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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 those 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 trust cannot be granted for a term of years, efpecially if they concern the administration of justice, for then they might perhaps veft in executors or administrators. 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 disability to difpofe of or hold it. For [37] 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 (16).

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 fufficient to mention them as a fpecies of incorporeal hereditaments, wherein a man may have a property or eftate.

Franchise and

VII. FRANCHISES are a feventh species. liberty are ufed 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

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(16) If two offices are incompatible, by the acceptance of the latter, the first is relinquished and vacant, even if it fhould be a fuperior office. 2 T. R. 81.

grant;

grant; or, in fome cafes, may be held by prescription, which, as has been frequently faid, prefuppofes a grant. The kinds of them are various, and almost infinite: I will here briefly touch upon fome of the principal; premifing only, that they may be vested in either natural perfons or bodies politic; in one man, or in many: but the fame identical franchife, 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, vefted in a number of perfons. It is likewife a franchise for a number of perfons to be incorporated, and fubfift as a body politic; with a power to maintain perpetual fucceffion and do other corporate acts: and each individual member of fuch corporation is alfo faid to have a franchife or freedom. Other franchifes are, to hold a court leet to have a manor or lordship; or, at least, to have a lordship paramount: to have waifs, wrecks, eflrays, treafure-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 exclufive 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; [ 38 ] wherein the grantee only, and his officers, are to execute all procefs 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 muft have a reasonable caufe of commencement, (as in confideration of repairs, or the like,) elfe the franchife is illegal and void: or, laftly, to have a forest, chase, park, warren, or fishery, endowed with privileges of royalty; which species of franchife may require a more minute difcuffion.

As to a foreft: this, in the hands of a fubject, is properly the fame thing with a chafe; being fubject to the common

#2 Roll. Abr. 191. Keilw. 196.

x 2 Init, 220

law,

law, and not to the foreft laws (17). But a chafe differs from a park, in that it is not inclofed, and alfo 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 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 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 constituted a legal park; for the king's grant, or at least immemorial prescription, is neceflary to make it so 2. Though now the difference between a real park, and fuch enclosed grounds, is in many refpects not very material: only that it is unlawful at common law for any perfon to kill any beafts of park or chafe (18), except fuch as poffefs these franchifes of foreft, chase, or park. Free warren is a similar franchife, erected for prefervation or cuftody (which the word fignifies) of beafts and fowls of warren ; which, being ferae na

y 4 Inst. 314.

z Co. Litt. 233. 2 Inft. 199. 11 Rep. $6.

a These are properly buck, doe, fox, martin and roe; but in a common and legal fenfe extend likewife to all the beafts of the foreft: which, befides the

other, are reckoned to be hart, hind, hare, boar, and wolf, and in a word, all wild beafts of venary or hunting. (Co. Litt. 233.)

b The beats are hares, conies, and roes: the fowls are either campeftres, as partridges, rails, and quails; or fylveftres?

as

(17) The king, before the charta de forefta, could have made a foreft wherever he pleafed over the lands of his fubjects; but after the boundaries of the diftrict fixed upon were marked out and proclaimed by the sheriff, it was only a chafe till proper officers were appointed, when it became a foreft, and under the jurisdiction of the chief juftice in eyre. Manw. tit. Foreft, pl. 7. A forest is not neceffarily a chafe in the hands of a fubject; for it may be granted by the king, fubject to the juftice-feat and the foreft laws, as the duke of Lancaster, and duke of Norfolk, and many other noblemen have had forests fubject to the foreft laws; but if the jurifdiction is not added in the grant, it becomes a chafe, and trefpaffers in it are punishable only by the common law. Ib. pl. 67. et feq. 4 Inft. 314.

(18) See this controverted in a note to page 419, post.

turae, every one had a natural right to kill as he could: but upon the introduction of the forest laws, at the Norman conqueft, as will be fhewn hereafter, thefe 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 game-keeper: 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 (20). This franchise is almoft fallen into difregard, 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 fportsmen in antient times, who have fold their eftates, and referved the freewarren, 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 (21). A free fifbery, or

as woodcocks and pheasants; or aquatiles, as mallards and herons. (ibid.) (19).

d

c Salk. 637.

с

d Bro. Abr. tit. Warren. 3.

(19) Upon the foreft laws I fhould confider Manwood higher authority than fir Edward Coke.

Manwood informs us, that a foreft is not a privileged place for all manner of beasts or fowls, but only for beafts of forest, chase, or warren, and no other; that is, for the hart, the hind, and the hare, which are beafts of the foreft; the buck, the doe, the fox, which are beasts of the chafe; the hare, the coney, the pheasant, and the partridge, which are beafts and fowls of warren ; and no other. The game of free-warren are fuch as may be taken with long-winged hawks. For. pl. 20. Warren.

(20) But the owner of a free-warren neither kept nor killed the game for the use of the king: the doctrine which the learned Judge frequently repeats, that no one by the common law can justify sporting upon his own ground, is controverted at large by the Editor in a note to page 419, post.

(21) Any one may now leafe or convey his land, and reserve to himself the right of entering to kill game without being fubject

I

to

exclufive right of fishing in a public river, is also a royal franchife; 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 reftrain, the use of running water, was prohi bited 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 those also that were fenced under Richard I; fo that a franchise of free fifhery 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 muft alfo be (or at least derive his right from) the owner of the foil, which in a free fishery is not requifite (22). It differs alfo from a common of pifcary before-mentioned, in that the free fishery is an exclu[40] five right, the common of pifcary is not fo: and therefore, in a free fishery, a man has a property in the fith 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 fithery of the grantor'. But to confider fucli 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 prescription, and to distinguish it (as we have done) from a several and a common of fishery, may remove fome difficulties in respect to this matter, with which our books are embarraffed. For it

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to be fued as a trefpaffer; but the right of free-warren can only
exift by the king's grant, or by prefcription, from which fuch a
grant is prefumed. Manw. Warren. Fareft, pl. 43.

(22) A fubje&t may have, by prefcription, a right to a feveral
hery in an arm of the fea. 4
T. R. 437.

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