Thanks Frances,

That is a most interesting thought. I assume you are referring to the 1833 English act, which would presumbably not refer to the IOM, other than by having "suggestive influence".

In the passage on the 1836 decision, it comments, "The customary Law under which the respondents have become entitled to the estate of Barnagh is not inserted in any of the publications of the statute Law of this Island ; it was published at Tynwald, in June, 1687,
and is very curiously worded, particularly the following clause under which the appelant has lost her dower viz:-

"That any widow that either married or miscarried by having a bastard or an illegitimate child in the time of her widowhood, is to lose or be deprived of her widow-right in the estate wherein she was married.."

The only ambiguity in this would seem to be the words "or miscarried". Clearly this does not refer to a miscarriage as in a pregnancy, but the word has other modern dictionary meanings, including to be unsuccessful or to fail. To say that the widow was unsuccessful in being a widow is a mind boggling concept, so I think an alternative early meaning, "to go astray" has to be invoked. A widow "who has gone astray by having an illegitimate child" then makes sense.

Taking that meaning, and no other construction seems possible, the position seems quite clear under the 1687 declaration, , that an illegitimate child during windowhood cancels the widow-right. That having been said the 1836 Court of First Instance rejected the suit, which suggests that either the presiding judge (would that be the High Bailiff of Ramsey ?), was unaware of the provision, or though it did not apply in this instance.

Given the 1687 declaration, it is hard to see how the court arrived at the decision they did reach in Feb 1836. I think the decision was clearly wrong in law, and Tynwald and the Privy Council clearly held that opinion.

If the provisions of the 1687 declaration had been regularly invoked prior to 1836, they would be well known, and it is difficult, indeed impossible to see how the court reached the decision they did. This implies that the 1687 declaration, which was not statute law nor judge made law (i.e. common law, or breast law) had fallen into effective disuse through obscurity.

To quote a similar case. In England the right to Trial by Battle existed in medieval days, but fell into abeyance until 1817 when someone claimed the right to Trial by Battle, and the case was dropped ! The right was abolished in 1819. Here we had a statute that in effect legitimised duelling although duelling had long been regarded as contrary to the law, and was punishable.

If the 1687 provision had effectively lapsed because of its obscurity, then the 1836 judgment becomes clear, but, if following the hearing, the lawers dug deeper and cited the provision at the appeal, then the Appeal should be granted.

To me this suggests that 1836 MAY be a watershed between widow-rights being cancelled for marriage but NOT for illegitimacy, and being cancelled for both. In other words the law said X all the time, but for many decades prior to 1836, half of it was so obscure that it was unknown and therefore unused. Is there any confirmtation of this in other cases prior to and after 1836 ?

Robert