T 1/486/230 - Governor Wood complains - 1771

This comprises a small batch of documents, two from Governor John Wood with a covering letter and four from Charles Lutwidge in response - they are somewhat out of order in the file.

Cover Letter to John Robinson Esq

Whitehall April 3d 1771

Sir

I send You inclosed by The Earl of Halifax's Direction Copy of a Letter His Lordship has received from the Governor of the Isle of Man dated the 23d March and also of the Paper refer'd to therein, representing the Inconvenience and Confusion which he apprehends will arise from the Offices of Water Bailiff being held and executed by Revenue Officers as as it appears by the said Letter that the Appointments to these Offices were made by the Lords Commissioners of His Majesty's Treasury, Lord Halifax has directed me, to desire you will lay these Papers before Their Lordships for their Consideration, to the End that His Lordship may be enabled to give Governor Wood such Answer thereupon as may appear to be necessary.

I am Sir &c Wm Fraser

Governor Wood's Letter

Isle of Mann 23d March 1771

My Lord

On the 29th December last I had the Honor to intimate to my Lord Sandwich, that if any application should be made to his Lordship relative to the Office of Waterbailiff of this Isle, his Lordship would please to suspend his opinion on the matter till I was enabled to transmit a proper State of it. And I delayed entering on the Subject, in hopes that before this time I should have been in London, & there lay the whole matter before the Secretary of State. But as Inconveniences seem at present to interfere, with respect to my Leave of Absence, I think it my Duty no longer to defer my representation of that Affair.

In the time of the Lords proprietors, out of Ecconomy, they accumulated Offices to make up a Compency for a proper person to execute the principal one, and that of the Water-bailiff always went with that of Collector except when the Customs were farmed out to Lessees, the Water Bailiff, as a civil Magistrate, had a separate Commission.

When the Jurisdiction and Revenues of this Isle became vested in the Crown, and the Collectors and other Revenue Officers were taking their Oaths of Allegiance Mr Lutwidge (the Receiver General) who is at the head of that Department was asked, if the Collectors were to execute the Office of Water Bailiff to which he replied, that the Revenue was their Business, and they were to have no concern in Civil Matters. Wherefore that the course of Justice might not be interrupted the Gentlemen who had executed that Office under the Lord proprietor, and were virtually continued by His Majesty's proclamation qualified and took the Oath before me as usual for the due Administration of Justice in the said office - a short state of which Jurisdiction I beg leave herewith to transmit to your Lordship.

Some time after the Recr General represented to me me, that it would conduce to his Majesty's Service to have that Office vested in him and the Collector of Douglas; and from that motive and the readiness which the Gentlemen expressed to resign, I did administer the Oath of Office to Mr Lutwidge & Mr Betham Collector of Douglas.

Upon my making out a plan relative to the appointment and salaries of the sevl Officers on the Civil Establishment of this Isle, the Collector of Douglas (with the Approbation of Mr Lutwidge) solicited me to put him down for some additional allowance, as officiating Water Bailiff; and upon my agreeing to the request Mr Lutwidge proposed that I should include that office in the Civil List leaving the Salary blank, and he would endeavor to get that matter settled. But in the plan transmitted to the Secretary of State (a copy of which I sent the Recr Genl then in London at his own desire) the office of Waterbailiff was overlooked; but soon after I forwarded a Missive to him to supply that Defect. Sometime afterwards he informed me that he intended that Office for himself, drawing it from the Civil Department to that of the Revenue; upon which I laid him under restrictions, to take no step therein without my previous Notice; which he promised. But some months afterwards he acquainted me, that altercation on that head was then unnecessary, as the Right Honorable the Lords of the Treasury had granted him a constitution for that Office with a Salary of Eighty Pounds.

The former Method of accumulating Offices (as the Civil and Revenue Departments are now separate) in like manner created Confusion in the executive part of the Law, with respect to serving of Actions and processes on Shipboard &c, which was formerly done by the Searchers of the ports, (who held their Commissions from the Governor and were amenable to him for their Conduct) these Searchers to my knowledge were often put upon this Service with no other design than to draw them off to one place, while illicit practices were carrying on at another. This obliged me to have recourse to the opinion of His Majesty's Chief Officers of this Isle, who were unanimous that such Civil matters now properly appertained to the Captains of Towns and Constables established by His Majesty's orders in Council dated respectively the 25th Octr 1765 and 17th Febry 1766, which opinion I transmitted to my Lord Rochford the 9th June last, and I issued out my Orders to the Captains of Towns accordingly; and have the satisfaction to find the King's Advocate & Attorney Genls Opinion to correspond with that of the Chief Officers.

At the Admiralty Court here, the Waterbailiff in his former and Civil Capacity, presided as Judge, and heard and determined many Causes of Consequence subject to Appeal to the Governor and to his Majesty in Council. But now that Court wears the appearance of a Revenue Office, derived from the Lords of the Treasury tho' the Constitution which the Recr Genl shewed me implys no such Jurisdiction, nor any power of Deputation but merely for a Ministerial Office, like that of the same denomination in England, And I am apt to think their Lordships intended no other.

The Receiver Genl however, by Virtue of this Constitution without inrolling it here, or taking any of the Oaths required, or as accustomed before his return to England thought proper not only to depute one to act as Judge in the Admiralty Court (who without having produced his deputation or taking the usual Oaths, now hears and determines Causes) but also to appoint three others, to serve processes within the Admiralty Jurisdiction, contrary to my Instructions issued to the proper Ministerial Officers for that purpose, all which Deputations are given to revenue Officers.

Far be it from me to question the powers or any Act of the Right Honorable the Lords Commissioners of his Majesty's Treasury. But I humbly apprehend that the Office of Jurisdiction of the Waterbailiff of this Isle hath not been sufficiently explained to their Lordships.

As it becomes my Duty, I cannot avoid representing to your Lordship the confusion and clashing of Jurisdictions, which are likely to arise from diverting the course of Law with respect to the Admiralty Court out of its known and ancient Channel. For the Jurisdiction being now derived from the Board of Treasury and those Deputations being granted by the Recr Genl as Waterbailiff to Revenue Officers only teach people to believe that this office is intirely Revenue, in which I never interfere.

I must therefore humbly beg to know His Majesty's Pleasure for my Guidance, in case of an appeal from the Juridiction or other matters from that Court, Petitions of Doleance, Complaint or Mal Administration. Disputes between these Civil & Revenue Officers; And in case of the Death or resignation of Mr Lutwidge, who resides in England, or of his Deputies here, how the Juridiction and Aid of this Court (which admits of no Recess or Vacation) can be kept up and obtained for the Relief of the Subject.

I have the honor to be &c John Wood

Your Lordships Letter of the 1st March gave great Satisfaction.

The inclosure mentioned in the above letter is a summary re the role of the Water Bailiff probably written by John Quayle

The Jurisdiction of the Water-Bailiff of the Isle of Mann

The Water-Bailiff hath Cognizance & Jurisdiction in all Admiralty Causes (except criminal,) & all Suits in maritime & commercial Cases, all Breaches of the Peace, Derbts, Damages, Trespasses & Assaults &c arising below the Full Sea-Mark, or upon the Shores & Sea Coasts adjacent & belonging to the said Isle, as described 7 Ja 1 - By Law grants Arrests against Person, Ships & Effects for 24 Hours, 'till an Action, & regular Arrest can be obtained from the Governor, as Chancellor. And in this judicial Capacity, hears & determines by himself or by Jury, as the Case requires, all such causes & Suits, gives Judgment, & awards Execution, commits & fines Offenders And when any Cause is commenced in the Court of Chancery, for such Matters as are cognizable in the Admiralty Court, it is generally transmitted with the Bail thereon taken to be there determined. And such Judgments & Executions of the Water-Bailiff bear the same Authority as those of the Deemsters, & other inferior Courts of the Isle; from all which there lies an Appeal to the Governor (to whom They are subordinate,) & from The Governor (as there is now no Lord Proprietor) to His Majesty in Council, ther Dernier Resort.

The Water-Bailiff ex Officio is a Member of the Legislative Body, for the enacting of Laws, making Ordinances &c And hath the Juridiction of a Justice of Peace within the Limits of the said Jurisdiction.

This letter was obviously passed to Charles Lutwidge for comment

Mr Lutwidge's Report on the Inconvience apprehended by the Office of Water Bailiff, being executed by Revenue Officers, in the Isle of Man

dated 17 Aug 1771 received 23 Aug 1771

Sir

I have the Honor of your favor of the 17th Ulto signifying the directions of the Right Honorable the Lords Commissioners of His Majesty's Treasury, to Report upon the facts Stated in a Letter of the 23d March last received by Lord Halifax from the Governor of the Isle of Man mentioning the inconvenience he apprehends will arise from the Office of Water Bailiff being Executed by Revenue Officers.

In due Obedience I beg leave to Observe that upon the Act of Parliament passing in the year 1765 for the Purchase of the Isle of Man I received directions from the Right Honorable the Lords of the Treasury to repair immediately to that Island with a sufficient Number of Experienced Officers of the Customs to take Possession of the several Ports in behalf of the Crown, and put an immediate Stop to the Illicit Trade at that time Carrying on from thence.

That Duty I flatter myself was faithfully Executed as I had the Honor of their Lordships approbation of my Conduct when in the Isle of Man I received His Majesty's Commissions appointing me Receiver General and Collector of His Majesties Revenues and the 1st July 1765 I took the Oath of Office at Castletown before the Governor and others being directed in Collecting the said Revenues to conform to the Laws and Customs of the Isle of Man in all points, where they were not Contrary to the Provisions of any British Act of Parliament - I was under the necessity of applying to the Governor for information who referred me to Mr John Quaile [sic Quayle] one of the Duke of Atholl's late Receiver and Collector and at that time acted as his Secretary. Upon my writing to him to explain the nature of the Office of a Collector of the Revenue in the Isle of Man, he transmitted his Answer the 29th July 1765, Copy of which is inclosed No 1 the Original now in my Possession. This I made no doubt was wrote with the approbation and Concurrance of Mr Wood, as a few days after I mentioned having received it, and on my reading it to him he made no remarks, or objections to any part of it. In this Letter Mr Quaile acquainted me that all Admiralty Naval and Commercial affairs were within the Revenue Department and Comphrehended in its Jurisdiction. And that the Collectors were Water Bailiffs and Notarys Publick ex Officio which being the first intimation I received of the Office having any Connexion with the Revenue. I thought proper to Consult Mr Quillin the Attorney General upon the Subject, who Concurred in the same Opinion, delivered to me Several Extracts from the Statutes of the Isle of Man as a proof thereof at the same time assured me the Eexecution of the Office wud furnish me with the most effectual means (as I afterwards found) of Suppressing and destroying the Smuggling trade, still Carrying on Notwithstanding our utmost Efforts to prevent it.

Copy of these Extracts No 2 I beg leave to inclose from which it appears that from the year 1422 the most antient Statutes of the Isle of Man upon Record to the present time the Office of Water Bailiff has been Held and enjoyed by Officers of the Revenue without interuption, except for the space of four or five years in the beginning of the Reign of King George the First when the whole of the Revenues of the Isle of Man were Farmed from the Earl of Derby by two Persons who were ruined by the Scheme and Obliged to give up their Lease; the Office then reverted to its former Channel, and was always Executed by the Receivers & Collectors of the Proprietor till I went over to take possession of the Island as beforementioned, that they were Superseded by the inclosed Proclamation of His Majesty the 21st June 1765.

A further proof that this Office always was and must necessarily remain within the Revenue Department, the following Articles of His Majesty's Revenues are immediately under the Charge of the Water Bailiffs; no mention whereof is made in the Inclosed Description of the Jurisdiction of the Water Bailiff transmitted by the Governor.

1st The Inspection and direction of the Herring Fishery upon the Coasts of the Island from which a Considerable Revenue arises to the Crown and the appointment of an Admiral and Vice Admiral thereof who by their Instructions are directed to assist and Correspond with His Majesty's Officers for the discovery of Frauds in the Revenue.

2d All Shipwrecked Goods found and taken up at Sea which are the property of the Crown.

3d The Rents of the Salmon Fishery in the Bays of the Island by the late purchase Vested in His Majesty.

4th The Inspection and Regulation of the Sea Ports and Harbours of the Isle of Man.

5th Royal Fish &c.

The Water Bailiff also being obliged to Hold a Court every week for deciding Disputes among the Boatmen &c for recovery of petty Maritime Debts for Freight and hire of Boats Sloops &c. We by that means gained an influence among the Seafaring people and became acquainted and discovered many frauds, We shud not otherwise have come to the knowledge of - in short it was by this Office alone We were enabled so effectually to extirpate the Smuggling Trade, which I am sorry to Observe from the natural Disposition of the people wud soon revive provided such an Opening was given as wud be the necessary Consequence of detaching this Office from its Antient Department of the Revenue.

I wud further Observe that in the several accounts given of the Constitution and Government &c of the Isle of Man the Water Bailiff appears to be the Antient Customer and Collector of the Customs which is Confirmed by the Statutes in the inclosed Schedule of 1561 & 1593 particularly the last in which is the following Clauses.

"The Water Bailiff shall Answer all Customs in kind as he receiveth them and not otherwise". - And in the Table of Fees payable to the Officers of the Revenue Confirmed by the Legislature of the Island he is called Water Bailiff and Customer. With respect to the Observation in Mr Wood's Letter. "that when the Collectors and other Revenue Officers were taking the Oaths of Allegiance, being asked if the Collector were to Execute the Office of Water Bailiff I replyed the Revenue was their Business and they were to have no concern in Civil Matters".

I beg leave to observe that such a Question could not be proposed at the time the Governor mentions, for myself and Mr Betham were admitted and had taken the Oath of Office as Water Bailiff the 26th Sept 1765 which was some time before any of the Revenue Officers or Collectors Constituted by their Lordships arrived in the Island.

I believe I might in private Conversation make such reply with respect to the Officers I first carryed over for as they were only Collectors Pro tempore, to return to their respective Stations in England when Superseded by those Constituted by their Lordships - and being totally unacquainted with the Laws and Customs of the Isle of Man, it wud have been very improper to have required them to execute that Office. But so soon as Mr Betham appointed Collector of Douglas came to the Island, We went to Castletown where with the advice of Mr Quillin the Attorney General; the Oath of Office usually taken by the Water Bailiff was in presence of the Governor Administered to Us by Mr Quaile Clerk of the Rolls, not the least Objection made that I recollect, or was it ever Suggested the late Water Bailiff had Resigned, a Circumstance I never before heard or Suspected, as it was impossible after the purchase anf Person cud discharge that Duty except myself anmd Deputy: Messors Quaile & Mylrea the only Receiver & Collectors the Duke of Athol then had in the Island being absolutely excepted by His Majesty's Proclamation before mentioned.

I beg leave to send the inclosed Extract No 3 from the Chancery Court of the Island, by which it is to be observed the Oath of Office was Administered to Us by Nature of Our respective Commissions of Receiver General and Collector, and manifestly shows the Governor and all the other Officers then thought the Office to be within the Jurisdiction of the Revenue and Vested in Us ex Officio as stated in Mr Quaile's beforementioned Letter 29th July 1765.

The Office continued to be executed by myself and Deputy in its Antient and Constitutional form for upwards of five years without the least interruption or Complaint. Appeals & References to and from the Governor in the usual manner, and one remarkable instance happened where Mr Quaile beforementioned and Mr Deemster Mylrea (at that time and still the Chief Agents and Stewards of the Duke of Athol) attempted to deprive the Crown of its Just Right to a Quantity of Tobacco taken up at Sea which they Claimed as the Property of his Grace, after Mr Betham as Deputy Water Bailiff had secured it for His Majesty's use. This matter came before the Governor and by him Referred to the Water Bailiff's Court where the Determination given in favor of the Crown was afterwards Confirmed by the Opinion of the Attorney & Solicitor General in England. A particular account of this transaction was laid before their Lordships in my Letter the 7th April 1767 And a further proof that Mr Wood continued in the same Sentiments of the Office being within the Revenue Department, in his Letter the 23d Septr 1768, which inclosed Copy of a Schedule he had transmitted to the Secretary of State of the Officers in the Isle of Man he expresses himself thus. "The powers of Collector and Water Bailiff were Blended in one and the same Commission with Salary of Twenty pounds per Annum for both however from your good Offices and representation of the trouble and Advantages of Obtaining Intelligence and informations I hope you will be able to get something for Mr Betham."

The above Narrative I humbly apprehend renders it unnecessarey to be more Explicit upon other particulars Contained in Mr Wood's Letter which I am sorry to Observe are not represented with that Candor I might have expected from his own Letters now in my possession, but I am under the necessity of explaining to their Lordships my reasons for applying for a separate Constitution for the Office after I had enjoyed it above five years by virtue of His Majesty's Commission of Receiver General.

In March 1770 in a Conversation with Mr Wood relating the Arrears of Salary due to himself and other Officers, he asked what allowance was made to me as Water Bailiff. I told him their Lordships had been pleased to direct Eighty pounds per Annum which would enable me to have Deputys at each of the Principal Ports of the Island according to Antient Custom and be an effectual Security to the Revenue the great Object of the Governments purchase of the Island - This seeming to give him Satisfaction I was greatly surprized soon after to receive a Letter from Mr Searle the Attorney General acquainting me He had mentioned the Affair to him, And He believed intended to make some representation to the Secretary of State upon it. Therefore that he had no doubt the Office was Vested in me by virtue of His Majesty's Commission yet to prevent future Altercation upon the Subject. He believed intended to make some representation to the Secretary of State upon it, - therefore tho he had no doubt the Office was Vested in one by virtue of His Majesty's Commission yet to prevent future Altercations upon the Subject. He recommended my applying for a separate Constitution for it, for which purpose I laid before their Lordships the 14th June 1770 the inclosed Extracts from the Several Statutes of the Isle of Man relating the Office and they were pleased to Grant my Request.

The Constitution I then received which Mr Wood in his Letter is pleased to say is Merely for a Ministerial office I shewed to him on my return to the Island, when he mentioned nothing of the necessity of Enrolling it, or taking any Oath of Office, which certainly cud not be requisite, as myself and Deputy had taken those usually administered to the Water Bailiffs before himself, on our first going over as before mentioned, and had with his knowlege & Concurance acted as such upwards of five years. Upon my appointing the Collectors of the Revenue Deputy Water Bailiffs at the Principal Ports (the form of whose Deputations was approved by the Attorney General)n I acquainted the Governor of it by Letter and so that they were directed to execute particular Orders and Instructions for His Majesty's Service, which Instructions cannot possibly Interfere with the Orders lately given by the Governor for Executing the Common Process issuing out of the Water Bailiff's Court, as they are only directed to execute those where the Rights of the Crown are Concerned; the necessity for which precautions I humbly apprehend fully appears from the Attempt the 7th April 1767 before mentioned.

Neither does there seem any reason to apprehend that Confusion and Clashing of Jurisdictions which the Governor is pleased to say is likely to arrive. Nothing of the kind have happened in the Course of six years since the Purchase and I humbly apprehend it has been fully proved the Office Continues in its Antient and Constitutional form.

I am &c Chas Lutwidge

Whitehaven 17th August 1771

The various documents included by Lutwidge follow:

No 1 in Mr Lutwidge's Letter of 17th Augt 1771

Copy of Mr Quaile's Letter relating the office of Water Bailiff 29th July 1765

Castletown July 29th 1765

Sir

In Answer to your request relative to the nature of the Office of the Collector I can in general observe that as this Isle has its own peculiar Laws, Customs and Constitutions, So has the System of Government been adapted to Exigences of the State.

Tho' you have found the Revenue Department of this Isle conducted by few hands; yet the occurances will show the Business in its miniture, so far from wanting the least Branch of your Board of Customs, that it has many more matters comprehended in its Jurisdiction and Duty: and particularly all Admiralty, Commercial, Naval and Maritime Suits, all Causes of Action and petty Offences arising below the full Sea Mark are tryed in the Admiralty Court before the Collectors, and if the Suits should be commenced in other Courts they have been constantly transmitted to the said Court of Admiralty: from whence lyes an Appeal to the Governor, and the King in Council the dernier Resort. The Collectors are also Waterbailiffs and Notarys public ex officio and upon the whole ought to be acquainted with the Civil Law, as well as the Municipal Laws of this isle. However triffling the Causes may appear, yet this Court is one of the Essential parts of the Constitution and Government of this Isle

I am &c John Quayle

No 2 In Mr Lutwidges Letter of 17th Augt 1771

Extract from the Several Laws Ordinances and Statutes of the Isle of Man relating the Office of Water Bailiff

Anno 1422 Also be it ordained that the Water Bailiff have his Deputy in every Haven to make Defence in all Causes, and to make the profits thereof if any forfeiture be made in the Lords behalf, and to write what Goods is taken out of the Country and what is brought in.

Also be it Ordained, that if Arrest be made by the Water Bailiff that it may be given in the Account to the Clerk of the Rolls, so that the Lord may have an Amerciament.

1561 Accounts of Merchandize transported to be delivered to the Water Bailiff or his Deputy so that the same may pay Custom according to the Laws of the Land.

Item that the Water Bailiff shall make a Book of every Ship Pickard and Boat that bringeth any Wares into the Country and the day when She cometh and what Wares She brings into the Land and what Wares She taketh Out of the Land and what Custom is due for the same and to deliver a Copy thereof to the Comptroller or his Deputy.

Item when any Forfeiture is Seized within full Sea Mark, by any of the Officerrs to the Lord, then the same to be Certified to the Captain of his Deputy with speed and then he to call the Officers and the two Deemsters together, and they to Commune and Consult how it was Seized and if the said Captain and Officers do find the same Lawful. Then the Comptroller to Enter the same in his Book of Record, as well as the Water Bailiff not only of the Parcels but also of the day and year of the Seizure of the same &c And the same to be sold and Convented to the Lords most profit anbd advantage in the Water Bailiffs Accounts.

1577 After the Rates of Customs payable in the Isle of Man is the form of a Cocket for Shipping Goods and the Conclusion runs thud "In Witness whereof unto these presents We the Water Bailiff and Customer of the isle of Man have put our Seals of Office the First day of February in the Twenty fourth year of our Sovereign Lady Elizabeth by the Grace of God Queen of England France & Ireland Defender of the Faith &c"

1593 Item Whereas it has been acustomed that the Water Bailiff hath had Custom boards Planks Oars and other like Customs in kind and hath paid a small Rate for the same to his Lordships use, Now it is ordered by the said Earl that the Water Bailiff ahall answer all Customs in Kind as he receiveth them and not otherwise.

1711 It is enacted that no Wine Brandy or any other Foreign Goods or Mechandize shall be shipped or Exported from the Island to any part of Great Britain or Ireland untill Bond is given to the Water Bailiff in penalty of Double the Value of the Customs, and other Duties due upon Importation into Great Britain by two or more sufficient Sureties to be approved of by her Majesty's Chief Officer of the Customs residing in the Island.

Persons forfeiting their Bonds to be prosecuted by the Water Bailiff and Fine and Punishment on him for not doing the same effectually.

Foerign Goods may be Exported to any place except Great Britain or Ireland upon making Oath before and giving Bond to the Water Bailiff

Other powers relating to the Exportation of Bestials and other Goods the produce of the Island, also relating the Importation of Irish Cattle into the Island are given by the said Act to the Water Bailiff.

1536 Penalties for buying up and Transporting Herrings before the Country is served to be levied by Execution from the Water Bailiff upon proof made before him

At the end of the Book of Rates there is a Table of Fees payable to the Water Bailiff and Customer.

[Copy out of Lib Canc re Oaths taken by Lutwidge & Betham]

At a Chancery Court holden at Castle Rushen the 26th day of August [marginal note Should be I apprehend 26th Septr] in the 5th year of the Reign of His Majesty King George the 3d and in the year of Our Lord 1765 before his Excellency John Wood Esquire His Majestys Governor in Chief and Captain General of the said Isle.

At which Court Charles Lutwidge and Richard Betham Esquire personally appeared and made application to be Sworn into the Office of Water Bailiff according to their respective Commissions. The Oath of Office in the words following was Administered to them - "You shall as far in you lieth Execute the Office of Water Bailiff duly and truly according to the Trust reposed in you during the time you shall execute the same Office - You generally as far as in you lieth Shall do and execute all Matters and things belonging to the said Office of Water Bailiff for the Execution of Judtice and Equity in the said Office, not Favouring the Rich or opposing the poor, and all this according to the purport & Extent of Your Commission. So help you God.

The before going Oath was administered to Charles Lutwidge Esqr Sworn Water Bailiff of this isle, and also to Richard Betham Esqr sworn Water Bailiff within the limits of the Port of Douglas by Virtue of their Commissions bearing date respectively the 22d day of June and 10th day of July 1765. As Witness their Subscriptions Cha Lutwidge, Richard Betham Administered by & before me John Wood

Notes