ject, and make a decree, that will satisfy us, for all we want is a locus standi in the House of Lords." I mention this for the purpose of saying that I did not think it consistent with my duty to take that course; I did come, as it turns out from the opinion of the noble and learned lords, to which I most readily bow, to a wrong conclusion, though I am supported in that conclusion by the great majority of the judges, who also differ from their lordships' opinion. I can only say that I am glad that the real rights of the parties have now been correctly ascertained, and I shall rejoice, in one sense, as much as any of your lordships can do, that the attempts to make these extraordinary wills will be found not very easy to carry into effect. I feel as much as any of your lordships that it is exceedingly to be deprecated that parties should be allowed to puzzle mankind and interfere with the ordinary enjoyments of property by any contrivances or provisions out of the ordinary course of limitation.

Lord BROUGHAM: My lords, I believe we are all of opinion that the attention my noble and learned friend gave to this case was most diligent and entire, and that he might very easily have spared himself the tronble of giving any judgment in the Court below. It was undeniable, upon all hands, that the case was brought into that court with the view of its being ultimately brought to your lordships' House, whichever way my noble and learned friend decided it.

Decree reversed, with directions; costs of all parties to be paid out of the estate. Counsel appeared at the bar.

Rolt, on behalf of the Egertons of Tatton, submitted that as his clients had now no further interest in the cause, the order of the House might be drawn up, dismiss. ing them from the suit.

The Solicitor-General thought that that could not be conveniently done. He then suggested certain words to be introduced into the order, and said that it ought to

be left to the Court below to deal with the matter of dismissing these respondents from the suit.

The LORD CHANCELLOR agreed that that would be the proper course.

The following order was madeAfter reciting the petition of appeal and the hearing, it was

"Ordered and adjudged that the said decree of the 26th February 1852, so far as complained of in the said appeal, be, and the same is hereby, reversed; and it is declared that the several provisoes contained in the will of John William, Earl of Bridgewater (all of which, relating to the acquisition of the title, were then set forth) " are in the nature of conditions subsequent, and not precedent, and are invalid and void in law and it is further declared that the said appellant is, under and by virtue of the said will and codicils of the said John William, Earl of Bridgewater, in the pleading mentioned, (subject to the jointure of his mother, Lady equitable tenant in tail male in possession Marianne Margaret Egerton, in the pleading mentioned, and to the term for securing the same) of the estate (other than leasehold estates for years), subject to the trust of the said estates for years and personal chattels thereby will, and is absolutely entitled to the leasehold bequeathed to go as heirlooms; but as to such leasehold estates and personal chattels, subject to the gift over in such will in the event of his dying under the age of twenty-one years, without leaving issue male of his body: and it is further ordered that the costs of all parties in respect of the said appeal the amount of such costs to be certified by the clerk assistant) be paid by the trustees of the said will out of the personal estate of the said testator, John William, Earl of Bridgewater: And with these declarations it is also further ordered that the

cause be remitted back to the said Court of Chancery, to proceed further in the said cause rations and this judgment.” as shall be just and consistent with these decla

MATERIALS MADE USE OF.-The argument is founded on the report in 4 H.L. 1; for the answers of the Judges and the opinions of the Lords the following have been used: the printed answers of the Judges; the reports in 4 H.L. 1; 23 L.J. N.S. Ch. 348; and 18 Jur. 71.

registration, and referred them to the States of the Island. Thereupon the States, on the 5th of May, passed an Act directing the Orders in Council of February 11th to be lodged au Greffe, and suspending their registration so as to allow of representations being made to the Queen in Council.

The States then presented a petition, herein numbered (1), dated 21st May 1852, to Her Majesty in Council, representing that the Orders in Council of February 11th were an infringement of their rights and privileges, and praying that they might be recalled. They contended that the Crown had no right of legislation or taxation in the Island without the assent of the States. This and the other petitions (a) mentioned below cover the same ground as the cases afterwards put in by the several petitioners, and set out below.

This petition (1) having been referred by Order in Council of 15th June 1852, to the Lords of the Committee of Council for the affairs of Guernsey and Jersey, their Lordships in June 1852 intimated to a deputation of the States their consent to suspend the registration of the Orders in Council of February 11th, in order that the States might have time to pass certain Acts in accordance with the provisions of the said Orders in Council.

Accordingly, after many sittings, the States, in August 1852, passed as substitutes for the above Orders in Council. six Acts, which were transmitted for Her Majesty's approbation, and were now submitted with the Orders in Council of February 11th, 1852, for the advice and consideration of the Committee. These Acts were respectively entitled :

First.-An Act relating to the number and powers of the Centeniers and other officers of St. Helier's and other parishes. Second.--An Act for the appointment of a paid Police.

Third.-An Act to amend the practice in taking down evidence in Criminal Cases.

Fourth.-An Act for the establishment of a Court for the Recovery of Small Debts not exceeding ten pounds.

Fifth.-An Act to amend the practice of the Royal Courts in certain cases. Sixth.-An Act to establish a Court for minor Criminal offences.

In addition to the petition (1) of the States the following petitions were also referred to the Committee:

A petition, herein numbered (2), in favour of the three Orders in Council of February 11th, dated June 1852, and presented by certain merchants, bankers, tradesmen,

(a) This and the following petitions are set out in 9 Moo. P.C.

and other inhabitants of St. Helier's before the States had passed the six Acts above mentioned.

The petitioners denied that the Royal Court had any right to suspend registration of the Orders in Council of February 11th, and contended that the Order in Council of 21st May 1679 (a) allowing of such suspension had been repealed as prejudicial to the royal authority by the Order in Council of 17th December 1679.(b) They denied the authority of the States to legislate or tax without special permission from the Crown, and contended that the whole legislative authority, both initiatory and final, on all matters left unprovided for by Act of Parliament, was vested in Her Majesty. The petitioners also complained of the measures taken by the States to pay their deputies and employ counsel before the Committee without any lawful right, and without observing the provisions of the Order in Council of 2nd June 1786.(c) Finally they prayed that the States might be peremptorily ordered to promulgate the Orders in Council of February 11th as was done on 7th March 1785 (d) and to carry them into operation without the least delay, as was done on 25th March 1697, (e) and that they might be interdicted from applying any portion of the public money to defray the costs and charges of their deputation, and ordered to refund such money if already paid.

A petition, herein numbered (3), presented September 2nd, 1852, against the Orders in Council of February 11th, and also against the confirmation of two of the Acts passed by the States, namely, the Act for the Recovery of Small Debts, and the Act for the Appointment of a Paid Police. This petition bore four thousand four hundred and twenty-seven signatures.

A petition, herein numbered (4), dated October 25th, 1852, in favour of the Orders in Council of February 11th and against the confirmation of the six Acts passed by the States. This petition bore forty-nine signatures.

A petition, herein numbered (5), dated 21st October 1852, by Sir Thomas Le Breton, the Bailiff and Chief Magistrate of the Island of Jersey, praying for compensation for the loss of fees which he would sustain if some of the proposed Acts of the States should become law.

A petition, herein numbered (6), undated, by Mr. Charles de Ste. Croix, the Greffier of the Royal Court of Jersey, to the like purpose and effect.

(a) See below, App. B, p. 1108.
(b) See below, App. B, p. 1113.
(c) See below, App. B, p. 1122.
(d) See below, App. B, p. 1122.
(e) This reference has not been verified.

In the absence of a fuller report of the arguments before the Committee, the nature of the questions at issue is best seen in the cases prepared by counsel, and the annexed appendices.

CASE ON BEHALF OF THE STATES OF
JERSEY.

The States put in a printed case in support of their petition, (a) and submitted that, according to the constitution of Jersey, Her Majesty in Council was not empowered to pass any laws, or impose any taxes upon the inhabitants of Jersey, without the concurrence of the States, the legally constituted legislature of the Island. The case proceeded :

"The States do not now claim for themselves the power to enact permanent laws, or to impose taxes (except upon extraordinary emergencies, as for the defence of the Island), without the sanction of the Crown.

"All they allege is that, as in Great Britain the people can only be taxed, and laws can only be made, with their own consent, expressed through their representatives the Commons' House of Parliament, so in Jersey the inhabitants cannot be taxed, nor can laws be enacted, without their concurrence, given by their representatives, the States of the Island; that, as a general principle, the exclusive legislative authority, competent to fix or change the municipal law of the Island, resides in the States, representing, by their three orders of Jurats, Clergy, and Constables, the whole community, as the propounding power, and in Her Majesty in Council as the supreme governor and controller over them.

The States submit the following statement of their constitutional rights and privileges

"The States of Jersey have from time immemorial existed as a legislative body, and have been recognised as such by innumerable Charters and Orders in Coun

cil.

(a) Numbered (1), above, p. 287. (b) Godefroy, Jacques (1587-1652). Commentaires sur la coustume reformée du pays et duché de Normandie, 2 vols., fol. Rouen, 1626;

revenu du domaine ne se faisoient, que du consentement de Estats, dequoy les vestiges se remarquent encore en ceste Province (antiquæ libertatis monumenta). Et à ceste cause s'appelloient aides, octrois, subventions, subsides, et non tailles, imposts, tributs, qui sont noms plus durs et odieux, dont l'Historie de France fournit assez d'exemples.'

"The same principles are to be found in the Charte aux Normans, in the Commentaries upon the same Coutume, by Rouillé, f. 25.(a)

"But conceiving such an inquiry to be unnecessary, the statement is confined to what has been the constitution of Jersey in comparatively later ages, and especially to the existing powers of the different branches of the Island legislature.

"From the fact that the records of the Island, from destruction and other causes, only commence in the year 1520, and that a public registry was not established till 1601, it is impossible to trace the origin of the States as at present Normandie, Jersey, 1881; Tardif, Coutumiers de and see de Gruchy, L'Ancienne coutume de Normandie, 1881, &c.; First Report, &c., below, App. C, p. 1127.

(a) Le Rouillé, Guillaume, of Alençon (14941550), Le Grand Coustumier du pays et duché de Normandie, fol. 1539 (see below, p. 1128). The charter granted by Louis Hutin in 1314 is there set out in old French. There is a Latin version in Recueil des Anciennes Lois Françaises, vol. 3, p. 48, where it is said to have been granted on the complaint "baronum, militum, et aliorum nobilium subditorum ac prælatorum ducatus nostri Normaniæ." The French version adds the "menu peuple" among the complainants, and there are other variations. Article V. of the Latin version is as follows: "Item, quod de cetero per nos, aut successores nostros in dicto ducatu, in personis aut bonis ibidem commorantium, ultra redditus communes et servitia nobis debita, tallias, exactiones, subventiones, impositiones facere non possimus, nisi evidens utilitas aut emergens necessitas id exposcat." Martin, Histoire de France, vol. 4, p. 319, 4th edit. In the " Copie des franchises que le roi

See

dengleterre a en Guernerie et que les hommes de Guernerie ont," circ. 1274, in the Archives du Département de la Manche, fonds du Mont St. Michel, printed in Havet, Les Cours Royales des les Normandes, pp. 183-6, is the following:"These are the franchises of the people of Guernsey.

First, for seventy pounds of aid which our lord the King takes for all the Isle of Guernsey, they ought to be quit from military service, and from cavalcade (chevauchic), and from tallage, except for the body of our lord the King, if he be kept in prison, from which God keep him, and to have right of trial (e por avoir droit ou pais) by the judgment of twelve jurors without going out of the country, unless it be to give gage and pledge that they have made false judgment." This translation is taken from the Crown Appendix in the Prison Board Case, 1894, see below, p. 312n.

K

constituted; but it is clear that it is of a very great antiquity.(a) In a royal letter of the 6th April 1551, King Edward VI. addresses the States thus

"A nos bien aimez, le Bailiff, et Jurés, et autres les Estats de l'Isle de Jersey.'

"And in the report made on the 3rd April 1591, in the reign of Queen Elizabeth, by the Royal Commissioners Pyne and Napper,(b) it is said—

"Que de tout temps dont il y a memoire du contraire, le Bailly et Jurets de la dite Isle ont en jurisdiction sur et concernant toutes matières en justice, dans icelle ile, et pareillement ont manié les affaires de grande importance avec l'assistance du Commun Conseil nommé communement les Estats.'

"By the Order in Council of the 29th July 1619, which resulted from the report of the Royal Commissioners Conway and Bird, the powers of the Assembly of the States, almost in their present extent, were distinctly recognised.(c)

"It appears, moreover, from documents of the same period, that the States were then composed of the twelve Jurats, the twelve Ministers or Rectors, and the twelve Constables, and they are at present constituted in like manner; the Jurats being elected by the whole body of ratepayers throughout the Island; the Rectors being appointed by the Governor, representing the Crown; and the twelve Constables elected for three years by the ratepayers of the twelve parishes, of which they are respectively the representatives.(d)

"As regards the number of electors by whom the Jurats and Constables are chosen, every person possessed of property within the Island of the value of 401. may be assessed, consequently the number of persons entitled to vote is, as may be supposed,

(a) The States are first mentioned by that name in a deed of 1497 regulating the government of two schools, one of which was to be in the house built in time past "p. les Estatz du pays." The deed also recites an Order" by the consent of all the States and the common assent of the said Island." The Ordinance of Maulevrier, during the French occupation in 1462, provides that the Jurats shall be elected" les Bailly et Jurés, les Curez et Cônestables des paroesses de l'îsle." Crown Appendix to Prison Board Case, 1894, p. 167. Havet, Cours Royales des Isles Normandes, p. 53, argues that the States are referred to in earlier documents as "Jurati et communitas insulæ."

par

very considerable; and bears, probably, a much larger proportion to the number of inhabitants than would be the case in any town in England of the same numerical population.

In the early periods of the history of Jersey, and prior to the Order of the 28th Royal Court, consisting of the Bailiff and March 1771, (a) hereinafter mentioned, the twelve Jurats, sometimes even without the concurrence of the other constituent parts of the States, exercised to a certain extent a legislative power in the adoption of local political ordinances and regulations; but in all matters of great weight, and particularly whenever the Governor, Bailiff, and Jurats, found it necessary to raise consent of the people on whom such money, they were obliged to obtain the money was to be raised, and then the Royal Court was assisted by the twelve Ministers and twelve Constables; but now the legislative power is exclusively vested in the whole Assembly of the States.

"By the Order in Council of the 28th March 1771, which deprived the Royal Court of all authority to enact political or other ordinances, the legislative powers of the States to originate and discuss all laws for the government of the Island were clearly and finally defined and declared; and, placed at the head of the Code of Laws of 1771, (b) then collected and agreed upon by the States, and confirmed by his then Majesty, the said Order has always been justly viewed by the inhabitants of Jersey as the bulwark of their ancient liberties. Of this Order of the 28th March 1771, the following is an

extract :

"Upon considering the annexed collection or Code of Laws agreed upon by the States of the Island of Jersey, and transmitted for His Majesty's Royal approbation, His Majesty, taking the same into consideration, is hereby pleased, with the advice of his Privy Council, to approve of, ratify, and confirm the said collection of laws, and to order the same, together with this Order, to be entered upon the Register of the same Island, and observed accordingly.

"And His Majesty doth hereby order that no Laws or Ordinances which may be made provisionally, or in view of being afterwards assented to by His Majesty in Council, shall be passed but by the whole Assembly of the States of the said Island, and with respect to such provisional laws and ordinances so passed by them, that none shall be put or remain in force for any longer time than three years,(e)

(a) See below, App. B, p. 1119.

(b) A Code of Laws for the Island of Jersey, 1771; see First Report, below, App. C, p. 1133.

(c) The Order in Council of 14th April 1884 gives the States power to renew ordinances from three years to three years.