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THE LAW RELATING
PETITION OF RIGHT.
DEFINITION AND ORIGIN OF PETITION OF RIGHT.
A PETITION of Right is a petition presented by a subject Definition.
The object of this work is to show for what infringements of his legal rights a subject can present such a petition, and the nature of the redress which he will obtain should he establish his claim to it, as well as the method of proceeding upon such petition.
It is necessary, however, first to say something of the origin and nature of petition of right, whence it derives its name, and by and against whom it may be employed.
The practice of proceeding against the Sovereign for the Origin. redress of injuries by a petition of right seems to owe its
(a) The person presenting the petition is usually called the " "suppliant," the Crown "the respondent," and the answer given by the Crown "the endorsement" or "fiat."
•The two theories stated
origin to two facts of our constitution, the first being that no action of any sort or kind will lie against the Crown (aa), the second that the proper mode of approaching the Sovereign, for the redress of grievances or to solicit acts of grace and favour, is by petition.
Writers upon the subject have hitherto (b) relied upon the extinction of the right of action solely to account for the origin of petition of right as if the latter were the necessary corollary of the former; it is well, therefore, to point out whence this method of proceeding derives at least its form.
Of the circumstances which led to claims against the Crown being preferred by petition of right, at least two opinions have been entertained, the first, and one that is very current, is that it is due to an express enactment of Edward I., by which it was ordained that all claims which had theretofore been brought by action against the Crown should in the future be sued by petition; the Crown, that is to say, stopped the subject's right of action against itself which had existed up to that time, and substituted for it a proceeding called a petition of right (c); the second opinion is that no right of action ever existed against the Crown, but that redress in such matters being a pure matter of grace or favour, had to be asked as every other favour from the Crown, by petition.
At this distance of time it is very difficult to determine which of these opinions is correct. The onus of proof, however, seems to be upon those who assert the existence of the right of action and enactment of Edward I.;
(aa) Com. Dig. Action, c. i.; Dicey's Parties to an Action, 5; Chitty's Prerog. 339.
(b) Chitty's Prerog. 339, note (e), and authorities there cited.
(c) Cutbill's Inquiry into the History and Nature of Petition of Right (8vo., London, Sweet, 1874); Allen's Essay on the King's Prerogative; Chitty's Prerog. 339.
we shall, therefore, state the evidence for and against this contention, and leave the reader to judge of its sufficiency.
The evidence in support of it is as follows:
First: A statement of counsel (arguendo) to that effect in a case reported Y. B. 22 Ed. 3, 3, pl. 25; his words are "In the time of King Henry (III.), and before, the king was empleaded as another man of the people would be, but king Edward his son ordained that a man should sue against the king by petition."
Secondly. A dictum of Wilby, J. (Y. B. 24 Ed. 3, 55 b), "that he had seen a writ directed 'Præcipe Henrico regi Angliæ,' in place of which is now given petition by the prerogative."
Thirdly. Another statement of counsel to that effect in a case reported Y. B. 43 Ed. 3, 22. Candish was the counsel, and he said, "Sir, in the time of King Henry the king was but as a common person, for at that time a man could have a writ of entry sur disseisin' against the king and all other manner of actions as against another person."
Fourthly. Another statement of Wilby, J. (Y. B. 13 Ed. 3 Fitzherbert, tit. Brief, 260), that "the petition is the petitioner's original writ against the king." The evidence against it is as follows:
First. That no such writ has yet been found. Secondly. That no such enactment of Edward I. has yet been found.
Thirdly. The adverse statements of text writers.
Bracton, in treating of the assize of novel disseisin (temp. H. 3), expressly says: "If the ejector be a prince or a king or another who has no superior unless the Lord, there will be no remedy against
him by an assize, on the contrary there will only be place for a supplication that he will correct and amend his deed" (2 Bk. 3).
Broke (temp. Eliz.) appends to the two dicta of Wilby given above the following comments: "Quære de tel brief, car videtur quod nunquam fuit lex car le roy ne poet escrier ne command luy mesme (Abridgment, tit. Pet. 12), and "Quod nota et quære comment car le proces sera nomine regis, quod ne poet estre vers luy mesme (ibid. tit. Prærog. 2) (d).
Staunford, Prerog. Regis (1573), gives his opinion to the same effect. "Howbeit" (saving reformation of these books, i.e., the dicta of Wilby's above quoted), “I think the law was never so that a man should have any such action against the king" (cap. 15, fol. 42).
Fourthly. The improbability of such being the case considering the state of the law at the time.
(a.) "It is not probable that the subject would have a defined right to a writ against the king when the rights between subject and subject and the writs for enforcing them were in an unsettled state (per Willes, J., Tobin v. Reg. 16 C. B. N. S. 310; 33 L. J. C. P. 199); or,
(b.) That the king should if necessary have to wage his battle as an ordinary subject.
With this statement of the case we propose to leave the decision to the reader.
Origin of the right of
Both these theories, however, presuppose a right of petitioning approaching the Sovereign by petition, and it may be asked
(d) A further illustration of this principle appears in the fact that the king could never be vouched to warranty in a real action, because a writ of voucher could not run against him.