Monstrans de droit, petition of right, and liability for Crown debt

Book section : Chapter

This chapter investigates how the Smithian model of remedies can be mapped onto the petition procedure for recovering debt payments from the sovereign Crown. The sovereign person could not formally be impleaded in his own courts nor subjected to coercive judicial order; yet from early time the Crown would permit a petition of right allowing debt claims to be heard and remedied as if the Crown were submitting to an ordinary action between private persons. A vested right to property was seen as a stronger claim than an action to enforce an executory or precatory obligation, and as such could be claimed by a summary version of the petition of right known as monstrans de droit, a demonstration or plea of right. Tort claims for long remained outside the system, as ‘the king could do no wrong’; hence trespassory remedies such as assumpsit were generally unavailable. The history of claims against the Crown reveals a problematic dualism whereby one party is both adjudicator and one of the adjudicated. The discretion of judges and Crown officials in handling such claims adds a new dimension to the Smithian theory that remedies are often replicative and creative and do not simply reproduce prior substantive duties.

Authors: Getzler, J

• Publication status: Published
• Peer review status: Peer reviewed
• Publisher: Hart Publishing
• Host title: Understanding Private Law: Essays in Honour of Stephen A Smith
• Pages: 123-136
• Chapter number: 9
• Place of publication: Oxford
• Publication date: 2025-01-29
• Edition: 1
• DOI: 10.5040/9781509971183.ch-009
• EISBN: 9781509971183
• ISBN: 9781509971152
• Language: English
• Subtype: Chapter