114 ARGUMENT OF THE UNITED STATES. 



&c., he hath not any property in the deer, or conies, or pheasants, there- 

 fore in his action he .shall not say suos, for he hath no property in them 

 and they do belong 1 to him for his game and pleasure so long as they 

 remain in the privileged place. 



It was resolved that all white swans not marked, which have gained 

 their natural liberty, and are swimming in an open and common river, 

 might be seized to the King's use by his prerogative, because Volatilia 

 (quce sunt ferce naturce) alia sunt regalia, alia communi a; * * * 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 fish, and belong to the King by his prerogative. 

 * * * But it was resolved also that the subject might have prop- 

 erty in white swans not marked, as some may have swans not marked 

 in his private waters, the property of which beloEgs to him and not 

 to the King; and if they escape 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, c. 1, fol. 9): Si anion ani 

 malia /era facta fuerint mansueta, et ex consuetudine cunt et redeunt, 

 volant et revolant, (tit sunt cervi, cigni, pavones, et eolumbee, et hujus- 

 modi) eousque nostra intelligantur quamdiu habuerint animum revertendi. 

 But if they have gained their natural liberty, and are swimming in 

 open and common rivers, the King's officer may seize them in the open 

 and common river for the King; for one white swan without such pur- 

 suit as aforesaid can not be known from another; and when the prop- 

 erty of a swan can not be known, the same being of its nature a fowl 

 royal, doth belong to the King; and in this case the book of 7 H, G, 27, b, 

 was vouched, where Sir John Tiptoft brought an action of trespass for 

 wrongful taking of his swans; the defendant pleaded that he was seized 

 of the lordship of S, within which lordship all those whose estate he 

 hath in the said lordship had had time out of mind all estrays being 

 within the same manor; and we say, that the said swans were estraying 

 at the time in the place where, etc., and we as landlords did seize 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 seized of the manor of B, joining 

 to the lords! iip of S, and we say, that we and our ancestors, and all 

 those, etc., have used time out of mind 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 one 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 laches 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 

 trespass was of wrongful taking his swans, scil. Quare cignos suos, etc. 



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 manor of another. 



4. That a swan may be an estray, and so can not any other fowl, as I 

 have read in any book. 



