In this blog post, we will be considering some unusual royal ‘ownership laws’ of the United Kingdom and the implications for our common law system. While we may have Thanksgiving Turkey and Christmas Goose, why not St. Patrick’s Day Swan?

 

The answer comes from the very aptly named ‘The Case of Swans’ 1592, during the reign of Elizabeth I.  Here, Elizabeth sought to exercise ownership over 400 swans from the Dorset river. However, the two individuals tasked with rounding them up – Dame Joan Young and Thomas Sauger– disputed this, claiming that the swans were their property. Their claim to the swans was as follows: Dame Joan Young’s first husband’s grandfather bought the estate (with the swans living on it) with Henry VIII’s blessing, and the estate passed to Dame Joan Young’s husband, and then to Young and Saunger when the husband died.

 

The court ruled that ‘all white swans not marked, which having gained their natural liberty, and are swimming in an open and common river, might be seised to the King’s use by his prerogative, because that Volatilia, (quae sunt ferae naturae) alia sunt regalia, alia communia: [because fowl, which are of a wild nature, are sometimes royal and sometimes common] and so aquatilium, aliasunt regalia, alia communia: [because water birds are sometimes royal and sometimes common] asa swan is a royal fowl; and all those, the property whereof is not known, do belong to the King by his prerogative…’.

 

In essence, the right to own the swans could only be granted by royal privilege, and not by inheritance. Therefore, Young and Saunger had no valid right to the swans, and given the swans were unmarked, were de-facto the property of the King.

 

The court did not rely on legislation, but simply asserted that this was ‘royal prerogative’ arising from custom. Of course, the 16 th century was a socially, culturally, and jurisprudentially very different time to the age we now inhabit. Even so, it is striking how one class of fowl could unilaterally be deemed ‘property of the King/Queen’ based on mere custom alone. This 1592 case cemented a shaky custom dating from the 12th Century, and remains good law today.

 

Illustrated by the Case of the Swans, the English common law is both a blessing and a bane. On the one hand, the common law provides a repository of case law dating back to the 11th century when the first Anglo-Norman legal cases were decided. If not reversed by subsequent judgments, each common law decision remains valid, even in the 21st century. This is a blessing in that it provides a wealth of knowledge to rely upon – the principles behind the legal rules we litigate today can be traced to their historical origins and understood in light of this. However, the common law may equally be considered a bane, as historical judgments decided according to approaches to judicial reasoning that may now be perceived as ‘alien’ and ‘weak’ remain binding on individuals today. We cannot today own swans without ‘royal privilege’ because some 16th Century Judge said they were royal on the basis of prior custom alone…?

 

Interestingly, the royal ownership of swans applies only to ‘Mute Swans’ – white swans characterised by distinctive orange beaks. Why only Mute Swans? Given this was a custom beginning in the 12th century, the reasoning behind this is inevitably unclear. Some have alluded to the mute swan’s ‘tranquillity and nobility’ and status as a luxury good in 12-16th century England. 1 They argue that because of this, the custom arose that these mute swans were so coveted as to be owned exclusively by the King/Queen. This probably has some truth to it. However, practically, Mute Swans are also the most common Swan in the U.K.  While three types of Swan call the UK home (the Mute, only the Mute Swan lives in the UK all year round. Practically this meant that when the Kings and Queens went on their royal walks and pointed to the nearest white swan saying “I want to own that” (que Miranda Richardson’s Blackadder portrayal of Elizabeth I) –more likely than not it was a Mute Swan.

 

In a way then, this custom and now common law principle of royal ownership over Mute Swans makes sense. But declarations of royal animal ownership did not end there in ‘The Case of Swans’.The court went on the rule that ‘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 fishes, and belong to the King by his prerogative.’ Thus, the King owns whales and sturgeons too (and porpoises and dolphins in case you were wondering). However, this was simply a restatement of a law already existing at the time, Prerogativa Regis of 1322 enacted by Edward II, and therefore at least stood on firmer legal ground.

 

“Also the King shall have Wreck of the Sea throughout the Realm, Whales and [great] Sturgeons taken in the Sea or elsewhere within the Realm, except in certain Places privileged by the King.” –Prerogativa Regis (Of the King’s Prerogatives) 1322

 

Overall, these two classes of animal – the Mute Swan and these categories of “Fish” are all the ones de-facto owned by the King/Queen. Are they particularly royal? Perhaps. Clearly though, these royal ownership laws serve to highlight how arbitrary the law can sometimes be. We have jurists, judges, and scholars who have dedicated their entire lives to studying, critiquing, applying, and improving the law but who remain firmly bound by the dictates of someone who lived over 400 years ago and their approach to legal reasoning and opinions on animals.

 

How often, really, does the layperson deal with mute swans, whales, porpoises, and sturgeons? Wellin 2004, an English Fisherman named Robert Davies caught a 264 lb sturgeon in Swansea Bay. Thankfully, he soon received notice from Buckingham Palace that he could use the catch ‘as he saw fit’ and sold it. 3 In the end, Robert was able to sell his catch as he wished. Even so, this was only with the Queen’s permission – have we really progressed since 400 years ago? While we may benefit from currently magnanimous Kings and Queens with not much interest in sturgeons, the Case of Swans remains good law, firmly binding us 400 years on. What other unusual case law remains good law, buried under the mountain of decisions made over the last millennia? Looking forward, what might we decide today that binds citizens 400 years into the future?

 

Maybe for now we should simply be thankful that Edward II and Royal Custom did not value Chickens and/or Tuna enough to decide to own them all.