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who claims to have an action against a fellow-subject, by suing out a writ, are [he quoted part of the section]. The prerogative is recognised and remains," and he then referred to Irwin v. Grey: see above, p. 376. This seems undoubtedly to be the proper view. In Ryves v. Duke of Wellington (1846), 9 Beav. 579, 600; 15 L. J. Ch. 461, Lord Langdale, M.R., said: "I am far from thinking that it is competent to the King, or rather to his responsible advisers, to refuse capriciously to put into a due course of investigation any proper question raised on a petition of right. The form of the application being, as it is said, to the grace and favour of the King, affords no foundation for any such suggestion." No doubt it is inconceivable that the King would capriciously refuse to allow right to be done, but surely it would be 'competent" to him to do so, and, in law, no caprice or irregularity could be attributed to him for so doing. It is also submitted that Bowen, L.J., went too far in the following observations, which he made in In re Nathan (1884), 12 Q. B. D. 461; 53 L. J. Q. B. 229: "Everybody knows that that fiat is granted as a matter, I will not say, of right, but as a matter of invariable grace by the Crown wherever there is a shadow of claim; nay, more, it is the constitutional duty of the Attorney-General not to advise a refusal of the fiat unless the claim is frivolous." It is the constitutional duty of the Attorney-General to advise the Crown to the best of his ability on the matters which are submitted to him, including the question whether a particular petition of right ought to receive the fiat or not. But his duty is not fettered by any obligation to advise the Crown to fiat all petitions of right except those which are frivolous.

Cases might easily be adduced, in which the Attorney-General might think it his duty to advise a refusal of the fiat, where the claim was anything but frivolous. Lord Campbell, Lives of the Chancellors, VII. 425, combating the view that any sort of petition of right ought to receive the fiat, and that the Court should be left to say whether it disclosed any ground of relief, says: "That [i.e., the Sovereign's] consent cannot be properly withheld where there is any feasible ground of suit, but ought to be withheld where clearly and certainly no relief can be given. The Attorney-General is answerable to Parliament for the advice he gives upon this subject. . . . There is no authority for the contrary doctrine." In any event it does not appear to lie within the province of any Court to set limits on the discretion of the Crown, or on the advice which the Attorney-General may think fit to give the Crown.

The Crown, then, may grant or refuse the fiat at its absolute discretion. It may grant the fiat to a portion of the petition, or to the whole of it; it may grant the fiat to the petition as it stands, or may

insist upon amendments before the fiat is granted. One of the things which it may alter, it is submitted, is the Court or venue; as to which, see below, p. 380.

The Fiat may be granted with Qualifications.

The words of sect. 2 of the Act do not, it is submitted, limit the form of the fiat to the mere statement "Let right be done." The granting of the fiat being entirely voluntary, it would seem to follow that the King may grant his fiat in whatever words he pleases, and with whatever qualifications he chooses.

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Staundford, Praerog. 73 a, is particularly definite on the subject: "And note, that when the petition is endorced [the endorsement was equivalent to what is now called the fiat], the partie must follow and pursue the same according to the indorcement, or otherwise hys suit is voide because the endorcement is his warrant therin, as appeareth in [Fitzh. Abr.] Petition 1 M. 18 E. 3, [3] P. 22 E. 3. 5, and Petition 18 H. 46 E. 3, and therfore some time bills of petition be endorced and sent into the Kinges Bench or Common place, and not into the Chauncerie, and that groweth upon a speciall conclusion in his petition, and a speciall endorcement upon the same, for the general conclusion is, que le Roy luy face droit et reason,' which is as much as if he had prayed restitution of that that he sueth for: And there upon such a generall conclusion the endorcement is 'Soit droit fait as parties,' which ever is delivered unto the Chauncelor, as is declared. But if the conclusion in the petition be speciall and the endorcement speciall, then they shall proceede according to the said speciall endorcement. . . So ever the following and the pursuing of a thing must be according to thendorcement, for howsoever the conclusion in the petition be, the endorcement may be alwaies as it shal please the King as mee seemeth, and according to that the partie must pursue it.” This last sentence shows that Staundford did not regard the form of the fiat as depending upon the form of the prayer, but as being entirely within the King's discretion. He is mainly concerned with the question of venue, but his statement is wide enough to cover any sort of qualified fiat.

So Lord Somers, L.K., in The Bankers' Case (1690), 14 St. Tr. 1, 59, says: "The truth is, the manner of answering petitions to the person of the King was very various: which variety did sometimes arise from the conclusion of the party's petition; sometimes from the nature of the thing; and sometimes from favour to the person and according as the indorsement was, the party was sent into Chancery or the other Courts. If the indorsement was general, 'soit droit fait al partie,' it must be delivered to the Chancellor of England. . . but

if the indorsement was special, then the proceeding was to be according to the indorsement in any other Court."

The question of fixing and altering the Court or venue by the fiat is discussed below, p. 380.

Practically equivalent to the grant of a qualified fiat is the course occasiona ly adopted by the Crown, whereby it grants the fiat absolutely, but at the same time warns the suppliant that the Crown will demur, and that, in the Crown's opinion, the petition must fail. That course was adopted, for instance, when the fiat was granted to the petition of right of the West Rand Central Gold Mining Co., Ltd. (reported on the trial in [1905] 2 K. B. 391; 74 L. J. K. B. 753), and in Ryan v. R. (1904), not reported, where an army nurse claimed compensation for loss of employment; see above, p. 357.

The Petition cannot be set down for Trial without the Fiat.

This, which indeed seems obvious from the terms of the Act and from the earlier practice, was decided in In re Mitchell (1896), 12 T. L. R. 324, 458. The suppliant moved that his petition of right might be set down for trial without receiving the fiat, alleging that it had been returned to him by the Home Office without being submitted to the Crown, on the ground that it was not a petition of right within the meaning of the Act, and that there was nothing to which the fiat could be affixed.

The Return of the Petition to the Suppliant.

If and when the fiat has been granted, the petition is returned to the suppliant, sealed with the seal of the Home Office, and with the fiat written upon it. If the fiat has not been granted, the petition is returned to the suppliant with an intimation to that effect. In neither case is any fee chargeable to the suppliant.

The Place of Trial.

Fixing the Venue before Fiat.

By sect. 1 of the Act, a petition of right, "if intituled in a Court of Common Law, shall state in the margin the venue for the trial of such petition." This is a specific provision as to petitions of right intituled in the King's Bench Division, and as to these overrides the provisions of Ord. XXXVI. r. 1, whereby the place of trial is to be fixed by the Court or a judge. The statement in the Annual Practice, 1908, note to Ord. LII. r. 16: "Place of trial is fixed by

the master, on summons," is incorrect. The master has no power to fix the place of trial of petitions of right in the King's Bench Division. It is true that in two recent instances orders purporting to fix the place of trial have been made on summons before the master, but in both cases the Crown did not contest the point, and it is submitted that it is clear from the Act that the master has no such power. The position of petitions of right intituled in the Chancery Division with regard to venue is different. There is no specific provision as to these in sect. 1 of the Act, because at the date of the Act Chancery matters could only be tried in London. The implication, perhaps, is that, under sect. 1 of the Act, suppliants in the Chancery Division are still confined to trial in London.

Fixing or Changing the Court or Venue by the Fiat.

There seems to be no reason to doubt that, in general, the venue can be changed by the Crown at the time when it grants its fiat to the petition. This rests upon the general principles enunciated above, namely, that the Crown may grant the fiat in such modified form as it chooses, and does not rest upon the doctrine that the Crown may sue and be sued where it chooses. That it may sue where it chooses is clear enough (see below, p. 581); that this prerogative extends to cases where the Crown is defendant is by no means so clear. The true doctrine seems to be that laid down by Clarke, M.R., in Burgess v. Wheate (1759), 1 Eden. 177, 189: "Though the Crown may insist on being sued in its own proper Court, yet it may sue in what Court it pleases." If this be so, the utmost the Crown could do, under this particular prerogative, would be to remove the petition of right to the Revenue side of the King's Bench Division. In addition, it would have the power to change the venue to any county under the Crown Suits Act, 1865, s. 46. (See below, pp. 582, 699.) But, in the author's opinion, the power to alter the venue rests, not upon this prerogative, but upon the other prerogative above stated. The provisions of the Naval Prize Act, 1864, s. 52 (see above, p. 347), do not throw any light on the matter, but sect. 2 of the Petitions of Right (Ireland) Act, 1873 (see below, p. 711), is distinctly in favour of this view, providing, as it does, that a petition may be, "if Her Majesty shall be pleased to grant her fiat to that effect," prosecuted in an Irish Court.

There is no doubt that before the Petitions of Right Act of 1860 the Crown had power to send a petition for trial wherever it chose. This appears clearly from the passages from Staundford and The Bankers' Case, cited above, p. 378. It is also clear from In re Pering (1837), 2 M. & W. 873; 6 L. J. Ex. 253. In that case the Court of

Exchequer held that they had no power to proceed to hear a petition of right, which had received a general endorsement, "Let right be done" only, but that it was necessary that the petition should be endorsed specially to be tried by themselves, even though the prayer of the petition was that the petition should be referred to the Exchequer for trial. The Court assumed that the Crown could refer the petition, by its fiat, to any Court it chose; and it appears to the author that there is nothing in the Petitions of Right Act, 1860, to modify this prerogative. It merely provides that the suppliant must state the venue selected by him in his petition, but that surely must be taken to be merely a suggestion to the Crown, and not as in any way limiting the prerogative of the Crown to fiat the petition in such form, whether as to place of trial or otherwise, as it chooses.

The very difficult question here arises whether the Crown can grant its fiat in the form that the petition shall be tried elsewhere than in England or Ireland. Clearly the machinery of the Petitions of Right Act, 1860, is only intended for trials in England; hence the Petitions of Right (Ireland) Act, 1873, which was passed for the purpose of extending that machinery to Ireland. But it is equally clear that these Acts did not affect the prerogative, except so far as they specifically did so, and that they preserved the old practice, while supplying a less cumbrous alternative. Under the old practice the passages already cited show that there was no limitation suggested to the power of the Crown to send a petition of right to any Court at will, though, of course, the question of granting a fiat for a trial abroad was probably not present to the minds of the writers.

The author, therefore, is of opinion that a fiat could be granted for trial in any British Court anywhere, but subject to these suggested qualifications: (a) The matter must be one which would be within the jurisdiction of the local Courts, if it were a suit between subject and subject. The Crown has constitutionally erected the local Courts with certain jurisdiction, and it would not be competent for it, by a prerogative act, to extend or affect that jurisdiction. (b) The fiat ordering the trial must not conflict with any local law with regard to actions against the Crown or Government. If the matter were one which could be dealt with by an action or other proceedings against the local Government under the local law, it would not be competent for the Crown, by its fiat, to substitute another process for the process so provided by the local law. (c) The matter must be such that the judgment, if in favour of the suppliant, would be satisfied out of the imperial and not out of the local revenues. For cognate discussions as to petitions of right in England on claims arising abroad, see above, pp. 340, 360. It is true that no machinery exists for such a