Commentaries on the Laws of England/Of Incorporeal Hereditaments
Chapter the third.
Of INCORPOREAL HEREDITAMENTS.
AN incorporeal hereditament is a right issuing out of a thing corporate (whether real or personal) or concerning, or annexed to, or exercisible within, the same. It is not the thing corporate itself, which may consist in lands, houses, jewels, or the like; but something collateral thereto, as a rent issuing out of those lands or houses, or an office relating to those jewels. In short, as the logicians speak, corporeal hereditaments are the substance, which may be always seen, always handled: incorporeal hereditaments are but a sort of accidents, which inhere in and are supported by that substance; and may belong, or not belong to it, without any visible alteration therein. Their existence is merely in idea and abstracted contemplation; though their effects and profits may be frequently objects of our bodily senses. And indeed, if we would fix a clear notion of an incorporeal hereditament, we must be careful not to confound together the profits produced, and the thing, or hereditament, which produces them. An annuity, for instance, is an incorporeal hereditament: for though the money, which is the fruit or product of this annuity, is doubtless of a corporeal nature, yet the annuity itself, which produces that money, is a thing invisible, has only a mental existence, and cannot be delivered over from hand to hand. So tithes, if we consider the produce of them, as the tenth sheaf or tenth lamb, seem to be completely corporeal; yet they are indeed incorporeal hereditaments: for they, being merely a contingent right, collateral to or issuing out of lands, can never be the object of sense: they are neither capable of being shewn to the eye, nor of being delivered into bodily possession.
Incorporeal hereditaments are principally of ten sorts; advowsons, tithes, commons, ways, offices, dignities, franchises, corodies or pensions, annuities, and rents.
I. Advowson is the right of presentation to a church, or ecclesiastical benefice. Advowson, advocatio, signifies in clientelam recipere, the taking into protection; and therefore is synonymous with patronage, patronatus: and he who has the right of advowson is called the patron of the church. For, when lords of manors first built churches on their own demesnes, and appointed the tithes of those manors to be paid to the officiating ministers, which before were given to the clergy in common (from whence, as was formerly mentioned, arose the division of parishes) the lord, who thus built a church, and endowed it with glebe or land, had of common right a power annexed of nominating such minister as he pleased (provided he were canonically qualified) to officiate in that church of which he was the founder, endower, maintainer, or, in one word, the patron.
This instance of an advowson will completely illustrate the nature of an incorporeal hereditament. It is not itself the bodily possession of the church and it's appendages; but it is a right to give some other man a title to such bodily possession. The advowson is the object of neither the fight, nor the touch; and yet it perpetually exists in the mind's eye, and in contemplation of law. It cannot be delivered from man to man by any visible bodily transfer, nor can corporal possession be had of it. If the patron takes corporal possession of the church, the church-yard, the glebe or the like, he intrudes on another man's property; for to these the parson has an exclusive right. The patronage can therefore be only conveyed by operation of law, by verbal grant, either oral or written, which is a kind of invisible, mental transfer: and being so vested, it lies dormant and unnoticed, till occasion calls it forth; when it produces a visible, corporeal fruit, by intitling some clerk, whom, the patron shall please to nominate, to enter and receive bodily possession of the lands and tenements of the church.
Advowsons are either advowsons appendant, or advowsons in gross. Lords of manors being originally the only founders, and of course the only patrons, of churches, the right of patronage or presentation, so long as it continues annexed to the possession of the manor, as some have done from the foundation of the church to this day, is called an advowson appendant: and it will pass, or be conveyed, together with the manor, as incident and appendant thereto, by a grant of the manor only, without adding any other words. But where the property of the advowson has been once separated from the property of the manor, by legal conveyance, it is called an advowson in gross, or at large, and never can be appendant any more; but is for the future annexed to the person of it's owner, and not to his manor or lands.
Advowsons are also either presentative, collative, or donative. An advowson presentative is where the patron hath a right of presentation to the bishop or ordinary, and moreover to demand of him to institute his clerk, if he find him canonically qualified: and this is the most usual advowson. An advowson collative is where the bishop and patron are one and the same person: in which case the bishop cannot present to himself; but he does, by the one act of collation, or conferring the benefice, the whole that is done in common cases, by both presentation and institution. An advowson donative is when the king, or any subject by his licence, doth found a church or chapel, and ordains that it shall be merely in the gift or disposal of the patron; subject to his visitation only, and not to that of the ordinary; and vested absolutely in the clerk by the patron's deed of donation, without presentation, institution, or induction. This is said to have been antiently the only way of conferring ecclesiastical benefices in England; the method of institution by the bishop not being established more early than the time of arch-bishop Becket in the reign of Henry II. And therefore though pope Alexander III, in a letter to Becket, severely inveighs against the prava consuetudo, as he calls it, of investiture conferred by the patron only, this however shews what was then the common usage. Others contend, that the claim of the bishops to institution is as old as the first planting of christianity in this island; and in proof of it they allege a letter from the English nobility, to the pope in the reign of Henry the third, recorded by Matthew Paris, which speaks of presentation to the bishop as a thing immemorial. The truth seems to be, that, where the benefice was to be conferred on a mere layman, he was first presented to the bishop, in order to receive ordination, who was at liberty to examine and refuse him; but where the clerk was already in orders, the living was usually vested in him by the sole donation of the patron; till about the middle of the twelfth century, when the pope and his bishops endeavoured to introduce a kind of feodal dominion over ecclesiastical benefices, and, in consequence of that, began to claim and exercise the right of institution universally, as a species of spiritual investiture.
However this may be, if, as the law now stands, the true patron once waives this privilege of donation, and presents to the bishop, and his clerk is admitted and instituted, the advowson is now become for ever presentative, and shall never be donative any more. For these exceptions to general rules, and common right, are ever looked upon by the law in an unfavourable view, and construed as strictly as possible. If therefore the patron, in whom such peculiar right resides, does once give up that right, the law, which loves uniformity, will interpret it to be done with an intention of giving it up for ever; and will thereupon reduce it to the standard of other ecclesiastical livings.
II. A second species of incorporeal hereditaments is that of tithes; which are defined to be the tenth part of the increase, yearly arising and renewing from the profits of lands, the stock, upon lands, and the personal industry of the inhabitants: the first species being usually called predial, as of corn, grass, hops, and wood; the second mixed, as of wool, milk, pigs, &c, consisting of natural products, but nurtured and preserved in part by the care of man; and of these the tenth must be paid in gross: the third personal, as of manual occupations, trades, fisheries, and the like; and of these only the tenth part of the clear gains and profits is due.
It is not to be expected from the nature of these general commentaries, that I should particularly specify, what things are tithable, and what not, the time when, or the manner and proportion in which, tithes are usually due. For this I must refer to such authors as have treated the matter in detail: and shall only observe, that, in general, tithes are to be paid for every thing that yields an annual increase, as corn, hay, fruit, cattle, poultry, and the like; but not for any thing that is of the substance of the earth, or is not of annual increase, as stone, lime, chalk, and the like: nor for creatures that are of a wild nature, or ferae naturae, as deer, hawks, &c, whose increase, so as to profit the owner, is not annual, but casual. It will rather be our business to consider, 1. The original of the right of tithes. 2. In whom that right at present subsists. 3. Who may be discharged, either totally or in part, from paying them.
1. As to their original. I will not put the title of the clergy to tithes upon any divine right ; though such a right certainly commenced, and I believe as certainly ceased, with the Jewish theocracy. Yet an honourable and competent maintenance for the ministers of the gospel is, undoubtedly, jure divino; whatever the particular mode of that maintenance may be. For, besides the positive precepts of the new testament, natural reason will tell us, that an order of men, who are separated from the world, and excluded from other lucrative professions, for the sake of the rest of mankind, have a right to be furnished with the necessaries, conveniences, and moderate enjoyments of life, at their expense, for whose benefit they forego the usual means of providing them. Accordingly all municipal laws have provided a liberal and decent maintenance for their national priests or clergy: ours in particular have established this of tithes, probably in imitation of the Jewish law: and perhaps, considering the degenerate state of the world in general, it may be more beneficial to the English clergy to found their title on the law of the land, than upon any divine right whatsoever, unacknowleged and unsupported by temporal sanctions.
We cannot precisely ascertain the time when tithes were first introduced into this country. Possibly they were cotemporary with the planting of christianity among the Saxons, by Augustin the monk, about the end of the sixth century. But the first mention of them, which I have met with in any written English law, is in a constitutional decree, made in a synod held A. D. 786, wherein the payment of tithes in general is strongly enjoined. This canon, or decree, which at first bound not the laity, was effectually confirmed by two kingdoms of the heptarchy, in their parliamentary conventions of estates, respectively consisting of the kings of Mercia and Northumberland, the bishops, dukes, senators, and people. Which was a few years later than the time that Charlemagne established the payment of them in France, and made that famous division of them into four parts; one to maintain the edifice of the church, the second to support the poor, the third the bishop, and the fourth the parochial clergy.
The next authentic mention of them is in the foedus Edwardi et Guthruni; or the laws agreed upon between king Guthrun the Dane, and Alfred and his son Edward the elder, successive kings of England, about the year 900. This was a kind of treaty between those monarchs, which may be found at large in the Anglo-Saxon laws; wherein it was necessary, as Guthrun was a pagan, to provide for the subsistence of the christian clergy under his dominion; and, accordingly, we find the payment of tithes not only enjoined, but a penalty added upon non-observance: which law is seconded by those of Athelstan, about the year 930. And this is as much as can certainly be traced out, with regard to their legal original.
2. We are next to consider the persons to whom they are due. And upon their first introduction (as hath formerly been observed) though every man was obliged to pay tithes in general, yet he might give them to what priests he pleased; which were called arbitrary consecrations of tithes: or he might pay them into the hands of the bishop, who distributed among his diocesan clergy the revenues of the church, which were then in common. But, when dioceses were divided into parishes, the tithes of each parish were allotted to it's own particular minister; first by common consent, or the appointments of lords of manors, and afterwards by the written law of the land.
However, arbitrary consecrations of tithes took place again afterwards, and became in general use till the time of king John. Which was probably owing to the intrigues of the regular clergy, or monks of the Benedictine and other rules, under arch-bishop Dunstan and his successors; who endeavoured to wean the people from paying their dues to the secular or parochial clergy, (a much more valuable set of men than themselves) and were then in hopes to have drawn, by sanctimonious pretences to extraordinary purity of life, all ecclesiastical profits to the coffers of their own societies. And this will naturally enough account for the number and riches of the monasteries and religious houses, which were founded in those days, and which were frequently endowed with tithes. For a layman, who was obliged to pay his tithes somewhere, might think it good policy to erect an abbey, and there pay them to his own monks; or grant them to some abbey already erected; since for this dotation, which really cost the patron little or nothing, he might, according to the superstition of the times, have masses for ever sung for his soul. But, in process of years, the income of the poor laborious parish priests being scandalously reduced by these arbitrary consecrations of tithes, it was remedied by pope Innocent the third about the year 1200 in a decretal epistle, sent to the arch-bishop of Canterbury, and dated from the palace of Lateran: which has occasioned sir Henry Hobart and others to mistake it for a decree of the council of Lateran held A. D. 1179, which only prohibited what was called the infeodation of tithes, or their being granted to mere laymen; whereas this letter of pope Innocent to the arch-bishop enjoined the payment of tithes to the parsons of the respective parishes where every man inhabited, agreeable to what was afterwards directed by the same pope in other countries. This epistle, says sir Edward Coke, bound not the lay subjects of this realm; but, being reasonable and just (and, he might have added, being correspondent to the antient law) it was allowed of, and so became lex terrae. This put an effectual stop to all the arbitrary consecrations of tithes; except some footsteps which still continue in those portions of tithes, which the parson of one parish hath, though rarely, a right to claim in another: for it is now universally held, that tithes are due, of common right, to the parson of the parish, unless there be a special exemption. This parson of the parish, we have formerly seen, may be either the actual incumbent, or else the appropriator of the benefice: appropriations being a method of endowing monasteries, which seems to have been devised by the regular clergy, by way of substitution to arbitrary consecrations of tithes.
3. We observed that tithes are due to the parson of common right, unless by special exemption: let us therefore see, thirdly, who may be exempted from the payment of tithes, and how. Lands, and their occupiers, may be exempted or discharged from the payment of tithes, either in part or totally, first, by a real composition; or, secondly, by custom or prescription.
First, a real composition is when an agreement is made between the owner of the lands, and the parson or vicar, with the consent of the ordinary and the patron, that such lands shall for the future be discharged from payment of tithes, by reason of some land or other real recompense given to the parson, in lieu and satisfaction thereof. This was permitted by law, because it was supposed that the clergy would be no losers by such composition; since the consent of the ordinary, whose duty it is to take care of the church in general, and of the patron, whose interest it is to protect that particular church, were both made necessary to render the composition effectual: and hence have arisen all such compositions as exist at this day by force of the common law. But, experience shewing that even this caution was ineffectual, and the possessions of the church being, by this and other means, every day diminished, the disabling statute 13 Eliz. c. 10. was made; which prevents, among other spiritual persons, all parsons and vicars from making any conveyances of the estates of their churches, other than for three lives or twenty one years. So that now, by virtue of this statute, no real composition made since the 13 Eliz. is good for any longer term than three lives or twenty one years, though made by consent of the patron and ordinary: which has indeed effectually demolished this kind of traffick; such compositions being now rarely heard of, unless by authority of parliament.
Secondly, a discharge by custom or prescription, is where time out of mind such persons or such lands have been, either partially or totally, discharged from the payment of tithes. And this immemorial usage is binding upon all parties, as it is in it's nature an evidence of universal consent and acquiescence; and with reason supposes a real composition to have been formerly made. This custom or prescription is either de modo decimandi, or de non decimando.
A modus decimandi, commonly called by the simple name of a modus only, is where there is by custom a particular manner of tithing allowed, different from the general law of taking tithes in kind, which are the actual tenth part of the annual increase. This is sometimes a pecuniary compensation, as twopence an acre for the tithe of land: sometimes it is a compensation in work and labour, as that the parson shall have only the twelfth cock of hay, and not the tenth, in consideration of the owner's making it for him: sometimes, in lieu of a large quantity of crude or imperfect tithe, the parson shall have a less quantity, when arrived to greater maturity, as a couple of fowls in lieu of tithe eggs; and the like. Any means, in short, whereby the general law of tithing is altered, and a new method of taking them is introduced, is called a modus decimandi, or special manner of tithing.
To make a good and sufficient modus, the following rules must be observed. 1. It must be certain and invariable, for payment of different sums will prove it to be no modus, that is, no original real composition; because that must have been one and the same, from it's first original to the present time. 2. The thing given, in lieu of tithes, must be beneficial to the parson, and not for the emolument of third persons only: thus a modus, to repair the church in lieu of tithes, is not good, because that is an advantage to the parish only; but to repair the chancel is a good modus, for that is an advantage to the parson. 3. It must be something different from the thing compounded for: one load of hay, in lieu of all tithe hay, is no good modus: for no parson would, bona fide, make a composition to receive less than his due in the same species of tithe; and therefore the law will not suppose it possible for such composition to have existed. 4. One cannot be discharged from payment of one species of tithe, by paying a modus for another. Thus a modus of 1d. for every milch cow will discharge the tithe of milch kine, but not of barren cattle: for tithe is, of common right, due for both; and therefore a modus for one shall never be a discharge for the other. 5. The recompense must be in it's nature as durable as the tithes discharged by it; that is, an inheritance certain: and therefore a modus that every inhabitant of a house shall pay 4d. a year, in lieu of the owner's tithes, is no good modus; for posslibly the house may not be inhabited, and then the recompense will be lost. 6. The modus must not be too large, which in law is called a rank modus: as if the real value of the tithes be 60𝑙. per annum, and a modus is suggested of 40𝑙. this modus will not be good; though one of 40s. might have been valid. For, in these cases of prescriptive or customary modus's, the law supposes an original real composition to have been regularly made; which being lost by length of time, the immemorial usage is admitted as evidence to shew that it once did exist, and that from thence such usage was derived. Now time of memory hath been long ago ascertained by the law to commence from the reign of Richard the first and any custom may be destroyed by evidence of it's non-existence in any part of the long period from his days to the present: wherefore, as this real composition is supposed to have been an equitable contract, or the full value of the tithes, at the time of making it, if the modus set up is so rank and large, as that it beyond dispute exceeds the value of the tithes in the time of Richard the first, this modus is felo de se and destroys itself. For, as it would be destroyed by any direct evidence to prove it's non-existence at any time since that aera, so also it is destroyed by carrying in itself this internal evidence of a much later original.
A prescription de non decimando is a claim to be entirely discharged of tithes, and to pay no compensation in lieu of them. Thus the king by his prerogative is discharged from all tithes. So a vicar shall pay no tithes to the rector, nor the rector to the vicar, for ecclesia decimas non solvit ecclesiae. But these privileges are personal to both the king and the clergy; for their tenant or lessee shall pay tithes of the same land, though in their own occupation it is not tithable. And, generally speaking, it is an established rule, that in lay hands, modus de non decimando non valet. But spiritual persons or corporations, as monasteries, abbots, bishops, and the like, were always capable of having their lands totally discharged of tithes, by various ways: as, 1. By real composition: 2. By the pope's bull of exemption: 3. By unity of possession; as when the rectory of a parish, and lands in the same parish, both belonged to a religious house, those lands were discharged of tithes by this unity of possession: 4. By prescription; having never been hable to tithes, by being always in spiritual hands: 5. By virtue of their order; as the knights templars, cistercians, and others, whose lands were privileged by the pope with a discharge of tithes. Though, upon the dissolution of abbeys by Henry VIII, most of these exemptions from tithes would have fallen with them, and the lands become tithable again; had they not been supported and upheld by the statute 31 Hen. VIII. c. 13. which enacts, that all persons who should come to the possession of the lands of any abbey then dissolved, should hold them free and discharged of tithes, in as large and ample a manner as the abbeys themselves formerly held them. And from this original have sprung all the lands, which, being in lay hands, do at present claim to be tithe-free: for, if a man can shew his lands to have been such abbey lands, and also immemorially discharged of tithes by any of the means before-mentioned, this is now a good prescription de non decimando. But he must shew both these requisites: for abbey lands, without a special ground of discharge, are not discharged of course; neither will any prescription de non decimando avail in total discharge of tithes, unless it relates to such abbey lands.
III. Common, or right of common, appears from it's very definition to be an incorporeal hereditament: being a profit which a man hath in the land of another; as to feed his beasts, to catch fish, to dig turf, to cut wood, or the like. And hence common is chiefly of four sorts; common of pasture, of piscary, of turbary, and of estovers.
1. Common of pasture is a right of feeding one's beasts on another's land; for in those waste grounds, which are usually called commons, the property of the soil is generally in the lord of the manor; as in common fields it is in the particular tenants. This kind of common is either appendant, appurtenant, because of vicinage, or in gross.
Common appendant is a right, belonging to the owners or occupiers of arable land, to put commonable beasts upon the lord's waste, and upon the lands of other persons within the same manor. Commonable beasts are either hearts of the plough, or such as manure the ground. This is a matter of most universal right; and it was originally permitted, not only for the encouragement of agriculture, but for the necessity of the thing. For, when lords of manors granted out parcels of lands to tenants, for services either done or to be done, these tenants could not plough or manure the land without beasts; these beasts could not be sustained without pasture; and pasture could not be had but in the lord's wastes, and on the uninclosed fallow grounds of themselves and the other tenants. The law therefore annexed this right of common, as inseparably incident, to the grant of the lands; and this was the original of common appendant: which obtains in Sweden, and the other northern kingdoms, much in the same manner as in England. Common appurtenant is where the owner of land has a right to put in other beasts, besides such as are generally commonable; as hogs, goats, and the like, which neither plough nor manure the ground. This, not arising from the necessity of the thing, like common appendant, is therefore not of common right; but can only be claimed by immemorial usage and prescription, which the law esteems sufficient proof of a special grant or agreement for this purpose. Common because of vicinage, or neighbourhood, is where the inhabitants of two townships, which lie contiguous to each other, have usually intercommoned with one another; the beasts of the one straying mutually into the other's fields, without any molestation from either. This is indeed only a permissive right, intended to excuse what in strictness is a trespass in both, and to prevent a multiplicity of suits: and therefore either township may enclose and bar out the other, though they have intercommoned time out of mind. Neither hath any person of one town a right to put his beasts originally into the other's common; but if they escape, and stray thither of themselves, the law winks at the trespass. Common in gross, or at large, is such as is neither appendant nor appurtenant to land, but is annexed to a man's person; being granted to him and his heirs by deed: or it may be claimed by prescriptive right, as by parson of a church, or the like corporation sole. This is a separate inheritance, entirely distinct from any landed property, and may be vested in one who has not a foot of ground in the manor.
All these species, of pasturable common, may be and usually are limited as to number and time; but there are also commons without stint, and which last all the year. By the statute of Merton however, and other subsequent statutes, the lord of a manor may enclose so much of the waste as he pleases, for tillage or woodground, provided he leaves common sufficient for such as are entitled thereto. This enclosure, when justifiable, is called in law "approving;" an antient expression signifying the same as "improving." The lord hath the sole interest in the soil; but the interest of the lord and commoner, in the common, are looked upon in law as mutual. They may both bring adlions for damage done, either against strangers, or each other; the lord for the public injury, and each commoner for his private damage.
2, 3. Common of piscary is a liberty of fishing in another man's waters; as common of turbary is a liberty of digging turf upon another's ground. There is also a common of digging for coals, minerals, stones, and the like. All these bear a resemblance to common of pasture in many respects; though in one point they go much farther: common of pasture being only a right of feeding on the herbage and vesture of the soil, which renews annually; but common of turbary, and the rest, are a right of carrying away the very soil itself.
4. Common of estovers (from estoffer, to furnish) is a liberty of taking necessary wood, for the use or furniture of a house or farm, from off another's estate. The Saxon word, bote, is of the same signification with the French estovers; and therefore house-bote is a sufficient allowance of wood, to repair, or to burn in, the house; which latter is sometimes called fire-bote: plough-bote and cart-bote are wood to be employed in making and repairing all instruments of husbandry: and hay-bote or hedge-bote is wood for repairing of hays, hedges, or fences. These botes or estovers must be reasonable ones; and such any tenant or lessee may take off the land let or demised to him, without waiting for any leave, assignment, or appointment of the lessor, unless he be restrained by special covenant to the contrary.
These several species of commons do all originally result from the same necessity as common of pasture; viz. for the maintenance and carrying on of husbandry: common of piscary being given for the sustenance of the tenant's family; common of turbary and fire-bote for his fuel; and house-bote, plough-bote, cart-bote, and hedge-bote, for repairing his house, his instruments of tillage, and the necessary fences of his grounds.
IV. A fourth species of incorporeal hereditaments is that of ways; or the right of going over another man's ground, I speak not here of the king's highways, which lead from town to town; nor yet of common ways, leading from a village into the fields; but of private ways, in which a particular man may have an interest and a right, though another be owner of the soil. This may be grounded on a special permission; as when the owner of the land grants to another a liberty of passing over his grounds, to go to church, to market, or the like: in which case the gift or grant is particular, and confined to the grantee alone; it dies with the person; and, if the grantee leaves the country, he cannot assign over his right to any other; nor can he justify taking another person in his company. A way may be also by prescription; as if all the owners and occupiers of such a farm have immemorially used to cross another's ground: for this immemorial usage supposes an original grant, whereby a right of way thus appurtenant to land may clearly be created. A right of way may also arise by act and operation of law: for, if a man grants me a piece of ground in the middle of his field, he at the same time tacitly and impliedly gives me a way to come at it; and I may cross his land for that purpose without trespass. For when the law doth give any thing to one, it giveth impliedly whatsoever is necessary for enjoying the same. By the law of the twelve tables at Rome, where a man had the right of way over another's land, and the road was out of repair, he who had the right of way might go over any part of the land he pleased: which was the established rule in public as well as private ways. And the law of England, in both cases, seems to correspond with the Roman.
V. Offices, which are a right to exercise a public or private employment, and to the fees and emoluments thereunto belonging, are also incorporeal hereditaments: whether public, as those of magistrates; or private, as of bailiffs, receivers, and the like. For a man may have an estate in them, either to him and his heirs, or for life, or for a term of years, or during pleasure only: fave only that offices of public trust cannot be granted for a term of years, especially if they concern the administration of justice, for then they might perhaps vest in executors or administrators. Neither can any judicial office be granted in reversion; because, though the grantee may be able to perform it at the time of the grant, yet before the office falls he may become unable and insufficient: but ministerial offices may be so granted; for those may be executed by deputy. Also, by statute 5 and 6 Edw. VI. c. 16. no public office shall be sold, under pain of disability to dispose of or hold it. For the law presumes that he, who buys an office, will by bribery, extortion, or other unlawful means, make his purchase good, to the manifest detriment of the public.
VI. Dignities bear a near relation to offices. Of the nature of these we treated at large in the former book: it will therefore be here sufficient to mention them as a species of incorporeal hereditaments, wherein a man may have a property or estate.
VII. Franchises are a seventh species. Franchise and liberty are used as synonymous terms: and their definition is, 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. 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.
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: 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, and 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: 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 law, and not to the forest laws. But a chase differs from a park, in that it is not enclosed, and also in that a man may have a chase in another man's ground as well as 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 enclosed chase, extending only over a man's own grounds. The word park indeed properly signifies any enclosure; 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 prescription, is necessary to make it so. Though now the difference between a real park, and such enclosed 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, 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; which, being ferae naturae, 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, 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. 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 rabbets. 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. A free 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: 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. This opening was extended, by the second and third 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; because he that has a several fishery must also be the owner of the soil, which in a free fishery is not requisite. 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 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. 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. But the considering such right as originally a flower of the prerogative, till restrained by magna carta, and derived by royal grant (previous to the reign of Richard I.) to such as now claim it by prescription, may remove some difficulties in respect to this matter, with which our books are embarassed.
VIII. Corodies are a right of sustenance, or to receive certain allotments of victual and provision for one's maintenance. In lieu of which (especially when due from ecclesiastical persons) a pension or sum of money is sometimes substituted. 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 rent-charge, with which it is frequently confounded: a rent-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. Therefore, if a man by deed grant to another the sum of 20𝑙. 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; and yet a man may have a real estate in it, though his security is merely personal.
X. Rents are the last species of incorporeal hereditaments. The word, rent, or render, reditus, signifies a compensation, or return; it being in the nature of an acknowlegement given for the possession of some corporeal inheritance. It is defined to be a certain profit issuing yearly out of lands and tenements corporeal. It must be a profit; yet there is no occasion for it to be, as it usually is, a sum of money: for spurs, capons, horses, corn, and other matters may be rendered, and frequently are rendered, by way of rent. It may also consist in services or manual operations; as, to plough so many acres of ground, to attend the king or the lord to the wars, and the like; which services in the eye of the law are profits. This profit must also be certain; or that which may be reduced to a certainty by either party. It must also issue yearly; though there is no occasion for it to issue every successive year; but it may be reserved every second, third, or fourth year: yet, as it is to be produced out of the profits of lands and tenements, as a recompense for being permitted to hold and enjoy them, it ought to be reserved yearly, because those profits do annually arise and are annually renewed. It must issue out of the thing granted, and not be part of the land or thing itself; wherein it differs from an exception in the grant, which is always of part of the thing granted. It must, lastly, issue out of lands and tenements corporeal; that is, from some inheritance whereunto the owner or grantee of the rent may have recourse to distrein. Therefore a rent cannot be reserved out of an advowson, a common, an office, a franchise, or the like. But a grant of such annuity or sum may operate as a personal contract, and oblige the grantor to pay the money reserved, or subject him to an action of debt; though it doth not affect the inheritance, and is no legal rent in contemplation of law.
 three manner of rents; rent-service, rent-charge, and rent-seck. Rent-service is so called because it hath some corporal service incident to it, as at the least fealty, or the feodal oath of fidelity. For, if a tenant holds his land by fealty, and ten shillings rent; or by the service of ploughing the lord's land, and five shillings rent; these pecuniary rents, being connected with personal services, are therefore called rent-service. And for these, in case they be behind, or arrere, at the day appointed, the lord may distrein of common right, without reserving any special power of distress; provided he hath in himself the reversion, or future estate of the lands and tenements, after the lease or particular estate of the lessee or grantee is expired. A rent-charge, is where the owner of the rent hath no future interest, or reversion expectant in the land; as where a man by deed maketh over to others his whole estate in fee simple, with a certain rent payable thereout, and adds to the deed a covenant or clause of distress, that if the rent be arrere, or behind, it shall be lawful to distrein for the same. In this case the land is liable to the distress, not of common right, but by virtue of the clause in the deed: and therefore it is called a rent-charge, because in this manner the land is charged with a distress for the payment of it. Rent-seck, reditus siccus, or barren rent, is in effect nothing more than a rent reserved by deed, but without any clause of distress.are at common law
There are also other species of rents, which are reducible to these three. Rents of assise are the certain established rents of the freeholders and antient copyholders of a manor, which cannot be departed from or varied. Those of the freeholders are frequently called chief rents, reditus capitales, and both sorts are indifferently denominated quit rents, quieti reditus; because thereby the tenant goes quit and free of all other services. When these payments were reserved in silver or white money, they were antiently called white-rents, or blanch-farms, reditus albi; in contradistinction to rents reserved in work, grain, &c. which were called reditus nigri, or black-maile. Rack-rent is only a rent of the full value of the tenement, or near it. A feefarm-rent is a rent-charge issuing out of an estate in fee; of at least one fourth of the value of the lands, at the time of it's reservation: for a grant of lands, reserving so considerable a rent, is indeed only letting lands to farm in fee simple instead of the usual methods for life or years.
These are the general divisions of rent; but the difference between them (in respect to the remedy for recovering them) is now totally abolished; and all persons may have the like remedy by distress for rents-seck, rents of assise, and chief-rents, as in case of rents reserved upon lease.
Rent is regularly due and payable upon the land from whence it issues, if no particular place is mentioned in the reservation: but, in case of the king, the payment must be either to his officers at the exchequer, or to his receiver in the country. And, strictly, the rent is demandable and payable before the time of sunset of the day whereon it is reserved; though some have thought it not absolutely due till midnight.
With regard to the original of rents, something will be said in the next chapter: and, as to distresses and other remedies for their recovery, the doctrine relating thereto, and the several proceedings thereon, these belong properly to the third part of our commentaries, which will treat of civil injuries, and the means whereby they are redressed.
- Co. Litt. 19, 20.
- Vol. I. pag. 109.
- This original of the jus patronatus, by building and endowing the church, appears also to have been allowed in the Roman empire. Nov. 56. t. 12. c. 2. Nov. 118. c. 23.
- Co. Litt. 119.
- Ibid. 121.
- Ibid. 307.
- Ibid. 120.
- Co. Litt. 344.
- Seld. tith. c. 12. §. 2.
- Decretal. l. 3. t. 7. c. 3.
- A. D. 1239.
- Co. Litt. 344. Cro. Jac. 63.
- 1 Roll. Abr. 635. 2 Inst. 649.
- 1 Roll. Abr. 656.
- 2 Inst. 651.
- Selden, c. 8. §. 2.
- A. D. 778.
- Book I. ch. 11. Seld. c. 6. §. 7. Sp. of laws, b. 31. c. 12.
- Wilkins, pag. 51.
- cap. 6.
- cap. 1.
- Book I. Introd. §. 4.
- 2 Inst. 646. Hob. 296.
- Seld. c. 9. §. 4.
- LL. Edgar, c. 1 & 2. Canut. c. 11.
- Selden. c. 11.
- Opera Innocent. III. tom. 2. pag. 452.
- Decretal. l. 3. t. 30. c. 19.
- Ibid. c. 26.
- 2 Inst. 641.
- Regist. 46. Hob. 296.
- Book I. pag. 372.
- In extraparochial places the king, by his royal prerogative, has a right to all the tithes. See book I. pag. 110.
- 2 Inst. 490. Regist. 38. 13 Rep. 40.
- 1 Keb. 602.
- 1 Roll. Abr. 649.
- 1 Lev. 179.
- Cro. Eliz. 446. Salk. 657.
- 2 P. Wms. 462.
- 11 Mod. 60.
- This rule was adopted, when by the statute of Westm. I. (3 Edw. I. c. 39.) the reign of Richard I. was made the time of limitation in a writ of right. But, since by the statute 32 Hen. VIII. c. 2. this period (in a writ of right) hath been very rationally reduced to sixty years, it seems unaccountable, that the date of legal prescription or memory should still continue to be reckoned from an aera so very antiquated. See 2 Roll. Abr. 269. pl. 16.
- Cro. Eliz. 511.
- Ibid. 479.
- Ibid. 511.
- Hob. 309. Cro. Jac. 308.
- 2 Rep. 44. Seld. tith. c. 13. §. 2.
- Finch, law. 157
- Co. Litt. 122.
- 2 Inst. 86.
- Stiernh. de jure Sueonum. l. 2. c. 6.
- Co. Litt. 122.
- Co. Litt. 122.
- 20 Hen. III. c. 4. 29 Geo. II. c. 36. and 31 Geo. II. c 41.
- 2 Inst. 474.
- 9 Rep. 113.
- Co. Litt. 122.
- Co. Litt. 41.
- Finch. law. 31.
- Ibid. 63.
- Co. Litt. 56.
- Lord Raym. 725. 1 Brownl. 212. 2 Show. 28. 1 Jon. 297.
- 9 Rep. 97.
- 11 Rep. 4.
- See book I. ch. 12.
- Finch. L. 164.
- 2 Roll. Abr. 191. Keilw. 196.
- 2 Inst. 220.
- 4 Inst. 314.
- Co. Litt. 233. 2 Inst. 199. 11 Rep. 86.
- 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 venary or hunting. (Co. Litt. 233.)
- The beasts are hares, conies, and roes: the fowls are either campestres, as partridges, rails, and quails; or sylvestres, as wood-cocks and pheasants; or aquatiles, as mallards and herons. (Ibid).
- Salk. 637.
- Bro. Abr. tit. Warren. 3.
- Seld. Mar. claus. I. 24. Dufresne. V. 503. Crag. de Jur. feod. II. 8. 15.
- cap. 47. edit. Oxon.
- cap. 20.
- 9 Hen. III. c. 16.
- F. N. B. 88. Salk. 637.
- 2 Sid. 8.
- Finch. L. 162.
- See book I. ch. 8.
- Co. Litt. 144.
- Ibid. 2.
- Co. Litt. 144.
- Ibid. 142.
- Ibid. 47.
- Plowd. 13. 8 Rep. 71.
- Co. Litt. 144.
- Ibid. 47.
- Litt. §. 213.
- Co. Litt. 142.
- Litt. §. 215.
- Co. Litt. 143.
- 2 Inst. 19.
- In Scotland this kind of small payment is called blench-holding, or reditus albae firmae.
- 2 Inst. 19.
- Co. Litt. 143.
- Stat. 4 Geo. II. c. 28.
- Co. Litt. 201.
- 4 Rep. 73.
- Anders. 253.
- 1 Saund. 287. 1 Chan. Prec. 555.