11005.
PUBLIC RECORD
OFFICE
「T 「 ག ;། །
C.O.
Reference :-
8857
PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
See Man- ning's Ex-
chequer
Practice,
2
The Attorney General is further of opinion that each petition of right should be referred to the department of the Government against which it is directed, and in the event of that department disputing the substantial truth of its allegations, should not be allowed. We have to observe that, if the Department do not dispute the truth of the suppliant's allegations, it is to be presumed that they will in most cases accede to his claim, without compelling him to resort to the courts of law. We find it difficult to discover to what cases the proceeding by Petition of Right would apply in the view of the Attorney General, unless it be where the claimant and the department agree the facts, and agree also in desiring some questions of law arising out of those facts to be submitted to the courts; a state of things not likely often to arise if public departments should be able to decide every cause in their own favour and to which, if it did arise, trial by jury would be inapplicable.
upon
Several Petitions of Right have been tried since the passing of the late Act, all of them, we believe, arising out of contracts with public departments; in most of these cases the Crown has succeeded, in one or more the suppliant; but it has never been questioned that in all of them the Petition of Right was properly allowed. If the doctrine of the Colonial Attorney General had prevailed, not one of these would have been allowed and the Act would have been inoperative.
We are not of opinion that Petitions of Right should be allowed as a mere matter of course. Where a petition is manifestly frivolous and vexatious, as that of Mr. O'Malley Irwin, and does not allege or raise any question of contract or property, such as might occur between private persons, and would be cognizable in a court of law or equity, the Queen would be properly advised not to endorse it; so where it manifestly appears on the face of the petition that the remedy sought is inapplicable, although in this latter case, if there be room for any reasonable doubt or argument, the question would be more properly and satisfactorily settled on demurrer.
The remedy has been said to be applicable whenever the property of a subject is invaded or withheld. The more frequent subjects, however, of Petitions of Right are claims arising out of contracts with Government departments, of which we think that of the Newcastle Coal Company a fair sample. We are of opinion that a judge and p. 84, aud the jury may try the questions whether or not a Minister of Works agreed with a coal company to build a jetty and allow them to place cranes upon it, and whether he had authority so to agree on the part of the Crown, without unduly interfering with "Acta of State."
cases there
referred to.
We do not think that the advisers of the Crown are called upon to prejudge, as the Colonial Attorney General appears to have done, the truth or falsehood of the allega- tions of fact in the petition, or the question of legal liability arising thereon. To do this is to substitute an irregular for a regular trial, and the Law Officer of the Crown for a judge and jury.
With reference to the remarks of the Attorney General as to the costs of Petitions of Right falling on the Treasury, we have to observe that this was a question for the Legislature when it thought fit to pass the Act; on the other hand, the heavy costs falling upon an unsuccessful claimant have a strong tendency to reduce the number of `` petitions.
We have further to observe that the case of Irwin v. Sir G. Grey, which merely confirmed the well-known doctrine that a Minister of State is only answerable to Parliament for advice given by him to the Sovereign, that of Burm v. Denman, which decided that an officer of the Crown is not personally liable for an Act of State, and most of the other cases cited by the Attorney General appear to us to have no material bearing upon the question, whether the fist should be granted or not.
We have to add that in the event supposed of the Colonial Governor, with the advice of his responsible ministers refusing to allow a Petition of Right, we think that the Queen, on such petition being presented to her in this country, would be constitutionally competent to endorse it "Let right be done in the Supreme Court of New South
Wales.
His Grace the Duke of Newcastle, K.G.,
&c.
&c.
&c.
We have, &c.
ROUNDELL PALMER. R. P. COLLIER.
(Signed)
MY LORD DUKE,
No. 220.
(NATAL.)
LAW OFFICERS to COLONIAL OFFICE.
Lincoln's Inn, November 13, 1863. We are honoured with your Grace's commands, signified in Mr. Elliot's letter of the 9th November instant, stating that he was directed by your Grace to request our joint opinion as to the proper mode of annexing to the Colony of Natal a territory recently obtained from a native Chief.
Mr. Elliot was also pleased to state that by Letters Patent, dated 31st May 1844, Her Majesty annexed to the Cape of Good Hope "the territories occupied by Her "subjects throughout the district of Natal in South Africa."
That by further Letters Patent, dated April 30th, 1845, Her Majesty declared that Natal should be a separate Government.
That by a proclamation, dated August 21st, 1845, the Governor of the Cape, reciting the Letters Patent of the 31st May 1844, and that he had been authorised and in- structed by Her Majesty to signify by proclamation the limite of the same district, defined with precision the boundaries of Natal, the south-west boundary being the Unizimculu river.
That by various subsequent Letters Patent the Government of Natal was constituted and its constitution changed; and in particular by Letters Patent of 15th July 1856 a partly representative Council was established, and the qualifications of electors and elective members, the electoral districts, and other matters relative to such Council were defined. That the Council might make laws for the peace, order, and good government of the Colony, and might, by reserved acts, alter the provisions of the
charter.
That power to alter or revoke the provisions of the oharter was expressly reserved to the Crown.
That by a treaty with a native Chief named Faku certain districts imperfectly described as lying between the Unizimoulu (the south-west district of Natal) and the Umtamfuna river have been ceded to Her Majesty, and it is desired to annex part of these territories to the Colony of Natal, and bring them within the Executive authority of the Governor and the legislative powers of the Council.
Mr. Elliot was also pleased to annex a draft of Letters Patent framed for the purpose of effecting this annexation, and to state that they would, it was to be observed, not take effect before a day to be fixed by the officer administering the Government, and your Grace proposed to instruct the Governor not to fix any day for this purpose until the Legislature shall have passed an Ordinance, of which a draft was annexed, declaring that the laws of Natal shall take effect in the newly annexed territory.
Mr. Elliot was further pleased to state that your Grace desired to obtain our opinion-
1. Whether this Ordinance is necessary in order to extend the laws of Natal to the annexed territory, or whether, in the absence of such an Ordinance, such exten- sion will take effect, and as a consequence of annexation by Letters Patent not- withstanding the establishment in Natal of a partially representative Legislature?
2. Whether the proposed Letters Patent and Ordinance taken together will
sufficiently effect auch extension and annexation? and
3. If this should not be the case, how the annexation and extension can legally be
effected?
In obedience to your Grace's commands we have taken this matter into our con- sideration, and have the honour to
Report
That under the circumstances of the Colony of Natal we do not think it can safely be assumed that the laws of that Colony would be extended to the annexed territory by the mere fact of its annexation, and we are therefore of opinion that the proposed Ordinance is necessary for that purpose.
o 15978.-17. 25.-9/86.
2
2. That we think the proposed Letters Patent and Ordinance taken together will sufficiently effect the annexation and extension of the laws of Natal desired to be accomplished thereby.
We have, &c.
His Grace the Duke of Newcastle, K.G.,
&c.
&c.
&c.
(Signed)
ROUNDELL PALMER. R. P. COLLIER.