Tobin v The Queen: 1864

The Commander of a Queen’s ship, employed in the suppression of the slave trade on the coast of Africa, seized a schooner belonging to the suppliant, which he suspected of being engaged in slave traffic. It being inconvenient to take the ship to port for condemnation in a Vice-Admiralty Court, the Commander caused the ship to be burned. The shipowners proceeded by Petition of Right. The supplicant-petitioners claimed to have sustained damages to the amount of andpound;10,000 and humbly prayed that Her Majesty would be pleased to do what was right and just in the premises and to cause her suppliants to be reimbursed and compensated for the losses, damages and injuries so sustained. The Attorney General, on demurrer, argued that if wrong had been done the remedy was against the Commander as the person who did it and, secondly, that the Crown was not responsible for acts such as those detailed in the petition. In the course of a long argument on behalf of the petitioner Sir Hugh Cairns drew attention to Blackstone’s Commentaries – 3 BL Comm 254: ‘That the King can do no wrong, is a necessary and fundamental principle of the English Constitution: meaning that, in the first place, whatever may be amiss in the conduct of public affairs is not chargeable personally on the King, nor is he, but his ministers, accountable for it to the people; and, second, that the prerogative of the Crown extends not to do any injury; for, being created for the benefit of the people, it cannot be exerted to their prejudice. Whenever, therefore, it happens that that, by misinformation or inadvertence, the Crown hath been induced to invade the private rights of any of its subjects, though no action will lie against the sovereign (for, who shall command the King?), yet the law hath furnished the subject with a decent and respectful mode of removing that invasion, by informing the King of the true state of the matter in dispute: and, as it presumes, that, to know of any injury and to redress it are inseparable in the Royal Breast, it then issues as of course, in the King’s own name, his orders to his judges to do justice to the party aggrieved.’
Held: Erle CJ said: ‘The maxim that the King can do no wrong is true in the sense that he is not liable to be sued civilly or criminally for a supposed wrong. That which the sovereign does personally, the law presumes will not be wrong: that which the sovereign does by command to his servants, cannot be a wrong in the sovereign, because, if the command is unlawful, it is in law no command, and the servant is responsible for the unlawful act, the same as if there had been no command.’ He referred to 3 BL Comm: ‘The King can do no wrong; which antient and fundamental maxim is not to be understood as if everything transacted by the government was of course just and lawful, but means only two things, – first, whatever is exceptionable in the conduct of public affairs is not to be imputed to the King, nor he is answerable for it personally to his people; for, this doctrine would destroy the constitutional independence of the Crown, – and, secondly, that the prerogative of the Crown extends not to do any injury.’
That maxim, said the Chief Justice, had been constantly recognised and he rejected that the King could be responsible in damages for a supposed wrong. He then turned to the use and abuse of petitions of right. The court held that such petitions did not enable an award of damages to be made against the King; if damages were sought, they were to be obtained, if at all, from the officer who did the wrong.


Erle CJ


(1864) 16 CB (NS) 310

Cited by:

CitedFeather v The Queen 1865
Mr Feather had invented way of protecting ships against shot and obtained an exclusive patent. The Crown then had a ship constructed in a way that infringed the patent. As patentee Mr Feather asked for recompense; by petition of right he asked for . .
CitedRoberts v Swangrove Estates Ltd and Another ChD 14-Mar-2007
The court heard preliminary applications in a case asserting acquisition of land by adverse possession, the land being parts of the foreshore of the Severn Estuary.
Held: A person may acquire title to part of the bed of a tidal river by . .
Lists of cited by and citing cases may be incomplete.


Updated: 05 May 2022; Ref: scu.267401