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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 againstthe 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 alford to pay, after a sutficient 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 produced 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 scope of the commission, the other Channel islands in addition to J ersey.*
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 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. “Then 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.—En.
which affects us, according to our own experience and knowledge ; 81 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.
A PHILOSOPHIC \vriter in this Magazine has lately suggested 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 dejure 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 strictu-m juc, 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. ole jwre 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.”
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 la\v, 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
Odit uterque locus, quum solos credat habendos
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
ing in its procedure to the Common Law, but also, in all respects where it could be done, resembling the other in its principles.
The general subject of the court and its practice we do not propose here to discuss. It is our intention only to touch upon one point, and that is, the mode of treating or administering the sulject of costs which obtained under certain conditions in the Prerogative Court, and which has been, inter alia, invocated into the new court, as we have seen.
In the Prerogative Court a wholesome equity prevailed upon the subject of costs, after sentence given for or even against a will or codicil. This equity might be claimed, and would he allowed to a next of kin or to an executor, under circumstances which, in a. common law court, would have brought upon either a condemnation in the costs of the other side. An ousted next of kin might impugn the execution of a will, the capacity of a testator, or his freedom from control or importunity; upon all or any of these suggestions, he might impose upon an executor a searching curial inquiry into all the circumstances preceding, attending, and following the preparation and execution of a will. He might set up, in antagonism to the will, an array of facts which would call for a rebuttal, or at least an explanation. He might do all this, and fail in obtaining sentence against the will. And yet the court would not only not visit him with the executor’s costs, but would give him all the costs of that unsuccessful opposition out of the testator’s personal estate.
Again, an executor might set up (or as it was called propound) a will or a codicil, which the court, upon better information than the former possessed, might pronounce against. And yet the executor’s costs would be allowed him out of the estate. This was a practice of the Prerogative Court constantly acted upon, and never liable to be misunderstood by the judge or the practitioner. The principle which underlay this practice may be formulized thus :—It was an assumption that a. man might set up a will, and that a man might dispute a will, without necessarily, in case of failure, being culpable of such conduct as should make it requisite or desirable that he should be punished with costs; f°1‘ Costs are,
VOL. VII. NO. XIII. D