The Isle of Man holds a unique place in English Legal History. From 1266 to the late 14th Century, the Island was alternatively ruled and vied for by Scotland and England. Eventually, the Island came under the rule of the English Crown, but never became part of the United Kingdom, and retained its own legal system, albeit strongly influenced, and at times determined, by English law. The Island today therefore is a self-governing Crown dependency.
The UK Government is responsible for the management of the Island’s defence and external relations generally. The UK Parliament maintains the power to legislate for the Island, although it is disputed whether Acts of Parliament are superior to Acts of Tynwald, the Manx legislature.
Manx Legal History and its inter-relationship with English Legal History is fascinating and is worthy of close study.
One hundred and fifty years ago, the Isle of Man carried out its first elections to the national legislature, the Tynwald. From the early 17th century the House of Keys, the lower chamber, had been elected by a partnership of the Lieutenant-Governor of the Island and the Keys themselves. The Keys would nominate two candidates to a vacancy, of whom the Lieutenant-Governor would elect one, almost invariably the first. Unsurprisingly, as Moore put it, the Keys became “a closed corporation … largely confined to a few leading families”.
The upper chamber of the Tynwald, the Council, consisted of the principal Crown officers of the Island. This matched a model to be found across the British Empire. A lower chamber elected by itself, however, was not to be found elsewhere. In 1837 Robert Peel described it as “[s]o anomalous a body as could not exist within the British Empire”. Certainly it contrasted sharply with contemporary elected assemblies in the Province of Canada (1841), and New Zealand (1853).
The catalyst for attention being directed at this anomaly was not a strict concern with Imperial consistency. Rather, during the nineteenth century there was an increased concern that Manx revenues were not being spent on projects to advance Manx interests, and consequent Manx pressure for reform. The old Manx constitution posed two significant obstacles to the granting of greater authority to Tynwald – the legislation which led to the 1867 elections dealt with these obstacles in order to allow the creation of distinctively Manx public finances controlled by Isle of Man based officials.
Firstly, enhancing the practical powers of the House of Keys while leaving them in the grip of a particular class of society was not acceptable to the Imperial government. This was particularly the case as the Isle of Man was already developing elected government at local level. An 1866 Act provided for popular elections to the House of Keys to be held in 1867, with the first elections taking place across 2-5 April.
Secondly, the Keys had an ancient, and distinctive, role as the ultimate jury of the Island. From 1601 the Keys sat in the Manx criminal court which dealt with felonies, responsible for punishing juries who gave a false and partial verdict. By 1823 they were seen as overreaching themselves, and delaying the court. In 1824, under orders from London, the Lieutenant-Governor manufactured a test case which, on reaching the Privy Council in 1824, confirmed that the Keys had no place in the criminal court. Even after their removal from this Court, however, the Keys continued to exercise their customary role as a jury of appeal in other cases, particularly serious civil cases. Numerous examples can be found of the Keys reversing the verdict of a lower jury, for instance in 1830 reversing the dismissal of an assault suit and awarding £100 damages plus costs to the plaintiff.
The Keys as a body could thus be responsible both for passing a law, and acting as appeal jury in a case turning on that law. Concerns were exacerbated by the role of individual Members of the Keys as important parts of the Manx establishment, particularly the legal establishment. G.W. Dumbell, for instance, had represented the plaintiff in a libel case against the Manx Sun. On appeal to the Keys, Mr Dumbell was part of the body which decided to increase the damages awarded to that plaintiff, his client, from 40 shillings to £100. The role of the Keys in jury trials was put forward at one point by the Keys as a reason why they should not be subject to election. Instead, the 1866 legislation removed them from the appeals process, and 1867 legislation introduced a new appeals procedure.
1867 is justly celebrated in the Isle of Man. It was an incomplete democratisation, but provided an essential foundation for extensive reforms in the century that followed.
Firstly, initially the electorate was very narrow, with an open ballot, and a franchise limited to adult males able to meet a high property qualification. Kermode has suggested that around 20% of the adult population were eligible to vote, with even fewer eligible to stand for election. The first elections led, in the words of Brown’s Directory, to “a thoroughly conservative house, 13 of the 24 members elected having sat in the old self-elected House, and a majority of the 11 new men being pledged to conservative views”. These issues were addressed by fifty years of electoral reform.
Most importantly, and not sufficiently well-recognised globally, in 1881 the Isle of Man became the first territory in the British Empire to include women in the electorate to the national legislature. The first vote by a woman was cast by either Eliza Jane Goldsmith of Ramsey, Catherine Callow of Ballakilley, or Esther Kee of Leodest. Although not initially an equal franchise, the comparative narrowness of the period 1866-1881 when men, but not women, had the vote, is something for the Isle of Man to celebrate.
Secondly, although the Isle of Man gained increased fiscal autonomy, and a role for Tynwald in how it was exercised, the Manx constitution remained dominated by the Lieutenant-Governor, an appointee of the Crown. Ideas of responsible government, where executive authority was increasingly exercised by officers responsible to a locally elected assembly, were gaining ground, and being adopted in British North America (1848), and by New Zealand and most of Australia by 1859.
Responsible government was categorically, and deliberately, not intended to follow from elections. It was not until well into the twentieth century that responsible government came to the Isle of Man. The increased legitimacy the Keys gained from a democratic mandate had a significant role in this. As Lieutenant-Governor Hope foresaw in 1853, an elected Keys “would claim far greater and more arbitrary power … at issue with the British Government, [than] any Council consisting of Members nominated by the Crown”.
*Peter Edge is Professor of Law at Oxford Brookes University. His primary historical interest is the public law of the Isle of Man. His open access ebook Manx Public Law (1997) is available at tinyurl.com/kpz4rzv