438
Cases ruled and adjudged in the
1793.
Somers, in the time of W. III. for, though that case was ultimately decided against Lord Somers’s opinion, yet the ground on which the decision was given no way invalidates the reasoning of that argument, so far as it respects the simple case of a sum of money demandable from the King, and not by him secured on any particular revenues. The case is reported in Freeman, Vol. 1. p. 331.5 Mod. 29. Skinn. 601. and lately very elaborately in a small pamphlet published by Mr. Hargrave, which contains all the reports at length, except Skinner’s, together with the argument at large of Lord Somers; besides some additional matter.
The substance of the case was as follows:—King Charles II. having received large sums of money from bankers, on the credit of the growing produce of the revenue, for the payment of which, tallies and orders of the Exchequer were given (afterwards made transferable by statute) and the payment of these having been afterward postponed, the King at length, in order to relieve the Bankers, in 1677, granted annuities to them out of the hereditary Excise, equal to 6 per cent interest on their several debts, but redeemable on payment of the principal. This interest was paid ’till 1683; but it then became in arrear, and continued so at the Revolution; and the suits which were commenced to enforce the payment of these arrears, were the subject of this case. The Bankers presented a petition to the Barons of the Exchequer, for the payment of the arrears of the annuities granted; to which petition the Attorney General demurred. Two points were made: First, whether the grant out of the Excise was good; second, 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 authorised 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,
