Manx Church Law in the 19th Century

Extract from the Report of the Royal Commission on the Ecclesiastical Courts (1883, C.3760) vol. ii pp. 317-337

Note B: The Isle of Man and the Diocese of Sodor and Man


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NOTE B.

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 Chiare-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 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 Isle 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 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 [327] 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 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 Edward I., by whom it was referred to the 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 1. 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 acquired 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 a "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 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 [328] descendants, Earls of Derby, were lords of the isle, and on the decease of James, 10th Earl, the last of such four, 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.I., c.28 (1725), secs.25 and 26, provision was made by which the Commissioners of the Treasury were authorised 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 be inalienably vested in the king and his successors. By the Act the patronage of 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 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), the island has been governed as before, but in the name of the Crown of England.

The legislative power was, previously to 1865, 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 so named the Isle is so bound. The legality of this position was always disputed by Manx jurists before 1765, but 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 recognised by the courts of justice and acted on in the island. The earliest authority as to the island being bound by Act of Parliament whenm 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 for 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 ordain 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 which were then reduced to writing. The inference from this record is that the old constitution and laws had been preserved. Henry IV. called himself 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 iieiv 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 laws 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 transfer 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 he 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 the grant dated 14th August 1607. The ancient laws and constitution of the island 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 temperalities 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 bishopric 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 [329] 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 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 1841, 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 glebe lands; in 1866, one to provide for the exchange of glebe lands; and from 1710 to 1870, there are at least 20 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 authorised, - 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 the site of a new church; in 1830, part of glebe land of vicarage of Conchan (Crown patronage), for the 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 glebe 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. and 1 Vict. 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 Vict. 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 13 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 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 his successors. By this Act the whole profits realised 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 rentcharges of the island being fixed at 1,515l. and the Crown proportion at 525l.
  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 1844, new arrangements were made as to the apportionment of the tithe rentcharge, 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 authorised to mortgage the temporalities of the see for 30 years, to the extent of 2,000l., to provide for repairs and improvements at Bishop's Court, the residence of the bishop.
  7. By the Act passed in 1860, the like authority was given to the bishop to raise a further sum of 1,000l. 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 Bishops' 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, 500l., so far as the profits extend, to be paid to him yearly, and also one moiety of the excess above such 500l., such moiety not to exceed 500l., and the surplus to be invested; but the produce of investments to be considered as profits, to make up in any year the 500l. 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 [330] by Her Majesty, in the application of a moiety of the annual produce, to make up a yearly sum of 500l. 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 - 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 mentioned, 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 Wm. 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, revenues, 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 authorised 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 Vict. 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 Min, should be repealed.

In 1842 and 1858 were passed two Acts of Parliament, 5 & 6 Vict. c.108, and 21 & 22 Vict. 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 in conflict with Acts passed by the Insular Legislature; but in 1866, by the Act 29 & 30 Vict. 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 Bisliop's Resignation Act, 1869 (32 & 33 Vict. c. 111), continued in 1872 (by 35 & 36 Vict. c. 40), and made perpetual in 1875 (by 38 Vict. 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, he may receive a yearly pension of 1,000l. ; or in case of his incapacity, a co-adjutor bishop may be appointed, such co-adjutor to receive a yearly sum of 1,000l., 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 1765, which in any manner withdraws or can be construed to withdraw from the jurisdiction of the Insular Legislature the property 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) placed under the management of the Commissioners of Woods and Forests and 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, exept 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 see with any other see in England, what yearly amount shall be paid to the bishop of the united see from the Manx revenues. The matter was, by the Secretary of State, referred to the Attorney and Solicitor General of England for their opinion. The opinion which the gave was as follows:-

1. "The temporalities of the see of Sodor and Man in the case of a vacancy would belong to Her Majesty, by virtue of Her prerogative in church matters, and therefore the 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 re-distribution or re-arrangement of the revenues of the see after the next avoidance. We may remark, moreover, that the contemplated arrangements 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 [331] revenues, Acts for the like object were passed in 1839 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 subject s 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 truly be said) time immemorial; certainly from a time long anterior to any connexion 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 those 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 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 connexion with England - and the saving as herein-before shown rests on a slender foundation from 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 herein before shown, it has on former occasions passed measures affecting those temporalities by re-distributing and re-arranging the revenues arising therefrom: and it has frequently passed measure 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 of course the power to pass a measure such as is 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 also those 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.


Subsequent Opinion of the Attorney and Solicitor General of England.

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.

JOHN HOLKER.
HARDINGE GIFFARD.

6, Crown Office Row, Temple.
30th December 1876.


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