PUBLIC RECORD OFFICE
Reference :-
C.O.885
16 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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claims against the Imperial Government, see Robertson, Civil Proceedings against the Crown, pages 360-361.
Generally on this subject it may perhaps be observed that the annexation of a country gives the King those rights over its inhabitants which appertain to the Crown of Great Britain, with corresponding limitations, e.g., the power of the Imperial Parliament to legislate follows the annexation as an attribute to the Crown; in fact the relation of British Sovercign to British subject is established and remains except so far as varied by the establishment of local law; many of the attributes of sovereignty belonging to English law remain in existence after the establishment of the local law, e.g., the power of binding the subjects by making war and peace; the power of pardon; the military prerogative (see e.g.Exp. Marais, 1902, App. Case 109); the inability to be sued (Palmer s. Hutchinson, 6, App. Case 619); also of course many limitations on the prerogative imposed in this country would be applicable in the annexed Colony; it is submitted that the relation of Sovereign to subject would be governed by English law where the local law pre- existing or afterwards established in the conquered Colony is silent on the subject (as here); if this be so, the right of petitioning, and, therefore, of petitioning of right, would also be applicable.
Sec, e.g., Campbell v. Hall, Camp, 204, Jenkyns, British Rule and Juris- diction beyond the Sea, pages 6 to 7. Re Bishop of Natal, 3 Moo, P.C., N.S., 115.
The inability of the King to override a Responsible Government once established (Campbell v. Hall) or to create an unconstitutional Court (Re Bishop of Natal) seems in each case to arise as an attribute of British sovereignty.
As to the second question, dealt with in paragraph (1) (c) of the Treasury Solicitor's minute of 25th August, 1908, counsel are particularly referred to the dicta in the cases there mentioned and to the case of Conrad of Colon (1276) cited at length in 16, C.B., N.S. page 341-in support of the view that Petition of Right lies for the value of a chattel scized by the King and converted to his use, actual restitution being impossible. The principle that Petition of Right lay for restitu- tion of chattels is well established. This remedy seems to be in fact an application of the Common Law action of detinue, which, though now classed as an action of tort, seems to have been in fact of earlier origin and to have been based on the principle of restitution of property, rather than of damages for a wrong; see Pollock and Maitland's History of English Law, Vol. II, pages 521-3; Pollock on Torts, 8th Edition, pages 13-15 and page 566. It is perhaps not immaterial to note that the action of detinue always (till the C.L.P. Act of 1854) took the form of a claim for restitution or compensation-the defendant having a choice, and the power of making a specific order for restitution being first introduced by that Act (see as to this, Pollock and Maitland's History of English Law, Vol. II., pages 172-4, and Addison on Torts, 8th Edition, page 595); also that damages in such an action are limited to compensation for the value of the chattel (Addison, page 602) it is apparently no defence to action for detinue that the defendant has parted with the goods by a wrongful sale (as in this case)-see Jones ». Dowle, 9, M. and W. 19. which seems to dispose of the doubt suggested in Addison on Torts, 8th Edition, page 594, whether this rule is applicable to the case of a finding as opposed to a bailment; the old cases cited in support of this distinction in Reeve . Palmer, 5. C.B., N.S., page 89, do not seem to be consistent with Jones . Dowle, nor with Gladstone v. Hewitt, 1, Cr. and J,565, and other cases establishing that averments as to the nature of the original taking are immaterial; see Bullen and Leake's. Pleading, 6th Edition, p. 312. against a subject; (2) that there is some ground for saying that Petition of Right It seems, therefore (1) that detinue would lie here will lie where detinue will lie.
As regards the third question. raised in the Treasury Solicitor's minute of August 25th, namely, whetlier the military prerogative of the Crown will furnish a good defence, the references there given will, it is thought, furnish sufficient material for counsel's consideration; see also Harrison Moore on Acts of State, Ch. VI.
The Law Officers and Mr. Rowlatt are requested to advise the Secretary of State for War:-
(1) Whether any and what legal remedy is open to the petitioners?
(2) If yea, whether on the facts disclosed the petitioners would be likely to
succeed in any legal proceedings they might take?
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Opinion.
We are of opinion that it is open to the petitioners to present a Petition of Right under the Petitions of Right Act, 1860, entitled in the High Court of Justice in this country, praying payment of the value of the cattle.
We agree with the opinion of the late Law Officers, dated 24th June, 1904, to the effect that a Petition of Right does not lie at Common Law in Colonies where the English Common Law does not prevail. We further think that a Petition of Right under the Petitions of Right Act, 1860-(which involves, by virtue of Section 14, that the judgment and costs shall be satisfied by the Treasury) can only be entitled in the High Court of Justice in England (see Section 1). Inasmuch, however, as the subject-matter of the proposed petition in this case would have been cognisable in the High Court of Justice, if it had been a matter in dispute between subject and subject, such petition can be brought in that Court by virtue of Section Ï of the Petitions of Right Act, 1860.
We think a Petition of Right lies to recover the value of chattels which have been actually applied to the use of the Crown or the value of which has been paid into the coffers of the Crown notwithstanding that the original taking may have been tortious on the part of an officer or servant of the Crown. There are dicta in favour of this view in Tobin v. Reg., 16, C.B., N.S., 310, Feather v. Reg., 6, B. and S., 257 (see also West Rand Central Gold Mining Company v. Rex, 1905, 2, K.B., 391), where no objection was taken although the relief claimed was payment of the value of personal property seized.
We do not see that such a petition involves making the Crown responsible for the wrongful acts of its servants. It only seeks to charge the Crown with the value of property in fact enjoyed by the Crown itself. We do not think that there is any personal disqualification attaching to a resident in a Colony where the Common Law does not prevail which prevents him bringing a Petition of Right in the High Court of Justice in England in a proper case. We think, however, that in the present case the Petition of Right would fail on the ground that the property was taken while the petitioners were in arms against the Crown as rebels. Although modern usage respects the private property of enemies, we do not think an action or Petition of Right would lie on the re-establishment of peace to recover the value of such property if in fact taken by the forces of the Crown and, in our judgment, a rebel is certainly in no better, and is probably in a worse, position than an enemy. A subsequent conviction-followed by serving the sentence cannot call into exist- ence a right of action if none existed before.
Law Officers' Department,
29th October, 1908
W. S. ROBSON.
S. T. EVANS.
S. A. T. ROWLATT,