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Statute of Petitions (u), which, after reciting the grievance to the folk who come to the king in Parliament by the throng of the petitions, whereof the most part might have been despatched by the Chancellor and the Justices, provided that all petitions which touch the Seal do first come to the Chancellor, and those which touch the Exchequer do come to the Exchequer, and those which touch Justices in law of the land do come to Justices, and those which touch Jewry do come to the Jewry Justices. Secondly, the Ordinance of Petitions (x), which enacted that "all petitions which shall be delivered unto them whom the king has assigned to receive them, shall be at once well examined, and that those which touch Chancery be set in one, and those which touch the Exchequer in another place; and so with those which touch the Justices, and those which be before the king and his council in other places."
It is not too much to suppose that these two statutes did something to diminish the number of parliamentary petitions by transferring such petitions as were obnoxious thereto, leaving a residuum of proper applications to Parliament. But it was not so much the operation of these two statutes as the classification of this residuum, and consequent reform in procedure with regard to a great number of them, which took place about a hundred years later, which effectually placed petition of right in its present position.
That some classification of this residuum, according as Others to it required the attention of the king, the council, or ment, Parliament itself, should have been made, was but natural. Accordingly, in the reign of Richard II. there appears upon the Rolls of Parliament this notice: "Quant as ditz
(u) 8 Ed. 1.
(x) 12 Ed. 1, and see Palgrave's King's Council, p. 23.
petitions et billes le Roy voet que celles que ne purront estre esploitez sanz parlement, soient esploitez en parlement, et celles que purront estre esploitez par le Conseil du Roy soient mis devant le Conseil, et celles Billes que sont de grace soient baillez au Roy mesmes" (y). This led to a threefold division of bills or petitions, viz. into Bills of Parliament, Bills of Council, and Bills of Grace (z).
Petitions containing claims against the Crown, or as we now call them "of right," were ranked amongst the last of these classes (a), and it is due to this circumstance
(y) Rot. Parl. 7 Rich. 2, No. 50, vol. iii., p. 162-3.
(z) Palgrave's King's Council, p. 79. It seems clear, however, that the practice of separating petitions which concerned the king, from the rest, must have prevailed before this, say as early as 6 Ed. 3, since the Rolls of Parliament for that year contain a direction how the triers of petitions are to deal with those endorsed "coram rege" (Elsynge, 277).
(a) The way in which this conclusion has been reached is as follows: In the first place, what we call petitions of right were originally only some of the many petitions which were sued and answered in Parliament, since (a) many such petitions appear upon the Rolls of Parliament, and (b) Staunford (Prerog. cap. xxii. fol. 72 b) shews that this practice continued to his time, when he says, "petition of right may be sued as well in the Parliament as out of the Parliament;" and see further upon this point Palgrave's King's Council, pp. 23-25. And secondly, that neither the statute nor ordinance of petitions had the effect of transferring them to other tribunals, since they are found upon the Rolls of Parliament subsequent to the respective dates of these enactments. Then upon the introduction of the notice mentioned in the text they must have been ranked as petitions of grace and favour for the following
(1.) This class was made up of petitions which "concerned the king,” see Elsynge, p. 288, and the Act of 36 Ed. 3, n. 31, cited Elsynge, p. 292, which recites," whereas if any petitions concern the king, the lords assigned to hear them endorse them 'coram rege,' and so nothing is done: there could hardly be any petitions which concerned the king more nearly than those which sought to deprive him of some of his property."
(2.) If not endorsed "coram rege," then they must have been endorsed
per auctoritatem parliamenti" (Elsynge, p. 294), and proceeded with and answered in the king's absence; but the practice which has prevailed to the present day shews that
that they owe their present position. How this division of petitions operated in favour of this survival is as follows.
Although the practice and procedure upon all petitions was, as we have seen, originally the same, yet after this division a difference was introduced. "Bills of Parliament," even if they had been formerly referred, were now heard and determined in open Parliament, and the royal assent to such decision having been obtained, became what we should now call Acts of Parliament.
"Bills of Council," in which class were included all the and to "the rest of the parliamentary petitions, except those for which the personal answer of the king was requisite, were dealt with in the following way: the old procedure was entirely reformed; they no longer went before Parliament to be referred to a commission, but the council itself took the place of the commission, and with extended powers not only investigated but heard and determined them. However this hearing and determining was at first conducted, it apparently soon became usual for the council to deal with different sections of such petitions by committees of its own number; these committees became in course of time independent tribunals, the Chancellor became the head of the Court of Chancery (b), and such Courts as those of Privy
nothing can be done in the matter without the express personal
(3.) Petitions of right are, strictly speaking, petitions of grace and
(4.) The supposition that petitions of right were so classified is the only one sufficient to explain the cause of their gradual removal from parliamentary control, until at the present day they are not sued in Parliament at all.
(b) Palgrave's King's Council, p. 94.
Council (c), Star Chamber (d), and of Requests (e) came into existence, and gradually assumed jurisdiction in all such cases as had formerly been committed to them, to the exclusion of the council from which they sprang; but they retained, just as the council had done, the outline of the old procedure by petition and answer.
Thus were the bulk of what had been formerly parliamentary petitions distributed amongst other tribunals, and became Acts of Parliament, suits in Equity, or proceedings in the Star Chamber, Privy Council, and Court of Requests. But while these changes were developing themselves "of right" with regard to such of the parliamentary petitions as were transferred, «Bills of Parliament," or "Bills of Council," the position addressed of "Bills of Grace," in which class were included those
which contained claims against the Crown, remained the same as they were, unaffected by any of the foregoing statutes or orders, save that although people could, it was no longer necessary to sue them in Parliament, but they might be "baillez au Roy mesmes." An answer or endorsement, however, had still to be obtained from the king, and was still given in the old terms, and the commission still issued thereon to investigate the suppliant's title, and then hand over the matter to a court of law. This revised procedure has lasted until the present day absolutely unchanged, a genuine relic, it is submitted, of the old practice upon petition in Parliament to the king, and it is thus that petitions containing claims against the Crown became the sole possessors of the title borrowed from the endorsement, petitions" of right."
In the year 1860, however, this procedure was considered cumbersome and obsolete, and therefore an Act was passed (23 & 24 Vict. c. 34), known as Bovill's Act, which, without
(c) Palgrave's King's Council, pp. 97-100.
(e) Ibid. pp. 77 and 99.
abolishing the old, introduced as an alternative a new mode of procedure, the details of which will be found in the Act itself, printed at the end of this volume. It is the practice under this new Act and not the old practice which is the subject of this work.
Such is the history of the procedure by petition of right; Original use of with a few words upon the development of its uses this petition of right. chapter closes.
In the preceding pages the statement has frequently been made, and taken for granted, that the only claims which were made against the Crown upon a petition, such as we now call "of right," were for the restitution of property. That this was so appears incontestable from an To obtain examination of the old abridgments, such as Fitzherbert's of specific and Broke's, which, though professing to contain an accu- property, rate digest of all the cases upon petition of right, do not debts or damages. contain a single one in which a debt or money claim upon the Crown is recovered by this means. The time has now arrived when it should be shewn how and why this
It is not that there is anything extraordinary in the Reason for necessity for some form of procedure by which property wrongfully taken by the Crown could be regained, the feudal system, with its elaborate machinery of fines, forfeitures, and escheats, sufficiently accounts for that; what is perhaps remarkable, is that the foregoing description of the uses of petition of right excludes the possibility of Crown creditors making use of it to recover their debts, although they must have been equally entitled to payment, but for different reasons. It certainly does at first sight seem surprising that a subject could recover, by this means, lands or goods when taken by the Crown, when one who had lent or paid money could not.
Now if this statement necessarily implied that money so