[From Extracts from pre 1867 House of Key's Journal]

Constitutional Questions,

CHAPTER III.

PROCEDURE.

It is curious that questions of procedure are scarcely ever referred to in the Journals.

In 1803 it was resolved that " notwithstanding the adjournment to the first Tuesday in March, that this House do stand adjourned to an earlier date." In 1824 the following rules were proposed by the Duke of Atholl " for directing the form to be adopted in the Tynwald Court " : —

( 1 .) When the Legislature are assembled in Tynwald, the Governor opens the session by a speech, pointing out the purposes for which his precepts for their attendance have been issued. A copy of this speech is to be delivered to the Speaker of the House of Keys, and, on his receiving it, the Keys retire to their own House and either proceed to the business indicated in the speech vote an answer to it. This answer is to be delivered either by a deputation or by the Speaker and the whole House, or by letter, if the Governor be not present and in Council when such an address is voted.

( 2.) Whenever special circumstances shall require a question to be considered by the two branches of the Legislature in Tynwa;d, it shall be done by conference previously announced.

( 3.) Such conference shall be carried on by a deputation of three or five members of the Council and Keys, who shall report the result to the members of their respective bodies and the Governor.

(4.) If in the meetings of Tynwald the Governor shall desire the opinion of the Legislature regarding any proposed course or form of procedure, each member of either House may offer his suggestions on that point and on that alone.

But if any such suggestion should produce the least tendency to discussion the Governor will require each branch to retire and debate the question in their own House, and the House of Keys will thereupon communicate the result, either through their Speaker, by deputation of the House, or by letter, as the case may require."

The Keys considered these proposals, and suggested the following modifications of rules 2 and 3 : —‘ Whenever special circumstances shall require a conference of the two Branches of the Legislature, such conference shall be governed by the practice of the British Parliament" ; also, the addition of the following to the last rule : " In all the cases where the Keys retire to their own House the meeting of the Legislature is supposed to be at Castletown or at St. John’s, if a Tynwald Court beconvened in any of the other towns and the business before them is not expected to occupy more than a single day, the House of Keys retire to the Court House of such town, where, if the case appears to them to require further time, they adjourn to their own House in Castletown and report their result either through their Speaker, by deputy, or byletter, as the case may require."

The Duke, however, declined to make any alteration in his rules, which were, consequently, rejected

The following m emorandum thereupon appeared in the Journals : —

"The Keys desire to record their deliberate conviction that the practice and immemorial usage of their ancestors, of their immediate predecessors, and of the present Legislature up to the year 1822 constitute the only existing authority for regulating the proceedings of Tynwald,and are, in fact, the common law of the land ; and that this immemorial usage cannot be lawfully changed without the concurrence of the Legislature which forms the Tynwald."

Up to 1822 the debates of the House had always been in private, but a resolution was then passed that in future doors should " be open to the public during the debates of the House, except on extraordinary occasions, when the House may be cleared of strangers, agreeable to the vote of the majority of its members then present." The votes, however. still continued to be taken privately, the House being cleared for that purpose. In 1864 Mr Ridgway Harrison moved that votes should he taken openly, but the Speaker ruled him out of order for proposing such a motion without notice. It was, however, carried in the following year.

In 1863 the Speaker had given a casting vote in Tynwald, and the question was raised as to whether this was in order. The Keys declined to discuss it in Tynwald and retired to their own Chamber, where they decided that a vote of 13 members was necessary. On returning to the Court, the Speaker anounced their decision to that effect.

LEGISLATION, &c.

Legislation is but rarely referred to in Vol. I. In the remaining volumes accounts of the Bills passed form the greater part of the contents.

In 1768 the Legislature took the unusual course of passing an " ordinance " to continue expiring Acts for a year : —

" We, the Governor, Council, and Keys of the said Isle, assembled in order to " take into consideration several Statute " Laws which were enacted and to continue in force for a certain period of time which is near expired, some of " which Acts have been found to be of great utility, and forasmuch as the term of the said Acts may expire before His Majesty’s Pleasure can be known Relative thereto. In order, therefore, to prevent the expiration of the said Act [Highway of 1753] we are of opinion there is a necessity to continue the same by an ordinance for the future term of one year. . . . It is, therefore hereby ordered that the said Act and every clause recited therein be of full force and effect both at Law and in Equity for the term and space of one year. At Castletown the 18th day of June, 1768. Signed by the Governor, Clerk of theRolls and 16 members of the Keys."

The question as to whether an ordinance or a law was the right method of procedure arose in 1794, when it was decided in favour of a law : " Whereas a question has been this " day agitated in this House whether the mode of shooting nets at the herring fishery should be regulated by an ordinance or by a law, and this House having maturely considered the question, are all of opinion that a law is in all cases of Legislation more proper and salutary than an ordinance. " Resolved, therefore, that such the opinion of this House be inserted in the Journals "of this House.

In 1770 a resolution was passed " that any member who shall prepare a Bill, and also " each member of any Coramittee appointed or to be hereafter appointed by this House for the preparing or setting any Bill to be brought as aforesaid, shall, and they are hereby declared to be entitled to payment and severally have a reasonable compensation out of the Public Fund for his or their trouble on the occasions aforesaid."

We sometimes find the Governor suggesting suitable subjects for legislation to the Tynwald Court. Thus, in an address to the Tynwald Court, on the 21st of June, 1796, the Duke of Atholl, then Governor-in-Chief, after giving an assurance that when the Government had completed its work of " arresting the impetuous and insulting career of a deceitful foe ^(a), whose aim appears to be to involve every surrounding nation in that vortex of anarchy, tyranny,and barbarism with which they have deluged themselves," stated that he would look into all matters necessary to be carried into execution for the good of the Islanders." Pending this, having consulted the Deemsters, whom he conceived " to be the constitutional advisers of the Governor of this land in all law matters," he laid before the Court, " under two classes, these defects in our code of laws which require an immediate remedy or alteration," viz., " (1) That treason, perjury, forgery, and swindling are not punished by our criminal laws. (2) That the Highway Fund is insufficient. (3) That inconveniences have arisen to the Public from holding the Courts of Common Law in Castle Rushen only." He suggested also that all strangers occasionally resorting to this Island, or residing in it should give to the executive government when required a proper account of themselves, that church censures should be commuted for a fine; that, as the cathedral of the diocese was in state of " entire delapidation," an Act should be passed to create the new church at Douglas [St. George’s] into a cathedral, and that an end should be put to the practice of tarring the herring nets, which is manifest detriment to the fishery, and extremely injurious to the credit of the Manks herring in foreign markets." He also mentioned some other matters requiring attention when the foregoing had been disposed of, viz., the improvement of the situation of Debtor and creditor, the establishment of an " assize of bread," since the public is " under the necessity of accepting of such weight of bread as the good or bad " disposition of the baker may be disposed to deal out to them," and the correction of the errors in some of the Acts passed in 1777.

We also find resolutions that " a Bill be brought in enacting that the ancient or former jurisdiction of the House in matters of traverse or appeal at Common Law be restored," that " a Bill be brought in to declare and ascertain the powers of this House in enforcing the attendance of its members, and to punish contempt and misbehaviour against the said House and the members thereof."

In 1810 a Committee was appointed to prepare a Bill for " the relief of insolvent debtors, and for rendering the laws affecting debtors and creditors equal and effectual as they regard the natives of this Isle, as well as those of other countries." This Bill, or a similar one, was evidently passed, as we find the Duke announcing the reasons for its rejection by the " Lords of the Council " as follows : —

" Gentlemen of the Tynwald Court,— I have taken the earliest opportunity of calling you together to communicate to you the result of my endeavours to procure the Royal Assent to a Bill for the relief of Insolvent Debtors under confinement within this Island. Influenced by the same humane sentiments which dictated to you the necessity of proposing such a Bill, I did not hesitate to give it my sanction as Governor-in-Chief, but though the principle of the Bill is Recognized, various objections have been taken to its form and the constructions it might bear, and it has been rejected by the Lords of Council, as will appear from their report now to be laid before you. This Report of their Lordships, at the same time, recommends to His Royal Highness the Prince Regent that my Attention should be directed to the Laws of this Island in matters of Debt, and that steps should be taken to prevent this Island from continuing to be a place of Refuge for Debtors, and it is suggested that in the. measures which maybe taken to carry this into effect the object of the Bill which has been rejected may be included, avoiding the Informalities and Liability to misconstruction, which have rendered it objectionable

Lord Sidinouth’s letter to me on this subject, conveying His Royal Highness’s commands, with the several Documents I have alluded to, will now be laid before you for your consideration, and I have to require a communication of your Sentiments as a Tynwald Court thereon to lay before His Royal Highness."

In the following year the Bill was passed on the lines suggested.

In 1823 the Duke informed the Keys of the general principles of Bills relating to Police, Duties of Coroners, Preservation of Game, Highways, and Registration of Deeds. With some of these the Keys agreed ; with others, they did not. None of them, however, became law.

In 1826 the House appointed a Committee of five " to meet any Committee the Governor and Council may appoint for the purpose of preparing the Attorneys Bill and " the Brewers’ Bill."

In 1849 the Legislature passed an Act for the abolition of the death penalty, but it was disallowed.

In 1850 the Keys passed a Bill to close public-houses on Sunday. It was, however, rejected by the Council.

A similar Bill was passed in 1857.

In 1850, also, they appointed a Committee to frame a Bill " for the creating of a Fund by an equal and fair taxation of the landed property of this Island for the paying of the insular debt, for the making of a comfortable House for the members of the House of Keys to assemble in, for the erecting of proper Court Houses and Gaols for the maintenance of felons, and such public purposes as the Legislature deem necessary." The rate fixed by this Bill was one per cent. It was not passed. In 1865, when the Highways Bill was before the House, there were numerous petitions in favour of electing the Highway Commissioners direct by the ratepayers, but this proposal was not carried.

It is interesting to find the Governor, in accordance with the statute of 1422, applying to the Keys for advice " as the Constitutional interpreters of all doubtful points of law."

In 1776 Lieutenant-Governor Dawson addressed the following queries to " The Worshipfull Gentlemen of the House of Keys"

Whereas doubts have arisen concerning the power and jurisdiction of the Court of Chancery . . . I have, therefore,thought proper, according to the usage of former times, to call you together for your advice and opinion thereon. I shall state the following questions for your consideration, hereby requiring a distinct andexplicit answer to each particular query: 1st. Has the Court of Chancery a jurisdiction both in Law and in Equity or in one only, and in which ?" (The further queries relate only to a private lawsuit and have no particular interest.)

The Keys replied as follows :

" We, the Keys of Mann, conformable to your Honor’s requisition, and in pursuance of our constitutional right to solve all doubtful points of Law . . . say and are of opinion that the Court of Chancery within this Isle has jurisdiction in Law and Equity, trials of the title of Lands and all other proceedings by Law assigned to the cognizance of juries excepted, and the Court of than cery generally adjudges and decrees payment and satisfaction in personal debts and demands when such suits, through the circumstances thereof, are brought into Court, and, in many cases, when it becomes necessary, the cause instituted in the said Court of Chancery, with the arrest or bail, or other proceedings thereon, are transmitted to the spiritual or temporal jurisdiction, as the case requires, and ac cording to the situation, circumstances, and constitution of this Isle, the Court of Chancery ought to give aid and effect to the several inferior jurisdictions within and through the same, as such subordinate Courts of Law have not power or authority to arrest persons and effects (excepting in such particular cases as they are authorized by Law to arrest effects only), but to grant and issue process according to the course of the Law."

In the following year Governor Smith asked them " whether it was the intent and meaning of clause 10 of the Highway Act of 1776, viz. : ‘ And in case any doubt or dispute shall arise concerning the levying and collecting of the said several sums so ordered to be paid on account of such dogs as aforesaid, the same shall be and are hereby ordered to be heard and finally determined by and before a Deemster,’ that the Deemster’s judgment upon any doubt or dispute which should arise conscerning the levying and collecting of the said sums to be paid on account of such dogs as aforesaid should be final and conclusive or the parties, or whether an appeal lies from that judgment ?" To this the Keys replied : " it was our intention and only meaning in the execution of the said Act that a Deemster was finally to hear and determine such doubts and " disputes."

Again, in 1787, in response to a question from the Governor, they informed him "that prisoners indicted for felony cannot be put on their trial without the Attorney-General or some other proper person appearing to prosecute for the Crown, and that the Governor cannot appoint a person to act for the Attorney-General in his absence in such a case."

In 1793 Governor Shaw asked the Keys to consider the " Road Fund." He pointed out to them that it arises chiefly from public house licences, and put the following query:

Does it not seem an inconsistency that a Poor woman who, perhaps for the sole support of a family, sells a few quarts of ale or beer should pay just as much for her licence as the first Inn, Tavern, or Hotel in the Isle., or the three united in the same hand ?" He also requested them to consider " the conditions of the Civil Establishment in respect to the inferior offices of Government," such as the Coroners, Lockmen, and Constables." He mentioned that their salaries are the same as they were 150 or 200 years ago, and stated that " owing to the depreciated value of money, the emoluments are become so very mean that there is a difficulty in finding people to take these offices."

Three years later we find the following from the same Governor : " It has been stated to me that many strangers have, of late years, frequented this Island, some of them persons of known honour and attachment to our happy Constitution, others possessing principles and propagating opinions inimical to the Constitution and the Peace and happiness of Society. I would, therefore, commend to you, in your wisdom, to consider whether it would not be highly expedient and fitting (under the circumstances of an existing war with a perfidious and insulting Foe, whose aim is to spread anarchy and destruction all around him by endeavouring to instil principles and doctrines subversive of their present happy constitution in Church and State) to pass an Insular Act to compel all strangers occasionally resorting to this Island or visiting in it to give to the Executive Government a proper account of themselves when so required ; and, in case it shall appear to he necessary, to enter into a recognizance for their loyal and peaceable behaviour while in the Island."

He also pointed out the following defects in the Code of Laws, and desired the Keys to suggest a remedy : " ‘Treason, Perjury, Forgery, and Swindling, crimes of a mostheinous nature, are stated to me as not being punishable by our Criminal Laws, for though these offences were indictable by the Common Law previous to an Act passed " in the year 1736, yet that Act restrains the judges of the land from inflicting any fine " or punishment for any criminal cause, but " upon the presentment of a Jury upon some Statute Law in force."

The next application from the Governor for advice was in 1818:—

" To the Gentlemen of the House of Keys. By the late Act of Tynwald passed for the amendment of the Criminal law of this Island, the punishment of transportation is affixed to several crimes therein mentioned, and there is, at this time, in the Gaol of Castle Rushen, a Prisoner who has been convicted of one of those crimes and is under the sentence of transportation for life. There appears, however, to be a difficulty of carrying that mode of punishment into execution from the want of funds applicable to that purpose. The same want of funds to defray the expenses of apprehending and securing criminals and detaining them in Gaol appears also to be a great impediment to the carrying of the law into execution against the offenders.

Therefore, I find it necessary to call upon you, as I now do, for your advice respecting the most eligible mode of making provision for these most urgent occasions.

C. SMELT, Lieut.-Governor.

Castle Rushen, 30th Sept., 1818."

In the following year Governor Smelt sent a letter from Lord Sidmouth, Under Secretary of State, on the subject of the fees of the Deernsters, to the Keys for their consideration. It was suggested that such fees should be " received in the public accounts,"and the. salaries of the Deemsters proportionately increased. The Keys, in reply, stated that. they were " of opinion that no regulation with respect to the said fees ought to he made which will not equally affect all other Courts and Judges . . and that. the projected changes will be attended with expense to Government and inconvenience to the public." And they continued, " However it might be considered to add to the respectability of the Deemster, we much doubt whether such a measure would conduce to the welfare of the public, and, upon the whole, until we are made acquainted with the extent of the plan proposed, and the manner of carrying it into execution, we do not conceive ourselves competent to give a decisive opinion upon the subject."

In 1851 we find the following : —

" The Keys have considered the proposition submitted to the House by His Excellency the Lieut.-Governor and Council, proposing to transfer the duty at present performed by the Petty Jury of six before a. Deemster to the House of Keys, to be carried into effect in manner suggested by the Governor and Council. The Keys cannot suppose that any disrespect to the House of Keys is intended, but they consider the proposition one entirely incompatible with their position as one Branch of the Insular Legislature, and, as such, unanimously reject it.

By order of the House,

Signed, JOHN MOORE,

Acting Speaker."

it appears, from some correspondence between the two Branches, that the Keys had proposed that a Grand Jury similar to that in England should be constituted, and that they had objected to the abolition of the petty jury " in a certain class of case." In reply to the Keys’ letter, the Governor and Council disavowed any intention to show disrespect to the House of Keys.

We also find the Keys giving their opinion to the Governor without being asked for it. Thus, in 1783, they forwarded a resolution to him that " the Deemster shall go the circuit and hear and determine all causes once in every quarter of the year," and that ‘ he be excluded from any jurisdiction in matters of debt under forty shillings." In 1817 the Keys protested against the Courts being held too frequently, and declared that this has a tendency to promote needless litigation. They stated that " the prevalent spirit of litigation is too obvious to escape the most careless observers, and its pernicious influence on the industry, the morals, the comfort, and the prosperity of the people is equally apparent. An uncharitable and unchristian temper is among the most prominent mischiefs which this spirit has a tendency to engender, and it may be seriously apprehended that it leads to more fatal lapses from moral rectitude." They continued" That gross and habitual drunkenness which attracts the notice of all visitors, although not exclusively referable to the spirit of litigation, may do so in a large proportion of cases, either as its a cause, or as its effect, and it is a vice so decidedly subversive of every moral and religious habit as to demand the most active measures for its subversion." On another occasion they advocated the establishment of a " respectable magistracy acting gratuitously " ; and they called the attention of the Governor to a suggestion formerly made by the House, viz. : that any Coroner going out of office should not be appointed Lockman the succeeding year, "nor the Lockman for such year Coroner for the year next following."

Footnotes

(a) i.e. the French.