[Appendix C(2) 1792 Report of Commissioners of Inquiry]
GENTLEMEN, Newtown, 13th October,1791
IN consequence of directions from Mr. Secretary Dundas, and in compliance with your request signified to me the 24th of last month, that I should furnish you with information in writing, respecting the ancient constitution of the Isle of Man, the nature and functions of its legislature, the courts of civil and criminal jurisdiction, the nature of its magistrates and police, the variations which these different institutions have recently undergone, and how far the duties of them have been altered or suspended by the operation of the statute of 1765, as also with any other information or materials which may appear fit, and which may any way tend to facilitate the objects of the proposed inquiry ;" I shall endeavour to supply you with a general outline of the institutions thus inquired after, leaving further particulars to be communicated by gentlemen who have been more conversant in the local polity of the island, or to be extracted, if necessary, from the muniments and records to which, through the means of the Clerk of the Rolls, I doubt not you will have free access.
The limits which must be put to the time allowed me for answering your inquiries, will not admit of my entering into the minutiae of the subjects, if it were necessary, which I presume it is not, to the design in which you are engaged. The same circumstance may have occasioned, and will therefore, I hope, in some degree excuse, much inaccuracy and deficiency in the statement I mean to lay before you. But much imperfection will arise also from another cause.
It is impossible to present you with a complete system, as the constitution of this island ; the country is yet in a state of society far behind the neighbouring kingdoms. Till about the commencement of the present century, the people appear to have been extremely illiterate and ignorant, incapable of forming or comprehending an abstract scheme of civil government, and unacquainted in a great measure with the importance of political institutions ; their views extended not beyond present emergencies ; they thought only of finding remedies for the evils they immediately felt : hence their public acts and proceedings, especially those of more ancient date, have usually been hastily resolved, unconnected, inconsistent, sometimes inexplicable or absurd, nor do the memorials preserved of them appear to be more regular, methodical, or correct. They were the work of rudeness and simplicity, or of accident and necessity. From such materials what can be collected but an imperfect sketch of defective establishments ? There is no other mode of deducing from them any coherent plan, but by adverting to the general tendency of the different institutions, and the prevailing course of custom. If every measure recorded were taken as a precedent, and every document received as law, the result would be a composition whose parts contradicted each other, and which most be self-destroyed. Whatever is supported by the general tenor of ancient usage, and is confirmed by the constant practice of later and more enlightened times, alone possesses the true character of authenticity.
Before the grant of this island to the Stanley family, (about the year 1406,) no written public memorials of its affairs appear to have been preserved ; and if any such were to be found, it is probable they would throw little light upon the present investigation. Prior to that era, the isle was subject to a variety of different governments. Though usually subsisting as a petty kingdom, (to which the dominion of some of the Hebrides was once annexed,) it was also successively tributary to or united with Denmark, Norway, Scotland, and England. These repeated changes must, beyond a doubt, have produced such a mixture in the inhabitants, and such a confusion in their customs, as to render it impossible to reconcile their institutions, if they could be traced. It would be vain, therefore, to look for information during this period. Records were first introduced by Sir John de Stanley, soon after his obtaining the patent of the 7th year of Henry the IVth, vesting the island in him and his heirs. The Manks statute-book commences in the year 1422, and no document but that of 1417, hereafter mentioned, has been discovered of earlier date. Here, therefore, the inquiry on the present head should begin.
By the patent I have mentioned, the King granted to Sir John de Stanley, his heirs and assigns, the Isle, Castle, Peele, and Lordship of Man, with all royalties, privileges, and appurtenances of every kind thereto belonging, in as full and ample a manner as they had been possessed by any of the former Lords or King of Man, to be holden by homage, and the service of rendering falcons to His Majesty, and the like acknowledgment to every of his successors at their respective coronations. Under that grant this territory was therefore a fief, separate from the kingdom, but dependent on the Crown of England ; and the Lords Proprietors were feudatory Princes . They possessed the prerogatives, and for several generations retained the title of royalty, they had the sovereign controul of government in every instance: under such restrictions as were from time to time introduced, they established laws ; they appointed at pleasure all the principal officers employed in public affairs ; they had the patronage of the bishopric, and originally of all the ecclesiastical benefices ; they drew a revenue from the country by rents, services and casual dues, and afterwards by customs, and other imposts ; they exercised an appellate jurisdiction over all civil causes, and even in capital cases could pardon offenders. The executive power, therefore, in the largest extent, was in their hands. The principal lay officers whom they employed in the island in the administration of government, were, the Governor, anciently styled also the Captain or Lieutenant , the Receiver General , the Comptroller , with whose office that of Clerk of the Rolls was generally united ; the Water Bailiff, who was generally also Collector ; the Attorney-General ; and the two Deemsters ; all of whom acted under commissions from the Lord, during his pleasure.
The Governor, Captain, or Lieutenant, was the Viceroy, or representative of the Lord Proprietor, and in that capacity exercised most of his prerogatives. He had the power of convoking, and formed a part of the legislative assembly, or Court of Tynwald. All the principal courts of judicature could be held only by his warrant. He usually presided in them in person, and overruled all other jurisdictions by an appellate authority. He had the command of all the military force ; which consisted of the inhabitants able to bear arms, who were obliged to attend when called forth in array, to keep watch and ward, to serve in garrison in the castles of Rushen and Peele, and also the several forts. Whenever a vacancy happened in any of the chief offices, he nominated a person to fill the place pro tempore, and his recommendation was generally the rule of fixing on the successor. All inferior offices were entirely in his disposal. A Deputy-governor was occasionally appointed by the Governor in chief, and in his absence was invested with all his powers and privileges.
The Receiver-General, or Treasurer, through the means of the Water Bailiff, or Collector, and other ministerial officers, called Coroners and Moars received, and in the presence of the Governor and Comptroller deposited in the treasury-chest all the Lords revenues arising in the island ; and be paid there out the salaries and other necessary disbursements, subject to the check of the Comptroller and the audit court.
The Comptroller assisted in stating the accounts of the revenues, and was the principal agent in settling them at the general audit : in a judicial character he took cognizance of all offences committed within the garrison : as Clerk of the Rolls he kept the records, and entered the minutes of the pleas and proceedings in the several courts ; he was Clerk of the Markets, and had the regulation of weights and measures ; and he was Head Searcher, and had under him Deputy Searchers in the several ports.
To these three officers were intrusted the superintendence and management of all the proprietors fiscal, which were usually thought his principal concerns. They held a general audit annually for adjusting the accounts, which, with whatever remittances were made, were forwarded to the Lord by the Governor.
The Water Bailiff, or Collector, had the charge of collecting, in the first instance, whatever accrued to the Lord by port duties, or by any means whatever below the full sea mark : he was styled also the Admiral, and held a sort of admiralty court, which could take cognizance of every flair, the cause of which arose between high and low water mark, or at sea, or which related to maritime affairs.
The duty of the Attorney-General was to conduct all suits and prosecutions on behalf of the Lord, to guard against any infringement of his rights and prerogatives, and to undertake the cause of such as laboured under any incapacity that by the law intitled them to his protection.
All the before-mentioned officers, subordinate to the Governor, were said to be of his Standing Council, and sometimes, with the Governor, were termed also of the Lords Council. By Standing Council seems to have been meant all such officers as were intitled, without a special requisition from the Governor, to take their seat in the Council whenever it met, in opposition to others, occasional members, who could only appear there when called upon so to do by the Governor or the Lord : and that such privilege of being stated members of the Council be longed to the officers above described, may be collected from their oaths, in which they were sworn to assist the Governor with their advice so oft as should be needful, or they should be thereunto required : they were all likewise, ex officio, conservators, or justices of the peace: anciently a table was kept for them in the castles of Rushen and Peele, and they were called. Officers of the Household
The Deemsters seem to have been looked upon as being, with the twenty-four Keys, (whose origins and functions are treated of hereafter,) the repositories of the customs and traditions which constituted the common law, in the language of the country termed Breast Laws. When required by the Governor, either alone or in conjunction with the Keys, they were to resolve such points as were proposed to them respecting these traditions, and their answers were registered as authoritative they were the justices who decided in all ordinary disputes, and amadaverted on lesser misdemeanors ; and they sat as judges with the Governor in the superior courts of law. In all their duties they might act either jointly or severally ; they had their salaries and were intitled to small fees regulated by law. Being probably led by their business to fix in situations at a distance from the castle, being distinguished by their judicial office from the others, whose employments were chiefly ministerial, and being never included in the household, they were almost always spoken of as separate from the other officers They are not in any record that I have met with, described as being in those times of the Standing Council ; but they were to join that assembly whenever called upon by the Governor. By their office they were to assist him with their advice when thereunto required : they attended, however, almost as frequently as the others, and from the meetings of the legislature appear never to have been absent. Subordinate to these officers commissioned immediately by the Lord, were a lower class, who derived their authority from the Governor.
The island is divided into six Sheadings ; one of the Sheadings contains only two parishes, and in each of the other five Sheadings three parishes are comprized. In every Sheading there was a Coroner, who summoned parties, served processes, returned juries, and levied executions, as directed by any of the courts or magistrates ; he was also to collect certain of the Lords dues, arising on casualties within his bailiwick, and for this and other purposes was to take inquests, as will be stated in another place. In each parish there was a Lockman, who was a deputy or assistant to the Coroner.
The Moars, one in each parish, collected the Lords rents, fines, &c. and acted as servants to some of the courts, each having his deputy, called the Runner. If any of these ministerial officers needed the assistance of force in the execution of their duty, an order was obtained from the Governor, for them to be aided by some of the soldiers or trained bands of the island. A certain number of these were always kept in garrison at the castles and forts, under the command of a captain and subaltern officers in each ; and there was a sort of militia, not constantly embodied, but liable to be called forth by the captain of the parish and his officers,
With these we may dole this list of the agents and retainers of feudal domination. But there is another numerous body, too respectable on account of their functions, and too considerable both from their own influence and as instruments of the authority of the Lord Proprietor, to be left unnoticed. Here, as well as in other countries, the ignorance, prejudices, and superstition of mankind have anciently invited the clergy (too ready to grasp at temporal power) into the management of public affairs ; and it must be acknowledged, there were not wanting some amongst them who were eager to avail themselves of those prejudices to the utmost. Before the Reformation, the secular ecclesiastics were nominated by the Lord, as all the chief officers and almost all the ministers of the present established church have been since. The hierarchy consists of the Bishop and an Archdeacon, (who has the rectory of one parish annexed to his office,) and the parochial clergy, two of whom are Rectors, and the other fourteen Vicars. The Bishop has under him two Vicars-General and a Register ; the Archdeacon hath likewise his Official and Register. These spiritual officers, that is to say, the Bishop, the Archdeacon, the Vicars General of the former and the Official of the latter, were sometimes called to and sat in the Council ; but they were frequently absent even from assemblies of the legislature. The Bishop and the Archdeacon were probably seated members of the Council in all affairs of government. The Vicars-General and Official were only to attend when called upon. In their oaths of office the former were sworn with their best advice to be aiding to the Governor, generally without any condition , the latter under the restriction, as oft as they shall be called upon or thereunto required.
During the prevalence of popish superstition, and long before the grant to the Stanley family, several detachments of the monastic orders found their way into this isle ; and they erected here an abbey, and some smaller religious hooks and cells ; each of which had a tract of land annexed to it, forming a manor or barony, distinct from that of the Lord, but held of him as paramount by homage and fealty ; in like manner, the demesne, and other customary estates of inheritance appropriated to the bishopric, appear to have been always a separate barony. In all these manors the ecclesiastical proprietors had the same manerial rights the Lord enjoyed in his larger district In old times they were fled to, as places of refuge, by such as fought to escape from the Lords authority ; and the record before mentioned, of A. D. 1417, is a prohibition of this abuse. The heads of the religious houses seem to have attended in public processions and ceremonials, at the Tynwald, or meeting of the legislative body ; and they may have been sometimes called to the council ; but there is no reason to suppose they were ever stated members of that body. After the destruction of these corporations, by the dissolution of the several monasteries in England, Scotland, and Ireland, to which they were appendages ; the lands, that had belonged to them, were taken possession of by the King of England, and for some time afterwards were held by private subjects under grants or leases from the Crown ; and they still remain district baronies. The grantees, and even the families, who held them, were styled Barons ; and besides their manerial privileges, had likewise, in that character, an exemption from serving in any inferior public office ; but what share they had in the council or the legislature, is not, as far as I have learnt, clearly ascertained.
If the people here largely experienced the evils resulting from the system of feudal dominion, they were not destitute of the advantages which that system usually left to its vassals. The power of the Lord originally might perhaps be slightly limited even in legislation. But from the earliest times, the people appear to have had considerable influence, mediately or immediately, in the establishing laws ; by their perseverance in the assertion and exercise of which privilege, the authority of the Lord became by degrees more and more essentially subjected to those forms by which the security of liberty required that it should be circumscribed ; the means or organ by which they acted, was the House of Keys ; there were twenty-four of the principal commoners, in the old phrase, the worthiest men in the land. In the first pages of the Statute-book they are declared to be of very great antiquity. At a general assembly of the country in 1426 which appears to have been held for the purpose of declaring to Sir John Stanley the ancient constitution, the Keys are represented as having subsisted from the days of their Prince Orrye, when some of the weltern isles appertained to the kingdom of Man. And it is said eight of the Keys were chosen from the outer ises, and sixteen in this : after the feverance of the former, the whole number were cholsen in Man. It is not clearly discovered, what was the primitive mode of their election; but for a long and indefinite time, the manner of supplying every vacancy, has been by the House presenting two persons to the Governor, of whom he nominated one. From the time of their original institution, they seem to have been the authority to which the Deemsters were to have recourse for information, when any difficulty occurred in ascertaining the customary or breast laws; from expounding or opening which, it is said, their name is derived. They sometimes acted as a species of grand inquest. They were also a court of judicature, with an appellate jurisdiction. But their most important office consisted in the share which, fortunately for the country, they possessed in its legislature. At the meeting in anno Domni 1422, already mentioned, this part of their power is acknowledged and confirmed : and from a record, anterior to any thing in the Statute book, being dated anno Domini 1417, and supposed to the oldest extant, we find them then concuring with the Lord, and certain cornmissioners of his, in a public act. Being the most intelligent and substantial men in the country, and comprizing, perhaps, all that were so in any considerable degree, it was found that the sense of the people was to be completely and most commodiously discovered in their voice ; and thus they came to be considered as the representatives of the commonalty, and as an essential part of the legislature ; which then was composed of the Lord, the Governor, and the principal officers, (including the Deemsters,) and the House of Keys, who, when assembled for the passing or promulging laws, usually met at the place called the Tynwald Hill.
During the fifteenth and fixteenth centuries, there occur a variety of rules or orders, reputed and received as laws, prescribed by very different powers, or combinations of powers. Some of them are ordinances by the Governor and other chief officers, some of them edicts by the Lord, some orders by his Commissioners, and some mere entries in the rolls, not sanctioned or attested at all ; so that as precedents of the exercise of legislative authority, they clash with and overthrow one another. And further, none of them being adhered to with any exactness or regularity, and all of them having been dropped in modern times, they are, as a rule for the mode of passing laws, to be entirely laid aside.
During this period of fluctuation and uncertanty, the foundation was established of that more regular and rational form before described. About the beginning of the last century it assumed a more finished appearance : since the grant to William Earl of Derby, of the 7th of James I. it seems to have been varied from in only one or two iristances worth remarking. On one occasion, in 1637, the Barons, and the commons and inhabitants of the island, are joined in the body spoken of, as assembled in Tynwald, and an enactment is said to be made " by James Lord Strange, and by the Barons and twenty.four Keys, commons and inhabitants of the isle, assembled at the court therein mentioned."
In October 1643, the Lord being present in person, was attended by the officers spiritual and temporal, and the Keys, as likewise by a number of men, consisting of four out of each parish, chosen by the commons ; and he there decided respecting certain complaints, preforred by or on behalf of the people against the clergy. The affembly was held in consequence of a prior assernbly of the same kind, convened two or three months before, wherein a sort of grand jury or inquest were formed, partly from the Keys, and partly from the men collected out of the parishes, who were to inquire into, and present grievances in general, and particularly into the truth of certain petitions and remonstrances, that are represented as giving occasion to the procedure. At the second meeting, the inquest appear to have returned the result of their examination ; and several points being disputed by the clergy on one side, and the Keys and delegates from the parishes on the other, were adjudged by the Lord ; and his determination agreed to and attested by all the persons above enumerated. Admitting this assembly, as well as that of 1637 above-mentioned, to have acted as a legislative body, it is to be remarked, that there are in the whole Stature-book no other similar instances ; and not being sufficiently supported by any thing preceding, nor ever repeated afterwards, cannot be allowed to be of any force towards erecting a corresponding constitution. An it is further to be observed, if the latter be supposed to have any authority for that purpose; it seem to be expressly and anxiously done away by the series of subsequent acts of Tynwald ; the very next of which, and most of those following for a considerable number of years, style the Keys, emphatically, the representative body of the country With these exceptions, and one or two others, in which the commands of the proprietor were again obtruded on the people as laws, the Governor and other chief officers, and the Keys, with the lord, have, since the begining of the last century, been invariably the ordaining power in legislation Their acts, like those of the English parliament, were first in the nature of petitions granted by.the Sovereign ; and afterwards the formula, in imitation of that adopted in England, began wth a recital or preamble, and then proceeded in the style, " It is ordered, ordained, and enacted, by the Governor and other officers, " (sometimes, by their several names and additions; at other times, by the terms, Governor, Council, " and Deemsters,) and the Keys." The bills thus passed, having received the assent of the Lord, were promulged at a General Tynwald Court, and an entry of such assent and promulgation was enrolled with the attestation of the members of the court, who happened to attend. This constitution of.the Legislature, having sprung from the usage of the remotest periods of which any memorials are extant, having been gradually improved as men became more enlightened, and confirmed by the almost uninterrupted practice of a hundred and fifty years prior to the revestment is juilly to be confidered as finally and completely established at the aera of.1765.
With regard to the share of influence belonging to each of its branches, some uncertainty may remain. These points were probably never fully agitated, nor expressly determined ; but it has been generally understood, that the legislative body constiuted of three estates ; the Lord Proprietor as Sovereign, the Governor and Council, and the House of Keys ; and that to the validity of any act was required the concurrent assent of the Lord the Governor, and at least two members of his Council, and a majority, that is, at least thirteen, of the House of Keys. The Deemsters, when present (which they almost invariably were) in Tynwald, were, though specifically mentioned, a!ways looked upon as part of the Council ; so likewise were the spiritual officers, but their names seldom occur. To the acts of the House of Keys, in their judicial as well as legislative capacity, it was necessary there should be an agreement of a majority of their whole House ; but for ordinary business, thirteen formed a House, and the resolution of a majority of that number was valid.
In this body, to wit, the Sovereign, the Governor, and other officers, and the Keys, was lodged the supreme power ; and its functions were such as necessarily belong to that power in every Community : it exercised its authority in all the highest instances of government ; and its acts were binding in all cases whatsoever. The statute book presents laws and enactments respecting every object of legislation, public and private, rights and injuries, magistracy and courts, police and revenue, port duties and general assessments ; and practice therefore concurs with the general principles of government, to point out and ascertain the powers of the insular parliament.
I have now stated, as far as appears necessary on the present occasion, what I have been able to collect respecting the nature and functions of this body previous to the revestment in 1765.
The act of revestment does not expressly make any alteration in the constitution or government, otherwise than by transferring the whole sovereignty entirely and absolutely to His Majesty. Since that event the former constitution, therefore, has continued without variation, except such as hath been introduced by the necessary consequences of the act, by an improving practice, or by collateral measures. Since the revestment, all the principal civil officers have been appointed by patent, or commission from His Majesty. The post of Comptroller being now confined merely to the revenue business, and held by commission from the Lords of the Treasury, is separated from that of Clerk of the Rolls ; but the Clerk of the Rolls remains a stated member;of the Council, and the present possessor of that office was upon the revestment created Clerk of the council. The office of one of the Deemsters was about the year 1775, upon the death of the gentleman who enjoyed it, suppressed ; and there is now but one Deemster, who is always regarded as a stated member of the Council, equally with any other officer of the Crown. The Attorney-General, with the two officers last mentioned, the Clerk of the Rolls and the Deemster, have composed the Governors standing Council ever since 1765. The act of that date having (as just before observed) veiled all the rights of sovereignty and dominion completely in the Crown, it became questionable how far a person could properly be admitted to a share in government, by virtue of any appointment not derived in the direct and proper channel from His Majesty. For this reafon, and to prevent blending together departments which ought to be kept distinct, the Receiver General and the Water Bailiff, having been created by commisson from the Treasury, and not by patent under any of the Royal Seals, have not, since 1765, been considered as members of the Council.
On similar grounds, the patronage of the bishoprick being left in the Atholl family, and that of all the other church preferments, either in the same hands or those of the Bishop, the Ecclesiaftical Officers have not for these twenty-six years past been admitted. Of late they have complained of their not being summoned thither; and, as I am informed, have submitted their claims to His Majesty, in a Memorial forwarded to the Secretary of State for the home department, to which I cannot learn that any answer has yet been received. They have however appeared in the Council, and the Attorney General thereupon stated the objections already intimated against their entering into that assembly, in derogation (as he apprehended) of the rights of government vested in the Crown. He conceived and suggested, that whatever privilege the spiritual officers had under the Lords Proprietors of being called to the Council, or rather whatever burthen they were in this respect liable to, it belonged to them as the officers mediately or immediately of the Sovereign of the island ; that having, since the revestment, been all of them appointed by subjects, they could no longer be considered as officers of the Sovereign, and ought not therefore, without a special command, to be received into His Majestys Council of the isle. It is to be added, that though the claim alluded to was made only by the Bishop and Vicars General yet the same principles which would admit them, might perhaps be held to admit the Archdeacon and his official and thus the Council be converted into a sort of convocation. The Attorney General expressed his readiness to grant, that the pretensions of the Bishop were better founded than those of the inferior officers, in respect to the tenor of his Lordships oath, the ancient share the Bishops had in the Council, and their high rank in the Church. But the Attorney could not allow that his oath, or the oaths taken by the other spiritual officers, (which remain the same as formerly,) though they might be proper evidence of what was deemed the duty of the office at the time when they were framed, should, by being continued afterwards without the Royal authority, merely in the ordinary routine of business, confer or support a right inconsistent with the spirit of an act of parliament.
If the Constitution were to be defined by an official oath, it might be contended that, by the variation which took place (perhaps inadvertently) at the time of the revestment, in the Governors oath, he acquired the power of annihilating the Council.
The Attorney General further submitted, that supposing the right claimed by the Ecclesiastical Officers to have existed, yet, as it had not been exercised since the isle came into the possesson of the Crown, it thould at least wait the decision of His Majetsty upon the representation that had been transmitted to the Secretary of State. His opinion being over-ruled by the Lieutenant-Governor, he thought it incumbent upon him to cause a minute of his dissent to be entered : the Bishop and one of the Vicars General, however, still attend as of the Council ; and thus the matter at present rests.
The other branches of the legislature have undergone no change in their formation since 1765, save that with a view of relieving the chief officer from the necessity of perpetual confinement in the island, a Governor and a Lieutenant Governor have been appointed, who were to be resident alternately ; and either of them, when resident, is invested with all the powers and privileges of the office.
In conformity to and confirmation of the ancient Constitution, several acts have since 1765 been passed by the Governor, Council, and Keys, (the Council consisting of such three patent officers as are already mentioned to have composed it,) and having received through the means of the Secretary of State the Royal assent, have been regularly promulged at a Tynwald..I perceive with satisfaction, that the obstructions which have for several years past frustrated every effort to exercise the same legal, established, necessary power, form another head of your inquiry, to which your attention is particularly directed, and with a view to which, more efspecially, information is sought respecting the subjects enumerated in your letter. It does indeed appear to me perfectlly reasonable, that His Grace the Duke of Atholl, possessing considerable property in the island of different kinds and residing at a distance on the other side the Channel, should have notice of any act to be passed in Tynwald, early enough to give time for his sentiments respecting it to be stated before such act can be transmitted to His Majesty. At the same time I must remark, that the interests of the Crown, and of the island, equally demand the strictest possible care should be used that the act of 1765 be not violated, by allowing to a subject any further interference than merely for the purpose of suggesting matter for the consideration of those entrusted with the power of enacting laws ; and that this right should be guarded by such restrictions as may effectually prevent its being converted, in the hands of an agent, by any delay or contrivance, into a restraint or controul over the legislature of the country.
Having been prevented, by the circumstances mentioned in the letter which accompanies this., from preparing any thing fit for your inspection touching the other subjects of the inquiries directed to me, I hope to be excused for presenting you separately with what has occurred on the first and most important of them , and here, closing my observations on that head,
I am, Gentlemen,
Your most obedient humble Servant,
To the Commissioners of Inquiry for the Isle of Man.