Chisholm, Executor, v. Georgia. 2 D.

was good; 2d, whether a petition to the Barons of the Exchequer was a proper remedy. On the first point the whole court agreed, that in general the king could alienate the revenues of the crown; but Mr. Baron Lechmere differed from the other. Barons, by thinking that this particular revenue of the Excise was an exception to the general rule. But all agreed that the petition was a proper remedy. Judgment was therefore given for the petition, by directing payment to the complainants, at the receipt of the Exchequer. A writ of error was brought on this judgment by the Attorney-General, in the Exchequer Chamber. There all the Judges who argued, held the grant out of the Excise good. A majority of them, including Lord Chief Justice Holt, also approved of the remedy by petition to the Barons. But Lord Chief Justice Treby was of opinion that the Barons of the Exchequer were not authorized to make order for payments on the receipt of the Exchequer, and, therefore, that the remedy by petition to the Barons was inapplicable. In this opinion Lord Somers concurred. A doubt then arose, whether the Lord Chancellor and Lord High Treasurer were at liberty to give judgment according to their own opinion, in opposition [*439 ] to that of a majority of the attendant Judges; in other words, whether the Judges called by the Lord Chancellor and Lord High Treasurer were to be considered as mere assistants to them without voices. The opinion of the Judges being taken on this point, seven against three held that the Lord Chancellor and Lord Treasurer were not concluded by the opinions of the Judges, and therefore that the Lord Keeper, in the case in question, there being then no Lord Treasurer, might give judgment according to his own opinion. Lord Somers concurring in this idea, reversed the judg ment of the Court of Exchequer. But the case was afterwards carried by error into Parliament, and there the Lords reversed the judgment of the Exchequer Chamber, and affirmed that of the Exchequer. However, notwithstanding this final decision in favor of the bankers and their creditors, it appears, by a subsequent statute, that they were to receive only one half of their debts; the 12 and 14 W. 3, after appropriating certain sums out of the hereditary Excise, for public uses, providing that, in lieu of the annuities granted to the bankers, and all arrears, the hereditary Excise should, after the 26th of December, 1601, be charged with annual sums equal to an interest of three per cent., until redeemed by payment of one moiety of the principal sums. Hargrave's case of the Bankers, 1, 2, 3.

Upon perusing the whole of this case, these inferences naturally follow: 1st. That admitting the authority of that decision in its fullest extent, yet it is an authority only in respect to such cases where

Chisholm, Executor, v. Georgia. 2 D.

letters-patent from the crown have been granted for the payment of certain sums out of a particular revenue. 2d. That such relief was grantable in the Exchequer upon no other principle than that that court had a right to direct the issues of the Exchequer as well after the money was deposited there as while (in the Exchequer language) it was in transitu. 3d. That such an authority could not have been exercised by any other court in Westminster Hall, or by any court that from its particular constitution had no control over the revenues of the kingdom. Lord C. J. Holt, and Lord Somers, though they differed in the main point, both agreed in that case, that the Court of King's Bench could not send a writ to the Treasury. Hargrave's Case, 45, 89. Consequently, no such remedy could, under any circumstances, I apprehend, be allowed in any of the American States, in none of which, it is presumed, any court of justice hath any express authority over the revenues of the State such as has been attributed to the Court of Exchequer in England.

The observations of Lord Somers concerning the general remedy by petition to the king, have been extracted and referred to by some of the ablest law characters since; particularly by [ *440 ] * Lord C. Baron Comyns, in his Digest. I shall therefore extract some of them, as he appears to have taken uncommon pains to collect all the material learning on the subject; and indeed is said to have expended several hundred pounds in the procuring of records relative to that case. Hargrave's Preface to the case of the Bankers.

After citing many authorities, Lord Somers proceeds thus:-" By all these authorities, and by many others, which I could cite, both ancient and modern, it is plain, that if the subject was to recover a rent, or annuity, or other charge from the crown; whether it was a rent or annuity originally granted by the king or issuing out of lands, which by subsequent title came to be in the king's hands, in all cases the remedy to come at it was by petition to the person of the king; and no other method can be shown to have been practised at common law. Indeed I take it to be generally true, that in all cases where the subject is in the nature of a plaintiff, to recover any thing from the king, his only remedy, at common law, is to sue by petition to the person of the king. I say, where the subject comes as a plaintiff. For, as I said before, when, upon a title found for the king by office, the subject comes in to traverse the king's title, or to show his own right, he comes in the nature of a defendant; and is admitted to interplead in the case with the king in defence of his title, which otherwise would be defeated by finding the office. And to show that this was so, I would take notice of several instances.

Chisholm, Executor, v. Georgia. 2 D.

That, in cases of debts owing by the crown, the subject's remedy was by petition, appears by Aynesham's case, Ryley, 251; which is a petition for 191. due for work done at Carnarvon Castle. So Ryley, 251, the executors of John Estrateling petition for 1327. due to the testator for wages. The answer is remarkable; for there is a latitude taken which will very well agree with the notion that is taken up in this case: Habeant bre. de liberate in Canc. thes. et camerar. de 321. in partem solutionis. So the case of Yerward de Galeys, for 561. Ryley, 414. In like manner, in the same book, 253, 33 Edward I., several parties sue by petition for money and goods taken for the king's use; and also for wages due to them, and for debts owing to them by the king. The answer is, Rex ordinavit per concilium thesaurarii et baronum de scaccario, quod satisfiet iis quam citius fieri poterit; ita quod contentos se tenebunt. And this is an answer given to a petition presented to the king in parliament, and therefore we have reason to conclude it to be warranted by law. They must be content, and they shall be paid, quam citius fieri poterit. The parties, in these cases, first go to the king by petition; it is by him they are sent to the exchequer; and it is by writ, under the great seal, that the exchequer is empowered to act. Nor can any [* 441 ] such writ be found, unless in a very few instances, where

*

it is mere matter of account, in which the treasurer is not joined with the barons. So far was it from being taken to be law at that time, that the barons had any original power of paying the king's debts; or of commanding annuities, granted by the king or his progenitors, to be paid, when the person applied to them for such payment. But perhaps it may be objected that it is not to be inferred, because petitions were brought in these cases, that therefore it was of necessity that the subject should pursue that course, and could take no other way. It might be reasonable to require from those who object thus, that they should produce some precedents at least, of another remedy taken. But I think there is a good answer to be given to this objection. All these petitions, which I have mentioned, are after the Stat. 8 Edward I., Ryley, 442, where notice is taken that the business of parliament is interrupted by a multitude of petitions, which might be redressed by the chancellor and justices. Wherefore it is thereby enacted, that petitions which touch the seal shall come first to the chancellor; those which touch the exchequer to the exchequer ; and those which touch the justices, or the law of the land, should come to the justices; and if the business be so great, or si de grace, that the chancellor, or others, cannot do them without the king, then the petitions shall be brought before the king, to know his pleasure; so that no petitions come before the king and his council, but by the

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hands of the chancellor, and other chief ministers, that the king and his council may attend the great affairs of the king's realm, and his sovereign dominions." This law being made, there is reason to conclude that all petitions brought before the king or parliament after this time, and answered there, were brought according to the method of this law, and were of the nature of such petitions as ought to be brought before the person of the king. And that petitions did lie for a chattel, as well as for a freehold, does appear 37 Ass. pl. ii. Bro. Pet. 17. If tenant by the statute merchant be ousted, he may have petition, and shall be restored. Vide 9 H. 4, 4; Bro. Pet. 9. 9 H. 6, 21; Bro. Pet. 2. If the subject be ousted of his term, he shall have his petition. 7 H. 7, ii. Of a chattel real a man shall have his petition of right, as of his freehold. 34 H. 6, 51; Bro. Pet. 3. A man shall have a petition of right for goods and chattels, and the king indorses it in the usual form. It is said indeed, 1 H. 7, 3; Bro. Pet. 19, that a petition will not lie of a chattel. And, admitting there was any doubt as to that point, in the present suit we are in the case of a freehold." Lord Somer's argument in Hargrave's Case of the Bankers, 103 to 105.

The solitary case, noticed at the conclusion of Lord Somers's argument, "that a petition will not lie of a chattel," cer[* 442 ] tainly *is deserving of no consideration, opposed to so many other instances mentioned, and unrecognized, as I believe it is, by any other authority either ancient or modern, whereas the contrary, it appears to me, has long been received and established law. In 4 Comyns's Dig. 458, it is said expressly, "suit shall be to the king by petition, for goods as well as for land." He cites Staundf. Prær. 75, b. 72, b, for his authority, and takes no notice of any authority to the contrary. The same doctrine is also laid down with equal explicitness, and without noticing any distinction whatever, in 3 Bl. Comm. 256, where he points out the petition of right as one of the common law methods of obtaining possession or restitution from the crown, either of real or personal property; and says expressly, the petition of right "is of use where the king is in full possession of any hereditaments or chattels, and the petitioner suggests such a right as controverts the title of the crown, grounded on facts disclosed in the petition itself." I leave out of the argument, from which I have made so long a quotation, every thing concerning the restriction on the exchequer, so far as it concerned the case then before the court, as Lord Somers, although more perhaps by weight of authority than reasoning, was overruled in that particular. As to all others I consider the authorities on which he relied, and his deduction from them, to be unimpeached.

Chisholm, Executor, v. Georgia. 2 D.

Blackstone, in the first volume of his commentaries (p. 243,) speaking of demands, in point of property, upon the king, states the general remedy thus : —"If any person has, in point of property, a just demand upon the king, he must petition him in his court of chancery, where his chancellor will administer right as a matter of grace, though not upon compulsion." For which he cites Finch L. 255. "And this is exactly consonant to what is laid down by the writers on natural law. A subject,' says Puffendorf, ' so long as he continues a subject, hath no way to oblige his prince to give him his due when he refuses it; though no wise prince will ever refuse to stand to a lawful contract. And if the prince gives the subject leave to enter an action against him upon such contract, in his own courts, the action itself proceeds rather upon natural equity than upon the municipal laws. For the end of such action is not to compel the prince to observe the contract, but to pursuade him.'"

It appears, that when a petition to the person of the king is properly presented, the usual way is for the king to indorse or underwrite, soit droit fait al partie, (let right be done to the party,) upon which, unless the attorney-general confesses the suggestion, a commission is issued to inquire into the truth of it; after the return of which, the king's attorney is at liberty to *plead [ * 443 ] in bar, and the merits shall be determined upon issue or demurrer, as in suits between subject and subject. If the attorneygeneral confesses the suggestion, there is no occasion for a commission, his admission of the truth of the facts being equally conclusive as if they had been found by a jury. See 3 Bl. Comm. 256, and 4 Com. Dig. 458, and the authorities there cited. Though the above-mentioned indorsement be the usual one, Lord Somers, in the course of his voluminous search, discovered a variety of other answers to what he considered were unquestionable petitions of right; in respect to which he observes: "The truth is, the manner of answering petitions to the person of the king was very various; which variety did sometimes arise from the conclusion of the party's petition, sometimes from the nature of the thing, and sometimes from favor to the person; and according as the indorsement was, the party was sent into chancery or the other courts. If the indorsement was general, soit droit fait al partie, it must be delivered to the chancellor of England, and then a commission was to go to find the right of the party; and that being found, so that there was a record for him, thus warranted, he is let in to interplead with the king; but if the indorsement was special, then the proceeding was to be according to the indorsement in any other court. This is fully explained by Stamford (Staundfort) in his treatise of the Prær.