CHAPTER XIV. OF INJURIES PROCEEDING FROM OR AFFECTING THE CROWN. HAVING thus considered the civil injuries, or [private wrongs, that may be offered by one subject to another,-all of which are redressed by the command and authority of the sovereign signified by his writs returnable in his several courts of justice, which thence derive jurisdiction of examining and determining the complaint,-we proceed now to inquire into the mode of redressing those injuries, to which the Crown itself is a party. Which injuries are either when the Crown is the aggressor,-and which therefore cannot without a solecism admit of the same kind of remedy (a); or else is the sufferer, and which then are usually remedied by peculiar forms of process appropriated to the royal prerogative. In treating therefore of these we will consider, first, the manner of redressing those wrongs or injuries which a subject may suffer from the Crown; and then of redressing those, which the Crown may receive from a subject. I. As to the method of redressing such injuries as the subject may receive from the Crown. That the sovereign can do no wrong is a necessary and fundamental principle of the English constitution;] yet, as observed in a former part of this work, his acts may in themselves be contrary to law, and subject on that ground to reversal (b). (a) Bro. Ab. tit. Petition, 12, tit. Prerog. 2. (b) Vide sup. vol. 11. pp. 482, 498. For [whenever it happens that, by misinformation or inadvertence, the Crown hath been induced to invade the private rights of any of its subjects,] and the sovereign becomes by a proper representation informed of the injury sustained,—the law always then [presumes that to know of any injury and to redress it, are inseparable in the royal breast;] and [issues as of course, in the sovereign's own name, his order to his judges to do justice to the party aggrieved.] Though [the distance between the sovereign and his subjects is such that it rarely can happen,] as observed in a former place (c), [that any personal injury can proceed from the prince to any private man;] and the law [in decency supposes that it never can or will happen at all;] yet [injuries to the rights of property can scarcely be committed by the Crown without the intervention of its officers. And for these officers 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 sovereign has been deceived and induced to do a temporary injustice.] As in ordinary cases, however, the Crown itself is the medium through which justice is obtained, so no relief can in general be had against the Crown by the ordinary methods of the common law or equity (d); but only by such (c) Vide sup. vol. 1. p. 499. (d) 3 Bl. Com. 255; Jenkins, 78; Finch, L. 83. It is said, in some books, that before the time of Edward the first, the king might be sued as a common person, the form being, "Præcipe Henrico regi Anglia" but this seems of questionable authority. (See Bac. Ab. Prerog. E. 7.) Where the rights of the Crown, however, extend only to the superintendence of a public trust, as in the case of a charity, or where its rights are only in cidentally concerned, and no attempt is made to divest its possession or title, the proceeding may be by bill in Chancery, making the attorney-general defendant; and even when the object is to divest the title or possession of the Crown, the sovereign may refer it to the lord chancellor to do right; and may direct that the attorney-general shall be made a party to a suit in Chancery, to that purpose. See Christian's Bl. vol. iii. p. 428; Balch v. Wastall, 1 P. Wms. 445; Reeve v. special forms of proceeding as the common law has provided for this particular case. [The common law methods of obtaining possession or restitution from the Crown, of either real or personal property, are 1st, by petition de droit or petition of right; 2ndly, by monstrans de droit, manifestation or plea of right (e): both of which may be preferred or prosecuted either on the common law side of the Court of Chancery, or in the Exchequer (f). The former is of use when the Crown 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: in which case he must be careful to state truly the whole title of the Crown, otherwise the petition shall abate (g); and then, upon this answer being indorsed or underwritten by the Crown soit droit fait al partie-let right be done to the party (h),-a commission shall issue to inquire into the truth of the suggestion (i). After the return to which the attorney-general is at liberty to plead in bar; and the merits shall be determined upon issue or demurrer, as in suits between subject and subject. Thus, if a disseisor of lands which are holden of the Crown, dies seised without any heir, whereby the Crown is primâ facie entitled to the lands, and the possession is cast on it, either by inquest of office, or by act of law without any office found; now the disseisee shall, here, have remedy by petition of right,-suggesting the title of the Crown, and his own superior right before the disseisin made (k).] Attorney-General, 1 Ves. 445; Simpson v. Clayton, 4 Bing. N. C. 766; 2 Roll. Abr. 213; Mitf. Treat. on Pleadings in Chancery. (e) As to these remedies (the first of which is said to owe its origin to Edw. 1), see Co. Entr. 402, 419; Bro. Ab. tit. Prerog. 2; Fitz. Ab. tit. Error, 8; Smith v. Upton, 6 Man. & G. 252; Baron de Bode's case, 8 Q. B. 208; Simpson v. Clayton, ubi sup. See also a Treatise on the Prerogative of the Crown, by Mr. Chitty, jun.; where full information will be found as to the proceedings therein. (f) A petition of right may now, however, be instituted in any of the superior courts, (vide post, p. 71.) (g) Finch, L. 255. (i) Skin. 608; Rast. Ent. 461. But where the Crown is in possession, under a title the facts of which are already set forth upon record, a party thereby aggrieved may have monstrans de droit; which is putting in, in opposition to such recorded title, a claim of right grounded on certain facts relied upon by the claimant, without denying those relied upon by the Crown (4); [and praying the judgment of the court, whether upon those facts the sovereign or the subject had the right.] As if, in the case before supposed, it is found by inquisition or inquest of office, (a proceeding that we shall have occasion presently to explain,) that a tenant of the Crown died seised without heir, whereby the Crown is primâ facie entitled, the disseisee may have remedy by monstrans de droit at the common law (m), setting forth that he had been disseised by such tenant (n). And [as the remedy by petition was extremely tedious and expensive, that of monstrans was much enlarged, and rendered almost universal by several statutes (particularly 36 Edward III. c. 13, and 2 & 3 Edward VI. c. 8) which also allow inquisitions of office to be traversed (or denied), whenever the right of a subject is concerned, except in a very few cases (o).] As to the course of proceeding, we may remark, that [if upon either the petition de droit or monstrans de droit, the right be determined againt the Crown, the judgment is] that of ouster le main, or amoveas manus, viz. [“ quod manus domini regis amoveantur, et possessio restituetur petenti, salvo jure domini regis" (p)—which last clause is always added to judgments against the sovereign (q), to whom no laches is ever imputed; and whose right-till some late statutes (r), was never defeated by any limitation or length (1) According to Blackstone (vol. iii. p. 256), a monstrans de droit is putting in a claim of right founded on facts already acknowledged and established. But it is clear that new facts may be introduced in a monstrans de droit by virtue of the statutes 36 Edw. 3, c. 13, and 2 & 3 Edw. 6, c. 8. (See Co. Entr. 402.) (m) 4 Rep. 55. See also Bac. Abr. tit. Prerog. E. 7. (n) Co. Entr. ubi sup. (p) 2 Inst. 695; Rast. Ent. 463. (r) Vide sup. vol. 11. p. 503; vol. 11. pp. 563, 564. [of time. And by such judgment, the Crown is instantly out of possession (s); so that there needs not the indecent interposition of his own officers, to transfer the seisin, from the sovereign, to the party aggrieved.] The proceedings upon a petition of right, have however been made the subject of a recent statute (23 & 24 Vict. c. 34), under which the petition may, if the suppliant think fit, be intituled in any one of the superior courts of law or equity at Westminster, in which the subject-matter of the petition would have been cognizable, if the same had been a matter in dispute between subject and subject; and it is provided, that such petition shall be left with the secretary of state for the home department for her Majesty's consideration, who, if she shall think fit, may grant her fiat that right be done (on which fiat no fee or reward is to be taken); whereupon (the fiat having been served on the solicitor to the Treasury), an answer, plea, or demurrer shall be made on behalf of the Crown, and the subsequent proceedings be assimilated so far as practicable to the course of an ordinary action. And it is enacted, that, in cases in which a judgment of amoveas manus has heretofore been given on a petition of right, a judgment that the suppliant is entitled to the whole or some portion of the relief sought by his petition under this Act, or to such other relief, and in such terms and conditions as the court may think right, may be given instead, which shall have the same effect as such judgment of amoveas manus (t). Upon any petition of right under this Act, it is also provided, that costs shall be payable both to and by the Crown; subject to the same rules, so far as practicable, as obtain in proceedings between subject and subject (u). It is, however, provided, that nothing in the Act shall prevent any suppliant from proceeding as before it passed. (s) Finch, L. 459. (t) 23 & 24 Vict. c. 34, ss. 9, 10. (u) Sect. 12. As to the certificate for costs against the Crown, given by the judge dealing with the petition, to the Commissioners of the Treasury (or in matters affecting the crown in its private capacity, to the Treasurer of the Household,) see sects. 13, 14, et sched. No. 5. |