[Notes 22-24 from Manx Soc Vol 12 ]
James the 2nd Duke of Atholl and 1st Lord of Man of the House of Murray, succeeded his first cousin once removed, (the relationship styled in the Isle of Man "first and second cousin,") James 1I., the 10th Earl of Derby and 13th Lord of Man of the House of Stanley, on the 1st February, 1736. He was the 3rd son of John, Ist Duke of Atholl, (the two elder sons had died without issue,) which John was the eldest son of Amelia Anna Sophia, wife of John, 1st Marquis of Atholl, and third daughter of James I. the 7th Earl of Derby and 10th Lord of the House of Stanley, (her two elder sisters had left no issue). Duke James was therefore, as stated in the Chronicle, the great grandson of Earl James I., being " James Earl of Derby who was beheaded at Bolton." (Burke's Peerage, 41, 288.) There being a failure of male issue of William I., the 6th Earl of Derby and 9th Lord, and of his son James L, the 7th Earl of Derby and 10th Lord, and all issue of the sons of James I. being extinct, Duke James succeeded to the Lordship of Man as heir general or " right heir" of Earl James I., by virtue of the limitation contained in the Act of Parliament 8 James I. (See notes on § 20 and § 24.)
Duke James, soon after his accession, appointed James Murray, Esq., Governor, and on the 9th March, 1735-6, issued the following instructions for continuing in their respective places the Officers Civil and Military, &c. (Liber Irrot. 1736.) The idea that by the death of the preceding Lord " all places civil and military in the said Isle do become void," is stated I believe for the first time in these instructions, and the correctness of the allegation may well be doubted. An examination of the records leads me to the conclusion that by the Common Law of the Island on all changes in the Sovereignty or supreme government, the officers continued in their respective places until superseded by the new Lord or Government, or until the will of the new Lord or Government was known. The inconvenience of any other course, and the uncertainty which must otherwise have attended the proceedings of the Courts, and the acts of the Authorities in the Island, must be very apparent, when it is considered that during the whole period that the records of the Island extend back, no King or Lord died in the Island, and that all changes in the Government of the Island took place in England, between which place and the Island there was no regular communication, many weeks elapsing frequently without the arrival of any vessel conveying intelligence from England. In the case of Duke James, he became Lord on the 1st February, 1736, but he did not issue his instructions until the 9th March following, and they would not reach the Island immediately. Yet the Government of the Island went on during the interval as before. Neither on this or on any previous occasion, was any Act of the Legislature passed to legalize the administrative and judicial acts of the officers, during the interval between the demise of one King or Lord and the recognition of the successor.
"Instructions to James Murray, Esquire, my Governor of my Isle of Mann, &c:
" Whereas by the death of James, late Earl of Derby, the Lordship of Mann and the Isles doth of right devolve to me, and thereby also all places civil and military in the said Isle do become void, Therefore and for the present peace and safety of my said Isle, my will and pleasure is that all the officers, civil and military, who were in possession of any office or offices at the time of the said late Earl of Derby's decease, be continued in the possession and enjoyment of their said several and respective offices till I can take further order concerning the same : But with this exception, that in case of the misbehaviour or neglect of any officer in the discharge of his office, such officer may be superseded, and you are hereby directed and empowered to supersede and suspend such officer, and transmit to me a true account of the nature and circumstances of his case, that I may thereupon give such order and directions as shall be necessary.
" You are to take due care that the laws and statutes of the Isle be duly executed, so as justice may take place, and my tenants there be preserved from violence and oppression.
"That you inspect the state and condition of the Isle, and report to me wbat is wanting, and how it may be remedied or supplied.
" London, 9th March, 1735. " [1735-6]
In the same year 1736, Duke James visited the Island, and on the 24th June 1736, he attended a Tynwald Court at St. John's, in "royal array," according to the ancient custom, at which Court the Bishop of Sodor and Man, then the only Baron of the Isle, did homage for his Barony. (Liber Scaccar. 1736.)
During this visit to the Island, namely on the 12th August 1736, Duke James have his assent to a very important Act of Tynwald, which tended to the securing the liberty of the subject, and the better government of the Isle. (Mills' Statutes 234, &c.) This Act has not inappropriately been styled the Magna Charta of the Isle of Man. He visited the Island again in 1739, and at Castle Rushen, on the 18th August, in that year, he gave his assent to an Act of Tynwald. (Mills' Statutes 261.)
It was with Duke James that the question was tried in the English Court of Chancery, before Lord Hardwicke, Chancellor, in 1751, as to the effect of the clause against alienation contained in the Act of Parliament, 8 James I., Bishop of Man v. Earl of Derby, and Earl of Derby v. Duke of Atholl, 1 Vesey 202, 2 Tresev 337, (See case in Notes on § 20.) "In the cause on the bill filed by the Bishop of Sodor and Man, the declared foundation of Lord Hardwicke's decree was, that the clause of perpetuity in the Act of James the First regulating the succession to Man, did not merely make void all alienations contrary to the succession in favor of the issue male of William the sixth Earl of Derby and his two sons James Lord Stanley and Robert Stanley, but equally gave protection to James Lord Stanley's heirs general. Lord Hardwicke was indeed of opinion, that the Isle of Man, being held of the Crown in capite, though by a socage tenure, was unalienable without licence from the king, the Act of Charles the Second in respect to tenures in capite not extending to that Island. But then his lordship at the same time explained, that he did not consider this as sufficient to invalidate the term of one thousand years in the rectories and tithes. For his idea was, that to the creation of a mere chattel interest, however long the term, such a licence of alienation was not essential. Therefore Lord Hardwicke's decree is left without any other possible ground to sustain it, than the very construction of the Act of James the First upon which I found myself, namely, that the clause of perpetuity afforded as much protection to the heirs-general as to the heirs male described in the Act." (1 Hargrave's Juriscoasuli Exercitations 158.)
Although Duke James disputed alienations made by Charles 8th Earl of Derby and 11th Lord, he was but a short time in possession of his lordship, before he began to make alienations of the Island for the purpose of effecting a sale to the Crown of England, and with the object of settling the Island or the proceeds of the sale for the benefit of the Murray family, to the exclusion of the heirs-general of James 7th Earl of Derby, thus defeating the intention of the Act of James the First. The various conveyances made are recited in the Revesting Act, 5 George III., cap. 26. (See note on § 28.) They are briefly these :-
(1.) Indenture or deed of feoffment thereon dated the 14th November 1737, whereby the Duke James granted and confirmed unto John Earl of Dunmore, the Honorable William Murray afterwards Lord Mansfield, and John Murray, Esq., their heirs and assigns, the Island and lordship of Man, &c., on certain trusts therein mentioned, but with a power reserved to Duke James by deed or will to revoke any of the trusts, &c., and declare and appoint others.
(2.) Indenture dated 4th May 1748, made between the same parties, whereby Duke James revoked the trusts contained in (1) and declared other trusts, but reserving a like power of revocation and new appointment.
(3.) Indenture or deed of feoffment, dated 6th April 1756, whereby Duke James revoked the trusts contained in (2), and he with the Honorable William Murray, the surviving trustee under (1), granted and confirmed the Island, &c., to Archibald Duke of Argyle, David Viscount Stormont, and John Sharpe their heirs and assigns, to be holden of the King his heirs and successors, by the rents, tenures, suits, and services by which the same were previously held, upon trust (amongst other things) after the decease of Duke James, with the consent and approbation of the person and persons who after the death of Duke James should by virtue of the trusts be entitled to the actual receipt of the rents, &c., of the Isle, sell and surrender the Isle, &c to the King's Majesty, his heirs and successors for such price in ready money as they could reasonably get, &c., the proceeds of the sale to be laid out in the purchase of lands in Scotland, such lands to be unalienably entailed on the heirs male of Duke James, remainder to his heirs female (the eldest heir female always succeeding), remainder to John Murray, Esq., nephew of Duke James (afterwards 3rd Duke of Atholl) and husband of Lady Charlotte the only daughter of Duke James, and his heirs male, with like remainder to James and George Murray, Esqrs., brothers of said John Murray, and their respective heirs male, with divers other remainders over in tail male, remainder to the heirs and assigns of Duke James, who reserved a like power of revocation and new appointment as in the former deeds.
(4.) Indenture or deed of feoffment dated 21st November 1761, whereby Duke James revoked the trusts contained in (3) as to several rectories, impropriations, and tithes within the Isle, in order to facilitate the sale thereof, which rectories, impropriations, and tithes Duke James and David Viscount Stormont, the surviving trustee under (3) granted to John Murray, afterwards 3rd Duke of Atholl, upon certain trusts, and as to the Isle, lordship, and territory of Man (other than the rectories, &&c.) Duke James and Viscount Stormont granted them to John Wood, Esq., Governor of the Island, his heirs and assigns, to the intent that he should re-enfeoff the same to Viscount Stormont, Sir Charles Frederick, and Edmund Hoskins, Esq., (the two latter being new trustees) for the purposes mentioned in (3.) By this deed Duke James also reserved a power of revocation.
(5.) Deed poll dated 8th July 1762, by which John Wood, Esq., re-en-feoffed the Isle, &c., to Viscount Stormont, Sir Charles Frederick, and Edmund Hoskins, and their heirs, on the trusts contained in (3). Duke James died without making any revocation or alteration of (4).
Probably Duke James may have been advised that the restraint on alienation contained in the Act of King James I., did not affect the heirs- general of James 7th Earl of Derby, but such a position was controverted in after years by his grandson John 4th Duke of Atholl, when seeking to obtain further compensation for the loss of his rights in the Island. The following opinion of Mr. Hargraves is to the point:-" Upon the case thus made out in the recitals of the Act of the fifth year of the present reign, it appears that there was thought to be fact enough to warrant the contract made by the Treasury for the sale of the Isle of Man, with the present duke's father and mother and the trustees appointed by Duke James. Under also that impression, the legislature was both induced to execute the contract, and to direct the application of the £70,000 purchase money; as if Duke James, the present duke's grandfather, had been competent to dispose of the Isle of Man at his pleasure; as if he bad been at liberty to sell the Island and to vest it in trustees for that purpose; as if he had possessed a clear right to overturn the order of succession under which himself derived; as if there had been no parliamentary guard to protect that succession against his acts, no restraint to disable his alienation; as if it had been competent to him to establish such new entail and order of succession as be thought best calculated to favour certain collateral branches of his paternal family, at the expense of an exclusion of the heirs-general of his ancestor the seventh Earl of Derby; and finally, as if at all events the Act of George the First authorizing the Treasury to purchase the Isle of Man for the Crown would effectually sanction the contract of sale thus entered into. But, as I see the case, instead of reality, there was nothing but groundless supposition in all this; and it was from beginning to end a series of errors, into which the legislature seems to have been betrayed by the precipitate manner of transacting the sale. I mean to say, that in my opinion, James Duke of Atholl, the present duke's grandfather, could neither alienate the Isle of Man nor newly model the succession of it,-that all the feoffments and conveyances of the Island in his time were nullifies and waste-paper; that the trust he created for sale of the Island was void; and consequently that the agreement made by the Treasury for purchase of the Island was made with persons who were not authorized to sell; and moreover that the entail directed by the Act of the present king to be made of the lands to be purchased with the £70,000 purchase money, was an infringement of the rights of the heirs-general of James the seventh Earl of Derby." After referring to the title of the House of Stanley to the Island, and the Act of James the First establishing the succession, and the clause in restraint of alienation contained in it, he proceeds :- 'It is this clause of perpetuity, which as I conceive, frustrates and makes void all the settlements and conveyances of the present Duke of Atholl's grandfather, and consequently subverts the authority to make the agreement for sale of the Isle of Man, to execute which the Act of the present king was passed. The beginning of the clause is expressed as if it only aimed to protect the entail on the heirs male of the bodies of William Earl of Derby and of his two sons James Lord Stanley and Robert Stanley; for it simply negatives the power of alienation in those two sons and in the heirs male of the bodies of them and of Earl William himself. Had also the prohibition to alienate stopped here, it would have left James Lord Stanley and his heirs-general at liberty to dispose of the remainder in fee in the Island limited to him at his and their pleasure, with no other check than that arising from the necessity of a licence from the Crown in respect of the property's being held of the Crown immediately and in capite. But the clause proceeds, and its language becomes more large and expanded. The subsequent words not only include the other persons by this Act mentioned and appointed to enjoy the Island, but, what is more important, prescribe that the pro- perty shall remain, on default of the issue mentioned, `to the right heirs of the said James Lord Stanley, as before b y this pct is appointed'; adding immediately after, `that all gifts, grants, alienations, bargains, sales, conveyances, assurances, and acts, done or to be done or made to the contrary shall be utterly void, fiitstrate, and of none effect.' These latter passages in the clause of perpetuity are what bring the heirs.general of James Lord Stanley within the compass both of its protection and restraint; that is, first, those heirs-general are protected by the clause against all alienations by him, or his brother Robert, or by any issue of them or their father; and then in restraint of the heirs-general themselves, as well as of Earl William's two sons and his and their issue male, the clause nullifies all alienations and acts, of every kind whatever, contrary to any part of the succession prescribed by the Act. Here then it is not the alienation of any particular persons which is made void; but it is generally and universally every alienation, without regarding by whom made. In other words, the clause of perpetuity, by thus enlarging itself, at last expressly guards the whole of the succession established; that is, not merely the succession to the estates tail created, but both that succession and the succession to the remainder in fee simple limited to James Lord Stanley; not merely the heirs in tail, but them and the heirs-general equally; and not only the heirs-general against the issue male, but the heirs-general against each other, and as amongst themselves." (1 Hargrave's Jurisconsult Exercitations 148.)
The succession as to the property to be purchased with the consideration money of the sale of the Island, set up by Duke James was confirmed by the Revesting Act, 6 George III. cap. 26, but until such confirmation the deeds of Duke James did not in anywise affect the sovereignty and government of the Island, they being of no force whether by reason of the restraint against alienation contained in the Act of King James I., or if there had been no such restraint, by reason of the want of a licence from the Crown of England to confirm the alienations.
The accession of George III. to the throne of England took place on the 25th October 1760, and on the 12th November following he was proclaimed at Castletown as " supreme Lord of this Isle," " to whom the supreme dominion and sovereign right of this Isle" had rightfully come. This is the first occasion on which notice is taken in the insular records of the accession of any English Sovereign (so far as I can discover,) in fact no official record appears to have been made of the proclamation of the accession of any of the Lords of the Island. The following is the proclamation made on this occasion (Liber Scaccar. 1761) ; it is signed by Basil Cochrane, Esq., Governor, and by the officers and other inhabitants :-
"Whereas it has pleased Almighty God to call to his mercy our late Sovereign. Lord King George the Second of blessed memory, by whose decease the Imperial Crown of Great Britain, France, and Ireland, and also the supreme dominion and sovereign right of this Isle and all other his late Majesty's dominions, are solely and rightfully come to the high and mighty Prince George, Prince of Wales, We therefore the Governor and officers civil and military, and other inhabitants of the said Isle, Do now hereby with one full voice and Consent of tongue and heart publish and proclaim, that the high and mighty Prince George, Prince of Wales, is now by the death of our late Soverein of happy memory become our only lawful and rightful Liege Lord George the Third, by the Grace of God King of Great Britain. France and Ireland Defender of the Faith Supreme Lord of this Isle and all other his late Majesty's territories and dominions, To whom we do acknowledge all faith and constant obedience, with all hearty and humble affection, beseeching God by whom kings and queens do reign, to bless the Royal King George the Third with long and happy years to reign over us. Given at Castle Rushen this twelfth day of November 1760.
"God save the King!
"BASIL COCHRANE," &C., &C.
Duke James died as stated in the Chronicle on the 8th January 1764, in the 28th year of his reign as Lord of Man.
Lady Charlotte, Baroness Strange, the 2nd of the House of Murray who had sovereign rule of Man, succeeded her father the Ist Lord on the 8th January 1764. She was his only surviving child, a son and another daughter having died without issue in their father's lifetime. (Burke's Peerage 42.) At the time of her accession she was the wife of her first cousin, John Murray, Esq., who became 3rd Duke of Atholl as nephew and heir male of the 2nd Duke, his wife, the Lady Charlotte, being entitled to the Barony of Strange and Lordship of Man as heir-general of James I. the 7th Earl of Derby.
On her accession Lady Charlotte with her husband issued the following order as to the officers in the Island, (Liber Irrot. 1764.) As to the declaration contained in it with respect to offices being void, see notes on § 25 :--
"I, Charlotte, Lady of Mann and the Isles, Baroness Strange, with consent of the Honourable John Murray; of Strewan, my husband.
" Whereas it hath pleased Almighty God to call to his mercy the most noble James, Duke of Atholl, Lord of Mann and the Isles, Lord Strange, &c. our late father, by whose decease the Lordship and Dominion of Mann and the Isles, 8c., £ce., are rightfully devolved and descended to me the said Charlotte, Baroness Strange, and also all places and commissions, civil and military, in the said Isle, do become void. Wherefore; and for the present pence rnd safety and good government of the said Isle, We, of joynt consent, declare that our will arid pleasure is that John Wood, Esquire, Governor, and all the other Officers, Judges. and Magistrates, civil and military, of the said Isle, who were in possession of any office, post, commission, or publick employment, at the time of the demise of the said James, Duke of Atholl, our father, be and continue in the execu- tion, exercise, and possession of their ernplocuients therein severally and respectively, giving and hereby granting to them and each and every of theirs full and lawful commission, power, and authority to perform, execute, and discharge their several respective trusts, offices of duty s, employments, and charge according to the Laws and Constitution of the said Isle, and the Oaths to be respectively administered unto them by and before the said Governor or other proper officer. And they and every of them to continue to have and receive their usual and accustomed salaries fees and perquisites. And this general commission to continue until our further will and directions be signifyed in that behalf. Given under our hands and seals this 12th day of January 1761. "CHARLOTTE STRANGE. (L,s.) "JOHN MURRAY. (L.S.)"
The Revesting Act of 1765 recites that on the decease of Duke James, Duke John and the Lady Charlotte, Duchess of Atholl and Baroness Strange, his wife, became entitled to the Island, So. "under and by virtue of the said recited indentures of feoffment [see notes on § 25], and according to the estate and interest thereby limited to them respectively therein." This statement is correct so far as it might have meant that the Duchess, and in her right the Duke, were the persons who were entitled under the feoffments supposing them to be valid, but it is not correct if it meant that the feoffments constituted their title to the dominion of Alan. The title of the Duchess was (as before stated) in respect other being heir-general of the 7th Earl of Derby. And this was recognized by two subsequent Acts of Parliament, viz. 45 Geo. III. cap. 123, by which in consideration of the insufficiency of the consideration money paid for the Island in 1765, an annuity is secured to John, 4th Duke of Atholl, and to " the heirs-general of the 7th Earl of Derby;" and 6 Geo. IV. cap. 34, which enables the Treasury to treat for the purchase of their remaining rights in the Island with John, 4th Duke of Atholl, and the heir-general for the time being of James, 7th Earl of Derby." (See these Acts in Appendix No. 1. to the Notes.) No notice is taken in either of these Acts of the feoffments made by Duke James.