courts, is put into the hands of the clerks prefented, as well as of the owners of the advowfon. I mean the presentation to fuch benefices as belong to Roman catholic patrons; which, according to their feveral counties, are vested in and fecured to the two univerfities of this kingdom. And particularly by the ftatute of 12 Ann, st. 2. c. 14. § 4. a new method of [252] proceeding is provided; viz. that, befides 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 presenting to fuch livings, and disturbing their right of patronage, or his ceftuy que truft, or any other person whom they have cause to suspect; in order to compel a discovery of any fecret trufts, for the benefit of papists, in evasion of those laws whereby this right of advowfon is vefted in those learned bodies; and alfo (by the statute 11 Geo. II. c. 17.) to compel a difcovery whether any grant or conveyance, faid to be made of fuch advowfon, were made bona fide to a proteftant purchafor, for the benefit of proteftants, and for a full confideration; without which requifites every fuch grant and conveyance of any advowson or avoidance is abfolutely 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 prefentation, of which he is afterwards to have the advantage. For befides that he has (as was before observed) no temporal right in him till after institution and induction; and as he therefore can fuffer no wrong, is confequently entitled to no remedy; this exclufion of the clerk from being plaintiff feems alfo to arife from the very great honour and regard which the law pays to his facred function, For it looks upon the cure of fouls as too arduous and important a task to be eagerly fought for by any ferious clergyman; and therefore will not permit him to contend openly at law for a charge and truft, which it prefumes he undertakes with diffidence. BUT when the clerk is in full poffeffion of the benefice, the law gives him the fame poffeffory remedies to recover his glebe, his rents, his tithes, and other ecclefiaftical dues, by A . by writ of entry, affife, ejectment, debt, or trespass, (as ftatute 14 Edw. III. c. 17. and is in the nature of an affise, to iF. N. B. 49. m Registr. 32. CHAPTER THE SEVENTEENTH. OF INJURIES PROCEEDING FROM, OR AFFECTING, THE CROWN. HA WAVING in the nine preceding chapters confidered the injuries, or private wrongs, that may be offered by one subject to another, all of which are redreffed by the command and authority of the king, fignified by his original writs returnable in his feveral courts of justice, which thence derive a jurifdiction 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 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 these, we will confider first, the manner of redreffing thofe 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. b Book I, ch. 7. pag. 243---246. 9 charge chargeable perfonally on the king; nor is he, but his minifters, 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 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 it's fubjects, though no action will lie against the fovereign, (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 difpute: and, as it prefumes that to know of any injury and. to redress it are infeparable in the royal breast, it then issues as of course in the king's own name, his orders to his judges to do juftive to the party aggrieved. THE distance between the fovereign and his fubjects is fuch, tha 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 fuppofes that it never will or can happen at all; because it feels itself incapable of furnishing any adequate remedy, without infringing the dignity and deftroying the fovereignty of the royal perfon, by fetting up some superior 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 person 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 respect or delicacy, but furnishes various methods of detecting the errors or misconduct of thofe agents, by whom the king has been deceived, and induced to do a temporary injustice. c Plowd. 487. Jenkins. 79. e Finch. L. 83. THE THE Common law methods of obtaining poffeffion or reftitution from the crown, of either real or personal property, are, 1. By petition de droit, or petition of right, which is faidto owe it's original to king Edward the firft 8. 2. By monftrans de droit, manifestation or plea of right : both of which may be preferred or profecuted either in the chancery or exchequer h. The former is of use, where the king is in full poffeffion of any hereditaments or chattels, and the petitioner fuggefts fuch 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 ftate truly the whole title of the crown, otherwise the petition shall abate1: and then, upon this answer being endorfed or underwritten by the king, foit droit fait al partie, (let right be done to the partyi) a commiffion shall iffue to inquire of the truth of this suggestion: 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 subject and subject. Thus, if a diffeifor of lands, which are holden of the crown, dies feised without any heir, whereby the king is prima facie entitled to the lands, and the poffeffion is caft on him either by inqueft 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 superior 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 monftrans de droit at the common law m. But as this feldom happens, and g Bro. Abr. t. prerog. 2 Fitz. Abr. t. error. 8. h Skin. 609. i Finch. L. 256. j Stat. Tr. vi. 134. * Skin. 608. Raft. Entr. 461. the |