[from Advocate's Notebook, 1847]

THE ADVOCATE’S NOTE BOOK.

Sir EDWARD COKE, Lord Chief Justice of the King’s Bench in the reign of James I., was born in 1549, and died in 1634.

In the fourth part of his Institutes of the Laws of England.— cap. lxix, page 283, writing upon the subject of the Isle of Mann, and of the law and jurisdiction of the same—he says :— " This Island hath been an ancient kingdom. The Lord Scrope forfeited it to Henry IV. for high treason, and Henry IV. then granted it to the Earl of Northumberland."

" In this little kingdom there are two castles, seventeen parishes, four market towns, many villages, and a bishopric."

" Anno 5th Henry IV., the Earl of Northumberland was attainted of high treason, and by act of parliarnent — 1st March, 7th Henry IV. — it is enacted that the king should have the forfeiture of his lands and tenements. And afterwards—in 7th Henry IV.— the king granted the Isle of Mann — una cum patronatu episcopatus —to Sir John Stanley, for life ; and afterwards, in the same year, to him and his heirs."

In a previous part of the same work, at page 201, treating of the subject of "the order, survey, and governance of the Court of Wards and Liveries" — he says :—

" The general words of the act respecting this Court of Wards and Liveries, extend not to Ireland, for that it is a divided and distinct kingdom, and hath a proper seal."

" Nor to the Isle of Mann, because it is no part of the realm of England, and out of the power of the chancery of England, and not bound by our parliament of England but by special name."

NOTE. — Mich. 14th Henry VIII. per Brudnel, Brook, and Fitzherbert in Kelwa~/’s Reports. And so it was holden Trin. 40th Eliz. by Popham, Anderson, and Periani, upon a case referred to them by the Lords of the Council, between the Earl of Derby and the heirs general.

This case is then referred to at page 273. After noticing the grant to Sir John Stanley, 7th Henry IV., Lord Coke then proceeds to say—

"This Sir John Stanley had issue Sir John Stanley, Knight, who had issue Sir Henry Stanley, Lord Chamberlain to King Henry VI., who created him Lord Stanley, who had issue George, who had issue Thomas, whom King Henry VII. created Earl of Derby, to him and the heirs male of his body, who had issue Thomas, who had issue Edward, who had issue Edward, who had issue Henry, who had issue Ferdinando and William ; Ferdinando had issue Anne, Frances, and Elizabeth, and died without issue male. And between these daughters, being heirs general, and William Earl of Derby, being heir male, a question was moved concerning the title of the Isle of Mann, which was referred by Queen Elizabeth to the Lord Keeper Egerton, and to divers lords of the council, and to ‘ Popham, Chief Justice of England, Anderson, Chief Justice of the Common Pleas, and Periam, C.B., who, Trin. 40th Eliz., upon hearing of the counsel on both sides, and mature deliberation, resolved five points"— 1..— "That the Isle of Mann was an ancient kingdom of itself, and no part of the kingdom of England."

2.—" They affirmed a case reported by Kelway, Anno 14th Henry VIII., to be law, viz., Mich. 14th Henry VIII.., an office was found that Thomas, Earl of Derby, at the time of his death was seised of the Isle of Mann in fee, whereupon the Countess, his wife, by her counsel, moved to have her dower in the chancery, but it was resolved by Brudnell, Brook, and Fitzherbert, justices, and all the King’s Council, that the office was merely void, because the Isle of Mann was no part of the realm of England, nor was governed by the law of this land, but was like to Tourny, in Normandy, or Gascoigne, in France, when they were in the King of England’s hands, which were merely out of the power of chancery, which was the place to endow the widow of the king, &c."

3.—" It was resolved by them that the statute Wm. II., De donis conditionalibus, nor of 27th Henry VIII. of Uses, nor the statutes of 32nd and 34th Henry VIII. of Wills, nor any general act of parliament, did extend to the Isle of Mann for the cause aforesaid, but by special name an act of parliament may extend to it."

After the Act of Revestment, whereby the Duke of Athol sold and surrendered to the King of England certain of his rights in the Isle of Mann, the style of the Tynwald Court was changed, and in the last Act of Tynwald, signed and assented to by his Grace the Duke of Athol, the style was as follows

Insula Monae.

" At a Tynwald Court, holden at Castle Rushen, the thirteenth day of May, 1763, before the Hon. John Wood, Esquire, governor of the said Isle, the Council, Deemsters, and Keys, in Court assembled."— An Act for, &c. &c.

The assent of the lord was signified in the following words

Dunkeld, the 28th May, 1763.

" I do assent to, allow of, and confirm the before written Act, &c., intituled &c. according to my prerogative within the Isle of Mann—and I do order that the said Acts be proclaimed upon the Tynwald Hill, according to the ancient form and custom in the said Isle."

In the first Act passed after the Revestment, and all subsequent acts of the Manx Legislature, the date of the reign of the Sovereign of England is introduced in the style of the court.

ISLE OF MANN TO WIT.

"At a Tynwald Court holden at Castle Rushen, the 18th May, in the sixteenth year of the reign of our Sovereign Lord George the Third, by the grace of God, of Great Britain, France, and Ireland, King, Defender of the Faith, and so forth, and in the year of our Lord, &c. (as before.)"

The royal assent was granted in the following words :—

" St. James’s, June 7th, 1776.

" Sir,

" I have received your letter, dated the 22d of May, as also the Act of Tynwald for the better making, repairing, and amending of the Highways ; the draining of the Fens and Marshy Grounds ; the making of Stone Walls and other Boundaries ; and for the more effectually preventing of Trespasses, which I have laid before the King. I return the said Act herewith inclosed, and am to signify to you His Majesty’s Approbation thereof.

" I am, with great Truth and Regard,

"Sir,

" Your most obedient humble Servant,

" SUFFOLK."

" Major DAWSON, Lieut.-Governor of the Isle of Man."

The Act of Revestment in no way interfered with the right of the Insular Legislature to enact their own laws. The final assent required thereto was transferred from the Duke of Athol, as Lord of the Isle, to the Sovereign of Great Britain, as Lord Paramount and King of Mann ; but the law of England and the Acts of the British Legislature, except as to mere fiscal regulations, and some few other specific matters, not necessary to mention here, had no further force or operation in the Island after the revestment than they had before.

By a subsequent Act of Tynwald, passed on the 22nd of July, 1777, many old laws and customs were revised, altered, amended, or repealed, and many entirely new regulations were made and enacted. The preamble to the series of Acts for effecting these purposes is as follows :—

"Whereas many of the Laws and Customs of this Isle have been found not only to be defective, but in many Instances impolitic and very inadequate to the Purposes of good Order and Government, it being now thought expedient to repeal all obsolete and useless Laws, which, however properly adapted to more early Ages, are now become insufferable and oppressive, and to institute a new Arrangement and Connection of the most wholesome Laws, retaining every Part possible of the ancient Constitution, and being made to bear the nearest Resemblance to the System of English Jurisprudence, which is conceived may greatly conduce to the Honour, Welfare, and Happiness of this Isle."

It will be seen that this " preamble" contains a mere suggestion of probable benefits to be derived to the Island from instituting new laws, bearing the nearest resemblance to the system of English jurisprudence, but retaining every part possible of the ancient constitution of the country. The suggestion had no binding force upon the Legislature, and they were at liberty to reject or adopt it as they thought proper ; and accordingly, in the series of enactments, ( fourteen in number) succeeding that preamble, it is easy to trace to what extent our Legislature adopted the spirit, but departed from the letter of the English law.

No other Act of the Insular Legislature touches upon this subject.

I have thought it advisable to introduce the following " Notes of cases heard and determined in the Insular Courts" by these preliminary observations, for the purpose of shewing the ancient independence of the Kingdom of Man—that the Act of Revestment did not, in any way, interfere with the full enjoyment of our ancient institutions, customs, and laws, and that no Act of the Insular Legislature has added a single fetter to our freedom in these respects.

Nevertheless, in our oral pleadings in the various insular tribunals, in all new cases we look for guidance to the decisions of the English Courts ; not because we hold them binding upon us, but from a due regard to the great wisdom and experience of the English Judges. Should such decisions, however, be in any way repugnant or inimical to our Insular position or circumstances, Our local interests or requirements, it would be equally competent to look for direction to the Pandects of Justinian — the Code Napoleon — or the more proximate and (to us) clearer light of the law of Scotland.

I trust the reader will pardon me for thus stating what I conceive to be the only true ground upon which an English authority should be quoted in a Manx Court of Justice.