HC Deb 18 February 1824 vol 10 cc215-24
Mr. Curwen

rose, pursuant to notice, to move for documents relative to certain alterations which had been made by the duke of Athol in the Criminal Law of the Isle of Man. The question was of vital importance, not to that island alone, but to all the islands appertaining to Great Britain; for, if a change of this kind were allowed to be arbitrarily made in the Isle of Man, similar changes might be made elsewhere. He would, in the first instance, state what was the constitution of that Island. There was, first, a governor appointed by the Crown; there were also an attorney-general,-three dempsters who were law officers, a clerk of the rolls, a high bailiff, a bishop, and a vicar-general. These were the council of the governor. There was next the House of Keys, composed of 24 members. These formed a body, by the consent of which laws were altered, changed, and amended; and, having received the approbation of the Crown, those laws had full force and authority. The Keys were a Court of appeal from the decision of the dempsters, who were common-law judges: and for the purpose of deciding appeals from the inferior judges, had been accustomed for centuries to assemble in what was called the Tinwald Court. The duke of Athol had, however, entered the Tinwald Court some time since, and stated, that he was instructed, by his majesty's government, not to summon the Keys in future to attend the general gaol-delivery in the Tinwald Court. He informed them, that he would discontinue summoning them to act as a criminal court, by the order of the Secretary of State for the Home Department; and, in the same breath in which the communication was made, the Court was dissolved. Application was made, as it was a subject of such importance to the parties, that they might be allowed to discuss it; in order that they might remonstrate with the government, or appeal to this House. This was refused. Application was next made for a copy of the speech, which was promised: but, up to this day, he believed no copy of the speech had been granted. In this way he (Mr. C.) accounted for his not having introduced this subject by a petition, or a representation of the facts by the parties aggrieved. Now, a Court of Keys would soon be held; but in what situation would the judges be placed? The first step would be to demur to the Court's competence to try. The judges had, on the one hand, three or four centuries of precedent for proceeding as they had been accustomed to do; and there was opposed to them the ipse dixit of the governor; for they had neither the opinion of the secretary of state, nor of the law-officers of the Crown. Under these circumstances, the judges would be called on, contrary to the established form of law, to try prisoners. If they refused, they would be immediately placed in opposition to the governor, and might be dismissed without ceremony. There was no court in which they could be impeached—no place in which their cause could be argued. They might at once be dismissed for doing an act which they conscientiously thought right. One of them had already been removed, without any form of trial; and there was no court to which he could appeal. But, suppose the judges did not demur, and that any man was convicted criminally before them, and the sentence was carried into execution. Then he would say, looking to the decision of lord Mansfield, in the case of the imposition of the 4½ per cent duties, after a constitution had been given to the island where they were levied, that they ought to be indicted for a legal murder. He knew this had been described as an act of vengeance against the Keys, because they were not as subservient as they ought to be; but this was an erroneous view of the case. The Keys were no more than any other four-and twenty persons. It was, in fact, an attack on the rights of the whole people of the island. When the island was in the hands of one individual, who might appoint the law officers and turn them off as he thought proper—who also had the nomination of jurors, persons probably selected from his own under-tenants, over whom he had perfect control—was not the existence of such an establishment, to which there was an opportunity of appealing, of very great importance for the preservation of the rights of the people? Was it not, besides, a very salutary check on the ignorance of juries? He hoped government would suspend the assembling of the next Tinwald Court, until the law was clearly settled on this subject. The hon. gentleman concluded by moving, "That an humble Address be presented to His Majesty, that he will be graciously pleased to give directions, that there be laid before this House, Copy of the Instructions to his Grace the Duke of Athol, Governor in Chief of the Isle of Man, directing him to exclude the Keys from further attendance at Courts of Tinwald, for the purposes of General Gaol Delivery, agreeably to the ancient custom and constitution of the Island, which requires the concurrence of a majority of the Keys to confirm and sanction the verdict of the Jury.

Mr. Secretary Peel

said, he felt some difficulty in meeting this motion, because he had not only to contend with the hon. gentleman opposite as a member of that House, but he had also to contend with him as a key, and consequently under all the disadvantages necessarily arising from a want of the hon. gentleman's local information and experience. The hon. gentleman had dealt with this question both as a member of that House, and as a member of the insular legislature; and though he might feel satisfied that he should be able to answer the call of the hon. member in his more general capacity, he certainly did not feel himself equally prepared to contend with him in his capacity of Key. He had to observe, in the first place, that the form of the hon. member's notice was somewhat inaccurate. He had given notice that he meant to move for a copy of the Insinuations to the duke of Athol to make alterations in the Criminal Law of the Isle of Man. Now, who would not suppose from this notice, that he (Mr. P.) had given some arbitrary instructions to make an alteration in the criminal law of that island? He would shortly explain to the House the question upon which he was called upon to decide: it was a question of law, namely, whether the House of Keys, which was the popular branch of the legislature, was entitled to be called upon to act upon every jury trial that took place in the island. If, a the hon. member contended, the popular branch of the legislature was also, by the local constitution of the island, a branch of a criminal court, he (Mr. P.) would certainly give him an opportunity of discussing the policy of allowing a court to be so constituted; for he should, without delay, move for an act of parliament to deprive them of the right, and clear all doubts upon the subject. That the popular branch of the legislature should sit upon every jury trial, and control the decision of the jury, was so monstrous an anomaly, that it ought at once to be put an end to. The question of law, however, having arisen, as to whether the House of Keys did form a part of the Court of Gaol Delivery, he (Mr. P.) had referred the case to the Recorder of Liverpool, who was attorney-general of the island. That gentleman took the subject into his consideration, and gave a derided opinion, that there was no ground for such a claim of jurisdiction on the part of the House of Keys; and that a verdict delivered by a jury in the Court of Gaol Delivery, would be binding in point of law, without any reference to the Keys. The governor of the Isle of Man, however, wished to receive distinct instructions from the government on this subject; accordingly he (Mr. P.) had laid all the documents connected with the case, which were extremely voluminous, before the attorney and solicitor-general; who had confirmed the opinion which had been previously given by the attorney-general of the island. So far from having issued any arbitrary instructions, to make any alteration in the criminal law of the Isle of Man, he had merely transmitted the opinions of the law officers of the Crown to the governor-general. He had acted upon the best authority to which he could refer upon a point; and he had certainly no doubt himself, that the House of Keys did not form a part of the Court of Gaol Delivery. It was, undoubtedly, possible, that that opinion might be erroneous; but the proper course, by which that question could be tried, would be, to bring it, by way of appeal, before a higher court. Upon these grounds he should resist the motion of the hon. gentleman.—The second point of the hon. member's complaint would be disposed of in a moment. It was said, that one of the judges of this court in the Isle of Man had been removed from his office. The fact was, that the individual had been accused of corrupt conduct; and, on an inquiry, conducted before the council of the island, it had appeared that there was, at least, sufficient grounds for causing him to vacate his situation.—With respect to the third point dwelt upon by the hon. member—the residency of the Isle of Man attorney-general, he thought that it was dehors the question before the House, and ought to come on in the shape of a specific motion; at the same time he feared that the House of Keys would scarcely get a very eminent British lawyer (and with no other, for an attorney-general, as he understood, would they be content) to reside constantly in the Isle of Man for a salary of 500l. per annum. On the whole, it seemed to him that he had made out a full parliamentary ground for refusing the papers moved for by the hon. member.

Mr. Abercromby

said, that the argument on which his hon. friend relied, namely, the length of time during which the House of Keys had assisted in the administration of criminal justice in the Isle of Man, had received no answer from the right hon. gentleman. It had not been denied that their claim was founded in a long-continued usage.

Mr. Secretary Peel

observed, in explanation, that it was the opinion of the attorney-general, that the House of Keys formed no part of the court of gaol delivery, though it had been occasionally referred to in cases of corrupt finding.

Mr. Abercromby

said, that the point to which he was anxious to call the attention of the House, was the practice. This was stated by his hon. friend to have been a long and uninterrupted usage, and to this statement he had heard no contradiction from the right hon. gentleman. All that he could collect from his statement was this—that a doubt having arisen on the subject, and application having been made to him on the subject, he had called in to his assistance the opinions of the law officers of the Crown, and that the result of those opinions was, that the attendance of the House of Keys was an usurpation arising from an alleged necessity, and founded upon a supposition of corruption in the judges of the criminal court. But, this single fact alone showed most strongly the vast importance of the subject. On the one hand, we had a very narrow assemblage of people, who contended they had a clear and undisturbed right; and, on the other hand, a practice of some extent was admitted, the origin of which practice was founded upon the necessity of some control over a supposed corruption. Supposing, then, this to be the case, there arose the very material question, who were to be the substitutes? According to the statement of the secretary of state, the substitutes were to be the very judges who were considered so corrupt. This showed most strongly the strange administration of justice in that Island, for the purity of which, according to the existing practice, there seemed to be no security. But his next objection to the course which had been adopted, was a very strong one. Admitting that the opinion of the attorney-general for the Island, and the law officers of the Crown were correct, which he did not mean to doubt, still he should say, that in fairness these people had a right to be heard, before the decision of the secretary of state had been pronounced. The correct course would have been to have said, "This is our opinion; but if you wish, you shall have an opportunity of being heard." And even still he could wish the secretary of state would stop the proceeding, and give them an opportunity of being heard before the council. Only one side of the question had been heard, namely, that on the part of the Governor; and he therefore thought no further step should be taken, until the other had also obtained a hearing. The privy council, no doubt, would be the proper place.

The Attorney-General

said, that the case had been laid before himself and his learned colleague, and, upon a full inspection of the documents, they were clearly of opinion, that at no period in the history of that Island did the Court of Keys form a part, by right, of the court of gaol delivery; at no period did they form, of right, a constituent part of that tribunal. But the House of Keys, not at a very remote period, but about a hundred years ago, had usurped the right of arraigning the conduct, and summoning before them, and fining the court of gaol delivery, for whatever they considered improper. The hon. member asked, whether they did not attend the court? He answered "Yes;" but they had no power to do so. They were never members of that court, and the power which they exercised was an usurpation. He apprehended that the right hon. secretary of state, had never given any instructions on the subject. The opinion of the attorney-general of the Island was first taken; then it was considered advisable to ascertain whether the law officers of the Crown concurred with him; and, when their opinion had been taken, it was forwarded to the governor of the Island. His hon. and learned friend opposite had said, that these parties had a right to be heard; but the House must consider that this opinion to which he had adverted was given twelve months ago, and since that time an ample opportunity had been afforded them of making their appeal. But the hon. mover seemed to think that House a fitter tribunal to appeal to, than that which had been constituted by the law of the land. His opinion, and that of his learned colleague was, that the claim of the House of Keys was not founded in law; but, if others were of a different opinion, there was an obvious course by which that right might be fully ascertained.

Sir James Mackintosh

said, be had listened with great attention to the statement of his hon. friend, the mover, and to the explanations which had been given by the right hon. the secretary of state, and his learned friend the attorney-general, and he was reduced to the necessity of stating, that he was by no means satisfied with the explanations that had been given. He should leave out of the argument altogether the question as to whether the practice, contended for on the one hand, and opposed on the other, were or were not inconvenient or inexpedient. He did not object to the reformation of the practice, but to the mode in which it was attempted to be introduced. He and his friends objected to the measure, because there did not seem to be a sufficient degree of feeling for the claims of a respectable provincial legislature, which, although subordinate to parliament, had a right to substantial justice at their hands. He considered that his hon. friend was entitled to the gratitude of the country, as well as of that particular island, for bringing the question before the House; nor could he agree in the justice of the charge which had been made against him, of departing from the original notice of his motion; for surely so important an alteration in the only criminal court in that island was to all intents and purposes, a change in the criminal law of the land; and he thought the terms of the motion were perfectly applicable to such a change. His learned friend, the attorney-general, had said, that they had had ample time to appeal, as the opinion of the law officers of the Crown had been given twelve months ago; but his learned friend had not told the House at what time that opinion had been forwarded, or when the first step was taken by government. The formal notification which was given on the 9th of this month was what they had to deal with. His hon. friend, the mover, himself a member of the House of Keys, who was peculiarly bound to contend for their claims in parliament, and who might justly be supposed acquainted with the usage and practice of the island, had stood up in his place in the House, and stated that the usage had always been, that a majority of the House of Keys had been always essential to a decision of the court of gaol delivery. Their presence was always considered essential to the execution of the sentence of the supreme court. He only re-stated the opinion of his hon. friend, for he himself pretended to no information on the subject; but his learned friend had not contradicted that statement; for all he had said was, not that the practice did not exist, but that it was an usurpation. His learned friend had stated, that they were not members of the court; but the House had not now to determine whether, technically speaking, they were members of the court, but whether their concurrence had been considered necessary to the establishment of a verdict. And he should here take leave to say, that an usurpation exercised for a century was a matter not lightly to be dealt with, in considering a court of criminal judicature, and the privileges of a subordinate legislative assembly. It appeared to him, that the proper course would have been, for his majesty's privy council to have given them due notice, before they had pronounced their definite opinion upon the act, and have afforded them an opportunity of discussing the subject fully, and explaining their rights. The experience of the right hon. secretary must have convinced him how different a case it would have been if these parties had had a right of appeal before a judgment had been pronounced, instead of sending them before the privy council with a prejudice against them. He thought it a little too much to call upon the House to repose implicit confidence in the opinion of the attorney-general of the Island, or the law officers of the Crown, and particularly when all information on the subject was refused. He thought that in a case of so much importance, affecting the privileges of a legislative assembly, it would have been more becoming to have laid the information before the House. However, he did not mean to say that he might not hereafter be of opinion that the whole proceeding was right; but, as yet, he certainly felt that no satisfactory explanation had been given; and, if his hon. Friend should persevere in taking the opinion of the House, he should certainly give him the assistance of his vote.

The Attorney General

said, in explanation, that he thought he had given a full contradiction to the statement of the hon. mover, that the presence of the House of Keys, or a majority of them, Was at any time essential to the validity of any verdict. Such was not the case. On an inspection of the documents submitted to him, he was of opinion, that they had no such, right as that which they claimed.

Mr. W. Courtenay

said, it appeared to him, that the real question which the House had to determine was, whether his right hon. friend, the secretary of state, had acted properly in the course which he had pursued [cries of "no, no"]. He contended that it was; for all those who had spoken on the other side of the House, had put the question in that shape. What the secretary of state had to do was this: to declare how practically the judicature of the island was to be administered; and he had very properly, exercising a sound caution, intrenched himself under those wise guards which his situation afforded him. What was to be done? How was the governor to act? Was the administration of justice to stand still, or was the secretary of state to hesitate in giving him the best advice he could procure? It appeared to him, that he had no other alternative but the course he had pursued. The question was, whether the governor was bound to summon these parties or not? He should not discuss the question as to the propriety of the House of Keys forming a part of the criminal court. The only point was, whether they had exercised this usage rightfully, or whether they should be now deprived of it.

The House divided. Ayes 28: Noes 96.—Majority for the motion, 2.

List of the Majority.
Abercromby, hon. J. Lamb, hon. G.
Althorp, lord Monck, J. B.
Baring, A. Mackintosh, sir J.
Bright, H. Robarts, A. W.
Brown, D. Robarts, col.
Bury, lord Rumbold, C. E.
Calcraft, J. Tierney, right hon. G.
Duncannon, vis. Sefton, lord
Ellice, E. Wood, alderman
Grattan, J. Wrottesley, sir J.
Guise, sir W, Warre, J.
Gurney, Hudson Williams, John
Hamilton, lord A. TELLERS.
James, W. Curwen, J. C.
Kennedy, T. F. Hume, J.
Kemp, T. P.