[7]

THE TENURE OF THE CUSTOMARY ESTATES.

The tenure by which the tenants of the Island held their lands from the Lord was anciently called "the Tenure of the Straw." Deemster Parr in his Abstract of the Customary Laws of the Island, written before the year 1700 says, "It is to be noticed that the reason the said tenure was called the Tenure of the Straw was because any tenant who had ceised and surrendered his lands into the Lord's hands or had alienated the same to any other person, had to come into the Court and make resignation thereof by delivery of a straw, and thereupon a record was to be entered of the " same. which was all the assurance the succeeding tenant had of the said estate in nature of a copyhold, which was held sufficient evidence of his holding without any writing or receipt."

Like most of the tenant right and copyhold estates in England the Ancient Manx Tenure was not in form originally a fee simple interest. From the earliest of the Manorial records now existing in the Island, it is manifest that the tenure was as to its form a leasehold interest. A very cursory examination of the Ancient Rolls will be sufficient to satisfy any person that the idea generally entertained that the system of holding by lease for terms of years originated in 1643 is erroneous. However, notwithstanding the form of the holding [8] the custom of the country as recognised by customary laws and decisions of the Courts construed the tenure to be in effect an estate of inheritance descendable from ancestor to heir, and as such-the estates were held from generation to generation. There was nothing strange or unusual in so doing. In England many copyhold estates in form estates at will were held by custom to be equivalent to fee simple interests; so in this Islanld the custom construed the tenants interests to be probably at first a term perpetuaIly renewable, which in process of time ripened by custom into a fee simple estate until at last the very form of holding by lease disappeared from the Roll.

About 1643, and subsequently, the Lord's and Abbey tenants accepted leases from the then Lord for terms differing in several respects from those usual in former times and consented to pay double rents for the quarterlands. Supposing the tenure to be permanent as under the former holding, the granting of these leases was a considerable benefit to the tenants, as in consideration of the double rent they got rid of several heavy customary burdens, amongst others the delivery of a beef annually to the Castle from each quarterland and the Lord's right of pre-emption or being victualled at a certain low price and also the payment of benevolences as they were called. Leases were consequently sought after, and many petitions from customary tenants praying to have leases granted to them at double rent appear on the records. There can be no doubt that the tenants considered that these leases did [9] not affect the nature of their holding, but that they were in effect lettings of the customary burdens at fixed rents in money.

After this practice of leasing had become universal and had continued for some time, and although the interests of the tenants under the said leases descended by inheritance and were otherwise treated as fee simple estates, doubts began to prevail concerning the legal effect of acceptance of them upon the Ancient tenure. Many began to fear that the Lord would claim a right to eject them at the expiration of the leases, and consequently became desirous of returning to their Ancient permanent tenure. An instance appears on record of a tenant (Christian of Milntown) who had taken a lease of his tenement, petitioning to be released from it, and to be allowed to hold by the Tenure of the Straw. This was granted to him. In 1654 Richard Stephenson had his estates of Balladoole, Scarlett, and the Calf Island confirmed by deed to him by the Countess of Derby, "To hold to him his heirs and assigns according to ancient custom, and holding by tenant right in this Isle called the Tenure of Straw, for ever." [note 1]

[10] The apprehensions of the tenants were justified by the claims made on behalf of the Lords, who disputed the permanency of the holding. The consequence of this was general dissatisfaction and constant disputes, and an almost open rebellion against the authority of the Lord. At the intercession of the Bishop, and doubtless influenced by more powerful considerations, the Lord of the Island, James Earl of Derby in 1703 came to an arrangement with his tenants, which was put into the form of the Statute Law commonly called the Act of Settlement, and on the 6th June 1704 promulgated at Tynwald in Ancient form. This Act entitled "An Act for the perfect settling and confirmation of the Estates, tenures, fines, rights, suits and services of the tenants of the Right Honourable James Earl of Derby, within this Isle of Man, &c." with the Explanatory Act passed at the same time are to this day considered the basis of the Tenure of the Manx Customary estates, [note 2] excepting the estates of the Barony tenants [note 3] who were not included in them as they did not hold immediately from the same Lord as before mentioned. The former of these Acts enacts in substance that in consideration of the payment of certain fixed fines agreed upon and of the double rents as they were then payable for the quarterlands and the accustomed rents for [11] the other lands and of some other customary burdens, their Ancient customary estates of inheritance descendible from ancestor to heir were thereby confirmed to the respective tenants, and that all estates made or to be made of any lands in the Island to any person and his heirs should be deemed to be good and perfect Customary estates of inheritance and such person and his heirs and assigns should be deemed to be seised thereof as of good and perfect customary estates of inheritance, descendible according to the custom of the Island and might lawfully hold the same as customary tenants against the Lord his heirs and assigns for ever subject to the several burdens before named, saving however to the Lord all his royalties, regalities, prerogatives, homages, fealties, escheats, forfeitures, mines and minerals of every kind, quarries and delf of flag, slate and stone, liberties, privileges and Jurisdiction to which he was then or had been entitled.

After the revestment of 1765 these Acts were in 1777 re-enacted and confirmed with the consent of the Crown.

[13] The only one of the customary burdens above referred to worthy of notice is that of the office of the Moarship the duties of which are principally the collecting of the chief rents and fines of the Parish [note 4] in which the lands lie from the other customary tenants therein. This burden is incumbent on each quarterland, and on the mills and cottages (a certain amount of rental of which is computed to be equal to a quarterland) in each Parish in rotation annually. It is the duty of the owner 0f the Estate, liable either by himself or his deputy, to attend at the Court Baron and be sworn to perform the duties of Moar of the Parish. In that capacity he collects the rent and fines of the Lords lands in his Parish, and may maintain suits in his own name as Moar for their recovery. His Estate is liable to the Lord for the whole chief rent and fines of the Parish for the year.

The Abbey and Barony tenants in each Barony are liable in rotation annually to the office of the" Sergeant-ship" which is the collecting of the rents and fines for the year from their fellow Abbey or Barony tenants in the same Parish. [note5]

[14] The tenant or his deputy is sworn to perform the duties of the Office at the Court of the Abbey Lands or Barony in which his Estate lies. Another of the customary burdens, but which is now merely nominal, is suit of Court. Courts Baron for the transaction of manorial business are still held, some annually, for the Lords and Abbey tenants in each Parish, and for each separate Barony excepting the Maughold Barony lands. Anciently, at the manorial courts, suits respecting lands and personal actions between tenants were cognizable, but by the operation of the Acts respecting the Common Law Courts they are deprived of jurisdiction in such matter. The Courts Baron are now presided over by a Seneschal appointed by the Crown, [note 6] and the business is confined to the drawing of old and entering of new tenants on the roll which is done on the presentment of Juries of four tenants for each Parish called Setting Quests, and to the swearing in of the Moars and Sergeants, the names of the persons liable being returned to the Court by the Jury. The necessity for an entry on the Roll, and the consequence of non-entry are matters which may properly form part of the subject of "Alienation by Deed" and are, therefore, treated of in the succeeding chapter under that head.

As the Act of Settlement did not extend to the Baronies of Bangor and Sabal, St. Trinion's, [15] or the Staff Lands and Barony of Maughold, the tenure of the customary Estates in these districts continue still to be undefined and unguaranteed by any statutory enactment. The writer, however, believes that it never has been questioned, and certainly is not now, that the tenants of these Estates have an Estate in fee simple in these lands similar to that possessed by the tenant of lands included in the Act of Settlement. These lands are subject to small certain quit rents, payable according to ancient custom, partly in money, and partly in kind, and in some cases fixed alienation fines have been agreed upon between the tenants and their ancient Lords. [note 7] These rents and fines appear on the Rolls of their respective Baronies, which are still kept separate from the manorial records of the customary lands. The freehold mines, minerals, and other manorial rights in these lands are vested (with the exception of the Bishop's Barony) in the Crown, to the same extent as in the other customary lands. [note 8] The Bishop in his Barony has the mines and minerals, &c.

The nature of the title of the present holders of the Maughold Barony and Staff Lands is a matter of doubt It is not even certain whether the Staff Lands formed part of the Barony or were separate holdings.

[16] The Barony consisted of a small Estate called the Hough of the Barony, and about a half quarterland called Ballellin. It was formerly held by the prior of St. Bee's, but for many generations has been held by the family of Christian of Milntown, to whom a small customary quit rent is payable by the tenant of Belle!lin,cwho claims to hold in fee under them. It is uncertain whether Mr Christian derives his title from the former Lords, the Priors, or whether it is the mere customary holding of the ancient tenants. The Christians, I believe, claim the seigniory of these lands, and their receipt of the customary rent from the tenants seems to favour their claim. The Staff Lands consist of a few small parcels in Maughold containing about 200 acres. It is believed that no record exists to show whether the holders of these lands have the freehold or are mere customary tenants. A tradition says that they have been originally tenants of the Maughold Barony, but it does not appear that any rent was payable. A strong argument in favour of the tradition is that if these lands had been held by freeholders, distinct from the Barony held by the Priors of St Bees, they would have been enumerated amongst those bound to do fealty to the Lord in the Act of Tynwald which recites all the freeholders. However, supposing these lands to have originally formed part of St Bees Barony, it by no means follows that they are not freeholders, as they may have derived their title from St Bees Priors. There is nothing to show whether they ever conveyed their seigniorial rights to any other person, and in [17] the absence of some proof, the possession for centuries without any manorial rights being claimed would furnish a strong presumption that the freehold has been acquired by the holders. All the other customary Lords of the Island, as well the Lords as the Barons, appear on their respective rolls, but there does not appear to have been any roll relating to the Maughold Barony or the Staff Lands, nor have they ever paid any customary rent or burdens except the small rent before referred to, payable to the Christians. This question may possibly become a matter of importance in case the right to the minerals should be disputed. It is believed that the tenure was originally a holding by the service of having the custody of and bearing at Tynwald Courts, etc., the Staff of Kirk Maughold, [note 9] one of the relics of Man. The tenure of the Kirk Patrick Staff Lands being subject to the same burdens with respect to the Staff of St Patrick.

For Sherwood's notes on this chapter see Appendix 1.

Note 1: The Countess of Derby here referred to was the famous Charlotte de la Tremoille, wife of James, 7th Earl of Derby and 10th Lord of Man, of the House of Stanley, who was executed at Bolton, on the 15th Oetober, 1651. By a commission dated the 6th August, 1651, she was by her Husband appointed to act for him during his absence. The grant referred to in the text appears to have been made after her husband's death and during the de facto rule of Lord Fairfax to whom the Island had been granted by the English Parliament.

Note 2: The Act of Settlement applies to the Lord's and Abbey Lands only.

Note 3: The Barony tenants here referred to are those of the Bishop's Barony and the Baronies of Bangor and Sabal, St Trinion and St Bees. The expression "Abbey Lands" as used since the dissolution of the Religious houses included the Baronies of Rushen Abbey, Furness Abbey and the Priory of Douglas.

Note 4: The Moars as to the Lord's lands, and the Sergeants in the other Lordships or Baronies perform the duties described in the text. There is a Moar or Sergeant for each Setting Quest District, and there is such a District for the Lord's lands in each of the ancient Parishes. But in the Abbey Lands and other Baronies a Setting Quest District comprises in some cases lands in several Parishes. Each Moar and Sergeant (actually serving as such) may have a deputy or assistant called a "Runner."

Note 5: The liability mentioned in the text does not apply to the Quarterlands in the Bishop's Barony. The Bishop, the Lord of the Barony, appoints the Sergeants.

Note 6: The Seneschal is appointed for all Crown Lordships or Baronies of each of which (other than the Lords lands) there was formerly a Steward, which designation is still applicable to the Bishop's Barony.

Note 7: In the Bishop's Barony there are no alienation fincs but there is one payable on tbe installation of each Bishop.

Note 8: The expression "Customary Lands" is applicable to the lands in all the Lordships or Baronies.

Note 9: Or of St Bede or Bees. Such a tenure it not unknown in Great Britain. The Staff Lands in Kirk Patrick are in the Bishop's Barony, and arc subject to a customary rent. It may be that the custom as to the Staff was commuted for a yearly rent, whereas it is probable that in Maughold there was no money commutation of the service, which in course of time became obsolete, and legal evidence of the custom not being available, that the lands for which no customary service is rendered, have lost their character of customary lands and grown as it were into freehold lands. The holders of the Maughold Staff Lands now claim to be freeholders, and each holder asserts his right to the mineral within his own lands.