REPORTS OF THE COMMISSIONERS APPOINTED TO INQUIRE INTO THE STATE OF THE CRIMINAL LAW IN THE CHANNEL ISLANDS.(a)

FIRST REPORT.

JERSEY.

Sources of the Criminal Law of Jersey. The Criminal Law of Jersey is derived from five sources. These are first, the Customary Law; secondly, the Charters; thirdly, the Orders of the Sovereign in Council; fourthly, the Ordinances of the Local Legislature; fifthly, certain Statutes of the Realm.

The Customary law originates in the ancient Norman institutions. The Island, as well as Guernsey and its dependencies, formed part of the Duchy of Normandy down to the reign of King John of England. When the continental part of the Duchy was conquered by the French King, Philip Augustus, about 1205 A.D., the sovereigns of England retained the Channel Islands. Theoretically, it would follow that whatever was law at the time of the separation is law still, unless it has been abrogated or modified by Charter, Order in Privy Council, Ordinance of the Local Legislature, or Statute. And, similarly, it is supposed that no law can in theory exist which was not then existing, unless it has been established by one of these four. Le Grand Coustumier.

The principal authority as to the ancient customary law of Normandy is "Le Grand Coustumier du pays et duche de Normandie." According to Sir Edward Coke (Preface to Inst. 2.), this work is compounded of some English laws given by Edward the Confessor, and of divers customs of the Duchy of Normandy. Coke appears to have taken this opinion from Rouillé of Alençon, who, in his prefatory comment on the Grand Coustumier, entitled Northmannorum Origo, speaks of Edward as hujusce Normanice consuetudinis lutorem sive datorem. Basnage dissents from this. Sir Edward Coke assigns the compilation of the work to the time of Henry III. of England, and places it about forty years after the coronation of Richard the First

(a) In May 1846, a Royal Commission appointed Thomas Flower Ellis and Thomas Bros, Barristers-at-Law, to inquire into the state of the Criminal Law in the Channel Islands. They presented two Reports, which were afterwards laid before Parliament. As these Reports contain much valuable information about the institutions of the Channel Islands, and are now out of print, the Committee decided to reprint them, omitting the recommendations made by the Commissioners as an appendix to the case of The States of Jersey, reported above, p. 285. The headings in italics have been added by the Editor.

of England, that is about 1229. For this he refers to certain passages in the Coustumier itself, and the Comment. The passages referred to seem not to prove more than that the compilation must not be dated earlier than the time of Richard I. But this date does not differ much from that given at the commencement of "Le stille de proceder en pays de Normendie," which seems to be itself a commentary upou an Ordinance of the Parliament of Normandy, dated 21st January 1515, and which probably was composed about 1539. This account is as follows:-"Premieremet est assauoir que en ce pays & duche de Normendie sont aulcunes loyx coustumes establissementz q sont cōtenus au liure comunement nome le coustumier de Normēdie & ainsi appelle. Lesquelles loyx & mesmes iceulx establissementz et coustumes sont tenues pour loyx aud' pays. Et y sont et ont este obseruez, tenuz, et gardez de toute anciennete et au deuant q lad' duche fust baillee p' le roy Charles le simple au duc Ron. Et depuis que le roy de Frace Philippe auguste eust retire & mis dehors des mains des angloys lad' duche il se voulut enquerir des loyx & coustumes dudict pays et fit escrivre & mettre en pl' belle ordre ledict liure coustumier ql nestoit eu precedent. Tint et assembla cōseil ou furent les prelatz seigneurs barons du pays, par le conseil desquelz il auctorisa de rechief lesdictes loyx & coustumes ainsi ql appert assez p' vng chapitre dudict constumier ou est contenu le conseil du roy Philippe" (whom Rouillé, in his commentary on ch. 100, considers to be Philippe le Hardi; which is manifestly a gross blunder) quil tint a lislebōne: & est ledict chapitre en iceluy liure sur le pas ou il traicte de bref de contains merely regulations as to the trial of the This Council, however, patronage deglise." right of ecclesiastical patronage in certain cases. It is quite clear that the work, in its present form, belongs to some time later than that of St. Louis, who is mentioned in chapter 6: and we may perhaps place it at about the end of the thirteenth century, that is, from fifty to a hundred years after the separation. It contains the ancient Law and Custom of the Duchy, intermixed with ordinances (établissemens) of French

monarchs down to the time of St. Louis.

Rouillé of Alençon.

A Latin Commentary on the Grand Coustumier was composed by Rouillé of Alençon, in the year 1533. This is annexed to the text in the edition to which we shall refer in this Report, that of 1539. There is also annexed a French Gloss, some parts of which seem to be of much greater antiquity than Rouillé's Latin Commentary; but, in its present shape, it appears to be a collection or amalgamation of glosses, brought down to the time of the edition of 1539. Other supplemental treatises and documents are added, comprising the Charter

Terrien.

In the time of the reign of Queen Elizabeth of Eugland, was published a posthumous work of Terrien, Lieutenant Bailiff of Dieppe. This work is entitled, "Commentaires dv Droict Civil, tant pvblic qve privé, obserué au Pays & Duché de Normandie." The Norman law is here professedly brought down to the time of the work. The several chapters of the Grand Coustumier which it contains are rearranged, and form a very small part of the whole. The treatise enjoys a high reputation among the lawyers of Jersey, for which we find it difficult to account. The intention of the author seems to have been to arrange and expound the Law of Normandy according to the system of the Civil Law; a design, as we think, ill conceived and ill executed. The treatise appears to us to be utterly vague and unsatisfactory, and to possess scarcely any of the requisites essential to a legal authority. Whichever be the correct estimate of the merits of this work, it can be of but little value for the purposes of the law of Jersey; inasmuch as it is, to a very great extent, made up of law which has been engrafted upon the Norman institutions since the separation, and which, therefore, is properly of no authority in Jersey. In Guernsey, indeed, it has, as we shall show in our Report upon the Criminal Law of that Island, received a very remarkable recognition in the reign of Queen Elizabeth. But in Jersey it can be used, so far as we can judge, for little else than the occasional explanation which it furnishes of the old law as existing at the time of the separation.

These are the works principally referred to for the ancient customary law: but occasionally others are cited, which are either treatises on the Norman institutions generally, or on particular branches of them, or comments upon the customs of other parts of France, or legal works incidentally discussing points arising on the Norman Law. These we do not think it necessary to particularize.

Precedents of the Court.

The precedents of the Court are, of course, cited as authority for the customary law. A fire consumed all the Records in 1503. There are a few remaining as old as 1504; but a nearly regular series commences at 1524. Since 1797, the Criminal Records have been kept apart from the rest. No authorised publication of them exists: nor is it probable that the demand for such a work would ever be sufficient to meet the expense of publication. Nor, as the Criminal Court is now constituted, does it appear likely that the decisions, if regularly made public, would be treated with the same deference as that which is shown in England to the published reports of the cases in Westminster Hall. The lawyers of Jersey do not quite agree in their estimate of the precise value which is to

view, it falls much short of that which English lawyers ascribe to a decision of their own courts. The recorded Acts of the Court are accessible to the legal profession; but they, of course, do not show the arguments urged, nor, save to a very slight degree, the grounds of the decisions. And, as they are neither digested nor indexed, the Judges and advocates have only their own recollection (or, in some few cases, manuscript memoranda of others) to guide them in the search.

Charters-The Constitutions of King John.

The only Charter which has had much effect upon the Criminal Law of Jersey is that called the Constitutions of King John. In a note at page 223 of Durell's edition, published in 1837, of Falle's History of Jersey (of which the last edition published in the author's lifetime is dated 1734), it is said that an ancient copy of these Constitutions exists in the Tally Office in the Exchequer. We have caused inquiries to be made for it there; but it has long been missing. We take the document as printed in Falle. It is entitled Inquisitio facta de servitiis consuetudinibus et libertatibus, Insul. de Gerese et Guernese, et legibus constitutis in Insulis per Dominum Johannem Regem, per sacramentum, &c., qui dicunt, &c. Then follow the title, Constitutiones et provisiones constitutæ per Dominum Johannem Regem, postquam Normannia alienata fuit. The common tradition agrees with the latter title. It is believed that, after Philip Augustus had conquered the continental part of the Duchy, King John of England bestowed these Constitutions upon the Island as a reward for their adhesion to himself. Some doubt has been entertained by antiquarians as to this tradition; but, on the whole, we think the probability is in favour of its truth. We do not, however, consider it necessary to discuss this question, as it is agreed that, whatever the origin of these Constitutions, they have for many ages been treated as a Charter granted by the Sovereign and accepted by the inhabitants. The present Royal Court is mainly founded upon these Constitutions, as we shall hereafter explain; but it will be found that several of the features of the judicial organization there established have disappeared.

Orders in Council.

By the Norman Law, the Duke had supreme legislative power. The form which this authority now assumes is that of Orders of Your Majesty in Privy Council: and this has been the course for several centuries. The Orders in Privy Council are registered by the Royal Court, and are not binding as law until such registration has taken place. This is so settled by an article in the Code of 1771, to which we shall advert subsequently. The Orders in Council always now contain a specific command that they shall be registered. It is, however, declared by the same Code that it is competent to the Royal Court, in any case where the Order appears to be contrary to the charters and privileges of the Island, or burthensome (onéreux), to suspend the registration until the pleasure of the Crown be further taken; though, if the

Crown does not withdraw the Order, it must be registered.

These Orders in Council, in many instances, merely determine questions incidentally arising from time to time, and of only temporary interest. But, in other instances, they are of more general importance, especially when they contain a recognition and sanction of Acts of the local legislature, or of Reports and recommendations issuing from Commissioners.

The States of Jersey.

The local Legislation is vested in the States. This body is presided over by the principal civil officer of the Island, called the Bailli, or Bailiff, who is appointed by Your Majesty, and holds office during Your Majesty's pleasure. The States comprehend also thirty-six members, namely, twelve jurats, twelve rectors of parishes, and twelve constables of parishes, or оссаsionally, in lieu of these last, the centeniers of parishes when the constable is necessarily absent, or his office vacant.

It is necessary, for the purpose of explaining the constitution of the States, to describe the parochial system in Jersey.

There are twelve parishes in Jersey. Each of them has its own Parochial Assembly, resembling, in many respects, an English vestry. It consists of a constable of the parish, and the centeniers (subordinate officers of police), the rector of the parish (or, in his illness, the vicar), and the principaux, which name designates those who are rated at a certain amount. The amount varies in the different parishes; the highest qualifying rate is 20 quarters of wheat, the lowest is 8. The quarter of wheat is here used merely as a name for a particular sum of money, and does not vary with the price of wheat its value is fixed by an express law of 1833, which declares that an annual income of a quarter of wheat shall be estimated to represent a capital (in argent d'ordre) of 333 liv. 6 sous. 8 den., or rather more than 201. English. Besides these, the following are ex-officio members of the Assembly of the parish in which they reside the Jurats, the two law officers of the Crown, namely, the Procureur Général and Avocat de la Reine, two functionaries of the Royal Court, namely, the Vicomte and Greffier, and certain parochial functionaries, namely, the Procureur du Bien Publique, the two Churchwardens (surveillans), the two Collectors of alms (collecteurs d'aumônes), and all who have in that parish served the office of constable or centenier, so long as they reside in the parish. The police officers of a lower rank, namely the vingteniers and the officers du connétable, are also members of the Parochial Assembly, but do not, as the constables and centeniers do, continue so when out of office.

This Assembly makes the rate, subject to an appeal, by a party rated, or omitted from the rate, under certain circumstances, to the Royal Court. Every person possessing an annual income of two quarters, answering to a capital of rather more than 401. sterling, is liable to be rated. There are twelve Jurats (Jurés Justiciers) for the whole Island. They hold office for life. On a vacancy, the successor is appointed by the

votes of all the ratepayers of the Island, there being no appropriation of any Jurat to a particular parish.

The rectors of the parishes are appointed by the Crown for life.

The constables and centeniers are appointed, for three years, by the votes of all the ratepayers of the particular parish. The vingteniers and the officiers du connétable are elected for the particular parish by the Parochial Assembly. They hold office for seven years in all the parishes except St. Hélier's, which contains the principal town of the Island; in that parish they are elected for four years only. The number of the officers is for each parish one constable; 4 centeniers for St. Helier's, and 2 for each of the other parishes; from 7 to 2 vingteniers for each parish; 24 officiers du connétable for St. Hélier's, 15 for St. Brélade, and 12 for each of the other parishes.

The Procureur Général and the Avocat de la Reine are appointed by Your Majesty, and hold for life.

The Vicomte is appointed by Your Majesty, and holds during pleasure.

The Greffier is appointed by the Bailiff, and holds for life.

The Procureur du Bien Publique is appointed by the Parochial Assembly for three years.

The two Churchwardens are chosen annually, one by the minister, and one by the parishioners. The two Collectors of alms are chosen in the same way.

We shall hereafter have occasion to remark on the constitution of the Parochial Assembly; but we have described it in this place, because, as has been shown, twenty four of the thirty-six members of the States are elected by the ratepayers, and the rate depends upon the Parochial Assembly.

Besides the Bailiff and the thirty-six members of the States already mentioned, the Procureur Général and the Avocat de la Reine have seats in the Assembly of the States, and a right of debate, but no right of voting. The Vicomte has also a seat, but no right of speech or vote.

One portion of the States, namely, the Bailiff and the twelve Jurats, constitutes the Royal Court, which is the only criminal tribunal in the Island. We shall speak more fully of this Court at a later part of the present Report.

We do not think it necessary, for the purpose of this Commission, to enter minutely into the details of the process of debate and enactment in the States. It seems here only essential to report that the States have the power of passing laws which, as declared by the Order of Council in 1771, to be presently mentioned, are in force for three years. They cannot, however, become law if negatived by the Governor or (in his absence) the Lieutenant-Governor, officers appointed by Your Majesty to hold during pleasure. Occasionally, Ordinances of the States are renewed from three years to three years, so as to give them the effect of permanent laws. It is, however, the common practice, when a permanent law is thought desirable, to pass it in the States, and submit it to Your Majesty in Council for approbation. When this approbation is received, the law is registered by the Royal Court, and becomes permanent.

The Code of 1771.

In the year 1771, the States transmitted, for the approbation of the Crown, a Code of Laws, which received the Royal Assent in Council. By the Order in Council it was declared "that all other political and written laws heretofore made in the said Island, and not included in the said Code, and not having had the Royal Assent and Confirmation, shall be from henceforward of no force and validity." There may be some doubt as to the meaning to be attached to the words "political" and "laws heretofore made"; but we presume that they cannot comprehend the customary law, for, if they did, there would be hardly a criminal law existing in the Island.

The Code of 1771, on inspection, will be found to fall far short of that which, from the language of the Order in Council, it might be expected to be. It contains one great criminal enactment, namely, a provision as to accessories of criminals, and to prison breakers and persons aiding them. Mr. Marett, a distinguished advocate now practising in the Royal Court, after mentioning an unsuccessful attempt to obtain une Commission pour préparer un Recueil de nos Lois et Coûtumes," adds, "Nous en sommes encore à désirer la réalisation d'une projet si utile, car personne, nous pensons, ne voudra prétendre que la compilation du petit volume relié en parchemin, qu'on s'est plu d'honorer du titre de Code, en ait diminué la nécessité." (Notice sur la Vie, &c., de Mons. Le Geyt, p. xii.) One very important change was, however, made by the Order in Council which sanctioned the Code of 1771. Down to that time the Royal Court had the power of passing Ordinances without the assent of the States. But the Order in Council provides "that no Laws or Ordinances whatsoever, which may be made provisionally, or in view of being afterwards assented to by His Majesty in Council, shall be passed but by the whole Assembly of the States of the said Island." The union of judicial and legislative power is a feature not unfrequent in the constitution of imperfectly civilized States, and is generally discovered to be an oppression and abuse at an early stage of their advance. It prevails at present in Guernsey to a much greater degree than, as far as we can trace, it ever has prevailed in Jersey, and is there highly prized by a large portion, we believe the majority, of the inhabitants, as an important constitutional privilege. But it is surprising to find it endured so late as 1771 by the inhabitants of Jersey; and perhaps it is still more strange to find that the disunion of the two powers, which was commenced seventy-five years ago, has not yet been completed.

In 1845 there was published, we believe by the authority of the States, a compilation entitled "Lois et Réglemens des États de Jersey, qui ont reçu la sanction Royale, depuis 1771" Among these will be found very few enactments connected with the general criminal law.

Acts of Parliament.

The source of the law of Jersey, which we have lastly to mention, is the Imperial Legislature. An Act of Parliament mentioning the Island is immediately law without registration;

but such an Act is registered by the States under Order in Council to that effect. It does not seem to be quite settled whether it be necessary that the Island should be expressly named in order to bring the Act of Parliament within this rule, or whether it would be sufficient if it appeared, by necessary inference, that the enactment was meant to extend to the Island: but, on principle, we conceive that a necessary inference would be enough, as the only ground for construing an Act to be applicable to Jersey must be that it appears that the Legislature intended that it should be so applicable. Indeed, the Code of 1771 seems, by its language, to extend the effect of Statutes of the Realm still further. 'Quant aux actes de Parlement où l'Isle est rapportée, et dans lesquels elle est intéressée, ils doivent être exemplifiés en forme, sous le Grand Sceau d'Angleterre, et envoyés en ladite Isle, et là être enregîtrés, et publiés, afin que les habitans en aient la connoissance" (not to give them validity) "pour s'y conformer, et viter les peines des transgressions."

In many instances, where it is thought that an Act of Parliament, though not so framed as to extend to the Island, might be applicable there with advantage, the States pass an Ordinance to the same effect, mutatis mutandis, which is transmitted for the approbation of Your Majesty in Council. Some alteration is, in such a case, almost invariably necessary, as the nature of the institutions of Jersey commonly renders the provisions of the English law inapplicable in detail.

We know of no change in the Criminal Law, introduced by Act of Parliament, except some that relate to matters of Commerce, Navigation, and the Customs.

The above Sources not Exhaustive. We have enumerated the only acknowledged sources of the Criminal Law of Jersey. But, upon examining into the law as it actually exists, either the definition of a crime, or the punishment we can find hardly a single instance in which which is inflicted for it, can be traced distinctly to any of these authorities, except in the cases of offences against local regulations or fiscal en

actments.

and varying from time to time, seems to have A practice of the Courts, arbitrary nearly superseded the ancient law, and to be itself liable to future changes, equally arbitrary

and variable.

The Criminal Law.

The state of the Criminal Law of Jersey was 1789. In 1786 the majority of the States passed the subject of discussion and review in the year all cases, civil, mixed and criminal. This was a vote for the establishment of trial by jury, in Order in Council, made on the 10th of May in submitted to the Privy Council: and by an the following year, the Royal Court was ordered to state its objections for the information of the July 1788, a series of observations in opposition Lords of Council. Accordingly, on the 5th of to the proposed plan was drawn up and signed by the Bailiff and seven Jurats. The Privy Council, after consideration of the observations, and hearing counsel on behalf of the States in support of the proposition, made an Order, on 21st of July 1789, that M. Pipon and M. Durell,

then respectively Procureur Général and Avocat de la Reine, and M. Hemery, one of the Jurats of the Royal Court, and M. Dumaresq, then Constable of one of the Parishes, the last two having been appointed agents for the States in prosecuting the matters before the Committee, should "conjointly or separately prepare and lay before this Committee, a statement of the mode of proceeding in the said Island, and of going to trial in all causes, criminal, civil, and mixed, containing therein what they apprehend to be the true law of the Island, from the first commencement of proceedings, in any of the said cases, to the final judgment thereupon had and obtained." And "that the said Thomas Pipon and John Thomas Durell, Esquires, and James Hemery and John Dumaresq, Esquires, do also prepare and lay before this Committee, conjointly or separately, what they conceive to be the criminal law of the Island of Jersey, specifying the crimes enumerated in the said law, and the punishments thereby inflicted upon the commission of each of the said crimes."

Messrs. Pipon and Durell were considered to represent the views of the Royal Court, and Messrs. Hemery and Dumaresq those of the States. Accordingly, a statement was prepared by Messrs. Pipon and Durell, which, on the 2nd January 1790, was interchanged with a statement prepared by Messrs. Hemery and Dumaresq. Both these statements are said to represent fairly the actual condition of the law.

We ourselves examined the members of the Bar, in the presence of the Bailiff and several Jurats, as to the law prevailing in respect of the principal offences which form the subject of criminal jurisprudence generally; and we made use of the statements above mentioned for constant reference during this examination. We have already declared in general terms the result at which we arrived: but we think it right to draw Your Majesty's attention to some instances in detail.

The punishments for crime, properly so called, mentioned in the Grand Coustumier, are: death, by burning, hanging, or burying alive; loss of limb, commonly according to a sort of lex talionis; and banishment. (Gr. Coust. ch. 23., and Gloss.) Banishment was, indeed, not properly a punishment, but the consequence of contumacy in flying from justice. Of these, hanging and banishment alone remain. The others have disappeared; and the Gloss sets forth rather curiously the principle upon which the law was modified in very early times.

"Plusieurs punitions demeurent en tel cas en la raison et discretion de justice selon lexigèce des cas, & semble q'l debueroit estre pillorie ou puny par longue prison, & par grande amende de justice, & a partie. Et luy pourroit len bien couper loreille ou ung poing selon lexigence des cas & lestat des personnes." And afterwards "Toutesfois justice ne doibt pas estre ainsi legiere ne incline a pyllorier pour tel cas ou semblable ung homme destat ne a le punir par peines infamables ne par destresse de prison comme une simple personne. Mais le doibt punir par grandes et grosses amendes: tant a justice q a partie. Et se len demandoit pour quoy les punitions ne sont terminees en tous iceulx cas comme elles sont en crimes capitales,

Len pourroit respondre que cest pour la grand mutation et variation des cas qui adviennent qui sont differentz lun de lautre et dignes de greigneure punition lun que lautre selon leur circunstance. Et pour ce ny peut on vrayment determiner aultre punition. Mais conuient auoir recours a la discretion de justice et de raison, qui doibt sur ce pourueoir: en baillant punition greigneure on medre selon que le cas le req'ert."

These passages were brought before us in evidence: and, although the very able lawyer, Mr. Hammond, who was then under examination, declined to state positively that such a discretion was now claimed, he added, "the practice had been very analogous to the reasoning of the passage which has been cited." And Your Majesty's Procureur Général, shortly afterwards, expressed himself thus: "The Court use their discretion or equity. Whether it is in consequence of that passage which has just now been cited, I cannot say."

The principle upon which the discretion was exercised, according to the passage cited, was the avowed incapacity of the law to classify crimes so as to assign proper punishments to each offence and each person. And some discretion of this sort must necessarily exist, even where the classification is as nearly complete as human language permits. By the English statute law, it is very commonly left to the Courts to assign, within certain limits, the length of transportation or imprisonment, and to select between the two; and the common law, in the cases of offences punishable by fiue or imprisonment, leaves an almost unlimited discretion as to time and amount. This, however, is very different from sanctioning a system in which there are absolutely no limits, in any case whatever, and in which the very nature of the punishment is itself discretionary. The effect of the system at Jersey is, that a period of so long duration suffices to make particular kinds of punishment so entirely obsolete as practically to remove them from the law altogether. The changes of law have generally been made in the same direction with those of the English law. Thus, breaking into a dwelling house by night and stealing therein is now never visited with death, though it was formerly capital; and so with many other offences: and a still more remarkable change has taken place, apparently in imitation of the English law. Transportation, which in England originates entirely in Statute, has been introduced into the Law of Jersey, and has now almost entirely superseded banishment. The language of the sentence of the Court is, "La Cour les a condamnés pour punition de leur crime à être deportés à tel lieu qu'il plaira à Sa Très Excellente Majesté en Conseil d'ordonner pour le terme de sept années.” Now, if the discretion lodged in the Court really be so large as to make this legal, it is, on principle, quite competent to the Court to order that a man convicted of stealing an apple should be broken on the wheel. It was, however, suggested that, in any case of transportation, the sentence acquired a legality from the Order of Privy Council, which ensues. Strictly speaking, any punishment whatever might be inflicted by Order of Privy Council, just as in England by Act of Parliament. But, if this be the real ex