84 TRANSACTIONS. I90I-2 



the question than this for your consideration. 



In the report of a case determined in the year 1351 

 (the twenty -fourth of the reign of King Edward III) (i) 

 Wilby, C. J. of the Common Pleas, declared he had 

 seen a writ thus framed: Praecipe Henrico Regi Angliae 

 8lc., — "in lieu whereof," he says, "is now given 

 petition by the prerogative." Wilby 's statement has been 

 severely criticized by Brooke, C. J. in his Abridgemenfy 

 tit. 'Petition' 12 and tit. 'Prerog.' 2(d), and by Erie, C. J. in the 

 comparatively recent case of Tobin v. The Queen (2). But 

 such criticism entirely overlooks other ancient authorities 

 quoted by Mr. Horwood, the translator and editor of certain 

 of the Year Books, who says (3) r 



The ordinance of the Council and of the twelve chosen by the Commons made 

 in the year 1258, and contirmed by Henry III. in the following year, seems plainly to 

 Kive the subject the right to sue- by writ against the King ; (See Rymer's "Foedera," i 

 .181, ed. 1816) and it ra\Y have been one of the writs issued after this provision that 

 Wilby saw. 



Bishop Stubbs (4) thinks that Chief Justice Wilby's 

 statement has much corroboration in the older reports of 

 cases; and Mr. Alfred Cutbill, in a valuable es.say on Petition 

 of Right (5) seemingly adopts the authorities cited by 

 Mr. Horwood as substantiating that up to the time of 

 Edward I. the subject's right to sue the King by writ was un- 

 doubted, but that in this reign petition of right was 

 declared to be the cnly remedy against him, .not by an Act of 

 Parliament, but by a mere ordinance of the King himself. 



As this ' mere ordinance of the King' harmonized with 

 the theory of the attorneys of that day that the King ought 

 not to command himself, my owa view of the matter is that 

 they were able, by appealing to the material interests of their 

 clients, to stifle the protesting voice of popular rights. 

 " Humor the King in his royal whim," one might fancy them 



(1) Y. B. 24Edw. UI. 55 b. 



(2) IC C. P.. N. S. 356. 



(3) Y. B. 33 and 35Edw. I, Introd. XVI. 



(4) Const. Hist. Eng. ii., p. 250. 

 (0) Pp 8 and 9. 



