[from A View of the Principal Courts 1817]

CHAPTER III.

Tue superior courts of record in the island are the court of chancery, of exchequer, of common law, and of gaol delivery.

In the court of chancery the governor sits as chancellor and sole judge, the deemsters formerly sitting under him as the assessors of the court, in which character they now attend.

Their proper and legal place is still under the chancellor, who calls them or not to the bench as he thinks proper. The valuable assistance the chancellor has in this court, in addition to what he derives from the deemsters, is sufficiently known throughout the island to render any allusion to it necessary; and consequently it is with diffidence any hints or suggestions are here thrown out for the amendment of the practice of this court. Perhaps, however, the granting of injunctions requires a little check; and the proceedings might in some degree be more accelerated, according to the spirit and principle of a most important act of Tynwald passed in the year 1758, entitled, " An act for awarding costs in litigious and vexatious law suits." This act has a direct bearing upon this subject, and its provisions might, it is conceived, be adopted with great advantage.

The next court is the court of exchequer; and in this court, as in the preceding, the chancellor sits, as was before observed, the sole judge, assisted by the deemsters. It is unnecessary to advert again to the dangerous practice which was gaining ground of the deemsters signing the judgments in this court. It has wisely and constitutionally been put a stop to, and will probably never be revived. An error of no small magnitude was beginning to prevail in consequence of it; since we find in a report made to the commissioners in 1791 the following words: "By our constitution the two deemsters are members of the court of exchequer:" a position quite at variance with the constitution of the court, and the most authentic records of the island. The jurisdiction of this court embraces all matters relating to the revenue, and to the recovery of tythes when the right of taking them is in dispute.

The next court is the court of common law; the style of which, says Sir Wadsworth Busk, is "before the governor, chief officers, and deemsters." ²⁸ We thought it right to refer to the records themselves to see the style of this court, and accordingly we have inserted in the Appendix the style of a sheading or common law court. ²⁹ The island being divided into six sheadings, and common law courts being formerly held in each of them, they were consequently called sheading ³⁰ or common law courts. From this style and caption of the court of common law, which upon an examination agrees with several records at the rolls' office, although we feel great distrust of our own opinion when it differs from that of Sir Wadsworth Busk, yet we cannot avoid thinking that as the governor's presence was always necessary to the holding of a court of common law, in which he presided, the fair inference seems to be, that the court was holden before him, aided and assisted by the chief officers and deemsters. In support of this reasoning, which seems to be put out of all doubt by the style of the court, as extracted from the records, it is matter of unquestionable certainty, that the deemsters could not of themselves sit as judges in the court of common law, or try causes there until the year 1777 when an act of Tynwald was passed, enacting "that the common law court shall be holden four times in the year, at which the governor or lieutenant governor may preside by the deemster." These are remarkable words, and shew in what light the deemsters sit at this day in the common law court, If before the passing of this act they could have sat there alone, and by virtue of their own authority, the court of common law would have been as much the deemsters' court as the ordinary one so called, and distinguished from the rest of the courts in the island by the specific and appropriate name of the deemsters' court. The governor may still, and frequently does, preside in this court; and whether he takes any of the chief officers or deemsters to assist him, or proceeds without their assistance, is a matter resting, we conceive, solely within his own discretion. By viewing the governor as a military character, which is purely accidental, as may be seen by the list of governors, we are apt to overlook his high civil character as a judge in the superior courts of the island, vested with the power of reviewing the decisions of the deemsters, and of hearing all matters of complaint against the acts of inferior courts and magistrates. If this latter character were not blended with the former, all error upon this subject would soon disappear, and the judicial character of the governor would alone enter into our consideration.³¹ Whether however the deemsters sit as judges when the governor is present at a court of common law, or which is the sounder opinion, as his assessors and expounders of the law, their duty is in substance and effect the same—to explain and enforce the law, and see that its provisions are fully carried into effect.

The mode of proceeding by action in the common law court was formerly plain and simple, and extremely short, after the model of the original writs in Fitzherbert, or the Registrum Brevium Originalium.³² The present mode of declaring, instead of stating the ground, of complaint with neatness and perspicuity is rendered prolix and expensive by the introduction of foreign matter, and expressing it in the greatest number of words. From the judgment of a court of common law a traverse now lies, in the first instance ³³, to the house of keys in their judicial character, who possess the high power of affirming, reversing, or altering a verdict at common law.

It is matter deeply affecting the administration of justice in the island, that the keys when they meet in their judicial character, should be allowed to depart without coming to a decision upon the cases brought before them. The delay arising from this circumstance has been known to tie up causes for many years, and several are now remaining for judgment in consequence of their not coming to a decision.

This evil requires and admits of an easy amendment, and the keys will, it is to be hoped, immediately correct it.

They are, as we have seen, not only a branch of the legislature, but by the constitution are supposed to be at least as cognizant of the laws as the deemsters; and besides sitting as an appellant tribunal to review the judgements of common law courts, are liable from time to time to be called upon by the chancellor to assist him in all doubtful points of law, and have, as appears by the records, been frequently summoned for that purpose. The judgment of the keys is the final, proceeding in the island, and an appeal lies from their decision to the king in council. It would be a great improvement in the administration of justice, if the keys were furnished not only with the evidence which appeared jn on common law court, but were also distinctly informed what directions were given to the jury in a point of law, and in what manner the evidence was left to them, so that they might know whether a wrong conclusion was drawn by the jury from the facts in the cause, or whether erroneous directions in point of law were given to them, or whether the jury took upon themselves to give a verdict contrary to the law as correetly laid down to them. At present the keys are kept in the dark upon these most important points, which must of necessity lead to a very imperfect administration of the laws.

We now come to the court of general gaol delivery for the trial of felonies. In this court the governor presides, attended by the deemsters and council, The twenty-four keys also give their attendance at this court ³⁴, for the double purpose of assisting the deemsters in case any difficult point of law. should arise, and of observing whether the jury digress from the evidence, by giving a false or a partial verdict, in which case they are liable to be severely fined and punished.

The court of gaol delivery was formerly held in the open air, within the outer gate of Castle Rushen, and the governor, council and deemsters sat there with the twenty-four keys ; and if any criminal were indicted for felony, four men out of each parish, amounting to sixty- eight in the whole, were summoned to attend, for the purpose of trying the felony; and if the person indicted when put upon his trial pleaded not guilty, four men out of one parish were brought before him, in order that he might select such of them as he thought proper; and in case he did not chuse the said four or any of them, then four others out of the next parish were in like manner brought to him, and so on until he had chosen twelve out of the number returned to the court, who were sworn to try the felony; and the attorney general proceeded to examine witnesses on behalf of the crown, and the person accused made his defence:— After the proceedings had been gone through, and the jury were ready to deliver their verdict, the deemsters, or one of them, demanded of the foreman of the jury whether such of the council as were ecclesiastics could remain in court or not, and if the foreman of the jury gave for answer they could not, then the clergy withdrew ; whereupon the deemsters, or one of them, asked the jury if the prisoner were guilty or not guilty, and upon the jury declaring him guilty, one of the deemsters pronounced sentence of death. The law is now the same, except that the power of challenge has been put under considerable limitation, by a bill which has lately passed the insular legislature. It must appear extraordinary to a person who has been an eye witness of the solemnity and caution which are observed in a British court of justice during the trial of a capital felony, to learn that there is no written account of the viva vocé evidence upon which the jury in the court of gaol delivery find their verdict. This serious omission cannot however with propriety be any longer permitted; for no execution can take place without the authority of the crown, his Majesty, in the discreet exercise of his prerogative, ought to know all the circumstances of the case to guide his judgment — a this most critical and arduous part of his duty. We need not add how imperfect must be this knowledge, unless it be derived from a written statement of the evidence made in court whilst the witnesses are under examination. [added such written statement is now made]

That great and learned man, deemster Parr, of whom we have spoken with that praise which so justly belongs to him, in treating of this court, says, "the governor is to sit chiefest, and then the two deemsters, who are termed in that court justices; and all other officers sit as assist- ants." His work, which is now cited, was written in the year 1678 for governor Heywood, and is addressed to him by the title of the Right Worshipful Robert Heywood, Esq. governor of the Isle of Man. It abounds with great learning, and cannot be too closely studied by the members of the law. The style is clear and comprehensive, and places the author very high as a writer on jurisprudence, He was a member of the respectable family of the Parrs of Lancashire, patronized by the ancient house of Stanley, and discharged the office of deemster with great ability, reflecting in consequence of it no small praise upon his noble patron.³⁵

Whatever flattering description may be given with respect to the absence of crime in the island, if the coroners and other ministers of justice were active in the apprehension of offenders, it is to be feared that the business of the court of gaol delivery would be greatly increased, and that some serious, if not awful punishments, would be absolutely necessary to check the progress of vice, which has recently extended, we are concerned to state, to the commission of sacrilege and burglary, crimes almost before unprecedented in the island.

The coroners are most important officers in carrying, into execution both the civil and criminal laws of the island. Their duties are distinctly marked out, and the laws which contain them are framed with extraordinary wisdom. The best institutions fall however into decay; and such has been the fate of these laws, that they have almost become a dead letter,

The relaxed state of the island requires their immediate revival, and a firm, honest, and vigorous execution of them, in order that the strictest justice may be observed on the part of the coroner in the execution of civil process; and that the still higher duty which he owes to the crown, in the apprehension of criminal offenders, may be performed with promptness and fidelity. It would be a very wise measure to circulate throughout the island, in the most public manner, the laws which prescribe the duties of the coroners, thereby impressing upon this class of officers what line of conduct they are bound to pursue; and giving information at the same time to the public what redress may be had, in case these duties are negligently performed, or, which is frequently the case, omitted altogether.

We have now brought our labours to a close, having spoken, in the first place, of the Great court of Tynwald, the court of legislation, afterwards of the deemsters' court, and so as- cended gradually to the superior courts of record in the island—pointing out, as we conceive, the true nature and constitution of them. In these latter courts the king appoints his own attorney general, who has a power of ordaining and deputing officers to act under him. Of the consistorial courts, held before the bishop or the vicars general monthly, and which possess very extensive powers, it does not fall within our design to speak. From their judgment an appeal lies to the Archbishop of York, the bishoprick of the island being annexed to the province of York by the statute of 33 Henry VIII. c. 3).

The code of spiritual laws which we have read is framed with great ability; and when we consider that the head of the church has generally been, and now is, a person eminently distinguished both for piety and learning, we can easily account for the wisdom which pervades these laws. It is to the ancient and noble houses of Stanley and of Athol that this island is indebted for the introduction of bishops Barrow, Wilson, and Hildesly, men of extraordinary learning and piety in their sacred office, and the most active promoters of learning through. out the island. The institutions for this laudable end, first the foundation of an academic school, and afterwards the establishment of parochial libraries, were intended, to make use of their own words, to operate as a perpetual blessing to the island; and excellent provisions, as far as human foresight could ordain, were made to accomplish this purpose. The academic school is still in existence; but we grieve to state that the libraries, founded with a pious and munificent hand, have almost disappeared. It is an act of sacred and indispensable justice to the memory of these great men to watch over their institutions with unceasing diligence—to see that they neither suffer from the introduction of abuses, nor fall into further decay from neglect and inattention. In conjunction with, and at all times under the superior directions of the present Head of the church, we shall, as one of the trustees of the academic school, chearfully co-operate with his lordship in superintending it; and it is no small satisfaction tobe enabled to state publicly, that his lordship's feelings are in unison with our own upon these most important subjects.³⁶

As we have gone along, we have made some reflections, which we trust will be found to have the beneficial effect of improving the administration of the laws, enlarging the views and policy of the insular legislature, and lastly, of conferring upon the island that character, which it is most desirable it should possess in the estimation of the mother country, in order to establish the closest union betwixt them. Character, let it be remerabered, is in effect both wealth and power—and will, we confidently predict, at no distant period, raise the island and its inhabitants to honour and prosperity.

The above observations were originally intended for private use, being the result of that industry which was necessary to be exerted in entering upon a new and responsible office ; and if by their publicity they should eventually produce the smallest advantage to the island, a new gratification will be felt —the more pleasing, because unlooked for.

Footnotes

28 The Commissioners in their Report state, that "The common law courts, the style of which was, 'Before the Governor and all the Chief Officers and Deemsters,' were held by them at different places for different Sheadings," — See Report, page 74.

29 See Appendix.

30 Sheading signifies a division, and is derived from the Saxon word scadan, dividere.—See Lye's excellent Saxon dictionary.

31 The governor, as the representative of the lord proprietor, was by an ancient rule of law authorized to hold cognizance of all pleas, civil or criminal ; and with the other chief officers seems to have formed, originally, a kind of supreme court, which assumed an universal jurisdiction. It is in this light, probably, they are considered when denominated by a term which was anciently, and is at present frequently applied to them —"The staff of government," under which title they were, and are yet, resorted to by a petition of Dolence, in cases where adequate relief cannot be otherwise obtained. The Staff of Government reviews the decisions of the deemsters, and hears all matters of complaint against the acts of inferior courts and magistrates, and has cognizance of all matters of Judicature which do not appertain, in the regular way, to the jurisdiction of the other courts of the island.—See the Report of the Commissioners, and also Horrebow's History of Iceland, c. 113, in which will be found an almost similar gradation of courts, with the different orders of officers, and above all, a corresponding temper between the Icelander and the Manxman in their destructive love for litigation.

32 See form of action in the Appendix. The subsequent pleadings Were at this time ore tenus.

33 see the act for the better regulation of proceedings by juries before a court of common law.

34 [hand inserted by author]by a recent decision before the King in Council, it has been determined that the Keys have no voices in a Court of Gaol Delivery and under the advice of the Secretary of State it has been expedient to dispose with their attendance.

35 The deemster was a relation of Dr. Parr, Bishop of the island in 1635, whose character, as given by Chaloner, a commissioner under Lord Fairfax, im whom the island was vested during the Commonwealth, onght not to be passed over: "Dr. Parr, a Lancashire man, eminent for piety and learning, was some time fellow of Brazenose College in Oxford, who, whilst he continued in the University, was very painful to my own knowledge, being myself of the same College, in reading the arts to young scholars, and afterwards having cure of souls, no less industrious in the ministry.", Considering the part that Chaloner took during the Commonwealth, and that he was the servant of Lord Fairfax, and wrote when episcopacy was put down, one cannot but admire his ingennousness in commending Bishop Parr, his companion and fellow collegian ; and we may confidently conclude, that the character he gave him was not overdrawn. He who attached himself to Lord Fairfax could feel no strong inducement to flatter a Bishop. He adds moreover, "it is marvellons to find what good preachers there be in the island ; and certainly for about 50 or 60 years last past, their Bishops have been persons of singular piety, frequent preachers, and excellent patterns for the clergy under them." What a splendid and honest eulogiam from one who attached himself to the republic! — See Chaloner's Treatise of the Isle of Man, addressed to Lord Fairfox, p.7.

36 See act of Tynwald,in the Appendix for securing the parochial libraries, drawn, we have little doubt, by Bishop Wilson, and certainly signed by him as a member of the council; also the Life of Bishop Hildesley, by the father of Dr. Butler, of Harrow School containing a most interesting correspondence between the Bishop and many learned men both in and out of the island: and Nichols's Literary Anecdotes of the Eighteenth Century, 9th vol.