Any comments, errors or omissions
gratefully received The
Editor
HTML Transcription
© F.Coakley ,
2001
[from History of IoM, 1900]
THE CIVIL CONSTITUTION SINCE THE REVESTMENT.
Before the Revestment the Constitution had already assumed a definite form,1 so far as regards the three governing authorities—the Sovereign, the Governor and Council, and the Keys—and their mutual relations, and that event made no changes in it, except by transferring the regal rights of the lord to the English Sovereign. The lord continued, however, to retain his manorial rights, including the unique power, for a subject, of the patronage of the bishopric, as well as of most of the livings, and it was not till between 1825 and 1829 that these last remaining vestiges of the feudal dominion were extinguished, and the king of England acquired the whole of the privileges which were anciently connected with the lordship of the island. We will now trace the main constitutional changes which have taken place since 1765.
The position of the governor 2 continued to be much the same as before the Revestment till after the constitutional changes of 1866. In consequence of these changes, and of the force of character and administrative ability of two able men, Loch and Walpole, who were governors for a period of thirty-one years, 3 the governors have come to perform many more public duties than formerly. Thus, after 1866, the governor had a substantial revenue to dispose of ; its management, subject to the approval of the Tynwald Court and the control of the Treasury, was entrusted to him, and he claimed that no motion involving expenditure could be made without his sanction, i.e., that he alone had the power of initiating all motions concerning the expenditure of the revenue. 4 To sum up the situation —the governor is the supreme executive authority,5 and he shares the control of the legislative and administrative functions, including the management of the revenue and the control of its surplus, with the Tynwald Court, both being subject to the supervision of the English Government ; he has, also, the power of veto as regards the disposal of the surplus revenue 6 and the nature of proposed harbour works, 7 and his signature is necessary to the validity of all Acts. It has been the practice for him to act as Chancellor of the Exchequer and to initiate all questions concerning the raising or expenditure of public funds.8 On the whole, if the powers of the governor before the Revestment and at the present day be compared, it will be admitted that, though employed on more numerous objects, they are distinctly smaller, or, perhaps, we should say, less likely to be exercised, now than formerly. This is partly due to the fact that the modern governor is subject to the control of an ever active and alert department of the English Government, while his predecessor was controlled only by a lord who did not, as a rule, interfere with his management of insular affairs, and partly also to the greatly increased force of public opinion, and to the argus eye of the Press. A Governor Home, just as much as a Bishop Wilson, would be an impossibility in these days. Although Walpole in one passage speaks of the " almost autocratic authority " 9 of the governor, he fully recognizes that it is subject to important limitations. He admits that " in practice, a Governor thrown into constant communication with the people, who approach him on every kind of business, and periodically confronted, not with his Council alone, but with the two branches of the Legislature in Tynwald, necessarily learns to mould his views to the people’s views, and to give shape and effect to their wishes." 10
The office of comptroller was done away with in 1765, his place as manager of the land revenue being taken by an official, who, till 1826, was called the duke’s agent, and, after that date, the Crown agent or Crown receiver. An official, called the seneschal, was appointed in 1765 to preside over the duke’s manorial courts. After 1826, he became a Crown official.11
The clerk of the rolls continued to perform much the same duties as before. He became a judge of the High Court in 1883, and was given charge of the Chancery Division.
The receiver, called "receiver-general and collector " between 1765 and 1832, and, since then, receiver-general only, had, after 1765, no land revenues to collect. He shared the work of collecting the customs duties and port dues with the water-bailiff till 1832, when he was superseded by the appointment of a collector, who was taken from among the members of the English customs service. It would seem that, between 1832 and 1835, this official performed no duties 12 whatever, but, in the latter year, he was constituted Chairman of the Harbour Board, a body which was at that time appointed by the English Government. 13 Till 1791, he was deprived of his seat in the Council on the ground that he was not appointed by patent under any of the royal seals, but he was then, on the representation of the commissioners, restored to it. He did not, however, take advantage of this privilege till 1813.14
Between 1832 and 1872 he did not sit in the Council, though there seems to have been nothing to prevent his doing so. In 1872, when the appointment of the Harbour Board was vested in the governor, subject to the approval of Tynwald, he resumed his seat.15
The water-bailiff seems also to have been continued to be called "collector " between 1765 and 1791, during which period he was deprived of his seat in the Council for the same reason as the receiver-general. After that date, except between 1852 and 1866, when he held inquests of deaths, he exercised his functions as " Admiralty " judge only, and was restored to the Council, though it is not recorded that he sat in it till 1819. 16 He continued to be a member of that body till 1885, when his office was done away with.
The attorney-general remained as before, and, as regards the deemsters, the sole change was a temporary one, there being only one of them between 1777 and 1793.17
A new office, that of clerk to the Council, was created shortly after the Revestment, and, in 1867, a treasurer was appointed. These offices, with that of governor’s secretary, are at present held by one person.
In 1777, the office of captain of the towns was abolished, its " civil " duties being transferred to high-bailiffs, who, in 1857, also became presidents of the licensing courts in their districts.18 In 1866, the duty of taking inquests of deaths was transferred to them. After 1860, their powers as to ordering the repairs of streets, removal of nuisances, &c., were taken over by popularly elected bodies.19
The coroners, lockmen, and moars remained as before, except that, after 1852, the coroners no longer took inquests of deaths.
The runners have been dispensed with.
We have now to consider the changes which the
Courts of Justice have undergone since the passage of the Revesting Act. By that Act, the judicial authority of the lord being abolished, the Court of the King in Council, or the Privy Council, became the immediate, as well as the last, court of appeal from the insular jurisdictions. The manorial courts were necessarily reserved to the Duke of Atholl, as being lord of the manor, and were, in common with the baron courts, called " Courts Baron," the books and enrolments belonging to them being separated from those of the other courts and delivered to the seneschal, who presided over them. In 1777, their civil jurisdiction, which had for some time past been obsolete, was abolished. To all the other changes, as they are more interesting to the lawyer than to the student of history, we propose referring very briefly.20 By the Acts of 1777 and 1796 provisions were made for regulating the proceedings of the superior courts, and the Common Law Courts, instead of being held only twice a year, were ordered to be held on specified days once in each of the four legal terms, both in the northern and southern districts. 21
High-bailiffs’ courts were in the former year established in the towns, with jurisdiction in matters of debt, not exceeding 40s. 22 in value, arising in the districts alloted to them, 23 subject to an appeal to a deemster.
In 1814, it was enacted that foreign debts should be recovered in the same way as debts contracted in the island, and, to facilitate this process, it was decided that the judgments of the British courts should be recognized in the Manx courts as evidence of the debt.24
In 1825, the composition of the Court of General Gaol Delivery ceased to be identical with that of the Tynwald Court, since the Council (as a body) and the Keys were deprived of their right of sitting in it.25
This court is now composed of the governor (whose presence is indispensable) , the clerk of the rolls, and the two deemsters (of whom two at least must be present) . It is held " as occasion shall require " by order of the governor. The jury connected with it consists of twelve men, and its procedure and rules of evidence are similar to those in the criminal courts in England.26
At about the same time as the change in this court, possibly owing to the influence of the fourth Duke of Atholl, the deemsters ceased to attend the Chancery Court, thus leaving the governor and the clerk of the rolls as its only members.
Such were the chief changes in the Manx judicial system up to 1825. Between that date and 1883 27 there was no alteration of importance, but by the passage of the Judicature Act in the latter year the whole system was transformed.28
Law and equity were fused and the whole legal and equitable jurisdiction of the various courts was transferred to the High Court of Justice.
The Courts of General Gaol Delivery, the high-bailiff’s courts and Petty Sessions 29 were not affected, nor were the ecclesiastical courts, except as to certain appeals. But, in the following year, the jurisdiction of the latter courts over probate and matrimonial cases was transferred to the temporal courts, and, in 1885, rules, similar to those made under the English Judicature Acts for the regulation of the High Courts, were approved by Tynwald. The effect of this legislation has been virtually to assimilate, with very few exceptions, the Manx practice in the administration of justice 30 to the English. 31 The procedure, however, is still somewhat antiquated and cumbrous, and tends to unnecessary delay in the settlement of suits.
Up to the time of the Revestment the Tynwald Court 32 passed laws concerning the government of the island in all respects and had control over its finances, subject to the approval of the lord.
After the Revestment, or rather after the passage of the Mischief Act in the same year, Imperial Parliament legislated with respect to customs, harbours, and merchant shipping, 33 and, in measures of a general character having reference to the Empire at large, it occasionally inserted clauses, without the consent of Tynwald, 34 by which penalties in contravention of those Acts might be enforced in the island. It also assumed the control of the insular customs duties. These actions could only be justified on the ground that Parliament is supreme in all the Crown’s dominions,35 a principle which it had proved impossible to enforce with regard to the American Colonies, but which the Isle of Man was powerless to contest. Such were the changes which, rather than the transference of the sovereignty from the lord to the King of Great Britain and Ireland, though this was also not without its effect, modified the Constitution of the Isle of Man. Its ancient laws and tenures were, however, not interfered with.
We will now endeavour to show how the position of the Tynwald Court has been altered since 1765. Practically no effort was made for many years to regain the rights of which it had been deprived, and, in 1793, it was, for reasons which have been already explained 36 placed in a worse plight than before by the appointment of the fourth Duke of Atholl as governor. The efforts both of the Keys and of the people to obtain greater authority for Tynwald, 37 to which we have referred in Book IV., chapters i. and ii., were mainly directed towards securing for it a share of the control over the insular revenue. But nothing was accomplished till 1853, and then only a very small concession was made, though it was admitted in principle that the Imperial Government should not impose new taxes, or increase existing taxes., without the consent of the Manx people. 38 it was not till 1866 that any real advance was made towards freeing Tynwald from the bonds that had been imposed upon it, but then, though the Manx people did not obtain all that they had hoped for, they very greatly improved their political position. It is certain that they would not have succeeded in doing so even at that time, if it had not been for the influence and assiduity of Governor Loch —a fact which should never be forgotten by Manxmen. In 1865, the financial position of the island was discussed by the governor and the Treasury, with the result that it was agreed that Tynwald, provided it would consent to a large increase in the customs duties, should have the control of the surplus revenue, subject to the veto of the governor and the Treasury, and after the deduction of certain payments and charges.39 The agreement between the governor and the Treasury, which was embodied in a minute, dated the 21st of December, 1865, was laid before the Legislature by the governor in a private conference on the 15th of March, 1866. In doing so he remarked that it was a matter of notoriety that the funds available for public works were altogether inadequate to meet the increasing requirements of the country ; he stated that the Government had, therefore, " consented to an increase of duties, and that the Island should have the full benefit of the increase ; "40 that an Act of Parliament would be necessary to enable this to be done ; and that " the Government would not bring in such a measure without first obtaining the approval of the Insular Legislature."40 At the same time he intimated that these proposals were subject to the condition (not referred to in the printed correspondence) that the Keys should consent to become an elective body. The Keys then retired to their chamber and passed a resolution to the effect that they were " prepared to consider any legislative measure necessary to make their House " an elective body,"41 but that both this question and the other proposals were of too much consequence to be determined by them on their exclusive responsibility, and that therefore they should be " laid before the country."41 On this resolution being reported to the governor, he rejected the suggestion that the country should be consulted, and said " that it was strictly a matter for the Insular Legislature to determine."41 The Keys, meekly acquiescing in this view, again retired and drew up the following : " The Keys having this day taken into consideration the important communication made to them by His Excellency, the Lieutenant-Governor, by which they have been informed that the British Government is prepared to propose a new scale of Customs Duties for the Isle of Man, by which scale the duties upon several articles will be considerably increased, but proposing also that any increase in the Revenue which may be the result of the proposed changes shall be for the benefit of the Island . . . and at the disposal of the Insular Legislature,—Resolved that, inasmuch as it appears to the Keys that the proposed changes would be for the benefit of the Island, they are prepared to concur in a legislative enactment necessary to give effect to these proposals—the Keys reserving the right to consider matters of detail."41 They also expressed their readiness to pass an Act to make the House an elective body. It is, of course, palpable that the Keys had not had sufficient time fully to apprehend the important questions so suddenly brought before them ; indeed, one of their body said, at a later date, that they had been " driven into a corner," and that they had given their consent because they " felt that they could not take upon themselves the responsibility of rejecting " the proposals, which were " represented as being so advantageous to the Island," and he naively confessed that he "did not understand the question at the time."42 When the governor had received the resolution of the Keys, both branches of the Legislature met in Tynwald on the same day (the 15th of March). At this meeting the governor made a lengthy statement to the court which was to the same effect as the statement made by him to the Keys previously, and he suggested that a committee of the court should be appointed to go into the details of the financial proposals of the Imperial Government with him. This suggestion was agreed to by the Tynwald Court, and the committee, at an adjourned court on the 20th of March, reported in favour of the acceptance of the proposals, subject only to a proviso which, being found unworkable, was afterwards abandoned. 43 The Tynwald Court concurred, and re-appointed the committee to act with the governor " in watching the progress of the Act of Parliament necessary to carry out the financial arrangements."44 The committee thereupon proceeded to London. The Act, 45 which they were deputed to " watch," was passed on the 18th of May. It contained, among other clauses, the following, which certainly stretched the powers of the Treasury beyond the limit placed upon them by the minute to which the Tynwald Court had assented : " The Commissioners of Her Majesty’s Customs shall apply the duties of customs collected in the Isle of Man (except the necessary charges of collecting, recovering, and accounting for the same, which charges they are hereby authorized and directed to retain and pay out of the gross amount collected, notwithstanding the provisions of the Act of the 17th and 18th of Victoria, chapter 94) in manner following (that is to say) they shall thereout pay and defray the necessary expenses attending the government of the Isle of Man, and the administration of justice there, and other charges incurred in the Isle which have heretofore been or may hereafter be deemed fit and proper charges to be deducted from and paid out of the duties of customs collected in the Isle of Man, including so much (if any) of the services which shall have been voted by the House of Commons applicable to the Isle of Man as the Commissioners of Her Majesty’s Treasury shall from time to time direct : Provided that no part of the said duties of customs shall be applied for or towards any of the Navy services, except the salaries and expenses of the Coast-Guard service of the Isle of Man, and that no part of the said duties of customs shall be applied for or towards any of the Army services, except the charges of the Volunteers of the Isle of Man."
Having this Act before them, the Keys met on the 23rd of May and protested that " when on the 15th of March they agreed to the Fiscal changes lately introduced into the Island," they " were led to believe that any surplus revenue which would arise from the increase of the duties thereby created would be at the disposal of the insular Legislature." 46 The impression on their minds had evidently been that the Tynwald Court would have control over the whole surplus after deducting the charges referred to in the Treasury minute, i.e. , that their power would extend over the whole increase consequent on the additional duties and therefore over any new charges, including all increases in the salaries of the officials that might be necessary. But they perceived that the clause just quoted gives the Treasury, not Tynwald, the power to increase those charges, and only leaves Tynwald the ultimate surplus. 47 Recognizing the mistake that they had made, they passed a resolution that " no increase in the salaries payable to the officials of the Island should be made without the consent of the House of Keys is first had and obtained "48 —a resolution which, after the Imperial Parliament had legislated on the question, was altogether futile. The Tynwald Court met on the 8th of June, when the governor, in reply to the resolution of the Keys, referred to the clause in question, and said that no one could possibly have been misled, because, when " the question had been raised on a former occasion in the Tynwald Court, he had distinctly stated that the Government reserved to themselves the entire control over the expenditure for the government of the Island." 48 He pointed out that the court had already approved of the Treasury Minute which entrusted the control of these salaries to the Imperial Government, and that a committee of the court had agreed to the Bill founded on that Minute. But he added that he had suggested to the Treasury that, " before any permanent increase in the expenditure was made, the matter should be laid before the Tynwald Court and that it would then be open for the Court to make any suggestions it thought fit."49 At the same time he stated that " it would be for the Government to decide whether they would adopt these suggestions or not,"49 but he assured the court that the Government wished it " to have the sole control " of the surplus revenue, and that they would not " interfere " with this control, " unless in some gross case of misappropriation."50 Governor Loch’s position was an impregnable one, so that there was nothing left for the Keys to do but to submit to the situation.51 This may be summarized as follows : The Tynwald Court’s control of the surplus revenue is subject to the veto both of the governor and of the Treasury; the Imperial Government, after intimating its intention to Tynwald, fixes the rates of the customs duties ; and the salaries of the officials and the cost of government are at the absolute disposal of the Treasury. Notwithstanding these limitations, however, the practical result of the negotiations of 1865 and 1866 has been to give Tynwald, if not the sole control of, at least a substantial share in, the disposal of the surplus revenue. The Manx people had thus made a distinct advance towards greater political freedom, having obtained what may be described as " Home Rule during pleasure." Since then, moreover, several modifications, to which we will now refer, have been made in the direction of giving the insular Legislature greater authority. The Treasury’s power of veto over expenditure, which was occasionally enforced at first, owing to the small amount of the surplus, has of late years " tended to become more and more a matter of form."52
In 1872, the Tynwald Court, which, in 1866, had gained the right to decide, subject to the approval of the governor and the Treasury, what harbour works should be undertaken, gained also the control over the Harbour Board and the power of vetoing the nomination of its members (except that of the receiver-general, who is chairman ex-officio), which is vested in the governor.53 In 1878, it was admitted by the Law Officers of the Crown that the insular Legislature was competent to pass measures relating to Church temporalities, even though the Crown was interested in them. 54
In 1886, when attention was called to the fact that some increases had been made in the salaries of insular officials without Tynwald being informed of such increases, the then governor, Walpole, " while reserving the rights of the Imperial Government and his successors," gave " a personal undertaking that he will make no addition to the cost of government without first acquainting the Tynwald Court."55 He was, however, careful to say that he did not ask the concurrence of the Court in the proposed changes, but merely gave it an opportunity of objecting to them. At the same time, however, he gave an undertaking that he would bind himself " to defer to its decision if the objection is sustained on a division." 55 By this he seems to have intended it to be inferred that, although he could not, for constitutional reasons, allow Tynwald, in the teeth of the Act of 1866, to have a voice in the voting of salaries, he was prepared to give an opportunity for objection, and, indeed, as far as he was personally concerned, to go further and defer to the opinion of the Court.
This course has not been invariably followed by his successors.
In 1887, a further grievance was removed by Tynwald being allowed by resolution to " impose, abolish, or vary " the customs duties, subject to the approval of Parliament or the Treasury, such change to take effect immediately and to continue for six months, and, if Parliament be then sitting, to the end of the session, provided that the same be not in the meantime annulled by the passing of an Act of Parliament or a Treasury Minute.56
Before this change was made, the intimation to Tynwald respecting any proposed alterations of the customs duties had been a mere form, because, as it was asked to pass a concurrent resolution with that before Parliament, it was deprived of the opportunity of giving adequate attention to the important questions which might be involved.
After the Revestment the Council became a much more stable body. Its composition, as we have seen, varied from time to time, especially during the earlier part of the period. These variations, however took place for substantial reasons, and not, as had previously been the case, at the caprice of the governor. Thus, between 1777 and 1793, the ecclesiastical officers 57 were excluded, on the ground that they were appointed by a subject, the Duke of Atholl, not by the Crown. During the same period there was only one deemster, one being then considered sufficient for the duties of that office, and the receiver-general and water-bailiff did not sit in the Council whilst they were customs officers only. 58
In 1825, the Council, as a body, ceased to sit in the Court of General Gaol Delivery. In recent times its composition has undergone no change. Its present members are the bishop, the clerk of the rolls, the two deemsters, the attorney-general, the receiver-general, the archdeacon, and the vicar-general.59 In 1882, its meetings were held in public for the first time.
At the beginning of this period we find the Keys, whose system of self-election was firmly established, practically holding their office for life.60 They were, in fact, gradually becoming a close corporation, recruited solely from a few of the principal insular families, and, though they called themselves the representatives of the people, they really represented no one but themselves. This being so, it is not surprising to learn that the people took the opportunity, when the Commission of enquiry came to the island in 1791, to protest against their system of self-election and to demand their election by popular suffrage. 61
Exception was taken, at the same time, to their sitting in private 62 and passing laws of which the public had no knowledge. 63 On the remonstrance of the commissioners, the Keys promised to reform their procedure in these respects,64 and again, in 1822, they resolved that " in future the door of the House of Keys shall be open to the public during the debates of the House."66 In 1823, the speaker, in addressing the House, declared that they would " legislate on no subject that has not been previously submitted to the country," that they would encourage the free communication of the people’s " views and opinions individually and collectively, by opening the doors of this House to their petitions and representations, presented through the medium of a member " and that they would endeavour to frame their measures, as far as practicable, " in conformity to their interests, their feelings, and their judgments." 66 Nevertheless, the Keys almost invariably sat in private between 1792 and 1822, and, usually, between 1822 and 1833. In the latter year the agitation 67 against them was resumed, and, in addition to the previous charges, they were accused of unduly controlling the verdicts of juries, of levying rates on the public without their consent, of disposing of these rates without rendering any account and of passing injurious laws. A petition containing these charges, together with a demand that the people should have the right of choosing their own representatives, was sent to King William IV. by a number of Manxmen. In 1834, two petitions were presented to Governor Ready asking him to convene the Legislature for the purpose of taking into consideration the election of the House of Keys by the voice of the people. Nothing having come of these petitions, a further appeal was, in 1838, made to the governor, to " form a constituency of the inhabitants of the Island, for the purpose of electing the members of the House of Keys," which elicited the following answer : "Such a change in the Constitution of the Isle of Man cannot be agreed to ; and I have further to inform you that, if reform in the House of Keys is found to be really wanted, a representation from the Island in Parliament may be the measure of reform adopted." Notwithstanding this reply, a similar petition was sent to Her Majesty in the same year, and again, in 1844, to the House of Commons. This last petition was referred to the Keys, who, in January, 1845, described the statements contained in it as " false and delusive." They admitted " the general principle of popular election," but denied that it would be beneficial, as " it would necessarily entail a considerable expense upon the people, and, from the isolated position and very limited extent of the Island, would engender a degree of bitter animosity among neighbours, highly prejudicial and strongly contrasted to the hitherto peaceful state of society." 67 They concluded by asking for a Commission of enquiry. In February, the Home Secretary, Sir G. Grey, wrote to the governor giving a similar reply to that from Governor Ready with regard to the demand of the memorialists 68 for popular representation, but he added : " The union of legislative and judicial functions in the House of Keys, coupled with the fact that a considerable portion of its members consist of advocates of the Manx Bar, is open to objection in principle . . . the absence of any efficient check on the levying of rates for local or municipal purposes and the alleged enactment of laws, without the opportunity being offered for the expression of any public opinion with regard to them, are grounds of complaint which seem to merit careful consideration." 67 He asked the governor to call the attention of the Keys to these points, and expressed a hope that the House would do something to remedy the grievances. The Keys, after a full consideration of this letter, replied denying that laws were passed without the knowledge of the people and that the union of legislative and judicial functions in their body was open to objection in principle. They, however, admitted that it would be better that advocates, who were members of the House of Keys, should not sit when appeals from cases in which they had been employed came before it. They referred to the fact that it was the Tynwald Court, not the Keys alone, which levied rates and taxes, and they pointed out that duly audited accounts of the public expenditure were deposited in the Rolls Office and were open to inspection without charge.
Nothing further of any importance as regards the question of reform took place till 1853,69 when the Secretary to the Treasury (Wilson) , in discussing the proposed fiscal changes with the deputation from the Keys, hinted that, if the Keys were elected by the people, the Treasury might make financial concessions to the island, but that, otherwise, it could or not do so.
The two members who composed the deputation 70 conferred with their colleagues on their return, and went back to London bearing a resolution of the Keys agreeing to the proposed change, but they were disappointed to find that Wilson had no authority to make any such offer. In 1864, the actions of the House of Keys in refusing increased powers to the Douglas Town Commissioners and in prosecuting the proprietors of two insular newspapers for their comments thereon revived popular feeling against them. 71
These facts, together with the urgent need for more money to continue the insular harbour works, made it clear to the astute Governor Loch that a change in the constitution of the House was inevitable. He, therefore, when in correspondence with the Treasury, in 1865, about revenue questions, proposed that the concessions asked for should only be granted on condition that the Keys became an elected body.72 The Keys, after some negotiations,73 agreed to this, and passed a Bill, which became law on December 20, 1866, to render their House elective. In its preamble there was a declaration that it was " expedient that the present system of selecting persons to serve as members in the House of Keys should cease," and that it was desirable " to provide for the election by people of property and intelligence in this Isle of members to serve in such House, and to abolish the judicial powers of the said House of Keys." 74
The island was consequently divided into ten electoral districts, consisting of the towns of Peel, Ramsey, and Castletown, having one member each ; the town of Douglas, three members ; and the sheadings of Glenfaba, Michael, Ayre, Garff, Middle, and Rushen, three members each. In 1892, a further electoral district was added by dividing Douglas into two districts, the northern returning three members and the southern two members, while the sheadings of Garff and Michael were deprived of one member of each.75
In 1866, the qualification of voters was ; that they must be males of full age, who had to be owners of real estate of the value of not less than eight pounds, or tenants paying a net annual rent of not less than twelve pounds. 76 By the Act of 1881 the franchise was conferred upon every person who, (1) being a male, or a spinster, or widow, is the owner of real estate within the district of the annual value of not less than £4 ; or, (2) being a male, is the occupier of real estate within the district of the annual value of less than £4 ; or, (3) being a male, occupies lodgings of the annual rental of not less than £10. By this Act female owners, not being married, were admitted to the franchise, being placed on the same footing as male owners, 77 the Manx Legislature thus taking the lead of all others in this important reform. In 1892, women (being spinsters or widows), who were occupiers of real estate worth not less than £4 annually, were also given a vote.78
The qualification of members who, in 1866, had to be males of full age, and owners of real estate of the value of £100, or of real estate to the annual value of £50, together with personal property of £100, was altered in 1881 so as to apply to owners of real estate of the annual value of £50, " and together therewith be also possessed of personal estate , . . actually producing the yearly income of £100, or," [as an alternative], " personal estate producing the yearly income of £150." 79
Finally, by the Act of 1892, the property qualification was done away with, so that any male of full age, not being a clergyman, could be a member. 80
In 1866, the powers of the Keys were defined to be those of electing their speaker, of Punishing con-tempts committed before their House by fine and imprisonment and, by the Act of 1876, of punishing libel by a fine not exceeding £50, or by imprisonment not exceeding six months. it was also provided that " nothing in this Act contained shall affect, or in any manner be construed to affect, the inherent powers heretofore exercised by the House of Keys as a legislative body; 81 and that " after the promulgation hereof the House of Keys, and the several members thereof . . shall . . . be entitled to and enjoy the same rights and privileges, in as full and ample a manner as the House of Keys, and the several members thereof for the time being, and persons elected to be members thereof heretofore had, exercised, and performed, and was or were entitled to and enjoyed."82
One of these privileges, which was disputed before the Revestment, and continued to be disputed till a recent date, is their right, when once assembled, to regulate their own sittings, which was objected to on the ground that it clashed with the Governor’s prerogative of being able to summon them as often as he thought proper. 83 This led to collisions early in the present century between them and the then governor, the Duke of Atholl, which resulted in the Keys keeping their sittings alive by adjournment for a number of years. 84 In 1871, 1874, and 1880, difficulties on this point again arose, and, on the last occasion, the Keys made a long statement of their case, the pith of which is contained in the following sentence :— " Whenever the Keys are called together under precept, whether specially for a Tynwald Court, or otherwise, they claim it as an indisputable right to adjourn their sittings from day to day, and from place to place, as may suit their own convenience; and this right the members of the old House, as well as those of the elected House, have not only always maintained, but have constantly exercised." 85 To this the governor replied that it had " never been his intention to question the power of the House to regulate, after reporting progress, . . . their own adjournments " ; 86 and so the question remains. 87 Another question arose in 1879, owing to the governor having demanded the attendance of the Keys, who were in session, at a Tynwald Court, as a matter of right. The Keys denied his right to do so, in the absence of a summons under precept ; but the governor has since then exercised this power, and, seeing that it is manifestly reasonable and convenient that he should be able to do so, it is not likely to be disputed in future.
The increased amount of legislation during the last forty years is strikingly shown by a reference ~ to the six volumes of the Statutes. During the period between 1417 and 1824 all the laws passed are contained in 425 pages ; between 1824 and 1863, 568 pages were required ; during the governorship of Loch (1863-1882), 1,180 pages ; and, during the governorship of Walpole (1882-1893), 1,046 pages. In 1865, the promulgation of the whole of the Acts in English and Manx, which had hitherto been the practice, had become very tedious on account of the number and length of the Acts. Moreover it had long since been rendered unnecessary by the increase of education among the people. It was, therefore, enacted that, in future, only the titles of the Acts, with the marginal summaries of each of their sections, and the official document signifying the Royal assent, should be read in English and Manx.88 In 1895, the more intelligible course of reading a brief précis of the contents of the Acts, in Manx and English, was adopted.
Important changes have been made during this period in the judicial powers of the Keys. It would appear that, early in 1823, the Duke of Atholl had complained to the Secretary of State that the Keys had been in the habit of exceeding their powers as members of the Court of General Gaol Delivery, pointing out that, though they were supposed not to interfere with juries unless they thought they had acted mistakenly or corruptly, they had gradually taken the position of voting on every case, and therefore, since no decision of theirs was valid which was not signed by thirteen members of their body, justice was often obstructed or delayed. After making due enquiry, the Secretary of State decided that the Keys did not legally form a part of the Court, that they could not interfere with its proceedings, nor have a voice in the sentence or judgment.
It was also decided, at the same time, that the Council, as such, could no longer sit in the Court. At the next meeting, therefore, the court sat without the council and Keys, and so, on its trying one Kelly for burglary, his advocate pleaded that the court was not legally constituted by reason of the absence of the Keys, and was, accordingly, incompetent to try the case.89 The plea was over-ruled, and the trial proceeded. Kelly, having been found guilty and sentenced to death, presented a petition to the king for a reversal of the sentence. The House of Keys also presented a petition to the House of Commons against their exclusion, declaring therein that they " would infinitely prefer the abolition of the present system of government to the success of the present system of encroachments, which, in preserving the mere semblance of an internal constitution, would leave it utterly inefficient to any salutary purposes." 90 Receiving no answer, they appealed to the Privy Council, before whom, in July, 1825, their case, with that of Kelly, was argued. 91 It was decided that, by the laws of the Isle of Man, the Keys do not form an integral and constituent part of the Court of General Gaol Delivery, and that their not having been summoned did not affect the validity of the judgment pronounced against the petitioner. In 1866, the last vestige of their judicial authority—their appellate jurisdiction—was abolished.92 We will conclude our account of the Manx Legislature by referring to the chief changes which have taken place in its procedure, 93 whether as regards legislative or executive matters, since the Revestment.
The most important change in the Manx legislative system has been the introduction of private Bills which were formerly unknown. " Private legislation," says Walpole, " follows much the same course as is pursued with public Bills. Private Bills, however, usually, though not invariably, emanate in Tynwald. A petition is presented to the Governor praying for leave to introduce the Bill ; the Governor directs that the petition shall be heard in Tynwald on a certain day. The advocate promoting the petition is then called into Tynwald and heard; and the petition is usually referred to a committee to ascertain whether the standing orders of the court have been complied with, and occasionally to report on the merits of the measure. On receipt of the report, a motion is made that leave be given for the introduction of the Bill ; the motion is put, and, if carried, the Governor names the branch of the Legislature in which the Bill will be taken up in the first instance." 94 Walpole then proceeds to point out that " in nothing, perhaps, is the advantage which the Manx enjoy from the existence of their local Legislature so conspicuous as in the case of private legislation. Bills of the utmost importance to the Island, involving perhaps the construction of a new railway, are considered at a cost which is simply trifling compared with the expense of similar legislation in England. Bills of a minor character can be carried at the cost of a few pounds ; and it may safely be stated that no village in the Island, however small, would be deterred from asking for the power which it required to obtain water by compulsion, for example, from any dread of the expense which such an application might entail."95
As regards the modern method of dealing with financial and other questions in the Tynwald Court we again quote Walpole : " When the court meets for financial purposes, the two branches of the Legislature sit together and the Governor presides. Debate is carried on by the members of both branches. In the discussions on these subjects neither branch has any privilege over the other." 96 When " divisions are taken, each branch votes separately. The Governor takes the votes of the Council, and directs the Speaker to take the votes of the Keys. The members of neither branch retire while the division is being taken, but merely answer ‘ aye ‘ or ‘ no’ when their names are successively called out. When the division is completed, the Speaker reports the result in the Keys to the Governor, who thereupon announces that ‘ the Council is of the same opinion,’ or that the Council is of a contrary opinion, as the case may be. When the two branches concur in their opinion, the question is carried. When they differ in opinion, the question is lost, the separate concurrence of both branches being necessary for its passage."97
The power of the Tynwald Court to delegate executive authority to its members, or others, was until 1864, 98 exercised solely in the selection of the Highway Board. It would appear that, since the Act of 1776 merely states that this committee should consist of five persons, without specifying from which branch of the Legislature they should be selected, its members had been invariably taken from the Keys only, and this continued till about 1835. After that date it became the practice for the Council to have one or two members on this committee, and when, at a later date, other Committees, or Boards, of the Court were constituted, such as the Asylums Board, the Harbour Board, 99 the Local Government Board, and the Council of Education, both branches were usually represented on them also. On only one occasion of late years has a difficulty arisen in appointing these Boards and that was in the case of the Lunatic Asylum Board, 100 when "the Council, which was in favour of some extensive additions to the asylum, vetoed the nominees of the Keys ; and the Keys, who were desirous of greater economy in building, vetoed the nominees of the Council. In the result, the Court was kept alive by adjournment, while the Houses agreed each to nominate two members for each vacancy on the Board, allowing the other House the right of vetoing one of those so nominated," 101 " It is probable," says Walpole, " that with the exercise of a little tact any similar difficulty hereafter arising may be avoided in the same way. Yet it must be acknowledged," he continues, " that, while the forms of Tynwald remain as they are the embarrassment might at any moment recur and become critical. But the highest inconvenience that would consequently result would be the protracted failure to elect an administrative board. In every other respect the machinery of government would go on as smoothly as ever. 101
1 As explained in the last chapter.
2 For the exceptional period between 1793 and 1826 see Book IV. ch. i.
3 From 1863 to 1884.
4 It is clear that such a power, which is analogous to that of the English Chancellor of the Exchequer, must almost necessarily be confided to the governor.
5 As representative of the Sovereign : " The supreme executive power of this kingdom is vested by our law in a single person, the king or queen " (Stephen’s Commentaries, 7th edit. vol. ii. p. 395).
6 " The surplus, if any, of the duties of customs of the Isle of Man, after deducting the sums hereinbefore directed or authorised to be paid or set aside thereout, or charged thereon, shall be applied for such public purposes of the Isle of Man, to be approved by the Commissioners of Her Majesty’s Treasury, as the Court of Tynwald shall from time to time determine, the Lieutenant-Governor having a veto upon such decision " (" Isle of Man Customs, Harbours, and Public Purposes Act, 1866." 29 Vic. c. 23).
7 It shall be lawful for the Court of Tynwald to determine what improvements [in harbours] shall be undertaken ; the Lieutenant-Governor having a veto upon such decision. (Ibid., p. 201).
8 This is rendered necessary by the fact that there are no officers corresponding to responsible ministers or to Colonial Secretaries of Crown Colonies.
9 Land of Home Rule, p. 279.
10 Ibid., pp. 279-80.
11 After 1826, the offices of seneschal and Crown receiver were usually held by the same individual, he, in the latter capacity, collecting the manorial, mine, and other Crown rents as the agent of the Commissioners of Her Majesty’s " Woods, Forests and Land Revenues," who have the sole management of the Crown property and revenue in the island.
12 His title of " receiver-general ‘ was continued, though he received nothing but his salary.
13 See p. 799.
14 Lib. Jurat.
15 By 35 and 36 Vic. c. 23.
16 Lib. Jurat. The offices of receiver-general and water-bailiff were occasionally held by the same individual.
17 It should, however, be noted that, since 1765, the words expressing that their appointments are " during pleasure " have been omitted from their commissions.
18 Statutes, vol. ii. p. 423. These courts are more especially referred to in Book IV. p. 581.
19 See Book V.
20 Moreover, the only way to really study them is by reading the Statute books.
21 They are still held on these days.
22 This was, at first, in Manx currency = 34s 3½d. English, but since been raised to 40s. in English currency.
23 To Douglas : Braddan, Conchan, and Santon ; to Ramsey: Lonan, Lezayre, Bride, Andreas, and Ballaugh ; to Peel: German, Patrick, and Marown ; and to Castletown : Malew, Rushen, and Arbory.
24 This was, probably, no more than declaratory of the Common Law, as the rule of private international law is that civilized nations recognize and give effect to final judgments of other civilized countries.
25 See pp. 826-7 for discussion of this.
26 We may note that, of the various juries mentioned in our first constitutional chapter, the Great Enquest, the Setting Quests and Trespass Juries are the only ones which are still occasionally called upon to exercise their ancient functions.
27 Since the passing of the Criminal Code in 1872 all felonies and misdemeanours, with the exception of offences punishable by death or by penal servitude for more than ten years, and certain other specified offences, which are triable only in the Court of General Gaol Delivery, and misdemeanours punishable on summary conviction, may be tried either before the Court of General Gaol Delivery or before a deemster and a jury of enquiry, at the discretion of the attorney-general.
28 It makes, however, no change in the right of ultimate appeal to the Sovereign in Council.
29 These courts do not differ in constitution from the courts of the same name in England, but there are some slight variations in their practice.
30 It is of interest to observe that the Act by which a person charged in any criminal proceedings with the commission of any offence was made a competent witness at the hearing of such charge was passed in Man in 1886, thus anticipating similar legislation in England by twelve years.
31 A comparison of pages 747-758 and 800-3 with Appendix D, where the changes made by the Act of 1883, &c. , are referred to in some detail, will give our readers an outline of the Manx judicial system at the present day. (For the substance of this appendix we are indebted to Mr. G. F. Clucas, advocate.)
32 It is to be understood that the expression " Tynwald Court " includes the governor, as well as the Council and Keys.
33 Manx Soc., vol. xii. pp. 193-4.
34 Even before the Revestment, however, there were exceptional instances of such interference. Parliament has never legislated with regard to the internal government of the island.
35 See pp. 738-9 for decision in 1523. It is clear that the right to tax the Manx people could not have been acquired by the purchase from the Duke of Atholl, as he had no power to impose customs duties or to legislate without the consent of the Tynwald Court. The duke’s advocate, when arguing his case before the Lords, in 1781, said " no lawyer ever did or I believe ever will dispute that it is competent for the King, Lords and Commons in Parliament to bind the Isle of Man" (Pamphlet 1783).
36 See Book IV., ch. i.
37 It ceased, as we point out elsewhere, to be a judicial body, under the title of the Court of General Gaol Delivery, in 1825.
38 " Isle of Man (Financial Measures). Return to an order of the House of Commons, dated March, 1866," p. 2.
39 For a full discussion of this see Book IV., ch. ii., § 4.
40 Keys’ Journals.
41 Keys’ Journals.
42 E. C. Farrant in debate (in the Keys) of the 22nd of June, 1866 (Manx Sun of June 30, 1866).
43 It was that " such a change be made in the Customs Consolidation Act as will prohibit the removal to this Island of duty-paid goods in transit, and make all duties payable on arrival in this Island " (" Isle of Man : Financial Measures," p. 22). An arrangement was come to about this matter at a later date. (See p. 721).
44 Keys’ Journals.
45 29 Vic. c. 23.
46 Keys’ Journals.
47 This power was, of course, unlimited, and it might, therefore, be extended so as to absorb the whole of the surplus, though it is in the highest degree improbable that this would ever be done.
48 Keys’ Journals.
49 Ibid. We may mention here that the Government shortly after this raised some of the salaries in question without giving Tynwald an opportunity for making the suggestions referred to.
50 Manx Sun, June 16, 1866.
51 Beyond grumbling at the supposed lachés of the members of the committee that went to London for not watching their interests more carefully. One of their members, William Callister, remarked, " It just comes to this, that we are to spend the money just as they [the British Government] tell us, and the idea that the representatives of the island will have the right to expend it is all moonshine " (Manx Sun, July 14, 1866).
52 Land of Rome Rule, p. 274. It should, however, be mentioned that, since this was written (in 1893), some friction in reference to expenditure has arisen.
53 By 35 and 36 Vic.c. 23.
54 The insular Legislature consequently passed the " Bishops Temporalities Act " (Statutes, vol. iv. pp. 514-19). For a discussion of this question see an able memorandum by Sir James Gell in Manx Soc., vol. xxxi. pp. 21-32.
55 Land of Home Rule, p. 274. In 1880, when the " Burials Bill " was passed by the Lords, the governor (at the request of the Tynwald Court) obtained a promise from the Imperial Government that, in future, no Imperial Act, which affected the Isle of Man, should be passed without his being first informed of it. On this condition, Tynwald gave an undertaking that it would introduce legislation on this question, and the Isle of Man was, thereupon, struck out of the Bill.
56 51 Vic. c. 5.
57 This refers to the Legislative Council ; they were never members of the Executive Council. The Keys petitioned the House of Commons against their restoration to the Council in 1793, remarking that, in their opinion, there could not " exist a greater solecism in politics than a claim on the part of a subject to obtrude members on his Sovereign’s Council" (Pamphlet : " A Short History of the Transactions in the Isle of Man," p. 4).
58 Between 1777 and 1793, only such of the officers as had Commissions under the royal seals sat.
59 The second vicar-general was abolished in 1846. The vicar~general is now paid out of the Civil List, though appointed by the bishop, a most anomalous arrangement.
60 The latest instance of a " Key " being removed by a governor was in 1734.
61 Commissioners’ Report. App. (D.) No. 2.
62 Objection had previously been made to this, in 1788. See Appendix A. Book IV. Ch. I.
63 Commissioners’ Report, pp. 85-6.
64 In 1793, it was announced in the Manks Mercury that " The Keys unanimously entertain the laudable resolution of throwing the House open to the public."
65 Manks Advertiser.
66 It should be remembered that, till 1864, this agitation was the work of a minority. Many Manxmen were hostile to any change, the organ of one party going so far as to say that " popular election would be the greatest curse that ever fell on the island " (ibid.).
67 Mona’s Herald.
68 The chief leaders of the reformers were Wm. Callister, Ramsey ; Wm. Kelly, Robert Fargher, and John Duff, Douglas.
69 In 1848, Dr. Bowring brought forward a motion concerning the grievances of the Manx people in the House of Commons, but, on Sir G. Grey promising that they should be looked into, he withdrew it.
70 George William Dumbell and William Callister (see Keys’ Journals in 1866).
71 These were J. C. Fargher, of the Mona’s Herald, and James Brown, of the Isle of Man Times. At the next meeting of the Keys it was resolved that the comments in these newspapers were " a contempt of the House and a breach of its privileges," and the two proprietors above-mentioned were summoned to the bar of the House to answer for their conduct. Mr. Fargher apologized, and was pardoned, but Mr. Brown stated that he considered his comments quite justifiable. He was, consequently, condemned to six months’ imprisonment, but, having appealed to the Court of Queen’s Bench, he was soon set free, and afterwards awarded heavy damages for illegal imprisonment in an action at law, which he brought against the Keys. The decision was to the effect that, since the House was sitting in its legislative and not in its judicial capacity, it had no power to commit for contempt.
72 This condition is not mentioned in the printed correspondence.
73 See pp. 806-8.
74 Statutes, vol. iii. p. 372-421.
75 Statutes, vol. vi. p. 381.
76 Ibid., vol. iii. pp. 374-5.
77 Ibid., vol. v. pp. 95-6.
78 Ibid., vol. vi. p. 381.
79 Statutes, vol. iii. pp. 372-421.
80 Ibid., vol. vi. p. 384.
81 For the loss of their judicial authority (see pp. 826-8).
82 Statutes, vol. iii. pp. 407-8. Among these the right to try questions of the rights of members to their seats was specially reserved by the House of Keys Election Act of 1866.
83 This prerogative was confirmed by Section 125 of the House of Keys Election Act, 1866, which enabled him to summon the House or to prorogue it, though adjourned or prorogued to a more distant day (Statutes, vol. iii. p. 409). He was also, by the same clause, given the power to prorogue the House, or to dismiss it and issue writs for a new election.
84 This action of theirs does not seem to have been disputed at that time.
85 " Constitution " (Manx Soc., vol. xxxi. p. 18).
86 Ibid. p. 14.
87 It is manifest that the Keys could render the governor’s summons futile by exercising their right to regulate their sittings, because, when they assembled under precept, they could adjourn to another date. Continued obduracy, however, would, no doubt, be followed by the governor dissolving the House, and issuing writs for a new election (see note f p. 824).
88 Statutes, vol. iii. p. 177.
89 No exception was taken to the absence of the Council.
90 Keys’ Papers, see also Pamphlet (1824) p., 15.
91 The solicitor-general (Sir Charles Wetherall) and Mr. Clarke (the Manx attorney-general) for the Crown, and Messrs. Brougham and Alderson for the Keys.
92 By the House of Keys Election Act, 1866. (Statutes, vol. iii. pp. 425-8).
93 The procedure in reference to the introduction and discussion of Bills in the two branches of the Legislature is given in Appendix B.
94 The Land of Home Rule, p. 271.
95 The Land of Home Rule, p. 272.
96 Ibid., p. 275.
97 Land of Home Rule, p. 276.
98 When a Lunatic Asylum Committee was first appointed.
99 For special position of the Harbour Board, see p. 799.
100 Since the completion of the Poor Asylum, this has been called the " Asylums Board."
101 The Land of Home Rule, p. 277.
|
|
|
|
|
|
||
|
Any comments, errors or omissions
gratefully received The
Editor |
||