[from W Ralph Hall Caine Isle of Man]

CHAPTER XV.

MARRIAGE LAW

' BREAST law,' or the law of custom, of which the oracles were the Deemsters with ` the xxiiij ' (sometimes described as ` viij of the Out Isles and xvj of the Land of Mann'), guided all justice in the Isle of Man in early times and down to the fifteenth century.

When Sir John Stanley, the son of him to whom the first grant was made, came to the island, he asked for enlightenment. Nothing having been recorded ` since King Orryes Days,' to the Deemsters and the Keys he set the task of putting down in writing usages of hoary antiquity.

In 1419 we find the Deemsters, ` by the Advice and Councell of xxiiij of the Land,' giving for law a strange medley of judgments and general principles of law. Deemsters and Keys, therefore, were lawmakers and law-givers. Sometimes the Lord himself tried his prentice hand at legislation.

For the better administration of justice, Sir John Stanley also directed that on all doubtful points the decision ' be always registred upp, and laid in my Treasurie, that it may be ready when such a Chance falleth, that one Doome or Judgment be (not) given at one Time, one Way, and another Tyme contrary.'

In the passage of centuries statute law has absorbed rather than varied the law of custom, until at the present time usage is a means of interpretation rather than a law itself.

A husband is liable for debts contracted by his wife before marriage, and also after marriage, where it can be shown that the indebtedness has been contracted by her in his name, and with his knowledge or authority, express or implied.

A widow is entitled by right (after the payment of his debts) to half the personalty of her dead spouse absolutely, and a life interest to the extent of one-half of his real estate. Under the old law this was limited-so long as she remained a widow and chaste. The respective rights of husband and wife are now covered by the statute of 1852, which repeals previous Acts on the subject, and is the existing law.'

If the will of her deceased husband varies her widow-right,' she is put to her election, and may choose to stand either by what the law gives her by right of dower or by what her husband desired that she should have. A second wife takes a fourth. After the discharge of her husband's debts, therefore, a widow has a right which nothing but her own act can destroy.

On the other hand, a woman engaged to marry cannot by any deed alienate her possessions (whether in Man or, as we say, ' beyond the seas,' meaning England or elsewhere) from her husband's control during their joint lives, or his life, if he survives her. The law seems to refuse to believe that the marriage tie could exist if it were to create or permit two heads to one household ; and the effect in law is to merge the personality of the wife in the husband during marriage, and to give him an absolute right to her personal estate and, in case he survives her, a life interest in her realty, termed ' a tenancy by the courtesy.'

A trust, corresponding to the marriage settlement in England, may be made, but it must have the assent of the intended or actual husband, as the case may be, and any deed without such assent would be null and void.

An Englishwoman marrying a Manxman-or Englishman domiciled in the Isle of Man-forfeits her rights of dower by English law in England, the nationality of the husband prevailing. Merely by residence out of the Isle of Man a Manxman does not relinquish his nationality, unless, having neither home, nor property, nor expectation here, the abode abroad is of such a character as to constitute a domicile in the country of actual residence. Neither does mere residence in the Isle of Man for the summer months, or even the taking of a permanent house, constitute on the part of a foreigner a domicile here, unless no other home exists, and the circumstances show that a fixed domicile in our island has been intended.

A woman on marriage to a Manxman has no further control of her own real or personal estate, unless settled by deed before or after marriage. But the husband has been under varying limitations. Unless the wife remained with her husband for a year and a day, the husband had, by an old Act, no interest in his wife's real estate. This law is now probably obsolete.

Of a wife's real estate the husband has no powers of disposal, but of her personal estate it vests on marriage in the husband, unless it is settled by deed for her separate use; and it is immaterial where the personal estate may be, whether in the island or out of the island.

Another very material point may be thus expressed: There is no doubt that a husband can, by mortgaging his own lands and contracting debts, on death practically dispossess his wife of her widow-right in his real and personal estate. Butand it is a very large ' but'-in actual experience no one will wisely lend money without the wife's signature to a deed of mortgage. As a mortgage deed contains a personal covenant by the husband for the principal and interest if the land proves insufficient, it is presumed that his personal estate is liable for any deficiency.

The law endeavours to be fair: creditors must be satisfied before the widow takes her share. Except, therefore, under circumstances of practical bankruptcy, a widow cannot in the Isle of Man find herself portionless, as she might in England.

The position of a married woman in the Isle of Man is similar to that of a married woman in England prior to the passing of the Married Woman's Property Act, save that her interests in Man are safeguarded to an extent of which her sister in England has not dreamed.

Certain of the old laws are curious and interesting. For instance, a woman taken by constraint could, if she were a wife, call down upon the offender the vengeance of the law; but if she were a single woman ' the Deemster shall give her a Rope, a Sword, and a Ring; and then shall she have her choice to hang him with the Rope, cut off his Head with the Sword, or marry him with the Ring.'

The Church had its own special discipline, and used the rite of marriage without remorse to enforce its will, glorify its prestige, and add to its exchequer. The Church in Man was by no means unique in this assumption of priestly prerogative, but nowhere was its will imposed with greater vigour or less stubbornly resisted. Those who anticipated the invocation of the blessing were required to stand in a white sheet at the church door on three consecutive Sundays as an act of penance, 'and if they marry, that they go from the Sheet to the Ring.'

They had ' to perform these censures and satisfy the law' before admission to Holy Communion. Seeming virtue was made easy to the hypocrite. Thus was the most sacred rite of the Church degraded. The payments were: to the minister threcpence for writing a certificate of each day's penance, twopence to the sumner, and fourpence for the sheet; and 'Do appeal from the Church.' The Magdalen oftentimes performed her penance with a light heart, and like a true recalcitrant daughter of Eve, vied with her fellow under censure, not in the depth of her sorrow, but in providing herself with a sheet of purer linen, white, and without spot or blemish, hole or frayed edge

In 1594 the Deemsters and the xxiiij Keys gave .for law a custom of immemorial usage on the island. It exists to this day, and provides that when parents of a child marry within ' a year or two,' such child shall be legitimate, provided the mother has been ' never slandered or defamed with any other man before.'

This merciful law, which has, I venture to believe, the sanction of all men free of priestly taint and ultra pious zeal, has shielded from cruel slander many of those whom we, in all charity, call o love children.'

One attempt has been initiated in the Council of our Legislature to repeal this law; and substitute for it the cruel distinction of ' a stranger in blood,' as adopted in England, ' Holy' Russia, Brunswick, and two cantons of Switzerland. In Scotland, where much of the Roman and Pontifical doctrines of marriage and legitimacy have been adopted, the law regarding the relation of the sexes is often far in advance of English intelligence. But in Scotland, where the sins of the father are visited upon his innocent offspring, one must remember that there are absolutely no impediments in the way of those qualified and willing to incur the marriage tie.

The reasons given to us for the suggested change were curious and remarkable: first, that the law as it stood was an incentive to immorality; and second, that it was incapable of strict definition.

Surely no law was, ever threatened for such oddities in reasoning. The term ' a year or two' is to be interpreted in the sense of the men who used it, with the further knowledge that they were only recording a customary law even at that time. They did not mean to put any hard-and-fast limit of one year, or of two years, from the time the parents came together; they used a loose phrase to mean what it still means-several years, if need bethe one object being, not to promote immorality, as suggested, but to offer every inducement to bring parents together in regular marriage, with as little delay as under the particular circumstances of each case was found reasonably possible, and remove all stigma from innocent offspring.

Happily the Keys realized the sacred trust of the ages and held to the ancient law. Inspired by the example of Norway, whence this law came to us, and jealous of canon law being engrafted upon our jurisprudence, they replied in the proud manner of the English barons assembled at Merton: ' We will not consent to change the laws of Mona hitherto used and approved.'

Among the people themselves there was an oldfashioned impression that all ' love children' who could be gathered, at the ceremony of marriage, beneath their mother's ample skirt were thus legitimatized. But so far from the peasant idea obtaining any legal sanction, the courts have extended, most unwillingly, the maximum of two years from the birth, not the begetting, but refused to go farther.

' Divorcement' came within the purview of the old spiritual courts; but whatever the practice of these tribunals, we have no recorded law bearing on the subject. Further, the whole spirit of the statute law is not merely to make divorce difficult, as in England, but to remove the temptation on either side to desire it. A special Act of Tynwald is required for every divorce.

The Ecclesiastical Courts of the island had jurisdiction to grant separations, a mensa et thoro (styled a judicial separation), on the ground of infidelity, or to decree restitution of conjugal rights in cases of desertion. The former proceeding was necessary in order to obtain an Act of Tynwald annulling the marriage.

The ecclesiastical jurisdiction no longer exists, and is now by the Judicature Act of 1884 transferred to the Chancery Division of the High Court, which follows, generally speaking, the old procedure. The merest shadow of the old spiritual courts alone remains, taking cognizance of nothing save purely Church affairs, faculties, etc., with one somewhat curious exception, affiliation coming within the purview of the Vicar-General.

By a recent Act, called the Married Woman's Protection Act, magistrates in petty session can grant a separation order on the ground of desertion and cruelty, and award maintenance to a wife, similar to the analogous Act in England.

But, speaking generally, separations are granted with such a measure of grave hesitation as would commend itself to Lord Gorell, who rightly sees in them a profound and perhaps lifelong injustice to the innocent party. No wonder, therefore, that separation by what is facetiously called ' mutual consent' (though one party may be entirely unwilling), such as the Divorce Law Reform Association show to be sapping the foundations of family life in England, has no existence in the isle of Man, and if entered into, either party could destroy it-first because it never had any legal existence, a married woman not being qualified to sign such a deed; and secondly, because such a deed is against the laws of morality and public interest.

In other words, the marriage law of the Isle of Man, for which we have in a measure to thank our Viking conquerors, holds out every inducement to married people to remain together; and the Council wisely resisted a recent effort on the part of the Keys to introduce into Man a measure corresponding to the Married Woman's Property Act of England-admittedly a clumsy effort to remedy an acknowledged grievance-on the ground that the law of the island already gives a wife rights which outweigh the wife's rights under that Act, without the temptation to a wife of private fortune to break away for no ascertainable cause, or at her own whim and caprice, giving her husband no right to a final release in divorce, such as obtains in Scotland after four year's absence.

The Legislature has not always proved sufficiently strong to resist ecclesiastical interference in the administration of simple justice in the relation of the sexes ; but it has held tenaciously to its firm principle to forgive an offence which marriage can atone, to draw into matrimony those whom love or passion has already united, to obliterate all shadow of taint from the children of irregular unions, and to hold the marriage contract sacred, against lawyer or priest, where doubt has crept in, by refusing to hear any plea that would besmirch the fair fame of the dead, and nullify a union already terminated by the death of one partner.