[From Short History of Transactions in the IoM (or 'Blue Book'), 1825 by Wm Roper
It order to understand the nature of the disputes between his Grace the Duke of Atholl and the House of Keys, in the Isle of Man, it is necessary to take a short view of the history of that Island, so far as it relates to those questions which have subsisted for above half a century, and which still do continue to exist, between his Grace and that branch of the Legislature.
For this purpose, it does not seem necessary to go farther back than the year 1704, when the Act of Settlement was passed; and after taking a view of the situation of the Island, previous to the passing of that Act, and considering the alterations effected by it, we shall the better understand the transactions which have occurred since.
It seems unnecessary, to my present purpose, to recur back for his Graces title to the reign of Henry the Fourth, or to trace its history from that day, through the succeeding monarchs, down to and through the first seven years of the reign of James the First. It is sufficient that, by a grant from that king, in the eighth year of his reign, confirmed by an Act of Parliament, passed in the same year, the Monastery and Priory of Rushen and Douglas, and the Isle of Man, were assured and established in the Derby family for ever, unalienably and in strict limitation. down to and through the first seven years of the reign of James the First. It is sufficient that, by a grant from that king, in the eighth year of his reign, confirmed by an Act of Parliament, passed in the same year, the Monastery and Priory of Rushen and Douglas, and : the Isle of Man, were assured and established in the Derby family for everunalienably and in strict limitation.
It seems probable, that the history of the Island nearly corresponds with that of the most ancient and more extensive feudal states of Europe, in regard to the first settlement by the grantees and the subsequent struggles for independence by the lieges or feudal tenants, until at last the rights of each were settled. and established by law ; and securities were provided for protecting the tenants in the rights they had obtained, and, at the same time, for checking their further encroachment upon the property of the feudal chief.
Facts will, however, prove that in the shifting of the scene in the Isle of Man the tenants have been treated with unprecedented indulgence, and their interests have, at all. times, been protected by the Lords, who have themselves at length been. stripped of their rights, without having retained the legal means of redress, which have been so amply secured to the people.
Previous to the passing of the Act of Settlement, in 1704, the Earls of Derby were possessed of the lands, farms, and properties of the Island, subject to such leases as were made by them and their ancestors, which leases, at that time, never exceeded three lives, or twenty-one years. .
In 1643, a commission was granted by James Earl of Derby, to lease his farms and possessions in the Isle of Man, for three lives, or twenty-one years ; and it is clear, that at the date of that commission and from thence to the year 1703, most, if not all, of the Island was let, and several who would not agree to the rents demanded, were turned out, and the lands let to others. It is, therefore, evident, that the people who came in and took those lettings, could not previously have: had customary estates of inheritance ; from whence there can be no doubt, that in 1704, at the passing the Act of Settlement, the Derby family were possessed of all the land of the Island, subject to the leases granted under the commission of 1643. Lord Derby not having had any power to make leases longer than for lives, much less to grant leases renewable in perpetuity, at settled fines, as he undertook to do by joining in the Act of Settlement.
This act being an agreement between the Sovereign and his people, it is, I conceive,. to be taken most strongly against the people and most favorably for the Crown ; and, of course, the Sovereign cannot, by implication or construction, be deemed to have given up any rights, which he has not thereby expressly granted away.
See Millss Laws, p. 105. I
At all times previous to the Act of Revestment, when any new laws were to be proposed or promulgated, four men were chosen out of every parish in the Island, making a body of sixty-eight, to assist these may have been the representatives of the people; but since the Act of Revestment, their body, with the interests of the Lord, has been swallowed up by the Keys, who are not now, and never were, their representatives. We know that, originally, the Keys were only called at the Lords or Lieutenants will, and they had no rights or privileges whatever; but that they were called as the best persons to council, or as the elders of the Isle, as the Lord or his Lieutenant thought best; and that without the Lords will they did not exist." How they came to obtain the right of electing themselves on each vacancy, as they now do,I have not been able to discover; but 'it may be attributed to the ease and confidence the Lord felt towards them,in the same way that the Setting Quests have been allowed to fill up vacancies in their bodies, by proposing the new members to the Seneschal, who receives or rejects the person proposed, at his pleasure; and there have been instances of the Seneschal refusing several persons so proposed, one after the other.
The Act of Settlement gave a security to the landed proprietors in the Isle, highly beneficial to the people, who from that time began to exercise acts of, ownership over their estates,. which they were not before enabled to do; and it afforded the illicit traders of the Island the means of vesting in lands the wealth they: obtained by smuggling, which was carried on. publicly, openly, and in direct violation of the interests of the Crown of Great Britain, and the Sovereign of the Isle of Man.
See Examinations before the Commissioners of 1791 appendix, No.3
The public will scarcely believe the fact, that in the year 1643, a noble family were, possessed of three hundred square miles of land, which, within the next century, they had divided amongst their tenants and followers, retaining only chief-rents, fines, &c., to the amount of less than £1,500 yearly, together with the common royalties attached to the Lord of an English manor; yet such was actually the case with the Lords of the Isle of Man, previous to the passing the Act, of Revestment; for, except the revenues and patronage of the Island, they, had retained nothing else.
The facility with which the family suffered themselves to be divested of their rights, was productive of a proportionate inability to protect what remained: and we find, from unquestionable evidence, that frauds were committed, by the merchants of the Island (who were, to a man, smugglers,) both against the. English revenue, and the revenues of the Lord, to a most enormous extent; which neither the. Lord,nor the English Government, while shackled by his Sovereign rights, could put a stop to. This produced enquiry, which caused the British Government to resolve of purchasing up so much of his Graces rights, as were thought necessary to be vested in the Crown, for the purpose of preventing illicit practices. In consequenee, the ancestors of the present Duke of Atholl were called upon to lay a value on, and demand a price for, the surrender of such of their rights and royaIties as were necessary to be vested in his Majesty, for the prevention of illicit practices.
The situation of the family, at the time of this demand, particularly disqualified them for the performance of the task imposed upon them.
Previous to 1765, they do not appear to have bestowed much personal attention to the affairs of the Island ; and seem to have placed implicit confidence in the persons they employed for conducting them, which confidence was misplaced and betrayed and the persons instructed were aiding and assisting in the frauds practised upon the Lord.
To support this assertion, it is only necessary to advert to the several examinations taken before the Commissioners of Enquiry; in September, 1791 ; which, although not taken upon oath, is the best evidence to be had upon this subject.
By these examinations it does appear, that the Lord was uniformly defrauded of his revenue: to a very large amount, previous to the Act of Revestment ; and there can be no doubt, that the other interests of the family were equally neglected. Mr. John Quayle, the person at that time almost exclusively trusted by the Duke of Atholl, certainly endeavours to show that he had not betrayed his trust ; but every other person who was examined, concurs in the fact, that smuggling was carried on in open day, during the hours of business, and that the temptations laid before the subject were irresistable, and that it was considered fair gain.
The transactions which produced the Act of Revestment are conclusive evidence, that the illicit practices in the Island were as injurious to the British revenues as to those of the Atholl family.
The cultivation of the soil was then a subordinate consideration, and the chief objects of industry were trade and fishing.
It appears tthat almost every man was a merchant, and that merchant and smuggler were synonymous. It also appears that equal pains were taken to keep the Atholl family and the Government of Great Britain in ignorance of those frauds.
It is impossible to read the examinations of Mr. Thomas Moore and of Hugh Cosnahan, wherein their conversations with the then Duke of Atholl are described, without being satisfied that his Grace was left in total ignorance of his rights in the Island ; and that Mr. Quayle had, for private reasons of his own, neglected to inform the people in the Island of the negociation then pending, though ordered by his employer, the Duke of Atholl, and by his agent, Mr. Hammersley, so to do. Thus was the bargain, if bargain it can be called, forced upon the Atholl family, while ignorant of what they disposing of, and a purchase was made by the Crown of infinitely more than it demanded from the family. The deception seems to have been practised upon both, by the Dukes agents ; who, unwilling to give the people of the Island an opportunity of opening the eyes of the Duke of Atholl to his real importance, and of course to his agents misconduct kept the negociation a secret, though ordered to communicate it to the Island.
Thus stood the Atholl family, deceived by their servants, and defrauded by the people, when called upon to lay a value upon such of their rights as were found inconsistent with the preservation of theBritish revenue ; and it was fully and clearly understood, that:all the Government required from the family was, such rights, privileges, and royalties, as were found necessary for the prevention of illicit practices, and the preservation of the British trade and revenue.
Upon these grounds, the family were called upon to surrender those rights, and required to state the value they set upon them ; at the same time they were informed, that if they did not make a voluntary sale, the British Legislature would pass a law to regulate the trade and revenue of the Isle, which would substantially deprive them of it.
Thus, and on those grounds, a price was demanded, and an agreement made ; and nothing but what was fair and reasonable was intended on either side, by the parties agreeing
The arrangements were made, and laid before the then Attorney-General of England, to draw the conveyance ; and the drawing of this conveyance has laid the foundation of most of the injuries which have been done, and all the frauds that have since been practised upon the Atholl family.
The Attorney-General, to save himself trouble, and to secure to the Crown the fullest benefit under the agreement, drew the Act of Revestment, so as to convey to, or invest in the Crown, all that was granted by the patent of James the First, and left it to the Duke and Duchess of Atholl to state their exceptions ; thus conveying to the Crown, not only what it had demanded from the Atholl family, but every thing that family did not actually and expressly except. By this conveyance, it was thrown upon the Duke and Duchess, recently come into the possession of the Island, ignorant of their rights, and in the hands of an agent who had been constantly violating those rights, or conniving at their violation, to furnish a list of them all, under the penalty of losing such as they did not enumerate. To do this was impossible.: they did not themselves know them, and it could not be expected that Mr. Quayle, who had been conniving at the violation, of their rights, while in their employment and. under their patronage, should come forward and state to his employers the particulars of what he had so long been plundering them of
All the matters of difference between the Lords of the Isle and the people, had been long before ascertained and settled by the Act of Settlement, by agreeing to which Act, the Lords. had given up claims, and surrendered rights which should have secured to them the everlasting gratitude of the people; and it was impossible at the passing the Act of Revestment, that any thing could be misunderstood or mistaken as to their respective rights. So soon as Act of Revestment had passed, it appeared that many privileges which the Government never had sight to acquire, and the family never had intended to surrender, were lost to the family by their having surrendered the legal means to recover them,-.and the Government not having had - them in contemplation, never sought to reduce them into possession ; the people, therefore, withheld them from both : and the British Government, appointing the Governor of the Island, and the House of Keys electing each other, the Atholl family became entirely excluded from all share or controul in the Legislature, and their power and property were entirely unrepresented ; the consequence of which was, that several laws were passed by the Insular governments materially affecting the Dukes property, without his knowledge, and behind his back ; which laws were calculated to injure and reduce both his property, the means of securing that property, and his influence in the Island.
Before the Act of Revestment, . there were several arrangements in the Island, for the purpose of protecting the rights of the Lord; one of which was the Grand Enquest, which was returned and sworn to protest all the Lords rights, and charged to present all persons enclosing or trespassing upon the Lords; commons who should take his hawks or heronswho should hunt in his forestswho should fire his gorsewho should leave the fences open-or who should not keep his bounds next the common in repairwho should take away the Lords wreckor who . should in any way act. against the Lords prerogative ; these men were returned by the Coroner, who was appointed by the Lord or his Lieutenant, and who, it might be supposed, would return persons likely to do their duty honestly by the Lord..
There were several minor rights and .advant ages vested in the Lord, which it is evident he had for many years been defrauded of previous to the Act of Revestment. One of those was called Boons and Services, which were expressly ly secured to the Lord by the Act of Settlement. Any person who reads the Report of the Com missioners of 1791, and the evidence therein stated must be satisfied that the Lord was always defrauded of them ; that his Comptroller always connived at, and that the Governor participated in, the fraud ; that the Clerk of thee Rolls countenanced the fraud upon the Government after the Revestment ; and that at lengtht payment fell into disuse,.the tenants refusing to pay, and the fraudulent claimants of the perquisite being afraid to enforce a payment, the inquiry into which would evince their own delinquency. . .
Another security possessed by the Lords, previous to the Revestment, was the union of the records in one office under the Lords controul and regulation, by the arrangement agreed upon by the. Act of Settlement, certain fines on alienation and descent was secured to the Lords forever ; and for the better securing those rights, it was then enacted, that all conveyances by way of mortgage, and certain other deeds, should be registered within a limited time, or else be null and void. This was evidently for the security of the Lords revenue, and it was not then in contemplation, that the record office, which was at that time in one place and under one officer; might at a future day be divided into two, and that the Lords records and the Sovereigns might be separated ; this became the case after the Revestment, and the recording in the Sovereigns records, having been construed as good as the recording in the Lords office, it has become very difficult, and at all events expensive for the Lord to collect from those several offices the fines he becomes entitled to, and they are in consequence much reduced. This injury arose partly from the separation of the records, but chiefly from its becoming the interest of the Clerk of the Rolls to augment the business of his own officehis chief emoluments arising therefrom. It is indisputable, that this office gives the person who holds it, the command of most of the judicial transactions of the Island : he always possesses the greatest weight. in the Governors Court, let him sit in what capacity he may ; and , of course, it being his interest to augment the business of his office, it was easy for him to transfer to it the records which should have gone to the Lords Seneschal,. Mr. Quayle ; who, from being the Lords agent,became Clerk of the Rolls, under the Crown of Great Britain, was well calculated to work this change ; and , this made another blow at the interests of the Lord. All those and many other difficulties became manifest, and were sorely felt by the Atholl family immediately after the Revestment ; a measure to which the Keys and principal inhabitants of the Island were manifestly adverse, as appears, by the evidence given before the Commissioners in 1761 , when it appears they sent over deputies to prevent the sale, and to make offers to the Duke of further revenues, if he would not complete the sale ; and from the entire of those proceedings there cannot be a doubt of the dismay caused in the island by the Revestment.
As soon as. that measure was compleated, the sole object of the Keys seems to have been to aggrandize themselves, and to depress the remaining influence of the Atholl family, by plundering them of their reserved rights, and by keeping both them and the Crown out of the rights which were not reserved, and which the Crown never intended to take. To prove this, it is only necessary to read the Report of 1791, on Boons and Services ; where Mr. Quayle says, that for ten years he was: the Duke's Comptroller ; previous to 1765, he never gave him credit for boons, &c. ; in 1766, he was agent for the Duke, and made Clerk of the Rolls by the Crown; that year he collected them as agent for the Duke, and that the year afterwards he handed them as a perquisite to the Governor. These facts require no comment ; neither does the assertion, that those boons and services were intended for public purposes. All parties admit the family never received the benefit, but were always defrauded of them ; and when they were unlawfully withheld, the Crown did not get them; but at length they were lost both to the Crown and the Duke.
I have mentioned the subject of boons and services only as evidence of the other proceedings of those who had basked in the sun-shine of the family's favor, previous to the Revestment in 1765. When that measure became inevitable, all the authorities of the Isle endeavoured who should most successfully evince their independence-by ingratitude.
The House of Keys began to assert t an importance never before pretended to ; and Mr. Taubman, who had been one of the most conspicuous and fortunate merchants, (I will not say smugglers) stepped forward, and was dignified by the name of Speaker to the House of Keys-a title never before heard of in the Island. This gentleman had acquired considerable pro-perty by his pursuits, and was at and immediately after the Revestment, at law with the Duke of Atholl, for debts due by him, as a merchant, to his Grace's revenue, the payment of which he had endeavoured to resist ; he was besides deeply interested in freeing his estates as much as possible from the manorial claims of the Lords of the Isle, and, to change his copyhold property into fee-simple. Thus the Law Officers and the Keys being equally interested in attacking the reserved rights of the Lord after the Revestment, his Grace found himself in danger of losing the small remnant of property that was left him. In this situation he had recourse to the very Law Officer who had, as Attorney-General, drawn the Act which had deprived him of his most valuable rights, and left the few that remained unprotected.- A case was laid before Sir Fletcher Norton, the Attorney-General, and his opinion was, " that " nothing but an Act of Parliament, which was always intended at the Revestment, could do justice the Duke or Duchess, or regulate their several and respective rights and he said it was of the highest importance to their Graces that such Act should be well considered and accurately drawn, that all matters of dfoubt, or in dispute, might be quieted by it.
This opinion of the Law Officer who drew the Act, and who knew at least the intentions of his employers, is a most important document for the family, and shows what was then considered the law and justice of the case, as well as the intention of Government at the time: it will, therefore be found in the Appendix.
Nothing very violent seems to have taken place, in the way of actual and declared hostility, between the Keys and the Atholl family, from the Revestment, in 1765, until 1776. The late Duke died in 1774 ; and it does not appear that his Grace was, in the latter part of his life, enabled to pay the necessary attention to his interests in the Island. He seems to have rested under a conviction, that the opinion of Sir Fletcher Norton would have the weight it was entitled to with the British Government and Legislature, convinced that the duties of allegiance and protection Were reciprocal, and that the Crown and Parliament of Great Britain were bound in honor, as in duty, to protect the rights they had reserved to the family, as well by the words of the Act of Revestment, as by the known and declared intention of the contracting parties .
The present Duke of Atholl succeeded his father before he was of age. Not long after that event, Governor Wood, who had continued Governor frorn the time of the Revestment, died ; and Major-General Edward Smith was appointed in his place This gentleman, from the moment of his appointment, seems to have been haunted by a spirit of legislation ; and being surrounded by persons anxious for the establishment of their own encroachments, and the consequence deterioration of the Dukes rights and being himself entirely ignorant of every thing relating to the Island, he was led immediately to concur in certain Acts of Tynwald, and flattered into doing so, by those who had cunning enough to persuade him he was himself capable of drawing those Acts when, in fact he was only a tool in the hands of his advisers. One of those Acts in fact, contains an entire new code of laws for The Island many of which, if attended to, would be highly beneficial to the people ; but like others of their laws, was only calculated to gild the fraud intended. One of those frauds is entitled " An Act for the better regulation of proceedings by Juries before a Court of Common Law." Notwithstanding. its title, this Act abolishes the Grand Enquest, and takes away the appellate jurisdiction which was before vested in the Keys, in certain jury cases, and grants it to the Governor alone.