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ties to shew what could be recovered upon them; because The reason no record of the proceedings subsequent to the answer to omission. the petition having been preserved upon the Rolls, there is no record of the judgment delivered. All that is to be found is the petition and answer; whether thereupon the king or the subject recovered there is no means of knowing. In the second place, although by the light of subsequent knowledge it is possible to be satisfied that the petitions recorded in the Rolls of Parliament are the ancient counterparts of the modern petition of right, yet it is not so easy to get rid of the impression that a petition of right then and now are two slightly different things, the former being as it were but the germ of the latter, and that therefore any argument from the one to the other may be fallacious.
For these reasons it has been thought best throughout this work not to carry the search for precedents higher than the decisions by courts of law upon petitions of right to be found originally in the Year Books and then digested in the old Abridgments, such as Fitzherbert's and Broke's.
The cases are usually cited in the words of the Digest, but it must not be supposed from this that the original reports have not been consulted; on the contrary, the two have been carefully compared, and it has generally been found that no very useful addition could be made to the note of the case given in the Digest.
Lastly, a word must be said as to the continuity in the Discontinuity in line of cases upon petition of right from the earliest to the the line of present time. No one who reads the following pages can te help being struck by the fact that there is a very considerable gap in the series of decisions, and that, roughly speaking, there appear to be no cases upon petition of right from about the year 1550 to the year 1800.
The reason why this should be so is not very easy to find, but the following explanation may be suggested. In the
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first place it should be remembered that the largest proportion of the lands and property which came to the hands of the Crown came through the working of the feudal system and the fines, forfeitures, and escheats occasioned thereby; and that originally petition of right was the only means by which this could be recovered. This accounts for the large amount of business at first transacted thereon, while the decline in it arose from the following causes. In the reign of Edward the 3rd, to avoid the delay and cost attendant upon petition, two other remedies were introduced for the same purpose, viz., ❝traverse of office" and "monstrans de droit," into which channels a great deal of the business which had formerly been done upon petition was diverted. Comparatively little then remained, and this was put an end to by the abolition of the feudal tenures in the reign of Charles II.
This being so, it is at first difficult to see why petition of right should have ever been revived. The revival seems to have come about as follows. It was not due to any new necessity for a method of recovering land, but rather for some means by which contracts entered into by Crown agents for the supply of the public service could be enforced, in proof of which the fact that all the earliest cases upon the revival were to enforce contracts and not to recover land may be adduced.
Whether this new use of petition of right was and is justifiable is a matter which will hereafter be considered; meanwhile an attempt will be made to classify the cases themselves.
These cases then may be divided into four classes, namely: (1) claims for the restitution of property wrongfully taken and detained by the Crown; (2) claims arising out of some contract made between the Crown and a subject; (3) those in which certain equitable claims have been sought to be
enforced against the Crown; and (4) lastly, those in which certain claims made enforceable by this means by statute were prosecuted.
Each of these classes will be the subject of special consideration, but before proceeding therewith it is necessary to make a general statement with regard to all of them. This is that these cases have been classified so as to include every instance in which a subject has up to the present time rightly or wrongly succeeded upon a petition of right— every decision, that is to say, which has been given in the suppliant's favour has been included. Some of these decisions are possibly open to question, but it has been thought better to include them for what they are worth, than give a narrower classification by which they might have to be omitted. Care, however, will be taken to point out in what particulars those judgments seem open to observation.
Petitions of right for the restitution of property will be now specially considered.
Of petitions for restitution
and the authorities by which they can be supported
In the following chapter will be considered the cases in which a subject can proceed by petition of right against of property the Crown for the restitution of property, and the authorities generally,
by which a proceeding may be supported.
These cases have been put first because they can shew the longest and best title. Long before the subject sought to enforce equitable, statutory or contractual claims against the Crown, his right to the restitution of property by this means was established, this right having been at first confined to the recovery of realty and afterwards extended to chattels. Petitions for this purpose can be traced from the Rolls of Parliament of the reign of Edward II. to the present day, and there is very good reason for believing that they were until quite recently the only ones known to the law. Thus neither Fitzherbert's nor Broke's Abridgment (a) contain, under the title Petition, a single case which is not for the restitution of property, and the definition of petition given by Staunford is equally conclusive.
OF PETITION OF RIGHT TO OBTAIN RESTITUTION OF
The authorities amongst text writers by which the statement that land and goods may be recovered by this means from the Crown are as follows.
(a) Broke's Abridgment gives in all forty-four cases under the title "Petition," but none are for anything but the restitution of property.
Staunford (b), writing in the year 1573, says: "Peticion is all the remedy the subject hath when the king seizeth his lands or taketh away his goods from him, having no title by textorder of his laws so to do, in which case the subject for his remedy is driven to sue unto his sovereign lord by way of petition only, for other remedy hath he none." Blackstone (c), Comyn (d), and Chitty (e), concur in this statement of the law.
Further authority for the same proposition is to be found in two passages from considered judgments of the Court of Common Pleas and Queen's Bench respectively, both summarizing the objects for which a petition of right will lie. The first is as follows: "The substance of the proceeding decisions, upon petition of right seems always to have been the trial Reg. of the right of the Crown to property or an interest in property which had been seized by the Crown, and if the subject succeeded the judgment only enabled him to recover possession of that specified property or the value thereof, if it had been converted to the king's use" (ƒ). The second is somewhat more extensive: "We (ie., the Court of Feather v. Reg. Queen's Bench) concur with the Court of Common Pleas in
(b) Prerog. chap. xxii., Peticion, p. 73 a. It should be noticed that this passage contains a very characteristic statement of what the writer of it considered to be the true position of petition of right, viz., the ultimate right which the subject had against the Crown supposing the seizure, not being by the order of the law (i.e., by office), did not justify a traverse or a monstrans. He does not discuss the question whether, supposing a traverse or a monstrans are available, a petition is also available, but assumes that where appropriate the former remedies will be always preferred to the latter; and that it is only where they fail that the subject is "driven " to his petition.
(c) Commentaries, book iii., p. 255 (ed. 1768).
(d) Dig. tit. Prærog. D. 78.
(e) Prærog. p. 341.
(f) Tobin v. The Queen, 16 C. B. (N.S.) 310, at p. 357 (per Erle, C.J, Williams, Willes, and Keating, JJ.), 33 L. J. (N.S.) C. P. 199, at p. 207; 10 L. T. 761, at p. 765; 12 W. R. 838, at p. 842; 10 Jur. (N.S.) 1029, at p. 1033.