1911 Encyclopædia Britannica/Petition
PETITION (Lat. for “seeking” or “praying”), a term meaning generally a prayerful request, and in its more important constitutional aspect an application for redress by a person aggrieved to an authority capable of relieving him. It may be made in the United Kingdom to the Crown or its officers, or to either house of parliament, or in certain cases to courts of justice.
Petitions to the Crown.—The right of petitioning the Crown was recognized indirectly as early as Magna Carta in the famous clause, Nulli vendemus, nulli negabimus aut differemus, rectum vel justitiam (25 Edw. I. c. 29), and directly at various periods later, e.g. in the articles of the Commons assented to by Henry IV., by which the king was to assign two days in the week for petitions (Rot. Parl. 8 Hen. IV., p. 585). The case of the seven bishops in 1688 confirmed the right, and finally the Bill of Rights in 1689 declared “that it is the right of the subjects to petition the king and all commitments and prosecutions for such petitioning are illegal.” Petitions to the Crown appear to have been at first for the redress of private and local grievances, or for remedies which the courts of law could not grant (May, Parl. Pr., 11th ed., 522). As equity grew into a system, petitions of this kind not seeking legislative remedies tended to become superseded by bills in chancery. Statutes were originally drawn up by the judges at the close of the session of parliament from the petitions of the Commons and the answers of the Crown. Under this system of drafting it was found that the tenor of the petition and answer were not always stated correctly. To obviate this inconvenience demands for legislation came in the reign of Henry VI. to be drawn up in the form of bills which the Crown could accept or reject, but could not alter (see Anson, Law and Custom of the Constitution, 3rd. ed., vol. i. p. 241). In the same reign the words “by authority of parliament” were added to the words of enactment, and from the time of Henry VII. public legislation has been by bill and not by petition. A relic of the old form of statute founded upon petition still remains however in the preamble of Appropriation Acts and other statutes creating a charge upon the public revenue. It runs thus, “We, your majesty’s most dutiful and loyal subjects, the Commons of the United Kingdom . . . do most humbly beseech your majesty that it may be enacted; and be it enacted,” &c., from this point following the enacting words common to all statutes. The Crown may refer petitions presented to it to be adjudicated upon by a delegated authority. This course is pursued in the case of claims to peerages and offices of honour, which are referred to the House of Lords, and by that house to its committee for privileges, and in the case of petitions to the Crown in council, which are usually referred to the judicial committee. The Crown may delegate the power of receiving petitions in the first instance.
Petitions to Parliament.—Petitions to either house of the legislature seem to have been later in origin than petitions to the Crown. They are not referred to in the Bill of Rights, but the right of petition is a convention of the constitution. Petitions to the Lords or the whole parliament can be traced back to Henry III. No petition to the Commons has been found earlier than Richard II.; but from the time of Henry IV. petitions to the Commons have been freely made. The political importance of petitioning dates from about the reign of Charles I. The development of the practice of petitioning had proceeded so far in the reign of Charles II. as to lead to the passing in 1662 of an act (13 Car. II. c. 5) against “tumultuous petitioning,” which is still on the statute book. It provides that no petition or address shall be presented to the king or either house of parliament by more than ten persons; nor shall any one procure above twenty persons to consent or set their hands to any petition for alteration of matters established by law in church or state, unless with the previous order of three justices of the county, or the major part of the grand jury. And in 1817 (57 Geo III. c. 19, s. 23) meetings within a mile from Westminster Hall for the purpose of considering a petition to both houses or either house of parliament while either house is sitting were declared to be unlawful assemblies. Up to 1688 petitions to either house usually dealt only with some specific grievance. From that time dates the present practice of petitioning with regard to general measures of public policy. Petitions to the Houses of Lords or Commons must be framed in the form prescribed by the standing orders, must be properly superscribed, and must conclude with a prayer (May, Perl. Pr., 11th ed., 524, 525). They may be sent free by post to members of either house if they fulfil certain conditions as to weight, &c., (loc. cit. p. 531).
Petitions to the Commons must be in writing, must contain none but genuine signatures, and must be free from disrespectful language or imputations upon any tribunal or constituted authority. They must be presented by a member of the house, except petitions to the House of Commons from the corporation of London, which may be presented at the bar by the sheriffs, and from the corporation of Dublin, which may be presented by the lord mayor. There is no means of compelling a member to present a petition. The rules as to petitions to the House of Lords are similar. The lord who presents a petition is required to read it to see whether in form and contents it is fit for presentation. In the Lords receivers and triers of petitions from Great Britain and Ireland and from Gascony and the lands and countries beyond the sea were appointed until 1886, though their functions had long been obsolete. Applications for leave to bring before either house bills for private or local and personal matters must under the standing orders of both houses be made by petition; and the same rule obtains as to applications for leave to be heard in opposition to such bills.
See Clifford, History of Private Bill Legislation (1887); May, Parl. Pr., (11th ed.), c. xxv.
Petitions to Courts of Justice.—Strictly speaking, these are an indirect mode of petitioning the Crown, for in the theory of English law the Crown is the fountain of justice. But it is more convenient to treat them separately, as they now form a part of the practice of the courts. Appeals to the House of Lords and the privy council are prosecuted by petition of appeal. The original jurisdiction of the privy council to deal with petitions is confined to proceedings under certain statutes, such as the Endowed Schools Acts, the Public Schools Acts, the Universities Acts and the Patents Acts. In most cases the petitions are referred to the judicial committee of the council. Petitions may be addressed to the lord chancellor in a few instances, e.g. for the removal of coroners or county court judges. The House of Lords at one time claimed original jurisdiction in civil and criminal matters. As to civil matters the claim is abandoned, as to criminal matters it is now limited to impeachment for crime by the Commons on the trial for treason or felony of persons having privilege of peerage.
The most important use of petitions in England is in the High Court of Justice. In the chancery division petitions are presented either as interlocutory proceedings in the course of an action, or as original proceedings where no litigation exists—as being a mole speedy form of remedy than an action. The cases in which a petition is admissible and the procedure therein, are in the main regulated by orders 52 and 55 of the rules of the supreme court. Evidence in support of petitions is usually by affidavit Petitions in the course of an action are presented to the court in which the action is brought. Examples of original petitions are those under the Lands Clauses Acts, the Trustee Acts and the Companies Acts For many proceedings under these acts a simpler and cheaper form of proceeding by summons has been substituted for that by petition The matters above-mentioned are usually dealt with by the chancery division as successor of the court of chancery. Petitions are also in use in other courts having equitable jurisdiction, e.g. the chancery courts of the counties palatine of Lancaster and Durham and the county courts as to cases falling within § 67 of the County Courts Act 1888, and as to cases within county court jurisdiction under the Settled Land Acts or the Guardianship of Infants Act 1886 (County Court Rules, O. 38). In a few cases petitions may be brought by way of appeal, e.g. under the Charitable Trusts Act 1860. In the king's bench division the only use of petitions appears to be to initiate proceedings in bankruptcy. Leave to sue in formâ pauperis used to be given on petition but is now usually dealt with summarily. In the probate, &c, division proceedings in matrimonial causes, &c, are begun by petition, but the course of the proceedings closely resembles those of an ordinary action.
Scotland.—In Scotland petitions in the Court of Session are either original or in a pending action. Original petitions are presented to one of the divisions of the inner house, unless they relate to matters mentioned in 20 & 21 Vict. c. 56, s. 4, when they are brought before the junior lord ordinary, or unless, by special statutory provision, they may be brought before any lord ordinary, as in the case of petitions under the “Conjugal Rights (Scotland) Amendment Act 1861,” or the Trusts (Scotland) Act 1867. A petition and complaint is a process of a quasi-criminal nature by which certain matters of summary and extraordinary jurisdiction are brought under the notice of the Court of Session it lies against magistrates and officers of the law for breach of duty against parties guilty of contempt of court, &c. The concurrence of the lord advocate is necessary to a petition and complaint (see Mackay, Court of Session Practice, ii. 439).
Ireland.—The law of Ireland as to petitions is in substance the same as that of England with certain differences of detail as to the cases in which petitions may be made to courts of justice.
United States.—In the United States before the Civil War questions arose as to the right of petitioning Congress, particularly with reference to petitions for the restriction of slavery which at that time was contended to be a matter of state and not of federal concern (see Cooley, Constitutional Limitations, 6th ed., 1890, 426). The right of petitioning the United States government is now secured by the first amendment to the United States constitution (ratified in 1789–1791), which provides that “Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble and to petition the government for a redress of grievances” In the view of the Supreme Court this amendment “assumes the existence of the right of the people to assemble for lawful purposes and protects it against encroachment by Congress The right was not created by the amendment; neither was its continuance guaranteed except as against congressional interference For their protection in its enjoyment, therefore, the people must look to the states. The power for that purpose was originally placed there, and has never been surrendered. The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for anything else connected with the powers or duties of the national government is an attribute of national citizenship, and as such under the protection of and guaranteed by the United States. The very idea of a government republican in form implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances” (U.S. v. Cruikshank, 1875; 92 U.S. 542, 552).
A Bill of Rights is incorporated in the constitutions of many states of the Union, and is made part of the supreme law of the states (see Hough, American Constitutions, ii. 571). Petitions can be presented to the federal or state courts of justice under much the same circumstances as in England. “It is a general rule in such cases that an affidavit should be made that the facts therein contained are true as far as known to the petitioner, and that those facts which he states as knowing from others he believes to be true” (Bouvier, Law Dict.).
British Possessions.—There is a right of petition to the king for the review of decisions (in matters criminal or civil) of courts of justice in the Channel Islands or Isle of Man, and in all other parts of the empire outside the British islands and of British courts in foreign countries. This right is cut down by imperial or colonial legislation in the case of Canada and Australia, see Tarring, Law Relating to Colonies (3rd ed., 1906) c. v.
The term Petition of Right, in English law, is used in two senses (1) It denotes the statute of 1625 (3 Car. I. c. 1), a parliamentary declaration of the liberties of the people. (2) It also and more usually is employed to describe a mode of prosecuting a claim by a subject against the Crown, said to owe its origin to Edward I Petition of right in this sense lies (a) 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 cannot be made, (b) to recover damages for breach of a contract made on behalf of the Crown, whether the breach is due to the acts or the omissions of servants of the Crown. Where the Crown is in possession of property of the suppliant, and the title of the Crown appears by record, as by inquest of office, the remedy is somewhat different and is called monstrans de droit. Petition of right does not lie in respect of engagements in the naval, military or civil service of the Crown, which are as a general rule made “during pleasure,” nor for breach of public duty, e.g. failure to perform treaty obligations, nor for trespass or negligence or other torts by Crown servants. Where such acts are wrongful the remedy is by action against the official as an individual and not in his official capacity (Raleigh v. Goschen, 1898, L.R. 1 ch. 73).
The procedure on a petition of right is either at common law or by statute At common law the petition went through its earliest stages in the chancery It suggests such a right as controverts the title of the Crown, and the Crown endorses upon the petition Soit droit fait al partie. Thereupon a commission is issued to inquire into the truth of the suggestion. After the return to the commission, the attorney-general pleads or demurs, and the merits are then determined as in actions between subject and subject. If the right be determined against the Crown, judgment of amoveas manus is given in favour of the suppliant. The Petition of Right Act 1860 (23 & 24 Vict. c. 34, extended to Ireland in 1873, 36 & 37 Vict. c. 69) preserves to the suppliant his right to proceed at common law, but gives an alternative remedy. The procedure is regulated by the act of 1860, and as to England also by rules made under that act on the 1st of February 1862. The petition is left with the secretary of state for the home department for the consideration of his majesty, who if he thinks fit grants his fiat that right be done The fiat is sealed in the home office and issued to the suppliant who files it in the central office of the High Court of justice, and a sealed copy is served upon the solicitor to the treasury, with a demand for a plea or answer on behalf of the Crown. The subsequent proceedings including those as to disclosing relevant documents are assimilated as far as possible to those in an ordinary action. A judgment in favour of the suppliant is equivalent to a judgment of amoveas manus ouster le main. Costs are payable to and by the Crown. A petition of right is usually tried in the chancery or king’s bench divisions; but where the subject-matter of the petition arises out of the exercise of belligerent rights on behalf of the Crown, or would be cognizable in a prize court if the matter were in dispute between private persons, the suppliant may at his option intitule his petition in the admiralty division, and the lord chancellor may direct the prosecution in that division of petitions of right under the act of 1860 even when they are not so intituled (27 & 28 Vict. c. 25, s. 52).
The law as to petition of right applies to Ireland but not to Scotland, and a right to present such a petition appears to exist in colonies whose law is based on the common law of England. But in many colonies legislation has been passed with respect to suits against government which makes it unnecessary to resort to a petition of right.