Judgment in Re Robinson

IN THE ESTATE OF J ROBINSON and E ROBINSON (Deceased)

In the High Court of the Isle of Man (Chancery Division)

(Reported in the Manx Law Reports at 51 MLR 154)

Judgment of Deemster FARRANT 22nd April 1936

This is a petition of the executors and trustees of the joint last will and testament, with a codicil thereto, of James Robinson, deceased and Elizabeth Robinson, deceased, dated May 27th, 1929 and July 30th, 1930 respectively.

By the codicil, the deceased jointly revoked a legacy of £1,000 directed by their will to be paid to the Vicar and Wardens of the Parish of Lonan and in lieu thereof they directed their trustees to pay to the Parochial Church Council of Lonan a legacy of £1,000. The sum of £500 was to be invested and the annual income applied towards the repair, aid and upkeep of Lonan Parish Church, and the remaining £500 was to be applied by the church council towards the cost and expense of procuring a new organ for the church.

The petitioners allege that the sole function of the Parochial Church Council of Lonan is to meet once in each year for the purpose of electing two representatives of the parishioners to the Diocesan Conference of the Diocese of Sodor and Man, that the council has no secretary or treasurer, has no power to deal with financial matters, and that there is no one who is legally entitled to give a receipt for money handed to the council. The petitioners bring this application to determine in what manner the legacy of £1,000 is to be paid and, if not to the Parochial Church Council of Lonan, then to what person or body of persons it should be paid. Notice of the application was given to the Attorney General, to the Vicar and Wardens of Lonan, and to certain persons who are alleged to be members of the Parochial Church Council of Lonan.

Evidence was given by the Reverend John Quine, Vicar of Lonan, that there was not and never had been a parochial church council in the parish of Lonan. He produced a minute book which showed a purported appointment of certain persons as members of the parochial church council in the year 1935. The entry in that year was under the heading "Lonan Parochial Church Council." The minutes for the year 1931 were headed "Annual Church Meeting" and in 1932 there were no minutes of the meeting. Meetings were held in 1933 and 1934 but there was no heading in the minute book. The Canon said that the business done at these meetings for the past seven years merely consisted of the appointment of two representatives to the Diocesan Conference of the Diocese of Sodor and Man, that at every such meeting he explained that there was no legal authority for a parochial church council, and that the meeting was held in deference to the wishes of the Bishop and in anticipation of their existence being subsequently legalized.

There was a meeting on March 24th, 1935 when a resolution was passed to the following effect:

"In the opinion of this meeting, the Vicar and the Church Wardens, when the time is ripe, take such course as they may be advised to obtain an order of the proper court for the payment to them of the Robinson legacy."

The Canon said that this referred to the £1,000 legacy left by the above-mentioned codicil. The Attorney General explained to the court that he could not consent to a legacy left for charitable purposes being paid over to a body which was unincorporated and had no legal existence and (if the Vicar was to be believed) no actual existence.

The whole question turns upon whether the Imperial statutes intituled "The Church of England Assembly (Powers) Act 1919" (hereinafter called "the Enabling Act") and the Parochial Church Council (Powers) Measure 1921 or any part of such Act or Measure applies to the Isle of Man. This question involves the important point as to the applicability or otherwise in this Island of the provisions of Acts of Parliament where — as was the case in the Act and Measure referred to — they contain no express mention of the Isle of Man.

The constitutional position of this Island in relation to the Crown and Parliament of England is clearly established. The Isle of Man existed as an independent Kingdom, subject to the suzerainty of the King of Norway (and subsequently of the King of Scotland before the latter Kingdom became subject to England), for a long time prior to its coming under the suzerainty of the King of England in the 14th century. In 1399, King Henry IV granted the Island to the Earl of Northumberland, claiming that it had come into his (the King's) hands by conquest. The King's claim was confirmed by Parliament. The word "conquest" in feudal law meant an acquisition by purchase or other lawful title.

In 1405 the Island was seized by the King, who claimed it had been forfeited on the conviction of the Earl of Northumberland for treason. The King granted it to Sir John Stanley for life and in 1406 to him and his heirs (who later became Earls of Derby), subject to the service of rendering two falcons to the King of England on his coronation. The Island and its lordship remained in the hands of the Earls of Derby, and their successors the Dukes of Atholl, until 1765, when it was purchased and revested in the Crown.

The legal position of the Isle of Man in relation to Imperial laws and legislation came into question in the year 1498 on the hearing of a claim by the Dowager Countess of Derby in the Chancery of England for her dower out of the Island on the death of Thomas, late Earl of Derby. [See 4 Co. Inst. at 283 (1797 ed.).] The judges, Brudnell, Brook and Fitzherbert, and all the King's Council resolved —

"that the office moved for was merely void, because the Isle of Man was no part of the Realm of England, nor was governed by the law of that country, but was like to Tourney in Normandy or Gascoign in France when they were in the King of England's hands which were merely out of the power of the Chancery which was the place to endow the widow of the King."

This case was reported by Keilway and first published by Jean Croke (1602). It was discussed in the year 1599 in the Isle of Man case [note 1], by Egerton, Lord Keeper, Popham, C.J., Anderson, C.J.C.P. and Peryam, C.B., and divers Lords of the Council, when the title of the Isle of Man again came into question as between the Earl of Derby as heir male and the daughters of the late Earl as heirs general. [See 4 Co. Inst. at 283.] Upon hearing counsel on both sides and after mature deliberation the judges resolved (inter alia):

  1. That the Isle of Man was an ancient Kingdom of itself and no part of the Kingdom of England.
  2. They affirmed the case reported by Keilway to be law, quoting the words already given.
  3. It was also resolved by them that neither the Statute of Westminster II (De Donis Conditionalibus) nor the Statute of Uses (27 Henry VIII), nor the Statutes of Wills (32 and 34 Henry VIII), nor any other general Act of Parliament, extended to the Isle of Man, for the aforesaid reason, unless by special name an Act of Parliament might extend to it.
  4. That a fee simple in the Isle of Man, passing by letters patent to Sir John Stanley and his heirs, was descendible to his heirs according to the course of the common law, for the grant itself by letters patent was warranted by the common law in this case: and therefore, if no other impediment existed, the Isle in this case should descend to the heirs general, and not to the heir male.

It will be observed that the last resolution of the judges was all that appeared to be necessary for the decision of the point actually before them. The statement by them that certain Acts of Parliament did not extend to the Isle of Man, but that by special name an Act of Parliament might extend to it, although valuable as an opinion, was what would now be termed obiter dicta.

Moreover, that statement does not necessarily imply that the Island might not be affected by an Act which, though not including the Isle of Man by name, might be held to have so extended by necessary implication. Thus the Privy Council, with the assistance of the judges, on the hearing on August 5th, 1663 of William Christian's case [note 2], a complaint against the Governor and Deemsters of the Isle of Man, declared that the Act of General Pardon and Indemnity 1660, which did not refer to the Island by name but is expressed to apply to England, Ireland, Scotland and the dominions and territories thereto belonging "did and ought to be understood to extend unto the Isle of Man as well as to any other of His Majesty's Dominions and Plantations beyond the Seas."

This was evidently also the opinion of Hardwicke, L.C., before whom on July 15th, 1751 came the case of Bishop of Sodor & Man v Earl of Derby; Earl of Derby v Duke of Atholl [note 3]. There were two questions for decision by the Lord Chancellor. The first was the validity of a grant made by a past Earl of Derby to the Lord Bishop and his successors of all impropriate tithes for the benefit of the Church of England in the Isle of Man, which grant in case of its legality being subsequently challenged had been guaranteed by a deed of collateral security on some of the Earl's estates on the mainland. The second question involved the title to the Isle of Man, for the Duke of Atholl claimed to succeed to the Lordship of Man by reason of his being heir general of the original grantee and the Earl of Derby claimed it as heir male. If the Earl of Derby established his right to the Island, then the grant of the impropriate tithes would be valid, but, if not, then the Duke of Atholl who had entered on the Island and had ousted the Bishop from the tithes would have been entitled to do so, and the Bishop must fall back upon his right to enforce the collateral security against the Earl of Derby. The Lord Chancellor held in favour of the Duke of Atholl's title to the Island and sustained his right to oust the Bishop and the Bishop's right to enforce the collateral security against the Earl.

The application of an Act of Parliament which did not expressly name the Isle of Man was in point in that case because the late Earl had devised to the present Earl all his real estate and hereditaments whatsoever and 20 wheresoever. The question, therefore, of the devisability of the Island under the Wills Act (Imperial) was actually in dispute. Lord Hardwicke said [note 4]:

". . . [T]hat Lord Derby as devisee (for so only can he claim) has not a title to the isle and dominion of Man . . . Many things are admitted on both sides; that Man is not part of the realm of England; parcel only of the King's crown of England; a distinct dominion now under the King's grants, and so ever since from a long time past granted; held as a feudatory dominion by Liege Homage of the Kings of England . . . the laws of England therefore, as such extend not to it, neither the common or statute-law, unless expressly named or some necessary consequence resulting from it."

Then he went on to discuss the powers of "alienage" vested in the late Earl and held that he could not alien without the consent of the King and that therefore the grant of the impropriate tithes was void as against his heir general. It will be observed that the Lord Chancellor spoke of an Act of Parliament not naming the Isle of Man which nevertheless might extend to it by reason of some necessary consequence resulting from it.

The question of the applicability of general Acts of Parliament to Dominions of the Crown had become important in Lord Hardwicke's time, for the Colonial Empire was growing rapidly. Several cases are recorded in the books where the question was agitated. Without going minutely into detail, it was definitely established in the case of a colony or dependency which was not acquired by conquest in the modern meaning of that word, and which had a legislature set up by the Crown itself with power to make laws, that general Acts of Parliament would not extend to such colony except by name or by necessary implication.

A somewhat similar point has been the subject of many decisions up to the present day, namely, how far Acts of Parliament bind the Crown if the Crown is not expressly named, and a series of rules have been laid down to ascertain whether such Acts apply to the Crown by necessary implication. Thus it appears that the opinion once held by eminent lawyers in this Island (e.g. Sir Alured Dumbell in the case of Att. Gen. v Harris & Mylrea [note 5], where the question at issue was as to the applicability of the (Imperial) Militia Act 1882 to the Isle of Man) — namely, that no Act of Parliament could apply to the Isle of Man unless the Isle of Man were specially named therein — was an erroneous one. The real state of the law on that point was expressed by the Staff of Government Division on appeal, namely that to make an Act of Parliament applicable to this Island it must either expressly name the Isle of Man or it should appear on the face of the particular statute that the legislature intended it to apply to the Isle of Man, and further, that the intention should appear as clearly and unmistakably as if the Island were referred to by name. This opinion is now generally accepted to be the law.

It remains to be considered how the applicability of a general Act of Parliament to this Island by necessary 15 implication or (to quote Lord Hardwicke) "some necessary consequence resulting from it" is to be ascertained in this case. This at once raises the question of the legal position of the Church of England in the Isle of Man.

I do not intend to follow the Attorney General in his learned disquisition upon its probable origin. The antiquity of its Episcopal See seems to be recognized in the Official Year Book of the Church of England (1935 ed., at 55), the date of foundation being given as 447 A.D. Coke (4 Co. Inst. at 285 (1797 ed.)) says that its Bishopric was instituted by Pope Gregory Iv The Chronicles of Man give the date of foundation as A.D. 1050. It was certainly in existence and recognized by the civil authority as represented by the then Kings of Man and by the ecclesiastical authority as represented by the Popes in the 12th century.

Originally subject to the metropolitical jurisdiction of the Archbishop of Nidaros in Norway, it had become subject to that of Canterbury. In the year 1541-42, the Act of Parliament 33 Henry VIII, c.31 was passed, transferring the Diocese of Man, along with that of Chester, to the Province and Archbishopric of York. The actual words of the Statute are:

". . . [T]hat the Bishoprick and Diocese of Man in the Isle of Man be also annexed adjoined and united to the said Province and metropolitical jurisdiction of York, in all points and to all purposes and effects as the said Bishoprick of Chester is annexed adjoined and united to the same."

The wording relating to Chester is:

". . . [T]hat the said whole and entire Diocese or Bishoprick of Chester, and every parcel and member thereof, be from henceforth united and annexed to the Province and Archbishoprick of York as a Diocese and Bishoprick of the same: And that from henceforth the said Diocese of Chester and every parcel thereof . . . be and be taken named and reputed to be of the Province and Archbishoprick of York, and of the metropolitical Jurisdiction of the same, to every effect and purpose according to the ecclesiastical laws in this realm: and that the Bishop of the same that now is, and all other his successors, shall be suffragans to the Archbishop of York that now is and his successors, and to the same shall owe their obedience, and be under the jurisdiction metropolitical of the same, as well they as the Dean and Chapter of Chester and all the Archdeacons and the whole Clergy and all others the King's subjects being within the limits and bounds of the said Diocese . . . and from henceforward neither the said Bishop of Chester, neither the Clergy, nor any other the King's subjects being of the said Diocese of Chester, shall recognize the Archbishop of Canterbury as their Metropolitan, but only the Archbishop of York and his successors, and to the same shall obey in all things according to the laws as well temporal as ecclesiastical of this realm."

I will return to the meaning and effect of this Act later. It is sufficient now to observe that it does not appear to me to be possible to dismiss it as something unimportant to the question of the bearing of Imperial ecclesiastical legislation in this Island, as does Sir James Gell in his 1876 opinion.

I may here mention that the patronage of the Bishopric of Sodor and Man appears to have been originally vested in Furness Abbey. [note 6] It subsequently became vested in the Lord of the Island, and is now in the King. The Bishop is consecrated by the Archbishop of York, to whom he takes the oath of canonical obedience, the clergy of the Island taking their oaths of obedience to the Bishop.

Both the Bishop and the Proctors for the Clergy of the Island have since 1541 been summoned to the Convocation of the Province of York (whenever it met) and have attended and taken part in its deliberations. In particular, they were summoned to and took part in the deliberations and voting of that Convocation when it and the Convocation of Canterbury adopted addresses to His Majesty on May 10th, 1919, which led to the passing of the Enabling Act, an Act of the Imperial Parliament which does not name the Isle of Man. By this Act is established the National Assembly of the Church of England (therein and hereinafter called "The Church Assembly") constituted in accordance with the Constitution set forth in the appendix to the addresses of the Convocations of May 10th, 1919. In this Constitution, power is taken by the Church Assembly to pass Measures relating to the Church of England and the Act provides the machinery by which such Measures shall receive the assent of Parliament, whereupon they shall have effect as Acts of Parliament. In accordance with these powers, the Parochial Church Council (Powers) Measure 1921 (hereinafter called the "Council Measure") was passed by the Church Assembly and confirmed by Parliament. I will deal with the actual provisions of this Measure later in my judgment.

Before considering the effect of the Enabling Act in this Island, I must take into account the provisions of the Church Assembly Act 1925 ("the Manx Act"). Its title is "An Act to confer power upon the Diocesan Conference of the Diocese of Sodor and Man to initiate legislation affecting the Church of England in this Isle." By s.3, it is obligatory upon the Diocesan Conference, constituted in the manner set out in the Schedule to the Act, to 45 consider every Measure, and "any other matter affecting the Church of England in this Island," and to decide whether the Measure "with or without any alteration or modification to suit the local circumstances of the Island," or matter "shall be presented by the Legislative Committee to the Ecclesiastical Committee in the form of a draft Bill." It also makes it obligatory on Tynwald to appoint an "Ecclesiastical Committee" from its members "to consider any draft Bill presented to them by the Legislative Committee and to report to Tynwald thereon," and declares that —

"immediately after the passing of a resolution of Tynwald approving generally of the principle of a draft Bill so reported on, the Lieutenant-Governor shall take the necessary steps [to introduce it] . . . into the Insular Legislature . . ."

In the Schedule, s.1(1) of the Constitution provides amongst other things that the lay representatives shall include —

"the representatives of each parish or parochial district in the Diocese elected in accordance with rules for the representation of the laity appended to the addresses presented to His Majesty by the Convocations of Canterbury and York on the tenth day of May, 1919, as amended by the Representation of the Laity (Amendment) Measure, 1922."

"Measure" is defined in s.2 of the Manx Act as —

"a legislative measure intended to receive the Royal Assent and to take effect as an Act of the Imperial Parliament in accordance with the provisions of . . . the Assembly Act . . . [the Enabling Act] and shall include any Act of Parliament which has been passed by such Parliament under the powers of the Assembly Act, and also shall include any measure repealing or amending this Act or any Act of Tynwald passed under the provisions of this Act."

There is also a definition, though it appears to be unnecessary, of the "National Assembly of the Church of England" as meaning the assembly appointed in accordance with the Constitution set forth in the appendix to the Convocation addresses.

The first point to be noted in connection with the Manx Act is that the whole of the Rules for the representation of the laity in the Diocesan Conference have been adopted as set out in the Convocation addresses. These provided (inter alia) for the qualifications of a voter in each parish or parochial district, for the preparation of an electoral roll and for the holding of the necessary meetings to elect representatives to the Diocesan Conference.

No reference is made in the Manx Act to a parochial church council, but it is to be observed that, in the rules appended to the Convocation addresses, provision is made for the election of such a council at the church meetings held for the purposes of electing the representatives to the Diocesan Conferences. Thus, the machinery is complete and appropriate for the election of parochial church councils in the parishes or parochial districts of the Isle of Man. But whether a statutory obligation rests upon the incumbent to have the electoral roll prepared, the meeting held, and the council elected, and whether such a council is vested with perpetual existence and powers, depends (so it is argued) upon whether or not the Enabling Act and Council Measure apply to the Isle of Man. It is submitted that the Manx Act (which does not impose that obligation on the incumbent) is rather against such application, inasmuch as it leaves it open to the Conference to decide whether the Measures of the National Assembly shall or shall not be presented to Tynwald and preserves the right of Tynwald to legislate to the same effect. It is, however, not contended that, if as a fact Imperial Acts and Measures do apply to the Island either in whole or in part, the insular legislature could effect any limitation or alteration of that application.

In my opinion, the Manx Act is only important in considering the practicability of applying any provision of the Imperial Act or Measure to the local circumstances of the Island. As I have said, it seems to place beyond doubt the practicability of electing a parochial church council. All the necessary machinery has been provided for and is at hand. I return, then, to the question of the actual legal position of the Church of England in this Island.

It seems to me that, if it were not for the Act of 33 Henry VIII, c.33 above referred to, there might be considerable force in the argument that, as there has existed from time immemorial in this Island a legislature competent to deal with any matter relating to the Island or its inhabitants, and that that was so prior to the acquisition of the Island by the King of England, the Church of England in this Island might be said to be in much 15 the same position as that Church in other Dominions of the Crown. In the case of Long v Bishop of Cape Town [note 7], it was held that if a class of persons in a Dominion overseas having a legislature of its own, and where no Church has been established by law, should found a Church calling themselves members of the Church of England, they would be members of the Church of England and they would be bound by its doctrines, ordinances, rights, rules and discipline but as a voluntary association only, although all the members would be taken to have entered into the mutual compact to be so bound and obedience to them could be enforced by the Civil Tribunal. The judgments in that case were commented on by Romilly, M.R. in Bishop of Natal v Gladstone [note 8], who says that they proceed on the assumption and are based on the foundation that the Church so established is a portion of the Church of England.

It seems to me, however, to be impossible to say that the Church of England in the Isle of Man is in an analogous position, for by the Act of 33 Henry VIII, c.33, the Diocese of Sodor and Man eo nomine was annexed, joined and united to the Province of York, in all points and for all purposes and effects as the Bishopric of Chester. Consequently, the Bishop, clergy and any other of the King's subjects in the Diocese of Sodor and Man are bound to recognize the Archbishop of York as their Metropolitan and to obey him in all things according to the law, as well temporal as ecclesiastical. This seems to bind the Church of England in the Isle of Man to the coercive jurisdiction of the Archbishop of York and to all laws temporal and ecclesiastical which govern the Church of England and are enforced by that coercive jurisdiction, so far as applicable to the local circumstances of the Island. There can, I think, be little doubt that any law dealing with the spiritualities of the Church must be included in this jurisdiction.

The temporalities of the Church of England in this Diocese have occasionally been dealt with by Parliament. On the other hand, the insular legislature have dealt with such temporalities in a series of Acts of Tynwald, some of which are set out in the opinion of Sir James Gell previously referred to. He names eight Acts which have dealt with the temporalities of the bishopric.

To draw a distinction between the operation of Acts dealing with temporalities and spiritualities in ecclesiastical matters is by no means unique: There is an analogous distinction in international law between statutes which are personal and statutes which are real. See Lord Esher, M.R., quoting from Story's Conflict of Laws in Companhia de Moçambique v British South Africa Co. [note 9]:

'"The civilians have variously defined the different classes of statutes or laws. . . Personal statutes are held by them to be of general obligation and force everywhere; but real statutes are held to have no extra territorial force or obligation. "Personal statutes", says Merlin, "are those which have principally for their object the person, and treat only of property incidentally. . . Real statutes are those which have principally for their object property, and which do not speak of persons, except in relation to property.'" What are called 'personal laws', then, are of general force and obligation everywhere; what are called 'real laws' have no extra-territorial force or obligation whatever."

It is therefore possible to construe an Act of Parliament dealing with ecclesiastical matters as having a general application to the Isle of Man in matters spiritual but not in matters temporal. It may sometimes be difficult to determine the difference between the two. Originally, temporalities in ecclesiastical law referred to such possessions as a Bishop had by livery from the Crown, e.g. castles, manors, lands, tenements, tithes and the like. Livery, or livery of seisin, was inapplicable to personal estate. Therefore everything that was, or that savoured of, real estate is properly included in temporalities. Having given full consideration to the matter in its general aspect I have come to the conclusion that —

I come now to the point whether the Councils Measure or any part of it applies to and binds the Diocese.

Section 2 of that Measure says:

"It shall be the primary duty of the Council in every parish to co-operate with the Incumbent in the initiation conduct and development of Church work both within the parish and outside."

The last words of the section point to missionary work, which it is admitted can properly be described as a spiritual matter. Most of the work done by the incumbent in the parish could also be so described and it seems to me that, without in any way straining the words of the section, one should consider it principally to refer to work of a spiritual nature.

By s.3, it is enacted that —

"Every Council shall be a body corporate by the name of the Parochial Church Council of the parish for which they are appointed and shall have perpetual succession. Any Act of the Council may be signified by an instrument executed at a meeting of the Council and under the hands or if an instrument under seal is required under the hands and seals of the chairman presiding at the meeting and two other members of the Council."

This of course is purely machinery, and is I think applicable to the local circumstances of the Island.

By s.4(1)(i), it is enacted that from the commencement of this Measure, there shall be transferred to the council of every parish —

"all powers duties and liabilities of the Vestry of such parish relating to the affairs of the Church except as regards the election of churchwardens and sidesmen and as regards the administration of ecclesiastical charities but including the power of presentation to the benefice of such parish if the right to present thereto is vested in or in trust for the parishioners and the power of making any voluntary Church rate."

This section would seem to be largely concerned with temporalities, and therefore not applicable to the Island. Section 4(1)(ii) transfers to the Council all powers, duties and liabilities of the churchwardens of a parish relating to —

In (a), it would appear that, except as to certain collections in church which are governed by existing laws, all moneys raised for church purposes are for the advancement of the religious purposes for which the Church exists and may be stated to be principally of a spiritual nature. With regard to (b) and (c), as these touch the rights of property, I think they may be described as of a temporal nature. The remainder of the section seems to 35 me to be either of a temporal nature or inapplicable to the Diocese.

By s.5, it is enacted that —

"The Council of every parish shall have power to acquire (whether by way of gift or otherwise) any property real or personal for any 40 ecclesiastical purposes affecting the parish or any part thereof with power to manage and administer any such property:
Provided that —
  1. The power to acquire any such property shall (save in the case of chattels personal) be subject to the consent of the 45 Diocesan Authority and the legal interest in any such property (except chattels personal) shall be vested in the Diocesan Authority of the diocese in which the parish is situate subject to all trusts debts and liabilities affecting the same and all persons concerned shall and are hereby required to make or concur in making such transfers (if any) as are requisite for giving effect to this enactment.
  2. The power of letting for more than one year and of sale and exchange of any such property (other than chattels personal) and the power of taking legal proceedings shall not be exercised without the consent of the Diocesan Authority.
  3. The accounts of all trusts administered by the Council shall be laid before the Diocesan Authority annually."
The greater part of this section seems to me to be of a temporal nature and to be inapplicable to the special circumstances of this Diocese. But I see no reason why a parochial church council might not be declared by the court competent to receive and to administer gifts which do not involve any dealing with real estate.

By s.6, the council of every parish is to have the following powers:

  1. Power to frame an annual budget of moneys required for the maintenance of the work of the Church in the parish and otherwise and to take such steps as they think necessary for the raising collecting and allocating of such moneys.
  2. Power to make levy and collect a voluntary Church rate for any purpose connected with the affairs of the Church including the administrative expenses of the Council and the costs of any legal proceedings.
  3. Power jointly with the Incumbent to appoint and dismiss the parish clerk and sexton or any persons performing or assisting to perform the duties of parish clerk or sexton and to determine their salaries and the conditions of the tenure of their offices or of their employment. . .
  4. Power jointly with the Incumbent to determine the objects to which all moneys to be given or collected in Church shall be allocated subjected to the directions contained in the Book of Common Prayer as to the disposal of money given at the offertory.
  5. (v) Power to make representations to the Bishop with regard to any matter affecting the welfare of the Church in the parish."
In this section, sub-ss. (i), (ii), (iv) and (v) would seem to be mainly of a spiritual nature.

There are a number of other sections which do not bear upon the point actually at issue. I am not asked, and I do not intend, to deliver judgment upon which of the sections of the Measure apply to this Diocese, although I have, I think, given a reasonable indication of my general opinion. It is sufficient for the purposes of this decision to say that, in my view, the provisions of the Councils Measure relating to the establishment of a parochial church council as a body corporate, with power to acquire and administer gifts of personal estate, apply to and bind this Diocese, and further, that the combined operation of the Enabling Act and the Constitution in its Schedule, the Councils Measure and the Manx Act results in the following conclusions:

  1. In accordance with the Constitution, there must be prepared in every parish or parochial district of the Diocese an electoral roll of duly qualified electors.
  2. An annual parochial church meeting must be held in each such parish or district.
  3. A parochial church council must be elected by such meeting in each parish in accordance with the Constitution.
  4. The general functions of the council must be those set out in s.2 of the Measure.
  5. The council is a body corporate with perpetual succession.
  6. The council has power to accept and give a valid and effectual receipt for a gift of personal estate and may administer it in accordance with the trust (if any) under which such gift is made.

As these conclusions cover the question immediately submitted to me, I declare that the gift in the codicil to the Robinson will is a good gift to the Parochial Church Council of Lonan and that the same may be paid over to it on its being legally constituted and giving an effectual receipt therefor. The costs of all parties will be paid out of the deceased's estate.

Order accordingly.


NOTES:

1. Isle of Man Case (1599), 2 And 115; 123 ER 575 back to text

2. Christian's (William) Case, Privy Council, 5th August 1663, unreported back to text

3. Sodor & Man (Bishop) v Earl of Derby (1751) 2 Ves Sen 337; 28 ER 217 back to text

4. 2 Ves Sen at 350-351; 28 ER at 225 back to text

5. AG Gen. v Harris & Mylrea, ex p Looney, High Court of the Isle of Man (Chancery Division), Case No. Ch. Pet. 1894/8, unreported; on appeal, High Court of the Isle of Man (Staff of Government Division), Case No. Staff 1894/1, unreported back to text

6. See the Bull of 1194 of Pope Celestine III, reproduced in Oliver, 2 Monumenta de Insula Manniae (7 Manx Society Publications, at 21-24 (1861)) back to text

7. Long v Bishop of Cape Town (1863) 1 Moo.PC. NS. 411; 15 ER 756 back to text

8. Natal (Bishop) v Gladstone (1866), LR 3 Eq 1; 15 LT 456; sub nom. Colenso v Gladstone, 36 LJ Ch 2; 12 Jur NS 971 back to text

9. Companhia de Moçambique v British South Africa Co., [1892] 2 QB 358 at 396; on appeal [1893] AC 602 back to text