Sivut kuvina

In what they consist.

[ *38

The kinds of them are various, and almost infinite: I will here briefly touch upon some of the principal; premising only, that they may be vested in either natural persons or bodies politic; in one man or in many; but the same identical franchise, that has before been granted to one, cannot be bestowed on another, for that would prejudice the former grant (w).

To be a county palatine is a franchise, vested in a number of persons. It is likewise a franchise, for a number of persons to be incorporated, and subsist as a body politic; with a power to maintain perpetual succession and do other corporate acts and each individual member of such corporation is also said to have a franchise or freedom. Other franchises are-to hold a court leet: to have a manor or lordship; or, at least, to have a lordship paramount: to have waifs, wrecks, estrays, treasure-trove, royal fish, forfeitures, and deodands (74): to have a court of one's own, or liberty of holding pleas, and trying causes: to have the cognizance of pleas; which is a still greater liberty, being an exclusive right, so that no other court shall try causes arising within that jurisdiction: to have a bailiwick, or liberty exempt from the sheriff of the county; *wherein the grantee only, and his officers, are to execute all process: to have a fair or market; with the right of taking toll, either there or at any other public places, as at bridges, wharfs, or (w) 2 Roll. Abr. 191; Keilw. 196.

catalla felonum, &c. ;) or lies in pre-
scription and usage in pais, without
the help of any charter (as wreck,
waif, estrays, &c.). Franchises by
charter may be either before time of
memory, or within that time. In the
first case, such charters not being
themselves pleadable as records, they
ought to have the aid and support of
some other matter of record, within
time of memory; either showing them
to have been judicially allowed by some
court of competent jurisdiction, or to
have been confirmed by charter of
record within time of legal memory.
Usage alone will not support grants by
charter before time of memory. But,

with respect to grants which may be claimed by prescription; as they may be originally claimed by usage, which is a matter in pais, so usage may support them without the aid of any record, either of creation, allowance, or confirmation. And now, by the statute of 2 & 3 Gul. IV. c. 71, after the enjoyment of any profits a prendre, from or upon any land, for the full term of sixty years, the right thereto is indefeasible; unless it is proved that the same was enjoyed by virtue of some consent or agreement expressly made or given for that purpose by deed or writing.

(74) See Vol. I. p. 344.

the like (75); which tolls must have a reasonable cause of commencement, (as in consideration of repairs, or the like,) else the franchise is illegal and void (x) (76): or, lastly, to have a forest, chase, park, warren, or fishery, endowed with privileges of royalty; which species of franchise may require a more minute discussion.

As to a forest: this, in the hands of a subject, is properly Forest. the same thing with a chase; being subject to the common law, and not to the forest laws (y) (77). But a chase differs Chase. from a park, in that it is not inclosed, and also in that a man may have a chase in another man's ground as well as in his own, being indeed the liberty of keeping beasts of chase or royal game therein, protected even from the owner of the land, with a power of hunting them thereon. A park is an inclosed chase, extending only over a man's own Park. grounds. The word park indeed properly signifies an inclosure; but yet it is not every field or common, which a gentleman pleases to surround with a wall or paling, and to stock with a herd of deer, that is thereby constituted a legal park for the king's grant, or at least immemorial prescrip(x) 2 Inst. 220. (y) 4 Inst. 314.

(75) See Vol. III. p. 236. (76) See Vol. III. p. 262. (77) The doctrine laid down in the text accords with the opinions declared in the case of Lord Willoughby de Brooke v. Lord Latimer, (Keilw. 15, 16,) and is no doubt true, as a general position. But, where by the express words of a charter, and proper special provisoes, the king has given authority for the administration of justice according to the forest laws, within a district which has been legally granted to a subject as a forest, that district is subject to the forest laws; but without such express words in the charter, conferring the special jurisdiction, a forest in the hands of a subject is but a chase. (Case of Leicester Forest, Cro. Jac. 155 ; S. C. Jenk. Cent. 316; Rex v. Brydges, Palm. 62, 90; S. C. 2 Bulstr. 298; Manwood For. L.; c. 3; 4 Inst. 314.) Manwood, (c. 1, s. 5,) says, "a fo

rest is the highest franchise of noble
and princely pleasure: next in degree
unto it is a liberty of a frank chase :
the diversity between a park and a
chase is, that a park is inclosed and a
chase is always open the last in de-
gree is the liberty and franchise of a
free warren. And therefore, because
a forest in dignity is both the highest
and the greatest franchise, the same
doth comprehend in it a chase, a park,
and a free warren; as every general
doth comprehend the special."
part of the foregoing statement is not
sufficiently precise: inclosure, or non-
inclosure, is not the only distinction
between a park and a chase. Our
author, in the text above, teaches us,
that a park can only be made in a
man's own property, but a chase may
extend over the freeholds of others.
(Case of Forests, 12 Rep. 22; 4 Inst.


tion is necessary to make it so (z). Though now the difference between a real park, and such inclosed grounds, is in many respects not very material: only that it is unlawful at common law for any person to kill any beasts of park or chase (a), except such as possess these franchises of forest, chase, or park. Free warren is a similar franchise, erected for preservation or custody (which the word signifies) of beasts and fowls of warren (b); which, being feræ naturæ, every one had a natural right to kill as he could; but upon [39] *the introduction of the forest laws, at the Norman conquest,

Free warren.

as will be shown hereafter (78), these animals being looked upon as royal game and the sole property of our savage monarchs, this franchise of free warren was invented to protect them; by giving the grantee a sole and exclusive power of killing such game so far as his warren extended, on condition of his preventing other persons. A man therefore that has the franchise of warren, is in reality no more than a royal game-keeper; but no man, not even a lord of a manor, could by common law justify sporting on another's soil, or even on his own, unless he had the liberty of free warren (c). This franchise is almost fallen into disregard, since the new statutes for preserving the game; the name being now chiefly preserved in grounds that are set apart for breeding hares and rabbits. There are many instances of keen sportsmen in ancient times who have sold their estates, and reserved the free warren, or right of killing game, to themselves; by which means it comes to pass that a man and his heirs have sometimes free-warren over another's

(z) Co. Litt. 233; 2 Inst. 199; 11 Rep. 86.

(a) These are properly buck, doe, fox, martin, and roe; but in a common and legal sense, extend likewise to all the beasts of the forest: which, besides the other, are reckoned to be hart, hind, hare, boar, and wolf, and, in a word, all wild beasts of venery or hunting. (Co. Litt. 233.)

(b) The beasts are hares, conies, and roes; the fowls are either campestres, as partridges, rails, and quails;

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(78) See ante, chap. 1, p. 14, and post, chap. 27, p. 403.

ground (d)(79). A free fishery, or exclusive right of fishing Free fishery. in a public river, is also a royal franchise; and is considered as such in all countries where the feodal polity has prevailed (e); though the making such grants, and by that means appropriating what seems to be unnatural to restrain, the use of running water, was prohibited for the future by King John's great charter; and the rivers that were fenced in his time were directed to be laid open, as well as the forests to be disafforested (f). This opening was extended by the second (g) and third (h) charters of Henry III., to those also that were fenced under Richard I.; so that a franchise of free fishery ought now to be at least as old as the reign of Henry II. This differs from a several fishery; Several fishery. because he that has a several fishery must also be (or at least derive his right from) the owner of the soil (i), which in a free fishery is not requisite (80). It differs also from a common of piscary before mentioned, in that the free fishery

is an exclusive right, the common of piscary is not so: and [* 40 ] therefore, in a free fishery, a man has a property in the fish before they are caught; in a common of piscary not till afterwards (k). Some indeed have considered a free fishery not as a royal franchise, but merely as a private grant of a liberty to fish in the several fishery of the grantor (1). But to consider such right as originally a flower of the preroga

(d) Bro. Abr. tit. Warren, 3.

(e) Seld. Mar. Claus. i. 24; Dufresne, v. 503; Crag. de Jur. Feod. II. 8, 15.

(f) Cap. 47, edit. Oxon. (g) Cap. 20.

(79) If the king has granted a warren within a manor, and the owner infeoffs the king of the manor, without saying, and the appurtenances, the warren will not pass from the grantor : for a man may well have a free warren in the lands of others. (Dyer, 30 b, pl. 309.)

(80) The qualification of this passage, which our author, with great candour, himself made, by adding the sentence with which this section conIcludes, (and which did not appear in the early editions of the commenta

(h) 9 Hen. III. c. 16.

(i) M. 17 Edw. IV. 6. P. 18 Edw.
IV. 4. T. 10 Hen. VII. 24, 26; Salk.

(k) F. N. B. 88; Salk. 637.
(1) 2 Sid. 8.

ries,) renders it unnecessary to say
more upon the subject, except perhaps
to observe, that the question, whether
a person can have a several fishery
without being owner of the soil, does
not yet appear to be quite settled.
(Seymour v. Lord Courtenay, 5 Burr.
2816; Kinnersley v. Orpe, Dougl. 56
a.) From the case of Seymour v. Lord
Courtenay we learn, that a right of
several fishery does not necessarily
imply an exclusive right, but may
exist where no other person has a co-
extensive right in the subject claimed.

VIII, Corodies.

IX. Annuities.

In what an annuity diners from a rentcharge.

tive, till restrained by magna charta, and derived by royal grant (previous to the reign of Richard I.) to such as now claim it by prescription, and to distinguish it (as we have done) from a several and a common of fishery, may remove some difficulties in respect to this matter, with which our books are embarrassed. For it must be acknowledged, that the rights and distinctions of the three species of fishery are very much confounded in our law-books; and that there are not wanting respectable authorities (m) which maintain that a several fishery may exist distinct from the property of the soil, and that a free fishery implies no exclusive right, but is synonymous with common of piscary.

VIII. Corodies are a right of sustenance, or to receive certain allotments of victual and provision for one's maintenance (n). In lieu of which (especially when due from ecclesiastical persons) a pension or sum of money is sometimes substituted (o). And these may be reckoned another species of incorporeal hereditaments; though not chargeable on, or issuing from, any corporeal inheritance, but only charged on the person of the owner in respect of such his inheritance. To these may be added,

IX. Annuities, which are much of the same nature, only that these arise from temporal, as the former from spiritual persons. An annuity is a thing very distinct from a rentcharge, with which it is frequently confounded: a rentcharge being a burthen imposed upon and issuing out of lands, whereas an annuity is a yearly sum chargeable only upon the person of the grantor (p). Therefore, if a man by deed grant to another the sum of 201. per annum, without expressing out of what lands it shall issue, no land at all shall be charged with it; but it is a mere personal annuity: which is of so little account in the law, that if granted to an eleemosynary corporation, it is not within the statutes of mortmain (9); and yet a man may have a real estate in it, though his security is merely personal (81).

(m) See them well digested in Hargrave's notes on Co. Litt. 122, (23). (n) Finch, L. 162.

(81) This appears to require some explanation. If an annuity (not charg

(0) See book i. ch. 8. [Vol. I. pp. 283, 381.]

(p) Co. Litt. 144.
(q) Ibid. 2.

ed on lands) be granted to a man and his heirs, it is a fee simple personal.

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