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The Visite Royale And Other
Humbler Visits
Philip
Bailhache
To the amazement, and sometimes the irritation,
of visitors and locals alike, country lanes and main roads will be found
during August impassable and congested with judges and officials as a road is
painstakingly measured or an overhanging tree closely observed. Argument is
heard, a decision made, and the limousines and lesser forms of conveyance
proceed majestically on their way through the parish. The Visite Royale
is in session. Is this a quaint but still useful tradition, or is it an
anachronism which ought to be swept away?
As Le Gros states in his chapter on the Visite Royale [1] it is
difficult to determine the origin of the annual ambulatory visit of the Royal
Court to certain parishes. To maintain the roads and byways of the Island
open and free from obstruction was clearly of importance from the earliest
times. In Normandy, during the 13th century and long before, jurisdiction
over the roads and pathways of the Duchy was vested, in part at least, in the
Viscount. L’Ancienne Coutume de Normandie [2] provides:
"L’office au Vicomte est qu’il tienne
les plets; et qu’il face tenir en droit poinct les anciennes voyes, les
sentes et les chemins, et qu’il fasse revenir les eaues en leur ancien cours
qui sont remuées contre droit".
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The functions exercised by the Viscount in Jersey are of course but a pale shadow of those
described in the Ancienne Coutume. Most have devolved upon the Royal
Court itself [3] . But the modern practice at a Visite
Royale still evokes the past. Le Gros writes:
"Le Rouillé, dans
ses annotations, dit que le Vicomte, quand il visite
"les chemins afin de les réparer, prend douze hommes ou plus de la
paroisse où il chemine qui vont avec lui par la paroisse et se ils trouvent
faute en aucun chemin le vicomte enquiert par les hommes qui sont avec lui à
qui sont les terres joignantes et prochaines du chemin en l’endroit où est la
dite faute. Et par le repport ou déposition des douze hommes, dessusdits ou
du greigneur nombre met en amende ceux que ils trouvent coupables, et sont
contraints de faire la réparation dudit chemin. Toutefois ont les vicomtes
accoutumé et aussi est de raison de faire crier premièrement avant qu’ils
cheminent que chacun répare les chemins endroit soi. Et pour ce s’ils ne le
font, et ils sont après trouvés coupables, ils seront mis en amende." [4]
An ordinance of 1540 enjoined the Viscount and
other responsible officials to visit bridges, roads
and tracks twice a year in March and in September, and "iceux faire
entretenir en bonne et deuë reparation" [5]
Le Geyt, writing at the end of the seventeenth
century, describes the Visite Royale in Jersey in these terms:-
"Cette Visite est une Cour ambulatoire.
Le Bailly & trois Jurez pour le moins, outre les
Officiers du Corps de la Justice, y vont à Cheval. Le Connestable & 12
hommes, Officiers ou autres, des plus capables de la Paroisse où l’on
procede, sont à pied, & font d’abord Serment de conduire par où ils
croient qu’il est le plus necessaire, & de declarer fidelement tous les
empeschemens & defautes qu’ils trouveront. Le Vicomte est à leur teste,
tenant debout sur le Pommeau de sa Selle son baston d’Office, dont il touche
les branches d’arbres qu’il voit avancer sur les Chemins. Les Hommes nomment
les proprietaires des empeschemens, & declarent hautement la Vintaine
& la largeur du Chemin, & quand ils commencent & à chaque
changement de Chemin ou de Vintaine." [6]
Le Geyt states that the Visite
Royale took place between the Feast of St. John
and harvest time and that the custom was to announce the imminence of a Visite
without specifying either the day or the parish "afin que dans
l’incertitude chacun fasse son devoir" [7]
Each parish was then visited every three years. In the eighteenth century the
practice varied and occasionally visits took place more frequently. Le Gros
records visits to St. Helier in 1796, 1798 and 1800 [8]
. In 1803 the Court began the practice of visiting two parishes each year and
that practice continues today. The dates of the visits are fixed early each
year by the Bailiff’s Secretary and the Connétables are notified. No
longer does the Court strike with the random ferocity of lightning. Each
parish thus receives a visit every six years, usually during the first or
third week of August.
On the appointed day the Court departs
traditionally from the Royal Square and proceeds by limousine at a stately
pace to the parish hall. The members of the Court are accompanied by a number
of officials including of course the Judicial Greffier and the Viscount. The
Viscount appoints an arpenteur [9] to attend and the Bâtonnier appoints a junior
advocate to accompany the Court. The advocate’s task is to represent on an ad
hoc basis any landowner whose land is drawn to the attention of the Court.
The Court is greeted at the parish hall by the connétable and the procureurs
du bien public and escorted to a robing room. From there the Court
processes, robed, into the parish hall where the traditional prayers are
said. The first item of business is to receive a report from one of the two
jurats appointed to ensure that any orders of the Court issued at the last Visite
have been carried out. Next the connétable is called to present his
accounts. The Court examines the accounts in order generally to ensure that
they are properly kept. More specifically the Court will:
1.
ascertain
that any fines imposed at the last Visite
have been paid and credited to the Roads Account; [10]
2. ascertain that fees
payable for shotgun [11] and other
firearms [12] permits, driving licences
[13], and dog licences [14] have been applied to the credit of the Roads Account as
required by law.
The Court then calls for the books of account of
the roads inspectors [15] to be brought forward [16] The books for
each vingtaine are examined in turn and the inspectors or connétable
may be questioned upon them.
Once the Court has satisfied itself that the
financial affairs of the parish are in order the Greffier calls the
names of the twelve voyeurs from the list supplied by the connétable.
The voyeurs are chosen from the parochial officers or other most
capable parishioners, as in the time of Le Geyt. They are asked whether there
are amongst them a father or a mother and a son or a daughter; a husband and
a wife; two brothers, two sisters or a brother and a sister. If so, one will
withdraw and another parishioner is called forward. An oath is administered
by the Greffier by which the voyeurs swear to conduct the
Court along the roads where they believe "qu’il y a le plus de
fautes et d’empêchments". It is their duty to draw the attention of
the Court to any such transgressions and encroachments. Having taken the oath
the voyeurs traditionally retire with the connétable in
order to decide where they should take the Court. In practice such decisions
will usually have been taken long before. The voyeurs elect a
spokesman whose duty is to explain the suspected transgression or
encroachment to the Court. The voyeurs must know the boundaries of
the parish and of the vingtaines. They are duty bound not to lead
the Court outside the parish nor to allow the Court to retrace its steps along a road or track already visited. If they do, it is open to the Court to bring the Visite
to a peremptory close [17] . The origin of these duties
lies presumably in a desire to compel the voyeurs not to waste the
time of the Court. The inspectors and vingteniers as well as the voyeurs
have a duty to answer the connétable’s requirement to appear at a Visite
Royale and may be fined if they default. The more usual practice now is
that the Court will direct the connétable to notify the defaulting
officer to appear before the Inferior Number so that his explanation may be
heard.
When the voyeurs have signified through
the connétable that they are ready, the Visite des Chemins
begins. The cavalcade moves in its serpentine way through the parish. At each
place of difficulty the spokesman for the voyeurs explains the
problem. If it is a question of encroachment from on high, the Viscount
assembles his pole to establish whether the requisite clearance is present.
There must be twelve imperial feet [18]
clear above a road and eight imperial feet clear above
a pavement [19] . If there may be an encroachment on to
the road from adjacent land the arpenteur measures the width so that
the Court may establish its proper position. At customary law pathways and
roads are 4, 8, 12 or 16 Jersey feet wide, although in more recent times many
major roads have been extended in width. The Attorney General, or in his
absence the Solicitor General, is called upon to advise and to offer his
conclusions. The junior advocate speaks for the owner of the adjoining land
in question and the Court retires some distance away in order to consider the
position. Judgment is then delivered sur le champ. If a tree or
branch has been found to encroach it will be marked by the vingtenier
of that vingtaine with an axe carried for the purpose. It is also
the vingtenier’s duty to notify the Court, through the Greffier,
of the name and address of any owner or occupier whose
land is found to encroach or offend. At the end of the Visite the
Bailiff asks the voyeurs whether there are any other transgressions
or encroachments to which they should draw the Court’s attention. If any
order has been made during the course of the Visite the Court
appoints two Jurats to ensure that it is carried out. With business
concluded, the Court and parochial officials adjourn
for luncheon, customarily provided at the expense of the Crown. [20]
What then is the jurisdiction of the Visite
Royale? It is submitted that the Court has jurisdiction to make any
order designed to ensure the rights of the public lawfully to use the public
roads and pathways of the Island without obstruction, hinderance or
inconvenience. The examples cited by Le Gros [21] may now be restated as follows:
1. cut back or remove any trees, branches,
hedges or vegetation which encroach;
2. remove or adapt any sign, stone, post or
other obstruction found to be nuisible;
3. prevent any seepage of foul water on to the
public roads;
4. remove any earth or stone which has slipped
on to the public roads;
5. prevent rain-water or streams from causing
damage to the roads or inconvenience to the public;
6. ensure the proper disposal of water through
gutters and drains from buildings adjoining the public roads;
7.
re-establish
public roads and pathways which have been blocked or obstructed, and restore
them to their lawful width;
8. repair culverts and establish drainage
channels;
9. prevent doors and gates from opening on to
the public roads;
10. prevent the collapse of walls or banks which
threaten the public roads.
The above should not be regarded as a
comprehensive classification but as examples of orders made in modern times
to protect the public roads and pathways of the Island. Formerly the Court
had power to order the extinguishment of roads which were no longer of use to
the public. That power has not been exercised since the Extinguishment of Roads (Jersey) Law 1972 [22]
laid down detailed procedures to that end. The jurisdiction of the Visite
Royale was not expressly abolished but seems by implication to have been
removed.
The jurisdiction of the Visite Royale
remains therefore fairly extensive but the Court naturally retains a
discretion as to its exercise. In some instances an order would be
inappropriate without hearing detailed submissions [23] . The justice administered at a Visite Royale
is necessarily summary, and orders are perhaps best regarded as provisional
in the sense that it is open to any aggrieved party to make a representation
to the Court seeking a reconsideration of the matter. Sometimes the Court
will set a time-limit for such a representation. At the Visite Royale
to St. Martin on 1st August, 1984 the Court ordered Airglow Limited to repair
a granite wall overhanging a footpath within a reasonable delay, but
suspended the execution of the order for three months to enable the company
to make such representations as it might think fit. The repairs were
undoubtedly destined to be very costly. In fact no application was made. But
even if the Court does not suspend the execution of an order for a time,
there is an inherent jurisdiction to rehear the matter inter
partes. This is the only basis, nothwithstanding the presence of the
junior advocate, upon which the power of the Court to make orders at a Visite
Royale can be reconciled with the rules of
natural justice [24] . Many summary orders are made. At
the Visite Royale to Trinity on 4th August 1993 the voyeurs
drew attention to a familiar problem where a bank dividing a field from the
public road had been removed in order to facilitate cultivation. The removal
had caused rain-water and mud to flow on to the road. An order was made sur
le champ. "Il est ordonné qu’il soit signifié [au propriétaire]
de faire reconstruire avant le 1er mars prochain le fossé sur sa propriété
bordant la route qui arrête le progrès de l’eau pluviale qui tombe sur ladite
route, sous telle peine qu’il appartiendra."
Landowners remain liable to a fine at the
discretion of the Court for encroachments or transgressions which are found
to exist. However the modern practice, as seen above, is that the Court will
order the abatement of the nuisance with an indication that a penalty will
result from non-compliance. The last occasion upon which a fine was summarily
imposed was at the Visite Royale to St. Lawrence on 23rd August,
1978 when Vina Holdings Ltd. was fined fifty pence for allowing vegetation to
encroach upon the road. The company was ordered to carry out the necessary branchage
within eight days.
Sometimes the Court concludes that there is no
encroachment on to the public road but nevertheless recognises that an
undesirable state of affairs exists which ought if possible to be rectified.
At the Visite Royale to St. Mary on 19th August, 1987 a tree-stump
was found not to constitute an encroachment on to the public road but the
parish was nevertheless authorised to enter negotiations with the land-owner
with a view to its removal.
Does the Visite Royale still serve a
useful purpose? As Le Gros observed in 1943 a six-yearly visit to a parish
necessarily means that many roads will not be traversed by the ambulatory
court for 40 or 50 years or more. It may be noted however that the parochial
authorities have a continuing duty through the biannual visite du
branchage to ensure not only the maintenance and upkeep
of the roads in the parish but also to prevent encroachments. The visites
du branchage take place during the first fortnight of July and
September. The connétable, centeniers and members of the Roads
Committee visit the roads of the parish accompanied by the vingteniers
in their respective vingtaines levying fines of up to fifty pounds
for each contravention. Only one penalty may be imposed however for several contraventions of the same kind (e.g. untrimmed
hedging plants) along one stretch of land [25] . It
could be argued that that duty renders superfluous the traditional periodical
visit of the Court.
It is submitted nonetheless, that there are
occasions when the majesty and authority of the Royal Court can be deployed
to public advantage. Particularly where there is a disputed title, or where a
department of the States is involved, and problems loom disproportionately
large, an order of the Visite Royale can have a cathartic effect.
For years Le Chemin des Mielles across the sand-dunes at St. Ouen
had been blocked by large mounds of earth dumped by unknown parties. No
States’ department would accept responsibility for their clearance and the line
of the track had become obscure. On 2nd August, 1995 the problem was referred
to the Visite Royale which issued the following order: "Il
est ordonné qu’il soit signifié au Comité des Etats dit "Planning
and Environment Committee" de faire enlever les obstructions qui
empêchent le passage par partie du Chemin des Mielles et rétablir ledit
chemin dans un délai raisonnable. Mais la Justice a chargé le Connétable de
ladite paroisse de préparer un plan qui démontre exactement la ligne dudit
chemin et d’en faire rapport audit Comité et d’aucun propriétaire proche
ledit chemin qui peut-être l’intéresse personnellement par le 30 novembre
prochain afin qu’ils puissent faire par le 29 décembre prochain des représentations devant le Nombre Inférieur de la
Cour, s’ils le juge à propos." [26]On 7th
August, 1996 Jurats Potter and de Veulle reported that the connétable
had duly prepared a plan which had been accepted by the Committee and that
the necessary works to re-establish the track were in
hand. [27]
It could also be argued that the minute
examination of parochial accounts is no longer necessary. In former times an inspection by the Court no doubt served as a useful
deterrent to the misappropriation of public monies. But in these times
parochial accounts are invariably audited by professional accountants
providing at least as adequate a safeguard. One aspect of parochial
administration has however expanded and might merit periodic supervision by
the Court. Various statutes [28]
now empower centeniers to inflict summarily small fines at the
parish hall for minor infractions in certain circumstances. Records of these
decisions are kept. It is submitted that the Visite Royale might
usefully examine these records so as to ensure that centeniers are
exercising the powers appropriately and lawfully. Customs which serve no
practical purpose can eventually become empty vessels; better by far that
they should adapt so as to provide both a link with the past and a useful
service to the present. Vive la tradition!
Sir Philip Bailhache is the Bailiff and Chief Justice
of Jersey