[pages 4-11 1792 Report of Commissioners of Inquiry]

PART THE FIRST.

ALLEGATIONS.

ON the second Day after our Arrival, the Lieutenant Governor convened the two Branches of the Legislature of the Island, at Castle Rushen, for the Purpose of receiving us. We attended this Meeting, where His Grace the Duke of Atholl was present, and delivered our Instructions to the Clerk of the Rolls, by whom they were openly read In the Presence of the Lieutenant Governor and Council, and the House of Keys. After a short Address to the Assembly, in which we adverted to the principal Objects of our Mission, the Duke of Atholl expressed his Readiness to enter into the Proof of his Allegations, and also his Wish that they might be investigated in the most public Manner. We then acquainted the Keys, that we were desirous with all practicable Dispatch to discharge the Duties assigned to us, and requested to know what Line of Conduct they meant to adopt respecting the Objects of our Inquiries. The Keys declared their Intention of appointing a Committee to attend us during the Progress of the Investigation ; and having withdrawn to their House for that Purpose, the Speaker, on his Return, communicated to us the following Resolution of the House:

[Appendix (A.) N° 1]

House of Keys, 23d September, 1791.

His Majesty’s Commissioners having this Day signified their Intention to meet in Douglas on Monday next, and proceed on their Inquiry respecting His Grace the Duke of Atholl’s Claims ; and having at the same Time expressed a Wish that this House, by themselves or a Committee, should appear and attend them on this Occasion ;

It is therefore Resolved, That John Taubman, John C. Curwen, John Lace, Robert Heywood, John Cosnahan, Richard Symons, and John Taubman, Junior, Esquires, Members of this House, or a Majority of them, be, and they are hereby appointed, a Committee to attend the said Commissioners, and render them any Information in their Power, as well on the Claims of His laid Grace of Atholl, as on all other Matters under the said Commissioners’ Mission.

And it is further Resolved, That this House, by themselves, or by a Majority of their said Committee, do attend the said Commissioners through the Course of their Inquiries.

William Christian	Samuel Wattleworth	John Taubman
Richard Symons	Philip Moore,	John Lace
Thomas Kirwan	James Brew	Robert Heywood
George Quayle	John Stevenson	John Curphey
William Callow	John Taubman, Junior
Thomas Allen	William Cubbon

At a Meeting on Monday September 26th at Douglas, the Duke of Atholl, the Lieutenant Governor, the Attorney General, and also the Committee of the House of Keys, attended ; and it was then proposed to investigate the Allegations made on the Part of the Duke of Atholl, in the Order in which they are stated in the Instructions But before any Evidence was produced, the House of Keys requested, that a Secretary might be allowed to attend on their Part, which was granted accordingly. The Speaker of the House of Keys then delivered to us a Paper in the following Words :

[Appendix (A.) N° 2]

The House of Keys have appointed a Committee to attend your Proceedings, , agreeable to your Wishes ; and in so doing they beg Leave to have it understood, Compliance is not to be construed into any Approval of the Measure, or preclude. them from taking any Steps, which they may hereafter be advised, or judge expedient.

By Order of the Committee,

" Douglas, 26th September, 1791

John Taubman, Speaker.

To the Commissioners of Inquiry."

Not withstanding this Intimation the Committee continued to give their Attendance

The Order in which the Allegations are stated is this:

1st That the Revenues arising to His Grace’s Family were not fairly collected, even prior to the Revestment

2d, That his Family had the Power of increasing the Duties, with the Consent of the Legislature; and that such Consent, to any reasonable Degree, would not have been wanting

3d, That some Rights, unnecessary to be vested in the Crown, for the Purpose of preventing illicit Practices, have been so vested ; While others, meant to be retained, have by the Operation of the Act of 1765, been rendered nugatory, by being left in a mutilated and unprotected Condition ; the Protections which they enjoyed under the former Government of the. island having been destroyed, and no new or adequate Protection substituted in their Room.

[No 3]

The Duke proceeded to adduce Proof in Support of his first Allegation, namely, ;That the Revenues arising to his Family were not fairly collected, even prior to the Revestment

In order to prove what Duties the Lords Proprietors were entitled to prior to the Revestment. His Grace produced an attested Copy of an Order of Council of the Island, 1692, recognized by an Act of Tynwald, of the Year 1736.

[Appendix (A.) No 4, 5, 6, 7, 8]

In Support of his Allegation he called five Witnesses ; namely, John Quayle, Esq. Clerk of the Rolls ; Mr. Coultry Connell, Cooper in Douglas; Mr. William Crebbin, Merchant in Douglas ; Robert Heywood, Esquire, Member of the House of Keys ; and Thomas Moore, Esquire, Deemster of the Island. These Persons, as well as all other Witnesses called to prove the subsequent Allegations, were severally examined by the Duke in Person, and occasionally cross examined by the Keys.

From the Testimony of these Witnesses it appeared that previous to the Revestment in the Year 1765, there was but one Custom house in the island, which was fixed at Castletown, although the principal Port was Douglas. That the Office of Collector was executed sometimes by two, and at other Times by three Persons conjointly, at a Salary of Twenty Pounds Manks, to be divided between them, together with some small Perquisites one of which Collectors, namely, John Quayle, held the Office of Comptroller. That at Douglas there was a Deputy Searcher and Assistant, at Salaries of Three Pounds Manks each per Annum ; the former of whom was a Trader on his own Account, as well as a Trader for other Persons ; and it appears by the Evidence of Mr. Quayle, that this Circumstance was known to the Duke of Atholl. That all the Revenue Officers were commissioned and sworn to the due Execution of their Office, before they could enter upon the Duties thereof. That no Brandy, Rum, Teas, Silk, Tobacco, or Geneva, or any other valuable Commodity, could be admitted to Entry but by the Collector ; but that in trifling Articles, and where the Duties came to a few Shillings, the Deputy Searcher at Douglas calculated the Duties and received them, and sent an Account of the Goods and of the Duties to Castletown, that a proper Entry might be made. That the Collector’s Books were examined by the Returns of the Deputy Searcher ; and that they were examined again before the Governor, at an Audit Court.

John Quayle, Esquire, testified also, that he had no Knowledge of any Frauds, small or great, being committed in the Collection of the Duties of the Island, to-the Prejudice of’ the Lord,’ from the Year 1755 to the Year 1765; during which Time he was in Office ; that it was his Duty to inquire if any such Fraud had been committed ; and that he was very zealous in the Discharge of his Duty. But he afterwards admitted; that there must have been Smuggling prior to the Year 1765, because there were Seizures and Condemnations ; but these were to small Amount.

Mr. Coultry Connell gave Evidence of some particular Instances of illicit Practice that came within his Knowledge ; which he confined to the House to which he belonged ; and stated, that he could not say this was the general Practice of the Merchants.

Thomas Moore, Esquire, testified, that he was in Trade in the isle of Man from 1751 to 1756, when he quitted Business ; that between the Years 1756 and 1765, to his Knowledge, Silks purchased at the India House in London, and Silks from Spain, to a considerable Amount, were landed in the Isle of Man without paying the Duties; that in the Winter of the Year 1764, great Quantities of Teas were likewise landed without paying Duties ; and, in particular, that he saw great Quantities piled up in his House, which was then uninhabited. .

Mr. William Crebbin said, that the Temptations laid before the Subject were irresistible; that he has no Doubt but His Grace’s Family was defrauded of many Thousands per Annum. On Cross Examination it appeared, that he did not know what was the Average Amount of the Revenues arising to the Duke of Atholl’s Family for any Number of Years prior to the Revestment, nor what Proportion the Goods smuggled into the Island bore to the Goods fairly entered.

Robert Heywood, Esquire, said, that prior to the Year 1765, it consisted with his Knowledge,. that Smuggling respecting the Duties on Articles imported into the Isle of Man was a common Practice, but could not mention the Amount ; that the Situation , he was then in, as a Merchant’s Clerk, gave him an Opportunity of seeing a good deal of it ; that the Articles on which the Duties principally arose consisted of Tobaccoes, brandies, Teas, and other India Goods, particularly Silks, which was, he said, considered as fair Game.

[Appendix (A.) No 9]

The general Tendency of the Cross Examination of the several Witnesses on the Part of the Keys, was to shew the Articles upon which the Duke’s Revenues principally arose ; and it appeared, that those Articles consisted of Tobaccoes, Brandies, Teas, and India Goods,

On this Allegation we are of Opinion, as well from the positive Testimony adduced, as from the necessary Consequence of that defective System which appeared in Evidence to have established for collecting the Duties, that although the Amount of the Loss sustained cannot be estimated, the Lord’s Revenues were not fairly collected, or: paid, prior to the revestment.

The Duke , thought proper to divide the second Allegation into two Branches 1st "That his Family had the Power of. increasing the Duties, with the Consent of the Legislature."

This being a self-evident Proposition, no Attempt was made to controvert it.

But with regard to the second Branch of the Allegation, "That that Consent to any reasonable Degree would not have been wanting ;" no Evidence was produced that such Consent had ever been granted, by any increase of the Duties originally in the en Order of Council in the Year 1692, and confirmed by an Act of Tynwald 1736; or that any Proposition tending to such Increase had ever been brought forward by the Lord Proprietor, or by any’ Branch of the Legislature, previous to the Revestment. The Proof, therefore, of what the Legislature would have done, had such a Proposition been made, resting merely on Conjecture, we think it incumbent on us to state at length the Depositions of Thomas. Moore and Hugh Cosnahan, the Witnesses produced in support of this allegation, however irrelevant Parts of those Depositions

Thomas Moore saith, "That some time previous to the 28th January 1765, was the Time the first Rumour reached the Isle of Man of a Treaty being depending between the Lords of the Treasury and the then Duke of Atholl, for the Surrender of the Isle of Man .; it was by public Rumour, and not by official information from the Governor, or any of the then Duke of Atholl’s Servants in the Island, that the Inhabitants first became acquainted with that Information. To his Knowledge the House of keys applied to the Governor of the Island for a Meeting of the Keys on hearing such a Report , but the Governor did not comply with that Requisition in January. That another Requisition was made by the Keys in the Month of March following, and that was then complied with by the Governor of the Island ; and in consequence of that Meeting, Mr. Cosnahan and this Examinant were deputed by the House of Keys to attend Parliament, to apply in the Behalf of the Inhabitants of the Isle of Man. That Mr. John Christian, who was then a Merchant in Douglas, went along with the Examinant and Mr. Cosnahan, to assist in Mercantile Matters, at the Request of the Merchants. That being previously acquainted with Mr. Hammersley, who was the Duke’s Agent, upon their Arrival in London, Mr. Cosnahan and this Examinant waited upon him, to know what was doing or done respecting the Affairs of the Isle of Man ; and expressed their Surprise to Mr. Hammersley, and told him they thought the Inhabitants were extremely ill used by the then Duke of Atholl; in not being timely acquainted with the Treaty carried on between the Government and His. Grace : Mr. Hammersley seemed surprised that they should make that Complaint. And the following Day they met with Mr. Quayle at Mr. Hammersley’s ; and Mr. Hammersley asked Mr. Quayle, whether he had not Directions from the Duke of Atholl to acquaint the Inhabitants. of the Isle of Man of the Treaty for the Sale of the Island ? and he said he had. Mr. Hammersley said to Mr. Quayle, Did you let the Inhabitants know of this Treaty ? and Mr. Quayle said he had : and this Examinant, Mr. Cosnahan, and Mr. Christian, then declared that they had received no Notice thereof, and that if any such had been given, they must have heard of it. Mr. Quayle thereupon said, I acquainted the Governor. Soon after this Examinant, Mr. Cosnahan, and Mr. Christian came to London, they waited upon the then Duke of Atholl; and had a good deal of Conversation with His Grace upon the Subject; and they complained that they had not Notice of any Treaty for the Sale of the Island. The Duke then informed them, that he was only just then come to his Estate ; that he was very little acquainted with the Isle of Man or his Affairs there, and that he was forced to take whatever he could get from Government. After some Conversation, to the best of his Recollection as to the Person, Mr. Christian said to His Grace, You have hitherto got a Penny per Gallon for Spirits imported into the Island ; People would readily have joined to have given you Two or Three Pence per Gallon, and so in Proportion for other Goods imported, had you. not sold the Island : and the Duke said, I wish I had known so much of the Island as I do now ; had that been the Case, I would never have parted with it ; adding, I with to God they would take the Money back again, and restore the Island under whatever Restrictions they please. ..

As a Member of the House of Keys, he would have agreed to an Extension of these Duties, upon having a proper Trade opened for the Inhabitants of the Island being thereby to have Liberty to import Wine and other Articles into the Island, with Liberty to export them to Great Britain and Ireland, upon giving Bond to pay the British and Irish Duties there when landed.

He understood, that in the Conversation alluded to between Mr. Christian and the Duke of Atholl, relative to the Increase of Duties, that Mr. Christian meant, that the Inhabitants would have consented to the Increase of Duties, upon Condition of the Trade’s continuing upon its former Footing, Or being put upon a proper Footing of Trade, meaning upon the same Footing as before; meaning as before. explained by him, with the Addition of Liberty to trade to different Parts of the World, without injuring the Revenues of Great Britain or Ireland. He was acquainted with an Act of Tynwald that passed’ in 1711, a proper Copy of which will be delivered to the Commissioners by Direction of the Keys. had the Trade of the Island been put a Stop to, and no Sale made, he cannot tell whether he, as one of the Keys, would have consented to any Increase of the Duties, as that must have depended upon Circumstances. He cannot tell whether previous to the Year 1765 the principal Article of Trade to this Island did or did not consist of India Goods, but the Trade in India Goods was very considerable."

[Appendix (A.) No 11]

Hugh Cosnahan saith, " That he believes that the Month of January 1765 was the first Time that the Rumour reached the Isle of Man of the Treaty for the Sale of the Island ; that the Inhabitants first became acquainted with this Treaty by public Rumour, and the House of Keys applied to the Governor to be called together upon this Rumour; that this first Requisition was not complied with. He does not recollect whether there was a second Requisition, but he believes there was, and that a meeting of the House of Keys was held inconsequence thereof; and he was appointed one of the Commissioner's in March 1765 to attend Parliament upon that Business of the Island. When he was in London, he expressed his Surprise to the Duke of Atholl and Mr. Hammersley, that the Inhabitants were not apprized of what had passed between Government and His Grace, respecting the Sale of the Island : He cannot recall whether he received any Answer from His Grace upon that Head, but Mr Hammersley said, Mr. Quayle had Directions from the Duke of Atholl to apprize the Inhabitants of what was going on respecting the Sale of the Island ; that Mr. Hammersley then said to Mr. Quayle, ‘You had Directions to communicate to the People of the island what was going on respecting the Sale of the Island.’ Mr. Quayle acknowledged that he had had Directions, and that he had communicated that Information to the People. He then asked Mr. Quayle, to whom he had given that information; and Mr. Quayle said, To the Governor. He recollects that, after Mr. Quayle went away, Mr. Hammersley seemed to express as much Surprise as this Examinant, that the inhabitants were not acquainted with what had passed, and gave Mr Moore copies of what had passed between Government and His Grace respecting the Sale of the Island. He recollects, that in his Conversation at this Time with the Duke of Atholl, he expressed his Regret, both as a Delegate and a Merchant, that the Duke of Atholl had parted with the Island, and a Surprise that Government could so minutely come to a Knowledge of the Amount of the Revenues of the Island for ten Years past. He mentioned to His Grace, that if he had gone to Dunkeld, and let the Storm blow over, that the Island might be in the same Condition it had been. His Grace replied, that as Matters then stood in the House of Commons, he should lose all his Revenues without any Compensation.

He did hear, that some of the Inhabitants, in the Spring of 1765, in consequence of their not having heard of the Sale of the Island, refused to pay the Duties to the Duke of Atholl, and he was one of them ; not from any Intention of evading the Payment of what was due to him, from a Notion that the Duke had no Right, but from a. considerable Loss he had sustained by his Absence from the Island, and the Quantity of Goods he had in Hand, that he did not know what to do with ; and he was not dissuaded by any Person from paying such Duties ; and. he considered his not being called upon for the Payment of those Duties, as a Favour from His Grace’s Family.

Had the Exportation of India Goods and Spirits to Great-Britain and Ireland been stopped, and no Increase of Trade given on the Part of Great-Britain, he would not, as one of the Keys, or as a Merchant, have consented to any Augmentation of the Duties payable in 1765.

In the Year 1765, if he had found the Island had not been sold, he, as a Merchant, would have been one, and would have recommended it to others, to have augmented Duties, if he had required it, and would have gone every Length that the would bear to have preserved the Island in its then Trade , and he, as a Key and a Merchant, would have cordially joined the Body of the Keys, and the other Inhabitants of the Island, in every reasonable Request of the Duke, and that the Trade would bear, to regulate a Trade that might have been suitable for the People of this Island, and not to injure the British Government."

[Appendix,(A.) N° 12, 13,14, 15, 16,17, 18, 19, 20.]

We think it right here to observe, that the Persons who were deputed by the Keys to attend Parliament, as above slated, were furnished with Instructions by the House,bearing date 21st March 1765, in which there is not contained any Authority to offer or consent to any Increase of Duties.

From the whole of this Evidence we collect, that it is not probable a Consent to any Increase of Duties would have been given without an Equivalent

The third Allegation was likewise divided by His Grace into two Branches , the first of which is, " That some Rights unnecessary to be vested in the Crown for the Purposes of preventing illicit Practices have been so vested ,"—and previous to the Production of any Witnesses in Support of this Proposition His Grace delivered in a. Paper, enumerating the Rights which he conceived to be unnecessarily vested in the Crown, in the Words following.

[Appendix (A) No 21]

The Rights which I conceive were unnecessary to be vested in the Crown " for the Purpose of preventing illicit Proceedings, are,

First, the Herring Custom, which formed Part of our Revenue previous to 1765, as appears from the Schedule of that Act ; and if it is thought necessary, can be further proved by Extracts for any Number. of Years from the Revenue Books. It consisted of Ten Shillings collected yearly on each Boat , and by an Act passed in the 11th of his present Majesty, Cap 52, was thrown or vested in the Harbour Funds of the Isle of Man.

Secondly, the Salmon Fishings, which were by the same Act vested to the fame Purposes.

Although the Sovereignty over the Ports and Harbours in the Isle of Man might be necessary to have been ceded for the Purposes of preventing illicit Proceedings, I can never see why it was more necessary for the Crown to be possessed of the Harbours and Quays in the Isle of Man . than in Great-Britain, where (excepting the Dock-Yards) they are private or corporate Property. In my Opinion, with some Outlay of Money, and proper Care and Attention, the Harbours of this Isle might have become a valuable Property to my Family

The Isle and Castle of Peele, although certainly not necessary to be vested in the Crown for the Purpose of preventing illicit Practices, having since 1765 been Cc used as a Sheep-Walk by the High Bailiff of Peele, stands one of the first Articles in " the Revestment : Feeling, as I do, some Regard for the ancient Seats of my Family in this Island, perhaps I estimate this at more than its Value.

Treasure Trove was in our original grants of the Isle, and appears to have been omitted in the Reservation : As a Prosecution was brought against my Agent on this Account, I with to be reinstated in the Possession of it., believing that its remaining vested in the Crown is not necessary for the Prevention of illicit Proceedings.

The foregoing is the Order in which I made my Allegations.

ATHOLL."

Appendix,

[Appendix (A.) N° 22, 23].

Upon this Subject we beg leave to premise, that we did not conceive ourselves at Liberty to enter into any previous Question whether the Rights thus specified were vested in the Crown merely for the Purpose stated in the Allegation, or as constituting Part of the Royalties and Regalities meant to be transferred with the Sovereignty of the Island; we thought it our Duty to confine our Inquiry within the Limits of our Instructions, and to consider only whether those Rights were or were not necessarily vested in the Crown for the Purpose of preventing illicit Practices.

The Herring Custom appears to be a Right of very remote Antiquity, whereby a Maze of Herrings, consisting of Five Hundred, was formerly due from every Manks Boat for the Supply of the Garrisons of the Island, hence called a Castle Maze. It is noticed as an ancient Custom in one of the earliest Records in the Statute Book of the Island, dated 1422, entitled

" Divers Ordinances, Statutes, and Customs, presented, reputed, and used for Laws in the Land of Mann, that were ratified, approved, and confirmed, as well by the Honourable Sir John Stanley, Knight, King and Lord of the same Land, and divers others his Predecessors, as by all Barons, Deemsters, Officers, Tenants, Inhabitants, and Commons of the same Land where the Lord’s Right is declared in the following Words ;

Also we give for Law, that a Castle Maze be paid out of five Maze of Herrings in a Boat taken, and Half a Maze out of two Maze and a Half in a Boat gotten, as often as they go to Sea and are gotten so ; and this is our Law by Custom and Usage ; and the Lord to pay Sixpence for a Maze thereof, provided that the Bringers of the first Maze shall for the same have Three Shillings and Four Pence."

This Custom is again recognized in the Book of Orders made by the Commissioners of Edward Earl of Derby, bearing Date at Castle Rushen 16th July 1561, in the following Terms :

Item; At every Herring Fishing upon the Coast of Man, all Manner of Persons, whatsoever they be, Barons, Officers, or Soldiers, to pay the Castle Maze and Customs as hath been heretofore used."

[N° 24, 25, 26]

Divers Regulations are also made by Statutes of the Years 1610 and 1613 , respecting the Herring Fishery.

[No 27]

In Process of Time, although the exact Period has not been ascertained, this Duty was commuted for a Money Payment. By the Commutation, every Manks Boat that took ten Maze of Fish was chargeable with a Payment of Ten Shillings, and with smaller Payments in certain Proportions, where the Quantity of Fish taken did not amount to ten maze. Foreign Boats, which Term comprehended all such as did not belong to the Island, excepting English, were subjected to a double Payment.

[No 28]

This Duty was paid by Boats not being Manks, either at Sea or when they came on . Shore, and by manks Boats once a Year, generally about Christmas. At present it is collected from Manks Boats when the Fishing Season is over, at which Time public Notice is given by the Coroner to the Master of every Herring Boat in his District to attend at the Custom House in Douglas on a Day fixed, to pay the Herring Custom for the preceding Season.

[No 29, 30, 31]

Mr Senhouse Wilson, Deputy Receiver-General, Mr. Michael Cullen, Deputy Searcher at the Port of Douglas, and Mr. George Savage, Water-Bailiff, were severally examined to the Tendency and Operation of this Right ; and all say they do not know of any Instance where the Collection of this Duty has been the Means of detecting or preventing illicit Practices.

Considering therefore, the Testimony produced, as well as the Nature of the Herring Custom which appears to be a mere Right to collect an annual Payment in a certain without affording any Control over the Fishing Boat, we are of Opinion, that it is not necessarily vested in the Crown for the Purpose of preventing illicit Practices.