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that a great number of houses, being charged with “rentes” above their value, were allowed to fall to ruin ; and, by a law passed in the reign of Henry II., this privilege was extended to all the towns in the kingdom. At last, at the time of the French revolution all perpetual “rentes” were made redeemable.
The system of “rentes,” which the people of Guernsey inherited from their Norman ancestors, is one to which they are much attached. Their tenure of land and their family arrangements are based upon it; and so jealous are they of any interference with it, that when the states, last year, adopted a Projet de Loi, which was sent up for the consideration of the Privy Council, for the redemption of small "rentes” under the yearly value of one quarter of wheat, and of money "rentes” under the value of twenty shillings, a large party among the inhabitants, many of them members and ex-members of the states, not only stoutly opposed the Projet de Loi before the states and the Royal Court, but afterwards petitioned to be heard by counsel before the Privy Council in opposition to it; stating in their petition, that the proposed redemption would be a flagrant outrage on the feelings of the petitioners, as these small “rentes” had been in their possession, and in that of their ancestors, from time immemorial, and constituted their real property; that the existence of such ‘rentes” stimulated the purchasers of land to industry, and enabled the vendors to retain for themselves, and their heirs for ever, a permanent interest in the land disposed of by them; the results whereof were the wide-spread prosperity and harmony which subsisted amongst all classes of the inhabitants of the island. The petitioners ended by saying that the public in general, instead of being benefited by the redemption of small “rentes,” would experience all the effects which a social revolution never fails to produce, and which would be highly detrimental to the best interests of the island. Notwithstanding this opposition, however, the Privy Council confirmed the law, on the ground that such small “rentes” were a burden upon the real property far beyond their actual value, and that their existence, as a perpetual charge upon the land, acted as an impediment to its beneficial sale and transfer.
Tenure of Land in Guernsey.
This system of “rentes," which gives the faculty of acquiring land in perpetuity without paying any purchase-money, though perhaps not worthy the praise given to it by the petitioners against the law for the redemption of small "rentes,” has probably been of great benefit to the inhabitants of the island. Under its protection the original owners have parted with their land for an annual “rente ” of as many quarters of corn as the purchasers judged they could afford to pay, after a sufficient remuneration to themselves for their labour. “Thus," says the Royal Court, in a letter addressed to the Privy Council in the year 1820, “ without the necessity of cultivating the soil, the one party enjoyed the neat income of his estate secured on the estate itself, which he could resume in case of non-payment; while the other, on the due payment of the 'rente' charged, became real and perpetual owner, having an interest in the soil far above that of farmers under any other kind of tenure. Experience has proved that a spirit of industry and economy was thus generated, that prodluced content, ease, and even wealth, from estates which, in other countries, would hardly be thought capable of affording sustenance to their occupants. And thus arose two classes mutually advantageous to each other, the one living on its income, or free to exercise trade and professions; the other composed of farmers raised to the rank of proprietors, dependent only on their good conduct.”
On the 17th March, Mr. Hadfield moved, in the House of Commons, for an address, praying the Crown to issue a royal commission for the following purposes, viz.—1. To inquire into and report on the civil, municipal, and ecclesiastical laws and customs now in force in Jersey—including the laws relating to the tenure of land, trust, and uses ; and also the rights of the feudal lords in the said island. 2. To inquire into and report on the constitution of the tribunals by which those laws, customs, and rights are administered ; and as to the practice and forms of procedure used by them respectively. 3. To inquire into, and report on, and suggest remedies for all defects in, and abuses of the laws, tribunals, and procedure, in force in Jersey. 4. To inquire into the state of pri
sons in the island ; and 5, into the administration of certain public charities. Now, it may be thought advisable to include, within the
of the commission, the other Channel islands in addition to Jersey.*
That the ancient laws and customs here referred to, as well as the qualities and tenures of land and its incidents, should be thoroughly understood before they are attempted to be meddled with by parliamentary reformers, is an essential condition, and highly desirable ; and so a commission, if it issues, should be very carefully constituted. We
We regret to say that comprehension of the subject is not always considered an essential preliminary to sweeping subversion or obstinate maintenance of institutions. There is no doubt that ancient customs, and the laws of olden times, may outlive their beneficial purposes ; and that they occasionally require modification, or even annihilation. When the right and power is preserved among a free people of regulating their own legal and social customs, the habit of self-government thus engendered generally saves their country from the anomaly and inconvenience of the institutions and procedure being immediately at variance with the wants and character of the people. The laws and the community may not be invariably of commensurate growth, but we do not find revolution or external influences requisite to effect the desired concord between them. How this royal commission comes to be wanted, and how it will operate, we do not know ; but we trust that the interests of the inhabitants of the Channel islands, as well as those which England has in their contentment and prosperity, will be well considered before any important steps be taken to remodel their laws, customs, or institutions; and that those to whose hands the duty of inquiry and recommendation is confided will recollect, that sometimes what is theoretically ill-advised or peculiar in the eyes of a stranger, may, nevertheless, work very satisfactorily to those habituated to their own forms.
It requires an enlarged and acute understanding to reform even that with which we are ourselves familiar, and to remedy that
* We regret that this course has not been taken.-Ed.
which affects us, according to our own experience and knowledge ; à fortiori is it a task demanding sagacity, temperance, deliberation and carefulness, when the ancient code of a people, who cherish especially their own nationality, is to be brought to the inquisitiou and tests contemplated, we presume, by the House of Commons, in their purposed address to the Crown.
ART. III.- COSTS IN THE PROBATE COURT.
PHILOSOPHIC writer in this Magazine has lately sug
gested a new theory of costs, and has supported it by convincing reasoning. *
For any improvement in the theory of law we all should be grateful. But whilst we are seeking to obtain what is not, we are in danger of losing an excellent doctrine of costs already having a de jure existence. The doctrine of costs to which we now allude is one of equitable range and application, and the loss and injury to the interests of the public through its extinction or suspension will be great, abstractedly and practically.
The prevailing and anxious feeling of the present age is for an infusion of equity and equitable principles into every branch of the body of the law. The harshness of law is not felt and deplored, until its empire is complete and superior to all evasion. A want of equity is therefore more felt, now that law, the mere strictum jus, is obeyed without hesitation or reserve. One of the equitable doctrines of costs in vogue in the Prerogative Court forms the subject of this article. The doctrine alluded to is that of giving costs out of a deceased person's estate to the unsuccessful party in a testamentary suit. This doctrine, as we have said, has a de jure existence ; for the 29th section of the Probate Court Act, 1857, provides that “the practice of the Court of Probate shall, except where otherwise provided by the act, or by the rules or orders made under the act, be, so far as the circumstances of the case will admit, according to the practice in the Prerogative Court."
* L. M. & R., Vol. V. p. 301, August, 1858.
Rule three of the Contentious Rules of 1857, also provides that “next of kin and others who, previous to the passing of the act, had a right to put executors, or other parties entitled to administration with the will annexed, upon proof of the will in solemn form of law, shall continue to possess the same rights and privileges, and be subject to the same liabilities with respect to costs as heretofore.”
It may be therefore safely concluded that it was the intention of the legislature, and the framers of the rules, to invest the new court with all the equity of the old one, at the same time that it created a procedure for that court better adapted to the exigencies of the times. It is equally inferrible that the legislature intended the annihilation of the old feud of the Courts Christian and the Common Law Courts, by erecting a new judicature formed on the best principles of both.
These were the real, if not the avowed objects of the legislature in making a new tribunal, instead of merely transferring the jurisdiction of the old courts to the existing Common Law Courts, as urged by Mr. Collier, whose arguments, unless met by such reasoning, would have been irresistible.
As all the world knows, the procedures of our native Common Law Courts, and of our native Ecclesiastical Courts, were not more contrasted than their principles were repugnant to each other.
" Numina vicinorum Odit uterque locus, quum solos credat habendos
Esse deos, quos ipse colit.” And there was no hope of reconciliation or assimilation of these conflicting principles in the separate existences of the two laws, the ecclesiastical and the municipal—on the subject of the litigation of wills. But the country and the legislature knew that there was much good and fertilizing matter in the old Augean stable, and therefore judged that it could be transferred to other ground with great prospective benefit to the English public. For these reasons, it was determined not purely and simply to make a Common Law Court, but to make a Court of Probate, approximat