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it presumes that to know of any injury and to redress it are inseparable in the royal breast, it then issues as of course, in the king's own name, bis orders to bis judges to do justice to the party aggrieved.

The distance between the sovereign and his subjects is such, 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 so seldom happen, the law in decency supposes that it never will or can happen at all; because it feels itself incapable of furnishing any adequate remedy, without infringing the dignity and destroy. ing the sovereignty of the royal person, by setting up some superior power with authority to call him to account. The inconveniency therefore of a mischief that is barely possible is (as Mr. Locke has observed)(f) well recompensed by the peace of the public and security of the government, in the person of the chief magistrate being set out of the reach of coercion. But injuries to the rights of property can scarcely be committed by the crown without the intervention of its 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 injustice.

*The common-law methods of obtaining possession or restitution from *256]

the crown, of either real or personal property, are, 1. By petition de droit, or petition of right: which is said to owe its original to king. Edward the First.(9) 2. By monstrans de droit, manifestation or plea of right: both of which may be preferred or prosecuted either in the chancery or exchequer.(h) The former is of use, where the king 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 ;(i) and then, upon this answer being endorsed or underwritten by the king, soit droit fait al partie, (let right be done to the party,)(1) a commission shall issue to inquire of the truth of this suggestion:(k) after the return of which, the king's attorney 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 king is prima facie entitled to the lands, and the possession is cast on him either by inquest of office, or by act of law without any

office found; now the disseisee shall have remedy by petition of right, suggesting the title of the crown, and his own superior right before the disseisin made.(I) But where the right of the party, as well as the right of the crown, appears upon record, there the party shall have monstrans de droit, which is putting in a claim of right grounded on facts already acknowledged and established, and praying the judgment of the court, whether upon those facts the king or the subject hath the right. As if, in the case before supposed, the whole special matter is found by an inquest of office, as well the disseisin, as the dying without an beir,) the party grieved shall have monstrans de droit at the common law.(m) *257]

But as this seldom happens, and *the remedy by petition was extremely

tedious and expensive, that by monstrans was much enlarged and rendered almost universal by several statutes, particularly 36 Edw. III. c. 13, and 2 & 3 Edw. VI. c. 8, which also allow inquisitions of office to be traversed or denied wherever the right of a subject is concerned, except in a very few cases.(n) 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 possessio restituatur petenti, salvo jure domini regis ;(0) which last clause is always added to judgment against the king,(p) to whom no laches is ever imputed, and whose right (till some late Htatutes) (9) was never defeated by any limi'ition or length of time. And by (s) On Govt. p. 2, & 205.

(%) Bro. Abr. tit. petition, 20. 4 Rep. 58 () Bro. Abr. tit. preroyative, 2 Fitz. Abr. tit. error, 8. 1o) Finch, L. 256.

(9) Shin. 609.

4 Rep. 55. (*) Skin. 008.

2 Inst. 695. Rast. Entr. 463.
(P) Finch, L. 460.
() 21 Jac. I. c. 2. 9 Geo. III. c. 10

InStat. Tr. vii. 134.
11) Slan. 608 Eas. Eat 461.

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such judgment the crown is instantly out of possession :(r) so that there neede not the indecent interposition of his own officers to transfer the seisin from the king to the party aggrieved.

II. The methods of redressing such injuries as the crown may receive from the subject are,

1. By such usual common-law actions as are consistent with the royal pro rogative and dignity. As therefore the king, by reason of his legal ubiquity, cannot be disseised or dispossessed of any real property which is once vested in him, he can maintain no action which supposes a dispossession of the plaintiff; such as an assize or an ejectment;(8)' but he may bring a quare impedit, t) which always supposes the complainant to be seised or possessed of the advowson; and he may prosecute this writ, like every other by him brought, as well in the king's bench(u) as the common pleas, or in whatever court he pleases. So, too, he may bring an action of trespass for taking away his goods; but such actions are not usual (though in strictness maintainable) for breaking his close, or other injury done upon his soil or possession.(w) It would be equally tedious *and difficult, to run through every minute distinction that might be

[*258 gleaned from our antient books with regard to this matter; nor is it in any degree necessary, as much easier and more effectual remedies are usually obtained by such prerogative modes of process as are peculiarly confined to the crown.

2. Such is that of inquisition, or inquest of office; which is an inquiry made by the king's officer, his sheriff, coroner, or escheator, virtute officii, or by writ to them sent for that purpose, or by commissioners specially appointed, concerning any matter that entitles the king to the possession of lands or tenements, goods or chattels.(x) This is done by a jury of no determinate number, being either twelve, or less, or more. As, to inquire whether the king's tenant for life died seised, whereby the reversion accrues to the king; whether A., who held immediately of the crown, died without heirs, in which case the lands belong to the king by escheat; whether B. be attainted of treason, whereby his estate 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 custody of the king; and other questions of like import, concerning both the circumstances of the tenant and the value or identity of the lands. These inquests of office were more frequently in practice than at present during the continuance of the military tenures among us; when, upon the death of every one of the king's tenants, an inquest of office was held, called an inquisitio post mortem, to inquire of what lands he died seised, who was his heir, and of what age, in order to entitle tho king to his marriage, wardship, relief, primer-seisin, or other advantages, as the circumstances of the case might turn out. To superintend and regulate these inquiries, the court of wards and liveries was instituted by statute 32 Hen. VIII. c. 46, which was abolished at the restoration of king Charles the Second, together with the oppressive tenures upon which it was founded. With regard to other matters, the inquests of office still remain in

[*259 force, and are taken upon proper occasions; being extended not only to

Bro, Abr. tit. prerog. 130. F. N. B. 90. Year-book.

Finch, L. 459.
( Bro. Abr. tit. prerogative, 89.
( F. N. B. 32.
(*) Dyversyté des courtes, c. bank le roy.

4 Hen. IV. 4.

(*) Finch, L. 323, 324, 325.

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? But this objection to an ejectment does not seem to apply where the king is lessor of the plaintiff; for it is the lessee, and not the lessor, who is supposed by the legal fiction to be ousted; and it is held that where the possession is not actually in the king, but in lease to another, then, if a stranger enter on the lessee, he gains possession without taking the reversion out of the crown, and may have his ejectment to recover the possession if he be afterwards ousted, because there is a possession in pais, and not in the king, and that possession is not privileged by prer gative. Hence it follows that the king's lessee may likewise have an ejectment to pun sh the trespasser and to recover the possession which was taken from him. 2 Leon. 206. Cro. Eliz. 331. Adams on Ejectm. 72.Світту

lands, but also to goods and chattels personal, as in the case of wreck, treasuro. trove, and the like; and especially as to forfeitures for offences. For every jury which tries a man for treason or felony, every coroner's inquest that sits upon a felo de se or one killed by chance-medley, is, not only with regard to chattels, but also as to real interests in all respects, an inquest of office; and if they find the treason or felony, or even the flight, of the party accused, (though innocent,) the king is thereupon, by virtue of this office found, entitled to have his forfeitures; and also, in case of chance-medley, he or his grantees are entitled to such things, by way of deodand, as have moved to the death of the party.

These inquests of office were devised by law, as an authentic means to give the king his right by solemn matter of record, without which he, in general, can neither take nor part from any thing:(y) For it is a part of the liberties of England, and greatly for the safety of the subject, that the king may not enter upon and seize any man's possession upon bare surmises without the in. tervention of a jury.(z) It is, however, particularly enacted by the statute of 33 Hen. VIII. c. 20, that in case of attainder for high treason the king shall have the forfeiture instantly, without any inquisition of office. And as the king bath (in general) no title at all to any property of this sort before office found, therefore, by the statute 18 Hen. VI. c. 6, it was enacted, that all letterspatent or grants of lands and tenements before office found, or returned into the exchequer, shall be void. And, by the bill of rights at the revolution, 1 W. and M. st. 2, c. 2, it is declared that all grants and promises of fines and for. feitures of particular persons before conviction (which is here the inquest of office) are illegal and void; which, indeed, was the law of the land in the reign of Edward the Third.(a) *260]

*With regard to real property, if an office be found for the king, it

puts him in immediate possession, without the trouble of a formal entry, provided a subject in the like case would have had a right to enter; and the king shall receive all the mesne or intermediate profits from the time his title accrued.(6) As, on the other hand, by the articuli super cartas,(c) if the king's escheator or sheriff seize lands into the king's hand without cause, upon taking them out of the king's hand again the party shall have the mesne profits restored to him.

In order to avoid the possession of the crown, acquired by the finding of such office, the subject may not only have his petition of right, which discloses new facts not found by the office, and his monstrans de droit, which relies on the facts as found; but also he may (for the most part) traverse or deny the matter of fact itself, and put it in a course of trial by the common-law process of the court of chancery yet still, in some special cases, he hath no remedy left but a mere petition of right.(d) These traverses, as well as the monstrans de droit, were greatly enlarged and regulated for the benefit of the subject by the statutes before mentioned, and others.(e) And in the traverses thus given by statute, which came in the place of the old petition of right, the party traversing is considered as the plaintiff, (f) and must therefore make out his own title, as well as impeach that of the crown, and then shall have judgment quod manus domini regis amoveantur, &c.

3. Where the crown hath unadvisedly granted any thing by letters-patent which ought not to be granted,(g) or where the patentee hath done an act *261]

that amounts to a forfeiture of *the grant,(h) the remedy to repeal the

patent is by a writ of scire facias in chancery.(i) This may be brought, either on the part of the king, in order to resume the thing granted; or, if the grant be injurious to the subject, the king is bound of right to permit him (upon his petition) to use his royal name for repealing the patent in & scire facias.(k) And so also, if upon office untruly found for the king ho grants the land over to another, he who is grieved thereby and traverses the office itself is entitled, before issue joined, to a scire facias against the patentee in order to avoid the grant.(I)

(v) Finch, L. 82.
(*) Gilb, Hist. Exch. 132. Hob. 347.
() 2 Inst. 48.
() Finch, L. 325, 326.

25 Edw. I. st. 3, c. 19.

Finch, L. 324.

() Stat. 34 Edw. III. c. 13. 36 Edw. III. c. 13. 2 & 3 Edu VI. c. 8.

Law of Nisi Prius, 201, 202.
(0) See book ii. ch. 21.
(*) Dyer, 198.

3 Lev. 220. 2 Inst. 88

4. An information on behalf of the crown, filed in the exchequer by the king's attorney-general, is a method of suit for recovering money or other chattels, or for obtaining satisfaction in damages for any personal wrong(m) committed in the lands or other possessions of the crown. It differs from an information filed in the court of king's bench, of which we shall treat in the next book, in that this is instituted to redress a private wrong, by wbich the property of the crown is affected; that is calculated to punish some public wrong, or heinous misdemeanour in the defendant. It is grounded on no writ under seal, but merely on the intimation of the king's officer, the attorney-general, who "gives the court to understand and be informed of” the matter in question: upon which the party is put to answer, and trial is had, as in suits between subject and subject. The most usual informations are those of intrusion and debt: intrusion, for any trespass committed on the lands of the crown,(n) as by entering thereon without title, holding over after a lease is determined, taking the profits, cutting down timber, or the like; and debt, upon any contract for moneys due to the king, or for any forfeiture due to the crown upon the breach of a penal statute. This is most commonly used to recover forfeitures occasioned by transgressing those laws which are enacted for the establishment *and support of the revenue; others, which regard mere matters of police and public convenience,

[*262 being usually left to be enforced by common informers, in the qui tam informations or actions, of which we have formerly spoken.(0) But after the attorneygeneral bas informed upon the breach of a penal law, no other information can be received.(p) There is also an information in rem, when any goods are supposed to become the property of the crown, and no man appears to claim them, or to dispute the title of the king: As antiently in the case of treasure-trove, wrecks, waifs, and estrays, seised by the king's officer for his use. Upon such Boisure an information was usually filed in the king's exchequer, and thereupon a proclamation was made for the owner (if any) to come in and claim the effects; and at the same time there issued a commission of appraisement to value tho goods in the officer's hands; after the return of which, and a second proclamation had, if no claimant appeared, the goods were supposed derelict, and condenned to the use of the crown.(q) And when, in later times, forfettures of the goods themselves, as well as personal penalties on the parties, were inflicted by act of parliament for transgressions against the laws of the customs and excise, the same process was adopted in order to secure such forfeited goods for tho public use, though the offender himself had escaped the reach of justice.

5. A writ of quo warranto is in the nature of a writ of right for the king, against him who claims or usurps any office, franchise, or liberty, to inquire by what authority he supports his claim, in order to determine the right.(r). It lies also in case of non-user or long neglect of a franchise, or mis-user or abuso of it; being a writ commanding the defendant to show by what warrant he ex. ercises such a franchise, having never had any grant of it, or having forfeited it by neglect or abuse. This was originally returnable before the king's justicee

(*) 2 Ventr. 314.
(!) Bro. Abr. tit. scire facias, 69, 185.
(**) Moor. 375.
(*) Cro. Jac. 212. 1 Leon. 48. Savil. 49.

() See pago 162.
(P) Hardr. 201.
(9) Gilb. Hist. of Exch. c. 13.
(1) Finch, L. 322.2 Inst. 282.

'It must not be forgotten that, although it is said the writ of quo warranto lies against him who claims or usurps any office, a limitation is implied by the fact that it is in the nature of a writ of right for the king. Upon this principle, when an application was made for a quo warranto information to try the validity of an election to the office of church warden, lord Kenyon said that this was not a usurpation on the rights or prerogativen of the crown, for which only the old writ of quo warranto lay; and that an information in nature of a quo warranto could only be granted in such cases. 4 T. R. 381. See also 2 Stra. 1196. Bott. pl. 107. And the writ was also refused in a case of forfeiture of . rocorder's place. 2 Stra. 819 – Chitty. VOL. II.-12




at Westminster;(s) but afterwards only *before the justices in eyre, by

virtue of the statutes of quo warranto, 6 Edw. I. c. 1, and 18 Edw. I. st. 2;(t) but since those justices have given place to the king's temporary commis sioners of assize, the judges on the several circuits, this branch of the statutes hath lost its effect;(u) and writs of quo warranto (if brought at all) must now be prosecuted and determined before the king's justices at Westminster. And in caso of judgment for the defendant, he shall have an allowance of his fran. chise ; but in case of judgment for the king, for that the party is entitled to no such franchise, or hath disused or abused it, the franchise is either seised into the king's hands, to be granted out again to whomever he shall please; or, if it be not such a franchise as may subsist in the hands of the crown, there is merely judgment of ouster, to turn out the party who usurped it.(w)

The judgment on a writ of quo warranto (being in the nature of a writ of right) is final and conclusive even against the crown.(x) Which, together with the length of its process, probably occasioned that disuse into which it is now fallen, and introduced a more modern method of prosecution, by information filed in the court of king's bench by the attorney-general, in the nature of a writ of quo warranto; wherein the process is speedier, and the judgment not quite so decisive. This is properly a criminal method of prosecution, as well to punish the usurper by a fine for the usurpation of the franchise, as to oust him, or seise it for the crown; but hath long been applied to the mere purposes of trying the civil right, seising the franchise, or ousting the wrongful possessor; the fine being nominal only.

During the violent proceedings that took place in the latter end of the reign of king Charles the Second, it was, among other things, thought expedient to new-model most of the corporation-towns in the kingdom; for which purpose *264]

many of those *bodies were persuaded to surrender their charters, and

informations in the nature of quo warranto were brought against others, upon a supposed, or frequently a real, forfeiture of their franchises by neglect or abuse of them. And the consequence was, that the liberties of most of them were seised into the hands of the king, who granted them fresh charters, with buch alterations as were thought expedient; and, during their state of anarchy, the crown named all their magistrates. This exertion of power, though perhaps in summo jure it was for the most part strictly legal, gave a great and just alarm; the new-modelling of all corporations being a very large stride towards establishing arbitrary power; and therefore it was thought necessary at the revolution to bridle this branch of the prerogative, at least so far as regarded tho metropolis, by statute 2 W. and M. c. 8, which enacts, that the franchises of the city of London shall never hereafter be seised or forejudged for any for. feiture or misdemeanour whatsoever.

This proceeding is, however, now applied to the decision of corporation din. putes between party and party, without any intervention of the prerogative, by virtue of the statute 9 Anne, c. 20, which permits an information in nature of quo warranto to be brought with leave of the court, at the relation of any person desiring to prosecute the same, (who is then styled the relator,) against any person usurping, intruding into, or unlawfully holding any franchise or office in any city, borough, or town corporate; provides for its speedy determination; and directs that, if the defendant be convicted. judgment of ouster (as well as fine) may be given against him, and that the relator shall pay or receive costs according to the event of the suit.'

(9) Old Nat. Brev. fol. 107, edit. 1531.

(w) Cro. Jac. 259. 1 Show. 280.

1 Sid. 86. 2 Show. 47. 12 Mod. 225.

( 2 Inst. 498. Rast. Entr. 510.
(") 2 Inst. 498.

* This statute, with regard to costs, extends only to cases where the title of a person to be a corporate officer—as mayor, bailiff, or freeman-is in question ; but an informa tion to try the right of holding a court is not within it, but stands upon the common law only, and, being a prosecution in the name of the king, no costs are given. 1 Burr. 402. The court of King's Bench, having a discretionary power of granting informations in the aature of quo warranto, had long ago established a general rule to guide their discretion, --viz., not to allow in any case an information in the nature of q:10 warranto against an:

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