information is now considered merely in the nature of a civil proceeding (a), and is the usual remedy in the case of corporation disputes between party and party, without the intervention of the prerogative, but by leave of the Court, in pursuance of the statute (b), 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 (c).

SECT. VI.

Mandamus.

THE writ of mandamus (d) is another high prerogative writ, issuing out of the Court of King's Bench, as the peculiar superintendent of inferior jurisdictions and authorities, directed to any person, corporation or inferior Court of judicature, requiring them in the King's name, to do some particular thing therein specified, which appertains to their office, situation or duty, and which is consistent with right and justice (e). The object of the writ is not to supersede legal remedies, but only to supply the defect of them. The only proper ground

(a) 2 T. R. 484.

(b) 9 Ann. c. 20. See 4 and 5 W. 3. c. 18. Selw. N. P. 3rd and 4th ed. tit. Quo Warranto.

(c) 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 information 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.

(d) See the points on this subject ably collected in Selw. N. P. tit. Mandamus. (e) 3 Bla. Com. 110.

of

of the writ is a defect of justice. It is the absence or want of a specific legal remedy, which gives the Court jurisdiction (a). There must however be a specific legal right, as well as the want of a specific legal remedy, in order to form an application for a mandamus (b). The writ is grounded on the oath of the party injured shewing his right, and the denial of justice below, whereupon the party complained of is directed to shew why the writ should not issue (c). This being substantially a civil remedy for the subject, and the King's name being only nominally used, no further mention of it will be here made.

CHAP. XIII.

Of obtaining Redress from the Crown.

THE principle or maxim, that the King can do no wrong has been before explained (d). It does not mean that the subject is without remedy for every act of the Crown. The King is not indeed personally chargeable, nor can he be subjected to the usual common law proceedings, which may be instituted between subject and subject. For all judicial proceedings and writs must be in the King's name as the fountain of justice: and it would be absurd that the King should command or require another to command himself: independently of its being contrary to the constitutional idea of the King, to imagine that he is subject to the controul and command of any of his own courts. Whatever therefore may have formerly been considered on this subject, there can be no doubt that at all events since the reign of Edward 1. the Crown has been free from any action at the suit of its subjects (e): and on this principle

it is that no one can vouch for the King, for that is in the nature of an` action; and that if a fine be levied by the King of lands, it should be by render and not by writ of covenant (a).

With respect to personal injuries, the inviolability of the sovereign, and the improbability that any injuries of that nature should be committed by the King, have combined to establish it as a clear maxim in law, that he cannot be guilty of them. The law will presume that the subject cannot have sustained any such personal wrong from the Crown, because it cannot afford any adequate remedy: and want of right and want of remedy are the same thing in law (b). With respect however to injuries to the rights of property, as such injuries may be, and generally are, committed through the medium of the King's agents, and by misinformation or inadvertence, the law has furnished the subject with a decent and respectful mode of removing the invasion 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 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 (c).

The modes of proceeding against the Crown to recover lands or personal property are of three descriptions: 1. by petition: 2. by monstrans de droit, manifestation, or plea of right: 3. by traverse of office.

SECT. 1. The petition de droit, or petition of right, is an antient common law remedy for the subject against the Crown and is said to owe its origin to Ed. 1. (d).

This mode of proceeding is peculiarly suited to the dignity of the sovereign; and being instituted for the purpose of pre

(a) H. 9. H. 6, 3 and 4.

(b) See Bac. Ab. Actions, B. Quod Remedio destituitur ipsa re valet si culpa adsit. 6 Co. Rep. 68. If the King were to command a third person to commit an injury on a subject, of course such third person would be liable to an

action, and could not plead the invalid command of the King. Bac. Ab. Prerogative, E. 1. Same principle as to lands. See post, 342.

(c) 3 Bla. Com. 255.

(d) Bro. Ab. tit. Prerog. 2. Fitz, Ab. Error, 8. 3 Bla. Com. 256.

serving

serving entire the respect and submission due to the King,

and does not lie in the case But where the King is con

can be adopted only against him, of the Queen, or the Prince (a). cerned, and a petition is the proper remedy, it is immaterial whether his Majesty be seized of the property in question in his own or another person's right (b).

It will be material to consider, 1st, when a petition is the proper remedy, and 2ndly, the mode of proceeding upon it.

1. Antiently a petition was the necessary course of proceeding in numerous cases: but the delay and expense attending the proceeding induced the legislature to afford the subject a much more summary method of interpleading with the Crown. This was effected by extending and rendering almost universal, the remedies by monstrans de droit' and traverse of office' which will be considered in the ensuing sections. Whenever therefore either of such remedies can be adopted, that by petition, though it be sustainable (c), would not be adopted and is irrelevant (d). In every case however in which the subject hath a right against the Crown, and yet no monstrans de droit or traverse of office lies, a petition is the birth-right of the subject, and is sustainable at common law (e), and this not only in the case of real property, but of chattels real or personal (ƒ), or unliquidated damages (g).

In the case of inquisitions or offices finding that property belongs to the King (h), either the monstrans de droit, or traverse of office, may in almost every instance be adopted; and a petition would not be the better remedy. And here we may notice the wise precaution of requiring that matter of record shall in general be necessary to pass property from the subject to the King; the consequence being that claimants are thereby in most instances let in at once to traverse such matter of record, without being driven to circuitous and expensive proceedings (i).

"To declare specially," says Staundford (a), "where a petition lieth and where not, it were a long matter to intreat of. But generally and by general rules, a man may briefly declare it; that is to say, in all cases where the party hath a right against the King, and yet no traverse or monstrans de droit will serve, there he is driven to his petition: as for an example, where the King is entitled by double matter of record (b). Like law it is, where the King is entitled by a record not traversable, as take the case: the King recovered by assent and without title, a stranger that hath good title shall not falsify his recovery by a traverse or monstrans de droit, but is driven to his petition. So it is where the King recovereth by erroneous process, the party shall not have a writ of error (c) until he have sued by petition for it. So likewise it is if lands are holden of me by knight's service, a stranger brings a præcipe in capite of those lands against my tenant and recovereth by default, although by this recovery I am not put out of possession of my seignory, but that the tenant holdeth of me as he did before, and also of the King by collusion; yet in this case if the recoverer die, his heir within age, and the King seizeth the ward, I am driven now to my petition for the ward, for this is another thing than ever I was seized of. Also it is a general rule, that where a stranger that hath title cannot enter upon a common person, but is driven to his action, there he can have no remedy against the King, but only a petition. As take the case to be: it is found by office the King's tenant in chief died seized, his heir within age, where indeed the said tenant had nothing but by disseisin done to me, and I suffered him to die seized without any claim made; in this case I get no remedy by monstrans de droit or traverse, but am driven to my petition. And so in all cases like where mine entry should be tolled if the lands were in the hands of a common person. Also where the King doth enter upon me, having no title by matter of record or otherwise, and put me out and detain the possession from me, that I cannot have it again by entry without suit, I have then no remedy but only by petition. But if I be

(a) Prærog. Regis, ch. 22, fol. 74, a. to 75, b. And see Com. Dig. tit. Prerog. D, (D.) 78. 5 Bac. Ab. 571, tit. Prerogative, E. 7. Staundford was frequently cited by the Counsel and Court

in the case in 12 East, 96.

(b) See now 2 and 3 Ed. 6. c. 8. s. 7. Post, 352.

(c) Post, s. 3. div. 7; as to a writ of error against the King.

suffered