[From Proc IoMNH&ASoc vol 3]

LAND TENURE.

HIS HONOUR DEEMSTER R. D. FARRANT. 15th January, 1931.

It is unfortunate that you should have found one of my weaknesses in promising to deliver papers and forgetting to prepare them. Tlius, I must do the best I can and you must endure it as best you may.

I do not, suppose that you want me to talk to you about the law in its present day aspect. You will hardly need to be told that a Manx landowner holds an estate in his land similar to that of an English freehold in quantity, but dissimilar in quality.

Generally described as customary freehold, it differs in son _e. of which you will recollect one, important incidents. His ownership of all above and below the surface, usque ad coelum, does not here extend to minerals, which remain the property of the Crown. St. Thomas' Church was an instance in point. For before the Ecclesiastical Commissioners would accept the conveyance of the site of church and vicarage, they insisted on a release from the Crown of its right to minerals thereunder, which, after survey, was given. You will not probably need me to remind you of the fact that a Manx estate cannot. be entailed, any attempt to do so by deed merely resulting in the creation of a conditional fee. This was illustrated in the case of Ballamoar in the latter part: of the 18th century, when the then owner tried to create such an estate, but the opinion of all the lawyers, both Manx and English, including Lord Mansfield, was to the effect I have stated, and the estate had to descend to the writer's grandfather, the heir-at-law in the direct line.

Nor need I dwell on the fact that incident illustrates, namely-that females in Man inherit individually in order of birth like men, and not together in co-partnery as in England. Nor need I remind you of the Manx widow's dower-right in half her husband's goods and his lands for life-unlike the English widow's absence of any rights as against her husband's will, and if none, then only to the extent of one-third-a most unjust state of man-made law whilst it subsisted, as it did, for many hundred years. But who was it said that many Englishmen regarded their women as one of their chattels, sometimes not so valuable as a favourite hunter? Nor, I think, do you wish to be reminded of certain other incidental matters affecting a Manx ownership. The right, for instance, of your neighbour to enter upon your land and use your quarry for stone for the improvement of his estate-a right sought tto be exercised on one occasion by a man who was building a street of houses on part of his estate in Port Erin-or the obligation to pay a rent, once in kind, later in money, to the Crown as Lord of Man; to serve upon the Great and Setting Enquests, and to act as Moar in rotation. These obligations, like those of providing for the poor, keeping the roads and hedges, the fabric of the parish church and its ornaments and the churchyard wall in repair; serving in the parish militia and the like, were no doubt common to the ownership of land in other parts of the British Isles and elsewhere. But all this legal information, and much more, you will better acquire by consulting my friend the Chairman and other gentlemen of the long robe, on payment of the fee which, in my time, was the customary 5/- but is probably now, judging from the opulent and 'motor-choked' appearance of a nearby street, more like. £5.

I think it more likely that you expected me to deal with the subject of Manx Land Tenure from an antiquarian point of view, and this leads me to turn up an article I wrote in 1906, a portion of which I take the liberty to read to you. For purposes of comparision I referred to the following incidents of the old Norwegian land system, namely:

"(a) That such land was inalienable, and if sold to any one outside' the family, the latter had a right of redemption at a price one-fifth less than the appraised value, if they or one of them gave public notice of a claim within twenty years to the Thing, and this right to redeem did not become forfeited till after the expiration of sixty years' undisputed possession in the new owner without notice of any claim given.

(b) That the sons, and later the daughters, all succeeded to the inheritance on the death of the owner.

(c) That land became Odal, amongst other ways:

(1) when three generations had owned it in unbroken succession, and it fell to the fourth (as inheritance) ;

(2) when it had been got by bronderfyd, i.e., when the purchaser received the grantor to keep him in bad and good circumstances and feed him, until fire and pyre (until he died). In this case of course the land must have been Odal in the grantor's hands.

Now there were several peculiarities in the Manx customary- law as to land (before it was altered by statute), which must always strike one accustomed only to the English law as distinctly novel. For the present purpose, I will only mention the following.

(a) That lands of the description of quarterland of descent, in addition to their non-liability to the debts of the proprietor,: and their non-devisability by will, were inalienable without the licence of the lord (or the lord's officers).

(b) That intacks, or those portions of the commons licensed to be enclosed by a proprietor, did not become inheritance land (so as to fall to the heir and be non-liable to debts and nondevisable by will), till they had passed three descents, not reckoning the first purchaser. Till then, they were considered as mere chattels, liable to the owner's debts and devisable by his will, and were distributable as such amongst the next of kin on the death intestate of the owner.

(c) That lands acquired by bargane-eirey (the Manx expression for the customary settlement by an ancestor on his heir presumptive or apparent) were considered lands of inheritance in the purchaser, whereas bought quarterlands were mere chattels alike to intacks before they had passed three descents.

(d) That by the Statute of 1662, which declared that for the future bought quarterlands should be considered to be lands of inheritance and descend to the heir, it was provided and reserved that such lands should be subject in the hands of the heir to a charge equal to the value thereof in favour of the next of kin.

(e) That it was an ancient custom continued up to very recent times (and not dependent upon the Statutes of Limitations, save so far as regards the necessity of its being put in writing), that any person claiming title to lands in the island might stop the time limit running against him by simply entering a claim at any sitting of the court within twenty or twenty-one years of his dispossession without notice to the adverse party, the claimant praying that his claim might be received and entered on record according to law and ancient custom. and

(f) That the earliest method of transfer of which we have any written record, was for the tenant of lands who had surrendered them into the lord's hands, or had alienated them to any other person, to come into the Baron Court in the presence of the lord's officers and of the Enquest `and make resignation thereof by delivery of a straw, and thereupon a record was to be entered of the same which was all the assurance the succeeding tenant had of the said estate in the nature of a copyhold, which was held sufficient. evidence of his holding without any writing script' (Parr's Abstract of the Laws of the Isle of Mann).

These peculiarities of Manx customary laws are of undoubted antiquity, inasmuch as we find no statutory authority for any of them save for that adopted by the Statute of 1662.

When contrasted with the peculiar incidents of Udal tenure in 'Norway to which reference has already been made, there is to be detected, I think, a striking resemblance.

Compare the distinctive elements of Udal land, its inalienability as against the kindred, the right to redeem within sixty years (equivalent no doubt to three descents), provided notice had been publicly. given in the Thing---with the inalienability of quarterlands of descent either by will or for debts, except in the lifetime of the proprietor with the licence of the Baron Court, and originally no doubt in its presence by the delivery of a straw. Compare the fact that the Udal lands were limited and not extendible, and that all other lands which lay outside this class were free from its cumbrous safeguardswith the fact that the quarterlands (which have existed in their present number and within their respective boundaries from time immemorial), were also limited and not extendible, and that the intack land which lay outside their boundaries was not subject to the distinctive safeguards of the quarterland.

Compare the elaborate nature of those safeguards according to the Norwegian law, under which land had to descend through four generations in unbroken succession before it could become Udal, but i• Udal already, an alienation by bronderfyd did not destroy its character as such-with the fact that intack lands could not become inheritance land akin to quarterland of descent till they had passed three descents not counting the first purchaser (i.e., four generations), and that alienation by bargane-eirey did not, whilst any other alienation did, destroy the inheritance nature of a quarterland.

Consider with these the curious provision of the Manx Statute of 1662 which created bought quarterlands lands of inheritance, reserving a charge on them equal to their value in favour of the next of kin, and the still more curious and significant ancient custom of preserving a claim to land by publicly making a claim to it within, twenty years at any sitting of the Baron Courts without notice to the adverse possessor, and, it will be seen, I venture to think, that all the indications point to a much closer connection between the customary land law of Mann and the laws governing the Udal tenure in Norway, than to anything to bo found in the laws of land tenure in England, Irelands Wales, or Scotland."

Much water has flowed under the bridge since that was written, but my attention has not been called to any serious criticism of the theories therein adumbrated. That may be, of course, because no one thought it worth while to comment on them. It did indeed, lead to an interesting correspondence with the compilers of the history of the Earldom of Orkney, with the laws and constitution of which, and of Shetland, many striking analogies, pointing to a common origin, exist. Now, broadly speaking, my theory is that, whatever may have been the law regulating the tenure of land in Man prior to the coming of the Norsemen in the ninth century, whether (as is likely) like that prevailing among the surounding gaelic speaking races or not-since and after that time the Norwegian law (modified no doubt by local usages too strong to be obliterated) prevailed, and form the basis of our land tenure.

The peculiar custom of land holding called "Tanistry" which prevailed in Ireland up to the days of Elizabeth, appears to beam, no analogy to that we find existing during and since the days of Norse rule.

And when, in accordance with the custom which prevailed all over the countries which had, been subjected to Scandinavian rule, the younger Stanley was recognised at Tynwald as heir apparent of the Kingdom of Alan (as his royal contemporary was being almost simultaneously recognised by the Assembly of the Gothic Kingdom of Arragon), he and his successors found themselves faced with an ever growing resistance arising out of the allódial claims of the Dlanx land owners as against the feudalizing agressions of the Lords of Man, which finally led to the Act of Settlement of 1704.

Mr Chairman, there are so many aspects of this subject that I roust, in deference to your convenience, omit mention of most of them to-day. There is however, one incident attaching to the ownership of land in Alan-too interesting to be passed without comment. I refer to the right to be a legislator. This, as in Iceland and elsewhere in the Norse world, appears to have attached only to the owners of the larger estates. Indeed, it was only the other day that the necessary qualification for membership of the Keys, namely, the ownership of landed property worth at least E100 a year, was abolished.

In each Thing or district, looking to the Head Temple as its religious and administrative centre, there were a number of landowners called " Godár " or Priest Lords, from whom the most distinguished was chosen to act as judicial and legislative representative, leader in war, and as the priest serving the Head Temple or lblother Church.

This priesthood was a personal distinction, but could be lost in various ways, or could be sold or exchanged. In Iceland, as in Man, these "Tiring" districts (in Man identical with the Christian parishes) were grouped in threes and formed a larger district (in Man the Sheading) which formed the legislative constituency as it still does. In Iceland, which was divided for administrative purposes into four quarters, corresponding to the points of the compass, there were three of these larger districts to each quarter or 12 in all, and thus the correct legal number of representatives to the Althing was 36.

But as the northern quarter was the largest, and actually contained 4 districts, the real number of representatives was 39-to correct the voting disparity which might be thereby caused, three additional members were added to each other quarter, thus making 48 in all. Each of the 48 chose two men as his assessors, who sat one on the bench before him and the other on a bench behind him. The complete Court of Laws at Althing thus numbered 144, and with the Logsogumadr (or speaker of the law) who presided, 145.

In Man, the division of the land into Northside and Southside, each of which contained three Sheadings, each of which again contained 3 parishes, or districts looking to Head Temple (or later parish church), seems very similar to the Icelandic analogy. True it is that one sheading only contained two parishes, but this seems to have been corrected in order to keep to the proper multiple of 12, i.e., 24, by regarding the parishes as an even number of sixteen, thus making the composition of the House of Keys (as Stated by them in 1422) 8 from the out Isles and 16 from Man, or perhaps by adding one to Garff, thus making the numbers 18 and 6 From the out Isles, for the Keys may have been mistaken in their recollection.

Probably in the ancient office of Captain of the Parish, whose military leadership is recognized in his commission, and in whom has always been vested the right to summon by sending round the cross, and to preside over, parish meetings, we see a survival of the civilian duties of the old Priest Lord of Norse days. And although, ince the introduction of the Christian religion, priests and laity became separated, in Man, at leas', the ancient right of presiding in the Temple may still inspire an eloquent Captain of the Parish to build a chapel and to exhort his people in the pulpit. So we may imagine the sub-conscious urge of traditional usage still to operate.

But my time is up, and we must part with regret from the fast disappearing past, instinct with life and individuality, rich in rnemories of our heroic ancestry.

With the history of that period the tenure of land was intimately associated, and if these few disjointed notes may stimulate some of the younger members to delve into the, as yet, undiciphered materials lying at hand in our records, I, for one, will feel amply compensated for having bored you this fine afternoon.