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885

15 PUBLIC RECORD OFFICE, LONDON

Report

We think that the rules laid down in the Circular of the 17th May, 1898, and marked (a), (b), and (c),* would be the proper instructions to send to Fanning Island in answer to Sir Spencer Walpole's letter.

We should add, however, that the mere announcement of the arrival of the fleet at Fanning Island may be of the greatest value for the purposes of the campaign. Such an arrival would, from any ordinary port, be made known by the ordinary channels of information. If the circumstances at Fanning Island are such that it might not be made known except by message from the fleet, we think that to permit any, even the most innocent, messages might be giving valuable assistance to one belligerent.

We are not in possession of the facts sufficiently to enable us to advise on this possible aspect of the case.

Royal Courts of Justice,

August 15, 1904.

• Annex.

R. B. FINLAY. EDWARD CARSON.

(a) A belligerent man-of-war should be prevented from using the telegraph for the purpose of sending, whether in cypher or otherwise, messages, of which the object is to direct or influence warlike operations.

(b) A belligerent man-of-war may, however, use the telegraph for messages which do not relate to the proceedings of the belligerents, or for messages which are not in cypher narrating past operations and bona fide intended for general publication as news.

(c) The officers in command of belligerent men-of-war should be informed that it is a condition of their being permitted to use a Colonial port that they shall abstain from transmitting or procuring the transmission of any telegrams which concern the conduct of warlike operations.

29020

No. 232.

(CANADA.)

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 prevail. Petition of J. O. Fournier.]

Royal Courts of Justice,

SIR,

August 18, 1904. WE were honoured with your commands signified to us by Mr. Bertram Cox in his letter of the 18th July last stating that with reference to the letter from your Department' of the 28th of April and our report of the 29th June* on the subject of the presentation to His Majesty by a British subject in Quebec 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 bring to our notice certain additional facts and authorities in view of which you requested us to be good enough to reconsider the fifth paragraph of our Report above referred to.

That it was true that, although Clode (Petition of Right 1887 page 36) expressly stated that the French laws in Canada, which were retained by statute, contained no provision by which the Crown could be sued, the case cited by him was one in which the Judges were divided on the point; and that this circumstance supported the statement in the fifth paragraph of our Report that there seemed to have been some difference of opinion on the question whether the remedy by petition of right existed in Quebec independently

of Statute.

That it was, however, submitted that the decision of the Privy Council in the case of Donegani versus Donegani (3 Knapp at page 85) left no room for doubt that since the Act of 14 Geo. III. c. 83 (see section 8) the old French law had been the law which governed that part of the Dominion formerly called Lower Canada-That he was also to refer us in this connection to the case of Symes versus Cuvillier L.R. 5 App. Cas. 138.

.

That it would seem clear from these cases that the Common law of England was not and is not the Common law of Quebec, and consequently that the remedy of the English Common law by petition of right had no existence as a Common law remedy in that Province.

That with reference to our conclusion that the terms of the Quebec Act of 1883 (46) Vict. c. 27 section 17 (2) ) appeared to suggest that such a remedy did exist before the passing of that Act he was to submit for our consideration that this provision was capable of a different explanation.

That it was to be observed that a similar provision was to be found in the earliest Petition of Right Act passed by the Dominion Parliament, 38 Vict. c. 12 (section 21) and its immediate successor 39 Vict. c. 27 (section 19) but that if the Quebec Act was com- pared with these Dominion Acts it would be found to differ from them in essential particulars.

That the Dominion Acts were, it was submitted, no less than Bovill's Act of 1860, laws of pure procedure. That they did not create any remedy by way of petition of right but that they treated that remedy as an already existent and well understood remedy and merely regulated its exercise.

That consequently they would appear to apply only to those Provinces or parts of Canada in which the Common law of England prevailed and in which therefore the Common law remedy of petition of right was and is existent, and not to those provinces or parts, such as Quebec, which were acquired not by settlement but by cession or con- quest, and in which the Common law of England did not prevail.

That it would, moreover, appear to be for this reason that the Quebec Act of 1883 was found necessary, and that he was to call our attention to tae provisions of section 2

• No. 228.

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