refuse payment of just claims; the Exchequer may be a few pounds in pocket at the expense of an individual, but all that is saved in this way is poured out again for the litigation in which the Crown recognises no limit, as it recognises no mercy. The Law Officers and their large staff do not work for nothing. Money and time are spent like water