« PreviousContinue »
the jurisdiction of the courts, or the bounds of parliamentary privilege." The only conclusion at which one could arrive safely, perhaps, would be that of Lord Kenyon (in R. v. Wright), who said of a certain proceeding, that it was " by one branch of the legislature, and therefore we cannot inquire into it;" but"I do not say,” added he-to put the balance of doubts as before—“that cases may not be put in which we would inquire whether the House of Commons were justified in any particular measure.”
“ With these conflicting opinions,” says Mr. May, " as to the limits of parliamentary privilege, and the jurisdiction of courts of law, if either House of Parliament insist upon precluding other courts from inquiring into matters which are held to be within its own jurisdiction, the proper mode of effecting that object is the next point to be determined. If the courts were willing to adopt the resolutions of the House as their guide, the course would be clear. The authority and adjudication of the House would be pleaded, and the courts, acting ministerially, would at once give effect to them. But if the courts regard a question of privilege as any other point of law, and assume to define the jurisdiction of the House, in what manner, and at what point, can their adverse judgments be prevented, overruled, or resisted? The several modes that have been attempted will appear from the following cases; but it must be premised, that when a privilege of the Commons is disputed, that House labours under a peculiar embarrassment. If the courts admit the privilege, their decisions are liable to be reversed by the House of Lords; and thus, contrary to the law of parliament, one House would be constituted a judge of the privileges claimed by the other. And if the privilege be denied by the courts, the House has no other remedy, in the ordinary course of law, but an ultimate appeal to the House of Lords. It is difficult to determine which alternative is the least satisfactory - the denial of a privilege by the Lords on a writ of error, or on application to them for redress when the authority of the House has been discredited by an inferior tribunal. With these perplexities before
them, it is not surprising that the Commons should frequently have viewed all legal proceedings, in derogation of their authority, as a breach of privilege and contempt. They have restrained suitors and their counsel by prohibition and punishment, they have imprisoned the judges, they have coerced the sheriff; but still the law has taken its course.
That the Houses of Parliament should possess and exercise every requisite power for sustaining their high functions, must be the desire of all who value constitutional government. That they should not claim or usurp more powers than are requisite, should be the wish of each English subject who appreciates liis own liberty and the advantages of living in a free country. A body of six hundred and fifty-four men may prove as pressing a tyranny, if irresponsible, as an emperor with a government of bayonets. The real freedom of a country depends upon the supremacy of the law, not of a legislative assembly. “Privileges,” if admitted, are so admitted because they are a part of the law. If they clash, it is but the collision of one part of the law with another part. When this unfortunately happens in other branches of our system, we apply a remedy by stricter definition and more accurate limitation; or by adopting a procedure by which each occasion of the conflict of domestic laws may be considered on its merits, and decided upon well-established principles.
The dignity of the House of Commons, in respect of its jurisdiction, would suffer less by adopting the latter suggestion than by again sustaining damaging defeats, or more damaging victories, at the hands of courts of law. Jealousy and touchiness arise frequently from uncertainty of position and the natural timidity of losing something of it. If the essential boundaries of parliamentary privilege (however wide they may be) were known and fixed, the House would suffer little panic as to their infringement. In the “Proæmium” to the Fourth Institute occurs the following passage, which at least is free from suspicion :
Among many and various similitudes and characteristic conceits of phrase, it is said—“For as the boily of man is best ordered when every particular member exerciseth his proper duty, so the body of the Commonwealth is best governed when every serviceable court of justice exerciseth his proper jurisdiction. So in the Commonwealth (justice being the main preserver thereof), if one court should usurp, or encroach upon another, it would introduce uncertainty, subvert justice, and bring all things in the end to confusion.” The learned author thereupon considers the various jurisdictions. “And thus, for all our pains, wishing the benevolent reader all the profit, we (favente Deo et auspice Christo) begin with the high and most honourable court of parliament:" which we, however, for the present have done with; entertaining, nevertheless, the same amiable wish for our benevolent readers.
We will, however, add one word more, suggested by the perusal of Mr. May's book :-It has attained to a position of authority, not only in England but in those of her colonies also, where parliamentary institutions are growing, modeled on that of the mother country. Whilst our colonial brethren enjoy the advantage of the accumulated experience of centuries, the forms and principles which have grown here are proved well adapted to the wants of an English and free people wherever planted. In some points, however, relating to matters of privilege, such as those we have been led, in the preceding pages, to discuss, the difficulties which the mother country has drifted into may, we trust, be avoided by the wisdom of her offspring duly profiting by her troublous experience.
ART. II.-THE TENURE OF REAL PROPERTY IN
THE ISLAND OF GUERNSEY.
part held in fee, subject to the payment of certain perpetual “rentes." These owe their origin to circumstances and incidents which we will proceed to describe :
1st, On the sale of property, part of the consideration is reserved in the form of a "rente." This is called Rente du Fonds, and is in the nature of a fee-farm rent.
2ndly, When the owner borrows money, it not unfrequently happens that, instead of granting a mortgage upon his property, , he charges it with a perpetual “rente.” This is called Rente Constituée, and is in the nature of a rent-charge.
3rdly, When property is divided between coparceners, one of them frequently takes a larger portion of the land than would fall to his share, and makes up the difference by charging his portion with perpetual “rentes” in favour of his coparceners. These are called Rentes retours de Bille de Partage.
These several modes of creating "rentes” have been in operation since the earliest times ; and almost all the landed property in the island has thus become encumbered with irredeemable "rentes.” Most of these "rentes” are payable in kind; wheat“ rentes” are the most common, but they are occasionally made payable in other produce, such as capons, fowls, ducks, a loaf of bread, or an eel! All “ rentes" are due in October, but the average prices of corn,
” &c., are not found until the Easter following; so that, if they are paid in money in lieu of kind, the payment cannot take place till after that time.
On the sale of real property the price is always calculated in wheat "rentes;" so that when a man has either house or land to dispose of, he sells it to another, to hold to him and his heirs for ever, paying yearly so many quarters of wheat as may be agreed
upon ; for which payment he that takes binds himself and his heirs for ever, on the security or guarantee, as it is termed, of his own property, present and future, real and personal, and that of his heirs. It is sometimes agreed that this guarantee shall not be created, but in the absence of express stipulation to the contrary, it will be implied in law.
This species of sale for a "rente” is called Bail à Rente, and is thus defined by Pothier :-"Le bail à rente simple est un contrat par lequel l'une des parties baille et cede à l'autre un héritage ou quelque droit immobilier, et s'oblige de lui fair avoir à titre de propriétaire, sous la réserve qu'il fait d'un droit de rente annuelle d'une certaine somme d'argent, ou d'une certaine quantité de fruits qu'il retient sur le dit héritage, et que l'autre partie s'oblige reciproquement envers elle de lui payer tant qu'elle possedera le dit héritage.”
A "rente” may, at the will of the contracting parties, be originally made "assignable” or
or "rachetable," and a Rente retour de Bille de Partage is said to be in law both "asssignable” and
rachetable,” independently of any agreement, although a longestablished custom, whilst leaving it "assignable” has deprived it in practice of its “rachetable" quality. If a "rente” is “ assignable,” the debtor may, at his own will, substitute some other "rente” equally well secured for it. If “rachetable,” the debtor is entitled to redeem it at any time at the price stipulated in the contract.
When an estate is sold, all the "rentes” due upon it are required to be specified in the contract, or instrument of conveyance, and the vendor (in order to free himself from the payment of them in future) has to deliver to the owner of each "rente” an exemplification of the contract, under the seal of the bailiwick. These exemplifications are denominated "droits.” When the whole estate on which a "rente” is due is alienated, the “rentier" or owner of the "rente” cannot object to accept the "droit.” But if a part only of such estate is alienated, and the vendor has fixed on such part the "rente” due on the whole, the "rentier" may be compelled by law to accept it, if the part alienated is