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Joint Opinion of the Attorney and Solicitor General, Sir Dudley Rydeb and Sir John Strange, on the Kings authority over Guernsey and Jersey. 1737.
To the Right Honourable the Lords of the Committee of Council for the Affairs of Guernsey and Jersey.
May It Please Your Lordships,—In obedience to your Lordships' order of the 21st of July, 1736, hereunto annexed, whereby your Lordships were pleased to refer the memorial and papers hereunto annexed, to his Majesty's late Attorney and Solicitor General, to consider the same and report their opinion to your Lordships upon the general case of extenta from the Exchequer, and of the process from the Courts of King's Bench, how the same can be legally executed in the islands of Guernsey and Jersey, and if not, what other remedy is left to the Crown for the recovery of their debts in those islands—
We have considered of the matters so referred, and are humbly of opinion, that no writ of extent out of his Majesty's Court of Exchequer here, nor any process from the Court of EJng's Bench, can, as the laws of those islands now stand, be executed there, they being governed by laws of their own, subject to his Majesty's Order in Council, and the subjects there are not amenable to the courts here.
And we are of opinion, the only remedy the'Crown has for the recovery of their debts in those islands, upon the foot of the present law, is by proceeding upon proper suits, to be instituted in the courts there, according to the course of those courts, and sending thither the proper evidence of the debt, unless his Majesty shall think fit to interpose in his legislative capacity, and by an Order in Council make a new law concerning the method of recovering the Crown debts against the inhabitants there.
By this means his Majesty may, if he think fit, give such force to extents and other processes out of the courts here, as he shall judge convenient; but whether the single instance of inconvenience to the Crown, in the case of Carey's debt, mentioned in the memorial, is a sufficient ground to make any alteration in the laws of those islands, is humbly submitted.
August 12, 1737. J. Strange.
NOTES TO CHAPTER XIII.
There are many cases reported in Knapp and Moore of appeals from the Channel Islands which can be easily found by referring to the indexes of those volumes; but I propose in this note merely to explain a few points relating to their history and constitution.
The islands of Jersey, Guernsey, Alderney, and Sark originally formed part of the Duchy of Neustria, or Normandy, which was ceded in the year 911 by Charles IV. to Rollo the Norman, as a fief of the Crown of France. From Hollo they descended, along with Normandy, to William the Conqueror. At his death, his second son, William II., succeeded to the throne of England; but the eldest son, Robert, obtained Normandy and the Channel Islands. Henry I. made war upon Duke Robert, and having conquered him, united Normandy and the islands to England. The Normans afterwards revolted under King John, A.d. 1204, and the islanders seem to have followed their example, although this is denied by some writers. John failed to reconquer Normandy, but the islands were recovered, and John formed them into one bailiwick and granted them a charter. Afterwards, under Edward I., and more fully under Henry VII., they were formed into two bailiwicks. The first Order in Council, enacting laws in the island of Jersey, is said to have been issued in 1571. Coke, speaking of Jersey and Guernsey, says: "Those isles are no parcel of the realm of England, but several dominions enjoyed by several titles, governed by several laws:" Calvin't Case, 7 Co. 21a; and see Hale, Hist . Com. Law, 269 (6th edit.).
The Royal Court of Jersey is composed of a bailiff appointed by the Crown, and twelve jurats or justices, who are elected for life by the people, and occupy the double character of judges and political representatives of the people in the States.
The States are composed of the bailiff, the twelve rectors of the twelve parishes, the twelve jurats elected for life by the people, and the twelve constables of the parishes, who are elected by the people for three years.
The Lieutenant-Governor is appointed by the Crown on the recommendation of the Commander-in-Chief.
The power of the States to legislate is strictly subordinate to the Royal authority. "If the States should think it expedient to make the offenoe of burglary a capital offence, as it is by the law of England [or rather was, at that time], they may, if they be so advised, propose a new law for your Majesty's consideration, to bo enacted and confirmed by your Royal sanction, after your Majesty shall have signified your allowance to have such a law enacted:" Order in Council, June 23, 1790.
A few years ago the States denied the right of the Queen in Council to legislate for the island without consulting the States, and they relied principally upon the ordinances of the Commissioners, Pyne and Napper, who were sent by Queen Elizabeth to Jersey in 1591, upon the Order in Council of the 28th of March, 1776, upon which the Jersey Code of Laws is founded, and the usage which has prevailed in modem times of Acts having been passed by the States, and afterwards sanctioned by the Crown. And they asserted that no Orders in Council of a legislative nature have become the law of the island which have not been issued at the suggestion or upon the request of the States, or have subsequently received the assent of the States. The question came before a Committee of the Privy Council for the affairs of Jersey and Guernsey upon a petition by the States of Jersey praying for the recall of three Orders in Council issued in February 1852—a case in which the author was counsel against the petitioners: Be Hie States of Jersey, 9 Moore, P. C. 185. The Committee did not express any decided opinion upon the general question, but they advised the recall of the Orders in Council, and the confirmation of certain Acta proposed to be substituted for them by the States. See Be The Jersey Jurats, L. B. 1 P. C. 94. Regulations for prosecuting appeals to the Queen in Council are contained in the Orders in Council dated July 15, 1835, and June 13, 1853 (i).
Whether Acts of Parliament extend to the Channel Islands depends upon the manner in whioh they are worded. Sometimes they are specially named, as in statute 14 Vict. c. 5: "This Act shall extend to the islands of Jersey, Guernsey, Alderney, Sark, and Man;" and in statute 18 & 19 Vict. o. 63: "This Act shall extend to Great Britain and Ireland, and the Channel Isles, and the Isle of Man." When an Act is expressed to extend to all parts of the British dominions, it, of course, includes the Channel Islands. And yet tho Copyright Act, 5 & 6 Vict. c. 45, enacts that the words "British dominions" in that Act shall be construed to mean and include the islands of Jersey and
(i) See "The Constitution of Jersey," by Le Cras, (Jersey, 1857); and "A Concise View of the Legislative Powers of the Crown over the Island of Jersey," by Dryden. (Peterham: London, 1854).
Guernsey, as if without such enactment they would not have been included in the words " British dominions." And by statute 31 & 32 Vict. c. 37 (the Documentary Evidence Act, 1868), "British colony and possession shall, for the purposes of this Act, include the Channel Islands." Another statute (5 & 6 Vict. o. 47) says, in its recital: "Whereas one of the said Acta (3 & 4 Will. 4, c. 51) was passed for the management of the Customs . . . And whereas the provisions extend to the island of Jersey so far as the same are applicable to that island according to the laws thereof, although the island is not specially named in the said Act." By the Limitation of Suits Act (3 & 4 WilL 4, c. 27, 6. 19), they are not to be deemed beyond seas within the meaning of that Aot. The Postage Act, 2 & 3 Vict. c. 52, s. 11, speaks of letters conveyed " between places within the United Kingdom, and between the United Kingdom and the islands of Man, Jersey, Guernsey, Bark, and Alderney."
The Act 12 & 13 Vict. c. 96, s. 5, provides that the word " colony" used in that Act "shall mean any island, plantation, colony, dominion, fort, or factory of Her Majesty, except any island within the United Kingdom and the islands of Man, Guernsey, Jersey, Alderney, and Sark." In Craw v. Banuay (Vaugh. 281), Vaughan, C.J., said that Guernsey and Jersey "are dominions belonging to the realm of England, though not within the territorial dominion or realm of England, but follow it, and are a part of its royalty."
ON THE NATIONALITY OF A SHIP, AND OTHER MATTERS
(1.) Joint Opinion of the King's Advocate, Sir James Marriott, and the Attorney General, Sir William De Grey, on the case of an Arrest in the Isle of Man on board a Ship of War(i). 1770.
My Lord,—In obedience to his Majesty's commands, signified to us by your Lordship's letter of the 29th June last, we have taken into our consideration the complaint of his Majesty's Governor of the Isle of Man against Lieutenant Whiston, of his Majesty's sloop Banger; and in answer to the question whether, as the case appears to us, the process was regularly executable on the said Lieutenant Whiston by the officer therein mentioned on board his Majesty's ship, and what directions it may be proper to give to the said Governor for his future conduct,—we have the honour to answer that it appears to us, from the return of Joseph Labat, deputy captain, or one of the peace officers of the Isle of Man under that denomination, that when he repaired, in consequence of the order of the Governor, alongside of his Majesty's said ship, she was then riding within the high-water mark, for which reason he did not think himself authorized to execute the arrest. It also appears to us, agreeably to report of the Attorney General and the magistrates of the island, that the jurisdictions of the said island are become vested in his Majesty; and that the deputy-searchers who formerly executed arrests below the full sea-mark are now officers of the revenue only.
That in consequence thereof there are no peace officers now who
(i) From a M. S. in the possession of Sir Travers Twiss, Queen's Advocate, which formerly belonged to Sir James Marriott.