nothing more than the answer of the Crown to the prayer of the petition endorsed upon the petition. It may help us to understand the position of the modern fiat to see what rules, if any, regulated the endorsement.

The granting of the fiat is an act of grace.] In the first place, the granting of the endorsement was a pure act of grace. Any petitions which either affected the king's title to property, or were applications for his grace, were called "coram rege" petitions (Elsynge on Parliaments, 1768, p. 288, and cases there cited); that is, could not be answered or endorsed "rege inconsulto" (ibid.); evidence that this formerly was so appears in the practice of the present day, the personal answer of the Sovereign being still requisite in both such cases. But though no one else could answer such petitions, it does not appear that the Crown was bound to do so, and certainly there appears to have been no method of compelling it to do so, process in the nature of mandamus being inapplicable, as "the king cannot command himself." The answer or endorsement must have been therefore a purely voluntary act, whether the suppliant sought to recover property or obtain a favour, though doubtless he had a stronger "moral" claim in the former than in the latter case. In the same way and for the same reasons it is submitted that the granting of the "fiat" is a purely voluntary act, and that the Crown cannot be compelled to grant it. This is the view which was taken by the Court of Common Pleas in a recent case. "It is said that sect. 7 of the 23 & 24 Vict. c. 34 applies, and that the legislature has taken away the Queen's prerogative and given a right of action. I think that the words of the statute by no means justify that statement. The words of sect. 2, so far from giving the subject a right of action against the Queen absolutely, which every subject has who claims to have an action against a fellowsubject, suing out a writ, are as follows (quoting them). The prerogative is recognized and remains." Per Erle, C.J. (Tobin v. Reg., 14 C. B. (N.S.) 505, at p. 521; 216, at p. 221; 8 L. T. 730, at p. 731; 11

32 L. J. C. P.

W. R. 915, at

p. 915; 9 Jur. (N.S.) 1130, at p. 1133).

Form of the fiat.] We do not, however, find that the Crown

was in the habit of capriciously refusing the endorsement, and the next thing for us to consider is the form it took when given. In the first place, it was endorsed upon the petition. Its verbal form necessarily depended a good deal on what the petition asked for; speaking generally, a suppliant might ask for and the Crown grant almost anything, subject of course to other people's rights; and so in the Rolls of Parliament we find answers or endorsements in almost every conceivable form (Elsynge, ibid., pp. 288-298). But, as might be expected, similar answers were given to similar requests; and hence in cases where the suppliant sought the restoration of property one stereotyped prayer, the form of which we have considered above, and one stereotyped answer, viz., "Soit droit fait als parties," came into existence. It is difficult to say when precisely this practice became customary; but in Staunford's time it was the usual answer (see Staunford's Prerog., Chap. xxii. fol. 73 a). But, although this was the usual “ course of business," the suppliant never seems to have lost the right of asking, or the Crown of granting, any "special prayer" of the suppliant's, even in cases where the petition was for the restitution of property; and so endorsements were not only general," i.e., in the above form, but also "special," i.e., in terms suitable to the requirements of the case (Stunford's Prerog., Chap. xxii., 73 a). Formerly a great deal of time and labour might be saved by these special endorsements, e.g., if the petition concluded specially that the king should command his justices of B. R. or C. B., and it was so endorsed, all the preliminary proceedings such as inquisition were avoided (Com. Dig., tit. Prerog. [D. 80].) All the learning upon this subject continued up to the passing of this Act, and was recognized as good law (Ex parte Perring, 6 L. J. [N.S.] Ex. 253). Whether or not a special endorsement or fiat can be given under this Act is an open question; the section only mentions one form, viz., "That right be done," upon which the course of proceeding indicated in the Act is to be adopted. Supposing, however, there was a shorter way out of the difficulty, it might be expedient to proceed at common law and conclude with a special prayer. It should also be noticed,


that though the prayer is general the endorsement may be special (Staunford's Prerog., Chap. xxii., fol. 73 b.): “For howsoever the conclusion in the petition may be, the indorsement may be always as it shall please the king."

Effect of fiat.] "And note that when the petition is indorsed the party must follow and pursue the same according to the endorsement, or otherwise his suit is void, because the endorsement is his warrant therein, as appeareth in Peticion 1 M. 18 E. 3, P. 22 Ed. 3, 5, and Peticion 18 H. 46 Ed. 3 (Staunford's Prerog., Chap. xxii., fol. 73 a). So ever the following and pursuing of the thing must bee according to the endorcement, for howsoever the conclusion in the peticion be, the endorcement may be always as it shall please the king as me seemeth, and according to that the party must pursue it (ibid., fol. 73 b).”

Petition, &c., to be the left at Office of

plea Solicitor of

the Trea

III. Upon her Majesty's fiat being obtained to such Upon Fiat being obpetition, a copy of such petition and fiat shall be left at tained, the office of the Solicitor to the Treasury, with an endorsement thereon in the form or to the effect in Schedule (No. 2) to this Act annexed, praying for a or answer on behalf of her Majesty within twenty-eight days, and it shall thereupon be the duty of the said dorsed as Solicitor to transmit such petition to the particular de- No. 2. partment to which the subject-matter of such petition may relate, and the same shall be prosecuted in the Court in which the same shall be intituled, or in such other Court as the Lord Chancellor may direct.

sury en

in Schedule

Such petition shall be left at the office of the Treasury Solicitor.] Where the petition is proceeding in the Chancery Division the copy so left must be a printed and sealed one, otherwise the leaving will not be good under this section (Order 1st Feb. 1862, r. 3; Morgan 201, 202, and see note to sect. 15, infra); the same practice may also be followed in the Queen's Bench Division:" see also note below on filing the petition which should precede delivery to the Treasury Solicitor.

With regard to the endorsement, on marking a copy of a

petition of right for service a fee of 58. is payable by a stamp impressed on the copy. Order as to Supreme Court Fees 1884, Schedule No. 16; Order as to fees, &c., July 1884, at p. 4.

And it shall thereupon be the duty of the Treasury Solicitor, &c.] At the date when this section was enacted the various public departments had their separate solicitors, and the Treasury Solicitor's duty was simply to put the suppliant in communication with the departmental solicitor, who was responsible for the further conduct of the case, and to whom all further notices, pleadings, &c., on behalf of the suppliant were delivered. Where this is still the case, the course stated above will be followed; and the Treasury Solicitor having transmitted the petition under this section will be functus officio. Some departments, however, e.g., the War Department, Admiralty, &c., have no separate solicitor, the legal work being done by the Treasury Solicitor; in these cases the litigation will be conducted by him or his agents upon the instructions of the department.


The particular department, &c.] It should be remembered that the petition may relate not only to some department of State, but may "affect her Majesty in her private capacity (sects. 11, 13 and 14); the Act does not say to whom in such cases the petition should be transmitted, but possibly to the "Lord Treasurer or such other person as her Majesty shall appoint," he being the person named to represent her Majesty in other parts of the Act for other purposes.

Filing the petition.] By the Central Office Practice Rules, 1880-2, "petitions of right" are amongst the "documents to be filed in the Writ, and Appearance, and Summons, and Order departments."

On filing a petition of right a fee of £1 is payable by a stamp impressed upon the petition "where practicable;" where not, then upon a præcipe to be filed. (Order as to Supreme Court Fees 1884, Schedule No. 28; Order as to fees, &c., July 1884, p. 6.)

The filing should immediately follow the granting of the fiat. Upon her Majesty's fiat being obtained to any petition of right presented in pursuance of the (Petitions of Right) Act, and intituled in the Court of Chancery (now


Chancery Division), such petition with the fiat thereon, together with a printed copy of such petition and fiat (if the petition is in writing), shall be filed at the Office of the Clerks of Records and Writs (now Central Office). (Order 1, Feb. 1862, Morgan 201, 202, and see note to sect. 15, infra).

In such other Court, &c.] See notes to next section as to the way in which the change is made.


by the

IV. The time for answering, pleading, or demurring Time for to such petition, on behalf of her Majesty, shall be the said period of twenty-eight days after the same, with Crown. such prayer of a plea or answer as aforesaid, shall have been left at the office of the Solicitor to the Treasury, or such further time as shall be allowed by the Court or a Judge: Provided always, that it shall be lawful for the Lord Chancellor, on the application of the Attorney- Power to change the General, or of the suppliant, to change the Court in Court or which petition shall be prosecuted, or the venue for the venue. trial of the same.

As shall be allowed by the Court or a Judge.] The Court or Judge here spoken of probably means the "Court" or "Judge" as defined by sect. 16 of this Act, which does not include a "Master."

Lawful for the Lord Chancellor, &c.] It is not very clear how this application is to be made, but probably the practice relating to the transfer of causes from one Court to another under the Supreme Court Rules, 1883, would be followed, viz., that where all parties consent thereto the direction will be given on a written application to his secretary, accompanied by the written consent of all parties; but where they do not all consent the application must be made to the Lord Chancellor in Court (Memorandum, L. R. 1 Ch. D. 41). "The king appears by his prerogative to have the right of suing in any Court he pleases" (Com. Dig., Prerog. D. 85); there seems to be no authority saying whether this prerogative is the same when he is quasi-defendant to a petition of right.

Change the venue for the trial, &c.] Except for the matter

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