‘The Deemsters were always officers of great dignity. They were not only the chief judges of this Isle but were also the Lord’s Privy Counsellors, and their influence over the people in some degree, resembled the civil authority of the ancient Druids. They were esteemed the venerable oracles of justice and in their bosoms resided the laws which only on important occasions, were divulged to the people.’
The above citation from Feltham’s Tour, published in 1798, is an admirable statement and will suffice as an introduction to this study of the most ancient and honourable office of Deemster.
The Island is unfortunate in the poverty of records of its early days. There is no statement of its laws before 1417, but in the historic indenture of that year, one party to that instrument is ‘Johen Clerk – Judex Manniae’, and in Sir John Stanley’s commission of the same year there is a charge to ‘all Deemsters’.
The Deemsters were there already; an old institution and no one can doubt that they were an essential part of the administration of government during the Norse period of our history extending from about 900CE to 1265CE. They were appointed by commission or proclamation from the King or Lord of Man, and held office during pleasure. Governor Meryck, writing in 1577 says ‘The judges whom they elect from among themselves and denominate Deemsters, determine all controversies without writings and expense’. The ‘election from themselves’ presumably means simply that the selection of Deemsters was from among the native people and not from the entourage of the Lord of Man.
The number of Deemsters has always been two – one exercising jurisdiction in the north of the Island and the other in the south; but both Deemsters had authority to act throughout the Island. That only one Deemster, John Clerk, is mentioned in the indenture of 1417 probably means there was an unfilled vacancy. In a document of 1419, two Deemsters, Jenkin Moore and John Christian are named.
The function of the Deemsters was not limited to hearing and deciding cases brought before them. In the first place the Deemsters, with the Keys, were the repository of the extensive body of customary law, which, because it was said to reside in their breasts, was popularly known and officially referred to as ‘breast law’.
The function of declaring the ancient breast law and using generally the formula, ‘We give for law’ continued until 1594. In that year several points of law referred by the Lord to the Deemsters and Keys, with their answers, are recorded in the first volume of the Statues. In succeeding years the Keys became a legislative body and the Deemsters became attached to, although not strictly part of, the Governor’s Council. Their position, however, remains curiously distinct. They are separately mentioned in the formula which precedes the Acts and from an early date they signed the Acts apart from the Governor and the other members of the Council – a practice which continues to the present day.
In the ‘Diverse Ordinances of 1417’ there is an interesting description of the proceedings of Tynwald:
“This is the constitution of old Time…how yee (the Lord) should be governed on your Tynwald Day…your barons in the third degree sitting beside you and your beneficed Men and your Deemsters before you sitting…the worthiest Men in your Land to be called in before your Deemsters, if you will ask any Thing of them, and to hear the Government of your Land, and your Will”.
The description illustrates the position of the Deemsters between the Lord and the twenty-four Keys.
Secondly the Deemsters were judges – taking part in the hearing of all legal proceedings. Legal business fell into two categories. The superior courts were presided over by the Governor or his Lieutenant. In these courts the Deemsters sat with the Governor, and the Clerk of the Rolls attended for the purpose of making and keeping a record of the proceedings. The superior courts, when they took definite shape early in the 16th century, comprised the Staff of Government, the Exchequer Court, the Court of Common Law, the Court of General Gaol Delivery, and (when equitable estates and principles came into existence) the Chancery Court.
The Staff of Government was the Court of Appeal from the Courts of Summary Jurisdiction. It was in this Court that public grievances were heard. The Royal decree of 1577 declared: – “It is the King of Man his Pleasure and his Officers to keep Court twice in the Year that all Men both rich and poor, deafe and dumbe, halt, lame and blind, to come thither upon Horseback or on Foot, to be drawne thither upon Horse or Cart, that they may know the King of Man his Pleasure and his Officers and the Law of his Country.”
The Court of Exchequer dealt with matters relating to the Lord’s revenues and was attended by the ‘Receiver’ in addition to the Deemsters.
The Court of Common Law, unlike the two preceding courts, did not directly affect the interest of the Lord. This Court dealt with serious disputes relating to land and claims for damages which could not be dealt with in the Summary Court. By 1777 it was decreed that there should be fixed times for the sittings of Common Law Court. This Court sat with a jury. After the jury was sworn, they were directed to examine witnesses out of Court and deliver their verdict along with the depositions to the Deemster who presented them to the Court. The Court considered the findings of the jury and determined any questions of law which arose and judgment was given accordingly.
The Court of General Gaol Delivery tried all serious criminal offences including felony of goods of the value of more than sixpence. It sat twice a year in May and October and the sittings were held in the open air in the gate of Castle Rushen. Prior to the trial of a prisoner, the Deemster held an enquiry with a jury of six to find if there was a ‘prima facie’ case against the defendant and on what charges he should stand his trial. The importance of a trial in the Court of General Gael Delivery may be appreciated when it is remembered that for offences which would now be regarded as trifling, the penalty was forfeiture of life and limb and confiscation of all the offender’s goods to the Lord. Sacheverell, writing in 1702 says, ‘By an ancient law if any man accused the Deemster of maladministration he forfeited life and limb.’
The Chancery Court appears to have been established as a separate Court in 1580. The administration of what is now known as equity was probably discharged previously by the Staff of Government. The judges in Chancery were the Governors and Deemsters. Cases were generally heard without juries but a jury could be impanelled if complicated matters of fact arose This continued until around 1825 when the Deemsters, by order of the Governor, ceased to attend Chancery Court and the Governor and Clerk of the Rolls became the judges of that Court.
In a report of 1792 it was noted that there were two tribunals which were unique and had no counterpart elsewhere, namely the Deemster’s Court and the Great Enquest. ‘The Deemster had power to decide all causes brought before him in a summary way with or without jury according to the traditional and unwritten law of the land termed breast law.’
The proceedings of the Deemster’s Court were very informal. The party taking action applied to the Deemster for his token, and until the practice, as altered by Act of Tynwald passed in 1763, the Deemster’s token consisted of a piece of slate on which he scratched his initials. This was handed to the Moar* or Coroner* who proceeded to summon the defendant to appear before the Deemster. If a plaintiff found his opponent in the presence of the Deemster he could place his foot on the other person’s foot and command his appearance.
The Deemster’s Court no doubt met the need of settling the host of petty disputes which arose within a fairly simple community. There were no lawyers and every man represented his own case. Generally the Deemster sat in his own house but sometimes Courts were held in petty ale houses amid ‘crowds of fishermen and farmers’.
The other unique reference is to the Great Enquest but it is difficult to define exactly what its judicial functions were. It was assembled on the warrant of the Deemster and dealt very largely with disputes relating to land and water, questions of boundaries, trespass, division between several owners and matters of that kind. It took evidence and presented the depositions with its findings to the Deemster. The Coroner appears to have been in charge of the Great Enquest but the members conducted their enquiries in their own way. Attorney-General Busk said ‘the mode of carrying on their business was such as to render the proceedings a scandal.’ Meetings were frequently held under hedges but generally in ale houses. The Quest heard the witnesses’ proofs and the altercations of the parties and when they thought proper, delivered their verdict with the depositions. The plaintiff and defendant attended these meetings and were there to contest with each other which should entertain the most liberally, till the practice was restrained by Act of Tynwald when ‘henceforth all such proceedings should cease and be tried at Common Law.’
There were several other juries or quests, most of which probably functioned under the order of the Deemsters. All of these have now lapsed except the Trespass Jury which still occasionally operates on an order from the Deemsters.
THE DEEMSTER’S OATH
By this book, and by the holy contents thereof, and by the wonderful works that God hath miraculously wrought in heaven above and in the earth beneath in six days and seven nights, I (state name), do swear, that I will, without respect of favour or friendship, love or gain, consanguinity or affinity, envy or malice, execute the laws of this Isle justly betwixt our Sovereign Lady the Queen and her subjects within this Isle, and betwixt party and party, as indifferently as the herring back-bone lie in the midst of the fish.
So help me God, and by the contents of this book.
* Moar/Coroner – in ancient times Manx Coroners were called Moars, they are Officers of the Courts.
(source: above is an extract from an article written by Ramsey B Moore, OBE (formerly HM Attorney-General of the Isle of Man) from The Journal of the Manx Museum Vol.Vi 1961-62 No.78; artwork is of Deemster John Taubman (1694–1763) by unknown artist from BBC Paintings)