PUBLIC RECORD OFFICE
6
Reference :-
C.O.885
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
16 PUBLIC RECORD OFFICE, LONDON
acting as a fully responsible government, to continue the policy of land settlement, which, as a matter of fact, involves the maintenance of administrative machinery at the cost of the Colonial revenue, if they should happen to disapprove of it. The purpose of the Imperial Act is to secure that certain conditions shall be observed for the protection of the Imperial Treasury as the guarantor of the loan, and there is nothing either in it or in the Transvaal Ordinance to prevent the Trans- vaal Government, if duly authorised by the Transvaal Legislature, from exercising the ordinary right of a borrower to rid himself of his liability by repayment. This right could not, of course, be exercised before 1st May, 1923, without the consent of the holders of the stock, but there is no reason why the Colonial Government should not begin to extinguish the debt by purchasing its own stock in the open market, or should not make arrangements for increasing the sinking fund provided for by the existing law.
4. I am advised that the view taken in your confidential despatch, Orange River Colony, of 11th June, that no distinction can be drawn between loan moneys advanced to settlers on lands inherited from the Government of the Orange Free State, and loan moneys advanced to settlers on lands purchased with loan money, is correct.
I have, &c.,
J. L. W.
W. S. R.
28610
No. 41.
(GIBRALTAR.)
LAW OFFICERS to COLONIAL OFFICE. [Power of Governor to fiat Petitions of Right.]
Royal Courts of Justice, MY LORD,
August 3, 1906. WE were honoured by Your Lordship's commands, signified to us by Mr. Bertram Cox in his letter of the 21st May last, stating that he was directed by Your Lordship to lay before us the correspondence noted in the margin of his letter, and to request the favour of our report with reference to the procedure to be adopted as to the fiating of petitions of right presented by persons in Gibraltar.
That by virtue of the Order in Council of 2nd February, 1884, the law of England as it existed on the 31st December, 1883, was brought into force and was now in operation in Gibraltar “ so far as it may be applicable to the circum- stances thereof."
That under this Order in Council it was conceived that as a matter of substantive law the ancient Common law remedy of petition of right was available to persons in Gibraltar and, as a matter of adjective law, the Petitions of Right Act, 1860 (23 & 24 Vict., c. 34), which was purely a law of procedure, provided so far as it may be applicable to the circumstances thereof " the manner in which this remedy was to be pursued in Gibraltar.
That many Colonies had by local enactment expressly adapted the Act of 1860 to their circumstances, provision being always made in such enactments for the fiating of petitions of right in the Colony by the Governor, and that he was to submit that the Order in Council of 2nd February, 1884, had by implication a precisely similar effect with regard to the operation of the Act of 1860 in Gibraltar : in other words, that the Act must be applied mutatis mutandis and that, just as in Section 1 the Gibraltar Court must be substituted for the English Courts, so in Section 2 the Colonial Secretary of Gibraltar must be substituted for the Secretary of State for the Home Department and the Governor for His Majesty.
That in this connection he was to direct our attention to the Report of 29th March, 1897,* of our predecessors in office, in which they laid down that when the Governor of a Colony (Western Australia) which had adapted the Act of 1860 to its circumstances by local enactment, has refused his fiat to a petition of right a further petition lies directly to the Crown and can be fiated by His Majesty.
That he was to submit that this ruling applies equally to a Colony which has impliedly adapted the Act of 1860 to its circumstances, and that should the Governor of Gibraltar refuse his fiat to a petition of right a further petition lay directly to His Majesty.
That the observation of Mr. Coll, the local Attorney-General, that "the Governor does not possess any power to grant or to refuse the fiat, and that such action would he inconsistent with the prerogative of the Crown which once it is exercised is final"
was not only in conflict with the report of our predecessors in office referred to, but appeared to be based upon a misapprehension as to the combined effect of the Order in Council of 2nd February, 1884, and the Petitions of Right Act, 1860, in Gibraltar-an observation which would seem also to apply to the precedent of 1988 cited by Mr. Coll. That a copy of the Law Officers' report of 27th July, 1888,† was forwarded, and that it seemed clear that their attention was not directed to the Order in Council of 2nd February, 1884, as applying the l'etitions of Right Act, 1860, to Gibraltar.
That he was to request us to take his letter and the accompanying papers into our consideration, and to report :
(1) Whether upon the true construction of the Petitions of Right Act, 1860, as applied to Gibraltar by the Order in Council of 2nd February, 1884, the Governor has power to fiat petitions of right in Gibraltar?
No. 134 in Vol. V.
95 WC 1649 916 D&S 3 20095
† No. 124A in Vol. IV.