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VII. Franchises are a seventh species. Franchise and vil. Franchises. liberty are used as synonymous terms: and their definition is (u), a royal privilege, or branch of the king's prerogative, subsisting in the hands of a subject. Being therefore derived from the crown, they must arise from the king's grant; or, in some cases, may be held by prescription, which, as has been frequently said, presupposes a grant (67). 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 In what they
consist. of persons. It is likewise a franchise, for a number of persons
(u) Finch. L. 164.
(w) 2 Roll. Ahr. 191. Keilw. 190.
(67) Our author, in the 17th chapter in pais, without the help of any charof this volume, (p. 265), following Co. ter, (as wreck, waif, estrays, &c.). FranLitt. 114, informs us, that " what is to chises by charter may be either before arise by matter of record cannot be time of memory, or within that time. prescribed for, but must be claimed by In the first case, such charters not begrant, entered on record; such as, for ing themselves pleadable as records, instance, the royal franchises of deo- they ought to have the aid and support dands, felons' goods, and the like. But of some other matter of record, within the franchises of treasure-trove, waifs, time of memory; either shewing them estrays, and the like, may be claimed to have been judicially allowed by some by prescription; for they arise from court of competent jurisdiction, or to private contingencies, and not from any have been confirmed by charter of rematter of record.” (And see Keilway, cord within time of legal memory. 123 b, pl. 78. Constable's case, 5 Rep. Usage alone will not support grants by 109. Foxley's case, 5 Rep. 110). In charter before time of memory. But the case of 'The Abbot of Strata Mar- grants which may be claimed by precella, (9 Rep. 26 b, 27), the doctrine scription, as they may be originally is laid down thus: Every franchise, li- claimed by usage, which is a matter in berty, or privilege, either depends on pais, so usage may support them withcharter, and cannot be claimed by pre- out the aid of any record, either of cre. scription; (as bona et catalla felonum, ation, allowance, or confirmation. &c.); or lies in prescription and usage
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: 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 [ *38 ] 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 the like; 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): 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
the same thing with a chase; being subject to the common Chase.
law, and not to the forest laws (y) (68). But a chase differs
(68) The doctrine laid down in the to the forest laws: but without such text accords with the opinions declared express words in the charter, conferring in the case of Lord Willoughby de the special jurisdiction, a forest in the Brooke v. Lord Latimer, (Keilw. 15, hands of a subject is but a chase. (Case 16), and is no doubt true, as a general of Leicester Forest, Cro. Jac. 155. S. C. position. But, where by the express Jenk. Cent. 316. Rex V. Brydges, words of a charter, and proper special Palm. 62, 90. S. C. 2 Bulstr. 298, provisoes, the king has given authority Manwood For. L., c. 3. 4 Inst. 314). for the administration of justice accord- Manwood, (c. 1, s. 5), says, ing to the forest laws, within a district rest is the highest franchise of noble which has been legally granted to a sub- and princely pleasure: next in degree ject as a forest, that district is subject unto it is a liberty of a frank chase :
from a park, in that it is not inclosed, and also in that a
a stock with a herd of deer, that is thereby constituted a legal park: for the king's grant, or at least immemorial prescription, 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 Free warren. for preservation or custody (which the word signifies) of beasts and fowls of warren (6); which, being feræ natura,
(2) Co. Litt. 233. 2 Inst. 199. 11 roes; the fowls are either campestres, as Rep. 86.
partridges, rails, and quails; or sylves(a) These are properly buck, doe, tres, as woodcocks and pheasants; or fox, martin, and roe; but in a common aquatiles, as mallards and herons. (Ib.) and legal sense extend likewise to all the [Manwood, For. L. c. 4, s. 3, gives beasts of the forest : which, besides the
a different account: he says, (and supother, are reckoned to be hart, hind, ports his opinion by referring to the hare, boar, and wolf, and, in a word, all Regist. Brev. fol. 93), there are only wild beasts of venery or hunting. (Co. two beasts of warren, the hare and the Litt. 233).
eoney, and but two fowls of warren, (6) The beasts are hares, conies, and the pheasant and the partridge.-Ed.]
the diversity between a park and a part of the foregoing statement is not chase is, that a park is inclosed and a sufficiently precise: inclosure, or nonchase is always open: the last in de- inclosure, is not the only distinction begree is the liberty and franchise of a tween a park and a chase. Our author, free warren. And therefore, because in the text above, teaches us, that a a forest in dignity is both the highest park can only be made in a man's own and the greatest franchise, the same property, but a chase may extend over doth comprehend in it a chase, a park, the freeholds of others. (Case of Forests, and a free warren; as every general 12 Rep. 22. 4 Inst. 298). doth comprehend the special.” One
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every one had a natural right to kill as he could; but upon *the introduction of the forest laws, at the Norman conquest, as will be shewn hereafter (69), 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
A 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 antient 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 ground (70) (d). fishery, or exclusive right of fishing 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 umnatural 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 (s). This
(c) Salk. 637.
fresne, v. 503. Crag. de Jur. Feod. II. 8. 15.
(f) Cap. 47, edit. Oxon.
(69) See post, chap. 27, and the notes saying, and the appurtenances, the war. thereto.
ren will not pass from the grantor: for (70) If the king has granted a war- a man may well have a free warren in ren within a manor, and the owner the lands of others. (Dyer, 30 b, pl. infeoff's the king of the manor, without 309).
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 Several fishery. from a 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 (71). It differs also from a common of piscary before mentioned, in that the free fishery is an exclu*sive right, the common of [ * 40 ] piscary is not so: and 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 (I). But to consider such right as originally a flower of the prerogative, 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 destinguish 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 (8) Cap. 20.
(k) F. N. B. 88. Salk. 637. (h) 9 Hen. III. c. 16.
(1) 2 Sid. 8, (i) M. 17 Edw. IV. 6. P. 18 Edw. (m) See them well digested in HarIV. 4. T. 10 Hen. VII. 24. 26. Salk. 637. grave's notes on Co. Litt. 122, (23).
(71) The qualification of this passage, of the soil, does not yet appear to be which our author, with great candour, quite settled. (Seymour v. Lord Courtehimself made, by adding the sentence nay, 5 Burr. 2816. Kinnersley v. Orpe, with which this section concludes, (and Dougl. 56 a). From the case of Seywhich did not appear in the early edi. mour v. Lord Courtenay we learn, that tions of the commentaries), renders it a right of several fishery does not neunnecessary to say more upon the sub- cessarily imply an exclusive right, but ject, except perhaps to observe, that may exist where no other person has a the question, whether a person can have co-extensive right in the subject claimed. a several fishery without being owner