Jersey &
Guernsey Law Review – February 2014
LETTER TO THE EDITOR
Dear Sir,
1 The February issue
of the Jersey and Guernsey Law Review
reported among the Case Summaries the decision of Thompson, Master in Treasurer of the States v Pearce, which considered the nature
of the Public, that is, the entity which appears in French conveyances as Le Public and in English as the Public,
as opposed to the general public, that is, the individuals who collectively
make up the population.
2 In his judgment the
Master cited the following passages from Bene
Ltd v Hanson,
in which Le Marquand, Greffier said (at 324)—
“The second issue which
arises is as to the nature of the Public of the Island of Jersey. I am able to
take judicial notice of the fact that when the States of Jersey transacts in
relation to real property (including a contract lease as in this case), it
customarily transacts in the name of the Public of the Island of Jersey and not
in the name of the States of Jersey. Subsequently, the States of Jersey
determine which Committee[3] will
administer the relevant piece of real property.”
The Greffier continued (at
325)—
“What, then, is the Public
of the Island of Jersey? It is clearly a corporate body of a kind which holds
real property on behalf of the general public but under the Administration of
the elected representatives of the general public, namely the States of Jersey.
However, its origins are shrouded in mystery although I suspect that what
happened historically was that as a distinction began to be drawn between the
Crown on the one hand and property held on behalf of the general public of the
Island on the other, it was decided at some stage that rather than property
being actually held by the States of Jersey, it should be held by this corporate entity to be known as the Public of the Island
of Jersey.
The third issue is as to the
relationship between the Public of the Island of Jersey and individual States
Committees. The Public of the Island of Jersey clearly has no mind or will
independent of that of the States of Jersey and for that reason could be in
many ways be viewed as the nominee of the States of Jersey. I find it very
difficult to distinguish between these two bodies for the purposes of
determining possession, custody or power. Anything which belongs to the public
must be within the control of the States and anything which the States control
must be available to the public.”
Having cited these passages, the
Master continued—
“I have referred to the
above because I agree with Judicial Greffier Le Marquand that the origin of
contracting in the name of the Public of the Island of Jersey is shrouded in
mystery. I also agree that the likely rationale for this was to draw a
distinction between the Crown on the one hand and Jersey’s Island
Government on behalf of the general public of the Island. I further agree that
the Public of the Island of Jersey has no mind or will independent of that of
the States of Jersey. Just as Judicial Greffier Le Marquand found it difficult
to distinguish between the Public and the States of Jersey for the purposes of
determining whether documents were within the possession, custody or power of
the public, I find it very difficult to distinguish between the Public of the
Island of Jersey and the States of Jersey when dealing with immovable property.
What is less clear to me is whether the Public of the Island of Jersey is a
corporate body or other legal entity or whether it is a legal convention or
custom which reflects how property is held for the States of Jersey as distinct
from the Crown. However, the distinction does not matter for the purposes of
the submission made to me.”
3 The Bene Ltd analysis seems to suggest that at some unspecified date
the States took an unrecorded decision to create a sort of property holding
company (“the nominee of the States of Jersey”) and call it the
Public, while the Pearce analysis
remains undecided whether the Public is a “corporate body or other legal
entity” or alternatively a mode of holding property for the States. Neither
the speculative suggestion in Bene
nor the doubt expressed in Pearce
seems necessary in the light of the acceptance in Parish of St. Helier v Manning of the concept of the commune, that is, the community which
has a corporate identity independent of its inhabitants, and which acts through
its elected representatives.
4 In Parish of St. Helier
v Manning, Sir Frank Ereaut, Bailiff cited with
approval the following passage from Pothier, Traité des Personnes et
des Choses—
“Les corps et communautés établis suivant les lois du royaume,
sont considérés
dans l'Etat, comme tenant lieu de personnes; car ces corps peuvent, à
l'instar des personnes, aliéner, acquérir, posséder des
biens, plaider, contracter, s'obliger, obliger les autres envers eux.
Ces corps sont des êtres intellectuels,
différents et distincts de toutes les personnes qui les composent. C'est
pourquoi les choses qui appartiennent à un corps n'appartiennent
aucunement pour aucune part à chacun des particuliers dont le corps est
composé; et en cela, la chose appartenante
à un corps, est très différente d'une chose qui serait
commune entre plusieurs particuliers, pour la part que chacun a en la
communauté qui est entre eux. Par la même raison, ce qui est dù à un corps, n'est dù
aucunement à aucun des particuliers, dont le corps est composé.
Le créancier de ce corps ne peut donc point exiger de chacun des
particuliers de ce corps ce qui lui est dù par
le corps. Il ne peut faire condamner au paiement que le corps; il ne peut faire
commandement qu'au corps, en la personne de son syndic ou procureur; et il ne
peut saisir que les effets qui appartiennent au corps.
Cela a lieu,
lorsqu'il n'y a que le corps qui contracte seul la dette. Par exemple,
lorsqu'une ville, par le ministère de ses maires et échevins,
fait un emprunt; lorsqu'un hôpital, par le ministère de ses
administrateurs, contracte quelque engagement.”
5 The conclusion to
which this authority led Sir Frank was that—
“We are in no doubt that a
Parish is to be treated as a Corporation, having a legal entity separate from
that of its parishioners. It has perpetual succession, and it can transact in
property through its officers. Its individual members have no legal interest in
the property itself.”
6 It
is difficult to see why the Public should not likewise be regarded as a
corporation of this kind, and in the past the States seem so to have regarded
it. In an Act of the States of the 24 July 1602, setting up the Public
Registry, to which my attention was drawn by former Registrar of Deeds, PJ Bisson, there appears a reference to ceste Respub: de Jersey. The paragraph in
which this appears begins with the words Pouraultant que aucune Comunaulté ny Respub: ne se peult maintenir”.
7 The fact that in
1602 the States regarded the Island as a communauté or république,
as it is clear from the context that they did, lends support to the view which
I have expressed above that Le Public is, in Pothier’s
words, a communauté
. . . tenant lieu de personne to which the
States stand as syndic ou procureur. Far from the States transacting in name of the Public, as
the Bene and Pearce judgments suggest, the Public transacts through its
representatives, the States.
Yours faithfully,
SC NICOLLE
Suite 39, 4 Wharf Street
St Helier, JE2 3NR
6 May 2014