The Crown Proceedings Act, 1947
| Published date | 01 August 1948 |
| Date | 01 August 1948 |
| DOI | http://doi.org/10.1111/j.1467-9299.1948.tb03045.x |
| Author | Harry Street |
The Crown Proceedings
Act,
1947
By
HARRY
STREET,
LL.M.
HISTORICAL
NTIL
the
eaactment
of
the
Crown
Proceedmgs
Act,
1947,
it had been
a
ufundamental rule
of
English
law
that
no
wit
could
be
brought against the
Crown
This
prerPgadve right
was
based
on
the principle that the
King
could
not
be compelled to submit against
his
will
to the
jurisdiction
of
his
own
courts.
From the
thineenth
century
onwards, he
allowed
proaediDgs
to be brought
against
him
by a petition
of
right, bur the court could
not
hear a
petition
until
the royal
fiat
was
granred.
Once
this
was
granted
the
trial proceeded
in
the
ordinary courts. There has never
been
an
appeal against the refusal
of
the
fiat,
nor could suit be brought
against
the
King‘s
hhkters for advising
him
to
refuse it.
The
growth
of
the prerogative, the
strengthening
of
the
kingship, and the
development of the ideas
of
divine right and
of
the absolute sovereign
in
the
fifteenth
and
sixteenth centuries gave
birth
to the
maxim
that the
Kirig
can
do
m
wrong.
As
early
as
thc
!ifteenth
century,
he
courts
interpreted
this
to mean
that
the petition of right
was
not
available for any torts
(ie.,
trespass,
negligence,
libel and other
wrongs
not
arising out
of
conmct)
committed
by the
King.
This
maxim
played an
important
part
in
the
development
of
that
basic concept
of
parliamentary government, the doctrine
of
Ministerial Responsibility. Moreover,
so
long as the King
was
his
own
Prime Minister, he courts
in
fact
his
courts,
and
the laws
his
laws,
the
maxim
might well
be
legally
unobjactionable.
It
is
when
its
application to the
changed
constitutional
and
mmmic
conditions
of
the post-Revolutionary Settlement
era
is considered,
that
the
harm
done by it is
apparent.
The law,
taking
no
cognizance
of
that basic distinction between the
King
in
his personal capacity
and
the
Crown
as the representation
of
the
aggregate
of
governmental powers
and
prerogatives, extended to the
Gown
the immunities of
the
IGng.
Two
important
political factors developing in the
eighstenth
and
nineteenth centuries were
to
subject
these
regal
immunities
to
further
stress.
The broadening activities
of
the State brought
it
int.o’wer-inaeasing
contact
with its
citizens.
There
was
a vast increase
in
the
number
of
conma
entered
into
by
government
departments
on
behalf
of
the
Crown
with
the citizen.
Con-
tractors of supplies for the Crimean
War
complained of
the
difficulty of obtaining
relief
from
the Crown,
and
the procedure
on
petitions
of
right was recast by the
Petitions of Right Act,
1860.
In
a series of
cases
following this
Act,
it
was
established that
a
petition
of
right lay for breach
of
contract, and it
was
confirmed
that, following the ordinary
rules
of
agency, the officer
making
the contract would
not
be
per~o~lly liable
on
it. Secondly, there
was
a gradual realisation
through-
out Europe that the function
of
government extends not only
to
protecting the
security of the individual against
other
individuals, but also to
protecting
that
security ageinst the
group
and
even rgainst the State
its&.
Meanwhile, English courts were formulating the docuine that employers
were vicariously liable
on
grounds
of
public pdicy for wrongs committed by
their
.
156
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