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The Rights of Things.
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Ch. 3.

Chapter the third.
Of INCORPOREAL HEREDITAMENTS.

An incorporeal hereditament is a right iffuing out of a thing corporate (whether real or perfonal) or concerning, or annexed to, or exercifible within, the fame ^a. It is not the thing corporate itfelf, which may confift in lands, houfes, jewels, or the like; but fomething collateral thereto, as a rent iffuing out of thofe lands or houfes, or an office relating to thofe jewels. In fhort, as the logicians fpeak, corporeal hereditaments are the fubftance, which may be always feen, always handled : incorporeal hereditaments are but a fort of accidents, which inhere in and are fupported by that fubftance; and may belong, or not belong to it, without any vifible alteration therein. Their exiftence is merely in idea and abftracted contemplation; though their effects and profits may be frequently objects of our bodily fenfes. And indeed, if we would fix a clear notion of an incorporeal hereditament, we muft be careful not to confound together the profits produced, and the thing, or hereditament, which produces them. An annuity, for inftance, is an incorporeal hereditament : for though the money, which is the fruit or product of this annuity, is doubtlefs of a corporeal nature, yet the annuity itfelf, which produces that money, is a thing invifible, has only a mental exiftence, and cannot be delivered over from hand to hand. So tithes,

. {FS}
^a Co. Litt. 19, 20.
. {FE}
if
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The Rights of Things.
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Ch. 3.

if we confider the produce of them, as the tenth fheaf or tenth lamb, feem to be completely corporeal; yet they are indeed in corporeal hereditaments: for they, being merely a contingent right, collateral to and iffuing out of lands, can never be the object of fenfe : they are neither capable of being fhewn to the eye, nor of being delivered into bodily poffeffion.

Incorporeal hereditaments are principally of ten forts; advowfons, tithes, commons, ways, offices, dignities, franchifes, corodies or penfions, annuities, and rents.

1. Advowson is the right of prefentation to a church, or ecclefiaftical benefice. Advowfon, advocatio, fignifies is clientelam recipere, the taking into protection; and therefore is fynonymous with patronage, patronatus: and he who has the right of advowfon is called the patron of the church. For, when lords of manors firft built churches on their own demefnes, and appointed the tithes of thofe manors to be paid to the officiating minifters, which before were given to the clergy in common (from whence, as was formerly mentioned ^b, arofe the divifion of parifhes) the lord, who thus built a church, and endowed it with glebe or land, had of common right a power annexed o nominating fuch minifter as he pleafed (provided he were canonically qualified) to officiate in that church of which he was the founder, endower, maintainer, or, in one word, the patron ^c.

This inftance of an advowfon will completely illuftrate the nature of an incorporeal hereditament. It is not itfelf the bodily poffeffion of the church and it's appendages; but it is a right to give fome other man a title to fuch bodily poffeffion. The advowfon is the object of neither the fight, nor the touch; and yet it perpetually exifts in the mind's eye, and in contemplation of law. It cannot be delivered from man to man by any vifible bo-

. {FS}
^b Vol. I. pag. 109.
^c This original of the jut partematus, by building and endowing the church, appears alfo to have been allowed in the empire. Nov. 56. t. 12. c. 2. Nov. 118. c. 23.
. {FE}
dily
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The Rights of Things.
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dily transfer, nor can corporal poffeffion be had of it. If the patron takes corporal poffeffion of the church, the churchyard, the glebe or the like, he intrudes on another man's property ; for to thefe the parfon has an exclufive right. The patronage can therefore be only conveyed by operation of law, by verbal grant, either oral or written, which is a kind of invifible, mental transfer : and being fo vefted, it lies dormant and unnoticed, till occafion calls it forth ; when it produces a vifible, corporeal fruit, by intitling fome clerk, whom the patron fhall pleafe to nominate, to enter and receive bodily poffeffion of the lands and tenements of the church.

Advowsons are either advowfons appendant, or advowfons in grofs. Lords of manors being originally the only founders, and of courfe the only patrons, of churches ^d, the right of patronage or prefentation, fo long as it continues annexed to the poffeffion of the manor, as fome have done from the foundation of the church to this day, is called an advowfon appendant ^e: and it will pafs, or be conveyed, together with the manor, as incident and appendant thereto, by a grant of the manor only, without adding any other words ^f. But where the property of the advowfon has been once feparated from the property of the manor, by legal conveyance, it is called an advowfon in grofs, or at large, and never can be appendant any more ; but is for the future annexed to the perfon of it's owner, and not to his manor of lands ^g.

Advowsons are alfo either prefentative, collative, or donative ^h. An advowfon prefentative is where the patron hath a right of prefentation to the bifhop or ordinary, and moreover to demand of him to inftitute his clerk, if he find him canonically qualified : and this is the moft ufual advowfon. An advowfon collative is where the bifhop and patron are one and the fame perfon : in which cafe the bifhop cannot prefent to himfelf; but

. {FS}
^d Co. Litt. 119.
^e Ibid. 121.
^f Ibid. 397.
^g Ibid. 120.
^h Ibid.
. {FE}
he
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he does, by the one act of collation, or conferring the benefice, the whole that is done in common cafes, by both prefentation and inftitution. An advowfon donative is when the king, or any fubject by his licence, doth found a church or chapel, and ordains that it fhall be merely in the gift or difpofal of the patron ; fubject to his vifitation only, and not to that of of the ordinary; and vefted abfolutely in the clerk by the patron's deed of donation, without prefentation, inftitution, or induction ⁱ. This is faid to have been antiently the only way of conferring ecclefiaftical benefices in England; the method of inftitution by the bifhop not being eftablifhed more early than the time of arch-bifhop Becket in the reign of Henry II ^k. And therefore though pope Alexander III ^l, in a letter to Becket, feverely inveighs againft the prava confuetudo, as he calls it, of inveftiture conferred by the patron only, this however fhews what was then the common ufage. Others contend, that the claim of the bifhops to inftitution is as old as the firft planting of chriftianity in this ifland ; and in proof of it they allege a letter from the Englifh nobility, to the pope in the reign of Henry the third, recorded by Matthew Paris ^m, which fpeaks of prefentation to the bifhop as a thing immemorial. The truth feems to be, that, where the benefice was to be conferred on a mere layman, he was firft prefented to the bifhop, in order to receive ordination, who was at liberty to examine and refufe him : but where the clerk was already in orders, the living was ufually vefted in him by the fole donation of the patron ; till about the middle of the twelfth century, when the pope and his bifhops endeavoured to introduce a kind of foedal dominion over ecclefiaftical benefices, and, in confequence of that, began to claim and exercife the right of inftitution univerfally, as a fpecies of fpiritual inveftiture.

However this may be, if, as the law now ftands, the true patron once waives this privilege of donation, and prefents to the bifhop, and his clerk is admitted and inftituted, the advow-

. {FS}
^{i C}o. Litt. 344.
^k Seld. Tith. c. 12. §. 2.
^{l D}ecretal. l. 3. t. 7. c. 3.
^m A. D. 1239.
. {FE}
fon
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The Rights of Things.
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fon is now become for ever prefentative, andfhall never be donative any more. For thefe exceptions to general rules, and common right, are ever looked upon by the law in an unfavourable view, and conftrued as ftrictly as poffible. If therefore the patron, in whom fuch peculiar right refides, 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 ftandard of other ecclefiaftical livings.

II. A second fpecies of incorporeal hereditaments is that of tithes; which are defined to be the tenth part of the increafe, yearly arifing and renewing from the profits of lands, the ftock upon lands, and the perfonal induftry of the inhabitants : the firft fpecies being ufually called predial, as of corn, grafs, hops, and wood ⁿ; the fecond mixed, as of wool, milk, pigs, &c ^o, confifting of natural products, but nurtured and preferved in part in grofs : the third perfonal, as of manual occupations, trades, fifheries, and the like ;and of thefe only the tenth part of the clear gains and profits is due ^p.

It is not be expected from the nature of thefe general commentaries, that I fhould particularly fpecify, what things are tithable, and what not, the time when, or the manner and proportion in which, tithes are ufually due. For this I muft refer to fuch authors as have treated the matter in detail :and fhall only obferve, that, in general, tithes are to be paid for every thing that yields an annual increafe, as corn, hay, fruit, cattle, poultry, and the like; but not for any thing that is of the fubftance of the earth, or is not of annual increafe, as ftone, lime, chalk, and the like ; nor for creatures that are of a wild nature, or fera nature, as deer, hawks, &c, whofe increafe, fo as to profit the owner, is not annual, but cafual ^q. It will rather be our bufinefs to confider, 1. The original of the right of tithes. 2. In whom

. {FS}
ⁿ 1Roll. Abr. 635. 2 Inft. 649.
^o Ibid.
^p 1 Roll. Abr. 656.
^q 2 Inft. 651.
. {FE}
that
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The Rights of Things.
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that right at prefent fubfifts. 3. Who may be difcharged, 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 fuch a right certainly commenced, and I believe as certainly ceafed, with the Jewifh theocracy. Yet an honourable and competent maintenance for the minifters of the gofpel is, undoubtedly, jure divino ; whatever the particular mode of that maintenance may be. For, befides the pofitive precepts of the new teftament, natural reafon will tell us, that an order of men, who are feparated form the world, and excluded from other lucrative profeffions, for the fake of the reft of mankind, have a right to be furnifhed with the neceffaries, conveniences, and moderate enjoyments of life, at their expenfe, for whofe benefit they forego the ufual means of providing them. Accordingly all municipal laws have provided a liberal and decent maintenance for their national priefts or clergy : ours in particular have eftablifhed this of tithes, probably in imitation of the Jewifh law : and perhaps, confidering the degenerate ftate of the world in general, it may be more beneficial to the Englifh clergy to found their title on the law of the land, than upon any divine right whatfoever, unacknowleged and unfupported by temporal fanctions.

We cannot precifely afcertain the time when tithes were firft introduced into this country. Poffibly they were contemporary with the planting of chriftianity among the Saxons, by auguftin the monk, about the end of the fixth century. But the firft mention of them, which I have met with in any written Englifh law, is in a conftitutional decree, made in a fynod held A. D. 786 ^r, wherein the payment of tithes in general is ftrongly enjoined. This canon, or decree, which at firft bound not the laity, was effectually confirmed by two kingdoms of the heptarchy, in their parliamentary conventions of eftates, refpective-

. {FS}
^r Selden, c. 8. §. 2.
. {FE}

Vol. II.

D

ly

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ly confifting of the kings of Mercia and Northumberland, the bifhops, dukes, fenators, and people. Which was a few years later than the time that Charlemagne eftablifhed the payment of them in France ^s, and made that famous divifion of them into four parts ; one to maintain the edifice of the church, the fecond to fupport the poor, the third the bifhop, and the fourth the parochial clergy ^t.

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 fon Edward the elder, fucceffive kings of England, about the year 900. This was a kind of treaty between thofe monarchs, which may be found at large in the Anglo-Saxon laws ^u; wherein it was neceffary, as Guthrun was a pagan, to provide for the fubfiftence of the chriftian clergy under his dominion ; and, accordingly, we find ^w the payment of tithes not only enjoined, but a penalty added upon non-obfervance : which law is feconded by thofe of Athelftan ^x, about the year 930. And this is as much as can certainly be traced out, with regard to their legal original.
.P 27
The Rights of Things.
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However, arbitrary confecrations of tithes took place again afterwards, and became in general ufe till the time of king John ^c. Which was probably owing to the intrigues of the regular clergy, or monks of the Benedictine and other rules, under arch-bifhop Dunftan and his fucceffors; who endeavoured to wean the people from paying their dues to the fecular or parochial clergy, (a much more valuable fet of men than themfelves) and were then in hopes to have drawn, by fanctimonious pretences to extraordinary purity of life, all ecclefiaftical profits to the coffers of their own focieties. And this will naturally enough account for the number and riches of the monafteries and religious houfes, which were founded in thofe days, and which were frequently endowed with tithes. For a layman, who was obliged to pay his tithes fomewhere, might think it good policy to erect an abbey, and there pay them to his own monks; or grant them to fome abbey already erected; fince for this dotation, which really coft the patron little or nothing, he might, according to the fuperftition of the times, have maffes for ever fung for his foul. But, in procefs of years, the income of the poor laborious parifh priefts being fcandaloufly reduced by thefe arbitrary confecrations of tithes, it was remedied by pope Innocent the third ^d about the year 1200 in a decretal epiftle, fent to the arch-bifhop of Canterbury, and dated from the palace of Lateran: which has occafioned fir Henry Hobart and others to miftake 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 ^e; whereas this letter of pope Innocent to the arch-bifhop enjoined the payment of tithes to the parfons of the refpective parifhes where every man inhabited, agreeable to what was afterwards directed by the fame pope in other countries ^f. This epiftle, fays fir Edward Coke ^g, bound not the lay fubjects of this realm; but, being reafonable and juft (and, he might have added,

.{FS}
^c Selden. c. 11.
^d Opera Innocent. III. tom. 2. pag. 452.
^e Decretal. l. 3. t. 30. c. 19.
^{f I}bid. c. 26.
^g 2 Inft. 641.
.{FE}

D 2
being
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The Rights of Things.
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Ch. 3.

being correfpondent to the antient law) it was allowed of, and fo became lex terrae. This put an effectual ftop to all the arbitrary confecrations of tithes; except fome footfteps which ftill continue in thofe portions of tithes, which the parfon of one parifh hath, though rarely, a right to claim in another: for it is now univerfally held ^h, that tithes are due, of common right, to the parfon of the parifh, unlefs there be a fpecial exemption. This parfon of the parifh, we have formerly feen ^I, may be either the actual incumbent, or elfe the appropriator of the benefice: appropriations being a method of endowing monafteries, which feems to have been devifed by the regular clergy, by way of fubftitution to arbitrary confecrations of tithes ^k.

3. We obferved that tithes are due to the parfon of common right, unlefs by fpecial exemption: let us therefore fee, thirdly, who may be exempted from the payment of tithes, and how. Lands, and their occupiers, may be exempted or difcharged from the payment of tithes, either in part or totally, firft, by a real compofition; or, fecondly, by cuftom or prefcription.

First, a real compofition is when an agreement is made between the owner of the lands, and the parfon or vicar, with the confent of the ordinary and the patron, that fuch lands fhall for the future be difcharged from payment of tithes, by reafon of fome land or other real recompence given to the parfon, in lieu and fatisfaction thereof ^l. This was permitted by law, becaufe it was fuppofed that the clergy would be no lofers by fuch compofition; fince the confent of the ordinary, whofe duty it is to take care of the church in general, and of the patron, whofe intereft it is to protect that particular church, were both made neceffary to render the compofition effectual: and hence have arifen all fuch compofitions as exift at this day by force of the common law. But, experience fhewing that even this caution was ineffectual, and

.{FS}
^h Regift. 46. Hob. 296.
ⁱ Book I. pag. 372.

1. In extraparochial places the king, by his royal prerogative, has a right to all the tithes. See book I. pag. 110.
   

^{l 2} Inft. 490. Regift. 38. 13 Rep. 40.
.{FE}
the
.P 29
The Rights of Things.
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Ch. 3.

the poffeffions of the church being, by this and other means, every day diminifhed, the difabling ftatue 13 Eliz. c. 10. was made; which prevents, among other fpiritual perfons, all parfons and vicars from making any conveyances of the eftates of their churches, other than for three lives or twenty one years. So that now, by virtue of this ftatute, no real compofition made fince the 13 Eliz. is good for any longer term than three lives or twenty one years, though made by confent of the patron and ordinary: which has indeed effectually demolifhed this kind of traffick; fuch compofitions being now rarely heard of, unlefs by authority of parliament.

Secondly, a difcharge by cuftom or prefcription, is where time out of mind fuch perfons or fuch lands have been, either partially or totally, difcharged from the payment of tithes. And this immemorial ufage is binding upon all parties, as it is in it's nature an evidence of univerfal confent and acquiefcence; and with reafon fuppofes a real compofition to have been formerly made. This cuftom or prefcription is either de modo decimandi, or de non-decimando.

A modus decimandi, commonly called by the fimple name of a modus only, is where there is by cuftom a particular manner of tithing allowed, different from the general law of taking tithes in kind, which are the accrual tenth part of the annual increafe. This is fometimes a pecuniary compenfation, as twopence an acre for the tithe of land: fometimes it is a compenfation in work and labour, as that the parfon fhall have only the twelfth cock of hay, and not the tenth, in confideration of the owner's making it for him: fometimes, in lieu of a large quantity of crude or imperfect tithe, the parfon fhall have a lefs quantity, when arrived to greater maturity, as a couple of fowls in lieu of tithe eggs; and the like. Any means, in fhort, whereby the general law of tithing is altered, and a new method of taking them is introduced, is called a modus decimandi, or fpecial manner of tithing.

To
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Ch. 3.

To make a good and fufficient modus, the following rules muft be obferved. 1. It muft be certain and invariable ^m, for payment of different fums will prove it to be no modus, that is, no original real compofition; becaufe that muft have been one and the fame, from it's firft original to the prefent time. 2. The thing given, in lieu of tithes, muft be beneficial to the parfon, and not for the emolument of third perfons only ⁿ: thus a modus, to repair the church in lieu of tithes, is not good, becaufe that is an advantage to the parifh only; but to repair the chancel is a good modus, for that is an advantage to the parfon. 3. It muft be fomething different from the thing compounded for ^o: one load of hay, in lieu of all tithe hay, is no good modus: for no parfon would, bona fide, make a compofition to receive lefs than his due in the fame fpecies of tithe; and therefore the law will not fuppofe it poffible for fuch compofition to have exifted. 4. One cannot be difcharged from payment of one fpecies of tithe, by paying a modus for another ^p. Thus a modus of 1 d. for every milch cow will difcharge 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 fhall never be a difcharge for the other. 5. The recompence muft be in it's nature as durable as the tithes difcharged by it; that is, an inheritance certain ^q: and therefore a modus that every inhabitant of a houfe fhall pay 4d. a year, in lieu of the owner's tithes, is no good modus; for poffibly the houfe may not be inhabited, and then the recompence will be loft. 6. The modus muft not be too large, which in law is called 2 rank modus: as if the real value of the tithes be 60 l. per annum, and a modus in fuggefted of 40 l. this modus will not be good; though on of 40s. might have been valid ^r. For, in thefe cafes of prefcriptive or cuftomary modus's, the law fuppofes an original real compofition to have been regularly made; which being loft by length of time, the immemorial ufage is admitted

.{FS}
^m 1 Keb. 602.
ⁿ 1 Roll. Abr. 649.
^o 1 Lev. 179.
^p Cro. Eliz. 446. Salk. 657.
^q 2 P. W^m2. 462.
^r 11 Mod. 60.
.{FE}
as
.P 31
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Ch. 3.

as evidence to fhew that it once did exift, and that from thence fuch ufage was derived. Now time of memory hath been long ago afcertained by the law to commence from the reign of Richard the firft ^s; and any cuftom may be deftroyed by evidence of it's non-exiftence in any part of the long period from his days to the prefent: wherefore, as this real compofition is fuppofed to have been an equitable contract, or the full value of the tithes, at the time of making it, if the modus fet up is fo rank and large, as that it beyond difpute exceeds the value of the tithes in the time of Richard the firft, this modus is felo de fe and deftroys itfelf. For, as it would be deftroyed by any direct evidence to prove it's non-exiftence at any time fince that aera, fo alfo it is deftroyed by carrying in itfelf this internal evidence of a much later original.

A prescription de non decimando is a claim to be entirely difcharged of tithes, and to pay no compenfation in lieu of them. Thus the king by his prerogative is difcharged from all tithes ^t. So a vicar fhall pay no tithes to the rector, nor the rector to the vicar, for ecclefia decimas non folvit ecclefiae ^u. But thefe privileges are perfonal to both the king and the clergy; for their tenant or leffee fhall pay tithes of the fame land, though in their own occupation it is not tithable. And, generally fpeaking, it is an eftablifhed rule, that in lay hands, modus de non decimando non valet ^w. but fpiritual perfons or corporations, as monafteries, abbots, bifhops, and the like, were always capable of having their lands totally difcharged of tithes, by variously ways ^x: as, 1. By real compofition: 2. By the pope's bull of exemption: 3. By unity of poffeffion; as when the rectory of a parigh, and lands in the fame parigh, both belonged to a religious houfe, thofe lands

.{FS}

1. This rule was adopted, when by the ftatute of Weftm. 1. (3 Edw. I. c. 39.) the reign of Richard I. was made the time of limitation in a writ of right. But, fince by the ftatute 32 Hen. VIII. C. 2. this period (in a writ of right) hath been very rationally reduced to fixty years, it feems unaccountable, that the date of legal prefcription or memory fhould ftill continue to be reckoned from an aera fo very antiquated. See 2 Roll. Abr. 269. ;p. 16.
   

^{t C}ro. Eliz. 511.
^u Ibid. 479.
^w Ibid. 511.
^x Hob. 309. Cro. Jac. 308.
.{FE}

were
.P 32
The Rights of Things.
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were difcharged of tithes by this unity of poffeffion: 4. By prefcription; having never been liable to tithes, by being always in fpiritual hands: 5. By virtue of their order; as the knights templars, ciftercians, and others, whofe lands were privileged by the pope with a difcharge of tithes ^y. Though, upon the diffolution of abbeys by Henry VIII, moft of thefe exemptions from tithes would have fallen with them, and the lands become tithable again; had they not been fupported and upheld by the ftatute 31 Hen. VIII. c. 13. which enacts, that all perfons who fhould come to the poffeffion of the lands of any abbey then diffolved, fhould hold them free and difcharged of tithes, in as large and ample a manner as the abbeys themfelves formerly held them. And from this original have fprung all the lands, which, being in lay hands, do at prefent claim to be tithe-free: for, if a man can fhew his lands to have been fuch abbey lands, and alfo immemorially difcharged of tithes by any of the means before-mentioned, this is now a good prefcription de non decimando. But he muft fhew both thefe requifites: for abbey lands, without a fpecial ground of difcharge, are not difcharged of courfe; neither will any prefcription de non decimando avail in total difcharge of tithes, unlefs it relates to fuch 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 beafts, to catch fifh, to dig turf, to cut wood, or the like ^z. And hence common is chiefly of four forts; common of pafture, of pifcary, of turbary, and of eftovers.

1. Common of pafture is a right of feeding one's beafts on another's land; for in thofe wafte grounds, which are ufually called commons, the property of the foil 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, becaufe of vicinage, or in grofs ^a.

.{FS}
y 2 Rep. 44. Seld. tith. c. 13. §. 2.
z Finch, law. 157.
a Co. Litt. 122.
.{FE}

Common
.P 33
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Book II.
Ch. 3.

Common appendant is a right, belonging to the owners or occupiers of arable land, to put commonable beafts upon the lord's wafte, and upon the land of other perfons within the fame manor. Commonable beafts are either beafts of the plough, or fuch as manure the ground. This is a matter of moft univerfal right; and it was originally permitted ^b, not only for the encouragement of agriculture, but for the neceffity of the thing. For, when lords of manors granted out parcels of land to tenants, for fervices either done or to be done, thefe tenants could not plough or manure the land without beafts; thefe beafts could not be fuftained without pafture; and pafture could not be had but in the lord's waftes, and on the uninclofed fallow grounds of themfelves and the other tenants. The law therefore annexed this right of common, as infeparably 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 fame manner as in England ^c. Common appurtenant is where the owner of land has a right to put in other beafts, befides fuch as are generally commonable; as hogs, goats, and the like, which neither plough nor manure the ground. This, not arifing from the neceffity of the thing, like common appendant, is therefore not of common right; but can only be claimed by immemorial ufage and prefcription ^d, which the law efteems fufficient proof of a fpecial grant or agreement for this purpofe. Common becaufe of vicinage, or neighbourhood, is where the inhabitants of two townfhips, which lie contiguous to each other, have ufually intercommoned with one another; the beafts of the one ftraying mutually into the other's fields, without any moleftation from either. This is indeed only a permiffive right, intended to excufe what in ftrictnefs is a trefpafs in both, and to prevent a multiplicity of fuits: and therefore either townfhip may enclofe and bar out the other, though they have intercommoned time out of mind. Neither hath any perfon of one town a right to put his

.{FS}
^b 2 Inft. 86.
^c Stiernh. de jure Suconum. l. 2. c. 6.
^d Co. Litt., 122.
.{FE}
E
Beafts
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The Rights of Things.
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Ch. 3.

beafts originally into the other's common; but if they efcape, an ftray thither of themfelves, the law winds at the trefpafs ^e. Common in grofs, or at large, is fuch as is neither appendant nor appurtenant to land, but is annexed to a man's perfon; being granted to him and his heirs by deed: or it may be claimed by prefcriptive right, as by parfon of a church, or the like corporation fole. This is a feparate inheritance, entirely diftinct from any landed property, and may be vefted in one who has not a foot of ground in the manor.

All thefe fpecies, of pafturable common, may be and ufually are limited as to number and time; but there are alfo commons without ftint, and which laft all the year. By the ftatute of Merton however, and other fubfequent ftatutes ^f, the lord of a manor may enclofe fo much of the wafte as he pleafes, for tillage or woodground, provided he leaves common fufficient for fuch as are entitled thereto. This enclofure, when juftifiable, is called in law “approving;” an antient expreffion fignifying the fame as “im- “porving ^g.” The lord hath the fole intereft in the foil; but the intereft of the lord and commoner, in the common, are looked upon in law as mutual. They may both bring actions for damage done, either againft ftrangers, or each other; the lord for the public injury, and each commoner for his private damage ^h.

2, 3. Common of pifcary is a liberty of fifhing in another man's waters; as common of turbary is a liberty of digging turf upon another's ground ⁱ. There is alfo a common of digging for coals, minerals, ftones, and the like. All thefe bear a refemblance to common of pafture in many refpects; though in one point they go much farther: common of pafture being only a right of feeding on the herbage and vefture of the foil, which renews annually; but common of turbary, and the reft, are a right of carrying away the very foil itfelf.

.{FS}
^e Co. Litt. 122.
^f 20 Hen. III. c. 4. 29 Geo. II. c. 36. and 31 Geo. II. c. 41.
^g 2 Inft. 474.
^h 9 Rep. 113.
ⁱ Co. Litt. 122.
.{FE}

4. Com-
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The Rights of Things.
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Ch. 3.

4. Common of eftovers (from eftoffer, to furnifh) is a liberty of taking neceffary wood, for the ufe or furniture of a houfe or farm, from off another's eftate. The Saxon word, bote, is of the fame fignification with the French eftovers; and therefore houfe-bote is a fufficient allowance of wood, to repair, or to burn in, the houfe; which latter is fometimes called fire-bote: plough-bote and cart-bote are wood to be employed in making and repairing all inftruments of hufbandry: and hay-bote or hedge-bote is wood for repairing of hays, hedges, or fences. Thefe botes or eftovers muft be reafonable ones; and fuch any tenant or leffee may taky off the land let or demifed to him, without waiting for any leave, affignment, or appointment of the leffor, unlefs he be reftrained by fpecial covenant to the contrary ^k.

These feveral fpecies of commons do all originally refult from the fame neceffity as common of pafture; viz. for the maintenance and carrying on of hufbandry: common of pifcary being given for the fuftenance of the tenant's family; common of turbary and fire-bote for his fuel; and boufe-bote, plough-bote, cart-bote, and hedge-bote, for repairing his houfe, his inftruments of tillage, and the neceffary fences of his grounds.

IV. A fourth fpecies of incorporeal hereditaments is that of ways; or the right of going over another man's ground. I fpeak not here of common ways, leading from a village into the fields; but of private ways, in which a particular man may have an intereft and a right, though another be owner of the foil. This may be grounded on a fpecial permiffion; as when the owner of the land grants to another a liberty of paffing over his grounds, to go to church, to market, or the like: in which café the gift or grant is particular, and confined to the grantee alone; it dies with the perfon; and, if the grantee leaves the country, he cannot affign over his right to any other; nor can he juftify

.{FS}
^k Co. Litt. 41.
.{FE}

E 2
taking
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The Rights of Things.
Book II.
Ch. 3.

taking another perfon in his company ^l. A way may be alfo by prefcription; as if all the owners and occupiers of fuch a farm have immemorially ufed to crofs another's ground: for this immemorial ufage fuppofes an original grant, whereby a right of way thus appurtenant to land may clearly be created. A right of way may alfo 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 corfs his land for that purpofe without trefpafs ^m. For when the law doth give any thing to one, it giveth impliedly whatfoever is neceffary for enjoying the fame ⁿ. 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 pleafed: which was the eftablifhed rule in public as well as private ways. And the law of England, in both cafes, feems to correfpond with the Roman ^o.

V. Offices, which are a right to exercife a public or private employment, and 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 eftate in them, either to him and his heirs, or for life, or for a term of years, or during pleafure only: fave only that offices of public truft cannot be granted for a term of years, efpecially if they concern the adminiftration of juftice, for then they might perhaps veft in executors or adminiftrators ^p. Neither can any judicial office be granted in reverfion; becaufe, 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 ^q; for thofe may be executed by deputy. Alfo, by ftatute 5 and 6 Edw. VI. c. 16. no public office fhall be fold, under pain of difability to difpofe of or hold it. For the law perfumes that he, who buys an

.{FS}
^l Finch. law. 31.
^m Ibid. 63.
ⁿ Co. Litt. 56.
^o Lord Raym. 725. 1 Brownl. 212.2 Show. 28. 1 Jon. 297.
^p 9 Rep. 97.
^q 11 Rep. 4.
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office,
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The Rights of Things.
Book II.
Ch. 3.

office, will by bribery, extortion, or other unlawful means, make his purchafe good, to the manifeft detriment of the public.

VI. Dignities bear a near relation to offices. Of the nature of thefe we treated at large in the former book ^r: 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 ufed as fynonymous terms: and their definition is ^s, a royal privilege, or branch of the king's prerogative, fubfifting in the hands of a fubject. Being therefore derived from the crown, they muft arife from the king's grant; or, in fome cafes, may be held by prefcription, 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; premifing only, that they may be vefted 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 beftowed on another; for that would prejudice the former grant ^t.

To be a county palatine is a franchife, vefted in a number of perfons. It is likewife a franchife for a number of perfons to be incorporated, and fubfift as a body politic, with a power to maintain perpetual fecceffion 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 lordfhip; or, at leaft, to have a lordfhip paramount: to have waifs, wrecks, eftrays, treafure-trove, royal fifh, fo features, 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 exclufive right, fo that no other court fhall try caufes afifing within that juriifdiction: to have a bailiwick, or liberty exempt from the fheriff of the county, wherein the grantee only, and his officers, are to

.{FS}
r See Book I. ch. 12.
s Fiach. L. 164.
t 2 Roll. Abr. 191. Keilw 196.
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exe-
.P 38
The Rights of Things.
Book II.
Ch. 3.

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, and the like; which tolls muft have a reafonable clufe of commencement, (as in confideration of repairs, or the like) elfe the franchife is illegal and void ^u: or, laftly, to have a foreft, chafe, park, warren, or fifhery, endowed with privileges of royalty; which fpecies 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 law, and not to the foreft laws ^v. But a chafe differs from a park, in that it is not enclofed, and alfo in that a man may have a chafe in another man's ground as well as 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 enclofed chafe, extending only over a man's own grounds. The word park indeed properly fignifies any enclofure; but yet it is not every field or common, which a gentleman pleafes to furround with a wall or paling, and to ftock with a herd of deer, that is thereby conftituted a legal park: for the king's grant, or at leaft immemorial prefcription, is neceffary to make it fo ^w. Though now the difference between a real park, and fuch enclofed 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 ^x, except fuch as poffefs thefe franchifes of foreft, chafe, or park. Free-warren is a fimilar franchife, erected for prefervation or cuftody (which the word fignifies) of beafts and fowls of warren ^y; which, being ferae naturae, every one had a natural right to kill as he could:

.{FS}
^u 2 Inft.220.
^v 4 Inft. 314.
^w Co. Litt. 233. 2 Inft. 199. 11 Rep. 86.

1. Thefe 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.)
   
2. The beafts are hares, conies, and roes: the fowls are either campeftres, as partridges, fails, and quails; or fylveftres, as woodcocks and pheafants; or aqua tiles, as mallards and herons. (Ibid.)
   

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but
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The Rights of Things.
Book II.
Ch. 3.

but upon the introduction of the foreft 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 franchife 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 franchife 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 juftify fporting on another's foil, or even on his own, unlefs he had the liberty of free-warren ^z. This franchife is almoft fallen into difregard, fince the new ftatutes for preferving the game; the name being now chiefly preferved in grounds that are fet apart for breeding hares and rabbets. There are many inftances of keen fportfmen in antient times, who have fold their eftates, and referved the free-warren over another's ground ^a. A free fifbery, or exclufive right of fifhing in a public river, is alfo a royal franchife; and is confidered as fuch in all countries where the feodal polity has prevailed ^b: though the making fuch grants, and by that means appropriating what feems to be unnatural to reftrain, the ufe 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 ^c. This opening was extended, by the fecond ^d and third ^d charters of Henry III, to thofe alfo that were fenced under Richard I; fo that a franchife of free fifhery ought now to be at leaft as old as the reign of Henry II. This differs from a feveral fifhery; becaufe he that has a feveral fifhery muft alfo be 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

.{FS}
^z Salk. 637.
^a Bro. Abr. tit. Warren. 3.
^b Seld. Mar. dauf. 1 24. Dufrefne. V. 503. Crag. de Fur feod. II. 8. 15.
^c cap. 47. edit. Oxon.
^d cap. 20.
^e 9 Hen. III. c. 16.
.{FE}

the
.P 40
The Rights of Things.
Book II.
Ch. 3.

the free fifhery is an exclufive right, the common of pifcary is not fo: and therefore, in a free fifhery, a man has a property in the fifh before they are caught; in a common of pifcary, not till afterwards ^f. Some indeed have confidered a free fifhery not as a royal franchife, but merely as a private grant of a liberty to fifh in the feveral fifhery of the grantor ^g. But the confidering fuch right as originally a flower of the prerogative, till reftrained by magna carta, and derived by royal grant (previous to the reign of Richard I.) to fuch as now claim it by prefcription, may remove fome difficulties in refpect to this matter, with which our books are embaraffed.

VIII. Corodies are a right of fuftenance, or to receive certain allotments of victual and provifion for one's maintenance ^h. In lieu of which (efpecially when due from ecclefiaftical perfons) a penfion or fum of money is fometimes fubftituted ⁱ. And thefe may be reckoned another fpecies of incorporeal hereditaments; though not chargeable on, or iffuing 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 thefe arife from temporal, as the former from fpiritual, perfons. An annuity is a thing very diftinct from a rent-charge, with which it is frequently confounded: a rent-charge being a burthen inpofed upon and iffuing out of lands, whereas an annuity is a yearly fum chargeable only upon the perfon of the grantor ^j. Therefore, if a man by deed grant to another the fum of 20l. per annum, without expreffing out of what lands it fhall iffue, no land at all fhall be charged with it; but it is a mere perfonal annuity: which is of fo little account in the law, that, if granted to an eleemofynary corporation, it is not within the ftatutes of mort main ^k; and yet a man may have a real eftate in it, though his fecurity is merely perfonal.

.{FS}
^f F. N. B. 88. Salk, 637.
^g a Sid. 8.
^h Finch. L. 162.
ⁱ See Book I. ch. 8.
^j Co. Litt. 144.
^k Ibid. 2.
.{FE}

X. Rents
.P 41
The Rights of Things.
Book II.
Ch. 3.

X. Rents are the laft fpecies of incorporeal hereditaments. The word, rent, or render, reditus, fighifies a compenfation, or return; it being in the nature of an acknowlegement given for the poffeffin of fome corporeal inheritance ^l. It is defined to be a certain profit iffuing yearly out of lands and tenements corporeal. It muft be a profit; yet there is no occafion for it to be, as it ufually is, a fum of money: for fpurs, capons, horfes, corn, and other mantes may be rendered, and frequently are rendered, by way of rent ^m. It may alfo confift in fervices or manual operations; as, to plough fo many acres of ground, to attend the king or the lord to the wars, and the like; which fervice in the eye of the law are profits. This profit muft alfo be certain; or that which may be reduced to a certainty by either party. It muft alfo iffue yearly; though there is no occafion for it to ifue every fucceffive year; but it may be referved every fecond, third, or fourth year ⁿ: yet, as it is to be produced out of the profits of lands and tenements, as a recompofe for being permitted to hold and enjoy them, it ought to be referved yearly, becaufe thofe profits do annually arife and are annually renewed. It muft iffue out of the thing granted, and not be part of the land or thing itfelf; wherein it differs from an exception in the grant, which is always of part of the thing granted ^o. It muft, laftly, iffue out of lands and tenements corporeal; that is, form fome inheritance whereunto the owner or grantee of the rent may have recourfe to diftrein. Therefore a rent cannot be referved out of an advowfon, a common, an office, a franchife, or the like ^p. But a grant of fuch annuity or fum may operate as a perfonal contract, and oblige the grantor to pay the money referved, or fubject him to an action of debt ^q; though it doth not affect the inheritance, and is no legal rent in contemplation of law.

There are at common law ^r three manner of rents; rent-fervice, rent-charge, and rent-feck. Rent-fervice is fo called be-

.{FS}
^{l C}o. Litt. 144.
^m Ibid. 142.
ⁿ Ibid. 47.
^o Plowd. 13. 8 Rep. 71.
^p Co. Litt. 144.
^q Ibid. 47.
^r Litt. §. 213.
.{FE}

Vol. II.

F

caufe

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The Rights of Things.
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Ch. 3.

caufe it hath fome corporal fervice incident to it, as at the leaft fealty, or the feodal oath of fidelity ^s. For, if a tenant holds his land by fealty, and ten fhillings rent; or by the fervice of ploughing the lord's land, and five fhillings rent; thefe pecuniary rents, being connected with perfonal fervices, are therefore called rent-fervice. And for thefe, in cafe they be behind, or arrere, at the day appointed, the lord may diftrein of common right, without referving any fpecial power of diftrefs; provided the hath in himfelf the reverfion, or future eftate of the lands and tenements, after the leafe or particular eftate of the leffee or grantee is expired ^t. A rent-charge, is where the owner of the rent hath no future intereft, or reverfion expectant in the land; as where a man by deed maketh over to others his whole eftate in fee fimple, with a certain rent payable there out, and adds to the deed a covenant or claufe of diftrefs, that if the rent be arrere, or behind, it fhall be lawful to diftrein for the fame. In this cafe the land is liable to the diftrefs, not of common right, but by virtue of the claufe in the deed: and therefore it is called a rent-charge, becaufe in this manner the land is charged with a diftrefs for the payment of it ^u. Rent-feck, reditus ficcus, or barren rent, is in effect nothing more than a rent referved by deed, but without any claufe of diftrefs.

There are alfo other fpecies of rents, which are reducible to thefe three. Rents of affife are the certain eftablifhed rents of the freeholders and antient copyholders of a manor ^w, which cannot be departed from or varied. Thofe of the freeholders are frequently called chief rents, reditus capitals; and both forts are indifferently denominated quit rents, quieti reditus; becaufe thereby the tenant goes quit and free of all other fervices. When thefe payments were referved in filver or white money, they were antiently called white-rents, or blanch-farms, reditus albi ^x; in contradiftinction to rents referved in work, grain, &c. which were

.{FS}
s Co. Litt. 142.
t Litt. §. 215.
u Co. Litt. 143.
w 2 Inft. 19.
x In Scotland this kind of fmall payment is called blench-holding, or reditus albas firmae.
.{FE}

called
.P 43
The Rights of Things.
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Ch. 3.

called reditus nigri, or black-maile ^y. Reck-rent I only a rent of the full value of the tenement, or near it. A feefarm-rent is a rent-charge iffuing out o an eftate in fee; of at leaft one fourth of the value of the lands, at the time of it's refervation ^z: for a grant of lands, referving fo confiderable a rent, is indeed only letting lands to farm in fee fimple inftead of the ufual methods for life or years.

These are the general divifions of rent; but the difference between them (in refpect to the remedy for recovering them) is now totally abolifhed; and all perfons may have the like remedy by diftrefs for rents-feck, rents of affife, and chief-rents, as in café of rents referved upon leafe ^a.

Rent is regularly due and payable upon the land from whence it iffues, if no particular place is mentioned in the refervation ^b: but, in cafe of the king, the payment muft be either to his officers at the exchequer, or to his receiver in the country ^c. And, ftrictly, the rent is demandable and payable before the time of funfet of the day whereon it is referved ^d; though fome have thought it not abfolutely due till midnight ^e.

With regard to the original of rents, fomething will be faid in the next chapter: and, as to diftreffes and other remedies for their recovery, the doctrine relating thereto, and the feveral proceedings thereon, thefe belong properly to the third part of our commentaries, which will treat of civil injuries, and the means whereby the are redreffed.

.{FS}
^y 2 Inft. 19.
^z Co. Litt. 143.
^a Stat. 4 Geo. II. c. 28.
^b Co. Litt. 201.
^c 4 Rep. 73.
^d Adnerf. 253.
^e 1 Saund. 287. 1 Chan. Prec. 555.
.{FE}

F 2