OF THE RIGHTS AND PREROGATIVES OF IIIS GRACE THE DUKE OF ATHOLL, AS LORD OF THE SEIGNORY OF MAN, AND PARTICULARLY WITH RESPECT TO GAME. AFTER what has been said on the subject of the ancient constitution of the island, it will be unnecessary to revert to the arbitrary ordinances, or positive laws of other countries, in order to exemplify the exclusive right of the Duke of Atholl, as lord of Man, to certain franchises or royal prerogatives, usually incident to sovereign authority; such as the patronage of the bishoprick, escheats, effects of traitors and felons, wrecks of the sea*, estrays, deodands, mines, derelict lands, chases (which word comprises, in the fullest extent, the exclusive right to game), forests, parks, warrens, huntings, piscaries, &c. &c. ;-it may be sufficient to shew, that by the British act, which revested the sovereignty of the island in the crown, in the year 1765, these royal franchises are, in the fullest manner, reserved to the noble family of Atholl in perpetuity; under the honorary service of rendering to his Majesty, his heirs and successors, two falcons, on the days of their respective coronations. Since the revesting act, the Duke of Atholl's It has been contended by the law-officers for the crown, that, notwithstanding this exception, articles coming under the description of jetsam, flotsam, and legan, will not pass, although they were uniformly appropriated to the lord, previous to the revesting act. interest in the island is a seignory, or lordship paramount, of the highest order; because, independent of its unique reserved regal privileges, it is held immediately under the sovereign; it has, therefore, been very improperly designated a manor; for a manor or lordship, in the early times of the legal constitution of England, was frequently granted by the great barons to inferior persons, to be held mediately through them, and not immediately under the crown*. With respect to one branch of the above reserved prerogatives, viz. animals feræ naturæ, or what are commonly known by the denomination of game, the exclusive right thereto, as appears by all the records, was immemorially vested in the king or lord of Man only, and had its origin in the feudal policy. In most nations, the prerogative of hunting and taking game has, for various reasons, been invested in the sovereign, or such only as he should authorize; and the chief reason for this sole investiture appears to have been for preventing popular insurrections, by disarming the bulk of the people. These prohibitions are not any natural injustice, for, it is observed by Puffendorf, that the law does not hereby take from any man his present property, but barely abridges him of one means of acquiring a future property. By the law of England, no man, but he who has a chase or free warren, by grant from the crown, or by prescription, * Black. Com. Book II. p. 91. which presumes a grant, or some authority by act of parliament, can justify, in strictness of the common law, sporting at all; for the sole right of taking and destroying game, belongs exclusively to the king, or those who, under his authority, have a royal franchise of chase, free warren, park, or free fishery; notwithstanding the introduction of new penalties by certain statutes (like the act of Tynwald, made for preserving the game), and which merely exempt such as are vulgarly termed qualified persons from the modern penalties: For killing game, without a grant of chase, or free warren, is still in strictness, an encroachment on the royal prerogative; and, although a person so encroaching may be exempt from the penalties of the game statutes, he is not only liable to an action of trespass by the owner of the land, but also, if he kills game within the limits of any royal franchise, to the action of such who may have the right of chase or free warren*. -With these preliminary observations, there can be no difficulty in asserting, that the sole and exclusive right to the game (which is invariably called, in all the ancient ordinances, and acts of Tynwald, the lord's game), or the right to animals, feræ naturæ, in the island, is undoubtedly vested in the Duke of Atholl, as lord and original proprietor, through his ancestors and predecessors, of all the lands in the island; with the exception of the lord bishop, in respect of his barony (which may imply a right or grant of chase or free warren in the * Blackstone, Com. 6. 2. ch. 27. bishop's lands by prescription), and except the members of the council, and the Twenty-four Keys, by ancient ordinance or prescription, and the proprietor of the barony of St Trinions, which also may imply a right of chase by prescription; and that no other persons have any legal right to pursue or kill game, much less to authorize or license another to do it. This power, both by the common and statute law, is vested in the Duke, in his different characters of lord, and his Majesty's governorin-chief. And of this opinion were the English attorney and solicitor-general, in their report on the Duke of Atholl's bill, in the year 1780, which is comprised in the following words: "With respect to the game, it appears to us, all rights and privileges respecting the game, were intended to be reserved, and therefore it may be proper to declare the same by the bill; and that the right to grant licenses, or give permission to kill the game, belongs to the Duke of Atholl, or his seneschal or steward, and not to the governor, or lieutenant-governor of the isle." In addition to this opinion, the commissioners of inquiry for the Isle of Man, say, "no doubt has been entertained of the lord's right in matters of game, prior to the revesting act, nor is it at all affected by that act.” 66 The act of Tynwald of 1763, which laid a tax on dogs, provides, " that it shall not affect the lord's right and prerogative to the game of this isle, and the licensing of game-dogs, as formerly accustomed." The statute of 1776, lays an annual tax of six shillings on dogs, used for coursing, pointing, setting, or shooting; of three shillings on dogs used for hunting; and of other dogs sixpence ;-to be applied to the use of the high ways. It remains to observe on the subject of game, that although no man in the island, with the exceptions before mentioned, has authority to kill game without the lord's license, yet no person whatever, except the Duke of Atholl, can pursue or kill game upon the estate of another, without committing a trespass, and consequently without subjecting himself to an action at law. |