be synonymous with common of piscary (a); and others again have denied that ownership of the soil is necessarily included in a several fishery (b).-These conflicting opinions are ably digested by Mr. Hargrave in his learned note above referred to, but that very distinguished lawyer thought proper to leave the question open to future discussion. It would seem, however, to be settled that a fishery in a navigable river described in an ancient grant separalem piscariam' is an incorporeal and not a territorial hereditament, but that where the terms of the grant are unknown, the owner of a several fishery, would be presumed to be owner of the soil (c). And the case of The King v. Ellis (d), shows that particular privileges in the grantee, are inconsistent with a mere incorporeal fishery.

It was decided in the case of Scratton v. Brown (e) that a grant by the lord of a manor, (possessing the franchise of a fishery,) of a messuage, &c., and certain sea-grounds, oyster-layings, shores, and fisheries, with full and free liberty to fish, dredge, and lay oysters thereon, did not convey a mere privilege and easement only, leaving in the grantor the general property in the soil, but the soil itself, and that the operation of the words 'sea-grounds' was not qualified and restricted by the superadded words oyster-layings,' liberty to fish,' &c.

The grant in the last-mentioned case described the seagrounds, &c. to be bounded by the high and low water

(a) See 2 Bl. Com. 40. Upton v. Dawkin, 3 Mod. 97. Comb. 11. Peak v. Tucker, cited Carth. 286, marg. But see Salk. 637.

(b) Co. Lit. 122 a. Bract. f. 208 b. And see Mr. Hargrave's note [7] to Co. Lit. 122 b. Where a person exercising the right of fishing in the river Severn, between certain limits within a manor bordering on the river, under a grant from the Crown, also exercised the privilege of landing nets on the beach, and driving stakes, the court

of King's Bench considered that some territorial right passed by the grant, and that the party was therefore rateable under 43 Eliz., but expressed a clear opinion that a mere incorporeal fishery was not within that statute. The King v. Ellis, 1 Mau. & Selw. 652.

(c) The Duke of Somerset v. Fogwell, 5 Barn. & Cress. 875.

(d) Sup. n. (b).

(e) 4 Barn. & Cress. 485.

marks, and the court of B. R. held that those words were to be construed with reference to the rule of common law upon the subject of accretion (a), and that as the high and low water marks shift, the property conveyed also shifts, for that land between high and low water marks can only vest in a subject as the grantee of the crown, and that the crown by a grant of the sea-shore would convey not that which at the time of the grant was between the high and low water marks, but that which from time to time should lie between those two termini.

It has been adjudged that every subject may fish in navigable rivers, the king's prerogative right being confined to whale and sturgeon (b); and that the rule extends even to arms of the sea (c), unless an exclusive right exists by prescription (d).

The reader is reminded that in the case of The Mayor & Commonalty of Orford v. Richardson, Lord Kenyon (the other three judges of the court of B. R. concurring) held, that there may be a prescriptive right in a subject to a several fishery in an arm of the sea (e); and that in the case of Rogers v. Allen (f), Heath, J., held, that a several fishery in a navigable river, may pass as appurtenant to a manor.

(a) This case is therefore confirmatory of the decision of The King v. Lord Yarborough, 3 Barn. & Cress. 91, 4 Dow. & Ry. 790, ante, pt. 1. p. 40, that land gradually and imperceptibly added to the demesnes of a manor by the alluvion of oose, sand, &c., belongs to the lord, and not to the King, and so distinguishable from the case of large spaces of land left by the sudden retirement of the

sea.

(b) Ante, p. 785. n. (a). And see stat. 17 Edw. 2. c. 11, de prerogativá regis.

(c) Warren v. Matthews, 6 Mod. 73. S. C. 1 Salk. 357. Anon. 1 Mod.

105. Ante, p. 798.

(d) Carter v. Murcot, 4 Burr. 2162. 4 T. R. 439, in The Mayor, &c. of Orford v. Richardson. And see Bagott v. Orr, 2 Bos. & Pul. 472. In the case of Chad & Tilsed, 2 Brod. & Bing. 406, (ante, p. 785,) Dallas, C. J., observed that if the usage had been only of forty years' duration, and had been applied to establish an exclusive right over an arm of the sea, that could not destroy the right of the subject.'

(e) 4 T. R. 439. Hargr. Tr. 19. (f) 1 Campb. 312. See this case on a point of evidence, ante, pt. 1. p. 600.

802

THE JURISDICTION OF COURTS BARON. [PART III. When a river, not navigable, runs between two manors, and is the meer and boundary of the manors, each lord has a moiety of the river and fishery (a).

And when no manorial franchise is claimed in an inland river, not navigable, the right of fishery is in the proprietors of the land on either side, as owners of the soil or bed of the river, and generally extends ad filum medium aquæ (b).

The franchises of free chase, free warren, and free fishery may, I apprehend, like other franchises, be lost by non-user or abuser, as well as by surrender to the crown (c); but we have seen that minor prescriptive rights exercisable by the lord of a manor, will continue, notwithstanding the court baron should be lost (d).

(a) Davis's Rep. 155. 1 Mau. & Selw. 661, in The King v.Ellis.

(b) Carter v. Murcot, ubi sup. And see Davis's Rep. 155.

(c) Cro. Jac. 155. 12 Mod. 271. And see as to misuser, ante, p. 792. But the misuser of one of several

franchises, not dependent on each other, is not a forfeiture of the whole, but of the one only which has been mis-used; contrà, if the one is wholly dependent on the others. Br. Franchies, pl. 14.

(d) Ante, pt. 1. p. 7.

803

CHAP. XXI.

OF THE JURISDICTION OF COURTS LEET.

Origin and Nature of the Court Leet.

THE leet, which is a court of record (a), is described as one of the most ancient tribunals noticed by our common law (b), and is accounted the King's Court, for although this franchise is frequently held by the lord of a hundred or manor, under a grant from the crown, or by prescription, which presupposes such grant (c), yet the lord is intitled only to the profits of the court (d), and (in legal phraseology) the day is to the king (e).

The court leet is by some writers said to be derived out of the sheriff's tourn (f); but the observation may, I think, be considered as a mere obiter dictum, as far, at least, as it may tend to impugn the opinion of many of our ancient law authorities, that the jurisdiction and privileges of the leet were purchased of the crown by thanes or barons, and others of large territorial possessions, in order that the people might have justice rendered to them nearer to their own homes; and

(a) Br. tit. Leet & Tourn, pl. 39. F. N. B. 82. 2 Inst. 143. 4 Inst. 263. Kitch. 82. Hetl. 62.

(b) 7 H. 6. 12. 2 Inst. 70. 3 Burr. 1860. And it is said to have been ordained by king Alfred. Mirr. c. 1. § 3. Bullen v. Godfrey, 1 Roll. Rep. 73. Judge Jenkins in his pacis consultum, written during the Commonwealth, states (p. 1.) that the court leet was established long before the Conquest. And see Rits. on Courts Leet 34.

(c) 2 Inst. 72. Finch's Law, 246.

F. N. B. 160-1, and the notes. Co.
Cop. s. 31. Tr. 51.

(d) 41 E. 3. 26. Br. Leet 4. Kitch. 82. The lord of a leet cannot claim the wastes by prescription, which may belong to one who has a manor without a leet. See 9 H. 6. 44. cited, Br. Leet, 2.

(e) 41 E. 3. 26. 44 E. 3. 19. Br. Leete, pl. 4. 5. Kitch. 82. 2 Inst. 140. Co. Lit. 117 b.

(f) 4 Inst. 261. Cromp. 230 b. Shepp. Court Keeper's Guide, 4.

whereby I conceive the power of the sheriff, in his tourn, was superseded, or at least suspended, to the extent of the local confines of each particular grant.

The close resemblance which the leet jurisdiction bears to the Anglo-Saxon institutions, beginning with Ethelbert in 561 (a), would seem fully to justify the opinion formed of its great antiquity, but I do not find that the term leet is mentioned in any historical work illustrative of the Anglo-Saxon jurisprudence.

The generic character of the leet jurisdiction may, perhaps, be best illustrated by a reference to the territorial divisions, and to the several independent communities established by the Anglo-Saxon kings, and by a brief sketch of the different ranks of people, and the mode of administering justice at that period of our history.

It is supposed that the Anglo-Saxon monarchs divided their territories into shires or counties, and townships, in imitation of their continental sub-divisions, called by the Romans pagi et vici, as such divisions are frequently mentioned by historians before the end of the heptarchy (b); and it seems equally probable, that King Alfred, who has the credit of that great and judicial polity, was not in fact the first to introduce the division of the kingdom into counties; but our historians certainly appear to be agreed, that he made a new and more regular division of it, differing from that which subsisted under the heptarchy, and probably introduced the sub-divisions of

(a) I submit that the remedial, if not the alleged legislative character of the ancient court leet, may be traced even to the continental Saxon institutions. The Gaugrave held his Gauding, or Moot, every six weeks, and all the tenants within the Gau owed suit and service to this court; and presentments were there made by the Burmeysters or Bailiffs, similar to those of the Court

Leet, of all who neglected to appear at the court, and of bloodshed, assaults, and all other crimes punishable by loss of life or limb. Vide Speculum Saxonicum; and also an interesting and erudite article in the Edinburgh Review of February, 1822, No. 72. p. 287 et seq.

(b) See 3rd vol. of Henry's Hist. of Great Britain, p. 311.