June 28th 1706

Poachers and Foresters

The forester’s duties were fourfold; to keep out other peoples grazing animals, to keep down vermin, to guard against unauthorised intruders and to shoot deer for the laird’s table. The orders given to Thomas Mackenzie, a forester for the Duke of Atholl in 1706 are certainly comprehensive enough.

“These are ordering and impowering you to dispossess all persons whatsoever of what Shealls they possess in our Forrest of Atholl except they produce our warrand in write for the same. You are likewise ordered to shoot any dogs you shall find within our Forrest in regard they scare the deer and to exact 20p Scots from the master of each dog found there. As likewise we order you to kill or bring in alive any eagles old or young you can shoot or take in the Forrest, and for your encouragement we shall give you a warrand for killing a deer for your own use for each eagle young or old brought in.” 

The foresters at Glenfernate, north of Kirkmichael, were told not to “suffer any stranger or countryman to shoot guns within any part of the forrests without apprehending of them and taking their guns from them and revealing the same to the said Duke.” 

Though these instructions were quite unambiguous there were problems for the Duke. In 1711 a proprietor had tried to prosecute a person found shooting deer on his land, He had lost the case because the court held that the forest laws did not make wild animals the property of the owner, they were ferae naturae and were free to roam from one area to another. Therefore they belonged to nobody, so killing of the deer could not be counted as theft.

No doubt the effect of this ruling was reflected in the instructions given to the foresters. By 1767 the Duke’s men were ordered, “carefully to watch his Grace’s grounds in their several districts and when they observe any person or persons come to hand thereon with dogs, gins or netts, they are to order matters so that a clear proof by the testimony of two concurring witnesses who can sware to the identity of the person, that they saw him shoot or saw him sett his dog in the field, no matter whether he miss or kill.”  They were also enjoined, “in a discreet way to talk to the person or persons that are shooting or hunting and let them know on whose ground they are hunting on, and ask their names in a civil way…” 

Even such polite behaviour did not always produce the desired results. In 1770 one of the Atholl foresters, Paul Robertson, discovered four army officers shooting over the Duke’s moors. When challenged, “they asked him if he had a warrant from the Duke for preserving his hills. He told them he had. They then desired him to stop the warrant in his backside and were very abusive to him…” 

If the foresters found it difficult to know how to deal with gentlemen intruders they faced even more problems catching local poachers who were often prepared to fight to preserve their liberty and their catch. There were famous poachers such as Lonavey (lonach=greedy, and fiadh=deer.) whose real name was Ian Mackeracher. He had had one hand amputated as a punishment for poaching in the Atholl forests but was still a brilliant marksman and succeeded in winning a match against a team of English mowers who had come to Atholl to make hay. The Duke was so pleased that he remarked that, “if Lonavey must have a shot at a deer now and then I hope he will not kill too many.” 

Perhaps the Duke had a sneaking sympathy for the poachers. There was also the case of the blacksmith from Badenoch caught poaching in the Atholl forests. He was asked by the Duke whether he would rather go to gaol for three months or stand a shot from the Duke’s rifle at a hundred paces. He opted to stand the shot. The head forester measured out the distance and handed the Duke his gun while the onlookers held their breath. The Duke aimed, fired but only the priming cap exploded. The Duke called for a second rifle, aimed and fired with the same result. “Well,”  said the Duke, “you are a lucky fellow for I see your time is not yet come. But if you ever come after my deer again my rifle will not miss fire.”  The blacksmith took the hint and was not seen in Atholl again.

The battle between foresters and poachers did not disappear with the onset of deer stalking but circumstances did change. Many of the old poachers found it more profitable to use their skills in a legal manner as ghillies and because the deer forests had become a new and increased source of revenue to the lairds they could afford to pay for greater protection for their deer.

But whatever happened to that judgement of 1711 declaring that deer were ferae naturae? Has it ever been repealed?