T 1/439/83 - Account of Proceedings in the Court of Exchequer - 1765

In my Letter of the 24th Oct last I acquainted Your Honrs that in consequence of an Information of a quantity of Tea intended to be shipped from Ramsey to Great Britain Messrs Kirkpatrick & Barnes Officers Seized in the House where it was secreted three Bags containing 188 pounds of Tea & at the same time proposed to Your Honrs that this Tea might be prosecuted in the Court of Exchequer in this Island as was recommended by Mr Quillin the Attorney Genl.

Your Honrs by Letter of the 7th Ultiumo, in answer were pleased to acquaint me that you had no objection to its being prosecuted in that manner & as I had not the least doubt of succeeding in this prosecution, & looking upon it as a most essential point for His Majesty's Service (the having recourse to the Court of Exchequer in this Island for the Speedy & summary punishment of offences against the Revenue & that at a moderate Expence) I sent for the Attorney General & took the necessary steps by his Advice & Approbation in proceeding upon the Prosecution.

Your Honrs will please to observe that in the Court of Exchequer anciently established in this Island the Governor sits as Chancellor & is sole judge in matter of lesser consequence he determines without Council - In more important cases the Clerk of the Rolls & the two Deemsters are summoned as his assessors to give their Opinion if required in points of Law.

The form of proceeding before this Court in Cases of Forfeiture or Seizure is by presen[t]ing a Petition to the Governor who appoints a Day for the hearing thereof & notice to be left at the House where the Seizure has been made three days before the Trial in order that the Parties concerned may if they chuse have an opportunity of claiming.

Accordingly in this Affair the Attorney Genl applied by Petition dated the 18th Ultimo & a hearing was appointed upon the 22d & due notice was left at the House of David Angus in Ramsay where the seizure was made. - It may not be improper here to remark to Your Honours that the same David Angus gave the Officers information of this Tea in writing saying it was the property of one James Smith a smuggler in Scotland.

The Court having met upon the day assigned the said Angus to Our great surprize appeared as Claimant being (as there are sufficient grounds to be believed instigated & subordn'd for that end by an association of the principal Traders in the Island) & petitioned for a further Day alledging his Evidence was not prepared.

By consent of Parties therefore the cause was set down to be tried the day following when the Court having met the Attorney Genl pleaded upon his information, setting forth that the Tea in question was legally forfeited by the Act of the 7th of Geo 1st as rendered more effectual by the Act of the last Session of Parliament.

The Council employed by Angus instead of replying directly to this point petitioned for a trial by a Jury after the forms of the Court of Exchequer in England.

To this the Attorney Genl made Satisfactory reply & it was allowed even by the Claimant's Council that there had been no instance formerly occasioned in that Court of trial by a jury - Upon this the Governor Ordered the parties & all the audience to withdraw that he might in private ask the Opinion of the Clerk of the Rolls & the two Deemsters upon this preliminary point - The Court being clos'd in about half an hour the Parties & audience were again admitted & the Governor read a declaration to the following purpose.

"It is the unanimous opinion of this Court that it hath present Competent jurisdiction to try the issue between the said Parties without a Jury and that the defendants said Plea ought to be overruled and the same is overruled accordingly"

The Council for Angus then prayed a longer day in order to produce Evidence in support of the claim which was granted & the Governor declared in Open Court that the merits of the Cause should be heard the Thursday following being the 28th of November; In the mean time we were preparing the proper proof, to show that Angus was a pretended & suborn'd Claimant; & for this purpose I dispatched an Express to Whitehaven, to bring over the note beforementioned under Angus's hand, which Barnes one of the serving Officers had taken with him.

But to our great suprize about eight o'Clock in the Evening preceeding the day appointed for trial intimation was given by the Attorney Genl at the request of the Governor that he had admitted Angus to an Appeal to his Majesty in Council against the Declaration beforementioned upon his giving Bond of £100 for the prosecution of the appeal & payment of Costs & that all further proceedings were stopt till this appeal was determin'd as appears from Mr Attorney General's Letter enclosed. Upon this I desired a conference with the Attorney Genl who came to Douglas the 29th & finding that Angus had demurr'd to enter into the Bond I thought there was room still left for preferring a Petition to the Governor to proceed.

Accordingly the inclosed Petition was preferred to which the Governor was pleased to give the answer thereto subjoined - And here the proceedings rest for the Present.

Upon this affair most faithfully & exactly related I beg leave to submit to Your Honrs the following Observations

1st It is difficult to conceive why the Court should consider Angus, as a Party accused & admit him to plead not guilty, when he appeared merely as a Claimant of his own accord without any special summons.

2ndy Why the Court should proceed upon that part of Angus's Petition to be tried by a Jury after the form in England before had shown what title he had to appear in this Cause, & without giving the Attorney Genl an Opportunity of objecting to his Claim which could have been sufficiently refuted.

3rdly Supposing Angus a legal Claimant, it is somewhat extraordinary, that a person should be allowed an appeal against the settled & usual forms of proceedings in a Court whose Jurisdiction he acknowledged & that upon the pretence of his having a right to be tried according to the forms of the Courts in England; whoses jurisdiction were never acknowledged nor their forms of proceeding ever followed in the Isle of Man.

4thly It appears extraordinary that a Bond of £100 only should be accepted to answer all Costs, a sum by no means adequate to the Expence of Prosecuting an Appeal before his Majesty in Council.

5thly That the Attorney General's last Petition should be rejected upon the Allegation that he ought to have objected to Angus's Claim previous to the Appeal, when it is plain no Opportunity had been given him & that he was precluded by the acceptance of the appeal, from making those objections on the day appointed by the Governor for that purpose.

6thly Agreeable to what I formerly observed that it would have been much for the Interest of his Majtys service to have had an expeditious method of prosecuting Offenders & Offences against the Revenue in this Island; it is much to be lamented, that the Court of Exchequer here is in a manner suspended for the present by this determination, as all Deliquents will now avail themselves of this appeal on pretence of being intitled to be tried by Jury.

Lastly Supposing in contradiction to the Established practice of the Court of Exchequer in this Island, Juries were admitted in causes of the Revenue, it is obvious in the present situation of affairs, nothing could be expected but the most gross partiality & a reluctance to promote the Interest of his Majesty's service; which disposition I am sorry to say appears too Evident in all Ranks of People whatsoever, whilst a more than common exertion of the Power & authority of superiors is scarcely sufficient to cheque the still daring attempts of fraudulent Traders.

I frear I have trespassed too much on Your Honrs patience but I thought it my Duty in the most explicit manner to point out how little assistance His Majesty's service is likely to receive from the present Constitution of things here.

I send inclosed Copy of the proceedings referr'd to in this letter, as received from the Attorney General.

I am &c Chas Lutwidge Douglas 5th Decembr 1765

The following papers are inlosed with the above letter

To the Solicitor for his Report & Opinion by Order of the Commissnrs 12 Do [December] Wm How

If the Governor had been in the least desirous of Supporting his own Jurisdiction he should not have allowed an appeal but given Judgement according to Law & agreeable to the usage & Customs of proceedings in the Isle of Man, from which Judgement if the party thought himself aggrieved, he would have had right to Appeal.

By the Act of the last Sessions for the more effectually preventing the Mischiefs arising to the Revenue from the illicit Trade to & from the Isle of Man, the Offences therein enumerated may be Inquired of, Examined tried & determined in any County within this Kingdom, in Ireland, in the same manner as if the offence had been therein Committed, Or in any Courts to be holden in his Majtys Name, or by Virtue of His Authority in the Isle Man according to the usual Course of proceedings in such Courts - The usual Course of proceedings in the Court of Exchequer in the Isle of Man, I presume always have been in this summary way, before the Governor & without the Intervention of a Jury; In this case therefore the trial by a Jury would have been improper, & introducing a method of proceeding not usual in the Isle of Man. A Copy of the Bond Entered into for the prosecution of the Appeal, & of the Information given by David Angus upon which the Seizure was made will be necessary, And if the Parties are in Earnest in preferring an Appeal, it should on the part of the Crown be opposed. Mr Lutwidge's observations with regard to the propriety of Angus's Claim, & how far it may be advisable for the future to attempt to prosecute any Tea or other Goods to Condemnation in the Court of Exchequer in the Isle of Man the Jurisdiction of which is Controverted by the People, & unsupported by the Judge, may be proper for Mr Tytons Consideration. G Litchfield 17 Decbr 1765

To Mr Tyton By order of the Commissrs 17 Decr 1765 W How

Claims to Seizures may be entered in any Name whether it will be advisable to prosecute any future Seizures in the Isle of Man will be considered by Your Honr when the event of this prosecution is determined. J Tyton 18 Decr 1765

Notes

David Angus is mentioned in the letter from Joseph Burrow to Customhouse London in 1764 - a David Angus (presumably the same) is noted as a witness in February 1766 to the marriage of Wm Dawson where noted as midship[?man], the other witness being George Efford master of the Ranger Cutter (a revenue boat) but in his 1765 Plea he is described as Innkeeper in Ramsey. His counsel, John Stevenson, had been a nuisance to Governor Cochrane especially in his technique of appealing to higher authority.

Lib Canc 1765 contains several relevant documents including the original petition, Angus's Plea, the Governor's decision to allow the Appeal, the decision of the King in Council dismissing the Appeal in January 1767, the continuation of the trial in Oct. 1767 (at which David Angus did not appear) when the three bags were judged lawful seizures and that David Angus and those standing bail (Stevenson's name being omitted - ? was he dead by then) should pay the costs of £90 5s against which they petitioned though it is not clear if this came on to be heard.

But as Lutwidge states this appeal stymied his attempt to use the Exchequer court to speedily try those found with any quantity of Tea. There are two petitions in Lib Canc against such seizures which would appear to have been widespread throughout the Island as related by the Rev Philip Moore.