P. C. 1866 IN THE MATTER OF 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 THE JERSEY in such cases for fresh elections to be ordered by the Royal Court itself. ΟΙ 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; JURATS. P. C. 1866 IN THE THE JERSEY JURATS. 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 MATTER 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 calcu lated 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 procelure, 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 Islan 1, and in particular of the harbour dues, the Petitioners statel 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 Impôt (the chief source of the Island revenues), the Jurats, as members of the States, and, in leed, most frequently as members of particular stan ling Committees of that body, to whom the details of alministration of the finances are entrusted, had a very P. C. 1866 IN THE MATTER OF JURATS. 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, THE JERSEY 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 [El. 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 P. C. the consent of the States, In re the States of Jersey (1). This doctrine was confirmed with respect to the Island of Guernsey, In re the States of Guernsey (2), where it was held, that an ancient MATTER OF Office, the Contrôle de la Reine, could only be abolished by an Order 1866 IN THE THE JERSEY JURATS. in Council, with the consent of the States of that Island. The Islands of Jersey and Guernsey are said by Lord Coke, in Calvin's Case (3), 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 Dissèisiná factá infrâ annum, de Morte Antecessoris infrá annum, de Dote similiter infrâ annum, de Feodo invadiato semper, et Incumbreio Maritagi," &c. The third clause is most essential: "Ii debent eligi de Indigenis Insularum, per Ministros Domini Regis et Optimates Patriæ; 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 (1) 9 Moore's P. C. Cases, 185. (2) 14 Moore's P. C. Cases, 368. (3) 7 Co. Rep. 21, a. P. C. 1866 IN THE MATTER OF JURATS. 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, THE JERSEY 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 (1); 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 thiswhether 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 persons, 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. 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 (1) 9 Moore's P. C. Cases, 185. |