Page:English Historical Review Volume 37.djvu/583

 1922 REVIEWS OF BOOKS 575 officials in consequence of the inquisitions of 1274-5 they must be looked for in the records of the exchequer. The servants of the king could not be proceeded against in the ordinary courts for acts done in the execution of their duty. The proper procedure was to bring the matter before the king, who, if he considered that injustice had been done, would refer the case to the treasurer and barons of the exchequer. It was not, however, a droit administratif in the sense of a privilege inherent in a class. The privilege was the king's, and it could be and was sometimes waived both in individual cases and on a wider scale by statute. Both in cases of administrative oppression and of accidental injustice done to the subject the theory was that the king had no other wish than to give a full and speedy remedy. It was in this sense only that it could then be said that ' the king can do no wrong '. If the practice not infre- quently lagged behind the theory, this was in part due to the precautions which the servants of the Crown had to observe, in their own interest no less than the king's, before parting with anything of which it was actually in possession, and in part to the inevitable tendency of royal judges to interpret the law favourably to the king where a complete remedy would have been excessively inconvenient for him. A good illustration of this preferential treatment is the ruling that moneys might be recovered so long as they remained in the hands of local officials, but not after they had been paid into the royal exchequer. Stubbs was inclined to believe that down to the early years of Henry Ill's reign the king could be sued by writ in the ordinary course, and there are certainly statements both contemporary and later that he could be impleaded like a subject. Dr. Ehrlich rejects the view adopted by Stubbs decisively as quite inconsistent with the principle applied throughout Henry's reign that whatever touched the king must be determined by him. The statements in question mean no more, he maintains, than that before the practice of written petitions to the king was introduced, the aggrieved subject might come coram rege and state his case. There would be a petitio, but a petitio in the older sense in which the word is used by Bracton, that of an ' action ', a ' request for something in a legal sense '. Dr. Ehrlich shows good ground for accepting the tradition of the fourteenth-century lawyers that the petition in writing as an obligatory method of laying complaints (querele) before the king was deliberately introduced by Edward I between 1275 and 1278, when the first group of such petitions occurs. In making this order he was probably influenced by continental models which can apparently be traced back to the practice of the papal curia. As is well known, petitions were from the first normally presented to the king or to the king and his council in parliament, but they could be received in meetings of the council which were not technically parliaments, and there is one which seems to be endorsed by the king's private order. When, however, the abbot of Stanley sued ' par plusoures Billes en Parlementz et hors de Parlementz ', is it not possible that the latter may have been bills in eyre, not in council, or to the king alone, as Dr. Ehrlich seems to assume ? He does not consider the relation to the bill in parliament of the bill in eyre which also started proceedings without a writ and first appears a few years later.