« ForrigeFortsett »
whence the subject derives this right. It is difficult to say; but possibly it may be derived from the right which we find existing at the time of the Anglo-Saxon kings, of appealing to the Sovereign upon any grievance which arose from a defect of justice in the local tribunals (e); evidence of which we find in the laws regulating such appeals (ƒ).
(e) Palgrave's Rise and Progress of the English Commonwealth, vol. i., chap. ix., pp. 278–283.
(f) Ancient Laws of England, Record Commissioners, 1840; Laws of Edgar II., § 3; of Canute II., § 17; of William I., § 43; of Henry I., $$ 34-36; Palgrave's Original Authority of King's Council, p. 10; Rise and Progress of the English Commonwealth, vol. i., chap. ix., p. 278, seq.
SKETCH OF THE HISTORY AND DEVELOPMENT OF THE USES
IN the last chapter an attempt was made to show the origin of petition of right; in the present one its history and the development of its uses are briefly sketched, beginning with the former.
As all such petitions were presented to the king in Parliament it becomes necessary to turn to the records or Rolls of Parliament in order to learn their history (a).
A perusal of the earliest of these Rolls is, however, in a sense disappointing, not from any lack of material, the hearing, determining, and answering of petitions forming a very considerable portion of the business there recorded, but because it is impossible to find petition of right existing, as it now does, as a thing apart and distinct, a peculiar kind of proceeding allocated to a particular species of claim, and the sole possessor of the title which it now bears, but it is found merely occupying a scarcely distinguishable place amongst a mass of petitions, which might equally well be so called, presented to the king or king in council (b).
The truth is that at the time of which we are speaking
(a) Rolls of Parliament cited throughout from the "Rotuli Parliamentorum" (London, 1765), and in this chapter by volume and page without
(b) "All parliamentary petitions, whether of the prelates, peers, commons or individuals, until the reign of Henry V., were addressed generally to the king conjointly with the council" (Palgrave's King's Council, p. 21).
(ie., from the reign of Edward I. to the reign of Richard II.), proceedings upon petition to the king in Parliament were exceedingly common, and a large proportion of the business of the country, which has since been diverted into other channels, was thus disposed of. This was caused by the absence of many of the State Departments which we now have, and the imperfect jurisdiction of those, such as the Court of Exchequer and Bench of Judges, which then existed. Added to this, Parliament was a judicial as well as a legislative body, whose session was not only the term time of the king's council but also the proper season for the king to answer applications to his grace and favour. All these circumstances tended to the accumulation of business.
Hence, when we come to examine the Rolls of Parliament, Contents we are overcome with the multiplicity and variety of the petitions. Here we find soldiers praying for their wages, outlaws for a reversal of their sentences, city companies for charters, corporations for explanation of their charters, suppliants for forfeited lands, felons for restitution of their property, suitors for speedy justice, sailors against French piracies, and lords for franchises (c). All these and a host of similar applications are made by petition addressed to the king or the king in council, and all are answered in very similar terms, and dealt with upon similar principles. Amongst them are doubtless some preferring such claims as Some “of would entitle them at the present day to be ranked as peti- right." tions of right, but they do not appear to differ either in name, form, or the method in which they are dealt with from the other petitions in whose company they stand.
Speaking generally, the method of answering all these How petitions was the same; they were referred, namely, to some tribunal to investigate and dispose of, an answer to this
(c) This summary is taken from Elsynge on Parliaments, p. 274 (ed. 1768), where the references to the Rolls will be found.
effect being endorsed upon each petition (d). Of course many did not require to be referred, being refused (e), and others were petitions for "liberates," of which we shall speak hereafter, or mere complaints of grievances not requiring any judicial investigation, and to these the foregoing statement does not apply; the bulk of them, however, were applications based upon special circumstances for grants of something which the king or Parliament had it in their power to bestow, and the method which the king and Parliament adopted of sifting the suppliant's grounds of claim was as we have mentioned.
The reasons which operated to induce Parliament to refer these matters to some other tribunal, rather than deal with them itself, are not difficult to guess. They are to be found in the inadequate constitution of Parliament for such inquiries, the large draught upon public time which they would have required, and the impossibility of satisfactorily conducting them at the distance at which Parliament must have frequently found itself from the persons and things affected by its decision.
There was no fixed tribunal to which these petitions were referred; if they contained matters of which any existing Court could take cognizance, they were referred to such Court; if not, they were referred to some body-composed probably of persons who happened to be conversant with the subject of the petition-specially commissioned to inquire into the matter (f); but, in looking over the
*** Volumes and pages alone refer to the Rolls of Parliament. (d) Compare with this practice that of granting special commissions of oyer and terminer (Palgrave's King's Council, p. 27).
(e) 18 Ed. 1, No. 13, vol. i., p. 46. Answer: "Nondum injuriatum est conqueratur post injuriam :-Ibid. No. 71; ibid. p. 51. Answer: Rex nichil facere potest;-15 and 16 Ed. 2, No. 37, vol. i., p. 394. "Injusta est Peticio ideo non potest fieri.”
(f) They are usually called in the answer thus: Assignentur fideles et sufficientes ad inquirend' de contentis in Peticione."
answers given to petitions, we cannot fail to notice a great and very proper tendency in Parliament towards making use of the existing tribunals and forms of law wherever possible, and limiting the power of special commissioners to investigation.
Thus, if the petition touched the revenue, or was a matter either to ordinary of account between the suppliant and the Crown, it was referred to the Treasurer and Barons of the Exchequer (g); if a pure matter of law, to the ordinary legal tribunals (h); if a matter of local custom, to the local tribunal (¿) ; if a matter of equity, to the Chancellor (k); if of forestry, to the justice of the forest (1); if, however, it touched a matter which had no appropriate existing tribunal, a special one was created (m).
(g) 8 Ed. 2, Pet. No. 122, vol. i., p. 317: To the men of Melcombe, complaining of the loss to the king's revenue by the removal of their custom-house, Responsum est: "Mittatur ista Petitio ad Scaccarium et mandetur Thes' et Baronibus quod faciant in præmissis quod pro commodo Regis fore viderint faciend'." 8 Ed. 2, Pet. No. 157, vol. i., p. 321: To the petition of Richard D'Amory, sheriff, claiming an allowance, Responsum est: "Mittatur & et mandetur & quod super contenti in peticione fac' justiciam."
(h) 6 Ed. 1, No. 22, vol. i., p. 5: To the Petition of Thomas Lavetot. Ita Responsum est: "Perquirat per legem. 6 Ed. 1, No. 39, vol. i., p. 9: To Alicia de Bello Campo, Ita Responsum est: "Eat coram justiciariis de Banco." 15 & 16 Ed. 2, No. 136, vol. i., p. 410: To Robert Power, Ita Responsum est: "Adeat legem communem.
(i) 8 Ed. 2, No. 115, vol. i., p. 316: To Robert de Oye of Dover, Responsum est: Mittatur ista Petitio custodi quinq.: Portuum et mandetur ei quod audita querela ipsius Roberti super contentis tunc fac' sibi justitiam secundum legem et consuetudinem Portuum prædictorum.
(k) 8 Ed. 2, No. 157, vol. i., p. 322: To the Petition of the Abbot and Convent of Cirencester, Responsum est: "Habeat breve in Cancellaria versus Episcopum et ballivos suos secundum casum suum." Ed. 2, No. 83, vol. i., p. 380 : To the Petition of the Prior and Convent of Novo loco in Shire wood, Ita responsum est: "Videatur Inquisitio et si sit sufficiens sicut supponitur fiat ei justicia in Cancellaria."
() "Annis Incertis," Ed. 3, No. 65, vol. ii., p. 389: To the Petition of John Dellerker. "Soit maunde a justice de la Forest d'enquere sur les choses contenuz en la Peticion; " 18 Ed. 1, No. 3, vol. i., p. 46.
(m) 6 Ed. 3, No. 69, vol. ii., p. 390: To the Petition of the Com