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rather, if a limitation were compounded of the length of time and the number of avoidances together; for instance, if no seisin were admitted to be alleged in any of these writs of patronage, after sixty years and three avoidances were past. (11)
In a writ of quare impedit, which is almost the only real action that remains in common use, and also in the assize of darrein presentment, and writ of right, the patron only, and not the clerk, is allowed to sue the disturber. But, by virtue of several acts of parliament, (h) there is one species of presentations, in which a remedy, to be sued in the temporal courts, is put into the hands of the clerks presented, as well as of the owners of the advowson. I mean the presentation to such benefices as belong to Roman Catholic patrons; which, according to their several counties, are vested in and secured to the two universities of this kingdom. And particularly by the statute of 12 Ann. st. 2, c. 14, s. 4, a new method of proceeding is provided, viz.: that, besides the writs of quare impedit, which the universities, as patrons, are entitled to bring, they, or their clerks, may be at liberty to file a bill in equity against any person pre[*252] senting to such livings, and disturbing their right of patronage, or his cestuy que trust, or any other person whom they have cause to suspect; in order to compel a discovery of any secret trusts for the benefit of papists, in evasion of those laws whereby this right of advowson is vested in those learned bodies; and also (by the statute 11 Geo. II, c. 17) to compel a discovery whether any grant or conveyance, said to be made of such advowson, were made bona fide to a protestant purchaser, for the benefit of protestants, and for a full consideration; without which requisites, every such grant and conveyance of any advowson or avoidance is absolutely null and void. This is a particular law, and calculated for a particular purpose: but in no instance but this does the common law permit the clerk himself to interfere in recovering a presentation of which he is afterwards to have the advantage. For, besides that he has (as was before observed) no temporal right in him till after institution and induction; and, as he therefore can suffer no wrong, is consequently entitled to no remedy; this exclusion of the clerk from being plaintiff seems also to arise from the very great honour and regard which the law pays to its sacred function. For it looks upon the cure of souls as too arduous and important a task to be eagerly sought for by any serious clergyman; and, therefore, will not permit him to contend openly at law for a charge and trust which it presumes he undertakes with diffidence.
But when the clerk is in full possession of the benefice, the law gives him the same possessory remedies to recover his glebe, his rents, his tithes, and other ecclesiastical dues, by writ of entry, assize, ejectment, debt, or trespass (as the case may happen), which it furnishes to the owners of lay property. Yet he shall not have a writ of right, nor such other similar writs as are grounded upon the mere right; because he hath not in him the entire fee and right; (i) but he is entitled to a special remedy called a writ of juris utrum, which is sometimes styled the parson's writ of right, (k) *being the highest writ which he [*253] can have. (i)(12) This lies for a parson or a prebendary at common law,
(h) Stat. 3 Jac. 1, c. 5. 1 W. and M. c. 26. 12 Anne, st. 2, c. 14. 11 Geo. II, c. 17. (i) F. N. B. 49.
(k) Booth, 221.
(2) F. N. B. 48.
(11) [This alteration in the law recommended by the learned commentator has recently been carried into effect by statute 3 and 4 Wm. IV, c. 27, by which (section 30) it is enacted that no advowson shall be recovered after three incumbencies occupying a period of sixty years adverse possession: incumbencies after lapse are to be reckoned within the period, but not incumbencies after promotion to bishopricks (section 31); and no advowson shall be recovered after one hundred years adverse possession, although three incumbencies have not elapsed. Section 33.]
The statute 6 and 7 Vic. c. 54, applies the same period of limitations to a quare impedit or any other action or suit to enforce a right in a bishop as patron to collate to or bestow any ecclesiastical benefice.
(12) Abolished by statute 3 and 4 Wm. IV, c. 27.
and for a vicar by statute 14 Edw. III, c. 17, and is in the nature of an assize, to inquire whether the tenements in question are frankalmoign belonging to the church of the demandant, or else the lay fee of the tenant. (m) And thereby the demandant may recover lands and tenements belonging to the church, which were alienated by the predecessor; or of which he was disseised; or which were recovered against him by verdict, confession, or default, without praying in aid of the patron and ordinary; or on which any person has intruded since the predecessor's death. (n) But since the restraining statute of 13 Eliz. c. 10, whereby the alienation of the predecessor, or a recovery suffered by him of the lands of the church, is declared to be absolutely void, this remedy is of very little use, unless where the parson himself has been deforced for more than twenty years; (0) for the successor, at any competent time after his accession to the benefice, may enter, or bring an ejectment.
OF INJURIES PROCEEDING FROM, OR AFFECTING, THE CROWN.
HAVING in the nine preceding chapters considered the injuries, or private wrongs, that may be offered by one subject to another, all of which are redressed by the command and authority of the king, signified by his original writs returnable in the several courts of justice, which thence derive a jurisdiction of examining and determining the complaint; I proceed now to inquire into 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; (a) 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, (b) 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, [*255] 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. (c) Whenever therefore it happens, that, by misinformation, or inadvertence, the crown hath been induced to invade the private rights of any of its subjects, though no action will lie against the sovereign, (d) (for who shall command the king?) (e) yet the law hath 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 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 the 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
(m) Registrar, 32.
(n) F. N. B. 48. 49.
(a) Bro. Abr. tit. petition, 12; tit. prerogative. 2.
(0) Booth. 221.
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 inconveniency therefore of à mischief that is barely possible, is (as Mr. Locke has observed) (f) 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. (1)
*The common law methods of obtaining possession or restitution [*256] 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. (g) 2. By monstrans de droit, manifestation or plea of right: both of which may be preferred or prosecuted either in the chancery or exchequer. () The former is of use, where the king is in full 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 (i) and then, upon this answer being endorsed or underwritten by the king, soit droit fait al partie (let right be done to the party), (j) a commission shall issue to inquire of the truth of this suggestion:(k) 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 disseisor of lands, which are holden of the crown, dies seized without any heir, whereby the king is prima facie 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 disseissee shall have remedy by petition of right, suggesting the title of the crown, and his own superior right before the disseisin made. (1) 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 hath the right. As if, in the case before supposed, the whole special matter is found by an inquest of office (as well the disseisin. as the dying without any heir), the party grieved shall have monstrans de droit at the common law. (m) But as this seldom happens, and the *rem[*257] edy 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 and 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. (n) These 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 restituatur petenti, salvo jure domini regis; (o) which last clause is always added to judgments against the king, (p) to whom no laches is ever imputed, and whose right (till some late statutes) (7) was never defeated by any limitation or length of time. And by such judgment the crown is instantly cut of possession; (r) so that there needs not the indecent interposition of his own officers to transfer the seisin from the king to the party aggrieved. (2)
(f) On Govt. p. 2, § 205. (g) Bro. Abr. tit. prerogative, 2. Fitz. Abr. tit. error, 8.
(1) Bro. Abr. tit. petition. 20. 4 Rep. 58. (m) 4 Rep. 55. (n) Skin. GOS. (0) 2 Inst. 695. Rast. Entr. 463.
(1) See notes to the Banker's Case, Broom Const. Law, 235, and cases cited.
(2) The proceedings here mentioned are inapplicable in the United States. If the rights of a citizen are invaded by an officer of either the state or general government, bo s generally
II. The methods of redressing such injuries as the crown may receive from the 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 disseised 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: (s) but he may bring a quare impedit, (t) which always supposes the complainant to be seized or possessed of the advowson: and he may prosecute this writ, like every other by him brought, as well in the king's bench (u) 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 such actions are not usual (though in strictness maintainable) for breaking his close, or other injury done upon his soil or possession. (w) 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; [*258] 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, or by writ to them sent for that purpose, or by commissioners specially appointed, concerning any matter that entitles the king to the possession of lands or tenements, goods or chattels. (x) 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 land belongs to the king by escheat: whether B be attainted 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; 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 and 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, 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-seisin, or other advantages, as the circumstances of the case might turn out. To superintend and regulate these inquiries, the court of wards and liveries were 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.
(s) Bro. Abr. tit. prerogative, 89.
(t) F. N. B. 32.
(u) Dyversyte des courtes, c. bank le roy. (x) Finch, L. 323, 324, 325.
(w) Bro. Abr. tit. prerog. 130. F. N. B. 90. Year-book, 4 Hen. IV, 4.
entitled to maintain against such officer the action which would be suitable if he were a private citizen merely; though if the officer is proceeding under legislative authority in the exercise of the right of eminent domain, the citizen, if the proceedings are regular, and a proper remedy is given him by statute, must follow that remedy. But where it is found necessary to proceed against the government itself, it becomes important to see whether the government has made provision by law for suits against itself or not. A sovereignty is not suable in its own courts except by its permission, and some of the states make provision by statute for such suits, and some do not. Where they do not, and provide no other remedy, the citizen must appeal to the legislature for redress. And this is so in case of persons not citizens, for the federal courts are no longer open to suits on behalf of individuals against states. Const. of U. S., 11th amendment. And claims upon the general government for redress-except such as are cognizable by the U. S., Court of Claims-must be presented to congress. See U. S. v. McLemore, 4 How. 286; Hill v. U. S. 9 How. 336. Ante, Book I, 243 n.
The proceedings on behalf of a subject to obtain redress from the crown are simplified and made more effective by statute 23 and 24 Vic. c. 34, which gives the party a trial in the proper court of law or equity, upon an issue made up substantially as in a suit between indi viduals.
*With regard to other matters, the inquests of office still remain in [*259] 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, treasuretrove, and the like; and especially as to forfeitures for offences. For every jury which tries a man for treason or felony, every coroner's inquest that sits upon a felo de se, or one killed by chance-medley, 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 chance-medley, 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. (y) 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 man's possessions upon bare surmises without the intervention of a jury. (z) 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 office. And, as the king hath (in-general) no title at all to any property 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 the bill of rights at the revolution, 1 W. and 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. (a)
*With regard to real property, if an office be found for the king, it [ *260] 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. (b) As, on the other hand, by the articuli super cartas, (c) if the king's escheator or sheriff seize lands into the king's hand without cause, upon taking them out of the king's 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 hath no remedy left but a mere petition of right. (d) 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. (e) 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; (f) 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, &c.
3. Where the crown hath unadvisedly granted any thing by letters patent, which ought not to be granted, (g) or where the patentee hath done an act that amounts to a forfeiture of the grant, (7) the remedy to repeal the patent [*261] is by writ of scire facias in chancery. (1) 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. (k)
(y) Ibid, 82.
(z) Gilb. Hist. Exch. 132.
(b) Finch. L. 325, 326.