Franchises and Liberties
| Author | Christopher Jessel |
| Pages | 279-295 |
Chapter 16
Franchises and Liberties
waifs, estrays … jurisdictions, franchises, liberties
16.1 NATURE OF FRANCHISES
Many manors have franchises annexed to them. These are a miscellaneous group of rights
In addition, the Crown had power to create and grant certain new rights to subjects. Some were in the form of monopolies such as markets and ferries, that is the right to prevent others doing what they would otherwise be able to do. Others could involve special privileges associated with defence or
1 See generally Bracton, Sir Henry, De legibus et consuetudinibus angliae (c 1257) (SE Thorne
(ed)) (Belknap Press of Harvard University Press, 1977) f 55b, 120, 123b; Chitty, J, A Treatise on the Law of the Prerogatives of the Crown and the Relative Rights and Duties of the Subject (1820) 119; Hale, Sir Matthew, The Prerogatives of the King (c 1660) (Selden Society, 1976) Ch 19.
2 See Ministry of Justice, The Governance of Britain: Review of the Executive Royal Prerogative
Powers: Final Report (October 2009); Maer L and Gay, O, The Royal Prerogative (House of Commons Library SN/PC/03861, 2009).
280 The Law of the Manor
administration. Grants of this type are in general no longer made under charter although some can be granted by statute. However, certain franchises, especially of corporate status such as that of a new university or a professional institution, are still issued by the Privy Council.
Such rights have become private property and therefore any change made by Parliament for constitutional purposes has to be exercised in such a way as not to affect private rights. The following account describes the main types of franchise, looks at certain rules that apply to them, and considers other similar rights. It includes a suggested classification under modern headings which does not correspond to any established analysis, but many of the rules apply to different franchises in ways that are not wholly logical.
The word ‘franchise’ is now used in different senses. One is a purely private arrangement where the owner of a right licences others to exercise it, for example by running a restaurant along the lines worked out by the franchise owner. It has also been adopted by government to refer to the grant of certain rights. For example, the Railways Act 1993, s 23(3) sets out terms for arrangements known as franchise agreements, but the right to carry passengers by rail is not a franchise in the sense here discussed.
Franchises such as courts leet, waifs, strays and free warren were attached to most manors. Others, such as wreck, were widely but not generally found. Yet others, such as treasure trove, were rare. Markets and fairs came to be regarded as manorial rights. Thus, a discussion of franchises in the manor is far from straightforward.
Where a franchise carries the right to a chattel, it can usually be exercised only where the true owner is unknown. Thus, if an item which would otherwise be treasure is found to be someone’s property, he can claim it.
The prerogative rule for waifs (16.3) appeared to be different in that if the king’s representative obtained custody of stolen goods first his claim prevailed over that of the owner of goods, but if the owner obtained the goods first his right prevailed.
A franchise, which may affect a defined area, therefore needs to be distinguished from the location of any such objects. A thing capable of being
3 See Re Sulzbacher’s coins, 18 April 2011, Coroner for Inner North London.
4 Chitty op cit 147; Foxley’s Case (1600) 5 Co Rep 109a, 77 ER 224.
treasure is probably best regarded as part of the land while it is buried (so that it will pass with the land unless an owner of the chattel can show a better right) and the franchise right arises when the object is dug up and severed and it is then a chattel.
16.2 DEFENCE
In one sense the whole feudal system, described in 22.1, was a privatisation of defence. Land and castles were granted in return for military service. In England this never went as far as on the Continent and English kings were careful to retain ultimate control over military matters. However, where frontier defence was needed, on the Marches of Wales and on the Scottish Borders, local lords were granted very wide powers. Chester and Durham were counties palatine, which involved the grant of substantial powers of defence to a lord holding wide lands. Wherever possible the king ensured that the Earldom of Chester was under his control. Since 1254 it has (with a temporary exception) been held by the heir to the throne and since 1399 by the Prince of Wales. Durham was held by the bishop (sometimes called the prince-bishop) who could only be appointed with royal consent. Lancaster, the third county palatine, was held by the Crown after Henry Bolingbroke Duke of Lancaster became Henry IV. Other so-called palatines were Pembrokeshire, and Hexhamshire in Northumberland. For some purposes the Cinque Ports were so reckoned presumably because of the special jurisdiction involved in defences against France. So was Ely apparently by virtue of a charter of King Edgar although the bishop was more a marsh lord than a march lord.
The Percy Earls (later Dukes) of Northumberland enjoyed substantial privileges as Wardens of the Scottish Marches. In Wales there was a more far-reaching system of Lords Marcher. These were principally jurisdictions held by the lords who, with the consent of the King of England, conquered the country and established themselves there. The bishop of St Davids had the status of Lord Marcher even though episcopal rights went back long before the Conquest. A number of the rights created by Marcher Lordships fell to be considered in Crown Estate Commissioners v Roberts.
5 Waverley Borough Council v Fletcher [1996] QB 334.
6 See Hale op cit Ch 19.
7 [2008] EWHC 1302 (Ch), [2008] 4 All ER 828, [2008] P&CR 255.
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On a more local level the franchise of murage allowed a baron (or occasionally a knight) to erect defensive walls. Murage rights were also granted to corporations and the toll charged to cover the cost of repairs was also known as murage.
After the chaotic times of King Stephen, castles and defended manor houses could only be built under a royal licence to castellate. In the fifteenth century many moated manor houses were built, but if defended they needed a franchise. These rights of defence are now obsolete. Anyone who wishes to erect a castle nowadays would need planning consent, but since the use of gunpowder became widespread such fortresses have had little military value.
16.3 LOCAL ADMINISTRATION AND JURISDICTION
The counties palatine of Chester, Durham and Lancaster, the royal franchise of Ely and the Cinque Ports of the south-east coast all existed by royal grant. They were not themselves manors but could be honours. As well as the defence functions of the palatinates all of these included powers of jurisdiction over local people.
In villages, courts leet existed by franchise although it was so common for a lord to hold one that the grant was widely assumed to have been made into private hands. Hundreds (19.2) could also be privately held, again by the theory of a royal grant. In practice any private hundreds go back beyond legal memory. There are traces of grants relating to the three hundreds of Oswaldslaw in Worcestershire which were said to have been the subject of an express grant by King Edgar to Bishop Oswald of Worcester in 964. The surviving evidence of the grant may be a forgery, but the grant itself could be genuine.
Liberties were areas within a county that were exempt from the jurisdiction of the sheriff. The most famous was the Liberty of the Fleet at the western edge of the City of London which, in the eighteenth century, was a notorious no-go area. Another was the liberty of St Albans in Hertfordshire whose origins lay in Saxon times and had some of the features of a palatinate. At the Dissolution of the monasteries it was placed under the Borough of St Albans and was...
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