[Appendix C(5) 1792 Report of Commissioners of Inquiry]

APPENDIX (C.) N° 5

The EXAMINATION of THOMAS MOORE, Esq. Deemster of the Isle of Man,taken at Castleton, October 19, 1791.

THIS Examinant saith, he has held the office of Deemster from the month of February 1773, and since the year 1774 has been the sole Deemster of the island.

That before the year 1765, he always considered the Bishop and his two Vicars-general, the Archdeacon and his Official, as of the Governor’s standing Council in its legislative capacity, and to have a right to their seats, and a voice in the said Council respectively : That since the year 1765 no acts of Tynwald have passed, but in the years 1776 and 1777, at which time none of the ecclesiastical officers above-named attended : That it was usual, before any bill was transmitted to the Lord Proprietor for his assent, that the Governor and Council, and the House of Keys, should sign the same ; and this Examinant confiders such signature as an evidence that the party so signing acted in his legislative capacity ; and that no person can attest the promulgation of the act but a member of the legislature ; and that whoever signed the same did it in his legislative capacity : That he considers the Vesting Act has made no difference in the right of the above mentioned ecclesiatics to attend and act in their legislative capacities, inasmuch as it is clear that they possessed that right prior to the Revesting Act ; and he does not find anything in that or any subsequent act, that deprives them thereof.

He apprehends, that when the Governor’s Council are called upon to act, either in a judicial or in any other but a legislative capacity, that it is optional in him to summon such and so many of his Council as he may think proper.

This Examinant saith, that till the year 1773 there were two Deemsters, one for the north the other for the south division of the island, who held their offices, prior to 1765, by commission from the Lord during pleasure, at small annual salaries. The Deemster of the north division jurisdiction over the Sheadings of Glenfaba, Michael, and Ayre ; the Deemster of the south division had jurisdiction over Garf, Middle, and Rushen Sheadings, and held their courts wit their respective jurisdictions.

That since the year 1765 to the year 1773 the offices of Deemster were held by patent ; and that since the year 1773 this Examinant hath been the only Deemster for both divisions, and holds his office by patent from the Crown during pleasure, at a salary of 100l. per ann. ; and that since the month of January 1789, he hath received a salary of 2001. per ann.

In the Court of Chancery the Governor is the sole judge, calling to his assistance such of his Council as he thinks proper; and during the remembrance of this Examinant, the Deemsters have usually sat as Assessors : That the Clerk of the Rolls sits and acts there as Register, and as often as the Governor thinks proper, performs the duty of a Master in Chancery.

The Court of Chancery has a mixed jurisdiction in matters of law and equity, and its juisdicton in its former capacity arises when any person indebted is about to quit the island, or left the island has effects therein ; in these cases, the creditor may commence an action in the Court of Chancery, and by a short, and the first process, in the nature of a ne exeat regno, arrests the person or effects of the debtor, upon affidavit of the amount of the debt, and that the defendor or his effects, is about to withdraw or be removed from the island. In these cases, if sufficient bail is offered, it may be accepted.

When this process has issued, and a return made that the effects are arrested, and the defendant does not make his defence on or before the fourth court day, the plaintiff is at liberty to proceed ex parte, and judgment goes against the effects arrested, and so much are disposed of by proper officer as are necessary to answer the plaintiff’s demand and costs. If the defendant appears and makes his defence, the Governor may, as Chancellor, decide according to the forms the Common Law courts, or transmit it to be tried and decided by the. Deemster, and this Common Law jurisdiction is by act of Tynwald.

If the demand is equitable, the pleadings are by bill and answer, similar to those in England and are signed by the attorneys ; but the witnesses are examined viva voce by the attornies or respective parties, in the presence of the Clerk of the Rolls, who takes down the depositions in writing, and returns them to the Chancellor.

When the decree is drawn up, it is signed by the Chancellor, and ordered to be enforced by the Coroner in whose district the person or effects are. From this decree an appeal lay before Revesting Act to the Lord Proprietor, and since to the King in Council, without any time of the amount of the subject matter of litigation, upon entering into bonds in the penalty of 100l. to prosecute the appeal within six months.

The Court of Chancery grants injunctions to stay proceedings at Common Law, which are granted as matters of course upon the bill praying and injunction being filed ; and when the defendant has put in his answer, he may move to dissolve the injunction upon the merits as in England.

With respect to the court of Exchequer, this Examinant cannot speak to its jurisdiction or process before he acted as Deemster; since which time it has been merely a court of Revenue, in which the Governor is sole judge, but is assisted, as in the court of Chancery, by such of his Council as he thinks proper to summon. The Clerk of the Rolls acts as Register of the court; and the general process of this court is described by an act of Tynwald, for the better regulation of the court of Exchequer, in the year 1777 ; but no Jury has been made use of since the year 1777 in causes brought before this court. That previous to the year 1765, an appeal lay from the decisions of this court to the Lord Proprietor, and now to the King in Council, upon entering into a bond in the penal sum of 100l.. to prosecute the appeal within six months : Apprehends there is no limitation of these appeals with respect to the value or amount of the matter in dispute ; and the lodgment of the appeal is considered to be a sufficient proceeding to prevent the recovery of the penalty ; but no decision, to the best of this Examinant’s belief, has been had upon the subject.

That prior to the year 1765, the Sheading or Common Law courts were held twice a year, and held a mixed jurisdiction of a court of Law and a Manerial court, as appears by this Examinant’s report : That since the Revesting Act, the manerial jurisdiction of these courts described in this Examinant’s report has ceased, excepting the registering of deeds in some cases ; as the Governor and officers who preside there are no longer considered as the officers of the Duke of Atholl, Lord of the manor of Man, and the manerial business had generally been transacted by the Duke’s steward.

That prior to the year 1765, the Governor, attended by the Attorney General, and some other of his officers, to attest the confirmation of deeds, sat in court : That the two Deemsters were the judges ; and all process issued in the name of one of them, according to their respective divisions ; the Clerk of the Rolls kept the records, and entered all the pleas. This court held cognizance of all real, personal, and mixed actions ; but the proceedings were generally confined to trial respecting real property, and other actions in which damages might be recovered ; but actions of debt were seldom brought in that court : these actions were determined by the unanimous verdict of six Jurors, who were sworn by the Deemsters in court, and then took the evidence on oath out of court, and were to deliver their verdict to the Deemsters at or before the next court. These verdicts, with the depositions annexed in writing, signed by the Jurors, were delivered to the Deemster, who sent them to the Clerk of the Rolls office to be recorded ; copies of which were delivered to the party requiring it, and by him produced to the Deemster in evidence of his demand ; and if the verdict was not traversed, or removed to another jury within twenty-one days from the day of its being recorded, the Deemster determined the causes according to the verdict, and inforced his judgment, which was final, and no new trial was allowed

Since the year 1765, the only alteration in the proceedings of this court has taken place, in consequence of an act of Tynwald of 1777, entitled, " An Act for the better Regulation of the Proceedings in Courts of Common Law," and " An Act for the better Regulation of juries before a Court of Common Law."

This Examinant further saith, That before the year 1765 the courts of General Gaol Delivery were held twice a year, in the months of May and October. The prisoner was tried by a Jury of twelve men, whose verdict must be unanimous.

That the prisoner had the choice of twelve men that were to try him, but must make that choice out of the Jury impanelled, as mentioned in this Examinant’s report.

The offences triable in this court are treason and felony, which are punishable by death. There is no distinct statute of treasons ; but several crimes are by the ancient statutes declared to be treason, and various species of offences are declared by the statutes to be felonies. Stealing any property above the value of sixpence is, by the laws of the island, punishable with death ; stealing under that value is petty larceny, and punishable by whipping, fine, or imprisonment.

The only alteration that has taken place respecting trials in criminal cases is pointed out by the act of Tynwald 1777, entitled, " An Act for Trials in Treason and Felony, etc."

Previous to the revestment, the Lord Proprietor had the power of reprieving or pardoning the offender, or mitigating the sentence of the court ; which power is now veiled in the Crown : but a report was and is necessary to be made to the Lord Proprietor, or the King, before execution of the sentence.

Petty larcenies were and are triable before a jury of enquiry of six persons, who took the evidence out of court, which they returned, together with their verdict in writing to the Deemster, who transmitted it to the Rolls Office to be enrolled ; and the punishment was fixed at the next Audit Court, which was held whenever the Governor thought proper to call it, and in which the Governor and his officers, and the Deemsters, presided.

The Jury of Enquiry was constituted, and its duties pointed out, by an act of Tynwald in 1753 ; and the only alteration in the proceeding of this jury is made in the act of 1777, whereby four persons are declared to be a Jury of Enquiry.

Upon complaint made. to the Deemster that any property is loft or stolen, or trespass committed, he issued his warrant to the Coroner to summon and swear. a Jury of Enquiry, and also to summon all suspected persons and material witnesses ; and the jury proceed according to the act of 1753.

In cases of petty larceny the number of jurors is six, and in matters of trespass the Jury jury consist of four. When the Jury of Enquiry have fixed the damage in case of trespass, Deemster enforces payment thereof by virtue of the statute of 1753.

That the Deemster’s warrant to summon a Jury of Enquiry is demandable of right ; but the Deemster may require an affidavit to substantiate the ground of complaint on which this warrant is granted.

The Deemster’s court holds cognizance of the several matters mentioned in this Examinants's report, and in this court the Deemster alone presides, and determines the causes brought before him upon the evidence produced, without the intervention of a Jury ; and from his determination an appeal lay to the Governor and his Council, and from them formerly to the Lord Proprietor, and now to the King in Council.

When an appeal is intended from the Deemster’s decision, a petition is preferred to him, who thereupon stays proceedings, upon the Appellant’s undertaking, within a limited time, to enter into a bond in the penalty of 31. to prosecute his appeal before the Governor within six months.

The Common Law courts have in several instances a concurrent jurisdiction with this court, and the plaintiff has his choice where to proceed : but the Deemster’s court is generally referred to. This court is generally held on Monday and Tuesday in every week, and oftener if occasion requires, at this Examinant’s private court-house at Ballyselly ; and when requisite, this court is held at different parts in the island, but there is no regular circuit for this purpose.

That the proceedings in the Deemster’s courts are the same as before the year 1765.

That the limits of the baronies mentioned in this Examinant’s report are well known ; and that prior to the year 1765, the proprietors or occupiers of land within those baronies had a right to have their suits, civil or criminal, in the said report mentioned, prosecuted in the courts of the said baronies, in the manner and before the persons likewise therein mentioned. But by the act of 1777, for the better regulating juries, etc. it is apprehended that all the business and jurisdiction of these courts, except in manerial matters, is transferred to the Common Law and Deemster’s courts.

This Examinant saith, That the duties of the Grand Inquest were to try all questions respecting boundaries, watercourses, and to present all nuisances, and other matters referred to in the statute 1577, This jury was called and sworn half-yearly, but is abolished by the act of 1777.

That prior to 1765, the Officers of Police were the Coroners and Serjeants of Baron lands, and the Captains of the several towns, who were Conservators of the Peace in their respective districts : That the Captains of the Towns have the power of removing all nuisances and obstructions in the streets. Since 1765 the Police has been regulated by the act of 1776 and 1777, in the manner therein described.

Prior to the year 1765 the defence of this island was entrusted to the Lord’s soldiers and a national militia ; the Governor appointed a Captain, Lieutenant, and Ensign in every parish and towns : the Captains might compel the attendance of all the male inhabitants between sixteen and sixty years, except the Keys and some few persons by their offices exempted, to act as a militia, as often and for such time as was held necessary for the defence of the country. Four Horsemen, of the most substantial inhabitants of every parish, were appointed by the Captain ; the Horsemen attended yearly, to escort the Governor and his officers to the Tynwald Hill, on the 5th of July ; and this militia was generally called out and trained two or three days in every year. The Lord Proprietor appointed a Major-general, who had the superintendance of all the militia, who occasionally mustered and called out several of the parishes to review them as often as he thought proper. Neither officers nor men received any pay ; and the men armed themselves at their own expence, or with such musquets as were public property. In time war, watch and ward was kept by some of this militia in different parts of the coast, in rotation, under the direction of the Captains. Beside this force, the Lord Proprietor kept, maintained, and armed, garrisons in his castles of Rushen and Peele.

Since 1765 this militia has never been trained or called out, but some of its old officers remain ; and this Examinant apprehends that a power of calling the militia out still remains.

This Examinant further saith, That real property, acquired by descent in this island, may be sold, or mortgaged, or disposed of by marriage settlement or voluntary gift ; but cannot be devised, and is not chargeable with debts or legacies. But real property, acquired by purchase, may be disposed in any manner at the will of the purchaser ; and if not disposed of, is assets in the hands of the heir at law, in default of personal property, for payment of all debts, whether by specialty simple contract without any preference.

A widow has a moiety of lands of her husband, acquired by descent, dum sola et casta vixerit, way of dower, and has a moiety of his purchased lands during her life, and may dispose of it even in her husband's life-time to such of her children as she shall think proper ; and this right of dower may be barred by settlement before marriage, and by joining in any sale or mortgage, duly acknowledged by her before the proper officer, after marriage.

All estates in land are customary estates of inheritance, descendible to the first and other sons according to primogeniture, and the daughters take in like manner, and not as parceners.

The usual mode of transferring real property is by deed poll, of bargain and sale, which, before the revestment, was generally enrolled in the Rolls office, and most of them since are deposited in the Steward’s office of the Duke of Atholl.

The husband’s right, as tenant by the curtesy, is to one half of his wife’s lands acquired by descent, so long as he remains a widower, and to a moiety of his wife’s land acquired by purchase, absolutely ; and this right vests on marriage, and is the same now as it was before the Vesting Act.

Lands purchased were before 1765, and are still, devisable by will attested by two witnesses; but it is doubtful whether a will written and signed by the testator, without the attestation of any witness, will pass lands.

Personal property, before and since 1765, was devisable by will attested by two witnesses, or without attestation if written and signed by the testator, but cannot be disposed of to the prejudice of creditors : and in cases of intestacy, the distribution of the personal effects is regulated by statute of distributions of 1777, which act also regulates nuncupative wills.

Probate of wills is granted by the spiritual court ; and the concurrent jurisdiction which the spiritual courts had before the year 1765, and still continue to have, with the temporal courts, for the recovery of debts due from a deceased person, is particularly stated by an act of Tynwald of the year 1738.

The King’s prerogative writs do not run in this island.

Children in this island are of age at fourteen with respect to personals, and twenty-one years as to real property ; and may at fourteen demand from their father, mother, or guardian, any personal property, and dispose of it, and reside where they please; and may recover their assets at fourteen in the Ecclesiastical courts, and their real property at twenty-one in the courts of Common Law.

Fathers or mothers may by will appoint guardians to their children till twenty-one ; and upon the father’s death without appointing any one, the Chancellor, or Ecclesiastical court, has a power of appointing a guardian till the age of fourteen, who is usually the next of kin.

No Manksman, or person having the privilege of a native, can be arrested, except by the Chancellor, upon the first instance, for contempt of courts, or for non-payment of the Lord’s rent ; and in all cases of debt, upon surrender of his effects his person is free, but his future effects remain still liable till the whole debt is discharged.

Strangers coming into this island may be arrested in an action of debt, by process from the Governor, and imprisoned, whether the debt was contracted in the island or not, upon affidavit made thereof: but if the debt is a foreign debt, by an act in 1736, on the debtor’s giving bail for his appearance, and full surrender of his effects, he is entitled to his personal liberty, though the debt still continues if his effects are insufficient : but if the stranger is sued for a debt contracted in the island, the creditor may, notwithstanding the surrender of his effects, continue to keep him in prison, so long as he shall allow him such daily sum as the Governor that appoint, not exceeding sixpence.

THOMAS MOORE.’

J. Spranger.
Wm Osgoode. ‘
Willm Roe.
David Reid,