[from A View of the Principal Courts 1817]

CHAPTER II

The courts of judicature in the island are the next objects of our consideration, and we shall notice, first, the deemsters' court, and so ascend gradually to the superior courts.

This court, which sits most frequently, and is at the same time the most expeditious court of justice in the island, is held before one of the deemsters, who are by virtue of their office a most ancient and respectable order of magistrates, the sole and exclusive judges of the law, and very frequently of the fact also in their own court called the deemsters' court, as distinguished from the superior courts in the island, When they want information as to matters of fact, they are empowered to summon a jury of enquiry to guide them in forming their judgments. The deemsters hear all cases which are brought before them for debt to any amount, determine differences respecting the possession of lands, and all disputes touching contracts and engagements; from their judgment an appeal lies to the governor, They also take cognizance of matters of assault and battery, issue warrants for the apprehending of felons, and the convening of juries and inquests, receive verdicts, and grant judgments and executions upon them. Formerly there was no fixed place for the holding of this court, and probably the convenience of the suitors was best consulted by this circumstance, the law in ancient times being administered by. the deemsters at a light expense, with great promptness, and justice brought home to the doors of the suitors themselves, who gave a strong proof of their good sense by generally acquiescing in the decisions of the deemsters and rarely appealing from them. Within a recent period two excellent courts, the one at Douglas and the other at Ramsay, have been erected for the accommodation of the deemsters and suitors residing in the northern and southern divisions of the island.

We have already spoken of the necessity of administering justice upon clear and established principles of law, to be acquired only by long and laborious study, as opposed to the misery arising from uncertain and conflicting decisions; and if, whilst speaking of the deemsters'court, we again revert to this important subject, it is for the sake of introducing the following ordinance of Lord Strange in the year 1636, which shews the deep interest his Lordship took in the administration of the laws, and manifests an almost, paternal anxiety for the welfare of the island, in strongly recommending clear and definitive judgments for th full and final settlement of disputes. "Whereas the lord is informed that the deemsters of this island do sometimes give judgment by laws unknown to his lordship, or to any of his council of the island, called breast laws ; his honour therefore declareth his pleasure, and doth order and direct that the deemsters do, upon notice of this his honour's order, set down in writing and certify to his honour, by the next passage,²³ after what laws these breast laws are, and of what use, in what cases they are requisite, and how far the power and execution of them extend; and in particular to certify whether the same be used in all causes, that is to say, criminal for punishment of offenders, and civil for decision of right of lands and goods; and whether by such laws, final definitive sentences, orders, or judgments are given, whereby the causes are absolutely and finally determined; whether the same are pronounced in open court, or may be done privately out of any court or session ; and whether by the opinion of one deemster alone, or with what assistance; whether any entry or remembrance is made of such orders or judgements, that it may appear whether the same be repugnant to the known laws and customs of the island, or one breast law be contrary to another; and how the people may take notice thereof to frame their actions and contracts accordingly." This excellent ordinance speaks its own praise. It is quite apparent from it that his lordship did not hold in very high estimation these breast laws, so called, as it is conjectured, from their being locked up in the breasts of the magistrates. He wished a higher species of jurisprudence, founded upon precedents that might regulate future cases, and be looked up to as the known and settled law of the island. The insular legislature in 1777 were of the same opinion ; for they state in a preamble to an act of that year, "that the nearest resemblance to the system of English jurisprudence will greatly conduce to the honour, welfare, and happiness of the island." In this opinion every independent man will readily agree.

It is much to be regretted that the decision of the deemster, however pure and correct it may be, is now but too frequently considered merely as a foundation for future litigation, and a plaintiff has to make his way through almost every court in the island before he can enforce the payment of his demand; nay he shall have obtained judgment in no less than three courts, and after all be tied up by a frivolous appeal to the king in council, which is never prosecuted, nor intended to be so. Notwithstanding. the truth of this statement, the dishonest debtor, and those who are interested in perpetuating dishonesty and litigation, (and there are but too many of this description) will tell you, with deliberate and unblushing falsehood, that all is quite right, and the inhabitants of the island are happy and united, and want no change or, as it is invidiously called, reform. Ask, however, the long-disappointed creditor, and the suitors worn down with vexatious resistance in the different courts of law, whether all be right. They must be consulted before a satisfactory answer can be given to this important question; nor must we seek for truth amongst those who are interested in the suppression of it.

"The privilege of appealing," says Lieutenant-Governor Shaw in his valuable letter contained in the commissioners' report, "is but too, often converted into an engine of oppression, and a means not only of delaying justice, but of evading it altogether." He goes on to add, "In fact, be the sum or circumstances of the case what they may, it is entirely in the breast of the person cast in the courts of the isles, whether any civil action shall, terminate in the isle or not; or indeed whether it ever terminate at all in any decision or judgment had upon it." These are the express words of the resident governor in the year 1791, who could have no bias to mistate the truth, or feel any inducement to over-rate an evil, the consequences of which were in his days, and still are, most deeply and extensively felt both in and out of the island. The amount of the bonds forfeited to the crown for not prosecuting appeals is at this time truly appalling. It amounts to many thousand pounds ; and were his Majesty's Attorney General to put them in force, as by law he may, it would perhaps be thought severe justice. He has however the authority of the Lieutenant-Governor, and the opinion of the most able legal member of the council for stating, that examples are wanting and must be made upon this subject, to convince the island that the king's name must not be abused, and that the bonds given to his Majesty are at least to be treated with as much respect as those entered into to his subjects.

Before the revestment in 1765, and down to the year 1773, there were two deemsters possessing co-ordinate authority. Afterwards, for a considerable time, there was only one for the whole island, who held his courts twice a week at his own residence, or if it became requisite, in different parts of the island. The subsequent revival of another deemster, has given rise to the distinction of the first and second deemster. This distinction, however, is merely nominal, the authority of each of them being co-equal, and alike extensive over the whole island.

The revival of a second deemster became in the year 1791 a subject of much discussion, and different opinions were entertained respecting it. We shall again revert, for as often as we do it we receive an equal share of pleasure and instruction, to the opinion of Sir Wadsworth Busk upon this subject, who says, "I cannot help entertaining some doubt upon this point; I can never be persuaded to think that the crowds of farmers and fishermen drawn together two, three, or more days in the week at a petty ale house, where it is not unusual for the deemsters' summary courts to be held, ²⁴ and there, perhaps, loitering, drinking, or squabbling, to the neglect of their occupations and in some instances, possibly to the ruin of their properties and families, ought to be encouraged — or ever believe that these assemblies are on the whole conducive to the peace, the good morals, and the welfare of the people or the community, and in this I am confirmed by observing a spirit of litigation prevalent throughout the country."

What honest and upright man is there, I would ask, who does not concur in the truth of these forcible observations; and if they were true in his day, they remaim equally so at present, the evil still existing, if it be possible, in a greater and wider extent. The morals of the people, it is a fact not to be concealed or overlooked, are in an alarming degree undermined, and their substance impoverished by this incessant, disreputable, and permit me to add, unchristianlike litigation.²⁵

From the judgment of the deemster an appeal lies to the governor, and in hearing of the appeal, the deemster, whatever practice may have prevailed to the contrary, cannot take any part without violating the first principles of law, his judgment being under the revision of another and a higher tribunal.

Before we quit the subject of the deemsters jurisdiction, it may be right to observe that the ancient and respectful mode of addressing them by the style of worshipful, has within the period of living memory been changed for one which is wholly new, and not to be found in the public records of the island.

The change in a matter of form apparently of light moment, and probably so considered at the time, did, it is to be regretted, unfortunately produce afterwards some erroneous opinions in matters of substance,²⁶ and one (amongst others) was, that the deemsters were in all respects the same as the judges in England, and under this false impression it is well known, that claiming to be members of the court of exchequer, they signed the decrees of that court, although the governor is the sole judge, the deemsters sitting there in the character of his assessors. A correct knowledge of the constitution of this court has, however, removed an error which was rapidly encreasing, and good sense. will doubtless induce the deemsters of this day to disclaim an appellation which is neither agreeable to usage, nor to be found in the records of the island. Their true name and office are alike ancient and venerable, and require no foreign addition to give them consequence ; and it is the duty of every one to support them in the correct and legal exercise of their most important functions. ²⁷

It does indeed fall within the scope of possibility to lessen the disparity in point of talent and ability betwixt them and the English judges by indefatigable labour and severe study, and this will be most praiseworthy emulation; but to be invested with the same powers, requires a new and extraordinary commission from the crown.

Footnotes

23 At this time Lord Strange was resident in Lancashire, and many of the ordinances came from Knowsley or Lathom, or wherever the lord of the island happened to reside.

24 At this time the present Courts where the Deemsters sit were not erected.

25 To check this unseemly spirit of litigation, which was gradually beginning to shew its baneful effects in the time of Bishop Wilson, was one, amongst his many other efforts to promote the comfort and welfare of the island, He gave express instructions to his clergy men this head, and announced, as no inconsiderable: calamity, any increase of the members of the Law, beyond what was Strictly ne- Ctpaty. We have been informed by a respectable member of the profession, and our own observation fully coincides with it, that instead of twenty-four which are now the number, eight would be amply sufficient to conduct the business of the island with that honour and emolument which should always accompany a learned and most respectable profession.

26 It was often said, by the great Lord Mansfield, that matters of form are in effect matters of substance ; that the former were established for the preservation of the latter, and that they could not be separated without the destruction of both.

27 Whilst we have felt it our duty to state the error which began to prevail respecting the constitution of the Court of Exchequer, and the cause which probably led to it, it is a duty we owe to the present deemsters (and we chearfully discharge it) to state, that all the circumstances above alluded to are of an earlier date than their appointment.