Incorporeal Hereditaments - LONANG Institute
Commentaries on Laws of England (1765-1769)
SIR WILLIAM BLACKSTONE
BOOK 2, CHAPTER 3
On Incorporeal Hereditaments
An incorporeal hereditament is a right issuing out of a thing corporate (whether real or
personal) or concerning, or annexed to, or exercisable within, the same.
1 It is not the thing corporate itself, which may consist in lands, houses, jewels, or
the like; but something collateral thereto, as a rent issuing out of those lands or houses, or an office relating
to those jewels. In short, as the logicians speak, corporeal hereditaments are the substance, which may be always
seen, always handled: incorporeal hereditaments are but a sort of accidents, which inhere in and are supported by
that substance; and may belong, or not belong to it, without any visible alteration therein. Their existence is
merely in idea and abstracted contemplation; though their effects and profits may be frequently objects of our
bodily senses. And indeed, if we would fix a clear notion of an incorporeal hereditament, we must be careful not to
confound together the profits produced, and the thing, or hereditament, which produces them. An annuity, for
instance, is an incorporeal hereditament: for though the money, which is the fruit or product of this annuity, is
doubtless of a corporeal nature, yet the annuity itself, which produces that money, is a thing invisible, has only
a mental existence, and cannot be delivered over from hand to hand. So tithes, if we consider the produce of them,
as the tenth sheaf or tenth lamb, seem to be completely corporeal; yet they are indeed in corporeal hereditaments:
for they, being merely a contingent right, collateral to or issuing out of lands, can never be the object of sense:
they are neither capable of being shown to the eye, nor of being delivered into bodily possession.
Incorporeal hereditaments are principally of ten sorts; advowsons, tithes, commons, ways,
offices, dignities, franchises, corodies or pensions, annuities, and rents.
1. Advowson is the right of presentation to a church, or ecclesiastical benefice.
in clientelam recipere, the taking into protection; and therefore is synonymous with
patronatus: and he who has the right of advowson is called the patron of the church. For, when lords of manors
first built churches on their own demesnes, and appointed the tithes of those manors to be paid to the officiating
ministers, which before were given to the clergy in common (from whence, as was formerly mentioned,
2 arose the division of parishes) the lord, who thus built a church, and endowed it
with glebe or land, had of common right a power annexed o nominating such minister as he pleased (provided he were
canonically qualified) to officiate in that church of which he was the founder, endower, maintainer, or, in one
word, the patron.
This instance of an advowson will completely illustrate the nature of an incorporeal
hereditament. It is not itself the bodily possession of the church and its appendages; but it is a right to give
some other man a title to such bodily possession. The advowson is the object of neither the sight, nor the
touch; and yet it perpetually exists in the mind’s eye, and in contemplation of law. It cannot be delivered from
man to man by any visible bodily transfer, nor can corporal possession be had of it. If the patron takes
corporal possession of the church, the churchyard, the glebe or the like, he intrudes on another man’s property;
for to these the parson has an exclusive right. The patronage can therefore be only conveyed by operation of
law, by verbal grant, either oral or written, which is a kind of invisible, mental transfer: and being so
vested, it lies dormant and unnoticed, till occasion calls it forth; when it produces a visible, corporeal
fruit, by entitling some clerk, whom the patron shall please to nominate, to enter and receive bodily possession
of the lands and tenements of the church.
Advowsons are either advowsons appendant, or advowsons in gross. Lords of manors being
originally the only founders, and of course the only patrons, of churches,
4 the right of patronage or presentation, so long as it continues annexed to the
possession of the manor, as some have done from the foundation of the church to this day, is called an advowson
5 and it will pass, 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 advowson has been once separated from the property of
the manor, by legal conveyance, it is called an advowson in gross, or at large, and never can be appendant any
more; but is for the future annexed to the person of its owner, and not to his manor of lands.
Advowsons are also either presentative, collative, or donative.
8 An advowson presentative is where the patron has a right of presentation to the
bishop or ordinary, and moreover to demand of him to institute his clerk, if he find him canonically qualified: and
this is the most usual advowson. An advowson collative is where the bishop and patron are one and the same person:
in which case the bishop cannot present to himself; but he does, by the one act of collation, or conferring the
benefice, the whole that is done in common cases, by both presentation and institution. An advowson donative is
when the king, or any subject by his license, does found a church or chapel, and ordains that it shall be merely in
the gift or disposal of the patron; subject to his visitation only, and not to that of the ordinary; and vested
absolutely in the clerk by the patron’s deed of donation, without presentation, institution, or
9 This is said to have been anciently the only way of conferring ecclesiastical
benefices in England; the method of institution by the bishop not being established more early than the time of
arch-bishop Becket in the reign of Henry II.
10 And therefore though pope Alexander III,
11 in a letter to Becket, severely inveighs against the
prava consuetudo [erroneous practice], as he calls it, of investiture conferred by the patron
only, this however shows what was then the common usage. Others contend, that the claim of the bishops to
institution is as old as the first planting of Christianity in this island; and in proof of it they allege a letter
from the English nobility, to the pope in the reign of Henry the third, recorded by Matthew Paris,
12 which speaks of presentation to the bishop as a thing immemorial. The truth seems to
be, that, where the benefice was to be conferred on a mere layman, he was first presented to the bishop, in order
to receive ordination, who was at liberty to examine and refuse him: but where the clerk was already in orders, the
living was usually vested in him by the sole donation of the patron; till about the middle of the twelfth century,
when the pope and his bishops endeavored to introduce a kind of feudal dominion over ecclesiastical benefices, and,
in consequence of that, began to claim and exercise the right of institution universally, as a species of spiritual
However this may be, if, as the law now stands, the true patron once waives this privilege of
donation, and presents to the bishop, and his clerk is admitted and instituted, the advowson is now become for
ever presentative, and shall never be donative any more. For these exceptions to general rules, and common
right, are ever looked upon by the law in an unfavorable view, and construed as strictly as possible. If
therefore the patron, in whom such peculiar right resides, 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 ecclesiastical livings.
II. A second species of incorporeal hereditaments is that of tithes; which are defined to be the
tenth part of the increase, yearly arising and renewing from the profits of lands, the stock upon lands, and the
personal industry of the inhabitants: the first species being usually called predial, as of corn, grass, hops,
13 the second mixed, as of wool, milk, pigs, etc,
14 consisting of natural products, but nurtured and preserved in part in gross: the
third personal, as of manual occupations, trades, fisheries, and the like; and of these only the tenth part of the
clear gains and profits is due.
It is not be expected from the nature of these 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 usually due. For this I must refer to such authors as have treated the matter in detail: and shall only
observe, that, in general, tithes are to be paid for every thing that yields an annual increase, as corn, hay,
fruit, cattle, poultry, and the like; but not for any thing that is of the substance of the earth, or is not of
annual increase, as stone, lime, chalk, and the like; nor for creatures that are of a wild nature,
ferae naturae [a wild nature], as deer, hawks, etc, whose increase, so as to profit the
owner, is not annual, but casual.
16 It will rather be our business to consider, 1. The original of the right of tithes.
2. In whom that right at present subsists. 3. Who may be discharged, either totally or in part, from paying
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 ceased, with the Jewish theocracy. Yet an
honorable and competent maintenance for the ministers of the gospel is, undoubtedly,
jure divino [by divine law]; whatever the particular mode of that maintenance may be. For,
besides the positive precepts of the new testament, natural reason will tell us, that an order of men, who are
separated form the world, and excluded from other lucrative professions, for the sake of the rest of mankind, have
a right to be furnished with the necessaries, conveniences, and moderate enjoyments of life, at their expense, for
whose benefit they forego the usual means of providing them. Accordingly all municipal laws have provided a liberal
and decent maintenance for their national priests or clergy: ours in particular have established this of tithes,
probably in imitation of the Jewish law: and perhaps, considering the degenerate state of the world in general, it
may be more beneficial to the English clergy to found their title on the law of the land, than upon any divine
right whatsoever, unacknowledged and unsupported by temporal sanctions.
We cannot precisely ascertain the time when tithes were first introduced into this country.
Possibly they were contemporary with the planting of Christianity among the Saxons, by augustin the monk, about
the end of the sixth century. But the first mention of them, which I have met with in any written English law,
is in a constitutional decree, made in a synod held A. D. 786,
17 wherein the payment of tithes in general is strongly enjoined. This canon, or
decree, which at first bound not the laity, was effectually confirmed by two kingdoms of the heptarchy, in their
parliamentary conventions of estates, respectively consisting of the kings of Mercia and Northumberland, the
bishops, dukes, senators, and people. Which was a few years later than the time that Charlemagne established the
payment of them in France,
18 and made that famous division of them into four parts; one to maintain the edifice
of the church, the second to support the poor, the third the bishop, and the fourth the parochial
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, successive kings of England, about the year 900. This was a kind of treaty between those
monarchs, which may be found at large in the Anglo-Saxon laws;
20 wherein it was necessary, as Guthrun was a pagan, to provide for the subsistence of
the Christian clergy under his dominion; and, accordingly, we find
21 the payment of tithes not only enjoined, but a penalty added upon non-observance:
which law is seconded by those of Athelstan,
22 about the year 930. And this is as much as can certainly be traced out, with regard
to their legal original.
We are next to consider the persons to whom they are due. And upon their first introduction (as
has formerly been observed
23) though every man was obliged to pay tithes in general, yet he might give them to what priests he
24 which were called arbitrary consecrations of tithes: or he might pay them into the
hands of the bishop, who distributed among his diocesan clergy the revenues of the church, which were then in
25 But, when dioceses were divided into parishes, the tithes of each parish were
allotted to its own particular minister; first by common consent, or the appointments of lords of manors, and
afterwards by the written law of the land.
However, arbitrary consecrations of tithes took place again afterwards, and became in general
use till the time of king John.
27 Which was probably owing to the intrigues of the regular clergy, or monks of the
Benedictine and other rules, under arch-bishop Dunstan and his successors; who endeavored to wean the people from
paying their dues to the secular or parochial clergy, (a much more valuable set of men than themselves) and were
then in hopes to have drawn, by sanctimonious pretenses to extraordinary purity of life, all ecclesiastical profits
to the coffers of their own societies. And this will naturally enough account for the number and riches of the
monasteries and religious houses, which were founded in those 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 cost
the patron little or nothing, he might, according to the superstition of the times, have masses for ever sung for
his soul. But, in process of years, the income of the poor laborious parish priests being scandalously reduced by
these arbitrary consecrations of tithes, it was remedied by pope Innocent the third
28 about the year 1200 in a decretal epistle, sent to the arch-bishop of Canterbury,
and dated from the palace of Lateran: which has occasioned Sir Henry Hobart and others to mistake it for a decree
of the council of Lateran held A. D. 1179, which only prohibited what was called the infeudation of tithes, or
their being granted to mere laymen;
29 whereas this letter of pope Innocent to the arch-bishop enjoined the payment of
tithes to the parsons of the respective parishes where every man inhabited, agreeable to what was afterwards
directed by the same pope in other countries.
30 This epistle, says Sir Edward Coke,
31 bound not the lay subjects of this realm; but, being reasonable and just (and, he
might have added, being correspondent to the ancient law) it was allowed of, and so became
lex terrae [law of the land]. This put an effectual stop to all the arbitrary consecrations
of tithes; except some footsteps which still continue in those portions of tithes, which the parson of one parish
has, though rarely, a right to claim in another: for it is now universally held,
32 that tithes are due, of common right, to the parson of the parish, unless there be a
special exemption. This parson of the parish, we have formerly seen,
33 may be either the actual incumbent, or else the appropriator of the benefice:
appropriations being a method of endowing monasteries, which seems to have been devised by the regular clergy, by
way of substitution to arbitrary consecrations of tithes.
3. We observed that tithes are due to the parson of common right, unless 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 discharged from the payment of tithes, either in part or totally, first, by a real
composition; or, secondly, by custom or prescription.
First, a real composition is when an agreement is made between the owner of the lands, and the
parson or vicar, with the consent of the ordinary and the patron, that such lands shall for the future be
discharged from payment of tithes, by reason of some land or other real recompense given to the parson, in lieu
and satisfaction thereof.
35 This was permitted by law, because it was supposed that the clergy would be no
losers by such composition; since the consent of the ordinary, whose duty it is to take care of the church in
general, and of the patron, whose interest it is to protect that particular church, were both made necessary to
render the composition effectual: and hence have arisen all such compositions as exist at this day by force of the
common law. But, experience showing that even this caution was ineffectual, and the possessions of the church
being, by this and other means, every day diminished, the disabling statue 13 Eliz. c. 10. was made; which
prevents, among other spiritual persons, all parsons and vicars from making any conveyances of the estates of their
churches, other than for three lives or twenty one years. So that now, by virtue of this statute, no real
composition made since the 13 Eliz. is good for any longer term than three lives or twenty one years, though made
by consent of the patron and ordinary: which has indeed effectually demolished this kind of traffic; such
compositions being now rarely heard of, unless by authority of parliament.
Secondly, a discharge by custom or prescription, is where time out of mind such persons or such
lands have been, either partially or totally, discharged from the payment of tithes. And this immemorial usage
is binding upon all parties, as it is in its nature an evidence of universal consent and acquiescence; and with
reason supposes a real composition to have been formerly made. This custom or prescription is
de modo decimandi [a manner of tithing], or
de non-decimando [an exemption from tithes].
modus decimandi [manner of tithing], commonly called by the simple name of
modus only, is where there is by custom 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 increase. This is
sometimes a pecuniary compensation, as twopence an acre for the tithe of land: sometimes it is a compensation in
work and labor, as that the parson shall have only the twelfth cock of hay, and not the tenth, in consideration of
the owner’s making it for him: sometimes, in lieu of a large quantity of crude or imperfect tithe, the parson shall
have a less 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 must be observed. 1. It must be certain
36 for payment of different sums will prove it to be no modus, that is, no original
real composition; because that must have been one and the same, from its first original to the present time. 2. The
thing given, in lieu of tithes, must be beneficial to the parson, and not for the emolument of third persons
37 thus a modus, to repair the church in lieu of tithes, is not good, because that is
an advantage to the parish only; but to repair the chancel is a good modus, for that is an advantage to the parson.
3. It must be something different from the thing compounded for:
38 one load of hay, in lieu of all tithe hay, is no good modus: for no parson
bona fide [in good faith], make a composition to receive less than his due in the same
species of tithe; and therefore the law will not suppose it possible for such composition to have existed. 4. One
cannot be discharged from payment of one species of tithe, by paying a modus for another.
39 Thus a modus of 1 d. for every
milch [milk] cow will discharge 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 discharge for the other. 5. The recompense must be in its nature as
durable as the tithes discharged by it; that is, an inheritance certain:
40 and therefore a modus that every inhabitant of a house shall pay 4d. a year, in lieu
of the owner’s tithes, is no good modus; for possibly the house may not be inhabited, and then the recompense will
be lost. 6. The modus must not be too large, which in law is called 2 rank modus: as if the real value of the
tithes be 60£ per annum, and a modus in suggested of 40£ this modus will not be good; though on of 40s. might have
41 For, in these cases of prescriptive or customary modus’s, the law supposes an
original real composition to have been regularly made; which being lost by length of time, the immemorial usage is
admitted as evidence to show that it once did exist, and that from thence such usage was derived. Now time of
memory has been long ago ascertained by the law to commence from the reign of Richard the first;
42 and any custom may be destroyed by evidence of its non-existence in any part of the
long period from his days to the present: wherefore, as this real composition is supposed 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 dispute exceeds the value of the tithes in the time of Richard the first, this modus
felo de se [self-destructive] and destroys itself. For, as it would be destroyed by any
direct evidence to prove its non-existence at any time since that era, so also it is destroyed by carrying in
itself this internal evidence of a much later original.
de non decimando is a claim to be entirely discharged of tithes, and to pay no compensation
in lieu of them. Thus the king by his prerogative is discharged from all tithes.
43 So a vicar shall pay no tithes to the rector, nor the rector to the vicar,
ecclesia decimas non solvit ecclesiae [the church does not tithe to the church].
44 But these privileges are personal to both the king and the clergy; for their tenant
or lessee shall pay tithes of the same land, though in their own occupation it is not tithable. And, generally
speaking, it is an established rule, that in lay hands,
modus de non decimando non valet [an exemption from tithing is of no force].
45 but spiritual persons or corporations, as monasteries, abbots, bishops, and the
like, were always capable of having their lands totally discharged of tithes, by variously ways:
46 as, 1. By real composition: 2. By the pope’s bull of exemption: 3. By unity of
possession; as when the rectory of a parish, and lands in the same parish, both belonged to a religious house,
those lands were discharged of tithes by this unity of possession: 4. By prescription; having never been liable to
tithes, by being always in spiritual hands: 5. By virtue of their order; as the knights templars, cistercians
[certain monks], and others, whose lands were privileged by the pope with a discharge of tithes.
47 Though, upon the dissolution of abbeys by Henry VIII, most of these 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 persons who should come to the possession of the lands of
any abbey then dissolved, should hold them free and discharged of tithes, in as large and ample a manner as the
abbeys themselves formerly held them. And from this original have sprung all the lands, which, being in lay hands,
do at present claim to be tithe-free: for, if a man can show his lands to have been such abbey lands, and also
immemorially discharged of tithes by any of the means before-mentioned, this is now a good
de non decimando. But he must show both these requisites: for abbey lands, without a special ground of
discharge, are not discharged of course; neither will any prescription
de non decimando avail in total discharge of tithes, unless it relates to such abbey
III. Common, or right of common, appears from its very definition to be an incorporeal
hereditament: being a profit which a man has in the land of another; as to feed his beasts, to catch fish, to
dig turf, to cut wood, or the like.
48 And hence common is chiefly of four sorts; common of pasture, of piscary, of
turbary, and of estovers.
1. Common of pasture is a right of feeding one’s beasts on another’s land; for in those waste
grounds, which are usually 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, because of
vicinage, or in gross.
Common appendant is a right, belonging to the owners or occupiers of arable land, to put
commonable beasts upon the lord’s waste, and upon the land of other persons within the same manor. Commonable
beasts are either beasts of the plow, or such as manure the ground. This is a matter of most universal right;
and it was originally permitted,
50 not only for the encouragement of agriculture, but for the necessity of the thing.
For, when lords of manors granted out parcels of land to tenants, for services either done or to be done, these
tenants could not plow or manure the land without beasts; these beasts could not be sustained without pasture; and
pasture could not be had but in the lord’s wastes, and on the unenclosed fallow grounds of themselves and the other
tenants. The law therefore annexed this right of common, as inseparably 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.
51 Common appurtenant is where the owner of land has a right to put in other beasts,
besides such as are generally commonable; as hogs, goats, and the like, which neither plow nor manure the ground.
This, not arising from the necessity of the thing, like common appendant, is therefore not of common right; but can
only be claimed by immemorial usage and prescription,
52 which the law esteems sufficient proof of a special grant or agreement for this
purpose. Common because of vicinage, or neighborhood, is where the inhabitants of two townships, which lie
contiguous to each other, have usually intercommoned with one another; the beasts of the one straying mutually into
the other’s fields, without any molestation from either. This is indeed only a permissive right, intended to excuse
what in strictness is a trespass in both, and to prevent a multiplicity of suits: and therefore either township may
enclose and bar out the other, though they have intercommoned time out of mind. Neither has any person of one town
a right to put his beasts originally into the other’s common; but if they escape, an stray thither of themselves,
the law winds at the trespass.
53 Common in gross, or at large, is such as is neither appendant nor appurtenant to
land, but is annexed to a man’s person; being granted to him and his heirs by deed: or it may be claimed by
prescriptive right, as by parson of a church, or the like corporation sole. This is a separate inheritance,
entirely distinct from any landed property, and may be vested in one who has not a foot of ground in the manor.
All these species, of pasturable common, may be and usually are limited as to number and time;
but there are also commons without stint, and which last all the year. By the statute of Merton however, and
other subsequent statutes,
54 the lord of a manor may enclose so much of the waste as he pleases, for tillage or
woodground, provided he leaves common sufficient for such as are entitled thereto. This enclosure, when
justifiable, is called in law “approving;” an ancient expression signifying the same as “improving.”
55 The lord has the sole interest in the soil; but the interest of the lord and
commoner, in the common, are looked upon in law as mutual. They may both bring actions for damage done, either
against strangers, or each other; the lord for the public injury, and each commoner for his private
2, 3. Common of piscary is a liberty of fishing in another man’s waters; as common of turbary is
a liberty of digging turf upon another’s ground.
57 There is also a common of digging for coals, minerals, stones, and the like. All
these bear a resemblance to common of pasture in many respects; though in one point they go much farther: common of
pasture being only a right of feeding on the herbage and vesture of the soil, which renews annually; but common of
turbary, and the rest, are a right of carrying away the very soil itself.
4. Common of estovers (from
estoffer, to furnish) is a liberty of taking necessary wood, for the use or furniture of a house or farm, from
off another’s estate. The Saxon word, bote, is of the same signification with the French estovers; and therefore
house-bote is a sufficient allowance of wood, to repair, or to burn in, the house; which latter is sometimes called
fire-bote: plow-bote and cart-bote are wood to be employed in making and repairing all instruments of husbandry:
and hay-bote or hedge-bote is wood for repairing of hays, hedges, or fences. These botes or estovers must be
reasonable ones; and such any tenant or lessee may take off the land let or demised to him, without waiting for any
leave, assignment, or appointment of the lessor, unless he be restrained by special covenant to the
These several species of commons do all originally result from the same necessity as common of
viz. for the maintenance and carrying on of husbandry: common of piscary being given for the
sustenance of the tenant’s family; common of turbary and fire-bote for his fuel; and bouse-bote, plow-bote,
cart-bote, and hedge-bote, for repairing his house, his instruments of tillage, and the necessary fences of his
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 common ways, leading from a village into the fields; but of private
ways, in which a particular man may have an interest and a right, though another be owner of the soil. This may
be grounded on a special permission; as when the owner of the land grants to another a liberty of passing over
his grounds, to go to church, to market, or the like: in which case the gift or grant is particular, and
confined to the grantee alone; it dies with the person; and, if the grantee leaves the country, he cannot assign
over his right to any other; nor can he justify taking another person in his company.
59 A way may be also by prescription; as if all the owners and occupiers of such a farm
have immemorially used to cross another’s ground: for this immemorial usage supposes an original grant, whereby a
right of way thus appurtenant to land 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.
60 For when the law does give any thing to one, it gives impliedly whatsoever is
necessary for enjoying the same.
61 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.
V. Offices, which are a right to exercise a public or private employment, and the fees and
emoluments thereunto belonging, are also incorporeal hereditaments: 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 then they
might perhaps vest in executors or administrators.
63 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;
64 for those may be executed by deputy. Also, by statute 5 and 6 Edw. VI. c. 16. no
public office shall be sold, under pain of disability to dispose of or hold it. For the law perfumes 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
65 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,
66 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 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, 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, and 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:
68 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.
69 But a chase differs from a park, in that it is not enclosed, and also in that a man
may have a chase in another man’s ground as well as 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 any 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 so.
70 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
71 except such as possess these 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
72 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 shown 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.
73 This franchise is almost fallen into disregard, since the new statutes 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 ancient times, who have sold their estates, and reserved the
free-warren over another’s ground.
74 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 feudal polity has prevailed:
75 though the making such grants, and by that means appropriating what 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
76 This opening was extended, by the second
77 and third
78 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 that has a several fishery must also be 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.
79 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.
80 But the considering such right as originally a flower of the prerogative, till
restrained by Magna Carta, and derived by royal grant (previous to the reign of Richard I.) to such as now claim it
by prescription, may remove some difficulties in respect to this matter, with which our books are embarrassed.
VIII. Corodies are a right of sustenance, or to receive certain allotments of victual and
provision for one’s maintenance.
81 In lieu of which (especially when due from ecclesiastical persons) a pension or sum
of money is sometimes substituted.
82 And these may be reckoned another species of incorporeal hereditaments; though not
chargeable on, or issuing from, any corporeal inheritance, but only charged on the person of the owner in respect
of such his inheritance. To these may be added,
IX. Annuities, which are much of the same nature; only that these arise from temporal, as the
former from spiritual, persons. An annuity is a thing very distinct from a rent-charge, with which it is
frequently confounded: a rent-charge being a burden imposed upon and issuing out of lands, whereas an annuity is
a yearly sum chargeable only upon the person of the grantor.
83 Therefore, if a man by deed grant to another the sum of 20£ per annum, without
expressing out of what lands it shall issue, no land at all shall be charged with it; but it is a mere personal
annuity: which is of so little account in the law, that, if granted to an eleemosynary corporation, it is not
within the statutes of mortmain;
84 and yet a man may have a real estate in it, though his security is merely
X. Rents are the last species of incorporeal hereditaments. The word, rent, or
reditus, signifies a compensation, or return; it being in the nature of an acknowledgment given for the
possession of some corporeal inheritance.
85 It is defined to be a certain profit issuing yearly out of lands and tenements
corporeal. It must be a profit; yet there is no occasion for it to be, as it usually is, a sum of money: for spurs,
capons, horses, corn, and other matters may be rendered, and frequently are rendered, by way of rent.
86 It may also consist in services or manual operations; as, to plow so many acres of
ground, to attend the king or the lord to the wars, and the like; which service in the eye of the law are profits.
This profit must also be certain; or that which may be reduced to a certainty by either party. It must also issue
yearly; though there is no occasion for it to issue every successive year; but it may be reserved every second,
third, or fourth year:
87 yet, as it is to be produced out of the profits of lands and tenements, as a
recompense for being permitted to hold and enjoy them, it ought to be reserved yearly, because those profits do
annually arise and are annually renewed. It must issue out of the thing granted, and not be part of the land or
thing itself; wherein it differs from an exception in the grant, which is always of part of the thing
88 It must, lastly, issue out of lands and tenements corporeal; that is, form some
inheritance whereunto the owner or grantee of the rent may have recourse to distrain. Therefore a rent cannot be
reserved out of an advowson, a common, an office, a franchise, or the like.
89 But a grant of such annuity or sum may operate as a personal contract, and oblige
the grantor to pay the money reserved, or subject him to an action of debt;
90 though it does not affect the inheritance, and is no legal rent in contemplation of
There are at common law
91 three manner of rents; rent-service, rent-charge, and rent-seck. Rent-service is so
called because it has some corporal service incident to it, as at the least fealty, or the feudal oath of
92 For, if a tenant holds his land by fealty, and ten shillings rent; or by the service
of plowing the lord’s land, and five shillings rent; these pecuniary rents, being connected with personal services,
are therefore called rent-service. And for these, in case they be behind, or arrere, at the day appointed, the lord
may distrain of common right, without reserving any special power of distress; provided the has in himself the
reversion, or future estate of the lands and tenements, after the lease or particular estate of the lessee or
grantee is expired.
93 A rent-charge, is where the owner of the rent has no future interest, or reversion
expectant in the land; as where a man by deed makes over to others his whole estate in fee simple, with a certain
rent payable there out, and adds to the deed a covenant or clause of distress, that if the rent
arrere, or behind, it shall be lawful to distrain for the same. In this case the land is liable to the
distress, not of common right, but by virtue of the clause in the deed: and therefore it is called a rent-charge,
because in this manner the land is charged with a distress for the payment of it.
reditus siccus, or barren rent, is in effect nothing more than a rent reserved by deed, but without any clause
There are also other species of rents, which are reducible to these three. Rents of assize are
the certain established rents of the freeholders and ancient copyholders of a manor,
95 which cannot be departed from or varied. Those of the freeholders are frequently
called chief rents,
reditus capitals; and both sorts are indifferently denominated quit rents,
quieti reditus; because thereby the tenant goes quit and free of all other services. When these payments were
reserved in silver or white money, they were anciently called white-rents, or blanch-farms,
96 in contradistinction to rents reserved in work, grain, etc. which were
reditus nigri, or black-maile.
97 Rack-rent is only a rent of the full value of the tenement, or near it. A
feefarm-rent is a rent-charge issuing out of an estate in fee; of at least one fourth of the value of the lands, at
the time of its reservation:
98 for a grant of lands, reserving so considerable a rent, is indeed only letting lands
to farm in fee simple instead of the usual methods for life or years.
These are the general divisions of rent; but the difference between them (in respect to the
remedy for recovering them) is now totally abolished; and all persons may have the like remedy by distress for
rents-seck, rents of assize, and chief-rents, as in case of rents reserved upon lease.
Rent is regularly due and payable upon the land from whence it issues, if no particular place is
mentioned in the reservation:
100 but, in case of the king, the payment must be either to his officers at the
exchequer, or to his receiver in the country.
101 And, strictly, the rent is demandable and payable before the time of sunset of the
day whereon it is reserved;
102 though some have thought it not absolutely due till midnight.
With regard to the original of rents, something will be said in the next chapter: and, as to
distresses and other remedies for their recovery, the doctrine relating thereto, and the several proceedings
thereon, these belong properly to the third part of our commentaries, which will treat of civil injuries, and
the means whereby the are redressed.
Rights arising from corporate entities (real or personal) or associated with them.
Exercisable within the same entity.
Intangible and ancillary to physical property.
Types of Incorporeal Hereditaments: I. Advowson or Patronage:
Right to nominate a clergyman to a church or ecclesiastical benefice.
Not physical possession of the church.
Appendant or in gross, presentative, collative, or donative.
Tenth part of annual increase, including land, livestock, and industry.
Predial, mixed, and personal tithes.
III. Common Rights:
Privileges to use another person's land for specific purposes.
Types: Common of Pasture, Piscary, Turbary, Estovers.
Right to cross private land for specific purposes.
Based on special permission, prescription, or act and operation of law.
Right to exercise public or private employment with associated fees.
Held by individuals or bodies politic, with varying durations.
Restrictions on certain public trust and judicial offices.
Prevention of sale of public offices.
VI. Dignities, Franchises, Corodies, Annuities, and Rents:
Dignities: Detailed elsewhere.
Franchises: Royal privileges or prerogatives.
Corodies: Right to receive allotments of victual or pensions.
Annuities: Periodic payments charged upon the grantor.
Rents: Compensation for corporeal inheritance, various forms.
Incorporeal hereditaments encompass a range of intangible rights and privileges associated with
land and property in England. Understanding their nature and historical development is crucial in
and Intangible Rights for Island Kingdoms on the Shores or off the Shores of the EU in the 21st
George Mentz, Esq 2024
of the island itself, including surface and subsurface resources (minerals, freshwater).
Territorial Sea: Up
to 12 nautical miles from the shoreline, exclusive control over resources, navigation, and other
Contiguous Zone: Up
to 24 nautical miles from the shoreline, right to enforce customs, immigration, and pollution
Exclusive Economic Zone (EEZ): Up
to 200 nautical miles from the shoreline, exclusive rights to explore, exploit, conserve, and
manage living and non-living resources (fish, oil, gas).
Continental Shelf - The
underwater extension of the continent to the point where the ocean floor significantly rises, rights to
explore and exploit resources.
(PDF) The Continental Shelf Project of the Kingdom of Denmark - status at the beginning of
the territorial sea and EEZ, rights to explore and exploit resources (minerals, sand, seabed
rights within the territorial sea and EEZ.
and extraction rights within the territorial sea and potential freshwater resources on the island.
control over construction, operation, and access within the territorial sea.
Air and Space Rights:
Air Space: Sovereign
control over airspace above the island and territorial sea, granting air traffic control and management
Cellular spectrum: Ownership
and management of radio frequencies for mobile communications within the island's territory.
Oxygen and CO2 rights. Large forests and land emit oxygen for humans
to breathe and reduce global climate hysteria. Thus, the value of forest land should also allow owners to sell the
carbon offsets. A $150M Boost: Allowing Small Forest Owners to Profit from Carbon Credits https://carboncredits.com/a-150m-boost-allowing-small-forest-owners-to-profit-from-carbon-credits/
Common and Intangible Rights:
Common land: Management
and access rights to shared resources like grazing land or forests.
Cultural heritage: Rights
to protect and manage cultural sites, traditions, and knowledge associated with the
Fishing rights: Rights
to manage and allocate access to fish within the territorial sea and EEZ.
Navigation rights: Freedom
of navigation for both the island nation and other countries within international law.
Environmental protection: Right
to set standards and enforce environmental regulations within the island's territory and relevant maritime
Treaties and agreements: Specific
rights may be subject to international treaties or agreements with neighbouring countries like Spain and
Customary law: Traditional
practices and customs regarding land and resource management may play a role.
Environmental responsibility: Sustainable
use and conservation of resources are crucial for island nations.
list is not exhaustive and the specific rights of an island nation will depend on various factors, including
international law, treaties, and domestic legislation. Consult with legal experts for accurate and up-to-date