PETITION OF RIGHT (June 7, 1628)

This statute is among the foremost documents in Anglo-American constitutional history. The Petition of Right protected the liberty of the subject and contributed to the development of the rule of law and the concept of fundamental law. The Framers of the Constitution regarded the act of 1628 as part of their common law inheritance establishing rights against government. In its time, however, the statute limited only the royal prerogative or executive authority.

In 1626 Charles I, exercising his prerogative, had exacted a "forced loan" from his subjects. The poor paid it by having to quarter soldiers in their homes and having to serve in the army or face trial by a military tribunal. Five knights refused to make a contribution of money to the crown on the grounds that it was an unconstitutional tax; they were imprisoned by order of the king's council. When they sought a writ of habeas corpus, the Court of King's Bench, in Darnel's Case (1627), ruled that because the return to the writ showed the prisoners to be held on executive authority, no specific cause of imprisonment had to be stated.

The forced loan and the resolution of Darnel's Case caused a furor. After the House of Commons adopted resolutions against arbitrary taxation and arbitrary imprisonment, Sir edward coke introduced a bill to bind the king. The House of Lords sought to "save" the sovereignty of the king by allowing a denial of habeas corpus for reasons of state. Coke, opposing such an amendment to the bill, argued that it would weaken magna carta, and he warned: "Take heed what we yield unto: Magna Charta [sic] is such a fellow that he will have no "sovereign." The Lords finally agreed and the king assented.

The Petition of Right reconfirmed Magna Carta's provision that no freeman could be imprisoned but by lawful judgment of his peers or "by the law of the land." The Petition also reconfirmed a 1354 reenactment of the great charter which first used the phrase "by due process of law " instead of "by the law of the land." By condemning the military trial of civilians, the Petition invigorated due process and limited martial law. One section of the Petition provided that no one should be compelled to make any loan to the crown or pay any tax "without common consent by act of parliament." Americans later relied on this provision in their argument against taxation without representation. Other sections of the act of 1628 provided that no one should be imprisoned or be forced to incriminate himself by having to answer for refusing an exaction not authorized by Parliament. Condemnation of imprisonment without cause or merely on executive authority strengthened the writ of habeas corpus. (See habeas corpus act of 1679; bill of rights (english). ) The third amendment of the Constitution derives in part from the Petition of Right.

Leonard W. Levy
(1986)

Bibliography

Relf, Francis H. 1917 The Petition of Right. Minneapolis: University of Minnesota Press.