(1865-67) L.R. 1 P.C. 94

In the Matter of the Jersey Jurats

Privy Council

1866 Jan. 17, 18

 

*94 In the Matter of the Jersey Jurats

Privy Council

 

PC

The Lord President (The Earl Granville), The Lord Chancellor (Lord Cranworth),

Lord Chelmsford, The Right Hon. Sir George Grey, and the Right Hon. J. A.

Bruce. The Attorney-General (Sir R. Palmer), and the Queen's Advocate (Sir R.

Phillimore).

1866 Jan. 17, 18

 

On Petition from the Island of Jersey

 

Constitution of the Royal Court of Jersey--Prerogative of the Crown-- Resignation of Jurats--New elections.

 

By the constitution and law of the Island of Jersey, the Royal Court is composed of a Bailiff and twelve Jurats, and upon the voluntary resignation of a Jurat it is the prerogative of the Crown to permit such resignation, and to authorize a new election to fill up the vacancy so occasioned.

 

Secus, on a vacancy occasioned by the death of a Jurat, when the Royal Court have power alone to order a new election.

 

The States of Jersey passed two Actes accepting the resignation of two Jurats on the ground of their length of service and inability to continue to perform the duties of their office. These Actes were objected to by certain landowners and others in the Island, who petitioned the Crown against confirming the same, and to suspend the filling up of those offices until a reform, long in contemplation, of the Royal Court had taken place; but, although it was considered by the Lords of the Committee that a complete chance in the constitution of the Royal Court was necessary, yet, as the suspension of new elections of Jurats would not affect any improvements in the constitution of that Court, Her Majesty was advised to permit such resignations, coupled with directions that the same privileges and distinctions that the retiring Jurats had enjoyed as Jurats should continue to them during their lives, and ordering new elections to supply the place of such vacancies.

 

THIS was a petition and representation of the States of Jersey to Her Majesty in council in support of two Actes of the States, dated the 14th and 29th of January, 1864, for obtaining new elections of Jurats in the room of Philipe De Ste. Croix and Philipe Winter Nicolle, resigned. The petition was met by a counter petition from certain landed proprietors, merchants, and others, praying for the suspension of the elections to the vacant posts of Jurats of the Royal Court. Another petition was also presented on behalf of an association designated "the Committee for the Reform of the *95 Royal Court of Jersey," against the acceptance and confirmation by Her Majesty of these resignations.

 

These petitions and representations were severally referred by Her Majesty to the Lords of the Committee of Council for the affairs of Jersey and Guernsey, for their opinion and advice thereon.

The circumstances which gave rise to these proceedings were as follows:--

 

In the year 1864, Messrs. Ste. Croix and Nicolle had exercised the functions of Jurats in the Island of Jersey for many years. Ste. Croix for thirty years and Nicolle for twenty-six years.

 

On the 14th of January in that year, at a meeting of the States of the Island of Jersey, that Assembly took into consideration a letter addressed to it by Ste. Croix, praying the States, on account of his long service and ill health, to solicit from Her Majesty in council permission to resign his office of Jurat; and the States, after deliberating thereupon, acceded to the request, and passed an Acte for that purpose, which they directed the Greffier to transmit to the Privy Council.

 

On the 29th of January, 1864, the States, at their sitting of that day, took into consideration a similar application of Nicolle, and passed a similar Acte.

 

These Actes were transmitted by the Greffier of the States to the Privy Council in the usual manner for the sanction of Her Majesty.

 

In the month of February, 1864, a petition was presented by William Lempriere and John Le Couteur on behalf of themselves and 279 landowners and others of the Island of Jersey, praying that all future elections of Jurats might be suspended, until such measures should have been taken as Her Majesty should deem necessary for separating the judicial from the legislative functions of the Jurats, and for insuring the due administration of justice.

 

The Lords of the Committee of Council for the affairs of Jersey and Guernsey took this petition into their consideration, and, on the 9th of March, 1864, the Lieutenant-Governor was officially informed that the Lords of that committee would be prepared to recommend to Her Majesty that the prayer of the petition should be granted, and to advise Her Majesty to accept the resignation of *96 the two Jurats, and to direct that their places should not be filled up, on receiving a distinct assurance from the States of Jersey that they were prepared to take the necessary measures for carrying into effect, in whole or in part, the recommendation of the Royal Commissioners with regard to the constitution of the Royal Court.

The States of Jersey on the 7th of April, 1864, forwarded to the Lord- President of the Council a representation, urging, amongst other things, that the suspension of the elections for new Jurats would be in direct violation of the constitution of the Royal Court as by law established, and that it would likewise, in effect, operate as a repeal of the law which directs that upon a vacancy occurring, a new election to the vacant office should be ordered by the Court.

 

In the mean time, a Bill had been introduced into the House of Commons by Mr. Locke, "to amend the constitution, practice, and procedure of the Court of the Island of Jersey," which Bill, among other provisions, provided for the substitution of a Court consisting of the Bailiff and two other salaried Judges.

On the 13th of April, 1864, Mr. Waddington, one of Her Majesty's Under- Secretaries of State, informed the Lieutenant-Governor of the island that Her Majesty's Secretary, Sir George Grey, had felt himself obliged to assent to the second reading of Mr. Locke's Bill, and that he should not have done so had he been able to hold out to the House of Commons the hope that measures would be taken by the States for the improvement of the judicial system, and the better administration of justice in Jersey. Mr. Waddington added, that Mr. Locke consented to postpone the next step of the Bill to a time sufficiently distant to enable the States to give an assurance of their being in earnest in dealing with this subject; and if the States availed themselves of that interval to frame and submit such a Projet de Loi as was described in the Lieutenant- Governor's letter, that Sir George Grey would willingly use his influence to induce Mr. Locke not to press his Bill.

 

Mr. Waddington's letter was, on the 16th of May, 1864, laid before the States of Jersey, who, on the 21st of May, 1864, forwarded to Sir George Grey a letter, wherein, among other things, they stated that they felt that they could not discuss and pronounce upon any question or measure having reference to the *97 reform of the judicial system and administration of justice with the untrammelled liberty of opinion, without which their deliberations and decisions as a representative and legislative assembly would be fallacious and worthless, so long as the constitutional question now before the House of Commons, in connection with Mr. Locke's Bill, and which, as the States alleged, struck at the very root of the rights of the Assembly, and of the most cherished privileges of the people of Jersey, that of being legislated for by their own representatives in all matters of local and internal administration, remained in suspense, and that they, therefore, respectfully postponed for the present the consideration of the correspondence submitted to the States. They stated that they were not unduly attached to the established order of things, nor unmindful of, or indisposed to entertain and carry out the wishes of Her Majesty's Government, the manifestations of public opinion, or the recommendations of the Royal Commissioners.

After the receipt of this representation Mr. Locke's Bill was withdrawn.

 

On the 4th of August, 1864, the States of Jersey passed an Acte making provision for the office of a Juge d'Instruction, necessitated by the new criminal procedure law, which was to come into operation on the 1st of November following, which received the Royal sanction.

 

On the 15th of December, 1864, the States of Jersey met for the purpose of taking into consideration two motions, the first being for "the substitution of paid judges for the present Jurat system," and the second, "for separating the judicial from the legislative functions of the Jurats." The States ultimately resolved, by a majority of one, that the constituencies of the Island (the ratepayers in the several twelve parishes) should be consulted upon the abstract question, whether they were of opinion that it was desirable to substitute salaried Judges for the twelve Jurats of the Royal Court, and fixed the 2nd of January following for collecting the votes of the ratepayers in all the parishes of the Island.

 

The votes of the ratepayers of the Island, in accordance with this resolution of the States, were taken on the 2nd of January, *98 1865, and the result was, that out of 2,470 ratepayers who voted, 2,290 voted against, and 180 for paid Judges. At a meeting of the States on the 12th of the same month, in consequence of the result of this vote, that body at once rejected the two former motions.

 

On the 14th of January, 1865, Edward Mourant, and other persons, associated under the designation of "The Committee for the Reform of the Royal Court," presented a representation to the Lords of the Privy Council, explanatory of the result of the voting, and alleging the illegality and unfairness of the States' resolution.

 

By another petition or representation from the same body, dated the 24th of June, 1865, addressed to the Lords of the Committee of Council for the affairs of Jersey and Guernsey, it was prayed that Her Majesty might not be advised to accept the resignations of the two Jurats, and that a Commission might be appointed to examine the state of the finances of the Island with respect to certain alleged misappropriation of the revenue.

 

The States, in their case in support of the Actes of the 14th and 29th of January, 1864, set forth the nature and constitution of the Royal Court, stating that it was composed of the Bailiff and twelve Jurats; that the Bailiff was president of the Court, and presided over the meetings of the States, that he was appointed by Patent from the crown, being selected on account of his learning and knowledge of the laws and customs of the Island; that the qualification for the office of Jurat was the possession of landed property in the island to the amount of 40 quarters of wheat rent (£30. 15s. 3d. per annum); that such property qualification was one fixed in ancient times, and was then deemed of sufficient amount; that the Jurats were chosen from among gentlemen of independent fortune and reputed ability, and who not unfrequently had shewn their fitness for the office from having held other appointments in the Island.

 

That the twelve Jurats were believed to have existed long prior to the Charter of King John, which was only a confirmation of the privileges of the Island. That the third article of that Charter prescribed that the twelve Jurats should be elected from among the natives of the Island, "per Ministros, Domini Regis et Optimates *99 Patriae;." That the Court thus constituted had jurisdiction over all matters whatsoever arising within the Island, with the exceptions therein mentioned; that the Charter of King John so granted to the Island had, from time to time, been confirmed by successive Sovereigns, as also by various laws passed by the States, which had been sanctioned by Her Majesty in Council, and were still in force; that the mode of electing the Jurats had at various times been changed, sometimes according to the construction as it would seem put upon the words of the Charter "per Ministros Domini Regis et Optimates Patriae," and at others by force of legislative enactments. That by an Order in Council bearing date the 19th of May, 1671, it was declared, that in the elections of Jurats and Connétables none be admitted to vote except those who contribute to public taxes and to the provisions made for the poor, and are masters of families; and in the Code of 1771 (pp. 168-9) the terms of the last-mentioned Order in Council were repeated; that at present the right to vote at elections was regulated by an Act of the States, dated the 14th of January, 1833, confirmed by Her Majesty in Council on the 15th of July, 1835, and was vested in all persons not under disability, who may be rated in respect of property either real or personal, as to real property of the value of £50, and as to personalty to the amount of £114 capital; that the Jurats received no salary for the performance of their duties, and the Court fees to which they were entitled were so small, that their services were, in fact, virtually gratuitous.

 

That the Jurats, besides being members of the Royal Court, were also members of the States or Legislative Assembly of the Island, which was composed of fifty members, namely: the twelve Jurats, twelve Rectors of the twelve parishes into which the Island is divided, and the twelve Connétables or Mayors, and fourteen Deputies. That the Jurats were elected for life by the whole of the ratepayers throughout the Island. The Rectors were appointed for life by the Crown; that the Connétables and Deputies were elected by the ratepayers of the parishes which they respectively represent, the Connétables irregularly every three years, as the tenure of office expired, or as a vacancy occurred, the Deputies triennially in the month of January, or whenever a vacancy occurred; and it was submitted by the States, that the prayer of the petition of the *100 landowners beseeching Her Majesty to direct that all future elections for the post of Jurat be suspended until such measures should have been taken as Her Majesty might deem necessary for separating the judicial from the legislative functions, ought not to be granted or seriously entertained, as the simple issue was whether, having regard to the inability of the two Jurats any longer to perform the duties of their office, the Acts of the States of the 14th and 29th of January, 1864, ought not to be confirmed by Her Majesty in Council, and new elections directed. That it could not be disputed that the States had authority to originate all laws that they may think requisite for the due administration of justice or otherwise within the Island, and that by their Actes of the 14th and 29th of January, 1864, accepting the resignation of the two Jurats, they had not exceeded their powers. That the only legitimate question, therefore, was whether, looking at the constitution of the Royal Court as by law established, the crown ought, in justice or on the ground of expediency, to withhold the Royal assent to the two Actes referred to. That in practice two different methods had been adopted where Jurats have desired to resign their office. In some instances the Jurats wishing to retire had made their applications by petition addressed immediately to Her Majesty in Council, and in others to the States. In cases, however, where petitions had been directed immediately to Her Majesty in Council, it had been usual, before granting an Order, to refer the application to the States, and the Orders in Council dated respectively 6th of March, 1837, 21st of October, 1839, and 3rd of April, 1840, confirmed this statement.

It was further urged that the Royal Court, according to the charter of King John, is to consist of twelve Jurats, as expressed in the Charter "Imprimis constituit duodecim Coronatores Juratos ad placita et Jura ad coronam spectantia custodienda;" that in Article iii. of the Charter it is provided "Ii debent elegi de Indigenis Insularum per Ministros Domini Regis et Optimates Patriae, scilicet post Mortem unius eorum, alter fide dignus, vel alio casu legitimo, debet substitui."

 

That the right of the people to elect the Jurats was indisputable, and an Order in Council of the 15th of July, 1813, clearly established who were entitled to vote in the elections, no *101 law affecting a change in this respect having ever been made, whilst, on the contrary, as well by the various Charters since that of King John as by the laws and customs of the Island, the same number of Jurats had always been maintained; that it was true that in troublesome times the places of the Jurats had not immediately, on a vacancy occurring, been filled up, as during the civil war and on the return of King Charles the Second to the throne; but, as would be seen by their Letters Patent, both Oliver Cromwell and Charles the Second carefully desired to maintain the constitution of the Island with regard to the number of Jurats; and referring again to the Charter of King John, which provides for supplying the place of a Jurat dying or a vacancy occurring from some other legitimate cause, it was submitted that ill health had always been considered as a legitimate cause for a Jurat to ask to resign his office, and it was upon similar grounds that Messrs. Ste. Croix and Nicolle sought to resign; that the reasons given by them upon which their applications were grounded were not contested, and it would be harsh towards them if they were under the circumstances and against their will, to have to continue in office.

 

The States by their case further maintained, that they conceived that the question of the alteration of the constitution of the Island, urged by the opposing petition, was not then before the Committee, and proceeded to shew how the proposed alteration had been viewed by the people of Jersey, stating the Royal Commissions of 1846 and 1859 to inquire into the state of the Criminal, Civil, Municipal, and Ecclesiastical Laws of the Island, and submitted that the allegation in the report of the Commissioners appointed in 1846, that the Royal Court neither possessed nor deserved the confidence of the people, was not founded on fact, for that very soon after that report had been published large public meetings of the inhabitants were held, and resolutions passed, entirely repudiating the conclusion at which the Commissioners had arrived, and solemnly protesting against any change by which the people should be deprived of the power of electing their own Judges; they also stated that on the 13th of December, 1860, after the report of the Commissioners appointed in 1859, a proposition, or rather a series of resolutions, was lodged au Greffe, relative to the course to *102 be pursued for the consideration of the recommendations of the Commissioners, but considering that one of such recommendations involved the complete annihilation of the Royal Court, and the effecting of other fundamental changes in the constitution of the Island, the States on that day abstained from proceeding further in the matter, in order to afford the Connétables an opportunity to consult their constituents according to law upon the changes proposed; that, in the year 1861, the Connétables convened public meetings of their constituents, and the result was a unanimous decision of the twelve parishes, directing the Connétables to oppose the change in the constitution of the Island recommended by the commissioners; that, on the renewal of the discussion by the States, that Assembly, on the 25th of May, 1861, unanimously resolved to reject the recommendations for altering the constitution of the Royal Court, but being of opinion that many of the other recommendations of the commissioners for improving the laws of the Island might usefully be adopted, the States subsequently passed various Actes, embracing those recommendations and other subjects, and making considerable changes in their laws.

 

That, on the 25th of May, 1864, the States renewed the discussion of the commissioners' Report of 1859, when it was unanimously resolved to reject the recommendation for altering the constitution of the Royal Court, but the States proceeded to pass Actes, carrying out some of the recommendations of the Commissioners; that, notwithstanding the unanimity expressed by the electors when consulted by the Constables in pursuance of the Acte of the States of the 13th of December, 1860, the States (in consequence of a representation which appeared to have been made to Her Majesty's principal Secretary of State for the Home Department, to the effect that the views of the people had undergone a change with regard to the alterations proposed in the constitution of the Royal Court), with the object of still more clearly and decidedly ascertaining the wishes of the electors, by an Acte of their Assembly of the 15th of December, 1864, determined again to consult the constituents on this important question, and accordingly ordered the Constables to collect the opinions of the ratepayers in each parish in the same manner as in public elections, upon the *103 question, whether they were of opinion to constitute paid Judges instead of the twelve Jurats of the Royal Court, and on the 2nd of January, 1865, the opinions of the electors were collected, and the following was the result:--Actually resident, 3989; against paid Judges, 2298; for paid Judges, 180. That, on the 12th of January, 1865, the States met to receive the returns of the Constables when that assembly adopted the Acte, thereby directing the Committee to whom the subject had been referred, to press the acceptance by Her Majesty in Council of the resignation of Messrs. Ste. Croix and Nicolle, and the States submitted, that the above statements demonstrated clearly that, so far from having a want of confidence in the Royal Court, the people of Jersey, as a body, had the strongest objection to the subversion of that Tribunal.

 

That, with regard to the alleged delays in the administration of justice, the States deeply regretted that any delays should exist, but they asserted that it was far more attributable to the suitors themselves than to the Court; and they submitted that great inconvenience had been felt from the non-appointment of the two Jurats, as by the continued suspension of the election of Jurats, in the room of Messrs. Ste. Croix and Nicolle, the course of justice was impeded, and the States rendered incomplete; and the States finally submitted, that the course of proceeding proposed, to accept the resignation of the two Jurats, but to direct that their posts should not be filled up, would be a violation of the constitution of the Royal Court, and would indirectly operate as a repeal of the law of the Island, which directs that, upon a vacancy occurring in the office of Jurats, a new election shall be ordered by the Court, and prayed that their Actes of the 14th and 29th of January, 1864, might be confirmed by Her Majesty, and that the resignations of the Jurats, Ste. Croix and Nicolle, might be accepted, and an election of Jurats in their place directed.

 

The case on behalf of the Petitioners, the Merchants and landed proprietors, set forth that serious dissatisfaction with the present constitution of the Royal Court had for years existed, and had lately been increasing in the minds of the inhabitants of the Island, the causes of which were fully stated in the Reports of the Commissioners appointed in 1846 and in 1859, which unhesitatingly *104 condemned the present constitution and character of the Royal Court, and recommended the creation of a new Tribunal, to be composed of three paid Judges. And with respect to the representation made by the States, that if Her Majesty should be pleased to accept the resignations of the two Jurats, but to direct that their places should not be filled; such a course of proceeding would be in direct violation of the constitution of the Royal Court as by law established, and that it would likewise in effect operate as a repeal of the law which, as contended by the States, directs that, upon a vacancy occurring, a new election to the vacant office should be ordered by the Crown; the Petitioners submitted and insisted, first, that the present constitution of the Court in no wise differed from its constitution in the year 1734; secondly, that when, upon cause shewn, His then Majesty in Council was pleased to remove and discharge from their office five of the Jurats of the Royal Court, without ordering any fresh elections in their places, as appeared by a letter dated the 11th of April, 1734, from the Lords of the Privy council to the Bailiff and Jurats of the Royal Court, directing them not to proceed to any election of Jurats to replace the five who had thus been removed, until His Majesty's pleasure was made known, which was afterwards expressed by an Order in Council of the 9th of July, 1735, for the election of "three new Jurats only for the present;" which continued until an Order in Council of the 27th of December, 1739, directed the Royal Court to proceed to the election of six new Jurats, being the number of the then existing vacancies, and further directing that, as other vacancies should happen, the Court should proceed to the election of new Jurats to supply their places; thirdly, the Petitioners submitted that, even if it were the fact that on the death of a Jurat the custom had been for the Court to order a new election, yet it did not follow that there was any law which prescriptively directed that upon a vacancy occurring in the office of Jurat, except by death, a new election should be forthwith ordered by the Court, there being, us the Petitioners insisted, nothing in the Order in Council of 1739 which was intended to have or had any force or effect to restrain Her Majesty in Council from suspending at any time the election of new Jurats, should she see just cause for so doing. Fourthly, that by the two Actes of the States sought to be confirmed, Her Majesty in *105 Council was prayed not only to permit the resignations of the two Jurats, but also to appoint fresh elections; whereas the Petitioners submitted that no Order for fresh elections could be required if, as assumed by the States, a general law already existed providing in such cases for fresh elections to be ordered by the Royal Court itself.

 

That if it was contended, that it was not competent for the Crown, except on motion of the States, to accept the resignations in question, and at the same time to direct that, until further Order, no election should take place to supply the vacancies thereby caused; the Petitioners' answer was, that on several occasions the prerogative of the Sovereign in Council to legislate for the Island, motu proprio, had been recognised and acted upon; and the Petitioners submitted, that no limitation or restriction of Her Majesty's prerogative of legislation has since taken place, and, in particular, they denied that any such limitation was intended or effected by the Order in Council of the 28th of March, 1771, whereby His then Majesty was pleased to give effect to certain Ordinances, since called "The Code of 1771," the scope of which Order, as the Petitioners believed, was merely to take away from the Royal Court a power of making Ordinances, previously assumed by that body, independently of the States. They admitted, however, that this power of legislation, ex motu proprio, might be subject to some limitation, as, for instance, where taxation of the inhabitants of the Island is involved; but that no such ground of limitation existed in the present case. That should it appear to the Lords of the Committee that a fresh election must necessarily follow the acceptance of the resignation of a Jurat, the Petitioners would contend that the acceptance of such resignation was matter of grace and not of right; and would not merely deny that by such non-acceptance any wrong would be inflicted, as alleged by the States of Jersey, but would also urge that no inconvenience to the public service which might possibly therefrom arise could be tantamount to the injury which would be inflicted on the Petitioners and all litigants in Jersey, if, by the acceptance of the resignations, and by the consequent occurrence of fresh elections, the delay of the reconstitution of the Royal Court of Jersey were further and indefinitely postponed; *106 and they expressed their belief that if, under existing circumstances, the Royal Court should be ordered to proceed to new elections of Jurats, such Order would by a considerable portion of the inhabitants of Jersey be taken as evidence of the approval by Her Majesty in Council, not only of the continuance of the present judicial system, but also of the conduct of the States of Jersey in relation to the present matter. They insisted that the whole course adopted by the States with regard to the repeated representations of Her Majesty's Government, shewed a determination to refuse, as long as possible, the origination of any measure calculated to remove the objections which are justly entertained against the continuance of the present judicial system. That the measures which the States had adopted as regarded criminal and civil procedure, might or might not be good in themselves, but in the words of the Commissioners of 1859, "the Island has so completely outgrown its judicature, that any reforms which shall leave the duties of the Superior Court in the hands of a numerous body without professional education, whose attendance is precarious, and for whose nomination no one is responsible to public opinion, will be absolutely nugatory."

 

With regard to the allegations contained in the representation of the Petitioners, the Jersey Reform Committee, as to the misappropriation of the revenues of the Island, and in particular of the harbour dues, the Petitioners stated that they did not then seek to urge the request contained in their representation for the appointment of a Commissioner to examine the state of the finances of the Island, nor to enter minutely into any complaints on the general maladministration of the revenues, although believing that, on a proper occasion, they could shew that great defects existed in their administration, owing very much to the circumstance that under the present constitution of the Royal Court, no independent tribunal existed in the Island which could be applied to successfully with the object of remedying such defects; that besides being members, with the Governor and Bailiff, of the Assembly which controls the Imp"t (the chief source of the Island revenues), the Jurats, as members of the States, and, indeed, most frequently as members of particular standing Committees of that body, to whom the details of administration of the finances are entrusted, had a very *107 direct share in decisions which in their judicial capacity they might afterwards be called upon to review; nor did the Petitioners at present bring forward this part of the subject of their representation, except in illustration of the evils of the present system, being desirous rather of urging the former part of their petition, namely, that relating to the non-acceptance of the resignations of the two Jurats; and it was prayed that the confirmation of the Actes of the States of the 14th and 29th of January, 1864, and the acceptance of the resignations of Philipe de Ste. Croix and Philipe Winter Nicolle, Esquires, might not be recommended to Her Majesty in Council; or, if Her Majesty should be advised to accept such resignations, then that the confirmation of so much of the said two Actes of the States as related to the ordering of fresh elections in the room of the two resigning Jurats should not be recommended, but that it be recommended that during Her Majesty's pleasure no such elections to the two vacant places should take place.

 

No case was lodged by the Jersey Reform Committee.

 

Mr. Rolt, Q.C., Mr. Bovill, Q.C., and Mr. W. W. Mackeson, for the States of Jersey:--

 

According to the law and constitution of the Island, there must be the full number of twelve Jurats. The office is for life, but where there are sufficient reasons, as in the present instance, for Jurats tendering their resignations, it is expedient that such resignations should be accepted by the Crown. In the case of death of a Jurat, it is not in dispute that the Royal Court, consisting of the Bailiff and Jurats, can issue their warrant to fill up the vacancy, Falle, p. 146 [Ed. by Durell, 1837], without any sanction of the Crown. [LORD CHELMSFORD:--If the Queen accepts the resignation of a Jurat, can the States proceed to a new election immediately?] Yes; the acceptance of such resignation involves a new election, but we do not dispute the power of the Crown to accept or refuse such resignation; that is within the Charter of King John, but we contend, on behalf of the States, that the resignation cannot be completed without the consent of both the legislative bodies, the Crown and the States. The Crown cannot legislate so as to affect internally the affairs of the inhabitants of the Island, except with *108 the consent of the States, In re the States of Jersey [FN1]. This doctrine was confirmed with respect to the Island of Guernsey, In re the States of Guernsey [FN2], where it was held, that an ancient office, the Contr"le de la Reine, could only be abolished by an Order in Council, with the consent of the States of that Island.

 

FN1 9 Moore's P. C. Cases, 185.

 

FN2 14 Moore's P. C. Cases, 368.

 

The Islands of Jersey and Guernsey are said by Lord Coke, in Calvin's Case [FN3], to be no parcel of the realm of England, 4 Inst, p. 286, and they are governed by their own laws. As to the rights of the Islanders to the benefit of the Charter of King John, that Charter must be taken not as the foundation, but the confirmation of rights which previously existed. The original Charter is lost, but the substance of it is to be found in an inquest taken in the reign of his son, Hen. III., Falle, p. 222, after Normandy was alienated. This inquest recites and confirms the Charter. By the first clause twelve Jurats are appointed, whose offices are now in question. "I. Constituit Duodecim Coronatores Juratos, ad placita et Jura ad Coronam spectantia custodienda." Their further duties are then defined in the second clause: "Constituit etiam et concessit pro securitate Insularum, quod Ballivus de cetero per visum dictorum Coronatorum poterit placitare absque Brevi de Nova Dissèisinâ factâ infrâ annum, de Morte Antecessoris infrâ annum, de Dote similiter infrâ annum, de Feodo invadiato semper, et Incumbreio Maritagii," &c. The third clause is most essential: "Ii debent eligi de Indigenis Insularum, per Ministros Domini Regis et Optimates Patriae; scilicet post mortem unius eorum, alter fide dignus, vel alio casu legitimo, debet substitui." Now, the words "debet substitui" in this Charter, like our Great Charter, are a positive enactment, providing in the event of death, "vel alio casu legitimo," one shall be substituted. The Crown cannot at its pleasure suspend the operation of the Charter. It may inquire into the cause of the resignation. Here sufficient cause has been shewn. Age and infirmity is a legitimate cause. The Charter of John is confirmed by the Charter of Edw. III. in the largest terms. The Crown confirms to the Island "Omnia privilegia, libertates, immunitates, exceptiones et consuetudines, in personis, rebus, monetis, et aliis." Falle, pp. 91, 357. So the Charter of Eliz. ratifies and confirms all *109 and singular the constitutions of the Island respecting the Bailiff and Jurats. Again, by an Acte of the Royal Court of Jersey, in 1564, one Dumaresq was appointed on a death to fill up the number of Jurats. Then the Order in Council of Car. II., 9th May, 1671, recognises the right of election of Jurats. In the year 1734 there were proceedings by the Crown to remove some Jurats for corruption and misconduct, but the other Jurats declined to act, and in 1739 an Order in Council was made for the election of new Jurats. By the Code of 1771 the laws and privileges of the Island are confirmed. [LORD CHELMSFORD:--That Code appears to be an Order in Council registered by the States.] The States agreed to the Code. That may raise a question not now before this Tribunal, as to the powers of the Parliament to legislate for the Island of Jersey. [LORD CHELMSFORD:--Not so. It is with respect to the power of the Queen in Council to make laws for Jersey.] That very question arose: the case of The States of Jersey [FN4]; there the Court refused to register the Orders in Council. It is true that by an Order in Council of the 8th of November, 1811, it is directed that all elections of Jurats should be suspended until certain Commissioners who were about to proceed there should examine the laws relating thereto. Then there is the Order in Council of July, 1813, directing all future elections of Jurats to be according to the Order in Council of the 10th of May, 1671. The history of these Orders in Council fully appears in Le Quesne, Const. Hist. of Jersey, p. 447. [LORD CHELMSFORD:--Is not the whole question this--whether it is expedient that the Crown should prevent a new election of Jurats?] It would be inexpedient and prejudicial to justice and the laws of the Island to accept the resignations without at the same time filling up the vacancies. In the case of ordinary Corporations in England, where there is a body, it is the right of the electors, and of every other person, that the number should be full, and the Court of Queen's Bench will grant a mandamus to compel the Corporation to fill up an office so vacant.

 

FN3 7 Co. Rep. 21, a.

 

FN4 9 Moore's P. C. Cases, 185.

 

The Solicitor-General (Sir R. Collier), Mr. C. S. Perceval with him, for the Petitioners:--

 

There can be no doubt of the power of the Crown to legislate *110 by Order in Council for the Island, Rep. of Jersey Coms, 1859, p. v., and that the constitution of the Royal Court can be altered by an Order in Council. Falle, p. 157, a high authority, expressly states so. The Rep. of the Jersey Com., 1846, p. v., also says that by the Norman law the Duke of Normandy had supreme legislative power, and that the form that this authority now assumes is that of Orders of Her Majesty in council, and that this has been the course for centuries. The case of The States of Jersey, as the report of their Lordships shews [FN5], does not determine that Her Majesty could not, consistently with the constitutional rights of the Island, legislate by Orders in Council, but only that in that particular instance it was expedient to revoke the particular Orders complained of.

 

FN5 9 Moore's P. C. Cases, 262.

 

First, then, with respect to the Jurats. The States rely upon the Charter of King John, but Le Quesne, in his Constitutional History of Jersey, p. 63, doubts whether there ever was such a Charter. It is not described as a Charter in the inquest of his son Hen. III.: Le Quesne, p. 60. [LORD CHELMSFORD:--How long did the Kings of England, retain the title of Duke of Normandy? ] King John gave it up. [LORD CHELMSFORD:--There is a confirmation of the fact of there being a Charter of King John in the Charter of Elizabeth, which speaks of privileges, &c., granted by former Kings of England and Dukes of Normandy.] It was not a Charter under the Great Seal, but a mere Ordinance, and had not the effect of conferring any legislative power. All it did was to give the Coroner a standing jury of twelve to determine certain cases. It did not confer the power the States contend the Jurats have. There can, however, be no question that Her Majesty, even if the resignations are accepted, may withhold the sanction for filling the vacancies, and that during pleasure. [The LORD CHANCELLOR:--Your argument is, that the Crown has undoubted legislative authority in all matters, and, therefore, must have with respect to the Jurats.] Yes. We contend that your Lordships ought to recommend that no election shall take place during Her Majesty's pleasure.

[The LORD CHANCELLOR:--We think that question is properly *111 before us, but that is not necessarily involved in the question of general legislation throughout the Island. If it were to be shewn that Her Majesty had an absolute power of legislating in the Island in the same way as the Queen, Lords and Commons can legislate in England, it would be idle to argue whether she could make a particular disposition with respect to Jurats, because Her Majesty can then do anything. But the question before us is not, whether there is a general power of legislating on all subjects whatever, and uncontrolled on the part of Her Majesty in Council, but whether there was a power in Her Majesty in Council to interfere in this particular instance of regulating the election of Jurats. Your argument must be confined to the expediency of the Crown exercising the undoubted power of accepting or refusing these resignations, and so impliedly sanctioning the elections, if accepted, of new Jurats.]

 

Supposing the Crown should think fit to accept the resignation, still there is the power to direct that no elections should take place to fill the vacancies. [The LORD CHANCELLOR:--The question really is the expediency of exercising that power.] Serious dissatisfaction with the present constitution of the Royal Court exists in the Island. The union of legislative with judicial functions in the persons of the Jurats of the Royal Court and the whole constitution of that Court have been repeatedly condemned by competent and impartial authorities. The Commissioners appointed in 1846 for the consideration of the Criminal Law, and in 1859 for inquiring into the Civil, Municipal, and Ecclesiastical Laws of the Island alike condemn the constitution of that Court. With respect to the Jurats, they are elected not by the optimates patriae and ministri domini regis, but by the suffrage of the voters in the Island. Though they act as Judges and legislators they are not lawyers, many are tradesmen, and the only qualification for the office is that they must possess forty quarters of wheat per annum. They are not bound to attend to their judicial or legislative duties, and attend only when it is convenient for themselves; and the Commissioners of 1846, in their Report, p. xlii., express their opinion that "a Court so constituted is unfit, from want of legal knowledge, to *112 administer the law." [LORD CHELMSFORD:--It is right on behalf of the Jurats to say that, although the constitution of the Court is condemned, and although many of the Jurats may have been elected for party motives, the Commissioners all say there is no imputation at all on their integrity.] That is so. The Report of 1859 states, that the practice of the Royal Court is, in fact, intolerably dilatory and vexatious, the chief magistrate being powerless, the actual Judges numerous, their attendance precarious, and their appointment without reference to judicial qualifications in themselves. The nature of such a Court is extremely inconvenient and objectionable, and it is absolutely necessary that a reform should at once take place, which would be interfered with if the vacancies in question are filled up and tend to perpetuate the Court. [LORD CHELMSFORD:--As long as the Royal Court exists, ought it not to be efficient to perform its functions?] An election in the present circumstances would not add to its efficiency, and no legislative action in the desired direction can be expected from the States, if their application for new elections be complied with.

 

The LORD CHANCELLOR

interposed, and said, that the opinion their Lordships had formed, and the advice they would humbly tender to Her Majesty was, that though the Committee were strongly of opinion that a complete change in the constitution of the Royal Court was absolutely necessary for the welfare of the Island, yet as neither the refusal of Her Majesty--in the exercise of her undoubted right--to accept the resignations, nor the suspension of any new election of Jurats to supply the place of those resigning, would have any immediate effect in improving the present constitution of the Royal Court; and as Her Majesty would certainly desire that, until the constitution of the Court is effectually reformed by legislative interference, no course should be taken which might have a tendency to render it less efficient than it now is: therefore the Committee would humbly advise Her Majesty to accept the resignations, and to authorize new elections in the place of those resigning. This, his Lordship added, is the unanimous opinion of their Lordships to whom the matter has been referred.

 

As is customary in references of this nature no judgment *113 was delivered. The following report of the Lords of the Committee was made on the Petitions:--

 

Her Majesty having been pleased, by Her General Order to refer unto this Committee the several Acts of the States of the Island of Jersey, and other documents hereinafter described, relative to the retirement of M. Philipe de Ste. Croix and M. Philipe Winter Nicolle, two of the Jurats of the Royal Court of the said Island, viz.:--Act of States, 14th of January, 1864; Act of States, 29th of January, 1864, Petition of the Landed Proprietors, Merchants, &c., of the Island; Act of States, 12th of January, 1865; Petition of the States of the Island, 14th January, 1865; Representation of the States, 7th of April, 1864; Petition of Committee for Reform in Jersey, 1st of October, 1864; Representation of Committee of Reform, 24th of June, 1865. The Lords of the Committee, in obedience to your Majesty's said Order of Reference, have this day (18th of January, 1866) taken into consideration the said Acts and the said Representations and Petitions; and having heard Counsel on behalf of the States, and of the Petitioners against the confirmation of the Acts of the States of the 14th and 29th January, 1864, their Lordships do agree humbly to report as their opinion to your Majesty that, although they are strongly of opinion that a complete change in the constitution of the Royal Court is absolutely necessary for the welfare of the Island, yet, as neither the refusal by your Majesty, in exercise of your undoubted right to accept the resignation, nor the suspension of any new election of Jurats to supply the place of those resigning, would have an immediate effect in improving the present constitution of the Court, and as your Majesty would certainly desire that, until the constitution of the Court has been effectually improved by legislative interference, no course should be taken which might have a tendency to render it less efficient than it now is, their Lordships, therefore, humbly advise that your Majesty may be graciously pleased to permit the said Philipe de St. Croix, Esq., and the said Philipe Winter Nicolle, Esq., to resign their offices of Jurats, and to allow them to continue during their lives all those privileges and distinctions which Jurats do now, or may hereafter, enjoy, as far as your *114 Majesty may be enabled in law. And the Lords of the Committee are further of opinion, that your Majesty should authorize that new elections of Jurats should be made according to the laws and constitution of the Island of Jersey to supply the said vacancies.

 

Representation

 

Solicitors for the States: Jones, Blaxland, & Jones.

Solicitors for the Petitioners: Hancock, Saunders, & Hawksford.

 

(1865-67) L.R. 1 P.C. 94