the grantee leaves the country, he cannot affign over his right to any other; nor can he justify taking another perfon in his company". A way may be alfo by prefcription; as if all the inhabitants of fuch a hamlet, or all the owners and occupiers of such a farm, have immemorially used to cross such a ground, for fuch a particular purpose: for this immemorial usage supposes an original grant, whereby a right of way thus appurtenant to land or houses may clearly be created. A right of way may also arife 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 fame time tacitly and impliedly gives me a way to come at it; and I may cross his land for that purpose without trefpafs. For when the law doth give any thing to one, it giveth impliedly whatfoever is neceffary for enjoying the fame?. 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 cafes, feems to correfpond with the Roman 9 (a).

V. OFFICES, which are a right to exercife a public or private employment, and to take the fees and emoluments thereunto belonging, are alfo incorporeal hereditaments : whether public, as thofe of magiftrates; 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 truft cannot be granted for a term of years, especially if they concern the adminiftration of juftice, for then they

B Finch. law. 31.

• Ibid. 63.

P Co. Litt. 56.

a Lord Raym. 725. 1 Brownl. 212. 2 Show. 28. 1 Jon. 297.

(a) [In the cafe of Taylor . Whitehead, Douglas 716, Trinity Term, 21 Geo. III. K. B. it was adjudged, that if a man has a right of way over another's land, he cannot juftify going over the adjoining land because the way was impaffable from being overflowed by a river; and that there is a difference between public and private ways in this respect.]

might perhaps veft in executors or adminiftrators. Neither can any judicial office be granted in reverfion; 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 infufficient: but minifterial offices may be fo granted'; for thofe may be executed by deputy. Alfo, by ftatute 5 & 6 Edw. VI. c. 16. no public office (a few only excepted) fhall be fold, under pain of difability to difpofe of or hold it. For the law prefumes that he, who buys an office, will by bribery, extortion, or other unlawful means, make his purchase good, to the manifeft detriment of the public.

VI. DIGNITIES bear a near relation to offices. Of the nature of these we treated at large in the former bock'; it will therefore be here fufficient to mention them as a fpecies of incorporeal hereditaments, wherein a man may have a property or eftate,

VII. FRANCHISES are a feventh fpecies. Franchife and liberty are used as fynonymous terms: and their definition is ", a royal privilege, or branch of the king's preroga tive, fubfifting in the hands of a fubject. Being therefore derived from the crown, they must arife from the king's grant; or, in fome cafes, may be held by prefeription, which, as has been frequently faid, prefuppofes a grant. The kinds of them are various, and almoft infinite: I will here briefly touch upon fome of the principal; prémifing only, that they may be vested in either natural perfons or bodies politic; in one man, or in many: but the fame identical franchise, that has before been granted to one, cannot be bestowed on an◄ other, for that would prejudice the former grant".

To be a county palatine is a franchife, vefted in a number of perfons. It is likewise a franchise for a number of perfons to be incorporated, and subsist as a body politic; with a power to maintain perpetual fucceffion and do other corporate acts: and each individual member of fuch corporation is also faid to have a franchife or freedom. Other franchises are, to hold a court leet: to have a manor or lordship; or, at least, to f 9 Rep. 97. u Finch. L. 164.

11 Rep. 4.

See book I. ch. 12.

C 3

w 2 Roll. Abr. 191. Keilw. 196. have

have a lordship paramount: to have waifs, wrecks, eftrays, treasure-trove, royal fish, forfeitures, and deodands: to have a court of one's own, or liberty of holding pleas; and trying caufes to have the cognizance of pleas; which is a ftill greater liberty, being an exclusive right, fo that no other court fhall try caufes arifing within that jurifdiction: to have a bailiwick, or liberty exempt from the fheriff 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 the like; which tolls must have a reasonable cause of commencement, (as in confideration of repairs, or the like,) elfe the franchise is illegal and void: or, laftly, to have a forest, chase, park, warren, or fishery, endowed with privileges of royalty; which fpecies of franchise may require a more minute difcuffion.

As to a forest this, in the hands of a subject, is properly the fame thing with a chase; being fubject to the common law, and not to the foreft laws. But a chase differs from a park, in that it is not inclosed, and also in that a man may have a chafe in another man's ground as well as in his own; being indeed the liberty of keeping beafts of chafe or royal game therein, protected even from the owner of the land with a power of hunting them thereon. A park is an inclosed chafe, extending only over a man's own grounds. The word park indeed properly fignifies an 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 conftituted a legal park: for the king's grant, or at least immemorial prescription, is neceffary to make it so 2. 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 beafts of park or chase 2, except such as poffefs these franchises

x 2 Inft, 220.

y 4 Init. 314.

legal fenfe extend likewife to all the beafts of the foreft: which, besides the

z Co. Litt. 233. 2 Inft. 199. 11 Rep. other, are reckoned to be hart, hind, 86.

a Thefe are properly buck, doe, fox, martin and roe; but in a common and

hare, boar, and wolf, and in a word, all wild beasts of venary or hunting. (Co. Litt. 233.)

of

b

of forest, chase, or park. Free-warren is a fimilar franchise, erected for prefervation or custody (which the word fignifies) 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 foreft laws, at the Norman conquest, as will be shewn hereafter, these animals being looked upon as royal game and the fole property of our favage monarchs, this franchise of free-warren was invented to protect them; by giving the grantee a fole and exclufive power of killing fuch game fo far as his warren extended, on condition of his preventing other perfons. A man therefore that has the franchise of warren, is in reality no more than a royal gamekeeper: but no man, not even a lord of a manor, could by common law justify sporting on another's foil, or even on his own, unless he had the liberty of free-warren. This franchise is almost fallen into disregard, fince the new statutes for preferving the game; the name being now chiefly preserved in grounds that are fet apart for breeding hares and rabbits. There are many inftances of keen sportsmen in antient times, who have fold their eftates, and referved the free-warren, or right of killing game, to themselves; by which means it comes to pass that a man and his heirs have fometimes free-warren over another's ground. A free fishery, or exclusive right of fishing in a public river, is alfo a royal franchise; and is confidered as fuch in all countries where the feodal polity has prevailed: though the making fuch grants, and by that means appropriating what feems 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 forefts to be difafforefted. This opening was extended, by the fecond and third charters of Henry III, to thofe alfo that were fenced under Richard I; fo that a franchise of free fishery ought now to be at least as old as the reign of Henry II.

This differs from a feveral fishery; because he that has a feveral fishery must also be (or at least derive his right from} the owner of the foil', which in a free fifhery is not requifite. It differs alfo from a common of pifcary before-mentioned, in that the free fishery is an exclusive right, the common of pifcary is not fo: and therefore, in a free fishery, a man has a property in the fish before they are caught; in a common of pifcary not till afterwards. Some indeed have confidered a free fishery not as a royal franchise, but merely as a private grant of a liberty to fish in the feveral fishery of the grantor'. But to confider fuch 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 fuch as now claim it by prefeription, and to distinguish it (as we have done) from a feveral and a common of fishery, may remove fome difficulties in refpect to this matter, with which our books are embarrassed. For it must be acknowlegcd, that the rights and distinctions of the three fpecies of fishery are very much confounded in our law-books; and that there are not wanting refpectable authorities which maintain, that a feveral fishery may exist distinct from the property of the foil, and that a free fishery implies no exclusive right, but is fynonymous with common of piscary.

m

VIII. CORODIES are a right of fuftenance, or to receive certain allotments of victual and provision for one's maintenance". In lieu of which (especially when due from ecclefiaflical perfons) a penfion or fum of money is fometimes fubftituted. And these may be reckoned another species of incorporeal hereditaments; though not chargeable on, or ifluing from, any corporeal inheritance, but only charged on the perfon of the owner in refpect of fuch his inheritance. To thefe may be added,

IX. ANNUITIES, which are much of the fame nature; only that these arife from temporal, as the former from fpiritual, perfons. An annuity is a thing very diftinct from a