1793.
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 Comyn’s Dig. 4 Vol. 458. It is said expressly “suit shall be to the King by petition, for goods as well as for land.” He cites Staunds. 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 Blackstone’s Commentaries, 3 Vol. 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 over-ruled in that particular. As to all others I consider the authorities on which he relied, and his deduction from them, to be unimpeached.
Blackstone, in the first volume of his commentaries (p. 203), 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, say 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 persuade 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 partie, (let right be done to the party); upon which, unless the Attorney-General confesses the suggestion, a commission is issued to enquire into the truth of it; after the return of which the King’s attorney is at liberty to