[From Atholl Papers - AP X1-9 part 3]

REPORT of the Crown Officers in the Isle of Man.

27th April 1780.

To the Honourable Richard Dawson, Esquire, His Majesty's Lieutenant Governor of the Isle of Man.

IN Observance of the Order of the Right honourable the Lords Commissioners of His Majesty's Treasury, signified by their Secretary Mr. Robinson, to his Excellency Colonel Smith, transmitted by him to your Honour, and communicated to us in your Letter of the 8th Instant, we have taken into Consideration the Draft of a Bill to explain and amend an Act of the Fifth Year of His present Majesty, for carrying into Execution a Contract made between the Treasury and the Duke and Dutchess of Atholl, and also the Attorney and Solicitor General's Report to their Lordships thereon.

As far as the Bill before us is meant to clear the said Act, (commonly called the Vesting Act) of Ambiguity, and to ascertain the Manerial Rights thereby reserved to the Duke and Dutchess of Atholl, so far its Object is unquestionably just and reasonable. But it professes not to stop here, and we humbly conceive it goes in Fact a great deal further: It creates new Rights ; it arms Manerial Officers with unprecedented Powers ; and in many Respects tends to introduce into this Island a new Mode of Civil Government.

After reciting "that the Sovereignty, Ports, and Commerce of the Isle, were no otherwise required to be re-vested in the Crown, than as they interfered with the Royal Revenue, in that and the rest of the King's Dominions, &c."'in the first Enacting Clause it sets off with securing to the Duke of Atholl, his Heirs and Assigns, "all Manner of Wrecks: of the Sea whatsoever, within the Seas adjacent to the Isle of Man, without Regard to the different Denominations of Flotsam, Jetsam, and Ligan, or any other Name whatsoever ; and also all Derelict Lands, and the Tang or Sea Weed thereof, and also all Treasure Trove, and all Manner of Boon Services, of what Nature or Kind soever, without any Diminution or Restriction for or on Account of Military Service due to His Majesty, His Heirs or Successors, his or their Officers in the said Island."

Before we proceed to observe upon this or other Clauses in the Bill, we beg Leave to refer your Honour to the Act hereinbefore mentioned, by which it appears to us that the Sovereignty of the Island is, in the most explicit Terms, restored to the Crown, and consequently, that all Rights whatsoever, incident to the Sovereignty (if by that Act expressly reserved to the late Duke and Dutchess of Atholl) are restored with it.

If this be the true Construction of that Act, then the Principle affamed in the preceding Recital, and which seems to be made the Ground Work of the Bill, will, we apprehend, be found inadmissible.

It is so well known that what is called Flotsam, Jetsam, and Ligan, does not pass under the general Denomination of Wreck, that the Omission of these Words in the Clause of Reservation, in the Vesting Act, cannot be presumed to have been owing to an Oversight in the late Duke or his Agents; on the contrary, it must be supposed that the Insertion of them was, for good Reasons, objected to on the Part of the Crown; and having been under Consideration at the Time of passing the Law, were deliberately rejected, probably with a View of encouraging the Revenue Officers to seize such Contraband Goods as might come, or be supposed to come under that Description. Treasure Trove may have been left unreserved for a similar Reason. The Right to Derelict Lands also has not been reserved ; and we apprehend that is incident to the Sovereignty: The Lands that come under that Description here are of Consequence to the Revenue, especially as they may hereafter furnish convenient Landing Places, and some of them, being adjacent to the Harbours, may afford Ground for enlarging the Quays, or erecting of Warehouses,

In respect of the Tang or Sea Weed, which is thrown up and left by the Sea in great Abundance around the Coast, we have only this to observe, that the Farmers here, who are most of them poor, and not able to purchase Lime, have ever since the Sale of the Island be permitted, without Interruption, to gather it for the manuring of their Lands ; whereby the Country is become much improved, and by this Indulgence the People are led to consider the taking of it. whenever and wherever they pleases as a Thing which they ought neither to be deprived of, nor made to pay for.

Insignificant as this Privilege may at first Sight appear, it is in reality of considerable Advantage to the Inhabitants, and if suffered to be at the Disposal of the Lord's Steward, it is prehended would be an Inconvenience much more generally and sensibly felt, than it is possible for those who are unacquainted with the State of Husbandry in this Country, and the Circumstances of the People employed in it, to be fully apprized of.

Boon Services, as appears by the ancient Statutes of the Isle, were Services originally rendered to the Lord Proprietor, by Farmers, Tenants, and Inhabitants, for the Support of his Garrisons, for the building and repairing of his Forts and Houses, from which none were free but the Lord's Servants, Civil and Military Officers, and the Keys. Afterwards, when the Forts and Castles became neglected, these Services were applied to such public Uses as the Lord, with his Council, thought proper to direct. It having been made a question, soon after the Island became the King's, to whom those Services belonged, several of the Inhabitants withheld them, and they have been performed by none without Reluctance. In this View of their Origin there cannot remain a Doubt of their having, belonged to the Lord in his Capacity of Sovereign, or of their being now due, in that Capacity, to His Majesty.

After reciting "that the several and Respective Fisheries, held and enjoyed by the late Duke and Dutchess of Atholl, and their Ancestors, consisted of the Salmon Fisheries in the Bay, and the tributary Herrings, anciently called Castle Maze, and commuted in latter Times for what is called the Herring Custom, or Ten Shillings for and upon every Boat, and that the same are reserved to the Duke and Dutchess of Atholl in and by Act of Parliament, under the Denomination of 'Piscaries and Fisheries', and were the only Fisheries in the Isle held and enjoyed by them", in the Second Enacting Clause, the Bill proceeds to grant the said Bay Fisheries and Castle Maze to the present Duke.

As far as we have been able to trace this Custom, called Castle Maze, or Tributary Herrings, it appears to have arisen from a Demand of the Lord, to supply his kitchen with Herrings, for the Use of his Garrison and of his Household, which was formerly numerous and to the Support whereof all the Inhabitants were bound, and to which every one was compellable to contribute in the Way best suited to his Employment and Occupation. By an ancient Order of Council, we find that a certain Portion of the Herrings, called Castle Maze, taken between particular Head Lands, therein described, were to be delivered for the Use of Castle Rushin and a certain Portion taken between other Head Lands, therein likewise described, were to be delivered the Use of the Castle of Peele.

We the less doubt of this Custom having arisen in the Way we have mentioned, from having perused the Copy of an Inquisition, bearing Date June 1608, the Original of which we apprehend is now of Record at the Rolls, or in the Tower, wherein, among other Things, the following Return is made by the Keys and others: namely,"We find by the Oaths of ancient Men, that this Island in former Times lay open to the Invasion of bordering and foreign Enemies, insomuch that many Times it was spoiled and overcome by them ; whereupon the Lord of the Isle, finding the Power of the Inhabitants small, and in Practice of War unskilful, did send forth of England certain Soldiers, both for the Defence of the Two Castles, and safe keeping of the said People and Isle, allowing them Fees and Wages out of his Annual Rents. For Provision of Vicuals and Fire for these Soldiers, the Lord and his Tenants came to Composition ; viz- The Tenants to bring into the Castles both Victuals and Fire, and to have Allowance for the same from the Lord, according to their Worths and Values in those same Services were, as appears by the said Inquisition, commuted for certain Sums of Money therein particularly specified.

Not to observe that an exclusive Right of fishing in the Sea, claimed by an Individual, seems to be a Privilege of an extraordinary Nature, there does not appear to us.the least Ground for supposing that a Claim to the Salmon and Herring Fitheries was ever thought of when the Words "Piscaries and Fisheries" were inserted in the Clause of Reservation ; and we are the more firmly persuaded of this because there are not only many Fresh Water Fisheries in the Island, held by the Lord, and his Tenants, which these Words seem to have had in View, but soon after passing the Act containing this Reservation, the Money arising from the Herring Custom and Bay Fisheries was appropriated by Parliament to the Repair of the Harbours, and has been applied to that Use ever since. Moreover, its having been frequently levied, while the Island continued under a Proprietary Government, by the Water Bailiff, who is Judge of the Court of Ad miralty, seems Evidence of its belonging to the Lord, in his Right of Sovereignty ; and its Produce is too considerable not to have been in Contemplation at the Time of the Purchase.

Fol. 10th and 11th.

The keeping of Dogs, done, without Licence, uunaccompanied with any Evidence of their having been used for the killing of Game, is made an Offence punishable by Fine and Imprisonment; and for discovering Dogs, Guns, &c. the Duke's Agent, or his Agent's Deputy, is empowered to search the Dwelling Houses of any unlicensed Persons, those of the Governor, Chief Officers, and wealthiest of the Inhabitants, not excepted, amongst whom there are some who have Landed Estates in the Island, from an Hundred to a Thousand Pounds a Year, and others who have separate and distinct Baronies, with Courts of their own.

This exceeds every Thing, we believe, which, Respecting the Game, has yet been done in England, where it is well known whatever comes under that Denomination has long been thought an Object worthy of the Attention of Parliament.

It may not be improper to observe, that by Reason of the Tax laid upon Dogs there are few kept in the Island, and that this Tax, being applied in Aid of the Statute Labour to the Repair of the Roads, has been found of Public Utility; and that if continued to be, as it now is, strictly levied according to the. Direction of the Act of Tynwald, that is to say, at the Rate of Three Shillings a Year for a Hound, and Six for a Greyhound, or any other Dog used for the destroying of Game, we believe it will continue to operate as the most effectual of all Game Laws Hereby idle and necessitous People are disabled from keeping Dogs; and it is not Men of Property who, in any Country, destroy the Game.

Fol. 12th.

After reciting " That the Duke cannot, by the ordinary Jurisdiction of Courts Baron, enforce the Payment of his Rents ; as a Remedy for that Grievance, the Bill proceeds to invest his Agent, or Steward,in those Courts, with all and every the Powers, Jurisdictions and Authorities, heretofore exercised by the Governor, Lieutenant Governor, Deemsters, Receiver General, Comptroller, Clerk of the Rolls, and Attorney General".

It is really mortifying to have Occasion to comment on such a Clause.

However expedient it may be held to define by a Law the Authority of a Court Baron in this Island, surely it can never be thought in any Instance eithr becoming, the Dignity of the Crown, or consistent with the Principles of sound Policy, to in vest the Steward or Agent of a Lord of the Manor with all the Powers, Jurisdictions, and Authorities, now or heretofore Constutionally exercised by His Majesty's Governor and His principal Officers, thereby taking away their Right of Superintendency and Controul ; a Right which we humbly apprehend is incident to His Majesty's Courts here as well as in England.

The ancient Manner of holding Courts in this Place may possibly have suggested the Idea which led to the Insertion of this Clause.Though the great Irregularity with which Business has formerly been conducted in all the Courts of this Island, and the little Care that has been taken to preserve any authentic Memorials of their Proceedings, or the Laws and Customs of the Isle, make it extremely dificult accurately to distinguish or ascertain the Limits of their Respective Jurisdictions ;yet there is Light suficient to discover the Wildness of the Supposition on which this Part of the Bill is founded.

The Seneschal is a new Officer, the Name unknown here till after the Vesting Act took Place. Before that Period the Business now done by him was always transacted by the Comptroller or Clerk of the Rolls; the one or other of these Officers always kept the Manerial Records, and made the necessary Entries in the Lord's Books, They had the Charge and Custody also of the Books containing the Proceedings of the Courts of Common or Common Law Courts or Assizes have been immemorially held within the Isle, Half-yearly, for the several Sheadings with in the said Island, which are something similar to Counties in England as they are within the Jurisdiction of Coroners, who have nearly the Powers that Sheriffs, have in their Respective Counies. In these Common Law Courts, even when the Governor attended, the Deemsters always sat as Judges: To these Courts also the Comptroller or Clerk of the Rolls brought the Books containing Minutes of their Proceedings ; and as soon as the Common Law Business was over, wherein one or other of these Officers acted as Servants of the Court, they went upon Manerial Business, wherein they Acted more immediately as Servants of the Lord, but never were considered in either Light as having a judicial Authority; neither have the Deemsters ever acted in the Capacity of Stewards of a Manor Court, belonging to the Lord Proprietor, Bishop, or others, save when appointed thereto by Special Commission, and besides stated Salaries, paid an additional Compensation for their Attendance, in the double Capacity of Judge and Steward.

The Common Law Court, as well as the Court of Chancery, has still the same Jurisdiction it always had; they are neither of them in any Respect altered, save that the former, since the Appointment of the High Bailiff's Court, instead of being itinerant, is become stationary, and by Statute Law more frequently held.

We know of no Instance wherein the Duke's Agents have found any Difficulty in recovering his Grace's Rents and Fines, which together may amount to about £1,500 a Year; but if any such should occcur, the Remedy is at Hand, summary, adequate, and safe : The Courts before mentioned are competent to decide upon the Matter, and the Duke and his Agents, in like Manner as others, may have Access thereto, these are the Courts to which the Lord, in such and much more important Cases, has been accustomed to resort, and where we have Reason to believe Justice neither has been, nor is at all likely to be denied.

Fol, 13th and 14th.

The Bill grants to the Duke a Right of holding a Court Leet. It extends the Power of a Court Baron, where the ordinary Process is Summons, Attachment, &c. and authorizes it to issue a Levari Facias. It further declares it lawful for the Seneschal or Deputy Seneschal to fine or amerce the Moars or Bailiffs for Non performance of their Duty, or Non-attendance at the Manor Courts. That these Officers called Moars, who were formerly as often employed in serving the process of the Common Law Courts, as in collecting the Lord's Rents, and had certain Perquisites annexed to their Offices, should, now that the former Part of their Business is transferred to the Coroners, and their Perquisites diminished, be compellable to serve the Lord of the Manor , as Bailiffs, without a compenation for their Trouble, does not appear resonable to us, nor do we know of any Law that subjects them to this Burthen.

It is not easy to say for what beneficial Purpose it is proposed to introduce into this Island a Court Leet, or to extend the ordinary juridiction of a Court Baron, where, under the Regulation of the present Courts of Chancery and Common Law, every Man may be said to have Justice administered at his own Door, The doing of this, besides occasioning great Confusion from the clashing of Jurisdctions, would, we apprehend, eventually strip the High Bailiffs of most if not of all their Business, Officers who, since their Appointment in 1777, have discharged their Duty much to the Satisfaction of the. Public, and who hold their Courts in the Market Towns for the easier Accommodation of the People, in recovering Debts under Forty Shillings.

As we cannot find that any Lord Proprietor ever claimed a Right of holding a Court Leet in the Island, and as it has been the Policy in England of late Years, to divert the Business anciently transacted in this Court into a different Channel, we humbly submit it, whether the Institution of such a Court in this Isle would not be, at least an unnecessary, if not a dangerous Innovation.

Fol. 15th and 16th.

After having recited Fol. 5, "That by an Act of Tynwald, made and passed in the Isle of Man on the 29th October 1582, and enrolled in the Statute Book of the Laws of the said Island in the Year 1583, it was Enacted, That no Person or Persons within the said Isle thould give, grant, bargain, sell, set, or change any Part or Parcel of the Farm Lands, without the special Licence of the Lord or his Governor, and Two of the principal Officers of the said Isle; and that also by another Statute of Tynwald, passed in the Year 1645, it was Enacted, That no Person or Persons whatsoever should have Power to give, grant, or assign all or any of his or their Lands, &c. but in case, of Poverty, or for or upon some other just Cause, made known to, appoved by, and consented unto by the Lord of the said Island, or by his Lieutenant or Governor, and the Officers thereof ;" the Bill before us declares, that it shall and may be lawful for the Seneschal, or his Deputy, to grant his Licence for the Confirmation of all Deeds, Contracts, Agreements, or other Instruments or Writings, whereby any Lands, &c. are conveyed, charged, or affected.

Lands in this Island are not conveyed by Surrender and Grant as in the Case of Copyholds in England, but are transferred from One Tenant to another by Deeds of Bargain and Sale; these Deeds have sometimes been inrolled in the Court of Chancery and sometimes, as appears by Indorsements on the Back have been deposited with the Clerk of the Rolls for safe Custody. There has been no Regularity observed in the Business, and from the Practice therefore little can be inferred.

The Interest the Tenants have had in their Lands, save during the particular Period we are going to mention, has always been deemed a Customary Estate of Inheritance, descendible from Ancestor to Heir, according to the ancient Laws and Customs of the Isle, subject only to the Payment of certain Quit Rents before 1643, and since that Time to Fines certain, upon Alienation or Descent.

About the Year 1643 James then Earl of Derby, whose Fortune had been hurt by his zealous Attachment to the Royal Cause, having at that Time a considerable Military Force in the Island, prevailed upon his Officers, who were most of them his Tenants, to surrender their Estates to him, and their Example was soon after followed by the rest of the Landholders. The Earl then, after exacting heavy Fines, grated them out again, on Leases for Lives or Twenty-one Years.

In this Alteration of their Tenures the People never thorough ly acquiesced. Complaints and Remonstrances were frequently made from that Period to the Year 1703, when, upon Application to the then Lord, they obtained his Consent to pass, and did pass, what is called the Act of Settlement, which, so lately as the Year 1777, was confirmed in Tynwald. By this Act of Settlement, which secured to the Lord what were called Double Rents, certain Fines upon Alienation or Descent, and also certain Fines on Mortgages, the ancient Tenures were restored, and have never since, that we know: of, been impugned or called in question.

The Instrument, described as an Act of Tynwald, in a Recital (Fol. 5) and supposed to have passed 1582, by which the Tenants appear to have been disabled from alienating without Licence, we have Reason to believe never did pass into a Law; and though found in a Exchequer Book, it bears no other Mark of Authenticity, nor is it signed by any Member of the Legislature, neither is there any Reason from Practice, to believe that it was ever understood to have been a Law. The Act of Tynwald, in 1645, restraining Alienation without Licence of the Lord, was formed solely on the Principle of the Leasehold Tenures, and was virtually repealed, when by the Act of Settlement those Tenures were abolished.

Upon a diligent Examination of the Rolls, as well those in the Crown's, as those in the Lord's Custody, we have not been able to discover any Entry of a Licence to alienate ; but we find that, from the Year 1611 to the Year 1654, original Deeds of Sale have been recorded, and also some Copies of Deeds of Sale (authenticated by the Certificate of the Clerk of the Rolls) have been enrolled, at the Request of the Party Interested, for safe Custody.That from about the last-mentioned Period to the Year 1667, some original Deeds of Sale have been confirmed by the Governor, and recorded at the Request of the Parties; and that Copies of others, so confirmed, have been in like Manner enrolled, and some of them so lately as 1751, and most of them at the Request of the Parties, for Safety ; from whence we infer it to have been in their own Option whether they would keep them themselves, or commit the Custody of them to the Clerk of the Rolls. And as we have not found any Deeds of Mortgage, or Copies of them, recorded or enrolled prior to the Act of Settlement in the Year 1703, when they were by that Statute directed so to be, we presume that such Deeds were, before that Time, always kept by the Mortgagees themselves, and neither recorded nor enrolled.

The Power of granting Licences for the regulating of Fairs, and erecting of Mills, seems to us to be left too unlimited, and, if not circumscribed, likely to be productive of great Mischief.

It is certainly very necessary that the Duke of Atholl, and his Heirs, should have the Means of knowing from whom their Fines are demandable ; therefore, we submit it that all Deeds of Sale, Gifts, Grants, and Mortgages, affecting Titles of Land held under his Grace, ought to be made notorious, and that the Party interested should be obliged to enroll a true copy of the Original, within One Year from the Date of the Execution thereof, in the Office of the Steward or Seneschal, and, on Neglect be liable to the Forfeiture of a double Fine, but at Liberty either to retain the Original himself, or to enroll the same for Safety in the Office of the Clerk of the Rolls, at his own Election; and perhaps, if such Deeds were proclaimed at a Common Law Court before Enrolment, it might prevent much Litigation. As to the taking Proof of the due Execution of Deeds, it seems to us a Matter of too much Consequence to be entrusted to a Seneschal. In whose Custody soever the original Deeds are lodged, many strong Objections occur to the allowing Copies of them to be given in Evidence.

Every Regulation necessary for ascertaining the Duke's Manerial Rights might be, and we doubt not, with His Majesty's Approbation, would be made by an Act of Tynwald; for we are well assured, that there is not only a Disposition in the Members of that Assembly to secure to the Duke all his just Rights, but also a real Desire to promote, in every Respect, his Grace's Interest, as far as is compatible with the Duty they owe to His Majesty and the Public.

In one of the last enacting Clauses, the Bill goes on to forbid the Governor, or any of His Majesty's Judicial Officers, to interfere with the Duke, his Heirs and Assigns, in the Exercise of Manerial and other Rights ; thereby, as we have observed before, virtually disowning the ancient and well-established Superiority of the Courts of Chancery and Common Law, immemorially recognized in this Island; and then concludes with declaring, "That the Tynwald hall have no Authority to pass Laws, without Personal Notice thereof being first given to the Duke of Atholl," whose Agent, it must be presumed, always resides in the Island.

TO what particular Inconveniencies the Rights, Powers, Privileges, and Immunities annexed to this exclusive and independent Jurisdiction may lead, we presume not to say. But, upon the Whole, we are clearly of Opinion, that if the Bill before us be permitted to pass into a Law, it will in Experience be found equally prejudicial to the Rights of the Crown and the Liberties of the People.

All which is humbly submitted to their Lordships and your Honours Consideration.

WADSWORTH BUSK.

JOHN QUAYLE. THO. MOORE.

27th April, 1780.