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Abolishing Some More Obsolete Crown Prerogatives

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Abstract

The Crown had many prerogatives (privileges) which other legal and natural persons did not have, due to the pre-eminent role of the sovereign. Some of these the Crown delegated to its subjects. That is, it franchised them, in return for money. In modern times—with the sovereign only having a formal role—it needs to be considered whether these Crown prerogatives should pass to the control of Parliament. Also, where they are obsolete, their abolition. A previous article has argued for the abolition of many obsolete prerogatives relating to the military. This article argues that the prerogatives of the Crown to levy pontage (a toll for the building, and repair, of bridges) and murage (a toll for the building, and repair, of town and city walls for defensive purposes) should be abolished. So too, the right of the Crown to waifs (stolen goods cast away by a thief in flight) and estrays (animals wandering in any manor or lordship whose owner is unknown). Also, that the prerogative of the Crown to unmarked mute swans in open water be restricted to the Thames—where it is only presently exercised. Finally, this article argues for the abolition of the palatinates of Lancaster, Chester and Durham—since the prerogatives once given to them by the Crown have now reverted to the same—and for the abolition of various long obsolete prerogatives given to the Cinque Ports.

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Notes

  1. See McBain (2011a). See also McBain (2010). And McBain (2011b).

  2. In other cases it allowed boroughs, cities and towns to impose tolls (see Tolls for Pontage and Murage).

  3. Chitty (1820), pp.118–119.

  4. See also Blackstone (1979), vol 2, p. 37, ‘Franchise and liberty are used as synonymous terms: and their definition is, a royal privilege, or branch of the king’s prerogative, subsisting in the hands of a subject’.

  5. Chitty, p. 118. He cites Finch (1759), p. 164, ‘all franchises are derived from the crown…A franchise is a royal privilege in the hands of a common person’.

  6. Ibid. He cites Bracton (1240), vol 2, p. 167. See also Blackstone (1979), vol 2, p. 37 and Yale (1976), p. 201. A franchise by prescription could arise after 20 years un-interrupted enjoyment. Bealey v Shaw (1805) 6 East 208 at 215 (102 ER 1266), Weld v Hornby (1806) 7 East 195 at 199 (103 ER 75); Goodtitle v Baldwin (1809) 11 East 488 at 491 (103 ER 1092) (all per Ellenborough CJ). See also Halsbury (1994), vol 8(2), para 879 and the Prescription Act 1832.

  7. Chitty (1820), p. 119.

  8. Ibid, p. 389. Also, Nyali Ltd v A-G [1956] 1 QB 1, 14 per Lord Denning.

  9. Halsbury (1994), vol 8(2), para 879. Also, Chitty (1820), pp. 118–119 and Blackstone (1979), vol 2, pp. 37–38. It may be noted that: (a) deodand (the forfeiture to the Crown of animals or inanimate things which occasioned the death of a human being) was abolished in 1862; (b) courts leet were abolished by the Courts Act 1971; and (c) forfeitures to the Crown for treason, felony etc. were abolished by the Forfeiture Act 1870. Thus, franchises in respect of these Crown prerogatives no longer exist.

  10. See n 1 (second article). The primary justification for the Crown having such a prerogative was its need to make coinage of gold and silver. However, since 1672, coinage in other metals has existed and, today, coins are no longer of gold and silver. Thus, the rationale no longer exists.

  11. Ibid (first article). This prerogative is no longer exercised by the Crown. Also, whales and sturgeon are now European protected species.

  12. This is now governed by the Treasure Act 1996.

  13. It was contentious the extent to which the sovereign possessed the right to game. See Chitty (1820), p. 135 et seq. Blackstone (1979), vol 2, pp. 38 et seq.

  14. See also Chitty, pp. 142–144 and Blackstone (1979), vol 2, pp. 39–40 (distinction between free fishery (exclusive right of fishing in a public river) and a several fishery (free fishery with ownership of the soil also).

  15. Abbot of Strata Mercella’s Case (1591), 9 Co Rep 24a (77 ER 765). Also, Duke of Northumberland v Houghton (1870) LR 5 Exch 127, 131 per Martin B (several fishery does not merge on being resumed by the Crown). See also AG v Trustees of British Museum [1903] 2 Ch 598 at 612 per Farwell J. Also, Halsbury (1994), vol 8(2), para 879.

  16. Examples are: wrecks, waifs and estrays, royal mines, swans, royal fish.

  17. Examples are: markets, fairs, counties palatine, Cinque ports, pontage, murage.

  18. Staunford (1607).

  19. See n 6. See also Brecknock (1764). For other early texts (a number of variable worth) see Maxwell (1955).

  20. See n 3.

  21. Statham (c. 1490); Fitzherbert (1577); Brooke (1586); Rolle (1668). See also Hughes (1660); Sheppard (1759); Nelson (1725a); Bacon (1798); Viner (1741–1757); (Comyns 1822); Lilley (1765).

  22. Coke (1824).

  23. See n 4. See also Stephen (1841) which updates Blackstone (1979).

  24. Halsbury (1994), vol 8(2), para 879.

  25. Anson (1935); Barendt (1998); Bradley and Ewing (2006); De Smith and Brazier (1998); Phillips and Jackson (2001); Le Sueur and Sunkin (1997); Jennings (1959); Marshall (1971); Sunkin and Payne (1999).

  26. Brougham (1861); Hallam (1897); Jolliffe (1948); Keir and Lawson (1979), ch 2 (introduction); Maitland (1963); Robertson (1935); Stubbs (1874); Taswell-Langmead (1960); Thomson (1938); Wilkinson (1958). See also Allen (1849).

  27. Halsbury (1994), vol 8(2), para 880.

  28. See also Nyali Ltd v A-G [1956] 1 QB 1 (toll for the use of a pontoon bridge granted by the Government of Kenya to a company. Held toll was a prerogative grant of pontage). Since protectorates no longer exist, the sentence in Halsbury is effectively otiose.

  29. Ibid, at p. 13.

  30. From the latin tolnetum, telonium or theolonium. See also Yale (1976), p. 275 et seq. Also, Gunning (1833) and Woolrych (1829).

  31. Pollock and Maitland (1984), vol 1, pp. 661–663.

  32. Pavage was a toll charged for the paving of highways and streets. See Welch (1909).

  33. Pollock and Maitland (1963), p. 662 cites the citizens of Scarborough who had taken murage for 2 years beyond the time granted to them. In 1325, a request for murage by them was refused by the king.

  34. Passage (passagium) was a toll for ferrying (the passage) of men and animals over water. Webb’s Case (1612) 8 Rep 46b (77 ER 541) (the word sometimes also referred to toll thorough, however, see n 40). There was also cheminage (toll for passing through a forest); traverse (toll for passing through the limits of a town or wardship); lastage (lestage) (toll on traders at fairs and markets, the ‘last’ being a measure by which several kinds of solid goods were sold); stallage (toll for erecting, or having, a stall in a fair or market which stallage included piccage (toll for breaking the ground to erect such a stall). See generally, Gunning (1833).

  35. Boscage was a toll imposed on wood brought into the town or city. Ewage (also called aquage) was a toll paid for passage over water. Tronage was a toll for the weighing of merchandise on a public weighing scale (a tron). Scavage was a toll levied on merchant strangers on the goods they offered for sale. It was prohibited by 19 Hen VII c 8 (1503–1504) (rep).

  36. Such as where pontage (and murage) was not rightfully claimed. eg. Statute of Westminster (1275), ch 31 ‘Touching citizens and burgesses, to whom the king [Edward I, 1272–1307] or his father [Henry III, 1216–1272] hath granted murage to enclose their towns, which take such murage otherwise than it was granted unto them, and thereof be attainted; it is provided, that they shall lose their grant for ever, and shall be greviously amerced unto the king.’ See also Coke (1824), vol 2, p. 219. See also Capitula Itineris (temp incert, but of the time of Edward I (1272–1307)) and Articles of the Office of Escheator (Capitula Estaetrie) (temp incert), re the usurpation of pontage and murage respectively. The Mirror of Justices, Selden Society vol 7, (c 1290) p. 26 stated that larceny included ‘those who take pavage, murage, chiminage, carriage or other kind of custom to a greater amount than is right.’ Outrageous tolls (mala tolneti) are recorded as having been levied in the reign of Henry III (1216–1272), see Viner, vol 20, p. 296.

  37. Britton (1290), vol 1, p. 62 in a chapter on ‘franchises’ states:‘Let inquiry also be made, what persons in the country claim to have …murage, or pontage…or to be quit of …murage, or pontage, or who claim any kind of liberty more than other people.’ A franchisee could be required to prove such a franchise by a writ of quo warranto. ‘If in their answer they allege long possession, or vouch others to warrant who allege long tenure, in such case judgment shall be stayed for the determination of us and our council, whether such answer be a continuance of the wrong done to our crown, or a title of right in the tenants.’ See also Coke (1824), vol 2, pp. 281, 496 and Mayor of Nottingham v Lambert (1738) Willes 111 at 117 (125 ER 1083). This includes where a party claims a toll by prescription (ie long usage). Gunning (1833), p. 3 ‘in a number of cases in which a toll of this nature has been acquiesced in for a very long period, it has been found impossible to support it when tried by the text, ‘What consideration does the claimant show for his demand ?’

  38. 2 Wils KB 296 at 299 (95 ER 820). See also Gunning (1833), ch 1.

  39. Nyali Ltd v A-G [1956] 1 QB 1, 13–14 (and authorities cited). If an unreasonable amount of toll was imposed, indictment lay and it seems that if any excess was secured, payment could be required to be made to the exchequer. For an excess taking of pontage at Ferrybridge in 1363, see Selden Society, vol 40, pp. 317–319.

  40. Mayor of Nottingham v Lambert (1738) Willes 111 (125 ER 1083). Mayor of Yarmouth v Eaton (1763) 3 Burr 1402 (97 ER 896). See also Coke (1824), vol 2, pp. 219–222 and Gunning (1833), ch 2.

  41. Lord Berkley’s Case (1562) 1 Plowd 223, 236 (75 ER 339).

  42. James v Johnson (1677) 2 Mod 143 (86 ER 989) (alleged toll appertenant to a manor); Steinson v Heath (1694) 3 Lev 400 (83 ER 750) (alleged toll traverse by way of pontage over river Ware); Pelham v Pickersgill (1787) 1 TR 660 (99 ER 1306) (right of lord of manor to impose toll traverse by way of pontage upheld); Brett v Beales (1829) 1 M and M 416 (173 ER 1208) (King John [1199–1216], who had title to the town of Cambridge and to toll traverse within it, by charter granted to the burgesses of Cambridge the town together ‘with all its appurtenances’. Held the words were sufficient to pass the toll traverse). See also Gunning (1833), ch 3.

  43. James v Johnson (1677) 2 Mod 143 (86 ER 989).

  44. Nyali Ltd v A-G [1956] 1 QB 1 at 18. Lord Denning stated, p. 17 ‘If a man makes a new bridge where there was none before it is a toll traverse; but if he only repairs an old bridge where the public has crossed from time immemorial, it is toll thorough’. This is not felicitously worded, since the issue is not whether the bridge is new or old. If the bridge is on privately owned land and a toll is imposed in lieu of letting the general public use the bridge, it is a toll traverse. If the bridge crosses a public highway it is toll thorough (which is why the Crown is exempt from the toll in the case of the latter). Lord Denning quoted Hammerton v Dysart [1916] 1 AC 57,78, 79 per Lord Parker for his statement. However, Lord Parker phrased things differently.

  45. See generally, Cooper (2006). In particular, p. 127 et seq (pontage). Also, Jusserand (1897), ch 1. See also Ballard (1913); Ballard and Tait (1923) and Weinbaum (1943).

  46. Webb’s Case (1612) 8 Rep 45b at 46b (77 ER 541). See also Fitzherbert (1793), from which I cite 227 and Case of Customs (1608) Davis 6, 13a (80 ER 496).

  47. See n 28.

  48. Eg. R v John Hampden (1637) 3 State Trials, at pp. 900–901. Also, Wilkes v Kirby (1700) (125 ER 837) 2 Lutw 1519. See also Viner, vol 16, p. 578.

  49. Riley (1868), p. 43 cites a case in 1300 before the Mayor and Alderman of London of a bridge in Ward Street, London. It was held the Prior of the Holy Trinity was obliged to repair it, on the basis he had done so time out of mind and because, by his charters, he had common way there. See also Yale (1736), p. 254. Where a party claims a right by way of prescription, it has to still prove it. See n 37. Also, Gunning (1833), chs 2 and 3.

  50. See n 6.

  51. The Anglo-Saxon kings imposed three military duties on all men of England (known as the trinoda necessitas), viz: (a) attendance on the fyrd or local militia; (b) the making of roads; and (c) the repairing of bridges and fortifications. See McKechnie (1914), pp. 299–304. This was continued under the Normans.

  52. See Cooper (2006), chs 1 and 2.

  53. Eg. the Crown granted pontage for 5 years to the keeper of the causeway of Holland (in West Lancashire) in 1301, for 5 years to the men of Walton-le-Dale in 1302 (the town lies on the south bank of the river Ribble in Lancashire), for 3 years to the town of Yarm in 1305 (the town lies on the south bank of the river Tees). See Given-Wilson (2005). For pontage charged in 1281 for the repair of London Bridge, see Viner, vol 16, p. 578. See also Cooper (2006), pp. 109–119 and Sharpe (1901), Letter Book C (1291–1309), pp. 76 (charge of 2d on wine passing under or beyond London Bridge for its repair) and 166 (farming of London Bridge pontage). See generally, Pierce (2001).

  54. Ballard, pp. 180–194 who lists exemptions from pontage being granted pre–1228.

  55. See Cooper (2006), Appendix 2 (he lists, from the patent tolls, 371 grants of pontage in the period 1228–1400). See also pp. 128 and 140 (the peak year for grants of pontage was 1383). King (2007), p. 744 ‘Both pavage and pontage apparently ceased to be granted from about the time Henry VI [1422–1471] attained his majority; certainly no grants were enrolled. A few grants appear in the charter rolls in the reign of Edward IV [1461–1483]. Thus, the bailiffs of Bridgwater were allowed a toll for the repair of their bridge in 1468, the last case of this found’.

  56. Cooper (2006), p. 70 et seq.

  57. Ballard and Tait, p. 254–255. See also London v Lynn (1789) 1 H Blackstone 208 (126 ER 119) and Comyns (1822), vol 5, p. 19 and vol 7, p. 460. The exception was prisage (customs imposed on imported wine which were abolished in 1809). A person could secure a writ de essendo quietum de theolonio (writ of being quit of toll) to prove exemption. See also Fitzherbert (1793), at 227. The Mayor of London could also grant a certificate to London citizens excusing them from paying toll in remote parts in which they traded in. See Jacob (1732), p. 151. Also, Gunning (1833), pp. 93, 99–100.

  58. A charter of Edward I of 28 May 1298, granted ‘to our said citizens [of London], that they and their successors, citizens of the said city, be for ever free and quit of pannage, pontage and murage throughout all the realm, and all our dominions.’ See Ballard and Tait, p. 255; Birch (1884), p. 43; Anon (1765); Pulling (1842), p. 67; Bohun (1723), pp. 11 and 36.

  59. Ballard and Tait, p. 260. See also, Hueffer and Hyde (1930), pp. 3, 292.

  60. Eg. de Haas and Hall (1970), Selden Society, vol 87, p. 202 (town of Cambridge exempt from, inter alia, pontage and murage). Weinbaum (1943), pp. xliv-xlv (town of King’s Lynn partially exempt from murage). For Truro, see Mayor of Truro v Reynalds (1832) 8 Bing 275 (131 ER 407) (inhabitants exempt from tolls save for London and Truro tolls). For many others, see Ballard, pp. 180–194; Ballard and Tait, pp. 254–268 and Weinbaum (1943), pp. 180–191.

  61. Fitzherbert (1793), at 227D. Cf. Calendar of Letter Books, p. 76 and Letter Book D, p. 226.

  62. Ibid. See also Coke (1824), vol 2, p. 3; Comyns (1822), vol 3, p. 531 and Yale (1976), pp. 277–278.

  63. Ibid, at 228. See also Coke (1824), vol 2, p. 697 (explanation of Act), Viner, vol 2 (extract on ancient demesne), p. 482 and vol 20, pp. 292–293 (toll) and Gunning (1833), pp. 89–93. See also, R v Bettsworth (1680) 2 Show 75, pl 59 (89 ER 803). Ancient demesne comprised land held in the actual possession of the Crown in the reigns of Edward the Confessor and William I (1066–1087). See also Cooper, p. 77. The tenure of tenants in ancient demesne was abolished in 1922.

  64. Yale (1976), p. 278 ‘by distraining the things liable, or sometimes by indictment of the parties refusing.’ See also Gunning (1833), ch 8.

  65. Ibid. Also, Cooper (2006), p. 136.

  66. Darcy v Allen (1602) Noy 173, 176 (74 ER 1131) cited in Viner, vol 17, p. 106. The same applied to murage, it could no longer be charged if the wall no longer continued for the defence of the subject.

  67. Viner, vol 20 (toll), p. 295. See also Simpson v AG [1904] AC 476 (toll asserted for passing through private locks). Murage was the same. It was for the protection of the public and not for individual citizens.

  68. An Act concerning the Amendment of Bridges in Highways, s 1. See also Dalton (1619), pp. 34–36. King, p. 744 notes that the system under this legislation continued until responsibility for bridges passed to county councils in the late 19th century.

  69. Ibid, s 2. See also Cooper (2006), p. 148.

  70. Eg. An Act for the Erecting and Building a Bridge over the River Wye 39 Eliz c 24 s 6 (1597–1598) (rep) (2d per cart etc.). For the payment of pontage to pay for a bridge across the Thames from Fulham to Putney, see 12 Geo 1 c 36 (1726) (rep) (every coach and 6 horses to pay 2s, every horse 2d and foot passenger 1d etc.).

  71. See n 28. The Anglo Saxon equivalent of murage was burhbot (duty of landowners to help repair county borough walls). See Ballard, pp. xlix-l.

  72. Oxford English Dictionary (OED), ‘A toll or tax levied for the building or repairing of the walls of a town. Also, the right granted to a town for the levying of such a toll.’

  73. Webb’s Case (1612) 8 Rep 45 at 47b (77 ER 541) ‘Murage, scil, toll for making of a wall for safeguard of men in time of war or tumult.’

  74. See n 36.

  75. Coke (1824), vol 2, p. 221. See also Viner, vol 20, p. 297. Yale (1976), p. 277 ‘murage, a toll specially granted, upon the petition of the city or borough, of all things coming to the town, for the inclusion of or repairing of the inclosure indefensibly of the same city or borough.’ Also, at p. 212.

  76. Yale (1976), p. 277.

  77. Ibid, p. 277. He cited YB (1412) 13 Hen 4, fo 14, pl 11, see Seipp Index, no 1412.011. Translations of many of the 22,000 cases in the Yearbooks have been published online by professor David Seipp in the form of an Index, see www.bu.edu/law/faculty/scholarship/yearbooks.

  78. King, pp. 740–741 mentions grants for murage being given to the towns of Shrewsbury, Bridgnorth, Stafford, Worcester, Oxford, Hereford, Gloucester, Ludlow, Bristol and Chester.

  79. See Given Wilson, (wordsearch, the word ‘murage’). For example, grants of murage for 7 years to: Carlisle (in 1293), Dublin (in 1295), Carmarthen (in 1295), Castledermot (in 1295) and Bridgnorth (in 1302).

  80. Such as Hay-on-Wye, Oswestry, Radnor, Abergavenny, Carmarthen, Monmouth, Knighton, Montgomery and Clun. King, p. 741 notes that few such grants were made after the conquest of Wales by Edward I [1272–1307] in 1283.

  81. For the bridges of the City of London see Stow (1603), pp. 7–12.

  82. Crieghton (2007), pp. 43–44 estimated that, between the 11th–16th centuries, some 230 towns (about a third of all towns in England) possessed wall defences.

  83. Ibid, p. 45. Sometimes, the townspeople vigorously objected to murage. Ibid, p. 53.

  84. The Statute Law Database (www.legislation.gov). makes no mention of ‘murage’ in current general legislation or in SI’s. Nor do the commercial law databases of Sweet & Maxwell (Westlaw) and Butterworths (Lexis-Nexis).

  85. The English Historical Review (see oas.oxfordjournals) cites various references to murage in historical articles. However, most refer to the toll in the 14th and 15th centuries. The last grant to Canterbury of murage seems to have been in 1402, see Google, Canterbury’s City Walls. The last to Chichester was in 1443, see (Salzman (1935), vol 3, pp. 71–82.

  86. Clifton Suspension (Clifton Suspension Bridge Acts 1861,1888, 1952); Humber (Humber Bridge Acts of 1959, 1971, 1973); Itchen (Southampton Corporation Act 1973, Hampshire Act 1983); Severn (Severn Bridge Act 1992); Tamar (Tamar Bridge Acts 1957, 1979 and 1998). See generally, Statutory Tolled Undertakings and Road User Charging Schemes in the UK (Dept for Transport pub, 2010). The Dartmouth (Queen Elizabeth II) bridge is operated pursuant to a road user charge scheme under the Transport Act 2000.

  87. Aldwark (Aldwark Bridge Act 1772); Dunham (Dunham Bridge Acts 1830 and 1994); Kingsland/Shrewsbury (Shrewsbury (Kingsland) Bridge Acts 1873 and 1880); Rixton and Warburton (Rixton and Warburton Acts 1863 and 1867), Swinford (Swinford Bridge Act 1767); Whitchurch (Whitchurch Bridge Acts 1792 and 1988); Whitney-on-Wye (Whitney on Wye Bridge Acts 1780 and 1797).

  88. Cleddau (Pembrokeshire County Council 1965 and Dyfed Act 1987). Another, Penrhyndeudraeth (Briwet) is about to be replaced.

  89. For useful websites see www.igreens.org.uk/tollbridges.htm. Also, Wikipedia (toll bridges). The position of Eling Toll Bridge in Hampshire is uncertain since the local council who have taken it over seem unsure under what legislation they have the right to impose a toll.

  90. Bill of Rights 1688, art 1, ‘That levying money for or to the use of the Crown by [pretence] of prerogative without grant of parliament for longer time or in other manner than the same is or shall be granted is illegal.’ See also the Petition of Right 1627, s 8.

  91. Halsbury (1994), vol 12(1), para 371. It refers to Foxley’s Case (1600) 5 Co Rep 109a (77 ER 224) ‘And the reason that waif is given to the king, and that the party shall lose his property in such case is, for default in the owner that he doth not make fresh suit to apprehend the felon.’ See also Hale (1736), p. 541, Comyns (1822), vol 7 (waife), pp. 630–631 and Nelson (1725b), pp. 193–194.

  92. Blackstone (1979), vol 1, p. 287 (14th ed), (who notes that this can apply even after 20 years), following Staunford (1557), p. 186 (waiff). See also Stephen (1841), vol 1, p. 561.

  93. Ibid. Also, Hawkins (1739), pp. 450, ‘Personal things liable to forfeiture shall be forfeited…by being waived or left by a felon in his flight, from those who actually do pursue him, or are apprehended by him so to do, whereby he forfeits the goods so waived, whether they be his own proper goods, or the goods of others stolen by him, which shall not be restored to the rightful owners but upon a proper prosecution’. See also Hale (1736), p. 541.

  94. Foxley’s Case, n 91, (a case involving 20 stolen sheep which the Crown sought to claim as waifs against the true owner). See also Blackstone (1979), vol 1, p. 287.

  95. Fitzherbert (1577), title ‘Estreay’. Blackstone (1979), vol 1, p. 287 ‘The goods of a foreign merchant, although stolen and thrown away in flight, shall never be waifs: the reason whereof may be, not only for the encouragement of trade, but also because there is no wilful default in the foreign merchant’s not pursuing the thief, he being generally a stranger to our laws, our usages, and our language.’

  96. Halsbury cites Hawkins (1739), p. 451 and Foxley, n 91, p. 109b. Reference is also made to Dickson’s Case (1627) Het 64 (124 ER 346) and to Davies’ Case (1598) Cro Eliz 611 (78 ER 854). See also Chitty (1820), pp. 146–148 and 151–152.

  97. Halsbury (1994) only cites Foxley’s Case in 1600, n 91. See also Nelson (1725a), pp. 78–80 and Kitchin (1653) (waife) who only cite very early cases.

  98. Halsbury (1994), vol 12(1), para 372. See also Blackstone (1979), vol 1, p. 287; Comyns (1822), vol 7 (estray under the title waife) and Fleta (1290), p. 100.

  99. Blackstone (1979), vol 1, pp. 288–289. See also Stephen (1841), vol 1, pp. 561–562.

  100. For cases see: Taylor v James (1607) Godb 150 (99 ER 944) (horse); Pleydell v Gosmoore (1623) Hut 67 (123 ER 1106) (horse); Brownlow v Lambert (1599) Cro Eliz 716 (78 ER 950) (cow); Burdet v Mathewman (1633) Clay 107; Anon (1612) 12 Co Rep 101 (77 ER 1375) (ox); Bagshawe v Goward (1607) Cro Jac 147 (79 ER 129) (horse); Oxley v Watts (1785) 1 TR 12 (99 ER 944) (horse); Henly v Walsh (1706) 2 Salk 686 (91 ER 583) (horse); Harvy v Blackdale (1611) 1 Brown 236 (123 ER 775) (horse).

  101. Blackstone (1979), vol 1, p. 288.

  102. See also Taylor (n 100) and Pleydell (ibid). Swans were valuable animals in olden times, as food. Today, they would likely be categorized the same as dogs and cats, i.e. not accounted as of value for the purposes of the law.

  103. Brooke (1586) (title ‘estray’) nos 3,4,5,10. See also Brownlow (n 100) and Burdet (ibid). See also Finch (1759), p. 177 and Kitchin (1653) (estrey).

  104. Ibid. See also Sir Henry Constable’s Case (1601) 5 Co Rep 106a, 108b (77 ER 218) (a case of wreck).

  105. Bacon, vol 5, pp. 517–518.

  106. Rolle (1668), vol 1, p. 889.

  107. See Bagshawe, Anon and Pleydell (all ns 100). He can milk and shear them, however. See Comyns (1822), vol 7, pp. 634–635.

  108. Rolle (1668), vol 1, p. 889. See also Nicholson v Chapman (1793) 2 Hy Bl 254 (126 ER 536). Also, Anon, Taylor and Pleydell (all ns 100). Also, Blackstone (1979), vol 1, p. 297.

  109. See Palmer (2009), ch 26 and 31.004.

  110. This will include swans, such as those marked in private waters. Case of Swans (1592) 7 Co Rep 15b (77 ER 435).

  111. See generally, Halsbury (1994), vol 2 (5th ed), paras 711–714 and para 720. Also, vol 12(1) (4th ed), para 230.

  112. Case of Swans, n 110. See also Viner, vol 16, p. 597. This right is preserved by the Wild Creatures and Forest Law Act 1971, s1 which abolished ‘any prerogative right of Her Majesty to wild creatures (except royal fish and swans), together with any prerogative right to set aside land or water for the breeding, support or taking of wild creatures.’

  113. See the website of the monarchy (www.royal.gov.uk) and a publication ‘Swan Upping’ on that website. The authority is not cited.

  114. Ibid, at 16a. The law on the sovereign’s prerogative in this case accords with ‘The Laws Orders and Customs of Swans’ for which see Witherings (1664). Witherings was the master and governor of the royal game of swans and cygnets throughout England. These laws are said have been taken from a book which Lord Buckhurst delivered to Edward Clerke of Lincoln’s Inn in 1582. It was marked on its reverse ‘Taken out of an ancient book remaining with Master Hambledon, sometime Master of Swans.’ In particular, rule 5 stated ‘all swans, that are clear of bill, without mark or sign mark, are the king’s only; whether they be pinioned, or flying swans.’ Rule 6 stated ‘all stray swans, which no man can challenge by his mark, those are the king’s only; and they are to be seized for the king…’.

  115. Swans could be taken as estrays. See Right of Crown To Stray Animals (Estrays). See also Coke (1824), vol 4, p. 480 and Viner, vol 10, pp. 488, 501, 503. For early caselaw on swans, see YB 31 Hen 6 (1452) pl 10 fo 12a–b, Seipp (n 77) no 1452.029; YB 12 Edw 4 pl 10 fo 4b–5a (1472), Seipp no 1472.018 and YB 2 Ric 3 pl 42 fo 15b–16b (1484), Seipp no 1484.042. See also Brooke, title ‘custom’ nos 61 and 77; title ‘prescription’, no 100 and title ‘trespass’ no 418.

  116. Case of Swans, n 110, 16b ‘the subject may have property in white swans not marked, as some may have swans not marked in his private waters, the property of which belongs to him, and not to the king: and if they escape out of his private waters into an open and common river, he may bring them back and take them again…But if they have gained their natural liberty, and are swimming in open and common rivers, the king’s officer may seize them in the open and common river for the king.’

  117. An Act of 1482 (22 Edw 4 c 6) (rep) provided that no person other than the son of the king should have any mark or game of swans unless he had freehold lands in the yearly value of 5 marks.

  118. Case of Swans (n 110), 17a.

  119. Chitty (1820), pp. 144–145. See also Viner, vol 17, pp. 260 and 294.

  120. Viner, vol 17, p. 90 cited Edward III (1327–1377) in 1357 granting to one CW for 7 years all wild signets unmarked between Oxford and London. For a grant by Richard II (1377–1399) in 1393 of all wild swans unmarked in the county of Cambridge, see Case of Swans, n 110, at 18a.

  121. See n 113. ‘Upping’ refers to taking the swans from out of the water.

  122. The swans are ringed for the Vintners and Dyers, those of the Crown are left unmarked. It appears the grant to the Dyers was given 1473 and that to the Vintners c. 1483. The publication ‘Swan Upping’ (n 113) notes, p. 1, ‘By the 1850s few people retained the rights to own swans’.

  123. Ibid, p. 4, apart from the Vintners and Dyers only ‘the Ilchester family which owns the swans breeding in the colony at Abbotsbury in Dorset has maintained their franchise.’ This swannery was established by monks who built the monastery at Abbotsbury during the 1040’s (dissolved 1539). Its purpose was to farm swans for banquets. This swannery was exempted from the Act of 1482 (n 117) by Elizabeth I (1558–1603).

  124. The idea that the sovereign is entitled to the best things, simply because they are sovereign, may be found in the judgment in Case of the Mines (1567) 1 Plowd 310, 316 et seq (75 ER 472).

  125. Berwick and Whooper swans in particular are protected at all times, see sch 2. BBC News (31 January 2006) reported that three men from Chester were charged under this Act with killing 29 mute swans. The Game Act 1831, s 24 makes it an offence to destroy swans’ eggs. See also its precursor, An Act against taking Pheasant and Partridge 1495 (11 Hen 7 c 17) (rep), s 2. The swans at Abbotsbury (n 123) would not be affected by any abolition of the Crown prerogative since their swans are unmarked wild swans which freely come and go.

  126. See e.g. The Independent, 31 December 2006.

  127. The county palatine of Pembroke was abolished by the Laws in Wales Act 1535. See Coke (1824), vol 4, p. 221. The county palatine of Hexam was united with Northumberland in 1572. Ibid. The isle of Ely was not a county palatine but only a royal franchise, the bishop having, by grant of Henry I (1100–1135) jura regalia within the isle of Ely, giving the bishop the right to exercise jurisdiction over all criminal and civil causes. This was ended by the Liberty of Ely Act 1837. See also Coke (1824), vol 4, p. 220; Blackstone (1979), vol 1, p. 115 and Stephen (1841), pp. 121,123. The Duchy of Cornwall is not a palatinate. See generally, Holdsworth (2009), vol 1, pp. 109–120 (general discussion).

  128. See generally, Halsbury (1994), vol 8(2) para 307 and 12(1) para 248.

  129. Alcock v Cooke (1829) 5 Bing 340, 354 per Best CJ (130 ER 1092) ‘there is no distinction between the privilege of the king as Duke of Lancaster, and the prerogative of the king as king of England.’ For the reason why the Duchy was preserved, see Blackstone (1979), vol 1, p. 114 and Coke (1824), vol 4, p. 205.

  130. Bracton, vol 2, p. 346 ‘one in the realm who has regalia potestas in all matters, saving lordship to the lord king as prince, as earls palatine.’

  131. Blackstone (1979), vol 1, pp. 113–114. See also Stephen (1841), vol 4, pp. 120–123.

  132. Halsbury (1994), vol 12(1) para 248 ‘This palatinate is now vested in the Crown, and the title of the Crown to foreshore therefore rests upon the title of the Earls of Chester.’ Also, vol 8(2), para 308. See generally, Blackstone (1979), vol 1, p. 114; Coke (1824), vol 4, pp. 211–215 (a useful commentary); Yates (1854) and Thomas (1852). For Hugh D’Avranches, Ist Earl of Chester (d 1101), see DNB (2004). See also 21 Ric 2 c 9 (1347–1348). Also, Holdsworth (2009), pp. 117–120.

  133. Law Terms Act 1830, s 41. Also, n 6, Halsbury (1994), vol 8(2), para 307.

  134. Coke (1824) , vol 3, p. 216 (a useful commentary). See also Fraser (1956) 31 Speculum 329–342; Fordyce (1857); GT Lapsley (1900) and Scammell (1966).

  135. Durham (County Palatine) Act 1836, s 1. Also, Halsbury (1994), vol 12(1), para 298. For why this ‘half-way-house’ was undertaken, see Lapsley (1900), pp. 203–208.

  136. Durham County Palatine Act 1858, s 5 (rep). Holdsworth (2009), p. 113 ‘In 1858 the separation from the crown was abolished; and the franchise was vested in the crown in right of the crown.’

  137. Halsbury (1994), vol 12(1), para 299. The revesting of the rights in the Crown did not affect the right of any person holding a patent of any office to receive any fee or stipend granted by that patent out of the revenues of the bishopric of Durham. Thus, the bishopric continued to be subject to the same fees and stipends in respect of any office in the county of Durham as they were subject to pre-1836. See Durham (County Palatine) Act 1836 s 6 (rep).

  138. Halsbury (1994), vol 12(1) para 248 and Durham County Palatine Act 1858. As well as Holy Island not being transferred the transfer did not: (a) transfer or vest in the Crown the right or title of the bishop of Durham, or of the Ecclesiastical Commissioners, in or to any land reclaimed from the flow of the tide in any navigable river or upon the shore of the sea within the county of Durham from which the bishop had before 21 June 1836 actually received rent after the land had been reclaimed. This is now vested in the Church Commissioners; (b) any existing leases affecting the land transferred (on their determination, the property was to become subject to the Acts regulating Crown land). Ibid, para 250.

  139. Halsbury (1994), vol 8(2), para 539 ‘Within the county palatine of Durham the interests of the crown are represented by the Attorney General or Solicitor General of the County Palatine of Durham. It is apprehended that similar principles are applicable to the law officers of the County Palatine of Durham as in the case of the Attorney General of the Duchy of Lancaster’.

  140. Halsbury (1994), vol 12(1), para 300 et seq. See also Coke (1824), vol 4, p. 204 (for a useful commentary) and Hardy (1845).

  141. As Blackstone notes, vol 1, p. 113, the Duchy of Lancaster was created in favour of Henry Plantagenet (1310–1361, first earl, and later, duke of Lancaster) whose heiress John of Gaunt had married. It was afterwards confirmed in Parliament to honour John of Gaunt, who was created Duke of Lancaster on the death of his father-in-law. See DNB.

  142. Halsbury (1994), vol 12(1) para 300. Also, Coke (1824), vol 4, p. 204 et seq. The Crown’s title to the foreshore abutting on the land of the county palatine rests either on its prima facie right or on grants made to the Dukes of Lancaster before the possession of that dukedom became part of the possessions of the Crown. See Halsbury (1994), vol 12(1) para 246.

  143. See Alcock v Cooke (n 128). Also, Coke (1824), vol 4, p. 205. For the reason why the Duchy was preserved, see Blackstone (1979), vol 1, p. 114 and Coke (1824), vol 4, p. 205.

  144. Halsbury (1994), vol 8(2), para 538. The Attorney-General of the Duchy is appointed by patent under the seal of the Duchy to represent the interests of the Crown in respect of the Duchy. See also AG of the Duchy of Lancaster (1884) 14 QBD 195. For the court of the Duchy Chamber of Lancaster (a court of equity which still exists, in theory, but which has not sat since 1835), see Blackstone (1979), vol 1, p. 78 and Holdsworth (2009), p. 116.

  145. Outlawry was abolished in 1938. The Criminal Law Act 1967 abolished felonies.

  146. Justices of eyre, assize and goal delivery have been abolished.

  147. Forfeitures for treason and felonies were abolished by the Forfeiture Act 1870. Certain powers of counties palatine were revested in the Crown pursuant to the Jurisdiction in Liberties Act 1535, ss 1–3 (27 Hen 8 c 24, rep).

  148. Coke (1824), vol 4, p. 204. See also Lapsley (1900), pp. 3–11.

  149. The courts of Chancery of the county palatines of Lancaster and of Durhgam were merged with the High Court by the Courts Act 1971, s 41 (the Durham court of Pleas had been transferred to the High Court in 1873, see 36–37 Vict c 65). See also Lapsley (1900), p. 206.

  150. See n 132.

  151. That said, the opportunity could also be taken to abolish the court of the Duchy Chamber (n 144) by merging it with the High Court, since its retention does not perform any useful function.

  152. See n 139. The first Attorney-General appointed for Durham appears to have been in 1307, see Lapsley (1900), p. 179.

  153. Noted by Blackstone (1979), vol, 1, p. 79. See also Hall v Norwood (1663) 1 Sid 166 (82 ER 1034) (concerning the jurisdiction of the hundred court of Dover).

  154. As Anson, vol 2, pt 2, p. 217 points out, in olden times, before the appointment of the first lord high admiral in 1408 ‘The Cinque Ports were liable for the defence of the narrow seas, and beyond this, fleets were collected, manned, and disciplined as occasion might require.’ See also Burrows, ch 2.

  155. Green (1984), p. 20. The first comprehensive charter appears to have been in 1278, ibid, p. 22. See generally Jeake (1728).

  156. See, in particular, Green (1984), pp. 12–13 (duty to provide 57 ships each with a crew of 21 men and a boy for 15 days).

  157. Green (1984), pp. 73–74.

  158. Fleta (1290), p. 101 ‘Toll, quittance from toll everywhere in the kingdom.’

  159. See n 1 (first of the articles in the King’s LJ).

  160. Fleta (1290), p. 101, ‘Soke means the franchise of a court of tenants, which we call soka. Sake, quittance of suit to county and hundred courts.’ Walker (1980) (definition of sac and soc) ‘Words commonly included in early charters denoting a kind of jurisdictional right granted. Maitland’s view was that the Anglo-Saxon sac and soc included the right to hold a petty court, to compel tenants to attend it and to take profits from it, but this view has been doubted. In the thirteenth century the words seem to describe jurisdiction such as every lord had by implication and even without a royal charter.’ Cf. Goebel (1976). See also Holdsworth (2009), vol 1, p. 17 (formula of sacu and socn probably stands for the right to hold a court to deal with the offences by people to whom the grant relates, certainly for the profits thereof). See also Downer (1972), p. 323.

  161. Downer (1972), p. 335 ‘Tol. The right to receive a tax on the sale of goods within the privileged person’s property’. Also, ‘Theam. The taking of the profits where a person charged with wrongfully possessing goods was able to vouch to warranty; it may have included jurisdiction over the matter as well.’ Goebel (1976), p. 370 ‘‘toll’ as used in the writs looks like a metonymy for the right to have a market.’ Cf.Walker (1980) (definition of toll and team) ‘Words used in Norman times to grant jurisdiction. Toll mean the right to take tollage from one’s villeins, and team probably the right to hold a court in which a stranger can be vouched as a warrantor.’ See also Fleta (1290), p. 101.

  162. Ibid, ‘Blodwite, quittance of an amercement for bloodshed.’ Downer (1972), p. 337 ‘Blodwitam. The offence of (or fine payable for) shedding blood.’

  163. See also Coke (1824), vol 3, pp. 218–219.

  164. Ibid, p. 219.

  165. Fleta (1290), p. 101. ‘Infangthief, which means a thief, taken on someone’s land, in seisin of stolen property, who is one of his own men. Outfangthief, which means a strange thief, coming thither from the land of another, who is arrested on the land of the possessor of these franchises.’ Walker (1980) (definitions of infangthef and outfangthef) ‘Words used in grants of jurisdiction in early medieval law. The former is the right to hang a thief under one’s own jurisdiction caught redhanded on one’s land, the latter the right to do so whether or not the capture is made on one’s own land.’ Holdsworth (2009), vol 1, p. 17 ‘Infangenetheof implied the right to try a thief taken on the property and at least a share in the profits (arising from the forfeiture of chattels after hanging). Also, vol 2, p. 102 (he states that, until the middle of the 17th century the Halifax Gibbet Law was a surviving instance of the franchise of infangenthoef) and 389. See also Forfeiture Act 1870.

  166. The Court of Shepway still exists. However, it only performs a ceremonial function today—the election of the Lord Warden. See Green (1984), pp. 85–95. There is also the Court of Brotherhood and Guestling (an assembly which now only meets for ceremonial purposes) and the Cinque Ports Court of Admiralty, which has not sat for many years. Ibid, pp. 109–114.

  167. Legislation, 28 Edw 1 c 7 (1300, rep) provided that the Barons of the Cinque Ports could regulate the Yarmouth Herring Fair. The right to do this resulted in many struggles between the Portsmen and the men of Yarmouth (which was often bloody). See Green (1984), pp. 20, 22–23. The Great Yarmouth Herring Fair was abandoned by the Ports in 1663. Ibid, p. 29.

  168. This right was exercised in 1189 (coronation of Richard I). Green (1984), p. 19. Also, p. 74.

  169. It is also not clear whether some of the old franchises once granted by the crown have ever been formally abolished such as: (a) sac and soc; (b) toll and team; (c) blodwit and fledwit; (d) infrangenthoef and outfrangenthoef; (e) mundbryce; (f) den and strand. These are all obsolete.

  170. See “Introduction” (j)–(q). The archaic rules governing Crown grants should also be reviewed. It is asserted that, in modern times, Crown grants should be interpreted by legal rules that are no different to those governing non-Crown grants. Thus, an inherent legal bias in favour of the Crown would be removed.

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McBain, G. Abolishing Some More Obsolete Crown Prerogatives. Liverpool Law Rev 32, 65–92 (2011). https://doi.org/10.1007/s10991-011-9090-4

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