CHAPTER THE SEVENTEENTH. OF INJURIES PROCEEDING FROM, OR AFFECTING, THE CROWN. H AVING in the nine preceding chapters confidered the injuries, or private wrongs, that may be offered by one fubject to another, all of which are redreffed by the command and authority of the king, fignified by his original writs returnable in his several courts of justice, which thence derive a jurifdiction of examining and determining the complaint; I proceed now to inquire into the mode of redreffing those injuries to which the crown itself is a party: which injuries are either where the crown is the aggreffor, and which therefore cannot without a folecism admit of the fame kind of remedy; or elfe is the fufferer, and which then are usually remedied by peculiar forms of process, appropriated to the royal prerogative. In treating therefore of these, we will confider first, the manner of redreffing those wrongs or injuries which a subject may suffer from the crown, and then of redreffing those which the crown may receive from a fubject. I. THAT the king can do no wrong, is a neceffary and fundamental principle of the English conftitution: meaning only, as has formerly been obferved, that, in the first place, whatever may be amifs in the conduct of public affairs is not Bro. Abr. t. petition. 12. t. prerogativ. 2. Book I. ch. 7. pag, 243—246. 9 charge chargeable personally on the king; nor is he, but his minifters, accountable for it to the people: and, fecondly, that the prerogative of the crown extends not to do any injury; for, being created for the benefit of the people, it cannot be exerted to their prejudice. Whenever therefore it happens, that, by misinformation, or inadvertence, the crown hath been induced to invade the private rights of any of it's subjects, though no action will lie against the fovereign", (for who shall command the king?) yet the law hath furnished the fubject with a decent and respectful mode of removing that invafion, by informing the king of the true state of the matter in dispute: and, as it presumes that to know of any injury and to redress it are infeparable in the royal breast, it then iffues as of course in the king's own name, his orders to his judges to do justice to the party aggrieved. THE diftance between the fovereign and his fubjects is fuch, that it rarely can happen that any personal injury can immediately and directly proceed from the prince to any private man: and, as it can fo feldom happen, the law in decency fuppofes that it never will or can happen at all; because it feels itself incapable of furnishing any adequate remedy, without infringing the dignity and destroying the fovereignty of the royal perfon, by setting up fome fuperior power with authority to call him to account. The inconveniency therefore of a mischief that is barely poffible, is (as Mr. Locke has obferved) well recompenfed by the peace of the public and fecurity of the government, in the perfon of the chief magiftrate being fet out of the reach of coercion. But injuries to the rights of property can scarcely be committed by the crown without the intervention of it's officers; for whom the law in matters of right entertains no respect or delicacy, but furnishes various methods of detecting the errors or misconduct of those agents, by whom the king has been deceived, and induced to do a temporary injuftice. c Plowd. 487. d Jenkins. 78. e Finch. L. 83. THE any THE Common law methods of obtaining poffeffion or reftitution from the crown, of either real or perfonal property, are, 1. By petition de droit, or petition of right, which is faid to owe it's original to king Edward the firft . 2. By monftrans de droit, manifeftation or plea of right: both of which may be preferred or prosecuted either in the chancery or exchequer. The former is of use, where the king is in full possession of hercditaments or chattels, and the petitioner fuggefts fuch a right as controverts the title of the crown, grounded on facts disclosed in the petition itself; in which cafe he must be careful to state truly the whole title of the crown, otherwise the petition fhall abate: and then, upon this answer being endorsed or underwritten by the king, foit droit fait al partie, (let right be done to the party j,) a commiflion shall iffue to inquire of the truth of this fuggeftion: after the return of which, the king's attorney is at liberty to plead in bar; and the merits fhall be determined upon iffue or demurrer, as in fuits between subject and subject. Thus, if a disseisor of lands, which are holden of the crown, dies feised without any heir, whereby the king is prima facie entitled to the lands, and the poffeflion is caft on him either by inqueft of office, or by act of law without any office found; now the diffeifee fhall have remedy by petition of right, fuggesting the title of the crown, and his own fuperior right before the diffeifin made'. But where the right of the party, as well as the right of the crown, appears upon record, there the party fhall have monftrans de droit, which is putting in a claim of right grounded on facts already acknowleged and established, and praying the judgment of the court, whether upon thofe facts the king or the fubject hath the right. As if, in the cafe before fuppofed, the whole fpecial matter is found by an inquest of office, (as well the diffeifin, as the dying without any heir,) the party grieved fhall have monftrans de droit at the common law ". But as this feldom happens, and the remedy by petition was extremely tedious and expensive, that by monftrans was much enlarged and rendered almost univerfal by several ftatutes, particularly 36 Edw. III. c. 13. and 2 & 3 Edw. VI. c. 8. which also allow inquisitions of office to be traverfed or denied, wherever the right of a fubject is concerned, except in a very few cafes ". These These proceedings are had in the petty bag office in the court of chancery: and, if upon either of them the right be determined. against the crown, the judgment is, quod manus domini regis amoveantur et poffeffio reftituatur petenti, falvo jure domini regis; which laft clause is always added to judgments against the king, to whom no laches is ever imputed, and whose right (till fome late ftatutes ) was never defeated by any limitation or length of time. And by fuch judgment the crown is inftantly out of poffeffion; so that there needs not, the indecent interpofition of his own officers to transfer the feifin from the king to the party aggrieved. II. THE methods of redreffing such injuries as the crown may receive from the subject are, 1. By fuch ufual common law actions, as are confiftent with the royal prerogative and dignity. As therefore the king, by reafon of his legal ubiquity, cannot be diffeifed or difpoffeffed of any real property which is once vefted in him, he can maintain no action which fuppofes a difpoffeffion of the plaintiff; fuch as an affife or an ejectments: but he may bring a quare impedit, which always fuppofes the complainant to be feifed or poffeffed of the advowfon: and he may profecute this writ, like every other by him brought, as well in the king's bench" as the common pleas, or in whatever court he pleases. So too, he may bring an action of trefpafs for taking away his goods, but fuch actions are not usual (though in strictness maintainable) for breaking his clofe, or other injury done upon his foil or poffeffion ". It would be equally tedious BOOK III: and difficult, to run through every minute diftinction that might be gleaned from our antient books with regard to this matter; nor is it in any degree neceffary, as much easier and more effectual remedies are ufually obtained by fuch prerogative modes of procefs, as are peculiarly confined to the crown. 2. SUCH is that of inquifition or inqueft of office; which is an inquiry made by the king's officer, his theriff, coroner, or efcheator, virtute officii, or by writ to them fent for that purpofe, or by commiflioners fpecially appointed, concerning any matter that entitles the king to the poffeffion of lands or tenements, goods or chattels *. This is done by a jury of no determinate number; being either twelve, or lefs, or more. As, to inquire, whether the king's tenant for life died feifed, whereby the reversion accrues to the king: whether A, who held immediately of the crown, died without heirs; in which cafe the lands belong to the king by efcheat: whether B be attainted of treafon; whereby his eftate is forfeited to the crown: whether C, who has purchased lands, be an alien; which is another cause of forfeiture: 'whether D be an idiot a nativitate; and therefore, together with his lands, appertains to the cuftody of the king: and other queftions of like import, concerning both the circumftances of the tenant, and the value or identity of the lands. Thefe inquefts of office were more frequently in practice than at prefent, during the continuance of the military tenures amongst us when, upon the death of every one of the king's tenants, an inqueft of office was held, called an inquifitio poft mortem, to inquise of what lands he died feifed, who was his heir, and of what age, in order to entitle the king to his marriage, wardship, relief, primer-feifin, or other advantages, as the circumftances of the cafe might turn out. To fuperintend and regulate these inquiries the court of wards and liveries was inftituted by ftatute 32 Hen. VIII. c. 46, which was abolished at the restoration of king Charles the fecond, together with the oppreffive tenures upon which it was founded. * Finch. L. 323, 4, 5. |