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Chapter the third.

Of INCORPOREAL HEREDITAMENTS.


AN incorporeal hereditament is a right i s suing out of a thing corporate (whether real or per sonal) or concerning, or annexed to, or exerci sible within, the  same [1]. It is not the thing corporate it self, which may con si st in lands, hou ses, jewels, or the like; but  something collateral thereto, as a rent i s suing out of tho se lands or hou ses, or an office relating to tho se jewels. In  short, as the logicians  speak, corporeal hereditaments are the  sub stance, which may be always  seen, always handled: incorporeal hereditaments are but a  sort of accidents, which inhere in and are  supported by that  sub stance; and may belong, or not belong to it, without any vi sible alteration therein. Their exi stence is merely in idea and ab stracted contemplation; though their effects and profits may be frequently objects of our bodily  sen ses. And indeed, if we would fix a clear notion of an incorporeal hereditament, we mu st be careful not to confound together the profits produced, and the thing, or hereditament, which produces them. An annuity, for in stance, is an incorporeal hereditament: for though the money, which is the fruit or product of this annuity, is doubtle ss of a corporeal nature, yet the annuity it self, which produces that money, is a thing invi sible, has only a mental exi stence, and cannot be delivered over from hand to hand. So tithes,  if we con sider 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 i s suing out of lands, can never be the object of  sen se: they are neither capable of being  shewn to the eye, nor of being delivered into bodily po s se s sion.

Incorporeal hereditaments are principally of ten  sorts; advow sons, tithes, commons, ways, offices, dignities, franchi ses, corodies or pen sions, annuities, and rents.

I.  Advowson is the right of pre sentation to a church, or eccle sia stical benefice. Advow son,  advocatio,  signifies  in clientelam recipere, the taking into protection; and therefore is  synonymous with patronage,  patronatus: and he who has the right of advow son is called the patron of the church. For, when lords of manors fir st built churches on their own deme snes, and appointed the tithes of tho se manors to be paid to the officiating mini sters, which before were given to the clergy in common (from whence, as was formerly mentioned [2], aro se the divi sion of pari shes) the lord, who thus built a church, and endowed it with glebe or land, had of common right a power annexed of nominating  such mini ster as he plea sed (provided he were canonically qualified) to officiate in that church of which he was the founder, endower, maintainer, or, in one word, the patron [3].

This in stance of an advow son will completely illu strate the nature of an incorporeal hereditament. It is not it self the bodily po s se s sion of the church and it's appendages; but it is a right to give  some other man a title to  such bodily po s se s sion. The advow son is the object of neither the fight, nor the touch; and yet it perpetually exi sts in the mind's eye, and in contemplation of law. It cannot be delivered from man to man by any vi sible bo dily transfer, nor can corporal po s se s sion be had of it. If the patron takes corporal po s se s sion of the church, the church-yard, the glebe or the like, he intrudes on another man's property; for to the se the par son has an exclu sive right. The patronage can therefore be only conveyed by operation of law, by verbal grant, either oral or written, which is a kind of invi sible, mental transfer: and being  so ve sted, it lies dormant and unnoticed, till occa sion calls it forth; when it produces a vi sible, corporeal fruit, by intitling  some clerk, whom, the patron  shall plea se to nominate, to enter and receive bodily po s se s sion of the lands and tenements of the church.

Advowsons are either advow sons  appendant, or advow sons  in gro ss. Lords of manors being originally the only founders, and of cour se the only patrons, of churches [4], the right of patronage or pre sentation,  so long as it continues annexed to the po s se s sion of the manor, as  some have done from the foundation of the church to this day, is called an advow son appendant [5]: and it will pa ss, or be conveyed, together with the manor, as incident and appendant thereto, by a grant of the manor only, without adding any other words [6]. But where the property of the advow son has been once  separated from the property of the manor, by legal conveyance, it is called an advow son in gro ss, or at large, and never can be appendant any more; but is for the future annexed to the per son of it's owner, and not to his manor or lands [7].

Advowsons are al so either  pre sentative,  collative, or  donative [8]. An advow son pre sentative is where the patron hath a right of pre sentation to the bi shop or ordinary, and moreover to demand of him to in stitute his clerk, if he find him canonically qualified: and this is the mo st u sual advow son. An advow son collative is where the bi shop and patron are one and the  same per son: in which ca se the bi shop cannot pre sent to him self; but  he does, by the one act of collation, or conferring the benefice, the whole that is done in common ca ses, by both pre sentation and in stitution. An advow son 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 di spo sal of the patron;  subject to his vi sitation only, and not to that of the ordinary; and ve sted ab solutely in the clerk by the patron's deed of donation, without pre sentation, in stitution, or induction [9]. This is  said to have been antiently the only way of conferring eccle sia stical benefices in England; the method of in stitution by the bi shop not being e stabli shed more early than the time of arch-bi shop Becket in the reign of Henry II [10]. And therefore though pope Alexander III [11], in a letter to Becket,  severely inveighs again st the  prava con suetudo, as he calls it, of inve stiture conferred by the patron only, this however  shews what was then the common u sage. Others contend, that the claim of the bi shops to in stitution is as old as the fir st planting of chri stianity in this i sland; and in proof of it they allege a letter from the Engli sh nobility, to the pope in the reign of Henry the third, recorded by Matthew Paris [12], which  speaks of pre sentation to the bi shop as a thing immemorial. The truth  seems to be, that, where the benefice was to be conferred on a mere layman, he was fir st pre sented to the bi shop, in order to receive ordination, who was at liberty to examine and refu se him; but where the clerk was already in orders, the living was u sually ve sted in him by the  sole donation of the patron; till about the middle of the twelfth century, when the pope and his bi shops endeavoured to introduce a kind of feodal dominion over eccle sia stical benefices, and, in con sequence of that, began to claim and exerci se the right of in stitution univer sally, as a  species of  spiritual inve stiture.

However this may be, if, as the law now  stands, the true patron  once waives this privilege of donation, and pre sents to the bi shop, and his clerk is admitted and in stituted, the advow son is now become for ever pre sentative, and  shall never be donative any more [13]. For the se exceptions to general rules, and common right, are ever looked upon by the law in an unfavourable view, and con strued as  strictly as po s sible. If therefore the patron, in whom  such peculiar right re sides, 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 eccle sia stical livings.

II.  A second  species of incorporeal hereditaments is that of tithes; which are defined to be the tenth part of the increa se, yearly ari sing and renewing from the profits of lands, the  stock, upon lands, and the per sonal indu stry of the inhabitants: the fir st  species being u sually called  predial, as of corn, gra ss, hops, and wood [14]; the  second  mixed, as of wool, milk, pigs, & c [15], con si sting of natural products, but nurtured and pre served in part by the care of man; and of the se the tenth mu st be paid in gro ss: the third  per sonal, as of manual occupations, trades, fi sheries, and the like; and of the se only the tenth part of the clear gains and profits is due [16].

It is not to be expected from the nature of the se 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 u sually due. For this I mu st refer to  such authors as have treated the matter in detail: and  shall only ob serve, that, in general, tithes are to be paid for every thing that yields an annual increa se, as corn, hay, fruit, cattle, poultry, and the like; but not for any thing that is of the  sub stance of the earth, or is not of annual increa se, as  stone, lime, chalk, and the like: nor for creatures that are of a wild nature, or  ferae naturae, as deer, hawks, & c, who se increa se,  so as to profit the owner, is not annual, but ca sual [17]. It will rather be our bu sine ss to con sider, 1. The original of the right of tithes. 2. In whom  that right at pre sent  sub si sts. 3. Who may be di scharged, 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 cea sed, with the Jewi sh theocracy. Yet an honourable and competent maintenance for the mini sters of the go spel is, undoubtedly,  jure divino; whatever the particular mode of that maintenance may be. For, be sides the po sitive precepts of the new te stament, natural rea son will tell us, that an order of men, who are  separated from the world, and excluded from other lucrative profe s sions, for the  sake of the re st of mankind, have a right to be furni shed with the nece s saries, conveniences, and moderate enjoyments of life, at their expen se, for who se benefit they forego the u sual means of providing them. Accordingly all municipal laws have provided a liberal and decent maintenance for their national prie sts or clergy: ours in particular have e stabli shed this of tithes, probably in imitation of the Jewi sh law: and perhaps, con sidering the degenerate  state of the world in general, it may be more beneficial to the Engli sh clergy to found their title on the law of the land, than upon any divine right what soever, unacknowleged and un supported by temporal  sanctions.

We cannot preci sely a scertain the time when tithes were fir st introduced into this country. Po s sibly they were cotemporary with the planting of chri stianity among the Saxons, by Augu stin the monk, about the end of the  sixth century. But the fir st mention of them, which I have met with in any written Engli sh law, is in a con stitutional decree, made in a  synod held  A. D. 786 [18], wherein the payment of tithes in general is  strongly enjoined. This canon, or decree, which at fir st bound not the laity, was effectually confirmed by two kingdoms of the heptarchy, in their parliamentary conventions of e states, re spective ly con si sting of the kings of Mercia and Northumberland, the bi shops, dukes,  senators, and people. Which was a few years later than the time that Charlemagne e stabli shed the payment of them in France [19], and made that famous divi sion of them into four parts; one to maintain the edifice of the church, the  second to  support the poor, the third the bi shop, and the fourth the parochial clergy [20].

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,  succe s sive kings of England, about the year 900. This was a kind of treaty between tho se monarchs, which may be found at large in the Anglo-Saxon laws [21]; wherein it was nece s sary, as Guthrun was a pagan, to provide for the  sub si stence of the chri stian clergy under his dominion; and, accordingly, we find [22] the payment of tithes not only  enjoined, but a  penalty added upon non-ob servance: which law is  seconded by tho se of Athel stan [23], 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 con sider the per sons to whom they are due. And upon their fir st introduction (as hath formerly been ob served [24]) though every man was obliged to pay tithes in general, yet he might give them to what prie sts he plea sed [25]; which were called  arbitrary con secrations of tithes: or he might pay them into the hands of the bi shop, who di stributed among his dioce san clergy the revenues of the church, which were then in common [26]. But, when dioce ses were divided into pari shes, the tithes of each pari sh were allotted to it's own particular mini ster; fir st by common con sent, or the appointments of lords of manors, and afterwards by the written law of the land [27].

However, arbitrary con secrations of tithes took place again afterwards, and became in general u se till the time of king John [28]. Which was probably owing to the intrigues of the regular clergy, or monks of the Benedictine and other rules, under arch-bi shop Dun stan and his  succe s sors; who endeavoured to wean the people from paying their dues to the  secular or parochial clergy, (a much more valuable  set of men than them selves) and were then in hopes to have drawn, by  sanctimonious pretences to extraordinary purity of life, all eccle sia stical profits to the coffers of their own  societies. And this will naturally enough account for the number and riches of the mona steries and religious hou ses, which were founded in tho se 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 co st the patron little or nothing, he might, according to the  super stition of the times, have ma s ses for ever  sung for his  soul. But, in proce ss of years, the income of the poor laborious pari sh prie sts being  scandalou sly reduced by the se arbitrary con secrations of tithes, it was remedied by pope Innocent the third [29] about the year 1200 in a decretal epi stle,  sent to the arch-bi shop of Canterbury, and dated from the palace of Lateran: which has occa sioned  sir Henry Hobart and others to mi stake 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 [30]; whereas this letter of pope Innocent to the arch-bi shop enjoined the payment of tithes to the par sons of the re spective pari shes where every man inhabited, agreeable to what was afterwards directed by the  same pope in other countries [31]. This epi stle,  says  sir Edward Coke [32], bound not the lay  subjects of this realm; but, being rea sonable and ju st (and, he might have added,  being corre spondent to the antient law) it was allowed of, and  so became  lex terrae. This put an effectual  stop to all the arbitrary con secrations of tithes; except  some foot steps which  still continue in tho se portions of tithes, which the par son of one pari sh hath, though rarely, a right to claim in another: for it is now univer sally held [33], that tithes are due, of common right, to the par son of the pari sh, unle ss there be a  special exemption. This par son of the pari sh, we have formerly  seen [34], may be either the actual incumbent, or el se the appropriator of the benefice: appropriations being a method of endowing mona steries, which  seems to have been devi sed by the regular clergy, by way of  sub stitution to arbitrary con secrations of tithes [35].

3.  We ob served that tithes are due to the par son of common right, unle ss 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 di scharged from the payment of tithes, either in part or totally, fir st, by a real compo sition; or,  secondly, by cu stom or pre scription.

First, a real compo sition is when an agreement is made between the owner of the lands, and the par son or vicar, with the con sent of the ordinary and the patron, that  such lands  shall for the future be di scharged from payment of tithes, by rea son of  some land or other real recompen se given to the par son, in lieu and  satisfaction thereof [36]. This was permitted by law, becau se it was  suppo sed that the clergy would be no lo sers by  such compo sition;  since the con sent of the ordinary, who se duty it is to take care of the church in general, and of the patron, who se intere st it is to protect that particular church, were both made nece s sary to render the compo sition effectual: and hence have ari sen all  such compo sitions as exi st at this day by force of the common law. But, experience  shewing that even this caution was ineffectual, and  the po s se s sions of the church being, by this and other means, every day dimini shed, the di sabling  statute 13 Eliz. c. 10. was made; which prevents, among other  spiritual per sons, all par sons and vicars from making any conveyances of the e states of their churches, other than for three lives or twenty one years. So that now, by virtue of this  statute, no real compo sition made  since the 13 Eliz. is good for any longer term than three lives or twenty one years, though made by con sent of the patron and ordinary: which has indeed effectually demoli shed this kind of traffick;  such compo sitions being now rarely heard of, unle ss by authority of parliament.

Secondly, a di scharge by cu stom or pre scription, is where time out of mind  such per sons or  such lands have been, either partially or totally, di scharged from the payment of tithes. And this immemorial u sage is binding upon all parties, as it is in it's nature an evidence of univer sal con sent and acquie scence; and with rea son  suppo ses a real compo sition to have been formerly made. This cu stom or pre scription 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 cu stom 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 increa se. This is  sometimes a pecuniary compen sation, as twopence an acre for the tithe of land:  sometimes it is a compen sation in work and labour, as that the par son  shall have only the twelfth cock of hay, and not the tenth, in con sideration of the owner's making it for him:  sometimes, in lieu of a large quantity of crude or imperfect tithe, the par son  shall have a le ss 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 mu st be ob served. 1. It mu st be  certain and  invariable [37], for payment of different  sums will prove it to be no  modus, that is, no original real compo sition; becau se that mu st have been one and the  same, from it's fir st original to the pre sent time. 2. The thing given, in lieu of tithes, mu st be beneficial to the  par son, and not for the emolument of  third per sons only [38]: thus a  modus, to repair the  church in lieu of tithes, is not good, becau se that is an advantage to the pari sh only; but to repair the  chancel is a good  modus, for that is an advantage to the par son. 3. It mu st be  something  different from the thing compounded for [39]: one load of hay, in lieu of  all tithe hay, is no good  modus: for no par son would,  bona fide, make a compo sition to receive le ss than his due in the  same  species of tithe; and therefore the law will not  suppo se it po s sible for  such compo sition to have exi sted. 4. One cannot be di scharged from payment of one  species of tithe, by paying a  modus for another [40]. Thus a  modus of 1 d. for every  milch cow will di scharge 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 di scharge for the other. 5. The recompen se mu st be in it's nature as durable as the tithes di scharged by it; that is, an inheritance certain [41]: and therefore a  modus that every  inhabitant of a hou se  shall pay 4 d. a year, in lieu of the owner's tithes, is no good  modus; for po s slibly the hou se may not be inhabited, and then the recompen se will be lo st. 6. The  modus mu st 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  sugge sted of 40𝑙. this  modus will not be good; though one of 40 s. might have been valid [42]. For, in the se ca ses of pre scriptive or cu stomary  modus's, the law  suppo ses an original real compo sition to have been regularly made; which being lo st by length of time, the immemorial u sage is admitted  as evidence to  shew that it once did exi st, and that from thence  such u sage was derived. Now time of memory hath been long ago a scertained by the law to commence from the reign of Richard the fir st [43] and any cu stom may be de stroyed by evidence of it's non-exi stence in any part of the long period from his days to the pre sent: wherefore, as this real compo sition is  suppo sed 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 di spute exceeds the value of the tithes in the time of Richard the fir st, this  modus is  felo de  se and de stroys it self. For, as it would be de stroyed by any direct evidence to prove it's non-exi stence at any time  since that aera,  so al so it is de stroyed by carrying in it self this internal evidence of a much later original.

A prescription  de non decimando is a claim to be entirely di scharged of tithes, and to pay no compen sation in lieu of them. Thus the king by his prerogative is di scharged from all tithes [44]. So a vicar  shall pay no tithes to the rector, nor the rector to the vicar, for  eccle sia decimas non  solvit eccle siae [45]. But the se privileges are  per sonal to both the king and the clergy; for their tenant or le s see  shall pay tithes of the  same land, though in their own occupation it is not tithable. And, generally  speaking, it is an e stabli shed rule, that in  lay hands,  modus de non decimando non valet [46]. But  spiritual per sons or corporations, as mona steries, abbots, bi shops, and the like, were always capable of having their lands totally di scharged of tithes, by various ways [47]: as, 1. By real compo sition: 2. By the pope's bull of exemption: 3. By unity of po s se s sion; as when the rectory of a pari sh, and lands in the  same pari sh, both belonged to a religious hou se, tho se lands  were di scharged of tithes by this unity of po s se s sion: 4. By pre scription; having never been hable to tithes, by being always in  spiritual hands: 5. By virtue of their order; as the knights templars, ci stercians, and others, who se lands were privileged by the pope with a di scharge of tithes [48]. Though, upon the di s solution of abbeys by Henry VIII, mo st of the se 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 per sons who  should come to the po s se s sion of the lands of any abbey then di s solved,  should hold them free and di scharged of tithes, in as large and ample a manner as the abbeys them selves formerly held them. And from this original have  sprung all the lands, which, being in lay hands, do at pre sent claim to be tithe-free: for, if a man can  shew his lands to have been  such abbey lands, and al so immemorially di scharged of tithes by any of the means before-mentioned, this is now a good pre scription  de non decimando. But he mu st  shew both the se requi sites: for abbey lands, without a  special ground of di scharge, are not di scharged of cour se; neither will any pre scription  de non decimando avail in total di scharge of tithes, unle ss 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 bea sts, to catch fi sh, to dig turf, to cut wood, or the like [49]. And hence common is chiefly of four  sorts; common of pa sture, of pi scary, of turbary, and of e stovers.

1.  Common of pa sture is a right of feeding one's bea sts on another's land; for in tho se wa ste grounds, which are u sually 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, becau se of vicinage, or in gro ss [50].

Common  appendant is a right, belonging to the owners or occupiers of arable land, to put commonable bea sts upon the lord's wa ste, and upon the lands of other per sons within the  same manor. Commonable bea sts are either hearts of the plough, or  such as manure the ground. This is a matter of mo st univer sal right; and it was originally permitted [51], not only for the encouragement of agriculture, but for the nece s sity of the thing. For, when lords of manors granted out parcels of lands to tenants, for  services either done or to be done, the se tenants could not plough or manure the land without bea sts; the se bea sts could not be  su stained without pa sture; and pa sture could not be had but in the lord's wa stes, and on the uninclo sed fallow grounds of them selves and the other tenants. The law therefore annexed this right of common, as in separably 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 [52]. Common  appurtenant is where the owner of land has a right to put in other bea sts, be sides  such as are generally commonable; as hogs, goats, and the like, which neither plough nor manure the ground. This, not ari sing from the nece s sity of the thing, like common appendant, is therefore not of common right; but can only be claimed by immemorial u sage and pre scription [53], which the law e steems  sufficient proof of a  special grant or agreement for this purpo se. Common  becau se of vicinage, or neighbourhood, is where the inhabitants of two town ships, which lie contiguous to each other, have u sually intercommoned with one another; the bea sts of the one  straying mutually into the other's fields, without any mole station from either. This is indeed only a permi s sive right, intended to excu se what in  strictne ss is a tre spa ss in both, and to prevent a multiplicity of  suits: and therefore either town ship may enclo se and bar out the other, though they have intercommoned time out of mind. Neither hath any per son of one town a right to put his  bea sts originally into the other's common; but if they e scape, and  stray thither of them selves, the law winks at the tre spa ss [54]. Common  in gro ss, or at large, is  such as is neither appendant nor appurtenant to land, but is annexed to a man's per son; being granted to him and his heirs by deed: or it may be claimed by pre scriptive right, as by par son of a church, or the like corporation  sole. This is a  separate inheritance, entirely di stinct from any landed property, and may be ve sted in one who has not a foot of ground in the manor.

All the se  species, of pa sturable common, may be and u sually are limited as to number and time; but there are al so commons without  stint, and which la st all the year. By the  statute of Merton however, and other  sub sequent  statutes [55], the lord of a manor may enclo se  so much of the wa ste as he plea ses, for tillage or woodground, provided he leaves common  sufficient for  such as are entitled thereto. This enclo sure, when ju stifiable, is called in law "approving;" an antient expre s sion  signifying the  same as "improving [56]." The lord hath the  sole intere st in the  soil; but the intere st of the lord and commoner, in the common, are looked upon in law as mutual. They may both bring adlions for damage done, either again st  strangers, or each other; the lord for the public injury, and each commoner for his private damage [57].

2, 3.  Common of pi scary is a liberty of fi shing in another man's waters; as common of turbary is a liberty of digging turf upon another's ground [58]. There is al so a common of digging for coals, minerals,  stones, and the like. All the se bear a re semblance to common of pa sture in many re spects; though in one point they go much farther: common of pa sture being only a right of feeding on the herbage and ve sture of the  soil, which renews annually; but common of turbary, and the re st, are a right of carrying away the very  soil it self.

4.  Common of e stovers (from  e stoffer, to furni sh) is a liberty of taking nece s sary wood, for the u se or furniture of a hou se or farm, from off another's e state. The Saxon word,  bote, is of the  same  signification with the French  e stovers; and therefore hou se-bote is a  sufficient allowance of wood, to repair, or to burn in, the hou se; which latter is  sometimes called fire-bote: plough-bote and cart-bote are wood to be employed in making and repairing all in struments of hu sbandry: and hay-bote or hedge-bote is wood for repairing of hays, hedges, or fences. The se botes or e stovers mu st be rea sonable ones; and  such any tenant or le s see may take off the land let or demi sed to him, without waiting for any leave, a s signment, or appointment of the le s sor, unle ss he be re strained by  special covenant to the contrary [59].

These  several  species of commons do all originally re sult from the  same nece s sity as common of pa sture;  viz. for the maintenance and carrying on of hu sbandry: common of pi scary being given for the  su stenance of the tenant's family; common of turbary and fire-bote for his fuel; and hou se-bote, plough-bote, cart-bote, and hedge-bote, for repairing his hou se, his in struments of tillage, and the nece s sary 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 intere st and a right, though another be owner of the  soil. This may be grounded on a  special permi s sion; as when the owner of the land grants to another a liberty of pa s sing over his grounds, to go to church, to market, or the like: in which ca se the gift or grant is particular, and confined to the grantee alone; it dies with the per son; and, if the grantee leaves the country, he cannot a s sign over his right to any other; nor can he ju stify  taking another per son in his company [60]. A way may be al so by pre scription; as if all the owners and occupiers of  such a farm have immemorially u sed to cro ss another's ground: for this immemorial u sage  suppo ses an original grant, whereby a right of way thus appurtenant to land may clearly be created. A right of way may al so ari se 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 cro ss his land for that purpo se without tre spa ss [61]. For when the law doth give any thing to one, it giveth impliedly what soever is nece s sary for enjoying the  same [62]. 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 plea sed: which was the e stabli shed rule in public as well as private ways. And the law of England, in both ca ses,  seems to corre spond with the Roman [63].

V.  Offices, which are a right to exerci se a public or private employment, and to the fees and emoluments thereunto belonging, are al so incorporeal hereditaments: whether public, as tho se of magi strates; or private, as of bailiffs, receivers, and the like. For a man may have an e state in them, either to him and his heirs, or for life, or for a term of years, or during plea sure only: fave only that offices of public tru st cannot be granted for a term of years, e specially if they concern the admini stration of ju stice, for then they might perhaps ve st in executors or admini strators [64]. Neither can any  judicial office be granted in rever sion; becau se, 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 in sufficient: but  mini sterial offices may be  so granted [65]; for tho se may be executed by deputy. Al so, by  statute 5 and 6 Edw. VI. c. 16. no public office  shall be  sold, under pain of di sability to di spo se of or hold it. For the law pre sumes that he, who buys an  office, will by bribery, extortion, or other unlawful means, make his purcha se good, to the manife st detriment of the public.

VI.  Dignities bear a near relation to offices. Of the nature of the se we treated at large in the former book [66]: it will therefore be here  sufficient to mention them as a  species of incorporeal hereditaments, wherein a man may have a property or e state.

VII.  Franchises are a  seventh  species. Franchi se and liberty are u sed as  synonymous terms: and their definition is [67], a royal privilege, or branch of the king's prerogative,  sub si sting in the hands of a  subject. Being therefore derived from the crown, they mu st ari se from the king's grant; or, in  some ca ses, may be held by pre scription, which, as has been frequently  said, pre suppo ses a grant. The kinds of them are various, and almo st infinite: I will here briefly touch upon  some of the principal; premi sing only, that they may be ve sted in either natural per sons or bodies politic; in one man, or in many: but the  same identical franchi se, that has before been granted to one, cannot be be stowed on another; for that would prejudice the former grant [68].

To be a county palatine is a franchi se, ve sted in a number of per sons. It is likewi se a franchi se for a number of per sons to be incorporated, and  sub si st as a body politic, with a power to maintain perpetual  succe s sion and do other corporate acts: and each individual member of  such corporation is al so  said to have a franchi se or freedom. Other franchi ses are, to hold a court leet: to have a manor or lord ship; or, at lea st, to have a lord ship paramount: to have waifs, wrecks, e strays, trea sure-trove, royal-fi sh, forfeitures, and deodands: to have a court of one's own, or liberty of holding pleas, and trying cau ses: to have the cognizance of pleas; which is a  still greater liberty, being an exclu sive right,  so that no other court  shall try cau ses ari sing within that juri sdiction: to have a bailiwick, or liberty exempt from the  sheriff of the county, wherein the grantee only, and his officers, are to  execute all proce ss: 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 mu st have a rea sonable cau se of commencement, (as in con sideration of repairs, or the like) el se the franchi se is illegal and void [69]: or, la stly, to have a fore st, cha se, park, warren, or fi shery, endowed with privileges of royalty; which  species of franchi se may require a more minute di scu s sion.

As to a  fore st: this, in the hands of a  subject, is properly the  same thing with a cha se; being  subject to the common law, and not to the fore st laws [70]. But a  cha se differs from a park, in that it is not enclo sed, and al so in that a man may have a cha se in another man's ground as well as his own; being indeed the liberty of keeping bea sts of cha se or royal game therein, protected even from the owner of the land, with a power of hunting them thereon. A  park is an enclo sed cha se, extending only over a man's own grounds. The word  park indeed properly  signifies any enclo sure; but yet it is not every field or common, which a gentleman plea ses to  surround with a wall or paling, and to  stock with a herd of deer, that is thereby con stituted a legal park: for the king's grant, or at lea st immemorial pre scription, is nece s sary to make it  so [71]. Though now the difference between a real park, and  such enclo sed grounds, is in many re spects not very material: only that it is unlawful at common law for any per son to kill any bea sts of park or cha se [72], except  such as po s se ss the se franchi ses of fore st, cha se, or park.  Free-warren is a  similar franchi se, erected for pre servation or cu stody (which the word  signifies) of bea sts and fowls of warren [73]; which, being  ferae naturae, every one had a natural right to kill as he could:  but upon the introduction of the fore st laws at the Norman conque st, as will be  shewn hereafter, the se animals being looked upon as royal game and the  sole property of our  savage monarchs, this franchi se of free-warren was invented to protect them; by giving the grantee a  sole and exclu sive power of killing  such game,  so far as his warren extended, on condition of his preventing other per sons. A man therefore that has the franchi se 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 ju stify  sporting on another's  soil, or even on his own, unle ss he had the liberty of free-warren [74]. This franchi se is almo st fallen into di sregard,  since the new  statutes for pre serving the game; the name being now chiefly pre served in grounds that are  set apart for breeding hares and rabbets. There are many in stances of keen  sport smen in antient times, who have  sold their e states, and re served the free-warren, or right of killing game, to them selves; by which means it comes to pa ss that a man and his heirs have  sometimes free-warren over another's ground [75]. A  free fi shery, or exclu sive right of fi shing in a public river, is al so a royal franchi se; and is con sidered as  such in all countries where the feodal polity has prevailed [76]: though the making  such grants, and by that means appropriating what  seems to be unnatural to re strain, the u se 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 fore sts to be di saffore sted [77]. This opening was extended, by the  second [78] and third [79] charters of Henry III, to tho se al so that were fenced under Richard I;  so that a franchi se of free fi shery ought now to be at lea st as old as the reign of Henry II. This differs from a  several fi shery; becau se he that has a  several fi shery mu st al so be the owner of the  soil, which in a free fi shery is not requi site. It differs al so from a  common of pi scary before-mentioned, in that  the free fi shery is an exclu sive right, the common of pi scary is not  so: and therefore, in a free fi shery, a man has a property in the fi sh before they are caught; in a common of pi scary, not till afterwards [80]. Some indeed have con sidered a  free fi shery not as a royal franchi se, but merely as a private grant of a liberty to fi sh in the  several fi shery of the grantor [81]. But the con sidering  such right as originally a flower of the prerogative, till re strained by  magna carta, and derived by royal grant (previous to the reign of Richard I.) to  such as now claim it by pre scription, may remove  some difficulties in re spect to this matter, with which our books are embara s sed.

VIII.  Corodies are a right of  su stenance, or to receive certain allotments of victual and provi sion for one's maintenance [82]. In lieu of which (e specially when due from eccle sia stical per sons) a pen sion or  sum of money is  sometimes  sub stituted [83]. And the se may be reckoned another  species of incorporeal hereditaments; though not chargeable on, or i s suing from, any corporeal inheritance, but only charged on the per son of the owner in re spect of  such his inheritance. To the se may be added,

IX.  Annuities, which are much of the  same nature; only that the se ari se from temporal, as the former from  spiritual, per sons. An annuity is a thing very di stinct from a rent-charge, with which it is frequently confounded: a rent-charge being a burthen impo sed upon and i s suing out of  lands, whereas an annuity is a yearly  sum chargeable only upon the  per son of the grantor [84]. Therefore, if a man by deed grant to another the  sum of 20𝑙.  per annum, without expre s sing out of what lands it  shall i s sue, no land at all  shall be charged with it; but it is a mere per sonal annuity: which is of  so little account in the law, that, if granted to an eleemo synary corporation, it is not within the  statutes of mortmain [85]; and yet a man may have a real e state in it, though his  security is merely per sonal.

X.  Rents are the la st  species of incorporeal hereditaments. The word, rent, or render,  reditus,  signifies a compen sation, or return; it being in the nature of an acknowlegement given for the po s se s sion of  some corporeal inheritance [86]. It is defined to be a certain profit i s suing yearly out of lands and tenements corporeal. It mu st be a  profit; yet there is no occa sion for it to be, as it u sually is, a  sum of money: for  spurs, capons, hor ses, corn, and other matters may be rendered, and frequently are rendered, by way of rent [87]. It may al so con si st 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 mu st al so be  certain; or that which may be reduced to a certainty by either party. It mu st al so i s sue  yearly; though there is no occa sion for it to i s sue every  succe s sive year; but it may be re served every  second, third, or fourth year [88]: yet, as it is to be produced out of the profits of lands and tenements, as a recompen se for being permitted to hold and enjoy them, it ought to be re served yearly, becau se tho se profits do annually ari se and are annually renewed. It mu st  i s sue out of the thing granted, and not be part of the land or thing it self; wherein it differs from an exception in the grant, which is always of part of the thing granted [89]. It mu st, la stly, i s sue out of  lands and tenements corporeal; that is, from  some inheritance whereunto the owner or grantee of the rent may have recour se to di strein. Therefore a rent cannot be re served out of an advow son, a common, an office, a franchi se, or the like [90]. But a grant of  such annuity or  sum may operate as a per sonal contract, and oblige the grantor to pay the money re served, or  subject him to an action of debt [91]; though it doth not affect the inheritance, and is no legal rent in contemplation of law.

Trere are at common law [92] three manner of rents; rent- service, rent-charge, and rent- seck.  Rent- service is  so called be cau se it hath  some corporal  service incident to it, as at the lea st fealty, or the feodal oath of fidelity [93]. 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; the se pecuniary rents, being connected with per sonal  services, are therefore called rent- service. And for the se, in ca se they be behind, or arrere, at the day appointed, the lord may di strein of common right, without re serving any  special power of di stre ss; provided he hath in him self the rever sion, or future e state of the lands and tenements, after the lea se or particular e state of the le s see or grantee is expired [94]. A  rent-charge, is where the owner of the rent hath no future intere st, or rever sion expectant in the land; as where a man by deed maketh over to others his  whole e state in fee  simple, with a certain rent payable thereout, and adds to the deed a covenant or clau se of di stre ss, that if the rent be arrere, or behind, it  shall be lawful to di strein for the  same. In this ca se the land is liable to the di stre ss, not of common right, but by virtue of the clau se in the deed: and therefore it is called a rent- charge, becau se in this manner the land is charged with a di stre ss for the payment of it [95].  Rent- seck, reditus  siccus, or barren rent, is in effect nothing more than a rent re served by deed, but without any clau se of di stre ss.

There are al so other  species of rents, which are reducible to the se three. Rents  of a s si se are the certain e stabli shed rents of the freeholders and antient copyholders of a manor [96], which cannot be departed from or varied. Tho se of the freeholders are frequently called  chief rents,  reditus capitales, and both  sorts are indifferently denominated  quit rents,  quieti reditus; becau se thereby the tenant goes quit and free of all other  services. When the se payments were re served in  silver or white money, they were antiently called  white-rents, or  blanch-farms, reditus albi [97]; in contradi stinction to rents re served in work, grain, & c. which were  called  reditus nigri, or  black-maile [98].  Rack-rent is only a rent of the full value of the tenement, or near it. A  feefarm-rent is a rent-charge i s suing out of an e state in fee; of at lea st one fourth of the value of the lands, at the time of it's re servation [99]: for a grant of lands, re serving  so con siderable a rent, is indeed only letting lands to farm in fee  simple in stead of the u sual methods for life or years.

These are the general divi sions of rent; but the difference between them (in re spect to the remedy for recovering them) is now totally aboli shed; and all per sons may have the like remedy by di stre ss for rents- seck, rents of a s si se, and chief-rents, as in ca se of rents re served upon lea se [100].

Rent is regularly due and payable upon the land from whence it i s sues, if no particular place is mentioned in the re servation [101]: but, in ca se of the king, the payment mu st be either to his officers at the exchequer, or to his receiver in the country [102]. And,  strictly, the rent is demandable and payable before the time of  sun set of the day whereon it is re served [103]; though  some have thought it not ab solutely due till midnight [104].

With regard to the original of rents,  something will be  said in the next chapter: and, as to di stre s ses and other remedies for their recovery, the doctrine relating thereto, and the  several proceedings thereon, the se belong properly to the third part of our commentaries, which will treat of civil injuries, and the means whereby they are redre s sed.


  1.   Co. Litt. 19, 20.
  2.   Vol. I. pag. 109.
  3.   This original of the  jus patronatus, by building and endowing the church, appears al so to have been allowed in the Roman empire.  Nov. 56.  t. 12.  c. 2.  Nov. 118.  c. 23.
  4.   Co. Litt. 119.
  5.   Ibid. 121.
  6.   Ibid. 307.
  7.   Ibid. 120.
  8.   Ibid.
  9.   Co. Litt. 344.
  10.   Seld. tith. c. 12. §. 2.
  11.   Decretal. l. 3.  t. 7.  c. 3.
  12.   A. D. 1239.
  13.   Co. Litt. 344. Cro. Jac. 63.
  14.   1 Roll. Abr. 635. 2 In st. 649.
  15.   Ibid.
  16.   1 Roll. Abr. 656.
  17.   2 In st. 651.
  18.   Selden, c. 8. §. 2.
  19.   A. D. 778.
  20.   Book I. ch. 11. Seld. c. 6. §. 7. Sp. of laws, b. 31. c. 12.
  21.   Wilkins, pag. 51.
  22.   cap. 6.
  23.   cap. 1.
  24.   Book I. Introd. §. 4.
  25.   2 In st. 646. Hob. 296.
  26.   Seld. c. 9. §. 4.
  27.   LL. Edgar, c. 1 & 2.  Canut. c. 11.
  28.   Selden. c. 11.
  29.   Opera Innocent. III. tom. 2.  pag. 452.
  30.   Decretal. l. 3.  t. 30.  c. 19.
  31.   Ibid. c. 26.
  32.   2 In st. 641.
  33.   Regi st. 46. Hob. 296.
  34.   Book I. pag. 372.
  35.   In extraparochial places the king, by his royal prerogative, has a right to all the tithes. See book I. pag. 110.
  36.   2 In st. 490. Regi st. 38. 13 Rep. 40.
  37.   1 Keb. 602.
  38.   1 Roll. Abr. 649.
  39.   1 Lev. 179.
  40.   Cro. Eliz. 446. Salk. 657.
  41.   2 P. W ms. 462.
  42.   11 Mod. 60.
  43.   This rule was adopted, when by the  statute of We stm. 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 pre scription or memory  should  still continue to be reckoned from an aera  so very antiquated. See 2 Roll. Abr. 269. pl. 16.
  44.   Cro. Eliz. 511.
  45.   Ibid. 479.
  46.   Ibid. 511.
  47.   Hob. 309. Cro. Jac. 308.
  48.   2 Rep. 44. Seld. tith. c. 13. §. 2.
  49.   Finch, law. 157
  50.   Co. Litt. 122.
  51.   2 In st. 86.
  52.   Stiernh.  de jure Sueonum.  l. 2.  c. 6.
  53.   Co. Litt. 122.
  54.   Co. Litt. 122.
  55.   20 Hen. III. c. 4. 29 Geo. II. c. 36. and 31 Geo. II. c 41.
  56.   2 In st. 474.
  57.   9 Rep. 113.
  58.   Co. Litt. 122.
  59.   Co. Litt. 41.
  60.   Finch. law. 31.
  61.   Ibid. 63.
  62.   Co. Litt. 56.
  63.   Lord Raym. 725. 1 Brownl. 212. 2 Show. 28. 1 Jon. 297.
  64.   9 Rep. 97.
  65.   11 Rep. 4.
  66.   See book I. ch. 12.
  67.   Finch. L. 164.
  68.   2 Roll. Abr. 191. Keilw. 196.
  69.   2 In st. 220.
  70.   4 In st. 314.
  71.   Co. Litt. 233. 2 In st. 199. 11 Rep. 86.
  72.   The se are properly buck, doe, fox, martin, and roe; but in a common and legal  sen se extend likewi se to all the bea sts of the fore st: which, be sides the other, are reckoned to be hart, hind, hare, boar, and wolf, and in a word, all wild bea sts of venary or hunting. (Co. Litt. 233.)
  73.   The bea sts are hares, conies, and roes: the fowls are either  campe stres, as partridges, rails, and quails; or  sylve stres, as wood-cocks and phea sants; or  aquatiles, as mallards and herons.  (Ibid).
  74.   Salk. 637.
  75.   Bro.  Abr. tit. Warren. 3.
  76.   Seld.  Mar. clau s. I. 24. Dufre sne. V. 503. Crag.  de Jur. feod. II. 8. 15.
  77.   cap. 47.  edit. Oxon.
  78.   cap. 20.
  79.   9 Hen. III. c. 16.
  80.   F. N. B. 88. Salk. 637.
  81.   2 Sid. 8.
  82.   Finch. L. 162.
  83.   See book I. ch. 8.
  84.   Co. Litt. 144.
  85.   Ibid. 2.
  86.   Co. Litt. 144.
  87.   Ibid. 142.
  88.   Ibid. 47.
  89.   Plowd. 13. 8 Rep. 71.
  90.   Co. Litt. 144.
  91.   Ibid. 47.
  92.   Litt. §. 213.
  93.   Co. Litt. 142.
  94.   Litt. §. 215.
  95.   Co. Litt. 143.
  96.   2 In st. 19.
  97.   In Scotland this kind of  small payment is called  blench-holding, or  reditus albae firmae.
  98.   2 In st. 19.
  99.   Co. Litt. 143.
  100.   Stat. 4 Geo. II. c. 28.
  101.   Co. Litt. 201.
  102.   4 Rep. 73.
  103.   Ander s. 253.
  104.   1 Saund. 287. 1 Chan. Prec. 555.

 

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