[From Wood's Accout of IoM, 1811]

Book II

ON THE CONSTITUTION AND LAWS OF THE ISLE OF MAN.

CHAPTER I.

On the Constitution.

THE nature of the constitution of a country is known by the powers and acknowledged rights of the people. If these have no share, by representation or otherwise, in any legislative or juridical concerns, the constitution is despotic, whether there is one or more governors, or whether the country itself is under the subjection of a foreign power. As the people acquire a voice in making or executing a law, the constitution becomes mixed; and when they have obtained an exclusive voice,, it is democratical. I pass over aristocracies, polygarchies, oligarchies, and hierarchies, whether Druidical, Christian, or of any other religious sect, because they may be, and often are, as arbitrary as an absolute monarchy.

Before I speak of the present constitution of the Isle of Man, I will acquaint the reader with whatever I have been able to discover, respecting the rights which the inhabitants have acquired or lost, during the lapse of ages.

Tradition traces this island to the government; of the Druids, bloody tyrants,¹ who endeavoured to conceal their despotism, as has been too often the practice in modern days, under the mask of religion. Whether this nation was then dependent on any other we are not informed.

When Druidism was overthrown, and when the people were first subdued by a tribe of northern barbarians, we can only conjecture. Nei ther Cæsar, Ptolemy, nor Pliny ever visited this place; they do not appear, ever to have seen a native or inhabitant; what they relate of it is founded upon hear-say; and we can learn little more from them, except that it existed in their time.

It is generally admitted, but without much foundation, that the wonder-working St. Patrick, the tutelary saint of Scotland and of Ireland, converted this island to Christianity about the middle of the fourth century. It is not to be supposed that the opinions of a whole nation, particularly on a subject to which people, if not bigotted, are usually zealously attached, religion, should be suddenly changed. The tradition is therefore worthy of credit that the Druids retained much of their power for a con. siderable time afterwards, and were obliged to yield it only gradually to the new race of bishops.

In the tenth century it was taken by Orry, a Danish prince; and till this reign it does not appear that the people had the least share in the government. He conquered also the Orcades and Hebrides, and gave directions that the inhabitants of Man should choose sixteen representatives, and the out-isles eight, to assist him in the government. This was an act of policy in Orry, and obtained the object of his wish, a reign undisturbed by domestic commotion, These representatives were called Taxiaxes, signifying pledges or hostages; but, for what time they were elected, though most probably for life; what power was granted to them; or how long the institution itself lasted, are points which we are without the means of ascertaining Their name, indeed, would imply that they had no power at all, but were merely hostages, taken from different parts of the country to ensure its allegiance.

Although Macon, a subsequent king of the same century, acknowledged subjection to the English throne, we have no reason to suppose that its internal government was altered.

Very soon afterwards, in the year 1066, it was conquered by a Norwegian subject; all the lands, southward of the mountain ridge, were seized by the conquerors ; and all, northward, confirmed to the inhabitants, as a condi tion of the peace. In 1098, the King of Norway took possession of it, but generally governed it by a feudal lord. From 1066 to 1270, the transactions of which period are related in the Chronicon Manniae, no mention is made of the Taxiaxes or House of Keys, or of any share which the people had in the government. We have, on the contrary, every reason to believe that it was an absolute monarchy. Under a government.so arbitrary that the monarch claimed and took possession of the landed 'property, granting it to his followers on his own conditions, it was not to be expected that the previously existing laws would be much, if at all, attended to.

From the year 1270, in which it was taken by Alexander, King of Scotland, to the reign of Edward the Third, who assisted Montacute to wrest it from that nation, we are equally in the dark respecting its internal polity. Whatever power might be granted to the people in the execution of the laws, it is not probable that they had any voice in making them. The House of Keys seems to have been in existence, during at least the latter part of this period, but to have had its jurisdiction confined to the determining of the laws, and to the petitioning of the lord for new ones: not to the enacting of them

It appears by one of the early statutes, that the Keys and the Commons of Man were accustomed to be present at the proclamation of a law, and in fact formed part of the Tynwald Court; but I judge that they came to hear and consent rather than to debate or dissent.² It is not how ever improbable that the Keys signed the laws.³ The preamble of the statute-book states that the laws then extant were made, not only with the consent of the lord, barons, deemsters, and officers, but also of the tenants, inhabitants and commons of the land ⁴ I suppose the case to be, that the last mentioned classes did not dissent. Perhaps most of those, present at the proclamation, gave a cheer.

When the Deemsters' authority commenced, we cannot tell; it was only a branch of despotism.

There were no written laws till the time of Michael Blundell ; and all that I can learn of him or them is this expression in the statute-book, being an answer of the Deemsters and twenty four Keys, chiefly on points of law, put to them by Sir John Stanley, A. D. 1422) "And as to the writing of laws, there was never any written since King Orry's days, but in the time of Michael Blundell, that we have knowledge of."

At this time it was declared by the deemsters and twenty four Keys that the twenty four Keys were not a necessary part of the government, but were dependant upon the Lord's pleasure. This declaration, and other grievances occasioned so much discontent among the people, that the Governor in one assault narrowly escaped with life. It was deemed prudent to temper rather than resist this spirit; and, in the year 1430, the Governor assembled six men chosen by the people from each of the six sheadings, or divisions of the island, and from each of the six elected four. The twenty four were sworn into office, and proceeded to try offences.

This was a dawning of liberty, quickly overcast by the representatives themselves. So little idea had they of any permanent system of government, grounded in part upon democratic principles, that, as soon as any member died, the majority of the remainder proceeded to elect another. This establishment, however imperfect, proved, nevertheless to be a great check to the encroachments of the Lord, and was of great service to the country.

In such a small territory as the Isle of Man, its inhabitants being nearly ignorant of commerce, new laws were seldom requisite; and we cannot tell, whether a legislative power was intended at this period to be given to the House of Keys. The first new law after this wra was in 1609, ( unless, indeed, the Lord's resolutions of 1593, confirmed by the Council and Keys be so termed,) when the Keys were consulted upon the subject. ⁵ The oppressive declaration had never been retracted, or qualified. Although they were not then the representatives of the people, but a self elected body, they henceforth obtained a voice in the making of most laws ; and the preamble. of this, and nearly all the future statutes mention the consent of the Lord, the Lord's Council or officers, Deemsters and twenty four Keys. At the same time it appears remarkable that several arbitrary orders of James Lord Strange, in 1636, did not occasion, as far as we know, any complaint; and that the Keys did not consent to, or remonstrate against a money-bill before the year 1736.

In the reign of Orry the constitution originated. It quickly died away: it revived: it was strengthened in the fifteenth century: it arrived at its zenith in the eighteenth century ; but is now too much blended with the English government to retain any independence of its own.

The powers and limitations of the different parts of the government of Man seem never to have been well defined; and, in the legislative functions, to have been subject to considerable variations. I shall now speak of them separately.

The sovereign was formerly a feudal lord, and possessed much power over his sulajects, claiming their services at all times. ⁶ How much power was vested in him, when the constitution came to be more settled, was not agreed upon by our greatest English lawyers; some, and amongst them Lord Coke, giving to him, not only judicial, but legislative authority ; and others allowing to him, in the latter capacity, no more than a negative upon proposed laws. Chaloner seems to have imbibed the former opinion ; for he says, in the dedication of his work to Lord Fairfax, " There is put into your hands the exercising of a legislative as well as ministerial authority in an eminent degree." Such as embrace this opinion maintain that the authority of the House of Keys was formerly only judicial. The report of leis Majesty's commissioners, appointed in 1792, without throwing much light upon the subject, serves only to confirm our doubts ; for there we are told that " the laws, enacted in the fifteenth and sixteenth centuries appear to have been prescribed by such different powers, or combinations of power, that, as precedents for the exercise of legislative authority, they can have little weight." It is, however, certain that, since the act of settlement of 1703, and probably for a long time before, the exertion of his Lordship's or of his lieutenant's legislative authority extended no further than a veto. Subsequently to this period, there has been no other change than, the sale of the regalities, and certain revenues to the King of England, consequently Lord of the island; and the interference of the English legislature relative to the custom-house department.

The right of selling a royalty pre-supposes that the nation is composed of slaves; that the tenure of a king is an absolute property, not a trust. What would be thought of the King of England's selling his royalties to Buonaparte,'

That the Duke of Athol was a lord, subject to the king, may be some extenuation ; but, to alienate the public revenue of a nation seems a, great stretch of despotic power.

The King of England has the appointment of all the military ; and all the chief civil officers. He alone has the power of pardoning criminals ; and may in council hear, and finally determine, all appeals from the decision of the Governor or of the Keys. Hi consent is necessary to the passing of all laws. Since the rejection of the bill for triennial parliaments by King William no English King has refused his assent to any bill which had passed the Lords and Commons. With respect to the Manks legislature the same scrupulosity is not observed. In the year 1798 - several bills were returned altered to the Keys, one of which, in its new form, they rejected. The Governor holds his office, by his Majesty's appointment, He is chancellor, ex officio, and, by himself or deputy, bears appeals, not relative to land, from the decision of inferior courts, reversing or confirming them according to his judgment. The consent of himself or of his lieutenant is necessary to the making of a law; but not that of the .Lord-proprietor, at present the Duke of Athol, unless he holds one of these situations. The latter may, however, enter caveats against the King's consent, and have his petition heard; and in, or about, the year 1789 he actually did so. ^{7 8}

The powers of the King and Governor were previously to the re-revesting act vested in the Lord alone, except that the King possessed the authority of altering, on appeal being made to him in council, the decisions of the Manks' Courts. The whole proceedings of Governor Horne against Bishop Wilson were thus reversed. The right of coining money, of pardoning criminals, and various other kingly powers attached to the Lord. The governor is chancellor, ex officio : all arrests, either civil or criminal, are granted by him, and he may, at his pleasure, convene branches of the legislature.

The Lieutenant-governor, or Governor, as he - was usually called, possessed whatever power his Lord or Sovereign thought proper to confer, and this was usually-the whole. He was termed the representative of majesty. The Scotch and English lord-proprietors meddled little -,with internal affairs, and rarely visited this dominion: the chief care of government devolved therefore upon him. When the appointment came to be made by the King of England, the plan was somewhat changed ; and the nature of the office made certain;. He has now all the powers of the Governor during his absence, and none during his presence, except what the Governor does not think proper to resume. It is not however his practice to consent to the making of laws ; and I observe, in the statute-book, only one instance in which he has so done, A. D. 1776. All other acts specify the. consent of the Governor in chief, whether the Tynwald-court be held before himself or the Lieutenant-governor.

The Council consists of five persons, holding their seats ex officio, viz. the Lord :Bishop, the Water Bailiff, the Attorney-general, the Clerk of the Rolls, and the Archdeacon. ⁹ The consent of a majority of these, previously to that of the king, is necessary to the passing of a law. Respecting the right of a seat in this bodvy, various opinions have been held; and much controversy has arisen. In the year 1776, the Governor excluded from the council the bishop and the vicar-general, alleging that their seats were held only through courtesy. The spiritual officers, however, maintained a right to their seats, and claimed admission The claim, though protested against by the Attorney-general, was allowed by the Lieutenant-governor. The following is a list of persons who had either a certain or doubtful right of admission: the Receiver-general, the Comptroller, the Clerk of the Rolls, the Water-bailiff; the Attorney-general, the two Deemsters, the Arch-deacon and his Official, the Bishop and his two Vicars-general, and the Collector In order to end the controversy, a statement of their respective claims was sent to England about ten years ago for his Majesty's determination.

The twenty-four Keys are the last branch of the Manks legislature. The consent of a majority of them is necessary to the passing of a law; and a bill usually originates in this house. They are considered the guardians of the people, particularly so of the landed interest, and their power is as well judicial as legislative. An appeal may be made to them from the inferior courts. In all actions real, and in appeals, their decision is conclusive between the parties, unless the cause be carried before the king in council. They determine in all cases by a majority ; and herein differ essentially from a jury, whose verdict must be, or rather must be said to be, unanimous. In intricate law cases they are required to determine vvbat the law of the land is ; every determination forming a precedent for future cases. Bishop Wilson derives their name from their office of unlocking the difficulties of the law. So little was the constitution settled, that it is still a doubtful point whether the Governor had power to prorogue them, or whether they might continue sitting till they thought proper to separate. Their election of a speaker is subject to the approbation of the king: he gives, when required, the casting vote. In their legislative capacity their debates are always private.

When a vacancy happens by the death of any one of them, the majority of the remainder fix upon two persons, either of whom they deem eligible to occupy his place. Their names are presented to the Governor, who makes choice of one. The situation is for life, except in cases of criminal conduct, resignation, or the acceptance of any place entitling him to a seat in the council. It brings with it considerable honour, much trouble, but no emolument. The Keys always possessed, and seem never to have abused, the confidence of the people. In the seventeenth century, they strongly resisted the encroachments attempted to be made by the lord upon the landed interest, and finally, in the year 1703, obtained the act of settlement or covenant between then. Foreigners as well as natives, not excluding the clergy, are eligible to seats in this house, the only requisite qualification being the possession of land, and the age of twenty-one years. Were the House of Keys once corrupt, it would probably continue so for ever; its very nature is such, that it could never be purified;

Although the people are no way concerned in their election, the Keys style themselves their representatives, as is evinced. in a letter, of which the following is a copy, dated March 13, 1795, at a time when persons of almost all ranks were making subscriptions for carrying on the war

"The Keys of the Isle of Man, the constitutional representatives of the people, warmly attached to their sovereign, and the constitution of Great Britain, offer this, their mite, in aid of their cause : and they feelingly regret that, in tendering so small a sum, ¹⁰ there is so great a disproportion between their wishes and their abilities, having no public funds at their disposal, and being prevented from raising any, in consequence of an influence, equally unjust and impolitic, which, unfortunately for their coontry, they are unable to remove."

It appears by the letter, that the different branches of government were not, at this time, too cordially connected. An act of 25 Geo. III. grants to the House of Keys the discretionary power of permitting the importation of cured herrings in times of scarcity. This is the only place where they are acknowledged in any British act of parliament.

Laws passed lay the legislature of this island are called acts of Tinwald. Before they become binding upon the people, they must, according to long usage, be promulgated from a certain artificial mount, near the spot where the highroad from Castletown to Ramsey, and that from Douglas to Peel, cross each other, called the Tinwald-hill, the day of the nativity of John the Baptist being formerly the only usual time of such promulgation. Hence it is, that the acts derive their name.

Besides the statutes or acts of Tinwald are some ordinances which, by custom, have the force of law. They may be termed part of the common law; and originated in orders and regulations made by separate branches of the legislature, but which did not receive the assent of all, They are quite unconstitutional. Some persons have thought, but erroneously, that present ordinances, or such acts as have passed that part of the legislature resident in Man, but have not been signed by the King of England, would be binding upon the people. About the year 1790, some bills passed the Manks branches of the legislature, which they wished to put in force without delay, and waited for nearly two years before the King's pleasure respecting them was known. His consent to them, in the original form, was finally refused. Had modern ordinances the force of law, no delay would have been requisite; and, indeed, the King's consent would be nugatory.

The ceremonies of the promulgation are now greatly fallen off and altered. The following account of the forms recently observed, I copy from a copy :

" About eleven o'clock the cavalcade arrived at St. John's, where the Duke of Athol was received by the Clergy and Keys, and saluted by the fencibles :he then went in state to the chapel, where a sermon was preached by the reverend and learned Mr. Corlett, vicar of Kirk German.

After service followed the procession of state. The fencibles were drawn up in two lines, from the chapel door to the Tinwald-hill ; and the procession passed between the two lines in the following order

The clergy, two and two, the juniors first,
The Lord Bishop of Sodor and Man.
The Vicars general,
The two Deemsters.
The Sword-bearer.
The Duke of Athol, Governor
The Lieutenant-governor.
The Clerk of the Rolls.
The twenty-four Keys, two and two.
The Captains of the different parishes.

As soon as his Grace had ascended the hill, he was seated, under the canopy, in iris chair of state, The Deemsters then proceeded in the customary business of the day. The new laws were first read in English and then in Marks and after all the business oil the hill was gone through; three cheers were given;

His Grace then descended, and the procession moved back to the chapel in the same regular order. After the necessary business was finished in the chapel, such as signing the laws, &c, his Grace was conducted to his coach." ¹¹

The ancient manner of holding a court was much more ceremonies; and I copy from the beginning of the statute-book the following regulations and instructions

" Our doughtful and gracious Lord, this is the constitution of old time, the which we have given in our days, how yee should be governed on your Tinwald day. Ffirst, you shall come thither in your royall array, as a king ought to do by his prerogatives and royallties of the land of Mann ;. and, upon the Hill of Tinwald, sitt in a chaire, covered: with a royall cloath and cusheons, and your visage unto the east, and your sword before you, holden with Cue point upward, your barrons in the third degree sitting beside you, and your beneficed men, and your deemsters before you sitting, and your clarke, your knights, esquires, and yeomen, about you, in third degree; and the worthiest men in your land to be called in before your deemsters, if you will ask any thing of them, and to hear the government of your land, and your will; and the commons to stand without the circle of the hill, with three clarkes in their surplisses. And your deemsters shall make call in the coroner of Glanfaba; and he shall call in all the coroners of Mann, and their yards in their hands, with their weapons upon them, either sword or axe; and the moares, that is, to wit of every sheading. Then the chief coroner, that is, the coronor of Glanfaba shall make a fence upon paine of life and lyme, that no man make any disturbance, or stirre, in the time of Tinwald, or any murmur, or riseing in the king's presence, upon paine of hanging and drawing. And then shall let your barrons and all others know you to be their King and Lord."

The Isle of Man was not afected by any other than its own laws till the reign of Henry the Eighth, when an act passed the English legislature, and was extended to this island, for vesting in the crown all the monasteries and abbey lands.

The second act, relative to this country, passed in the same reign, dissevered the dioceses of Chester and of the Isle of Man from the Archbishoprick of Canterbury, and united them to the province and Archbishoprick of York.

The third, passed in the fifth year of the reign of Elizabeth, restricted the quantity of French wine, to be imported annually into the Isle of Man, to one hundred tons; and it appears, that the island paid much more deference at that time, than it did afterwards, to the English government.

Between this period and the fifth year of his present Majesty; no act was passed immediately relative to the island: Wherever we find the place mentioned at all; reference is made to its commerce with Great Britain and Ireland, the regulations taking place upon our own coasts. In the year 1765, the Sovereign of the Isle of Man sold his regalities to the King of England, As the sale did not in itself, but only in its consequences; alter the law of the land, I shall at present confine myself to the consequences, and speak hereafter of the sale, and the additional compensation to the present Duke of Athol.

The Manks legislature seem to have imagined that, with the royalties of the Lord, were sold all the rights and privileges possessed by themselves; and that these last were retained merely by the courtesy of the King of England. The first act of Tinwald, after the sale, was passed in 1776. It recites the title of the act of revestment : and we learn by the preamble that his, majesty had been most graciously pleased to grant his royal leave and permission to the customary legislature of the island, (himself being now the Lord) to enact what laws might be found necessary to the interior stood government and police of the isle,

Since the sale, the legislature of England has assumed the entire power of enacting laws respecting the customs or port-dues of the island, and also of regulating or prohibiting any manufactures which might be liable to affect the revenue : in the internal economy and laws it has not interfered. I do not mean to insinuate that the English legislature has acted improperly in such assumption. Public good is superior to individual justice; and if the public good required the acquisition of such power, it was the duty of the government to obtain it, either by consent - or assumption. Plutarch carries this principle so far as to term the rape of the Sabines, since it was undertaken for the public good, a glorious exploit. When property is obtained by violence, an equivalent should be returned to the proprietor, as is done in the making of high-roads or canals, a practice which very much lessens the individual injustice ; but the rights and customs of a people are inalienable by the governors, consequently, no compensation could be inade. To have given to their representatives seats in the British parliament, would have been a measure of apparent compensation. The original Manks government would then, of course, have been annihilated, instead of altered ; and the people would have been much more discontented.

The King could purchase only what the Lord possessed: but the Lord had possessed, and he afterwards admitted it, to levy or increase a single tax upon the people : consequently the interference of the English government relative to revenue matters dvas nearly as great a stretch of power after the sale, as it would have been before it.

The chief civil officers are, the Governor and Lieutenant-governor, one of them being chancellor, ex officio: the two Deemsters or judges, one for the southern, the other for the northern division of the island, being necessarily natives : the Water-bailiff, the High-bailiffs, one in each of the four towns, being also natives; the Coroners, or sheriffs, one for each of the six sheadings : the Lockmen, or bailiffs, Coroners' officers; and the Constables.

The two first officers have been already spoken of: the second, being judges and justices of the; peace, will be mentioned in th the county which they preside in : as will the water-bailliff also.

The Coroner is the chief keeper of the peace, and is åutliorisetl and obliged to arrest any one who breaks it. He is also to take care that the Governor's arrests be put into execution. He has the impanelling of all juries, the care of executing the sentences of the courts of law ; and some other civil duties to perform: but he does not in any instance act as judge. The bailiffs are his officers ; and the constables are peace officers.

This and the succeeding Chapters of the Second Part are chiefly founded upon " The Statute Laws of the Isle of Man," a literal copy, with a very few exceptions, of the original Statute book, published at Douglas in 1797, now scarce; and upon information which I derived from Captain Quilliam of His Majesty's Navy, and Mr. Cosnahan, Members of the House of keys.

Footnotes

1 ——Excisique luci, saevis superstitionibus sacri : nam cruore captivo adolere aras, et hominum fibris cousulere deos, fas habebant. Tacitus, Ann. lib. 14, c. 30.

2 A Court of all the Commons of Man, holden at Tinwald, before Henry Byron, Lieutenant of Man, upon Thursday next after the feast of St. Mary, in the year of our Lord God 1429; in the which William Scarffe, William Yveno, John Reade, Jenkin M'Qualtrough, John Nelson, Guboa Quanty, Ffinloe M'Key, Jenkin Lucas for Jenkin M'Nyne, Patrick M'Jolm, Andrew M'John, Gubon M,Kiscage, William M'Alexander, Richard M'Cowen, Donald M'Conave, Peter M,Quiggin, Gubon Gillander, Germot M'Martin, Gubon M'Cunneree, with the rest of his fellows." Statute book.

3 In the same court all these laws of Man are confirmed by Sir Jobn Stanley, by the grace of God, King of Man and the Isles, and by the best of the Commons of the Isle of Man, that is to say, William Scarffe ; Raynold Stevenson, and others." Statute, dated 1422.

4" In this book ensueth diverse ordinances, statutes, and customs, presented, reputed, and used for laws in the land of Man, that were ratified, approved, and confirmed, as well by the Honourable Sir John Stanley, Knight, King and Lord of the same land, and diverse others, his predecessors, as by all barons, deemsters, officers, tenants, inhabitants, and commons of the same land." "Beginning of the Statute-book, no date.

5 In the statute of 1609, they are all named, and the preamble runs thus

" Castle Rushen, 10th Oct. 1609. At an assembly of the lieutenant and other the 'officers, with the twenty four, called the keys of the land, for the consulting and determining of matters concerning the state of the land, there was these statutes ensuing made and enacted."

6 Extracts from the beginning of the Statute-book, without either date or signature

" Regulations.-First, that watch and ward be kept through your land as it ought, upon pain of life and lyme ; for, whosoever fails any night in his ward forfeiteth a wether to the warden; and to the warden the second night a cowe ; and the third night, life and lyme to the lord.

" And, to charge all inanner of men to be ready at your calling, upon pain of life and lyme.

" Also, touching the carriage of your turves, all your tenants of your six sheadings ought, by our laws, to carry your turves to your places as pieaseth you to have them, with all gther carriages, suits and services; that are needful to you, within your land of Man ; for i:; is use and custom of long time."

7 Vide Report of the commissioners, to whom the Duke complained, that bills detrimental to his interests bad passed the legislature without his knowledge, and had been transmitted to the King, against whose consent he had entered caveats.

8 The present Governor and Lord-proprietor has the following titles: The most noble John Duke of Athol, Marquis and Earl of Athol, Marquis of Tullibardin, Earl of Strathsay and of Strathardel, Viscount of Glenalmond and Glenlyon, Lord Murray, Balveny and Gask, Lord of the Isle of Man, Constable of the Castle of Kincleven, and hereditary keeper of the palace of Falkland. His English titles are Earl Strange, and Baron Murray, conferred upon him August Stb, 1786, His chief seats are at Blair in Athol, Dunkeld, Tullibardin, and Huntingtower, all in Perthshire.

9 In Jefferson's Manks Almanack are annually published the names of the members of the council, and of the other chief civil officers

10 The sum inclosed was 175 l.

11 Feltham's Tour.