From Manx Soc vol IV,VII & IX
CASE OF JOHN QUAYLE, ESQ.
OPINION OF CHAS. SEARLE, ESQ., ATTORNEY GENERAL, AND PETER JOHN HEYWOOD, ESQ., DEEMSTER, ON THE MEMORIAL OF JOHN QUAYLE, ESQ., PROPRIETOR OF THE BARONY OF ST. TRINIONS, CLAIMING THE PRIVILEGES THEREUNTO BELONGING.
A the Memorialist claims certain ancient privileges here-before belonging to the Barony of St. Trinions, and deduces them from a very early period, it will be necessary to have recourse to some kind of historical research to investigate this claim.
We find that after the Conquest, the lands of England were granted by the Conqueror to distinguished persons who had served him in arms, reserving at the same time Honorary service to the crown. These tracts of ground which were very large were called Baronies, from whence their owners got the title of Barons, and became lords of Parliament. These Barons not being able to occupy whole counties, subdivided their lands and created lesser Baronies under them, reserving to themselves, however, pecuniary and other services. These lesser Barons in time created Barons under them, till at length the original Baron who was the chief lord of the fee, found his power and services diminished by these multiplied sub-creations. To remedy this, i:t was provided by statute of Westminster 3d and 18, Ed. I. " That upon all sales or feoffments of lands, the feoffee should hold the same not of his immediate feoffer, but of the chief lord of the Fee of whom such feoffer himself hold it."
The Barony of St. Trinions, was one of these lesser Barons, held of the Prior of Whithorn in Galloway, who held it of the chief lord. It appears by the petitioners memorial that this Barony was either forfeited or escheated to the lord, and of course all services ceased. At what period this happened, does not appear, but it would be strange to imagine that the chief lord, after a lapse of several centuries, could now revive these services, which have nothing to countenance them but immemorial usuage, whilst the Common Law says" that at this time of day none of these feudal tenures which are badges of slavery can be created anew."
If a copyhold be forfeited to the lord, he cannot make a fresh grant of it as a copyhold, for the very forfeiture is an enfranchisement.
From the memorial it is clear that the fealty was always made to the Lord proprietor, that is to say, the chief Lord of the Fee, who held immediately under the crown, as Sir John Stanley did, and as the Duke of Athol now does. The case of Mr. Sherburne, who produced a Grant from Chas. II. of the Barony of Bangor (which it is assumed might have been forfeited to the crown for Treason, or have been seized at the Reformation) , and made Fealty to the Earl of Derby, the lord proprietor. Had we seen this grant, we should have understood it better ; but even supposing it should be objected, that Mr. Sherburne did Fealty to Lord Derby, as the Sovereign Lord of this Island, there was nothing very improper in it, as his grant was from the King, and his lands were under the peculiar Sovereignty of Lord Derby.
There can be no objection to the title of the memorialist to the Barony, that is to say, to the Rents, Profits, Services, and Emoluments belonging to it, which are all that appears to be conveyed. No reservation of Services seems to have been made by the Duke as superior Lord, and the Services conveyed, are such as the Barons Tenants, owe to the immediate proprietor of the Barony, and in this case the memorialist has an entire freehold, and owes no Fealty to any body.
All Freeholds were originally Feuds, and held of some Manor, and they were for the most part enfranchised with the reservation of a Heriot, or a Quit rent, or both. In some Grants the quit rent was pecuniary (a few shillings only) , in others a pepper corn, or a red rose ; and all these acknowledgements, however trifling, oblige the Freeholder, to this day, to pay suit and service at the Baron Court, and do Fealty ; but where no reservation is made no Fealty can be due.
The jurisdiction which the crown now has over this Island can in no sense comprehend feudal services, which appertain solely to the Tenure, and are due from the Tenants and lesser Barons to the chief Lord ; and it must be observed that in the vesting act, the Duke reserves all kinds of suits and services as appendages to his Barony.
We are therefore of Opinion that the Memorialist cannot with any propriety tender his Fealty, at the Tinwald Court, to the King, by virtue of his property in the Barony of St. Trinions ; and that the same, if due, can only be made to the Duke of Athol at his Baron Court. From him the Grant was, and to his Grace alone this kind of service can redound.
Peter Jno, Heywood.
June 30, 1770.