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The Case of Swans. - Sir Edward Coke, Selected Writings of Sir Edward Coke, vol. I 
The Selected Writings and Speeches of Sir Edward Coke, ed. Steve Sheppard (Indianapolis: Liberty Fund, 2003). Vol. 1.
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The Case of Swans.
(1592) Trinity Term, 34 Elizabeth I
Before the Queen’s Commissioners.
First Published in the Reports, volume 7, page 15b.
Ed.: Joan Young and Thomas Saunger received a writ from the Exchequer, directing the sheriff of Dorset to round up 400 loose swans from the rivers of the county. Swans are Royal fowl, however, and a wild swan is the property of the monarch. The right to these swans in Dorset was once held by the local abbot, who lost the right along with the abbey to Henry VIII at the dissollution. Henry then granted the estate to Giles Strangeways, whose heir gave them a right to the swans for one year. The question is whether the swans were Strangeways’s or remained the Queen’s. Coke, as Solicitor General, represented the Queen. The Court held that the swans that are ferae naturae, or wild animals, cannot be given by transfer or taken by prescription.
Between the Queen, and the Lady Joan Young, late the wife of Sir John Young Knight deceased and Thomas Saunger defendants, the Case was such. An Office was found at W. in the County of Dorset, 18th of September Ann. 32 Eliz. before Sir Matthew Arundel and other Commissioners of the Queen under the great Seal, Quod a villa de Abbotsbury, in praed’ com’ Dorset, usque ad mare per insulam de Portland in eodem Com’ est quaedam aestuaria, Anglicè a Mere or Fleet, in quam mare fluit et refluit, in qua quidem aestuaria sunt 500 cigni, quorum 410. sunt albi, et 90 cignetti, et quod omnes praedicti cigni et cignetti sunt in possessione J. Young & Tho. Saunger, & quod quilibet eorum est valoris 2s. 6d. quodque major pars tempore captionis dictae inquisitionis minime fuer’ signat’:1 hich Office being certified into the Exchequer, a writ was directed to the Sheriff of the same County to seise all the said white Swans not marked, by force whereof the Sheriff returned, that he had seised 400 white Swans, &c. To which afterwards, Hil. 34 Eliz. the said |[16 a] Joan Young and Thomas Saunger pleaded; Quod praedict’ aestuaria sive aqua, jacet in paroch’ de Abbotsbury in Com. Dorset2 and abutted it) and that before the Inquisition taken, the Abbot of Abbotsbury was seised de praed’ aestuaria, et de ripis et solo ejusdem3 in fee, and that at the time of the inquisition, and time out of mind, fuit et adhuc est quidam volatus cignorum et cignettor’ feror’, vocat’ a game of wild swans, &c. in aestuaria sive aqua illa, et ripis, et solo ejusdem nidificant’, gignen’ et frequentant’ Anglice haunting, de quo quidem volatu cignor’etcignettor’ praed’ abbas et omnes praedecessores sui Abbates Monasterii praed’, per totum tempus praedict’ habuere et gavisi fuerunt, et habere et gaudere consueverunt, tot’ profic’ et increment’ omnium et singulor’ cignor’ et cignettor’ feror’, in aestuaria praed’ nidificant’, gignen’ et frequent’ qui quidem cigni et cignetti per totum tempus praed’ fuerunt ferae naturae, et infra idem tempus iidem cigni et cignetti seu eorum aliqui aliquo signo non usi fuissent, nec consuevissent signari, nisi quod praed’ nuper Abbas et praedecessores sui praed’ per totum tempus praed’ ad eorum libitum quosd’ seu aliquos de minorib’ cignettis annuatim pullulant’ quos ad usum et culinae et hospitalitatis suae statuerunt expendend’, in hunc modum annuatim signare consueverunt, et usi fuerunt viz. amputare mediam juncturam unius alae, Anglice, to cut off the pinion of one wing, cujuslibet talis cignetti, ea intentione, quod cignetti sic amputati minime valerent avolare.4 And afterwards the Abbot surrendered the premises to King Henry the eighth who anno 35 of his Reign granted to Giles Strangways, Esq. by his Letters Patent inter alia, totam illam liberam Piscariam nostr’ in aqua, vocat’ the Fleet Abbotsbury praed’, ac omnia messuag’, aquas, piscat’ et caetera haereditam’ nostr’ quaecunque in Abbotsbury, in dict’ Com’ Dorset dict’ nuper Monasterio, &c. adeo plene et integre, &c. et in tam amplis modo et forma &c.5 and that the said Giles died, and that the same descended to Giles Strangways his Cousin and heir, who demised to the Defendants the said Game of swans for one year, &c. and prayed quod manus dictae dominae Reginae amoveantur.6 Upon which the Queen’s Attorney did demur in the law.
1. It was Resolved, That all white Swans not marked, which having gained their natural liberty, and are swimming in an open and common River, might be seised to the King’s use by his prerogative, because that Volatilia, (quae sunt ferae naturae) alia sunt regalia, alia communia: and so Aquatilium, alia sunt regalia, alia communia:7 as a Swan is a Royal fowl; and all those, the property whereof is not known, do belong to the King by his prerogative: and so Whales and Sturgeons are Royal Fishes, and belong to the King by his Prerogative. And there hath been an ancient Officer of the King’s, called Magister deductus cignorum,8 |[16 b] which continueth to this day. But it was Resolved also, That the subject might have property in white Swans not marked, as some may have swans not marked in his private waters, the property of which belongs to him, and not to the King; and if they go out of his private waters into an open and common River, he may bring them back and take them again. And therewith agreeth Bracton, lib. 2. cap. 1. fo. 9. Si autem animalia fera facta fuerint mansueta, & ex consuetudine eunt, & redeunt, volant, & revolant, (ut sunt Cervi, Cigni, Pavones, et Columbae, et hujusmodi) eousque nostra intelligantur, quamdiu habuerint animum revertendi.9 But if they have gained their natural liberty, and are swimming in open and common Rivers, the King’s Officer may seise them in the open and common River for the King: for one white Swan, without such pursuit as aforesaid, cannot be known from another, and when the property of a swan cannot be known, the same being of its nature a Fowl Royal, doth belong to the King; and in this case the book of 7 Hen. 6. 27.wasvouched, where Sir John Tiptoft brought an action of Trespass for wrongful taking of his Swans; the Defendant pleaded that he was seised of the Lordship of S. within which Lordship, all those whose estate he hath in the said Lordship, had had time out of mind, &c. all estreies being within the said Manor; and we say that the said Swans were estraying at the time in the place where, &c. and we as Landlords did seise and make proclamations in Fairs and Markets, and so soon as we had notice that they were your Swans, we delivered them to you at such a place. The Plaintiff replied, That he was seised of the Manor of B. joining to the Lordship of S. and we say, that we and our Ancestors, and all those, &c. have used time out of mind, &c. to have Swans swimming through all the Lordship of S. and we say, that long time before the taking we put them in there, and gave notice of them to the Defendant that they were our Swans; and prayed his Damages. And the opinion of Strange there was well approved by the Court, that the Replication was good: For when the Plaintiff may lawfully put his swans there, they cannot be estrays, no more than the Cattle of any can be estrays in such place where they ought to have Common; because they are there where the Owner hath an interest to put them, and in which place they may be without negligence or laches10 of the Owner. Out of which Case, these points were observed concerning Swans, 1. That every one who hath Swans within his Manor, that is to say, within his private waters, hath a property in them, for the Writ of Trespasswas of wrongful taking his Swans; scil. Quare cignos suos &c.11 2. That one may prescribe to have a game of Swans within his Manor, as well as a Warren, or Park. 3. That he who hath such a game of Swans may prescribe, that his Swans may swim within the |[17 a] Manor of another. 4. That a swan may be an Estray, and so cannot any other Fowl, as I have read in any Book. In 2 Rich. 3. 15 & 16. The Lord Strange and Sir John Charlton brought an Action of Trespass against 3, because the Defendants had taken and carried away 40 Cygnets of the Plaintiff’s in the County of Bucks, to his damages of 10 l. One of the Defendants pleaded, That the water of the Thames ran through the whole realm, and that the County of Buckingham is adjoining to the Thames, and that the custom of the said County of Buckingham is, and hath been time out of mind, &c. That every Swan (for Cignet in the book is taken for a Swan) which hath course in any water, which water runs to the Thames within the same County. That if any Swan cometh on the land of any man, and there builds, and hath Cignets on the same land, that then he who hath the property of the Swan shall have 2 of the Cignets, and he who hath the land shall have the third Cignet, which shall be of less value than the other 2; and that was adjudged a good custom, because the possessor of the Land suffers them to build there, where he may drive them off. And by this Judgment it also appears, That a man may allege a Custom or Prescribe in Swans or Cignets. And in the same Case it is said, That the truth of the matter was, that the Lord Strange had certain Swans which were Cocks, and Sir John Charleton certain Swans which were Hens, and they had Cignets between them; and for these Cignets the owners did join in one Action, for in such case by the general custom of the Realm, which is the Common Law in such case, the Cignets do belong to both the owners in common equally, scil. to the owner of the Cock, and the owner of the Hen; and the Cignets shall be divided betwixt them. And the Law thereof is founded on a reason in nature; for the Cock Swan is an emblem or representation of an affectionate and true Husband to his Wife above all other Fowle; for the Cock Swan holdeth himself to one female only; and for this cause nature hath conferred on him a gift beyond all others; that is, to die so joyfully, that he sings sweetly when he dies; upon which the Poet saith,
And therefore this case of the Swan doth differ from the case of Kine, or other brute beasts. Vide 7. Hen. 4. 9. And it was agreed that none can have a Swan mark, which in Latin is called cigninota13 if it not be by the grant of the King, or of his Officers authorised thereto, or by prescription. And if he hath a lawful Swan-mark, and hath Swans swimming in open and common Rivers, lawfully marked therewith, they belong to him ratione privilegii.14 But none shall have a Swan-mark, or Game of Swans, if he hath not Lands or Tenements of an Estate of Freehold of the yearly value of five Marks, above all charges, on pain of forfeiture of his Swans, whereof the King shall have one moiety, and he who seises shall have the other moiety: and that is by the stat. of 22 Edw. 4. cap. 6. And he who hath such Swan-mark may grant it over. And thereof I have seen a notable precedent in the time of Henry the sixth which is such, Notum sit omnib’ hominib’ praesentib’ et futuris, quod ego J. Steward Miles, dedi et |[17 b] concessi Tho’ fil’ meo primogenito, et haeredib’ suis, cigninot’ meam armor’ meor’, prout in margine laterali pingitur, quae mihi jure haereditar’ descendeb’ post mort’ J. Steward mil’ patris mei: Habend’ sibi et haeredib’ suis, una cum omnib’ cignis et cignicul’ cum dicta nota baculi nodati signat’, sub condit’ quod quilib’ feria solis durante vita a gula Augusti, usque ad Cornisprivium apud dom’ meam de Darford, unum cignicul’ bene signat’ mihi aut meis deliberet, quod si defecerit, tunc volo, quod hoc praesens chirographum cassetur penitus, et pro nihilo habeatur. In cuj’ rei testimon’ ad instant’ Matildae uxor’ meae, meum sigil’ secret’ Christi crucifixi praesentib’ feci apponi. Hiis testib’ R. Clerico, J. D. Conyers, Alano Fabro, et al’ Dat. apud dom’ meam mansional’ de Darf. in vigilia S. Dunst’ ep’ an’ regni Regis Hen’ post conquest’ Angliae sexti.15 14. And in the Margent was printed a little ragged staff. And in this case it was resolved, that in some of them which are ferae naturae,16 a man hath jus proprietatis,17 a right of property, and in some of them a man hath jus privilegii,18 a right of privilege. And there are three manner of rights of property, scil. property absolute, property qualified, and property possessory. A man hath not absolute property in any thing which is ferae naturae, but in those which are domitae naturae.19 Property qualified and possessory a man may have in those which are ferae naturae; and to such property a man may attain by two ways, by industry, or ratione impotentiae et loci;20 by industry as by taking them, or by making them mansueta, i.e. manui assueta, or domesticae, i.e. domui assueta:21 But in those which are ferae naturae, and by industry are made tame, a man hath but a qualified property in them, scil. so long as they remain tame, for if they do attain to their natural liberty, and have not animum revertendi,22 the property is lost, ratione impotentiae et loci: As if a man has young Shovelers or Goshawks, or the like, which are ferae naturae, and they build in my land, I have possessory property in them, for if one takes them when they cannot fly, the owner of the soil shall have an action of Trespass, Quare boscum suum fregit, et tres pullos espervor’ suor’, or aidear’ suar’ pretii tantum, nupe in eod’ bosco nidificant’, cepit, et asportav’;23 and therewithagreeth the regist. and F. N. B. 86. (D) L. & 89. K. 10 Edw. 4. 14. 18 Edw. 4. 8. 14 Hen. 8. 1 b. Stamf. 25 b. &c. vide 12 Hen. 8. 4. & 18. Hen. 8. 12. But when a man hath savage beasts ratione privilegii, as by reason of a Park, Warren, &c. he hath not any property in the Deer, or Conies, or Pheasants, or Partridges, and therefore in an action, Quare Parcum Warrennum, &c. fregit et intrav’, et 3. damas, lepores, cuniculos, phasianos, perdices, cepit et asportavit,24 he shall not say (suos)25 for he hath no property in them, but they do belong to him ratione privil’ for his game and pleasure, so long as they remain in the privileged place; for if the owner of the Park dies, his heir shall have them, and not his Executors or Administrators, because without them the Park, which is an |[18 a] Inheritance, is not complete; nor can Felony be committed of them, but of those which are made tame, in which a man by his industry hath any property, Felony may be committed. And therewith agrees the rule of the book in 3 Hen. 6. 55 b. 8 Edw. 4. 5 b. 22 Hen. 6. 59. which is ill reported, and 43 Edw 4. 24. vide 22 Ass. 12 Hen. 3. 13 Eliz. Dyer 306. 38 Edw. 3. 19. Vide 2 Edw. 2. tit. Distress. 2 Edw. 3. Avowry 182. But a man may have property in some things which are of so base nature, that no Felony can be committed of them; and no man shall lose life or member for them, as of a Blood-hound or Mastiff, molessus,26 12 Hen. 8. 3. Vide 18 Hen. 8. 2. But he who steals the Eggs of Swans out of the Nest shall be imprisoned for a year and a day, and fined at the will of the King; one moiety to the King, the other to the owner of the Land where the eggs were so taken, and that is by the Statute of 11 Hen. 7. cap. 17. And it hath been said of old time, That he who steals a Swan in an open and common River, lawfully marked, the same Swan (if it may be) or another swan, should be hung in a house by the beak, and he who stole it shall in recompence thereof be obliged to give the owner so much Wheat that may cover all the swan, by putting and turning the Wheat on the head of the Swan, until the head of the Swan be covered with the Wheat. And it was resolved, That in the principal case the prescription was insufficient; for the effect of the prescription is to have all wild Swans, which are ferae naturae,27 and not marked nidificant, gignent, et frequentant’,28 within the said Creek. And such prescription for a Warren would be insufficient, scil. to have all Pheasants and Partridges, nidificantes, gignentes,29 and frequenting within his Manor. But he ought to say, to have free Warren of them within his Manor: For although they are nidificantes, gignentes, and frequenting withinthemanor, he cannot have them jure privilegii,30 but so long as they are within the place. But it was resolved, That if the defendants had alleged, that within the said Creek there had been time out of mind &c. a game of wild Swans not marked, building and breeding; and then had prescribed, that such Abbot and all his Predecessors, &c. had used at all times to have and take to their use some of the said Game of wild Swans and their Cignets within the said creek, it had been good; for although Swans are royal Fowls, yet in such a manner a man may prescribe in them: for that may have a lawful beginning by the King’s grant: For in Rot. Parliam 16 Rich. 2. part. 1. numero. 3a. like grant was of wild Swans unmarked in the County of Cambridge, to B. Bereford, Knight. The like grant in Rot Parl. anno 30 Edw. 3 part 2. num. 20. the King granted to C. W. all his wild Swans unmarked between Oxford and London for seven years. In Rot. Parl. an. 1 Hen. 4. part. 6. numer. 14. A grant was made to John Fenne, to survey and keep all wild swans unmarked; ita quod de proficuo respondeat ad Scaccarium.31 |[18 b] By which it appear, that the King may grant wild Swans unmarked; and by consequence a man may prescribe in them within a certain place, because it may have a lawful beginning. And a man may prescribe to have Royal Fish within his Manor, as it is held in 39 Edw. 3. 35. for the reason aforesaid. And yet without prescription they do belong to the King by his Prerogative.
[1. ][Ed.: that from the vill of Abbotsbury in the aforesaid county of Dorset as far as the sea, by the island of Portland in the same county, there is a certain estuary, called in English a ‘mere’ or ‘fleet’, in which the sea ebbs and flows, in which estuary there are five hundred swans, whereof four hundred and ten are white and ninety are cygnets, and that all the aforesaid swans and cygnets are in the possession of Joan Young and Thomas Saunger, and that each of them is worth two shillings and sixpence, and that the greater part of them at the time of the taking of this inquisition were unmarked.]
[2. ][Ed.: That the aforesaid estuary or water lies in the parish of Abbotsbury in the county of Dorset.]
[3. ][Ed.: of the aforesaid estuary and of the banks and soil of the same.]
[4. ][Ed.: there was and still is a certain flock of wild swans and cygnets called ‘a game of wild swans’ in that estuary or water, nesting, breeding and congregating—in English ‘haunting’—in the banks and soil of the same, of which same game of swans and cygnets the aforesaid abbot and all his predecessors, as abbots of the aforesaid monastery, for the whole time aforesaid, have had and enjoyed and have been accustomed to have and enjoy all the profit and gain of all and singular the wild swans and cygnets nesting, breeding and haunting in the estuary aforesaid, which swans and cygnets for the whole time aforesaid were ferae naturae (of a wild nature), and within the same time neither the same swans and cygnets nor any of them were used or accustomed to be marked with any mark, save that the aforesaid late abbot and his aforesaid predecessors for the whole time aforesaid have been accustomed annually to mark at their free pleasure some of the smaller cygnets coming forth each year which were to be spent in his kitchen and hospitality, in this manner, namely to amputate the middle joint of one wing—in English ‘to cut off the pinion of one wing’—of every such cygnet, with the intention that the cygnets so amputated should not be able to fly away.]
[5. ][Ed.: amongst other things, all that our free fishery in the water called ‘the fleet’ in Abbotsbury aforesaid, and all messuages, waters, fisheries and other our hereditaments whatsoever in Abbotsbury in the said county of Dorset [belonging] to the said late monastery etc., as plainly and fully etc. and in as ample a manner and form, etc.]
[6. ][Ed.: that the hands of the lady queen be ousted.]
[7. ][Ed.: because fowl, which are of a wild nature, are sometimes royal and sometimes common.]
[8. ][Ed.: master of the game of swans.]
[9. ][Ed.: But if wild animals are made tame, and are accustomed go and return, or fly away and fly back, as do deer, swans, peacocks and pigeons, and the like, they shall be understood to be ours so long as they have animus revertendi (the intention of returning).]
[10. ][Ed.: unreasonable delay.]
[11. ][Ed.: that is to say, why [he took] his swans, etc.]
[12. ][Ed.: The swan, chanter of its own death, modulates sweet songs with failing tongue [Martial, Epigrams, 13. 77. 1.].]
[13. ][Ed.: swan mark.]
[14. ][Ed.: by reason of privilege.]
[15. ][Ed.: Be it noted by all men present and to come that I, J. Steward, knight, have given and granted to Thomas, my firstborn son, and his heirs, my swan-mark of my arms, as painted in the side-margin, which descended to me by hereditary right after the death of J. Steward, knight, my father, to have and to hold unto him and his heirs, with all the swans and cygnets marked with the said sign of a knotted staff, upon condition that every Sunday during his lifetime between the gule of August [i.e., Lammas] and Carnisprivium [i.e., the beginning of Lent] he shall deliver to me or mine at my house of Darford one cygnet well marked; and, if he defaults, then I will that this my present chirograph should be utterlyquashed and had for naught. In witness whereof, at the instance of my wife Maud, I have caused my privy seal with the crucifix to be set to the presents, these being witnesses: R. Clerk, J. [de] Conyers, Alan Smith, and others. Given at my mansion house of Darford on the vigil of St Dunstan the Bishop in the fourteenth year of the reign of King Henry the sixth after the conquest.]
[16. ][Ed.: of a wild nature.]
[17. ][Ed.: right of property.]
[18. ][Ed.: right of privilege.]
[19. ][Ed.: domesticated by nature.]
[20. ][Ed.: by reason of powerlessness and place.]
[21. ][Ed.: domesticated, that is, habituated to the house.]
[22. ][Ed.: intention of returning.]
[23. ][Ed.: [to show] Why he broke his wood, and took and carried away three sparrowhawk chicks, of such and such a price, lately nesting in the same wood.]
[24. ][Ed.: [to show] Why he broke and entered the park, warren, etc., and took and carried away three does [or] hares, rabbits, pheasants, partridges.]
[25. ][Ed.: his.]
[26. ][Ed.: mastiff.]
[27. ][Ed.: of a wild nature.]
[28. ][Ed.: nesting, breeding and haunting.]
[29. ][Ed.: nesting, breeding.]
[30. ][Ed.: by right of privilege.]
[31. ][Ed.: so that he answer for the profit to the Exchequer.]