[continuation of "Roper's 'A Short History ..."]
Another Act of the same year was entitled, and, in fact, was an Act for the more effectual confirmation and establishment of the Act of Settlement, and the Act of Tynwald explanatory thereof. The preamble to this Act is at once a falsehood and a libel —it seeks to stigmatize a family contrary to the truth, and to affect the property of a man scarcely of age, behind his back, and where he was not represented.
These Acts, and the code passed with them, were enacted, and passed the Legislature of the Isle, with such privacy, that no one friend of the Atholl family knew or in any way suspected, that they were in contemplation, until they came back with the Royal assent. They had been transmitted to Lord Suffolk, the Secretary of State, by Governor Smith, who, to secure certain secrecy, had expelled the Bishop and Clergy from the Council. Lord Suffolk returned them with the Royal assent, without the knowledge of the Duke of Atholl. Thus his Grace found an Act passed, to confirm an Act which could not have bound him—it having been passed by the Earl of Derby, in 1703, in direct Violation of the powers vested in him by the Act of James the First, and, of course, not binding on the Duke. He also found the Grand Enquest abolished.— a Jury intended almost exclusively for the preservation of his rights ; which thereby left many of those rights reserved to him by the Act of Revestment, wholly unprotected. It is not easy to prove how Governor Smith came to lend himself to such underhand injustice ; but it is manifest from the tenor of the Act which abolishes the Grand Enquest, and conveys appellate jurisdiction in jury cases from the House of Keys to the Governor, that Governor Smith was led to conceive himself a Judge as well as a Legislator, and that the Keys indulged his folly, and purchased the abolition of the Grand Enquest, by relinquishing to the Governor the appellate jurisdiction in jury cases. Ill calculated as the Keys are for the trust reposed in them as an Appellate Court, Governor Smith thinking himself better qualified in his own person alone, to correct the errors of a Jury, and thereby improve that mode of trial, evinces a degree of vanity, pride, and arrogance, and in an Englishman indicates such ignorance of the principles of the British Constitution as to disqualify. him for his situation ; and when we read those Acts, and reflect upon them, and the way in which Governor Smith obtained the Royal assent to them, we shall not be surprised at the still greater atrocities he was afterwards guilty of. When those Acts became known, the present Duke of Atholl was a very young man, little more than of age ; he immediately recurred to his family papers, and finding Sir Fletcher Nortons opinion, he applied to the Government to aid him in passing an Act pursuant to that opinion, and according to what Sir Fletcher Norton declared to have been the avowed intention of the parties, on the passing the Act of Revestment. In con sequence, two Acts were successively sought in by the Duke in 1780 and 1781, which went only to the objects recommended by Sir Fletcher Norton, and were conducted under the direction of the Government, with the assistance of the then Attorney a Solicitor General,
These Bills were violently opposed by the head of the House of Keys, Mr. Taubman ; who, with one or two, others, called themselves the people, and went to an expence of several hundred pounds, in order to prevent his Grace from carrying through any Act calculated to enable him the better to recover and preserve his rights, as reserved to him. by the Act of Revestment. This produced discussion, and convinced those who acted for the Duke, that his interests in the Island were still. scandalously neglected, and that his own servants were still plundering and deceiving him ; they being also convinced of the truth of Sir Fletcher Norton's opinion, that it was of the highest importance that the Act "though be well considered, and accurately ". drawn ;— recommended his Grace to withdraw that Act, in order to gain time for obtaining further information, and more closely investigating the entire of the subject. His Grace, therefore, withdrew the Bill, at his own desire; and by his own act, without there ever having been a question in the House of Peers upon it, and after it had gone through the Commons.
The introduction of this Bill had, however, one good effect ; for not long after Lord Sidney became Secretary of State, a Bill was forwarded to him by Governor Smith, for the Royal approbation, which Bill was entitled "An Act for the Settlement of the Lords Manor Courts, with his Manorial Rights and Interests."— This Act, passed in a closet, behind the Duke of Atholls back, entirely and exclusively affecting his property, was passed by a self-elected House of Keys, (the other branch of the Legislature,: the Bishop and Clergy, being expelled by them), and sanctioned by Governor Smith was forwarded for the Royal assent, without any kind of intimation to the Duke of Atholl. This extraordinary fact, opened Lord Sidneys eyes to the Dukes situation, and the practices going on against him. Lord Sidney ordered a copy of the Act to be sent to the Duke of Atholl, who stated his objections to Sir Lloyd Kenyon, then: Attorney-General, and the Royal. assent was refused. The character of Major General Smith as an individual, is not worth an observation ; but what must be the object of any Legislature who could thus endeavour to rob a man of his right, under the colour of a law passed behind his hack, in this way ?
The next Act which was transmitted for the Royal assent, was, like others, gilded over with some appearance of justice : it was entitled "An Act to enable the Governor or Lieutenant Governor, the Council, and Keys, of the said Isle, in Tynwald assembled, to raise Money by Assessment, within the said Isle, for the purpose of Rebuilding, Altering, or Repairing, the House wherein the Keys assemble in Castletown ; Altering and Repairing the Tynwald Court-House of St. Johns Chapel ; the Court.House in Castle-Rushen, and common Gaols ; for the maintenance of Felons in Prison ; and for discharging the Public Debts of the said Isle". But it was, in fact and truth, an Act to pay, by a heavy tax on the people, the expences Mr. Taubman and some others had gone to in opposing the Duke of Atholls interests in England. This Bill was sent by Lord Sidney to his Grace, who entered a protest against it, and desired to be heard by Counsel ; but the Act met its deserved fate without his further interference. The Attorney-General of the Isle of Man first, and then the Attorney-General of England, considered the Bill to be an invasion of the Royal prerogative, and the Bill was returned, rejected, to Governor Smith ; who, by this time, might have discovered that he was not infallible, and learned to keep himself quiet : but there are those who never can be at peace. His Grace the Duke of Atholl was advised to visit the Isle of Man, and to investigate all his concerns there, and he had given notice that he would be there early in July, 1778 ; he arrived there on the 5th of that month, and remained sixteen days in the Island, during which time he received every mark of attention from the Governor, Mr. Smith, and from the Keys, individually and collectively.
He was then a young man, and mixed freely and sociably with them and the people of the Island. He departed at the end of sixteen days, satisfied in his mind that all further hostility was at. an end between him and the Insular Legislature : it never having been intimated to him, either by Governor Smith or any other person, that any hostile step was then in agitation. Scarcely had he touched English ground, when he received the copy of a Memorial, purporting to be from the House of Keys to Governor Smith, which had been transmitted by Governor Smith to Lord Sidney five days before his Graces arrival in the Island.
This low, underhand conduct could only be equalled by the Memorial itself; which, for falsehood and malice, is not surpassed even by the Memorial of the 4th September, 1821, or the Petition of 1824. It is beside my present purpose to expose it — it was fully answered at the time ; and may, as I understand, be found in the Secretary of States Office, with the answer. When compared with the Memorial of September, 1821, and the Petition of 1824, they will be found to aim directly at the same object, but to state facts directly contradicting each other.
This Memorial, instead of injuring, materially served his Graces interest ; for it left no doubt in the mind of the English Government that he was basely and maliciously attacked by a party in the Island ; and it procured for his Grace a Commission, directed by his Majesty to certain persons therein named, " To ascertain the nature and extent of the rights of the Crown and the people, as opposed to the Duke of Atholl" Upon this inquiry, a Report was made and. I will not confine myself to referring to this report, it being scarce and difficult of access, but I will briefly state in the Appendix, the parts of it which are material, in order that every reader may judge for himself. The Allegations of the Duke were as follows :- First-
" That the Revenues arising to his Grace's family were not fairly collected, even prior to the Revestment,"
Second. That his family had the power of increasing the duties, with the consent of the Legislature ; and that such consent, to any reasonable degree, would not have been wanting.
Third. That some rights, Unnecessary to be vested in the Crown for the purpose of preventing illicit practices, have been so vested while others, meant to be retained, have by the operation of the Act of :1765, been rendered nugatory, by being left in a mutilated and unprotected condition,-the protections which they enjoyed under the former Government of the Island having been destroyed, and no new or adequate protection substituted in their room."
It was also complained by the Duke " That Laws were passed by the Legislature of the Isle of Man, materially affecting the Duke of Atholl's property, without his having any means whatever of knowing the nature of those Laws."
The issue of this enquiry was a Report in favor of the Duke of Atholl, on his first and third Allegation, which is to be found in the Appendix.
On the second Allegation, the Report is to be found in page 10, as follows :-
" That the family had the power of increasing the duties, with the consent of the Legislature, is self evident, and was not controverted ; but that that consent, to any reasonable degree, would not have beep wanting, was contested and from the whole of this evidence we collect, that it is not probable a consent to any increase of duties would. have been given without an equivalent."
Whoever will take trouble of reading the evidence upon which the last Report is founded, must be satisfied, that sooner than the Island should have been sold to Government, the Keys would have multiplied the then duties by three ; and whoever reads the Acts passed since the Revestment, will find the duties were, by the British Parliament, multiplied by twelve in some instances, and by more than five in almost all cases ; and there can be no reasonable doubt in any man's mind, who reads the evidence, that the then Duke and Duchess of Atholl sold in utter ignorance of the value and nature of what disposed of; and that the British Government purchased infinitely more than they calculated upon or demanded.
As to Unappropriated Land—
" Upon this article we are of opinion, that although the protection afforded by the Courts of Common Law to the Duke of Atholls rights respecting Unappropriated Lands, is neither so easy or expeditious, and is more chargeable than that formerly afforded by the Great Enquest ; yet, whilst the Courts of Law are open for the redress of any violation of those rights, we cannot say they are unprotected."
It is further to be observed, that the protection of his Graces rights, respecting Game and Unappropriated Lands, does not appear to have been affected by the Revesting Act ; but continued in the same state until the passing of the Act of Tynwald, in the year 1777, for the abolition of the Great Enquest."
It is not surprising that upon such evidence as Deemster Moore and Mr. Quayle, persons unacquainted with the real state of the Laws and administration of Justice in the Island, should give it as their opinion, that the Laws in the Island would do his Grace justice ; but I refer to page 6 of the Report, to show what credit Mr. Quayle deserves, when he could give the evidence he then appears to have given : and it is well known that Deemster Moore was still less worthy of respect.
The Lords of the Isle have, at all times, entirely acquiesced in the doctrine laid down by the professors of the Law,—that the practice of the Courts and the seat of Justice should be exclusively in the hands of natives ; in consequence of which, it was impossible to find a man in the profession whose interest or connexions did not interfere with his duty. In the most educated mind, this must have a powerful effect: and was formerly provided against in England, by the Law to prevent Judges from going into their own counties. There are few, if any, who ever acquired such an entire love of justice, as to supersede every other feeling. In the Isle of Man, so far was this from being possible, that there was not a Judge or Lawyer in it who had any other legal education than the Island afforded : and we may judge of the extent of such education from the fact of there not having been any printed copy of the Laws until within a few years. The judgments of. the Governor, who generally sits with the Deemsters and Clerk of the Rolls, as his assessors, are almost always given according to their opinions, and the Governor sitting is almost a matter of form : nor could it be otherwise, if it be admitted, that he must decide according to the ALLEDGED Laws and Customs of the Island — which Laws and Customs are not to be found in any book. In our present Statute book, it will be found "That, in the year 1577, all the whole Customs of the Island were, on the 13th day of July, in that year, put in writing by the two Deemsters by the command. of the Lord." This, I conceive, was for the manifest purpose of putting stop to the despotic practice of Breast Laws nevertheless, we find again, in the year 1636 the Lord complaining " that he is informed that the Deemsters give judgment by "Laws unknown to his Lordship or any of his '. Council called Breast Laws and he then orders the Deemsters to put those Laws in Writing, that the people may take notice thereof, and frame their accounts accordingly again, in the year 1667, you find fresh corn-plaints Of the Deemsters insisting on their Breast Laws, and setting up those Laws contrary to The Statutes in force. And he, the Lord, desires that such Laws as are unnecessary, they be Instantly repealed, and those that are necessary, he orders to be reduced to writing, and made the rule in all cases, that no liberty may be left to private opinions or gratifying interests ; and that the same may be done with the Ecclesiastical Laws.
In 1777, we find the Laws again revised; and it is then declared to be for the honor and happiness of the Isle, that the Laws should be made to bear the nearest possible resemblance to the system of English Jurisprudence.
The name of Breast Laws has become obsolete ; but in the name of practice they are still sought to be continued, as can be proved in many cases : and I have myself heard a Deemster say, he was not bound by English Law, For he was sworn to administer the Law according to the ancient customs of the Island. The only means at present of checking this practice, or Breast Law, is by an appeal to the King in Council t where, of course, they will not perpetuate a grievance complained of for hundreds of years, by receiving the assertions of' any man or Judge as Law, in contradiction to, or explanation of, the known written Law of the Island. But an appeal to this Court is out of the reach of many from its expence, and some other check to the grievance is absolutely necessary.
Mr. Quayle and Deemster Moore might assert that the Duke of Atholl would obtain relief, if he sought it in the Courts of the Island ; but I would ask any candid man who has known the Island, if he believes them ; and if I am not correct when I assert, that any new question or new case, which the shifting of the social intercourse of mankind forces forward, is received and listened to with reluctance, and that difficulties are thrown in the way that become almost insurmountable ? I would also refer to the trial of Mr M'Crone, hereinafter mentioned, and the transactions connected with that trial, — to prove from what passed in 1820, what would have been likely to pass in 1792, in a cause where the Duke of Atholl, or his agent, was interested and seeking for justice in the Isle of Man.
It also should be known, that in any issue of fact, the House of Keys have an appellate jurisdiction over the verdict of a Jury, and over the presentments of the Grand Enquests. After stating this fact, I would ask, if there be any Member of the House of Keys with a conscience so seared, as to suffer him to sit upon cases relating , to the Duke of Atholls property after having . signed the Petition of 1824, and the Memorial of September, 1821?
After considering, and reporting upon the several Allegations, the Commissioners state as follows :
"After the Duke of Atholl had closed the evidence in support of his Allegations, we declared our intention of proceeding to the part of our instructions last stated, when his Grace informed us, that certain propositions had been made by the Keys, tending to an accommodation of those matters concerning which they. meant to inquire, and that the House had come to a resolution on, the subjectwhich he should lay before us. He afterwards produced a paper, signed John Taubman, Speaker, dated 4th October, 1791, which paper his Grace stated , to have been officially communicated to him by the Lieutenant-Governor of the Island, and which was in the words following:
Isle of Man. At a Meeting of the Keys, at their House in Castletown, upon the 4th day of October, 1791: Resolved,—That the Keys, on their party shall concur, and they hereby propose and offer to concur, with the Governor and the Council, in passing an Act of Tynwald to render public every intended new Law, in its progress before the Legislature in this Isle; and also to require that a copy of every Bill intended to be passed into a Law, be delivered to his Grace the Duke of Atholls principal steward or agent in this Isle, for the time being, three months at least before such Bill shall pass the Legislature in theIsland ; and also to concur in any Bill or Bills which may be submitted to the consideration of the Legislature, in order to give his Grace the Duke of Atholl every reasonable and necessary relief he can possibly require, with respect to the protection and regulation of his Graces Manorial Rights consistent of the Island ; and the Keys are and shall be ready to receive and take into consideration, such Bill or Bills as his Grace may offer for the protection and regulation of his Manorial Rights, whenever his Grace shall think proper.
By Order of the House,
After the above Resolution had been read, the Duke of Atholl and the House of Keys severally declared, that the said Resolution had rendered all further discussion on their parts unnecessary, respecting the representation of the Duke on the one hand, and the complaints of the Keys on the other ; and they respectively declined entering into any further evidence relative thereto before us."
It is impossible to read this part of the Report, with the Resolution of the Keys, with out being convinced of the entire falsehood of the Memorial of the 30th June, 1787, and of the truth and justice of his Graces complaints against them and Governor Smith ; and it is a strong proof of the duplicity of the Keys, that, except in the Act to restore the Grand Enquest, in 1793, they never have fulfilled any one engagement entered into with his Grace on the 4th October, 1791 ; by which engagement they deceived and deluded the Duke, into a dereliction of the opportunity he then had of laying his case, in evidence, before the Crown, and exposing the gross violation of Law and Justice, which the Keys themselves tacitly admit, while they manifestly shrunk from exposure, by the Resolution of the 4th October, 1791.
The Report and proceedings under the Commission of 1791, satisfied his Majestys Government, that his Grace required and deserved the utmost protection they could give him; and, in order to enable him, in some degree, to protect himself, he was, in 1793, appointed Governor-in-Chief of the Island. On his appointment, he received Addresses from all quarters of the Island, expressed in the most flattering and cordial terms : one was presented from .the Lieutenant-Governor and Council, and another from the House of Keys. The four principal towns, the Bishop and Clergy, and the other religious congregations all presented similar addresses.
The next step was the passing an Act to restore the jurisdiction of the Grand Enquest, and, at the same time, to revest in the Keys the appellate jurisdiction, which they had, in 1777, given up to Governor Smith, in order to obtain the abolition of the Grand Enquest. In 1805, the British Parliament passed an Act which, in some degree, remunerated his Grace for the losses he had sustained by the Revesting Act ; and this Act also met violent opposition from the Keys. From 1793, his Grace occasionally visited the Island, for short periods, until about 1813 ; and things seem to have been tolerably tranquil until the year 1820.—. Shortly previous to that time, his Grace and the Lord Bishop finding it impossible to have their business conducted by persons connected with the Island, they procured the assistance of a gentleman of character and respectability, to act as their agent, and to attend to the collection of their Tithes, and other concerns in the Island. This gentleman, whose name is M'Crone, proceeded, in the most firm, correct, and fearless manner, to do his duty, without regard to persons ; and it became necessary for the party to put him down. Every preparation was made for that purpose, by circulated reports injurious to his character, and by representing him as having come from the lowest and most degrading situation.—A dispute arose between him and. the steward or bailiff of Colonel Wilks, of the name of Stratton, about Colonel Wilkss tithe, which ended in a suit. Stratton swore that MCrone had set him the tithe for £12 12 0, and Mr. MCrone swore he did not : this was laid hold of as an opportunity for destroying MCrone, and terrifying any other man from taking his place.
The Duke of Atholl had been then, for several years, absent from the Island, and the Lord Bishop was on the point of visiting him in Scotland. No step was taken until his Lordship left the Island , and the day of his departure, the Acting Attorney-General of the Island was prevailed on to lead his countenance and his official name to this nefarious transaction He did not leave his relation and employer, Colonel Wilks, to proceed in his own name in the prosecution of Mr. MCrone, but he filed an ex-officio information, at the suit of the Crown, against MCrone, for Perjury ; and on this information he obtained a Warrant of Arrest from Deemster Gawne,— arrested Mr MCrone in the Dukes house, and held him to bail in £500, in a manner as insulting to the Bishop and the Duke of Atholl, in whose castle he resided, as it was possible to contrive.
The facts relating to this prosecution and the trial itself, will throw a strong light upon the mode of administering Juistice in the Island. The avowed prosecutor was Colonel Wilks— the son-in-law of Major Taubman. The Acting Attorney-General, Mr. Cuninghame, who took advantage of his situation, and filed an ex-officio information-.—thereby protecting Colonel Wilks from an action for his conduct, and from the payment of costs, was nephew to Major Taubman—first cousin to Colonel Wilkss wife—and his law agent. Deemster Gawne, the Judge who tried the cause, was , the first cousin of Major Taubman, and a cousin of Cuninghame and Wilks. The trial at large is a curious specimen of Law ; but peculiarly distinguished from most trials that have been conducted and decided in ignorance. In such cases, you generally find a lottery of decisions, perhaps alway wrong, but seldom uniformly on one side. In this case, every decision of the Court was contrary to law, and against the prisoner. Letters were allowed to be read against him, which he had not written, and had never seen - his character was allowed to be attacked on points not in issue in the cause. The case was closed on both sides : the Counsel for the prosecution had spoken to evidence, when an Advocate for the prisoner observed, that there was a mistake in not laying the offence in one count, on the same day on which it was proved in evidence ; upon which the following curious dialogue took place :— The Attorney-General rose and said,—
"It certainly did so appear on the face of the information, but that it was merely a clerical error, which he had not discovered till that moment ; and that, as in the previous recitals of the information, the date appeared to be the 5th of July, 1819, he did not conceive it so material in the averment, as to deprive him the right of amending the error in the Court.
By the Court.
"The Jury may find their verdict on the other counts in the information, !, notwithstanding the error in the second count,—or the Attorney-General MAY withdraw a juror if he thinks proper, in the event that the prisoner's Counsel will not consent to the amendment of the date, or withdraw the objection.
The prisoners Counsel severally contended that they had a right to avail themselves of the objection, and at the same time, to demand a verdict from the Jury. By the Court. I see nothing to prevent his Majestys Attorney-General from either withdrawing a juror, entering a noli prosequi, or leaving the Court his moment, and thereby putting a stop to the trial. Mr. Heywood. I admit the Attorney-General may, at any period of the proceedings, enter a noli prosequi, but not for the purpose of entitling him to commence de novo. By the Court. I am of opinion that the Attorney-General may withdraw a juror, and leave the Court, if the prisoners Counsel persevered in the objection taken to the day laid in the information, and that the Attorney General may resume the prosecution at a future period.
The Attorney-General said "That the Court having so ruled, I move to withdraw a juror,and, taking up his papers, was proceeding out of Court, when Mr. MCrone, the prisoner, addressing the Deemster, said,—" May it please your Honor, it never . was my intention to avail myself of points of Law, to get rid of this prosecution : I have already shewn that by the gratuitous production of the book.
I waive the objections taken by my Counsel to the information, and only wish the matter to go to the Jury on its merits.
The Attorney-GeneraI was, thereupon, prevailed upon to return to his seat.
I am sorry the trial itself is too long to be inserted here : but I conceive this specimen of Manks Justice, in 1820, will enable the public to form an estimate of the credit due to those gentlemen who declared to the Commissioners in 1791, that the Courts of the Island were then sufficient to protect his Grace the Duke of Atholls rights ; and more particularly when the persons , who gave this evidence were Deemster Thomas Moore and John Quayle, Clerk of the Rolls : and I could report other trials, which have taken place since, which were still more disgraceful and unjust.
Mr. MCrone was saved by one intelligent man being upon the Jury ; who, though now abused by the dìsappointed party, cannot be denied the respect he has all his life been held in Society. He is a native of the Island, married in the Island, connected with and attached to as respectable persons as any in the island. He had for many years practised as a Solicitor in Ireland, where having made a fortune sufficient to satisfy his desires, he returned to reside in his native country; having enlarged his mind too much to join in violating Justice to indulge prejudice ; and he certainly knew more Law than any man who addressed him.
The party having failed in this attempt, and finding themselves in some degree obstructed in their plans by the Lord Bishop and those connected with him in the Council of the Island, next laid a plan to alter the constitution of the Council of the Island .to deprive the Duke of the patronage of the Bishopric and the Church For this purpose they did, on the 4th September, 1821, present a Memorial to Lieutenant-Governor Smelt, suggesting all those improvements. This Memorial is to be found in the Appendix : and, as it laid the foundation of all the disputes which have arisen since, and fully justifies his Grace in any thing he may have said or done, it is material. The first part of this Memorial, which relates to the altering the Council, nearly answers itself, and was entirely disposed of by his Majestys confirming the Council as at present formed, by an official order for the purpose. It is, however, worthy of remark, that the Keys, in order to obtain the exclusion of the Lord Bishop and Clergy from the Council of the Island, argue in this Memorial from the precedent formerly made by the exclusion of the Bishop and Clergy, by Governor Smith, at the time of passing those two shameful frauds upon the Duke of Atholl, in the year 1777 to confirm the Act of Settlement, and to abolish the Grand Enquest.
The excluding the Bishop and Clergy from the Legislature at that time, coupled with the fraudulent and secret conduct of the rest of the Legislature, is evidence of their conscious guilt. It accounts for the ignorance his Grace was kept in, respecting those Acts, until they were proclaimed with the Royal assent, and proves the necessity of carrying the agreement of the 4th of October, 1791, into a Law, for the protection of the Lord.
The proposal to take the advowson of the Bishopric from his Grace, is too wicked and too dishonest on the face of it, to require any observation further to expose it. It comes well from a set of men who, in the preceding sentence, assert, that the Duke of Atholls interests are often in opposition to those of the Crown, and generally at variance with those of the people. No persons interests can (in the sense here intended) be opposed to each other in civilized society, where each is satisfied with his own rights, and what properly and by Law belongs to them. But when any man or set of m!n: endeavour to invade the rights of others, they then put. their interests at variance with, and in opposition to, those whom they attack, by endeavouring to possess themselves of what does not belong to them ; thus the interests of a robber or a smuggler are opposed to those of the society they intend to disturb and defraud; and it becomes necessary, by making them examples, to deter others, and protect society from their depredations.
To say that the Duke of Atholls interests are opposed to those of the Crown, is a foul and a false calumny ; there is not a man in the united empire who can show an instance where he ever, in any way, put his interest in opposition to the Crown ; and the House of Keys, in forwarding that Memorial, justified his Grace in throwing their falsehood in their teeth, even in stronger and broader language than he ever made use of to them
The House of Keys have said, in their Petition to the House of Commons,
"His Grace has unfortunately conceives, retains, and takes frequent occasions to disclose towards them, feelings of a bitterly hostile nature breaking out in public menaces, contumelious language, and representations to his Majestys Government, from which arise consequences highly injurious to the peace and welfare of the lsland."
The Duke did say to them,"If the statement in your Memorial of the 4th of Sept., 1821 , be true, I am unworthy to hold either my rank in life, or any situation under the Crown, and if it be false—what are you ?" Could his Grace say less ; would he not have been justified in saying—you have proposed to rob me—you have accused me of robbing the Crown—your accusation is false, and your proposal disgraceful : no gentleman should have put his hand to that Memorial, for you knew it to be false. Would he not, I say, have been justified if he had told them this? Or is the Duke of Atholl to stand by, and suffer himself to be insulted and plundered by the House of Keys, and bears it with. the silence of a sheep in the hands of its shearer?
The House of Keys assert that the interests of his Grace are at variance with those of the people. This is false. The people respect the Duke of Atholl, and look up to him with. the most perfect confidence for Justice, upon all occasions. His exertions to procure Justice are known and Undoubted, and that he has been severely thwarted in his endeavours, is as undoubted; he never interfered with their rights, and they cheerfully pay him his. His anxiety to ameliorate their condition can leave no doubt in any mans mind, who is not a mem her of the House of Keys, that he identifies himself with the people, and never has been opposed to them. His interests, indeed, are opposed tothe Keys, because they have, for above half a century, been endeavouring to defraud and to insult him. But, say the Keys, we are the people, for we constitutionally represent them. No, says the Duke of Atholl, You no more represent the people of the Isle of Man, than the people of Peru." The Duke told them truth, and be had a right to tell it to them,—he was bound, by the feelings of a gentleman, to show that it was not the people, but the Keys that were opposed to him, and that the Keys were in no way identified with the people ; that they are, on the contrary, in opposition to the people, and have sacrificed their welfare, to gratify their own private interests and feelings, I will prove to a demonstration.
The Keys, about this time, had made several attempts to obtain an alteration in the Corn Laws, and to have the Island included in the English Corn Bill. Before that time, Foreign grain was allowed to be, at all times, imported into, and consumed in the Island ; while, at the same time, the corn grown in the Island, was allowed to be exported into England, in the same way it is at present. Thus the people ate their bread at the lowest price, and the farmer sold his produce at the best and highest market.
This was too great a blessing for the Constitutional Representatives of the people to suffer them to enjoy. It came into the sagacious head of one of those enlightened Legislators, that he would make some advantage by depriving the people of this indulgence ; and attempts were made to enact an Insular Law, to meet this gentlemans wishes. The attempt was rendered abortive by the Lord Bishop who stood forward and put a stop to it, supported by the people The Keys, however, made application to Mr. Curwen, who had interest enough to bless his native country, by raising the price of their loaf. His exertions not only raised the loaf, but also raised riots in the different Towns.
There was not a single soldier in the Island.— Deemster Gawne was sent by the Lieutenant Governor to Peel ;—he went there with some constables, and during the utmost rage of the riot, he attempted to hold a Court to punish the rioters, not waiting until the riot was put down, —a. vast deal of violence was the inevitable consequence. The Deemster, with his own hand, assisted to tie Shimin, one of the rioters. Just as he was tied, the riot was so furious that the Deemster and the Constables ran out of Court: while they were out, Shimins sister cut the ropes, and he ran away. The mob beat the Deemster and Constables back into the Court, where they shut themselves in. — Deemster Gawnes corps of Yeoman were sent for, and ran away. The Deemster attempted, in his uniform, mount his horse, was beat back to the Court-house, and his horse was driven into the sea ; and if the half-pay Officers had not turned out and embodied themselves to keep the peace, it is difficult to say what would have been the consequence.
Deemster Gawne took upon himself to issue Judgments, against Shimin and Cannell, without trying either of them: he, by this illegal Judgment, sentenced them to fine and imprisonment, which he had no right to do. The Judgment against Shimin has come to my hands and will be found in the Appendix. He is sentenced to twelve months' solitary imprisonment in Castle Rushen, and fined fifty pounds. I want no other evidence than this Judgment, to show that at that time the Deemsters set themselves above all Law, and exercised despotic authority.--By an :Act of Tynwald, passed in 1736, it among others things, is enacted, " That no Court, Judge, or Magistrate, within this Isle, whatsoever, shall have power or authority, for the future, to impose or inflict any Fines or Punishments, upon any Person or Persons, within the said Isle, for, or on account of, any criminal cause whatever, until he, she, or they be first convicted by the Verdict or Presentment of four, six, or more Men, as the case shall require, upon some Statute Law in force in the said Isle."-By an Act passed in the year 1817, called the Criminal Code of the Island, this former Act is recited; and it is there enacted, That any affray in Court shall be a Misdemeanor, and punished by fine and imprisonment. It is by the same Law enacted, That every sentence for a misdemeanor shall be passed or pronounced by the Court of Exchequer, and not by the Judge or Deemster. Now, in this case the Deemster (Gawne) convicted those men without trial, and sentenced them; himself, contrary to Law: and let any man who, knows the prison of Castle Rushen say, if he can,that twelve months' solitary confinement in that dungeon is not a cruel sentence.
No attempt was made to put those Judgments in force until after his Grace came to the Island, which he did on the last day of October, 1821, after an, absence of several years. He found the riots just kept down, but by no means at an end. A small detachment of the 29th Regiment was in the Island when his Grace arrived. It had been sent over in consequence of the riots, and landed on the 14th October, twelve days after the warrant against Shimin was issued,. — yet peace was not sufficiently restored to render it prudent to attempt to execute it.
The Duke, received a letter from Sir John Byng, which was addressed to the Lieutenant.Governor, shortly after he arrived, to say that the troops must be immediately withdrawn from the Island, and ordered to Ireland. This letter was dated the 10th November.
In this situation, the Duke had a meeting of his Council; at which meeting Deemster Gawne assured the Duke and the Council that, to his knowledge, it was impossible to execute any warrant in Peeltown without military aid, and that every thing would go into confusion, if the military were withdrawn. The Duke knew, from various reports and other sources of information, which were afterwards confirmed by Lord Sidmouth's letter of the 18th. December, 1822, that the troops must be sent to Ireland. In order to prepare for their departure, he applied to the half-pay officers and such other persons as were willing and able to assist in keeping the peace.On the 29th day of November, he attended the meeting of the inhabitants of Douglas; in the Court:house, When swore in a great number of, Special Constables, amongst wham: were the most-respectable half-pay Officers its the Island.. When they were all sworn in, he made them a Speech — which will be found in the Appendix in which he declared that, on a most attentive investigation, he had found. that the disturbers of the peace were sensible of their, error and had prayed for pardon, on condition of future good conduct; and that in consequence, with the exception of two, who, from their general bad characters, he had reserved as public examples,, he had suffered all the rest to return to their families in peace and thankfulness. This Speech was made the 29th November ; on the 30th, the, official order arrived for the embarkation of the troops , and they were from that time held in readiness to go on board the moment the transport arrived -of course they could not. have been sent about the Island, if wanting. The Duke's speech and declaration of pardon, restored the Island to perfect quietness; and during all this. time,. nothing was heard of, nor did the Duke know of the Warrant against Shimin or Cannell. It will be observed that the Warrant bears date: the 2d of October; the troops arrived the 14th; the Duke had notice of their being ordered away about the 14th of Nov. ; he swore in Special Constables the 29th of November, on which day he declared his promise of pardon. About the 19th of December, the transport arrived, though she did not sail until the 25th; and on the 21st, Shimin was brought a prisoner to the Duke, who, seeing him come under the promise of pardon, suspended the warrant; and I say, with perfect confidence, that if he had not suspended it, he would .have violated his promise, made as the King's representative, to the officers and gentlemen who accepted the office of Constables, and who undertook that office, and embodied themselves to preserve the peace, and not to be instruments of vengeance to gratify the malice of those who had caused the riots, and had not the courage to put them down. Yet this is brought as a grave and serious charge against him. What would Mr. Deemster Gawne have said, if his Grace had suffered the warrant to be put in force on the 21st of December, and the people had again risen; on finding they could put no trust in the promise of pardon made by the Duke. Could Mr. Gawne's Yeomen have expected the aid of the half-pay officers and gentlemen, who had come forward to preserve the peace, in support of such a violation of a solemn promise made in their presence
The next step of his Grace was to meet the. Keys, and expostulate with them on their Memorial of September, 1821. I have already stated and justified the two offensive expressions he is charged by the Keys with being guilty of using. No persons are more sore than the guilty, at hearing truth: if the Duke of Atholl had told them the whole truth, the Keys would have felt indeed; but he said less than the provocation required, and he told them nothing but the truth, as will appear hereafter. — if what has been already proved be not sufficient.
The next charge against his Grace in the Petition, relates to the Duke of Atholl's having stopped the Deemsters from sitting as his Assessors in the Court of Chancery ; to which my answer is; that he had a right to do so, if he thought proper; his name alone is signed to all the proceedings. — he has a right to what assessor he pleases to have sit with him; and if he has not, but is bound to follow the opinion of any particular man or set of men, he becomes nothing more than an automaton in their hands, notwithstanding his being responsible. No man ever gave more satisfaction to the people than the Duke of Atholl has done upon the seat of Justice. He is looked upon as their only protection from the private interests and local connections of the Insular Judges. He is not charged with any act inconsistent with Justice, while he sat without the Deemsters; but his judgment or order about the Inoculation, is charged against him as a crime, though he was advised to, and countenanced in it by both the Deemsters, who sat on each side of him upon that occasion; and by the Attorney-General who drew the information, which Attorney General, and the brothers of each of those Deemsters, have signed their names: to this charge. I say with confidence, there was no act of the Duke of Atholl in this Island that met more strongly the approbation of the public than the removal of the Deemsters from the Court. His judgments were then the dictates of a fair, honest understanding, and no man in society could impute them to any collateral influence; on the other hand, the secret judgments and the local interests and connections of the insular Judges are subjects of universal complaint ; and whether Justice be or be not done, the motive for them is too often attributed to the pedigree of the Judge and I therefore do lament with the House of Keys, that the duty of Judge, in the Court of Chancery in the Isle, should be thrown upon a Governor, or Lieutenant-Governor, who has not received a legal education, and that he should thereby be forced either to exercise his own natural but unbiased understanding, or else to submit himself and his character to, and become responsible for, the judgments and decisions of men, who he knows to be connected with the parties, and who will not come forward in open Court, and openly and honestly declare their opinions, but who settle the business in a conclave with the Governor, who, though responsible for all, their acts, is yet treated as a man of no legal education amongst them. Add to this; that the Governor's Court is the appellate Court from the judgment of the Deemsters can it then be called a fair Court of Appeal, when those men are alternately employed in deciding on the judgments of each other, and interested in reciprocally supporting those judgments
The case of Cannon against Tupper, would, in itself, be sufficient to support this assertion: There the Judge was, by the Petition stated, and in the case proved, when sitting on the seat of Justice, to have stated as fact, in support of his judgment, what was not true, yet what must have influenced the judgment which affirmed the Deemster's judgment, but which was afterwards reversed by the Duke.
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