Petition of right
Encyclopedia
In English law
, a petition of right was a remedy available to subjects to recover property from the Crown
.
Before the Crown Proceedings Act 1947
, the British
Crown could not be sue
d 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. 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.
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
.
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. 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. This relationship based on the royal prerogative
only ended in 1996. 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 tort
s by Crown servants. Where such acts were wrongful the remedy was still by action against the official as an individual and not in his official capacity.
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.
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.
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
, a petition of right was a remedy available to subjects to recover property from the Crown
The Crown
The Crown is a corporation sole that in the Commonwealth realms and any provincial or state sub-divisions thereof represents the legal embodiment of governance, whether executive, legislative, or judicial...
.
Before the Crown Proceedings Act 1947
Crown Proceedings Act 1947
The Crown Proceedings Act 1947 is an Act of the Parliament of the United Kingdom that allowed, for the first time, civil actions against the Crown to be brought in the same way as against any other party...
, the British
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
Crown could not be sue
Lawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
d in contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
. 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
Petitions of Right Act 1860
The Petitions of Right Act 1860 was an Act of Parliament passed by the Parliament of the United Kingdom that codified and simplified the process of obtaining a petition of right.-Procedure:...
simplified the process. Before the petition could be heard by the courts, it had to be endorsed with the words fiat justitia
Fiat justitia
Fiat justitia is a Latin phrase, meaning “Let justice be done". Historically in England, a warrant for a writ of error in Parliament or later a petition of right in the courts could be brought only after the king, or on his behalf the Home Secretary, had endorsed fiat justitia on a petition for...
on the advice of the Home Secretary
Home Secretary
The Secretary of State for the Home Department, commonly known as the Home Secretary, is the minister in charge of the Home Office of the United Kingdom, and one of the country's four Great Offices of State...
and Attorney-General. This Latin phrase was normally translated as "Let right be done".
One of the most famous causes célèbres
Cause célèbre
A is an issue or incident arousing widespread controversy, outside campaigning and heated public debate. The term is particularly used in connection with celebrated legal cases. It is a French phrase in common English use...
in English law, the Archer-Shee case
George Archer-Shee
George Archer-Shee became a British cause célèbre in 1910 when the issue of whether he stole a five shilling postal order ended up being decided in the High Court....
, arose out of proceedings on a petition of right.
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
Monarch
A monarch is the person who heads a monarchy. This is a form of government in which a state or polity is ruled or controlled by an individual who typically inherits the throne by birth and occasionally rules for life or until abdication...
.
Claims allowed
A petition of right was available:- To obtain restitution of realReal propertyIn English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
or personal propertyPersonal propertyPersonal property, roughly speaking, is private property that is moveable, as opposed to real property or real estate. In the common law systems personal property may also be called chattels or personalty. In the civil law systems personal property is often called movable property or movables - any...
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 damagesDamagesIn law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory damages :...
for breach of a contractBreach of contractBreach of contract is a legal cause of action in which a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other party's performance....
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
Title (property)
Title is a legal term for a bundle of rights in a piece of property in which a party may own either a legal interest or an equitable interest. The rights in the bundle may be separated and held by different parties. It may also refer to a formal document that serves as evidence of ownership...
of the Crown appeared by record, as by inquest of office, the remedy was somewhat different and was called monstrans de droit. Petition of right was not available in respect of engagements in the naval
Royal Navy
The Royal Navy is the naval warfare service branch of the British Armed Forces. Founded in the 16th century, it is the oldest service branch and is known as the Senior Service...
, military
British Army
The British Army is the land warfare branch of Her Majesty's Armed Forces in the United Kingdom. It came into being with the unification of the Kingdom of England and Scotland into the Kingdom of Great Britain in 1707. The new British Army incorporated Regiments that had already existed in England...
or civil service
Civil service
The term civil service has two distinct meanings:* A branch of governmental service in which individuals are employed on the basis of professional merit as proven by competitive examinations....
, which, were not generally considered as contracts of employment
Employment contract
A contract of employment is a category of contract used in labour law to attribute right and responsibilities between parties to a bargain.On the one end stands an "employee" who is "employed" by an "employer". It has arisen out of the old master-servant law, used before the 20th century...
but as appointments enjoyed during the pleasure of the Crown. This relationship based on the royal prerogative
Royal Prerogative
The royal prerogative is a body of customary authority, privilege, and immunity, recognized in common law and, sometimes, in civil law jurisdictions possessing a monarchy as belonging to the sovereign alone. It is the means by which some of the executive powers of government, possessed by and...
only ended in 1996. Nor was the action available for breach of public duty, e.g. a failure to perform treaty
Treaty
A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...
obligations, nor for trespass
Trespass
Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels and trespass to land.Trespass to the person, historically involved six separate trespasses: threats, assault, battery, wounding, mayhem, and maiming...
or negligence
Negligence
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
or other tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
s by Crown servants. Where such acts were wrongful the remedy was still by action against the official as an individual and not in his official capacity.
Common law
At common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
the petition went through its earliest stages in Chancery
Chancery (medieval office)
Chancery is a general term for a medieval writing office, responsible for the production of official documents. The title of chancellor, for the head of the office, came to be held by important ministers in a number of states, and remains the title of the heads of government in modern Germany,...
. 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
Attorney General for England and Wales
Her Majesty's Attorney General for England and Wales, usually known simply as the Attorney General, is one of the Law Officers of the Crown. Along with the subordinate Solicitor General for England and Wales, the Attorney General serves as the chief legal adviser of the Crown and its government in...
filed a response and the merits were determined as in any inter partes
Inter partes
The term inter partes is the Latin for "between the parties." It can be distinguished from in rem, referring to a legal action whose jurisdiction is based the control of property, or ex parte referring to a legal action that is by a single party....
action. If the right was determined against the Crown, judgment of amoveas manes was given in favour of the applicant.
Scotland and Ireland
The law as to petitions of right applied to IrelandIreland
Ireland is an island to the northwest of continental Europe. It is the third-largest island in Europe and the twentieth-largest island on Earth...
but not to Scotland
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
, and a right to present such a petition was also thought to exist in colonies
British Empire
The British Empire comprised the dominions, colonies, protectorates, mandates and other territories ruled or administered by the United Kingdom. It originated with the overseas colonies and trading posts established by England in the late 16th and early 17th centuries. At its height, it was the...
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.