InEnglish law, apetition of right was aremedy available to subjects to recover property fromthe Crown.[1]
Before theCrown Proceedings Act 1947, theBritish Crown could not besued incontract. However, as it was seen to be desirable that Crown contractors could obtain redress, lest they be inhibited from taking on such work, thepetition of right came to be used in such situations, especially after thePetitions of Right Act 1860 simplified the process. Before the petition could be heard by the courts, it had to be endorsed with the wordsfiat justitia on the advice of theHome Secretary andAttorney-General.[1] This Latin phrase was normally translated as "Let right be done".
One of the most famouscauses célèbres in English law, theArcher-Shee case, arose out of proceedings on a petition of right.[2][3]
Section 1 of the Crown Proceedings Act 1947 allows claims for which a petition would previously have been demanded to be brought in the courts directly as against any other defendant. However, a petition andfiat still appear to be necessary for personal claims against themonarch.[1]
A petition of right was available:[4]
Where the Crown was in possession of the property of the applicant, and thetitle of the Crown appeared by record, as byinquest of office, theremedy was somewhat different and was calledmonstrans de droit.[4] Petition of right was not available in respect of engagements in thenaval,military orcivil service, which, were not generally considered ascontracts of employment but as appointments enjoyedduring the pleasure of the Crown.[4] This relationship based on theroyal prerogative only ended in 1996.[5] Nor was the action available for breach of public duty,e.g. a failure to performtreaty obligations, nor fortrespass ornegligence or othertorts by Crown servants.[4] Where such acts were wrongful the remedy was still by action against the official as an individual and not in his official capacity.[6]
Atcommon law the petition went through its earliest stages inChancery. The petition suggested a right disputing the title of the Crown, and the Crown endorsed the petitionsoit droit fait la partie. Then a commission was issued to inquire into the truth of the suggestion. After the return to the commission, theAttorney-General filed a response and the merits were determined as in anyinter partes action. If the right was determined against the Crown, judgment ofamoveas manus was given in favour of the applicant.[4]
The law as to petitions of right applied toIreland but not toScotland, and a right to present such a petition was also thought to exist incolonies whose law was based on the common law of England. Ultimately, in many colonies legislation was passed with respect to claims against the government which made it unnecessary to resort to a petition of right.[4]