[from A View of the Principal Courts 1817]

CHAPTER I.

When the constitution of this island, and the nature and character of its several courts of judicature are investigated, with that impartiality and precision which belong to historical research, many important truths will be discovered, which, from the want of an investigation so conducted, would probably never come to light. In the course of our inquiries, we must not place implicit reliance upon existing opinions, which, having once diverged from the truth, are gradually becoming more erroneous as they become older; but explore.the constitution, where it is to be found with certainty, amongst the ancient records and precedents of the inland, which are in themselves of intrinsic authority, and will, upon an attentive examination, be found to contain the most valuable information.

We shall commence our enquiries with the first and highest court in the island, called the Tynwald Court, which is now held, first, for the enactment of the statute laws of the island; and when they have received the royal assent, is afterwards convened for the promulgation of them. This court was formerly held in the open air, upon a certain hill called the Hill of Tynwald, with that simplicity which it is well known attended the holding of courts; hence, all acts of the insular legislature are to this day called Acts of Tynwald. This simplicity has, however, been gradualy departed from, and the Tynwald Court, about the middle of the seventeenth century, began to be held at St John's Chapel, near to the ancient hill; and in the course of another century, was, and still continues to be held at Castle Rushen the seat of Government, no resort being now had to the the Hil of Tynwald except for the promulgation of the statute laws, which are there proclaimed with considerable solemnity in the presence of the people, in the English and Manx language.¹ Upon this Hill the Lord of the Island sat in royal array, in a chair covered with a royal canopy over his head, his face turned unto the east, with the sword of state held before him ; his barons, according to their degree, sitting beside him; his beneficed men, or concil, and deemsters sitting before him; his gentry and yeomanry in the third degree, and the twenty-four keys in their order; the commons standing without the circle. ²

The Hill of Tynwald does not appear to be the only one in the island celebrated for the holding of courts ; In the year 1422, as appears from the records, a court was holden before Sir John Stanley, King of Man and the Isles,³ in the presence of all the tenants and commons of Man, at Kirk Michael, on the Hill of Reneurling, now called Cronk Urley, which signifies, according to a learned writer,⁴ Mount Eagle.

The style of the Tynwald Court, the court of legislation, as extracted from the ancient records of the island, which are deposited in the rolls office, almost invariably runs — "Before the Governor, Council, Deemsters, and Keys." Sometimes the style of the court is -

"Before the Governor, Officers, Deemsters, and Keys." In this case, the word officers is used instead of council ; the chief officers of the island being, it is well known, the council, and frequently designated by the name of his standing council. In the year 1645, when the great and unfortunate James Earl of Derby,⁵ Lord of the Island, was present at a Tynwald Court, the style of the court is —

"Before the Lord of the said Isle, with the rest of the Lord's Council there, the Governor, Deemsters, and Keys," ⁶ So also his grandson, James Earl of Derby, was present at a Tynwald Court in the year 1703, when the celebrated act was passed for the settling and confirmation of the estates in the island, called the Act of Settlement, to which the natives and the land proprietors look up as the Magna Charta of their estates and liberties. The style of the last court is — "Before the Lord of the Isle, the Governor, and the rest of his Lordship's Officers and Keys, the representatives of the Isle." ⁷ Under this style, it might perhaps be doubted whether the deemsters were comprehended as part of the Tynwald Court, for they seldom appear to have been designated by the name of the lord's officers, and are generally described by their appropriate name of deemsters, as distinguished from the officers of the lord who composed his council, It is proper however to observe that, whatever the style of the court may be, the Act of Settlement is, in point of fact, signed in a column apart from the governor and chief officers by the great and pious Bishop Wilson, and by one perhaps not much his inferior in learning and talent, the learned deemster Parr, to whose writings we shall hereafter have occasion to refer. When we consider the passing of the Act of Settlement as contemporaneous with the existence of these two great men, devoutly attached to the interests of the island, and in all probability most zealous promoters of the act, it forms an aera in its history, which every friend to the island will dwell upon with profound reverence and aflection. ⁸

Within a recent period the usual style of the Tynwald Court seems to have been occasionally varied ; and a court was held in the year 1814, the style of which is, "Before the Lieutenant Governor, the Council and Keys of the Isle." Any variation however from the style of the court as established upon the unerring evidence of ancient records ought to be studiously avoided, as it amounts to little less than a departure from historical truth. The ancient arrangement of the members of the Tynwald Court, admitting that the Council and deemsters when assembled together form one collective body, and not separate, component members of the court, (which admission accords with the opinion of the most enlightened upon the subject) is still however necessary to be maintained for the preservation of the insular legislature in its ancient purity, and with a view to regulate the order and gradation of its several parts. In the year 1791 the Keys of thé Isle, in a petition addressed to the House of Commons of Great Britain, distinctly assert, that the right of enacting laws was vested in and jointly exercised by the governors, principal officers and deemsters, who constituted the council, and the keys. ⁹ There is however less ground for apprehending that any future deviation will be made from the ancient style of the court since it may be observed with satisfaction, that the acts of Tynwald of the year 1813 were passed at a court the style of which, as appears from the records, is "Before the most noble John Duke of Athol, Governor in Chief and Captain General, the Council Deemsters and Keys of the Isle."

The members of the Tynwald Court are here respectively marked out, and distinguished from each other, and none of them admits of any obscurity, except that of the council. To inquire fully and minutely into the origin of this body, of what persons, ecclesiastical as well as civil, it was and still is composed, and whether the act of revestment in 1765, by which the sovereignty of the island was ceded to the crown, has produced any change amongst the members of the council, does not fall within the scope of our inquiries. We find indeed that iso far back as the year 1422 there existed a class of persons called the council ; for the deemsters and keys gave for law to Sir John Stanley, King of Man and the Isles, "that whosoever broke the House of any of the King's Council, he was a traitor by the law of Man." ¹⁰

And in the same year, it is ordained, "that in all great matters and high as that are in doubt ever as they fall, that the lieutenant or any of the council for the time being do take the deemsters to them, with the advice of the elders of the land of Man, to deem the law truly to the parties as they will answer to the lord thereof; ¹¹ and the same ordinance goes on to ordain, with a wisdom and foresight which redound in no small degree to the praise of Sir John Stanley,¹² who framed the ordinance, "that all doubtful points be always registered and laid in the treasury, that it may be ready when such a case falleth, that one doom or judgment be not given at one time one way, and another time contrary."

Whilst we have here the probable etymology of the word deemster, we perceive how strongly the Lord of the Island enforced the necessity of proceeding, in the administration of justice, upon clear and established principles of law, and of avoiding. that perplexity and confusion which necessarily arise from conflicting decisions,

And upon complaint of some misgovernment in the island, we find it was further ordained, ¹³ "that the laws should be administered truly betwixt the lord and his commons, and betwixt party and party, without rigor, fraud, or colour; and that the deemsters should give judgment at their peril, saving ever the lord's prerogative, and the commons to be ruled by advice of the council and the deemsters."

In the year 1636 we also find an order of Lord Strange, in which, by advice of his council, he fixes and regulates the annual stipend of the deemsters. ¹⁴

From that time down to the present period, the lord's council and deemsters are almost invariably mentioned separately, and in the same order and succession. The four principal lay members of the council, before the act of revestment, were the receiver general, the comptroller, the water bailiff, and the lord's attorney general. These subordinate to the governor were said to be of his standing council, and sometimes with the governor were termed the lord's council. They were also called the chief officers of the lord, formed part of his household,and were justices of the peace for the whole island. The two deemsters, though almost always spoken of as separate from the chief officers, and never described in any record as being of the standing council, yet as they joined that assembly whenever called upon by the governor, and appear never to have been absent from the meetings of the legislature, are now considered as forming part of the council. The offices of attorney general and water bailiff, though they were in the year 1711 united in the same person,¹⁵ were generally kept distinct, and filled by different persons. The office of water bailiff was one of higher distinction than its name imports, being of a mixed nature, partly judicial, and partly ministerial. He held, says Sir Wadsworth Busk, a sort of admiralty court, which could take cognizance of every suit, the cause of which arose between high and low water mark, and which related to maritime affairs,¹⁶ and was moreover a collector of the revenues of the island.

The offices of comptroller and clerk of the rolls, it is also equally well known, were united in the same person before the revestment. The situation of the former being now however exclusively confined to the revenue, the office of clerk of the rolls is necessarily filled by a distinct person, and from its great importance, connected as it is with the custody of the records of the island, and the business transacted in the superior courts, will always require to be discharged, as it now is, by a gentleman of considerable learning in the profession of the law. The duty of the attorney general was to conduct all suits and prosecutions on behalf of the lord, and to guard against any infringement of his rights.

What effect the Act of Revestment, by which, as it has been before observed, the sovereignty of the island is now vested in the crown, had upon the situations of the receiver general and the water bailiff, is a subject which it is our wish studiously to avoid. The letter of Sir Wadsworth Busk, his Majesty's attorney general in the island, written in the year 1791, and fully acquiesced in by the then clerk of the rolls, a man of no slight learning, contains a full, clear, and distinct opinion upon this subject, and to this the reader is referred. ¹⁶ There is also a very valuable document, written with great perspicuity, entitled, "The Constitution of the Isle of Man," delivered in to the commissioners by the worshipful deemster Moore. In this document the deemster states, "By the operation of the Act of Parliament made in the year 1765, revesting the said island in the crown of Great Britain, the offices of receiver general, comptroller and water-bailiff, under the lord of the said island, have been abated." ¹⁸ Decisive as appear to be the opinions of Sir Wadsworth Busk and the other legal authorities of the island upon this subject, it may still however be remarked, that as long as the insular legislature shall be preserved, it will always be advisable that the head of his Majesty's revenue in the island, however the nature of his ofice may be changed, should be a member of the council, since it cannot be supposed that any one will be selected for so important an office who is not recommended, as the gentleman who now fills it most unquestionably is, by great integrity and extensive ability. In speaking of Sir Wadsworth Busk, now that the cause which gave rise to his writings has almost ceased to have any interest, it may, without exciting the smallest suspicion of offence or disrespect to any quarter, be confidently pronounced, that he may always be consulted with advantage; for his letters to the commissioners, though written upon a particular occassion, abound with general information applicable to all times, and conveyed in language clear, strong, and comprehensive. His successors in office, as they cannot avoid feeling, so they owe it to his memory to express the great obligation they are under to him, for alleviating their labours by his researches, and for unfolding a variety of subjects, which could only be known by great assiduity and long and laborious investigation. The candid reader will easily forgive this slight digression, and trace it to its just cause. We cannot leave the Legislative Court of Tynwald without expressing our strongest approbation of the enlightened and enlarged policy which induced the insular legislature, in the year 1814, to pass the act for the more easy recovery of debts contracted out of the limits of the Isle of Man.¹⁹ It was at least an act of honesty to the mother country, and the island has gained by it far more in reputation than it has lost in point of interest. The latter is a temporary consideration, but the former has a prospective and a perpetual operation.

The same enlightened and liberal policy will not, it is to be hoped, content itself with doing justice by piece-meal; it will advance progressively, and by placing the native and the rest of his Majesty's subjects ²⁰ upon a more equal footing, will establish private and public credit upon a firmer basis, encourage commercial intercourse with the island, and remove distinctions which serve only to engender jealousy amongst members of the same community, whose interests, when well understood, are in fact inseparable. The operation of great moral principles cannot be stopped; they will silently force their way, and the insular legislature will do well to pass this measure of justice, and not let the praise of it be snatched out of their hands. It will impart health to a diseased system, and help to restore that simplicity of manners and prudent economy,²¹ from which there has been of late so wide a deviation, and which it is to be feared will be pregnant with bitter consequences to the next unoffending generation. Under the gradual operation of such a measure, the time would probably again arrive when the saying, of Lord Coke might be repeated, "that the inhabitants of the Isle of Man are a religious, virtuous, and a happy people." ²²

Footnotes

1 The Manx language is no longer taught in any of the schools of the island; and, as they are numerous, the English language is decidedly predominant throughout the island.

2 See a very valuable treatise on the Isle of Man, printed in 1656, illustrated with several plates by King, and annexrd to the Vale Royal of England. It contains, amongst others, three beautiful and interesting engravings of the Abbey at Balla-salla, of the Nunnery, and of Bishop's Court.

3 The regal title was not dropped until the year 1514, when Thomas Earl of Derby resigned it, stating, most sensibly, that "to be a great lord was more hononrable than to be a petty king."

4 See Feltham's Tour to the Isle of Man, a work of véry considerable merit ; it is, however, to be read with caution. He erroneously gives to the bishop a situation which, it is conceived, his lordship would be very sorry to fill — that of being a judge in the court of chancery. See page 16 of his work. .

5 The Earl of Derby was in the island during the memorable siege of Lathom House, and hastened from it to the relief of his Countess, the Lady Charlotte, whose piety and valour daring the siege shew to what a height of perfection female virtue may attain, In the year 1649 he returned to the island, (taking the Countess and their children along with him) where he remained until the year 1651, when he returned to his native country, to meet that fate which has given an awfal lesson to posterity — that no elevation of rank, no reputation, however distinguished by the most unsullied virtue and intrepid courage, can save the life of man in the hour of rebellion. The Countess remained in the island until the Restoration. - See Peck's Desiderata Curiosa, vol. II. lib, xi. No. 12, entitled "The History and Antiquities of the Isle of Man, by James Stanley the Earl of Derby and Lord of Man, beheaded at Bolton; with an account of his many troubles and losses in the civil war, and of his own proceedings in the Isle of Man during his residence there; interspersed with loyal and, excellent advice to his son, Charles Lord Strange upon many carious points, all of his Lordship's own hand writing; from the original in the possession of the Honourable Roger Gale, Esq."

6 See the Statute Laws of the Island, page 83.

7 See Statute Laws, page 124. Whenever they are cited, references are made to a very correct manuscript copy belonging to the author.

8 It is said that Bishop Wilson obtained the Act of Settlement of so much Consequence to the peace of the island, and in all probability a great part of it was composed by himself, as certainly were the Ecclesiastical Constitutions made in the same year ; with which Lord Chancellor King was so much pleased, as to make use of the following strong declaration :— "If the ancient discipline of the Church were lost, it might be found in all its purity in the Isle of Man."

9 See the Commissioners' Report Appendix A. No. 19, and Deemster Moore's very able description of the Constitution of the Isle of Man; and his statement with respect to the civil and ecclesiastical members of the council before the revestiment, Id App C. No 1.

10 See Statute Laws, page 10.

11 See Statute Laws, page 12. 4

12 Sir John Stanley left an excellent body of instructions to the Island, which shew a masterly genius, and are still extant in the Statute Book.

13 See Statute Laws, page 14.

14 See Statate Laws, page 72.

15 See signatures to the Statute Laws of that year—Statute Laws page 142.

16 See the Appendix to the Report of Commissioners of Inquiry for the Isle of Man, printed in 1792. The present Master of the Rolls, the Right Hon, Sir William Grant, was one of the commissioners, and the island derives no small honour from being able to insert his name amongst its present friends and benefactors.

17 See the Commissioners' Report.

18 The oaths of office before and since the revestment were particularly adverted to by the Commissioners as throwing light upon the question, who were or were not members of the council - These oaths were according inserted in the Appendix to their Report, which with the King's Proclamation in 1765 for continuing officers in the Isle of Man, are particularly deserving of attention.

19 See this Act in the Appendix.

20 The law of debtor and creditor as betwixt the English and the Manx is altogether unequal; whilst the former are liable to imprisonment for any debts they may contract, the latter, however large their engagements, are subject to no personal restraint, and if inclined to make a fraudulent conveyance of their property, the English creditor will find to his cost a fruitless remedy in the insular courts.

21 This simplicity has not altogether been banished from the island. It will be found combined with learning and the most interesting deportment of manners in the mansion of the senior vicar-general of the island, in whose society we have been equally delighted and improved, confirmed, and in part educated by Bishop Wilson, he and his family stand unaffected by the change of manners.

22 See Coke's Institutes relating to the Isle of Man.