Blood red robes and Norman
1 On 26 August 1558
the Parlement de Normandie
issued a judgment which came to be known as the arrêt du sang damné [judgment of the
condemned blood]. For the delivery of judgment, the judges dramatically donned
robes which were blood red in colour, marking the solemnity of the occasion.
The case turned on the question whether the children of a condemned man were
entitled to inherit. The Grand Coutumier appeared to answer the question categorically
in the negative.
2 The facts were
straightforward. Guillot Laurens had been condemned
to death by decapitation in 1549. All his goods were confiscated in accordance
with custom but in 1552 his father, Guillaume Laurens, died. The question then
arose whether his grandchildren, children of Guillot,
were entitled to a share of their grandfather’s estate. Guillot’s sister, Marion, argued that they were not
entitled, because they were procreated from contaminated blood. She relied upon
the Grand Coutumier.
The Bailiff of Rouen agreed with her, and awarded her the entire estate.
3 The tuteur
of the children, Marin Baudoyn, appealed to the Parlement de Normandie. The
case aroused considerable interest. The judges referred it to the Full Court of
all the chambers,
a very unusual occurrence and evidence, perhaps, that it was regarded as une matière épineuse [a thorny question]. The tuteur argued
that the children had been born before the crime for which their father had
been condemned, and that their blood was therefore innocent; at the time of
their births, they were perfectly capable of inheriting from their grandfather.
They inherited de leur
chef—on their own behalf, and not by représentation though their father. The custom in its Latin text (ex
sanguine damnato procreatus)
left open the question, he argued, whether the prohibition applied if they had
been born before the crime in question had been committed. Children should not
be punished for the sins of their father.
4 Marion Guillot responded that no
case could be found where the Grand Coutumier in all its rigour had not been applied. Even
if the custom was “dure et inhumaine”
it was founded upon principles of deterrence.
5 The Attorney General intervened and argued that the custom
of prohibiting inheritance from “contaminated blood” was regarded
with horror by the Normans “tellement que peu à peu ils cessèrent d’en user; de manière
qu’elle a été
abrogée par le tacite
consentement de non-usants”
[to such an extent that little by little they ceased to have regard to it; with
the result that, by tacit agreement, it has been repealed by non-user]. It had
not been invoked, he said, for more than a hundred years. Custom was none other
than unwritten law, brought into being over a long period by the tacit consent
of Sovereign and the people.
Just as it could be made, it could be unmade. The Attorney General’s
arguments were accepted by the Parlement, which
found that the custom by which the children of the condemned could not inherit
had been repealed by non-user. The judgment was reflected in the reformed Coutume of 1583.
Article 277 provides that “les enfants des condamnés et confisqués ne laisseront
de succéder à leurs
parents, tant en ligne directe que collatérale, pourvue qu’ils soient conçus lors de la
succession échue [children of those who
have been condemned and whose goods have been forfeit may succeed to the their
parents’ estates, both in the direct and the collateral line, provided
that they have been conceived at the time when the estate opens].
6 It seems unlikely,
however, that the arrêt du sang damné
of the Norman Parlement is the genesis of the red robes
customarily worn by the Jersey judiciary. Le Geyt
tells us that Bailiff Herault
was the first
to wear a robe in court, but his robe was crimson, in imitation of
senior judges in England. Syvret and Stevens claim
that Herault wore a red robe,
but the authority they quote is Le Geyt who used the
[crimson]. The History of Court Dress, published on the website of the UK
states that until 1635 the colours of judges’ robes were violet for
winter and green in summer, with scarlet for best. In 1635 a definitive guide
was published in the Judges’ Rules which decreed a black robe in winter
and violet or scarlet robes in summer. Perhaps the colours are close enough to
generate confusion. Interestingly, however, the robes worn today by the
Guernsey judiciary might more aptly be described as violet or scarlet. Herault’s successor, Sir Philippe de Carteret,
wore the black robe of a Chancellor. It is clear that by the middle of the 19th
century the red robe was customarily worn by Bailiffs and indeed all Crown
Officers and Jurats in Jersey.
Exactly when that first became the custom is unclear.
Drafting Office and qualification in Jersey law
7 In 1936 Francis de
Lisle Bois was appointed as Jersey’s first Law Draftsman, a role he
undertook while still in practice with Bois and Bois. In 1946 he became Greffier of the States, still holding the position as Law
Draftsman, these posts remaining combined until 1992. Following Advocate Bois’s appointment as Deputy Bailiff in 1962,
Jersey’s Law Draftsman Office was without a Jersey advocate amongst its
numbers until December 2019, when trainee legislative drafter and écrivain
Jackie Harris was sworn in as an advocate.
8 Writing a few years
a former Bailiff referred to the fact that since 1963 Jersey’s law
draftsmen have not been Jersey qualified, observing that a number of statutes
enacted since that time “jar with the customary law” and that
“some of the thinking behind certain statutes reveals the mind of a common lawyer unschooled in the principles of the
civil law”. He expressed the hope that Jersey’s draftsmen would now
gain some knowledge of the principles of Jersey law, especially since the
establishment of the Institute of Law.
9 All of
Jersey’s Legislative Drafters (as they are now called) are lawyers
qualified in a Commonwealth jurisdiction, and the current team includes an
Australian and a New Zealand lawyer as well as those qualified in the UK. A
minimum of 5 years’ drafting experience is required for a person to be
appointed as a Legislative Drafter in Jersey. The Legislative Drafting Office
was from 2005 till 2017 part of the Chief Minister’s Office but is now
once again part of the States Greffe. The Principal
Legislative Drafter (formally known as the Law Draftsman) however now reports
to the Greffier of the States rather than sharing the
post. Because the drafters fall under the States Greffe
rather than the Judicial Greffe or the Law
Officers’ Department, they cannot, from their current posts, meet the
requirements under the Advocates and Solicitors (Jersey) Law 1997 to have
worked for the requisite time in a “relevant office”. They are thus
unable to qualify locally even after passing the qualifying examination without
having accrued time elsewhere or moving from their current posts.
10 Perhaps the greater
significance of the recent appointment of an advocate as a Legislative Drafter
is that the Legislative Drafting Office is, for the first time, training its
own local drafters rather than relying wholly on those who have trained
elsewhere. The Legislative Drafting Office now encourages its drafters to study
for the Jersey exams and hopes to continue to train locally qualified lawyers
in future. The value of understanding Jersey law in the context of drafting
legislation for Jersey is now well recognised.