HTML Transcription © F.Coakley , 2009
[From Mann Land Tenure etc, R. D. Farrant ,1937]
MANX LAND TENURE.
ITS ORIGIN : ALLODIAL OR FEUDAL
1. Land owned by an allodialist - known as an allodium - is (in Blackstone's pithy definition) ' a man's own land which he possesseth merely in his own right without owing any rent or service to any superior. This is property in its highest degree, and the owner thereof hath absolutum et directum dominium.'
2. What the prevailing system of land tenure in Europe was prior to the incursion of barbarous tribes which issued from the North in the fourth, fifth and sixth centuries after Christ, overran the continent, and overturned the Roman Empire, is perhaps not certainly known, but there is reason to believe that a great part of it, at all events, was allodial, or of an allodial nature.
3. Something of a feudal character there may have been in the Roman Empire, particularly in the case of those possessions given to the dukes limitanei or dukes of frontiers in the empire. However that may be, we are left in no doubt as to the method of land settlement the Northern invaders followed, and out of which the feudal system eventually grew. Upon settling in the countries which they had subdued, the victorious tribesmen divided the conquered lands. Some were allotted to the king or chief of the conquering tribe, and the rest were either divided amongst those who had followed his standard, or left in the possession of their original conquered proprietors. Those allotted to the soldiery acquired the name of allodial, and were enjoyed as free and independent property. They were held of no one, and charged with no services.
And those lands which were left in the hands of the conquered owners appear to have acquired the same designation.
4. Of the conquered lands assigned to the sovereign of the tribe, certain portions were afterwards usually distributed by him amongst his adherents, chiefly his leading companions in arms. The interest they derived under these grants was not strictly in the nature of property, but of a usufructuary kind only, that is to say, that the grant was at first limited to the person of the individual on whom it was conferred, and he had to render certain services in return.
The interest thus granted was originally termed a benefice, but the holding itself afterwards acquired the designation of a fief or feud, and hence the derivation of the word ' feudal.'
5. The services the grantee was bound to render in return for the usufruct were commonly at first of a military character, such as the rallying round the standard of the chief for the purposes of foreign invasion or domestic defence, with an adequate body of armed retainers in due military equipment, and, in addition, involved the taking of the oath of fealty, the doing of homage to the superior lord, and the payment of fines or reliefs on death or alienation.
In return for this service, the lord bestowed on the tenant his patronage and protection; the essential principle of a fief being a mutual contract of support and fidelity.
There were, in addition, other peculiar and onerous conditions attaching to the species of holding known as feudal which it is unnecessary to enumerate.
6. The two systems did not long continue in existence together, for the allodialist, though enjoying a nominal independence, found himself exposed to all the evils and dangers attendant on a state of civil confusion, and contemplated with envy the comparative security of the feudal vassal, whose superior lord was bound to give him that shelter from oppression which the law was then too weak to afford.
The allodialist, therefore, was gradually induced to change the nature of his property from allodial to feudal, and effected this by surrendering his land to some powerful lord, and receiving it back again from him in the shape of a feud. Roughly speaking, it may be said that the feudal system had become practically universal in England in 1086, and in Scotland some years earlier.
7. In course of time, from grants for life, feuds became extended to all the sons equally, and, at last, to the heir at law of the grantee.
Having acquired such a permanency of holding, the grantee began to imitate his superior lord by granting out portions of land by way of subinfeudation. The holders of such portions are what are now termed. freeholders. Whilst so doing, the grantee generally reserved a portion as a site on which to erect his mansion with a portion of the surrounding lands as a necessary convenience. This was called his ' demesne,' and a portion of it would be retained in his personal occupation, and of the rest, part was turned over for cultivation (or rather left) to the class called villeins, and the remainder reserved as waste to afford common pasturage, turbary, and so forth to the lord and the villeins.
8. The story told by Blackstone and followed by most English text-writers till about fifty years ago, that the holdings of villein tenants were originally created by the will of the lords and depended on their sufferance, has been known for a longer time to be fictitious. As Sir IIenry plaine said in 1883. ' it is certainly not true, and perhaps the least drawback on it is that it is not true.' (Early Law and Custom, p. 301.) But it is enough for the present purpose to say that, even according to the technical doctrine of the sixteenth century lawyers, framed mainly in the interest of the lord, although villeins were in general said to hole? their estates at the will of the lord, yet it was such a will as was agreeable to the custom of the manor. preserved and evidenced by the rolls of the several manor courts held by the lord in which they were entered. Having, however, nothing to show for their estates but these customs, and admissions in pursuance of them entered on these rolls (or the copies of such entries witnessed by the steward), they soon began toy be called tenants by copy- of court roll, and their tenure itself a copyhold,
9. In England a manor, when in its. proper and perfect state, comprises, in addition to the lands held as copyhold, according to its ancient constitution, some portion of freehold tenants holding of the manor in perpetuity.
In some manors the holding was from the first so far of the nature of freehold that the grant was not confined to the life of the tenant, but it was a grant in perpetuity upon the terms only of yielding the accustomed services. Such a tenant did not hold at the will of the lord, but only according to the custom of the manor, and his tenancy was called a ' customary freehold.'
But ' the books are very barren on this species of tenure ' (See Merttens v. Hill, 1901, 1 Ch. 842, deciding that in socage tenements of a manor of ancient demesne the freehold is in the tenant), and whilst admitting, for the purposes ofthis article, the conventional notion of customary- freehold, I am not prepared to accept in its entirety the appositeness of the definition when it comes to be applied to the tenure of estates in this Island.
10.Bearing in mind the foregoing general description of allodial ownership, of feudal tenure, of freehold, of copyhold, and of customary freehold according to English authorities, turn we now to our own island, and apply ourselves to the first of our inquiries, namely, whether the ownership was originally allodial or feudal.
11. Reference has already been made to the incursions of the Northmen into Europe and their process of land settling, and there does not appear to be any reason to suppose that that process was of a substantially different character in the case of the Isle of Man. Indeed there is fair authority to the contrary, as we shall presently see.
Whether the Vikings had established a settled Government in the Isle of Mann prior to 870 A.D. is not very clear, but at all events it seems to be the better opinion that in that year King Harold Harfager (or Fair Hair), of Norway, in the course of a great expedition, conquered this island, and that it was from the date of this conquest that the late Norwegian kings derived, or at all events asserted, their right and title to Mann and the Isles.
12. Passing over the intermediate rulers of Man, whether they derived their authority from Norway or from Dublin, we alight upon one Godred son of Harold, a powerful and warlike person, who in or about the year 979 A.D., amongst other exploits, conquered Anglesey. This personage's historical existence as king of the Western Isles is undoubted, but it is open to question whether the historians are correct in ascribing to him the lordship of Mann, since it is certain that we do not hear of Mann and the Isles being united in one kingdom till the invasion of King Magnus of Norway in 1098. However this may be, we know that the reign of MacHarold soon came to an end, and he is said to have been succeeded in the kingship of Mann by Sigurd, Earl of Orkney and Caithness, who was certainly tributary to Earl Haco, the ruler of Norway, and paid an annual tribute to him.
13. Earl Sigurd fell in the great battle of Clontarf against the celebrated Brian Boroimhe in 1014, and his son Thorfinn seems to have come into possession of Mann. Thorfinn was kinsman to the notorious usurper Macbeth, the story of whose ambition, treachery, and death has inspired the greatest of all dramatists with one of the greatest of dramas.
Finally, in the year 1079 or 1080, appears the redoubtable Godred Crowan (said to have been a fugitive from the battle of Stamford Bridge), who lands in Mann with a number of followers, and, after two defeats at the hands of the Manxmen headed apparently by their king Fingall, the son of Godred the son of Sytric, returns a third time, completely routs the Islanders at the battle of Sky Hill, and seizes their island.
14. The Monks of Rushen Abbey- who compiled the ' Chronica regum Manniae et Insularum et episcoporum et quorundam regurn Angliae, Scotiae, Norwegiae,' after a dramatic description of the battle, conclude the entry with the following significant words :-
' Next day Godred gave his army the option of having the country divided amongst them if they preferred to remain and inhabit it, or of taking everything it contained worth having, and returning to their homes. The soldiers preferred plundering the whole island, and returning home enriched by its wealth.
Godred then granted to the few islanders who had remained with him the southern part of the Island, and to the surviving Manxmen the northern portion, on condition that none of them should ever presume to claim any of the land by hereditary right. Hence it arises that up to the present day the whole island belongs to the king alone, and that all its revenues are his.'
15. Before commenting on this statement, I will pass over all the intervening history of the island and of its royal line, and quote from the answers of the Deemsters and the twenty- four given at Castle Rushen to Sir John Stanley II, king of Mann in the year 1422.
'28. Alsoe we give for Law, that there were never xxiij Keys in Certainty since they were first that were called Taxiaxi, those were xxiij free Houlders viz.: viij in the Out Isles, and xvj in your Land of Mann, and that was in King Orrey's days . . . ,'
At a Court of all the Tennants and Commons of Mann held in the same year, the Bishop of Mann was called 'to come to doe his Faith and Fealtie unto the Lord, as the Law asketh, and to shew by what Claime he houldeth his Lands and Tenements within the Lordship of Mann, the which came and did his Faith and Fealtie to the Lord. The Abbott alsoe of Rushen, and Prioress of Douglas, were called to doe their Fealtie, and to shew their claimes of their Houldings, Land, and Tenements, within the Lordship of Mann; the which came and did their Fealtie to the Lord. The Prior of Withorne, in Galloway, the Abbott of Furnace, the Abbott of Bangor, the Abbott of Saball, and the Prior of St. Beade, in Copeland, were called in and came not: therefore they were deemed by the Deemsters, that they should come in their proper Persons within xl days, and if they came not, then to loose all their Temporalties, to be ceised unto the Lords Hands.'
16. We have now arrived at a very interesting stage of our inquiry, and we might profitably pause to consider these significant statements.
That the first was actually made by the chronicler writing in or about the year 1276 is beyond all doubt.
The next inquiry is whether it be true.
Our excellent monk's work has been subjected to a minute and prolonged investigation at the hands of the critics, but it may, I. think, be asserted that, on the whole, he has come very well out of the ordeal.
Most of his facts are accepted to be as correct as in an eccliastical historian of those days can reasonably be expected.
17. Nevertheless, the paragraph above quoted has been fallen foul of by no less an authority than Professor Munch, the eminent historian of Norway, who edited the chronicle for the Manx Society.
The Professor thinks the whole story is an anachronism, and that tradition assigned to Godred Crowan what belonged to a Godred of much earlier times. The tale of the exclusion of the hereditary rights of the islanders is almost exactly the same as that of Harold Harfager the conqueror of Norway, who is said to have appropriated to himself all Udal (or hereditary) lands, so that thenceforth the possessors of such lands had them only in farm or fief from the king. Something like it is also told of the Earl of Orkney, and the same legend existed all over the Germanic world. It is more likely (the Professor thinks) that, as the conquest of Mann by the Norwegians probably happened in the ninth century, the acquisition of the property in the soil by the conqueror took place then, and not in Godred Crowan's day. Putting aside the interesting questions which arise on this statement, and the speculation that Godred Crowan (as mixed up with Godred MacHarold and with the Norwegian conqueror of Mann, whoever he was) is the personage the twenty-four meant to refer to when they spoke of our old friend King Orry, Professor Munch's opinion seems to justify us in two or three conjectures, namely :-
18. That the ownership of lands in Mann prior to the Norwegian conquest was of an allodial nature, in that the inhabitants had them in hereditary right and not from the king or chief paramount. And further, that at or after that conquest the conqueror, temporarily at all events, affected to destroy this right and to appropriate to himself all the hereditary lands, in like manner as he of the Fair Hair did in Norway, and as the northern invaders of part of Europe displaced the original allodial by what afterwards grew to be feudal tenure. It is also a matter of fair conjecture that the, southern part of the island, which is said to have been granted to the islanders (i.e., the Norwegians of the out isles) who accompanied the conqueror - his companions in arms - was henceforth held by them in fief or as feuds. Does it follow that the northern portion was granted to the Manxmen on the same tenure, or was it rather considered part of the king's demesne to be held by them as tenants at will like unto villeins or copyholders ?
19. I think it improbable that the Norwegian conqueror reduced the northern Manxmen to the condition of serfs or villeins, for the very good reason that those warlike islanders were not of a temper to submit to anything of the kind, especially after Godred had dismissed his army with their unrighteous loot.
For, in 1098, barely eighteen years after Godred's alleged grants, the Northerners under Macmaras rose against and totally defeated the Southerners led by Earl Other, at the battle of Santwat.
And at various other dates during the 200 years of the reign of the house of Crowan, the inhabitants and chiefs of Mann exercised a powerful influence in state affairs, sometimes electing the king, and sometimes deposing him if he proved to be unsatisfactory : facts from which it is impossible to suppose that the Manxmen of those days occupied the position, or anything like the position, of villeins or serfs.
20. That the chiefs, at all events, were possessed of lands of inheritance, we know from the fact that in 1144 King Godred II ' coepit tyrannidem exercere contra principes suos nam quosdam eorum exhaereditavit.'
Whilst the hereditary right of the people in their lands appear to have become (or remained) so sufficiently firmly established in the year 1266, as to be expressly referred to and provided for in the treaty signed at Perth in that year between Haco of Norway and Alexander II of Scotland, by which Mann and the Isles were ceded to the Scotch king.
' Nor are they (i.e. the inhabitants of the said islands) to be pursued in their inheritances in those islands, but to continue in the peaceful enjoyment of the same under the dominion of the Lord King of Scotland.'
21. Moreover the Norwegian feudal system (if such it can be called) differed considerably from the highly elaborated system introduced by the Normans into England.
It is true that Harold Fairhair, when he established his kingdom in Norway, appropriated to himself not only all the commons, till then held in common by the Herad or tribe, but also the Odal or Udal lands of the hereditary proprietors, and it was that precedent William the Conqueror considered himself to be following when he claimed the whole of the lands of England as his by conquest.
But Harold and his successors never succeeded in enforcing this right in its full rigour in Norway as the Conqueror did in England. The Norwegian Udal (or Odal) lands remained substantially so for a long time, and many estates in that country have continued to this day to present the ordinary incidents of that tenure.
22. Now what were those incidents?
For the purposes of the present inquiry it will be sufficient to note the following:--
(a) The Odal land was inalienable, and if sold to any one outside the family, the latter had a right of redemption at a price one-fifth less than the appraised value, if they or one of them gave public notice of a claim within twenty years to the Thing, and this right to redeem did not become forfeited till after the expiration of sixty years' undisputed possession in the new owner without notice of any claim given.
(b) That the sons, and later the daughters, all succeeded to the inheritance on the death of the owner.
(c) That land became Odal, amongst other ways :-
(1) when three generations had owned it in unbroken succession, and it fell to the fourth (as inheritance) ;
(2) when it had been got by bronderfyd, i.e., when the purchaser received the grantor to keep him in bad and good circumstances and feed him 'until fire and pyre' (until he died). In this case, of course, the land must have been Odal in the grantor's hands.
23. Now there were several pecularities in the Manx customary law as to land (before it was altered by statute), which must always strike one accustomed only to the English law as distinctly novel. For the present purpose, I will only mention the following:-
(a) That lands of the description of quarterland of descent, in addition to their non-liability to the debts of the proprietor, and their non-devisability by will, were inalienable without the licence of the lord (or the lord's officers).
(b) That intacks, or those portions of the commons licensed to be enclosed by a proprietor, did not become inheritance land (so as to fall to the heir and be non- liable to debts and non-devisable by will), till they had passed three descents not reckoning the first purchaser. Till then, they were considered as mere chattels, liable to the owner's debts and devisable by his will, and were distributable as such amongst the next of kin on the death intestate of the owner.
(c) That lands acquired by bargane-eirey (the Manx expression for the customary settlement by an ancestor on his heir presumptive or apparent) were considered lands of inheritance in the purchaser, whereas bought quarterlands were mere chattels alike to intacks before they had passed three descents.
(d) That by the Manx Statute of 1662, which declared that for the future bought quarterlands should be considered to be lands of inheritance and descend to the heir, it was provided and reserved that such lands should be subject in the hands of the heir to a charge equal to the value thereof in favour of the next of kin.
(e) That it was an ancient custom continued up to recent times (and not dependent upon the Statutes of Limitations, save so far as regards the necessity of its being put in writing), that any person claiming title to lands in the island might stop the time limit running against him by simply entering a claim at any sitting of the court within. twenty or twenty-one years of his dispussession without notice to the adverse party, the claimant praying that his claim might be received and entered on record according to law and ancient custom.* And
(f) That the earliest method of transfer of which we have any written record, was for the tenant of lands who had surrendered them into the lord's hands, or had alienated them to any other person, to come into the Baron Court in the presence of the lord's officers and of the Enquest and make resignation thereof by delivery of a straw, and thereupon a record was to be entered of the same which was all the assurance the succeeding tenant had of the said estate in the nature of a copyhold, which was held sufficient evidence of his holding without any writing script.' (Deemster Parr's Abstract of Laws of the Isle of Mann.)
* See Quilleash v. Skillicorn decided in 1717, when a sale of land was set aside on the application of the next of kin "paying the same money"; and see Statute of 1645
24. These peculiarities of Manx customary laws are of undoubted antiquity, inasmuch as we find no statutory authority for any of them save for that adopted by the Statute of 1662.
When contrasted with the peculiar incidents of Udal tenure in Norway to which reference has already been made, there is to be detected, I think, a striking resemblance.
Compare the distinctive elements of Udal land, its inalienability as against the kindred, the right to redeem within sixty years (equivalent no doubt to three descents), provided notice had been publicly given in the Thing - with the inalienability of quarterlands of descent either by will or for debts, except in the lifetime of the proprietor with the licence of the Baron Court, and originally no doubt in its presence by the delivery of a straw. Compare the fact that the Udal lands were limited and not extendible, and that all other lands which lay outside this class were free from its cumbrous safeguards - with the fact that the quarterlands (which have existed in their present number and within their respective boundaries from time immemorial) were also limited and not extendible, and that the intack land which lay outside their boundaries was not subject to the distinctive safeguards of the quarterland.
25. Compare the elaborate nature of those safeguards according to the Norwegian law, under which land had to descend through four generations in unbroken succession before it could become Udal, but if Udal already, an alienation by bronderfyd did not destroy its character as such - with the fact that intack lands could not become inheritance land. akin to quarterland of descent till they had passed three descents not counting the first purchaser (i.e., four generations), and that alienation by bargane-eirey did not, whilst any other alienation did, destroy the inheritance nature of a quarterland.
26. Consider with these the curious provision of the Manx Statute of 1662 which created bought quarterlands lands of inheritance, reserving a charge on them equal to their value in favour of the next of kin, and the still more curious and significant ancient custom of preserving a claim to land by publicly making a claim to it within twenty years at any sitting of the Baron Courts without notice to the adverse possessor - and it will be seen, I venture to think, that all the indications point to a much closer connexion between the customary land law of Mann and the laws governing the Udal tenure in Norway, than to anything to be found in the laws of land tenure in England, Ireland, Wales, or Scotland.
27. Here it appears to be necessary to deal with the apparently vital distinction between the non-alienability of the Norwegian Udal lands as against the next of Kin, and the alienability of the Manx farm lands as against every one but the lord.
To do this I propose to go back a little into the ancient history of land tenure.
28. In Rome the land was anciently the property of the pater familias, or head of the family. He belonged to a gens, or fictitious extension of the family, consisting of all Roman patrician citizens who bore the same name, and who on that account were supposed to be descended from a common ancestor.
The gens was the constituent unit of the Roman state, and the comitia curiata was exclusively composed of representatives of such gentiles. Now testaments, by which a pater familias affected to dispose of his land, were all originally executed in the comitia curiata when assembled for private business. The reason of this is to be found in the old Roman law of intestate succession, under which first the sui, or direct descendants, succeeded, next the nearest agnati, and lastly the inheritance devolved on the gentiles or collective members of the dead man's gens.
A testament therefore could only be made when the testator either had no discoverable gentiles, or when they waived their claims; and every testament was submitted to the comitia in order that the gens who might consider themselves aggrieved (as prospective next of kin) by its dispositions, might put their veto upon it if they pleased, or by allowing it to pass might be presumed to have renounced their reversion.
This restriction or devisability applied only to res mancipi, or things transferable by the ancient custom of mancipation. The res mancipi were fixed and non-extendible, and all kinds of property which lay outside the limits of this peculiar class were alienable and devisable without the consent of the comitia (For details and some variant opinions see Girard, Manuel elementaire de droit romain, 3rd ed., pp. 792 sqq.)
29. Amongst the Germanic tribes the allodial property, sometimes inalienable altogether, was commonly transferable with the greatest difficulty, and only by actual tradition in the presence of a large number of persons.
Although reserved to the kindred, no doubt on failure of heirs the property would revert (as in Rome) to the gens or tribe of which the dead man was a member.
The allodial property was strictly limited, and all classes of property which lay outside that species were free from these cumbersome formalities of transfer and descent.
30. Passing to the Norwegian. Udal property, we have seen that this belonged to the class of allodial property which "as absolutely inalienable as against the kindred; but at the same time we have observed that, if tidal land had been alienated, it could not be redeemed by the kinsman without payment of four-fifths of the purchase-money --- or the full amount if he had neglected to give notice of his claim within twenty years -- and that it became absolutely vested in the purchaser if sixty years passed by without notice of claim given publicly by the claimant at the Thing under whose jurisdiction the land lay.
Though extremely difficult, it will be seen that it was by no means impossible to alienate Udal land provided the next of kin did not interpose - as they might not do, if they had not the necessary funds. (' Will a man sell his odal land' Then shall he summon all the odal born -- his kindred --- and notify to them that he is to sell such odal land, making them the first offer, if they will buy, and have no impediment such as the want of money, and the like. . . .' (Norwegian Law Book.)
The necessity for the notice in the Thing, or assembly of the tribe, is significant, and it is not entirely outside the bounds of argument that its necessity originally arose from some right in the Thing, as representing the. tribe, to be the ultimate next of kin, as in the case of the comitia curiata. The period of sixty years represents, no doubt, the three descents or four generations requisite to create Udal which was strictly limited and non-extendible. Besides the Udal there was common land and ' kauf land,' which latter was freehold, and could be alienated at pleasure like movables.
31. On the hypothesis that the Manx quarterland was originally Udal, the question next arises, how and when it became alienable as against the next of kin, and how and when descendible to the heir as against the next of kin' To these queries no reply can be returned, but certain suggestions can be made in the light of a few known facts. The right of unfettered alienation was claimed by the Manx even in the time of the Stanleys. So much we learn from the Ordinance of the Deputy Lieutenant and Council made in the year 1582, who complain in section 6:
' 6 Itm. Whereas diverse and sundry the Inhabitants of this Isle, contrary to a good and laudable order, and diverse and sundrie general Restraints made, not regarding their duty, have, and daily- do, notwithstand- ing the said Restrainte. buy, sell, give, grant, chap, and exchange their Farms, Lands, Tenements, Cottages, Milns, Intackes, and other Landes whatsoever in their Holdings, at their Liberties and Pleasures, without the especiall Lycence of the Lord or his Councell of the said Isle. . . making,' (as they indignantly exclaim) ' as it were, common Merchandize of his said Lands, being but Tenants thereunto. . . .'
32. Putting aside for the moment the validity or otherwise of the feudal claim of the lords to be absolute owners of the land, and the inhabitants to be only their tenants, there is no doubt that the Manxmen never at any time succeeded in dispensing with the consent of the lord or his officers to alienations of their lands.
This consent was exercised in the sitting of the Baron Court, in which originally the lord or his governor and officers all sat. In early times this court was held after the general meeting or assembly still known as Tynwald. The Court Baron was no doubt first established when the feudal system was introduced, and at such Court Baron all the landholders of the district were bound to attend; the Deemsters and twenty-four were there, and also the Great and Sett Enquests.
This court then took the place - we may well suppose - of the ancient judicial functions of the Thing, exercised, as they were wont to be, after the public business had been disposed of, even as was the case with the comitia curiata.
If this be so, then it will be seen that the obtaining of the licence of the lord to the alienation of land, and the right to alienate with such consent in the manner accustomed under the later feudal lords, is not inconsistent with a still more ancient custom of coming into the Thing and obtaining its consent as the ultimus heres to such alienation where there were no discoverable next of kin.
33. Again the right (made by ' ancient law and custom ') on the part of any person wrongfully dispossessed of land, to stay the time running against him by publicly entering a claim at any sitting of the court (on our supposition originally the Thing) within twenty or twenty-one years, whilst it bears no resemblance to anything known to English law, has the strongest resemblance to the method of public notice of claim in the Norwegian Thing. by which the aggrieved next of kin prevented his claim, to repurchase Udal lands wrongfully alienated, from being forfeited by lapse of time.
True it is that this ancient Manx right, as we first hear of it, extended to the case of all lands whether inheritance lands or otherwise, and was certainly not confined to the next of kin, but it is not outrageous to suppose that it had its origin in the manner suggested; certainly no other origin has ever been suggested for it.
34. There remains the distinction between the Udal descendibility to the next of kin, as distinct from the Manx descent to the heir at law only, but it is submitted that this is a distinction of little importance, inasmuch as we cannot tell what the Manx law of descent was till comparatively late times, and a change of this sort is often to be observed in other systems of land law.
Even in India, where the rights of the family are still in full force, a tendency to prefer the heir wherever possible is to be detected, and in the feudal system the same change has already been referred to as having gradually taken place.
35. Moreover, the Statute of 1662 seems to indicate a distinct throw-back to the original rights of the next of kin, which indeed always did exist in the case of lands other than descended quarterlands, by analogy no doubt to the ancient law of descent.
The change which tools place as to the quarterlands of descent is possibly to be attributed to the inalienability of the land, its frequent connexion with some office, i.e., Key, Captain of Parish, Coroner and the like, and the extreme inconvenience of subdividing it amongst an ever increasing number of persons as co-heirs.
36. Assuming then that the first difficulty propounded is not insuperable on the hypothesis put forward, we are on firmer ground when dealing with the next suggested similarity between the Norwegian and Manx customary law.
That a distinction between descended and acquired lands as to alienability by deed or will is common to many systems of tenure, I grant, but not so the peculiar rule that intacks could not become inheritance land, till after they had passed three descents, not counting the first eneloser.
This is surely assignable to the Udal origin, and demonstrates not only the distinction originally existing between the ancient farm lands (whose exact boundaries have existed unchanged from time immemorial, and have never been and are not now extendible) and the common land, which by licence of the lord (and possibly originally of the tribe) became the subject of private ownership - but also the extraordinary safeguards by which the sanctity of the inheritance land was ensured. . For once inheritance land, always inheritance land.
Although the laws of later days, straining as they always tended to do, against inalienability, turned quarterlands or intacks of ease. or of three descents in the hands of a purchaser for value into chattels devisable at will and liable to be sold for debts, in every such case after they had again passed one descent from the purchaser, the lands regained their former designation and sanctity, and the heir could defy alike the will or the creditors of the deceased proprietor.
37. Adverting to the third peculiarity of our laws, it will be remembered that I. ventured to compare the fact that Manx inheritance land acquired by bargane-eirey remained inheritance land in the hand of the purchaser, with the fact that Norwegian Udal land remained Udal in the hands of a purchaser by bronderfyd, i.e., where the latter covenanted to keep the grantor and feed him till his death.
The resemblance is somewhat obscure until the cumcum- stance is considered that, although it was not, in later times at least, a necessary ingredient of a bargane-eirey that the heir should keep and feed till his death the ancestor who settled the estate on him, yet it was common provision of such a deed that it should be so. Till comparatively recently the custom prevailed and was generally, if not always, a matter of contract between the heir and his aged parent, or grandparent as the case might be.
Sometimes in the bargane-eirey a life estate was expressly reserved to the grantor, and sometimes an annuity to him was provided for, but the fact that these circumstances did not, as an actual purchase for value by an heir did, alter the peculiar characteristic of a bargane-eirey seems to point to this reservation or payment being merely a modern (and more convenient) substitute for the original covenant to provide the settlor in lodging and food till he died.
38. And lastly, the method in vogue in Deemster Parr's day, of carrying out a sale by the formality of attending the Court Baron, and making resignation of the estate by delivery of a straw, ' which was all the assurance the succeeding tenant had of the estate, and was held sufficient evidence of his holding without any writing script,' seems to point to an earlier custom of alienating the land by tradition in the presence of witnesses, and those witnesses the neighbouring landowners assembled in the Thing itself.
No doubt the custom resembles (and so it seems to have occurred to Parr) the process of alienating copyhold estates, but the traditional notion that the tenure of the straw was the ancient land right, coupled with the similarities in the customary law of Orkney and Shetland, referred to in the succeeding paragraphs, has a. significance not to be lightly passed over. Symbolic delivery is in no way peculiar to copyholds in English law, and where it occurs, is either survival or early imitation of a much more extensive archaic usage. Cp. Blackstone, Comm. ii, 312, 315, and see much fuller and more various examples in Du Cange s.v. Investitura. As late as the Restoration the Duke oŁ York's Commissioners gave William Penn 'possession and submission of certain lands in Pennsylvania 'by turf and twig and water.' as he stated in a letter to the Board of Trade now in the Record Office. It seems that the necessity for delivery of a deed in the Conrmon Law may be due to the deed itself having been regarded at one time as a symbol.
39. Prior to the year 1266 Orkney and Mann were both under the suzerainty of the kings of Norway.
In that year Mann was ceded to Scotland. In the treaty Mann was placed under the laws of Scotland, by which from thenceforth it was to be ruled. Orkney remained under Nor- wegian rule till 1468, when it was impignorated to the Scotch king as security for the dowry of Margaret, the daughter of the king of Norway and bride of James III of Scotland.
In the marriage treaty of 1468 it was stipulated that the laws and customs of Norway should be continued in Orkney till it was redeemed.
It never was redeemed, and by lapse of time became incorporated in the dominion of the Scotch king
The Udal system of land tenure was in sway in Orkney when it was impignorated, and, protected by the treaty stipula- tions and acts of the Scottish Parliament; has continued, to some extent, in force: to this day.
40. The circumstances attending the alienation of the Orkney lands. and their distribution on descent, are quaintly referred to in the following opinion given by the Bishop of Orkney in 1642, in answer to demand made to him what the lands ' haldin in Udill ' are:-- --
' patio nominis, alse far as ever I could trye is, that the kings of Norroway sent one UDILLAUS, wha divyded the fonds of orknay and Shetland in pennie londs and used londs, ,is Irelond is now divyded in aikers : from yat divisions to this day they have possessiit yoir fonds as heritors without wreate. They sell yoir fonds; utheris buyes yarns at alse dear a rate as any lond in Scotland. Thir londs be the law of Norroway, were equallie divyded among the children, be ane inquest founded upon a w arraund of the superior. . . Thair holding. I think, be like the copiehold of Inglond. . . .'
How far the good bishop was correct in his history of the word Udal it would be sacrilegious to question, but he would no doubt. be well acquainted with the actual incidents of the holdings of his day. Erskine in dealing with the proper form of investiture in Scotland, says:----
. of the old proper investiture . . are preserved where the practise is retained of giving possession on the ground of the lands hy the symbol of a stone, a staff, or a bundle of grass, without any writing, in the presence of the neighbouring inhabitants who were assumed to fill up the place of the pares curiae (i.e., the Lord's vassals attending him in his Baron Court). The Udal right of the Stewartry of Orkney and Shetland is of the same nature.'
41. Here we have an example of Udal land which had become freely alienable in the seventeenth century, though no doubt originally inalienable as against the kindred.
But note the traditionary account of the division into perm} - lands (or lands within the dykes) and used lands (or lands without the dykes), which, when enclosed. became known and distinguishable as ' outbreks.'
This is suggestive of the division existing between Manx farm lands and intacks, and it is to be noted that sec. 47 of the Declaration of 1422 provides for the delivery to every man of his pennywworth, the meaning of which is not otherwise clear. Note also that the men of Orkney were heritors without writ, and alienated by delivering a bundle of grass in the presence of the neighbouring inhabitants who filled the place of pares curiae, and reminded the jurists of 1642 of copyholders, though nothing is more certain than that they were originally nothing of the kind.
This again reminds us of the process of Manx alienation described by Parr, writing shortly afterwards, and reminded him also of copyholders, as no doubt his employer (the Earl of Derby) would be glad to hear.
42. Note further, that on the death of an Orkney or Shetland proprietor the lands were by the law of Norway divided amongst the children by an inquest founded on the warrant of a superior.
This is like to what may originally have been the case in Mann before the eldest son's right developed. Such an enquest existed in Mann up to a few years ago and was known as a Sett Enquest (or Setting Quest). The process of division of land by the Enquest amongst the kindred is more than hinted at in a declaration of Manx customary law made in 1577.
43. In the century and a half of turmoil and confusion that followed upon the extinction of the royal line of Mann, and the strife between the English and Scottish kings for the overlordship of this unfortunate island, its ancient constitution, its landed rights, and even its customary laws seem to have been thrown into the melting-pot, and to have been largely forgotten by, or fallen into desuetude amongst the inhabitants.
The land - at one time (according to Henry of Huntingdon) from its fortunate fertility most productive of corn' devastated by successive invasions, seems to have largely gone out of cultivation, the fences to have become obliterated, and the inhabitants - a prey to the rapacity of succeeding lords and bailiffs -- to have gradually abandoned their farms, and taken themselves to eking out a precarious existence by pasturing flocks of cattle and sheep on what had apparently become to a great extent a treeless boggy wilderness, overgrown ,with gorse and rank grass.
44. So much might be gathered from a perusal of what arse termed the Statutes and Ordinances of the Isle of Mann under date 1417, 1419, 1422, and 1577, of such ancient maps and charts as are extant, and from the evidence of the eyesight when the age of the existing timber of this island is examined. The ignorance of the people in A.D. 1417 on the subject of their constitution, their land rights, and their laws, I deduce from the answers of the Deemsters and the twenty--four Keys given in that year and in 1419 to certain questions propounded to them by the then lord proprietor.
Such a strange concatenation of vague tradition, of confusion of thought, and of ignorance of law terms, would indeed be astonishing in any legal assembly.
A sort of burly-burly of barons in the third degree, of beneficed men, deemsters, officers, clerks, knights, esquires, yeomen, and worthiest men, are introduced into the answer, though what the distinction between barons and beneficed men, or of yeomen and commons, might be, or why some of them were in the third degree any more than in the second or fourth. and why the commons were to be called upon to ' show their charters how they hould of you,' without any explanation of the sudden creation of charters they had not got and never had had, are problems that would dumbfounder a Philadelphia lawyer. This is followed by a reference to squatting on the commons, and to 'tenants julaynes,' so obscurely worded that its meaning was never understood till it was cleared up by a statute of 1645.
45. Later on comes a reference, to Taxiaxi, without explanation of who they were, or why so called, a confounding of them with the Keys and freeholders, and vague talk of 'King Orrey's days,' without any explanation of what the c( rrnexion hetween Keys and taxiaxi might be, or whether there were any Keys in those days, or who King Orrey was, or whether he ever existed, and if so when and where; talk of written laws in Orrey's days and the time of Michael Blundell, without any explanation of what those laws were, where to be found or how lost, when and where Michael Blundell lived, and what he was.
46. These and other instances demonstrate that the degenerate successors of the Taxiaxi ---- worthiest men and deemsters as well as unworthy commons and yeomen --- were in a state of uncertainty of the most elementary details of their kings, their constitution, their assemblies, and their laws.
47. It would have been strange had it been otherwise, for sad indeed had been the fate of the unfortunate Manxmen since the death on November 24th, 1265, of Magnus, the last of the Norwegian kings of Mann.
Deprived of his strong arm and powerful influence, Mann was abandoned to its fate by King Haco of Norway in 1266. By the treaty of Perth he absolutely ceded the island to Alexander III of Scotland on payment of 4,000 marks and a yearly rent of 100.
From that year till 1290 the unfortunate Islanders groaned under the heavy hand of the Scotch.
The laws of Scotland were forced upon them at the point of the sword; the feudal system in its most Scotch, and therefore most grinding, form was introduced; and a succession of bailiffs, ruling for the King, so racked the land with heavy exactions and injustice, that they drove the inhabitants into open rebellion. That rebellion was crushed in 1275 at Ronaldsway, with a slaughter which has passed into a traditionary distich of woe.
48. The Scotch afforded little protection to the island from the plundering incursions of pirates and marauders. Its condition grew so grievous that in 1290 the oppressed and desperate islanders, assembling at Rushen Abbey, addressed a piteous appeal to the terrible ' Hammer of the Scots ' (then in the flood- tide of his martial career), imploring him to take under his powerful protection their one time fertile and prosperous country, then ' desolate and full of wrechedness for want of protection and defence'
Even in the stress of the business of two great realms, the stern, but just, Edward found time to respond to the appeal. The wardship of the island was committed to Walter de Huntercombe and a commission of three justices dispatched to hear and adjudicate upon the complaints of the people.
49. Policy, however, determined the English king on restoring the island to Balliol, which was effected in 1292, and for one hundred and forty-three miserable years the Manxmen were tossed about from king to king and from lord to lord, conquered and reconquered, bought and sold, mortgaged and pledged, and no less than eighteen successive kings or lords proprietors wrung from the island the produce of its soil and trampled on its constitution, its laws, and the liberties of its people.
It was undoubtedly during this period that the Udal tenure modified as it had not improbably been by the Norwegian kings) fell into disregard, and the land, partially abandoned by its original owners, lay open and uncultivated, desolate and wild, ready to be seized as his demesne by any lord proprietor sufficiently determined to set up the feudal system, and to endeavour to reduce the inhabitants to the legal position of serfs or villeins.
30. Such a man was at hand in the person of Sir John Stanley, to whom the Isle of Mann was granted in perpetuity by King Henry IV in the year 1406.
He and his son, Sir John Stanley the second, the ambitious, determined, and able founders of the Derby- family, soon introduced order into the distracted kingdom, and placed upon a sure basis their assumed rights as lords of the manor.
The entries in the Manorial Rolls and the provisions in the early part of the Statute-book show that the Stanleys had purported to seize unto their hands all the lands both common and enclosed, in the whole island, save those of the eight free-holders, or Barons, already mentioned, and to grant them out again to the inhabitants as leaseholds by the year, in some cases for years, and in a very few for life.
51. The three following specimen entries in the Manorial Rolls for the years 1511 and 1515, the earliest which have descended to us, demonstrate the policy which was followed by the Lord's officers in setting up a kind of leasehold tenure :-
A.D.1511. Parochia Sancti Trinitatis in Rushen.
Fysh Garth. De Jenken Martenson et Willmo Martenson pro duobus tenementis et uno quartron terrae dimiss : sibi et assignatis pro term : vijtm annorum hoc anno vjto. XXXIs.A.D.1515. Parochia Sancti T'rinitatis (Lezayre). Particula. De Johanne McCurry (Curphey) et Gilcolm McCurry pro duobus tenementis et uno quartron terrae dimiss : sibi. XVIls.
A.D.1515. Parochia de Jourby (Jurby).
Firma Molendi. De Patricio McBrew pro molendino de Carlan (Carlane Mill) cum pistar : aquae ibidem per annum dimiss : sibi. XVIs.
All the other entries are similar in form, except a few granting life estates, and they include, so far as is known, every quarterland, mill, cottage, and then existing intack in the whole island.
52. It may be noted that this Roll is reminiscent of the Orkney rentals of 1497 to 1503, which present many resemblances to ours.
The circumstances of the establishment of these rentals by the earls and bishops of Orkney, as soon as that island fell under Scotch rule, with the indirect aim of eventually feudalizing the Udal lands in pursuance of the known policy of the laws of Scotland, are suggestive of a similarity in the curcumstances of the original establishment of the Manx Manorial Roll, possibly under the provision of the treaty of 1266 already quoted.
53. The Statutes and Ordinances of 1417, 1419, 1422, 1577 and 1582 afford abundant corroborative evidence of the uncertain nature of the inhabitants' rights in their lands
Without making extended quotations, we gather
(a.) that every one was bound to keep watch and ward throughout the land, and must be ready at the lord's calling, under the heaviest penalties;
(b) that no one could leave the island without licence, whether he had paid his rent or not
(c) that no one could enclose or occupy the commons without paying the annual value thereof to the lord, and that all lands were liable to the payment of rent to the lord. (This rent, which was payable at the lord's castle in kind, has been computed to be approximately equal to the full rackrent value of the land);
(d) that every one (including an alien coming to live in Mann) was liable to be set by force in the lord's land by the Sett Enquest, who were responsible for the rent in case of failure on the part of the person so set to pay; and that every farmer's eldest son was liable to be taken from his father's farm and set by force in the holding of any tenant who became insolvent
(e) that the lord's deputy was to see that the land setting took place before midsummer, and the Sett Enquest to see that every one so set occupied and manured his land and remained on it, and paid his rent or gave sureties for its payment;
( f ) that the fences were down, and the -boundaries of farms largely obliterated, frequent commands being laid on the tenants to restore them;
(g) that in 1422 the inhabitants set more store by their goods than their farms, and that it was a matter of frequent occurrence for tenants to fail to make sufficient profit to pay their rent; and lastly
(h) that all tenants paying 6d. rent must attend the Manorial Court for his district (or Sheading) under penalty of a fine.
In 1582 the lord's officers declare in so many words (as we have already seen) that the landowners were but tenants of the lord proprietor.
And Deemster Parr, writing in tile latter end of the seventeenth century, in the passage already quoted, describes the tenure of his day as akin to copyhold.
Notwithstanding the form of holding, the custom of the country, as recognized by the customary- law and decisions of the courts, eventually construed the tenure to be in effect an estate of inheritance descendible from ancestor to heir, and as Such the estates were held from generation to generation, until at last the very form of holding by lease disappeared from the Manorial Rolls.
We have seen that: precisely the same process established the rights of the copyholders in England, and there is no reason to suppose that it differed in this island.
55. About 1643, and subsequently, the tenants, in order to get rid of several customary burdens, such as the lord's right of preemption. or being victualled at a certain low price, accepted leases from the then lord for terms differing in several respects from those usual in former times, and. consented to pay double rents for the quarterlands.
After the practice of leasing had continued for some time, the lords of the island (it is said) began to dispute the permanency of the holdings.
The tenants protested; the lords held firm; the dispute grew more and more acrimonious, till Rebellion began to break out all over the island.
56. But although determined, the Derbys have ever been judicious men; finally they compromised, and in 1704 an Act of Tynwald was passed by which the estates of the landholders were settled and confirmed.
This Act (always called the Act of Settlement) was enacted and confirmed in 1777 after the revestment of the island in the Crown in 1765, and is considered the basis of the tenure of Manx estates, excepting the estates of the baronies before mentioned.
The legal writers lay it down that the tenure settled by the Act of 1704 is akin to that known as customary freehold in England.
That is to say, the Marx customary tenant (or owner) is entitled to an estate freehold in quantity, but not in quality, and to the complete enjoyment of the land subject only to the reservation of all royalties, mines, and minerals of every kind, quarries and delf of flag, slate, and stone, to the lord, and to the payment of the annual chief rent, of a small fixed fine on every alienation and descent, to the lord, and to certain other customary burdens Of these latter, the only one worthy of notice is that ofthe office of Moarship, the principal duties of which are (or rather were) the collecting of the chief rents and fines of the parish, in which the lands lie, from the other customary tenants therein.
57. The tenant is also entitled to dig, raise, and dispose of stone and slate in his own lands for his own use or the improvement of his own and his neighbours' estates, but he cannot make merchandise of them unless licensed by the lord. He is also compelled to permit the licensee of the lord to quarry on his lands, and, if there be a quarry already opened, to permit other tenants to use it on payment of reasonable compensation for surface damage.
This burden, and the fact that all other minerals (including gold, silver, copper, lead, tin, and so forth) in or under the tenant's land belong to the lord, and cannot be worked by the tenant except under licence from, and payment of royalty to, the Lord, constitute the main practical disabilities under which the owner of land in the Isle of Man labours, as distinguished from his freehold brother in England. In practice, these are not found to discourage either Englishmen or Manxmen from investing their money in the purchase of land and houses in this island, and from lending money on them as freely as on freehold land in England.
58. Perhaps one explanation is to be found in the com- parative simplicity and cheapness attending the transfer of land here.
All original deeds affecting real estate being registered in the Land Registry at Douglas, and ranking (broadly speaking) according to priority of registration, the deeds are in safe custody and always accessible, with a great reduction in the cost of searching and verifying the title.
The freehold of the land being in the lord, and certain English statutes - such as the Statute De Donis, which was the origin of the estates tail, and the Statute of Uses, which created the complicated limitations to uses --- not affecting this island, conveyancing is free from many technicalities. The system of mortgaging is simple, foreclosure is unknown, and the mortgagee's remedies are both cheap and expeditious.
Thus it would appear that the true origin of the Manx tenure is to be found neither in the feudal system nor in the village community, but in the Norwegian Udal, which, already severely shaken by the Scots, became abrogated during the reign of the Stanleys. After being some time of a copyhold nature, the present land right was restored and rests upon the (Manx) Act of Settlement of 1704.
Whether it can now be properly called customary freehold, and described as akin to customary or conventionary freehold as it exists in many parts of England, is a matter of doubt. It is difficult to see how a statutory tenure can properly be ascribed to custom. It is certain that its incidents are not in every respect identical with the customary or conventionary freeholds as known to the English law. However that may be, it remains a matter of congratulation with Manxmen that their long struggle for the re-establishment of their original rights to the substantial ownership of their lands was crowned with success.
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