[Notes 22-24 from Manx Soc Vol 12 ]
Earl Charles became de jure Lord of the Island on the death of his father, but not de facto, for we find that almost immediately after the death of Earl James the Island was surrendered to the Parliamentary forces. Previous to the 15th October, 1651, Courts of Common Law were held by Sir Philip Musgrove, the Governor under Earl James, on the 20th of the same month (when probably the news of the death of James had not reached the Island,) he held a Court of General Gaol Delivery at Castletown (Liber Plitor. 1651), and on the 2nd November, 1651, the taking of the Island was complete, for Colonel Robert Duckenfeild and Colonel Thomas Birch, by letter of that date reported to Parliament their proceedings touching the taking of the Island and Castles Rushen and Peel. The letter was read in the House of Commons on the 6th November, 1651, when thanks to Colonels Duckenfeild and Birch and to the officers and soldiers under their command were voted. (Journal of House of Commons, 6th Nov., 1651.) Colonels Duckenfeild and Birch had been sent by the Parliament with a force to subdue the Island, which was defended under the command of the Countess Charlotte,-but against her will, terms were agreed upon on behalf of the inhabitants between William Christian, the Receiver General of the Island, and Colonel Duckenfeild, the Commander of the Parliamentary forces, for the surrender of the Island, and the surrender was effected without bloodshed. The uselessness of resistance at this time, when all other parts of the kingdoms had been subdued, was apparent to the inhabitants of the Island, and they concurred in the surrender on being guaranteed the enjoyment of their laws and liberties. (Depositions in case of Christian.-Liber Scaccar. 1663.) As to the Countess, " she retained the glory of being the last person in the three kingdoms, and in all the dependent dominions, who submitted to the victorious Commonwealth." (Hume's History, chap. 60.) On the 11th November, 1651, the articles made upon the rendition of the Island and the Castles therein were confirmed by Parliament. (House of Commons Journal.) Colonel Duckenfeild, as the military commander of the expedition against the Island, appears to have assumed the Governorship of the Island, and Captain Samuel Smith was appointed Deputy Governor. (Both Duckenfeild and Smith had been members of the court-martial by which Earl James had been tried and condemned. Seacome 117.)
Until the 23rd February, 1652, the Island appears to have been governed in the name of the Commonwealth of England, and not on behalf of Lord Fairfax, on whom it was conferred by an Act of the Parliament in 1649, the bonds for publichouse licences and for other purposes taken in the Rolls Office, being made "to the use of the State of England," (Liber Scaccar.1652,) and not to the use of the Lord of the Island as had been formerly the custom, and as was the case after Fairfax was acknowledged as Lord. That the Island was governed in the name of the Commonwealth appears also from the House of Commons Journals of 5th December, 1651, when on the recommendation of the Council of State the pay of the Governor and the military establishment of the Island was agreed to. The Council of State also reported as their recommendation, " That the Isle of Man may be taken in as part of England, yet retaining such laws already established as are equitable and just, and more suitable to the condition of the people than any other that can be imposed, to which end it will be convenient that Dymster Christian and his brother the Receiver, two of the ablest and honestest gentlemen in the Island, may be commanded to attend the Council, by whom they may receive a full and true account touching their laws." (From the Journals of the House of Commons it appears, that after the Government of Lord Fairfax was established the Parliament kept a military force in the Island, and made an allow- ance to the Governor as such besides giving him the pay of a captain. Journals, 15th September, 1653; 20th and 27th January, 1659-60; and 3rd February, 1659-60; but the Governor was appointed during this period by Lord Fairfax.)
In Liber Scaccar. 1652, No. 1, is the following order or proclamation issued by Colonel Duckenfeild as Governor :-
Forasmuch as by an order made by the Officers of this Island, It is declared that the ffarmers and other inhabitants of the Isle shall furnish the markets with torne and other victuall weekelie for the supplie of the Garrisons, the townes-people and poore of the Islande, which order is now much neglected, and consideringe the number of soldiers that is now in the severall Garrissons of this Isle, such supplies of corne and victuall of necessitie must be had, I doe therefore hereby require the Controlr and Clerke of the Roulles to send out presepts to the severall parrishes of the Islande to that effect, that such neglects may be amended.
And whereas alsoe there is another order for the rate of Corne not to be above xvis a boule for wheate and mault and see forth for other graines as by the said order is expressed; I doe looke and expect that the said Controller and Clerke of the Roulles make dilligent inquiries by the Coroners and Lockmen of this Islande, whether any maner of p'son or p'sons of the Isle have transgressed or hereafter shall or doe transgresse or breake the said order, and to take due presentments thereof that see such fine and punishment may be inflicted as by the tenour of the said order may be warrantable. Given under my hand at Castle Rushen this first day of December, 1651. ROBERT DUCKENFEILD.
The conquest of the Island being complete, Thomas Lord Fairfax asserted his right under the Act of Parliament, and appointed James Chaloner, William Steane, and J. Rushworth Commissioners to enquire into his estate in this Island, with the yearly value thereof. The Commissioners on the 4th December, 1651, deputed Captains Eaton and Beale to make the enquiries and to give notice to the tenants in the Island of his Lordship's right thereto. The following is the deputation :-(Liber Scacar.1652, No. 16.)
Whereas the Parliamt of England by their Act of the 20th of September, 1649, intituled An act for settling Manners, Lands, Tenements and Hereditaments of the cleare yearly valne of 4000£ upon Thomas Lord Ffairfax, the Captain Generall of the forces of the Parliamet of England, Have invested the said Thomas Lord Ffairfax with all that the Island Castle Pele and Isle of Man situated and lying in the seas betwixt England and Ireland, with all Islands, Lordships, Piles, Castles, Monastery, Abbies, Priories adiacent and belonging to the said Lordship of Man, and whitch late were the inheritance of James Earle of Derby, in as large and beneficiall a manner to all intents and purposes what soever as the sayd James Earle of Derby had or might have enjoyed the same, We doe therefore in the right and behalfe of the sayd Thomas Lord Fairfax and as intrusted by him, constitute and appoint you by all good wayes and meanes, to enquier into the fore- said estate in the said Isle of Man, with tbeyearlyvallue and profittes thereof, and to give notice to the respective tenants of the said Thomas Lord Fairfax his right tbereto,-the Teturne wherof we desier you to send unto us. Given under our hands the 4th off Desem. 1651.
JAMES CHALONER. WM. STEANE. Jo. RUSHWORTH. To Captaine Eaton and Capt. Beale.
The directions of the Commissioners were published at Castletown on the 23rd February, 1652, on which day Fairfax was acknowledged as Lord of the Island as appears by the following memorandum appended to the foregoing deputation:-
" Mm, 23d ffeb. 1651.-That this day the Officers and xxiiij Keys of the Islands and fours men of every P'ishe were convened at Castletowne, and these directions published before them by Capt. Smithe, Deputie Govr of the Islande, in prsence of the said Capt. Beale ; And every of them did chearefully accept as and acknowledge the said The. Lo. Ffairfaxe ffor ther Horble Lord and Master."
Captain Smith appears to have continued as Deputy Governor, and as such to have held the courts until his death in June, 1652. (By the Malew Parish Register he appears to have been buried on the 27th of of June, 1652, in the garden or ditch of Castle Rushen.) Lord Fairfax subsequently on the 18th August, 1652, appointed James Chaloner and Robert Dyneley, Esqrs., and the Rev. Joshua Witton, Com- missioners to act for him in the Island. The following is the Commis- sion. (Liber Scaccar. 1652, No. 41.)
Whereas I Thomas Lord Ffairfax have by Act of Parliamt the Lordshype and Islande of Mann conferred upon race, Have therefore thought it most fitt and necessarie as a dutie incumbent upon race to take care for the good governmt and wellfare of the inhabitants of the said Island. In order whereunto I have thought filt to nominate, apoint, and constitute as my lawfull Deputies or Comissioners James Chaloner, Robert Dyneley, Esgrs, Joshua Witton, clarke; And by these presents I doe nominate, apoint, and constitute James Chaloner, Robt Dyneley, Esgrs., Joshua Witton, clarke, my lawfull Deputies or Comissionrs to heare, consider, and determine of or concerninge all matters and causes of or belonginge to the said Island, wth as full power and authoritie by such wayes and meanes as any Deputies or Comrs heretofore had or might have acted by, or as I myselfe if personallie present might lawfullie have or doe. Savinge and reserving to myselfe nevertheless a power of approvinge or disapprovinge of whatsoever my said Deputies or Comrs shall act or doe concerninge the coutinuange, placinge, or displacinge of any Minister or Ministers of iustice, officer or officers of or belonginge to the said Island. This my deputation or cornission to have continuance duringe the residence of my said Deputies or Comiss" in the said Island, and for noe longer by me. In witnes and confirmacon hereof I the said The. Lord Ffairfax have hereunto set my name and affixed my scale of armes at Nunn Apletou this eighteenth day of August, in the yeare of our Lord God 1652. Tuo. FFAIRFAX.
It may be inferred that it was his Lordship's intention at this time to dispense with the appointment of a Governor,-the Commissioners performing all the duties, as in Liber Plitor. 1652 we find that in October 1652, the Courts of Common Law and General Gaol Delivery were held " in the name and right of Thomas Lord Ffairfax, Lord of Man and the Isles," before the Deemsters, Comptroller and Clerk of the Rolls, the Receiver-General and Attorney-General-reference being made to the Commission of the 18th August,-but the Commissioners do not appear to have been present in the Courts. The mode of holding these Courts was an irregularity,-the presence of a Governor, notwithstanding the presence of the Lord or his Deputies or Commissioners in the Island, being indispensable, and the irregularity was not repeated. The next Common Law Courts were held in January, 1652/3 before Captain Matthew Cadwell, Governor, and the other officers, and in the proceedings is the following entry :-(Liber Plitor. 1653 :)-" Me-there were noe Courts houlden at May last nor Michelmas for want of a Governor,-soe these Courts now houlden stand for Miehalmas Court last." In these times of general laxity as to constitutional forms and procedure, this adherence to the Insular constitution is very remarkable.
It is also remarkable that the Parliament, having established a republican form of Government in England, should not have permitted the same form of Government to be adopted in the Island, but should there have continued the monarchical form by investing Lord Fairfax with all the rights and powers possessed by the former Lords of the Island. The case is somewhat similar to that of the French Republic in 1849 sup- pressing the Roman Republic, and re-establishing the Papal Government. The difference between the two cases is, that the English Republic, with- out consulting the wishes of the Manx people, continued over them the monarchical form of Government, a form to which they gladly adhered; whereas the French Republic suppressed the Roman republican and re-established the monarchical form of Government, entirely against the will of the Roman people.
It seems to have been considered as law in these times, as was decided in the case of the Earl of Derby in 1716, (see notes on § 24,) that the grant to Lord Fairfax was not so absolute as to prevent an appeal by the subject to the Sovereign power in England. The following case of Elizabeth Parr, Executrix of Richard Parr, late Bishop of Sodor and Man v. Sir Hugh Cannell, clerk, acknowledges such right of the subject. (Liber Cancellar. 1653, No. 41.)
To the Right worst Capt- Mat. Cadwell, Goverur of this Isle. The humble appeale of Hugh Cannell, clerk.
In regard your suppliant (upon his humble peticon) is denyed Lycence to repaire to the Right Hobro Thomas Lord Fairfax, Lord of this Isle, for redresse as hitherto (by the custome and comon practice of this Islande,) hatte beene formerly ever usuall; and not- withstandinnge that his Lordship hath (by his orders lately sent over) ratified and confirmed the Lawes, Custemes, and Liberties of this Island to the people and inhabitants thereof ; Therefore your suppliant doth hereby humbly appeal as a subject to the Comon-wealth of England from all Courts of Judicature here, to his Excellency and Highnesse Oliver Cromwell, Lorde Protector of Englande, Scotlande, and Ireland, and to the Parliament of the Comon-wealth of England for further redresse, and alsoe humbly craves the acceptance of this his appease. HU. CANNELL. January the 19th, 1654.
2" ffebruary, 1651.
Fforasmuclr as the peticonr bath had alreadie his adress by appeale to the lord of the Isle upon the decree of Court made against him in the recovery of Mrs Parr, wheb was the occacon (where-uppon the said appease was preferred,) and that his lordship hatte (in answere thereunto) confirmed the said decree. Therefore it is conceaved impropper to give way to any further appeale to the trouble of his lordshippe to the deferringe of the sa Mrs Parrs recovery. But if the peticonr doe find himselfe aggrieved by any the proceedings relatinge to the said business by his Lvp and the Court, and will desire (in that respect) to have adress to his Highness the lord Protector and parliamt of England, the same shall be humbly accepted of, and a reasonable tyme give for the prosecucon thereof, giveinge in sufficient securitie into the records accordinge to order, wherein if he doe faile to returne their Highness and honors answerc in the premisses by the time limitted, then imediatt execncon is to be given for the satisfaccon of the said Mrs Parr or her assignees accordinge to ye decrees aforemenconed.
The reign of Lord Fairfax ended on the 28th May, 1660, (being the ninth year of his actual rule,) as appears by the following entry in Malew Parish Register : " 1660. Charles the Second, by the Grace of God, King of England and France and Ireland" "was also proclaimed in the Isle of Man in Peeltown at the Cross, May 28th ; at Castletown, May 29th; at Douglas Cross May 30th; and at Ramsey Cross May 31st, 1660, with shouting, shooting of muskets and ordnance, drinking of beer, with great rejoicing. The Governor James Chaloner being at the said places attended with the Officers, civil and spiritual, 24 Keys, the Captains of the Parishes, and above 60 horse, besides the Officers in each town aforesaid." (Chaloner was the Governor appointed hy Lord Fairfax.)
Charles, the 8th Earl of Derby and 11th Lord of Man of the Stanley line, succeeded his father, Earl James, as Lord, de jure at his father's decease on the 15th October, 1651, as before mentioned, but commenced his rule de facto on the 28th May, 1660, when King Charles II. was proclaimed; or rather on the 13th July, 1660, when he issued the following commission. (Liber Irrot. 1660.)
Charles Earle of Derby, Lord of Mann & th'isles, &c. To all whom these presents shall come greetinge. Know ye that for divers good causes and considerations me thereunto movinge, And for the laudable and acceptable services before tiris tyrae done unto rnee by my right trustie and wel-beloved Roger Nowell, of Neade in the County of Lancaster, Esqr., William Ffyffe, of Widdaken, in the County of Lancaster, Doctor in Phisicke; Richard Sherlocke, B.D., Sammuell Hinde, B.D., Bartholomew Holme, of Hollaud, in the foresaid Countie of Lancastr, gentleman, John Jones, of Lathome, in the said Countie, gentleman Robt Calcott, of the Nunnerie, in the Isle of Mann, and Richard Stevenson, of Balladoole, in the Isle of Mann, gentlemen, Have thought fitt upon consideration of their greate meritt, and being assured of their fidelitie to me, and abillitie in my service, have by these presents in an especiall maner, grace, & favour, made ordained and constituted tirem my said trustie and welbeloved Roger Nowell, Willm Ffyfe, Rich. Sherlocke, Sam. Hind, Bartho. Holme, John Jones, Robt Calcott, and Richard Stevenson, Comissionrs ffor mee & in. my name, place, & stead to demand, receive, take, and enioy for my service, my said Isle of Mann, and all ymmunities to the said Isle belonginge. Requiringe hereby all p'sons, whome theise may concerne to give couformetie and obedience hereunto, so that there may be delivered upp unto them my sd Commissioners, all my castles, ffoarts, mansions, poarts, garrisons, lands, tenements, customes, offices, rents, revennewes, and services, of what kind and nature soever, by what stile, state, authoritie, or honour are held by any p'son or p'sons whatsoever in my said Isle of Mann, with all and singular comodeties, emoluments, p'eheminences and nominations wch in my sd Isle, and to the same appertaininge, and as were fornrerlie held & enioyed by my late endeared father of honorble memorie, James Stanley, Earle of Derby, then Lord of Mann & of th'isles, of antient & undoubted right belonginge unto mee : Hereby givinge and grantiuge unto my beloved Comissiours Roger Nowell, Will. ffyfe, Rich. Sherlock, Sam. Hinde, B.D., Bartho. Holme; John Jones, Robt- Calcott, Rich. Stevenson, or any three or more of tirem, my powwee & full authoritie to order & manage the said Isne for my honor & interest, as also for the good & saftie thereof, a dne regard being had to the right of the inhabi- tants of the said Isle; and to lett, sett, & dispose of all & singular the offices, honors, castles, garrisons, poarts, Marts, lands, tenements, and all other the rights, dues, duties, & services as to their wisdome for my honor & behoofe shall seerne requisite, well doe of an undoubted & knowne right belonge unto me, and fornrerlie had & enioyed by the right honorbte my late father in his life, or Iris prdicessors of greate renowne and dignitie. I hereby ratiffyinge and conlrminge all and singular the respective act and acts, matter and matters, thing or things, that my said trustie and well-beloved Roger Nowell, Wily" ffyfe, Rich. Sherlock, Sam. Hinde, Barth. Holme, John Jones, Robe Cal- Gott, and Richard Stevenson, or any three of them shall act or doe; all which beinge soe acted and done by them, doe by these prsents for me and my- heyres corroborate and confirme, for the service of wch I have made, constituted, and appointed them the said Roger Nowell, Willm ffyfe, Rich. Sherlock, Sam. Hinde, Barth. Holme, John Jones, Robt. Calcott, and Rich. Stevenson, or any three of them as abovesaid, to be ymediate Comissioners in all powers as well ecclesiastical) as civil) duringe my pleasure, and therein to act wth as full power and authoritie as if I were there p.sonnally prsent. To whom I require all due obedience to be given from all p.sons inhabittinge in my said Isle. Provided always, that none of theise Comissioners either iointly or severallie act or doe any thinge eontrarie to such private instructions as shall appeare under my hand and seale. As also that the said Roger Nowell, Willm ffyfe, Barth. Holme, John Jones, Robt. Calcott, Rich. Stevenson, nor any of them shall not hinder or oppose, but forward, assist, and abettRich. Sherlock and Sam. Hinde in what they shall act by vertue of delegation from the Archdeacon of the said Isle, in order to the settlinge of religion and all ecclesiasticall affayres as they were in my late father's tyme. In testimonie whereof I have here- unto put my hand and seale. Dated at Derby house, in Chan'ell Rowe in Westminster, the siijth day of July, in the xiith yeare of the reigne of our dread Sovereigne Lord Charles, by the grace of God Kinge of Englaud, Scotland, Ffrance, and Ireland, deffendr of the faith, Ano. dom. 1660.
Signed, sealed, and delivered in the presence of Ralph Bridocke.
Will- Christian. Hugh Hollande.
On the 12th February, 1667, King Charles II., by letters patent, granted unto Earl Charles the royal mines of gold and silver in the Isle of Man, to be holden unto the Earl and to the heirs male of his body lawfully begotten. (The grant reverted in 1735, on the decease of James the 10th Earl, to the Crown, there being then a failure of heirs male of the body of Earl Charles. Preamble to Revesting Act, 5 Geo. III., cap. 26, in Note on § 28.) The Earl was Chamberlain of Chester.
King James II. ascended the English throne on the 6th February, 1686'. The following notice of his proclamation here appears in the Malew Parish Register:-" James the 2d. was proclaimed King of Great Britain, France, and Ireland, Defender of the Faith, on the 12th day of March, 1684, in Castletown at the Cross, by the Right Worpll Ro. Hey- wood, Esgr-, Governr of the Isle, and all the Officers Spill and Tempote, Clergie, and 24 Keyes, Captains and Officers of every p'ish in the Isle, with great congratulations and repeated acclamations."
Earl Charles died on the 21st December, 1672, in the 22nd year of his :reign de jure, or 13th year of his reign de facto as Lord of Man.
William II, (or William George Richard,) the 9th Earl of Derby and 12th Lord of Man of the House of Stanley, succeeded his father the 11th Lord on the 21st December, 1672, he being then a minor of about 17 years of age. We find in the records in the Rolls Office, that during part of the first year of his accession he governed by his mother the Countess Dorothy Helena as his guardian, and afterwards until and during part of the year 1676, by James, Duke, Marquess, and Earl of Ormonde as his guardian. Earl William II. became Chamberlain of the City of Chester, and he was Mayor thereof in 1702. (Seacome 152.) He visited the Island in 1686 (Malew Parish Register,) and again in 1691. He was present at a Tynwald Court at St. John's on the 30th July, 1691, when several Acts were assented to by him and promulgated. (Mills' Statutes 147.)
Earl William II. died sometime in the month of November, 1702, as stated in the Chronicle, in the 30th year of his reign as Lord of Man. He had issue one son who died in his father's lifetime, and two daughters, the elder of whom, Henrietta, was married, first to John, Earl of Anglesey, by whom she had one daughter, who died in infancy,-and secondly to John Lord Ashburnham, by whom she had one daughter, Henrietta Bridget Ashburnham, who survived Earl William II. her grandfather, but who died when about 14 years of age. The younger daughter of Earl William II. died in the 18th year of her age unmarried. (Seacome 152.)
James II., the 10th Earl of Derby and 13th Lord of Man of the House of Stanley, succeeded his brother the 12th Lord in November, 1702. He was the fourth son of Earl Charles the 11th Lord, whose second and third sons, Robert and Charles, had previously died unmarried. (Seacome, 145.)
He succeeded to the Lordship in preference to the female issue of Earl William II. by virtue of the Act of Parliament of 8th James I., by which the succession was limited to the " Heirs Males" of James I., the 10th Lord (See Notes on § 20), and Earl James II. was such Heir Male. Earl James II., at the time of his accession, was Brigadier in the army of King William III., under whom he had commanded courageously a Regiment of Foot in the Wars in Flanders and Ireland. He was afterwards appointed Chancellor of the Duchy and County Palatine of Lancaster, and Lord Lieutenant and Vice-Admiral thereof, and also Chamberlain of the City and County Palatine of Chester. He was besides a member of the Privy Council in the reigns of King William I., Queen Anne, and King George I., and Captain of the Yeomen of the Guard. (Seacome 152.)
On the accession of Earl James II., he by commission dated the 20th November, 1702, appointed his brother, the Honorable Charles Stanley, Governor; and on the 1st December following he made the following order for continuing in their places all other officers. (Liber Irrot. 1702.) This is the first order of the kind that I have found in the records. It is to be observed that this order does not declare the several offices to be void or vacant, and for the reasons alleged in the note on § 25, I consider that by the Common Law no offices became, by the decease of the Sovereign, or by a change in the supreme government, ipso facto vacant.
To all whom these presents shall come or anyways concerne : the Rt Honorable James Earle of Derby, Lord of Man and the Isles, sendeth greeting. Know ye that I the said Earle of Derby and Lord of Alan and the Isles, for divers good causes and consideracons me thereunto moveing, Have granted, constituted, made and continued, And by these prsents doe grant, constitute, make and continue all and every the Counsellors, Deemsters, Judges, Officers and Ministers, Ecclesiastical, Military and Civill whatsoever, who were granted, constituted or made by my late brother the Rt Honrable William George Richard, late Earle of Derby, late Lord of Man and the Isles afforesaid, in all and every of their said offices, imployments, and trusts, Ecclesiastical, Millitary and Civill in the said Isle of Man and Isles aforesd, (except the Chiefe Governor, Commander in Chiefe and Deputy Governor,) which office of Chiefe Governor, and Commander in Chiefe I have granted, and doe hereby ratify and confirme unto my wellbeloved brother the honorable Charles Stanley Esgr, To have, hold, exercise, execute and enjoy the sd offices of Counsellors, Deemsters, Judges, Officers and "Ministers, who were see granted, constituted or made by the sd Earle of Derby unto the sd Counsellors, Deemsters, Judges, Officers, and Ministers and every of of them, during my will and pleasure. Given under my hand and seale the first day of December, Anno Dni one thousand seven hundred and two.
Sealed and delivered in the presence of R. Thornhill.
C. Lawton. Tho. Showell. The. Bowdler.
In 1716 a question was raised whether an appeal lay from the Lord of the Island to the Crown of England,-the right of appeal being disputed on the part of Earl Jatnes II., there being no reservation of any such right in the grant of the Island from the Crown. The question was decided against the Earl in the following case, heard before a Committee of the Privy Council and reported in I Peere Williams' Reports 329
Christian versus Corren.
Before a Committee of Council at the Cockpit, Michaelmas Term, 1716. Appeal from a Decree in the Isle of Man. The subject cannot be deprived of his right to appeal by any words in the King's Grant to that purpose, much less if the Grant be silent in that particular.
The Earl of Derby, King of the Isle of Man, made a decree in that Island concerning lands there; and the person against whore the decree was made, appealed hither.
One (and indeed the principal) question was, whether an appeal did lie before the King in Council, there being no reservation in the grant made of the Isle of Man by the Crown, of the subject's right of appeal to the Crown.
And it was urged for the appeal by myself (who alone was counsel with the appellant), that it appearing in this case that 11. 4 had granted the Isle of Man to the Earl of Derby's ancestors, to hold by homage and other services, the' there was no reservation of the subject's right of appeal to the Crown, yet this liberty was plainly implied.
For that such liberty of appeal lay in all cases where there is a tenure of the Crown ; that it was the right of the subject to appeal to the Sovereign to redress a wrong done to them in any court of justice; nay, if there had been any express words in the grant to exclude appeals, they had been void ; because the subject had an inherent right, inseparable from them as subjects to apply to the Crown for justice. And on the other hand,
The King, as the fountain of justice, had an inherent right, inseparable from the Crown, to distribute justice among his subjects ; and if this were a right in the subjects, no grant could deprive them of it ; the consequence of which would be that in all such cases, viz., where there were words exclusive of such right of appeal, the King would be construed to be deceived, and his grant void. Also precedents were cited in point.
Lord Chief Justice Parker, who assisted at Council upon this occasion, thought that the King in Council had necessarily a jurisdiction in this case, in order to prevent a failure of justice ; and took notice, that if a copyholder should sue by petition in the Lord's Court, upon which the Lord should give judgment, the' no appeal or writ of error would lie of such judgment, yet the Court of Chancery would correct the proceedings in case anything were done therein against conscience.
Whereupon their Lordships proceeded in this appeal, and determined in favour of the appellant ; and it is observable that Lord Derby also, at length, rather than that some things in the grant made by the Crown to his ancestors should be looked into, chose to submit and express his consent that the matters in question on the appeal should be examined by the King in Council.
During the reign of Earl James II., the English Government complained much of the injuries sustained in respect of the Customs Revenues by reason of the immunities possessed by Manx traders. The Customs duties payable on the importation of goods into the Island were very trifling as compared with like duties in Great Britain and Ireland, and the consequence was that there arose a very extensive trade in the exportation of foreign goods, which were landed in a contraband manner in the neighbouring kingdoms, besides, in respect of great quantities of foreign goods exported from England for the Island, the exporters received drawback for British duties paid, and then clandes- tinely re-landed the goods in Great Britain. In 1711 an Act of Tynwald was passed to correct these frauds, but in the expectation that the British Parliament would admit duty free the produce of the Island,- the Parliament, however, not having granted the privileges sought, the Act of 1711 was, by another Act of Tynwald passed in 1713, suspended. (Mills' Statutes 195, 208.) In England it was considered that the only effectual cure for the injuries complained of, was the revesting of the Island in the Crown, and accordingly the following Sections authorizing the Treasury to contract for the purchase of the rights of the Lords of the Island were introduced into an Act of Parliament, 12 George I., cap. 28 (1725), intituled :-
An Act for the Improvement of His Majesty's Revenues of Customs, Excise and Inland Duties.
Sect. 25.-And for the better enabling his Majesty to prevent the said frauds and abuses, in the exporting or importing of goods arid merchandizes to and from the Isle of Man, be it further enacted by the authority aforesaid, That it shall and may be lawful to and for the Commissioners of His Majesty's Treasury now or for the time being, or any three or more of them, or the Lord High Treasurer for the time being, on the behalf of His Majesty, his heirs and successors, and also to and for the Right Honourable James, Earl of Derby, his tenants or assigns, the Right Honourable John, Lord Ash- burnham, for and on behalf of his daughter Henrietta Bridget Ashburnham, an infant, Bryan Fairfax, Esquire, trustee of the said infant, or the survivor of them, and all or any other person or persons claiming or to claim by, from or under the said Earl or any of his ancestors, to treat, contract, or agree for the absolute purchase or sale, release or surrender, to or for the use of His Majesty, his heirs and successors, of all or any estate, right, title, or interest, which he the said Earl, his tenant, the said Henrietta Bridget Ashburnham, or such other person or persons, now have or claim, or can or may have or claim in or to the said Island or Lordship of Man, or in or to all or any regali- ties, powers, honours, superiorities, jurisdictions, rights, privileges, duties, customs, revenues, profits, or other advantages whatsoever in, over, or about the said Island of Man, or its dependencies, for such sum or sums of money, or upon such other terms or conditions as they shall think fitting; and that upon the executing of such contracts or agreements by or on the behalf of the said Earl, his tenants, the said Henrietta Bridget Ashburnham, or such other person or persons claiming or to claim under him, or any of his ancestors as aforesaid, or upon executing such other conveyances, assignments, releases, or surrenders, as in such contract or contracts shall be agreed on for that purpose, it shall and may be lawful to and for the said Commissioners of the Treasury now or for the time being, or any three or more of them, or the Lord High Treasurer for the time being, and they are hereby empowered, by and out of any monies arisen or to arise to His Majesty, his heirs, or successors, of or for any customs, subsidies, impositions, or other duties upon the importation or exportation of any goods or merchandizes whatsoever, already granted or payable or hereafter to be granted or payable to His Majesty, his heirs or successors, in Great Britain, Wales, or Berwick-upon-Tweed, to order and direct the payment of such sum or sums of money, from time to time as shall be so contracted or agreed on for such purchase or purchases, to such person or persons as according to the terms of such con- tracts or agreements, shall be entitled to have and receive the same.
Sect. 26.-And it is hereby further enacted and declared by the authority aforesaid, That it shall and may be lawful to arid for the said Henrietta Bridget Ashburnbam, not- withstanding her minority; by and with the consent of the said John Lord Ashburnham, her father, and the said Bryan Fairfax, or the survivor of them, to convey and assure all her estate and interest in the Isle of Man arid premises aforesaid, or any part thereof, pursuant to any contract or agreement, which shall be made by virtue of the powers in this Act given; and such conveyance or assurance shall be good and effectual in law, to all intents and purposes, as if the said Henrietta Bridget Ashburnhani was of the full age of one and twenty years, any law, custom, or usage to the contrary thereof in any- wise notwithstanding; and the money to be paid as the consideration of such conveyance shall be paid to such person as the High Court of Chancery shall direct, and when paid shall be laid out by the direction of the said Court of Chancery for the benefit of the said Henrietta Bridget Ashburnham, her executors, administrators, and assigns.
At the time of the passing of this Act, Earl James II. had no issue living, his only child having previously died an infant, and Henrietta Bridget Ashburnham was the heiress presumptive to the Lordship of Man, she being the heir general presumptive of Earl James I. It will be remembered that by the Act of Parliament, 8 James I., the succession was limited after the decease of Earl William I. and his Countess Elizabeth, (1) to Earl James I. (then Lord Stanley) and the heirs male of his body, (2) to Robert Stanley, second son of Earl William I., and the heirs male of his body, (3) to the heirs male of the body of Earl William I., and (4) to the heirs general or " right heirs" of Earl James I. The issue of Robert Stanley was at this time extinct. Earl William I. had two sons, Earl James I. and said Robert Stanley. Earl James I. had three sons: Earl Charles, Edward and William, the two latter of whom died without issue. Earl Charles had four sons: Earl William II., Robert, Earl James II., and Charles, the second and fourth of whom died without issue. Earl James II. had succeeded to the Lordship by reason of Earl William II. leaving no male issue, and therefore Earl James II. was the last heir male of both Earls William I. and James I. Henrietta Bridget Ashburnham, as mentioned in note on § 23, was the grand-daughter and heiress of Earl Charles. She died unmarried in the lifetime of Earl James II. (Seacome 711, 143, 145, 152.)
Earl James II. died as stated in the Chronicle on the Ist February, 1736, and in the 34th year of his reign as Lord of Man, leaving no issue surviving him. He was the last Lord of the House of Stanley.