Popular History of Jersey Chapter 57
The most important event — at any rate from a constitutional point of view — of the year 1893 was, undoubtedly the settlement of the Overdale suit which, in brief, was a legal conflict on the part of the States against the Crown (about a sum of £12) concerning certain feudal rights, and which cost the Island, through the former body (though the point was, almost as a favour, conceded to them) some thousand odd pounds sterling.
Before coming to this, however, there remains to be told the record of other matters that went towards making history during the intervening period. Thus we find that in 1893 the idea of Compulsory Education was again a prominent feature in the States, and that the principle thereof was one which excited great commotion on the Island during the earlier weeks of the year (which, by-the-bye, were otherwise remarkable for the hard frosts, snow and fogs that prevailed). On 7 January, for instance, an influential meeting of Elementary teachers and managers was held in favour of compulsion; and amendments were, on that date, introduced by the States into the Bill. After this debate, on the 19th, further amendments were discussed or disposed of, and on the 24th of the month the parishes of St Martin, St Peter, and St Ouen declared their voice against it, St Brelade alone standing isolated as voting for the principle of Compulsory Education, but being opposed to the actual Bill in question.
On the following day, we find St Helier, St Clement, and St Saviour, containing by far the greater half of the whole population of the Island, voted in its favour. In the end the Preamble of the Bill was adopted on 2 February 1893, and referred to a Committee on the 6th (on which day, it may be added, a Bill for making the English language the legal vernacular was again rejected by a large majority), a newly amended Compulsory Education Bill being introduced on 16 February.
At this time the subject of immigration again came to the fore, chiefly in connection with the Bretons, and to prevent their indiscriminate arrival for the ensuing potato season, the required deposit from each such person being raised on 25 March to £1, though the States thought fit to reduce that sum again on the 30th to the former charge of 5s per head. In the meantime, and in view of the feared approach of cholera, which, as it will be remembered, was seriously affecting Russia and other countries, the assistance of Dr Thompson, of England, had been called in by the Sanitary Committee of the Island for consultation and other purposes, he arriving on 8 April and rendering valuable aid.
Then we come to 5 May, when there commenced in London the celebrated Overdale appeal suit, which, though it, as before hinted, ended in a virtual victory for the States, was, in comparison, one of the most costly undertakings Jersey has ever experienced, and the result of which caused the Deputy of St Martin to remark that "the sooner Seignorial rights were done away with the better".
This memorable case, it should be borne in mind, arose out of the purchase of land, by the States, for the erection of what are now generally known by the populace as "The Huts", for the purpose of hospital work in connection with infectious or contagious diseases, such as smallpox, cholera, and the like, situated at Westmount (formerly Mont Patibulaire) or Gallows Hill.
This property, known as Overdale, had formerly belonged to the Abbot of Bellozane, and had descended to Her Majesty the Queen, as Lady of that ancient Seigneury, and who, as such, had in its connection certain feudal rights over and above the exact (ordinary) monetary value of the land value of the property itself; and it was in consequence of the States having failed to satisfy the representatives of the Crown concerning these feudal rights that the case arose.
To put the matter as clearly as may be in common parlance, the chief right concerning which the dispute arose was one of homme vivant, mourant et confisquant, which, being broadly interpreted, means a right anciently held by the Lords of the Fief when parting with any land, to require the nomination of a person on whose death the rights and profits of that fief would accrue to its lord. In a word, a man who represented the vassal, and against whom the lord was in a condition (empowered to proceed) to exercise his rights.
Such was the old Feudal Law which prevailed when the main idea was that, even if the right over land was parted with for the time being by its owner or Feudal Lord, he should have good security that such should at a given time — on the death of the homme vivant, for example — return to him or to his heirs, which law, it must be remembered, has, with other remnants of those early times, descended to and is in force, at least in part, to the present day upon the Island.
From this it would appear at first sight that there was no such thing as "out and out" purchase of Seigneurial land. But this was overcome by the new owner giving a value over and above the land value to indemnify "the lord" for relinquishing this special right of homme vivant. In the case of more than one person (or a body of persons) becoming or desiring to become possessors, the question arose as to who amongst them was to be nominated to take the homme vivant's place — in other words, take the place of the man after whose death the rights and profits of the fief would accrue to its actual lord. And here steps in that celebrated but little understood Statute of Mortmain, enacted about the year 1278, during the reign of Edward 1 of England, and one not very difficult of comprehension if once the main feature is grasped, though the name is, at sight, somewhat puzzling, meaning exactly "dead hand". The matter is simplified, however, when we know that it was a term of old Roman law applied in the same manner as, nowadays, the term "dead" is used in connection with a thing from which certain important properties have gone out. The common truism, "It's no use working a dead horse", whether applied to a scheme, a company, a lead-mine, or what not, being a fair exemplification of the case. In this manner the Romans used to apply the words "dead hand", and when land was owned by a body of men and not by an individual it was said by them to be held in mortua manu, ie, in mortmain. It was, in fact, with all its rights and privileges, "dead" to its former possessor.
This, then, was the great statute introduced into England and its dependencies during the reign of Edward 1, and one of its chief results was this — that when land, by passing into the possession of a body of men, thus passed into mortmain, it was thereby freed from many feudal services, amongst others the right of its lord to homme vivant. In modern times mortmain has come to mean "the transfer of property to a corporation", and it will thus be seen that when the States purchased the Overdale property, they did so as a body of men, ie a corporation, and could not do so as a single individual; hence the transfer to them of that estate included the rights that the Statute of Mortmain allowed of, and it was simply the question as to whether or no the terms upon which the States had got the property were sufficient to cover all feudal rights, and also the manner in which such had been arrived at, that gave rise to all the after results.
Percentage at issue
The States had caused the Viscount and experts under their own statutes to value the property, and it had been assessed at £1,200; the indemnity for the extra Seigneurial right being laid at £36, or 3 percent on that amount; whilst Her Majesty's representatives, the Attorney- and Receiver-Generals, asserted that the case was not one for the Viscount and experts to value, and also claimed £48 or 4 per cent on the £1,200 instead of 3, basing their chief arguments upon the fact that the law of the Island had already settled, by a Statutory enactment of 1862, that all kinds of property in Jersey could be brought into mortmain upon application to the Royal Court for any purpose of utility, such lands so brought into mortmain "being for ever discharged from all Seigneurial rights, duties, and services (other than rentes) except the indemnity due to the Lord of the Fief," the rate of indemnity payable under the act due to the Queen and every other lord, being fixed at 4 per cent. upon bare lands, and 3 per cent upon houses. Hence they held that the rate of indemnity was already fixed by Law, being bare land, at 4 per cent., and that having so been fixed, the States were not within their rights to put the assessment of the value of the indemnity into the hands of the Viscount and experts.
To this the States, in brief, replied that the land had erections, maisons, upon it, and the indemnity, therefore, was only 3 per cent, and that they were acting within their powers to have it assessed in the manner adopted by them.
Naturally the whole affair went through the process of the Inferior Number, who formed an Assize d'Heritage; and upon their giving a verdict in favour of the 3 per cent, it went before the Superior Number of the Royal Court who confirmed the voice of the Inferior Number. And the it was that the case was pleaded before the Privy Council, and this with a most interesting and instructive result, the judgement delivered by Lord Selborne (received on the Island, 17 June 1893), being summarised thus:
Their Lordships, having gone over the whole ground, from the ancient costume of Normandy to the statutory law of the Island of 1862, came to the conclusion that would have been better, they thought, if the Court had only referred to the experts to fix the price of the land and not that of the rate of interest for the indemnity in connection with the Seigneurial right, but under the circumstances, the amount in controversy being only £12, and the appellants (the Queen's representatives) having failed to show any substantial miscarriage of justice, their Lordships would not disturb the judgements of the Royal Court. They, however, would intimate to that body that they were not expected to make Orders in the like form in future cases; whilst the costs of the States must be disallowed.