2.
(4.) We do not think any such intimation desirable.
(5.) We do not think that any objection can be made to the establishment of a Prize Court at Sebastopol taken by itself.
We have no further observations to add.
The Marquess of Lansdowne, K.G.
&c.,
&c.,
&c.
We have, etc.,
R. B. FINLAY. EDWARD CARSON.
23043
R
PUBLIC RECORD OFFICE
Reference :-
mwi mim C.O. 885
No. 228.
(CANADA. GENERAL.)
LAW OFFICERS to COLONIAL OFFICE.
[Remedy of the subject against the Crown in those parts of His Majesty's dominions in which the Common Law of England does not precuil.
Royal Courts of Justice,
SIR,
29th June, 1904.
We were honoured with your commands, signified to us by Mr. Bertram Cox in his letter of the 28th April last, stating that, with reference to our report of the 31st March* with respect to the presentation to His Majesty by Mr. J. O. Fournier of Montreal of a petition for a fiat to enable him to proceed by way of Petition of Right' in the Canadian Courts, he was directed by you to request the favour of our further report as to the remedy of the subject against the Crown in those parts of His Majesty's dominions in which the Common Law of England did not prevail.
That so far as could be ascertained, this question had not been directly sub- mitted to us or to any of our predecessors in office, but that it would be observed that in the report of our predecessors in office of the 29th of March, 1897,† no answer was given to the 4th question then submitted to them which ran as follows:-
Is there any doubt as to the constitutional right of Her Majesty to grant her fiat addressed to the Supreme Court of a Colony, where, as in Western Australia, the English Common Law prevails!"
That it was submitted that the right of the subject to present a petition to lis Majesty praying for a fiat to enable him to proceed by way of Petition of Right is not co-extensive with the general right of every British subject wherever resident to petition the Crown without restriction as to the subject matter of such petition, and that a petition of right was a special remedy derived from ancient Common Law of England, whereby only British subjects who enjoyed the privileges and were subject to the liabilities conferred and imposed by the Common Law (and not British subjects generally) were enabled to obtain satisfaction for certain limited invasions of their rights by the Crown or its representatives.
That in this connection he was to refer us to Chap. V of Clode's Petition of Right (1887) and also to the case of Hethihenage. Siman Appu v. The Queen's Advocate of Ceylon (L. R. 9 App. Cas. 571) which appeared to lay down that in a Colony where a substitute must be provided by the legisla- "the Petition of Right does not exist " ture to enable subjects to prosecute claims against the Crown (see case cited at 587). That the substituted remedy however was, it was submitted, not a "Petition of Right" stricto sensu, but a Črown suit limited according to the terms of the enact- -ment which created it. That the case cited would seem to leave it doubtful whether in the case of a Colony acquired by conquest the law of which, prior to the conquest, gave a right to sue the Government analogous to the right to proceed by way of Petition of Right a British subject in the Colony had now, by virtue of that analogy, a right to present a petition to His Majesty praying for a fiat to enable him to proceed by way of Petition of Right in the Colonial Courts.
That the Imperial Petitions of Right Act, 1860, was a law of procedure regulat- ing the exercise of the remedy of Petition of Right and many Colonial enactments had been passed based upon that Act, similarly regulating the exercise of the remedy, but in no way impairing or modifying the right of the subject to it, as we and our predecessors in office had from time to time advised in the case of Colonies in which the English Common Law prevailed. That Chapter XLII. of the Quebec Code of Civil Procedure would appear prima facie to have been an enactment of this kind, but that it was submitted that as the Common Law of England did not prevail in Quebec that Chapter was an enactment providing a remedy in substitution for the Common Law Petition of Right and that the use therein of the technical expression "Petition of Right" was misleading and legally incorrect.
That it was further submitted that if the English Petition of Right did not exist in a Colony and the Colonial legislature had provided a remedy in its place, a
• No. 219.
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† No. 134 in vol. V.
15 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- | COPYRIGHT PHOTOGRAPH-NOT TOPage 331
PUBLIC RECORD OFFICE
Reference :-
C.O. 885
15 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
2
British subject in that Colony was entitled only to the remedy provided by the Local statute and had no further claim against the Crown; consequently that he had no right to present a petition to His Majesty through a Secretary of State praying for a fiat to enable him to proceed by way of Petition of Right, and that if he did present a petition to His Majesty praying for a fiat to enable him to proceed by way of Petition of Right in the Colonial Courts, or if he made his case the subject matter of an ordinary petition to the Crown (which every British subject wherever resident might present), in either case such petition should be refused.
That he was to ask us to take his letter, and the authorities cited, together with previous reports of ourselves or our predecessors in office relating to Petitions of Right into our consideration and to report-
(1) Whether in Quebec and other parts of His Majesty's dominions where the Common Law of England does not prevail the English Common Law remedy of Petition of Right is available to British subjects
(a) If the law of the place prior to its being a British Colony gives its inhabi- tants a remedy against the Government analogous to the l'etition of Right?
(b) If that law gives no such analogous remedy?
(2) Assuming that the answer to the first question is in the negative and that the local legislature has not provided the subject a remedy against the Crown in the place of a Petition of Right, what remedy is open to the subject as against the Crown?
(3) Assuming that the answer to the first question is in the negative and that the local legislature has provided a remedy against the Crown in the place of a Petition of Right, whether a subject has any claim to any further remedy against the Crown?
(4) Whether in such a case if a British subject seeks a further remedy by purporting to exercise his general right of petitioning the Crown, such a petition should no be refused on the ground that it is substantially a petition to enable him to proceed by way of Petition of Right which he is not entitled to present to His Majesty, that remedy having no existence in the particular place and a substitute for it having been provided by the local legislature.
We are further in receipt of Mr. Lucas' letter of the 7th instant stating that with reference to the Solicitor-General's letter of the 18th May enquiring whether there have not been from time to time petitions presented and fiated, enabling the petitioner to proceed by way of Petition of Right in 'the Canadian Courts, he was directed by you to inform us that you were unable to furnish any precedent for the fiating of such a petition from a British subject in Quebec.
That with regard to the 5th paragraph of the letter of the 28th April it would appear to be necessary to refer to Cap. 136 of the revised Statutes of Canada as amended by the Act 50 and 51 Vict. c. 18 in addition to XLII. of the Quebec Code of Civil Procedure. That it would be observed that Section 21 of Cap. 136 had been repealed, but that this circumstance would appear not to affect the questions now before us, if as submitted in the letter of the 28th of April, the Common Law remedy of Petition of Right never had any existence in Quebec.
That copies of the Acts above referred to accompanied his letter and that he was to request us to take them into our consideration in reporting upon the questions already submitted to us.
We have taken the matter into our consideration, and, in obedience to your commands, have the honour to
Report-
That subject to the observations made at the end of this report we are of opinion that (1) in those parts of His Majesty's dominions in which the Common Law of England does not prevail the English Common Law remedy of Petition of Right cannot be available.
The rights of the subject in this respect must depend upon the law in force in that part of His Majesty's dominions.
If the law of the place prior to its being a British Colony gave a remedy against the Government analogous to the Petition of Right that remedy would continue to exist with such modifications as the transfer of the Colony to the British Crown made necessary, but the acquisition of the Colony by the Crown would not under such circumstances ipso facto introduce the Common Law remedy of Petition of Right.
3
In like manner if the law of the Colony gave no such analogous remedy the acquisition by the British Crown would not introduce the English Common Law remedy of Petition of Right.
In the nature of things the question in every case must be one of the law of the Colony as existing either under or apart from Statute.
(2) In the case supposed the subject has no remedy against the Crown but the right to lodge a Petition of Grace of course exists.
(3) In the case supposed the subject has no claim to any further remedy against the Crown.
"
(4) Upon the hypothesis stated in the question, although a Petition of Grace may be presented, a Petition of Right should not be endorsed "Let right be done inasmuch as under the circumstances supposed there would be no jurisdiction in the Courts to try the petition which this endorsement purported to refer.
(5) We have answered the above questions upon the hypothesis presented but we must guard ourselves against the supposition that these answers have any neces¬ sary relevance to the particular case from Quebec which is in question.
There seems to have been some difference of opinion on the question whether the remedy by Petition of Right existed in Quebec independently of Statute (see Clode on Petition of Right, cd. 1887, pp. 36-39). The terms of the Quebec Statute of 1883 (46 Vict. c. 27 s. 17 (2)) appear to suggest that such a remedy did exist and if the remedy existed before the passing of the act the right of the Crown to fiat such a petition would still exist independently of the Statute.
We are not in a position on the materials before us to advise upon the Law of Quebec upon this point, indeed the question is one for the Law Officers there, but unless the law is quite clear.we think that in a case otherwise suitable the matter might properly be put in train for judicial determination by a Court of law.
We have, &c.. ·
The Right Honourable Alfred Lytto
ton, M.P.,
&c.,
&c.,
&c.
R. B. FINLAY. EDWARD CARSON.