6. Execution. It rarely happens that any process of execution, actually issues either for the Crown or the subject: the former being in general already in possession of the property; and the latter being at liberty to enter merely by virtue of the award of an amoveas manus, which has been fully considered (a). The award is of itself a transfer of possession in point of law, and is necessary to divest the interest acquired by the King under the office; as without it the subject has no legal possessory right, and cannot sue trespassers, &c. (b). The party is also entitled to restitution of his property, without deductions of poundage or expenses (c). · 7. Error. By several statutes (d), a writ of error lies on a judgment on an extent, &c., into the Exchequer Chamber. It seems, however, that the consent of the Attorney-General is previously necessary (e): but such consent will not be withheld if any point really arguable can be raised (f). After the termination of the writ of error in the Exchequer Chamber the case may be taken into the House of Lords (g). A scire facias is unnecessary, on a writ of error against the King (h). The writ does not preclude the subject from taking possession on his judgment of amoveas manus (i). And where a judgment for the King is reversed, the subject is entitled to be restored to his property and all intermediate issues (k), though he is, it seems, driven to his petition for monies actually paid over and received into the King's hands (1). (a) Ante, 348. (b) Staundf. Prerog. 78, a. 1 Rol. Ab. 738. Plowd. 546, 559. Hardr. 422. (c) West, 217. Costs, &c. ante, 310. (d) 31 Ed. 3. c. 12. 31 El. c. 1. s. 1. 16 Car. 2 s. 2 and 3. (e) M. 24 E. 3. f. 35. pl. 43. F. N. B, 21. H. (a). Savile, 131. pl. 203. CHAP. XIV. Of the Privileges and Incapacities of the King in several matters. THE more important privileges of the King have already been fully and separately noticed. There are also various royal immunities of minor importance, which require consideration. These principally relate to the person and private property of the King, and are no less just and politic than those weighty prerogatives which are inherent in his Majesty for the benefit of his people. The dignity of the sovereign and the safety of the state, necessarily free the person of the King from liability to be arrested on any occasion (a). Neither can he be amerced or nonsuited (b). And in order that the King may not be exposed to inconvenience, and as a mark of that respect towards him which the law invariably inculcates, on sound principles of public policy, none of his Majesty's household or menial servants or officers, bona fide substantially and continually employed, or liable to be permanently employed, in waiting or attending on the royal person, can be arrested or taken in execution in civil actions (c), without notice first given to, and leave obtained from, the Lord Chamberlain of his Majesty's household (d). This is the prerogative of the King: it is an important freedom from the full operation of the laws, which was instituted, not for the benefit of the servant, but for the convenience of the sovereign. The reason assigned by Lord Coke (e) for this privilege, is thus put by him: "concerning those that serve the King in his household, their continual service and attendance upon the royal person is necessary.” To cases falling within the reason and groundwork of this immunity, must the privilege be restrained. Where the party is a domestic and menial servant of the King, as for instance, a clerk or junior clerk of the King's kitchen (a), or his Majesty's coachman in ordinary (b), there can be no doubt of his privilege. But difficulties may frequently arise, and it is by no means an easy task to point out distinctly what particular officers fall within this doctrine. Attention must be paid to the nature of the duties required by the office holden by the party claiming the privilege. If he be merely a nominal officer without fee, assisting only on certain grand and peculiar occasions, as coronations, royal funerals, &c.; and neither acts as a servant in ordinary in the royal household, nor is a continual attendant on his Majesty's person, there seems no legal foundation for the privilege (c). And it appears that a gentleman of the privy chamber is not therefore privileged from arrest (d). On the accession of his present Majesty to the throne, a proclamation was issued (e), whereby (after reciting that his Majesty's predecessors had signified their pleasure that the royal servants should have and enjoy all antient privileges) his Majesty, thinking it reasonable that all his servants in ordinary with fee should, in regard of their constant attendance upon his Majesty's person, enjoy the like privileges with those of his predecessors, ordered that the Lord Chamberlain and other officers therein mentioned, should signify to all mayors, sheriffs, &c. of corporations and counties, that his servants should have their antient privileges, and that thenceforward none of the servants in ordinary with fee, should bear any public offices, serve on juries or inquests, watch or ward." This proclamation does not mention the privilege from arrest, as the antient proclamations on these occasions used to do. In a recent case, Abbott, C. J. observed (ƒ), that "the form of the proclamation shews that the privileges there enumerated are confined to his Majesty's servants in ordinary with fee. And that though the proclamation was not applicable in all its terms to the case then before the Court, it furnishes a ground for a distinction, which may be taken between servants with and without fee." It should seem that if a servant of the King be clearly pri (a) 5 T. R. 686. (b) 2 Taunt. 167. (c) 2 B. and Ald. 234, 7, 8, &c. (d) Ibid. (e) Pegg's Curialia, Dissertation on the original nature and duty of the gentlemen of the Privy Chamber, p. 77; ' cited 2 B. and Ald. 236 and 239, note. (ƒ) Ibid. 237. vileged vileged from the nature of his employment, the privilege will not be affected by the circumstance of the King not residing personally, at the time, in the palace in which the servant is employed; such palace being still privileged as such (a). And it has been decided that a servant of the King is privileged from arrest, though he publicly carry on trade, and the debt was contracted in the course of his trade (b). Where the privilege is clear, the Court will discharge the party on motion; where it is doubtful they will leave him to his writ of privilege (c). On the same principles, no arrest can properly be made in the King's presence, or within the verge of the royal palace (d), except by an order of the Board of Green Cloth, or unless the process issue out of the Palace Court (e). And all the royal palaces are sanctuaries for persons liable to be arrested; and no species of judicial process can be executed therein; if any thing in the shape of possession and royal appearance be kept up, though the King do not at the time personally reside there (ƒ). Nor can a distress be made on lands in the King's possession (g). As the law cannot presume indiscretion or imbecility in the King, however young, his being under 21 years of age does not avoid his acts (h), and his non-age does in no case operate as a disability. The King's goods are also exempt from various liabilities, which affect the personalty of his subjects. Even if a subjectsucceed in a petition against the King, his Majesty's goods are not liable to be taken in execution (i). The King is not liable (a) See 10 East, 578. (b) 2 Taunt. 167. (c) 2 B. and Ald. 234. (d) Bla. Com. 289. 4 Ibid. 276. Tidd, 6th ed. 222. By 28 H. 8. c. 12. the verge of the palace of Westminster extends from Charing Cross to Westminster Hall. But an arrest within the verge of the palace is no ground for discharging the defendant out of custody. 7 Taunt. 311. (e). 3 Term R. 735. (/) 10 East, 578. 1 Campb. 475, note. So of ecclesiastical process. 3 Inst. 141. Wood's Inst. 19. 8th ed. (h) See Co. Lit. 43. Bac. Ab. Infancy, B. "If the King alien lands parcel of his Dutchy of Lancaster, within age there, he may avoid it for his non-age; for he has the dutchy as Duke not as King; otherwise of land which he has as king, for the King cannot be disabled by non-age, as a common person may be." Bro. Ab. tit. Prerog. pl. 132. (i) See the remedy, ante, 348, 9. to to pay taxes (a), toll (b), pontage, passage (c), custom (d), or poor rates (e); nor is his personal property subject to the laws, relative to wreck, estrays, waifs (ƒ), sale in market overt (g), distress damage feasant (h), or the like. It is, indeed, generally laid down, that "no custom which goes to the person, or goods, of the King shall bind him (i)." But the King is not, it seems, by virtue of his prerogative, discharged of tithes for the antient demesne lands of the Crown; but his Majesty being persona mixta, is capable of a discharge de non decimando, by prescription, which in effect operates as a general discharge from tithes (k). But this privilege does not extend to the King's grantee (1); and by the alienation the prescription is destroyed for ever, and will not revive, even though the lands subsequently come to the Crown (m). The privileges and prerogative rights of the Crown in judicial remedies and proceedings (n), and various peculiarities respecting the Crown lands (0), have been already mentioned. We may here add, as disabilities arising from the royal dignity, that the King cannot personally execute any office, judicial or ministerial (p), or arrest in person (q). For the same reason, and also on the ground that even the King shall not give evidence in his own cause, it is clear that his Majesty's testimony is not admissible in cases of treason or felony (r). Whether or not his Majesty's certificate, under his sign manual or the great seal, as to facts within his knowledge, can be admitted as evidence in a civil cause between subject and sub (a) See 39 and 40 Geo. 3. c. 88. s. 6. Crown lands, when bought by private funds of the King, &c. liable to parliamentary and parochial taxes. (b) Palmer, 85. Com. Dig. Toll, G.1. (c) Jenk. 83. pl. 62. Vin. Ab. Prerog. T. 2. (d) Ibid. Bro. Ab. Prerog. pl. 112. Fitz. Ab. Tolle, 5. (e) 2 T. R. 372. 3 Ibid. 519. See 39 and 40 Geo. 3. c. 88. s. 6. ante, note (a). (ƒ) Vin. Ab. Prerog. T. 2. (i) Via. Ab. Prerog. T. 2. (k) Hardr. 315. Sir W. Jones, R. 387. 2 Bla. Com. 31. "Forest land is not tithcable, provided it is in the hands of the King, or of his lessee; but if the forest be disafforested, and be within any parish, then it becomes titheable. 3 Cruise, 66. (1) Ib. Hotham v. Foster, 3 Gwill. 869. (m) Hardr. 315. (n) Ante, 245, &c. (o) Ante, 203; 209 to 211. (p) Ante, 75, 6; 80. Bro. Prerog. 125. Co. Lit. 3, b. 8 Co. 55. 2 Ventr. 270. But still an office may be granted to him, as he may execute it by deputy 17 Vin. Ab. 168. (q) 2 Inst. 187. "The King cannot arrest any one on suspicion of felony or treason, though the subject may; for if the King do wrong there is no remedy against him." Per Markham, C. J. 1 H. 7. 4. (r) 2 Hal. P. C. 282. ject, |