CHAPTER V.

WHO MAY SUE BY PETITION OF RIGHT.

Common

It would seem that all subjects of the Crown entitled to Subjects governed and governed by the Common Law of England may present by the a petition of right, but whether an alien can, except in one Law. case which we shall next mention, seems doubtful. A subject's right of approaching the Crown for this purpose is now well established by usage, whatever its origin may have been, but there seems no authority extending this privilege to aliens. The allegation, therefore, which is found in some petitions, viz., that the suppliant is a British subject, may be material (a).

There is, however, one instance in which an alien may possibly be allowed to present a petition, which is as follows: By a recent "Act to Amend the Law with respect to the Transfer of Stock forming part of the Public Debt of any Colony, and the Stamp Duty on such Transfer," it is enacted (b) “That any person claiming to be interested in colonial stock to which this Act applies, or in any dividend thereon, may present a petition of right in England in relation to such stock or dividend, and the like proceedings may be had upon such petition as in the case of any other petition of right," subject, however, to this qualification, that in the event of the suppliant succeeding, the Colony, and not the Treasury, must satisfy the claim. It will be (a) Rustomjee v. Reg. L. R. 1 Q. B. D. 487; 45 L. J. Q. B. 249; 34 L. T. 278; 24 W. R. 428.

(b) 40 & 41 Vict. c. 59, s. 20.

The position of Colonial subjects

not

governed

by the Common Law.

e.g. Canada.

noticed that the words of the enactment are "any person," not "any subject." There has been, at present, no decision upon those words.

It will be noticed that the above definition of those who may present a petition of right only includes those subjects "who are entitled to and governed by the Common Law of England." This has been done advisedly, since, whatever may be the case now, there certainly seems at one time to have been a doubt whether certain subjects of the Crown residing in colonies or dependencies could exercise this right.

The doubt seems to have arisen in the following way :If a dependency or colony is acquired by cession or conquest, the laws of the country existing at the time of such conquest or cession remain until altered (c), and the Common Law of England is of no force there; but if the colony or dependency is the result of the discovery and colonization of an uninhabited country by English subjects, then all the existing laws of England at the time of such colonization are immediately in force (d). Supposing, therefore, the right of presenting a petition of right is due to the Common Law of England, how can the subjects of colonies or dependencies acquired by conquest or cession claim this right unless a similar one was contained in their original constitution or has since been superadded by a competent authority?

The case of Canada will serve for an example. This country was ceded to the English by the French in 1763, and the existing French laws were expressly retained by statute (e). Those laws contained no provision by which the

(c) Per Lord Mansfield in Campbell v. Hall, 20 St. Trials, 322–3; Broom Constit. Law, p. 48 (ed. 1885).

(d) Memorandum, 2 P. Williams, 75; Broom Constit. Law, p. 52 (ed. 1885), and cases there cited.

(e) 14 Geo. 3, c. 83, s. 8 (Colonial).

Crown could be sued; such provision has since been obtained (ƒ). It is submitted that previous to obtaining it no subject could present a petition of right.

Thus a writer, in describing the position of a Canadian subject fifty years ago, when such provision was not in existence, says (g): "In Canada there is no relief for the subject against the Crown. The king cannot be sued in his own Courts. It is understood that by decisions of our Courts public officers cannot be sued for engagements entered into by them in their public capacity, so that really the subject may suffer without a remedy. In England there is the petition of rights (sic), which is decided upon in legal form. The bill introduced in 1824 by a distinguished advocate was intended to give a similar relief to the subject there. It however failed in the legislative council. The officers of the Crown are always careful to confound their own rights with those of the king himself, they studiously guard themselves from attack and control under shelter of the constitutional maxim that the king is not answerable for his conduct, and exclaim that his Majesty's dignity is insulted when their evil deeds are censured."

v. The

The inability of the subject to sue the Crown emphasized Laporte in the foregoing passage was very fully discussed recently Principal Officers of in one of the Canadian Courts of law in the case of Laporte Artillery. v. The Principal Officers of Artillery (h) (1857).

There the plaintiff claimed in a petitory action a declaration that he was owner and should be put in possession of certain lands: the defendants pleaded, inter alia, title in the Crown by prescription for over thirty years, upon which the plaintiffs joined issue. Upon the trial it was proved that previously to the year 1843 the lands in question had been

(f) 39 Vict. c. 27 (Canadian).

(g) Political and Historical Account of Lower Canada (England), 1830 (h) 7 Lower Canada Reports, 486.

vested in the Crown, but in that year an Act (7 Vict. c. 11, Canadian) had been passed by which they had been vested in the Board of Ordnance. Upon this the plaintiff contended that since the passing of such Act sufficient time had not elapsed to entitle the defendants by prescription, and that during the time the lands were vested in the Crown time did not run against him, for the following

reason:

There is a maxim of law to this effect, "contra non valentem agere non currit præscriptio," therefore, if he could shew that during the whole time the Crown was in possession he had no legal remedy, he would be within the maxim. It was conceded that he had no right of action, and the question was whether he was entitled to present a "petition" or "monstrans de droit." The plaintiff admitted that had the case arisen in England he would have been entitled to do so, but a Canadian subject was, he argued, in a different position. "Petition" and "monstrans de droit" were proceedings peculiar to English law taken before the Chancery and Exchequer Courts: that the system of law in Canada was French, not English, by 14 Geo. 3, c. 83, s. 8 (Colonial), and that therefore no Court existed in Canada which could take cognizance of such matters.

For the defendants, it was argued that the plaintiff might have availed himself of these ancient Common Law remedies which were open to every one of her Majesty's subjects in every portion of her dominions; and the superior court upheld this contention. But in the Court of Appeal, where however the case went off upon another point, the following judgment was delivered by Mondelet :

"Une question bien importante a été soulevée: on a invoqué la prescription contre les appelants. Mais 'contra non valentem agere non currit præscriptio,' ou devant les Cours de Justice en ce pays, jusqu'à la 7° Vict. c. 11, il n'y

avait aucun moyen de faire valoir ses droits contre la Couronne. La pétition, the petition of rights (sic), monstrans ne pouvait être référée par le Souverain à nos Cours de Justice du Bas Canada, constituées comme elles le sont, et de telles réclamations n'auraient pu, ni dû être accueillies par nos Cours. Le Souverain n'avait aucun tel droit, et les juges ici aucune obligation, aucun droit de s'en saisir. Je ne connais de prérogatives que celles définies par les lois ou la constitution. Dans le principe, ce qu'on appelle prérogatives de la Couronne ont été arrâchées aux peuples par la force; et depuis Runnemède jusqu'à nos jours, ce qu'on appelle concessions sont tout simplement des restitutions. En sorte que la seule doit être la règle et dans l'espèce les appelants n'auraient eu aucun moyen de faire valoirs leur droits devant les Cours du Bas Canada. L'acte de la 7o Vict. c. 11, a opéré un changement et c'est en vertu de celle loi que les appelants se sont pourvus. Il s'ensuit que la prescription ne peut leur être opposée. En 1824 un membre distingué de la Chambre d'assemblée introduisit une loi à l'effet de donner au sujet l'exercice de ce droit contre la Couronne. Il va sans dire que le Conseil législatif du temps rejeta cette mésure."

Alwyn, J., who was the only other judge who noticed the point, was of opinion that since the cession of the country a Canadian subject had a remedy against the Crown by petition of right.

At the present time Canada and some of the other colonies possess this right of petitioning by statute, but where the right has not been so conferred, it is submitted that it is doubtful if it exists in colonies and dependencies not governed by the Common Law of England.

A further question, however, arises in connection with Can subjects this portion of our subject, viz., whether, when persons are sue jointly? jointly interested in property taken and retained by or in a