CHAPTER XIII. OF INJURIES PROCEEDING FROM OR AFFECTING THE CROWN. WE proceed now to inquire into the manner of redressing those civil injuries or private wrongs to which the Crown is a party; and these may be either where the Crown is the aggressor or where it is the sufferer. In treating therefore of these we will consider, first, the manner of redressing those 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 personally do no wrong is a 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. 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, an order to his judges to do justice to the party aggrieved (a). (a) 3 Bl. Com. p. 255. The distance between the sovereign and his subjects is such that it rarely can happen that any injury can proceed from the prince to the person of any private man; and the law in decency supposes that it never can or will happen at all; but injuries to the rights of property may be committed by the Crown, though scarcely 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 (b). As in ordinary cases, however, the sovereign himself is the medium through which justice is obtained, so no relief can in general be had against the Crown by an ordinary action (c); but only by such special forms of proceeding as the law has provided for this particular case (d). [The 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(e); 2ndly, by (b) 3 Bl. Com. p. 255. (c) 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 Angliæ;" 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 incidentally concerned, and no attempt is made to divest its possession or title, the proceeding may be in Chancery, making the attorneygeneral 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 the proceedings in Chancery, to that purpose. (Sec Christian's Bl. vol. iii. p. 428; Balch v. Wastall, 1 P. Wms. 445; Reeve v. Attorney-General, 1 Ves. 445; Simpson v. Clayton, 4 Bing. N. C. 766; 2 Roll. Abr. 213; Mitf. Treat, on Pleading in Chancery.) (d) No mention of this subject is made in the Judicature Act, 1873, or in the rules of procedure thereto annexed. (e) It is to be remarked, that no petition of right lies to recover compensation for a wrongful act done by a servant of the Crown in the supposed performance of his duties, or to recover unliquidated damages for a trespass. (Tobin v. The Queen, 16 C. B., N. S. 310.) [monstrans de droit, manifestation or plea of right (ƒ). The former is applicable when the Crown is in 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 endorsed 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 ; and the merits shall be determined upon issue or demurrer, as in actions 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).] 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; that is, may put 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 (); and praying the judgment of the court, (f) 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, 4 Bing. N. C. 766. See also Chitty's Treatise on the Prerogative of the Crown; where full information will be found as to the proceed ings therein. (g) Finch, L. 255. (h) St. Tr. vii. 134. (i) Skin. 608; Rast. Ent. 461. (k) Bro. Ab. tit. Petition, 20; 4 Rep. 58. (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 whether upon those facts the sovereign or the subject had the right (m). As if, in the case before supposed, it be 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, 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 allowed inquisitions of office to be traversed (or denied), whenever the right of a subject was concerned, except in a very few cases (o). As to the effect of these proceedings, we may remark that if the right be determined against 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 a judgment against the sovereign, to whom no laches is ever imputed; and whose right-till some modern statutes-has never been defeated by any limitation or length of time (q). And by such judgment the Crown is instantly out of possession; so that there needs not the indecent interposition of his own officers, to transfer the seisin, from the sovereign, to the party aggrieved (r). The proceedings upon a petition of right have been made the subject of a modern statute (23 & 24 Vict. c. 34), new facts may be introduced in a monstrans de droit. (See Co. Entr. 402.) (m) 3 Bl. Com. 256. (n) 4 Rep. 55; Bac. Abr. tit. Prerog. E. 7; Co. Entr. ubi sup. (0) Skin. 608. See In re Ann VOL. III. Parry, Ex parte Duke of Beaufort, (p) 2 Inst. 695; Rast. Ent. 463. (r) Finch, L. 459. UU under which it is provided that the 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 a judgment of amoveas manus (u). 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 (x). It is, however, provided that nothing in the Act, shall prevent any suppliant from proceeding in the same manner as he might have done before it passed. II. The method of redressing such injuries as the Crown may receive from the subject are 1. [By such usual actions, as are consistent with the royal prerogative and dignity. But as the sovereign by reason of his legal ubiquity, cannot be disseised or dis (t) The plea may be double. Tobin v. The Queen, 14 C. B., N. S. 505; 16 C. B., N. S. 310. (u) 23 & 24 Vict. c. 34, ss. 9, 10. (a) 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. The proceedings in a petition of right under this Act will be found set forth in Tobin v. The Queen, ubi sup. |