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

[317]

TWENTY-SIXTH DAY.

Palace Chambers, 9th March 1882.

Present:

THE ARCHBISHOP OF CANTERBURY IN THE CHAIR

Marquis of Bath Dean of Peterborough
Earl of Devon Canon Westcott
Earl of Chichester Canon Stubbbs
Bishop of Winchester Dr Deane
Lord Blachford Rev. Chancellor Espin
Lord Coleridge Rev A. C Ainslie
Sir R A Cross Mr A Charles
Sir Walter C James Mr S Whitehead

SIR JAMES GELL, Attorney General of the Isle of Man, and MR SAMUEL HARRIS, Diocesan Registrar of the Diocese of Sodor and Man, called and examined.

6662. (Archbishop of Canterbury to Sir James Gell.) You wish to be examined as to the operation of the Reformation Statutes in the Isle of Man. There is some difference in their application?

With respect to that, some of the Reformation Acts at any rate extend to all parts of the King's dominions, and therefore it may be said that it included the Isle of Man. I would explain the position of the Isle of Man at that time. The Isle of Man, when those Acts were passed, was under local sovereigns, and the lawyers in the Island always disputed the validity in the Island of Acts of Parliament though professedly extending to the Island. The King of England was the supreme sovereign of the Island, and there was an appeal from all the Courts of the Island through the local sovereign to the sovereign of England. I do not know that there is much more to be said on the subject of the Reformation Acts, but I suppose those Acts which one may call the Reformation Acts would be particularly the 24th of Henry the Eighth, chapter 12, relating to appeals to Rome, and the 25th of Henry the Eighth, chapter 19, relating to the submission of the clergy. They extend to all the King's dominions, but I may observe with reference to some of the Acts passed at that time, which are so expressed, it would be very difficult to have worked them in the Island, because of the difference which has always prevailed in the procedure in the Isle of Man from that in England; still the fact is, they extend to all the King's dominions, and it has been acknowledged that no Act is of any force in the Isle of Man unless the Isle of Man is expressly named. Then with respect to the Acts of Uniformity, the first and the second, in the reign of Edward the Sixth are expressed to extend to all the King's dominions, and so is the third Act, that of Elizabeth. The Act of Charles the Second does not extend to the Isle of Man.

6663. And it has been treated as not extending to [318] the Isle of Man?

There has never been a case pending under it in the Isle of Man, to my knowledge. Mr Harris, who is the Registrar, knows more about the records; but I do not believe there ever was, and as far as I have ever heard, a question arising on it. I may say that the Prayer Book to which the Act of Charles the Second related is used in the Isle of Man.

6664. Then what is the Court of First Instance in the Island for ecclesiastical offences?

There is the eccles­iastical court, the judge of which in the Island is called the Vicar-General. He is the same as the Chancellor of a diocese in England. The eccles­iastical court in the Isle of Man still retains very extensive temporal jurisdiction; besides over purely spiritual cases, over all the cases of probate and wills, and a great variety of matters which never obtained in the English eccles­iastical courts, since the Reformation at any rate. I had to draw up for the Government in 1876 a paper on the subject of the eccles­iastical courts, and it occurred to me before leaving home that it would be of use to the Commission. It gives various matters within the jurisdiction of the eccles­iastical courts in the Isle of Man.

6665. I should think you had better put it in [see end of witness's evidence, Note A.].

It is a letter to the Governor of the Island which I was required to write. That letter, of course, goes beyond the scope of the inquiry by the Comm­issioners; but the object was to consider the mode in which the temporal jurisdiction of the eccles­iastical courts could be transferred to the temporal courts. There is one matter of jurisdiction which the Manx eccles­iastical court has, and which I do not think the English eccles­iastical courts have - it does not refer to what is under consider­ation, - that is, the power to compel persons to maintain their poor relations. It was omitted from that letter. There is an appeal from the Vicar-General's court in matters purely eccles­iastical to the Archbishop of York, and in other matters to the Court of Appeal of the Island, which is called the Staff of Govern­ment.

6666. In the life of Bishop Wilson he is represented as administering justice himself:

Yes, the Bishop often sat in court.

6667. Then he has full power to sit with the Vicar-General?

Yes, he has full power to sit with the Vicar-General, and he has actually sat with him. I have known it done in my own time by Bishop Short, who afterwards went to St. Asaph; he very often sat in the courts, but I do not think his successor did. Lord Auckland did occasionally; but I have known sometimes the Bishop sit alone - when the Vicar-General has been ill, or absent from the Island, and there has been some matter pressing.

6668. Then there is the diocesan court within the Isle of Man, and then there is an appeal to the provincial court?

An appeal to the provincial court in ecclesiastical matters, and from the provincial court to the Sovereign in Council. As to the mode of enforcing the judgments of the eccles­iastical court, I fancy there is a very material difference there from what there is in England, that is, so far as I understand it in England.

6669. How do you enforce them?

The judgment or order of the eccles­iastical court has to be served by the officer of the ecclesiastical court, - the Sumner, who is a sworn officer, - and if the officer can certify of his own knowledge disobedience to the judgment, he certifies the matter to the Vicar-General, and then in either case he presents, as it is called, the contempt to the Governor of the Island. The Governor then issues a writ which we call a writ of contempt, which is enforced by a constable, and the offender is put into jail. Then, the eccles­iastical court - and this is where the difference exists between that and England - has no control over it. After the presentment the offender is imprisoned by the order of the Governor of the Island.

6670. And no-one but the Governor of the Island can let him out?

No-one but the Governor can let him out.

6671. The eccles­iastical court cannot move in the matter?

No, any application must be made to the Governor of the Island. He enquires judicially into the matter, and of course, in a matter of contempt, he imposes such terms as he may see best in order to ensure obedience generally by way of security being given, but the eccles­iastical court has no control. The Vicar-General himself is in a peculiar position - he does not hold his office for life; on the death of the bishop, or on a vacancy in the see, the office is at an end.

6672. It is a patent office, I suppose?

Well, the Vicar-General holds it during the pleasure of the bishop, but his office is at an end on the see becoming vacant, and the Crown has the appointment of the eccles­iastical judge during the vacancy of the see, which is exercised by the Governor; and then, on a bishop being appointed, he appoints, and practically the same man is appointed.

6673. But the old Vicar-General goes out?

The old Vicar-General goes out.

6674. And a new one comes in during the vacancy?

Yes.

6675. And then he goes out and a new one comes in on the coming in of the new bishop?

Yes.

6676 (Chancellor Espin) Does that arise from the absence of a dean and chapter?

We have a cathedral which is in ruins at present. We no record of a dean and chapter; but I do not think that is the cause of it. I think the cause is in the ancient sovereigns of the Island, who exercised large jurisdiction, and they retained that part.

6677. With us it is held that the chancellor appointed by the bishop would only hold office during the bishop's life, unless his appointment was confirmed by the dean and chapter?

I cannot answer as to that, but we have no record of a dean and chapter having existed in the Isle of Man.

6678. (Archbishop of Canterbury) I see the Island feels some objections to the cases under the Public Worship Regulation Act? That is the only Act relating to the discipline of the clergy that has ever extended to the Act?

That is the only Act relating to the discipline of the clergy that has ever extended to the Isle of Man. The Clergy Discipline Act does not extend to the Isle of Man, and there is no other Act as to discipline which does. The insular courts act in matters of discipline under the Insular law. Some objection was made to the Public Worship Regulation Act, but I fancy the representations were not attended to at the time; there is a strong feeling in the Island against including the Isle of Man in these Acts of Parliament. Of course we have our own legislature and can deal with these matters. That is one thing, perhaps, that causes the feeling, but the great thing is the expense of proceedings. In the Isle of Man the expense is so very small as compared with than in England.

6679. So that an eccles­iastical suit is not an expensive luxury in the Island?

Certainly not.

6680. (Bishop of Winchester) You have never had a ritual case, have you, under this Act there?

No, we never had a ritual case, but of course it might arise. There is another thing, and a very serious one, which might arise under the Public Worship Regulation Act, although it is not within what was contemplated by that Act, and that is as to the fabric of the Church. These cases under the Public Worship Regulation Act may be removed from the jurisdiction of the Insular Eccles­iastical Court, and they may be very simple matters, and they may have to go to York. We have had small cases in matters relating to the fabric, and the removal might be a very serious matter.

6681. Then if the Clergy Discipline Act does not apply to the Island, how is it that your cases would go to the Privy Council?

Purely eccles­iastical cases go by appeal to York, and from thence to the Privy Council, or rather, to Her Majesty in Council.

6682. Then how would it get there is the Clergy Discipline Act does not apply to the Island?

There [319] is an appeal to the Archbishop of York, and from the Archbishop to Her Majesty in Council.

6683. Then you think they go from York by the Clergy Discipline Act?

No, not by the Clergy Discipline Act, but by the ancient law. I am only speaking of Manx cases.

6684. You said the Clergy Discipline Act does not apply to the Island?

It does not.

6685. Then I want to know how these cases get to the Privy Council?

Suppose an appeal in a case from the Isle of Man to the Archbishop of York in his court, then either party can appeal from that court to Her Majesty in Council. The right of appeal does not depend on the Clergy Discipline Act, but on the old law to the Island in relation to those matters.

6686. The old law would send you to the delegates?

Previous to the Privy Council. But I suppose heard by the delegates were appeals to the Sovereign.

6687. Yes?

Probably so. I know there is an appeal to the Privy Council from the Archbishop of York.

6688. (Lord Coleridge) Is there any difficulty. my Lord Archbishop? I suppose there it is as before the Clergy Discipline Act was passed. There was a common appeal to the archbishop, and from the archbishop to the delegates, and the Privy Council had all the jurisdiction that the delegates had?

Yes, I know that there has been an appeal to York and an appeal to the Judicial Committee of the Privy Council from York in a Manx will case. Then as to the Book of Common Prayer were are in a very peculiar position, and perhaps I ought to mention the difficulty which arises from the way in which the Island is sometimes brought into Acts of Parliament relating to the Church, and in others is left out, and this places the Island in a very awkward position in any point of view. The Act about the subscription of the clergy, passed not very long ago, extends to the Isle of Man, and the clergy have to assent to the Book of Common Prayer, but the Book of Common Prayer has never been legalised in the Island by any Act whatever.

6689. (Canon Stubbs) Would it not depend upon the authority of the bishop to lay doen the ritual in his own diocese?

I may mention as to that, that Bishop Wilson evidently took that as his view of the law in the Isle of Man. I rather think he did not look upon the Act of Uniformity passed in the reign of Queen Elizabeth as including the Isle of Man, because he gave directions about public worship frequently; and we use to this day in the Litany a suffrage, introduced by him, which is not used in England. We pray, after the words "That it may please thee to give and preserve to our use the kindly fruits of the earth," "and to restore and continue to us the blessings of the sea". The great point is that we think the present position of the Island in these matters is most unsatis­factory - the way in which some of these Acts of Parliament extend to the Island and the others do not. At the same time the feeling in the Island is strongly that we ought to be omitted from the Acts of Parliament, because of both the inexpediency and the expense. No doubt, if our suits are removed to England in the first instance, it will oblige a large outlay, whereas the expenses of suits in the Island are comparatively small.

6690. Have there been any cases carried to York by way of appeal since the passing of the Public Worship Regulation Act?

No. We have not had a ritual case. There has never been one. It might arise; that is all.

6691. Nor any case about faculties?

None whatever.

6692. So that the grievance is merely a prospective one?

It was a prospective grievance represented to the Home Office at the time when the Public Worship Regulation Act was passed.

6693. (Sir R. A. Cross) So how was it dealt with?

I can hardly say. There was one change put into the Act. I think the Act requires a barrister-at-law should give an opinion on some point before it is entertained, and it was put into the Act that a Manx advocate should be in the same position as a counsel in England, or something of the kind. by a legal or natural person in the Island

6694. (Sir Walter James) Is the bishop of the Island of the same opinion as the inhabitants with respect to these matters?

I really cannot tell you.

6695. (Mr Harris) I think I may take upon myself to say that his Lordship is quite of the same opinion. He has no wish whatever to entail upon the people of the Island any additional expense in any proceedings at all in connexion with the diocese.

6695a. (The witness) With regard to the way in which the insular legislature has dealt with Church matters, I prepared, at the instance of Sir Richard Cross, when Home Secretary of State, a paper as to the powers of the legislature of the Island.

6696.(Archbishop of Canterbury) Will you put that in?

Yes. [See end of witness's evidence, Note B.]

6697. [To Mr Harris] Have you anything to add?

I do not know that I can add anything whatever to what Sir James Gell has said with reference to the appeal or the evidence your Grace wishes to elicit from us. I know that feelings are very strong in the Island that the people of the Island should not be included in legislative enactment which may take effect or be brought into the English Parliament, inasmuch as the expenses in the Island are so very simple indeed in comparison. Of course there are matters of weight moment there as there are here, in which expenses have to be incurred, such as disputed wills. These must in the course of events occur in every community; but the ordinary proceedings are very simple and can be modified and reformed by our old legislature in a more easy manner than it could possibly be done, with all submission, even by an Act of Parliament, because the wants of the people are so thoroughly known. and also the wants of the Island are so few, as was mentioned by Sir James Gell. The proceedings in the eccles­iastical court may be of a novel character. In the first place there is a summons and the bringing in of wills. There is a chapter court, which is all set forth in the document which sir James Gell has handed in, held every six months entirely to prevent any expense to the people in any way whatever. That is simply in proving wills and presentments, and the old system of churchwardens, which was so rife in Bishop Wilson's time, not perpetuated now, but still the system prevails that people are presented for fornication and a variety of offences every six months. A clergyman may be presented too by his own churchwardens. Those matters are very simple indeed, and no great expense is incurred in proceeding with them in the first instance. If there is a proceeding of weight or moment, it is at once transferred from the court of the Vicar-General to the consistory court, which is a court of record, and the proceeding is conducted with all solemnity and all the legal requirements of the proceedings, and eventually heard either before the Vicar-General or before the bishop who may then sit in the consistory court with the Vicar-General. Formerly we had two Vicars-General; now we have only one.

6698. The Vicar-General acts independently of the consistory court?

That is only in the ordinary proceedings, and in temporal matters where debts are proved against the estate of the deceased person. The bishop may take cognizance of those matters. You have a claim which is entered on the will or administration and a memorandum that so and so claims so much money. Time is allowed to prove that, and for persons resident in the Island they have to prove their claim within 12 months and a day after the death. Claimants off the Island are allowed three years before proving it. That is attended with very serious consequences to the people winding up the estate, but that of course is not the question before the Commission.

6699. (Lord Coleridge) Do I understand you to think that there should be no appeal?

Quite the [320] contrary. There ought to be an appeal to York, in matters of disputed wills.

6700. York you do not mind?

Certainly. I do not wish to interfere with our present arrangement, because it is so satisfactory. During the time that I have been registrar, 20 years, there has been no appeal to York.

6701. (Sir Walter James) Is the moral effect of this law supposed to be good in matters of presentment, if you go into that question?

It is a very serious one indeed if against a clergyman, but generally they are so frivolous in their character that they can not do any good.

6702. But the effect on the people themselves?

The effect on the people, yes. They are perfectly satisfied in every respect with the position they find the law in.

6703. (Chancellor Espin) You spoke of fornication being presented. I think the question meant, do you think the fact that fornication is presented in that way does anything to check immorality?

I do not think it has the slightest effect.

6704. (Rev. A. C. Ainslie) What is done?

The girl is brought up before the court and purges her contempt by standing in court and, upon affiliating the child, there is an end of the matter as far as she is concerned. Formerly, there used to be censures passed.

6705. Is the man presented?

Both may be presented.

6706. What is done?

There is an order of affiliation made, and an order granted for lying-in expenses and maintenance of the illegitimate child.

6707.(Chancellor Espin) Is drunkenness presented?

There is a different mode of dealing with it now, but formerly it was a matter of presentment.

6708. I suppose it is still possible to present a man for drunkenness?

Quite. The last case of a singular character for presentment was the case of a man who sold milk on a Sunday. His cart was seen going round on the Sunday, and he was presented for it, and it was laughed at in court, and there was an end to it.

6709. (Rev. A. C. Ainslie) You have cases of clergy discipline?

None I think for the last 30 years. Previously there is a long list of cases I have collected for the purpose, of offences against the Eccles­iastical Law on the part of the clergy, for which they were suspended at once, until the matter was inquired into.

6710. Were they proceeded against at once under the Clergy Discipline Act?

They were presented or brought up to the Consistory Court, and proceedings then had.

6711. Was there any preliminary inquiry?

The bishop makes preliminary inquiry.

6712. (Sir J. Gell) It is not required by law.

6713. (Rev A. C Ainslie) I want to know whether there is any preliminary inquiry before the man is brought into the Consistory Court?

That is a matter for private inquiry.

6714. And whether there is any power to prevent proceedings being taken?

No.

6715. (Sir J. Gell) If the churchwardens present, the bishop could not prevent the churchwardens proceeding with the presentment against a clergyman.

6716. (Rev A. C Ainslie) He could not prevent the presenting of a clergyman; but could he prevent the case being prosecuted?

6717. (Sir J. Gell) No, certainly not.

6718. (The witness.) It is not in his power. The presentment must go on.

6719. (Archbishop of Canterbury) The bishop has no power to deal with it.

He would have no power to deal with it, except judicially.

6720. Is there anything further you wish to add?

Nothing, except the protest we wish entered, as to Imperial legislation in reference to eccles­iastical matters in the courts of the Isle of Man.

6721. (Bishop of Winchester) I may say that the Channel Islands are in about the same condition as the Isle of Man. They have a separate legislature and distinct eccles­iastical laws, and they are rather dissatisfied as being brought into legislation by a side-wind under the Public Worship Regulation Act.

6722. (Sir J. Gell) Might I mention a matter in connection with that? I believe they claim in the Channel Islands that, even if an Act of parliament be passed extending to those Islands, the right of nullifying its effect by not registering it. In the case of the Burials Act, I think something of that kind was done.

6723. (Bishop of Winchester) They refuse to acknowledge an Act of Parliament unless registered. The Channel Islands hold that an Act of Parliament must mention them by name, or it is of no value whatever; and they deny, I think, that an Act of Parliament runs in the Islands unless it is registered there. I should like, by-and-bye, to be a witness in the box for five minutes myself, and tell your Grace what the state of the Channel Islands is.

6724. (Sir J. Gell) About that, when the Burials Act was under consideration of Parliament, the Islands were very much opposed to the Act. The Isle of Man was put into the Bill originally, and it was afterwards withdrawn: and the insular legislature passed a Burials Act of their own. But at the time I remember hearing that the Channel Islands would not take trouble about the English Act before it became law, but that they refused to register it, and therefore nullified it in that way.


Written evidence:


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