ALl ciuil and wel gouerned common wealths haue euer and doe necessarily nourish and mainetaine all things that tend to these two things, Profit and Pleasure, the one for the es­sence, the other for the honor of it; and all Princes and their Subiects of worthy and generous spirits, haue had a vigilant eie by law & order to the preseruation of those creatures that are created for pleasure, being for the solace and liuelihood of man, and prouided 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 haue nothing but adesse, meer­ly for nature to subsist, how poore and deiected a creature should hee be, and how much inferiour to many beasts in these outward things? Therefore hath the Creator proui­ded from the beginning both the creatures and the meanes for mans delight, yet with a difference to man therein for some of his seruants to exceed the rest, that they may haue suppeditaments and ornaments of life, ad bene & melius esse, for recreation sake, which haue beene euer by the best spirits desired: For how base and vnworthy a mind should that man haue, being borne or aduanced to good possessi­ons & fortunes, that should subiect himselfe to the drudge­rie and slauerie of the earth in meere matter of getting and coueting, as if he were the true childe of Adam, only in that necessitated qualitie of digging his liuing out of the earth, whereunto he was by God cursed, and so should in nothing [Page 2] else bee eleuated to more worthy consideration of better things instituted by the Creator? For as the all disposer by order & gouernment vpon earth hath appointed in euery Monarchy (being the best gouernment) degrees of honor & difference of ranks and qualities amongst men, so he hath to them in their seueral places and estimation thereunto an­nexed all such other outward supplies of pleasures and de­lights as are fit for such men, as Deere, Stagge, Cony, Pheasant, Partridge, and the like; yet so as the wisedome of this and other ciuilized Kingdomes hath been such, as it hath giuen a more absolute power and priuiledge therein to the King, then to any man, though they are called to bee feræ na­turæ, they are said more properly to be the Kings then any mans, as by waie of interest by reason of his prerogatiue, of giuing the subiect liberty to inclose & conteine them in each mans seuerall ground, by Parkes and Warrens, &c. and to giue an interest and propertie to man therein to hunt, hawke, and chase them by licence in each mans own possession, and to distreine others from it, as shall appeare from time to time by the lawes of this Kingdome collected in this short discourse. But because it is the common hu­mour of men to cast there eie onely vpon that thing that tendeth to matter of profit, or at least much more then pleasure and other contentment, and for that these maner of priuiledges of Free Warren, and the like, being the Kings Graces and deriuatiues from the prerogatiue of the Crowne, are not so well and vsually vnderstood, but con­ceiued to bee meere matter of pleasure, and not of benefit or profit, being not in the common vse among men; it ha­uing beene a thing so deintie and precious to be had heere­tofore, and so rarely granted, that subiects of the greatest and wisest sort of all rankes haue beene speciall sutors in all ages, to the Kings and Queens of this kingdome to obteine it, as may appeare by seuerall graunts from time to time. [Page 3] And that no man may bee ignorant, aswell of the benefit and profit, and present necessarie vse of it, aswell as the pleasure of it; I thought it not vnfit to set downe a summa­rie, or briefe repetorie of some of the Lawes of this King­dome, and the vse and practise thereof from time to time in this case; whereby it shall appeare, that by comparing our present with the times past, by the number of Parkes and increase of game of all sorts, and the present state of this Kingdome, there will be much more vse and necessitie hereof in these times to all men, then in former; and doubt not but to giue satisfaction that the profit and vse heereof shall be great to all men for whom it is fit; who haue Ma­nors, Wastes, Commons, Parke, or Warren, and the like, not licensed by his Maiestie or his predecessors grant: For that to those who haue Wastes, Lands, and Grounds barrened by Corne, or so by nature, the profit thereof may arise as the occasion shall be, and to those that haue Parkes and Warrens vnlicensed, his Maiesties Writ of Quo war­ranto may and doth iustly lie, being no more reason that any Subiect should vsurpe a priuiledge proper and of right belonging to the King, then hee theirs; and without this priuiledge or graunt what recompence men vsually haue vpon euery Action of Trespasse brought for killing Deere, Conies, or the like, euerie mans experience teacheth him to his losse. Why then, what incouragement can any man haue to plant or reduce to seueraltie Warren or Parke vpon his waste or lands fit for it, which may happlie be ve­rie profitable, when being not licensed vpon any spoile, killing or taking the Game, hee cannot iustifie his Action against him for the same, nor recouer damage; but as in an ordinarie Action of Trespasse, for comming vpon the ground, which how poore a recompence it is for a mans losse, men do daily feele. All which shal sufficiently appeare by the collection of the Lawes heerein: So as I may con­clude, [Page 4] that whosoeuer shal obtaine this grant from his Ma­iesty, by vertue of his Maiesties Commission, being at the humble suit, and for the contentment of many of his Sub­iects, shall so ioyne and furnish himselfe with pleasure and profit, that it may bee truely sayde of him to hold a good course, according to that, Omne tulit punctum qui miscuit vtile dulci. And it shal appeare that this priuiledge and pre­rogatiue and interest of the Kings, is not onely in Parkes, Warrens, and in beasts; but also in fowle and fish in the waters and ayre, in those creatures the propertie whereof is vnknowne:Co. 7. [...]o. 16 Volatilia enim quæ sunt feræ naturæ, alia sunt regalia, alia cōmunia, & sic aquatiliu. A Swan is a royal fowle, and all those the propertie whereof is not knowne, belong to the King by his prerogatiue; so are [...] and Sturgions royall fish, and belong to the King by prerogatiue; but a Subiect may haue a propertie in Swans marked with vse vpon his priuate wasts, and a Subiect may prescribe to haue a game of Swans within his Manor, aswell as a Warren or Parke. And it is resolued that in some things which are wilde by nature a man hath right of propertie, and in some of them he hath a right of priuiledge; and that there are three maners of rights of properties, to wit, proper­tie, absolute, propertie qualified, and propertie possessory; propertie absolute a man hath not in any thing which is wilde by nature, but in those onely which are tame by na­ture; propertie qualified and possessorie a man may haue in things which are wilde by nature, and may atteine there­unto two waies; by industry, and by reason of their disabi­litie and of the place; by industry, as by taking of them and making them tame; but in those a man hath but a qualified propertie so long as they remaine tame, for if they get their former libertie & haue not animum reuertendi, the property is lost by reason of impotency and of the place. As where a man hath young Hernshawes, Goshawkes or the like, [Page 5] which are by nature wilde and do Eyre in his ground, there hee hath a possessory property in them, for in that case the owner shall haue Trespasse, for breaking his Wood and taking away his Hawkes, &c. of such a price; But when a man hath wilde beasts, ratione priuilegij which growes by the Kings graunt or prescription, as by reason of a Manor, Parke, &c. he hath no property in the Deere, Conies, Phe­sants or Partridges without the Kings graunt: For in a Trespasse hee shall declare for entring into his Parke, War­ren, &c. and so many Deere, Conies, Hares, Phesants, Par­tridges, &c. and shall not stay him; for he hath no proper­tie in them, but they belong to him ratione priuilegij, for his game and pleasure so long as they remaine in the place priuiledged, and the heires shal haue them, and not the Ex­ecutors. By this it appeares that if a man haue none of these properties in any wilde beasts by nature, he cannot maintaine Action for taking them away, and so is the Booke expresly: For a man cannot prescribe to haue all Phesants and Partridges building, breeding, and vsing within his Manors, but must prescribe or plead that hee hath a Free VVarren of them within his Manors.

A man may haue a Warren in another mans ground by prescription,Stathamtith Warrē 43. E. 3 but not by graunt from the King in another mans ground; the King cannot graunt a VVarren to one, but in his owne demesne lands.

If any take a Partridge out of my VVarren, my Writ shall be, Quod cepit leporarios perdices, Cuniculos, &c. and of all other beasts of the VVarren: And if the Trespassor be found guiltie of any one of them, I shall haue damage for euery one of them, Pari ratione for Conies and Deere.

If a man be condemned for hunting in a VVarren,15. H. 7. 16. the Fine shall be greater then in a Trespasse.

If a Trespasse be brought against one for entring into his warren, and for taking his Conies,10. H. 6. 16. if the plaintiffe haue [Page 6] no VVarren 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 inclose his land, but hee ought not to make any Parke therein for the keeping of a­ny wilde beasts without the Kings licence; for if he doe, it shall be seised into the Kings hands.

Rastall s [...]t. M [...]tmaine St. 27. E. 1. De l [...]be [...]tatibus perq [...]rendis.By this Statute it was ordeined that such as would pur­chase new Parkes, should haue VVrits out of the Chaun­cery to inquire vpon the points accustomed in such things, and that the Inquests of lands or tenements that be worth yerely more then xx. shillings by extent, be returned in­to the Exchequer,C. fo. 310. & there they to make fine for the hauing of the Parke, if the Inquest doe passe for him that purcha­sed them: and from thence it shall bee certified vnto the Chauncellor or his Leiftenant. And that he took a reasona­ble fine therefore, according to the quantity of the thing, and after to deliuer them; in like maner be it done of them that purchase and holde in chiefe. And if any will pur­chase any VVarren or other libertie, they shall be sent into the Exchequer, and there shall make their fines: and from thence shall be sent to the Chancellour for that they ought to doe therein.

10. H. 7. 30.An Action of Account will lie for the Deere and profits of the Parke, and no man hath interest to take any Deere in a Parke but the owner. And Gardian in Soccage shall render an account of the Deere: and in St. de magna charta, Gardians shal vphold and maintaine Parks and VVarrens, & shal render them to the heire when he comes to full age, full stored, at least in such wise as hee found them, which is intended aswell of the game as the inclosure. And before the Statute of Westminster, the first, an Action of Trespasse would lie for taking of Deere in an others soyle, and dam­mages should bee assessed according to the offence by the discretion of the Iurors; the inclosure of a ground makes it [Page 7] no Parke, but the content comprised within the inclose­sure in the Parke; and the common forme of graunting a Parke is to inclose so much land, and thereof to make a Parke, which is by the Kings Graunt and Licence onely.

An Action vpon the Statute for trespassing in a Parke,18. H. 6. 21. whereby to recouer the penaltie of the Statute, will not lye, but where one hath a Graunt from the King, or Pre­scription. For where one of himselfe doth imparke a ground, hee can haue but a generall Action of Trespasse for entring into the same, and what dammage and recom­pence the plaintife shall haue in that case, euery mans ex­perience teacheth him.

If the King licence a man to imparke two hundred acres of ground,Brooke [...] 76. 23. H. 8. and hee doe inlarge the same afterwards with a hundred acres more; this is no Parke, Quere

If any bee atteinted for Trespasse in any Parke,Rast. forrest 18 St. West. cap. 20. 3. E. at the suit of the partie, great and large amends shalbe awarded according to the Trespasse, and three yeeres imprison­ment, and after shall make Fines at the Kings pleasure (if hee haue whereof) and then shall finde good suretie that he shall not commit the like Trespasse; and if hee haue not wherewith to make Fine after three yeeres imprisonment, he shall finde like suretie; and if hee cannot finde like sure­tie, he shall abiure the Realme. And if any guiltie thereof be found fugitiue and haue no lands sufficient (whereby he may be iustified) so soone as the King shall finde it by In­quest, he shalbe proclaimed from Countie to Countie, and if he come not, he shalbe outlawed; and if none thereupon doe sue within a yeere and a day, the King shall haue the suit. And if such trespassour take tame beasts in a Parke or other thing; let the common Law bee executed vpon him, as vpon one for theft and robberie.

Trespasse, De male factoribus in parcis, 21. H. 7. lies onely for Tres­passe [Page 8] done in Parkes by the Statute of Westminster 1.Com. 124. and not for Trespasses done in Forrests, and this Statute shalbe taken strict.

Dyer fo. 238. Wye, and others were condemned vpon the Statute of Westminster, the First, cap. 20. For the taking of a Sorerell, and ten Raskals in a Trespasse. And the defendants being in the prison in the Marshalsey after three yeres were com­pelled to finde sureties of London and Southwarke, wher­of two were Gentlemen and yomen, by Recognizance e­uery suretie in tenne pound, and the defendant himselfe in fortie pound to the King, that he should not offend against the Statute in any Parke or VVarren which was not li­censed.

Brook Trespasse 106. 5. H. 5. 1.Iudgement in a Trespasse of entring into a Parke to course, although nothing was killed, was thus; xl. shillings for the costs and dammages, and that the defendant should be imprisoned three yeeres, and to pay a Fine to the King; and at the three yeeres end to finde sureties that hee should not offend againe: and if he cannot finde sureties, then to foriure the Land.

22. H. 6. 59. Fitzh. 69.A man shall not haue an Action of Trespasse for taking or killing his Deere, vnlesse hee be a tame Deere; but an Action will lie for breaking into his Parke being licensed, and taking away his Deere precij, &c.

Cooke. lib. 9. fo. 7If a generall Action of Trespasse bee brought for tres­passing in Parks, the plaintife shal not haue Iudgement vp­on the Statute: And therefore the Action must be brought vpon the Statute of Westminster 1. although the Statute giue no forme of Action.

Rastall fo. 7. St. 1. H. 7. c. 7.If any person hunt in any Parke, Warren, or Forrest so licenced, by night, or with painted faces, visors, or other disguisements; If information thereof be giuen to any of the Kings Councell, or Iustices of Peace, they may there­upon make warrant to the Shiriffe, to bring such person [Page 9] suspected before him who makes the warrant, or any other of the Kings Councell or Iustice of Peace within the same Countie, who may examine such offendour, and of others in that behalfe likewise offending. And if the person examined wilfully conceale the sayde huntings; or pri­uie person with him defectiue therein; then such con­cealements shall bee felony, and bee determined as other felonies: And if he confesse the truth, then such offences done by hunting shalbe against the King, but a Trespasse fineable, to be assessed by the Iustices of the next generall 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 conuicted of hunting with painted fa­ces, visors, or otherwise disguised, to the intent that they should not be knowne, or in time of night, the like pu­nishment shalbe laid vpon him, as if hee were conuict of felony.

If any Forrester, Keeper, or Warrener,Stamford. fo. 14 St. 21. E. 1. shall finde any wandring within his liberty, in any Forrest, Chase, Parke, or Warren, and such offendour (being by him or them re­quired to yeeld to the peace) will not, but continues his of­fence, or flees, or defends himselfe with force and Armes; although any such Forrester, Keeper, or Warrener, or any other comming in their company and ayding such Forresters, Keepers, or Warreners, doe kill any such of­fendour, he shall not receiue any punishment for the same; But if any Forrester, &c. bearing malice to any man, will lie within his libertie, and will pretend against any passing through his lihertie that hee had an intent to offend, and vpon such malice doe kill him; this is felony.

A Prouiso is there conteined,Rastall husban­dry & tillage 7. that this Statute of conuer­ting tillage into pasture, shall not extend to any lawfull Parke, meant, licensed, or ancient Warrens now vsed with [Page 10] Deere or Conies,Fo. 238. 6. St. [...]. Eliz. cap. 2. or to any other Parkes heeretofore law­fully vsed as Parkes, and now disparked, or to any other grounds that heeretofore haue beene by any of her High­nesse progenitors, or heereafter shall fortune to bee made Parke or Warren by licence of our Souereigne Lady the Queene her heires and successours, with sufficient clause of dispensation for conuerting of tillage into pasture, and shalbe laid for the mainteining of Deere and Conies with­out couin, and not for the keeping of any other cattle or beasts, then milch Kine for themselues or their Keeper, for prouision of their houses, or for Horse, or Gelding, Mares, Colts, or Swine.

St. 3. Iacobi c. 13If any in the night or by day wrongfully doe en­ter into any Parke or Ground, vsed or kept for bree­ding of any Deere or Conies, and doe vnlawfully hunt, driue, or chase out, or take, kill or sley any Deere or Co­nies, against the will of the owner, and shall bee there­of conuicted at the suite of the King, or of the partie grieued; he shall suffer imprisonment of his body by the space of three moneths; and also shall yeeld and pay to the partie grieued his treble dammages and costs, and to bee assessed by the Iustices, before whom hee or they shall bee conuicted after the saide three moneths expi­red, and shall finde sufficient sureties for his good abea­ring, &c. for the space of seuen yeeres after, or else shall remaine and continue still in prison, without Bayle or Maineprise, vntill they so doe finde sureties. And it shall and may bee lawfull to and for the partie grieued to take his further remedie against all and euerie such offendour for his losse and dammage, and to recouer the trebble va­lue of the same, as well before the Iustices of Oyer and Terminer, Iustices of Assise in their circuits, and Iusti­ces of the Peace and Gaole Deliuery, in the Sessions, or else where in any of the Kings Courts of Record at [Page 11] Westminster; And vpon true satisfaction of the treb­ble dammages or vpon confession thereof by the par­tie offending, before the Iustices in open Sessions, in the Countie where the offence was committed, it shall bee at the libertie of the partie grieued, to re­lease at his pleasure the suretieshippe of the good be­hauiour at any time within the seuen yeeres, or be­fore.

No person not hauing lands of tenne pound deere yeerely value, or worth in goods and chattels,St. 3. Iacobi c. 13 two hundred pounds, shall vse any Gun, Bow, or Crosse-Bow to kill any Deere or Conies, or shall keepe any Buck-stall, or Engyn, Hayes, Gabents, Pursnet, Fir­rets, or Conny-dogs; except such as haue any ground imparked with Pale or Hedge, vsed for keeping and breeding of Deere and Conies; the increase of which Conies shall amount to the cleere yeerely value of for­tie shillings to bee letten at least, or Keepers or War­reners in their Parkes, Warrens, or Grounds, belon­ging to their charge. And if any such person so of­fend, any one seised of lands, in Fee, Fee-tayle, or for life, of the yeerely value of one hundred pounds, may take to his owne vse for euer, any such Gun, Bow, or Crosse-Bowe.

Iustices of Oyer and Terminer, St 3. Iacobi c. 13 Iustices of Assise in their circuits, and Iustices of Peace and Gaole Deliue­rie in their Sessions, shall haue authoritie to inquire of these offences done in their grounds, and award Pro­cesse thereupon, as well vpon Inditement taken before them, as by bill of Complaint, Information, or any o­ther Action; in which suit or Action, no Essoine, Pro­tection, or wager of Law is allowed. And if any bee bound, as aforesaid to the good behauiour, if at any time within the seuen yeeres, before the Iustices of [Page 12] Peace of the saide Countie where the offence was committed, or some of them in open quarter Ses­sions, doe acknowledge his offence, and confesse himselfe to bee sorrie for the same, and satisfie the partie grieued for his Act: Then the same Iustices haue power in that their open Session, or any o­ther, if it seeme good to their discretions to dis­charge the partie so bound, and his Recognizaunce and Bond.

Prouided, that this Act of 3 Iacobi, doe not extend to any Parke, or inclosed ground, made, or hereafter to bee made or vsed for Deere or Conies; without the Graunt or Licence of the King, his heires or successors.