Other existing remedies for recovery of debts.

lent or paid could not be recovered at all, surprise would give place to incredulity, but it does not. Such money could be recovered; but after a certain period in our history it seems clear that it was not recovered by such petition, as we now call "of right.” This statement needs some explanation.

To understand how and why this was so, it is necessary to remember that in the early days of our history the "treasure" of the country was literally the king's treasure, it was kept in his house or palace (ƒ), and in the custody of his officer (g), and that later, though the place where it was kept was changed and the officers who had control over it multiplied, it still remained what it was originally, the king's treasure both in theory and in fact; of which there is no better evidence than the circumstance that the king was the only person in the country who could give a valid warrant for disbursing any of it (h). Secondly, that this treasure had its own appropriate staff of officials, viz., the Treasurer, Chamberlains, and Barons of the Exchequer, to take charge of and investigate all claims which were made upon it.

Bearing these two facts in mind, it would not be unnatural to suppose that the payment of debts due from the Crown was obtained by some procedure only addressed to the person authorized to issue, and the officials conversant with the mode of issuing the public money, and that if suit by

(ƒ) Madox Ex., vol. i., p. 154; Stubbs, Constit. Hist., vol. i., p. 428. (g) Thesaurarius regis, ibid.

(h) "The law has entrusted the king himself only with his treasure when once it comes into his coffers, which is the receipt; and only he or such as are empowered by warrant can dispose of it; no Court has anything to do with it." Per Lord Somers in the Banker's Case, 14 Howell's State Trials, at p. 68. "It was resolved in Sir Walter Mildmay's case that no officer of the king, nor all of them together, can issue out or dispose of the king's treasure ex officio, though it be for his honour or profit, unless by a warrant from himself" (Coke, 11 Rep. 91 b).

petition of right was ever applicable to this purpose, it would eventually be superseded by some more special form of process.

Now there seems some reason for doubting whether a petition of right, i.e., one endorsed "soit droit fait aux parties" was ever applicable to this purpose. Lord Somers himself, after an exhaustive search through the original petitions then known, and a thorough study of Ryley's 'Placita Parliamentaria,' says that "as the endorsements upon petitions of right were various according to the nature of the case, so above all others they were different in cases belonging to the revenue; and," he continues, "I think there is not an instance to be found where such petitions were answered 'soit droit fait aux parties"" (i). But, whether originally appropriate or not, it seems to have been abandoned for some more special form of proceeding.

This special form seems to have been as follows. The petition was still presented in Parliament, and the king still answered it, either by paying the claim outright or referring the matter to the Exchequer.

tion for a

If the claim was paid outright, then the petition was By petianswered in some such terms as the following: "Fiat breve "liberate." de Cancellaria de liberate thesaurario et camerariis quod liberent supplicanti tantam summam." Upon this a writ of “liberate” (k), namely, the special writ under which the Exchequer officials were authorized to disburse money, issued for the amount under the Great Seal in favour of the suppliant. Instances of this course of proceeding are Aynesham's Case (7) and Estretelyng's Case (m), the former of whom presented his petition for work done and materials

(i) The Banker's Case, 14 Howell's State Trials, at p. 60.

(k) 4 Inst. p. 116; Madox Ex., vol. i., p. 390.

provided for the repair of Carnarvon Castle-the latter for money laid out in the king's service.

If the matter was referred to the Exchequer, then the petition was answered in some such terms as the following: "Mandetur ista peticio thesaurario et baronibus de scaccario et sequatur coram eis" (n), or "Fiat breve de Thesaurario et Baronibus de Scaccario quod auditis querentis rationibus & si necesse fuerit satisfaciant eis de & si que &" (0), in which case the Treasurer and Barons heard and determined the matter, and if it was necessary to pay the suppliant anything, the endorsement on the petition was sufficient warrant therefor (p).

It must not be supposed that this variation in the form of the endorsement was a mere question of words, on the contrary it corresponded with a substantial difference in the form of procedure; for example, upon such endorsements there was no delivery of the petition to the Chancellor, no Difference assignment of "fideles et sufficientes" out of the Chancery to try the truth of the suppliant's title, no return of their "of right" finding into the Chancery "and doing of right" thereon, "liberate." but the matter was sent straight to the Exchequer and there

between

petition

and for

heard and determined, such petitions not being petitions of right that is to say, they were not treated as such.

There being, therefore, a special procedure for the payment of debts, the procedure by petition of right was limited to cases in which property was sought to be recovered from

(p) Lord Somers enumerates amongst the authorities under which the Barons can pay money out of the Exchequer, "cases where they have acted by virtue of the king's answer indorsed upon petitions made to him in Parliament, which answers to such petitions generally order a writ to issue out of the Chancery which gave a jurisdiction to the Treasurer and Barons respectively, to act according to the effect of the answer" (The Banker's Case, 14 Howell's State Trials at p. 47).

the Crown, and became allocated to that particular species of claim. That this was the single use of such petitions up to the reign of Queen Elizabeth, a reference to the cases collected in Broke's 'Abridgment' will show, and an examination of the Reports from that reign to the year 1874 gives a like result.

In the year 1874, however, the Court of Queen's Benchwhether rightly or wrongly we will not now stop to consider (q)-held (r) petition of right applicable to cases of contracts, and that unliquidated damages and à fortiori debts could be recovered from the Crown by this means, since which decision it has been very freely applied to this purpose, and its use therefore very much extended.

With this account of the history and development of the uses of petition of right we pass to a consideration of the mode in which it has acquired its present title.

(9) The whole of this question will be found discussed in Chapter 10, infra.

(r) Thomas v. Reg. L. R. 10 Q. B. 31; 44 L. J. Q. B. 9; 31 L. T. 439; 23 W. R. 176.

CHAPTER III.

WHY A PETITION OF RIGHT IS SO CALLED.

Staunford's VARIOUS explanations have from time to time been given derivation. of the reason why petitions of right are so called, the most

Objections

to.

universally accepted one being perhaps that given by Staunford, viz., “that it is so called because of the right the subject hath against the king by the order of his laws to the thing he sueth for " (a), the prayer of it being grantable "ex debito justitiæ" (b); but there are reasons for not accepting this derivation.

In the first place it is extremely doubtful if the subject has or ever had any "right," in the strict legal sense of the word, "to the thing he sueth for," even if his claim be well founded.

Strictly speaking, a man would hardly be said to have a right to a thing unless he could recover by action it or its value from any one who deprived him of it, unless he had, that is to say, a "jus persequendi in judicio quod sibi debetur" (c); but where the Crown is concerned it is perfectly certain that he has no such right, it being the absence of this right that has called the proceedings by petition into existence; and when it is said that the prayer of it is grantable "ex debito justitia," we should remember what a famous judge said (d) in answer to such a contention,

(a) Staunford's Prerog. cap. xxii. fol. 73.

(b) Chitty's Prerog. p. 345; Broom's Legal Maxims, edit. 1884, p. 53. (c) Coke Litt. p. 285 a.

(d) Per Maule, J., in Baron de Bode's Case, 13 Q. B., note at p. 387.