A TREATISE CONTAINING DIVERS Benefits and Privileges, and the power and authority granted to the Patentee, who hath his majesties Licence or Grant of Charter Warren under the great Seal of England. ¶ Collected out of divers of the Laws and Statutes of this Kingdom, and viewed and allowed by Sir HENRY YELUERTON Knight, his majesties Attorney General, for all those who take the Grant. ¶ To be delivered to them at the Office thereof, kept at the house of Sir HENRY BRETON Knight, one of the Commissioners for making of the said Grants, in DRURY Lane. Anno Dom. 1617. ¶ The Collections for the authority of the Free Warrens. ALl civil and well governed common wealths have ever and do necessarily nourish and maintain all things that tend to these two things, Profit and Pleasure, the one for the essence, the other for the honour of it; and all Princes and their Subjects of worthy and generous spirits, have had a vigilant eye by law & order to the preservation of those creatures that are created for pleasure, being for the solace and livelihood of man, and provided for him in his first creation, as necessary for the recreation of his mind, clothes for his outward ornament, or well tasted dishes for his pallet: For if man should have nothing but adesse, merely for nature to subsist, how poor and dejected a creature should he be, and how much inferior to many beasts in these outward things? Therefore hath the Creator provided from the beginning both the creatures and the means for man's delight, yet with a difference to man therein for some of his servants to exceed the rest, that they may have suppeditaments and ornaments of life, ad bene & melius esse, for recreation sake, which have been ever by the best spirits desired: For how base and unworthy a mind should that man have, being borne or advanced to good possessions & fortunes, that should subject himself to the drudgery and slavery of the earth in mere matter of getting and coveting, as if he were the true child of Adam, only in that necessitated quality of digging his living out of the earth, whereunto he was by God cursed, and so should in nothing else be elevated to more worthy consideration of better things instituted by the Creator? For as the all disposer by order & government upon earth hath appointed in every Monarchy (being the best government) degrees of honour & difference of ranks and qualities amongst men, so he hath to them in their several places and estimation thereunto annexed all such other outward supplies of pleasures and delights as are fit for such men, as Dear, Stag, Coney, Pheasant, Partridge, and the like; yet so as the wisdom of this and other civilized Kingdoms hath been such, as it hath given a more absolute power and privilege therein to the King, then to any man, though they are called to be ferae naturae, they are said more properly to be the Kings than any man's, as by way of interest by reason of his prerogative, of giving the subject liberty to enclose & contain them in each man's several ground, by Parks and Warrens, etc. and to give an interest and property to man therein to hunt, hawk, and chase them by licence in each man's own possession, and to distrain others from it, as shall appear from time to time by the laws of this Kingdom collected in this short discourse. But because it is the common humour of men to cast there eye only upon that thing that tendeth to matter of profit, or at least much more than pleasure and other contentment, and for that these manner of privileges of Free Warren, and the like, being the King's Graces and derivatives from the prerogative of the Crown, are not so well and usually understood, but conceived to be mere matter of pleasure, and not of benefit or profit, being not in the common use among men; it having been a thing so dainty and precious to be had heretofore, and so rarely granted, that subjects of the greatest and wisest sort of all ranks have been special suitors in all ages, to the Kings and Queens of this kingdom to obtain it, as may appear by several grants from time to time. And that no man may be ignorant, aswell of the benefit and profit, and present necessary use of it, aswell as the pleasure of it; I thought it not unfit to set down a summary, or brief repetorie of some of the Laws of this Kingdom, and the use and practise thereof from time to time in this case; whereby it shall appear, that by comparing our present with the times past, by the number of Parks and increase of game of all sorts, and the present state of this Kingdom, there will be much more use and necessity hereof in these times to all men, then in former; and doubt not but to give satisfaction that the profit and use hereof shall be great to all men for whom it is fit; who have Manors, Wastes, Commons, Park, or Warren, and the like, not licenced by his Majesty or his predecessors grant: For that to those who have Wastes, Lands, and Grounds barrened by Corn, or so by nature, the profit thereof may arise as the occasion shall be, and to those that have Parks and Warrens unlicensed, his majesties Writ of Quo warranto may and doth justly lie, being no more reason that any Subject should usurp a privilege proper and of right belonging to the King, than he theirs; and without this privilege or grant what recompense men usually have upon every Action of Trespass brought for killing Dear, Coneys, or the like, every man's experience teacheth him to his loss. Why then, what encouragement can any man have to plant or reduce to severalty Warren or Park upon his waste or lands fit for it, which may happy be very profitable, when being not licenced upon any spoil, killing or taking the Game, he cannot justify his Action against him for the same, nor recover damage; but as in an ordinary Action of Trespass, for coming upon the ground, which how poor a recompense it is for a man's loss, men do daily feel. All which shall sufficiently appear by the collection of the Laws herein: So as I may conclude, that whosoever shall obtain this grant from his Majesty, by virtue of his majesties Commission, being at the humble suit, and for the contentment of many of his Subjects, shall so join and furnish himself with pleasure and profit, that it may be truly said of him to hold a good course, according to that, Omne tulit punctum qui miscuit utile dulci. And it shall appear that this privilege and prerogative and interest of the Kings, is not only in Parks, Warrens, and in beasts; but also in fowl and fish in the waters and air, in those creatures the property whereof is unknown: Co. 7. ●o. 16 Volatilia enim quae sunt ferae naturae, alia sunt regalia, alia communia, & sic aquatiliu. A Swan is a royal fowl, and all those the property whereof is not known, belong to the King by his prerogative; so are _____ and Sturgeons royal fish, and belong to the King by prerogative; but a Subject may have a property in Swans marked with use upon his private wastes, and a Subject may prescribe to have a game of Swans within his Manor, aswell as a Warren or Park. And it is resolved that in some things which are wild by nature a man hath right of property, and in some of them he hath a right of privilege; and that there are three manners of rights of properties, to wit, property, absolute, property qualified, and property possessory; property absolute a man hath not in any thing which is wild by nature, but in those only which are tame by nature; property qualified and possessory a man may have in things which are wild by nature, and may attain thereunto two ways; by industry, and by reason of their disability and of the place; by industry, as by taking of them and making them tame; but in those a man hath but a qualified property so long as they remain tame, for if they get their former liberty & have not animum revertendi, the property is lost by reason of impotency and of the place. As where a man hath young Hernshawes, goshawks or the like, which are by nature wild and do Eyre in his ground, there he hath a possessory property in them, for in that case the owner shall have Trespass, for breaking his Wood and taking away his Hawks, etc. of such a price; But when a man hath wild beasts, ratione privilegij which grows by the Kings grant or prescription, as by reason of a Manor, park, etc. he hath no property in the Deer, Coneys, Pheasants or Partridges without the Kings grant: For in a Trespass he shall declare for entering into his Park, Warren, etc. and so many Deer, Coneys, Hares, Pheasants, Partridges, etc. and shall not stay him; for he hath no property in them, but they belong to him ratione privilegij, for his game and pleasure so long as they remain in the place privileged, and the heirs shall have them, and not the Executors. By this it appears that if a man have none of these properties in any wild beasts by nature, he cannot maintain Action for taking them away, and so is the Book expressly: For a man cannot prescribe to have all Pheasants and Partridges building, breeding, and using within his Manors, but must prescribe or plead that he hath a Free Warren of them within his Manors. A man may have a Warren in another man's ground by prescription, Stathamtith Warren 43. E. 3 but not by grant from the King in another man's ground; the King cannot grant a Warren to one, but in his own demesne lands. If any take a Partridge out of my Warren, my Writ shall be, Quod cepit leporarios perdices, Cuniculos, etc. and of all other beasts of the Warren: And if the trespasser be found guilty of any one of them, I shall have damage for every one of them, Pari ratione for Coneys and Dear. If a man be condemned for hunting in a Warren, 15. H. 7. 16. the Fine shall be greater than in a Trespass. If a Trespass be brought against one for entering into his warren, and for taking his Coneys, 10. H. 6. 16. if the plaintiff have no Warren by the Kings grant or prescript, Bro●●● action for ●●st. 48. temps E. 2. the defendant shall not be found culpable. It was agreed that a man may enclose his land, but he ought not to make any Park therein for the keeping of any wild beasts without the King's licence; for if he do, it shall be seized into the King's hands. Rastall s●t. M●●…tmaine St. 27. E. 1. De l●be●tatibus perq●rendis. By this Statute it was ordained that such as would purchase new Parks, should have Writs out of the Chancery to inquire upon the points accustomed in such things, and that the Inquests of lands or tenements that be worth yearly more than xx. shillings by extent, be returned into the Exchequer, C. fo. 310. & there they to make fine for the having of the Park, if the Inquest do pass for him that purchased them: and from thence it shall be certified unto the Chancellor or his Lieutenant. And that he took a reasonable fine therefore, according to the quantity of the thing, and after to deliver them; in like manner be it done of them that purchase and hold in chief. And if any will purchase any Warren or other liberty, they shall be sent into the Exchequer, and there shall make their fines: and from thence shall be sent to the Chancellor for that they ought to do therein. 10. H. 7. 30. An Action of Account will lie for the Dear and profits of the Park, and no man hath interest to take any Deer in a Park but the owner. And Guardian in Soccage shall render an account of the Dear: and in St. de magna charta, Guardians shall uphold and maintain Parks and Warrens, & shall render them to the heir when he comes to full age, full stored, at least in such wise as he found them, which is intended aswell of the game as the enclosure. And before the Statute of Westminster, the first, an Action of Trespass would lie for taking of Deer in an others soil, and damages should be assessed according to the offence by the discretion of the jurors; the enclosure of a ground makes it no Park, but the content comprised within the inclosesure in the Park; and the common form of granting a Park is to enclose so much land, and thereof to make a Park, which is by the Kings Grant and Licence only. An Action upon the Statute for trespassing in a Park, 18. H. 6. 21. whereby to recover the penalty of the Statute, will not lie, but where one hath a Grant from the King, or Prescription. For where one of himself doth imparke a ground, he can have but a general Action of Trespass for entering into the same, and what damage and recompense the plaintiff shall have in that case, every man's experience teacheth him. If the King licence a man to imparke two hundred acres of ground, Brooke 〈◊〉 76. 23. H. 8. and he do enlarge the same afterwards with a hundred acres more; this is no Park, Quere If any be attainted for Trespass in any Park, Rast. forest 18 St. West. cap. 20. 3. E. at the suit of the party, great and large amends shallbe awarded according to the Trespass, and three years imprisonment, and after shall make Fines at the King's pleasure (if he have whereof) and then shall find good surety that he shall not commit the like Trespass; and if he have not wherewith to make Fine after three years imprisonment, he shall find like surety; and if he cannot find like surety, he shall abjure the Realm. And if any guilty thereof be found fugitive and have no lands sufficient (whereby he may be justified) so soon as the King shall find it by Inquest, he shallbe proclaimed from County to County, and if he come not, he shallbe outlawed; and if none thereupon do sue within a year and a day, the King shall have the suit. And if such trespassour take tame beasts in a Park or other thing; let the common Law be executed upon him, as upon one for theft and robbery. Trespass, De male factoribus in parcis, 21. H. 7. lies only for Trespass done in Parks by the Statute of Westminster 1. Com. 124. and not for Trespasses done in Forests, and this Statute shallbe taken strict. Dyer fo. 238. Wye, and others were condemned upon the Statute of Westminster, the First, cap. 20. For the taking of a Sorerell, and ten Rascals in a Trespass. And the defendants being in the prison in the Marshalsey after three years were compelled to find sureties of London and Southwark, whereof two were Gentlemen and yeomen, by recognisance every surety in ten pound, and the defendant himself in forty pound to the King, that he should not offend against the Statute in any Park or Warren which was not licenced. Brook Trespass 106. 5. H. 5. 1. judgement in a Trespass of entering into a Park to course, although nothing was killed, was thus; xl. shillings for the costs and damages, and that the defendant should be imprisoned three years, and to pay a Fine to the King; and at the three years end to find sureties that he should not offend again: and if he cannot find sureties, then to foriure the Land. 22. H. 6. 59 Fitzh. 69. A man shall not have an Action of Trespass for taking or killing his Deer, unless he be a tame Deer; but an Action will lie for breaking into his Park being licenced, and taking away his Dear precij, etc. Cook. lib. 9 fo. 7 If a general Action of Trespass be brought for trespassing in Parks, the plaintiff shall not have judgement upon the Statute: And therefore the Action must be brought upon the Statute of Westminster 1. although the Statute give no form of Action. Rastall fo. 7. St. 1. H. 7. c. 7. If any person hunt in any Park, Warren, or Forest so licensed, by night, or with painted faces, visors, or other disguisements; If information thereof be given to any of the King's Council, or justices of Peace, they may thereupon make warrant to the Sheriff, to bring such person suspected before him who makes the warrant, or any other of the King's Council or justice of Peace within the same County, who may examine such offender, and of others in that behalf likewise offending. And if the person examined wilfully conceal the said hunt; or privy person with him defective therein; then such concealments shall be felony, and be determined as other felonies: And if he confess the truth, than such offences done by hunting shallbe against the King, but a Trespass finable, to be assessed by the justices of the next general Sessions in that County to be held: And if any rescous be made in hindering the execution of such warrant, whereby such warrant cannot be executed, such rescous is felony: And if any be convicted of hunting with painted faces, visors, or otherwise disguised, to the intent that they should not be known, or in time of night, the like punishment shallbe laid upon him, as if he were convict of felony. If any Forester, Keeper, or Warrener, Stamford. fo. 14 St. 21. E. 1. shall find any wandering within his liberty, in any Forest, Chase, park, or Warren, and such offender (being by him or them required to yield to the peace) will not, but continues his offence, or flees, or defends himself with force and Arms; although any such Forester, Keeper, or Warrener, or any other coming in their company and aiding such Foresters, Keepers, or Warreners, do kill any such offender, he shall not receive any punishment for the same; But if any Forester, etc. bearing malice to any man, will lie within his liberty, and will pretend against any passing through his lihertie that he had an intent to offend, and upon such malice do kill him; this is felony. A Proviso is there contained, Rastall husbandry & tillage 7. that this Statute of converting tillage into pasture, shall not extend to any lawful Park, meant, licenced, or ancient Warrens now used with Dear or Coneys, Fo. 238. 6. St. ●. Eliz. cap. 2. or to any other Parks heretofore lawfully used as parks, and now disparked, or to any other grounds that heretofore have been by any of her highness progenitors, or hereafter shall fortune to be made Park or Warren by licence of our Sovereign Lady the Queen her heirs and successors, with sufficient clause of dispensation for converting of tillage into pasture, and shallbe laid for the maintaining of Dear and Coneys without covin, and not for the keeping of any other cattle or beasts, than milk Kine for themselves or their Keeper, for provision of their houses, or for Horse, or Gelding, Mares, Colts, or Swine. St. 3. jacobi c. 13 If any in the night or by day wrongfully do enter into any Park or Ground, used or kept for breeding of any Dear or Coneys, and do unlawfully hunt, drive, or chase out, or take, kill or slay any Dear or Coneys, against the will of the owner, and shall be thereof convicted at the suit of the King, or of the party grieved; he shall suffer imprisonment of his body by the space of three months; and also shall yield and pay to the party grieved his triple damages and costs, and to be assessed by the justices, before whom he or they shall be convicted after the said three months expired, and shall find sufficient sureties for his good abearing, etc. for the space of seven years after, or else shall remain and continue still in prison, without Bail or mainprize, until they so do find sureties. And it shall and may be lawful to and for the party grieved to take his further remedy against all and every such offender for his loss and damage, and to recover the treble value of the same, as well before the justices of Oyer and Terminer, justices of Assize in their circuits, and justices of the Peace and jail Delivery, in the Sessions, or else where in any of the King's Courts of Record at Westminster; And upon true satisfaction of the treble damages or upon confession thereof by the party offending, before the justices in open Sessions, in the County where the offence was committed, it shall be at the liberty of the party grieved, to release at his pleasure the suretieshippe of the good behaviour at any time within the seven years, or before. No person not having lands of ten pound dear yearly value, or worth in goods and chattels, St. 3. jacobi c. 13 two hundred pounds, shall use any Gun, Bow, or crossbow to kill any Dear or Coneys, or shall keep any Buck-stall, or Engyn, Hayes, Gabents, Pursnet, Firrets, or Conny-dogs; except such as have any ground imparked with Pale or Hedge, used for keeping and breeding of Dear and Coneys; the increase of which Coneys shall amount to the clear yearly value of forty shillings to be let at least, or Keepers or Warreners in their Parks, Warrens, or Grounds, belonging to their charge. And if any such person so offend, any one seized of lands, in Fee, Fee-tail, or for life, of the yearly value of one hundred pounds, may take to his own use for ever, any such Gun, Bow, or Crossbow. justices of Oyer and Terminer, St 3. jacobi c. 13 justices of Assize in their circuits, and justices of Peace and jail Delivery in their Sessions, shall have authority to inquire of these offences done in their grounds, and award Process thereupon, as well upon Indictment taken before them, as by bill of Complaint, Information, or any other Action; in which suit or Action, no essoin, Protection, or wager of Law is allowed. And if any be bound, as aforesaid to the good behaviour, if at any time within the seven years, before the justices of Peace of the said County where the offence was committed, or some of them in open quarter Sessions, do acknowledge his offence, and confess himself to be sorry for the same, and satisfy the party grieved for his Act: Then the same justices have power in that their open Session, or any other, if it seem good to their discretions to discharge the party so bound, and his Recognisance and Bond. Provided, that this Act of 3 jacobi, do not extend to any Park, or enclosed ground, made, or hereafter to be made or used for Dear or Coneys; without the Grant or Licence of the King, his heirs or successors. FINIS.