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by writ of entry, affife, ejectment, debt, or trespass, (as the cafe may happen) which it furnishes to the owners of lay property. Yet he shall not have a writ of right, nor fuch other fimilar writs as are grounded upon the mere right; because he hath not in him the entire fee and right: but he is entitled to a special remedy called a writ of juris utrum, which is fometimes ftiled the parfon's writ of right, being the highest writ which he can have. This lies for a [ 253 ] parfon or a prebendary at common law, and for a vicar by ftatute 14 Edw. III. c. 17. and is in the nature of an affife, to inquire whether the tenements in queftion are frankalmoign belonging to the church of the demandant, or elfe the lay fee of the tenant ". And thereby the demandant may recover lands and tenements, belonging to the church, which were aliened by the predeceffor; or of which he was diffcifed; or which were recovered against him by verdict, confeffion, or default, without praying in aid of the patron and ordinary; or on which any perfon has intruded fince the predeceffor's death". But fince the reftraining ftatute of 13 Eliz. c. 10. whereby the alienation of the predeceffor, or a recovery suffered by him of the lands of the church, is declared to be abfolutely void, this remedy is of very little ufe, unlefs where the parfon himself has been deforced for more than twenty years; for the fucceffor at any competent time after his accellion to the benefice, may enter, or bring an ejectment.

iF. N. B. 49. k Booth. 21. IF. N. B. 48.

Registr. 32.

n F. N. B. 48, 49.
o Booth. 221.

CHAPTER THE SEVENTEENTH.

OF INJURIES PROCEEDING FROM, OR AFFECTING, THE CROWN.

AVING in the nine preceding chapters confidered the

offered by one

fubject to another, all of which are redreffed by the command and authority of the king, fignified by his original writs returnable in his several courts of justice, which thence derive a jurifdiction of examining and determining the complaint; I proceed now to inquire into the mode of redreffing those injuries to which the crown itself is a party: which injuries are either where the crown is the aggreffor, and which therefore cannot without a folecifm admit of the fame kind of remedy; or else is the fufferer, and which then are usually remedied by peculiar forms of procefs, appropriated to the royal prerogative. In treating therefore of thefe, we will confider first, the manner of redreffing those wrongs or injuries which a fubject may suffer from the crown, and then of redreffing those which the crown may receive from a fubject.

I. THAT the king can do no wrong, is a neceffary and fundamental principle of the English conftitution: meaning only, as has formerly been obferved", that, in the first place, whatever may be amifs in the conduct of public affairs is not

a Bro. Abr. t. petition. 12. t. prerogativ. 2. 9

Book I, ch. 7. pag. 243---246. charge

chargeable perfonally on the king; nor is he, but his ministers, accountable for it to the people: and, fecondly, that the prerogative of the crown extends not to do any injury; for, being created for the benefit of the people, it cannot be exérted to their prejudice. Whenever therefore it happens, that, by mifinformation or inadvertence, the crown hath been induced to invade the private rights of any of it's fubjects, though no action will lie against the fovereign, (for who fhall command the king?) yet the law hath furnished the fubject with a decent and refpectful mode of removing that invafion, by informing the king of the true ftate of the matter in difpute: and, as it prefumes that to know of any injury and to redress it are infeparable in the royal breast, it then iflues as of courfe in the king's own name, his orders to his judges to do justice to the party aggrieved.

THE distance between the fovereign and his fubjects is fuch, 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 fo feldom 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 fovereignty of the royal perfon, by setting up fome fuperior power with authority to call him to account. The inconveniency therefore of a mischief that is barely poffible, is (as Mr. Locke has obferved f) well recompenfed by the peace of the public and fecurity of the government, in the perfon of the chief magiftrate being fet out of the reach of coercion. But injuries to the rights of property can scarcely be committed by the crown without the intervention of it's officers; for whom the law in matters of right entertains no refpect or delicacy, but furnishes various methods of detecting the errors or mifconduct of those agents, by whom the king has been deceived, and induced to do a temporary injustice.

* Plowd. 487.

* Jenkins. 78.

e Finch. L. 83.
f on Gov. p. 2. § 205.

THE

THE Common law methods of obtaining poffeffion or reftitution from the crown, of either real or perfonal property, are, 1. By petition de droit, or petition of right, which is said to owe it's original to king Edward the firft 8. 2. By monftrans de droit, manifeftation or plea of right : both of which may be preferred or profecuted either in the chancery or exchequer b. The former is of ufe, where the king is in full poffeffion of any hereditaments or chattels, and the petitioner fuggests such a right as controverts the title of the crown, grounded on facts disclosed in the petition itself; in which cafe he must be careful to state truly the whole title of the crown, otherwise the petition fhall abate': and then, upon this answer being endorfed or underwritten by the king, foit droit fait al partie, (let right be done to the party) a commiffion fhall iffue to inquire of the truth of this fuggeftion ; after the return of which, the king's attorney is at liberty to plead in bar; and the merits fhall be determined upon iffue or demurrer, as in fuits between fubject and fubject. Thus, if a diffeifor of lands, which are holden of the crown, dies feifed without any heir, whereby the king is prima facie entitled to the lands, and the poffeffion is caft on him either by inquest of office, or by act of law without any office found; now the diffeifee fhall have remedy by petition of right, fuggesting the title of the crown, and his own fuperior right before the diffeifin made. But where the right of the party, as well as the right of the crown, appears upon record, there the party fhall have monftrans de droit, which is putting in a claim of right grounded on facts already acknowleged and established, and praying the judgment of the court, whether upon thofe facts the king or the fubject hath the right. As if, in the cafe before fuppofed, the whole fpecial matter is found by an inqueft of office, (as well the diffeifin, as the dying without any heir) the party grieved fhall have monflrans de droit at the common law m. But as this feldom happens, and

8 Bro. Abr. t. prerog. 2 Fitz. Abr.

t. error. 8.

Skin. 609.

j Finch. L. 236.

j St. Tr. vi. 134.

* Skin. 608. Raft. Entr. 461.

1 Bro. Abr. t. petition. 20. 4 Rep. 58. ni 4 Rep. 55.

the

the remedy by petition was extremely tedious and expenfive, that by monftrans was much enlarged and rendered almost univerfal by feveral ftatutes, particularly 36 Edw. III. c. 13. and 2 & 3 Edw. VI. c. 8. which alfo allow inquifitions of office to be traverfed or denied, wherever the right of a fubject is concerned, except in a very few cafes". Thefe 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 reftituatur petenti, falvo jure domini regis; which laft claufe is always added to judgments against the king, to whom no laches is ever imputed, and whose right (till fome late ftatutes 9) was never defeated by any limitation or length of time. And by such judgment the crown is inftantly our of poffeffion'; fo that there needs not the indecent interpofition of his own officers to transfer the fe:fin from the king to the party aggrieved.

II. THE methods of redreffing fuch injuries as the crown may receive from the subject are,

1. By fuch ufual common law actions, as are consistent with the royal prerogative and dignity. As therefore the king, by reafon of his legal ubiquity, cannot be diffeifed or difpof feffed of any real property which is once vefted in him, he can maintain no action which fuppofes a difpoffeffion of the plaintiff; such as an afsise or an ejectment: but he may bring a quare impedit', which always fuppofes the complainant to be feifed or poffeffed of the advowfon : and he may prosecute this writ, like every other by him brought, 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 fuch actions are not usual (though in strictness maintainable) for breaking his clofe, or other injury done upon his foil or poffeffion w. It would be equally tedious

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