[From Manx Soc vol 31]
Rather than repeat the large report only the footnotes are included here -
1 At present the Bishop, Archdeacon, and Vicar-General are always recognised as members, but the Archdeacons Official has never sat as a member of the Council within living memory.
2 That the Keys were elected by the people in ancient times appears from a document recorded in the Insular Liber Cancellarii, 1581. A commission having been directed by the Earl of Derby, the then lord of the Island, to the officers spiritual and temporal, and the twenty-four Keys, on their proceeding under the commission Bishop Merick objected " that if the twenty-four and the rest be called together for the establishing of a law to stand in force and bind his successors and the whole country, and not to decide a controversy, then he is of opinion that the twenty-four should be elected by the whole consent of the country, viz., of every sheading a number to say for and represent the rest." The record further states that " William Christian and Hugh Holland, Archdeacon, made challenge as well to some of the spirituality as to part of the twenty-four Elders," and that the twenty-four say that for establishing a law the country ought to give its consent for the choosing of the said twenty-four, &c., and so the commission is stayed till his lordships pleasure be known."
3 The mode of election described in the text existed up to the passing of "The House of Keys Election Act, 1866." Under that Act the members are elected by the voters of the sheadings and towns ; each of the six sheadings electing three, the town of Douglas three, and the towns of Castletown, Peel, and Ramsey one each. The House is elected for seven years, unless sooner dissolved by the Governor, who has power to do so whenever he may deem it expedient.
Under "The House of Keys Election Act, 1881," the qualification of a voter -' the ownership or tenancy of real estate of £4 a year rateable value, or the occupation as a lodger of premises of the annual value of £10. Under the ownership qualification unmarried women are admitted as voters. The Keys proposed to extend the tenancy qualification to females also, but the Council objecting to it, the Keys were compelled to accept the compromise made by the Act as it stands, in order to obtain an admission of the principle of the right of women to vote, but in doing so recorded their protest against their partial exclusion. This Act is said to be the only law now existing in Europe recognizing the right of women to vote in the election of the members of a legislative body.
4 The qualification of a member now (February, 1881), is the ownership of real estate of the rateable value of £100 a year ; or of real estate of £50 a year, together with personal estate actually producing an income of £100 a year ; or the ownership of personal estate actually producing an income of £150 a year.
5 The ancient powers, rights, and privileges of the House of Keys are preserved by section 120 of " The House of Keys Election Act, 1866," which enacts:
" Nothing in this Act contained shall affect, or in any manner be construed to affect, the inherent powers heretofore exercised by the House of Keys as a legislative body ; and after the promulgation hereof the House of Keys, and the several members thereof for the time being, and persons to be elected to be members thereof, as directed by this Act, shall from time to time and at all times have, exercise, and perform the same power, authority, and duties, and be subject to the like obligations (save and except where the same are expressly altered by this Act), and be entitled to and enjoy the same rights and privileges, in as full and ample a manner as the House of Keys and the several members thereof for the time being, and persons selected to be members thereof heretofore had, exercised, and performed, and was or were entitled to and enjoyed."
Prior to the final purchase of the rights of the Atholl family in the Island, disputes existed for a number of years between the Keys and the Duke. The Keys not being able legally to assemble to form a House, unless convened by the Governors precept, and the members of that day knowing that if they once separated without keeping their sitting alive by an adjournment, they would probably not be convened again, and would, therefore, be powerless to take any action, as a House, in the important public matters then pending, exercised their power of keeping the House in session by adjourning from time to time, and place to place, for several years.
By custom also a summons of the Keys to meet the Council in Tynwald authorizes them, without any further summons, to sit separately and transact any business before the House. This power is exercised in fact almost every year at the Midsummer Tynwald Court at St. Johns. The Keys are summoned there to attend the Tynwald Court, and they frequently under that summons sit separately as a House of Keys, and transact their own business, both before and after they sit in Tynwald. Although the Governor in his precept summoning the Keys sometimes states particular business, they are not confined to the special matters, but may undertake any kind of business.
The Keys have the right also whenever any business is before the Tynwald Court, to adjourn from the Court to discuss the business separately in their own house, and then to return to the Tynwald Court. This right they claim to exercise at any stage of the proceedings. It has been exercised on several occasions since " The House of Keys Election Act, 1866, " and has invariably been acted upon by the House upon the motion of a single member, without being seconded or put to the House or the Court. To secure this right of separate discussion, the Keys, in 1867, laid down certain standing orders regulating their proceedings in Tynwald.
Order 43 lays down :" The Keys shall not sign or pass any law, ordinance, or other Act or Acts whatsoever, which they have not previously had an opportunity of debating upon, separate from the rest of the Legislative body."
Order 44 :" Whenever any such law, ordinance, or other Act, is proposed by any person or persons whomsoever, the Speaker, for the time being, shall ex officio (without any other or further directions from the Keys) acquaint the proposer or proposers of such law or ordinance, that such method of procedure is contrary to the rules of the House of Keys, and subversive of the right of free debate which that House ought to enjoy, and shall desire to have an opportunity of debating with the rest of the Keys, separate, and apart from, the Governor, Council, and Deemsters upon the matters proposed. And when any resolution is proposed in the Tynwald Court, it shall be competent for any member of the Keys to require the same to be debated in their own House, before a decision is come to by the House thereon."
It must, however, be noted that these standing orders of 1867 were not then, for the first time, laid down for adoption by the Keys.
They were a revision and codification of ancient orders and rules of the House, some of them extending back to the early past of the last century.
In the year named (1867), they were first printed and published.
The last previous revision and classification of the standing orders of the old House, was in 1816, and these were acted upon up to the dissolution of the House in 1867.
In order that the members should bear them in mind, whenever the Keys met for business, the standing orders and rules of the House, as well as the oath administered to the Keys, were read by the Secretary, before any business was proceeded with.
The two orders, 43 and 44, are, with a very slight alteration in the latter, a mere transcript of the ancient rules bearing upon the subject, which are as follows
No. 16." That the Keys shall not sign or pass any law, ordinance, or any other Act or Acts whatsoever, which they have not previously had an opportunity of debating upon separate from the rest of the Legislative body.
No. 17." That whenever any such law, ordinance, or other Act is proposed by any persons whatsoever, the Speaker, for the tine being, shall ex officio ( without any other or further directions from the Keys), acquaint the proposer or proposers of such law or ordinance, that such method of procedure is contrary to the rules of the House of Keys, and subversive of right of free debate which that House ought to enjoy, and shall desire to have an opportunity of debating with the rest of the Keys, separate, and apart from the Governor, Council, and Deemsters upon the matters proposed."
Frequently when the Keys are in session they are requested by the Governor to attend a Tynwald Court, and although not summoned for that purpose, they, on attending, can with the Council, form a legally assembled Court. On the 3rd December, 1879, the Governor required the Keys, who were sitting in Douglas, to attend a Tynwald Court, which be informed them he intended to hold that day, and demanded their attendance as a right. The Keys resolved unanimously that the Governor did not possess the right to compel them to attend a Tynwald Court in the absence of a summons under precept, and informed his Excellency that they declined, under the circumstances, to meet in Tynwald.
The Keys were summoned for the ensuing 8th December, and on their assembling in their House a printed message from the Governor contesting their right to refuse attendance at the Tynwald, was laid before them. Before it was discussed a second message was received from the Governor and Council requesting a conference upon the subjects referred to in the Governors message, before they should come to any determination upon it. To this the Keys replied that they considered it would be improper to make any question involving any rights or privileges of the House the subject of a conference with the Council, the Keys claiming to be the sole judges of their own privileges," and they resolved to defer their reply to the message until the 14th January, 1880.
On that day they forwarded their reply, and as various points of privilege are discussed in it, and as the reply was unanimously approved of by all the members, numbering amongst them several who had been members for upwards of thirty years, and were well versed in the traditions and usages of the House, the Editor considers it of sufficient importance to give it in extenso
" House of Keys, 14th January, 1880.
" On the 8th December last the Keys received a message from his Excellency the Lieut.-Governor, to which, as several important questions were involved in it, they deemed it advisable to defer giving a reply until they would meet by adjournment on this day ; and they intimated such their determination to his Excellency.
"A brief recapitulation of the circumstances under which the present, ouch to be regretted discussion had arisen, may not be out of place.
" On the 20th November, 1879, the Keys met for the despatch of business, and at the close of the day adjourned until Tuesday, the 25th of that month, when they again sat.
" A Tynwald Court having been appointed for Wednesday, the 26th November, the Keys were in attendance, but on account of the illness of a member who had given notice of a motion to the Court, the discussion upon which it was expected would occupy the entire day, no Court was held, and consequently no adjournment took place.
" An intimation having, however, been given to the House that the Tynwald Court would be held on the following day, the Keys adjourned their sitting until that day (the 27th.)
" On Thursday. the 27th November, after a delay of about two hours, during which time the Keys were kept waiting the arrival of the Lieutenant-Governor and Council, a Tynwald Court was held, and which continued until late in the afternoon.
" Prior to the Lieutenant-Governor and Council leaving the Court on that day, as stated in his Excellencys message, he did express a wish that the House should adjourn until some early day to proceed with the business before them, and he did suggest that they should meet in the following week, excepting, however, on the Thursday and Friday in that week, as those days would be occupied by the Chancery Court.
" The business to which the attention of the House was especially directed was the consideration and discussion of the " Public Health Bill", which, it may be noted, had only been read a first time two days previously, namely, on the 25th November.
" As this Bill, from its magnitude and importance, would necessary call for an extended sitting, and as several of the members of the House had made arrangements which would prevent their attendance on an early day, and as it was considered that further time should be afforded to enable the public to be made acquainted with a measure which would so materially affect them, the Keys determined to adjourn until Wednesday, the 14th January, 1880. The Speaker thereupon formally adjourned the House until that day, and appointed a deputation, consisting of the hon. and learned member for Glanfaba (Mr. Sherwood), and the Secretary, to report progress to his Excellency.
" In waiting upon the Lieutenant-Governor, the Secretary inadvertently reported that the Keys proposed to adjourn until the 14th January, instead of reporting that the House had been actually adjourned until that day.
" The Lieutenant-Governor urged that an earlier day should be named, and requested the deputation to convey to the House his desire on the subject.
" Upon the return of the deputation to the Courthouse, they found that the members had dispersed, the Speaker having, as before stated, adjourned the House, and vacated the chair.
" The deputation at once reported this to the Lieutenant-Governor, who evidently felt somewhat annoyed that the members had not remained until the return of the deputation.
" On the following day (28th November), the Lieutenant Governor issued a precept, convening the Keys to meet on Wednesday, the 3rd December.
" The business as set forth in the precept being
" (1) To receive a message from the Governor.
" (2) To sign " The Wesleyan Methodist Bill,"
" The Church and Clergy Bill," and
" The Weights and Measures Bill.
" (3) To consider the Bills before the House, and continue their session until they had concluded the business
" (4) To transact such other business as might be brought before them.
" The Keys could not fail to observe that this precept was most exceptional in its character and unprecedented in its form. They were called together for certain legitimate purposes (namely those marked 1, 3, and 4), but were powerless to act in the matter referred to under head 2, which could only be done in Tynwald, and yet all reference to the Tynwald Court was omitted.
" On Wednesday, the 3rd December, the House met in obedience to summons, when a message in writing from the Lieutenant-Governor was handed to the Speaker.
"From the tenor of that message, and the immediate summoning of the House for the transaction of the business named in the precept, it was obvious to the Keys that his Excellency felt a degree of displeasure at their action with respect to their adjournment, and their right to regulate their own sittings. The Keys, therefore, in a communication addressed by them to the Lieutenant-Governor on that day, explained at some length the circumstances of the case, at the same time disdaining any intention of showing want of respect to his Excellency, maintaining their constitutional right to adjourn from time to time, according to their own discretion, and denying the power of the Governor to override such adjournment.
" Subsequently the Lieutenant-Governor having requested a conference with the Keys, a deputation of the House was appointed, and waited upon his Excellency.
" During this conference, the Lieutenant-Governor informed the deputation that he intended to hold a Tynwald Court, upon which it was intimated that no notice of such had been given, as was usual To this his Excellency replied, that he did not consider it at all necessary to give such notice.
" The question was then distinctly asked of the Lieutenant-Governor whether he claimed the power of requiring the Keys to meet in Tynwald, without notice, as a matter of right, when his Excellency emphatically replied that he did.
" The deputation then withdrew, and upon the question being discussed in the House, it was unanimously resolved that, in the opinion of the Keys, the Lieutenant-Governor did not possess the power claimed, as a matter of right, to compel the attendance of the Keys to meet in Tynwald, in the absence of a summons under precept as was customary.
" A deputation accordingly reported to his Excellency that, under the circumstances, the Keys declined to meet that day in Tynwald, and at the same time reported that the House adhered to their adjournment to the 14th January.
" His Excellency subsequently, on the same day (3rd December), sent a further message to the Keys, intimating that as questions of such grave constitutional importance were raised, he would issue his precept for a Tynwald Court to meet on the following Monday, when he would inform the House as to the course which he might, after consultation with the Council, think it advisable to follow. In accordance with this last message, two precepts were issued for Monday, the 8th December, one for a Tynwald Court at 11-15 am., to sign the Bills named in the precept of the 28th November, and the other for a meeting of the House of Keys at 11-45 a. m. , to receive a message from the Governor, and transact such other business as might be brought before them.
The Tynwald Court sat on the 8th December, at which various matters of business were disposed of, and, pursuant to summons, the Keys were in their places at the hour named in the precept. The message from the Lieutenant-Governor, referred to in the first paragraph of this communication (and which was a printed one), was handed to the Speaker, and read.
" Before, however, time would permit the House to come to any conclusion with respect to it, a further message was handed to the Speaker, stating that The Lieutenant-Governor and Council request a conference with the House they met upon ; and that upon a remonstrance of the House prior to the House coming to any determination upon the subjects referred to in the Lieutenant-Governors message.
" To this, the Keys at once replied, saying that they considered it would be improper to make any question involving any rights or privileges of the House the subject of a conference with the Council, the Keys claiming to be the sole judges of their own privileges, and deferring giving any reply to the general question involved in the Lieutenant-Governors message, until the 14th January.
" Inasmuch as an entirely unusual course had been adopted by the Lieutenant-Governor in sending his message to the Keys in print, and in which reference was made to the previous communications, the deputation who waited upon the Lieutenant-Governor called his Excellencys attention to the fact. and inquired whether it would not be advisable that the whole should be published.
" The Lieutenant-Governor subsequently forwarded a message to the House to the effect that he considered it desirable that the various communications should be published. The Keys reported their concurrence with this, and then formally adjourned their sitting until the 14th January, reporting such to the Lieutenant-Governor.
" In the message of the 8th December, the Lieutenant-Governor says that two constitutional questions appear to be raised. The Keys, however, consider that the questions involved are not so limited, and although his Excellency states that it has never been his intention to question the power of the House to regulate, after reporting progress to the Lieutenant-Governor, their own adjournments, the Keys cannot divest themselves of the impression that the questioning of this power, if not directly, is at all events indirectly aimed at, and in this view they are supported by the former proceedings of his Excellency.
" The Keys cannot forget that this is not the first or only instance in which their right to regulate their own sittings, meetings, and adjournments, has been raised. Eight years ago, a question arose between the Lieutenant-Governor and the House, so analogous to the present one that the Keys deem it right to call his Excellencys special attention to it.
" In November, 1871, there were a number of Bills before the Keys, who met at Castletown on several consecutive clays, and up to the 28th of that month, when they adjourned to the 30th at Douglas, a Tynwald Court having been appointed to be held there on that day.
" At the close of the business on the last-named day, it was found that five Bills were ready for discussion, namely
" (1) The Public Prosecutors Bill,
" (2) Douglas and Peel Railway Bill,
" (3) Public Notices Bill,
" (4) The Companies Bill,
" (5) The Advocates Fees Bill.
" A similar difficulty to that which presented itself on the 27th November last, then occurred, viz., the appointing a convenient day whereon to meet for the consideration of the several matters before the House. Finally, the 7th February, 1872, was fixed upon, and the House was formally adjourned to that day, and this was duly reported to the Lieutenant-Governor.
" His Excellency on that occasion, as on the last, expressed much dissatisfaction with respect to the action of the Keys, and immediately (namely, on the 2nd December), issued his precept to convene the Keys to meet on the 19th December, to consider
' The Public Prosecutors Bill,
Douglas and Peel Railway Bill,
' Public Notices Bill,
Companies Bill, and
Advocates Fees Bill.
" The Keys in obedience to the summons under this precept, met on the 19th December, 1871, and then passed a resolution to the following effect :
That finding the business before them, and remaining undisposed of, consisted of the identical measures referred to in his Excellencys precept, which they were called upon to proceed with, and whilst acknowledging the right of the Lieutenant-Governor to convene them at any time for the transaction of public business, they claimed the indubitable right, when once assembled, to regulate their own sittings, and to adjourn the consideration of any business before them to any particular day, firmly maintaining that they possessed the same power to adjourn the consideration of such business as might be before them, from time to time, in accordance with a vote of the House, as was immemorably exercised by the former House of Keys ; and seeing that there was no other business before them, except the matters that had been adjourned to the 7th February, they declined to consider the Bills named in the precept, and adjourned until the said 7th February.
On the 31st January, 1872, a Tynwald Court was held, when a communication from his Excellency was handed to the Speaker. It was in reply to the Keys resolution of the 19th December, and referred, in the first instance, to the power vested in the Lieutenant-Governor to summon the Keys under the provisions of The House of Keys Election Act, and the course of procedure in the House of Commons. The Lieutenant-Governor then stated that he had no desire to interfere with any of the privileges of the House, or unduly with the discretion of the House on all questions of adjournment, and intimated that he would be glad to consider whether it might not be practicable to have fixed periods for the sitting of the Legislature, and he invited the House of Keys to submit to him their views on the subject.
" The Keys in acknowledging the receipt of his Excellencys communication, whilst declining to qualify the terms of their resolution, expressed their willingness to confer with his Excellency on the subject of regular meetings.
" On the 18th April, 1874, the Lieutenant Governor forwarded a message to the Keys informing them of the periods, during each year, at which he proposed to call them together for the despatch of business.
" At a meeting of the Keys, held on the 30th April, a committee of the House was appointed to consider the Lieut.-Governors message, and to confer with his Excellency on the subject. Such committee consisted of Messrs Geo. Wm. Dumbell, John Thos. Clucas, and Robert J. Moore.
" A conference having subsequently taken place, the Lieutenant-Governor on the 3rd November, 1874, submitted to the Keys a scheme having for its object the holding of fixed sessions, and for the general regulation of the sittings of the Legislature.
" Pending the consideration of this communication, the Keys met at their House in Castletown, under the Lieutenant-Governors precept, on the 26th November, 1874, when they adjourned until the following day at Douglas.
" They again adjourned their sitting until the 2nd December, at Douglas, and duly reported the same to the Lieutenant-Governor.
" His Excellency conceiving that the Keys had again exceeded their rights and had usurped a power they did not possess, on the 30th November, 1874, addressed a lengthened communication to the House, with reference to their adjournments to Douglas. His Excellency reminded the Keys that his precept summoned the Keys to meet in Castletown, and that they were still in session, under that precept, by adjournments. That he was unaware of any law or custom that gave to the House of Keys power to alter the place to which they had been summoned under the Lieutenant-Governors precept ; that be could not admit that any inconvenience occasioned to individual members to meet at Castletown, would afford sufficient grounds for the House assuming a power that is not shown by precedent or statute to be inherent in the House, and that he could not recognize the claim of the House to select, independently of the Lieutenant-Governor, their place of meeting.' His Excellency concluded by saying that he would be glad to receive a deputation of the House to confer upon the general questions.
" At a meeting of the House of Keys held on the 2nd December, 1874, the Keys returned two replies to the Lieutenant-Governor, one with reference to the message from his Excellency of the 3rd November, and the other with respect to his communication of the 30th November.
" In these replies the several points raised by his Excellency were discussed, and various suggestions made.
" The Keys maintained that they had equal power to determine the place, as well as the time, of meeting by adjournment ; and, in compliance with the Lieutenant-Governors suggestion, the House appointed a committee of five of its members to confer with his Excellency.
" On the 28th December, 1874, his Excellency addressed a further communication to the Keys, in which he reviewed the resolutions of the House under date of the 2nd December.
" His Excellency classed the points there at issue under three heads
" 1. The difficulty and inconvenience that might result by requiring the House to report to the Lieutenant-Governor before the adjournment of the House.
" 2. The claim of the House to adjourn for any period the House considered desirable, without reference to the Lieutenant-Governor.
" 3 The claim Of the House to determine their own place of meeting.
" And his Excellency offered various suggestions with a view to meet the difficulties raised by the Keys.
" At a meeting of the House, held on the 31st May, 1875, the Keys replied to the Lieutenant-Governor adopting, to some extent, several of the suggestions made by his Excellency.
" It will be borne in mind that, at this time, negotiations were going on with a view to the removal of the legislative buildings from Castletown to Douglas ; proposals were being made to amend " The House of Keys Election Act," and the general question of regular sessions was under consideration.
" Notwithstanding the discussion that had taken place, and the various suggestions that had been made, no definite arrangement, or distinctly organized plan, was arrived at, and the matter remained in abeyance from that time to the present.
" The object of the Keys in referring to these transactions is to show that from time to time questions have been raised which, had they not have been combated, were calculated, both directly and indirectly. to infringe upon, and materially curtail, those rights and privileges which the Keys have ever enjoyed, and which they consider it their bounden duty to preserve.
" Referring to the 1st 'constitutional question' named in the Lieutenant-Governors message, namely, 'The right of the Lieutenant-Governor to require a deputation of the House to report progress, and to inquire whether ho has further business to lay before them, before the House separates for any lengthened period beyond the ordinary daily adjournments, ' it appears to the Keys that there is very little actual or material difference between the Lieutenant Governor and the House.
"The view of the Keys, and the distinction drawn by them with respect to reporting progress, is thisWhen they have disposed of the business before them, a deputation is appointed to 'report progress', and to inquire whether the Lieutenant-Governor has any further business to lay before them. This is done before the House separates, and it is the duty of the members to remain until the return of the deputation with such reply as may have been given by the Lieutenant-Governor to the inquiry. But even in this case difficulties frequently arise to prevent the inquiry being made ; for instance, when the Lieutenant-Governor is absent, either from his office or from the Island.
" In such instances the reporting progress has to be delayed, it may be for several days, or even for a more lengthened period. This shows, therefore, that no rule for reporting progress in manner sought for by the Lieutenant-Governor, can be carried out with absolute strictness. But when the House does not do the business before it, and merely decides to adjourn to a future daythereby keeping the session open then the Keys contend that all they have to do is to report to the Lieutenant-Governor the progress they have made, and the fact of their having adjourned, and in such case it is not necessary or incumbent upon them to make any inquiry as to further business.
" This appears to have been the ancient custom, for, according to the evidence of the witness referred to by the Lieutenant-Governor with respect to another point (Mr. John Taubman, the Speaker of the House of Keys, in 1791), that gentleman says : When the business of the session is finished, the Speaker informs the Governor thereof, and requests to know if he has any further commands, and then adjourns the House sine die.
" The second point suggested by his Excellency is The power of the Lieutenant-Governor when the Keys are sitting in session, to require their attendance to meet him and the Council in Tynwald, when not specially summoned by precept for that purpose?
" With respect to this, the Keys deem it important to refer to the past.
"In former days, the Keys were called together by summons, under Precept from the Governor or Lieutenant-Governor, for four distinct matters of business.
" 1. To attend as a component part of the Tynwald Court, for the transaction of business strictly conducted at such Court.
" ' 2. To attend and take part in the proceedings of the Court of General Gaol Delivery.
" 3. To assemble in their Legislative capacity, and
" 4. To form the Court of Appeal from verdicts of juries at Common Law, &c.~
In each case the particular nature of the meeting, and the special business to be brought forward, was set out in the precept.
" Inasmuch as the public were materially interested in the holding of the several Courts of Tynwald, General Gaol Delivery, and Appeal (heads 1, 2, and 4), it was the custom to publish at the church door in the several parishes, at least on one Sunday, the time, place, and object of the holding of these Courts.
". Since the Keys were relieved from their attendance at the Court of General Gaol Delivery, and since the abolition of their appellate jurisdiction, two forms of precept only have been in use ; one for a Tynwald Court, and the other for the House of Keys, in their legislative capacity.
" It has been the uniform practice to set out on the face of these precepts the particular business to be brought forward, either in Tynwald or before the Keys. A departure from such a course would be, in the opinion of the Keys, not only highly inconvenient and objectionable to them, but would be fraught with most dangerous consequences to the community at large.
" It must be acknowledged that, within the last few years (consequent doubtless upon the more frequent sittings of the Legislature), various trifling innovations have crept in, and a strict adherence to old forms has not, on all occasions, been observed, and the Keys freely admit that, on several occasions, when they have been assembled for legislative business, they have, with a view both to public and private convenience, acquiesced in the request of the Lieut.-Governor to meet him and the Council, and thus form a Tynwald Court.
" But they deny that such a voluntary acquiescence on their part can be construed into the giving of an absolute right to the Lieutenant-Governor to compel their meeting in Tynwald, without a summons, and without notice of the object of the Court, or of the nature of the business to be brought forward at it, and which right is now, for the first time, as they believe, sought to be established.
" The Lieutenant-Governor, in the message now under review, refers to the proceedings at the Tynwald Court held at St Johns, on the 5th July last, and which he insinuates were unconstitutional.
" His Excellency says, with reference to the Keys : Although summoned to a Tynwald Court, they adjourned without the direction of the Lieutenant-Governor to their House for the despatch of business, suspended their standing orders, and passed a Railway Bill
" As this raises not only a novel, but a most important issue, the Keys cannot permit it to pass without special comment and explanation.
" From time immemorial a Tynwald Court has been held at St. Johns on the 5th July in each year, and occasionally at other periods, the chapel being used as the house of assembly. On that day the several branches of the Legislature have invariably assembled in different parts of the chapel ; the Governor and Council occupying the chancel, whilst the south transept has been appropriated to the Keys, as their House for the day.
" Not only in former days, but also at the present time, the two bodies have met in the chapel, as independent branches of the Legislature, the Governor and Council transacting business entirely irrespective of the Keys, and the Keys in like manner, sitting as a House, and discussing and passing such measures as came before them, receiving messages, appointing deputations, and acting in every way as if they severally occupied separate buildings, with the single exception, however, that on these occasions the deliberations of the Council are conducted openly, and in presence of the public.
" When called upon by the Governor, as they always are, to assemble in Tynwald, the Keys remove from their appropriated place in the south transept to the body of the chapel, and there join the Governor and Council in forming a Tynwald Court. In reference to the Tynwald at St. Johns more especially, the Keys never heard that a doubt had ever been raised with respect to their right to transact business as an independent branch of the Legislature at that Court, and to adjourn their sittings therefrom according to their own discretion, and thus keep themselves continuously in session. And they have no hesitation in saying that this right has been invariably exercised and acted upon by the Keys, and that it was acquiesced in, and acknowledged by, the most determined opponent that the Keys ever bad, as Governor of this Island, and has been universally acted upon in modern times, and up to the present day.
" Whenever the Keys are called together under precept, whether specially for a Tynwald Court, or otherwise, they claim it as a undisputable right to adjourn their sittings from day to day, and from place to place, as may suit their own convenience ; and this right the members of the old House, as well as those of the elected House, have not only always maintained, but have constantly exercised.
Any collision or misunderstanding between the executive, or the other branch of the Legislature, and the House of Keys, is greatly to be deplored, and the Keys sincerely regret that any occasion should have arisen to cause the present discussion.
" The Keys reiterate their disclaimer of any intention to offer a alight, or anything bordering upon disrespect to the Lieutenant-Governor, in their proceedings in connection with the present painful dispute. They have been influenced by one object only, namely, that of preserving the ancient rights and privileges of the House of Keys, which were specially reserved to them by the " House of Keys Election Act," and of preventing any undue interference therewith, or curtailment thereof.
" In the opinion of the House, it is highly expedient that some definite understanding should be arrived at, relative not only to the sittings of the Keys, it with reference to a general and systematic mode of transacting the legislative business.
" With a view, therefore, to avoid future controversies, and secure that amnony, unanimity, and good feeling which it is so desirable should exist twen the members of a legislative body particularly in a small community like our's it appears to the House that the present would be a most opportune time to revive the consideration of the proposals made by the Lieutenant-Governor in 1874, and to this end, that a scheme, upon a fair and equitable basis, should he adopted, which, whilst the independent action of the Lieutenant-Governor, On the one hand, should be thoroughly recognized and secured, the right, powers, and privileges of the Keys, should be preserved, respected, and maintained.
"For the convenience of reference, it has been deemed expedient to append hereto a copy of the correspondence referred to in this communication.
: " By order of the House,
"WILLIAM BELL CHRISTIAN, Acting-Speaker.
"To his Excellency the Lieutenant-Govemor, &c., &c."
The 125th section of " The House of Keys Election Act, 1866," enacts It shall be lawful for the Governor from time to time, by precept under his hand, to summon the House of Keys when not in session, or when the said House stands adjourned or prorogued, though adjourned or prorogued to a more distant day or for a longer period, to meet for the transaction and despatch of business, and from time to time to prorogue the same, and also from time to time, and whenever he shall deem it expedient, to dissolve the said House of Keys by proclamation, and issue fresh writs for the election of new members to serve in the said House of Keys." The remaining portion of this section is repealed.
This note (5) has been carefully reviewed and approved at by Mr R. J. Moore, who has been a member of the Keys for thirty years, and Secretary for upwards of twenty years.
6 The privileges named, formerly allowed to members of the Keys, are now abolished. For further information as to the powers of the Keys, and the procedure before them and the Tynwald Court, see the note to John Taubmans examination, Appendix 8.
7 In 1876 an important constitutional question arose respecting the status and power of the Manx Legislature. It being desirable to legislate respecting the revenues of the Manx Bishopric, and to apply a portion of them to other purposes, the Secretary of State, on being applied to by the Governor of the Island for the consent of the Crown to the requisite legislation by the Manx Legislature, referred the question of the power of the Insular Legislature to deal with the temporalities of the See, and thereby to affect the property and prerogative of the Crown. to the Attorney-General of England, Sir John Holker, and Sir Hardinge Giffard, the Solicitor-General. They advised that the Insular Legislature had no power to legislate on the matter, even with the consent of the Crown, and that an Act of the Imperial Parliament was requisite.
This opinion was replied to by the following case prepared by Sir James Gell, the Attorney-General of the Island, who claimed that, irrespective of the numerous precedents of Insular legislation affecting Crown rights which he quoted, and in the absence of express restriction, "it must be presumed that the powers of the Legislature of a country, especially when such country is an ancient kingdom or sovereignty, are unlimited and supreme in all matters within or affecting the country," and that hence the Insular Legislature was the proper constitutional authority to deal with the Bishopric of the Island, although Crown rights might be affected :
"ISLE OF MAN AND DIOCESE OF SODOR AND MAN.
" The Isle of Man is an ancient kingdom. From the early part of the tenth century it has been known to have had the Legislature (commonly designated the Tynwald) which now exists namely, three estates :
(1.) The Sovereign ;
(2.) The Governor and Council; and
(3.) The House of Keys.
The second estate, previously to the Reformation, is supposed to have included the Barons of the Island, all of whom, except the Bishop, were the heads of religious houses. The Bishop is now the only Baron of the Island, he has a seat ex officio in the Council. For several centuries the Southern Hebrides were, with the Isle of Man, united in one kingdom Man and the Isles a designation which has been retained to the present time. During such union the Scotch Isles returned eight members to the House of Keys, the Isle of Man furnishing sixteen members. After the separation of the Scotch Isles, the whole number of members were elected from the Isle of Man, such number having been from the earliest times twenty-four. The designation of the House in the Manx language is Yn Chaire as feed, Angl., The Four-and-twenty.
" The Kings of the Isle of Man were from an early period feudatory to the Kings of Norway, afterwards to the Kings of Scotland, and subsequently to the Kings of England.
"The real origin of the connection of the Isle with England cannot now be very clearly ascertained, but it appears that Reginald I,, King of Man (an illegitimate son of Goddard II., the preceding king, and an usurper), who was subject to the King of Norway, and who reigned from 1187 to 1226, transferred his allegiance from the King of Norway to King John of England, and about the year 1206 professed to surrender the Isle to King John, who re-granted it to Reginald, to be held of the Crown of England by liege homage. The same Reginald, in 1219, in imitation of John, submitted to the Pope, and constituted himself a vassal of the See of Rome. By the instrument of surrender he offered the Isle, which he alleged belonged to him by inheritance, and for which he was not bound to do service to any, to the Pope and his successors, and declared that he and his heirs would hold the Island as a grant from the Church of Rome, and would do homage and pay a yearly tribute of twelve marks for it. In the same year (1219), King Henry III. of England granted to Reginald letters of safe-conduct to go to England to do homage.
"In 1250 Harold II., King of Man, applied to King Henry III. of England for a licence or safe-conduct to go into England to confer with him and to perform certain things due to him. This matter is specially referred to in the Report of Calvin's case (4 Coke's Reports by Fraser, 36), in which report it is stated : "Wherein two things are to be observed. 1, That seeing that Artold [Harold] King of Man sued for a licence in this case to the King, it proveth him an absolute king, for that a monarch or absolute prince cannot come into England without leave of the King, but any subject, being leagued, may come into this realm without licence. 2. That the King in his licence doth style him by the name of a king.'
"Harold was succeeded by Magnus, who was the last of the kings who were subject to the Crown of Norway. In 1264 he ceded the Isle to Alexander III., King of Scotland, by whom the Isle was re-granted to Magnus, who was thereafter to hold the Island from the Crown of Scotland.
" In 1290 the inhabitants of the Isle submitted themselves to King Edward I. of England, as their lord. In the document of submission it is stated that King Edward had taken the Isle into his own hands 'for protection and defence.' Edward committed the Island to Walter de Huntercombe, who in 1292, by order of King Edward (who styled himself King and Lord Superior of Scotland), surrendered the Island to John Balliol, King of Scotland.
" King Edward I. appears to have been at Perth in Scotland in 1292, to settle differences between the factions of Bruce and Balliol. When there, a claim to the Crown of the Isle of Man was made by Mary, daughter of Reginald II. King of Man. She was referred by Edward to the King of Scotland, of whom the Isle was held. Nothing further as to her claim appears to have been done; but in 1304 her grandson and heir, John de Waldebeof, renewed the claim to Edward I., by whore it was referred to the Justices of the King's Bench. The claim was one against the King of Scotland, and it may be that it was considered that a claim against such King was cognizable in England, as the English King claimed to be the superior of the King of Scotland.
" But in 1293 another claimant to the Crown of the Isle had arisen in the person of Aufrica de Connaught, sister of Magnus, King of Man. She applied to Edward I. against the King of Scotland, who was cited to appear in England to defend the claim made. It does not appear that either claim to the Island was prosecuted, or that the jurisdiction of the English King as asserted was submitted to by the Scotch King,
"Between 1305 and 1307 Sir William Montacute (an English subject), son of Aufrica, the claimant above mentioned, is supposed to have conquered the Island from the Scots, and to have mortgaged it in 1307 to Anthony Beck, Bishop of Durham, who appears to have been in possession of the Isle. In that year Edward I. issued a scire facias to Beck to show cause why the King should not resume the Island into his own hands, and it would appear that the King obtained possession, for by his successor Edward II. various grants of the Isle were from time to time made. However, in 1313, King Robert Bruce of Scotland re-conquered the Island, and several grants of the Isle were successively made by him.
"If Sir William Montacute made a conquest of the Isle, as before stated, his son Sir William, first Earl of Salisbury, must have made a second conquest. However, he appears to have acquir, ed possession, which was confirmed by grant of King Edward III, of England in 1333. The first Earl of Salisbury is supposed to have united in his person the rival claims of Mary and Aufrica to the Crown of Man by hereditary descent, and in King Edward's grant there is no reservation of any homage or service to the Crown of England.
The Earl of Salisbury was succeeded in the Kingdom of Man by his son William, the 2nd earl, who sold the Island to William le Scroop, afterwards Earl of Wiltshire. Sir William Scroop was amongst the opponents of the Duke of Lancaster (afterwards Henry IV.) when he sought the crown of England. He was taken prisoner, and beheaded by the order of the Duke, who, in 1398, seized the Isle of Man and the property of Sir William, and claimed to hold them as conquest. Parliament declared the lands and tenements of Scroop and others forfeited to the King by 'right of conquest,' though, to satisfy the Parliament, he abandoned the claim which he had made to the Crown of England as acquired by conquest.
"In 1399 King Henry IV, by letters patent granted to Henry de Percy, Earl of Northumberland, the Isle of Man, stated in the grant to have belonged to Sir William le Scroop, deceased, 'whom in his life we lately conquered, and so have decreed him conquered, and which, by reason of that conquest, as having been conquered we seized into our hands, which decree and conquest as touching the person of the said William and all his lands and tenements, goods and chattels, as well within as without our said kingdom, in our Parliament, by the assent of the Lords temporal in the same Parliament assembled at the petition of our said kingdom are confirmed.' If the Isle of Man was included in the confirmation made by Parliament, the question would be, in what sense the acquisition of the Isle of Man was a conquest, and whether it meant more than that the Island was acquired otherwise than by inheritance. However, the acquisition, of whatever character it was, appears to have been the first occasion when the Island came into the absolute possession of the Crown of England free from adverse or opposing claims, and all claims under previous sovereigns having become extinct.
"King Henry IV., in 1405, resumed possession of the Island on the ground that it had become confiscated and forfeited by the treason of the Earl of Northumberland, and by letters patent granted the Island to Sir John Stanley for life. This grant was surrendered, and in 1406, by letters patent, the same king granted the Isle to Sir John Stanley, his heirs and assigns, subject to the service of rendering two falcons to the King of England for the time being on the day of his coronation. In the reign of Queen Elizabeth, on the occasion of a dispute as to the succession to the Island, it was discovered that the grant to Sir John Stanley was invalid by reason of the non-attainder of the Earl of Northumberland at the time of the grant ; but in the meantime the sovereignty of the Island was held by seven lineal descendants of Sir John Stanley, the last of such seven being Ferdinando, 5th Earl of Derby, who died in 1595. The sovereigns of the house of Stanley were styled Kings of Man and the Isles, until the reign of Thomas, second Earl of Derby, who changed the title to that of Lord of Man and the Isles, the title ever afterwards borne by succeeding sovereigns of the Island until 1765.
" On the death of Ferdinando, 5th Earl of Derby, the title to the Island being disputed between the daughters of Ferdinando and his brother William, 6th Earl of Derby, Queen Elizabeth, at the request of the disputants, took into her own hands the government of the Island, and at her decease the government passed to her successor King James I. by whom some temporary grants of the Island were made.
" In 1609, after an arrangement between the disputants respecting the title, King James I., by letters patent, granted the Isle to William, 6th Earl of Derby, and Elizabeth, his countess, for their lives and the life of their survivor, and then to their son and heir apparent James, Lord Stanley (afterwards 7th Earl of Derby), and his heirs. By Act of Parliament 8th James I. (1610), such letters patent were virtually confirmed ; but the succession was varied, the Isle being limited, after the death of the longer liver of the Earl and his Countess, to James, Lord Stanley, and the heirs male of his body ; after his death without such issue, to his brother Robert Stanley, and the heirs male of his body ; after his death without such issue to the heirs male of the body of Earl William; and for default of such issue, to the right heirs of James, Lord Stanley ; and it was provided in the Act that none of the persons named should have power to alienate the Isle or any part of the premises granted, but that the same should remain and continue to such persons, &c.
"After William, 6th Earl of Derby, four of his descendants, Earls of Derby, were Lords of the Isle, and on the decease of James, 10th Earl, the last of such four, in 1736, the sovereignty passed to James, 2nd Duke of Athole the heir general of James, the 7th Earl of Derby), who was succeeded by his daughter Charlotte, Baroness Strange, who married John, 3rd Duke of Athole. "By Act of Parliament 12 Geo. L, c. 28 (1725), sees. 25 and 26. provision was made by which the Commissioners of the Treasury were authorized to treat and contract for the purchase or surrender of the Island with the then Earl of Derby, and any person who might have a claim thereto. Under such Act a contract was made with John, 3rd Duke of Athole, and Charlotte, his wife, for the surrender of the sovereign rights to the Crown of England, and by Act of Parliament (commonly in the Isle of Man called the Revesting Act) 5 Geo. III., c. 26 (10th May, 1765), the contract so made was confirmed, and it was enacted that on payment of £70,000 (the purchase money) the Island should he inalienably vested in the king and his successors. By the Act the patronage o£ the bishopric and other ecclesiastical patronage, lands, and other rights not necessarily included in the sovereignty, were excepted and reserved. The reserved rights, however, were purchased by the Commissioners of the Treasury for the Crown in 1826 and 1827, under the provisions contained in the Act of Parliament 6 Geo. IV., c. 34 (1825). Since the Revestment (as it is termed) in 1765, the Island has been governed as before, but in the name of the Crown of England. "The legislative power was, previously to 1765, exercised by the local kings or lords (in conjunction with the other estates) without any reference to the Crown of England, and since 1765 the first estate in the Legislature has been the Sovereign of England.
" It is laid down in English books of authority that the Isle of Man is not bound by an Act of the Parliament of England unless it be specially named, and that if named the Isle is so bound. The legality of this position was always disputed by Manx jurists before 1765, hut since that date, though it has been affirmed that there never was any legal foundation for the position referred to, Acts of Parliament made applicable to the Island by express words have been recognized by the Courts of Justice and acted on in the Island. The earliest authority as to the Island being bound by Act of Parliament when specially named is believed to have been the case reported by Kelway Michaelmas 14 Henry VIII. (1523), and cited in 4 Coke's Institutes 201 as to the claim of Ann, Countess of Derby, widow of Thomas, 2nd Earl of Derby and 5th King of Man of the house of Stanley, for dower in the Island. The decision was against the Countess, on the ground that the Island was not part of the realm of England and was not governed by the law of England, and it was alleged by the judges that the Statute de donis, of uses, and of wills, and no other general Act of Parliament extended to the Isle of Man, but that by special name an Act may extend to it. The statement of opinion made in the decision with reference to Acts of Parliament seems not to have been necessary for the adjudication of the case. The foundation of it must have been some general doctrine which obtained in England as to possessions of the Crown of England being bound by Act of Parliament if specially named, for up to that time there is no instance of any Act of Parliament which professed to extend to the Isle of Man.
" It is an acknowledged principle that, on the acquisition of a country by force of arms, the conqueror may ordain the laws by which the conquered country shall thereafter be governed. If he ordains no new laws, the old laws continue in force ; and it seems not unreasonable to presume, if necessary, that if for a long period following the conquest the country has continued to be governed by the ancient laws and according to its ancient constitution, the conqueror had ordained that such laws and constitution should continue. In the various and frequent changes in the sovereignty of the Island, and until the reign of Henry IV. of England, there is no instance known (historically or otherwise) of any change in the law' or constitution of the Island having been ordained by any person who may have been in the position of a conqueror of the island. One of the earliest records extant in the Island is that with which the Statute Book of the Island commences. It is of the date of 1417, or thereabouts. It is a declaration by the Tynwald the King( Sir John Stanley) being present as to the ancient mode of holding the Court of Tynwald and as to various points of the common law, which were then reduced to writing. The inference from this record is that the old constitution and laws had been pre served. Henry IV. called himself the conqueror of the Island, and, as herein-before stated, he considered that the Parliament had affirmed his claim to the Island as an acquisition by conquest. If such conquest was really, or by the act of the Parliament was to be considered as, a conquest by force of arms, the conqueror ordained no new constitution or laws for the Island. On the 1st of April, 1609, King James I., by letters patent, apparently issued for the benefit of the people of the Island, declared as follows: 'Whereas, by our royal prerogative and the laws and customs of our kingdom of England, it wholly appertains to us, from the fulness of our power, at our free will and royal pleasure, from time to time to make, declare, and ordain, in all such territories, countries, and places which have been acquired or conquered by the force of our arms, such ordinances and lawn which all our subjects residing in those parts and have lands of inheritance or goods or chattels there may use, enjoy, hold, and be obliged to observe'; and then, without any explanation as to the conquest referred to, ordained as a law, certain provisions as to transf er of property within the Isle and for confirming the laws with reference thereto, theretofore in use. The provisions of these letters patent, if of any validity, amounted to a confirmation of the previous law of the Island with respect to the alienation of lands as understood and claimed by the people of the Island, though disputed by the lords, who claimed an absolute right in all lands within the Island, a claim which for generations, and until 1704, was the cause of serious contentions between the lords and their subjects. But, King James was not personally a conqueror of the Island by force of arms : he had succeeded to the government of it merely on the death of Queen Elizabeth, who, as before stated, had taken possession of the Island until the dispute as to the succession in the House of Stanley should be determined. If King James relied on the alleged conquest by Henry IV., and if the grant of the Island by that King was valid, it can hardly be considered that Henry IV. or any of his successors could, after the grant, ordain laws for the country granted. If King James acted on the assumption that the grant by Henry IV. was invalid (and by the various grants which he made be seems to have considered that the Island was at his own disposal), then, at the date of the letters patent, the Earls of Northampton and Salisbury held the Island under grant dated 14th August, 1607. The ancient laws and constitution of the Island have, therefore, continued from the earliest time of which there is any account, without any change having been effected by any conqueror of the country,
"The diocese of Man consists of the Isle of Man, and the temporalities of the Bishop are wholly within the Isle. For a considerable time, and during part of the period of the union of the Southern Hebrides with the Isle of Man
in one kingdom, the bishoprics of the Isles, commonly called Sodor, was united with that of Man. After the severance of the sees, the Bishops of Man retained the title of Sodor, and the diocese of Man is now designated Sodor and Man. The diocese of Man appears to have been at one time subject to the archiepiscopal see of Drontheim, in Norway. After the time of the connection of the Isle with England, it was treated as subject to the Archbishop of Canterbury. By Act of Parliament 33 Henry VIII., c. 31, the see of Man was transferred from the jurisdiction of Canterbury to that of York. The ecclesiastical law of the Island is in many respects different from that of England ; and the ecclesiastical courts of the Island have a jurisdiction in temporal matters much more extensive than that which was exercised by the English ecclesiastical courts, at any rate, since the Reformation,
" The Legislature of the Island has always exercised the supreme legislative authority except that since 1765, the Parliament of England has, with respect to the Customs Revenue, the Post-office, the Harbours, and the Army and Navy, assumed the power of legislation. But, otherwise, the Statute Book of the Island shows legislation on almost all manner of subjects civil, ecclesiastical, criminal, military, revenue, &c. The legislation includes matters affecting the Sovereigns of the Island (including those of England since the Revestment in 1765) and their prerogatives, the administration of justice, the tenure and descent of real property, marriage, the change of the calendar, the levying of rates and taxes in regard to the Customs, harbours, highways, health, Lunatic Asylum, education, ecclesiastical purposes, &c. ; the currency, weights and measures, the incorporation of joint stock companies and of other bodies charitable and otherwise; &c., &c. The legislation in ecclesiastical matters goes back to at least the early part of the 16th century. The Statute Book contains a great number of points of ecclesiastical common law committed to writing (as was usual in ancient times), such as tithes and dues belonging to the Bishop and clergy, their glebe lands, the rights of executors of deceased spiritual persons and their successors, the relative positions of incumbents and curates, &c. In 1697 was passed an Act against non-residence applicable to the Bishop, Archdeacon, and clergy (and also to the temporal officers); in 1704, a code of canons passed by the Bishop and clergy assembled in convocation received the approval of the Legislature. and thus became an Act of Tynwald ; in 1734, was passed an Act as to the providing of houses of residence for rectors and vicars, and as to the dilapidation of glebe houses; in 1742, one for the exchange of glebe lands of the vicarage of Braddan ; in 1839, one for the commutation of tithes; one in 1839 for the erection, in parish of Andreas (Crown patronage), of a new chapel, to be endowed out of the tithes of the rector of the parish ; in 1844, one for ascertaining and defining certain rights of ecclesiastical persons In their temporalities (this Act applies to the Bishop and clergy) ; in 1847, one by which any future appointment to the vicarage of Braddan should be subject to such measures for the division of the parish, &c., as might be afterwards enacted by Act of Tynwald ; in 1860, one to authorise incumbents to grant leases of plebe lands ; in 1866, one to provide for the exchange of glebe lands ; and from 1710 to 1870, there are at least twenty Acts providing for the erection of parish churches, glebe houses, and church schools, the providing of churchyards, &c. By some of these Acts the appropriation of portions of glebe lands for churches, churchyards, and schools is authorized, for instance, in 1800, part of glebe lands of rectory of Andreas (Crown patronage), for the site of a new church ; in 1830, part of glebe land of the vicarage of Lonan (Crown patronage), for site of a new church ; in 1830, part of glebe land of vicarage of Conchan (Crown patronage), for a like purpose ; in 1834, part of glebe lands of vicarage of Michael (Crown patronage), for a like purpose; in 1836, part of glebe lands of rectory of Andreas (Crown patronage), for a schoolhouse; in 1839, the sale of the old vicarage house of Conchan (Crown patronage), and the erection of a new one with the proceeds in 1847, part of plebe lands of rectory of Andreas (Crown patronage, for enlarging the churchyard; in 1852, part of the same glebe lands, as a site for a girls' school, &c.
" The canons of 1704 contain provisions which affect the clergy and people in the conduct and regulation of Divine service ; the Calendar Act of 1753 contains enactments for altering the rules for ascertaining Easter, holy-days, &c. ; the Marriage Acts of 1757 and 1849. direct the mode of publication of banns of marriage in church ; and the Public Notices Act of 1872 regulates the giving notices in and at churches. The subject matter of the last-mentioned Act had been dealt with by Act of Parliament 7 Wm. IV. & 1 Vic., c. 45 (1837) but such Act had not been observed in the Island, the inhabitants having been ignorant of its contents; and by Act of Parliament 33 & 34 Vic., c. 51 (1870) the Act of 1837 was repealed and declared never to have applied to or been enforced in the Island. Such Act was passed on an understanding with the Imperial Government that the Legislature of the Island should consider the subject; and consequently the Act of 1872 was passed by such Legislature.
"The Act of 1734, as to providing houses of residence for rectors and vicars, affects the Crown as patron of thirteen parishes, inasmuch as by it, of the outlay borne by the incumbent in possession, his successor on appointment has to reimburse him two-thirds, such successor having the right to receive from his next successor, on his appointment, one-third of the original outlay.
"With regard to the temporalities of the Bishopric, the following Acts have been passed by the Insular Legislature:
1 In 1. In 1832 an act to enable the Bishop to grant leases of mines of lead, iron, and other ores in the Bishop's Barony, to bind big successors. By this Act the whole profits realized were given to the Bishop for the time being. "2. By the Act for the Commutation of Tithes passed in 1839, the tithes of the Crown, Bishop, and Clergy were commuted, and out of the Bishop's tithes a number of poor vicarages were augmented, the Bishop's proportion of the tithe rent charges of the Island being fixed at £1,515 and the Crown proportion at £525.
"3. In 1842 an Act was passed, confirming agreements of letting for a term of years of glebe lands of the Bishop.
"4. By the Act for ascertaining and defining certain rights of ecclesiastical persons, &c., passed in 1814, new arrangements were made as to the apportionment of the tithe rent charge, valuation of crops, &c., on the death of a Bishop or other avoidance of the see, and the former rights of the Crown to the temporalities during a vacancy were affected.
'5. In 1855 was passed an Act for confirming agreements as to lettings of glebe lands of the Bishop, and for providing for the future leasing of such lands.
"6. By Act passed in 1855, the Bishop was authorized to mortgage the temporalities of the see for thirty years, to the extent of £2,000, to provide for repairs and improvements at Bishop's Court, the residence of the Bishop.
"7. By Act passed in 1860, the like authority was given to the Bishop to raise a further sum of £1,000 for the same purposes.
"8. And in 1868 was passed the Bishop's Mines and Quarries Act, by which the Act of 1832 was repealed, and provision made for the letting, with the consent of trustees, constituted by the Act, of the Bishop's Mines and Quarries, all rents and profits being paid to the trustees. The appropriation of the fund arising from the profits is thus provided for : During the incumbency of the present Bishop £500, so far as the profits extend, to be paid to him yearly, and also one moiety of the excess above such £500, such moiety not to exceed £500, and the, surplus to be invested ; but the produce of investments to be considered as profits, to make up in any year the £500 and moiety payable to the present Bishop. And after the incumbency of the present Bishop, the produce of investments to be settled according to a scheme to be made by the Governor and Bishop, and approved by her Majesty in the application of a moiety of the annual produce, to make up a yearly sum of £500 to the Bishop, and otherwise in the augmentation of benefices, and in providing a fund for the benefit of curates serving in the diocese.
" It is thus seen that the Insular Legislature has hitherto exercised full control over the temporalities of the Bishop and Clergy within the Isle, and jurisdiction as to the regulation of what may be called the external affairs of the Church in the Isle of Man as the Established Church of the Island in much the same manner as such control and jurisdiction are exercised by the Parliament in England.
" Assuming that Acts of Parliament may extend to the Isle of Man if specially named, it has next to be considered whether the Acts of the Insular Legislature are inconsistent with, in derogation of, or contrary to any Act of Parliament.
"The Act of 33 Henry VIII., c. 31, as to the transfer of the bishopric from the jurisdiction of Canterbury to that of York. has no bearing on the question of legislation, and it does not affect in anywise the ecclesiastical law of the Island, further than that the metropolitan jurisdiction was to be exercised by the Archbishop of York.
"In 1836 was passed the Act 6 & 7 William IV., c. 77, for carrying into effect reports of Commissioners appointed to consider the state of the Established Church in England and Wales, so far as relates to episcopal dioceses revenue and patronage. The Isle of Man was not comprised in the commission, but the Commissioners recommended the union of the sees of Carlisle and Sodor and Man ; and the Act authorized the carrying out the recommendations of the Commissioners by means of schemes, to be laid before, and approved by, the King in Council, by the Ecclesiastical Commissioners for England, constituted and incorporated by the Act.
" In 1838, by the Act 1 & 2 Vic., c. 30, it was declared that the Act of 1836 should not extend to the see of Sodor and Man, or any part thereof, and that the Act, so far as it related to or affected the see of Sodor and Man, should be repealed.
" In 1842 and 1858 were passed two Acts of Parliament, 5 & 6 Vic., c. 108, and 21 & 22 Vic., c. 57, which were declared to extend to the Isle of Man. By these Acts provision was made for the letting of the lands of Ecclesiastical Corporations, and the improved values were to be paid to the Ecclesiastical Commissioners, who were empowered to apply such improved values in the augmentation of benefices, under a former Act which did not extend to the Isle of Man. The effect of these Acts, if carried out, would have been to augment English livings out of Manx church temporalities, the church in the Island obtaining no benefit. These Acts may possibly have come m conflict with Acts passed by the Insular Legislature ; but in 1866, by the Act 29 & 30 Vic., c. 81, the Acts of 1842 and 1858 were declared not to extend or apply to the Isle of Man.
"The only other Acts which have any bearing on the question are the Bishop's Resignation Act, 1869 (32 & 33 Vic., c. 111), continued in 1872 (by 35 & 36 Vic., c. 40), and made perpetual in 1875 (by 38 Vic., c. 19.) The Act of 1869 applies to the see of Sodor and Man, by providing that, on the resignation of a bishop of such see, be may receive a yearly pension of £1,000, such yearly pension or sum to be a first charge on the income of the Bishop of the see. It is apprehended that such possible charge on the income cannot affect the powers of the Insular Legislature, to deal with the temporalities of the see. But it is not likely that the royal assent would be given to any Act by which the income of the Bishop would be so far reduced as not to leave a suitable maintenance for the Bishop; and, in any case, the existing charges on the temporalities, whether created by Act of Parliament or Act of Tynwald, would, of course, be considered in any legislation affecting such temporalities. The charges under the Insular Acts of 1855 and 1860 are still in force,
" There is nothing in the Acts which authorises the purchase by the Crown of the various rights of the former lords, both before and after the revestment of 1765, which in any manner withdraws, or can be construed to withdraw from the jurisdiction of the Insular Legislature, the pro arty surrendered to the Crown; and it has never been declared or held by Parliament, or by judicial determination, that property or rights of the Crown. within the Isle of Man, cannot be the subject of legislation by the Legislature of the Island. The practice of the Insular Legislature, both before and since 1765, has herein been shown to be to the contrary.
"The land revenues of the Crown acquired from the Duke of Athole, in 1826 and 1827, as hereinbefore stated, were in 1829 by Act of Parliament (10 George IV., c. 50) laced under the management of the Commissioners of woods and Forests an Land Revenues. It would not now be competent for the Insular Legislature to enact powers of management inconsistent with those prescribed by Act of Parliament; but even as to the land revenues and property of the Crown, under the management of the Commissioners of Woods, Acts have since 1829 been passed by the Insular Legislature, the subjects of legislation not being in conflict with the provisions of any Act of Parliament. No Act of Parliament has been passed for managing the church temporalities in the Isle of Man, except those of 1842 and 1858, already referred to, and they, as before stated, were by the Act of 1866 declared not to extend or apply to the Isle of Man.
"The Lieutenant-Governor of the Isle of Man lately applied to the Secretary of State for the Home Department to obtain the consent of the Crown for the introduction of a Bill into the Insular Legislature to make provision to the effect that any future appointment to the Bishopric of Sodor and Man shall be subject to such measures as may be enacted by Tynwald for the rearrangement of the episcopal revenues, and the application of part of such revenues for the augmentation of livings; and also to provide, in case of the union of the rise with any other see in England, what yearly amount shall be paid to the Bishop of the United See from the Manx episcopal revenues. The matter was, by the Secretary of State, referred to the Attorney and Solicitor General of England for their opinion. The, opinion which they gave was as follows:
"1. The temporalities of the see of Sodor and Man in the case of a vacant y would belong to her Majesty, by virtue of her prerogative in Church matters, and, therefore, the proposed Bill will affect the prerogative.'
"2. We do not think the Insular Legislature have power, even with the consent of the Crown, to pass a measure for the redistribution and re-arrangement of the revenues of the see after the next avoidance, We may remark, moreover, that the contemplated arrangement will have reference to some English Bishoprics as well as the see of Sodor and Man.' " ` It is manifest, therefore, that it will require the sanction of an Act of the Imperial Legislature.'
"Possibly the law officers had not before them the information given herein. It is admitted that the union of the see of Sodor and Man with an English, or part of an English, diocese could not be effected except by Act of Parliament; and it is not proposed to lay such a Bill before the Insular legislature. The Bill proposed is one merely to keep open the power of legislating as to the temporalities of the see after the next avoidance without obtaining the consent of the new Bishop. An Act similar in principle was passed as to the Vicarage of Braddan in 1847. And as to the redistribution and rearrangement of the episcopal revenues, Acts for the like object were passed in 1831 and 1868.
" With reference to the points on which the Attorney and Solicitor General have expressed their opinion, it may be remarked as follows :
"1. The prerogative of the Crown is not necessarily, and, as a matter of fact, is not the same in all parts of her Majesty's dominions. It is not the same in all respects in England and the Isle of Man.
"The prerogative of the Crown in England, or in the United Kingdom, may be, and the exercise of it has been, affected by Act of Parliament. "There is no known law or custom by which the Legislature of any dominion of the Crown, having otherwise unlimited powers, and not subject to express limitation in this respect, is incapacitated from legislating in matters affecting the prerogative or rights of the Crown within the dominion, or by which legislation on such subjects is reserved for or devolves upon the Imperial Legislature only. The powers of some of the legislative bodies within the dominions of the Crown beyond the United Kingdom have been limited either by the charters constituting such bodies, or by Acts of the Imperial Parliament, and in most of such dominions the legislative authority is exercised under constitutions granted within the present century. But the Legislature of the Isle of Man a distinct kingdom has existed substantially in its present form from (it may be truly said) time immemorial ; certainly from a time long anterior to any connection of the Island with England. No alteration in such Legislature or in the constitution of the Island has ever been effected through or by virtue of any action on the part of the Crown or Parliament of England.
"The Acts of Parliament relating to the surrender of the sovereign and other rights of the former lords to the Crown of England do not expressly or impliedly limit or restrain the powers of the Insular Legislature ; and with reference to all such rights the effect of these Acts, so far as they are applicable to the Legislature and people of the Island, is but to substitute the Crown of England for the former kings or lords. It is on this view that the government of the Island has been administered, and that legislation within the Island has proceeded, since the revestment in 1765.
"In the Isle of Man the legislative authority, whether in relation to the sovereign, the people, or property, has been from ancient times unlimited in its operation, save only when, (since the connection with England and the saving as hereinbefore shown rests on a slender foundation in a legal point of view), the exercise of such authority would be in conflict with an Act of Parliament expressly extending to the Island.
'But, irrespective of precedents in former legislation, and in the absence of express restriction as to the extent or power of legislation, it must be presumed that the powers of a legislature of a country, and especially when such country is an ancient kingdom or sovereignty, are unlimited and supreme in all matters within or affecting the country.
" 2. The temporalities of the see of Sodor and Man being within the Isle of Man, and being applicable to a diocese which embraces the Isle of Man only, and legislation as to such temporalities not being restrained or affected by any Act of Parliament extending to the Island, the Insular Legislature has and in fact must have power to deal with such temporalities as with other property in the Island. As hereinbefore shown, it has on former occasions passed measures affecting these temporalities by redistributing and re-arranging the revenues arising therefrom ; and it has frequently passed measures affecting other ecclesiastical temporalities in which the Crown was interested. Then, if the Insular Legislature had power to pass such measures measures which are now in operation it must have, of course, the power to pass a measure such as that now proposed, namely, to save the right to legislate after the next avoidance of the see, and after the appointment of another Bishop.
" If the opinion of the Attorney and Solicitor General be correct, then all Insular legislation in relation to Church temporalities in which the Crown is interested, at any rate since 1765, must be void. Amongst the measures which would be nugatory is the Act for the Commutation of Tithes, which has been in operation since 1839, and by which not only were the tithes of the Bishop and clergy, but those also of the Crown, commuted. The confusion which would result, if the opinion was established as good law, is incalculable.
"This statement has been drawn up for the reconsideration of the matter by the Attorney and Solicitor General. Irrespective of the particular subject as to which legislation is now sought, the questions raised materially affect the position and powers of the Insular Legislature."
" J. GELL,
"Attorney-General for the Isle of Man." "Castletown, Isle of Man, 7th October, 1876."
The foregoing case having been laid before the before-named law officers for their reconsideration of the matter, they gave a second opinion as follows : "After carefully considering the Memorandum of the Attorney-General for the Isle of Man, and the arguments advanced by him in consultation with us, we are led to the conclusion that the Insular Legislature have power to pass a measure for re-arranging the revenues of the see of Sodor and Man, if the operation of such measure is confined to that object, and it is not made to affect, even indirectly, any English Bishopric."
" HARDINGE GIFFARD." "6, Crown Office Row, Temple, December 30, 1876,"
The result was that the matter was dealt with entirely by the Insular Legislature, which passed the necessary Act, "The Bishop's Temporalities Act, 1878."
8 By the Act of 1796 for the better regulation of the court of Common Law, the ancient arrangement of the parishes into sheadings and districts was altered to that at present existing. German, Patrick, and Marown were constituted the Sheading of Glanfaba, to all intents and purposes; Conchan, Braddan, and Santon, the Sheading of Middle; and Malew, Rushen, and Arbory, the Sheading of Rushen, and these three sheadings were constituted the Southern District of the Island ; Lonan and Maughold were constituted the Sheading of Garff, and this sheading, with those of Michael and Ayre, were constituted the Northern District. Previously Conchan belonged to Garff, and Marown to Middle,
9 There is also the small freehold barony in Maughold, called the Barony of the Hough, containing about 420 acres. It formerly belonged to the Priory of St. Bees, in Cumberland (see Mills' Statutes, p. 8) but has for many generations belonged to the family of the Christians of Milntown. The number of the customary tenants was too small to make up a Setting Quest, the principal portion of the barony consisting of the demesne ands in the hands of the lord of the barony. ,
10 By " An Act recognizing the power of the Court of Chancery to regulate its own proceedings," passed in 1777, the Court of Chancery has full power to make such rules and orders from time to time touching its own practice and proceedings, and for the better conduct of suitors and practitioners, as shall be found expedient.
11 The Manx Court of Chancery has exercised a more extensive power of granting arrests than that claimed by the English Court of Chancery with respect to its writ of ne exeat regno. On affidavit that a debtor is about to leave the Island, an arrest enforceable against his body and estate can be obtained from the Manx Court, and a similar arrest can be obtained against the estate of a non-resident defendant on affidavit that he is absent from the Island. These arrests are granted on what are termed in the text common actions, and are also granted on special actions for unliquidated damages. Before August, 1846, strangers resident in the Island were liable to arrest on mesne process on affidavit that they were not native, but the ownership of a quarterland or of intack land of £3 lord's; rent" gave them the privileges of natives. This liability of strangers was abolished by the Act of Tynwald of August, 1846.
12 At present the proceedings are by bill and answer, plea or demurrer, and its practice is similar in many respects to that of the English Chancery Court, previous to its modern alterations. Many applications are disposed of in a summary way on petition.
13 The practice of directing an issue to be tried by a Deemster and a jury is still continued.
14 The regular courts are held monthly, except in the months of January, August, and September. Special Courts are, however, frequently held,
15 The following Act for regulating the proceedings in the Court of Exchequer, was passed in 1777 : " Whereas all disputes respecting the rights of the Crown, the imposing of fines, and the recovering of debts or duties due to the sovereign, and the determining the right of tythes, being properly cognizable in the Court of Exchequer, be it enacted by the authority aforesaid, That hereafter the said Court shall be regularly held on the day after every Chancery Court, or immediately after on the same day (if the Governor or Lieutenant-Governor shall see proper), to hear and determine all suits thereto appertaining; and that his Majesty's Attorney-General for the time being shall in the first instance prosecute all offenders in revenue matters by summons or process in the nature of a capias, praying an arrest against the person of the defendant, which capias is returnable at the next Court to be holden after the issuing thereof (three days being allowed between the service and such return) ; and when any offender shall thereupon be apprehended, or being apprehended, shall have given bail for his personal appearance, the Attorney-General shall, before the second Court, file an information setting forth the cause of suit (of which information being filed, three days notice shall be given to the defendant or his attorney before such second Court), requiring the defendant to appear and plead thereto at such second Court, and in default of such appearance judgment and execution shall go against defendant's person and effects. And at such second Court the suit shall be heard and determined, unless sufficient cause (to be approved of by the Court) shall be shown to the contrary. And the Governor or Lieutenant-Governor is hereby impowered to make such rules and orders from time to time for the better regulating the practice and proceedings of the said Court as occasion shall require, any law, custom, or usage to the contrary hereof in anywise notwithstanding."
16 In the appeal case of the Attorney-General of the Isle of Man v. Cowley and Kinrade, decided by the Judicial Committee of the Privy Council on the 1st July, 1859 (Moore's P. C. Reports), the power of the Court of Exchequer to direct a trial by jury being disputed, it was expressly decided that it still existed, and had not become obsolete by disuse.
17 The Act of Tynwald of 24th June, 1737, s. 10, enacts " That any person or persons who now have or hereafter shall have any appeal, or cause of appeal, from any decree, order, sentence, judgment, or proceeding of any of the courts or magistrates of this Isle whatsoever, or from the Keys to any superior judge of appeals, shall and are hereby obliged to prefer his or their appeal or appeals for acceptance, and enter into bonds thereon in order to an effectual prosecution, within six months after the degree, order, or sentence is made or given against them, or any of them, otherwise they and all persons claiming under them to be excluded and barred (whether plaintiff or defendant) from the benefit of any appeal for ever after, any law, custom, usage, or practice to the contrary in any wise notwithstanding." The "six months" has always been held to apply to the presenting of the appeal and entering into bonds only, and has no reference to the subsequent prosecution, respecting which a further time is sometimes limited in the acceptance, and the amount of the bond is fixed by the judge in the acceptance, and varies according to the nature of the case.
Prior to the revestment an appeal lay from the Lord of the Island to the King in Council (Christian v. Corrin, 1 Peers Williams 329.) Since then the appeals from the Chancery and Exchequer Courts are to the Queen in Council direct. The statement in the text as to the non-existence of any limitation with respect to the amount in dispute is inconsistent with the case of Bankes v. Lockhart, the lord's forester, printed in the Appendix A., No. 78. Bankes, of Howstrake, in Conchan, being fined for killing a hare on a neighbour's customary estate, in order to try the lord's claim to the game, presented his petition of appeal to Governor Cochrane, intending to appeal to the Lord of the Island himself. The Governor refused to accept the appeal, and made the following order :
" Forasmuch as the Right Honourable Charles, Earl of Derby, late lord of this Isle, in order to prevent the abuse made of appeals by contentions persons, to the great vexation of the subject and delay of justice, did, by his lordship's order, remaining on record in the year 1666, enact and declare, That no appeals should be thereafter received or accepted by any Governor or Deputy-Governor of this Isle upon trivial occasions, or any matter of business under five pounds, and other restrictions therein mentioned ; which said order hath ever since been the standing rule and constant practice within this Isle, and, therefore, I cannot accept the above-written appeal."
" BASIL COCHRANE." "Given at Castle Rushen this 21st of March, 1757."
18 By the Act of July, 1793, for regulating the proceedings of the Court of Common Law, the Governor may preside by a Deemster. Since then the courts for trial of causes have been always (except in some special cases), presided over by a Deemster, and whenever objections to his ruling as to any questions of law or evidence are made, they are heard by the Full Court, consisting of the Governor, and officers, as stated in the text. The regular Common Law Courts are held : for the Southern District, in Hilary term, beginning on the Tuesday following the first Thursday fu February; in Easter term, beginning on Tuesday following the first Thursday in May; in Trinity term, beginning on Tuesday next after the last Thursday in June; and in Michaelmas term, beginning on Tuesday following the fifth of October. The courts for the Northern District are held on the Tuesdays following the days fixed for the Southern courts. They are no longer held at different places and times for different sheadings, but at one place and time for each district.
19 At present the jury is taken from the list of the whole district, and both real and personal actions are tried by a jury of six. When the jury is sworn, the cause proceeds at once, unless a view is required, and the evidence is taken under the direction of the Deemster, and the jury cannot separate until the case is disposed of, except for adjournments fixed by the Deemster. When they have agreed in their verdict it is delivered to the Deemster, and recorded with the other proceedings in the cause in the Rolls Office.
20 The appellate jurisdiction of the House of Keys being abolished by the House of Keys Election Act, 1866, traverses from verdicts at Common Law are now regulated by the Appellate Jurisdiction Act, 1867. By that Act the verdicts of juries at Common Law, and of the Great Enquests, and all verdicts of juries in the Exchequer traversable by law, may be traversed, by entering a traverse within twenty-one days from the recording of the verdicts. The traverser is required to enter into bonds, as near as may be according to the provisions of the Acts requiring security for appeals passed in 1847 and 1850. The traverse thus entered is heard on the petition of either party by the Court of Common Law sitting without a jury, and presided over by the Governor.
Sec. 3 of the Appellate Jurisdiction Act 1867 provides that on such hearing "the Court may (except as to the admission or rejection of evidence) review the proceedings at the trial, and determine all matters of law which may have arisen thereat, including any determination or ruling of the judge who presided at the trial, and the directions given to, or the questions submitted by the judge for the consideration of the jury; and such determination of the Court shall, subject to the right of appeal as hereinafter mentioned, be final and conclusive ; and should any question of fact, or, any question as to amount of damages then remain between the parties, the Court shall, upon the application of the traverser, order a new trial, and such new trial shall be had upon the evidence adduced at the former trial without recalling the witnesses ; or may order judgment to be entered for either party as the case may be ; and also may make such order with respect to the costs. including in the case of a new trial the costs of the former trial, as the Court may think proper; and such new trial may be had in either district before a jury of twelve men, taken from the special jury list of any of the sheadings, as the Court may order. Provided always that nothing herein contained shall empower the Court, without a new trial or unless by consent of parties, to alter, vary, or reverse a verdict as to the amount of damages, or as to the finding of the jury on matters of fact only, or to estimate damages where no damages have been found by the jury, and in the case of a traverse from a verdict of a Great Enquest, the new trial if ordered shall in all cases be held before a Deemster and a jury of twelve men, to be taken from the special jury list, either of the sheading where the venue may be, or of such other sheading as the Court shall direct. Provided also, that nothing herein contained shall be construed to affect the power of any Court to order a new trial, or to decide questions of law reserved, or to arrest judgment in all cases where such power has hitherto existed."
Section 5 enacts " The Court shall not on hearing a traverse consider any questions as to any determination, ruling, or direction of the judge at the trial, in matter of law, unless the points or questions objected or excepted to be stated in the form of a case in writing agreed to by both parties or their advocates, or in case of their disagreement to be settled by the judge presiding at the trial, and signed by him, and filed with the proceedings in the cause or suit at least three days before the hearing of the traverse."
Section 6 enacts " Any party aggrieved by any judgment of the Court, or by a verdict of a traverse jury under this Act, may appeal to her Majesty in Council in the manner usual as to other appeals."
Section 7 enacts " Nothing herein contained shall be construed to take away or diminish the power and authority heretofore by law vested in the Staff of Government."
Section 8 enacts that the provisions of the Act of 1737, whereby certain cases of fraud respecting titles to real estate were directed to be inquired into by six of the Keys, are repealed, and the matters referred to were to be dealt with by the Chancery Court,
The law regulating the security to be given in cases of appeals and traverses is contained in the Act of 1847, intituled "An Act to compel parties preferring on appeal a traverse from the verdict of a jury at Common Law to give security for the amount of such verdict, together with the costs of such appeal," and the Act to amend that Act passed in 1850.
21 The manorial business which, according to the text, was brought on in the Sheading Courts after the conclusion of the business of the Common Law Courts, is now transacted in the Courts Baron, presided over by the Seneschal of Her Majesty. They are held at such times as may be fixed by him after public notice. They are generally held about April and October in each year, The Manorial Courts for the Baronies, which are all now vested in the Crown (except the Bishop's Barony and the Maughold Barony), are held by the same officer along with the other Courts Baron. The Court for the Bishops Barony is held by his Steward, but the number of customary tenants in the Maughold Barony being too small to form a jury no Court has ever been held for it.
22 The business of the Courts Baron is now entirely confined to manorial matters, such as the entries and admissions of tenants, the appointment of moars of the Lord's lands, and the serjeants of the Baronies, and such like.
The cognizance of actions between tenants. and of felonies committed by tenants, which was formerly within the jurisdiction of the Courts of the Barony, is now vested in the general common law and criminal courts of the Island.
23 The Deemsters Courts continue to be more generally resorted to than any of the other Courts of the Island.
24 The jurisdiction of the Deemsters Courts is very extensive. Although the title to lands cannot be tried in these Courts, suits for possession are entertained, and these suits are either finally decided or referred to the Common Law Court, or decided without prejudice to the parties proceeding as to the title in other Courts. Suits to be quieted in possession of lands or in rights of easements, to have nuisances abated, or to have injuries to lands repaired or made good, are entertained. If instead of specific relief unliquidated damages are sought to be recovered, the case is triable in the Common Law Court before a jury, except that in cases involving small amounts the Deemster frequently deals with unliquidated damages. Specific performance of contracts is also enforced there. The power of proceeding by injunction either pendente lite, or as a final judgment is also exercised. At present all proceedings in bankruptcy are brought before this Court. The jurisdiction exercised by the Deemster is so extensive that it is difficult exactly to define its limits.
25 The power of summoning a jury to sit in this court to try a cause pending In it is now never exercised, but it is conceived that the power has not become obsolete by disuse (Attorney-General v. Cowley and Kinrade, M. P. C.) Particular issues are frequently referred by the Deemster to a jury of skilled persons, such as questions respecting the state of repair of buildings or lands, and the cost of repairing them. In such cases the jury proceeds by view out of Court, and the verdict being returned to the De mster in the Court, he acts on the facts reported by the jury.
26 The appeal from the Deemster is to the Staff of Government, from which the appeal is to her Majesty in Council. The Deemster fixes the amount of the bond according to the circumstances of the case, The appeal must be brought within six months from the making of the judgment.
27 Suits on contracts respecting maritime affairs may be tried either in the Deemster's or the Water-Bailiff's Court.
28 The power of calling in a jury is exercised at the discretion of the judge.
29 By the Ecclesiastical Courts Act, 1874, the judicial functions of the Archdeacon's Official are exercised by the Vicar-General who holds Consistorial Courts and summary Ecclesiastical Courts monthly at the four towns of the Island, except during vacation time.
30 And within three years for foreign debts.
31 At present on non-compliance with the judgment of the Ecclesiastical judge's writ of contempt is granted by the Governor, under which the party in default is imprisoned in Castle Rushen gaol until he purges himself of his contempt to the Governor's satisfaction. There is now no ecclesiastical prison or power to commit to one.
32 The reporters here incorrectly report the Attorney-General as to v ,iii, His statement (Appendix C. No. 3), is "In matters 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." On one point of jurisdiction, namely, the probate of wills, the Court to which an appeal can be brought has always been a matter of contest. The Bishops of Man stand have claimed that the appeal is to the Archbishop only, and on the other hand many of the judges of the Island have held that it lies to the Staff of Government, and precedents favouring both contentions are in existence,
33 It was decided by the Privy Council on the 19th June, 1825, on the petition of Wm. Kelly, in re Rex v. Kelly, that the Keys did not by the laws of the Island form an integral or constituent part of the Court of General Gaol Delivery (Bluett's Note Book, p. 499), and since then they have never been summoned to that Court. The ecclesiastical members of the Council do not now sit in this Court.
34 The mode of prosecution in the Court of General Gaol Delivery is now regulated by the existing criminal statutes, forming an entirely new Criminal Code, passed since the report. No presentments are now made by juries summoned by the Coroner, or on suspicion of felony either under a Coroner's or a Deemster's authority. Many offences which were formerly tried by petty juries are now dealt with by the justices under the Petty Sessions Act, Summary Jurisdiction Act, &c.
35 At present the panel consists of seventy-two men, being twelve from each sheading, instead of four from each parish as stated in the text.
36 The. Great Enquests now serve for the year. and are sworn at the October Common Law Courts. They generally return their presentments to the Common Law Court on going out of office, unless specially summoned to a Deemster's Court, but they now never return them to the Court of General Gaol Delivery.
37 In very ancient times in case a tenant selected by it failed to pay the Lord's rent, the Setting Quest was made liable in his stead, "for (as the old customary law expresses it), " putting him on the rolls who hath no goods.' By ancient custom the Moar was to be of the Setting Quest the year next after being in office ; consequently it may be inferred that four years was the limit of the compulsory service of the members of the Setting Quest. The Quests still exist for each Parish and Barony, except the Hough Barony. Their principal duty at Court is to present the alienations and descents of land, and to return the names of the succeeding owners, in order to enable the entries to be made on the roll, and the alienation fines and Lord's rent to be collected, and to present the names of the persons liable to the office of Moar for each year The Setting guests still apportion the Lord's rent on alienations of parcels of customary lands, and (unless an equitable division is sought in the Chancery Court on special grounds), they make partition of joint estates. One peculiarity of the tenure is that on a division by the Setting Quest, or by the Chancery Court, each share vests in severalty in the party to whom it is allotted, without any conveyances being execute by the other joint owners.
38 The mode of proceeding for trespass described in the text still exits. The jury proceeds out of Court to view the damage and take evidence. The party against whom they intend to verdict being noticed to attend the Deemster's Court whenever they are ready to hand in their verdict, can appear and take any formal objection to the proceedings, or claim to be allowed to call evidence before the jury. The verdict is banded to the Deemster in open Court, and is traversable to a jury of six. who try the cause under the direction of the Deemster. From the verdict of the traverse jury the appeal is now under the Appellate Jurisdiction Act, 1867. The practice of proceeding by a jury of inquiry for lost goods may now be considered obsolete.
39 The Fodder Jury system was instituted to prevent trespass and theft. By the statute of 30th July, 1691, it was enacted that no persons should presume to keep more live stock than they had pasturage for in summer, and hay or other fodder for in winter , and to have this law observed the Coroners were ordered on the 25th March in every year to swear four honest and judicious men (three of them at least to be farmers), in every parish as a standing jury, to inquire into and inspect the provision of grass and fodder made for the stock of the parish, and to report thereon to the Governor and officers at the first Court after the 25th of March and 29th September in every year, or whenever required. In case they reported any person not having. sufficient provision, the Court had power to order the Coroner to sell the defaulter's stock at market prices, and to account to him for the proceeds, deducting expenses. If the jury should be found to be in any way remiss or partial in their duty, they were liable to be fined and punished at the discretion of the Court.
Although the Fodder Jury is not exactly obsolete, it is so seldom put in motion that it may be said to be now practically disused.
40 These provisions are now obsolete.
41 The abuses of the jury system referred to in the text, are now matters of History only.
42 It is hardly necessary to remind the reader that the reporters here speak of a state of things which had then no longer existed. The forms of process were regulated by the Act of 1763.
43 No judgment or execution is now enforced by the moars or sergeants, who are looked upon merely as officers of the Manorial Courts. The judgments of the Superior Courts, and of the Deemsters' and High Bailiffs' Courts, are levied by the coroners, and those of the Ecclesiastical Courts by the sumners, except where the enforcement requires the arrest and imprisonment of the person. This is performed by a constable.
44 Arrests and proceedings in criminal cases are now regulated by the Criminal Code, 1872, and by the Petty Sessions Act, 1864, and other recent enactments.
45 The present course of appeals in civil cases has been already explained in preceding notes.
46 Amongst other powers of the Lord Proprietor which the Governor was authorized to exercise was that of granting customary estates out of the wastes and demesnes of the Island. This was done by a licence to enclose, granted by the Governor, subject to the approval of the Great Inquest as to public ways, waters, and turbaries, and by the affixing of a rent upon the land, followed by an entry on the manorial roll. This power is expressly referred to in the statute of 1422 (Mills, p. 6), by the expression, "setting of lands," and nearly all the intacks of the Island have their titles founded on it.
47 This power of temporarily filling up any vacancy in any of the superior offices until a permanent appointment is made by the Crown, is still exercised by the Governor. The latest instances of ifs exercise were the appointment of the Vicar-General during the last vacancy of the Bishopric, and of a Clerk of the Rolls between the death of the late M. H. Quayle, and the appointment of A. W. Adams to that office.
48 The Office of Treasurer of the Island is now separate from that of the Receiver-General, and the land revenue of the Crown in this Island is now received from the collecting officers by the agent of the Commissioners of Her Majesty's Woods, Forests, and Land Revenues, who have the sole management of the Crown property and revenue in the Island. The Treasurer has to deal with the public revenue of the Island applicable to insular purposes.
49 Since 1793 there have always been two Deemsters. The mode of ascertaining the law on any disputed or uncertain point, by a request from the Governor to the Deemsters, or to them and the Keys to declare the law thereon. was very frequently put into practice up to recent times. These requests and answers were generally recorded in the Rolls Office.
50 The coroners are appointed by the Governor, and they appoint their own deputies, or lockmen, who are sworn by a Deemster.
51 As before stated, the Moars are now looked upon as the officers of the Manorial Courts only, and their principal duty is to collect the Lord's rents and alienation fines arising within their parishes. The office of Moar is obligatory on the proprietors of land within the parish, and falls in rotation annually on each quarterland and on the intack lands within the parish. The Setting Quests annually return to the Courts Baron the name of the property liable, and generally one of the proprietors acts in person, or a deputy is appointed by him and sworn as Moar by the Seneschal. On being sworn, he becomes liable to collect the Lord's rent and alienation fines of the parish, and for which he may maintain suits in his own name as Moar.
52 By an Act of Tynwald passed in the year 1777, the superintendence of the four towns of the Island was transferred to officers created by that Act called High-Bailiffs, in whom was vested the powers formerly belonging to the Captains of towns, referred to in the text. By that Act the High Bailiffs obtained jurisdiction of all suits for matters of debt not exceeding in amount two pounds Manx (£114s. 32d. English) arising within districts allotted to them by the Act. These districts consisted of the parishes of Braddan. Onchan, and Santon allotted to the High-Bailiff of Douglas; Lonan, Lezayre, Pride, Andreas, Ballaugh, Jurby, and Maughold to the High-Bailiff of Ramsey; German, Patrick, and Marown to the High-Bailiff of Peel; and Malew, Rushen, and Arbory to the High-Bailiff of Castletown.
By the Douglas Town Act, 1860, the superintendence of the paving, draining, lighting, and cleaning of the town of Douglas was placed in the hands of Commissioners elected by the ratepayers of the town; and by the Ramsey Town Act, 1865, that town was similarly placed under the superintendence of Commissioners. For local purposes, under these Acts, the Commissioners have power to levy rates on real property within their towns, not exceeding 1s in the £ of annual value.
The towns of Peel and Castletown still remain under the entire superintendence of their High Bailiffs, and the jurisdiction as to small debts conferred by the Act of 1877 still remains within all the districts before mentioned. By various Acts, the High Bailiffs have also summary jurisdiction to punish for criminal offences.
53 The questions referred to in the text as to the rights of the holders of particular offices to sit in the Council are now not necessary to discuss, as they depended on a state of things which does not any longer exist. All the officers named now derive their appointments from the Crown except the Vicar-General, who is, and always has been, appointed by the Bishop, whose appointment is now direct from the Crown.
54 The Great Enquest has been revived. (See Note 36.)
55 As to Appeals. (See Note 20.)
64 By "The Tynwald Proceedings Act, 1876," the powers of the Keys are extended and regulated on several important points. As to the examination of witnesses, the following sections, 3 & 4, of the Act, confer new powers upon them:
" 3. Witnesses may be summoned to appear before the Court, or either House, or a committee specially empowered by the Court or either House to take evidence; and the production to the Court, or either House, or a committee, of papers, documents, or records receivable or produceable in evidence and pertinent to the matter of inquiry may be required as follows (that is to say) : the case of the Court, or of the Council, or of a committee of the Court or Council, by order of the Governor; and in the case of the House of Keys, or of a committee thereof, by order of the Speaker. And the attendance of witnesses and the production of papers, documents, or records may be enforced in like manner as in the case of witnesses or persons summoned to appear personally or to produce documents before a Court of Justice.
" 4. The Court as heretofore, and either House, or a committee of the Court or either House sp cially empowered to take evidence may examine witnesses on oath, and for that purpose may administer an oath to any such witnesses."
The proceedings of the Tynwald Court and of the Keys, in cases of contempt, are now regulated by the following sections of the Act ; the Acts of 1647 and 1737, and section 121 and part of 125 of "The Keys Election Act, 1866," respecting contempts, being repealed :
5. It shall be lawful for the Court or either House to punish by fine or imprisonment, or by both, contempts committed in the presence of the Court or House (as the case may be) while it is sitting, in the same manner and to the same extent as a Court of Justice has power to punish contempts committed in its presence.
6. Whosoever shall maliciously publish any libel of and concerning the Tynwald Court or either House constituting such Court, or of or concerning any member of either with reference to his conduct in the discharge of his duties as such member, shall be guilty of a misdemeanour, and be liable to a fine not exceeding fifty pounds, and to be imprisoned for any term not exceeding six calendar months.
7. It shall be lawful for the Governor, upon receiving~ information that any such offence has been committed, to direct the Attorney-General to institute a prosecution against the alleged offender, and it shall be the duty of the Attorney-General to institute such prosecution accordingly. The costs of the prosecution shall be borne and paid out of the Public Funds."
The payment of costs in private bill cases, and others, is provided for in the following sections :
8. When either House or a committee on a private bill shall decide that the preamble is not proved, or shall insert in such bill any provision for the protection of the petitioner, or strike out or alter any provision of such bill for the protection of such petitioner ; and further, if the House shall decide with respect to any or all of the petitioners against the bill that such petitioner or petitioners has or have been unreasonably or vexatiously subjected to expense in defending his or her rights proposed to be interfered with by the bill, such petitioner or petitioners shall be entitled to recover from the promoters of such bill his or their costs in relation thereto, or such portion thereof as the House may think fit, such costs to be taxed as the costs incurred in a superior Court of Justice, or the House may award such a sum for costs as they shall think fit, with the con. sent of the parties affected.
9. When the House or a committee on a private bill shall decide that the preamble is proved, and, further, if the House shall decide that the promoters of the bill have been vexatiously subjected to expense in the promotion of the bill by the opposition of any petitioner or petitioners against the same, then the promoters shall he entitled to recover from the petitioners, or such of them as the House may think fit, such portion of their costs of the promotion of the bill as the House may think fit, such costs to be taxed as the costs incurred in a superior Court of Justice, or such a sum for costs as the House may award, with the consent of the parties affected : Provided always that no landowner who bona fide at his own sole risk and charge opposes a bill which proposes to take any portion of his property for the purposes of the bill shall be liable to any costs in respect of his opposition to such bill.
10. In any case where by statute the orders or proceedings of a committee, or of any Board, body of persons or person, are liable to be revised, altered, varied, or rescinded by the Court, on the application of any person aggrieved or interested, the Court shall have power in its discretion to award costs to be paid by or to any petitioner in like manner as a superior Court of Justice may order payment of costs in a suit ; such costs to be taxed as the costs incurred in a superior Court of Justice, or such a sum for costs as the Court may award with the consent of the parties affected.
11. All costs to be awarded under this Act may be recovered as a debt.
12. In any case, it shall be lawful for any person from whom the amount of any costs payable under this Act has been recovered to recover from the other persons or any of them who are liable to the payment of such costs a proportionate part thereof, according to the number of persons so liable and according to the extent of the liability of such persons.
13. In any case when, in accordance with standing orders of the Court or of either House, a deposit of money or stock is made, or Security is given with respect to the application to Tynwald for an Act, the money or stock so deposited, or the security so given, shall, in addition to any other claim to which the deposit or security may be liable, be a security for the payment by the promoters of the bill of all costs (if any) payable by them under this Act ; and every person entitled to recover any costs so payable shall accordingly have a lien available for the same on the money or stock so deposited, or on the security given : Provided that where several persons have the lien for an amount exceeding in the aggregate the net value of the money or stock, or of the amount of the security given, their respective claims shall proportionately abate."
The foregoing note ought properly to have been appended to the portion of the report which treats of the powers, &c., of the Keys, but was accidentally omitted in printing.
" (See Note 33.)