[From Wood's Account of IoM, 1811]
On private Wrongs, and their Redress.
THE distinction between private and public wrongs is thus defined by Blackstone: privates wrongs, or civil injuries are an infringement or privation of the civil rights which belong to individuals, considered merely as individuals: public wrongs are a breach and violation of the public rights or duties due to the whole community in its social, aggregate capacity, The difference between them, though founded, perhaps, upon the law of nature, is generally the consequence of positive law. Wrongs, the redress of which is intended as a compensation to the individual injured, I term, private: and those for which the criminal is more severely punished, chiefly as an example to others, and with little or no benefit to the injured man, I term, public.
Any person cutting his neighbour's grass or corn, breaking fences, or putting cattle into his fields at night for pasture, might formerly be fined end punished at the discretion of the Governor or Deemster. The party aggrieved might also recover damages at the court of common law; and the evidence taken before the Governor or Deemster was to be sufficient for the jury. Put this method was abolished in 1665 : a complaint of trespass is to be made to the Coroner or other proper officer, who must, without delay, nominate, charge, and swear four honest neighbours, to view the trespass and estimate the damage. Upon their verdict being given, which is to be four times the actual damage, the defendant is to pay the amount to the plaintiff. If he refuses payment, the Deemster, on application made to him, will immediately issue an order to the Coroner, to take a sufficient quantity of his goods in execution.
The trespass jury is, properly speaking, composed of four arbitrators, who, if they cannot agree, sometimes choose a fifth person, or umpire, and herein they differ from other Manks juries, who are obliged to give an unanimous verdict.
Dogs worrying sheep or lambs, the fact being proved before the Deemster, are to be hanged and the owner is to pay certain damages to the injured party.
If the boundary or fence between two estates be in a ruinous or insufficient condition, both parties must contribute equally to its repair. If either refuse, the Deemster, on application made to him, will appoint a jury of four judicious men of the sheading to examine the boundary, and to report an estimate of the expense of such repair as would keep the fence in a proper state for the term of ten years. The moiety of such estimate having been awarded by the Deemster against the defendant, the plaintiff is obliged, with all convenient speed, to erect a stone wall, at least two feet four inches broad at the foundation, sixteen inches broad at top, and five feet high, covered with copeing or projecting stones,
Persons, having been found guilty of slander in the temporal or spiritual courts, are subject also to actions for damages at the court of common law. 1
Nuisances, encroachments, filth, or rubbish, in any town, are to be removed by the offender, by order of its respective High-bailiff If the party neglects to do so, he is to be fined ten shillings for every offence ; and if the High-bailiff neglects to present him before the Governor or Deemster, himself may be presented by any one, and be. fined in the same sum, one half to the informer; the other half, in this case, and the whole penalty in the former case, being appropriated to the improvement of the marketplace.2 Pigs going at large in the streets subject the owner to a penalty of an English shilling each.
A woman, convicted of adultery in the ecclesiastial court, loses her wife's or widow's right, and is entitled to only such alimony or property, as the court thinks proper to allow. Neither of the parties is liable to any other punishment, except church censures.
A person may recover damages for false imprisonment, vexatious or frivolous arrests. The action was formerly brought in the court of chancery: the amount of damages was referred to a jury ; but the Chancellor might mitigate it if he thought it extravagant. An act of 1777 takes the matter out of the Chancellor's jurisdiction, and directs such suits to be brought before the court of common law, and finally determined by a Jury. Damages for vexatious or frivolous arrests, made by the authority of the Water-Bailiff, usually, but improperly, called detention for a. tide's water, are recoverable in the Court of Admiralty.
I proceed now to mention the courts of law for the redress of civil injuries. The courts of the High-bailiff, of the Deemster, and of the Governor, are somewhat similar to the only method of trial known to the civil law. Here the Judge is left to form the sentence in his own breast, upon the credit of the witnesses examined. In other courts the causes are determined by a jury. Trial by jury was common at a very early period, among all the northern nations; so much so, that there are scarcely any records extant on the constitution of those countries that do not mention this tribunal. It was ever justly esteemed a privilege, or rather law, of the most beneficial nature.3
A High-bailiff resides at each of the four towns, and holds his court there once in every week. In the island are seventeen parishes, of which, Lonan, Oncan, Braddon, and Marown, are under the jurisdiction of the Bailiff of Douglas: Malew, Santon, Arbory, and Rushen, of the Bailiff of Castletown : Patrick, German, Michael, and Ballaugh, of the Bailiff of Peel; and Jurby Audreas, Bride; Lezaire, and Maughold, of the Bailiff of Ramsey. This court was instituted so lately as the year 1777.
The high-bailiff is the only judge who takes cognizance of complaints and debts tinder the value of forty shillings. He usually determines them at the first hearing, in the presence of the parties; who are summoned by his warrant. An appeal or traverse from his decision may, within seven days, be made to the Deemster, the appellant entering into a bond of three pounds, payable to the King, to prosecute the appeal with effect within one month. All appeal bonds, from whatever court, have the same penalty annexed. If the Deemster confirms the former decision, the appellant is obliged to pay the costs of the application, and also the value of the bond, unless mitigated by the court, as it sometimes is, even to ten or five shillings.
There are two Deemsters in the island, one of whom is judge, or chief justice of the southern division, and usually holds his court at Castletown ; the other, of the northern division, and usually holds his court at Ramsey. They are not obliged, by law,, to sit in these places; but each may hold his court wherever he may deem most convenient, within his own district. According to Chaloner, he might decide a cause, even walking or riding upon the highway, provided the parties were in his presence. On entering upon the functions of his office he takes the following oath : " By this book, and by the holy contents thereof, and by the wonderful works that God hath miraculously wrought in heaven above, and in the earth beneath, in six days and seven nights, I, A. B. do swear that I will, without respect of favour or friendship, love or gain, consanguinity or affinity, envy or malice, execute the laws of this isle justly, betwixt our Sovereign Lord, the King, and his subjects within this isle, and betwixt party and party, as indifferently as the herring's back bone doth lie in the midst of the fish." The summons of appearance to any party concerned was formerly, and even till the year 176.3, nothing more than his name or its initial, marked by the Deemster upon a piece of blue stone or slate. This, with two-pence, was given to the sumner, whose duty it was to shew it to the party, to tell him who was the plaintiff, and let him knew the requisite time of appearance. It is now in writing upon paper, and costs sixpence.
The Deemster has an extensive jurisdiction, being competent to decide all causes exceeding the value of forty shillings, not being actions where damages are to be assessed, or such as come properly before the Chancellor ,- all such as respect defamation, slander, or simple breach of peace; and all appeals from the judgment of the High bailiff. The cause is usually determined at the first hearing ; and an appeal from his decision may be made to the Court of Common Law or of Chancery, as the case may require; the action having originated here or in the High-bailiff's Court making no difference in this respect.
Decorum between the parties is not always so much adhered to as it ought to be. They and their witnesses are examined upon oath by the Deemster, as he may want information on the subject; and I have heard each give the lye to his antagonist without any ceremony, proceed to pretty high words, and sometimes, as if in defiance, make grimaces. The business of Attorney and of Counsellor are here vested in the same person, and he is not always perfectly free from a spirit of this description, The trial is in the Manks or English language, and sometimes a mixture, of both.
The costs of the action include a very trifling allowance for the travelling expenses of the party and his witnesses.4
A Court of Common Law is held at Castletown and at Ramsey four times in the year, the term commencing one week later at the latter than at the former place.
The Coroner opens the court with this proclamation : " I do fence this court that no manner of person do quarrel or brawl, nor molest the audience, and that they do answer when they are called, by licence of the King and this court, I draw witness to the whole audience that the court is fenced." The Governor may preside by the Deemster.
The business of this court consists chiefly in trying civil actions, -where damages are to be awarded, and in hearing appeals from the decision of the Deemster. Every defendant is to be summoned three days, at least, before the court clay, and have deli-eyed to bin- the particulars of the cause, and the account against him : but if be is off the island, the summons must be given to the tenant in possession. The compliance of the plaintiff with this practice is to be verified by the oath of two witnesses. The defendant, if upon the island, must enter his appearance and proceed to his defence, so that the cause may be tried at the second term : if absent front the island, at the fourth term. The court may, in special cases, appoint the trial of a cause between the tennis, and has the power of granting a longer time than usual either to the plaintiff or defendant.
If the plaintiff, after the answering of the defendant, fails to prosecute his action, he is cast in his own plea, and obliged to pay the usual fine, with costs of suit ; unless sickness or other lawful cause has retarded the proceedings ; in which case the court grants further time, or, if already cast, a recommencement of the action at the next term, but at no time afterwards.
The causes are determined by a jury, the mode of, impannelling which is this: The court, at least six days before its sitting, issues orders to the several Coroners to summon two or more good and lawful men "out of each parish, giving them at least three days notice of their requisite attendance. At the sitting of the court, each Coroner makes a return, in writing, of the names of the persons summoned, with their addition and place of abode, which are copied by an officer of the court, on distinct pieces of paper, of equal sizes, and by him given publicly to the presiding Judge or Magistrate, who causes them, in his presence, to be rolled up and put into a box. When any cause is called upon to be tried, some indifferent person, in open court, draws out six of the papers; and if any person whose name is drawn should not appear, or should be challenged by a party, and disapproved by the court, a further number is drawn to complete the jury. The six persons drawn, approved of, and sworn, have their names written upon a pannel, and are kept apart in a box during the trial. If a cause is brought on before the preceding one is determined, the first jury withdraw to an inner room, and the second is impannelled from the remaining names. If either party desire to have a special jury, a special jury is to be returned, impannelled, and sworn, in such fair, open, and impartial manner as the court may direct. No jury, nor any member of it, is at liberty to depart till their verdict be delivered, in writing, into court.
If any person summoned on a jury, or any witness duly summoned, do not attend, and the trial be on that account postponed, he becomes liable to all the costs of the action.
From the decision of this court, an appeal, to be prosecuted within six months, may in all cases be made to the House of Keys.5
In the Court of Admiralty, causes are determined by a jury of six, usually merchants. This court is mentioned only once in the Statute-book, and there it is directed, that all actions for damages, respecting false arrests made by the Water-bailiff's authority, shall be determined by an Admiralty jury.6
Disputes relating to the rights of the crown, the imposing of fines, and the determining of the rights of tithes, are cognizance in the Court of Exchequer. It is held the day after every Chancery Court, or immediately after it on the same day.
The Court of Chancery is one of law and of ,equity. It takes cognizance of frauds respecting titles to estates real, when bond to prove their existence has been given, but not otherwise s pf disputes concerning mortgages ; of actions personal, where accounts are unliquidated ; of the estates of persons insolvent or absconded, and disputes respecting them; of all civil causes of arrest, except at the suit of the crown ; and of extravagant costs, awarded by inferior courts. There is not any well defined line between those causes which ought to be brought before the Deemster, and those which ought to be brought before the Governor. The court is held at Castletown on the first Thursday in every month, harvest time excepted: but. should the day be distant, and either party request an earlier hearing, it is usual for the Governor to appoint, a special court-day.
The fist step in chancery proceedings is to write a petition to the Governor, desiring him to summon the defendant to answer the complaint. The plaintiff, by himself or counsel, opens the cause, and proves it by witnesses, which the defendant may cross--examine. Then the defendant makes out his case by witnesses; again examined by the plaintiff. The evidence of the parties themselves is not admitted. It is not usual, in any of the courts, except in special cases, to make, at the time,, any minutes of the evidence, though the action and determination are recorded. The defendant having made his appearance by himself or attorney, the Chancellor may, at his pleasure, either decide the cause at once, or postpone it to a future sitting: But, if the defendant disobey the surnmons, the decree cannot be made till the fourth court.
The Governor is authorised to make, from time to time, whatever rules and orders he may think proper, in i:i9 own practice and proceedings.
From his decision, or from that of the House of Keys, all appeal may be made to the King of England in council, in any cause not lower in value than five pounds ; and his decision is absolutely final.
No action of arrest can be granted against a landed man, or native of the isle, to imprison or hold him to bail, to appear at any court, on account of a civil action, unless lie has obtained the Governor's pass, or there is some just cause to believe that he designs to go off' the island;7 debts due, or supposed to be clue, to the crown, being exceptions to this rule. 8 Any person prosecuted for a foreign debt, by an action of arrest, can be held to bail, only for his personal appearance, and for the forth-coming of what . goods he has upon the island; his clothes and money continuing his own. Hence it is, that strangers who, from misfortune or fraudulent design, have left their creditors, and brought with them the remainder of their property, find a safe asylum here. This place, indeed, is more. privileged than may be, at first, imagined: for, not only is the money of the idle class secure, but also the property of the industrious, provided they take the precaution of carrying on business, in the name of some other person, their friend, who, whether in partnership or not, must nominally be possessed of all the effects, except the money. Persons of this description also buying houses or land usually make the purchase in the name of a relative or friend, and thereby possess the property without molestation. The debtor may be informed that a bankruptcy at home will annihilate all such speculations.
A creditor, or his agent, in order to procure an arrest, must produce his speciality, if he has any; if not, he must make an affdavit before the clerk of the rolls, or other person duly authorised, wherein is to be specified the amount of the debt, and in what manner it was contracted. If a debtor is about to leave the island without settling an account, the water-bailiff may, upon affidavit of the creditor, grant. his authority to take him into custody, to detain b nl for the space of twenty-four hours, but not longer ; this time being amply sufficient for procuring a regular arrest.
The Ecclesiastical Court takes cognizance of adultery, fornication, swearing, and cursing, probates of wills, granting letters of administration and tuition, of children's goods, subtracting of tithes, defamations, drunkenness : and no appeal can, in these cases, be made from its decision. The causes, when important, are determined by juries impannelled by the Vicars-general. The Arch-deacon has alternate jurisdiction with the Bishop in inferior causes; and holds his court in person, or by his official, as the Bishop does by the Vicars-general.
The ancient manner of proving a debt due from the deceased was this: The creditor took a witness with him to the church-yard, and, upon the grave,, of the deceased, swore to the debt. This practice was abolished in 1609, and the matter referred to the spiritual-court, if within a twelvemonth and a clay of the probate ; if beyond this period, the temporal court.
The ecclesiastical judges possessed great power over the person of the subject, till the year 1737, at which time it was much diminished. They could no longer imprison, except. for a short time, in certain cases ; and the fines and imprisonments for contempt of court were no longer discretionary.
Townley mentions a curious presentment delivered in at the Bishop's Court, held at Kirk Christ Lezayre, during his residence at Douglas "The devil take Billy Wattleworth for having such bad ale." The offence being proved, the offender was subjected to a fine.
The language of the ecclesiastical decrees is a most curious jumble of Latin and English, of which the following are instances:
" K. Marown church, Nov. 1, 1789, John Bridson, curate. Presentments. The Curate and wardens present Margaret Clark, alias Fayle, for fornication ; (a child born at K. Patrick, 24th October.) This woman has deposed, on the Holy Evangelists, that William Kelly, of the said parish, is the father of the said child; which he acknowledged before me., Evan Christian. The said Mary Clark is therefore censured 7 dies in carcere; and to enter into bonds of 31. in usurp Domini Regis; to undergo penance 3 dies, plena ecclesia, in penitential habit, and not iterum fornicari; and the said William Kelly for being an adulturer, is censured 14 dies, in carcere, and to enter into bonds of 101. in usum Domini Regis; to undergo penance 7 dies in diversis ecclessis, et non iterum machari.
EVAN CHRISTIAN, Vicar-general.
Item. The wardens present William Kelly, for not living with his own wife, and for living will the above named Margaret Clark, alias Fayle. The said William Kelly and Margaret Clark are hereby ordered to be committed alternately to prison ; there to remain until they enter into bonds of 101. in usuan Domini Regis, not to cohabit or associate together in future, except at church and market ; and before releasement to pay all fees.
The wardens present Christian Guliam for fornication ; a child born : common fame. This woman having alledged that she has a husband, who is father to the said child, her censure is suspended,
re JOHN MOORS, " Ev. CHRISTIAN.
" Examined by J. CULLEN, Epis. Regr. To the Summer to execute."
Townley, who copied; and from whose journal I copy these presentments, offers a query to the reader : whether it is not dangerous, in this island, for a man to go to bed with his own wife, without leave first obtained from the spiritual court.
" St. Anne's presentments, 8th Nov. 1759, Charles Cubbin, vicar. The church-wardens present Thomas Harman for swearing by his conscience, and making use of the word 'devil' in his common talk. They present Thomas Caine for not attending divine service on the Sabbath day, and for cursing Elizabeth Callister in these words, 'plague on thee.' They also present Elizabeth Callister for cursing Thomas Caine in the same words that he cursed her, ' plague on thee."
"We fine Thomas Harman, Thomas Caine, and Elizabeth Callister 2s. (id. each, for nonappearance and contempt of court, and they are to be admonished by the pastor for the said offences.
Examined by J. CRELLIN, Epis. Regr.
"To the Vicar of St. Anne's, these to publish plena Ecclesia."
The courts, now enumerated, were not formerly courts of record. The laws were locked up in the breasts of the Governor and Deemsters, conveyed by oral tradition from one generation to another, and known to the people only by the sentence which they decreed. This practice was followed by the more eligible plan of keeping precedents as guides to future determinations. Even then, they were kept by three locks, their respective keys in the possession of the three chief officers of state, from the scrutinizing eye of the vulgar; nor were they, till the fifteenth century, generally known to the body of the people.
No person can act as an attorney, or plead in any other than his own cause, till he has received a licence from the Governor, and has publicly taken the government oaths, and also the one following : " I, A. B. do swear, that I will truly and honestly demean myself in the practice and knowledge of an attorney, to the best of my ability." It is not usual for the Governor to grant his licence to any but a native, nor even to him till he has served an apprenticeship of five years to the clerk of the rolls.
I cannot, in any manner, give the reader a better idea of the expense of litigation, than by furnishing a few examples of the fees allowed by he courts. of law in taxing costs.
Fourteen pence is the cost of a summons to the Court of Chancery; sixpence to the Deemster's court ; and three-pence is the value of a grant of execution. The entering of an action, or of an appeal, to be determined in chancery, costs sixpence for one side of half a sheet of paper, and one halfpenny for every twenty-four words afterwards : the copy of a decree, the same. For the probate of a will one shilling and two-pence is charged: for a grant of administration three shillings and four-pence. An attorney charges 2s. 11d. for a retainer; 3s. old. for receiving instructions ; 3.s. 6d. per sheet for a bill in chancery, written, the last sheet excepted, on all sides; for filing, and receiving a copy of it, is. 9d.; for drawing a petition, 2s. 11d. per sheet ; for a motion in court, 2s. 11 d. ; for drafting an answer for the defendant, 2s. 12 d. ; for preparing and producing a brief, 3s. 4d. per sheet; for arguing a carse, or attending to examine evidence before the Chancellor, 5s. 10d. ; before the Deemster, 2s. 11 d. ; for attending any court upon business, 12s. 3d. per day, besides professional fees; for travelling expenses, 1s. 2d, per mile.
1 Statute-book, 1736.
2 Statutes 1776 and 1777.
4 "Witnesses shall have charges allowed them, save in the Lord's causes, in manner following: a gentleman or gentlewoman, who shall be charged as a witness before any court, magistrate, or minister of justice, shall, upon his or her appearance, be allowed sixpence for every parish through which he or she shall be obliged to travel, so that the same do not exceed two shillings and sixpence in the whole. Every tradesman or tradeswoman shall be allow-d, for loss of time, eightpence, besides twopence for every parish lie or she shall be obliged to go through, so that the whole does not exceed one shilling and sixpence. A labouring man shall be allowed fourpence for loss of time, and a penny for each parish : a labouring woman shall be allowed twopence for each parish." Statute-book, 1755.
5 Statute-book, 1747.
6 Statute-book, 1793.
7 Statute-book, 1736.
8 Act of Parliament 5 Geo. III. cap. 39; Act of Tinwald, 1777 ; and Act of Parliament 50 Geo. 111. cap. 12.