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formado por un único campo de gules en que aparecen tres leones pasantes y
contorneados de oro, lampasados y armados o uñados de azur.
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HAVING in the nine preceding chapters considered the injuries, or private wrongs, that may be offered by the command and authority of the king, signified by his original writs returnable in his several courts of justice, which thence derive a jurisdiction of examining and determining the complaint; I proceed now to inquire of the mode of redressing those injuries to which the crown itself is a party: which injuries are either where the crown is the aggressor, and which therefore cannot without a solecism admit of the same kind of remedy;1 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. THAT the king can do no wrong, is a necessary and fundamental principle of the English constitution: meaning only, as has formerly been observed,2 that, in the first place, whatever may be amiss in the conduct of public affairs is not chargeable personally on the king; nor is he, but his ministers, accountable for it to the people: and, secondly, 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.3 Whenever therefore it happens, that, by misinformation or inadvertence, the crown has been induced to invade the private rights of any of its subject, though no action will lie against the sovereign,4 (for who shall command the king?5) yet the law has furnished the subject with a decent and respectful mode of removing that invasion, by informing the king of the true state of the matter in dispute: and, as it presumes that to know of an injury and to redress it are inseparable in the royal breast, it then issues as of course, in the king’s own name, his orders to his 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 destroying the sovereignty of the royal person, by setting up some superior power with authority to call him to account. The inconvenience therefore of a mischief that is barely possible, is (as Mr. Locke has observed6) 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 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.7 2. By monstrans de droit [showing of right], manifestation or plea of right: both of which may be preferred or prosecuted either in the chancery or exchequer.8 The former is of use, where the king is in full possession of the hereditaments or chattels, and the party suggests such a right as controvert 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:9 and then, upon this answer being endorsed or underwritten by the king, upon this answer being endorsed or underwritten by the king, soit droit fait al partie (let right be done to the party10) a commission shall issue to inquire of the truth of this suggestion:11 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 disseizor of lands, which are held of the crown, dies seized without any heir, whereby the king is prima facie [on its face] 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 disseizee shall have remedy be petition of right, suggesting the title of the crown, and his own superior right before the disseizin made.12 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 has the right. As if, in the case before supposed, the whole special matter is found by an inquest of office, (as well the disseizin, as the dying without any heir) the party grieved shall have monstrans de droit at the common law.13 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.14 These proceedings are had in the petty bag office in the court of chancery: and, if upon either rof them the right be determined against the crown, the judgment is, quod manus domini regis amoveantur et possessio restituatur petenti, salvo jure domini regis [that the king’s hand be removed, and possession restored to petitioner, saving the king’s right];15 which last clause is always added to judgments against the king,16 to whom no laches [delay] is ever imputed, and whose right is never defeated by any limitation or length of time. And by such judgment the crown is instantly out of possession;17 so that there needs not the indecent interposition of his own officers to transfer the seizin from the king to the party aggrieved.
II. THE methods of redressing such injuries as the crown may receive from a subject, are,
1. BY such usual common law actions, as are consistent with the royal prerogative and dignity. As therefore the king, by reason of his legal ubiquity, cannot be disseized 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:18 but the may bring a quare impedit [why impeded],19 which always supposes the complainant to be seized or possessed of the advowson: and he may prosecute this writ, as well as every other, 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 trespass for taking away his goods; but not for breaking his close, or any other injury done upon his soil or possession.20 It would be equally tedious and difficult, to run through every minute distinction that might be gleaned from our ancient 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 [by virtue of office], or by writ to them sent for the purpose, or by commissioners specially appointed, concerning any matter that entitles the king to the possession of lands or testaments, goods or chattels.21 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 seized, 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 attained 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 [from birth]; 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 amongst us: when, upon the death of every one of the king’s tenants, an inquest of office was held, called an inquisitio post mortem [inquest after death], to inquire of what lands he died seized, who was his heir, and of what age, in order to entitle the king to his marriage, wardship, relief, primer-seizin, 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 force, and are taken upon proper occasions; being extended not only to lands but also to goods and chattels personal, as in the case of wreck, treasure-trove, and the like; and especially as to forfeitures for offenses. For every jury which tries a man for treason or felony, every coroner’s inquest that sits upon a felo de se [suicide], or one killed by chancemedley [accident], 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 the case of chancemedley, 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.22 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 or seize any mans’ possessions upon bare surmises without the intervention of a jury.23 It is however particularly enacted by the statute 33 Hen. VIII. c. 20. that, in case of attainder for high treason, the king shall have the forfeiture instantly, without any inquisition of this sort before office found, therefore by the statute 18 Hen. VI. c. 6. it was enacted, that all letters patent or grants of lands and tenements before office found, or returned into the exchequer, shall be void. And, by he bill of rights at the revolution, 1 W. & M. St. 2. c. 2. it is declared, that all grants and promises of fines and forfeitures 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.24
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 that his title accrued.25 As on the other hand, by the articuli super cartas [articles upon the charters],26 if the king’s escheator or sheriff seize lands into the king’s hand without cause, upon taking them out of the kings 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 has no remedy left but a mere petition of right.27 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.28 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;29 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, etc.
3. WHERE the crown has unadvisedly granted any thing by letters patent, which ought not to be granted,30 or where the patentee has done an act that amounts to a forfeiture of the grant,31 the remedy to repeal the patent is by writ of scire facias [show cause] in chancery.32 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 a subject, the king is bound of right to permit him (upon his petition) to use his royal name for repealing the patent in a scire facias.33 And so also, if, upon office untruly found for the king, he 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.34
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 wrong35 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 which the property of the crown is affected, that is calculated to punish some public wrong, or heinous misdemeanor 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,36 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 monies 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 conveyance, being usually left to be enforced by common informers, in the qui tam [popular] informations or actions, of which we have formerly spoken.37 But after the attorney general has informed upon the breach of a penal law, no other information can be received.38 There is also an information in rem [in respect to the thing], when any goods are supposed to become the property of the crown, and no man appears to claim them, or to dispute the title or the king. As anciently in the case of treasure-trove, wrecks, waifs, and estrays, seized by the king’s officer for his use. Upon such seizure an information was usually filed in the king’s exchequer, and thereupon a proclamation was made for the owner (if any) to come in the claim the effects; and at the same time there issued a commission of appraisement to value the 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 condemned to the use of the crown.39 And when, in later times, forfeitures 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 the public use, though the offender himself had escaped the reach of justice.
5. A WRIT of quo warranto [by what warrant] 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.40 It lies also in case of non-user or long neglect of a franchise, or mis-user or abuse of it; being a writ commanding the defendant to show by what warrant he exercises 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 justices at Westminster;41 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. 2.42 but since those justices have given place to the king’s temporary commissioners of assize, the judges on the several circuits, this branch of the statutes has lost its effect;43 and writs of quo warranto (if brought at all) must now be prosecuted and determined before the king’s justices at Westminster. And is case of judgment for the defendant, he shall have an allowance of his franchise; but in case of judgment for the king, for that the party is entitled to no such franchise, or has disused or abused it, the franchise is either seized 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.44
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.45 Which, together with the length 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 seize it for the crown: but has long been applied to the mere purposes of trying the civil right, seizing 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 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 conveyance was, that the liberties of most of them were seized into the hands of the king, who granted them fresh charters with such 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 [in strict right] it was for the most part strictly legal, gave a great and just alarm; the new-modeling 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 the metropolis, by statute 2 W. & M. c. 8. which enacts, that the franchises of the city of London shall never be forfeited again for any cause whatsoever.
THIS proceeding is however now applied to the decision of corporation disputes between party and party, without any intervention of the prerogative, by virtue of the statute 9 Ann. 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 a fine may be given against him, and that the relator shall pay or receive costs according to the event of the suit.
6. THE writ of mandamus [we command]46 is also made by the same statute 9 Ann. c. 20. a most full and effectual remedy, in the first place for refusal or admission where a person is entitled to an office or place in any such corporation; and, secondly, for wrongful removal, when a person is legally possessed. These are injuries, for which though redress for the party interested may be had by assize, or other means, yet as the franchises concern the public, and may affect the administration of justice, this prerogative writ also issues from the court of king’s bench, commanding, upon good cause shown to the court, the party complaining to be admitted or restored to his office. And the statute requires, that a return be immediately made to the first writ of mandamus; which return may be pleaded to or traversed by the prosecutor, and his antagonist may reply, take issue, or demur, and the same proceedings may be had as if an action on the case had been brought for making a false return; and, after judgment obtained for the prosecutor, he shall have a peremptory writ of mandamus to compel his admission or restitution; which latter (in case of an action) is effected by a writ of restitution.47 So that now the writ of mandamus, in cases within this statute, is in the nature of an action, and a writ of error may be had thereon.48
THIS writ of mandamus may also be issued, in pursuance of the statute 11 Geo. I. c. 4. in case within the regular time no election shall be made of the mayor or other chief officer of any city, borough, or town corporate, or (being made) it shall afterwards become void; to require the electors to proceed to election, and proper courts to be held for admitting and swearing in the magistrates so respectively chosen.
WE have now gone through the whole circle of civil injuries, and the redress which the laws of England have anxiously provided for each. In which the student cannot but observe, that the main difficulty which attends their discussion arises from their great variety, which is apt at our first acquaintance to breed a confusion of ideas, and a kind of distraction in the memory: a difficulty not a little increased by the very immethodical arrangement, too justly complained of in our ancient writers; but which will insensibly wear away when they come to be reconsidered, and we are a little familiarized to those terms of art in which the language of our ancestors has obscured them. Terms of art there will unavoidably be in all sciences; the easy conception and thorough comprehension of which must depend upon frequent use: and the more subdivided any branch of science is, the more terms must be used to express the nature of these several subdivisions, and mark out with sufficient precision the ideas they are meant to convey. This difficulty therefore, however great it may appear at first view, will shrink to nothing upon a nearer approach; and be rather advantageous than of any disservice, by imprinting a clear and distinct notion of the nature of these several remedies. And, such as it is, it arises principally from the excellence of our English laws; which adapt their redress exactly to the circumstances of the injury, and do not furnish one and the same action for different wrongs, which are impossible to be brought within one and the same description: whereby every man knows what satisfaction he is entitled to expect from the courts of justice, and as little as possible is left in the breast of the judges, whom the law appoints to administer, and not to prescribe the remedy. And I may venture to affirm, that there is hardly a possible injury, that can be offered either to the person or property of another, for which the party injured may not find a remedial writ, conceived in such terms as are properly adapted to his own particular grievance.
IN the several personal actions which we have cursorily explained, as debt, trespass, detinue, action on the case, and the like, it is easy to observe how plain, perspicuous, and simple the remedy is, as chalked out by the ancient common law. In real actions for the recovery of landed and other permanent property, as the right is more intricate, the feudal or rather Norman remedy by real actions is somewhat more complex and difficult, and attended with some delays. And since, in order to obviate those difficulties, and retrench those delays, we have permitted the rights of real property to be drawn into question in mixed or personal suits, we are (it must be owned) obliged to have recourse too such arbitrary fictions and expedients, that unless we had developed their principles, and traced out their progress and history, our present system of remedial jurisprudence (in respect of landed property) would appear the most intricate and unnatural, that ever was adopted by a free and enlightened people.
BUT this intricacy of our legal process will be found, when attentively considered, to be one of those troublesome, but not dangerous, evils which have their root in the frame of our constitution, and which therefore can never be cured, without hazarding every thing that is dear to us. In absolute governments, when new arrangements of property and a gradual change of manners have destroyed the original ideas, on which the laws were devised and established, the prince by his edict may promulgate a new code, more suited to the present emergencies. But when laws are to be framed by popular assemblies, even of the representative kind, it is too Herculean a task to begin the work of legislation afresh, and extract a new system from the discordant opinions of more than five hundred counselors. A single legislator or an enterprising sovereign, a Solon or Lycurgus, a Justinian or a Frederick, may at any time form a concise, and perhaps an uniform, plan of justice; and evil betide that presumptuous subject who questions its wisdom or utility. But who, that is acquainted with the difficulty of new-modeling any branch of our statute laws (though relating but to roads or to parish-settlements) will conceive it ever feasible to alter any fundamental point of the common law, with all its appendages and consequences, and set up another rule in its stead? When therefore, by the gradual influence of foreign trade and domestic tranquility, the spirit of our military tenures began to decay, and at length the whole structure was removed, the judges quickly perceived that the forms and delays of the old feudal actions, (guarded with their several outworks of essoins, vouchers, aid-prayers, and a hundred other formidable entrenchments) were ill suited to that more simple and commercial mode of property which succeeded the former, and required a more speedy decision of right, to facilitate exchange and alienation. Yet they wisely avoided soliciting any great legislative revolution in the old established forms, which might have been productive of conveyances more numerous and extensive than the most penetrating genius could foresee; but left them as they were, to languish in obscurity and oblivion, and endeavored by a series of minute contrivances to accommodate such personal actions, as were then in use, to all the most useful purposes of remedial justice: and where, through the dread of innovation, they hesitated at going so far as perhaps their good sense would have prompted them, they left an opening for the more liberal and enterprising judges, who have sat in our courts of equity, to show them their error by supplying the omissions of the courts of law. And, since the new expedients have been refined by the practice of more than a century, and are sufficiently known and understood, they in general answer the purpose of doing speedy and substantial justice, much better than could now be effected by any great fundamental alterations. The only difficulty that attends them arises from their fictions and circuities, but, when once we have discovered the proper clew, that labyrinth is easily pervaded. We inherit an old Gothic castle, erected in the days of chivalry, but fitted up for a modern inhabitant. The moated ramparts, the embattled towers, and the trophied halls, are magnificent and venerable, but useless. The inferior apartments, now converted into rooms of conveyance, are cheerful and commodious, thought their approaches are winding and difficult.
IN this part of our disquisitions I however thought it may duty to unfold, as far as intelligibly I could, the nature of these real actions, as well as of personal remedies. And this not only because they are still in force, still the law of the land, though obsolete and disused; and may perhaps, in their turn, be hereafter with some necessary corrections called out again into common use; but also because, as a sensible writer has well observed,49 “whoever considers how great a coherence there is between the several parts of the law, and how much the reason of one case opens and depends upon that of another, will I presume be far from thinking any of the old learning useless, which will so much conduce to the perfect understanding of the modern.” And besides I should have done great injustice to the founders of our legal constitution, had I led the student to imagine, that the remedial instruments of our law were originally contrived in so complicated a form, as we now present them to his view: had I, for instance, entirely passed over the direct and obvious remedies by assizes and writs of entry, and only laid before him the modern method of prosecuting a writ of ejectment.
NOTES
1. Bro. Abr. t. petition. 12. t. prerogative. 2.
2. Book I. ch. 7. pag. 243-246.
3. Plowd. 487.
4. Jenkins. 78.
5. Finch. L. 83.
6. on Gov. p. 2. § 205.
7. Bro. Abr. t. prerog. 2. Fitzh. Abr. t. error. 8.
8. Skin. 609.
9. Finch. L. 236.
10. State Tr. vii. 134.
11. Skin. 608. Raft. Entr. 461.
12. Bro. Abr. t. petition. 20. 4 Rep. 58.
13. 4 Rep. 55.
14. Skin. 608.
15. 2 Inst. 695. Raft. Entr. 463.
16. Finch. L. 460.
17. Ibid. 459.
18. Bro. Abr. t. prerogative. 89.
19. F. N. B. 32.
20. Bro. Abr. t. prerog. 130. F. N. B. 90.
21. Finch. L. 323, 4, 5.
22. Finch. L. 82.
23. Gilb. hist. exch. 132. Hob. 347.
24. 2 Inst. 48.
25. Finch. L. 325, 326.
26. 28 Edw. l. St. 3. c. 19.
27. Finch. L. 324.
28. Stat. 34 Edw. III. c. 13. 36 Edw. III. c. 13. 2 & 3 Edw. VI. c. 8.
29. Law of nisi prius. 202.
30. See book II. ch. 21.
31. Dyer. 198.
32. 3 Lev. 220. 4 Inst. 88.
33. 2 Ventr. 344.
34. Bro. Abr. t. scire facias. 69. 185.
35. Moor. 375.
36. Cro. Jac. 212. 1 Leon. 48. Savil. 49.
37. See pag. 160.
38. Hardr. 201.
39. Gilb. hist. of exch. ch. 13.
40. Finch. L. 322. 2 Inst. 282.
41. Old Nat. Brev. fol. 107. edit. 1534.
42. 2 Inst. 498. Raft. Entr. 540.
43. 2 Inst. 498.
44. Cro. Jac. 259. 1 Show. 280.
45. 1 Sid. 86. 2 Show. 47. 12 Mod. 225.
46. See pag. 110.
47. 11 Rep. 79.
48. 1 P. Wms. 351.
49. Hawk. Abr. Co. Litt. pref.
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