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[pages 66-84 1792 Report of Commissioners of Inquiry]
[note the refs in ( ) refer to the footnotes given in Manx Soc vol 31 and are not in the original report — what were side references are now presented as subheadings cross linked to section in Appendices of original report]
ALTHOUGH the resolution of the House of Keys, stated in a former part of our Report, and the subsequent conduct of the Duke of Atholl, and the Committee of the Keys thereupon, appeared to considerably to lessen the necessity of those inquiries we were instructed to make " into the ancient constitution of the Island, the nature and functions of its legislature, the courts of civil and criminal jurisdiction, and the nature of its magistrates and police, and to report what variations those different institutions have recently undergone ; and in particular, how far the duties of them have been altered or suspended by the operation of the Act of 1765 ; yet we considered it our duty to pursue these inquiries, as far as we had opportunity ; and shall proceed to state the substance of the information we received thereon.
An attempt to trace out, and give a satisfactory account of the constitution of the Isle of Man, from any very remote period of time, would, we apprehend, be fruitless for want of authentic documents and records.
Our inquiries were principally directed, and our Report will chiefly relate, to the Constitution of the Island, that subsisted at, and for some time previous to the Revesting Act, and the alterations that have taken place therein subsequent to the year 1765
The information we have received on these points, exclusively of that which the Manks Statute Book affords, has been furnished by his Majesty’s Lieutenant-Governor of the Island, the Deemster, his Majesty’s Attorney-General, the Clerk of the Rolls, and the Speaker of the House of Keys, who have all long resided, and been in office upon the Isle of Man, except the Lieutenant-Governor ; and their accounts and depositions are annexed in the Appendix.
From thence it appears, that previous to the grant of this Island to the Stanley family in the year 1406, it had been subject to different Governments, though usually subsisting as a petty kingdom, to which the dominion of some of the Hebrides was once annexed, and was successively tributary to, or united with, Denmark, Norway, Scotland, and England.
The most ancient records extant in the Island are those of the laws and ordinances, that have, from time to time, been enacted there, and commence in the year 1417.
The first of these is an Act passed by the authority of Commissioners appointed by the Lord of the Island and the twenty-four Keys, to prevent some abuses of the places of refuge at that time afforded to criminals by some ecclesiastics upon the Island.
The Manks Statute Book commences in the year 1422, and contains, according to its title, a " Collection of divers " Ordinances, Statutes, and Customs presented, reputed, and used for Laws in the Isle of Man."
King Henry the Fourth, by letters patent under the Great Seal of England, in the seventh year of his reign, granted to Sir John de Stanley, his heirs and assigns, the Island, Castle Pele, and Lordship of Man, and all the islands and lordships, royalties, regalities, and appurtenances thereto appertaining, together with the patronage of the bishoprick of the said Isle, and of all ecclesiastical benefices whatsoever to the said islands, Castle Pele, and lordship belonging, in as full and ample manner as they had been possessed by any of the form or lords or kings of Man, to be holden by homage, and the service of rendering two falcons to his Majesty, and the like acknowledgments to every one of his successors at their coronations .
By virtue of the before-mentioned and other letters patent, in the seventh year of the reign of King James the First, the Isle of Man, and the hereditaments comprised in these grants, have been held by the descendants of Sir John de Stanley, as a flef separately from the Kingdom but dependant on the Crown of England, from the year 1406 to the time of the revestment, with some little interruption that took place in the latter end of the reign of Queen Elizabeth, upon the failure of the issue male of Ferdinando, then Earl of Derby.
From the time of the grant of King Henry the Fourth, the Island has been governed by its own laws ; and whatever was the more ancient form thereof, the constitution of the Island, during the time it was thus held by the Stanley family, by degrees assumed that shape in which it is represented to have subsisted, at least from the beginning of the present century to the year 1765, and which we are now proceeding more particularly to describe.
We shall first take notice of the Legislative, and then of the Executive and Judicial Branches of the Constitution of the Island.
The laws and ordinances that were enacted in the Island during the fifteenth and sixteenth centuries, appear by the Manks Statute Book, to have been prescribed by such different powers, or combinations of power, that as precedents of the exercise of Legislative authority, they can have but little weight.
Subsequent to this period was established the more regular mode of legislation, which subsisted at the time of the revestment ; and from the beginning of the last century, with few exceptions (in which the commands of the Lord Proprietor have been obtruded as laws on the people), the legislative authority of the country has been vested in the Lord Proprietor, the Governor and Council, and the Twenty-four Keys.
When these three estates, or the two latter of them, were assembled, they were called the Tynwald Court ; and by the joint concurrence of these three branches of the Legislative power of the Island, the laws which governed its inhabitants were enacted.
The Lords Proprietors deriving their authority under the before-mentioned grants, possessed the prerogatives, and had, for a considerable length of time, the title of royalty. They had the sovereign control of government in every instance, under such restrictions as were from time to time introduced.
With respect to the persons who composed, and had a right to a seat and voice in that Council, which, together with the Governor, formed the second branch of the Legislative power in the Island, various opinions have been offered ; and as this is a question now in controversy, we shall state all the information we have been able to collect upon the subject.
The Deemster represents this Council to have consisted of the following superior lay and spiritual officers of the Lord Proprietor, viz. :—The Treasurer or Receiver-General, the Comptroller, Clerk of the Rolls, Water-Bailiff, Attorney-General, two Deemsters ; Bishop, Archdeacon, his Official, and the two Vicars-General of the Bishop. The Clerk of the Rolls concurs in the foregoing description of this Council, as far as relates to the before-named lay officers, adding thereto the Collectors ; but considers the Bishop and other ecelesiastical officers, only entitled to attend this Council when summoned by the Governor.
The Attorney-General differs, in some measure, from each of these opinions ; for, though he considers some spiritual officers to have had a fixed seat in this Council, he does not allow that all those enumerated by the Deemster were entitled to that privilege. He further confines the right of a seat in this Council to such lay officers as composed the lord’s house.. hold, and acted in his ministerial departments. He thereby excludes the Collectors, and doubts the propriety of ranking the Deemsters as members of this Council; although he admits they appear never to have been absent from the meetings of the Legislature : So that, according to his account, this Council consisted of the Receiver-General or Treasurer, the Comptroller, Clerk of the Rolls, Water-Bailiff or Collector, the Attorney-General, and probably the Bishop and Archdeacon as stated, and the Vicars-General and Official as occasional members.(1)
The claims of some of the before-named spiritual officers to a seat in this Council at the time of the revestment, is moreover supported by instances of the enjoyment of that privilege for a series of years prior to that period. These instances are to be found in the Manks Statute Book, which, from the beginning of the sixteenth century, generally records the names of the members of the Legislature who signed the laws enacted in the Island, either in their passage to the Lord Proprietor for his assent, or at the promulgation thereof afterwards ; which signatures are admitted to be proofs of the exercise of Acts of Legislation.
From this authority it appears, that from the year 1637 to the year 1742, the Bishop, his Archdeacon, and sometimes one and at other times both the Vicars-General, subscribed their names to Bills that had received or were prepared for the assent of the Lord Proprietor ; but no instance has been pointed out to us, of the like signature of the Archdeacon’s Official.
A particular enumeration of these Bills that were so signed, and of the ecelesiastics who added their signatures thereto, was delivered to us by the present Lord Bishop of the Island, and is stated in the Appendix.
We shall only add, that these Bills are, with few exeeptions, Acts of general concern to the inhabitants of the Island, and by no means confined to, or connected with, ecclesiastical affairs.
The duty of this Council was to assemble, when called upon by the Lord Proprietor or his Governor, and give their assent or dissent to the laws proposed to be enacted.
The Keys, who constituted the third branch of the Legislative power of the Isleof Man, consisted of twenty-four of the principal commoners, and, as they were anciently styled, " the worthiest men in the land."
The Keys were in remote times called Taxiaxe, and have clearly existed in the Island for many centuries.
In a declaration of the laws of the Island to Sir John Stanley, at Castle Rushen, in the year 1422, the Deemsters and Twenty-four Keys " gave for law, that there was never " Twenty-four Keys in certainty since they were first that were called Taxiaxe ; those were Twenty-four Freeholders, " namely, eight in the Out Isles, sixteen in the Island of Man ; and that was in King Orrye’s days ; but since they have not been in certainty : But if a strange point had come, the which the Lieutenant will have reserved to Tynwald twice a year ; and by leave of the Lieutenant, the Deemsters there to call, of the best of his Council in that point as he thinketli to give judgment by ; and without the Lord's will, none of the Twenty-four Keys to be"
Hence it may be collected, that the Number of the Keys was, for some time at least, uncertain.
At what particular period, after the severance of the Isle of Man from the Outer or Western Isles, the Twenty-four Keys were all chosen in the Isle, is not ascertained ; nor do we know more of the original manner of their election, than what appears from the before-mentioned declaration of law in the year 1422.
Although the time when, and the manner in which the Keys were first elected, is uncertain,(2)we find from one of the before-mentioned records, that in the year 1417, Twenty-four Keys concurred with the Lord Proprietor’s Commissioners in a public Act : And from this early period at least to the time of the revestment, their number has continued the same ; and for an indefinite length of time prior to the year 1765, they have been elected in the following manner.
When a vacancy in the House of Keys was to be filled up, the Keys proceeded to the election and nomination of two persons to be presented to the Governor by their Speaker, as eligible thereto.(3) The Governor having made choice of one of those persons, directed the Clerk of the Rolls to administer to him the oath in the Appendix ; and thereupon he became a Key, and was entitled to hold that office for life ; unless he chose to resign, and the Governor accepted such resignation; or became disqualified, by expulsion by the House of Keys, or by the acceptance of the Lord Proprietor’s appointment to any office that entitled him to a seat in the Governor’s Council, or of the office of Deemster.
What would have been the proceeding, if the Governor had refused both the persons presented to him for his election to supply a vacancy in the House of Keys, does not appear; nor did we learn, that there was any fixed time for declaring or filling up the vacancies in that House ; but it is said, this was generally done at the next meeting of that assembly.
In case the Keys did not all concur in the nomination of two persons eligible to be a member of their House, their Speaker, at the time fixed for filling up the vacancy therein, collected from each of the members then present, the name of the person he wished to appoint ; and having so done, declared the names of the two persons in whose favour the majority of the Keys then present had thus decided, and presented the same to the Governor, for his selection of one of them.
It seems agreed, that no person was capable of being elected a Key until he was twenty-one years of age ; but what other qualifications were necessary to entitle him to enjoy that office, appear by no means settled, nor could we find that this question had been ever decided.
That some real property was necessary, was admitted, and may be collected from the declaration of the law in the year 1422, where the first Keys are said to have been freeholders.
In the year 1719 it was settled, that an estate of inheritance in one of the several well-known portions of ancient inclosed land in the Island, which are there called quarter lands ; or of intacks, or modern inclosures, of the annual value of three pounds, in the judgment of the Deemsters and Twenty-four Keys, naturalized any person, and entitled him to all the privileges of a native.
Upon this ground, some are of opinion, that a Key must at least have such real property as is sufficient to naturalize an alien ; but as this question has never yet received any solemn determination, the foregoing opinion, however plausible, is not by any means conclusive, and is not universally acquiesced in.(4)
Non-residence in the Island is clearly held to be no disqualification.
The House of Keys thus elected, when called on by the Lord Proprietor or his Governor, met in their Legislative capacity, to debate upon, and approve or reject, any law proposed to them.
The meetings of the Keys in this capacity were as frequent as the Governor thought proper to appoint ; and when the business of the session was concluded, their Speaker waited upon, and made a written return of their proceedings to the Governor ; and if he had no further occasion for their attendance, their Speaker adjourned the House.
During the session, the power of the House of Keys to adjourn at pleasure, to appoint committees to transact any business and report to the House, appears acknowledged ; but their ability to continue their session during their pleasure, and the Governor’s authority to prorogue them before they chose to separate, is not clearly agreed upon.(5) Instances, in the Years 1750 and 1754, have been referred to, of the Governor's having compelled the keys, when assembled, to continue their Session until they had concluded the business they met upon ; and that upon a Remonstrance of the House to the Lord Proprietor on one of theose occaisions, Governor’s power and proceedings in this respect received the sanction and approbation of the Lord Proprietor.
The Privileges that appear to have been claimed by the Keys were, to elect their Speaker, who was to be approved of by the the Governor, and generally held the office for life, without any emoluments annexed to it ; a right to kill game ; and an Exemption from all services whatever which would otherwise heve been due from them to the Lord Proprietor.(6)
Having thus briefly described the constituent parts of the Legislative authority in the Island, we shall in like manner notice the mode in which the laws were passed and enacted, prior to the revestment.
When the Governor and Council and Keys were assembled the purpose of legislation, any intended bill or law might originate in either of these assemblies ; and the Keys do not appear to have had any exclusive privilege with respect to Money bills.
The draft of the bill being prepared, if it originated in the Council, was in that assembly first considered and discussed. After it had been there settled and approved of, the Governor convened the Keys to receive the bill, and it was then debated upon in their House; and they had a power to reject, or return it to the Governor and Council without amendments, or with such as they thought proper. If it was returned with amendments, the two last-mentioned branches of the Legislature met, and settled the alterations proposed.
When the bill had passed through these stages, and was so far settled, it was engrossed. The Keys were again summoned to attend the Governor and Council in the Council Chamber, and there the bill was read over in their presence, and signed by as many of the members of the two Houses present as had attended the progress, or approved of the intended law.
When any bill originated in the House of Keys, and was approved of by thirteen of the members of that House, it was from them sent to the Governor and Council for their discussion, and they had a power to reject or approve of it, either with or without amendments; and when approved of, it was engrossed, read over, and signed in the Council Chamber, in the same manner as if it had been first brought in by the Governor and Council.
After the bill had proceeded thus far, it was transmitted to the Lord Proprietor for his assent; and he had a power of rejecting, as well as of giving a general or qualified assent thereto.
When it was returned with the approbation of the Lord Proprietor, the Governor ordered a Court to be held on the Tynwald Hill, and there the Act was read over fully in the English and Manks languages, in the presence of, and signed by the Governor, and as many of the Council and Keys then present as chose to attest that promulgation of the law. It then became an Act of the Legislature of the Island, and binding upon its inhabitants.
It appears clearly settled, that thirteen Keys are necessary to constitute an House, and concur to render any Act in their legislative capacity valid; but what number of the Governor's Council must in like manner agree in opinion to give effect to any of their Legislative Acts, is not, as far as we could learn, settled or agreed upon.
Before the revestment, the debates of the House of Keys upon bills brought before them are said to have been carried on publicly in their House, and that the people were in general acquainted with the purport of the laws in agitation there; and instances were mentioned, though not produced, of petitions having been presented to the House of Keys against Bills then pending, and of days being appointed for hearing the parties in person thereon.
The Acts of the Legislature of the Island thus constituted, were binding in all cases whatsoever. The Statute Book presents laws and enactments respecting every object of Legis lation, public and private; and this Constitution of the Legislature of the Isle having been sanctioned by the almost uninterrupted practice of an hundred and fifty years prior to the revestment, may justly be considered as finally and completely established at that period.(7)
Having thus described the legislative authority in the Island previous to the revestment, we shall proceed to an account of the executive and judicial parts of its Government prior to the year 1765 (exclusive of that of the lord proprietor before noticed), consisting of a council in the nature of a privy or executive council, and frequently styled the Lord's Council; the superior and inferior courts of judicature, and magistrates and ministerial officers in the Island.
The last Council is mentioned in several of the earliest of the Manks statutes,.and prior to the revestment, when summoned by the Governor in cases of emergency, was to act for the public good in a summary way, without waiting for the concurrence of the House of Keys or lord proprietor.
Doubts have likewise arisen respecting the persons that were to be considered as members of this Council.
Had their proceedings been conducted with that regularity which might have been expected, at least in the latter part of the proprietary state of the Island, their minutes or journals would probably have shown who were the members thereof at the time of the revestment.
Upon inquiry, we found no such minutes or journals had ever been kept.
Thinking that some light might be derived from the form of the oaths administered to the several officers, either admitted or alledged to have composed this last-mentioned council, we have annexed them in the Appendix ;
and thereby it appears that the Bishop and Archdeacon " were to maintain and defend " the ancient laws, statutes, and customs of the Isle, and with their best advice and counsel to be aiding and assisting to the Captain of the Isle or Governor for the time being, for furtherance of the government and benefit of the " Isle;"
and that the official and vicars-general "were to " maintain and defend the ancient laws, statutes, and customs of the Isle, and with their best advice and counsel to " be aiding and assisting to the Captain and Governor or Deputy-Governor of the Isle for the time being, for the " furtherance of the government and benefit of the Isle, as " oft as they should be called upon or required so to do."
That the Attorney-General, Comptroller, Clerk of the Rolls, and Receiver-General " were with their best advice and " counsel to aid and assist the Lieutenant, Captain, and the " rest of the Council, so oft as was needful, or so often as " they should be called upon by them, or any of them, for " the furtherance of the government;" and that the oaths administered to the deemsters and water bailiff have not any relation to advice or assistance to the Governor and Council.
The several courts of judicature in the island are the next objects of our consideration; but as many of them are materially connected with the local divisions of the Island, it will here be proper shortly to observe, that the principal division of the country is into two districts, the Northern and Southern, six Sheadings, and seventeen Parishes ; and that each of the sheadings comprise three parishes, except one called Glanfaba, which contains only two (8)
There are four inferior Baronies in the Island; namely, the Bishop's Barony, that of the Abbey of Rushen, that of Bangor and Sabal, and that of St. Trinian's (9)
From a very remote period the Island has had the several courts of judicature hereinafter described; but many of them were not so properly distinct courts (although so termed), as the same court or persons acting in different situations, and upon different subjects.
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 doleance, in cases where adequate relief cannot be otherwise obtained.
The courts of judicature in the Island are those of civil, of ecclesiastical, and of criminal jurisdiction, and in that order will be briefly mentioned.
Of the courts of civil jurisdiction, the first to be noticed is the Court of Chancery, where the Governor presided as Chancellor, assisted by the deemsters and such of his council as he thought proper to summon. (10)
This court had a mixed jurisdiction in matters of law and equity, and was more frequently resorted to in the latter, than the former capacity. It is said to have had its origin in the power of granting arrests of the person and effects, which in civil cases belonged to the Governor alone. (11)
Causes commenced in this way, were termed common actions, which brought the suitors into the Court of Chancery; the causes so brought were afterwards, as the parties chose, or the Governor ordered, either retained to be determined in the last-mentioned court, or transmitted to some other jurisdiction.
Suits were likewise instituted before the Governor, in his capacity of Chancellor, where, from different circumstances, full redress could not be obtained in the other courts of judicature. When recourse was had to this judicatory, as a court of equity, the complaint was generally by a sort of bill, very loosely drawn; but it was not till a very few years before the revestment, that the defendant was compelled to answer upon oath, and even then his answer was frequently taken without being put into writing. The witnesses were sometimes examined out of court by the attornies for the parties, in the presence of the Clerk of the Rolls, who reduced the depositions to writing, and returned them to the Chancellor. At other times the witnesses were examined in court, and their depositions were sometimes reduced into writing, and at other times they were not .(12)
If the Governor thought any particular case required the intervention of a jury, he directed one to be impanelled, to examine into the matters out of court, and then return their verdict to him (13)
This court sat regularly once every month, except January, May, September, and October, and occasionally at other times, and the records of its proceedings were kept by the Clerk of the Rolls (14)
Immediately after the Court of Chancery, was usually held the Court of Exchequer, in which likewise the Governor presided, with the assistance of such of the Council as he thought proper to summon.(15) .
This court took cognizance of all disputes, or offences relating to the Lord's revenue, rights, or prerogatives; and here were carried on the prosecutions for the recovery of penalties incurred by frauds upon the customs.
This court also exercised a criminal jurisdiction over misdemeanors, and all species of wrongs, which subjected the offender to the payment of a fine to the Lord.
Like the Court of Chancery, it usually proceeded without a jury; but when the Governor thought fit, he directed one to be summoned, and took their verdict;(16) the proceedings of the Court of Exchequer were registered in the Liber Scaccarii.
From the decision of the two preceding courts, an appeal lay to the Lord Proprietor,(17) without any limitation with respect to the amount of the matter in dispute, on the appellant's entering into a bond, in one hundred pounds penalty, for prosecution of the appeal within six months.
The Common Law Courts, the style of which was, " Before the Governor and all the chief officers and deemsters," were held by these officers at different places for different sheadings.(18)
The circuit to these places was made, and the Common Law Courts were held, in the months of May and October, and a distinct day was assigned for the business of each sheading.
These may be considered as Courts of common pleas, where all causes between subject and subject were regularly cognizable, unless carried by consent of the parties, or for some special reason, to courts more expeditious in their process, or higher in authority.
Here, therefore, were tried all kinds of actions, whether personal or real.
In these courts the trial was by jury, which consisted of six men of the sheading in which the lands lay, in case of real actions; and of four belonging to the parish where the defendant lived, in actions personal.(19)
When the plaintiff and defendant appeared in court, jury were sworn, and directed to examine the witnesses to be produced, which they were permitted to do at their leisure, out of court, and to deliver their verdict to the court at its next meeting, or sooner, to one of the deemsters, if convenient to themselves, or thereto particularly required.
The verdict, when delivered, was to be accompanied by an account, in writing, of the evidence; and being received (which it would not be unless unanimously agreed to by the ,jury), was recorded by the court, and if the parties acquiesced an order for carrying it into execution was given accordingly, which was final.
But either party, apprehending himself aggrieved by the verdict, might, on application to the Clerk of the Rolls within it limited time, and entering into a recognizance, traverse the verdict, and obtain a new trial of the cause by another jury, consisting of twelve in real, and of six in personal actions ; the mode of whose selection and proceedings was similar to that of the former jury, excepting that they were to determine according to the evidence previously taken. (20)
If the second verdict was not satisfactory, another traverse was allowed to the Keys, and they, or the second jury, might either affirm, reverse, or alter the verdict before them, and, if they found reason, condemn the prior jurors to be amerced.
The Courts of Common Law are also stated to have entertained cognizance of such assaults as were denominated bloodwipes, in which case the trial was by a jury of six from the parish where the party lived, and a fine of sixpence was the penalty, with costs.
When the business of the Common Law Court was finished, the Governor and officers who composed it, sat as a Manerial Court, commonly known by the name of the Sheading Court, which was held at the same times and places, and for the same districts, as the Common Law Courts.(21)
In the Manerial and Sheading Courts was kept the registry of the names and titles of the Lord's tenants; and upon every change of tenant, by death or alienation, the name of the new one was entered, and that of the former withdrawn, upon the presentment of a jury, termed the Setting Quest.
From their affinity with the last-mentioned courts, it may be proper here to notice (though they have only a limited local jurisdiction) the Manerial Courts held in and for the before-mentioned four several inferior Baronies or Manors.
These courts were conducted by the proprietors of these manors, or their stewards, with the assistance of one of the Deemsters, and the Comptroller and Clerk of the Rolls, who received a compensation for their attendance, and the Attorney and Receiver-General were occasionally present.
These courts seem to have exercised an authority in their several districts, equal to the whole of that possessed by the Common Law and Sheading Courts, performing the business of Courts Baron in the admission and inrolment of tenants, by means of peculiar Setting Quests of their own, and taking cognizance, likewise, in a manner similar to the mode of procedure in the Common Law Courts, and with the like traverse to a second jury and the Keys, of all actions of whatever kind, where the defendant belonged to the respective baronies.(22)
These inferior baronies had also their courts of Criminal Judicature, in which all felonies committed by persons resident in any of these baronies, who were not tenants to the Lord Proprietor, were cognizance, and tried by a jury of twelve men, selected from the tenants of the barony, in the same manner that other felonies were in the Court of General Gaol Delivery, hereinafter described.
In addition to the before-mentioned several courts of judicature, the Island had, previous to the year 1765, two courts of general jurisdiction, in a great measure peculiar to that country; that is to say, the two Deemsters' Courts, one of which was generally held in the Northern, and the other in the Southern district of the Island.
These courts sat more frequently, and were more generally resorted to than any of thosewhich have been before described.(23) In each of these, one of the deemsters alone presided, and had power to decide all causes brought before him, in a summary way, without the intervention of a jury, according to the traditional and unwritten laws of the land, there termed Breast Laws.
The Deemsters' Courts had, in civil cases, a concurrent jurisdiction with the Common Law Courts, in all actions of whatever nature, wherein a trial by jury or before a higher authority was not desired by the parties, or commanded by the Governor. Criminal eases also, in which any specific fine or penalty was directed by any statute, the Deemsters might, in the same summary way, take cognizance of, and order the fine to be levied, or inflict such other punishment as the law appointed.(24)
In matters too both civil and criminal, where a jury was required, but where immediate or speedy redress was necessary, the Deemster had the power of impanelling juries and receiving their verdicts,(25) and if thereby the damage or penalty was precisely ascertained, might order the payment of the one, or inflict the other; and in case of non-compliance with such orders, the disobedient party was left to be amerced by the Governor in Council, or tried in the courts of General Gaol Delivery.
The Deemsters also took inquests of felonies, by a jury of six, as hereafter stated; but the juries summoned by their authority in other cases, consisted of four men of the parish in which the cause of action arose.
The jurisdiction of both Deemsters was perfectly similar, and extended throughout the Island, although they usually exercised their authority each within the Northern or Southern division of the Isle in which he resided; but they occasionally acted within each other's districts.
The Deemsters' Courts were held one day in every week, or oftener if business required; and, in civil cases, an appeal lay from their decisions to the Governor and Council, if pre sented within a limited time, and accepted by the Deemster from whose judgment it was preferred, upon the appellant's entering into a bond in Three Pounds penalty, to prosecute the appeal in three months; and this appeal might be further carried on from the Governor and Council to the Lord Proprietor.(26)
For all causes of action or misdemeanors happening below full sea-mark, the proper judicatory was the Court of the Water-Bailiff, who was stiled also Admiral; and the limits of his jurisdiction are said to have been, the high-water mark on the one hand, and the distance of three leagues from the shore on the other .(27)
Whatever disputes or offences less than capital occurred within these bounds, the Water-Bailiff was to take cognizance of, and for that purpose held courts, impanelled juries, consisting of six men, and having received their verdicts, decided according to the law of the land.
This officer had also jurisdiction in all causes respecting maritime affairs, which were to be tried before him by a sort of special jury of merchants or seafaring men; an appeal lay from his judgment to the Governor and Council, and from thence to the Lord Proprietor.(28)
The spiritual courts in the Island are stated by the Attorney-General to have been the Consistory Courts, which were held alternately by the Bishop or his Vicars-General for one half the year, and by the Archdeacon or his official for the other half; (29) and to have acquired and retained more extensive powers than the English ecclesiastical tribunals: in particular, that it not only belonged to them to determine the validity of wills, and to grant administrations, but that they sustained all causes respecting them, or concerning the legacies or the debts of the deceased, within one year and a day from the probate of the will, or granting of administration. ; (30) and likewise all suits against executors and administrators, as such, at any time within two years from the cause of action.
That for divers offences, besides inflicting Church censures, they detained the party in the ecclesiastical prison, which was a subterraneous vault in the Castle of Peele, in order after an examination of a jury of six (whom they were authorized to impanel), to be delivered, if judged necessary, for further trial and punishment, to the temporal power; and that they not only committed to their dungeon for the purpose of such detention, but confinement there was sometimes ordered by their definitive sentence, in affairs merely spiritual;(31) and that the appeal from those courts was to the Archbishop of York.(32)
The superior court of criminal judicature in the Isle of Man, was termed the Court of General Gaol Delivery; and in this the Governor, Council, and Deemsters, with the addi-tion or the Keys, presided; and here were tried all capital offences.(33)
The prosecutions in this court were commenced and carried upon presentments or indictments, and for frauds upon the customs, by a verbal information from the seizing officer. Whenever any indictment was exhibited, it was necessary it should be approved or found by a jury of six persons, in a manner similar to that in which bills of indictment in England are found by the Grand Jury; but this form was rarely pursued, almost all prosecutions being commenced by present-meets on the verdicts of a jury, in writing.
For making these presentments there was a variety of inquests, some of them under the direction of the Deemsters, or supreme courts; others impanelled and attended by the Coroners alone; and juries, on suspicion of felony, were sum-moned by the Coroners in their respective sheadings, either upon what was called a hand suit, a species of bond or recognizance from a prosecutor, or by precept from one of the Deemsters or the Governor.(34)
These juries proceeded under the direction of the Deemster, to whom their verdict was returned; and when a charge against any person was rejected by such jury, he stood thereby acquitted.
When the felon jury found that the fact was a misde-meanor and not a capital offence, which was always the case in theft, where the thing taken away was not above the value of sixpence-halfpenny; they presented him as guilty of such misdemeanor, and subject to suffer such punishment, by fine or imprisonment, as the Governor in Council should adjudge.
In public prosecutions as well as private causes, the judgment given was to be executed by the Coroner, with the assistance, if necessary, of such military force as the Governor should think proper to order.
No culprit could be tried in the Court of General Gaol Delivery but by jury; and as it was necessary upon a prosecution by indictment, that his accusation should be previously confirmed by a jury of six, so he was to be afterwards acquitted or convicted, upon the issue of guilty or not guilty, by a jury of twelve, who must all concur in the verdict delivered.
To supply the latter jury, sixty-eight men were impanelled, by a return of the coroners of four men from each of the seventeen parishes in the Island; and out of this number the prisoner might select such twelve men as he thought proper, having the power of rejecting all the panel except that number.(35)
When this court was assembled, and the jury fixed and sworn, the Attorney-General, on behalf of the Lord Proprietor, was to conduct the prosecution; and after the trial was finished, the prisoner's defence heard, and the jury had agreed upon their verdict, the Deemsters, or one of them, demanded of the foreman of the jury, in the Manks language, whether such of the Council as were ecclesiastics could remain in court ? Upon the foreman's answer, that they could not, the ecclesiastics withdrew, and the verdict was then delivered.
Upon conviction, sentence was pronounced by one of the Deemsters ; and if the Lord Proprietor was not present, a report of the trial was transmitted to him; and until his pleasure was known, the Governor respited execution.
This court was held in the Gateway of Castle Rushen, twice in the year, in the months of May and October; and the proceedings in this court, since the year 1680, have been enrolled in the Liber placitorum.
Prior to the year 1765, petty larcenies were tried before a jury of six persons, called a jury of inquiry, who took the evidence out of court, and returned it with their verdicts to one of the Deemsters, who procured the same to be enrolled by the Clerk of the Rolls; and at the next audit court, where the Governor, his Council, and the Deemsters presided, the punishment suited to the offence was fixed.
Having thus concluded our account of the several Courts of Judicature in the Island at the time of the revestment, it may not be improper here to subjoin a further description of some of the several juries in the Island, whose names have before occurred, and whose offices and duties appear in some measure peculiar to this country; that is to say, the Great Inquest and Setting Quest, and Juries of Trespass and Inquiry.
The Great Inquest was a jury of twelve men in each of the six sheadings, returned by the Coroner; and these juries were upon duty for six months, after being sworn in at the several meetings of the Common Law Courts in the months of May and October.(36)
These Inquests attended at the courts for the sheadings to which they belonged, where one of the Deemsters administered. the oath to them, and delivered their charge, which in general was, to make the presentments particularly enumerated in the Manks statute-book, in an account there stated of old customs given for law in the year 1577, by the two Deemsters, and then for the first time reduced into writing by the command of the Lord Proprietor of the Island.
The verdicts and presentments of these juries were returned to the Deemsters as often as required, or to the Court of General Gaol Delivery assembled, at the expiration of the half-year for which they had served.
The Setting Quests consisted of four of the Lord Proprietor's tenants; and one of these juries was appointed for, and chosen out of the tenants of each parish in the Island. The principal part of their office originally was, when any lands fell to the Lord, to discover a proper person to whom they might be set, and compel him to become the tenant thereof.
They also made partition of joint estates, apportioned rents, and served as a sort of homage jury in the sheading or manerial courts, where the same business was transacted as in the courts of copyholders in England, and in a manner somewhat similar.
The time that this jury was to serve was unlimited, as the jurors continued in employ until they were relieved. (37)
Trespass Juries and Juries of Inquiry consisted of four men, occasionally summoned by one of the Deemsters out of the parish where the trespass had been committed, or any loss sustained; and it was their province in the one case to view and estimate the damages done, and in the other, to endeavour to discover what was lost, and the person who had taken away or concealed the same; for which purpose the whole neighbourhood was summoned before them, and every individual was either to acquit himself by his oath, or to be held convicted by his refusal.(38)
The verdicts and presentments thus taken, were to be transmitted by the Deemsters to the Clerk of the Rolls; and the like traverses from these verdicts were in many instances allowed to a jury of six, and thence to the Keys, as in personal actions instituted in the Courts of Common Law,
To prevent the Commons being overstocked, there was a jury called a Fodder Jury, for every parish, consisting of four men, who were annually impanelled by the Coroners out of each parish, upon the 25th of March, and were to serve for ensuing year.(39)
There occur likewise in the Manks statute books, provisions for some other juries, for placing servants to work, and the protection of the Lord's game.(40)
But although the inhabitants of the Island thus seem to have been well aware of the advantages that might result from the institution of juries, and their trials were, in many eases, by that mode; yet so little regard was paid to the due execution of their office, that the trial by jury was rendered almost useless ; for, instead of being obliged to attend to the evidence in court, or before some of the superior officers in the Island, and give in their verdict immediately after the evidence had been heard, the juries not only took the evidence out of court, but adjourned as often, and to such places, as suited their several engagements.
Their meetings were frequently under hedges, but gene-rally in alehouses, where they heard the witnesses' proofs, and altercations of the parties, and when they thought proper, delivered in their verdicts and the depositions, in the manner already stated.(41)
At these meetings, the juries were supposed to be attended by the Coroner, and were, in fact, followed by the plaintiff and defendant, who were there to contest with each other which should entertain them the most liberally, till this prac-tice was restrained by a positive Act.
The forms of proceeding in the before-mentioned courts, Civil and Ecclesiastical, were not, before the revestment, more orderly or exact than the constitution of the courts. Those of the Court of Chancery have been, in some measure, noticed.
In the other courts, civil suits were generally commenced by complaint to the magistrate presiding there; sometimes verbally, and sometimes in writing, without any settled form.
The process for appearance was only a summons from such magistrate, formerly by a slate or stone inscribed with the ~ initials of his name, but afterwards in writing; and in case of disobedience, an order or attachment was obtained from the Governor, directing one or more soldiers (who were also constables) to assist in bringing the defendant before the court.(42)
Decrees and judgments at one time were given orally; at another, put into writing.
The execution of them was committed to the Moar by the Court of Common Law, to the Coroners by the other Superior Courts, to the Serjeants by the Inferior Manor Courts, and to the Sumner by the Courts Ecclesiastical.(43)
In criminal cases offenders were arrested by the Coroners, and delivered over to the Gaolers, either by their own authority, or by warrant from the Governor, one of the Deemsters, or some other chief officer; many of whom, it is said, might, as well as the Governor and Deemsters, commit upon suspicion, in such cases at least as amounted to a breach of the peace.(44)
The course of appeal in civil suits, to the Lord Proprietor, has already been stated to be through the Keys in all cases tried by jury, and from the Governor and other officers in all other suits, whether instituted before the Governor in the first instance, or brought before him by way of appeal; but it is further to be observed, that in all cases the appeal might, prior to the revestment, be carried from the Lord Proprietor before the King in Council, which tribunal, though rarely applied to, was ever the dernier resort. (45)
Previous to the year 1765, the Lord Proprietor had in his gift and appointment, in addition to the bishopric and other ecclesiastical benefices, the following superior lay officers, viz., the Governor, Deemsters, Attorney-General, Receiver-General, Comptroller, Clerk of the Rolls, Water-Bailiff, and Collector; whose several duties, exclusively of what belonged to them in their legislative or judicial capacities, are hereafter shortly described.
The Governor was the representative of the Lord Proprietor, and in that capacity, in his absence from the Island, exercised most of his prerogatives; and besides the severa powers that are before stated to have been vested in him, of convoking and forming part of the legislative as well as executive council, and presiding in all the principal courts of judicature, which could be held only by his warrant, he had the command of all the military force of the Island.(46)
Whenever a vacancy happened in any of the superior offices, the Governor nominated a person to fill the place until a successor was appointed by the Lord Proprietor ; and all inferior offices were entirely in his disposal, and he occasionally appointed a Deputy Governor, who in his absence was invested with all his powers and privileges.(47)
The Receiver-General, or Treasurer, through the means of the Water-Bailiff or Collector, and other ministerial officers called Coroners and Moars, received, and in the presence of the Governor and Comptroller, deposited in the treasury chest all the Lord's revenues arising in the Island, and thereout paid the salaries and other necessary disbursements of the Lord Proprietor, subject to the check of the Comptroller and the Audit Court hereinafter mentioned.(48)
The Comptroller assisted in stating the accounts of the Lord's revenues, and was the principal agent in settling them at the general audit, and in a judicial character took cognizance of all offences committed within the garrison; and as Clerk of the Rolls, which office was, prior to the revestment, generally united with that of the Comptroller, kept the records, and entered the minutes of the pleas and proceedings in the Civil and Criminal Courts in the Island, and issued copies thereof, which were to be received as evidence; and was annually to make extracts of the fines appearing due from the records of the preceding year, and deliver them to the Coroners, to be levied and paid according to the Governor's order.
To these three officers was intrusted the superintendence and management of all the Lord Proprietor's revenues arising from the Island, and they held a general audit annually for adjusting these accounts, which, together with whatever remittances were to be made, were forwarded to the Lord by the Governor.
The Water-Bailiff and Collector had the charge of collecting in the first instance whatever accrued to the Lord by port duties, or by any means whatever below the full sea mark.
The duty of the Attorney-General was to conduct all suits and prosecutions on behalf of the Lord Proprietor, to guard against any infringements of his rights and prerogatives, and to undertake the causes of orphans and widows.
All the before-mentioned officers subordinate to Governor were ex officio conservators of the peace, and anciently a table was kept for them in the Castles of Rushen and Peel, and they were called officers of the household.
Prior to the year 1765, there were always two deemsters in the Island, who usually resided one in the Northern and the other in the Southern district thereof. The duties of their office being in general merely judicial, may be collected from what has before been stated: they seem originally to ha e have been looked upon, together with the twenty-four Keys, as the repositories of the customs and traditions which constituted the common or unwritten law of the Island, and when required by the Governor either alone or in conjunction wit the Keys, they were to resolve such points as were proposed to them respecting these traditions, and their answer was registered as authoritative.(49)
In all their duties they might act either jointly or severally; they had their salaries, and were entitled to small fees. Subordinate to these officers, commissioned immediately by the Lord Proprietor, there were the following inferior officers in the Island, who derived their authority from the Governor; that is to say, coroners, lockmen, and moars. In every sheading there was a coroner, who served summons and other processes, returned juries, and levied fines and executions, as directed by any of the courts or magistrates. He was also to collect certain of the lower dues arising on casualties within his Bailiwick, and for these and other purposes was to take inquests, and attend most) of the juries and inquests impanelled by direction of the Deemsters or the superior courts, and might likewise convene and swear others, some permanent, some occasional. He also took inquests as in this country, to inquire concerning the causes of sudden or violent deaths.
In each parish there was a Lockman, who was deputy or assistant to the Coroner.(50)
The Moars,(51) one of whom in each parish collected the Lord's rents and fines, acted also as servants to some of the courts, each having his deputy, called a runner. If any of these ministerial officers needed the assistance of force in the execution of their duty, an order was obtained from the Governor for them to be aided by some of the soldiers or trained bands of the Island, a certain number of which were always kept in garrison at the castles and forts of the Lord Proprietor, under the command 'of a captain and subaltern officers.
Prior to the revestment, it does not appear that much attention was ever paid to the police in this country, but nuisances, and other offences against public order, seem to have been presentable by the Great and other Inquests; and the superintendence of the four principal towns, of Douglas, Castletown, Peel, and Ramsey, was committed to officers stiled captains of the towns."
Before the year 1765, the military force of the Island consisted of the garrisons of the Lord Proprietor in his castles of Rushen and Peel, and the militia of the country, in which every male inhabitant, from sixteen to sixty years of age, was liable to serve, except the Keys and some other persons, exempted by their offices and stations.
The command of the militia was committed to a major-general, captains, and subaltern officers. The major-general was appointed by the Lord Proprietor, and had the general superintendence of the whole military force of the Island, which he might call out and review whenever he thought proper. The captain and subaltern officers were appointed by the Governor, and the militia of each parish and town was commanded by its own officers, and was liable to be called out and embodied as often as the captains thought proper, which was generally for some days in each year.
Neither the officers or men of the militia were entitled to any pay for their service, and were in a great measure armed at, their own expense.
Such is the general view we have been enabled to present of the constitution, courts of judicature, magistrates, and other officers of the Isle of Man, at the time of the revestment ; and the alterations that have since taken place therein will next be noticed. These are not many in number. All that the Revesting Act did, was to transfer the sovereignty from the Lord Proprietor to the King. It made no other change in the constitution than what that transfer necessarily occasioned. His Majesty became invested with all the authority, both legislative and executive, that the Lord had formerly enjoyed; and as the functions of the other branches of the legislature remain unaltered, laws continued to be made and promulgated, almost entirely in the same manner that they had been before. The only difference that we are aware of is a trifling one in the mode of giving the sanction of the Sovereign to Legislative Acts.
Formerly the Lord expressed his approbation in writing upon each bill, and transmitted back the bill so approved in order to be promulgated at a Court of Tynwald. Whereas his Majesty's assent to such laws as have passed since the revestment has been signified only by letter from the Secretary of State to the Governor of the Island. Upon that authority it is that the promulgation of the law takes place.
Although it be agreed that the Revesting Act made no material alteration in the substance or the forms of the constitution, in general, it is disputed whether it has not, by necessary consequence, though not by direct enactment, affected the formation and composition of that particular branch of the legislature which we have before described as consisting of the Governor and Council. We have already stated the doubts that exist with respect to the ancient constitution of this body. But it is contended by some, that, however it may have been formerly composed, it can now consist only of those who are appointed to the offices of Government by his Majesty.
They alledge, that the holders of particular employments had a right to sit in Council only because they were nominated to such employments by the then Sovereign of the Island. That on this principle none ought now to be cosidered as legal members of that body but those who derived their appointments directly from his Majesty; that the bishop and other spiritual officers, being nominated by the Duke of Atholl, must, therefore, be excluded, inasmuch as (whatever ground their pretensions may have formerly had) a right to a seat in the Council of the Sovereign cannot flow from an appointment made by a subject; that the Receiver-General, the Comptroller of the Customs, and the Water-Bailiff, must likewise be excluded, because they are created either by Sign Manual or Treasury Constitution, and not by Patent under any of the Royal Seals. In point of fact, from the time of the revestment down to a recent period, this Council has been attended only by the Deemster, the Attorney-General, and the Clerk of the Rolls.
The spiritual officers have lately claimed to be admitted, and their claim, though protested against by the Attorney-General, has been allowed by the Lieutenant-Governor.
They contend, that if they ever had the right, they must still continue to enjoy it, for that it has not been altered by any express words, and cannot be taken away by mere implication, especially an implication which is by no means necessary or direct.
We understand that the Lieutenant-Governor has sent over a statement of the whole matter, for the purpose of being laid before his Majesty for his determination.
With respect to the ancient right, we have already stated all the information we were able to procure; with respect to the operation of the Revesting Act, it is a mere legal question, which it does not belong to us to decide, and on which we shall not presume to offer an opinion ,(53)
As to the Receiver-General, the Comptroller, and the Water-Bailiff, we believe they never have, since the year 1765, claimed admission into the Council, nor have they ever been summoned. We must, however observe, that the two former are now merely officers of the customs, and that their functions, consequently, bear little resemblance to those of the Receiver and Comptroller of former times.
The courts of justice were very little affected by the operation of the Revesting Act. As the judicial authority of the Lord was abolished, the court of his Majesty in Council became the immediate as well as the last court of appeal from the jurisdictions within the Isle.
The Manerial Courts for the several sheadings were reserved to the Duke and Duchess of Atholl, by the term "Courts Baron." The books and enrollments belonging to them were, shortly after the revestment, separated from those of the other courts, and delivered to the steward or agent of their Graces; and since that time, these Manerial Courts have been held. by that officer and the respective setting quests for the several sheadings at the same times and places as formerly. In all other respects, the Revestment Act left the administration of justice on the same footing on which it had formerly stood. But some alterations have since been introduced. The office of one of the Deemsters was, about the year 1775, on the death of the person who enjoyed it, discontinued, and there is now but one Deemster for the whole Island.(49)
By Acts of Tynwald passed in 1777, some regulations were made respecting the courts of General Gaol Delivery Chancery, Exchequer, and Common Law. With respect to the last particularly, it is enacted, That it shall be held four times in the year, instead of twice; and that it shall be stationary at Castle Rushen, instead of being itinerant as formerly.
The Great Inquest is abolished. (54) It is provided, that juries should in all cases consist of six, and examine the issue referred to them, and deliver their verdict in open court; and further, that the appeal in all causes concerning the title of lands should be to the House of Keys; and in all others, to the Governor. (55) Provisions were made for preventing unjust imprisonment. And to supply the want of another Deemster, four new officers were created, termed High-Bailiffs, one in each of the four principal towns, and a jurisdiction given to them analogous to that of the Deemster within certain limits, and in all matters not exceeding forty shillings in value, subject to an appeal to the Deemster, which may afterwards be carried before the Governor.
By the before-mentioned Acts of Tynwald passed in 1777, some of the ancient laws of property were altered, and several new regulations of police were introduced. Since that period, no bill has received the Royal Assent. Here, therefore, we close our account of the ancient and modern constitution of the Island, and proceed to the last of the four general heads into which we have divided our report.
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