the case of swan between the queen and the lady Joan young late the wife of  sir John young knight decease and Thomas Saunger defendant the case be such a  office be find at wonder in the county of Dorset that of September Ann  Elizabeth before sir Matthew Arundel and other commissioner of the queen under  the great seal quoth a shaggy hair de Abbotsbury in pillage  under command the head of Dorset usque and mare per island de Portland in  to the same place Com be quaedam aestuar Anglice a mere or fleet in how mare  fluit et to flow back in how indeed  aestuar are measure quorum are white et  cignetti et quoth all prediction measure et cignetti are in possession I young  though Saunger quoth who the dawn be valor S d whoever it be major pars  tempore a deceiving speech search minim fuer mark hich office be certify into  the exchequer a writ be direct to the sheriff of the same county to seize all  the say white swan not mark by force whereof the sheriff return that he have  seize white swan c to which afterward hill Elizabeth the say Joan young and  Thomas Saunger plead quoth predict aestuar sive water to be thrown or cast in  paroch de Abbotsbury in come Dorset and abut it and that before the  inquisition take the abbot of Abbotsbury be seize de pillage aestuar et de  bank et solon the same in fee and that at the time of the inquisition and time  out of mind to be et thus far be quidam flight a measure et cignettor to bear  peremptory or urgent call a game of wild swan c in aestuar sive water that et  bank et solon the same to build a nest gignen et to visit frequently Anglice  haunt de quo indeed  flight cignor'etcignettor pillage abbas et all  predecessor Himself abbate monastery pillage per totum time predict to have et  to rejoice to be et to have et to rejoice to become used tot make et increment  all et singulor cignor et cignettor to bear in aestuar pillage to build a nest  gignen et frequent who indeed  measure et cignetti per totum time pillage  to be ferae nature et infra idem time the same measure et cignetti seu  the dawn in some way to some place  battle standard non use to be nec  to become used a sculptor nisi quoth pillage recently abbess et predecessor  Himself pillage per totum time pillage and the dawn it pleases quosd seu some  de minorib cignettis annuatim pullulant quos and use et kitchen et hospitality  of oneself to cause to stand expendend in haec manner annuatim  to set a mark upon to become used et use to be videlicet to cut around middle  joint One alae Anglice to cut off the pinion of one wing pron. interrog. ankle  cignetti she intention quoth cignetti such to cut around minim to be strong  to fly away and afterward the abbot surrender the premise to king Henry the  eight who year  of his reign grant to Giles Strangways Esq by his letter  patent inter other all that Proserpine Piscariam our men  in water  peremptory or urgent call the fleet Abbotsbury pillage ac all messuag aquas  fish et the other haereditam our men  whoever in Abbotsbury in dict Com Dorset  dict recently monastery c to such a degree plene et integre c et in tam  opportunity modus et form c and that the say Giles die and that the same  descend to Giles Strangways his cousin and heir who demise to the defendant  the say game of swan for one year c and pray quoth manus speech owner queen  to move away upon which the queen attorney do demurrer in the law it be  resolve that all white swan not mark which have gain their natural liberty and  be swim in a open and common river may be seize to the king use by his  prerogative because that winged who are ferae nature other are regalia other  communia and so living in water other are regalia other communia as a swan be  a royal fowl and all those the property whereof be not know do belong to the  king by his prerogative and so whale and sturgeon be royal fish and belong to  the king by his prerogative and there have be a ancient officer of the king  call magister downward pull a measure which continue to this day but it be  resolve also that the subject may have property in white swan not mark as some  may have swan not mark in his private water the property of which belong to he  and not to the king and if they go out of his private water into a open and  common river he may bring they back and take they again and therewith agree  Bracton lib cap foe si autem animal wild beast fanctam to be  to be used to the hand ex experience going Of persons volant to fly back ut  are Cervi measure Pavones et columbae et hujusmodi of dawn our men   to come to know Interrog. to have mind see revertor. but if they have gain  their natural liberty and be swim in open and common river the king officer  may seize they in the open and common river for the king for one white swan  without such pursuit as aforesaid can be know from another and when the  property of a swan can be know the same be of its nature a fowl royal do  belong to the king and in this case the book of Henry wasvouched where sir  John tiptoft bring a action of trespass for wrongful take of his swan the  defendant plead that he be seize of the lordship of S within which lordship  all those who estate he have in the say lordship have have time out of mind c  all estreies be within the say manor and we say that the say swan be estraying  at the time in the place where c and we as landlord do seize and make  proclamation in fair and market and so soon as we have notice that they be  your swan we deliver they to you at such a place the plaintiff reply that he  be seize of the manor of b join to the lordship of S and we say that we and  our ancestor and all those c have use time out of mind c to have swan swim  through all the lordship of S and we say that long time before the take we put  they in there and give notice of they to the defendant that they be our swan  and pray his damage and the opinion of strange there be well approve by the  court that the replication be good for when the plaintiff may lawful put his  swan there they can be estrays no more than the cattle of any can be estrays  in such place where they ought to have common because they be there where the  owner have a interest to put they and in which place they may be without  negligence or laches of the owner out of which case these point be observe  concern swan that every one who have swan within his manor that be to say  within his private water have a property in they for the Writ of Trespasswas  of wrongful take his swan sure quare measure swine c that one may prescribe to  have a game of swan within his manor as well as a warren or park that he who  have such a game of swan may prescribe that his swan may swim within the manor  of another that a swan may be a estray and so can any other fowl as I have  read in any book in Richard the lord strange and sir John Charlton bring a  action of trespass against because the defendant have take and carry away  cygnet of the plaintiff in the county of buck to his damage of l one of the  defendant plead that the water of the Thames run through the whole realm and  that the county of Buckingham be adjoin to the Thames and that the custom of  the say county of Buckingham be and have be time out of mind c that every swan  for cignet in the book be take for a swan which have course in any water which  water run to the Thames within the same county that if any swan come on the  land of any man and there build and have cygnet on the same land that then he  who have the property of the swan shall have of the cygnet and he who have the  land shall have the three cignet which shall be of less valve than the other  and that be adjudge a good custom because the possessor of the land suffer  they to build there where he may drive they off and by this judgement it also  appear that a man may allege a custom or prescribe in swan or cygnet and in  the same case it be say that the truth of the matter be that the lord strange  have certain swan which be cock and sir John Charleton certain swan which be  hen and they have cygnet between they and for these cygnet the owner do join  in one action for in such case by the general custom of the realm which be the  commonlaw in such case the cygnet do belong to both the owner in common equal  sure to the owner of the cock and the owner of the Hen and the cygnet shall be  divide betwixt they and the law thereof be find on a reason in nature for the  cock swan be a emblem or representation of a affectionate and true husband to  his wife above all other foul for the cock swan hold himself to one female  only and for this cause nature have confer on he a gift beyond all other that  be to die so joyful that he sing sweet when he die upon which the poet say  sweet drink diminution to measure song tongue cantator cygnus burial ipse  Himself c and therefore this case of the swan do differ from the case of Kine  or other bruit beast vide Henry and it be agree that none can have a swan mark  which in Latin be call cigninota if it not be by the grant of the king or of  his officer authorize thereto or by prescription and if he have a lawful swan  mark and have swan swim in open and common river lawful mark therewith they  belong to he ration privilegi but none shall have a swan mark or game of swan  if he have not land or tenement of a estate of freehold of the yearly valve of  five mark above all charge on pain of forfeiture of his swan whereof the king  shall have one moiety and he who seize shall have the other moiety and that be  by the stat of Edward cap and he who have such swan mark may grant it over and  thereof I have see a notable precedent in the time of Henry the six which be  such notum sit omnib hominib praesentib et going to be quoth ego I steward  mile to give away et concession though fil meo birthright et haeredib n'est  cigninot of me armor to go prout in margin lateral it wearies who I jure  haereditar descendeb post mort I steward mil father urinate Habend Himself et  haeredib n'est One come omnib measure et cignicul come dictam notam stick  to furnish with knots mark sub condit quoth quilib feria sun durante vita a  throat Augusti usque and Cornisprivium at dom of me de Darford One cignicul be  mark I or meis to weigh well quoth si to withdraw tunc volunteers  quoth hoc  feel or perceive beforehand own handwriting empty inside et pro nothing  to have in of whom rei testimon and instant Matildae wife I meum sigil secret  Christ crucifix praesentib to make to put at haec testib r clergyman I d  Conyers of workman et al that at dom of me mansional de Darf in vigilia S  Dunst ep and royal power king hen post conquest England Sextius and in the  margin be print a little ragged staff and in this case it be resolve that in  some of they which be ferae nature a man have law quality a right of property  and in some of they a man have law privilegi a right of privilege and there be  three manner of right of property sure property absolute property qualify and  property possessory a man have not absolute property in any thing which be  ferae nature but in those which be to domesticate nature property qualify and  possessory a man may have in those which be ferae nature and to such property  a man may attain by two way by industry or ration weakness et loci by industry  as by take they or by make they to be used to the hand I e a hand  to which one is accustomed or household member I e to domesticate  to which one is accustomed but in those which be ferae nature and by industry  be make tame a man have but a qualify property in they sure so long as they  remain tame for if they do attain to their natural liberty and have not mind  see revertor. the property be lose ration weakness et loci as if a man have  young shovelers or goshawks or the like which be ferae nature and they build  in my land I have possessory property in they for if one take they when they  can fly the owner of the soil shall have a action of trespass quare boscum  suum to break in pieces et tres darkgray cloth  espervor to sew or aidear  to sew price so much nupe in eod bosco to build a nest to take in hand et  carry away and therewithagreeth the king and f n b d l king Edward Edward  Henry b Stamf b c vide Henry Henry but when a man have savage beast ration  privilegi as by reason of a park warren c he have not any property in the Deer  or cony or pheasant or partridge and therefore in a action quare sparing  Warrennum c to break in pieces et enter et Damas hare abounding in rabbits  phasianos partridge to take in hand et to carry away he shall not say swine  for he have no property in they but they do belong to he ration privil for his  game and pleasure so long as they remain in the privilege place for if the  owner of the park die his heir shall have they and not his executor or  administrator because without they the park which be a inheritance be not  complete nor can felony be commit of they but of those which be make tame in  which a man by his industry have any property felony may be commit and  therewith agree the rule of the book in Henry b Edward b Henry which be ill  report and Edward vide ass Henry Elizabeth dyer Edward vide Edward title  distress Edward avowry but a man may have property in some thing which be of  so base nature that no felony can be commit of they and no man shall lose life  or member for they as of a blood hound or mastiff molessus Henry vide Henry  but he who steal the egg of swan out of the nest shall be imprison for a year  and a day and fine at the will of the king one moiety to the king the other to  the owner of the land where the egg be so take and that be by the statute of  Henry cap and it have be say of old time that he who steal a swan in a open  and common river lawful mark the same swan if it may be or another swan shall  be hang in a house by the beak and he who steal it shall in recompense thereof  be oblige to give the owner so much wheat that may cover all the swan by put  and turn the wheat on the head of the swan until the head of the swan be cover  with the wheat and it be resolve that in the principal case the prescription  be insufficient for the effect of the prescription be to have all wild swan  which be ferae nature and not mark to build a nest to produce et  to visit frequently within the say creek and such prescription for a warren  will be insufficient sure to have all pheasant and partridge to build a nest  to produce and frequent within his manor but he ought to say to have free  warren of they within his manor for although they be to build a nest  to produce and frequent withinthemanor he can have they jure privilegi but so  long as they be within the place but it be resolve that if the defendant have  allege that within the say creek there have be time out of mind c a game of  wild swan not mark building and breed and then have prescribe that such abbot  and all his predecessor c have use at all time to have and take to their use  some of the say game of wild swan and their cygnet within the say creek it  have be good for although swan be royal fowl yet in such a manner a man may  prescribe in they for that may have a lawful beginning by the king grant for  in rot parliament Richard part numero a like grant be of wild swan mark in the  county of Cambridge to b Bereford knight the like grant in rot parliament  year  Edward part num the king grant to c wonder all his wild swan mark  between Oxford and London for seven year in rot parliament a Henry part number  a grant be make to John fen to survey and keep all wild swan mark ita quoth de  adj to answer and Scaccarium by which it appear that the king may grant wild  swan mark and by consequence a man may prescribe in they 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 be hold in Edward for the reason aforesaid  and yet without prescription they do belong to the king by his prerogative