« EdellinenJatka »
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, assise, 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 [*253]_right (k), *being the highest writ which he can have (1). This
lies for a parson or prebendary at common law, and for a vicar by statute 14 Edw. III. c. 17. and is in the nature of an assise, 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 (o); 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) F. N. B. 49. (k) Booth. 221. (1) F. N. B. 48.
(m) Registrar. 32.
(n) F. N.-B. 48, 49.
(0) Booth, 221.
(a) Bro. Abr. t. petition, 12. t. prerogative, 2
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 [*255] king; nor is he, but his ministers, 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 his 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 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 a 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.
The common law methods of obtaining possession or restitu-  tion from the crown, of either real or personal property, are (1), 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 (h). 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
(b) Book I. ch. 7, page 243-246.
(c) Plowd. 437.
(d) Jenkins, 78.
(e) Finch, L. 83
on Gov. p. 2, ◊ 205.
(g) Bro. Abr. t. prerog. 2. Fitz. Abr. t. error, 8.
(h) Skin. 609.
(i) Finch, L. 256.
(7) Stat. Tr. vii. 134.
(k) Skin. 608. East. Entr. 461.
(1) In New-York the remedy would be by petition to the legislature.
subject. Thus, if a disseisor of lands, which are holden of the crown, dies seised 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 disseisee 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 [*257] common law (m). But as this seldom happens, and *the remedy
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 & 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) (q) was never defeated by any limitation or length of time. And by such judgment the crown is instantly out 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.
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 assise or an ejectment (s) (2): but he may bring a quare impedit (t), which always supposes the complainant to be seised 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
(0) 2 Inst. 695. Rast. Entr. 463. (p) Finch, L. 460.
(2) But this objection to an ejectment does not seem to apply where the king is lessor of the plaintiff, for it is the lessee, and not the les sor who is supposed by the legal fiction to be ousted; and it is held, that where the possession is not actually in the king, but in lease to another; then, if a stranger enter on the lessee, he gains possession without taking the reversion out of the crown, and may have his ejectment to recover the possession if he be afterwards ousted, because there is a possession in
(q) 21 Jac. I. c. 2. 9 Geo. III. c. 16
(r) Finch, L. 459.
(s) Bro. Abr. t. prerogative, 89.
(t) F. N. B. 32.
(u) Dyversyte des courtes, c. bank le roy.
pais, and not in the king, and that possession is not privileged by prerogative. Hence it follows that the king's lessee may likewise have an ejectinent to punish the trespasser, and to recover the possession which was taken from him. 2 Leon. 206. Cro. Eliz. 331. Adams on Eject. 72.
In New-York the State may bring the action of ejectment, and in its own name. (1 R. S. 282.)
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 mat
ter; 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 injury 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 seised, whereby the reversion accrues to the king whether A, who held immediately of the crown, died without heirs; in which case the lands belong 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 or identity of the lands (3). 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 seised, 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 was 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.
With regard to other matters, the inquests of office still remain [*259] in 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, treasure-trove, 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 sur(w) Bro. Abr. 1. prerog. 130. F. N. B. 90. Yearbook. 4 Hen. IV. 4.
(z) Finch, L. 323, 4, 5.
(3) See 1 R. S. 282, § 1, &c.
mises without the intervention of a jury (2). 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. & 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).
[*260] *With regard to real property, if an office be found for the king, it 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 seise 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 (ƒ); 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 [*261] hath done an act that amounts to a forfeiture of the grant (h), the remedy to repeal the patent is by writ of scire facias in chancery (i). 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). And so also, if upon office untruly found for the king, he grants the land over to another, he who is grieved thereby, and traverses the office itself, is entitled before issue joined to a scire facias against the patentee, in order to avoid the grant (1) (4).