We are accustomed to thinking of challenges to the royal prerogative as being a more recent legal development, something of the twentieth century. However, these two posts seek to establish that there there were at least two (ultimately unsuccessful) challenges to royal prerogative, dating back to the reign of Elizabeth I, involving mute swans (in this post) and mines (in the following post).
The Case of Swans
The Case of Swans involved a challenge to Queen Elizabeth I’s prerogative to own all unmarked mute swans in England and Wales, a strange aspect of the royal prerogative which still technically exists to this day, and which gave rise to a plethora of strange laws and customs. Before dealing with the case, the history of the prerogative will be outlined.[1]
The history of the royal prerogative to own mute swans
The monarch of England only has rights in relation to a particular kind of swan native to Britain, the mute swan (Cygnus olor). Other species of swan are not covered by the regal privilege. The origins of the monarch’s ownership of swans are shrouded in mystery. Gerald of Wales (‘Giraldus Cambrensis’) is the first to mention that mute swans are a ‘royal bird’ in the late 12th century. It is generally deemed part of the royal prerogative by custom, but was then entrenched in case law and statute.
In medieval times, ownership of swans became associated with status and royal favour. Of course, swans are wild animals, but the common law held that ‘qualified’ ownership of wild animals was possible in three different ways:
- By capturing or keeping an animal, or by taming the animal (per industriam). As long as the animal keeps returning to the person’s property (animum revertendi) it belongs to the person;
- By owning land upon which certain wild animals live and cannot leave (because they are young, injured, or looking after young) (known as ratione impotentiae et locimeaning ‘by reason of incapacitation and location’);
- By having the right to capture, hunt, or kill an animal. This may arise as part of the exclusive rights associated with owning land (ratione soli meaning ‘by reason of the soil or land’), or by reason of being granted a privilege (ratione privilegii meaning ‘by reason of privilege’, generally granted by the Crown). It is this latter principle which allowed the monarch to grant ownership of swans.[2]
In the 13th century, the King began to grant subjects the privilege to place ‘marks’ on wild mute swans’ beaks (in Latin, cigninota), allowing them to establish a qualified ownership in swans. In 1361, Thomas de Russham was given responsibility by the King for “the supervision and custody of all our swans as well as in the water of the Thames as elsewhere within our Kingdom.” After de Russham’s appointment, the monarch continued to appoint a Master of the King’s Game of Swans (also known as the Royal Swan-herd, Royal Swannerd, or Royal Swan-master). Initially, the king’s right to grant swan marks was customary, but a declaration in 1405 to 1406 entrenched it in statute.
Ownership of swans was a sign of status and power, and, after “Yeomen and Husbandmen, and other persons of little Reputation” attempted to claim ownership of swans, Edward IV passed the 1482 – 1483 Act for Swans.[3] The Act for Swans was a ‘sumptuary law’, restraining people from owning or consuming something based on social class, and designed to enforce social hierarchies. After it was enacted, the only people who could register swan marks or own swans were wealthy landowners who “have Lands and Tenements of Estate of Freehold to the yearly Value of Five Marks above all yearly Charges.” Anyone who did not qualify for ownership of swans under the new statute was to divest themselves of swans, and if this was not done before Michaelmas, the king’s subjects who qualified for ownership of the swans were entitled “to seise the said Swans as forfeit; whereof the King shall have one Half, and he that [shall seise] the other Half.”
At around the same time, people began to formally register swan marks. Only the monarch could claim unmarked mute swans, although the monarch also had several of his or her own marks. The only other group of people who can still legally hunt and eat unmarked mute swans are the fellows of St John’s College, Cambridge, a privilege granted for royalist support in days gone past. The walls of the College still have swan traps, reflecting this history.
The marking, recording and disposal of swans was known as ‘swan-upping’, and was conducted by the swan-master. People would catch the swans, record the ownership of the birds and their offspring, and place markings upon the beaks of the birds. It seems that the marks were achieved by inscription with a knife or by branding. The swan-master was to meticulously maintain the marks in an ‘upping book’.
The King formed special courts to settle disputes over swan ownership, called the Courts of Swan-mote or Swan-moot. The swan master was responsible for enforcing the King’s rights in relation to swans, and later appointed regional deputies. Strict rules promulgated by local swan owners protected the monarch’s swans from being harmed. As an example, the Ordinances made in respect of Swans on the River Witham in Lincoln in 1523 set out the following rules:
…that there shall no fisher, or other man that hath any ground butting on any water, or stream, where swans may breed, or of custom have bred, shall mow, shear, or cut any thackets, reed, or grass, within 40 feet of the swan’s nest, or within 40 feet of the stream, on pain of every such default to forfeit until the king, or his Deputy, xl [40 shillings]…
…that there shall no manner of person or persons, hawk, nor hunt, fish with dogs, or set nets, or snares, or engines, for no fish, or fowl, in the day time, or shoot in hand gun, or cross bow, between the Feast of Philip and James, and the Feast of Lammas, in pain for every such default, to forfeit unto the King or his Deputy, the thing that is set, and in money the sum of 6s. 8d.
…that there shall no hemp or flax be steeped in any running waters, nor within 40 feet of the water, nor any other filthy thing be thrown in the running waters, whereby the waters may be corrupt, nor no man to encroach on the running water, whereby the waters may be hurt, by any kind of means, in pain of every such default, to forfeit unto the King, or his Deputy, xl [40 shillings]…[4]
Stealing swan eggs was forbidden. During 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 year and a day and a fine, half to be paid to the king, and half to be paid to the person on whose land the nest was.[5] During the rule of James I, anyone who took ‘the Egges of any Phesant Partridge or Swannes out of the Neasts, or willinglie breake spoile or destroy the same in the Neaste’ risked punishment of three months’ imprisonment without bail unless they paid a fine of 20 shillings (to be applied for the use of the poor of the parish) for each egg taken or destroyed.[6]
The swan-master was also responsible for keeping swans safe in inclement weather.
This provides the necessary background to the 1592 Case of Swans,[7] where two nobles challenged Queen Elizabeth’s prerogative to claim unmarked swans.
The Case of Swans
The dispute arose when Dame Joan Young and Thomas Saunger were directed by the Sheriff of Dorset to round up 400 loose unmarked swans, because the Queen, Elizabeth I, sought possession of them. Young and Saunger sought to argue that they owned the unmarked swans. The right to these particular swans had once been held by the local Abbot of the Abbey of St Peter at Abbotsbury, an order of Benedictine monks. While this might seem strange to modern eyes, monks apparently enjoyed eating roast swan, as the description of the monk in the General Prologue to Chaucer’s Canterbury Tales shows:
Now certainly he was a fair prelaat;
He was nat pale as a forpyned goost.
A fat swan loved he best of any roost.[8]
The grandfather of Dame Joan’s first husband had assisted in the dissolution of the monastery, and Henry VIII had allowed him to purchase the estate. The estate had then passed to his grandson and heir (Dame Joan’s first husband, the late Giles Strangeways). Young and Saunger said that they had been given the right to the swans for one year by Strangeways. They asserted that they owned the swans because the landowner had received rights to the swans when the land had been purchased by him (ratione soli) whereas the Queen asserted that the sole manner in which ownership of mute swans could be conveyed was via her prerogative, if the person had been granted a privilege (ratione privilegii). Abbotsbury Swannery still exists, and it’s still owned by descendants of the Strangeways family. Many wild swans continue to live and build their nests there, but our current Queen chooses not to exercise her prerogative to claim them.
The Queen’s Commissioners decided that only the Queen could grant ownership of unmarked wild swans, as part of her prerogative, and if she chose to claim unmarked swans, then they were hers, and Young and Saunger could not refuse to round up the swans.
The Court also ruled on the ownership of cygnets. While at common law the rule is that ownership in offspring is conferred by ownership of the mother animal, swans are different. The Court said that if cygnets were the offspring of a pair of swans owned by two different people, then the cygnets were divided between them: one cygnet went to the owner of the cob (the male swan), one to the owner of the pen (the female swan), with the owner of the cob having the first pick. Alternatively, if there was only one cygnet which was disputed, the owner might pay half the value to the loser or might be promised the next bird from the match. If there were three cygnets, the person upon whose land the nest was built might have an entitlement to it, although the value would be less than the other two, as long as he paid a fee to the monarch. Sir Edward Coke explained this decision as relating to the faithfulness of swan pairs:
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,
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 therefore this case of the Swan doth differ from the case of Kine, or other brute beasts.[10]
The quote is from the Roman poet Martial, reflecting the classical belief that the mute swan was generally silent but sang a beautiful song upon its death. The ‘swan song’ is entirely mythical, but there is a germ of truth to the pair bonding: mute swans often stay paired for life, and rarely ‘divorce’.
However, ownership of swans was not the only royal prerogative under challenge during the rule of Elizabeth I. There had been an earlier challenge which raised not only the monarch’s entitlement to ore precious metal, but also the strange case of ‘Royal Fish’.
The next post will continue to look at historical challenges to the royal prerogative, demonstrating how – even though unsuccessful – such challenges were possible.
Katy Barnett is a Professor at Melbourne Law School.
[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 a detailed description of the history and traditions behind swan ownership. Sarah Laskow, ‘Why the Queen Owns All the Swans in England’ (14 May 2018) Atlas Obscura and Emily Cleaver, ‘The Fascinating, Regal History Behind Britain’s Swans’ Smithsonian Magazine (31 July 2017) also provided useful background.
[2] Henry de Bracton, De Legibus et Conseutudinibus Angliae (‘On the Laws 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]. Also discussed in William Blackstone, Commentaries on the Laws of England (post-Elizabethan times).
[3] Act for Swans, 22 Edw IV c. 6: The Statutes of the Realm Volume 2 (1377–1504), 474.
[4] Ordinances respecting Swans on the River Witham, in the County of Lincoln: together with an Original Roll of Swan Marks, appertaining to the Proprietors on the said Stream, in Archaeologia or Miscellaneous Tracts Relating to Antiquity, Volume 16, 153.
[5] An Act against taking of Feasaunts & Patridgs (11 Hen VII c 17, 1495) in Statutes of the Realm Vol II, 581.
[6] An Acte for the better execution of the intent and meaninge of former Statutes made againste shootinge in Gunnes, and for the preservation of the Game of Phesantes and Patridges, and against the destroyinge of Hares with Harepipes, and tracinge Hares in 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 University Press, 1988) 26.
[9] A reference to Martial, Epigrams, 13.77.1.
[10] The Case of Swans (1592) 7 Co Rep 15b, 17b.
Administrative Law in the Common Law World 