The Scotch islanders are a law-abiding people, and patriarchal government sufficed. It was recorded of the inhabitants of Skye that, during a period of unusual distress and semi-starvation, not a single sheep was stolen. So keen is the sense of propriety in that island that a whole family has been known to slink away, unable to bear the disgrace brought upon them by an individual delinquent. Orkney and Shetland once possessed all the characteristics of a separate kingdom, the laws of no other countries being imposed upon them. There was none to dispute the laird’s right, and legal administration was entirely in his hands, except for the period that the islands were placed under episcopal rule. It is worth noting that the most famous of the governing bishops, Robert Reid (tempus 1540), also filled the high office of President of the Court of Session at Edinburgh, and he and his successors are said to have ruled with conspicuous mildness and equity.
We may now turn to one or two English islands before devoting attention to the most important examples of all—those supplied by the Isle of Man and the Channel Islands. The Isle of Wight is only regarded as “separate” from Hampshire for one legal purpose, so far as I have been able to ascertain. It is part of the “county of Southampton” for all purposes except the land-tax payment: for this it has a separate liability. But the land-tax divisions are the most irregular, and the least uniform of any legal divisions in the country, and it is therefore not surprising that the Isle of Wight should in this respect be subject to peculiar usage. Purbeck is one of those “isles” in England which now depend more upon tradition for their designation, than natural accordance with the geographical definition. What is remarkable is that these “isles”—such as the Isle of Purbeck, the Isle of Ely, the Isle of Glastonbury, and the Isle of Meare—nearly all have certain well-established and recognised laws of their own for the little communities which dwell within their borders. The quarrymen of Purbeck consider themselves a race apart, and their guild is one of the closest and strictest character. Their homage is paid exclusively to the lord of the manor, and the “Marblers” claim to have received a special charter from King Edward. On Shrove Tuesday they elect their officers, and celebrate the occasion by kicking a football round the boundaries. One ancient custom observed on these occasions is to carry a pound of pepper to the lord of the manor, as an acknowledgement to him in respect to a “right of way.” Until comparatively recent times the government of the island was patriarchal in character. The Isle of Glastonbury had its “House of Twelve Hides” for the trial of petty cases in the locality, and tradition reports that unusually large dungeons were prepared for the immuring of those who offended in the renowned Avalonian isle.
The Isle of Man, when subject to the Kings of Norway, was a subordinate feudatory kingdom. It afterwards came under the dominion of the English Kings, John and Henry III., but passed afterwards to the Scotch. Henry IV. eventually claimed the little isle, and disposed of it to the Earl of Northumberland, but upon this famous nobleman’s attainder it went to Sir John de Stanley. Its government seemed destined to be unsettled, however, and though the title of king was renounced by the possessors of the land, they maintained supreme and sovereign authority as to legal process. In the Isle of Man no English writ could be served, and as a result it became infested with smugglers and outlaws. This was unsatisfactory, and, in 1765, the interest of the proprietor was purchased, in order that the island should be subject to the regulations of the British excise and customs.
According to Blackstone, than whom there could be no greater authority, the Isle of Man is “a distinct territory from England, and is not governed by our laws; neither doth an Act of Parliament extend to it unless it be particularly named therein.” It is consequently a convenient refuge for debtors and outlaws, while its own roundabout and antiquated methods of procedure have been found to favour the criminal rather than to aid prosecutors and complainants. Perhaps this was never more vividly illustrated than in the recent case of the murderer Cooper, who profited by the cumbrous and lenient processes of Manx law to the extent of getting an atrocious crime reduced to manslaughter. The laws have often been amended. Prior to 1417 they were “locked up in the breasts of the Deemsters,” but Sir John Stanley found that so much injustice was being done under the pretence of law, that he ordered a promulgation to be made. But “breast laws” continued to be administered for another two centuries, until Lord Strange, in 1636, commanded that the Deemsters should “set down in writing, and certify what these breast laws are.” In 1777, and also in 1813, the laws of the island were again amended, and every criminal was allowed three separate and distinct trials before different bodies. First the High Bailiff hears his case, then the Deemster and six jurymen, and, thirdly, if he has been committed for trial, he is brought before the Governor and the Deemsters. By the time the case gets to the final court it has usually been “whittled down” to the smallest possible proportions, and doubts have often been raised whether justice is not marred by misplaced and unwarranted lenity. Another strange practice is that the Manx advocates combine the parts of barrister and attorney. The law is hard upon debtors, who can be lodged as prisoners in Castle Rushen, if it is suspected that they are about to leave the island; but there are no County Courts. On the other hand, there are Courts of Law of almost bewildering variety—the Chancery Court, the Admiralty, the General Gaol Delivery, the Exchequer, the Ecclesiastical, the Common Law, the two Deemsters’ Courts for the north and south of the island, the Seneschal’s Court, the Consistorial, the Licensing, and the High Bailiff’s. Each sheading, or subdivision, has its own coroner or sheriff, who can appoint a “lockman” as his deputy; and each parish (there are seventeen) has its own captain and a “sumner,” whose duty in old times was to keep order in church and “beat all the doggs.” Manx law had, and perhaps to some extent still has, a similar reputation either for allowing criminals in the island to escape easily, or for permitting English criminals to remain unpunished; hence the old ribald verse which represents the Devil singing—
“That little spot I cannot spare,
For all my choicest friends are there.”
The Deemster’s oath is a curiosity in itself:—“I do swear that I will execute the laws of the isle justly betwixt party and party as indifferently as the herring’s backbone doth lie in the midst of the fish.” Formerly the elective House of Keys possessed judicial as well as legislative functions, but this power was taken from it by the Act of 1866. Laws are initiated in the Council and the Tynwald Court, which promulgates them, consists of the members of the Council, and the House of Keys, who unite for the occasion. Tynwald Day as described by Mr. Hall Caine is an interesting, historic, but not an impressive ceremony. A thousand years ago the Norsemen established a form of government on the island, and every fifth of July the Manxman has his open-air Parliament for the promulgation of laws. But it is a gala day rather than a day of business. “Reluctantly I admit,” writes Mr. Hall Caine, “that the proceedings were, in themselves, long, tiresome, ineffectual, formless, unimpressive, and unpicturesque. The senior Deemster, the amiable and venerable Sir Wm. Drinkwater, read the titles of the new laws in English. Then the coroner of the premier sheading, Glenfaba, recited the same titles in Manx. Hardly anybody heard them; hardly anybody listened.”
The Channel Islands were part of the Duchy of Normandy, and their laws are mostly the ducal customs as set forth in an ancient book known as “Le Grand Coustumier.” Acts of the English Parliament do not apply to these Islands unless specifically mentioned, and all causes are determined by their own courts and officers. In Mr. Ansted’s standard work on the Channel Islands (revised and edited by E. Toulmin Nicolle, 1893), a long chapter is devoted to the whole subject, and it is so complete and well expressed that I venture without much alteration of phraseology to summarise its leading points. Jersey and Guernsey have diverged greatly from each other in their legal customs, and it is also curious to find that each of the smaller islands possesses its own particular constitutions and courts. The rights and customs of the “States,” which are an outcome of the mediæval Royal Court, have constantly undergone modification and have been remodelled, but they retain many of the ancient characteristics. The Bailiff (Bailli), or chief magistrate, is the first civil officer in each island, and usually retains his office for life. He presides at the Royal Court, takes the opinions of the elected Jurats, and when their voices are equal has a casting vote both in civil and criminal cases. The Bailiff is not required either in Jersey or Guernsey to have had a legal education. He is appointed by the Crown, but has usually held some position at the island bar. Formerly the advocates practising in the court of Jersey were nominated by the Bailiff, and were limited to six in number. In 1860, however, the bar was thrown open to every British subject who had been ten years resident in the island, and who was qualified by reason of being a member of the English bar, having taken a law degree at a French University, and having passed an examination in the island. In Guernsey the advocates are also notaries, and frequently hold agencies. The judicial and legislative powers in Jersey are to some extent separate, but in Guernsey they are intimately associated—a fact which accounts for much of the difference in custom in the two islands.
The ancient Norman law contained in “Le Grand Coustumier” dates back to the thirteenth century, was badly revised in the time of Queen Elizabeth, and became the Code. Trial by jury was established in 1786, and the laws on the subject have undergone considerable change. There is a committing magistrate, and the trial takes place at the Criminal Assizes of which there are six in the year. The jury numbers twenty-four; if twenty agree, the verdict is taken; if less than twenty the prisoner is set free. Minor offences are referred to a court of Correctional Police presided over by a magistrate who is independent of the Royal Court. The same magistrate presides over the court for the recovery of small debts, and there is no appeal from his decision. Then there are subsidiary courts for various police purposes, while the Court of Héritage entertains suits regarding real estate. The arbitrary operation of these Courts may have very evil results, especially for strangers who are unlearned in the peculiarities of Jersey law. I find a striking example of this in a magazine of June 15th, 1861, in which a hard experience is detailed with comments which appear to be fully justified by the circumstances. The writer says:—
“Before leaving England I had had a serious quarrel with a former friend and medical attendant, and no long time elapsed after our arrival in the island, before this gentleman sent me in a bill of monstrous proportions—a true ‘compte d’apothecaire’ as the French express it. At that time I was quite ignorant of the singular constitution of Jersey law, and how it placed me in the power of any man who chose to sue me whether I owed him money or not. I wrote to the doctor, refusing to pay the full amount of his claim, and referring him to a solicitor in London. He was, however, better acquainted with the Jersey law than myself, as the result will show. Here, before proceeding with my story, I will enter into some explanation of the law of debtor and creditor as it exists in Jersey. This law enables the creditor to enforce his demands summarily, depriving the party sued of his liberty, and leaving him in gaol till the costs of his imprisonment have swelled the amount to be paid: and further, supposing the defendant ultimately gains his suit, and proves his non-liability, no damages for false imprisonment are obtainable. The law leaves him no remedy, for the plaintiff makes no affidavit; and a simple letter from England, requesting a Jersey advocate to enforce payment of a claim, is enough to cast the defendant at once into prison, prior to any judicial investigation into the merits of his case.
“Thus, in Jersey, every man (unless he be a landed proprietor) is at the mercy of every other man, both in the island and out of it. In short, one man can arrest another simply by drawing up an imaginary account on a common bit of paper, and handing it to the nearest lawyer, who will send his clerk with the sheriff’s man and imprison the unfortunate victim in default of immediate payment. What is worse still, an arrest can be carried into effect, by means of a simple letter sent through the post. The exception in favour of land-owners of course includes the owners of house property, an exception which mostly benefits Jersey-men, as few but natives possess property in the island. It is only a proprietor who must be sued before he can be imprisoned. If the Jersey laws confined the persons merely of strangers sued by the inhabitants of the island, in the arbitrary manner described, the justice of such a practice might still be defended on the plea of preventing them from leaving the island; but no excuse can be found when the Jersey law is made an instrument in the hands of strangers, living out of the jurisdiction of the island, and when it is used to enforce payment of debts incurred in another place, and in which no inhabitant of the island is interested, and when (as sometimes happens) it is employed as a means of extortion. In the first case it can be urged that, at least, it gives protection to the islander, which may be all proper enough, though the system is liable to abuse. In the second, the injustice and folly of the law is flagrant. By what right or reason ought the Jersey code, without previous inquiry, to deprive one man of his liberty at the demand of another, when both are strangers, and when the dispute relates to matters wholly beyond its pale, and in reference to which it has no means of obtaining information on oath? Yet such is the case, and thus the Jersey law is converted into a mere tool of iniquity and oppression. In speaking of this strange anomaly in Jersey law, I am not referring to bills of exchange, or to securities of any sort, but merely to simple debts, free from any acknowledgment or signature whatever. In any other Court, such claims would not be entertained for a moment. Surely the law is barbarous enough for the people of Jersey, without its consequences being extended beyond its circumference. But, as matters stand at present, the case stands thus: A and B fall out together. Now B is a rogue. They go to law together, and B demands of A more than he is entitled to. The courts in England are about to decide upon the merits of the case. Meanwhile B learns that A is gone to Jersey for a short time on business, perhaps connected with this very affair, such, for instance, as looking up an important witness. What does B do? He immediately sends off a letter enclosing his little account to a Jersey lawyer, instructing him to demand payment or lock up A forthwith. The lawyer obeys, of course; A storms—protests—all in vain. He is incarcerated, and is told he may explain as much as he likes afterwards; but, in the meantime, must go to prison, or pay. At last poor A, whose liberty is important to him, wearied with the delays which it is the interest of the Jersey lawyers to raise in his suit for judgment, pays the demand into court (au greffe) to be adjudicated on—costs of law, costs of imprisonment and all. The latter item includes 10s. every time the prison door is opened to let him pass on his way to court—a journey he has too often to perform without much approach to a dénoûment, and whither he is obliged to go under escort like a criminal; and this process is repeated several times, without the cause even being called on for hearing. Worst of all, when A comes out, he has to decide upon the merits of the case. Meanwhile no remedy against B, who, of course, being satisfied, withdraws his suit at home.”