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JERSEY PRISON BOARD CASE -
NOTES OF PROPOSED ARGUMENTS

R.B. HALDANE QC[1]

The case of the States of Jersey against the Order in Council of the June 23rd, 1891, was considered by the Special Committee of the Privy Council with reference to the question whether that order was or was not a breach of good faith, having regard to the bargaining between the Island and the Imperial authorities which led to the passing of the Order in Council of 1837, under which the present Board was constituted. Had this contention on behalf of the States not proved successful, their counsel would have entered upon the consideration of the larger question, whether, assuming the Crown to be free from any obligation arising out of an antecedent bargain, it was competent to the Crown to legislate for the modification of the present Board without the advice and consent of the States of Jersey.

I propose in this memorandum to state briefly what would have been the argument on behalf of the States of Jersey in support of this second contention. That argument consists of two main propositions; the first is, that there has grown up in Jersey a legislative assembly in the full constitutional sense, and that, while that assembly has varied in its characteristics from generation to generation, it has in such variations exhibited a development parallel to that of the English Parliament.

This may be said to be the minor premiss. The major premiss and second proposition is, that once grant that such an assembly has come into existence, and it follows that the Crown cannot legislate with out it or derogate from its powers. From these two premises follows the conclusion that the present action of the Crown was beyond its powers. I shall proceed to consider the major premiss of the argument first. It may be asked whether, by saying that legislation by the Crown is not competent - that the Crown alone is competent where a legislative assembly exists, - it is meant that such legislation is wholly unconstitutional, or that it is both unconstitutional and illegal. Undoubtedly there are certain unwritten maxims of our constitution of which the Courts can take no cognisance, but which yet are observed by statesmen, and must be observed by a semipolitical body like the Privy Council, which is called upon to exercise, not merely judicial functions, but the functions of Administrative Government in advising Her Majesty. Illustrations of the application of the kind of maxim in question may be found in the case of the theoretical power of the Crown to veto a Bill passed by both Houses of the British Parliament. This power has not been exercised since the time of Queen Anne, and while no Court could take congnisance of the unconstitutional nature of the action of the Crown, if the Crown chose to exercise its power of veto to-day, unquestionably the exercise of that power would be grossly unconstitutional. Another illustration of a similar maxim is that the House of Lords does not originate money Bills. There is nothing to prevent any Peer from introducing such a measure in the House of Lords, but if that House were to pass such a Bill its action would be resented as unconstitutional. But the case goes still further, because the famous judgment of Lord Mansfield in Campbell v Hall[2], shows that, where the Crown has once parted with the power of legislation to a legislative assembly, either by a paper charter, or by unwritten usage allowed to grow up, it is not competent for the Crown afterwards to resume its power of legislating, and that even the ordinary Courts will take notice of the illegality of any attempt of the Crown under such circumstances to legislate without the consent of the Legislative Assembly. It will therefore be of much importance to examine the nature and historical development of the Jersey Legislative Assembly with a view to seeing whether it comes within the proposition laid down in Campbell v Hall.Before doing so it will be convenient to make some general observations upon the relations of the Jersey Constitution to the Imperial Government. In Jersey it is conceived that the constitution contains two elements, the Legislative Assembly and the Crown as the executive power. Both are subject to the Imperial Parliament, that is to say, to the Crown acting by and with the consent of the Imperial Parliament. It must now be conceded, what was laid down by Lord Coke, although for a time it was denied, that Jersey is subject to the legislative power of the Imperial Parliament so far as the question of legal power is concerned, although it might be grossly unconstitutional for the Imperial Parliament to exercise that power. Conceivably the case might have stood otherwise. If the Channel Islands had formed part of the Dominions of the Crown only in the sense that Hanover once did - in other words, if they had belonged to the Crown, not in right of its existence as the British Crown, but in right of the Sovereign in a different capacity, it might well have been that Parliament would have had no such power. But it is not now contended that the Channel Islands present an analogy to the case of Hanover; and, subject to the reservation of all questions of constitutionality, it is not part of present argument that such power does not exist. Reference may be made to the debate which took place on this subject in the House of Commons on June 26th, 1861, as reported in Hansard; see particularly the speeches of Sir George Grey, Sergent Pigott and Mr Rolt. The Legislative Assembly in Jersey is therefore a subordinate legislative body just as, for that matter, are the Parliaments of Canada and Australasia. A second feature is that the Crown, also in its prerogative capacity as exercising executive and prerogative functions, is subordinate to the Imperial Parliament; and that, not only in exercising these functions in Jersey, but in exercising these functions in Great Britain and throughout the Empire. This is a modern doctrine. At one time it was contended that the power of the Crown could not be taken away by Parliament, - the doctrine of the suspending and dispensing power proceeded on this basis, and its final overthrow is an illustration of one of the most striking features of our constitution, its nature as a developing constitution, the elements of which have new relations to one another as generation succeeds generation. Blackstone, in Volume 1 of his Commentaries, as page 342 says of the suspending and dispensing power - “The doctrine of non obstante abdicated the “Kingdom”. Bates’ case decided in 1606, and reported in the second volume of the State Trials; Thomas v Sorrel decided in 1674, and reported in Vaughan’s Reports at page 330; and the Ship Money case, decided in 1637, and reported in the third volume of the State Trials, all illustrate the doctrine. In the last of these cases Chief Justice Finch laid down that the King was only bound to call Parliament when he pleased; that there was a King before Parliament existed, and that Acts of Parliament to take away the Royal power of defense of the Kingdom are void. It is to be observed that the Declaration of Rights in 1688 only condemned the dispensing power “as it has been assumed and “exercised of late”. Although, therefore, Parliament is now Supreme over the Crown this was not always so, and it is a state of things which has only gradually grown up. What may be called the prerogative power of the Crown is what remains of those powers of the Sovereign which can be exercised without consulting Parliament. These powers have been steadily diminishing; Parliament has gradually got power of the Executive through the medium of finance and nothing is more striking than the way in which as generation succeeds generation the undoubted prerogative powers of the Crown cease to be exercised. For example, it is one of the prerogative powers of the Crown to fix and alter the boundaries of the Kingdom, and yet, in the case of Heligoland, and in the case of the Canadian boundaries as settled by the Queen in Council in 1883, Parliament was, by common consent, invoked as the only body which could properly deal with the question of boundaries in the last instance. It is within the prerogative of the Crown to create Courts, and yet it would no more be constitutional for the Crown to day to create a new Court of Appeal than it would be to declare the Isle of Wight no longer a part of the United Kingdom.

The next observation that is to be made is upon the relation of the States of Jersey to the Executive power. In Jersey the Executive power is in the Crown in the main, and the Crown is largely advised by the Imperial Privy Council in the exercise of these Executive functions.

The distinction between a Legislative Assembly and a Parliament is pointed out in Professor Hearns’ book on the Government of England, at page 134. A Legislative Assembly controls the power of legislation but it does not control the power of the Crown to select its responsible legal advisers. Where Government is not merely constitutional in the sense of there being a representative legislative body, but that representative legislative body controls the action of the executive by being the body from which the advisers of the executive body are selected, there the government is not merely constitutional, as was the case in Campbell v Hall, but is responsible. It is interesting to turn to such a document as the return which was made to the House of Commons in 1889 on the nature of Colonial Executives, and to see how throughout the Empire things vary. In Cyprus, for instance, the Executive is wholly in the Crown and the legislative body has no control over it. At the Cape this was once the case, and the same thing was true of the Australian colonies, but periods have come in the history of the Cape and the Australian colonies (see the passage referred to in Professor Hearn’s book), at which the Government has become responsible as well as constitutional, and the Crown has been compelled to select its advisers from the members of the Legislative Assembly, and to be guided in its action by advice from that quarter. In Jersey, while the general features approximate more nearly to those of merely constitutional as distinguished from responsible Government, the Government in some points is responsible; for example, the Royal Court which is in the main popularly elected, administers many things, such as the Impôt. The Prison Board administers the Prisons, and the States themselves control a good deal of the Administration. In Jersey the Crown has always had a revenue of its own, with the result that we do not find in the constitutional history of the Island that constant struggle between the Crown and Parliament, the Crown seeking to obtain supplies and Parliament exacting terms as the price of granting them, which we find in England, and which has led to large limitations being placed on the prerogative powers of the Crown. The result is that in Jersey the prerogative is considerably larger than in England. For the same reason it is true that the power of the Crown to intervene effectively in legislation as an independent element in the legislation of Jersey is more effective and has been less cut down than in England. It may be said that while in England the Crown has no real power of initiating legislation [the apparent exceptions in cases in which Money Bills and Bills affecting the prerogative are introduced by a Minister of the Crown only, but a Minister, who, after all, is only a member of the Committee of the majority of the House of Commons] in Jersey the Crown has still a real power to initiate legislation and also to veto it. The veto of the Crown in Jersey is apparently a double one, exercisable both by the Government in Downing Street, and by the Governor and Bailiff present on the spot. Turning to the nature of the legislative power in Jersey it is submitted that it consists of the Queen legislating by and with the advice and consent of the States as a representative assembly. The Monarchy in Jersey would appear to be a limited monarchy in as real a sense as the Monarchy in this country is limited. The vulgar view of a limited monarchy is that there is a monarch on one side who could act independently were he not limited by the restricting force of a Parliament as an independent body on the other side. This is not the true theory of a limited Monarch. In this country by Common Law the legislative will can only be expressed by the Crown acting in a legislative assembly; see Hearn, pages 15 to 28 and at page 96. This is part of the Common Law of the land. The earlier authorities show that the Saxon Kings such as Alfred were not absolute Monarchs, but exercised their legislative will only in an assembly. Authorities to be referred to presently show hat the same was true of the Norman Dukes. Not only the legislative power of the Crown, but its executive power even without its prerogative can as a rule only be exercised according to well ascertained forms, and the Courts will take no notice of any alleged exercise of the Sovereign power except when evinced in accordance with these forms; for example, certain acts of the Crown require at Common Law the use of the Great Seal for their expression, and others, until the Act of 1884, required in like manner the use of the Privy Seal. A prerogative act of the Crown done no matter how deliberately and not expressed through the medium of these seals in cases where the constitution treated them as requisite, would be ignored the Courts. It may be stated broadly that the prerogative power of the Crown could not be exercised otherwise than in accordance with the Common Law. The Wiltes Peerage case, reported in 4 English and Irish Appeals illustrates this doctrine. The form of an Act of Parliament, “Be it enacted by the Queen’s most excellent Majesty by and with the consent of the Lords spiritual and temporal and of the Commons in this present Parliament assembled” suggests by its language that the Sovereign is the real foundation of legislation. But this is so only in form, because the law says the legislative will can only be expressed in the Parliament. If this analogy applies to Jersey, and it will be shown that it does, it is absurd to talk of the Crown in Council having a co-ordinate power of legislation with the Crown acting by the advice and with the consent of the Jersey Legislative Assembly.

It is inconsistent with the very notion of a constitution, and there appears to be only two alternatives, the one is to hold that there is no real legislative body in the Island, such as is requisite to endow it with what is called a constitution; and the other is to hold that such power as the Crown has in Council independently of the States is limited to executive functions – functions which, as we have already seen, may be conceded to be wider – probably considerably wider – in Jersey than in England. It is impossible that there can be any supreme authority to which the States are subordinate, other than the Imperial Parliament, and that is as true of Jersey as it is of Canada. If this be so we shall expect to find by way of parallel to the development which has taken place in the English Constitution, a development in the relative powers of the Crown and the States in Jersey, of the nature indicated by Professor Hearn at pages 51 to 61 of his book. Let us glance at the form of legislation in the Island. There may be said to be in existence two forms in which acts are passed, one the Projet de Loi, passed by the States and afterwards assented to by the Crown in Council; second, the Order in Council assented to by the States in the process of a Registration. This second form, will be the only one where the proposed legislation seeks to affect some right of the Crown parallel to the case of an English Bill affected the prerogative which constitutionally can be introduced only by a responsible minister. For reasons already pointed out such cases are likely to be more frequent in Jersey than in England. But in both cases the advice and consent of the legislative body formed an integral part of the legislative Act. A reference to the precedents in the Appendix will show that this is so and has been so without a single exception since the days of the Stuarts. In the present case the Crown appears to rely on certain exceptions, but when the precedents for them are examined they will be found to resolve themselves into executive as distinguished from legislative acts, or into judicial acts, for in the case of every subordinate constitution there must be, whether it be Jersey or whether it be Canada, a supreme judicial power such as is vested in the Queen in the Imperial Privy Council to determine questions of constitutional law and practice. This is not so in Britain, where not the Privy Council, but the House of Lords is supreme, the reason for this being that the Parliament is sovereign and omnipotent and cannot recognise any tribunal as capable of controlling it; but it is otherwise throughout the rest of the Empire. A third class of exceptions are Orders in Council made under the powers of Imperial Statutes on matters which are of an Imperial as distinguished from a domestic character.

Turning to the present constitution of Jersey we find that Jersey formed part of that Duchy of Normandy which early in the tenth century Rollo received in fief from Charles the Simple; that the other Channel Islands were separated from that Duchy when John lost it, and that Jersey was governed along with Guernsey, Alderney and Sark until the time of Henry 7th, who gave to Jersey a Governor and Bailiff distinct from the other Islands. Glancing at the composition of the Assembly of the States to-day we find that it consists of 50 ordinary members, viz. 12 jurats elected for life by the ratepayers generally, 12 rectors of the Parishes of the Island appointed by the Crown for life, 12 constables elected for 3 years by the ratepayers of the Parishes, and 14 Deputies elected by the parishes for 3 years, this last element having been added in 1856. The Lieutenant Governor and Bailiff are also members of the Assembly, so also the Attorney General and the Solicitor General who are appointed by the Crown and who have seats but no votes, and the Viscount who appears to have a seat but no vote or right of speech. The office of Bailiff is an office of Norman origin, older than that of the Government; he was originally the general representative of the Duke and the Guardian of his Rights and Revenues and under the Norman rule he exercised very high judicial functions. Today he presides over the Royal Court and the States, the latter of which bodies he convenes although the summons requires the previous consent of the Governor, a consent which cannot be withheld for more that 15 days except in special circumstances. He has a casting vote in his presidency over the States; if he dissents the progress of a Projet is checked pending the decision of the Crown. By an Order in Council of 1618 he has precedence over the Governor in the States and the Royal Court. By a still earlier Order in Council 1616 the charge of military affairs is to be wholly in the Governor and the administration of Justice and civil affairs are to be in the Bailiff. The salary of the latter arises from the Crown Revenues and from fees. The office of Governor is now abolished, or at all events has not been filled up since 1854, but a Lieutenant Governor discharges its duties. Originally the Governor was called a Captain and continued to be so called until James 1st’s time. Richard 1st appears to have granted rights over the Island to John, Earl of Mortain, afterwards King John. The Crown appears to have been in early days in the habit of making such grants, and it was not until the time of Henry 7th that any clear distinctions was made between the office of Bailiff and that of Governor. The Crown grants appear to have been grants to individuals who took all the revenues and sometimes paid a fee farm rent. The Lieutenant Governor has a seat but no vote in the States. The Treasury takes now the whole of those Crown revenues which used to go to the Governor and pays the Lieutenant Governor out of them. He has a negative voice in legislation but it is not to be exercised except on such points as concern the special interest of the Crown; see the Order in Council of June 15th 1618, and the Code of 1771[3]. Turning to the Royal Court, the Royal Court and the States were apparently at no time two separate and coordinate bodies. The Court consists of a Bailiff and 12 jurats. It has some administrative functions besides those that are judicial. It is charged with administration – with administration of Orders in Council and in its capacity of an assembly of the Governor, Bailiff and Jurats, it administers for public purposes part of the Impôt. In point of fact it is very closely connected the States; the real theory of it would appear to be that it was originally not only the judicial tribunal but the legislative body of the Island; that it continued to exercise legislative functions down to the time of the passing of the Code in 1771; and that the States were really an addition to its members which developed into a legislative assembly of what was originally one and the same body. The revenue of the Island consists of the hereditary revenue of the Crown, the general rates levied by the States, the Parish rates, the rates on imported wines and spirits, the right to levy which Charles 2nd granted in 1668 and which has since been increased by the States with the assent of the Crown, and is now in the main at the disposal of the States. The duty on tavern licenses and the anchorage dues are levied by the States with the assent of the Crown, to which they formerly belonged.

Falle, in his history pages 8 and 9, describes how the Duchy of Normandy arose and how Rollo stood in the relation of one under suzerainty to the Kings of France. There was a parallel between the Constitutions which grew up in Normandy and in England. As has already been indicated the English Constitution knew nothing of the theory of an absolute Monarch. In the Witanagemot the King and the Aldermen declared Hoc est voluntas regis et principium ejus. Alfred issued his Code with the counsel and consent of his Witanagemot; see Stubbs, volume 1, pages 148 to 157. No doubt the personality of the King was all important, but he was hedged in by constitutional forms; Stubbs 1, 165 to 167. Nor in Normandy, although some of the Dukes were personally very powerful, were they absolute Monarchs. Palgrave suggests the contrary, but the researches of Freeman; see his Norman Conquest, 3rd edition, volume 1, at page 173, and Stubbs, volume 1, page 284, point to the contrary conclusion. After the Norman Conquest the Saxon and Norman forms of Government appear to have reacted on one another and tended to assimilate; see Freeman’s account of the Council of Lille-Bonne; Norman Conquest, volume 3, page 287. William the Conqueror used to assemble the States in constitutional fashion, see the account of the Councils of Caen in 1042 and 1061, and Lille-Bonne in 1066 and 1080; Houard, Dictionary of the Custom of Normandy, volume 2, page 170, and volume 3, at page 188, see also the documents in the Appendix, volume 3 in the present case, Nos. 427 and 428. After the Conquest, the Norman States remained, but we find the Kings of England; for example, Henry 1st, fixing the time and place when they should assemble; see Howard, volume 1, pages 11,12 and 13; (see also the quotation from Rouillé, Appendix, volume 4, page 965 et seq.), and Terrien, Appendix 4, page 970 et seq.) The only authority to the contrary is that of Poingdestre, but Poingdestre was a strong royalist, who had been maltreated by the English Parliamentarians and chased out of Oxford, and who went to Jersey, and was illegally made a Jurat by King Charles the second; (see an illegal order with reference to him at page 377 of the Appendix). He is therefore a biased authority.

As the records in Jersey were burnt in the year 1520, we know little about its constitutional history in early times. We know as regards England, (see Stubbs, volume 1, 619), that the Kingly power continued to grow after the Conquest until curbed by Magna Charta. In King John’s time the King made an attempt at absolute power. It will be observed that the Magna Charta makes no mention of Parliament. In these days the three departments through which the Sovereign will was expressed – the Legislature, the Executive and the Judiciary, were not distinguished. In Angle-Saxon times all three were included in the Witanagemot. The Norman euria ducis was only a section of the magnum consilium; it ultimately became the curia regis. In 1107 the curie regis was organised under Henry 1st and the three Common Law Courts of King’s Bench, Common Pleas and Exchequer were subsequently developed out of it, and fully distinguished in Henry 3rd’s time. The Court of Chancery came into existence about 1348. We find the first definite summons to a Parliament of the three estates in the time of Edward 1st.

Summarising the whole matter as regards England we observe first, that the Anglo-Saxon Kings legislated by advice of the wise men assembled in Witanagemot, and that this was an assembly of the whole nation – in theory at least, whether there was any representative assembly, query; but all could come to the assembly. Second in Normandy, in the time of William, the Duke legislated by the advice of his Council which was large and contained in theory all the tenants in capite. Third, the two assemblies merged after the conquest, and after William’s death the King’s Council which was composed of the Council which the King chose to call, exercised all legislative and executive functions. Fourth, not till Edward the first’s time is there any real Parliament in the sense of a definite representation of the three States. Fifth, as soon as there is a definite Parliament there begins a struggle against the exercise of the prerogative in legislation which reached its highest point in Parliament at the end of the 14th century under Richard 2nd. When and not until Parliament comes to control the Executive and Assenting power, does a Bill, as distinguished from a petition to the King by Parliament, become a form in which legislation takes place. The real origin of the power of Parliament was the necessity of the Kings to ask for grants which the Parliament only made on terms. As already pointed out for these disputes there appears to have been no cause in the Channel Islands, where the Royal revenue was relatively large, but from time to time charters extending the power of the people and by implication curtailing that of the Crown, were granted as rewards for loyalty. In England the confirmatio cartarum of Edward 1st established that there should be no taxation without the consent of Parliament. In 1322 Edward the 1st granted that there should be no legislation without the like consent. In these early days we find no clear distinction between ordinances or orders of the Kings without the consent of Parliament, and statutes passed with its consent; (see Anson on the Constitution, volume 1, pages 209 to 213); (see also Erskine May, Parliamentary Practice, page 433); (see also Stubbs, volume 2, pages 636 to 642). In Henry the 8th’s time, and indeed throughout the latter days of the Tudors the power of the sovereign was very great, but nominally it was exercised with the assent of a Parliament which was completely controlled. The doctrine of the prerogative and of the Divine Right appears to have become prominent for the first time in the days of the Stuarts, having been called into existence in consequence of the doubt about James 1st’s title to the succession. It was after this that by considerable degrees the Executive and vetoing powers of the Crown were brought more and more under control until the power of veto died in the year 1707.

I will now turn to the parallel development of Jersey constitutional history. Jersey is one of the Channel Island’s and the Channel Islands formed a part of the Duchy of Normandy, which became a possession of the British Crown when William the Conqueror became the King of England. In whatever distinct right the Channel Islands may originally had been held, it is plain that they now form a possession held in right of the British Crown as such. When King John lost the Duchy of Normandy the Channel Islands remained. The first important section of the constitutional history of Jersey is that which lies between the formation of the Duchy of Normandy under Rollo, who stood in the relationship of suzerainty to Charles the Simple; and what are called the Constitutions of John. As we have already seen the information about this period is very vague owing to the burning of the records in 1520. The general feature of the time was probably a growth in the Channel Islands analogous to the growth in England of the Kingly power. It was in this period that Captains, afterwards called Governors, began to be appointed. The earlier extant documents such as Nos. 36 and 37 in the Crown Appendix show that Justices and Bailiffs existed in early times, but not Captains or Governors. The first case of the appointment of such a Captain appears to have been a grant in fee as an appendage by Richard the first in favour of King John, who was at that time Earl of Mortain, about 1190; (see Fulle, page 128). In 1199 John came to the throne, and he granted the Channel Islands to Pierre de Preaulx. The earlier documents in the Appendix; (see No 38 et Seq.), are worth glancing at. Magna Charta did not extend to the Channel Islands, but about the same time John granted his famous Constitutions. The original has been lost, but notwithstanding the doubts that have been raised as to their authenticity they are relied on as genuine, not only by the Royal Commissioners of 1860, (see Appendix No. 447 p. 1044); but also by an Order in Council of July 15th, 1813, set out at page 608 (see p. 600) of the Appendix. In 1248 an Order was given to Drogo de Barentin to make inquisitions for Jersey and Guernsey, (see No. 50). The return for Guernsey only is extant (No. 51), but there are complications of the return for Jersey which contained the substance of John’s Constitutions; (see Havet, Appendix, part IV, page 1054), and (Le Quesne at Pages 53 and 225 of his history). The constitutions themselves will be found in the Island Appendix at page 2, and it will be seen that they form a sort of Magna Charta of the Island dealing with the election of Jurats in administration of Justice, and other important matters. Passing to the next period, this extends from the constitutions of John down to a Charter of Henry VII in 1494. This was granted in response to petitions[4]. It confirms the ancient laws and privileges which appear to have been recognised as a part of body of Common Law of the Island, which the sovereign never attempted to alter. It restrains the powers of the Governors and it separates the civil from the military authority. It was in this reign that Jersey was separated from the rest of the Channel Islands. Meantime in 1279 a Seal had been granted by Edward 1st to Jersey; (see Appendix No. 53); and from time to time itinerant justices had been sent to the Island. In 1309 certain pleas quo warranto were held before Fresingfield and others; (see Appendix 59). Apparently at this time the Sovereign was setting up a claim to legislate, but this claim is not recognised. This was apparently the result of the quo warrantos which seem to have been abandoned in the reign of Henry 3rd. Reference may be made to No. 60, and the Report which followed upon it as showing consent of the Jurats and the community as a necessary element in the making of laws for the Island. Indeed it is at this point that we find that written recognition of the community – the Island at large or the Jurats or the States. No 64 in 1323 consists of various ordinances of Justices in Eyre; it recognises the judicial administration as in the hands of the Bailiff and Jurats. As this Report was beneficial to the Island it may well have been made with the Islanders’ consent. In 1331 we have the last writ of quo warranto; (see Nos. 67 and 69). As the quo warrantos never reappeared, complaints, which were the subject of them, were presumably acceded to. Then follow a series of documents consisting of charters which confirm liberties and so no, No. 75 referring also to taxes and free trade. In 1462 Maulévrier had seized part of the Islands in the name of the King of France; (see Le Quesne, 122). No. 76 of the Crown Appendix contains the ordinances which Maulévrier made; they have, of course, no legal effect, but form some evidence of what the constitution of the Island was at that time.

The next constitutional period is that which terminated in 1591 when Pyne and Napper’s ordinances were made as the result of a commission form Queen Elizabeth, apparently with the assent of the States. They recognised the States as a Common Law assembly.

The next period ends with an Order in Council in 1616, made after a Report by Bird and Conway, who were commissioners dispatched in 1607, to settle disputes which had arisen between Governor Peyton and Bailiff Herault; this Order assigned military matters to the Governor and civil affairs to the Bailiff. It was followed by an Order in Council of 1618 assigning to the Bailiff precedence over the Governor in the States and the Royal Court.

The next period ends with an Order in Council in 1616, made after a Report by Bird and Conway, who were Commissioners dispatched in 1607, to settle disputes which had arisen between governor Peyton and Bailiff Herault; this Order assigned military matters to the governor and civil affairs to the Bailiff. It was followed by an Order in Council of 1618 assigning to the Bailiff precedence over the Governor in the States and the Royal Court.

The next period terminates with the year 1669 when Charles the Second granted to the Bailiff and Jurats power to levy the Impôt on foreign wines and spirits. In the meantime during the reign of the Stuarts, who asserted the doctrine of the Kingly supremacy to its last limits, there are certain Orders which require consideration. The general contention on behalf of the States about the whole matter is that a study of the precedents relied on will show that all legislation took place either upon the petition of the States, and in that way with their consent, as used to be the case in England, or by Order in Council assented to by the States through the medium of registration. There are one or two Orders in Council where the Crown appears to have asserted a title to legislate without the consent of the Jersey Parliament, (see for example, No. 146 of the Crown Appendix, dated 12th June 1635), but this order appears, from a subsequent Order in Council set out at page 401, to have been made by Strafford in the Star Chamber and is of no authority as a precedent today in view of the constitutional developments which have taken place in our own country. Indeed it may be generally said that up to the end of the reign of James 1st all legislation had taken place with the advice and consent of the people of the Island. It was only in the time of Charles 2nd and James 2nd with the instance of Charles 1st’s reign to which we have already alluded that there are any exemptions such as those set out in the Appendix at pages 364 and 402. As soon as we reach the end of the Stuart reign there are no more exceptions, and all the instances of apparent legislation on the part of the Crown by Order in Council without the assent of the States will be found to be cases in which, having regard to the more extensive executive and judicial functions of the Crown under a constitution such as that of Jersey, the instances relied on are, when scrutinised, instances of judicial executive acts. In 1771 what is called the Code was passed, of which sufficient extracts will be found in the Appendix. Under the Code of the Royal Courts ceased to have any legislative powers; the principle of Registration of Orders in Council is defined, and it will be found that there is no instance of any real legislation by Order in Council since the Code until the present attempt. The history of the Executive is likewise illustrated by the precedents. Originally that Executive was completely in the Crown and the Judiciary. Then came the Constitutions of John which stripped it of all judicial functions, but the Crown still claimed the right notwithstanding these Constitutions to send over Justices in Eyre. Then came the Charter of Edward 3rd, No. 69 in the Appendix, following on the Petitions set out at page 150 and which practically put an end to the visits of two Justices in Eyre and the quo warrantos. In 1669 the Charter of Charles II handed over the Impôt to the Assembly of the Governor, Bailiff and Jurats of the Island to be administered, and this Charter was renewed from time to time. In 1679 there was passed what was called the May Order which made Registration necessary to the validity of all Executive Acts. Whether or not this May Order was subsequently repealed by the December Order in Council of the same year is not really important to consider, because the Code of 1771 re-enacted in substance the provisions of the May Order.

The latest important events in the Constitutional history of Jersey where the Three Orders Case in 1853, reported in the 9th Moore, Privy Council Reports, with the Victoria College case; both of these relating to the validity of Orders in Council, and the Order in Council in both these cases being set out in the Appendix. The analogous Guernsey case in 1861, reported in the 14th volume of Moore, as well as the other two, established, after full argument, that it was so doubtful whether the Crown had the power to legislate in the Channel Islands that the Privy Council would not advise Her Majesty to attempt to exercise any such right. Together with the present case they may be taken as rendering it very improbable that the attempt will ever be made again to legislate without the advice and consent of the States. This seems to be true of Guernsey also where the constitution, although not by any means identical with that of Jersey, has grown up in a fashion somewhat analogous.

To sum up the whole matter, - the principle of the Constitution appears to be that of a limited Monarchy, the tendency having been, as time has gone on, towards permitting the Legislative, Executive and Judicial will of the Crown to be expressed only in strict constitutional forms; and an evolution has taken place parallel to that in England and varying as that in England has varied. The Constitution there, as here, is an unwritten and developing constitution; and the fallacy of the Crown’s contention in the present case appears to have been in treating the Constitution as though it were rigid, and in relying on early precedents which, in the light of the change of circumstances of today, are not precedents at all. The legislative power of the Crown resides in the Crown, - in the Assembly of the States, and not in the Crown personally or in Council. Until the Code of 1771, it was the form of legislation, just as the form of legislation have used to be, to petition the Crown and for the Crown to assent to the prayer. At times the Crown, having regard to the distance, would direct Commissioners to go over and establish laws with the assent of the States as was the case with the Commissions of Pyne and Napper in 1591. At other times Commissioners would be sent over to inquire and report to the Crown, for example, the Reports of Hussey and Gardner in 1607 made on petition of the States, and Paulet and others in 1609, and Conway and Bird in 1617, and the Orders made on their Reports. Besides the instances which we have given of the Crown acting without previous petition – instances which for reasons already adduced cannot be relied on today – there are one or two questionable examples of a later date which are almost all explicable. No. 243 p. 548 is, except in one questionable point, really when examined a judicial settlement of the dispute by the Crown in its judicial capacity; and No. 273 p 605 appears not to have been insisted on, for apparently it never was registered. No. 702 was abandoned. After the Code all legislation appears to have been settled by Projet de Loi or Bill passed by the States, and set up to be confirmed by the Crown, or with very rarely and indeed almost never an Order in Council made by the Crown in the first instance, and sent to the States to be assented to in the form of Registration. There is one instance only of a petition after the time of the Code, (see 240 B. in the Supplemental Appendix). All apparent exceptions to these rules turn out on examination to have been either prerogative executive or judicial acts, and it may with some confidence be asserted that having regard to the constitutional developments in this country and the development which has taken place in the constitution of Jersey itself, there is now no constitutional power in the Crown to legislate for the Island without the advice and consent of the States.

[1] Editorial Note

The dispute between the States of Jersey and the Crown arising out of an Order-in-Council of June 23rd, 1891 was one of the important milestones in the evolution of parliamentary government in the Island. As with many such milestones, the casus belli was superficially trivial – who should preside over the Prison Board: the Lieutenant Governor or the Bailiff? The Order-in Council of December 11th, 1837, which constituted the Prison Board, provided that it should consist of six members, three to be chosen from the States of Jersey, one of whom should be the Bailiff; and the remaining three would be the Lieutenant Governor, HM Viscount, and HM Receiver General. As to the presidency, the 1837 Order was silent. In practice, however, the Bailiff had presided from the inception of the Board.

On July 3rd, 1891 the Bailiff presented to the Royal Court an Order-in-Council dated June 23rd, 1891, which had been made without any consultation with the States. It modified the 1837 Order and provided that when the Lieutenant Governor was present at any meeting of the Prison Board he should preside, and further that at all meetings the chairman should have a casting vote. The Royal Court suspended registration of the Order-in-Council and referred it to the States. The States subsequently petitioned the Crown seeking the revocation of the 1891 Order. The Petition was referred to the Committee of Council for the Affairs of Jersey and Guernsey and eventually heard by a very distinguished body of Privy Councillors including the Lord Chancellor. Both English Law Officers and the Attorney General for Jersey (Mr W.H. Venables Vernon) represented the Crown. Robert Haldane QC appeared for the States. Haldane’s brilliant career at the Bar and in politics was crowned by his appointment as Lord Chancellor in 1912.

On May 23rd, 1894 oral argument began. After some time Haldane was interrupted by the Lord Chancellor and asked to deal first with the question whether the 1891 Order constituted a substantial departure from the arrangement constituted consensually by the 1837 Order and ought on that ground not to be sustained. On May 24th the English solicitor general (Sir R.T. Reid QC) addressed the Council. Haldane was not called upon to reply.

Their Lordships subsequently reported and advised Her Majesty that the 1891 Order should be withdrawn. On June 27th, 1894 an Order-in-Council was issued recalling the 1891 Order. Argument was thus never heard on some of the interesting points which arose from the mass of material collected in the pleadings.

On July 9th, 1894 Haldane wrote to the Bailiff (Sir George Bertram) sending him this note of what his argument would have been on the larger question, viz whether the Crown had power to legislate for the Island without the advice and consent of the States. The constitutional relationship between the UK and Jersey has of course moved on since 1894 – see in particular the article by Professor Jowell QC at page 271 of this issue. But the note of Haldane’s proposed argument, now long out of print, is of more than historical interest.

[2] Cowper’s Reports, page 204

[3] See also the Order of August 14th 1833 and June 7th 1662

[4] In same manner as legislation in England at early period