But avoid foolish questions and genealogies, and contentions, and strivings about the law; for they are unprofitable and vain.
Tit 3. 9.
As mentioned in the Introduction, the power of the Established Church lasted longer on the Island than in England. This was particularly true in the matter of proving wills etc. that only passed into civil jurisdiction in 1888.
The three major Ecclesiastical courts were:
Ashley however points out that there was no hard and fast distinction between the various courts nor always of personnell - the division of business dating from c.1700 was that 'The Jurisdiction of the Archdeacon .. begins on St Simon and Jude's day (28 October) and ends at the feast of St Mark (25 April)" - all wills within that half year belong to and are recorded in the Ardeacon's Register and those of the other half year in the Lord Bishop's..." It would appear that the lower courts needed both native speakers, provided by one of the two Vicars General who, at that time, would be drawn from the Clergy and those with a wider knowledge of canon law as supplied by the Archdeacon or Bishop. The Consistory court generally consisted of the Bishop with all clergy of the dioceses. It would appear that three circuits were made (though the court did not sit in all parishes) - May, Michaelmas (Nov) and Candlemas (February) - the summer and autumn records often headed Curia Testamentalis (ie concerned with wills) whilst the winter one is headed Curia Correctionis (ie concerned with punishments) and especially so that any penances could be completed in time for Easter. A similar scheme is found in early English spiritual courts and is thought to derive from a twice yearly visitation by the Archdeacon and an annual visitation by the Bishop - the small size of the Island allowing a more informal mingling of responsibilities.
The customary laws were:
Witchcraft and sorcery.
Adulterers, fornication, blaspheamers, drunkards and such like.
All who carry bells or banners before the dead or who pray upon the graves of the dead. [anti-popery laws]
Any person keeping a market on the Sabbath or otherwise profaning the same
Anyone not attending church.
Family historians are often particularly interested in those for fornication (illicit sexual activity by a non-married individual) as those women producing illegitimate children would be 'presented' together with the putative father.
A number of extracts from these presentments were published in Journal of Manx Museum - e.g. Andreas 1665;
In the Synodal Statutes of Bishop Simon, 1229, we find the following:
Of the Proving of Wills.
For the proving of Wills let no fees be exacted beyond thirty two pence in all; but from the same sum, something for the poor there should be subtracted a certain portion of the goods
Respecting the Effects of Persons dying Intestate.
The effects of the Intestate should be administered subject to the will of the Bishop of the diocese, or, in his absence, of his Vicar-General
Thus wills were for long considered to come under the Spiritual Courts - part of an act of 1609 reads:
We also find, that by the antient Lawes of this Isle the Viccars General, or Officirs of the Spirituall Courts, ought not to intermeddle with any Manner of Debt, or for proving of Wills longer then of a Twelvemonth and a day, taking Beginning from the day of the Death of the Party, and afterwards it is to be heard and tried in the Temporall Court. And further, if any Debt be challenged in the Temporall Court to be due from any dead Person, we find it is not recoverable in Law, unless the same was within the Twelvemonth and the Day claimed for in the Spirituall Court, as may appear by antient Records.
[Lex Scripta 1819 p91]
Thus the church courts had to deal with such matters within the twelvemonth otherwise the case (and any fees arising from it) was transferred to the Lord's court. To avoid such problems the Ecclesiastical court met at least every six months - one was under the Bishop (or more usually his delegated Vicar General) and the other was under the Archdeacon. This was of no import at the time but as the records were filed under two different courts it can make it difficult to find a will.
Complaints were made in 1643 when Lord James was playing a personal role in Island affairs; the first concerned the making of wills:
Itm. Whereas it is complained of, that the Ministers of the Parishes have taken xijd. for the Writing of a Decedts. Will, whereas the Party himself, or his Friend for him, would have written it for little or nothing; and that the Church hath sometimes refused to accept of and prove such Wills, except they were made and written by the Minister's Hand; his Lordship's Order is, That every Man may make, or cause to be made, his own Will, by whom he shall please to direct; and if he desire the Minister to make it, that he shall agree with the Minister as he can for the Writing thereof, and not otherwise.
A second complaint was how intestates were to be handled:
Itm. Whereas when a Man dyes intestate his Goodes by the Law, ought to fall to his Children unmarried equally amongst them; yet, contrary to this, the Church sometimes use to decree the whole Teame of Oxen and the Cropp of Corne to the eldest Son, which commonly is more worth than all the rest of the Goods; it is therefore ordered by his Lordship, that if the Church hereafter shall make any such Decree in favour to the eldest Son, to the Wrong of the rest of the younger Children, that Decree shall be void, and the Goods to go equally amongst all the Children according to the Law.
A third complaint was in the 'fees' extracted by the church for their services in handling wills [Corps presents are the effects or money that were liable to the church out of the deceased 's (Deceadt) estate]:
Itm. Whereas it is a great Complainte of the Countrey, that the Clergy and Proctors use to take viij s. for a Corps present out of a Deceadts. Goods of the Value of iiijl and proportionately after that Rate forth of Goodes under that Value, it is ordered by his Lordship, That noe Corpspresent shall be hereafter taken by the Clergy or Proctors of spirituall Livings of any Deceadent's Goods under the Value of vjl xiij s. iiijd; and of that Value and under the Value of xxl., they shall take but xxd. for the Corpspresents; and if the Goods be of the Value of xxl. and under the Value of xll., they shall take for the Corpspresents but iijs. 4d.; and out of Goodes of the Value of xll. and above, they shall take vjs. viijd. and no more, be the Goods of what Value soever they may be; and that none shall pay a Corpspresent but such as, at the time of his or her Death were Housekeepers and Masters of a Family; and that no Infant or Child under the age of fourteen Yeares, nor no Woman under the Covert Baron, shall pay any Corpspresent, and if any Clergyman or Proctor take more for a Corpspresent, or otherwise than as aforesaid, he shall forfeit so much in Value as he shall take above the Summ before limitted, and also vj s. viijd. to the Party grieved, to be recovered by Accon of Debt at the Common Law; but it shall be lawfull for any spirituall Person to take any Summe, or others Thing, which by any Person dying shall be given or bequeathed unto him.
[Lex Scripta 1819 p122/3]
A non-cupative (from Latin cupidio to desire) will was one not made by the deceased but put together, from their 'known' wishes after death. They can be distinguished by the use of the third person in expressing desires (rather than the first person one would expect). It is obvious that such a scheme was open to all sorts of abuse as seen in the following act of Tynwald promulgated 1777.
An ACT to prevent Fraud and Imposition in the making of Non-cupative Wills.
WHEREAS the custom of making of Non-cupative Wills prevails almost generally in this Isle, from which People are induced to leave the Settlement of their Affairs till their last Moments, when they are unable or unfit to make a proper Disposition thereof, which frequently gives Occasion to much Dispute and Litigation, and tends to introduce Perjury and other Enormities; be it therefore enacted by the Authority aforesaid, that hereafter no Non-cupative Will shall be valid, whereby Lands are devised or personal Estate bequeathed, that is not proved by two Witnesses at the least who were present at the making thereof, and that the Testator at the Time of pronouncing the same being of sound and disposing Mind, Memory, and Understanding, did bid the persons present, or some of them, bear Witness that such was his Will, or to that Effect; and that six Months after the Testator's speaking the pretended Testamentary Words no Testimony shall be received to prove any Non-cupative Will, except the said Testamentary Words, or the Substance thereof, were committed to Writing within ten Days after the making or publishing of the said Will; and that no Letters Testamentary or Probate of any Non-cupative Will shall be granted by any Court till fourteen Days at the least after the Decease of the Testator be fully expired; nor shall any Will whatever be at any Time received, unless Notice has been given to call in the Widow Relict, or next of Kindred to the Deceased, to the End that they may object if they please; nor shall any Will in Writings concerning any Goods or Chattles, real or personal, be revoked, altered, or changed in the Whole, or in Part, by any Non-cupative Will, except the same be in the Life-time of the Testator committed to Writing, and read to him or her, and allowed or approved of and so proved by the Oath of two Witnesses at the least, any Law, Custom, or Usage to the contrary hereof in any wise notwithstanding.
This act was one of a number introduced to 'tidy up' known problems in Manx Law or Administration, including distribution of Intestates - within the same group is one to fix legal fees! Such fees were found to be inadequate and a new act of 1813 increased them .
Note carefully that a cupative will is not necessarily one that was drafted in advance by the testator - as majority of Manx were illiterate until the 19th century this would not be likely but is one that was witnessed by competent witnesses at the time of uttering the will (such witnesses in general could not be beneficiaries of the will). A non-cupative will is one where there was no such witnessed utterance but merely a statement that the wishes of the deceased were known. Thus although a will post-1777 might be expressed in the third-part (he willed etc.) rather than today's customary first party ("I hereby ...) this does not make it a non-cupative will, merely one uttered rather than written by the testator; such uttered wills are common until literacy made them unnecessary.
This is treated in more detail elsewhere in my section on Wills and Inheritance.
Because of the continuation in Mann until c.1880 of the role of the Church in proving wills they are found in records of the Ecclesiastical courts - the only complication is that wills were proven in either the Archediaconal or Episcopal Courts depending on the time of year, and which court was in session. All these records are on Mormon microfilm but are indexed separately - a combined index was produced by the Manx Museum/IoM FHS which is also available.
Brian Lawson has put together a very convenient on-line index to the wills in both courts - <www.iomfhs.im>. (follow research link) - many are transcribed under wills + many more summarised.
These indices are to the testator - an index of all names mentioned in such wills is currently under construction by volunteers from the IoM FHS.
Some wills have been published - see for example those of David Murray, 1702; Edward Harrison 1786; Anne Bentham, 1822; Jane Cregeen 1831.
That of William Clucas which was challenged provides a good example of the large amount of information available (as well as a fascinating vignette of late 18th life).
A collection (over 1500) of transcribed wills is available on-line - as are summaries of well over 10,000.
A Ashley The Spiritual Courts of the Isle of Man, especially in the Seventeenth and Eighteenth Centuries. The English Historical Review vol LXXII #282 pp 31/59 Jan 1957.