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; for the successor, at any competent time after his accession to the benefice, may enter, or bring an ejectment. o Booth. 221. CHAPTER THE SEVENTEENTH, 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 his several courts of justice, which thence derive a jurisdiction of examining and determining the complaint; I proceed now to inquire of 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; 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, that in the first place, whatever may be amiss in the conduct of public affairs is not [255] chargeable personally on the 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. Whenever therefore it happens, that, by misinformation or inadvertence, the crown a Bro. Abr. t. petition. 12. t. prerogative. 2. b Book I. ch. 7. pag. 243-246. c Plowd. 487. hath been induced to invade the private rights of any of it's subjects, though no action will lie against the sovereign (for who shall command the king?)† 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') 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 it's 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.]] [256] The common law methods of obtaining possession or restitution from the crown, of either real or personal property, are, 1. By petition de droit [see note 49, page ], or petition of right, which is said to owe it's original to king Edward the first. 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 the hereditaments or chattels, and the party 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: and then, upon this answer being endorsed or underwritten by the king, sort droit fait al partie (let right be done to the party 3) a commission shall issue to inquire of the truth of this sug. gestion 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 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. 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 g Bro. Abr. t. prerog. 2. Fitzh. Abr. t. error. & h Skin. 609. i Finch. L. 256. j Stat. Tr. vii. 134. k Skin. 608. Rast. Entr. 461. 1 Bro. Abr. t. petition. 20. 4 Rep. 58. grounded on facts already acknowleged 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 [257] 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." 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, to whom no laches is ever imputed, and whose right (till some late statutes 9) was never defeated by any limitation or length of time. And by such judgment the crown is instantly out of possession; 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 a subject, are, 1. By such usual common law actions, as are con m 4 Rep. 55. n Skin. 608. o 2 Inst. 695. Rast. Entr. 463. p Finch. L. 460. q 21 Jac. I. c. 2. 9 Geo. III. c. 16. r Ibid. 459. 4 Previously, "is." *Cited, 9 Peters, 743; 24 Cal. 664; 93 Mass. 172. |