HTML Transcription © F.Coakley , 2009
[From Mann Land Tenure etc, R. D. Farrant ,1937]
The original imposition and incidence of this tax has been long a subject for conjecture.
In the absence of the earliest rentals, we can never, perhaps, attain to certainty.
The evidence available may be mustered under two heads, namely :-
l. Analogies drawn from other British islands contemporaneously under Scandinavian sway.
2. The Lords Rent Roll and other documentary evidence.
1. The more fully the facts are examined the more they militate against the theory that the feudal system ever obtained de jure in the Isle of Man. Whatever may now be the correct designation of Manx Land Tenure, whether allodial or statutory under the Act of Tynwald of 1704, nothing seems clearer than that it cannot have been feudal in a sense that English lawyers use that term, notwithstanding the feaudalizing usurpations of the overlords since the island fell permanently under English rule. The Scandinavian settler held his land from no superior- he owed no fealty or service to an overlord His family was the ultima haeres, and so strict was this right that, not only could he not dispose of his land save in the case of poverty, but, even in that event, any member of his family had a right of pre-emption, and even of redemption at the original sale price, against which time was no bar.
With some exceptions, no military service was due from the odaller, who gave or withheld his aid to the king or earl at freewill, and according to his opinion of the merits of the great man's quarrel, or of his powers as a leader and success as a f reebooter.
Nor were the coming of age of the king's eldest son, or the marriage of his daughter, subjects of more than a sentimental interest to the landholder, who perhaps heard of them first from the womenkind, in all ages agog with the doings of the court. He paid no rent or tax for his land save that still called ' skat ' in Orkney and Shetland.
It is into the origin and nature of this payment that we propose to inquire. Before doing so, let us note one privilege possessed by the landowner, which may be of significance.
2. A considerable portion of the lands once forming part of the Norse king's dominions in the British Islands is not easily, or at all, adapted for intensive cultivation.
Ranging from Man, with its comparatively extensive area of arable land, to Shetland, where the quantity of such land is insignificant, by far the greater part of the surface was, and to some extent still is, waste or hilly land covered with peat and grown with gorse, ling, heather, and a kind of coarse grass. To the frugal-minded lowland farmer or midland yeoman the condition of this land might appear to be clear evidence of deliberate neglect, and form an effective count in the indictment of the landlords before a Battersea or Limehouse audience. Not so to many an island freeholder of the tenth century, who looked upon the unenclosed waste as a necessary and considerable part of his means of livelihood.
On it roamed his sturdy little sheep and ponies which served him for food, clothing, and labour.
From its barren steeps he cut and dried the peat which preserved him and his family from the rigours of the long dark winter, and here his hardy cattle grazed during the summer, whilst the ling and heather served for their bedding when stalled.
Hundreds of tiny mill-wheels hummed in the rush of the streams which gathered in the spongy soil, and the well-to-do found their recreation, and humbler folk agreeable additions to the family larder, in the abundant game and fish which were common to all.
Common to all landholders, that is to say, for such rights were incident only to landholding.
People who dwelt in enclosed towns or burghs, for instance, did not share in them, as will be seen.
Although these ancient rights have become much modified in Man, in Shetland they still linger where the alien land-encloser has had his nefarious activities restrained by the beneficent operation of Acts of Parliament.
3. In all the British Isles there is no more picturesque or romantic area than that occupied by the hundred islands which compose Shetland (N. Hjaltland). An outcrop of the great shelf which divides the Atlantic and North Sea from the Arctic Ocean -- from Muckla Fhugga to Sumburgh Head they are battered by the mountainous seas Churned up at this meeting-place of the winds and tides into a phantasmagoria of rocks and voes, beetling cliffs, auul sandy inlets.
Bare of trees, sparse of vegetation, itt almost perpetual gloom for a great part of the year, the wild beauty of their brief summer is unequalled in its appeal to the artistic sense. Here it was that the Norse sway lingered for two centuries after Man and the Isles had passed under the suzerainty of their powerful neighbours.
And here, to this day, the inquirer can visualize something of the conditions of life in which the Scandinavian settler moved and had his being'.
The landholder's Tumale (or strip of cultivated land), enclosed within walls built cunningly of dry stones after the fashion of his Pictish forerunners, lies surrounded by the unlimited waste of hill and unenclosed land.
Deeply scored with peat cuttings, they serve as the grazing; ground of the Shetlanders' cattle, sheep, and ponies, whose toy Noah's Ark-like markings splash brilliant colour in the silvery sunlight against the rich dark green of the hillside. Pasturage, peat, and divot over the waste composed, as they still do, the ancient right, indefeasibly attached to each landholding, the owner of which paid skat.
4. The subject of much literary discussion and prolonged litigation, the theory of the nature and incidence of skat is possibly most accurately expressed by the late Mr. Gilbert Goudie. We have seen that the Scandinavian settlers recognised no superior, and paid no duty implying vassalage in respect of the enclosed cultivated lands under their own control.
Skat, nevertheless, was exacted from enclosed lands from the earliest known period.
We have also touched on the valuable right over the waste of the hills and unenclosed pasture exercisable by the landholder in respect of his holding.
The waste, whilst unenclosed was the subject of no individual ownership.
It was, so we may well agree, 'the Almenning, the communty, or Skattald, vested in the Sovereign, as representing the community, for the freedom and use of which skat or duty was imposed upon every mark of occupied land having a natural claim to that privilege.'
Supporters of this theory claim to find confirmation of their view in the early deeds and charters, and in extracts from old rentals.
In Shetland titles of the present day the proportional right of Skattald is reserved unless a division has previously been made by which the whole boundaries have been defined. Towns or burghs were declared in the rentals 'to pay no skat quia quoyland,' - that is to say, that the property and its privileges are all surrounded with a dyke, and do not extend to the hill or unenclosed waste.
The skat was, in later days, clearly defined and distinguished from the land skuyld (land mail or land tax), leviable for the mintenance: of Government.
To the proceeds of skat, so payable, the donatories of the Crown - which had purchased the earldom rights - laid successful claim, but, so far as the Skattald was concerned, their attempts to enclosure and exclusive possession have ever been vehemently, but seldom successfully, resisted.
A large, perhaps the larger proportion of the Skattald, has been filched from this gentle-mannered people, who, deprived of the protection of their ancient laws and customs, ceaselessly struggling to win a livelihood from a few roods of earth and the dark and stormy seas, were in no condition to withstand the encroachments of the dour and unsympathetic overlords and their land-hungry retainers.
The enclosed and appropriated lands in Man are for legal and assessment purposes divided into four categories, namely :-
1. Quarterlands.
2. Intacks.
3. Mills.
4. Cottages.
(1) Quarterlands include the bulk of the arable lands which are enclosed and cultivated.
(2) Intacks are the portions of waste from time to time licensed to be enclosed, of which those known as ' Intacks of Ease to Quarterlands ' were regarded for all purposes as of quarterland tenure, in contradistinction to ordinary Intacks which, till they had passed three desecnts, were up to 1777 treated as chattels divisible amongst the next of kin on an intestacy, divisible by will and alienable by deed. The portions of waste enclosed were of small extent in the early Rolls, but since the feudalizing tendencies of the overlords have had free play, licences have gone on apace, not merely to enclose as an easement to quarter- lands, but often as a separate and independent holding.
(3) The mills explain themselves.
(4) The cottages, which formed the ancient villages, have not been added to for a long time for the reason, apparently, that the considerable modern development of towns, notably in the case of Douglas, has taken place over existing quarterlands. There were, it would appear, no burghs or enclosed towns with boundaries and privileges defined by charter or otherwise in Man - as in the case of Kirkwall in Orkney - and the cottages were separately rented and included in the Rolls following the quarterlands and intack entries.
The right to affect the common flow of water in rivers by means of mills, or to enclose or occupy portions of the waste as intack or cottage are, no doubt, legitimate objects of taxation at the hands of the lord as representing the community. But why should the quarterland owner pay a tax so foreign to the ideas of Scandinavian law?
Let us inquire further into the matter in the light of the Shetland analogy, noting by the way that the waste in Man, whilst unclosed, bears no rent, and that it is there called ' the Common lands.'
6. Of the total area of land comprised in Man some 27,000 acres were unappropriated and unenclosed, and were part of the ' Forest' (so called) in the year 1860, when the settlement referred to below was arrived at. The original privileges of the quarterland owner to pasturage and so forth over the ' Forest' (or more properly the ' Common Lands ') were similar to those of the Shetland skatholder.
In the Disafforesting Act, 1860, their claims were described as 'certain rights of common.'
These became impaired in course of time by the encroachments of the Lords, and later of the Crown, which eventually began to assert a right, not only to be ' seised and entituled of and in the Waste and the freeholder thereof,' but also to ' the rights of Fowling or Sporting thereover and to Herbage and Turbary and Feed of Deer thereon.' The Crown further claimed a right to enclose or approve or to grant licences to any British subject to enclose or approve any part or parts of the forest, subject to the reservation of all lawful highways, watercourses, and turbaries. The riots to which this usurpation gave rise in the middle of the nineteenth century are still fresh in the memory of old people. The Governor of the day, with the Deemster, supported by a company of English regulars, met the incensed people. on the hill-side, ,vhere the noxious fences were being destroyed, and only the tact and discretion of its leaders and the intervention of the Deemster averted bloodshed. A compromise was finally effected by which the Common Lands were divided between the Crown and the landholders, and the latter's portion was by an Act of Tynwald (Disafforesting Act, 1860) vested in the 'Trustees of the Common Lands,' one for each of the six Sheadings, elected by and out of the Lords rent payers, with power to manage the property on their behalf and pay over the net profits at regular intervals in reduction pro tanto of the annual Lords rent.
7. In 1511, before the sharp distinction between the Lords or Baron Courts and the ordinary Courts of Law had been drawn, the enclosure of portions of the Common Lands appears to have been affected through the agency of the "Setting Quest " or Parochial jury of four, since the entries at that date are (with the exceptions noted below) expressed to be 'per' that jury whose names are given at the heading of each parish. The officer in charge of the proceedings was the Receiver, the other officers of the Lord (or some of them) being also present. In later times the Lords Governor or Lieut. Governor was given power to grant such licences. The procedure commenced with an application to him, and the practice grew up of referring the matter to the ' Great Inquest,' or Sheading jury of twelve to certify the quantity and the boundaries of the plot sought to be enclosed, reserving all common ways, water courses, or turbaries. The licence was presented by the applicant to the Baron Court, who had an annual quit-rent set upon the land, and an entry made on the Roll admitting the party, and charging him with the rent and a fixed alienation fine.
The curious fact that intacks so enclosed (not being intacks of ease to quarterlands which had passed one descent) were, till they had passed three descents, not counting the original encloser, treated as chattels, devisable by will, and distributable amongst the next of kin on an intestacy, has already been touched upon. Its resemblance to the well-known principle of early Scandinavian law whereby land was divisible amongst all the children of a deceased landholder, the eldest son getting only the first choice, has already been referred to. In course of time the law was altered, and the rights of the eldest son were extended to give him the head buill or manor house and farm, the younger children being compensated out of the remaining lands, or given interest in the head buill.
Thus the right of primogeniture grew by stages, eventually in Man giving all the inheritance lands to the heir, subject only to the dowry of the deceased's widow.
But Manx purchased quarterland (till the year 1662), purchased intacks of ease, and detached intacks, mills, and cottages till they had passed three descents (till the year 1777), were treated as chattels divisible amongst the next-of-kin of an intestate. Returning to the subject of inquiry, it is to be noted that, before a licence would issue, the intervention of the Great Inquest was sought.
This body is specially charged with the preservation of common rights, and, till its abolition a few years ago, its aid was invoked by any one alleging an invasion of a highway, water-course, or other public easement In such event the practice was that the Great Enquest, after inquiry, should make a return or presentment to the Court certifying whether any infringement of such a public right has been proved against the offender. From this it is a reasonable deduction that their intervention (as distinct from that of the Setting Quest), in the process of licensing enclosures of the waste or Common Lands was connected with the preservation of public rights. The reference to them always contained a direction to reserve all public highways, watercourses, and turbaries, and the licence formally reserved any such public rights in general words, whether specifically found or not.
Of these the earliest yet discovered is in the Rolls Office at Douglas and is dated 1511-1515. It is an interesting document in crabbed script, abbreviated and polyglot as a doctor's prescription. It purports to be a Setting of the Lands and Tenements of Thomas, Earl of Derby, the then Lord of Man and the Isles. Internal evidence supports the conclusion that it is but the continuation of earlier Rolls. The entries are arranged under the headings of the seventeen parishes, subdivided marginally into what are generally called Treens, bearing names of some Celtic, some Teutonic, and some mixed origin. Other sub-headings enumerate the sums payable in respect of mills, cottages, portions of the waste let off, particles, breweries, rights of fishing, fines, and amerciaments, and for the offices of Coroner and Moar. This latter office was possibly of considerable importance in ancient times. From time immemorial he has been chosen in rotation from the owners of quarterlands in the parish, and his duty it was to collect all the Lords rent in his district for the total amount of which his estate was liable to the Lord. The rents are still based on the assessment in force in 1511-1515, or rather on double that amount in accordance with the arrange- ment embodied in the Act of 1704. The Southside Setting was made in 1511, the Northside in 1515. There are subtle differences running through the entries which would be worth further investigation indicating a more pronounced tendency towards feudalization in the south than in the north. Here follows some typical entries on the Rolls :-
Parochia Sancti Trinitatis in Rushen.
Fyshgarth. xxijs
De Jenken Martensen et Willmo Martensen pro duobus tentis et uno quartron terre dimiss : sibi et assignats : pro termino septimo hoc anno sexto xxxjs
This is an unusual form, implying a lease for years and assignable. It illustrates the development of the feudal encroachment, which grew to its height in Stuart times, but did not succeed in the face of the popular resistance.
Parochia Sancti Columba.
Balydoill.
De Thoma Stevenson pres j tento et Cma acr terr : per estimat. eidem partem nuper 1s per annum dimess : sibi et assignat, suis ut supra lvjs viijd
This is still more unusuial, hardly any land being given by admeasurement, or the rental altered.
Parochia Sancti Lupi.
Totnamby.
De Willmo McKee pro j tento quartron terr dimiss : sibi up supra viijs viijd
This is the most usual form of quarterland entry, except that in the south of the island the assigns were often included,
Parochia Sancti Patricii.
Dalby.
De Jobe McCole cute Willmo fil : et Thomlyn McGell pro uno tento et uno quartron terr : duniss : sibi xvjs
This parish is in the north side of the island. The entry is in the usual form and of the average quarterland rent. From the north side entries the following are taken at random :-
Cotag°.
De Gibbon McJohn Rede pro uno cotag'' dimiss : sibi xiijd
De Fynlo McCorleot pro uno cotag° per iiij jur vjdFirma Molendi.
De Johe McChristen pro molendinos de Breryk et molendino de Altasdale dimiss : sibi xijs
Bras.
De uxore Johs More McFayle &c pro plumbis suis iijs vijd
This heading refers to a brewery, of which there were formerly one or more in every parish.
Officio Coron : et Majors. Dnini.
De offic : Coron Dmni ibm hoc annio occupato per Thorn : McFayle xls
De offic : Majr Dmni ibm hoc anno occupato per Mold McCorleot xiijs ivd
The fees for these offices varied in different districts. The Coroner has, for a long time past, been the officer of the law who serves and enforces the precepts and judgments of the Courts as well as performing certain other duties.
The Moar's duties have already been referred to.
9. The entries relating to Intacks are generally in form following :-
Firma Vasti.
De Patrico McNidragh Agnete ine Kynrede- Morganete ine Keneagr-Johnete ine Kegr et Isolt ine Waltr pro vasto per iiij jur ijs vjd
The large number of women, often unmarried, entered for the Intacks in the North side by the Setting Quest might lead us to surmise that these were the lands of the younger brothers and the sisters of the eldest son which were to be their respective lots, ' according to the estimation of neutral men' (see Norwegian Law Book, liber 5, cap. 2, art. 63). Now do these Firma Vesti Settings cover the lands subject to the quarterland owners' rights of pasturage? Apparently not, for here and there - in perhaps half a dozen instances -- we get: under the Treen headings mixed up with the quarterland entries, such settings as these :-
Parocia Sancta Michaelis.
Balytere.
De dicto Hen : (i.e. Henry McGawne already entered for half a quarterland) pro parvo parcello terr : de cor pastur' inclus per jur: presento.
Light is thrown upon the identity of the presenteng jury in the following entry, also amongst the quarterland entries and affecting persons already entered for quarterland
Parochia Sancti Trinitatas.
Alcest.
De Johe McNele et Johe McMartyn Willmo McCurghey
Gibbon McCasmund et Johe McOttr Hugo Goldsmyth
Johe McSherffr uxore Donald McCraye pro clausis de ' cor pastur : in le Anres ' per xij presento viijd
Although it apears from one or two other entries that the Setting Quest dealt with such temporary enclosures of the ' Cor pastur ' as were expressed to be demised to the encloser, the above entry shows the process of presentment by the ' XII ' or Great Enquest. We have seen that this was the traditional procedure followed where common rights are in question.
And we may surmise that those enclosures formally presented by the Great Enquest, and entered on the Rolls in Open Court afford an early example of the marking out of the boundaries and division in Severalty of the Common of pasturage amongst the quarterland holders in a particular Treen, either by agreement or by the decision of the jury on the merits.
10. To sum up the evidence so far dealt with, we have, firstly, the. Shetland analogy; secondly, the existence of the Common lands, and the exclusive rights of the landholders over them; thirdly-, the proccss ot Intack Enclosre: and fourthly, the form of entries on the early rolls in special reference to the Waste, and the land affected hy pasturage rights, touching on the intervention of the Great Enquest. Of these, the provisions of the Disafforesting Act, 1860, allotting the net profits of the Common lands in payment pro tanto of the Lords Rent, is perhaps the most significant. It argues a traditional recollection of the one time intimate connexion between Lords Rent and Rights of Common, the origin of which had probably been forgotten Instances of such survivals in practice, when the original significance has long passed out of mind, are as common in Man as elsewhere. Fifthly, the Lords Rent (like the Skat) was distinguished from the taxes for the maintenance of government. When the Imperial Government purchased the sovereignty of the island from the Duke of Atholl (the then Lord of Man) in 1767, the Lords Rents remained in the hands of the duke for many years till their eventual purchase along with other properties reserved. During this time the Imperial Government provided for the maintenance of government from other sources and established no claim to be reimbursed these amounts from the duke. Nor is there any evidence as to the Lords Rent being used for the maintenace of government in former times, and it is certainly not so now.
11. We conclude with the picture called up in the mind's eye of the ancient landholder of Man, his privileges and his immunities. First we see the Chief Godar, either the wealthiest or, more probably, the ablest and most progressive of the Godi of the Parish. He it was who acted as the parish leader in time of war, their judge in peace, one of the chosen ones (or Keys) for the Sheading in the Legislative and judicial assembly at Tynwald, and, in heathen times, their priest of the Hofud Hof or Head Temple.
The Godords (or manors) of his and the other Godi were identical, we may suppose, with the Treens (so called), each of which comprised many hundreds of acres of arable land.
These distinguished personages must have been comparatively few in number, for the average number of the Treens other than Church lands is roughly only ten for each of the seventeen parishes of Man.
Next in importance to them were the holders of the quarterlands into which each Treen was divided, nominally four in number and actually so in case of some parishes - notably Lonan - even so late as 1511. Composed, probably, of members of the same clan, possibly all more or less nearly allied to the Chief Godar, who, or his ancestor, had led them forth in a Viking ship from the motherlands of Scandinavia on a voyage of conquest and land settlement, they formed, along with such of the Celtic landholders as had accepted the rule of the Norse king and his Law Book, the Freeholders of Man. Owing no service for their lands, they enjoyed the profits of their quarterlands without further exactions than they periodically suffered at the hands of the exasperated Scotsmen and Irishmen upon whose coasts they made occasional and lucrative forays.
Paying no rent or tax for their quarterlands, their rights to the freedom and use of the Common Lands were, however, assessed to Skat, which, if our inquiry be well directed, is the genesis of the Lords Rent, and possibly hides the original meaning of the ' Taxiaxi,' the Keys, or leviers of Skat.
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Any comments, errors or omissions gratefully received
The Editor HTML Transcription © F.Coakley , 2009 |
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