[from Advocate's Notebook, 1847]
It appears to the Editor that a brief sketch of the state of the Common and Statute Law of the country, and of its publication will be a suitable introduction to this little Volume.
Until the beginning of the fifteenth century, when Sir John de Stanley became King of Mann and the Isles, no written laws, or any accounts of judicial proceedings are to be found upon our records.
In the year 1422, Sir John de Stanley, the Second King of Mann of that name, being then in the Island, "asked his Deemsters and the xxiij, the laws of Mann" in certain points.Mills 14.
The following is amongst the answers given
"As to the writing of laws there never was any written since King Orryes days, but in the time of Michael Blundell, that we have any knowledge of."Mills 18.
It would appear as if the King was much struck with this serious defect, and fully impressed with a sense of the importance of " written laws," for we find him, upon the same occasion, making the following, amongst other orders : " And also that every plea that is between party and party pleaded, be written out of the Court Rolls, that it may he of record against such time as the like chance falleth, what judgment was given in that matter."
" Alsoe that all greate matters and high points that are in doubt, ever as they fall, I will that my Lieutenant, or any of the Councell for the time being, take Deemsters to them, with the advice of the elders of your land of Mann, to deem the law truly to the parties as they will answer to roe thereof. And that all doubtfull points be always registred upp, and laid in my Treasurie, that it may be ready when such a chance falleth, that one doome or judgment be not given at one time, one way, and another time contrary."
" Alsoe that the Clearke of the Rowles write all things plaine with full letters, and the judgment thereof in parchment, that if any like cause come another time, it may be found of record in the Treasury of all manner of questions asked and given in by the Deemsters and Twenty-four Keys, that it may be of remembrance in the Treasury, upon paine of forfeiture of the Clearkes fee." Mills 25.
In pursuance of these orders, the answers of the Deemsters and Keys, with others previously given, were committed to writing and recorded.
This system of question and answer, by way of eliciting what the law was on any particular points, was usually followed by " Ordinances," " Orders," and " Resolutions," agreed upon by the Lord, his officers, and the xxiiij ; and when thus sanctioned they were committed to writing and recorded. These records are now held to be declaratory of the Common Law of the land in the matters to which they refer, and of force, except where they have been altered by Statute, or rendered obsolete by time and change of circumstances.
This method of declaring old laws and making new ones prevailed for two centuries and upwards ; but the manner of yen-fying the laws by the signatures of the consenting parties, being various and uncertain, led to continual disputes as to what was, or was not the law. Similar doubts are entertained to the present day as to some of the ancient ordinances.
From an Act of Tynwald of the 24th June, 1637 (the title of " King" having in the meanwhile been dropped by the Lords of the Isle), we obtain evidence of a more formal mode of verification being adopted. At a Tynwald Court then holden, various matters were declared to be "enacted, established, and confirmed, by the Sovereign Liege Lord of the Island, James, Lord Strange, and by the Barons, Twenty-four Keys, Commons, and Inhabitants of the Island assembled at the Court." The laws thus passed were signed by the Governor, Council, Deemsters, and Keys, and were after-wards submitted to "the Lord," who certified his approval, and signed it at foot thereof.Mills 91.
This more systematic mode of verifying the passing of laws was continued through the two subsequent ages, and (with more or less of variation ~1fl(l improvement,) the form thus first appearing on the Statute Book in 1637, is the one in use at the present day.
By these progressive means certain portions of the law were, in the 1 5th and 1 6th centuries, extracted from the breasts of the Deemsters and Keys, and committed to writing. In the last two centuries a number of Acts of Tynwald have been passed in a more formal manner, and, after due publication upon the Tynwald Hill, have become the law of the land.
This is a brief sketch of the compilation of that written law, by which the country is governed, and it remains now, as briefly, to shew what steps have been taken to give it a more available and durable publication, than the reading thereof in Manx and English on the Tynwald Hill, as customary on the day of publication.
From 1696 to 1713, John Parr, Esq., held the office of Deemster, and during that period compiled "An Abstract of the Laws, Customs, and Ordinances of the Isle of Mann." This work was never printed, and only a very small number of manuscript copies have been made from it, although it contains much valuable information as to the state of the law in his day.
In 1792, Mr. Thomas Stowell, afterwards Clerk of the Rolls, but then an advocate at the Manx Bar, published a small book, of 170 pages, containing an abridgment of the " Statutes and Ordinances," alphabetically arranged. This little work, useful even now, must have been invaluable then, as the first printed book of Manx Law.
In 1797, Mr. Briscoe, then a printer in Douglas, published an edition of " The Statute Laws of the Isle of Mann" up to that period.
In 1805, the Commissioners who, in 1791, had been appointed by his Majestys Government to inquire into "various points connected with the Isle of Mann," published their report, containing, amongst other things, a copy of the Statutes down to 1777, some few remarks upon certain parts of the law by the Deemsters, Clerk of the Rolls, and Attorney-General of the Island, together with much valuable statistical and general information, but the latter referring chiefly to the past and then existing rights of the Duke of Atholl.
In 1811, Mr. Johnstone published "A View of the Jurisprudence of the Isle of Mann"; a book which does not quite fulfil the promises of the title page, but yet contains some valuable information.
"In 1819, Mr. George Jefferson published "The Lex Scripta, or the Statutes and Ordinances of the Isle of Mann," and in 1820, an Appendix thereto.
In 1820, Mark A. Mills published an improved edition of the Manx Statutes, together with extracts from English Acts of Parliament referring to the Isle of Mann.
Such were the only available sources of information in print when the compiler of these pages first began to study the law, in 1823, and it may not be thought too disparaging to say, that they afforded but a scanty supply t6 allay that ardent thirst for legal knowledge, which inclination induced and necessity increased.
In 1832, Mr. George Geneste published a continuation of the Statutes down to that period, with the rules and regulations of the Insolvent Debtors Court, and an Appendix of English Statutes affecting the Isle of Mann.
In 1837, Mr. Jeffcott continued the Statutes down to 1836, and also printed a few rules of the Chancery Court.
To this publication he added " An Analysis of the Law of the Descent of Hereditary Property in the Isle of Mann." This document was drawn up by the late Clerk of the Rolls, John MHutchin, Esq. Its perspicuity is equal to its brevity, and, short as it is, it nevertheless contains, in nineteen clauses, a very fair epitome of the leading features of our Real Property Law. This gentleman held the office of Deemster, and afterwards of Clerk of the Rolls for twenty-seven years ; and it must ever be a matter of regret, that leisure was not afforded to him in his latter days, to apply the powers of his intelligent mind to the removal of some of the anomalies that subsist in that branch of the law which he has so clearly defined.
Thus is summed up the entire catalogue of books which have been published upon the subject of Manx Law up to the present day, and it may throw some light upon the sufficiency of these books for practical purposes, to state a simple fact. When the Editor was first articled as a student at law, he was confined to his room three months by a sprained knee. He passed nearly the whole of the time in making marginal references to Mills Laws, and compiling a digested index of the Statutes. Upon recovery he hastened to the Courts with his head well crammed with the legal lore thus laboriously obtained, and his Statute Book under his arm. Upwards of one hundred cases were " heard and determined" or " otherwise disposed of," but not one single reference was made to the well-prepared Statute Book. Subsequent attendances produced nearly the same result, and the Editor soon found that the great bulk of the causes in the summary Courts were decided upon principles of Common Law understood by the Bench and the Bar, but a mystery to the uninitiated. He inquired of his master for " reports of cases" whence he might learn the law, but was informed there were none,that the object could only be attained by a careful watching of the proceedings, and by preserving notes of the cases decided. This course was immediately adopted, and these " Notes and Minutes," which were originally taken only for the Editors own professional purposes, are now humbly offered to the public. The materials for another and a larger volume are also in his possession, and as quickly as the engrossing cares of business will allow, he hopes to prepare them for the press.
Decisions and judgments of Courts are as essential to the most erudite lawyer or profound judge, as the buoys and beacons of a difficult navigation to the most skilful mariner or experienced pilot. Some guide to safety, others warn from danger. The secure channel and the deceitful shoalthe deep water and the sunken rock lie side by side, the extended surface of the unbuoyed sea covering both alike. Not one whit less distinguishable upon the surface, are the boundaries of truth and error. The refined subtleties of specious argument approach so near the semblance of truth, that with all the advantages of gifted wisdom and practical experience, it is often hard to distinguish between the right and the wrong, the just and the unjust.
The administration of the law, like every science, is, in reality, neither more nor less, than the investigation of truth. But if the philosopher may err in his conjectures without much resulting injury, the Judge cannot ; for he must act as well as think. Hence the value of facility of access to previous decisions to assist his judgment in matters of difficulty, and the importance of a standard of reference, to prevent his time being wasted in mere matters of form.
When the Editor thus considers the vast importance of what is required for both Bench and Bar, he cannot but feel fully sensible how little is accomplished by this small volume ; but he ventures to hope it is only a stepping stone in the way of advance, and that its very defects and errors will lead to future good. Stimulated by this example, he trusts that some of the younger members of the Bar, not yet overwhelmed with business, will dedicate their talents and their time to improve upon this humble beginning.
It is also the Editors earnest hope that this publication may lead to those improvements in our laws, which from the change of times and circumstances, they manifestly require. He abstains from obtruding upon the public his own crude notions upon the subject. A Committee of the Legislature is now deliberating thereon, and he only ventures to express a wish that the "Committee" were converted into a "Commission," with full power to call upon the agricultural, commercial, trading, labouring, and professional branches of the community, for every information and suggestion upon those points on which each class may be most conversant. Thus a body of facts may be obtained, and the entire intelligence of the country enlisted in the one great object of the revision of the law, that so, with due caution and wise deliberation, the Legislature may afterwards proceed with firmness to repeal the bad and useless, amend the imperfect, supply the defective, and preserve the good.
The Editor cannot conclude these observations without expressing his thanks to Lawrence Adamson, Esq., for his great kindness in helping him to correct the press, and exclusively preparing the index.