The English Petition of Right and its Application in the New World

In 1625, King Charles I ascended to the English throne and almost immediately found himself embroiled in a battle with Parliament concerning his management and waging of the war against Spain. By 1626 and an effort to further such Spanish war and to obtain funding thereof, King Charles I imposed, without the authority of Parliament, a direct taxation upon the nobles and elites in the form of a “forced loan.” Prior to this “forced loan,” King Charles I attempted to seek a “grant of taxation” from Parliament and upon the failure of Parliament to grant such taxation, King Charles I resorted to the forced loan. When five of these nobles (the Five Knights) refused to fund the forced loans, King Charles I imprisoned them. Partly in response to the imprisonment of the Five Knights, Parliament and the English elites met the actions of King Charles I with resolve, and in 1628, the Five Knights sought their release by issuing a writ of habeas corpus. A writ of habeas corpus is writing “directed to the person detaining another, and commanding him to produce the body of the prisoner (or person detained) with the day and cause of his caption and detention…” (Black’s Law Dictionary 837, 1783, 4th ed. 1951). King Charles I responded to the writ of habeas corpus by asserting that he, as the sovereign, had the absolute power to imprison whom he pleased but cited no law supporting the proposition. 

In 1628, the Parliament sent to King Charles I the Petition of Right in which Parliament sought to assertively implore the monarch that he must adhere to the rule of law.  In her article “Petitions and the Petition of Right.” Elizabeth Reade Foster summarizes the Petition of Right of 1628 as follows:

The substance of the Petition of Right is well known.  It stated that contrary to the laws of the realm, men had been required under duress to grant loans and pay other charges to the crown which had not been voted by parliament.  They had been imprisoned without cause shown, tried by martial law in time of peace, and forced to receive into their homes soldiers and mariners billeted upon them.  The Petition asked that these practices, which contravened the rights and liberties of the kingdom, should cease (Elizabeth Read Foster, “Petitions and the Petition of Right,” Journal of British Studies 14, no. 1 (Nov. 1974):  21-45, https://www.jstor.org/stable/175058:  21).

In the Petition of Right of 1628, Parliament also cited Clause 39 of Magna Carta of 1225 which provides, “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land” (“The Petition of Right – 1628,” George Mason University Law School). In essence and similar to the Fifth Amendment to the Constitution of the United States which provides that no man shall be deprived of “life, liberty, or property without due process of law” (U.S. Constitution, amend. V) such clause of Magna Carta, in simpler terms, states that no man may be imprisoned or deprived of his property absent a judgment by his peers.  Parliament held that King Charles I was in breach of Clause 39 of Magna Carta, and as such, the king needed to release the Five Knights. Reluctantly and after first responding to the Petition by stating, “The King willeth that right be done according to the laws and customs of the realm” which was not acceptable to Parliament, King Charles I modified his original statement and agreed with the Petition, signed the Petition, and wrote upon such Petition “soit droit fait comme est desiré” which in English means “let right be done to the party.”  

The significance of the Petition of Right of 1628 is not that the Petition established new rights by some act of Parliament but that the Petition sought enforcement of rights that the Five Knights already possessed by and through Magna Carta. By his first response to the Petition of Right, King Charles I implied to Parliament that the issues raised in the Petition could be tried at common law and did not establish or confirm any rights. Parliament found this first response unacceptable, because the Petition sought to confirm rights established in antiquity by Magna Carta.  As such, Parliament sought a more direct response.  The monarch’s second response “let right be done to the party” was a confirmation by King Charles I to Parliament that “the statements in the Petition were correct” and confirmed Parliament’s interpretation that the king had violated Magna Carta and that such rights espoused therein are secured.