"… [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.

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."

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, 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 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 —

(a) the Enabling Act applies to the Isle of Man in matters spiritual where circumstances so permit;

(b) unless there be some special difference in the Manx ecclesiastical law or that local circumstances make it impracticable, Measures taking effect under the Enabling Act bind the Diocese of Sodor and Man in all matters spiritual;

(c) in all matters temporal the Diocese of Sodor and Man is not so bound unless specially named in any Act or Measure or by necessary implication it is held to apply thereto; and

(d) it will be a matter for decision in each case whether and how far a Measure of a mixed spiritual and temporal nature binds the Diocese of Sodor and Man.

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 —

"(a) The financial affairs of the Church including the collection and administration of all moneys which may be raised for Church purposes and the keeping of accounts in relation to such affairs and moneys;

(b) The care maintenance preservation and insurance of the fabric of the church and the goods and ornaments thereof;

(c) The care and maintenance of the churchyard (including a closed churchyard) with all rights now possessed by the churchwardens to recover from the overseers the cost of maintaining a closed churchyard;

Provided that nothing herein contained shall affect the property of the churchwardens in the goods and ornaments of the church or their powers duties and liabilities with respect to visitations."

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. 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: