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In what they consist.
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- with respect to grants which may be
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.
а. 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(2) 2 Inst. 220.
(y) 4 Inst. 314.
(75) See Vol. III. p. 236.
rest is the highest franchise of noble (76) See Vol. III. p. 262.
and princely pleasure: next in degree (77) The doctrine laid down in the unto it is a liberty of a frank chase : text accords with the opinions declared the diversity between a park and a in the case of Lord Willoughby de chase is, that a park is inclosed and a Brooke v. Lord Latimer, (Keilw. 15, chase is always open : the last in de16,) and is no doubt true, as a ge- gree is the liberty and franchise of a neral position. But, where by the ex
free warren. And therefore, because press words of a charter, and proper a forest in dignity is both the highest special provisoes, the king has given and the greatest franchise, the same authority for the administration of doth comprehend in it a chase, a park, justice according to the forest laws, and a free warren ; as every general within a district which has been le- doth comprehend the special.” One gally granted to a subject as a forest, part of the foregoing statement is not that district is subject to the forest sufficiently precise : inclosure, or nonlaws; but without such express words inclosure, is not the only distinction in the charter, conferring the special between a park and a chase. Our jurisdiction, a forest in the hands of author, in the text above, teaches us, a subject is but a chase. (Case of that a park can only be made in a Leicester Forest, Cro. Jac. 155 ; S.C. man's own property, but a chase may Jenk. Cent. 316; Rex v. Brydges, extend over the freeholds of others. Palm. 62, 90 ; S. C. 2 Bulstr. 298 ; (Case of Forests, 12 Rep. 22 ; 4 Inst. Manwood For. L.; c. 3 ; 4 Inst. 314.) 298.) Manwood, (c. 1, s. 5,) says,
tion is necessary to make it so (2). 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 (6); which, being fere nature,
every one had a natural right to kill as he could; but upon [ *39 ] *the introduction of the forest laws, at the Norman conquest,
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
(2) Co, Litt. 233; 2 Inst. 199; 11 or, sylvestres, as woodcocks and pheaRep. 86.
sants; or aquatiles, as mallards and (a) These are properly buck, doe, herons. (Ib.) fox, martin, and roe; but in a common [Manwood, For. L. c. 4, s. 3, gives and legal sense, extend likewise to all a different account: he says, (and the beasts of the forest: which, be- supports his opinion by referring to sides the other, are reckoned to be the Regist. Brev. fol. 93,) there are hart, hind, hare, boar, and wolf, and, only two beasts of warren, the hare in a word, all wild beasts of venery or and the coney, and but two fowls of hunting. (Co. Litt. 233.)
warren, the pheasant and the par(6) The beasts are hares, conies, tridge.-Ed.] and roes; the fowls are either cam- (c) Salk. 637. pestres, as partridges, rails, and quails;
(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 exclu*sive 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. (h) 9 Hen. III. c. 16.
(e) Seld. Mar. Claus. i. 24; Du- (i) M. 17 Edw. IV.6. P. 18 Edw. fresne, v. 503; Crag. de Jur. Feod. IV. 4. T. 10 Hen. VII. 24, 26; Salk. II. 8, 15. (f) Cap. 47, edit. Oxon.
(K) F. N. B. 88; Salk. 637. (9) Cap. 20.
(1) 2 Sid. 8.
(79) If the king has granted a war- ries,) renders it unnecessary to say ren within a manor, and the owner more upon the subject, except perhaps infeoffs the king of the manor, without to observe, that the question, whether saying, and the appurtenances, the a person can have a several fishery warren will not pass from the grantor: without being owner of the soil, does for a man may well have a free war- not yet appear to be quite settled. ren in the lands of others. (Dyer, 30 (Seymour v. Lord Courtenay, 5 Burr. b, pl. 309.)
2816 ; Kinnersley v. Orpe, Dougl. 56 (80) The qualification of this pas- a.) From the case of Seymour v. Lord sage, which our author, with great Courtenay we learn, that a right of candour, himself made, by adding the several fishery does not necessarily sentence with which this section con- imply an exclusive right, but may cludes, (and which did not appear in exist where no other person has a cothe early editions of the commenta- extensive right in the subject claimed.
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 (0). 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 In what an an- persons. An annuity is a thing very distinct from a rent
charge, with which it is frequently confounded : charge.
charge 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 Har- (0) See book i. ch. 8. [Vol. I. pp.
(p) Co. Litt. 144.
nuity dillers from a rent
(81) This appears to require some ed on lands) be granted to a man and explanation. If an annuity (not charg- his heirs, it is a fee simple personal.