[From Home Office File HO 98/68 ]

Frankland to Sidmouth - A reply to criticism of his absence from the Island by the Duke of Atholl.

April 1813

The Attorney General of the Isle of Man has never considered his office to be a sinecure, nor has he ever found it to be such. He has always maintained an habitual correspondance both with Lt Governor Shaw and with Lt Governor Smelt and with other persons holding public situations in the Island, on matters connected with its general welfare, and has also from time to time communicated his opinions on matters of law, as applicable to causes depending in Chancery, as well as to various other points respecting to administration of the insular jurisprudence. As to many of these points he has given his opinion and advice with greater effect, than if he had remained locally situated within the Island. For when he was resident there he practised at the Bar. This he did at the particular desire of of Lt Governor Shaw and of various other persons of the greatest weight and respectability, who wished him not to follow the example of his predecessor Sir Wadsworth Busk, who declined all practice at the Bar. The representation therefore which Governor Smith appears to have made in 1781 to the Secretary of State, respecting the necessity of Sir Wadsworth Busk continuance in the island, by no means applies to the present Attorney General. Governor Smith represents that he could not even spare Sir Wadsworth Busk to proceed to England to be knighted,"as besides the arrears of business his absence must create, I confess" adds Governor Smith "that I can ill trust myself in Chancery without him."

As the present Attorney General practiced at the Bar, and was materially employed in every cause of importance, he of course could not with propriety give his advice as to the decrees or other adjudications of the Courts either of Law or Equity. The Deemsters are the persons who act as assessors and assistants in the Court of Chancery and in the Courts of Common Law. They are the persons, who by the Ancient Constitution of the Island are considered (as well as the House of Keys) as the Depositaries of the Law : and questions are frequently propounded to them (as well as to the House of Keys) for the purpose of enlightening the judgement of the Sovereign Lord, or of his Governor within the island, as to any matter of law, upon which their opinion might be considered to be of importance.

The person exercising the powers of Government seems therefore not to be ill provided with legal advice when he has the assisstance of the keys, of the Deemsters, of the senior Barrister as acting Attorney General within the island, and of the Attorney General himself on this side of the water, who is thus enabled to collect information and aid of every kind more effectually than if he was confined to the comparatively narrow means of assistance to be obtained within the limits of the Island itself.

The attention and correspondance of the Attorney General has not been restricted to his communications with the local Government; but he has from time to time been consulted by the Government at home as to various matters connected with the Isle of Man. He has also given his attention to various projects of laws which have been in contemplation. - Indeed he has always been of opinion, if any extensive alteration of the laws should be considered to be expedient (which he does not believe to be the case) that the drafts of such laws would be more advantageously settled and perfected in England than they would be in the Island itself.

The principles which might be applicable to a Distant dependency of the Crown cannot be considered as necessarily applicable to the Isle of Man, with which the intercourse is as regular and expeditious as it is with the more distant parts of Great Britain. Indeed since the Union with ireland, the isle of Man may be considered as situated in the very heart of the United Kingdom, although it forms no integral part of it, and the question seems less to respect the Duties which the Attorney General may have to discharge, as the spot in which it may be necessary for him to be locally situated for the purposes of discharging these duties.

The Attorney General has at various times received acknowledgements from the Island of the services he has rendered to it, and expressions of belief that those services have been more effacacious than if he had been locally situated within the island : and there has always appeared to be a greater anxiety to express this opinion to him, whenever any suspicions were entertained that attempts were being made to induce him to resign, and to add the expression also of an anxious wish that such attempts might fail in their object.

Nor does it appear that the opinion of His Majesty's Government at home has been different. The present Attorney General was appointed in 1796, on the recommendation of the Duke of Portland, who was then Secretary of State for the Home Department. He resided in the Island the greater part of the year 1797. In 1798 he was appointed secretary to the Duke of Portland. The appointment is denominated that of Private Secretary, but it is strictly of a public character and is borne upon the strength of the establishment of the office of Secretary of State. Upon the Duke of Portland quitting office in 1801, the Attorney General ceased to be his secretary, and in the same year came into Parliament. In 1803 he was appointed Lieut Colonel to the North York Militia : so that from 1797 to the present day he may be considered as either having had the direct command, or the direct or implied permission of the Sovereign Lord of the island himself, to give his attendance on this side of the water.

The operation and effect of the words of his Patent as to what might be considered as a legitimate authority for his continuing on this side of the water may be considered as having been settled in the year 1798 by the construction of the very same confidential adviser of the sovereign Lord, under whose directions the patent had been prepared : For the Duke of Portland with a perfect knowledge of the terms of the Patent appointed him his Secretary a short time after he had recommended him for Attorney General.

Legitimate cause of absence is also recognized by the Treasury Warrant, of the 5th July 1808, for the encrease of the salaries of the Civil Establishment of the Isle of Man. Two species of absence are especially designated in the Warrant. One with the direct leave of the person exercising the local powers of Government within the Island; the other an absence independent of the permission of the local authority; but deriving its sanction from some other course. In the first case the salary of the Attorney General is to be 300£, in the latter only 200£. The warrant of course does not specify the causes which should influence the Local authority to grant such leave of absence: But if these should seem to be any thing in the particular circumstances of the Island which should appear to render the services of the Attorney General more advantageous to the Island for his continuing on this side of the water, the local Governor would not only seem to be justified, but to be called upon, to grant a certificate of the absence being with his leave; independent of any other justifiable causes of absence which might happen to subsist.

The Attorney had been taught to immagine not long after the issuing of this Treasury Warrant that the principal object it had in view was the benefit of the acting Attorney General within the island and that it was wished that the 100£ encrease of salary should be paid to the acting Attorney General. This was accordingly done, and has continued to be done ever since.

An impression however appears to be entertained that, although the Treasury Warrant may recognize legitimate absence, there is an ancient Act of Tynwald passed in the year 1696 and now in force, which forbids all absence. But upon reference to the act it will appear that it relates only to wilful absence, and has no reference whatsoever to cases where the Sovereign Lord himself commands or permits such absence. The Act in enumerating the various officers specifies the Governor: But it cannot be imagined that it can be construed as applying to the present Governor, who must be considered as having received the positive commands of the Sovereign Lord to attend to other duties which have been imposed upon him, as well by the special appointment of the Sovereign himself, as by the distinguished rank which he holds in the Civil State of the Empire. The literal construction of the Act of Tynwald would have imposed on the present Governor a residence of not less than one hundred and twenty months during the twenty years he has held the office of Governor. But the Act of Tynwald cannot bear this construction. The Sovereign Lord must be considered as recognising the high and responsible Trust of a Lord Lieutentant of a County, and the trancendant duties imposed on a Peer of Parliament as paramount attentions, and abundantly sufficient to disprove any imputation of wilful absence under the construction of the Act of Tynwald.

Undoubtedly if the Sovereign Lord conceives that the duties, imposed on any of the individuals whom he may have selected for his Servants, (whether he may have imposed those duties on them himself, or they may have been imposed on them from other causes) do interfere with each other to a mischevious degree he may call upon his Servants to confine their attention to a particular class of these duties. Certainly the Attorney General does not consider himself as having at any time been called upon by the Sovereign Lord so to confine his attention; on the contrary he considers himself as having from the earliest period after his appointment been authorized by the full consent and approbation of the confidential advisers of the Crown to continue to discharge his insular duties although locally situated on this side the water; and he reflects with satisfaction that he has constantly received acknowledgement from the Island of the zeal and efficiency with which he has attended to their interests.

Notes

This well argued letter was a reply to a very long letter from the Duke of Atholl heavily critical of Frankland's continual absence from the Island, Atholl's letter was also heavily critical of Lt Gonvernor Smelt. Atholl was seeking either to see them both recalled, or persuaded to resign so he could install both a new Attorney General and Lt Governor who would act as his puppets. Sidmouth however was supportive of both and thwarted Atholl's plans.