Petition of right

Petition of right
This article is about the pre-1948 contractual remedy against the Crown. For the 1628 Act of Parliament that forms part of the constitutional prelude to the English Civil War, see Petition of Right.

In English law, a petition of right was a remedy available to subjects to recover property from the Crown.[1]

Before the Crown Proceedings Act 1947, the British Crown could not be sued in contract. However, as it was seen to be desirable that Crown contractors could obtain redress, lest they be inhibited from taking on such work, the petition of right came to be used in such situations, especially after the Petitions of Right Act 1860 simplified the process. Before the petition could be heard by the courts, it had to be endorsed with the words fiat justitia on the advice of the Home Secretary and Attorney-General.[1] This Latin phrase was normally translated as "Let right be done".

One of the most famous causes célèbres in English law, the Archer-Shee case, arose out of proceedings on a petition of right.[2][3]

Section 1 of the Crown Proceedings Act 1947 allows claims for which a petition would previously have been demanded to be brought in the courts directly as against any other defendant. However, a petition and fiat still appear to be necessary for personal claims against the monarch.[1]

Contents

Claims allowed

A petition of right was available:[4]

  • To obtain restitution of real or personal property of the subject which has found its way into the hands of the Crown, or compensation if restitution could not be made; or
  • To recover damages for breach of a contract made on behalf of the Crown, whether the breach was due to the acts or the omissions of servants of the Crown.

Where the Crown was in possession of the property of the applicant, and the title of the Crown appeared by record, as by inquest of office, the remedy was somewhat different and was called monstrans de droit.[4] Petition of right was not available in respect of engagements in the naval, military or civil service, which, were not generally considered as contracts of employment but as appointments enjoyed during the pleasure of the Crown.[4] This relationship based on the royal prerogative only ended in 1996.[5] Nor was the action available for breach of public duty, e.g. a failure to perform treaty obligations, nor for trespass or negligence or other torts by Crown servants.[4] Where such acts were wrongful the remedy was still by action against the official as an individual and not in his official capacity.[6]

Procedure

Common law

At common law the petition went through its earliest stages in Chancery. The petition suggested a right disputing the title of the Crown, and the Crown endorsed the petition soit droit fait la partie. Then a commission was issued to inquire into the truth of the suggestion. After the return to the commission, the Attorney-General filed a response and the merits were determined as in any inter partes action. If the right was determined against the Crown, judgment of amoveas manes was given in favour of the applicant.[4]

Scotland and Ireland

The law as to petitions of right applied to Ireland but not to Scotland, and a right to present such a petition was also thought to exist in colonies whose law was based on the common law of England. Ultimately, in many colonies legislation was passed with respect to claims against the government which made it unnecessary to resort to a petition of right.[4]

References

  1. ^ a b c Bradley & Ewing (2003) 'pp770-771
  2. ^ Keedy, Edwin (June 1939). "A Petition of Right: Archer-Shee and the King". University of Pennsylvania Law Review and American Law Journal 87 (8): 895 et seq.. JSTOR 3309184. 
  3. ^ Lewis, Geoffrey (2006). Carson: The Man Who Divided Ireland. Hambledon Continuum. pp. 288. ISBN 978-1852855703. http://books.google.com/books?id=ZG63y98ucvgC&lpg=PA63&dq=%22petition%20of%20right%22%20%20archer%20shee&pg=PA63#v=onepage&q=%22petition%20of%20right%22%20%20archer%20shee&f=false. 
  4. ^ a b c d e f [Anon.] (1911) "Petition", Encyclopaedia Britannica
  5. ^ Bradley & Ewing (2003) p.272-273, Employment Rights Act 1996, s.191
  6. ^ Raleigh v. Goschen (1898) LR 1 ch.73

Bibliography

  • [Anon.] (1911) "Petition", Encyclopaedia Britannica
  • Bradley, A.W. & Ewing, K.D. (2003). Constitutional and Administrative Law (13th ed. ed.). London: Longman. ISBN 0-582-43807-1. , pp770-771

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Look at other dictionaries:

  • Petition of right — Petition Pe*ti tion, n. [F. p[ e]tition, L. petitio, fr. petere, petitum, to beg, ask, seek; perh. akin to E. feather, or find.] 1. A prayer; a supplication; an imploration; an entreaty; especially, a request of a solemn or formal kind; a prayer… …   The Collaborative International Dictionary of English

  • petition of right — originally, the means of proceeding against the Crown in a civil action (e.g. breach of contract). The petition of right procedure was rendered obsolete by the passing of the Crown Proceedings Act 1947. Collins dictionary of law. W. J. Stewart.… …   Law dictionary

  • Petition of right — (engl., spr. pĭtisch n ŏf reit, d.i. Bittschrift um Herstellung des Rechts), die 1628 vom engl. Parlament dem König Karl I. vorgelegte Beschwerdeschrift, von diesem 7. Juni in allen Punkten (Abgaben an den König nur mit Bewilligung des Parlaments …   Kleines Konversations-Lexikon

  • Petition of Right —   [pɪ tɪʃn əv raɪt; englisch »Bittschrift um Herstellung des Rechts«], von Sir E. Coke am 8. 5. 1628 im englischen Unterhaus formulierte, am 28. 5. von beiden Häusern verabschiedete und am 7. 6. von Karl I. angenommene Bittschrift, in der der… …   Universal-Lexikon

  • Petition of Right — Die Petition of Right ist eine Petition, die das Parlament von England 1628 an König Karl I. richtete. Es ist ein wichtiges Dokument in der Verfassungsgeschichte Großbritanniens und der Geschichte der Menschenrechte. Das Parlament erhob darin… …   Deutsch Wikipedia

  • Petition of Right — The Petition of Right 1628 was produced by the English Parliament in the run up to the English Civil War. It was addressed to Charles I of England in 1628 but is dated 1627 because it retroactively came into force from the start of the 1627… …   Wikipedia

  • petition of right — Etymology: Middle English : a legal petition formerly used to obtain redress (as possession or restitution of property) from the British Crown for breach of contract or to remedy manifest injustice * * * Petition of Right noun A parliamentary… …   Useful english dictionary

  • Petition of Right — (1628) Petition sent by Parliament to King Charles I complaining of a series of breaches of law. The petition sought recognition of four principles: no taxation without the consent of Parliament, no imprisonment without cause, no quartering of… …   Universalium

  • PETITION OF RIGHT —    a petition presented to Charles I. by the Commons in 1628, and that became law by the king s acceptance of it. It sought for and obtained the abolition of certain grievances which the country unconstitutionally suffered from, such as taxation… …   The Nuttall Encyclopaedia

  • The Petition of Right — Petition Pe*ti tion, n. [F. p[ e]tition, L. petitio, fr. petere, petitum, to beg, ask, seek; perh. akin to E. feather, or find.] 1. A prayer; a supplication; an imploration; an entreaty; especially, a request of a solemn or formal kind; a prayer… …   The Collaborative International Dictionary of English

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