Definition
An enclosed place used to keep living wild animals, including fish. In English law, the term encompassed a range of structures and spaces designed for the containment and preservation of game or other creatures, including fish ponds, parks, and warrens. Bouvier's framing is the broadest: any place where living things are kept, whether on land (a park) or in water (a pond). The word derives from the Latin vivarium and appears in English legal sources primarily as a term of property and game law.
Common Language
Modern common usage (Wiktionary): A vivarium — an enclosure or structure for keeping and observing animals or plants in conditions approximating their natural habitat.
Historical common usage (Webster's 1913): A vivarium; illustrated by Donne's phrase "that vivary of fowls and beasts."
The common usage has largely collapsed vivary into its Latin parent, vivarium, which today carries a hobbyist or scientific connotation (terrariums, reptile enclosures). The legal meaning, by contrast, was a term of property right and game law — a vivary was not merely a place where animals happened to be kept, but a recognized legal feature of an estate that carried with it defined rights of ownership, enclosure, and exclusion. That proprietary dimension is absent from modern common usage entirely.
Recognized Forms
/SUBTYPES
English legal sources identify the vivary by the type of creature kept and the medium of containment:
Fish pond / fishery: The most frequently cited form. A vivary in water, giving the owner exclusive rights to the fish contained within.
Park: A vivary on land for deer or other game; distinguished from a chase or forest by the requirement of enclosure and the absence of royal franchise.
Warren: A vivary for smaller game animals such as rabbits, hares, and game birds; a warren required royal grant in early English law, unlike a simple fish pond.
These subtypes matter because each carried distinct legal incidents — rights of enclosure, rights against poaching, and liability rules — that differed under English common law.
Why It Matters in Research
Vivary is a term that surfaces almost exclusively in English real property and game law sources. Researchers working with materials predating the twentieth century — land grants, manorial records, estate disputes, or early American colonial property instruments drawn from English models — may encounter it where a modern drafter would write fish pond, game preserve, or enclosed park.
The key research trap is treating vivary as a purely descriptive word when it was often a legally operative term carrying proprietary rights. In English law, the distinction between a vivary and an open fishery, or between a vivary and a free warren, affected who held the right to the animals and what remedy lay for their taking. A document that grants or conveys a vivary is conveying a specific property interest, not just describing a landscape feature.
American usage is sparse and derivative. Early American colonial and post-colonial property instruments occasionally borrowed English game-law vocabulary, but vivary never developed independent American legal content. Researchers finding the term in American sources should read it against its English common law background.
Burrill's cross-reference to Viver (the Law French cognate) is useful: Law French sources may use viver or vivier where Latin-influenced texts use vivarium or vivary. These are the same legal concept under different linguistic registers.
Historical Dictionary Support
The four source dictionaries converge closely. Black's (both editions) and Burrill define vivary as a place for keeping wild animals alive, explicitly including fish, and enumerate fish ponds, parks, and warrens as the recognized forms. Bouvier offers the most compressed and abstracted version — any place where living things are kept — which is broader but consistent.
Burrill adds the most scholarly value by flagging the Latin root (vivarium) and the Law French parallel (viver), and by directing the reader to the Viver entry for further development. This cross-referencing is a reminder that the concept traveled through multiple linguistic layers in English legal history before arriving in early modern legal dictionaries.
None of the historical dictionaries develop the proprietary rights that attached to a vivary in any depth — they treat it as a vocabulary entry rather than a substantive legal concept. Researchers needing the rights-and-duties framework must look beyond these dictionary definitions to common law treatises on game and real property.
The stray text in the Black's (1st ed.) source — fragments from the Void entry — is an artifact of digitization and should be disregarded.
Jurisdictional Note
Vivary is a term of English common law with no independent American statutory or case law development. Its relevance in American legal research is historical and derivative, arising wherever English property law conventions were carried into colonial grants or early state property instruments.