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or special tribunal.
Where a special tribunal was created the commission therefor issued under the Great Seal from the Chancery or office of the Chancellor, which, as we know, always accompanied the king wherever he went (n); the warrant for the issue thereof being the direction endorsed by way of answer upon the petition (0).
The words of the commission probably followed the words of the endorsement, in which case it would be in no particular form, but consist of a simple direction to the persons named to investigate the suppliant's claim, and to do what “reason," "justice," "right," "law" or "good faith" demanded (p). Such was the usual answer or endorsement not only to such petitions as would now be called "of right," but also in other cases. It is difficult at this distance of time to estimate what the exact value or propriety of this direction to do "justice," "right," "reason," &c., in the matter was, or whether any different result followed according as one or other of the expressions was used, though Lord Somers
monalty of Bonland "Soient certaines gentz assignez d'oier et t'miner
"Soient assignetz bones gentz d'enquere la vite and retne en Chanc' et fait dreit;" 15 & 16 Ed. 2, No. 65, vol. i., p. 399. "Seit le Roy certifie sur la cause & en Chanc' et illoeq' fait dreit;" 15 & 16 Ed. 2, No. 84, vol. i., p. 402.
(n) "When the king travelled he was followed by the chancellor, masters, clerks and records. On these occasions it was usual to require a strong horse, able to carry the rolls, from some religious house bound to furnish it" (Palgrave's King's Council, p. 14).
(0) "After the petition is endorsed, it shall be delivered to the Chancellor of England, and then shall there be a commission awarded out of the Chancery" (Staunford's Prerog., cap. xxii., p. 72 b).
(p) See the answer to the petitions in vols. i. and ii. of the Rolls of Parliament, passim.
fancied he noticed (q) that the direction to do right (droit) was never given in cases of petition touching the revenue; if, however, we may argue from results, and see what happened in consequence of such direction, then it would seem to be the corollary to the judge's or commissioner's investigations, and in the nature of a warrant for what was to be done when the investigations had ceased, viz., that the matter should receive a legal or equitable decision. If, for example, the matter upon investigation disclosed a question of title to property, and the direction was "to do what right and law demanded," it meant that the commission or tribunal to which it was referred was, if a court of law, to decide according to law, or, if not, to refer the matter to some court of law that could.
Such was the general practice upon petition to the king Same or king in council in Parliament; the way in which it petitions of operated upon those petitions which contained claims against the Crown, and were therefore such as we now call "of right," was as follows: the initial stages were the same except that the answer had to be given by the king personally, the answer was the same in terms, viz., that certain persons should investigate and "do what was right or just;" upon this the commission issued as in other cases, but as the questions raised by such petitions, which were always for restitution of property, were always questions of the title to property, in such cases the commissioners did no more than investigate the truth of the suppliant's statement, and then handed the matter over to a court of law to be adjudicated upon after plea by the Crown (qq). At what
(2) The Banker's Case, 14 Howell's State Trials, 1, at p. 60.
(97) The precise steps in this proceeding were as follows. The finding of the Commissioners was returned into the Chancery. If the allegations in the suppliant's petition were found to be true the Crown was called upon to plead, and the plea being entered the record was made up and sent to be tried into the King's Bench, and there remained until
time this practice of handing the matter over originated, it is difficult to say, but we find it existing at the time of the "Book of Assizes." (See Bro. Abr. Peticion, 17.)
This practice is well illustrated by two petitions, the one for lands and the other for goods taken by the king's officers, which we find recorded upon the Rolls of Parliament in the reign of Edward II., and which, being short, we give verbatim :
The first is in these words: "A nostre Seigneur le Roy et a son Conseil pry le soen Vallat Richard de Cave, qil veille, pur l'amour de Dieu et pur le s'vice q'il ad fait, si pleisir lui soit, comaunder Brief a Rob't Destokes a deliverer la terre q'il ad seisi en la meyn n're Seigneur le Roi, sicome l'avaundit Richd fust unques nulle part encountre le Roy, et de ceo pri il a tres honourable et a son Conseil, q'il veille commaunder Brief au Viscounte de Buckyngham d'enquere la verite de ses faits et de son port. Et pur Dieu, tres honourable, veilley avoir regard a ceo qe l'Evesqe de Ely et le Seign'r de Somery et autres, tout pleyn ount testmoignez de lui sa demoer en l'isle de Ely.”
Responsio: "Seit le Roi certifie sur la cause, &c., en Chanc. & illoeq. fait dreit (r).
The second as follows: "A nostre Seigneur le Roi et son Conseil monstre Marie de Shepey q come ele fust ove Johanne q' fust la femme Monsieur Hugh de Tuilly, come Damasaille de sa Chambre, en le Chaxtel de Kenelworth, le Viscounte de Warr' vient et seisi le dit Chaxtel en la mayn n're Seigneur le Roi et prist le dit Hugh et touz les bienz en le dit Chaxtel trovetz: entre quey la ditte Marie adveit II cloches, III tapites, IIII quiltes, IIII linceux, et
judgment, for a record having once come into the king's bench, it shall never go from thence:" if the allegations contained in the petition were not found to be true the petition abated.—Staunford's Prerogative, 77, b.
(r) 15 & 16 Ed. 2, No. 65, vol. i., p. 398: Richard de Cave's Case.
IIII dount la dite Marie prie au dit nostre Seigneur le Roy et son Conseil la deliveraunece des bienz avauntditz."
Responsio: "Seit associe ascun hom'e au Vic' d'enquere la verite de ceste chose et l'enqueste ret'ne seit fait en Chanceler" " (8).
Such was the old Common Law practice upon petition of Survival right, and such it has remained up to the present day, and procedure. the question naturally suggests itself how it has happened that those petitions which contained claims against the Crown have emerged from the mass of other petitions to the unique position they now enjoy, and have appropriated to
(s) 15 & 16 Ed. 2, No. 89, vol. i., p. 402: Mary de Strepey's Case. Other instances are 15 & 16 Ed. 2, No. 98, vol. i., p. 404: Prior of Newborough's Case, claiming a rent-charge issuing out of a mill seized into the king's hand. Responsio: "Ostendat in Cancell' id quod habet de redd' et inquirat' veritas et fiat ulterius justicia. 15 & 16 Ed. 2, No. 102, vol. i., p. 405: Sir Robert de Richer Widow's Case, claiming the return of a manor seized into the king's hand, and praying "q' la verite de ceste chose seit enquise et q' droit li seit fait outre en ceste bosoigne." Responsio: "Assignent' cti' Justic' ad inquirend' veritatem facti, in p'sencia Custod' et ret'net' Inquisicio." 15 & 16 Ed. 2, No. 103, vol. i., p. 405: Margery Calviton claiming dower out of certain lands seized into the king's hands. Responsio: "Seient assignez certaines gentz d'enquere en due forme des choses contenues en ceste Peticion, et l'enqueste ret'ne seit feit dreit." 15 & 16 Ed. 2, No. 130, vol. i., p. 409 : Robt. de Staunton's Case, claiming the return of lands seized by the king's escheater. Responsio : "Seit viewe l'enqueste ret'nee en Chanc' et illoq's fait drett." 18 Ed. 2, No. 30, vol. i., p. 424: William de Multon, for land seized into the king's hand, and praying a lour Seigneur le Roy qe droit et resoun les soit fait." Responsio: "Assignantur fideles in Cancella' ad inquirend' in p'sentia Custodis & super contentis in Peticione et aliis articulis necessariis, veritatem: et retornata Inquisitione in Cancellaria, si comperiatur per eandem quod Petitio supponit tunc ulterius ibidem fiat justicia.” 18 Ed. 2, No. 36, vol. i., p. 425 : Robert of Grimsdale's Case; 19 Ed. 2, No. 1, vol. i., p. 431; 19 Ed. 2, No. 8, vol. i., p. 433: Hatfield Broad Oak Priory's Case; 19 Ed. 2, No. 32, vol. i., p. 438: John de Wyke's Case; 2 Ed. 3, No. 4, vol. ii., p. 14: Andrew de St. Livy Case; 2 Ed. 3, No. 41, vol. ii., p. 26: Dean and Chapter of Bangor's Case; 4 Ed. 3, No. 19, vol. ii., p. 34; Randolf de Dacre's Case, &c.
themselves both the procedure and title which, if it is derived, as we shall hereafter see it is derived, from the endorsement, was originally equally applicable to a large number of other parliamentary petitions.
The reason seems shortly to be this, all the other petitions survival. have been transferred to and assimilated by other tribunals, or retained by Parliament upon a different basis and with an altered procedure, but that, for reasons which we shall hereafter state, petitions containing claims against the Crown never were transferred or altered, but were retained by Parliament in their original shape; and that they have gained the exclusive right to the title "petitions of right" solely by the disappearance of all the other petitions which formerly shared with them this name.
How this change was brought about appears to be as follows.
Some to the ordinary legal tribunals.
By transfer of
In progress of time the people seem to have abused the other than facilities of petitioning which were afforded them, and to have brought to Parliament many applications which could well be disposed of elsewhere. Attempts were made to litigate there claims, for which appropriate writs and remedies were already provided, and allowances asked which could quite well have been made by the Court of Exchequer. Why this should have been so it is difficult to see; possibly the sessions of Parliament, although irregular, were more frequent than the circuits of the judges, or the procedure less technical; but, from whatever cause, the fact seems to be indisputable (t).
It became necessary, therefore, in the interests of those who were rightfully invoking the assistance of Parliament, to put a stop to this abuse.
This was done by the aid of two statutes. First, the
(t) "No man who could approach the Council would content himself with the Common Law" (Palgrave's King's Council, p. 32).