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(6.) Case and Joint Opinion of tlie Attorney and Solicitor General, Sir Frederick Thesiger and Sir Fitzroy Kelly, as to the revocation of a Royal Warrant. granting the property of a deceased person which had devolved upon the Crown. 1852.
Case.—By warrant, under the Royal sign-manual, dated the 31st of January, 1851, reciting (inter alia) that by virtue of a Royal Warrant, dated the 25th of July, 1848, letters of administration (with will annexed) of the goods, chattels, and credits of A. N., a spinster, and a bastard, deceased, had been granted to George Maule, Esq., as nominee, and for the use and benefit of Her Majesty, in the Prerogative Court of Canterbury, and that a memorial had been presented to the Commissioners of the Treasury, by C. N., praying, under the circumstances set forth in the said memorial, that a certain share of the said effects might be granted to the memorialist for the use and benefit of her minor grandchildren then residing with her, and under her care and charge, it was made known that Her Majesty did authorize and require the said George Maule to dispose of certain sums of stock, the property of the deceased, and pay over a portion of the proceeds to the said C. N., to be applied by her for the benefit of her grandchildren. The payment, however, of the money to C. N. was suspended, owing to an application on behalf of the mother of the said minor children; and there being reason to believe that the facte set forth in the memorial of C. N. were not correctly stated, an application was made to the Lords of the Treasury to revoke the former grant to her, and make a new grant. A doubt was raised whether it was competent to the Crown to revoke the warrant, and also whether, as Mr. Maule had died in the interval, the duty and power of executing the warrant devolved, under the statute 15 Vict. c. 3, s. 3 (relating to the case of letters of administration granted to Mr. Maule, Solicitor of the Treasury, as nominee of Her Majesty), upon the Solicitor of the Treasury for the time being, or whether the death of the nominee named in the first warrant did not render a new warrant necessary.
Opinion.—1. We are of opinion that, upon the assumption suggested, it is competent to Her Majesty to revoke the former grant, and make a new one, without scire facias or any other proceeding.
2. We think that if the former warrant was still in force and unrevoked, it could not be executed by the successor of Mr. Maule, but that a new warrant would be necessary. It is certainly desirable that such warrants in future should be made in favour of the Solicitor of the Treasury and his successors.
Temple, September 29,1852. Fitzroy Kelly.
(7.) Case and Joint Opinion of the Attorney and Solicitor General, Sir A. E. Cockburn and Sir Richard Bethell, as to power of the Grown to revoke or accept the Surrender of a Grant of separate Quarter Sessions, made under the Municipal Corporations Act, 5 & 6 Will. 4, c. 76. 1856.
Case.—The Town Council of Newcastle-under-Lyme, being desirous that a separate Court of Quarter Sessions should no longer be holden in and for that borough, the Law Officers were asked to give their opinion whether the Crown is empowered to revoke or accept a surrender of a grant of separate Quarter Sessions, which has been made under the Municipal Corporations Act (5 & 6 Will. 4, c . 76, s. 103).
Opinion.—It seems to us clear that the Crown has not the power in question. The Crown cannot, by virtue of the prerogative, abrogate courts of justice established by law. A fortiori, when a court is established by virtue of a power conferred by Act of Parliament, which conveys no power to abrogate, the Crown, having exercised, has exhausted its power, and cannot annul the Court it has once created.
Besides, the offices of Recorder and Clerk of the Peace, being during good behaviour, are freehold offices, and cannot be taken away by the revocation of the grant of the Court.
We are of opinion that the question put to us must be answered in the negative.
A. E. Cockburn. September 19, 1856. R. Bethell.
NOTES TO CHAPTER XII.
In Legafs Case, 10 Co. 113 a, it was resolved that the Crown may avoid its grant made upon a false insinuation or suggestion, and such letters patent by judgment of law shall be cancelled. "The King has an undoubted right to repeal a patent wherein he is deceived or his subjects prejudiced, and that by scire facias:" B. v. Butler, 3 Lev. 221. The power of the Crown to call back its grants when made under mistake is not like any right possessed by individuals; for when it has been deceived the grant may be recalled, notwithstanding any derivative title depending upon it; and those who have deceived it must bear the consequences. So laid down by Sir Thomas Plumer, M.R., in Cumming v. Forrester, 2 Jac. & W. 342: see Com. Dig. Grant, G. 8; Vin. Abr. Prerog. 0 b.
All charters or grants of the Crown may be repealed or revoked when they are contrary to law, or uncertain, or injurious to the rights and interests of third persons; and the appropriate process for the purpose is by writ of scire facias. And if the grant or charter is to the prejudice of any person, he is entitled, as of right, to the protection of this remedy: The Queen v. Hughes, L. R. 1 T. C. 87. The writ of scire facias, to repeal or revoke grants or charters of the Crown, is a prerogative judicial writ which must be founded upon a record. These Crown grants and charters under the great seal are always sealed in the Petty Bag Office, and enrolled in the Court of Chancery, where they become records: Ibid. "To every Crown grant there is annexed by the common law an implied condition that it may be repealed by scire facias by the Crown, or by a subject grieved using the prerogative of the Crown upon the fiat of the Attorney General:" per Jervis, C.J., in Eastern Archipelago Company v. The Queen, 2 E. & B. 914.
It deserves notice that the Act for the dissolution of the greater monasteries in 1539, 31 Hen. 8, c. 13, recites that the abbots, priors, abbesses, and prioresses had, " of their own free and voluntary minds, good-wills, and assents, without constraint, co-action, or compulsion," granted their monasteries, abbeys, and priories to the King, and had renounced, left, and forsaken the same. The statement was false, but it served to veil the rapacity of the Crown.
In the reign of Charles II. an information in the nature of a quo warranto was exhibited in the King's Bench, for the purpose of having it declared that the charters of the city of London had been forfeited, and judgment was given for the Crown: B. v. The City of London, 8 State Tr. 1039. But this judgment was declared void by statute 2 Will. & M. c. 8. See the case of B. v. Amery, 2 T. R. 515, where it was decided that when the charter of a corporation has been forfeited by a judgment of seizure quousque, and a new charter granted creating a new body, a subsequent charter of restoration or restitution is void. "For though it be competent to the Crown to pardon a forfeiture and to grant restitution, that can only be done where things remain in stal% quo, but not so as to affect legal rights properly vested in third persons." In the same case it was also held that the granting of a new charter inconsistent with the former amounts to a declaration on record that the Crown elects to take advantage of a forfeiture incurred under the old charter. The judgment, however, in this case was reversed in the House of Lords : 4 T. E. 122 ; but it is not stated on what grounds, nor how far the above propositions were dissented from or agreed to.
In 1820 the North-West Company of Canada presented a petition to the Privy Council, praying that a scire facias might be issued for repealing the letters patent granted to the Hudson's Bay Company, and it was referred to the Attorney and Solicitor General to consider it, and report their opinion thereon. The Hudson's Bay Company opposed it, and the application for the scire facias being withdrawn, no report was made on the subject by the Law Officers: M. S. Council Register, 1820-1821. By statute 31 & 32 Vict . c. 105, the Crown is empowered to accept a surrender of the charter of the Hudson's Bay Company.
The province of Nova Scotia was ceded by France to the Crown of England by the Treaty of Utrecht. The island of Cape Breton was, with Canada and other French colonies in America, ceded by France to England in 1763. In that year the Crown, by proclamation, annexed Cape Breton to the Government of Nova Scotia. In 1784 Nova Scotia was divided into two governments, New Brunswick and Nova Scotia, and Cape Breton was included in Nova Scotia; but a LieutenantGovernor was appointed for that island, whose commission gave bim the same powers as expressed in the commission of the Lieutenant-Governor " of the province of Nova Scotia, and the islands of St. John and Cape Breton, then and for the time being." The commission or letters patent of the Governor of Nova Scotia spoke of " our respective councils and assemblies of our province of Nova Scotia and our islands of St. John and Cape Breton under your Government;" and, without expressly authorizing him, implied that he had the power to call an Assembly of Cape Breton. A Council was formed, but no General Assembly was ever convened for Cape Breton. In 1820 a new commission was given to the Governor of Nova Scotia, and that Government was described "as including the island of Cape Breton (which we do expressly direct and declare shall in future form part of our said province of Nova Scotia)," and no mention was made of a Council or Assembly, or any separate legislature for Cape Breton. The Governor of Nova Scotia, in accordance with his instructions, issued a proclamation declaring Cape Breton to be a county of the province of Nova Scotia, to be represented by two members in the General Assembly of Nova Scotia, and dissolving the Council of the island.
Against this annexation of Cape Breton and dissolution of the Council certain of the inhabitants of the island petitioned the Queen in Council; and the Judicial Committee, having had the petition referred to them, confined to the question whether the inhabitants of Cape Breton were by law entitled to the Constitution purporting to be granted to them by the letters patent of 1784, reported to Her Majesty their opinion that the inhabitants were not so entitled: Be The Island of Cape Breton, 5 Moore, P. C. 259.