[From Feltham's Tour, 1798]
To the same.
IN endeavouring to give you a slight idea of what are the subjects which occupy the ponderous volume of the Commissioners' Report, I come now to their third general head, namely, THE CONSTITUTION; and here we find some interesting letters annexed, from Mr. Deemster Moore; the then Attorney General, Sir Wadesworth Busk; and the present Lieut.-Governor, Alexander Shaw, Esq.; the Clerk of the Rolls; and the Speaker of the house of Keys.
Previous to the grant of this island to the Stanley family, in 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 it was successively tributary to, or united with Denmark, Norway, Scotland, and England. Its most ancient records are the laws and ordinances enacted there, commencing in 1417. The first of these is an act passed by the authority of commissioners, appointed by the Lord, and the twenty-four Keys, to prevent abuses of the places of refuge, at that time afforded to criminals by some ecclesiastics in the island. The Manks statute-book commences in 1422, and contains "a collection of divers ordinances, statutes, and customs, presented, reputed, and used for laws in the island."
Henry IV. granted to Sir John de Stanley, his heirs and assigns, the island, Castle-Peel, and Lordship of Man, and all the islands and lordships, royalties, Legalities, and appurtenances, with the patronage of the bishoprick, and all ecclesiastical benefices, in as full and ample a manner as they had been possessed by any of the former lords or kings of Man, to be holden by homage, and the service of rendering to his Majesty, and to his successors at their coronations, two falcons.1 By these, and other letters patent in 7th James I. this island has been held by the family, as a fief separately from the kingdom, but dependent on the crown, from 1406 to the revestment in 1765, with some little interruption at the latter end of the reign of Elizabeth, on the failure of issue male of Ferdinando, then Earl of Derby. ;
From the grant of Henry IV. it has been governed by its own laws; its constitution we shall now notice, as to its legislative, executive, and judicial branches. The laws enacted in the 15th and 16th centuries, appear to have been prescribed by such different powers, or combinations of power, that, as precedents of the exercise of legislative authority, they can have little weight. Subsequent to this was established the more regular mode of legislation, which subsisted in 1764; and from the last century, with few exceptions, the legislative authority has been vested in the Governor, Council, Deemsters, and Keys.2 These four estates are, when assembled, named a Tynwald court, and by joint concurrence they enacted laws. The lord's proprietors had for a considerable time the title of royalty, and had the sovereign control of government in every instance, under certain restrictions. With respect to the persons who had a seat and ·voice in the Council, various opinions are held, and it is at present a matter of controversy. The deemster (Moore) considers it to have consisted of the treasurer, or receiver-general; the comptroller; clerk of the rolls, water-baiIiff; attorney-general; two deemsters, archdeacon, and his official; bishop, and his two vicars-general;-and the clerk of the rolls adds to these the collectors and considers the bishop, and other ecclesiastical officers, as only entitled to attend this council when summoned. The attorney-general differs from each: he considers some spiritual officers to have had a fixed seat, but does not allow all above mentioned. He further confines the right to such layofficers as composed the lord's household, and acted in his ministerial departments. He doubts the propriety of the deemsters, (though he admits they have never been absent) and excludes the collectors. So that according to him, the Council were, the receiver-general or treasurer; comptroller; clerk of the rolls; water-bailiff or collector; the attorney-general; and probably the bishop and archdeacon, and the vicars-general and official, as occasional members.
By the Manks statute-book, some of the spiritual officers appear to have enjoyed the privilege for a series of years; an enumeration of the acts with their signatures is annexed to the memorial of the present bishop and vicar-general, in support of their claims; for in 1776 and 1777, the then government excluded them from the council, and from having any share in the legislature. This is a delicate question, and it would be highly improper in me to offer, as a stranger, any opinion.3 The acts stated as signed by the ecclesiastical department, are acts of general concern, not confined to, or connected with ecclesiastical affairs.
The duty of this council was to assemble when called on by the lord proprietor, or his governor, and give their assent or dissent to the laws proposed.
The twenty-four Keys, or principal commoners, were anciently styled Taxiaxe, and the worthiest men in the land. In King Orrie's days, six of these were chosen from the out-isles; when all were chosen in the island first, is uncertain, but in 1417, the records state twenty-four Keys as concurring in public acts, and they continue the same number. On a vacancy, the house presents two names to the governor, who choses one, and then he takes the oaths and his seat, which is for life, unless he resigns, is expelled, or accepts an office that entitles him to a seat in the council. The' qualifications are, to be of age, and to possess freehold property; non-residence is no disqualification. They debate upon, approve, or reject any law proposed to them. During the session they adjourn at pleasure, and they can appoint committees for business; but their ability to continue the session, and the governor's authority to prorogue them before they choose to separate, are points not agreed on.
Their privileges are to elect a speaker, who is to be approved of by the governor, and he holds the office for life without emolument; he has, however, a right to kill game, and an exemption from services to the lord.
A grand court is held once a year at the Tynwald-hill, where all acts are read publicly, and henceforth become binding on the people.
The acts of the legislature thus constituted, are binding in all cases. The statute-book presents laws and enactments, respecting every object of legislation public and private, sanctioned by a long course of years.
Having thus considered the legislative parts of government; we proceed to the executive and judicial parts, consisting of a council in the nature of a privy or executive council, and frequently styled the Lord's Council; the courts of judicature; and the magistrates, and ministerial officers. The last council is mentioned in early Manks statutes, and when on emergency summoned by the governor, acted in a summary way, without the concurrence of the lIouse of Keys or lord proprietor. From their proceedings not being conducted with regularity, or minutes kept of them, doubts are entertained respecting the persons who were to be considered as members of this council.
The Courts of Judicature are next the objects of enquiry. It may be necessary here to notice that the island is divided into the north and south districts; six Headings; seventeen parishes; each shedding has three parishes, except Glanfaba, which has only two. And there are four inferior baronies, viz. Bishop's Barony; Abbey-Rushen; Bangor and Sabal, and St. Trinian's. Many of the courts are not so much distinct courts, as the same court or persons acting in different situations and on different subjects.4 The governor, as representing the lord, was, by an ancient rule of law, authorised to hold cognizance of all pleas, civil and criminal, and with the other chief of firers seems to have formed, originally, a kind of supreme court, which assumed an universal jurisdiction. The courts of judicature are, civil, ecclesiastical, and criminal.
1. The court of Chancery, where the governor is chancellor, assisted by the deemsters, and such of his council as he shall summon. This court has a mixed jurisdiction in matters of law and equity, and is more frequently resorted to in the latter than the former capacity. It is said to have its origin in the power of granting arrests of the person and effects, which in civil cases belonged to the governor alone. Causes commenced this way were termed common actions, which brought the suitors into the Court of Chancery, and the causes so brought were, as the parties chose, or the governor ordered, either retained to be determined, or transmitted to some other jurisdiction. Suits were likewise instituted before the governor as chancellor, where full redress could not be obtained by the other courts.
2. The Court of Exchequer comes next; in this the governor presides, with such of the council as he chooses to summon. This court takes cognizance of all disputes or offences relating to the lord's revenue, rights, or prerogatives; and prosecutions are here carried on for the recovery of penalties incurred by frauds upon the customs. It also exercises a criminal judisdiction over misdemeanors, and all species of wrongs, which have incurred a fine to the lord: like the Court of Chancery, it proceeds without a jury, unless the governor thinks fit to summon ones and their proceedings are registered in the Liber Scaccarii. From these courts lay an appeal to the lord proprietor.
3. The Common-Law Courts, the style of which is termed, " before the governor, and all the chief officers and deemsters," were held at different places for different sheadings. These may be considered as courts of common pleas; here are tried all actions, personal or real, by a jury of six of the sheading in which the lands lie, in case of real actions; and of four of the defendant's parish, in actions personal. The verdicts of these are liable to be traversed, and a new trial obtained by another jury of twelve in real, and six in personal actions. Another traverse is allowed to the House of Keys, and both these may condense the prior juries to be amerced. The courts of common law also entertained cognizance of those denominated in their statutes bloodwipes, where the trial was by a jury of six, and the penalty sixpence with costs. When the common law courts are finished, the governor and those who composed it, sit as a Manorial Court, commonly called a Sheading Court, attended by a jury termed a Setting Quest, who present any change of tenants of the lord.5 The baronies before-mentioned, have likewise their courts within themselves, and try felonies committed in their districts by a jury of twelve.
Besides these, are the two Deemsters Courts, one in the northern, the other in the southern district. These sit more frequently, and are more generally resorted,to, than any of the others. In each of these one deemster alone presides, and has a power to decide all causes in a summary way without the intervention of a jury, according to the traditional and unwritten laws of the land, here termed breast laws. These courts are held once a week, or oftener if required. In all civil and criminal matters, their power is great; in civil cases, an appeal lies to the governor and council.
The deemsters were always officers of great dignity; they were not only the chief judges of the Isle, but were also the lord's privy counsellors; and their influence over the people, in some degree, resembled the civil authority of the ancient Druids. They were esteemed the venerable oracles of justice, and in their bosoms resided the laws, which only on important occasions were divulged to the people.
The spiritual officers have lately claimed to be admitted, and their claim, though protested against by the then attorney-general, has been allowed by the lieutenant governor They contend, that if ever they had the right, they must still continue to enjoy it; for that it has not been altered by any express words, and oamlot be taken away by mere implication, especially an implication which is by no means necessary or direct A statement has been sent to England for his Majesty's determination.
The court of the Water Bailif; who is also styled Admiral, takes cognizance of all causes of action or misdemeanors below full sea-mark, and of all maritime affairs, by a special jury of merchants or seafaring men but appeal lies to the governor and council.
The Spiritual Courts are consistory courts, held alternately by the bishop and archdeacon, or their deputies. These courts have more extensive powers than the English spiritual courts. They not only determine the validity of wills, &c. but sustain all causes respecting them, and all suits against executors, &c. Besides inflicting church censures, they can detain the party in the ecclesiastical prison, a subterraneous prison in Peele Castle; and that as a definitive sentence; and the appeal was to the Archbishop of York. But their powers are now exercised in the mildest manner.
The superior court of criminal judicature is the Court of general Gaol Delivery, and in this the governor, council, and deemsters, with the addition of the Keys, preside; and here are tried all capital offences. The prosecutions in this court are carried on by presentments or indictments, and for frauds upon the customs by a verbal information from the seizing officer. For making these presentments there are a variety of inquests. No culprit can be tried in this court, but by a jury of twelve. The attorney-general conducts the prosecution; and when the defence is heard, and the jury agreed, the deemsters demand of the foreman in Manks, if such of the council as are ecclesiastics may remain in court; if he answer, they may not, they withdraw; and the verdict is delivered. Upon conviction the deemster pronounces sentence, and the governor respites execution, until the sentiments of the lord are known, if he be not present. This court is held twice a year at Castle Rushen, and its proceedings, since 1680, have been enrolled in the Liber Placitorum.
There are several juries in the island, viz.-
1. The Great Inquest, which consists of twelve in each sheading, returned by the coroner, to make presentments particularly enumerated in the Manks statute-book. This has lately been abolished.
2. The Setting Quests, of four of the lord's tenants: their office was, when any lands fell to the lord, to discover a proper person to whom they might be set, and compel him to become a tenant thereof; serving as a 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 somewhat similar way.
Besides these, Trespass Juries, and Juries of Enquiry; consisting each of four men, occasionally summoned by the deemsters, on any trespass or damage committed; in order to discover the offenders if possible. The statute-book also contains provisions for some other juries, for placing servants to work, and for the protection of the lord's game. The advantages resulting from these juries is considerably lessened, by the irregularity to which they are liable.
The forms of proceeding in the courts are mentioned as not more orderly or exact than the constitution of those courts. The process of appearance was formerly a summons from the magisstrate, by the initials of his name inscribed on a bit of slate or a stone; but now it is in writing. Decrees and judgments at one time were given orally, at another put into writing: the execution of them was by the moar in the court of common law; by the coroners, for the other superior courts; by the sergeants, in the inferior manor courts; and executed by the sumner, for the ecclesiastical courts.
I shall here explain the duties of those inferior officers just mentioned. In every sheading was a coroner, who served summonses and other processes, returned juries, levied fines and executions; collected certain of the lower dues arising on casualties; and for these and other purposes, was to take inquests, and attend most of the juries and inquests impannelled by the deemsters or superior courts, and might convene and swear others, some permanent, some occasional He also takes inquests as in England, in case of sudden or violent deaths. The sergeants in the several baronies were civil officers, in the nature of moars and coroners.
In each parish is a deputy or assistant to the coroner, termed a lockman.
The high sumner is an officer of very ancient appointment, invested with other very considerable powers, and is a kind of general executor to all aliens dying in the island. He can take an inventory and valuation of their effects to pay burial expenses, and to distribute the residue amongst the creditors.
In each parish are also persons called moors, who collect the lord's rents and fines, and act as servants to some of the courts; each has a deputy, termed a sumner.
If any of these ministerial officers want aid, the military or trained bands are immediately ordered to their assistance. The superintendence of the principal towns is committed to officers styled Captains of the Towns, who are conservators of the peace, and have a power of removing all nuisances or obstructions in the streets.
The military force of the island consists of the garrisons of Rushen and Peele, and the militia, in which every man from sixteen to sixty is liable to serve, except the keys and a few others. The command of the militia is committed to a major-general, captains, and subaltern officers; the major-general has the superintendence of the whole military force of the island. The captains &c. are appointed by the governor; and the militia are commanded by their own officers, liable to be embodied and called out when the captains choose. They are not entitled to pay, and are armed mostly at their own expense.
Thus the constitution stood at the revestment, and the alterations since are few-that act only transferred the sovereignty from the Lord Proprietor to the King. It made no other change in the constitution, but what that transfer necessarily occasioned. Regulations are made in the courts as required, and the common law-court is held four times a year instead of twice, and is stationary at Castle Rushen.6
The suggestions for the benefit of the island, form the fourth part of the commissioners' report, and this is accompanied with plans of harbours, &c. It respects the legislature, the laws, and administration of justice; salaries of some of the officers, public buildings, harbours, and lights. Mr. Reid subjoins also his own observations on the various topics of enquiry, and which are of some length.
Thus I flatter myself I have given a satisfactory, though but a brief idea of the "Report," from which I shall present you with a few tables in a future letter.
1 In the establishment of the British court, we see the head of the falconers ranked among the great officers of state. (Dowel Dha. 1. i. c. I. and Florence of Worcester, p. 623, Frankfort edition.) And at this day the Dukes of St. Alban's and Ancaster, are hereditary chamberlain and falconer to the King of England. Hawking remained the favourite recreation of our gentlemen for many ages. It exists at present only in the Highlands. The Gauls knew nothmg of it: nor was it a sport of the European nations. The Asiatics, however, were universally fond of it.-Polwhele's lIist. Views, vol. i. p. 205.
2In this statement of the branches of the Legislature, I have differed from the commissioners' who state it to be vested in the Lord Proprietor, Governor and Council, and twenty-four Keys
3 It is contended for, by some, that, however the Governors Council might have been formerly composed, it can now consist only of those who are appointed to the offices of government by his Majesty. They allege 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 considered as legal members of that body, but those who derived their appointments immediately from his Majesty; that the bishop and other spiritual officers, being nominated by the Duke of Athol, 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,.camnnot flow from an appointment made by a subject; that the receiver-genera.], the comptroller, and 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.
4 Several regulations in this respect are wanting; the offices of governor and chancellor are very improperly joined in the sane person. The office of deemster seems a proper step to the latter; and the deemsters should be rendered independent of fees for many reasons.
5 Tenants had the occupancy given them by the delivery of a straw, which was the custom of all bargains in England in early times, from whence the lawyers use the word stipulate, because the contract was ratified, per traditi~em Lit
6 See further regulations by act of Tynwald, 1796, in statute laws, 8vo.