the inhabitants of such a hamlet, or all the owners and occupiers of such a farm, have immemorially used to cross such a ground for such a particular purpose: for this immemorial usage supposes an original grant, whereby a right of way thus appurtenant to land or houses may clearly be created. A right of way may also arise by act and operation of law: for, if a man grants me a piece of ground in the middle of his field, he at the same time tacitly and impliedly gives me a way to come at it; and I may cross his land for that purpose without trespass. For when the law doth give any thing to one, it giveth impliedly whatsoever is necessary for enjoying the same. (15) By the law of the twelve tables at Rome, where a man had the right of way over another's land, and the road was out of repair, he who had the right of way might go over any part of the land he pleased: which was the established rule in public as well as private ways. And the law of England, in both cases, seems to correspond with the Roman". (16)

V. OFFICES, which are a right to exercise a public or private employment, and to take the fees and emoluments thereunto belonging, are also incorporeal hereditaments;

• Finch. law. 63.

P Co. Litt. 56.

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

(15) Though this position is undoubtedly true, it is no reason in support of the doctrine laid down in the sentence next before it ; for in the instance put, it is not the law, but an individual, that has given me the piece of ground, to the enjoyment of which the way is necessary. The sentence should be, when any one doth give any thing to another, he gives impliedly, &c. This is true, and is the foundation of what is called a way of necessity, which is gained not only in the instance put in the text, but in the converse of it, where a man grants his field, and reserves a piece of ground in the middle of it for himself. See 1 Wms. Saund. 323. n. 6. Pomfret v. Ricroft. (16) In the case of Taylor v. Whitehead, Dougl. 745., this position, so far as regards private ways not of necessity, was over-turned, and upon good grounds,― he, that has the use of a way, is in justice presumptively bound to keep it in repair, and permission given to pass in a specific line is not a permission given to pass in any other. "If," said Mr. J. Buller," this had been a way of necessity, the question would have required consideration; and there it should seem that the same principle, which gave the first way, would, when that was impassable, be held to give also any other." "Highways," said Lord Mansfield, are governed by a different principle; they are for the public service, and if the usual track is impassable, it is for the general good that people should be entitled to pass in another line."

whether public, as those of magistrates; or private, as of bailiffs, receivers, and the like. For a man may have an estate in them, either to him and his heirs, or for life, or for a term of years, or during pleasure only save only that offices of public trust cannot be granted for a term of years, especially if they concern the administration of justice, for [37] then they might perhaps vest in executors and administrators'. (17) Neither can any judicial office be granted in reversion: because though the grantee may be able to perform it at the time of the grant, yet before the office falls he may become unable and insufficient: but ministerial offices may be so granted; for those may be executed by deputy. Also, by statute 5 & 6 Edw. VI. c. 16. no public office (a few only excepted) shall be sold, under pain of disability to dispose of or hold it. (18) For the law presumes that he who buys an office will, by bribery, extortion, or other unlawful means, make his purchase good, to the manifest detriment of the public.

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

VII. FRANCHISES are a seventh species. Franchise and liberty are used as synonymous terms: and their definition is" a royal privilege, or branch of the king's prerogative, subsisting in the hands of a subject. Being therefore derived from the crown, they must arise from the king's grant; or in

9 Rep. 97. ⚫ 11 Rep. 4.

t See book I. ch. 12.
u Finch. 1. 164.

(17) It would seem to be equally inconvenient that such offices should be granted in fee or fee-tail; but a distinction is attempted to be made in favour of such grants in the case referred to in the margin; and we have still some instances remaining of shrievalties and similar offices being hereditary.

(18) This statute has been extended in its operation by the 49G.3. c.126. to Scotland and Ireland, and made to include all offices in the gift of the crown, or under the appointment of the East India Company, with certain exceptions specified in the statute. The offence of buying or selling, or in any way contributing to the purchase or sale of any office within the act, is thereby made punishable as a misdemesnor.

some cases may be held by prescription, which, as has been frequently said, presupposes a grant. The kinds of them are various, and almost infinite: I will here briefly touch upon some of the principal; premising only, that they may be vested in either natural persons or bodies politic; in one man or in many but the same identical franchise, that has before been granted to one, cannot be bestowed on another, for that would prejudice the former grant".

To be a county palatine is a franchise, vested in a number of persons. It is likewise a franchise, for a number of persons to be incorporated, and subsist as a body politic; with a power to maintain perpetual succession, and do other corporate acts: and each individual member of such corporation is also said to have a franchise or freedom. Other franchises are, to hold a court leet to have a manor or lordship; or, at least, to have a lordship paramount: to have waifs, wrecks, estrays, [ 38 ] treasure-trove, royal fish, forfeitures, and deodands: to have a court of one's own, or liberty of holding pleas, and trying causes to have the cognizance of pleas, which is a still greater liberty, being an exclusive right, so that no other court shall try causes arising within that jurisdiction: to have a bailiwick, or liberty exempt from the sheriff of the county; wherein the grantee only, and his officers, are to execute all process: to have a fair or market; with the right of taking toll, either there or at any other public places, as at bridges, wharfs, or the like; which tolls must have a reasonable cause of commencement, (as in consideration of repairs, or the like,) else the franchise is illegal and void *: or, lastly, to have a forest, chase, park, warren, or fishery, endowed with privileges of royalty; which species of franchise may require a more minute discussion.

As to a forest; this, in the hands of a subject, is properly the same thing with a chase; being subject to the common law, and not to the forest laws. (19) But a chase differs

(19) A forest in the hands of a subject is not necessarily a chase; for the king may grant under the great seal, a forest to a subject with the privileges of forest courts and officers. Manw. Forests, pl. 77. 79.81.

a

from a park, in that it is not inclosed, and also in that a man may have a chase in another man's ground as well as in his own, being indeed the liberty of keeping beasts of chase or royal game therein, protected even from the owner of the land, with a power of hunting them thereon. A park is an enclosed chase, extending only over a man's own grounds. The word park indeed properly signifies an enclosure; but yet it is not every field or common, which a gentleman pleases to surround with a wall or paling, and to stock with a herd of deer, that is thereby constituted a legal park: for the king's grant, or at least immemorial prescription, is necessary to make it so2. Though now the difference between a real park and such enclosed grounds is in many respects not very material: only that it is unlawful at common law for any person to kill any beasts of park or chase (20), except such as possess these [39] franchises of forest, chase, or park. Free warren is a similar franchise, erected for preservation or custody (which the word signifies) of beasts and fowls of warren; which, being ferae naturae, every one had a natural right to kill as he could; but upon the introduction of the forest laws, at the Norman conquest, as will be shewn hereafter, these animals being looked upon as royal game and the sole property of our savage monarchs, this franchise of free-warren was invented to protect them; by giving the grantee a sole and exclusive power of killing such game so far as his warren extended, on condition of his preventing other persons. A man therefore that has the franchise of warren, is in reality no more than a royal game-keeper; but no man, not even a lord of a manor, could by common law justify sporting on another's soil, or even on his own, unless he had the liberty of free-warren. This franchise is almost fallen into disregard, since the new statutes

86.

* Co. Litt. 233. 2 Inst. 199. 11 Rep. all wild beasts of venery or hunting. (Co. Litt. 233.)

a These are properly buck, doe, fox, martin, and roe; but in a common and legal sense extend likewise to all the beasts of the forest: which, besides the other, are reckoned to be hart, hind, hare, boar, and wolf, and in a word,

The beasts are hares, conies, and roes; the fowls are either campestres, as partridges, rails, and quails; or sylvestres, as woodcocks and pheasants; or aquatiles, as mallards and herons. (Co. Litt. 233.)

< Salk. 637.

(20) See post. p. 419.

h

for preserving the game; the name being now chiefly preserved in grounds that are set apart for breeding hares and rabbits. There are many instances of keen sportsmen in antient times who have sold their estates, and reserved the free-warren, or right of killing game, to themselves; by which means it comes to pass that a man and his heirs have sometimes free-warren over another's ground". A free fishery, or exclusive right of fishing in a public river, is also a royal franchise; and is considered as such in all countries where the feodal polity has prevailed; though the making such grants, and by that means appropriating what it seems to be unnatural to restrain, the use of running water, was prohibited for the future by king John's great charter; and the rivers that were fenced in his time were directed to be laid open, as well as the forests to be disafforested. This opening was extended by the second and third charters of Henry III., to those also that were fenced under Richard I.; so that a franchise of free fishery ought now to be at least as old as the reign of Henry II. This differs from a several fishery; because he [ 40 ] that has a several fishery must also be (or at least derive his right from) the owner of the soil', which in a free fishery is not requisite. It differs also from a common of piscary before mentioned, in that the free fishery is an exclusive right, the common of piscary is not so: and therefore in a free fishery, a man has a property in the fish before they are caught in a common of piscary not till afterwards. Some indeed have considered a free fishery not as a royal franchise, but merely as a private grant of a liberty to fish in the several fishery of the grantor'. But to consider such right as originally a flower of the prerogative, till restrained by magna charta, and derived by royal grant (previous to the reign of Richard I.) to such as now claim it by prescription, and to distinguish it (as we have done) from a several and a common of fishery, may remove some difficulties in respect to this matter, with which our books are embarrassed. For it must be acknowledged, that the rights and distinctions of the three species of fishery