All the other entries are similar in form, except a few granting life estates, and they include, so far as is known, every quarterland, mill, cottage, and then existing intack in the whole island. It may be noted by the way that this Roll is reminiscent of the Orkney rentals of 1497 to 1503, which present curious and almost startling resemblances to ours. Without going into them in detail, it may be further noted that the circumstances of the establishment of these rentals by the earls and bishops of Orkney, as soon as that island fell under Scotch rule, with the indirect aim of eventually feudalizing the Udal lands in pursuance of the known policy of the laws of Scotland, are suggestive of a similarity in the circumstances of the original establishment of the Manx Manorial Roll, possibly under the provision of the treaty of 1266 already quoted. The so-called Statutes and Ordinances of 1417, 1419, 1422, 1577, and 1582 afford abundant corroborative evidence of the uncertain nature of the inhabitants' rights (if any there remained) in their lands. Without making extended quotations, on reference to ss. 2, 3, 4, 5, 6, 9, and 12 of the declaration of 1417; ss. 7, 47, 48, 98, and 99 of that of 1419; and ss. 15, 16, 17, 26, and 30 of that of 1577, we gather (a) that every one was bound to keep watch and ward throughout the land, and must be ready at the lord's calling, under the heaviest penalties; (b) that no one could leave the island without licence, whether he had paid his rent or not; (c) that no one could enclose or occupy the commons without paying the annual value thereof to the lord, and that all lands were liable to the payment of rent to the lord. [This rent, which was payable at the lord's castle in kind, has been computed to be approximately equal to the full rackrent value of the land]; () that every one (including an alien coming to live in Mann) was liable to be set by force in the lord's land by the Sett Enquest, who were responsible for the rent in case of failure on the part of the person so set to pay; and that every farmer's eldest son was liable to be taken from his father's farm and set by force in the holding of any tenant who became insolvent; (e) that the lord's deputy was to see that the land setting took place before midsummer, and the Sett Enquest to see that every one so set occupied and manured his land and remained on it, and paid his rent or gave sureties for its payment; (f) that the fences were down, and the boundaries of farms largely obliterated, frequent commands being laid on the tenants to restore them; (9) that in 1422 the inhabitants set more store by their goods. than their farms, and that it was a matter of frequent occurrence for tenants to fail to make sufficient profit to pay their rent; and lastly (7) that all tenants paying 6d. rent must attend the Manorial Court for his district (or Sheading), under penalty of a fine. In 1582 the lord's officers declare in so many words (as we have already seen) that the landholders were but tenants of the lord proprietor. And Deemster Parr, writing in the latter end of the seventeenth century, in the passage already quoted, describes the tenure of his day as akin to copyhold. XXIV. The Growth of Customary Freehold and Creation of the Present Tenure. I have left myself but little space to describe the gradual enfranchisement of the Manx nation and the re-establishment of their rights in the land, although in a modified form, and under a different designation. Notwithstanding the form of holding, the custom of the country, as recognized by the customary laws and decisions of the courts, eventually construed the tenure to be in effect an estate of inheritance descendible from ancestor to heir, and as such the estates were held from generation to generation, until at last the very form of holding by lease disappeared from the Manorial Rolls. We have seen that precisely the same process established the rights of the copyholders in England, and there is no reason to suppose that it differed in this island. About 1643, and subsequently, the tenants, in order to get rid of several customary burdens, such as the lord's right of preemption or being victualled at a certain low price, 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. After the practice of leasing had continued for some time, the lords of the island (it is said) began to dispute the permanency of the holdings. The tenants protested; the lords held firm; the dispute grew more and more acrimonious, till Rebellion began to break out all over the island. At length the lords gave way, and in 1704 an Act of Tynwald was passed by which the estates of the landholders were settled and confirmed. This Act, which was re-enacted and confirmed in 1777 after the revestment of the island in the Crown, is to this day considered the basis of the tenure of Manx estates, excepting the estates of the baronies before mentioned. The legal writers lay it down that the tenure settled by the Act of 1704 is akin to that known as customary freehold in England. That is to say, the Manx customary tenant (or owner) is entitled to an estate freehold in quantity, but not in quality, and to the complete enjoyment of the land subject only to the reservation of all royalties, mines, and minerals of every kind, quarries and delf of flag, slate, and stone, to the lord, and to the payment of the annual chief rent, of a small fixed fine on every alienation and descent, to the lord, and to certain other customary burdens. Of these latter, the only one worthy of notice is that of the office of Moarship, the duties of which are principally the collecting of the chief rents and fines of the parish, in which the lands lie, from the other customary tenants therein. The tenant is also entitled to dig, raise, and dispose of stone and slate in his own lands for his own use or the improvement of his own and his neighbours' estates, but he cannot make merchandise of them unless licensed by the lord. He is also compelled to permit the licencee of the lord to quarry on his lands, and, if there be a quarry already opened, to permit other tenants to use it on payment of reasonable compensation for surface damage. This burden, and the fact that all other materials (including gold, silver, copper, lead, tin, and so forth) in or under the tenant's land belong to the lord, and cannot be worked by the tenant save by licence from the lord, and on payment to the latter of a heavy royalty, constitute the main practical disabilities under which the owner of land in the Isle of Mann labours, as distinguished from his freehold brother in England. In practice, these are not found to discourage either Englishmen or Manxmen from investing their money in the purchase of land and houses in this island, and from lending money on them as freely as on freehold land in England. Perhaps one explanation is to be found in the comparative simplicity and cheapness attending the transfer of land here. All original deeds affecting real estate being registered in the Land Registry at Douglas, and ranking (broadly speaking) according to priority of registration, a great defect in the English system is avoided, and the cost of searching and verifying the title is proportionally reduced. The freehold of the land being in the lord, and certain English statutes such as the Statute De Donis, which was the origin of the estates tail, and the Statute of Uses, which created the extraordinarily complicated limitations to uses-not affecting this island, conveyancing is both simpler than in England, and is free from many anomalous technicalities attending the real property law of that country. The system of mortgaging is simpler, foreclosure is unknown, and the mortgagee's remedies are both cheap and expeditious. XXV. Conclusion. A few words by way of conclusion. I shall be blamed, no doubt, for daring to form an opinion upon a quaestio vexata which has been so discreetly ignored by the legal writers, and so variously interpreted by the talented laymen who have affected to grapple with it. I care not. Certainly there be that delight in Giddinesse; And count it a Bondage to fix a belief'; but the present writer not one of them. And I believe that the true origin of the Manx tenure is to be found neither in the feudal system nor in the village community, but in the pure Norwegian Udal, whilst I am equally certain that that tenure, already severely shaken by the Scots, became abrogated during the reign of the Stanleys, was for some time of a copyhold nature, and that the present land right has been created by the Statute of 1704, and is dependent on that and on that alone. Whether it can now be properly called customary freehold, and · described as akin to customary or conventionary freehold as it exists in many parts of England, is a matter of very grave doubt, since it is difficult to see how a statutory tenure can properly be ascribed to custom, and it is certain that the incidents of that tenure are not in every respect identical with the customary or conventionary freeholds as known to the English law. However that may be, it remains a matter of congratulation with all patriotic Manxmen that, in spite of oppression and tyranny, subtlety and device, their long struggle for the re-establishment of their original rights to the substantial ownership of their lands was crowned with complete success. REGINALD D. FARRANT. NOTE. Since this paper was written, the writer has come upon the report of a case in the Manx Court Rolls which seems to throw much light upon the theory of the original Udal tenure in Mann. In 1717, one Quilleash applied to the Baron Court for confirmation of a sale of quarterland from one Bell, whereupon, as it is recited, 'the same was objected against by John Skillicorn ye next of kin '; and the Court decided that the sale to Quilleash should be rejected, and that 'Skillicorn should have the preference paying ye same money.' A Statute of the year 1645— carefully read-seems also to confirm this view of the ancient customary land right. FOR MARITIME SALVAGE. OR the purpose of this inquiry, Maritime Salvage may be sufficiently defined as a service, rendered to save maritime property at sea, of such a nature as to entitle him who renders it to remuneration which the Court of Admiralty will decree in his favour. And the point to be elucidated is, how, in a Policy of Marine Insurance, the obligation to make good to the owner of the property salved what he has been called on to pay for this service, arises. Writing in 1664 Sir Robert Wiseman says 1: The Romans did so throughly see the necessity that lay upon men to perform mutual offices and kindnesses each to other that to encourage men the more to pay these reciprocal duties, so necessary to each others common being, the scope of their Laws tended to secure all men from sustaining any prejudice by being officious or active for the benefit of other men. If therefore in my friend's absence I expend money, or contract a debt upon myself to accommodate and improve his business, though I did it without his privity or knowledge, the Civil Law will see all that I have laid out shall be restored me, and will compell him to save me harmless, where either I have or can possibly suffer detriment for his sake. For "sicut aequum est" sayes Gaius, "ipsum actus sui rationem reddere et eo nomine condemnari, quicquid vel non ut oportuit gessit, vel ex his negociis retinet; ita ex diverso justum est, si utiliter gessit, praestari ei, quicquid eo nomine vel abest ei, vel abfuturum est "2 Iniquum est" sayes Gaius, "officium suum alicui esse damnosum "3; it is unreasonable that a man for his courtesie and goodness should reap a prejudice. Upon the equity hereof is that proceeding in the Admiralty Court clearly justified, whereby if a Ship being set upon by Pyrats or by enemies, shall be rescued by another ship seasonably coming to her rescue; it charges the ship that is thus redeemed with salvage money to the other that did so endanger herself, to preserve her; that recompense being but in lieu of all damages thereby sustained, and for future encouragement to others to fight in the defence of those that they see assailed hereafter. Upon the same equity is it, that when a ship is in danger to be cast away through a raging tempest, if to lighten the ship The Law of Laws, or The excellency of the Civil Law, by Sir Robert Wiseman, Kt., Doctor of Civil Law. London, 1664, at p. 90. 2 Digest, Lib. III, Tit. v, Lex ii, De negotiis gestis. 3 Ibid., Lib. XXIX, Tit. iii, Testamenta quemadmodum aperiantur, Lex vii. The text taken from an edition of the Pandects dated Lugdunum (Lyons), 1550, reads ' & sit iniquu, damnosum cuiquã esse officium suum.' Mommsen's text, as corrected in his notes, reads 'et est iniquum damnosum cuique esse officium suum.' |