[From High Bailiff Laughton's Recollections, 1911]

CHAPTER XXV.

A Constitutional Question.

In l 876 an important constitutional question arose respecting the status and powers of the Manx Legislature; it being desirable to make alterations in the revenues of the Bishopric, with the object of applying a portion of them to other Church purposes.

The then Secretary of State, Mr R. A. Cross, on being applied to by the Governor of the Island for the consent of the Crown to the requisite Legislation by the Manx Tynwald Court, referred the matter to Sir John Holker, the Attorney-General of England, and Sir Hardinge Gifford, the Solicitor-General. They advised that the Insular authorities had no power to legislate in the matter – even with the consent of the Crown –as the question affected the right of the Tynwald Court to deal with the Temporalities of the See; thereby interfering with the property and prerogative of the Crown; and that, therefore, an Act of the Imperial Parliament would be requisite.

The Governor, not being satisfied as to the soundness of this opinion, referred it to Sir James Gell, for whose knowledge of Constitutional law he had a very high respect.

Sir James gave his opinion in a very learned and exhaustive manner, elaborately setting forth the history of the Island from the tenth century. Sir James claimed –irrespective of the numerous precedents of Insular Legislation affecting Crown rights, which he quoted–that in the absence of express restriction, it was to he necessarily presumed that the powers of the Legislature of a country especially when such country was an ancient kingdom or sovereignty such as the Isle of Man – were unlimited and supreme in all matters within or affecting that country; and that, therefore, the Insular Legislature was the proper Constitutional Authority to deal with the Bishopric of the Island, although Crown rights might be thereby affected.

This opinion was forwarded to the legal advisers of the Crown for their consideration, and shortly afterwards, they requested and obtained a personal conference with Sir James Gell; the result being that the Crown Authorities substituted for their first opinion, the following:–" After carefully considering the Memorandum of the Attorney General of the Isle of Man, and the arguments advanced by him in consultation with us, we are led to the conclusion that the Insular Legislature has power to pass a measure for re-arranging the Revenues of the See of Sodor and [Mann; if the operation of such measure is confined to that object, and it is not made to affect even indirectly, any English Bishopric.–John Holker, Hardinge Clifford."

The result was that the matter was dealt with entirely by the Insular Legislature, which passed the necessary act, " The Bishop's Temporalities Act, 1878."

I have introduced this otherwise dry matter to show that our Manx Bar can hold its own with that of England; English people may look upon it with scant favour because of its paucity of number, and its insularity but the Governors of this Island (including the late Hon. Charles Hope, a Scotch advocate, the late Mr Pigott, brother of the late Mr Justice Pigott, the late Sir Henry Loch and others, who had had experience of the Bars of England, Ireland, and Scotland) have always been of the opinion that there are, and have been at the Manx Bar – conspicuously Sir James Gell and the late Alfred Walter Adams–men who would easily stand in line with some of the most eminent of their brethren across the water.

The Clay Case.

In the year 1879 there was a very determined standup fight between the Lady of the Manor of this Island and her tenants, as to their respective rights in the clay, sand, and minerals in the Island. In the insular Courts the dispute was decided in favour of the Tenants; but the Crown carried the case by appeal, to the Lordly in the Judicial Committee of the Privy Council. where it was heard before Sir James W. Colville Sir Barrack Peacock, Sir Montague E. Smith, and Sir Robert P. Collier.

Mr Gorst, Q.C. (now Sir John Gorst,and the Secretary of State for India), Mr W. W. Karslake and Sir James Gell, Attorney-General of the Isle of Man appeared for the Crown; and the late Mr J. Brown, Q.C., Mr E. S. Roscoe, Mr Drinkwater, and Mr Richard Sherwood (afterwards Deemster Sherwood) appeared for the Respondent, Mylchreest. The arguments were very elaborate, but, being of a dry legal character, would not he interesting to the general reader.

It shall suffice to shortly state the point which was before their Lordships for consideration.

In the Manx Act of Settlement of 1703, James, Earl Derby – then Lord of the Isle–conferred the right to the tenants to " hence forth for ever quietly and peacefully have, hold, and enjoy, all their several and respective messuages, lands, tenements, and hereditaments (sic) –as customary tennents (sic) of and within the said Isle against the said James, Earl of Derby his Heirs and Assignes," etc., etc. A subsequent section in the Act of Settlement contained the following clause:–" Saving always unto the said James, Earl of Derby, his Heirs and Assignes and unto all and every other person and persons that shall at any time hereafter become Lords of the said Isle all such Roylties, Regalia, Prerogatives, Homages, Fealtys, Eschets, Forfeitures, Seizures, Mines and Mineralls (sic) of what kind or nature soever, Quarrys and Delfs of Flags, Slate or Stone, Franchises, Libertys, Privileges (sic) and .Jurisdictions whatsoever as now are or at any time heretofore have been invested in the said James Earl of Derby or in any pi his ancestor, Lords of the said Isle."

Our best and Sir James Gell is among them,$! pylon behalf of the Crown, contended that the words " Mines and Mineralls " to which the Lord was unquestionably entitled, included " clay and sand," and in urging this construction of the Act of Settlement they quoted many learned authorities, and likewise argued that the language of the Act of Settlement disproved any custom of the tenant to remove: clay and sand. Messrs Brown, Roscoe and Sherwood, for the Respondents, on the other hand, controverted this position and produced evidence of the custom of the tenants always to dig for, use, and carry away clay and sand for the use of their several lands and tenements. In the course of a very learned and elaborate judgment, it is stated that " In their Lordship's view, therefore the reservation in the Act of Settlement cannot be relied on to disprove the existence of the custom, as it might have been if its language had been clear and unambiguous. They further think that the document is of a nature and date which allows of its uncertain language being interpreted by continuous subsequent usage and if it be competent so to interpret the reservation the usage in this case demonstrates that it could not have been the intention to employ the word 'minerals' in a sense which would include clay and sand. It is scarcely conceivable if the custom had not existed or if the Act had really excepted clay and sand that the customary tenants should have been allowed to commit what on that hypothesis would have been innumerable Acts of Trespass on the property of the Crown, without a single instance of hindrance or interruption on th e part of its officers."

The appeal was accordingly dismissed with costs. I may add that Sir James Gell argued the appeal with conspicuous ability. It was one requiring considerable knowledge of the Constitutional Law of the Island, in which he excelled. At the conclusion of his argument, an unusual occurrence took place. One of their Lordships–Sir Barnes Peacock–rose from his seat and approaching Sir James, a perfect stranger to him, heartily shook him by the hand, and congratulated him upon the skill with which he had conducted the case.

I likewise know from a private source, that another of the Appellate Judges happened to meet Sir Henry Loch at a dinner-party the same evening, when naturally this Manx Appeal case became a subject of conversation, whereupon his Lordship expressed himself in very warm terms as to the excellence of Sir James Gell's arguments.