Jersey & Guernsey Law Review – June 2011
LETTER TO THE EDITOR
Dear Sir,
Footnote 3 to ‘The demise of remise in Jersey: Greatly
exaggerated?’ by Paul Omar (The
Jersey and Guernsey Law Review, February 2011, p. 83) runs as
follows—
“The procedure, which
developed in Jersey customary law, is said to
be based on the lettres de répit issued
by Royal fiat first introduced in a French ordinance promulgated in 1673 during
the reign of Louis XIV.”
Is
this right? Le Geyt devoted a chapter of his La Constitution, Les Lois et les Usages to
the subject (Tome I, p. 386, Des Repys, autrement respits, ou remises de biens entre les mains de la justice). In it he cites (p. 389) a number of lettres de repys issued by ‘les Rois d’Angleterre’
(not France) dated 23 May 1593, 12
May 1594, 6 August 1596, 15 August 1597, 20 November 1601, and 30 November
1601, respectively. He then goes on to explain that the Royal Court began in due course,
especially since 1660, to do on its own authority what it had previously done
on the order and recommendation of the Sovereign.
Even
the latest of the dates given for the letters from the Sovereign predates the
French ordinance of 1673 referred to in the footnote by many decades. Indeed by
1673 the Royal Court
was, if Le Geyt is to be believed, granting remises on direct application without
Royal intervention. It is true that he refers to some French ordinances (1540
and 1560), but he does not suggest that they had any influence in Jersey. Indeed they regulate which courts could grant lettres de repys, and
the tenor of Le Geyt’s comments on French
practice is in any case that it would be inappropriate for Jersey to follow
them (principally, it seems, because of the extensive range of property exempt
from the procedure).
In
one of the letters referred to by Le Geyt, the
petitioner sought to rely on what he claimed to be the custom of Normandy, but
this is a very different thing from an ordinance issued by the French
sovereign. Le Geyt’s citation of the lettre runs—
“1597, August 15th.
A letter to the Governor of Jersey, requiring him, if the Custome
and Law of Normandy admitt such a toleration of time
as is alleged by Hilary Paine decayed by losses, That he would take order that
he might enjoy the benefitt of the said Custome.”
Le Geyt seems himself to have
thought that practice of invoking the custom of Normandy was of doubtful validity, given
that the Island no longer formed part of the
Duchy, and there was no earlier mention of lettres de repys, even in the Ancienne Coutume:
having stated that lettres de repys were
not practised in England,
he adds (p. 391)—
“ … c’est pourquoy dans les Lettres d’en haut dont j’ai parlé ci-dessus, on s’en rapporte nommément
à la Coûtume de Normandie,
dont le suppliant alléguoit
l’autorité, comme si l’Isle en
eust encore dépendu,
ou qu’auparavent il y en eust aucune
trace, non même dans
le Vieux Coûtumier.” [Emphasis
added.]
No
source beyond the ‘it is said’ is given for the suggestion in
footnote 3 that remise de biens originated in a French ordinance of 1673, and as
we are not told by whom it was said it has been impossible to pursue the matter
further. Perhaps some light could be shed on the assertion in a later edition
of the Review.
Yours faithfully,
S.C. NICOLLE
Advocate
11 Parade Road
St Helier, JE2 3PL
28 April 2011