which purported to override that prerogative would be unconstitutional and contrary to public policy. In the Court below, as appears from the transcript of the shorthand notes, Brett, M.R., expressed himself still more strongly: "In my opinion not the Queen herself could make this contract; neither the Queen nor any servant of the Queen could make this contract."

1

Mitchell v. R., [1896] 1 Q. B. 121, n. ; 6 T. L. R. 181, 332, was a petition of right of a similar kind, to which the Crown again granted the fiat and demurred. It was sought to distinguish the case on the ground that the arrangement, which the suppliant complained of as inadequate, was made with him after his retirement from his lieutenant-colonelcy in the Royal Engineers, and not while he was still in actual service. The Court held that this made no difference, and Fry, L.J., said: "I am clearly of opinion that no engagement between the Crown and any of its military or naval officers in respect of services either present, past or future can be enforced in any Court of law."

In the more recent case of O'Sullivan's Petition of Right (1903), where the suppliant, an ex-surgeon-major of the Army Medical Corps, claimed damages of various kinds for alleged wrongful conviction by a court-martial and for being discharged on a gratuity instead of on a pension, the Crown refused the fiat. It granted the fiat in the case of Ryan v. R. (1904), not reported, but informed the suppliant, who was an army nurse and sued for compensation for loss of office owing to changes in the establishment, that it would demur to the petition. Judgment was given for the Crown on the demurrer, on the ground that a petition of right would not lie in respect of such a matter, though the suppliant's case was a hard one.

In Scotland a similar result was arrived at in Smith v. L. A. (1897), 25 R. 112, where it was held that no action would lie against the Lord Advocate, representing the Crown, for the recovery of military pay, and in Mackie or Mackin v. L. A. (1898), 25 R. 769.

Civil Officers.

The Superannuation Act, 1834 (4 & 5 Will. IV. c. 24), s. 30, expressly provides that nothing in the Act contained shall extend or be construed to extend to give any person an absolute right to compensation for past services, or to any superannuation or retiring allowance under the Act, or to deprive the Treasury and the head or principal officers of the respective Departments of their power and authority to dismiss any person from the public service without compensation.

We are not dealing here with any question of "ancient offices," as to which see Slingsby's Case (1680), 3 Swanst. 178, and Hill v. R. (1854), 8 Moo. P. C. 138.

Shenton v. Smith, [1895] A. C. 229; 64 L. J. P. C. 119, was a claim for wrongful dismissal against the Government of Western Australia by a medical officer employed by them. It was held that a colonial Government stands on the same footing as the Crown in England with regard to the employment and dismissal of public servants, and that, "except in special cases where it is otherwise provided, servants of the Crown hold their offices during the pleasure of the Crown, not by virtue of any special prerogative of the Crown, but because such are the terms of their engagement, as is well understood throughout the public service. If any public servant considers that he has been dismissed unjustly, his remedy is not by a law-suit, but by an appeal of an official or political kind.”

Exception must, perhaps, be taken to the opinion here expressed that the power to dismiss does not depend on the prerogative, and also to the opinion that it can be otherwise provided that servants of the Crown should hold their offices otherwise than at pleasure, unless this last statement be strictly limited to statutory provisions. A mere contract, which purported to make the tenure of an office permanent, would seem to be contrary to public policy, on the basis of the judgments in De Dohsé v. R. (1886), 66 L. J. Q. B. 422, n. ; 3 T. L. R. 114.

In Dunn v. R., [1896] 1 Q. B. 116; 65 L. J. Q. B. 279, it was definitely decided that servants of the Crown, civil as well as military, except in special cases where it is otherwise provided by law, hold their offices only during the pleasure of the Crown. This judgment, therefore, modifies the judgment in Shenton v. Smith, ubi sup., as it has been already suggested that it ought to be modified. The claim was by petition of right on the part of a former consular agent, who alleged that he had been engaged as such for three years certain on behalf of the Crown, and who claimed damages for having been dismissed before the expiration of that period. Clearly the dismissal of a civil servant may be in some cases just as important to the interests of the country as the dismissal of a military or naval officer.

The suppliant then proceeded, in Dunn v. Macdonald, [1897] 1 Q. B. 555; 66 L. J. Q. B. 420, by action for breach of an implied warranty of authority against the officer who had engaged him on behalf of the Crown, but with no better success.

The principle was re-affirmed in Gould v. Stuart, [1896] A. C. 575; 65 L. J. P. C. 82; but in that case it was held that certain statutory

provisions were intended to restrict the Crown's right in the matter. See also Young v. Adams, [1898] A. C. 469; 67 L. J. P. C. 75; and Young v. Waller, [1898] A. C. 661; 67 L. J. P. C. 80. In the lastcited case it was held, further, that the statutory provisions referred to in Gould v. Stuart did not take away the right of the Crown to abolish a civil office.

Jolley's Petition of Right claimed compensation for non-employment, at the remuneration arranged, as surgeon-superintendent of a coolie ship. The Crown granted the fiat, but demurred, and the petition was dropped.

The Crown refused the fiat to Houghton's Petition of Right (1901), a similar claim by a district engineer on a railway under the Colonial Office, and to Bull's Petition of Right (1902), a similar claim by a Resident Superintendent of the House of Lords, appointed and dismissed by the Lord Great Chamberlain.

Ray's Petition of Right (1888) was a claim by a sealer in the Probate Registry for a declaration that he had not resigned his office and for payment of arrears of salary. Under the special circumstances, the fiat was granted and the claim was settled.

The principles involved in the above cases may be summarised as follows: (i) Even if there be a contract of service, the Crown's absolute power of dismissal must be deemed to be imported into it, whatever its terms; (ii) it is not for the Court or a jury to discuss and decide upon the goodness of the grounds of dismissal, or to consider the question whether there were any grounds for dismissal at all; (iii) the Crown's absolute power of dismissal can only be restricted by statute, and anything, short of a statute, which purports to restrict it, is void as contrary to public policy.

With special regard to superannuation allowances under Acts providing for such allowances, reference may be made to Edmunds v. A.-G. (1878), 47 L. J. Ch. 345, where it was held that it was for the Treasury to decide whether a pension should be granted to a public servant; but it seems to have been left open whether any proceeding would lie on the part of a public servant after the Treasury had decided to grant him a pension. But in Cooper v. R. (1880), 14 Ch. D. 311; 49 L. J. Ch. 490, which was a petition of right by a scripture-reader at Portland Prison for compensation for loss of office, it was held that no claim for superannuation allowance under the Superannuation Acts could be enforced by the civil tribunals of the country, and that civil servants must rely upon the decision of the Treasury, who will say whether they will take the claim into their favourable consideration or not. Their decision, whether erroneous or not, is made by the Acts absolutely conclusive and binding.

In Smyth v. R., [1898] A. C. 782; 67 L. J. P. C. 129, an appeal from Victoria, it was held that a local statute entitled the appellant, the Public Prosecutor, to a superannuation allowance, although he held office during pleasure.

Claims to Land situated Abroad, in certain cases.

Re Holmes (1861), 2 J. & H. 527; 31 L. J. Ch. 58, was a petition of right lodged in this country claiming the restoration of land in Canada from the Crown as trustee, such land having been vested in the Crown by a colonial Act for the public purposes of the colony, and subject to such further provisions as might from time to time be enacted by the local Legislature. The Crown succeeded on demurrer, on the ground that the English Courts could not entertain the matter. It was urged by the suppliant that though no direct remedy in rem could be given in that Court as to land in Canada, yet a decree in personam might be made to which the Canadian Courts would give effect; and that the Crown could for this purpose be regarded as a trustee present in this country. Wood, V.-C., observed: "It is said that the Queen is present here, and therefore amenable (by virtue of the recent Act) [i.c., the Petitions of Right Act, 1860] to the jurisdiction of this Court. But it would be at least as correct to say that, as the holder of Canadian land for the public purposes of Canada, the Queen should be considered as present in Canada and out of the jurisdiction of this Court . . . . It is enough to say that when land in Canada is vested in the Queen, not by prerogative, but under an Act of the Provincial Legislature, for the purposes of the province, and subject to any future directions which may be given by the Provincial Legislature, I hold that, for the purpose of any claims to such land made under the provincial statutes, the Queen is not to be regarded as within the jurisdiction of this Court. I wish to rest my decision upon the broadest ground-that it was not the object of the Petitions of Right Act, 1860, to transfer jurisdiction to this country from any colony in which an Act might be passed resting lands in the Crown for the benefit of the colony, and upon that ground I allow the demurrer: dismissing other questions, I prefer to rest upon the higher ground that this land cannot be withdrawn from the control of the Canadian Legislature and brought within the jurisdiction of this Court merely on the technical argument that the Queen, in whom it is vested for Canadian purposes, is present in this country."

This judgment, as far as it goes, is unexceptionable, but its limitations are clearly marked by the passages here printed in italics. Where the local Legislature has vested land in the Crown for the

purposes of the colony or possession, the tenure is really to be regarded as that of the local Government, and not as that of the Imperial Crown. Any proceedings in respect of it must be taken as against the local Government, and under any local laws or regulations which there may be governing such proceedings. In such a case an English Court rightly applies the general principle, which has been laid down in numerous cases, that it will not entertain suits for the recovery of land situated abroad. In the same way, in Reiner v. Marquis of Salisbury (1876), 2 Ch. D. 378, the Court refused to entertain any proceedings in aid of a writ against the Secretary of State for India for the recovery of land in India. The Court would also rightly refuse to apply the remedy in personam against the Crown as trustee or quasi-trustee, resident within the jurisdiction, which has commonly been applied by Courts of Equity in the case of lands situated abroad. (There is the further difficulty as to the enforcement of trusts against the Crown: see below, p. 482.) The Crown, as has been pointed out already, cannot be regarded as resident in the jurisdiction for this purpose, although it may be technically so resident, inasmuch as the property in question is not in substance, though it may be technically, vested in the Imperial Crown, but is really vested in the Crown viewed as the Government of a particular dependency. But the case appears to the author to be quite different where land abroad is vested in the Crown for imperial purposes. In such a case, it is submitted, the proper place, and the only place, where proceedings could be taken against the Crown for the recovery of such land by a person claiming to be entitled, is this country, and the proper remedy is petition of right. Take, for instance, such land as that discussed in A.-G. of British Columbia v. A.-G. of Canada, [1906] A. C. 552; 75 L. J. P. C. 114, which, though situate in the Province of British Columbia, was for many years the property of the Imperial Government, as such, and did not belong either to the Dominion or to the Province. Many other instances could be adduced of land in different parts of the world which is so vested in the Imperial Government.

In the case of such land there is no difficulty as to the effect of an order of the English Court. By sect. 10 of the Petitions of Right Act, 1860, the judgment has the effect of a judgment of amoveas manus, and the Crown is put out of possession without more (see below, p. 395).

In Lautour v. A.-G. (1865), 5 N. R. 102, 231, the Court put the Crown to its answer to a bill filed in pursuance of a petition of right, whereby the suppliant sought a declaration that the Crown ought to grant him land in Western Australia.