We’re accustomed to pondering of challenges to the royal prerogative as being a newer authorized improvement, one thing of the 20th century. Nevertheless, these two posts search to ascertain that there there have been a minimum of two (in the end unsuccessful) challenges to royal prerogative, relationship again to the reign of Elizabeth I, involving mute swans (on this submit) and mines (within the following submit).
The Case of Swans
The Case of Swans concerned a problem to Queen Elizabeth I’s prerogative to personal all unmarked mute swans in England and Wales, an odd side of the royal prerogative which nonetheless technically exists to today, and which gave rise to a plethora of unusual legal guidelines and customs. Earlier than coping with the case, the historical past of the prerogative might be outlined.[1]
The historical past of the royal prerogative to personal mute swans
The monarch of England solely has rights in relation to a specific type of swan native to Britain, the mute swan (Cygnus olor). Different species of swan will not be lined by the regal privilege. The origins of the monarch’s possession of swans are shrouded in thriller. Gerald of Wales (‘Giraldus Cambrensis’) is the primary to say that mute swans are a ‘royal hen’ within the late twelfth century. It’s typically deemed a part of the royal prerogative by customized, however was then entrenched in case regulation and statute.
In medieval occasions, possession of swans turned related to standing and royal favour. In fact, swans are wild animals, however the widespread regulation held that ‘certified’ possession of untamed animals was potential in three alternative ways:
- By capturing or maintaining an animal, or by taming the animal (per industriam). So long as the animal retains returning to the individual’s property (animum revertendi) it belongs to the individual;
- By proudly owning land upon which sure wild animals reside and can’t go away (as a result of they’re younger, injured, or taking care of younger) (often known as ratione impotentiae et lociwhich means ‘by cause of incapacitation and site’);
- By having the suitable to seize, hunt, or kill an animal. This will likely come up as a part of the unique rights related to proudly owning land (ratione soli which means ‘by cause of the soil or land’), or by cause of being granted a privilege (ratione privilegii which means ‘by cause of privilege’, typically granted by the Crown). It’s this latter precept which allowed the monarch to grant possession of swans.[2]
Within the thirteenth century, the King started to grant topics the privilege to put ‘marks’ on wild mute swans’ beaks (in Latin, cigninota), permitting them to ascertain a professional possession in swans. In 1361, Thomas de Russham was given duty by the King for “the supervision and custody of all our swans in addition to within the water of the Thames as elsewhere inside our Kingdom.” After de Russham’s appointment, the monarch continued to nominate a Grasp of the King’s Recreation of Swans (often known as the Royal Swan-herd, Royal Swannerd, or Royal Swan-master). Initially, the king’s proper to grant swan marks was customary, however a declaration in 1405 to 1406 entrenched it in statute.
Possession of swans was an indication of standing and energy, and, after “Yeomen and Husbandmen, and different individuals of little Popularity” tried to say possession of swans, Edward IV handed the 1482 – 1483 Act for Swans.[3] The Act for Swans was a ‘sumptuary regulation’, restraining individuals from proudly owning or consuming one thing primarily based on social class, and designed to implement social hierarchies. After it was enacted, the one individuals who might register swan marks or personal swans had been rich landowners who “have Lands and Tenements of Property of Freehold to the yearly Worth of 5 Marks above all yearly Costs.” Anybody who didn’t qualify for possession of swans below the brand new statute was to divest themselves of swans, and if this was not performed earlier than Michaelmas, the king’s topics who certified for possession of the swans had been entitled “to seise the mentioned Swans as forfeit; whereof the King shall have one Half, and he that [shall seise] the opposite Half.”
At across the similar time, individuals started to formally register swan marks. Solely the monarch might declare unmarked mute swans, though the monarch additionally had a number of of his or her personal marks. The one different group of people that can nonetheless legally hunt and eat unmarked mute swans are the fellows of St John’s School, Cambridge, a privilege granted for royalist assist in days gone previous. The partitions of the School nonetheless have swan traps, reflecting this historical past.
The marking, recording and disposal of swans was often known as ‘swan-upping’, and was performed by the swan-master. Folks would catch the swans, document the possession of the birds and their offspring, and place markings upon the beaks of the birds. Plainly the marks had been achieved by inscription with a knife or by branding. The swan-master was to meticulously keep the marks in an ‘upping guide’.
The King fashioned particular courts to settle disputes over swan possession, known as the Courts of Swan-mote or Swan-moot. The swan grasp was answerable for implementing the King’s rights in relation to swans, and later appointed regional deputies. Strict guidelines promulgated by native swan house owners protected the monarch’s swans from being harmed. For example, the Ordinances made in respect of Swans on the River Witham in Lincoln in 1523 set out the next guidelines:
…that there shall no fisher, or different man that hath any floor butting on any water, or stream, the place swans might breed, or of customized have bred, shall mow, shear, or reduce any thackets, reed, or grass, inside 40 toes of the swan’s nest, or inside 40 toes of the stream, on ache of each such default to forfeit till the king, or his Deputy, xl [40 shillings]…
…that there shall no method of individual or individuals, hawk, nor hunt, fish with canines, or set nets, or snares, or engines, for no fish, or fowl, within the day time, or shoot in hand gun, or cross bow, between the Feast of Philip and James, and the Feast of Lammas, in ache for each such default, to forfeit unto the King or his Deputy, the factor that’s set, and in cash the sum of 6s. 8d.
…that there shall no hemp or flax be steeped in any operating waters, nor inside 40 toes of the water, nor some other filthy factor be thrown within the operating waters, whereby the waters could also be corrupt, nor no man to encroach on the operating water, whereby the waters could also be damage, by any type of means, in ache of each such default, to forfeit unto the King, or his Deputy, xl [40 shillings]…[4]
Stealing swan eggs was forbidden. Throughout the reign of Henry VII, stealing ‘the eggis of any faucon, gossehauke laners or swannes out of the neste’ was punishable by imprisonment for a yr and a day and a superb, half to be paid to the king, and half to be paid to the individual on whose land the nest was.[5] Throughout the rule of James I, anybody who took ‘the Egges of any Phesant Partridge or Swannes out of the Neasts, or willinglie breake spoile or destroy the identical within the Neaste’ risked punishment of three months’ imprisonment with out bail except they paid a superb of 20 shillings (to be utilized for using the poor of the parish) for every egg taken or destroyed.[6]
The swan-master was additionally answerable for maintaining swans protected in inclement climate.
This supplies the required background to the 1592 Case of Swans,[7] the place two nobles challenged Queen Elizabeth’s prerogative to say unmarked swans.
The Case of Swans
The dispute arose when Dame Joan Younger and Thomas Saunger had been directed by the Sheriff of Dorset to spherical up 400 unfastened unmarked swans, as a result of the Queen, Elizabeth I, sought possession of them. Younger and Saunger sought to argue that they owned the unmarked swans. The correct to those specific swans had as soon as been held by the native Abbot of the Abbey of St Peter at Abbotsbury, an order of Benedictine monks. Whereas this might sound unusual to fashionable eyes, monks apparently loved consuming roast swan, as the outline of the monk within the Common Prologue to Chaucer’s Canterbury Tales exhibits:
Now definitely he was a good prelaat;
He was nat pale as a forpyned goost.
A fats swan cherished he better of any roost.[8]
The grandfather of Dame Joan’s first husband had assisted within the dissolution of the monastery, and Henry VIII had allowed him to buy the property. The property had then handed to his grandson and inheritor (Dame Joan’s first husband, the late Giles Strangeways). Younger and Saunger mentioned that that they had been given the suitable to the swans for one yr by Strangeways. They asserted that they owned the swans as a result of the landowner had acquired rights to the swans when the land had been bought by him (ratione soli) whereas the Queen asserted that the only method by which possession of mute swans could possibly be conveyed was by way of her prerogative, if the individual had been granted a privilege (ratione privilegii). Abbotsbury Swannery nonetheless exists, and it’s nonetheless owned by descendants of the Strangeways household. Many wild swans proceed to reside and construct their nests there, however our present Queen chooses to not train her prerogative to say them.
The Queen’s Commissioners determined that solely the Queen might grant possession of unmarked wild swans, as a part of her prerogative, and if she selected to say unmarked swans, then they had been hers, and Younger and Saunger couldn’t refuse to spherical up the swans.
The Courtroom additionally dominated on the possession of cygnets. Whereas at widespread regulation the rule is that possession in offspring is conferred by possession of the mom animal, swans are completely different. The Courtroom mentioned that if cygnets had been the offspring of a pair of swans owned by two completely different individuals, then the cygnets had been divided between them: one cygnet went to the proprietor of the cob (the male swan), one to the proprietor of the pen (the feminine swan), with the proprietor of the cob having the primary decide. Alternatively, if there was just one cygnet which was disputed, the proprietor would possibly pay half the worth to the loser or is likely to be promised the following hen from the match. If there have been three cygnets, the individual upon whose land the nest was constructed might need an entitlement to it, though the worth can be lower than the opposite two, so long as he paid a payment to the monarch. Sir Edward Coke defined this determination as referring to the faithfulness of swan pairs:
And the Legislation thereof is based on a cause in nature; for the Cock Swan is an emblem or illustration of an affectionate and true Husband to his Spouse above all different Fowle; for the Cock Swan holdeth himself to 1 feminine solely; and for this trigger nature hath conferred on him a present past all others; that’s, to die so joyfully, that he sings sweetly when he dies; upon which the Poet saith,
Dulcia defecta modulatur carmina lingua,
[The swan, chanter of its own death]
Cantator, cygnus, funeris ipse sui, &c
[modulates sweet songs with failing tongue][9]
And due to this fact this case of the Swan doth differ from the case of Kine, or different brute beasts.[10]
The quote is from the Roman poet Martial, reflecting the classical perception that the mute swan was typically silent however sang a fantastic tune upon its loss of life. The ‘swan tune’ is solely legendary, however there’s a germ of reality to the pair bonding: mute swans usually keep paired for all times, and infrequently ‘divorce’.
Nevertheless, possession of swans was not the one royal prerogative below problem through the rule of Elizabeth I. There had been an earlier problem which raised not solely the monarch’s entitlement to ore treasured metallic, but in addition the unusual case of ‘Royal Fish’.
The following submit will proceed to take a look at historic challenges to the royal prerogative, demonstrating how – although unsuccessful – such challenges had been potential.
Katy Barnett is a Professor at Melbourne Legislation College.
[1] See Arthur MacGregor, ‘Swan Rolls and Beak Markings: Husbandry, Exploitation and Regulation of Cygnus olor in England, c. 1100 – 1900’ (1997) 22 Anthropozoologica29 for an in depth description of the historical past and traditions behind swan possession. Sarah Laskow, ‘Why the Queen Owns All of the Swans in England’ (14 Might 2018) Atlas Obscura and Emily Cleaver, ‘The Fascinating, Regal Historical past Behind Britain’s Swans’ Smithsonian Journal (31 July 2017) additionally offered helpful background.
[2] Henry de Bracton, De Legibus et Conseutudinibus Angliae (‘On the Legal guidelines and Customs of England), GE Woodbine (ed), transl SE Thorne, (London: Publications of the Selden Society, 1968–77) l. 2, c. 1, fol. 9 [De Adquirendo Rerum Dominio, vol 2, 42]. Additionally mentioned in William Blackstone, Commentaries on the Legal guidelines of England (post-Elizabethan occasions).
[3] Act for Swans, 22 Edw IV c. 6: The Statutes of the Realm Quantity 2 (1377–1504), 474.
[4] Ordinances respecting Swans on the River Witham, within the County of Lincoln: along with an Unique Roll of Swan Marks, appertaining to the Proprietors on the mentioned Stream, in Archaeologia or Miscellaneous Tracts Referring to Antiquity, Quantity 16, 153.
[5] An Act in opposition to taking of Feasaunts & Patridgs (11 Hen VII c 17, 1495) in Statutes of the Realm Vol II, 581.
[6] An Acte for the higher execution of the intent and meaninge of former Statutes made againste shootinge in Gunnes, and for the preservation of the Recreation of Phesantes and Patridges, and in opposition to the destroyinge of Hares with Harepipes, and tracinge Hares within the Snowe (1 Jac I c 27, 1603–4) in Statutes of the Realm Vol II, 1055.
[7] The Case of Swans (1592) 7 Co Rep 15b.
[8] The Riverside Chaucer (Oxford: Oxford College Press, 1988) 26.
[9] A reference to Martial, Epigrams, 13.77.1.
[10] The Case of Swans (1592) 7 Co Rep 15b, 17b.
