[Appendix C(3) 1792 Report of Commissioners of Inquiry]
GENTLEMEN, Newtown, 6th December, 1791.
Having undertaken to supply some account of the other particulars enquired after in your letter of the 24th of September, besides those treated of in that which I had the honour of addressing to you the 13th of October ; I am now to endeavour, as a supplement to the Sketch of the legislature, to give you a general description of the Courts of the island and their jurisdictions, its magistracy and police : but the knowledge I have been able to acquire on these topics being un-avoidably derived from extremely imperfect materials, it is impossible the account should be very minute or correct.
The subject is indeed still less capable of precision or certainty than that of my former letter, this part of the constitution being involved in yet greater intricacy and obscurity. Jurisprudence was not attended to as an art, by a people little acquainted with any higher employment than that of steering a fishing smack, or turning the earth with a spade. Having no lawyers, the rustic sailors alone managed their own contests and those of their neighbours ; and disputes thus rudely conducted, juries and judges almost as illiterate as the parties, terminated by a hasty decision, with little regard to principles or forms. The same causes therefore that produced the irregularity complained of with regard to the legislature, occasioned at least an equal want of accuracy and uniformity in judicial proceedings, in which department perhaps more than in any other, the simple institutions of early times are perpetually productive of increasing confusion, if retained with little amendment amidst the multiplying occasions of more advanced society.
From a distant period the island had its courts of General Gaol Delivery, of Chancery, of Exchequer, of Common Law, and its Manerial Courts, besides the ancient and ordinary jurisdictions of its Deemsters. But the superior judicatories were not so properly distinct courts, as the same count acting in different situations and upon different subjects. The first rough formation of juridical magistracy, in this as in other countries, was perfectly plain and inartificial. The Lord Proprietor possessed supreme authority, and it was delegated by him to the Governor, who was to exercise it by the advice of, and in conjunction with the other principal officers. They were in the first place, to collect and remit their masters revenues, and manage his property to his best advantage ; and it seems to have been considered as a collateral part of their duty, to preserve some tolerable peace and order amongst the vassals, by determining differences and punishing outrages and crimes.
The Governor, as the representative of the Lord Proprietor, was, by an ancient rule of law, authorized to hold cognizance of all pleas civil or criminal; and he, with the other chief officers, seem to have formed originally a kind of aula Regia, which assumed a universal jurisdiction. It is in this light probably they are considered, when denominated by a term which was anciently and is at present frequently applied to them, The Staff of Government ; under which title they were and are yet resorted to by petition, called a Petition of Doleance, in cafes where adequate relief cannot be otherwise obtained.
When the Governor and other chief officers sat as a criminal court, they were joined by the Keys, and thus constituted the court of General Gaol Delivery, which being composed of the same persons as the legislature, was the tribunal next in importance to the Tynwald, and by which were tried all capital offences, treason, murder, and other felony. The attendance of the Keys was required on these occasions, not only as their presence added solemnity to the procedure, and because their knowledge of common law enabled them to give authoritative information on any legal question which the business before them might produce, but also because they were to animadvert upon any default or misconduct of the jury. The system of feudal tyranny here, as well as in England, suffered the seeds of freedom to remain in the midst of oppression, by admitting the trial per pais. The court of General Gaol Delivery could try no culprit but by jury. As it was necessary that his accusation should be previously confirmed by a jury of six, so his fate was to be determined in that court, upon the issue of guilty or not guilty, by a jury of twelve. For supplying the latter, sixty-eight men, four from every parish, were impannelled and returned by the Coroners, and out of this number the jury was selected, so as might best satisfy the prisoner and the prosecutor. Upon conviction, sentence was pronounced by one of the Deemsters ; and if the Lord were not present, a report of the case was transmitted him, and the Governor respited execution till his pleasure could be known.
This court was held in the gate-way of Castle Rushen, twice in the year, in May and October, which were called their terms, being the stated times for holding all the principal courts. Till about the latter end of the sixteenth century, the confused registry of all public acts, and the proceedings of the several courts amongst the rest, were kept promiscuously in miscellaneous rolls and books : from about the year 1580 the proceedings of the courts have been entered in separate books ; and those of the General Gaol Delivery have ever since then been inrolled in the Liber Placitorum, which is the record of the court of Common Law.
Of the courts of civil jurisdiction, the first to be noticed is the court of Chancery, in which the Governor sat as Chancellor, and was assisted by the other chief officers and the Deemsters. It seems to have had its origin in the power of granting arrests of the person and effects, which in civil cases belonged to the Governor alone ; such arrests were obtained of course, upon an allegation that the defendant was about to leave the island, who, on being served therewith, either gave bail or was confined The suit being thus brought into Chancery, was, as the parties chose, or the Governor ordered, retained to be heard and determined by him, or transmitted to some other jurisdiction Causes commenced in this way which from the situation of the island may be perceived to be the mode in which a great number must have been begun, were termed common actions Other suits were likewise instituted before the Governor in his capacity of Chancellor, where, from different circumstances, full redress could not be obtained in the inferior judicatories ; and the court of Chancery was said to be both a court of law and a court of equity. The complaint was generally by a sort of bill very loosely drawn : but it was not till a very few years before the revestment that the defendant was compelled to answer upon oath, and even then his answer was frequently taken without being put into writing. If the Governor thought any particular case required it, he employed a jury, who examined into the matter out of court, and returned their verdict to him. Where the hearing was before himself, the witnesses gave their depositions in court, which at one time were reduced to writing, at another not. The same power of arrest that brought the parties before him, was used to enforce his decrees, and he might likewise grant a sequestration. This count sat regularly once every month, except January, May, September, and October, and occasionally at other times. Immediately after it, was usually held a court of Exchequer.
The Governor, with the other principal officers as his Council, taking cognizance of disputes or offences relating to the Lords revenues, rights, or prerogatives, composed the court of Exchequer; to which belonged all causes of this description, and where were carried on the prosecutions for the recovery of penalties incurred by frauds upon the customs. This court exercised a criminal jurisdiction likewise over other misdemeanors ; over all species of wrongs, probably, which subjected the offender to the payment of a fine to the Lord. Like the court of Chancery, it usually proceeded without a jury ; but when the Governor thought fit, he had a jury summoned, and took their verdict. The proceedings of the Exchequer were registered in the Liber Scaccarius ; in which also the statute laws were frequently recorded, and which is still the repository of various other enrolments. It contains the~ names of the Keys, a list of the Coroners, recognizances of the peace, proclamations, orders and instructions from the King in council to the Lord or Governor of the isle of Man, concerning the proclamation of war or peace, quarantine, ,&c. entries of fines and amercements imposed by the several courts or magistrates, the Lords particular orders, the Governors orders, and orders by the Governor and Council of the island, , appeals from the inferior courts, petitions and complaints respecting breaches of the peace and other trespasses, licences for erecting mills, leases from the Lord, and a variety of other particulars.
The common law courts, the style of which was " Before the Governor and all the chief officers and Deemsters," were held by these officers at different places for different Sheadings ; at Peele, for Glanfaba, Michael, and Ayre Sheadings, at Douglas, for Garff; and at Castletown, for Rushen and Middle. The circuit to these places was made, and the common law courts held in each at the two terms already mentioned, in May and October, and at all of them a distinct day was assigned for the business of each sheading. These may be considered as courts of Common Pleas, where all causes between subject and subject were regularly cognizable, unless carried by consent of parties, or for some special reason, to courts more expeditious in their process or higher authority. Here therefore were tried all species of actions, whether personal or respecting the titles of real property, and the trial was necessarily by jury ; in the latter case by a jury of six men of the Sheading in which the lands, &c. were situate ; in the former by a jury of four, belonging to the parish where the defendant lived. When the plaintiff and defendant appeared in court, the jury summoned by the Coroner were sworn, and directed to examine into the dispute, which they were permitted to do at their leisure out of court, and left to deliver their verdict to the court at its next meeting, or sooner to one of the Deemsters, if convenient to themselves or thereto particularly required. The verdict, when delivered, was to be accompanied by an account in writing of the evidence, and being received, (which it could not be unless unanimously agreed by the jury,) it was recorded by the court, and if the parties acquiesced, an order for carrying into execution was given accordingly. But either party apprehending himself aggrieved might, on application to the Clerk of the Rolls within twenty-one days, and entering into a security or cognizance, traverse the verdict; and procure the cause to be re-tried by another jury consisting, in the case of actions concerning realty, of twelve, and in personal actions, of six, the mode of whose selection and proceedings was similar to that of the former juries, excepting that they were to determine according to the evidence previously taken. If the second verdict was not satisfactory, another traverse was allowed to the Keys. They or the second jury might either affirm,reverse, or alter the verdict before them, and if they found reason, condemn the prior jurors to be amerced. The court of Common Law seems to have entertained cognizance, besides the civil suits herein-before mentioned, of such assaults as were denominated Blood-wipes, in which cases the trial was by jury of six from the parish where the party lived, and a fine of sixpence was the penalty, with costs.
At these courts were assembled, renewed, and sworn, the Great Inquest, which was a Jury of twelve in each Sheading, returned by the Coroners. This Inquest attended at the court for the Sheading to which they belonged, where one of the Deemsters administered the oath to them, and delivered their charge, which is inserted in the Statute-book, and from whence their duty is to be collected. It was in general, to make presentments concerning ways, water courses, and boundaries, and of various trespasses and nuisances. Their verdicts and presentments were returned in the court of General Gaol Delivery, which sat at the expiration of the half year for which they had served.
When the business of the Common Law court in impanelling juries and receiving their returns was dispatched, the Governor, and other officers who composed it, and who, being the servants of the Lord, were to manage his affairs in every department, applied to the business of the day esteemed the most important, because relating to the property of their employer, and transforming themselves into a judicatory of a different description, they sat as a Manerial court commonly known by the name of the Sheading court, being held at the same times and places and for the same districts as the Common Law courts. In the Manerial or Sheading courts was kept the registry of the names and titles of the Lords tenants, and upon every change of tenant by death or alienation, the name of the new one was entered, and that of the former withdrawn upon the presentment of a jury termed the Setting Quest; one of which inquests, consisting of four tenants, was appointed in every parish : a principal part of their office originally was, when any lands fell to the Lord, to discover a proper person to whom they might be set, and compel him to become the tenant. They made partitions of joint estates, they apportioned rents, and served as a sort of homage jury in these courts ; the like business being transacted there as in the courts Baron of copyholders in England, and in somewhat a similar manner. But the tenure though strongly resembling privileged copyhold, was not so ; the lands not being held by copy of court roll, but conveyed by deeds, which were to be acknowledged by the parties before a Deemster, and confirmed by and before three at least of the Council, of whom the Governor to be one, and which, or copies thereof, were, if the parties chose, as they usually did, deposited for safe custody with the Clerk of the Rolls. The Moars were ministerial officers of this court, and were employed to collect the quit-rents, and other manerial dues.
From their affinity with the last-mentioned courts, it may be proper here to notice (though they have only a limited local jurisdiction) the Manerial courts held in and for the several inferior Baronies or Manors. These were, the courts of the Bishops Barony, that of the Abbey of Rushen, that of Bangor and Sabal, and of St. Trinians, the two last being held conjunctly. Such courts were conducted by the proprietors of the manor or their stewards, with the assistance of one of the Deemsters and the Comptroller, who received a compensation for their attendance ; and the Attorney-General and Receiver-General were occasionally present. They seem to have exercised an authority in their several districts equal to the whole of that possessed by the Common Law and Sheading courts ; performing the business of Courts Baron in the admission and inrolment of tenants, &c. by means of peculiar Setting Quests of their own ; and taking cognizance likewise, in manner analogous to the mode of procedure in the Common Law courts, (and with the like traverse to a second Jury and the Keys,) of all actions, of whatever kind, where the defendant belonged to the respective Baronies.
The courts of General Jurisdiction, which sat most frequently, and in which all ordinary business was dispatched, were the Deemsters courts. Each of the Deemsters held a court, wherein he was the sole Judge, and had power to determine, without a jury, on a summary hearing, according to the common law of the land, anciently denominated Breast Laws, upon such matters as were brought before him to be so decided ; which were, in civil cases, all actions, of whatever nature, wherein a trial by Jury, or before a higher authority, was not desired by the parties, or commanded by the Governor. In criminal cases, where a specific penalty was directed by stature, the Deemsters might in the same summary mode take cognizance of such misdemeanors, and order the fine to be levied, or inflict which other punishment as the law appointed. In matters too, both civil and criminal, where a jury was required, but where immediate or speedy redress was necessary, they impanelled Juries ; and upon taking their verdicts, if the damages or penalty were thereby precisely ascertained, ordered them to be enforced ; if not, the party was left to be amerced by the Governor in Council, or tried in the courts of General Gaol Delivery.
The Deemsters took inquests of felony by Juries of six, as hereafter stated : but the Juries, thus summoned by their authority, in other cases consisted of four men of the parish in which the cause of action arose, and they were, for the most part, Trespass Juries, to view and estimate damages done by trespasses ; or Juries of Inquiry, who were employed in cases where an injury or loss had been sustained, to discover the thing missing, or the person of the offender ; for which purpose the whole neighbourhood was summoned before them, and every individual was either to acquit himself by his oath, or be held convicted by his refusal. The verdicts and presentments thus taken, were to be transmitted by the Deemsters to the office of the Clerk of the Rolls ; and the like traverse was in many instances allowed to a Jury of six, and thence to the Keys, as in personal actions instituted in the courts of Common Law. The jurisdictions of both Deemsters were perfectly similar, and extended throughout the island. They usually exercised their authority each within the division of the isle in which he resided, one in the south and the other in the north but, occasionally, they acted within each others districts. They held their sittings one day in every week, or oftener if business required. An appeal lay from this judgment to the Governor, if presented within a certain time, and accepted by the Deemster from whole judgment it was preferred.
The Coroners were to attend most of the Juries and Inquests impanelled by direction of the Deemsters or of the superior courts, and might likewise convene and swear others, some permanent, some occasional ; particularly, they took inquests, like the Coroners Inquests in England to inquire concerning the cause of sudden or violent death super visum corporis.
For all causes of action or misdemeanors happening out of the body of the country, or below full sea mark, the proper judicatory was the court of the Water Bailiff, who was styled also Admiral ; the limits of whose jurisdiction were said to be the high-water mark on one hand, and the distance of three leagues from the shore on the other. Whatever disputes or offences less than capital offences occurred within these bounds, especially contentions and disorders amongst the fishermen in the season of the herring fishing, (over whom he had the superintendence,) he was to take cognizance of, and for that purpose to hold courts, impanel Juries to consist of six, and having received their presentments or verdicts, to decide according to the law of the land. He had jurisdiction also in causes respecting maritime affairs, which were to he tried before him by a sort of Special Jury of merchants or seafaring men. An appeal lay from his judgment to the Governor.
In an enumeration of the courts of the island of civil and criminal jurisdiction, the Spiritual courts must not be omitted. A Consistory court was held alternately by the Bishop or his Vicars-general for one half the year, and by the Archdeacon or his Official for the other half; and these courts were allowed to proceed according to the Ecclesiastical Law, but have acquired and retained more extensive powers than even the English clerical tribunals, having, besides their spiritual authority, the cognizance of such civil affairs as fall within ecclesiastical cognizance in England, and likewise of various others particularly, it not only belonged to them to determine the validity of wills, and to grant administrations ; but they sustained all causes respecting them, or concerning the legacies or the debts of the deceased, within one year and a day from the probate of the will or granting of administration ; and likewise all Suits against executors and administrators as such, at any time within two years from the cause of action. For divers offences too, besides inflicting church censures, they detained the party in the ecclesiastical prison, which was a subterraneous vault in the Castle of Peel ; in order, after an examination of a Jury of six, whom they were authorized to impanel, that he might be delivered (if it was judged necessary) for further trial and punishment to the temporal power ; and they not only committed to their dungeon for the purpose of such detention, but confinement there was sometimes ordered by their definitive sentence. In affairs merely spiritual, the appeal from these courts was to the Archbishop of York, in all others to the Governor; a vague distinction, which was the source of continual disputes.
The forms of proceedings in all these tribunals, civil and ecclesiastical, was not more ordered or exact than the structure of the courts themselves. Those in the court of Chancery have already been briefly noticed In the other courts, civil suits were generally commenced by complaint, made Sometimes verbally, sometimes in writing, sometimes in one form, sometimes in another, to the Magistrate presiding in the court where it was brought , and the process for appearance was only a summons from such Magistrate, formerly a slate or a stone inscribed with the initials of his name, or other mark called a token, though afterwards the summons or citation was writing In case of disobedience, an order or attachment was obtained of course from the Governor, directing, as the case required, the aid of one or more soldiers of the militia (who were then the only constables) to assist in bringing the defendant before the court , no other officer than the Governor having power to grant a warrant of arrest, in order to secure appearance to a suit excepting that the Water Bailiff might, upon allegation of debt, detain for twenty-four hours party who was suspected of being about to leave the Island
Though the trial was in many cases, and in the Common Law court always, by Jury, yet little regard was here paid to a right, which in the neighbouring countries is justly prized as a principal safeguard of liberty, that by neglect and abuse it was rendered almost useless and scarce any worth, otherwise than as the materials of an institution, which in better informed and more liberal times might be carried into due effect In the execution of the task assigned them the Jury adjourned as often, and to such places, as suited with their several engagements in fishery or farms. At the several meetings they thus held, from time to time, frequently under hedges, but generally in ale-houses, they were supposed to be attended by the Coroner, and followed by the plaintiff and defendant, who were then to contest with each other which should entertain them the more liberally, till the enormity of this practice was restrained by a positive act They heard the witnesses, proofs and altercation of the parties, and when they thought the matter sufficiently sifted, delivered their verdict, with the depositions in manner already stated. Decrees and judgements at one time were given orally, at another put into writing ; the execution of them was committed to the Moar by the court of Common Law, to the Coroners by the other superior Courts, to the Serjeants by the inferior Manor courts, and to the Sumner by the courts ecclesiastical ; and if such officers were obstructed in executing a judgment or decree, the mode of enforcing them was the same as that employed for compelling appearance.
In criminal cases, offenders were arrested by the Coroners, and delivered over to the Gaolers, either by their own authority, or by warrant from the Governor, one of the Deemsters, or some of the other chief officers, any of whom, it is said, might, as well as the Governor and Deemsters, commit upon suspicion, in such cases, at least, as amounted to a breach of the peace. In the performance of this part of their duty, the Coroners might call to their assistance the garrison soldiers, or the inhabitants. The prosecution was upon presentment or indictment ; and for frauds upon the customs, by a verbal information from the seizing officers. Whenever an indictment was exhibited, it was necessary it should be approved or found by a Jury of six, in a manner similar to that in which bills of indictment in England are found by the Grand Jury. But this exacter form was rarely pursued, almost all prosecutions being commenced by presentment, on the verdict of a Jury or Inquest in writing. For making these presentments, there were (as has been stated) a variety of Inquests, some of them under the direction of the Deemsters or superior courts, others impanelled and attended by the Coroners alone. Juries, on suspicion of felony, were summoned by the Coroners in their respective Sheadings, either upon what was called a hand suit, a species of bond or recognizance from a prosecutor, or by precept from one of the Deemsters, or the Governor. They proceeded under the direction of the Deemsters, to whom their verdict was returned. When a charge against any person was rejected by such Jury, he stood thereby acquitted. When an indictment was found, or a presentment made against any one, if not apprehended, he was to be searched for and arrested ; and if then under arrest, was further committed by the Deemsters, to take his trial at the next court of General Gaol Delivery, in manner already shortly described. When the felon Jury found that the fact was a misdemeanor, not capital, (which was held to be always the case in theft,where the thing taken away was not above the value of sixpence halfpenny,) they presented him as guilty of such misdemeanor, and subject to suffer what punishment, by fine or imprisonment, the Governor in Council should adjudge. In public prosecutions, as well as private causes, the judgment given was to be executed by the Coroner, with the assistance, if necessary, of such military force as the Governor should think fit to order.
The courts possessing appellate jurisdiction have already been stated to be the Keys ; the Governor and other officers, either in some of the superior courts, or as the Staff of Government ; and the Lord Proprietor. The course of appealing lying to the Lord through the Keys, in cases tried by Jury ; and from the Governor and other officers, in all other suits, whether instituted before the Governor in the first instance, or brought before him by appeal. It is further to be observed, that in all cases the appeal might be carried from the Lord before the King in Council; which tribunal, though rarely applied to, was ever the dernier resort.
Amongst a people so rude and simple in their manner as the islanders have been, it is not likely that much attention was ever paid to police. Nuisances, and other offences against public order, seem in the country to have been presentable by the Great and other Inquests ; and the superintendence of the four principal towns was committed to officers styled Captains of the Town
Such is the general view which (however imperfect) it may be sufficient for the present to have taken of a subject, in itself so confused and inexplicable as the ancient constitution, powers and proceedings of the courts and magistracy of the island. Towards the latter end of the dominion of the Lords Proprietors, some greater degree of regularity began to be introduced ; a few of the officers then employed in the administration of government in the isle, being better informed, and better qualified for business, than most of their predecessors ; and some attempts towards reformation, in particular instances, having been made by the legislature. But the improvement thus effected was not very considerable ; and the whole of the judicial magistracy was nearly in the state above described at the aera of 1765.
By the Act of revestment the courts were left untouched, excepting that the Lords juridical authority being abolished, the court of his Majesty in Council became the immediate, as well as the last court of appeal from the jurisdictions within the isle ; and excepting that the Manerial courts for the several Sheadings were clearly reserved to the Duke and Duchess of Atholl, by the term Courts Baron.
The books and enrollments belonging to them were shortly after the revestment separated from those of the other courts, and delivered to the Steward, Agent, or Seneschal of their Graces; and since that time these Manerial courts have been held by that officer, and the respective Setting Quests for the several Sheadings, at the same times and places as formerly. It has been alleged, that by the severance of the Court Baron from the higher authority with which it was thereto fore conjoined, its power has been impaired ; and as the law of the island does not allow the Lord the remedy by distress, is left incompetent to answer its ends. And there may possibly be some foundation for this complaint ; yet when default is made in the payment of the quit rents, fines, &c. (the instances of which, as I am informed, very seldom occur,) redress may, I believe, be had with little difficulty or expense, either by a summary proceeding before the Deemster, or one of the High Bailiffs, or by action in the court of Common Law; and amercements in the Lords Manor Courts may be in like manner enforced. Since the Maneral have been divided from the other courts, the deeds respecting lands have been acknowledged before the Deemster, or one of the High Bailiffs, and published sometimes in the court of Common Law, sometimes at the Sheading Courts, or sometimes not published at all ; and some of them, or copies thereof, have been left for custody with the Clerk of the Rolls, and a considerable number with the Agent of the Duke of Atholl ; and the whole of the mode of authenticating and enrolling such writings is left in a state of uncertainty, injurious to the tenant, as well as prejudicial to the Lord.
In regard to His Majestys Courts, some alterations have been made since the resumption of the island. By acts of Tynwald passed in 1777, directions are given respecting the courts of General Gaol Delivery, Chancery, Exchequer, and Common Law ; with respect to the last particularly, it is enacted, that it shall be held four times in the year, therein specified, instead of twice, and that it shall be stationary at Castle Rushen, instead of being itinerant, as formerly. The Great Inquest is abolished. It is provided that the Juries should in all cases consist of six, and examine the issue referred to them, and deliver their verdict in open court ; and further, that the appeal, in all causes concerning the title of lands, should be to the House of Keys, and in all others to the Governor. The business of an Attorney, which before was undertaken by any person however ignorant and unqualified, was constituted a sort of profession, by rendering the Governors licence a requisite to the practice of it. Provisions were made for preventing unjust imprisonment ; and to supply the want of another Deemster, four new officers were created, termed High Bailiffs, one in each of the principal towns ; and a jurisdiction given to them, analogous to that of the Deemster, within certain limits described in the act, and in all matters not exceeding forty shillings iii value, subject to an appeal to the Deemster, which might afterwards be carried before the Governor. The authority and duties belonging thereto for to the Captains of the Towns, were transferred to the High Bailiffs, who were empowered to take order for removing nuisances, and entrusted with the local government of the towns over which they respectively preside ; and they are now the officers principally employed in police.
Of these regulations (a more minute account whereof need not be inserted here) some have been really beneficial, others may have been hurtful or ineffectual ; and they fall very short of that thorough new-modelling which the imperfect frame of judicial polity here, and more especially the forms of all forensic proceedings, require, and for want of which, notwithstanding the amendment that may be introduced in the course of practice, this defective part of the Constitution must long continue to produce, rather than to terminate, differences and disorder.
In pursuing the line of investigation marked out by the instructions from the Secretary of State, and the interrogations from you founded thereon, I have been led to take a pretty extensive, though not a minute survey of the affairs of this island. In every part of its government it is manifest that emendations are wanting. It may be expected, therefore, that I should now point out such as may be most desirable. In my last letter was stated the principles which, as it appears to me, should be preliminary to any plan for the improvement of this country. I have asserted them the more unreservedly, and I rely on them the more confidently, because they are not merely private opinions, but were, I believe, the rules which government prescribed to itself immediately upon the revestment. The spirit of this policy being maintained, much may undoubtedly be done, by the aid and favour of government, towards advancing the welfare of the island. I am by no means prepared to lay before you any duly digested Scheme of the measures that might be taken for this end ; nothing more is in my power at present, than to suggest very briefly such hints as may seem to merit a more deliberate consideration.
Whatever propositions may have come to you from other quarters I am entirely ignorant of,; but it is rumoured that some of the inhabitants are disposed, or are likely to be prevailed with, to join in some representation, intimating a desire that the Keys should be elected by the people ; it may not therefore be amiss to observe, that though the right of electing their own representatives ought doubtless, at a future period, to be extended, under proper restrictions, to the inhabitants of this isle, as well as other subjects of the British empire, yet the present is not a season when it is needful, or would be expedient to introduce it here The House of Keys comprehending nearly all the most substantial and most liberal of the landholders, is in effect, according to its ancient constitution, a fair representation of the country ; and, if it were less so, I should not think a change desirable while there subsists such an influence as is alluded to in a former letter. Popular elections are not calculated to allay animosities or to alleviate any of the evils arising from the existence of that independent authority, the consequences of which have been largely dwelled upon, and which ought by no means to be lost sight or in determining the formation of any part of the legislature.
In the executive department, a primary defect is the want of due provision for those to who it is entrusted This intimation will not (I flatter myself) be suspected by those who know me of proceeding from interested views The emoluments of the profession were never a principal object of my pursuit , and I am now arrived at a period of life, when I am more than ever inclined to wish for ease rather than profit. If I had not valued more than either, the honour of serving His Majesty and the public, I should scarcely have left the profession in England, and accepted the office in which I am placed ; much less should I have held it for sixteen years on terms far more disadvantageous than those I was warranted to expect ; circumstances which, I trust, may even with strangers procure me some credit for the disinterestedness I avow ; and those who are acquainted, as you, Gentlemen, must be, with the present establishment, will perceive the deficiency to be so glaring, that, by whatever motives the complaints of it may be dictated, they deserve not to be treated with contempt.
Upon the resumption of the island the salaries of all the civil officers were settled, in pursuance of: information obtained from the then Receiver General, who was well known to be extremely solicitous (how decently I say not) to set up the revenue department above the civil. Yet he thought, and justly, even at a time when the produce of customs was considerably less than it has lately been, that six hundred a year was not more than a reasonable provision for a Governor of this island. It being afterwards found expedient to appoint a Lieutenant Governor, and to give him, in the absence of his superior, the power of a Governor in Chief, he seems to have been entitled to an equal compensation, especially as, from his more frequent residence, he performs in fact the largest share of the service. It is surely undeniable, therefore, that since his appointment he has never had an adequate allowance. Let those who are apprized of the amount say, whether there are not many underlings in office far more liberally rewarded than the Gentleman who is now presiding over the island, and exercising jurisdiction over the lives and properties of thirty thousand of His Majestys subjects.
Whilst the Manks tongue continues to be used by the common people, the Clerk of the Rolls and the Deemster must of necessity be appointed from amongst the natives of the island, none but natives being sufficiently acquainted with the language ; but they ought to be also lawyers ; and a lawyer who can acquire by practice (what the first of them here do) three hundred pounds a year, will not accept of two hundred pounds per annum merely for the honour of being placed upon the bench or in the council. The office of the Attorney General is the only legal one that can properly be given to a person who is not a native ; and should always be filled by an English barrister. So long as a military gentleman remains the supreme judge here, the Attorney General must of course, in all matters of law and equity, be his principal adviser ; a part of his duty this which clashes so much with the privilege custom has given him of becoming an advocate in any cause (if not against the Crown) wherein a client tenders him a fee, that few barristers would condescend (I believe) to unite the two characters, though, till the time of the present Attorney, it has been invariably the practice. The bare salary annexed to this office, without such addition as was formerly held out to the present possessor of it, or without some compensation for the surrender of the profits of a licensed but ungentlemanlike practice, is an object little calculated to satisfy the views of a man of merit at the bar, and if not augmented must hereafter either leave the office to be filled by an improper person, or be a temptation to the holder of it to do an improper thing.
Sensible that I am equally free in the following suggestion from any selfish bias, I beg leave further to represent to you, the expediency, not to say the necessity, of appointing some person who may act under the Attorney General in the business of the Crown. This business has not only of late years considerably increased, but a great proportion of what belongs to the management of prosecutions (for instance, applying at the offices for process, attending Coroners and Constables in serving it, defraying the expences of a Suit to be reimbursed upon bills afterwards delivered into the Custom-house) is of such a nature, that it cannot be undertaken by any person at the English bar. I would recommend, therefore, that a Solicitor should be appointed by or at the nomination of the Attorney General for the time being, who should act under his directions as Solicitor to the Customs and assistant to the Attorney General ; that a due stipend should be provided for him, and such occasional fees assigned him as would render it strongly his interest to be zealous and active in prosecutions of offenders against the revenue ; that his bills for such charges and disbursements should be passed by the Attorney General, and the regular payment of them be effectually secured.
The whole collection of local laws, public and private, civil and criminal, requires a thorough revision and correction, and reformation is more especially needed in the constitution of the judicial magistracy, and in all forensic proceedings ; a work which might perhaps be best affected by conforming the system here, as far as circumstances admit, to that of English jurisprudence, to which it bears throughout some analogy. Under this head I would particularly observe, that if the several courts are to be considered as distinct, the presiding officers in each should be different, and that the bounds of their respective jurisdictions should be precisely defined, and the rules of their process and pleadings clearly settled. The trial by jury, already materially improved by being subjected to the inspection and direction of the court, should be regulated so as it may completely answer its end ; and it might perhaps be advisable, that the Great Inquest should be restored, and put under proper regulations. The authority of the spiritual courts should be restrained, at least within the limits to which it is confined in England If proper means are not provided for the recovering the Lords dues, let the assistance of His Majestys courts and officers in levying them, as it must be effectual, be made as easily attainable as possible ; or should this method not be satisfactory, a power of distraining might perhaps be allowed, subject to such restrictions as are suggested by the Attorney and Solicitor General of England, in their report of the 30th April 1781 . For removing the uncertainty respecting the Constitution, publication, and registry of deeds relating to lands, I can point out at present no better mode than that suggested in the Report of the Crown Lawyers in the island, of the 27th April 1780.
The revival of the office of a second Deemster, is a measure (I find) very generally wished, and it may perhaps be desirable ; but on this point I cannot help entertaining some doubt. I can never be persuaded to think that the crowds of farmers and fishermen, drawn together two, three, or more days in the week, at a petty alehouse, where it is not unusual for the Deemsters summary courts to be held, and there perhaps loitering, drinking, or squabbling, to the neglect of their occupations, and in some instances, possibly, to the ruin of their properties and families, ought to be encouraged ; or ever believe, that these assemblies are on the whole conducive to the peace, the good morals, and the welfare of the people or the community : and in this I am confirmed, by observing a spirit of litigation prevalent throughout the country. It deserves to be considered, whether the erecting another of these jurisdictions may not increase the evil. It might he checked by a stamp duty, that would render law-suits more expensive. But I apprehend a more eligible regulation would be that of prohibiting the payment of fees to any judicial officer, making them a suitable compensation, by an augmentation of their annual allowance ; and if it be found in fact, that the aid of the magistracy is not attainable with sufficient ease for the inhabitants of the remoter parts of the island, it may be worth while to inquire ; whether the mischief might not be fully remedied by enlarging the jurisdictions of the High Bailiff, and bringing within it matters amounting to some larger sum than forty shillings in value, and annexing to it a concurrent cognizance with the Deemster, subject to an appeal to his Worship over petty crimes ; a suitable increase of their salaries being granted in consideration of this addition to their trouble, and the abolition of their fees. But nothing can be more necessary than the providing those public buildings and accommodations, the want or insufficiency of which has been before remarked, a Gaol, a Chancery Court room, and a House of Keys ; and establishing a permanent fund, which may be adequate to the keeping such buildings in repair, and the other ordinary occasions of public expence.
The regulations here suggested, cannot be carried into execution without the authority of an act of Tynwald, but the means of effectuating them may be left to be further considered, after the propriety of them is fully ascertained.
Besides the alterations required in government, I must beg permission to mention, very briefly, some measures of general policy. One of the first and most important is that of restoring the harbour of Douglas to a state of perfect repair, and preserving it, and indeed the several other ports, in such condition ; and further, so far improving the former, as to give it all the security and convenience its situation calls for. It might likewise save many vessels and their crews from destruction, and be of essential utility to the whole trade of these channels, as well as to this country, if. a light house were placed at the southern extremity of the isle. I would join with the laborious and judicious author of the Political Survey of Great Britain, in recommending that all possible encouragement should be given to the fishery, in which upwards of four hundred boats, and more than three thousand seamen, are employed To agriculture, which, partly from defects in these polity, is little understood and grossly neglected ; and to manufactories, some species of which are already attempted, and carried on to a small extent, particularly one in linen, from flax produced within the isle, and one in spinning of cotton , and perhaps manufactures, whether of materials produced within the country, or imported hither from Great Britain, might be left more: free from restraint than at present, without injury to the revenue or commerce of that kingdom It is desirable that the use of the Manks language should be discountenanced, and that English schools should be favoured The small foundation at Pele, for instruction in navigation, may be unworthy of particular notice ; and I am inclined to think a seminary in which the high branches of general education should be undertaken, would, if once established, be found peculiarly adapted to accomplish the valuable purposes of such an institution.
By such means (as have been intimated) this place might, I apprehend, be completely secure from ever becoming again, what it once was, an asylum for smugglers and outlaws , and might be converted into the happy residence of no inconsiderable number of subjects, contributing aid to the parent country in the quota of mariners, derived from hence to its trade and navy , and, blessed with all the comforts of a flourishing society, rejoicing under His Majestys powerfull and beneficent protection.
I have before excused myself from entering at large into the subject of the revenue laws, conceiving it not to fall within my province I would only observe here, that the want of a Solicitor to the customs, as assistant to the Attorney General, as well as of any rules or practice to guide the course of prosecutions for the recovery of penalties in personam, are capital defects in this branch of the laws , and while they remain unsupplied, the acts respecting offences against the customs cannot be duly enforced
In the diffusive communications I have had the honour of presenting to you, I have endeavoured to comprize all the intelligence, and all the suggestions, that appeared of most importance in relation to the political state and interests of this island ; being confident, that a full representation of the situation of this country, in what way soever it is collected, must, under His Majestys gracious administration, conduce to that essential improvement of it, which it greatly needs, and of which it is really capable.
I am, Gentlemen, .
Your most obedient humble Servant,
To the Commissioners of Inquiry for the Isle of Man.