[From Feltham's Tour, 1798]
HAVING noticed this act in pages 124, 125, and recollecting that it has not appeared in any work printed in England, I am induced to present it to the reader in this place, together with its explanatory act.
An ACT, for the perfect Settling and Confirmation. of the Estates, Tenures, Fines, Rents, Suits, and Services of the Tenants of the Right Ron. JAMES, Earl of [Derby, within the Isle of Man, passed at Tynwald-Court, holden at St. John's (chapel, within the said Isle, the 4th day of Feb. 1703, by the said JAMES, Earl of Derby, Lord of the said Isle; ROBERT MAWDESLEY, Lieut., Governor; and the rest of his said Lordship's Officers; and twenty-four Keys, the Representatives of the said Isle.
WHEREAS several disputes, questions, and differences have heretofore arisen and been contested between the lords of the said isle and their tenants, touching their estates, tenures, fines, rents, suits and services, to the great prejudice of the lords, and impoverishment of the tenants and people there, who, by that means, have been discouraged from making such improvements as their estates were and are capable of: for the absolute and perpetual ascertaining whereof, and the avoiding of all ambiguities, doubts, and questions that may or might, at any time hereafter, arise, or grow, touching or concerning the same, proposals were made unto the said James, Earl of Derby, now Lord of the said isle, at Lathome, the 8th day of Sept. last past, by :Ewan Christian, of Unerigg, in the county of Cumberland, Esq.; John Stephenson, of Balladoole; and Ewan Christian, of Lewage, within the said isle, gentlemen; who, by an instrument under the hands of the twenty-four Keys, now remaining upon record, were empowered to treat concerning the same, as well for and on behalf of themselves, as all and every the tenants within the said isle, in manner following:
1st. That in case his lordship would be pleased to declare Tenures and confirm unto his tenants their ancient and customary constrained estates of inheritance in their respective tenements descendible from ancestor to heir, according to the laws and customs of the said isle, that then the said tenants should, in consideration thereof, advance and pay unto his said lordship the same fines which they severally and respectively paid for their several and respective tenements, at the general fining, which was in or about the year of our Lord 1643: except where any tenant or tenants have or hath one or more life or lives in being;and that then, and in such case, he or they should severally and respectively pay two-thirds only, of the said general fine, for their respective tenements,
Idly. That upon the change of any tenant, by death or Alienation,, the next succeeding heir, or alliance, should pay unto the lord of the said isle for the time being, the third part of the said entire sum which was paid for a fine at the said general fining, in this manner following: that is to say, in case of the change of a tenant by death, then the said fine should be paid within twelve months after the death of such tenant; and in case of the change or removal of a tenant by alienation, then the same should be paid immediately after such alienation made, proportionately to the lands and tenements which should descend, or be aliened; and this to continue forever hereafter,as a fixed and a certain fine, upon every descent and alienation. Provided, nevertheless, that all intacks, cottages, and miles, Intacks which, by the laws and customs of the said isle, were and are reputed chattels, might be chargeable with debts, and devisable by gift, grant,will, or assignment, as formerly accustomed, paying such fines respectively as were paid at the general fining aforesaid; to wit, the whole fine where there were no lives in being, and two parts thereof only where there were, and still are, one or two lives in being; and a third part of the said general fine, forever hereafter, upon every descent or alienation, as aforesaid.
3dly. That the tenants of the abbey lands, as well as the lord's tenants, should be included in the said proposals, they and every of them paying the same fines that were agreed for, upon their late compositions, or leases, made in or about the year of our Lord 1666 (except such as have one or more life or lives yet in being, to pay two parts only of the said fine now), and a third part thereof always afterwards, upon the admittance of a new tenant, either upon death, or alienation,as aforesaid: and also yielding, paying, performing, and doing the annual rents, customs, suits, and services, as formerly and anciently accustomed; and that the tithes arising out of the abbey demesnes,and reserved by James, late Earl of Derby, upon the composition by him made in the year 1643; and afterwards by Charles, late Earl of Derby, granted to Bishop Barrow (since deceased), and his successors,for the use of the clergy of the said isle, should be reserved, and forever hereafter payable to them.
4thly. That the double rents of the quarterlands, as they were then payable, together with all other rents, suits, and services payable out of those, or any other estates within the said isle, should be reserved and payable, forever hereafter, as formerly, to the saidJames, Earl of Derby, his heirs and assigns, or to such other person, orpersons, as for the time being should be lord of the said isle; and that BOON, and the ancient boons and carriages, payable by the respective tenants, should be considered at a Tynwald-court.
5thly. That if any tenant should then after pass away any part of his estate, either to any of his children, or other person whatsoever, by gift, grant, assignment, or any other deed or contract whatsoever, whereby to divest himself of the premises, that the same should be esteemed and accounted as an alienation within the intendment of the said proposals: or if any tenant who then had mortgaged, or should thence after mortgage all, or any part of his messuages,lands, tenements, mills, cottages, intacks, or other hereditaments, unto any person, and should not actually redeem the same, to his own proper use, within the space of five years next after the commencement of the said mortgage, that then such mortgage should be likewise looked upon and reputed as an alienation; and the mortgagee should be admitted tenant, and his name entered into the court-rolls, and should pay the third part of the general fine, charged and chargeable upon the said messuages, lands, tenements, milus, cottages, intacks, and hereditaments so mortgaged, or to be mortgaged, as aforesaid: provided, nevertheless,that the mortgager shall have the power and liberty of redemption still remaining in him, and is to be restored to the possession of the premises, by law, or order of the Court of Chancery, as the matter will appear in equity; so that the same may be done within the space of one and twenty years from the date of the said mortgage, and not other proviso. And that all bills of mortgage already made, or hereafter to be made, shall be entered into the records within six months after the passing of the said proposals into a law, or within six months next after such bills of mortgage were executed; otherwise such bills to be ofno effect in the law.
6thly. That all new intacks, or inclosures, taken out of the commons, and all mills erected since the year 1643, that had not paid any fines, should have a reasonable fine set upon them by the governor,three of the lord's officers, and three of the twenty-four keys, to beappointed for that purpose; and that the fines so set by them should be paid within six months next after the setting thereof; and that the third part of the said fine so to be set as aforesaid, should forever hereafter be paid upon the change of every tenant, by death, alienation, or mortgage as aforesaid.
7thly. That all intacks, or mills, which should then after be inclosed or erected, should pay such fine and fines as should be agreed on by the governor, and lord's officers; and that to be likewise a fixed and certain fine, to be forever hereafter paid by the tenants of the same, upon every descent, or alienation, in manner aforesaid.
8thly. And that all such intacks and cottages as had been taken out of the highways adjoining the quarterlands, or other estates, but not belonging to the same, should not, nor were not intended to be included in the said proposals; but that such intacks and cottages (being complained of as great nuisances) should be referred to the considerationof a Tynwald-court, to determine where the rents and fines, of and for such intacks and cottages, might most conveniently be fixed.
9thly. That whereas the fine lately paid out of the estate called Lough Mallow and Dry Closes was not comprised in the general fining in the year 1643, the same being since that time leased by Right Hon. Charles, late Earl of Derby; it therefore (upon special consideration had) proposed that the said estate should only pay 1201. for the present fine: but if any of the lives nominated in the said lease, made thereof by the said late Earl Charles, should be found to be still in being, then only two-third parts of the said 1201. should be paid as a present fine; anda third part of the said 1201. should forever hereafter be paid as afixed and certain fine, upon the change of any tenant by death, alienation, or mortgage as aforesaid.
10thly. That the present fines should be accepted and received according to the currency of money then within the said isle; and that one-third part thereof should be paid within six months next after the passing of this act; another third part should be paid at the end of twelve months now next ensuing; and the last payment to be made within six months then next following: so that the whole should be paid within eighteen months next after the passing of this act.
11thly. That the ancient rents (except only on such lands as were then in the lord's hands) should, for the future, be preserved by the Setting Quest; and that the tenants' names should be entered in the court rolls, as formerly; and that when any tenant should come to any estate, by death, alienation, or mortgage, such tenant should be obliged to give notice thereof to the Setting Quest of the parish where such estate lay, some time before the next sheading court that should be holden after he became tenant to the said estate,to the intent that the said inquest might present the said tenant's name to the court (which they should, upon oath, be obliged to do, at every sheading court, as oft as any such should happen), to the end that such tenant's name might be entered upon record, either by himself or some other person in his behalf, whereby the lord's fines might be had and received, at such time and in such manner as are hereinbefore, forthat purpose, limited and appointed, without fraud or concealment;and if the said tenant should refuse, or fail to have his name entered accordingly, at the said court, that then such tenant so refusing, or neglecting, should be fined in 31. to the lord for the time being; and that, upon the change of any tenant, by death, alienation, or mortgage,one single person, and no more, should be admitted, unless he became tenant in the right of his wife, and not otherwise.
And lastly, That all the before-mentioned proposals, and every matter and thing therein contained, should forthwith be passed into a law, and confirmed by the authority of a Tynwald-court, saving always to the lord all such royalties and regalties, in and concerning the premises, as were invested in his lordship by virtue of his prerogatives within the said isle. And the said James, Earl of Derby, out of his great zeal and care for the welfare and quiet of his people, and to the end that such establishment might be treated and agreed upon, as might complete and forever confirm a constant mutual love and friendship between the lords of the said isle and their people, did nominate and appoint the forenamed Robert Mawdesley, Thomas, Lord Bishop of Sodor and Man, and Nicholas Starkie, Esq., commissioners, to treat and consult with the said Ewan Christian, John Stephenson, and Ewan Christian, of Lewaige, concerning the said proposals, which were con sented and agreed unto by all parties commissionated for that purpose;(as in and by the said proposals, enrolled and remaining upon record,in the comptroller's office, within the said isle, more at large doth and may appear ;) and the said Right Hon. James, Earl of Derby, and all and singular the tenants and inhabitants within the said isle, and members of the same, are contented and well pleased that the said proposals, and all things therein contained, shall be ratified and confirmed by an act of Tynwald-court.
May it therefore please your lordship, that it may be enacted, and be it enacted, by the said James, Earl of Derby, now lord of the said isle,by and with the advice and consent of the said governor, and the rest of his lordship's officers, and by the twenty-four keys in this present Tynwald-court assembled, and by the authority of the same, that the said proposals, and every clause, article, sentence, matter, and thing in the same contained, shall stand and be ratified, allowed, approved of,and confirmed, by the authority of this present Tynwald-court; and that the said proposals shall stand and be of force to bind and conclude, as well the said James, Earl of Derby, his heirs and assigns, and all persons claiming, or to claim from, by, or under him or them, or to hisuse, or in trust for him, as the said :Ewan Christian, John Stephenson,and Ewan Christian, of Lewage, and all and singular other the tenants,and inhabitants within the said isle, their and every of their heirs and assigns, and all persons claiming, or to claim from, by, or under them,or any of them, or to or for their use, or in trust for them or any of them, in all things, according to the purport, effect, and true meaning of the said proposals; and that every clause, article, sentence, matter,and thing in the said proposals contained, shall, forever hereafter, stand,be, and remain, and be adjudged and taken to be of such and the sameforce and effect, to all intents and purposes, as if the said proposals,and every clause, article, sentence, matter, and thing therein contained,were especially and particularly herein again expressed and repeated and by the authority of this present court enacted.
And, be it further enacted, ordained, and declared, by the authority aforesaid, that all estates made, or to be made, of any messuages, lands,tenements, and hereditaments, within the said isle, or members of the same, to any person or persons, and his and their heirs, shall be, and shall be adjudged, esteemed, and taken from the making or granting of such estates, to be good and perfect customary estates of inheritance descendible from ancestor to heir, according to the laws and customs of the said isle; (except such as are reputed chattels, as is before-mentioned ;) and that all and every such person and persons, to whom anysuch customary lands, tenements, or hereditaments are, or shall be granted to him, and his heirs, according to the laws and customs of the said isle, shall be, and shall be adjudged, esteemed, and taken,and are hereby declared to be seized thereof, as of good and perfect customary estates of inheritance, to them and their heirs, descendible from ancestor to heir, according to the customs of the said isle; and that all and every the said tenants of and within the said isle, and members of the same, as well all tenants in possession as in reversion,and remainder particularly or generally named, mentioned, or intended to be parties to the said proposals, and not hereby excluded, their and every of their respective heirs and assigns, shall and may, from henceforth forever, quietly and peaceably have, hold, and enjoy all their respective messuages, lands, tenements, and hereditaments, with their and every of their appurtenances, to them and to their heirs severally and respectively, as customary tenants of and within the said isle,against the said James, Earl of Derby, his heirs and assigns, and against all and every other person or persons, claiming or to claim from, by, orunder him or them, or any of them: all and singular the tenants within the said isle, and members of the same, their heirs and assigns,and all and every other person, or persons, claiming, or to claim from, by, or under them, or any of them, respectively yielding, paying, performing, and doing unto the said James, Earl of Derby, his heirs and assigns, and all and every other the lords of the said isle for the time being, such yearly rents, boons, suits, and services, as herein-before are mentioned, and which now are, or heretofore have been, usually paid and performed; and also paying unto the said James, Earl of Derby,his heirs and assigns, such general and other fines certain, as in the said proposals are also, for that purpose, particularly mentioned and expressed: saving always unto the said James, Earl of Derby, his heirs and assigns, and unto all and every other person and persons, that shall at any time hereafter become lords of the said isle, all such royalties,regalia, prerogatives, homages, fealties, escheats, forfeitures, seizures,milles, and minerals, of what kind and nature soever, quarries, and dells of flag, slate, and stone, franchises, liberties, privileges, and jurisdictions whatsoever, as now are, or at any time heretofore have been invested in the said James, Earl of Derby, or in any of his ancestors, lords of the said isle; and saving, nevertheless, to all and every person and persons, bodies politic and corporate, their heirs and successors (other than the said James, Earl of Derby, his heirs and assigns), all such actions, estate, right, title, interest, use, trust, claim,and demand whatsoever, in law or equity, as they or any of them have,may, should, or ought to have, of, into or out of the said isle, or any part thereof, and in such sort and manner as if this act had never been made: Provided that such person or persons, their heirs, executors, and administrators, do yield, pay, perform, and do unto the said James, Earl of Derby, his heirs and assigns, and to all and every other the lords of the said isle for the time being, the several yearly rents, boons, suits,and services, that have been accustomarily and usually paid for the estates which they or any of them shall or may make any claim or title to, and do also pay unto the said lord and lords of the said isle for the time being, all such fines certain for the same, and in such manner and form, as in the said proposals are particularly mentioned and agreed unto, and not otherwise. And it is further provided, that nothing in the said saving shall impeach, or be prejudicial to, or be construed to impeach or be prejudicial to, the settlement of the nature and quality of the estates, tenures, fines, rents, suits, and services, which hereby and by the said proposals are agreed upon, and intended to be enacted,granted, and confirmed: anything in the said saving to the contrary notwithstanding.
Note, That it is agreed and consented unto, by the governor, officers,and twenty-four keys aforesaid, at the signing hereof, that this act shall be no way construed and taken, to free and discharge the tenants and inhabitants of this isle from giving their best assistance, or supply,for the defence of this isle, in time of war, or other imminent danger,in such manner as shall be agreed upon by the governor, officers, and twenty-four keys of the island for the time being, as occasion and necessity will require._(Signed, &c.)
I do hereby declare my full and free consent to this Act ofSettlement, saving and except so much thereof as relates to the tithes arising out of the abbey demesnes therein mentioned to be sold by Charles, late Earl of Derby, to Bishop Barrow,and the several rectories of Kk. Christ Lezayre, Kk. Marown,Kk. Lonan, Kk. Conchan, Kk. Malew, Kk. Maughold, KirkArbory, Kk. Christ freshen, Kk. Michael, and Kk. St. Anne,with their and every of their appurtenances, and all tenths and tithes renewing, growing within, or belonging to the said rectories; and all oblations, obventions, pensions, rights, and duties therermto belonging or appertaining, which were, by indenture, bearing date the 1st day of Nov. 1666, made between the said Charles, Earl of Derby, of the one part, and Isaac, Lord Bishop of Sodor and Man, and Jonathan Fletcher,archdeacon of the said isle, of the other part, granted, bargained, and sold, to the bishop and archdeacon, their executors and assigns, for ten thousand years, at the several yearly rents and upon the trusts therein-mentioned; and such estate, right,title, interest, claim, and demand, as I have or may or canclaim or demand of, into, or out of the same, as if this act hadnever been made or passed. And I do hereby confirm this act (except as aforesaid), according to my undoubted prerogative within the said isle, and require that the said act be published at the next Tynwald-court, in usual manner.
At a Tynwald-court, holden at St. John's chapel, the 6th of June, A. D. 1704.
The foregoing Act of Settlement being confirmed by our Honourable Lord, in manner as aforesaid, was this day publicly proclaimed, upon the Tynwald-hill, according to ancient form and custom. As witness our hands, the day and year above-written._(Signed, &c.)
INSULAR ACTS likewise passed by the Right Hon. JAMES, Earl of Derby, Lord of the said Isle, and by his Governor, officers,and twenty-four Keys, the Representatives thereof, at the before-mentioned Court of Tynwald, holden the 4th day of February, A. D. 1703.
WHEREAS by a clause in the before-mentioned Act of Settlement,the respective tenants and inhabitants of the said isle are obliged to pay (besides their rents and fines therein contained and expressed) all other their dues, duties, and carriages, as have been formerly accustomed and expressed, and that the fixing and ascertaining of the said carriages is, by the said act, left to the consideration of a Tynwald-court. Be it therefore ordered, ordained, enacted, and declared, by the authority of the said Court of Tynwald, that the tenants and inhabitants of this isle shall pay and do their carriages to the lord as formerly accustomedthat is to say, four carriages from every quarter of land, and one carriage from every cottage and intackholder, within the said isle:and the same to be performed either by the labour of horses, or service of men, as the governor shall think fit to order, and as hath been formerly accustomed; and that these carriages shall be taken for the lord's use, as his lordship, or the governor for the time being, shall think fit to employ them; and that no tenant shall be exempt from doing of these carriages, but such as have been legally accustomed to be freed thereof
Also, Whereas by another clause in the aforesaid Act of Settlement,all persons who then had mortgaged, or should thenceafter mortgage,all or any part of his messuages, lands, tenements, mills, cottages, intacks, or other hereditaments, unto any person, and should not actually redeem the same to his own proper use, within the space of five years next after the commencement of the said mortgage, that then such mortgage should be looked upon as an alienation, and the mortgagee admitted as tenant to the same, in such manner, and on such terms, as in and by the said clause is fully mentioned and expressed. And forasmuch as it is conceived that several fraudulent bargains may be made, by letting of lands, tenements, mills, cottages, intacks, and other hereditaments, for the security of money, under other notions than that of a mortgage, to defraud our honourable lord of his fine: Be it therefore ordered, ordained, and enacted, by the authority aforesaid, that all such bargains as shall hereafter be made,and given for the security of any sum of money, upon lands, tenements,mills, cottages, intacks, and other hereditaments, as aforesaid, longer than for the term of five years, shall be declared and taken to be a mortgage within the intendment of the said act, unless the Court of Chancery within this isle shall adjudge it otherwise; and that the mortgagee shall be liable to pay such fine for the same, as in and by the said clause inserted in the said act, is mentioned and declared.
And also, Whereas by another clause in the aforesaid Act of Settlement, it is mentioned and expressed, that all such intacks and cottages as had been taken out of the highways adjoining to the quarterlands,or other estates, but not belonging to the same, should not, nor werenot intended to be included in the said Act of Settlement; but that such intacks and cottages (being complained of as great nuisances)should be referred to the consideration of a Tynwald-court, to determine where the rents and fines of and for such intacks and cottages might most conveniently be fixed. Be it therefore hereby ordered, ordained,and enacted, by the authority aforesaid, that the rents and fines of all such cottages and intacks, taken out of the highways adjoining to anyouarterlands, or other estates, whether they belong to the lord or barons, being taken to rent in or since the year of our Lord 1610, are to be paid by those farmers and tenants, or other persons, unto whoselands and tenements these cottages and intacks do adjoin, and they tobecome tenants thenceforward to the lord, for the said cottages and intacks; and that the said tenants and inhabitants dwelling in and possessing those cottages and intacks, shall henceforward become subtenants to the said farmers, tenants, and other persons, upon such reasonable terms as can be agreed upon betwixt them, or as shall be thought reasonable by the Court of Chancery of this island; and if any such cottage or intack holder do not submit to such terms as the court shall order therein, then such cottage or intack holder is to be ejected out of the said holding, and a jury of four men sworn to value what improvements he has made on the same; which said value (being approved of by the court) the said farmer, tenant, or other person is to pay and reimburse unto the said cottage or intack holder, and thereupon to be immediately possessed of the same, and have liberty to dispose of the said cottage, or intack, to whom and to what uses he shall think fitting. Provided always, that such farmer, tenants, orother persons, unto whose lands such cottages or intacks do adjoin,complaining of such to be a nuisance, shall be obliged to make the same appear to be so, within eighteen months next after the date hereof,otherwise, and in default thereof, the said cottage or intack holder shall have and enjoy the same on the like terms that other cottages and intacks are held and enjoyed within this isle, by virtue of the said Act of Settlement, without any disturbance of the said farmer, tenant, orother person, at any time after the said eighteen months are determined and expired. And it is likewise provided and declared, that all highways out of which any intacks or cottages have been taken, that shall be found not to be eighteen feet broad, according as the statute provides, shall be enlarged out of the said intacks or cottages (when complained of) at any time hereafter; anything herein-mentioned tothe contrary notwithstanding.
And whereas, in the saving part of the said Act of Settlement, it is mentioned, and declared, that all quarries and dells of flag, slate, and stone, are reserved to his lordship and his heirs, as a royalty and prerogative belonging to them within this isle: which part of the said act seems to restrain the farmers and tenants of the said isle from digging, and getting such sort of common stone as might be necessary for building, and making of other improvements on their estates and tenements; be it therefore enacted, ordained, and declared, by the authority aforesaid, that, notwithstanding the general words in the said Act of Settlement, every tenant and farmer shall, nevertheless, have free liberty of digging, raising, and disposing of all sorts of stones and slates, upon their respective tenements, as hath been formerly accustomed; so that they be employed only for their own use, and for the improvement of their own and neighbours' estates and tenements, and that they shall not dispose or make merchandise of the same otherwise, without the licence or liberty of the lord or governor of the said isle first had and obtained for the same; and if any farmer,or inhabitant, having a quarry or quarries of limestone, or other common stone, on his or their grounds, shall obstinately refuse or deny liberty to any other person or persons, to dig or get such limestone, orother stones, for the improvement of his or their lands or tenements, orotherwise, without paying him a high and unreasonable consideration for the same, then, and in such case, it shall and may be lawful for the governor of this isle for the time being, to interpose, and order that such person, or persons, as stand in need of such limestones, or other stones, may dig, raise, and carry away as much as will be necessary for his or their use, paying unto the farmer, or inhabitant, on whose lands the same shall be so gotten, such moderate and reasonable satisfaction,as the governor, in his discretion, shall think fit to order and allow.
(Signed by the officers and keys.)
These four acts relating to the settlement, are likewise allowed of and confirmed by me, and ordered to be in like manner published at the next Tynwald-court. DERBY.
At a Tynwald court, holden at St. John's chapel, the 6th day of June, A. D. 1704.
The foregoing four acts relating to the settlement, viz. an act touching carriages, &c.; an act concerning alienations and mortgages; an act touching intacks and cottages; and an act concerning quarries and dells, &c., were this day publicly proclaimed, upon Tynwald-hill, according to ancient form and custom. As witness our hands, the day and year above-written. - Signed by the officers and keys.)