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 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. 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, 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, 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 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 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 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. 7 If 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 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 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. 13 If 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 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 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.