The injury must be a

injury."

CHAPTER VII.

FOR WHAT A PETITION OF RIGHT WILL NOT LIE.

THE object of this chapter is to draw attention to a certain class of cases in which it has been held that a petition of right will not lie.

In the first place a petition of right cannot be maintained "legal for any act of the Crown or its agents which does not amount to a legal injury to the person to whom the act is done; for any act, that is to say, for which, if done by one subject to another, no action could have been maintained.

Mr.

Anstey's theory

Obvious and reasonable as this doctrine seems, the opposite view used not long since to be maintained. It seems to have been thought that it was sufficient if the suppliant's claim against the Crown was founded on "justice,” if, that is to say, he could shew that he had what is popularly called a moral claim upon the gratitude or benevolence of the Crown, or that he laboured under some hardship which the existing laws were inadequate to remove.

This latter view, which subsequent decisions have shewn to be erroneous, found a very strenuous advocate in Mr. Anstey, who, in his "Letter to Lord Cottenham as to the Law and Practice upon Petition of Right" (a), defines a petition of right to be “a suit of the subject to the Sovereign in every case where there is a failure of the necessary jurisdiction in all inferior Courts for doing him justice;" and the criterion which he proposes to establish for enabling

(a) London, 1845.

any one to judge whether in any particular case a petition of right will lie is "the justice of the case stated by the suppliant." But how this is to be decided without any reference to the law of the land it is difficult to see.

one.

The origin of this misconception of the nature of a peti- a mistaken tion of right is not very difficult to trace. Any one who looks, as the author of the foregoing letter had looked, at the Rolls of Parliament in which the earliest applications to the Crown by petitions are to be found, cannot fail to be struck with the fact that in a large number of cases applications are made to the benevolence of the Crown where the suppliant has no legal claim upon the Sovereign; that cases such as Cadell's (b), in which the suppliant prays for a reward because he has lost his brother and cousin in the wars in Ireland, are by no means infrequent.

The fallacy lies in supposing that all the applications recorded in the Rolls of Parliament must be petitions of right; in not recognising that therein are recorded all petitions, be they of grace or right, as we should now call them; that at the time when those records were compiled, petition of right, as we now understand it, did not in all probability exist at all; and that a spontaneous act of generosity done by a king upwards of 600 years ago cannot be made the measure of what can be legally extracted from his successors.

It is needless, however, to follow this line of argument further, for whatever may have once been the authority of such a proposition, it is now too well settled that no relief can be expected from the Crown in such cases. Such a theory is, perhaps, best answered in the words of the late Justice Maule, who, when the late Sergeant Manning suggested in the Baron de Bode's Case that the proceeding by petition of right did not render it necessary for the (b) Ryley's 'Placita Parliamentaria,' p. 414.

The true theory

given in

The Queen.

suppliant to shew a legal right, and that it was sufficient for him to shew that his claim was founded on justice, replied (c) "that neither the Queen's Bench or any other Court of law administered justice in general, and that if the suppliant's claim was not cognisable by the Queen's Bench as a claim in law it might be that the Court had no power to give any judgment at all."

A further answer may be found in the words of the Court of Queen's Bench in the case of Feather v. The Queen (d). Feather v. "It must be borne in mind," they said, "that a petition of right, unlike a petition addressed to the grace and favour of the Sovereign, is founded on a violation of some right in respect of which, but for the immunity from all process with which the law surrounds the person of the Sovereign, a suit at law or equity could be maintained. The petition, therefore, must shew upon the face of it some ground of complaint which, but for the inability of the subject to sue the Sovereign, might be made the subject of judicial procedure."

cannot sue

injuries.

The subject It must not be inferred, however, from the foregoing by petition words that every violation of right or legal injury for which for all legal an action would lie by one subject against another can, if committed by the Crown or its agents against a subject, be the foundation of a petition of right; and that the rights and remedies which a subject has against the Crown by petition are co-extensive with those which he has against his fellow-subjects by action. Such an inference would, as we shall see hereafter, be entirely erroneous. In the first place it would be wrong to make the rights and remedies which exist between subjects the measure of those which exist between subjects and the Crown, since historically they are unconnected and have been developed on entirely (c) 13 Q. B. at p. 387, note.

(d) 6 B. & S. 294; 35 L. J. Q. B. 200; 12 L. T. 114.

different principles; and in the second place there are some acts which are legal injuries when done by a subject, but are not so when done by the Crown. One subject, for instance, can sue another for an assault, but he has no remedy in such a case by petition of right against the Crown.

Still, it may help us to understand the position of the subject towards the Crown if we take the legal injuries which fellow-subjects are capable of inflicting upon one another, and at once eliminate therefrom such as are inapplicable where the Crown is the defendant; and this is the method which we propose now to adopt.

All the legal injuries which one subject can inflict upon Division of legal another are contained in two classes, they are either breaches injuries. of contract or torts. We do not propose to give here any definition of a tort or a list of the legal injuries which have been determined to be such, these the reader will find in the text-books upon the subject. The purpose for which this division of injuries has been given is to enable us to point out that no petition of right can be maintained against the Crown for any act of its own or its agents done to a subject which, had the same been done by one subject to another, would have been a tort for which an action could have been maintained, or to put the same thing in shorter but less

accurate language-less accurate because, as we shall see, The subject the Crown is incapable of committing a tort personally or cannot sue by its agents-no petition can be maintained against the for a tort. Crown for a tort.

by petition

The grounds of this doctrine are as follows:-It is a maxim of the English law that the king can do no wrong, and this principle applies not only to his own personal acts, but also to those which are done by his servants or agents by his express or implied command. The consequence of this is, The reason that as the king can do no tort the suppliant can never why.

maintain a petition of right against the Crown, where he

Autho

grounds his title to relief upon the invasion of some right which he possesses by a wrongful act of the Crown or its servants which amounts to a tort.

There is ample authority for this proposition, although no instance can be found in the books of any such claim until quite recently.

The first occasion upon which this question seems to have Canterbury arisen was in the case of Viscount Canterbury v. The Queen

rities :

v. Reg.

(1843) (e).

The circumstances which gave rise to this question were as follows:

Viscount Canterbury was speaker of the House of Commons, and as such had rooms in the old palace of Westminster assigned to him as a dwelling-house by the king. In another room in the palace the old Exchequer tallies were kept, and these had become so numerous that an order was given to certain persons to burn them. This order was given by the Commissioners of Woods and Forests, and was so negligently carried out that the suppliant's house, containing £10,000 worth of pictures, plate, and furniture, was burnt down in the process. This sum the petitioner sought to recover from the Crown.

To this petition the Attorney-General demurred, and upon the argument the question was raised whether, assuming the persons whose negligence caused the fire were the servants of the Crown, the Sovereign could be made liable.

Lord Lyndhurst, the Chancellor, in giving judgment, said: "There is a difficulty in the way of the petitioner which struck me at the very commencement of the argument, and to which I have not heard a sufficient answer. It is admitted that for the personal negligence of the Sovereign neither this nor any other proceeding can be maintained. On what ground then can it be supported for (e) 12 L. J. Ch. 281; 1 Phillips, 306; 7 Jur. 224.