United States.—The right to petition the Government for a re dress of grievance is safeguarded in the United States by its in clusion in the 1st amendment to the Federal Constitution. It forms part of similar constitutional bills of rights in the various States. It is only natural that the early statesmen in the United States, enamoured with those individual liberties that they con ceived to be the heritage of all free-born Englishmen, should take care to make such rights part and parcel of their fundamental law and place them beyond legislative interference. No penalties can thus attach to a petitioner as a consequence of his complaint, though immunity does not attach to scurrilous or libellous matter contained in a petition. The petition was commonly used in the early history of the United States as a means to enforce legislative action. The rise of the press has reduced its political significance. Petitions are, however, commonly presented to legislatures to in fluence their action on pending bills. Rules provide for their introduction and presentation by the members of the legislature. PETITION OF RIGHT. This term is now specifically appropriated in English law to the peculiar procedure by which a subject may sue the Crown. At common law the Crown—a term which is, in constitutional law; merely an abstraction for the king in his official capacity—could not be sued in the king's courts ; the king was, historically, the supreme lord of those courts, administering justice therein between his subjects, and as the supreme lord he was not amenable to their jurisdiction. His writs could not run against himself. Hence a practice arose, where a subject's real or personal property had come into the possession of the king or his servants without legal title, for the subject to "petition" the king in council praying for its restora tion. The king then might or might not in his discretion, refer the suppliant's petition to one of his courts, usually the old court of exchequer, with a writ directing the judges to do what is just. Although the procedure of Petition of Right has now been regu lated by statute, the discretion of the king, or rather of his ministers, is still absolute and no one can sue the Crown directly except by the Crown's grace and favour. This means that none of the Government departments—which are, in theory, merely "emanations of the Crown" and therefore bask in the shelter of its prerogatives—can be sued as a matter of right. The exceptions to this consequence are more apparent than real : a few depart ments such as the India Office, i.e., "the secretary of State for India in council," have been incorporated by statute and thereby have become, what the other Government departments are not, "legal persons" with the power to sue and the liability to be sued. In such exceptional cases one can proceed against them directly, but even so they enjoy all the prerogatives of the Crown, men tioned below, such as immunity from actions for tort, from "Discovery," and from Execution.
Originally the scope of a Petition of Right was confined to issues of fact. Where the subject relied on some title appearing by record, such as letters patent issued by the Crown, he could proceed by what was known as a monstrans de droit or "mani festation of right." This was the procedure adopted in the famous Bankers' Case of 1696-1700 (14 State Trials I) in which certain bankers applied directly to the court of exchequer for a judg ment that the arrears of interest granted to them by letters patent of Charles II., in return for loans, should be paid. The court, in particular C. J. Holt, held that, their plea being "matter of record," the court could, in such a case, proceed without the leave of the king (which was essential in the case of an ordinary Petition of Right) ; a decision which was reversed by Lord Somers on appeal. There was another method, known as a tra verse of inquest of office, by which a subject might in certain cases, such as escheat or forfeiture, challenge the king's title to land or chattels. These antiquities are of little importance to-day in view of the Petition of Right Act, sometimes known as Bovill's Act, of 1861.
The Petition of Right Act (1861) does not create any rights or abolish any old prerogatives. It merely regulates procedure. It
provides that anyone seeking to sue the Crown shall file a peti tion, which is in effect a statement of claim, with the home secre tary, who invariably refers it to the attorney-general for advice. If the latter advises that there is a substantial "cause of action," the home secretary endorses it with his fiat. If he refuses it, the subject is without remedy. The discretion of the secretary of State is absolute and a Mandamus will not issue to compel him to grant his fiat (cf. Irwin v. Grey, 1862, 3 F. and F. 635). In practice the fiat is rarely refused, unless the claim appear to be a purely frivolous one. The fact remains, however, that in such a case the Executive, not the courts, performs a judicial function which, in the case of litigation between subject and subject, is entrusted solely to the judiciary under the Rules of the Supreme Court, namely the function of deciding whether there is a rea sonable cause of action. The grant of the fiat in no way pre judges the issue to be tried and the Crown is entirely free, after having granted it, to plead before the courts that the action does not lie, e.g., it may "demur" on the ground that the sup pliant's claim is one for tort, and it is a rule of law that the king, who "can do no wrong," can never be sued, even by Petition of Right, for the tortious acts of his servants, i.e., Government departments are exempt from liability in this respect.