but that the same, upon its being represented by the States to His Majesty that they are found by experience to be useful and expedient to be continued, shall, having first obtained His Majesty's Royal sanction, and not till then, be inserted and become part of the code of the political laws of the said Island. 666 And His Majesty doth further order that when anything is proposed to the Assembly of the States it shall be wrote down in the form in which it is meant to be passed, and there shall be debated, after which it shall be lodged au Greffe for fourteen days at least before it is determined, in order that every individual of the States may have full time to consider thereof, and the Constables to consult their constituents, if they think necessary,' &c., &c. "It is observable that the Order in Council, and the Code confirmed by it, only purport to be declaratory of what the ancient privileges of the States had been from time immemorial, and of what the laws of the Island then consisted. "Under this Order, provisional laws for three years have ever since (subject to the negative voice of the Governor, and the power of dissent of the Bailiff, hereinafter mentioned) been made by the States, such laws taking immediate effect, and not requiring either the previous or subsequent sanction of the Crown, but being only of a local and municipal character, and not concerning the interest or prerogative of the Crown, or touching the constitution or any of the laws already in force in the Island. "With regard to these provisional laws, if the Lieutenant-Governor shall consider any act as prejudicial to Her Majesty's service, or if the Bailiff, the President of the States, shall conceive a proposition to concern Her Majesty's interest or preroga. tive, or the constitution or laws of the country; the one has power to negative (5th Ordinance of the Royal Commissioners of the 3rd April 1591, (a) and the Order in Council, 29th July 1619)(b), and the other to place his dissent upon (Order of the 2nd June 1786 (c)) any such act or propo. sition. No permanent laws intended to be passed by the States have any immediate effect until the Royal assent has been first obtained; and to carry out this object, every permanent Act invariably contains some clause of a conditional nature, e.g. 'Moyennant la sanction de sa très Excellente Majesté en Conseil,' or words to the like effect. With regard to permanent laws, the negative voice or dissent is not exercised or required, as such laws are, in their very terms, not (a) See below, App. B, p. 1101. (b) See below, App. B, p. 1102. (c) See below, App. B, p. 1122. effectual until the sanction of the Crown itself is given thereto. "Thus it appears that the power of the States to originate and enact laws is surrounded by every possible safeguard. "By a provision also in the Code annexed to the Order of 1771 (at p. 159), (a) no Orders in Council can be executed in Jersey before they have been presented to the Royal Court for registration and publication, which Court has thereby the power to suspend the registration of such Orders, Warrants, etc., emanating from the Sovereign, as they may deem to be contrary to the Charters and privileges of, or burdensome upon, the Island, until the case has been represented to Her Majesty, and Her Majesty's pleasure known thereon. Again, all Acts of the Imperial Parliament by which the Island of Jersey is named must be in like manner registered and published in the Island. 66 By these means a system of mutual checks is established: upon the States, by the negative voice of the LieutenantGovernor, and the power of dissent in the Bailiff; and upon the Crown, by the power of the Royal Court to suspend the registration of any measures deemed prejudicial to the constitutional rights of the people. So entirely has this right of the States to originate laws that are to operate within the Island been recognised, that, on frequent occasions, when it has been thought by Her Majesty's Government to be expedient that the provisions of an Act of Parliament, wherein the Island has not been expressly named, should be extended to the Island, Her Majesty in Council, so far from insisting upon the registration of such Act by a compulsory Order, or passing imperative Orders in Council embodying its provisions, has invited and recommended the States to legislate upon the basis of the Act of Parliament, and if the States have seen occasion to vary the terms of such Act, in order to render the provisions in unison with the laws and institutions of the Island, no objection has ever been raised to their doing so. "And where objections have occurred to Her Majesty's Privy Council to laws so adopted by the States, and transmitted for the Royal sanction, Her Majesty in Council has not thought fit to amend such laws, or by an Order in Council to re-enact them, without a reference to the States; but the laws have invariably been sent back with suggestions from Her Majesty's Privy Council, to be reconsidered by the States, and thus the free legislative action of the States has been preserved unimpaired. Instances are not wanting where (a) See below, App. B, p. 1120. eventually modifications adopted by the States, though not in conformity with the recommendations of their lordships, have received the sanction of Her Majesty in Council. 64 Although the States consider that the sole right of legislation in the States has been finally settled by the Order of the 28th March 1771, yet, as the right of the Crown to tax the inhabitants of Jersey without their concurrence, has been broadly asserted in a petition hereafter to be alluded to, the States deem it proper to make some observation in respect to local taxation in the earlier periods of the history of the Island. "The States would observe that while one of the most important privileges of this Island is that of not being subject to be taxed by the Imperial Parliament, in which it is unrepresented, it has always been understood that no tax can be imposed upon the people of Jersey except with the consent of the States, by whom they are represented. "In the History of Jersey (a), published by the Rev. Philip Falle in the year 1694, speaking of the States, he says"The business of these meetings is the raising of money to supply public occasions. For, as in England money cannot be raised upon the subject but by consent of Parliament, so here, it is a received maxim that no levies can be made upon the inhabitants, unless agreed to by their representatives assembled in Common Council.' "Aftera diligent search of the Records of the Island, it would seem that at different periods previous to the year 1771 the States passed numerous Acts raising money for public purposes upon the people, even without the sanction of the Sovereign in Council. Of this nature are laws and ordinances for the immediate defence of the Island, and for the usual and ordinary exigencies which the maintenance of the poor and the particular interests of the Island may have rendered absolutely necessary. "And even after the year 1771, under an erroneous construction of the Order of the 28th March in that year, the States endeavoured to levy taxes and duties and pass other laws, without the sanction of the Crown; but such Acts were directed by the Privy Council to be erased from the Records, as by the Orders in Council of the 20th April 1774(b) and the 2nd June 1786 (c) appears. "But it is evident, from the same Records, that the Crown never assumed (a) Account of the Island of Jersey, ed. Durell, 1837, p. 162. (b) See below, App. B, p. 1121. (c) See below, App. B, p. 1122. the right to tax the inhabitants of Jersey without their concurrence. "It would not, indeed, be matter of wonder if, during the centuries which have elapsed since the conquest of England and the many disturbed passages in our history, instances could be quoted of Orders in Council appearing to emanate directly from the Sovereign, without the concurrence of the States. But in truth the States can fearlessly assert that there is upon record no instance, as regards Jersey, where the inhabitants have been taxed, unless with the previous consent of the States; nor are they aware of the existence of any one law, of a purely local nature, which has not first received their sanction. "In the petitions presented in favour of the Orders in Council of the 11th February 1852, or against the recent Acts of the States, there are certain Orders, letters, and documents which, it is alleged, establish that right to the Crown. "In the first place it is worthy of remark, that almost all those Orders, &c., were of a period anterior to the Order and Code of 1771. 66 Some of them will, upon a careful examination, be found to relate to the practice of the Royal Court, especially in criminal matters, and to be rather declarations of the law by the Court of Dernier Ressort, than Orders promulgating new laws; and, moreover, to have issued in consequence of petitions to the Privy Council from the States of the Island. "Others, as those of the 17th April 1597 and the 11th July 1599, (a) are mere letters of recommendation to the States, at their discretion, to raise taxes through the exercise of their own legislative powers for the erection and repair of forts and other buildings, and the like. "Other Orders will be found to have been made upon the petition of the officers of the Court, for the regulation of their fees. "Others, again, will be found to have issued from the Star Chamber. "In regard to the Order of the 17th December 1679, (b) by which the exaction by a Governor of a duty of 58. a ton on French vessels trading in Jersey was supported, although it (the duty) had been set aside, as being contrary to the privi leges of the Island, by a previous Order in Council of the 21st May in the same year, the States beg to observe that such levy was contrary to the ancient charters of all the sovereigns from Richard II. to Queen Elizabeth, by which charters all vessels, whether foreign or not, are ex (a) See below, App. B, p. 1102. empted from customs dues; and also contrary to the charter of James II., which was in the same terms as that of Queen Elizabeth, and was granted a few years after, in 1685 (a) and to all subsequent charters and usages; which were freely acknowledged in a report of a Select Committee of the House of Commons on the Channel Islands Corn_Trade, ordered to be printed on the 17th June 1835.(b) "There is, however, no trace to be found in the records of the Island whether any such tonnage duties were ever in fact raised, and at all events it is believed that the levy of such duties continued but for a very short period. 64 But, even in the case of the Order of the 17th December 1679, the States, by an Act bearing date 31st January 1680, (c) consented to the registry thereof only on the express ground that thereby the ancient privileges of the States were confirmed. And, furthermore, the Order of the 21st May 1679 was expressly confirmed by the Code of Laws of 1771 (at p. 159), and the 58. tonnage duty was declared illegal (see p. 162). "The Letters Patent (d) in the Jersey Code of 1771 (p. 95, Patente de l'impôt) have been also relied on, in support of the alleged right in the Crown; but these Letters Patent clearly on their face appear to have issued on the petition of the States themselves. (a) Falle, p. 459. (b) The only portion of this Report which refers to the charters and usages is as follows:"Your Committee see no reason to believe that the privilege possessed by the Channel Islands of freely importing their produce into this country has been made use of, to any material extent, as a means of introducing foreign corn. .... Your Committee are therefore of opinion that it would not be expedient to abrogate or infringe those privileges which are now enjoyed by the inhabitants of these Islands, and which were conferred upon them in consideration of the signal services which at various periods of our history they have rendered to the Crown and people of this country."-Report from Select Committee on Channel Islands (Corn Trade), Parl. Papers, 1835, H.C. 289, vol. 13, p. 446. (c) See below, App. B, p. 1115. (d) Of 21 Chas. 2., granting the impôt; see below, App. B, p. 1103. (e) See below, App. B, p. 1125. sented a petition (a) to Her Majesty in Council dated the 9th October 1830, pray. ing the withdrawal of the Order of 28th June 1830, as having been obtained without their knowledge or participation, and as being contrary to their privileges. "In consequence of such petition this Order in Council was never registered in the Island of Jersey, nor acted on; but was virtually withdrawn. "Subsequently, upon a recommendation contained in a letter of the Under-Secretary of State for the Home Department, dated the 25th January 1839, the States passed two Acts on the 13th February and 14th March of the same year, carrying out the object of the Order in Council of the 28th June 1830; and this latter Act was confirmed by Her Majesty in Council on the 3rd May 1839.(b) That the Sovereign in Council could not, previously to 1771, make laws without the concurrence of the States, receives additional confirmation from the mode of procedure usually adopted in the appointment of Royal Commissioners sent to inquire into the state of the laws. Sometimes those commissions were issued merely to inquire and report, but occasionally the Commissioners had power to concur in acts of legislation; but, to show how entirely this was a delegation only of the authority of the Crown, and not intended to supersede that of the States, the Commissioners were directed to have the advice and assistance of the States, and accordingly, upon the arrival of the Royal Commissioners in the Island, the States invariably have been assembled, and the acts and proceedings of the Commissioners have been recorded in the books of that Assembly. "Without producing other instances in support of this statement, the heading to the report of the Commissioners Pyne and Napper, made in the reign of Queen Elizabeth, 3rd April 1591, before referred to, may be cited, which is in these words (c) "Ordres, Loix, et Ordonnances concernant l'Ile de Jersey, faites et établies pour l'avancement de l'honneur de Dieu, du service de sa Majesté et du bien et utilité publique, le troisième jour d'Avril, en l'an trente-troisième du regne de Notre Souveraine Dame Elizabeth, par Tertullian Pine, Docteur en Loi, et Robert Napper, Eer., commissres. sur ce authorisez par sa Majesté sous le Grande Sceau d'Angleterre, &c., portant date le cinquième de Mars dernier Poulet, Ecr., Gouverneur de la dite lle de passé; et aussi par le consentement d'Authoyne Jersey, et du Baillé, Jurez, et Etats d'icelle, &c.' (a) See below, App. B, p. 1125. (b) See below, App. B, p. 1126. (c) See Le Geyt, vol. 2, p. 247. "Bearing in mind these principles and privileges, which for so many centuries, by successive Sovereigns and their Privy Council, have been respected and confirmed, the States cannot but entertain the impression that Her Majesty in Council has been induced to give her Royal sanction to the Orders of the 11th February 1852, under the supposition that the provisions of those Orders had previously been discussed and approved of by the States. "The States, therefore, respectfully urge the recall of the three Orders in Council of the 11th February 1852, by which the inhabitants of the Island would be taxed, not only without their concur. rence, but without even their knowledge or participation, and which are calculated to deprive the States, the legitimate representatives of the people of Jersey, of the right which they have hitherto exclusively enjoyed, to initiate and enact such laws as they may deem necessary to promote the happiness and welfare of the people. "The States in the next place beg to make some remarks on the petitions presented in this matter. "The first and the most numerously signed of the petitions is (a) from the ratepayers and householders of Jersey, and though concurring with the States in regarding the Orders in Council of the 11th February 1852 as unconstitutional, and tacitly assenting to the sufficiency of several of the measures of the States, prays that the Royal sanction may be withheld from the two laws proposed by the States for establishing a Court for the recovery of small debts, and a police court. The States, however, firmly believing that the Acts which they have adopted will fully accomplish the objects professed to be desired by the petitioners, without militating against the institutions of the Island, beg leave respectfully to urge the approval by Her Majesty in Council of all their Acts of the 10th, 16th, and 17th of August 1852. 66 The second of the petitions (b) purports to come from persons styling themselves Your Memorialists,' without any other description, and though signed by persons who have likewise affixed their signatures to the first-mentioned petition, seeks the registration of the three Orders in Council of the 11th February 1852, in order that they may become the law of Jersey, and prays the withholding of the Royal sanction from the Acts of the States. "Without staying to notice the in (a) Numbered (3) above, p. 288. consistency of persons who pray in one petition the recall of the Orders as unconstitutional, and in another that the registration of the same Orders may be enforced, the States call attention to the fact that, whilst the petition soliciting the recall of the Orders has received several thousand signatures, that of the persons styling themselves' Your Memorialists' contains but forty-nine, of whom thirty-two are non-natives, who have little or no interest in the affairs of the Island, and of the seventeen natives most of them live at a distance from St. Helier's, and would not be called on to contribute at all, or very slightly, to wards the expense of the changes proposed to be effected. "The third of the petitions above referred to (a) as having been presented to Her Majesty in Council, professes to come from persons styling themselves The undersigned merchants, bankers, tradesmen, and other inhabitants of St. Helier's, in the Island of Jersey' (a misdescription of the petitioners who signed it, as there is neither a merchant or banker among them). "Although these petitioners did not seek to be heard by counsel in support of their representations, and the greater number of them have also signed the petition ob. jecting to the Orders as unconstitutional, the States deem it incumbent on them to refer thereto." "These petitioners indeed take very high ground, for not only do they dispute the authority of the Court to suspend the registration of the Orders in Council, but they also contest the powers of the States as a Legislative Assembly, points upon which the States submit that no further remarks are necessary." [The States, although willing to rest their case on the unconstitutional nature of the three Orders in Council, contended further that the Orders were not only unnecessary, but would, in their present state, be to a certain extent inoperative; that they would create an unnecessary increase of expenditure; that they were not sufficiently blended with the established institutions of the Island; and lastly, that they were rendered wholly unnecessary by the six Acts passed by the States. These they contended would supply adequate remedies at a much less costly rate than the Orders in Council, which introduced systems of procedure at once novel and opposed to the habits and customs of the people. After a minute comparison of the Acts with the Orders in Council, the States submitted that the three Orders in Council ought to be recalled, and the six (a) Numbered (2) above, p. 287. Acts of the States receive the Royal confirmation, for the following reasons-] "First.-Because the Orders have been issued without the consent of the States, and are contrary to the letter and spirit of the constitution of the Island. "Second.-Because, if their legal validity could be maintained, they are of such a nature that it would be inconvenient and inexpedient to confirm and put them in force. "And lastly, because the States have by their Acts of the 10th, 16th, and 17th August 1852 made sufficient provision for the useful objects contemplated by the Orders, and those Acts are proper to be confirmed by Her Majesty in Council. "FRED. THESIGER. (a) ROUNDELL PALMER.(b) "WILLIAM WYLLYS MACKESON." CASE IN SUPPORT OF THE ORDERS IN COUNCIL OF FEBRUARY 11TH. The forty-nine signatories of the petition of October 25th, 1852,(c) put in a case in support of the Orders in Council of February 11th, and against the six Acts passed by the States, in which they contended that the States had acted in an illegal and unconstitutional course in refusing to register the Orders in Council, so as to give them the force of law in the Island. In answer to the petition of the States, (d) they alleged that such petition contained various allegations which were incorrect and could not be supported by proof. The case proceeded: The States therein say that they have from time immemorial existed as a legislative body, and have been recognized as such by innumerable Charters and Orders of Her Majesty's royal predecessors: that their legislative powers have been regarded as of the most ample description, in so far as concerns laws which were to take effect in the island; and that the right to initiate their laws has been left to the States, as being likely to be the body which is most conversant with the wants and customs of the people of Jersey. They further insist upon the right of the States to originate laws which are to operate within the islands, and adduce arguments and cite authorities in support of that view. "Although, therefore, the States merely pray for a recall of the Orders in Council, so that they may be at liberty to adopt (a) Afterwards Lord Chelmsford, L.C. (b) Afterwards Lord Selborne, L.C. (c) Numbered (4) above, p. 288. (d) Numbered (1) above, p. 287. certain legislative measures, they in effect deny the right of the Queen in Council to issue any such Orders or any Orders in Council at all in the nature of laws for the government of the Island of Jersey, which have not first originated with the States, and been afterwards submitted to the Queen in Council for her royal sanction. They thus seek to constitute themselves the sole judges of what legislative measures ought to be initiated, and to limit the authority of the Crown to a mere approval or disapproval of such matters as shall from time to time be submitted by the States to its consideration. "The present petitioners, however, submit that this is not in accordance with the constitutional law of Jersey. They contend that the States have no legislative power and functions in the proper sense of the word; and although it may be admitted that the States have the power of originating certain provisional laws or ordinances which possess permanent authority only the Queen in Council, yet the petitioners when they have received the sanction of deny that the States have, even in such with the Crown, and they contend that matters, more than a concurrent_right in all cases the Crown has the power, although in some it may not have the measures for the Island of Jersey. exclusive power, of originating legislative "They further contend that when the and issued an Order in Council, in the Crown has exercised the power or right, nature of a legislative enactment applito register such Order, and they cannot cable to Jersey, it is the duty of the States lawfully refuse so to do. For the proof of these assertions, and to show the long course of precedent and usage on the subject, the petitioners beg leave to refer to but they think it advisable to quote here the documents printed in the Appendix ;(a) Commissioners appointed by Her Majesty the passage from the First Report (b) of the to inquire into the criminal laws in force in the Channel Islands, which report was presented to both Houses of Parliament in the year 1847: assumes is that of the "By the Norman law the Duke had the supreme legislative power. The form which this authority now 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. 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 (a) See below, App. B, p. 1097. |