HTML Transcription © F.Coakley , 2009
[From Mann Land Tenure etc, R. D. Farrant ,1937]
1. There is possibly no portion of the Anglo-Saxon world where the title ' The Deemster ' is not known, as the hero of Sir Hall Caine's novel of that name.
We should, however, be somewhat astray in our ideas if we did not make ample allowance for the romantic imagination of the novelist in arriving at a correct estimation of the position and privileges of the official so graphically portrayed in his works.
From time immemorial there have been two Deemsters in the Isle of Man - one for the south and one for the north. They are now the only judges who still bear this title. There are, or were till recently officials who bear the title 'Deemster' in Scotland but alas how fallen from their former estate! For their sole duty was to repeat after the judge the sentence of the Court. Very different is the history of the Deemsters in Man, who now hold and exercise duties even more important than those which were their peculiar jurisdiction in early times.
Before entering upon a consideration of what these early times were, how exercised, in what circumstances and accompanied by what solemnities, it may be well to recite briefly the position as it is at the present day.
2. A Deemster, in his legal capacity, holds a position analogous to that of a justice of the Supreme Court of judicature in England. In Man this Court is called the 'High Court of justice of the Isle of Man.'
By ancient custom he is addressed as 'Your Honour' in that respect resembling rather the Colonial than the English judges. His powers fall in no whit below that of a High Court judge in England. His jurisdiction in all cases of a civil nature, such as actions for debt, damages and the like, is unlimited alike in duality and quantity. He can entertain actions in any jurisdiction such as on the mainland are divided amongst Divisions of the Court - the King's Bench, Chancery, Probate, Divorce and Admiralty - and where money cases are involved, to any amount from 40s. upwards. He also sits as a member of the Insular Court of Appeal, called the Staff of Government Division - it is supposed in reference to the staff or wand still held by the Lieutenant-Governor (formerly the President of the Court) when sworn into his office.
In criminal matters he has the full jurisdiction of a justice of the King's Bench, including the melancholy and, fortunately, rarely exercised prerogative of sentencing to death anyone who has been convicted of an offence so punishable.
The Deemsters sit every week in one or other of the four towns of the island to deal with cases which can be disposed of without a jury, and with juries from time to time in the year during the legal terms. The Senior Deemster (who also has the title of Clerk of the Rolls) takes all cases of an equitable nature in the Chancery Division.
The consideration of the Deemster's Legislative position and duties will be left over for consideration later on.
3. We will now attempt to penetrate the mists of the past, and see what can be gathered as to the origin of this interesting survival of antiquity. And first as to the title itself. The title 'Deemster ' is derived probably from - is indeed the same word as - the Icelandic ' Domstaurr,' and was almost certainly introduced into the Isle of Man during the period of the Norse Kingdom of Man. Throughout the ninth century chieftains and their followers from Norway and the Western Isles of Scotland conquered and settled in Man, establishing a kingdom, under the nominal overlordship of the King of Norway, which lasted for the better part of 400 years, only coming to an end on the death of King Magnus (of Man) shortly after the celebrated battle of Largs in A.D. 1265. The Manx King, with a powerful fleet, had joined the King of Norway previous to that battle, but was not actually present at it, having been sent up the Loch in an endeavour to turn the flank of the Scots forces. I have dealt in former chapters with various aspects of the Norse influence in relation to the Manx constitution, land tenure and divisions, and laws, to which particular reference may be made. Suffice it to say here that the resemblances between the Manx and the Icelandic model, so graphically and minutely described in the Sagas, are, in my opinion, too close to be dismissed with any facile references to similarities which may be observed amongst men in different countries, but of similar race and in the same state of civilization. That such resemblances often exist and can be traced by painstaking investigators is demonstrable. But in no instance of which I have any knowledge is the parallel as close as between the old Icelandic and Old Manx usages. In no instance, if we come to consider it closely, is this more marked than in the title, duties, privileges and position of the Deemsters, who alone, in the whole Teutonic or Scandinavian world, still maintain their original jurisdiction in Man.
4. The definition of ' Domstaurr' is given in the Cleasby Vigfusson Dictionary as follows: ' a Court bar, properly Court Raile but used in (Norges Gaml Love 1, 220) of select men who stand outside and pronounce an opinion on the case.'
This definition of the Deemsters' duties and position may, perhaps, surprise those who have not studied the ancient and, indeed, medieval idea of a judge. Those who have will not need further enquiry into the matter. Those who have not may be reminded of the curious legal procedure so graphically described in ' The Merchant of Venice.'
When Shylock appears before the Court of the Doge of Venice, who sat in the high seat of judgement, and proves that Antonio has incurred a forfeiture of the bond he had given, and demands judgment or sentence on the defendant, the Doge calls in a learned lawyer to give his opinion and pronounce the doom. And this was no poetic fancy, as the incidents incorporated by Shakespeare in his play were the subject of more than one well-known story and play of his time. Turning to the Insular Statute Book, we find this peculiar procedure illustrated. For example, in the customary laws declared before Sir John Stanley II at Castle Rushen ' in the vigil of our Lady St. Mary A.D. 1422,' we find it declared 'that all great matters and high points that are in doubt, even as they fall, I will that my Lieutenant, or any of the Council for the time being, take the Deemsters to them, with the advice of the elders of your Lordship of Mann, to deem the law truly to the parties as they will answer to me thereof.' And numerous examples of such deemings of the law by the Deemsters with the twenty-four Keys are contained in the Insular records.
5. It is instructive to turn now to the Njala Saga and study the dramatic story of the great trial in Iceland for a blood atonement of the men who burnt Njal and his sons in their house. When the defence of the burners by Eyjolf reaches a certain point in the complicated technical procedure Flosi, the defendant asks Eyjolf ' Can this be law.'' and Eyjolf has to admit that he does not know. Reference is then made to Skapti, the Lawman or Speaker of the Law, to declare whether the point raised was good law or not, and his answer decides it. It is clear from the context that Skapti was rot actually present at the trial and was not one of the thirty-six judges before whom the case was preceding. Later on in the trial the defendant was again in doubt on the legality of a point raised by the plaintiff, and a second time a messenger was despatched to Skapti to decide and his answer was taken was final. Thus we see the appropriateness of the Manx title of 'Domstaurr' as one who stands outside and pronounces an opinion on the case..
Dasent, in his exhaustive preface to the Njala Saga, tells us that the office of the Speaker of the Law in Iceland had come into existence with the first establishment of a central organization for what had previously been a scattered collection of chieftainships. About sixty years after the first settlement of Iceland by the fugitives from Norway and the Western Isles of Scotland, flying from the wrath of King Harold Fairhair of Norway, steps were taken to turn Iceland into a commonwealth, and give the island a legal constitution. The first want was a code maker, the second a common place of meeting. After much search both objects were attained, the ' Thingvalla ' plain being chosen for the sittings of the 'Althing.' Here was erected a Hill of Laws, after the model of the mother country of Norway. And here the first meeting of the Althing was held in June, 930. It is interesting to recall that such assemblies gathered on similar hills in the open air for the like purposes in Shetland, Orkney and the Isle of Man. These were called, as in Iceland, ' Thingvalds' (or Tynwalds) and are still so called, although those in Shetland and Orkney are mere place names and have long since ceased to be used, or even to be discernible, except to the eye of faith.
The code of laws was brought back from Norway by Ulfljot and solemnly adopted as the law of Iceland at the 'Althing ' held at Thingvalla. We have little information as to its contents. The Althing was a partly religious, partly judicial and legislative assembly. On the great lava field, seamed and scarred with the fury of volcanic fire, solemn sacrifices and great feasts were held in honour of the gods. In its legal capacity, it was both a deliberative and executive assembly - both Parliament and high Court in one. The State was an aristocracy, and the Court of laws (logretta) at the Althing was virtually in the hands of a very few persons. The close resemblance to the Manx Tynwald has been noted in Chapter II.
In Man, up to the year 1866, the House of Keys was both Legislature and the highest Court of Appeal for judicial cases. It was composed of the twenty-four principal landowners in the island and was self-elected, without any reference to the popular will, and once a year it met in the open air at Tynwald. Returning to our more immediate subject of enquiry, it is to be noted that with the establishment of the Althing in Iceland came a new office. In those days there were no books - everything was traditional - the law itself was committed to memory and the custody of faithful lips.
There were, indeed, private persons invested with no official character - called 'Lawmen - who had made the customary law their study and learnt its traditional precepts by heart.
When the Althing was established, we first hear of a law officer called ' Logsogumadr,' or ' Speaker of the Law ' - sometimes called the ' Lagman ' or 'Lawman' simply. His duties were to recite publicly the whole law passed within the space of time to which the term of his office was limited. To him all who were in need of a legal opinion, or of information as to what was or what was not law, had a right to apply during the meeting of Althing.
To him, too, a sort of presidency at the Althing was conceded, but he was expressly excluded from all share in the executive, and his term of office restricted to three years, though he might be-and usually was-re-elected.
6. A remarkable example of the Lawman's powers was that which he exercised in the year A.D. 1000, when the proselytizing Hjallti and Gizur endeavoured to convert the pagan Icelanders to the Christian faith.
The Teutonic races were slow to abandon their stern and bloody mythology. Centuries after the Roman and Celtic world had adopted the truths of Christianity, the German, Scandinavian and Anglo-Saxon warriors held fast to the ferocious maxims of Odin, and the foreteIlings of the Valkyries who wove the woof of fate with the entrails of men. At the fatal battle of Clontartf the last expiring effort of the Odin worshippers was quenched. with the coming of king Olaf Trygvison, the Norwegian Court had been converted. From hirti the missionaries took their inspiration, if not their actual orders, to persuade the Icelanders into submission to thc Christian faith. The passages of the Njala Saga describing the process of conversion are simple, but dramatic. The Christians and the heathens assembled at Thingvalla having declared themselves each out of the other's laws, reference was made to Thorgeir the priest (or Godi) of Lightwater, ' The Speaker of the Law,' who was given three marks of silver to utter what the law should be, ' but still that was the most hazardous counsel, since he was a heathen.'
Thorgeir lay all that day on the ground and spread a cloak over his head, so that no man spoke with him.' Afterwards he addressed the people at the Hill of Laws deploring the probable results of their divisions and took pledges from them all to abide by his opinion. Then he spake, ' This is the beginning of our laws that all men shall be Christian here in the land, and believe in one God, the Father, the Son and the Holy Ghost, but leave off Idol worship, not expose children to perish, and not eat horse-flesh. It shall be outlawry if such things are proved against any man, but if these things are done by stealth, then it shall be blameless.'
He then uttered the law as to keeping the Lord's Day and fast days, Yuletide and Easter and all the greatest highdays and holidays. 'And so all men' (says the Saga writer) 'became Christian here in the land.' And thus the wily old priest-lord stage-managed this epoch-making event
7. Let us now turn to a consideration of the legislative position and duties of the Deemsters of Man at the present day. We have seen (see Chapter II) how every year at St. John's, in the centre of the Isle of Man - no doubt named after the fair day dedicated to St. John the Baptist, held there on June 24th (N.S. July 5th) - the Insular Legislature assembles in Tynwald to promulgate the laws of the year. A procession is formed to an artificial mound in the open air called ' Tynwald Hill,' on which the Lieutenant-Governor, the Bishop. the Legislative Council, the Deemsters and the twenty-four members of the House of Keys take their seats, surrounded by the members of the general public, who stand in the fair-ground all round the hill. To them tite Senior Deemster publicly recites all the Acts passed by the Legislature during the past year. No one but he takes any active part in the proceedings, except the person (up to quite lately the Deernster himself) who translates the English of the recited Acts into Manx. The Deemster swears in the coroners (or sheriffs) and dills for three cheers for ' the King,' and the ceremony is over.
If ever the Manx Deemsters were elected like the Icelandic lawmen, this qualification has long since fallen into desuetude, but their divorce from the executive is still illustrated in theory (though not in practice) by the fact that the Deemsters sign all Acs of Tytnvald in a special place distinct from the rest of the Legislative Council.
The Title of all Acts of the Insular Legislature mentions them specially, and not as part of the Council. It runs, 'BE IT ENACTED BY THE KING'S MOST EXCELLENT MAJESTY, BY AND WITH THE ADVICE AND CONSENT OF THE LIEUTENANT GOVERNOR COUNCIL DEEMSTERS AND KEYS IN TYNWALD ASSEMBLED.'
8. It will now be understood why it was that the theory that the Deemsters were supposed to know all the law, and to declare it when asked from their traditional knowledge, led to the idea. still found in some dictionaries, that the laws of this island are known as 'Breast Laws' - being supposed to be locked up in the breasts of the Deemsters and known only to them. However well founded this notion may have been in ancient times, it is certainly so no longer (having been abolished 300 years ago), and the Deemsters deliver their judgments according to the principles of law as embodied in the Insular Statutes and decided cases in the British and Manx Courts.
In old days the Decmster could, and sometimes did, hold his Court wherever he happened to be, summoning parties before him by means of a stone, on which he scribbled his initials, and by virtue of which the coroner (or summoning officer) acted. Now the procedure approximates to, and is indistinguishable from, that which prevails in Great Britain.
The history of the Deemstership, from the days of the Norse Kingdom of Man, is an interesting one, and deserves a more detailed treatment than I have given it.
It seems undoubted, however, that the Manx Deemster is the descendant in a direct line of the ancient Speaker of the Law of Saga days, and in possession of such of his ancient privileges as are compatible with modern usages.
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Any comments, errors or omissions gratefully received
The Editor HTML Transcription © F.Coakley , 2009 |
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