[Appendix B(83) 1792 Report of Commissioners of Inquiry]
LETTER FROM LIEUTENANT-GOVERNOR SHAW.
HAVING as yet but for a few months resided in, or had access to be in any effectual degree acquainted with the concerns of the Isle of Man; and though I most lament, therefore, and from other causes which might he mentioned, how very little I find myself qualified to inform or otherwise assist his Majesty's Commissioners in the several objects of their inquiry, or in any degree proportioned to that zeal I feel, and would wish to manifest for his Majesty's service on every occasion, and on the present more especially, when that royal and paternal goodness which has been ever exerted for the happiness and prosperity of all his people, is extended to the Isle of Man, in the beneficent wish to render that also prosperous and happy ; yet, Sir, in obedience to the commands of my most gracious sovereign, to the best of my power, and in compliance with the requisition of the Commis-sioners themselves, I shall take leave, Sir, through you, to lay before the Commissioners such matters as, relative to the objects of their mission, have occurred to me, and which, in my humble opinion; appear not unworthy their consideration.
And first, Sir, in regard to the Constitution of the Isle of Man:-
It can scarce admit of a doubt, that the Isle of Man was originally peopled from the same great Celtic stock by which, with by much the greater part of Europe, the Islands of Great Britain and Ireland were first peopled; of this the language, still in great measure Celtic, is a proof demonstrative: Yet, in respect to government and laws, the Manks appear, in all ages, to have been a distinct people, and in some degree an independent, or not annexed to any other kingdom; and though the Island or Kingdom of Man appears to have under-gone several revolutions in its government, and at different periods to have been dependent on one or other of the British crowns, and that of Norway or Denmark, yet it appears also that, beyond all record among themselves, their Constitution has been free, or as much so as compatible with the tempers of the times, or latterly within record, consistent with the feodal tenures and feodal ideas under which the people held
And these, probably first derived from England, seem, or the effects of such system only, to have retained longer footing in the Isle of Man than, in some respects, they have done in England. The people, however, beyond all written record, have clearly within, claimed and enjoyed the right and privilege of being governed and regulated by laws of their own making, or consented to by themselves, or by their constitutional representatives. Regulations indeed, under the name of ordinances, have sometimes been issued in name of the Lord by the Governor and Council, which have been admitted as laws into the statute books, and some of them without any fur ,her confirmation of the Legislature: And the Keys also, in some cases, seem to have assumed and been allowed a similar privilege.
The proper and acknowledged Legislature consists of three Estates, viz., the Sovereign, the Governor and Council, and the House of Keys : And this Legislature, free and independent as respecting the Isle of Man, is competent to the passing of all Acts whatever of internal legislation or regulation as fully and effectually to all (internal) intents and purposes as any other Legislature on earth within its country or kingdom, and as entirely, binding and obligatory on the persons and properties of all persons whatever within the Isle. To maintain this independence of the Legislature, is held to be a first duty of every Manksman ; and its competence to all acts of internal concern, and in these being governed and regulated by laws of their own making, with the assent of their most gracious Sovereign, justly constitute the chief or highest pride of all his Majesty's Manks subjects, and the privilege which last, or with but life, they would wish to undergo : They dread therefore, and must ever dread, the interference in their internal concerns, or even a precedent being made for such interference from any other Legislature on earth; even the British, which though known to be generous in the extreme, yet from misrepresentation and thence misconception, still within the possibility of being less or more unjust; necessarily unacquainted, or not perfectly acquainted, with the laws, the needs, the wants, the customs, or modes of thinking of Manksmen, no other Legislature can easily be so competent to legislate for them internally. With the power of making laws is included, of course, that of altering, amending, and, where needful, or the change of circumstances points out the necessity or propriety, of repealing laws altogether; and of such necessity or propriety it is conceived by the people (or those among them who think) that they themselves, as best acquainted with their own circum-stances, and humbly representing to their most gracious Sovereign, must be better judges than any other Legislature can be for them.
This estate or branch of the Legislature is composed of twenty-four members, and in its present functions, both legislative and judicial, appears to have existed from a very remote antiquity.1 The members have their seats for life, but with the power of resignation with consent of the Governor. Residence for years out of the Isle, or having avowedly fixed their abodes in other countries, vacate not their seats as Keys. This is considered as an evil requiring remedy, more especially as in their judicial capacity thirteen, a majority of the whole number, must concur in the verdict or decision. In filling up a vacancy (by death, resignation, or crime forfeiting the privilege) the manner is, the Keys, or a majority of them (thirteen, make a House), choose to elect two persons: These are presented by the Speaker, with a committee from the House, to the Governor, and he selects one of them, who thereupon, being before the Governor in Council sworn in, takes his seat. The qualification entitling to a seat is small and definite with respect only to the nominal extent of land estate, viz., a quarterland;2 but the Keys are in general men of considerable property in the Isle. This mode of election seems but very ill to accord with any idea of popular representation, and in theory, in that and other respects, it appears liable to much objection. But the Keys in their present form and constitution have, as I have said, existed many ages ; and I confess, with every degree of con-sideration I have been able to give the subject, consulting too with sensible men of all parties and description, I do not see that at present at least, or as matters now appear, that any other mode would be more eligible or more beneficial to the Isle. This, however, is but opinion on my part, and founded on but short experience.
This estate, by the ancient constitution (and still unaltered by any law or order that I know of), was composed of members who were such ex officio, and as set down (though perhaps in order or precedence different, from that in which he has placed them) to the Commissioners by his Majesty's Deemster or chief judge: But from a difference of opinion lately arisen respecting this estate, or its component members, the Commissioners will see in it a matter which at least would need to be defined and ascertained in all time to come.
On my arrival in the Island, and as it now remains, I found the Council composed as follows of members regularly sworn in as such, viz.. The Governor,3 the Lord Bishop (who as premier Baron always, when present, sits and signs next to the Governor), the Deemster, the Attorney-General, the Archdeacon, Archdeacon's Official, the two Vicars-General, and the Clerk of the Rolls. The Receiver-General does his duty by deputy, who has not a seat, and the Water-Bailiff, if now entitled to a seat, does not appear to have been sworn in. [I more than once have desired of the Clerk of the Rolls to furnish me with a list or roll of the Council as by him (the keeper also of all the public records), sworn, in ; but under pretences which I have thought frivolous, my requisition has not been to this hour complied with.] But I found also, it had for some time been a custom to exclude the clerical members from their seats, and, as appears, by the mere will and pleasure of the Governor or Lieutenant-Governor for the time being; for it does not appear that it was done by any law, order, or instruction whatever, or which I could either find out, or even hear of. Knowing the pure integrity and zeal for his Majesty's service, and for the good of his Majesty's subjects, over whom they had been sent to govern, with which those gentlemen,4 under whom such exclusion had taken place, had been always animated, I am perfectly convinced they acted in the matter from reasons which to them appeared most cogent : But as those reasons, as stated to me, nor any otherwise urged, appeared not to me in the same light; and as I could not conceive that any could be of sufficient weight to authorize any mere Governor to alter what he conceived (as was the case with me) the constitution of a country, and in that, as in the present instance, deprive men of a privilege or franchise which, unquestioned before, they had enjoyed from time immemorial, I scarce hesitated when any matter of general concern occurred, to summon the whole of the Council, and not any one part, as had in my mind improperly been for some time the custom ; to have acted otherwise, and more especially in any matter of legislation, or even general concern, I should have considered as little other than garbling a Legislature, a power, in any analogy with the British Constitution (to which I conceived this to assimilate) I conceived not to be in any one man. Lately, however, on occasion of assembling the Legislature of the Isle to receive his Majesty's Commissioners, and to lay before them his Majesty's instructions to the Commissioners, and also his Majesty's commands, signified by his Secretary of State for the Home Department to me as his Majesty's Lieutenant-Governor, to aid his said Commissioners in the several objects of their missions as far as in my power-matters, if any could be, of serious importance and general concern to the whole Isle; and having summoned therefore the whole Council, his Majesty's Attorney-General (having, with regard to aiding the Commissioners in their several inquiries, received orders similar to mine) thought it proper, concurred with by the Clerk of the Rolls, to take exception, and protest accordingly against the Lord Bishop, &c., being admitted as members of the Council: But with the concur-rence of the Deemster, his Majesty's chief judge, I over-ruled the objection, and admitted those members to their seats. The Attorney-General objected on two several grounds ; first, as those members had been so long excluded (viz., from 1777, and in my mind contrary to law and every principle of the British Constitution, as the exclusion was not by any law) they ought not now to be admitted without an order from his Majesty. The exclusion, however, was but by Governor Smith, and, perhaps following his example, Lieutenant-Governor Dawson, my immediate predecessor; and it deserves remark, that by one or other of those gentlemen, it was that every one of the present ecclesiastical members had, at different periods, been sworn in of the Council. I would humbly apprehend, if they ought not to be admitted, they ought not to have been sworn in; that there the stop should have been made, and that it has something of singularity in it to swear men into an office, and ever afterwards, without reason given, or crime or misdemeanor alleged against them, to deny them the exercise of the functions of such office. The second ground of objection was, that as those members were in respect of their livings as churchmen of the patronage and (directly or indirectly) appointment of a subject (the Duke of Atholl), it was a subject who named so many members of his Majesty's Council. But if in this there is any weight, if we can suppose that men of character, independent of that subject from the instant they became possessed of their several livings (for in the Isle of Man there is little hope of translation or change from worse livings to better), should still carry their gratitude to the patron so far as at his will and pleasure to injure their country by their acting or obstructing the measures of government, and in these making themselves odious and detestable to their countrymen ; still it is the constitution of their country, as yet unaltered, by which they possess their seats and voices in its Legislature; and unalterable, I conceive, in this respect by any power, at least in the Isle of Man, short of the whole Legislature.
For the opinion of the Attorney-General I have a very high respect, and it is not impossible but that in this whole matter I have been wrong; but if so, I can say, that it has been in the purest wish to do only that which was right, most consonant to the British Constitution, and best for his Majesty's service; and I trust therefore to be forgiven. It has been indeed impossible for me to conceive that any Governor could or ought to dictate in who should or should not sit as members of the Legislature of a country.5 In my own private opinion, I confess I do not see the necessity of so great a proportion of his Majesty's Council being ecclesiastic, and possibly it may not at all times be found eligible; but still the matter ought not to be at the discretion of any Governor, or as he may be advised by any other counsellor; and at any rate the Commissioners will see it, as I have said, a matter which requires being defined and ascertained in all time to come. The Commissioners will observe, that in respect to the Council of the Isle of Man, there is a part or certain number of it called the Staff of Government; these are (at present, and I believe has been since the Revestment), the Governor (or Lieutenant-Governor), the Deemster (or Deemsters when there have been or may be two), the Attorney-General, and the Clerk of the Rolls; they are properly the Cabinet, the Council of the Governor in all matters judicial, and chief in the whole executive part of the government. The error, if such it was, has been in consulting those alone, and but them, in any case, and in confining to them the whole legislative power.
Consist, as in England, of custom or common law, and of written or statute law. The people appear to me entirely satisfied with their laws as they are, including of course in themselves the power, with the approbation and assent of their most gracious Sovereign, to add, alter, amend, and repeal laws as circumstances may require. It would be tautology to add, that no laws of any kind can pass or have effect contrary or repugnant to the laws of England, or that the Parliament of Britain have not the right to regulate the commerce and the taxes thence arising, or that may arise in the Isle of Man, as a dependency of the Crown. But respecting the laws, I shall only in particular state a circumstance arising in the practice of them, which I conceive to be pro-ductive of much evil; it is the case of appeals to the King in Council from the Courts of the Isle.
Appeals are allowed in causes of value so low as five pounds. This, when under the government of a feodal Lord Proprietor, might have been very well. Appeals to him were little expensive, and produced but little delay; but now, in both respects, it is much otherwise; and in fact the privilege of appealing is, but too often, in the hands of the more wealthy and litigious, converted into an engine of oppression, and a means not only of delaying justice, but of evading it altogether: And hence the evil. Out of several that might be, I shall beg leave to state one instance : A poor labouring man, John Tear, was, by a man of some property, and very litigious, his neighbour Standish Christian, accused of theft. Christian first offered to compound the felony for half-a-guinea; but that being refused with proper disdain, he had the poor man taken up, confined somewhere in the country for some days, and not legally in the form, and then sent up from the north side to the south, and tried criminally before the Deemster, when, by the verdict of a respectable jury of his country, he was honourably acquitted. On this, Tear, as advised, brought an action at Common Law against Christian for damages, &c., &c., and by verdict of a similar jury recovered some £15 or £16. From this, Christian, merely to obtain delay, and tease the poor man, appealed to the Governor, who, on the appellant's own statement alone, at once dismissed the appeal, with costs, to the entire satisfaction of every person in court, or out of it, and acquainted with the circumstances of the case. Next day, however, Christian demanded an appeal to his Majesty in Council, in the certainty that there the poor man COULD NOT follow him. In fact, be the sum or circumstances of the case what they may, it is entirely in the breast of the person cast in the courts of the Isle, whether any civil action shall terminate in the Isle or not, or indeed whether or not it ever terminate at all in any decision or judgment had upon it.
When an appeal to his Majesty is demanded (in form of a petition) in the order by which it is granted, the Governor stipulates that such appeal be prosecuted according to law, and bonds, with sureties, are given in accordingly in one hundred pounds. But not always is the appellant, if he would, able to prosecute the sureties for expenses, and all are liable but in the amount of their bond (£100) ; and indeed four times out of five, it may safely be said, there is not at all any intention to prosecute. The appeal, pro forma, is, perhaps, lodged in the Council Office (which may be done for four or five pounds), and that is called procedure in, or prosecuting the appeal; but there it rests for ever, and justice for ever evaded, unless, very seldom the case, the respondent is both able and willing on his part to press the matter to a hearing and discussion. To bring an appeal (for five pounds) to a hearing simply, and affirmed or dismissed in default of appearance of the one or other party, costs from £50 to £80 (as I understand) ; so it may easily be judged in what spirit it is such appeals are ordinarily preferred. Lately, in bar of an action of trespass at Common Law against this same Christian (for turning the course of a river upon a neighbour's lands), an appeal to the King in Council in a former suit with the said neighbour about boundaries was pled; which appeal had then been pending, and unmoved- in, for some eighteen years or upwards, and likely so to pend for Christian, to the day of final judgment. I would humbly then beg leave to suggest as some remedy to this evil, and in the hope, for the benefit of society, to damp a little a spirit of litigiousness, but too much prevalent in the Isle of Man, that appeals to his Majesty in Council from the courts of the Isle should not be allowed in causes of value below 5 pounds; and when granted in causes above that value, that it should be in the power of the Governor, consulting with his Council in such matters (the law officers of the Crown), to stipulate for such appeals being, bona fide, prosecuted within a certain time Specified; that is, to a hearing; and to augment the quantum of penalty in the bond, so as to cover the probable expenses of the appeal, as well as the sum and costs awarded by the judgment appealed from.
For all particulars respecting the constitution, laws, &c., I would beg leave to refer the Commissioners to much better authority, the Deemster and the Attorney-General of the Isle. I am, with much Regard,
Your most obedient and humble Servant,
Castle Rushen, 19th October,1791..
CHAS. PEACE, Esquire, Secretary to his Majesty's Commissioners, &c., Isle of Man.
1 By an Act of Tynwald in 1777 the Keys were deprived of some part of their appellate jurisdiction. but which is, or it is hoped will be, by a Bill now before his Majesty for the Royal Assent, restored to them.
2 Quarterlands differ in their value, and may be worth from £15 to £120 per annum.
3 In absence of the Governor-in-Chief the Lieutenant-Governor possesses all his powers whatever, and with these all the responsibility. Different from what I believe to be the case in the American Dependencies of the Crown ; in the Isle of Man the Governor and Council form but one Estate,
4 Governor (in-Chief) Smith and Lieutenant-Governor Dawson.
5 And vide the Governor,s Oath of Office.