Head of the judiciary and President of the States in both Jersey and Guernsey
In early days the Warden of the Isles who was Military Governor, was often called Ballivus in ofoficial documents written in Latin, and among other duties presided over the Court; but by the beginning of the 13th century the Wardens had Bailiffs under them. In 1201 a Letter Patent speaks of "Pierre de Préaux and his Bailiffs in Jersey and Guernsey". In 1335 a Close Roll addressed to the Warden adds, "The same instructions have been sent to the Bailiffs of Guernsey and Jersey". These early Bailiffs were merely Bailiffs of the Warden; in 1213 they are called "the Bailiffs of Philip d'Aubigné". They were appointed, paid, and dismissed by him; but, as the century progressed, their appointment was confirmed by the Crown, and in time they began to call themselves "the King's Bailiff". At first they assisted in all sides of the Warden's duties, but about 1390 under Lord of the Isles,Otto de Grandison division of work was established.
His lieutenants who dealt with military and administrative matters were called Sub-Wardens (Subcustodes), and the name Bailiff confined to the one entrusted with Judicial duties. Later still Bailiffs were appointed directly by the Crown. Then friction often arose between Bailiffs and Governors as to their respective powers and in 1617 the Privy Council laid down the rule that "the charge of the military forces be wholly in the Governor, and the care of justice and civil affairs in the Bailiff".
The Bailiff in both islands presides over the Royal Court, and also over the Assembly of the States. Until 2005 the Bailiff had the casting vote in the event of a tied vote in the States, which had to be cast in favour of the status quo. Although the Bailiff, or his deputy, presides over the Royal Court, it is the Jurats, or jury in the case of an Assize trial, who find defendants quilty or not. The Jurats decide on sentence, with the Bailiff exercising a casting vote in the event of a split decision.
Jersey and Guernsey have had separate Bailiffs since the islands were divided into two jurisdictions in the 13th century.
Although the Bailiff must clearly have a legal background, there are no formal qualifications for the role. Today in Jersey, by convention, he, or she (though to date there have been no recorded women holders of the office), and the Deputy Bailiff are invariably selected from among those who have previously held the office of Attorney-General.
Originally, the Bailiff was both legislator and judge, but in the interim the position has become increasingly concentrated on the judicial aspects of the original role.
In 2000, a judgment in the European Court of Human Rights, McGonnell vs. United Kingdom, concerning the role of the Bailiff of Guernsey, ruled that the involvement of an individual presiding over the passage of legislation and over a judicial process regarding that legislation was incompatible with Convention rights, even if that individual had held different posts on the relevant occasions.
The then position of the Bailiff of Guernsey (who was also head of the Administration in Guernsey and presided over a number of States Committees - functions now abolished) was less clearly delineated as to separation of legislative or administrative and judicial functions than that of the Bailiff of Jersey. Following reforms, the Bailiffs retain positions in both the respective States and Royal Court
The Evolution of the Role of the Bailiff of Jersey
Some historians say that the position of Bailiff was created shortly after the Treaty of Paris, 1259, in which King Henry III gave up claim to all of the Duchy of Normandy but the Channel Islands. Rather than absorb the islands into the Kingdom of England, a Warden and Bailiff were appointed to run the island on his behalf. This more or less concurs with the findings of one of Jersey's eminent historians, the Rev J A Messervy, who names Drouet de Barentin as the first Bailiff of Jersey in about 1258 (see List of Bailiffs of Jersey), but the Wardens who held office earlier in the 13th century almost certainly appointed Bailiffs to assist them.
The Royal Court, under the presidency of the Bailiff, originally not only administered the law but also wrote it. As a Crown appointment the Bailiff was a powerful figure and the post was the subject of patronage. From the time of Sir George de Carteret in the 1660s onwards the position of Bailiff became a political fiefdom of the de Carteret family and the position was de facto hereditary — although many of the de Carteret Bailiffs, such as John Carteret, 2nd Earl Granville, preferred to pursue political careers in England. During this period, the absentee Bailiffs appointed Lieutenant-Bailiffs to exercise office.
In Guernsey, where the authority of the Royal Court was very great, the Bailiff was looked on as nothing more than the president of the Court and could not act on his own. In contrast, in Jersey the Bailiff had real power, both within the Court and outside. When presiding over the Court he could pronounce sentence without taking the Jurats’ advice in less important matters with an obvious conclusion, and he had the authority to penalise or suspend the members and officers of the Court and the Advocates.
Outside of the Court he had the power to order the detention of suspected criminals, holding of inquests and also exercised control over public entertainment.
Unlike his Guernsey counterpart, Jersey’s Bailiff had, and in many cases still has, the power to nominate several court officials, including the Greffier, and also solicitors. Until the position was derestricted in 1860, the Bailiff also had the power to nominate six Advocates
From the last quarter of the 13th century Bailiffs were subject to detailed scrutiny by commissioners or ininerant justices sent to the island by the King from time to time. They held an Assize, which heard cases which might otherwise have been heard by the Royal Court, and also examined complaints against the island’s resident officials.
At each assize, all who had held the position of Bailiff since the previous one were called on to account for their roles and were liable to punishment if found to have acted incorrectly or improperly. This was the period when the office rotated between the Jurats rather than a single Bailiff being appointed to preside for a prolonged period
In 1331 justices Scarborough, Norton and Westcote were charged to conduct a searching inquiry into the conduct of Bailiffs. After the reign of Edward III the practice of sending justices to Jersey to conduct Assizes, which originated from England in the reign of King John, not Normandy, ceased.
Juge-délégué was an appointment made after the death or removal from office of a Bailiff and before the appointment of a replacement to ensure the continuity of justice through the Royal Court. This appointment was originally made by the Jurats, usually choosing the most senior of their number. In later centuries the appointment was made by the States. Since the creation of the post of Deputy Bailiff the need for a Juge-délégué has disappeared.
A Lieut-Bailiff, however, is nominated by the Bailiff to deputise for him, and, although almost invariably chosen from the ranks of Jurats, need not necessarily be the senior member of the bench. When a Bailiff ceases to hold office, any Lieut-Bailiff appointed by him also loses his position, although he may be reappointed by the next Bailiff. Although on occasions a Lieut-Bailiff has been chosen as Juge-délégué, this has not always happened.
Today a Lieut-Bailiff usually holds that position until he or she retires as Jurat, but in early years a Bailiff might only appoint a Lieutenant for a limited period when he needed a deputy because he was unable to preside over the court because of ill health or absence from the island. On occasion two Lieut-Bailiffs have held office at the same time, usually when a non-resident Bailiff needed someone to deputise for the first Lieut-Bailiff.
A significant number of Lieut-Bailiffs have held the position as full-time deputy for a Bailiff who was non-resident. This happened for a prolonged period from the second half of the 17th century and throughout the 18th century, when the title of Bailiff passed in hereditary fashion from one member of the Carteret family to the next, none of whom ever lived in Jersey or did anything more than collect their incomes.
In 1750 Charles Lemprière was appointed Lieutenant-Bailiff and set about establishing a powerbase by engineering the election and appointments of members of the Lempriere family to office. A succession of weak Lieutenant-Governors enabled Lemprière to establish an autocratic régime, making the States subservient to the Royal Court and ensuring, by the handpicked appointment of Advocates, that opponents would be unable to get legal representation. A threatened shortage of corn sparked popular protest and led to a mob sacking the Royal Court. The Bailiff and Jurats took refuge in Elizabeth Castle and petitioned the King. In 1770 Colonel Bentinck, a Dutchman, was appointed Lieutenant-Governor with instructions to oversee reform.
In 1771 it was laid down in Jersey that no laws might be adopted without being passed by the States. From this time on the bailiff was to be the chief power in Jersey as president of the States, rather than as president of the Royal Court. The party of Charlots (conservative supporters of Lemprière who claimed that the States could not pass legislation without the agreement of the Royal Court) were opposed at elections by Magots, and by 1790 the progressive Magots had majorities in both the Royal Court and the States.
In 1826, the long succession of absentee Bailiffs came to an end with the appointment of Thomas Le Breton. Under Jean Hammond (Bailiff 1858-1880) the role became established as a politically impartial, if paternalistic, presidency. The introduction of Deputies into the States in 1857 added to the democratic weight of the legislative assembly, but the Bailiff still guided the government of the Bailiwick.
States become more powerful
The process of democratisation through the 19th and 20th centuries shifted the focus of political influence to the elected members of the States.
In 1921, the property and financial powers of the Assembly of Governor, Bailiff and Jurats was taken over by the States, leaving that assembly with only power to act as Licensing Bench. With the power to levy impôts henceforth in the hands of the States, and with the introduction of the Income Tax law of 1928, the legislators now controlled the budget independently of the Bailiff.
Alexander Coutanche, appointed in 1935, was the last Bailiff appointed for life (they must now retire at or before 70) and the last under the sole prerogative of the Crown without the obligation to consult the States of Jersey.
Although the need for centralised administration during the German Occupation made the Bailiff a commanding figure in trying to maintain the life of the island, the constitutional reforms of 1948, which removed the Jurats from the States, replacing them with Senators, separated more clearly legislature and judiciary. Political leadership now rested more clearly with the Senators as purely political senior elected representatives.
In 1958 the post of Deputy Bailiff was introduced to spread the workload of Bailiff - the Deputy Bailiff generally proceeding to replace the Bailiff on the latter's retirement or death.
The appointment of Royal Court Commissioners (acting judges) now ensures that the Bailiff never sits on a case which relies on a law for which he has taken part in the legislative process.
Bailiff's view of proposals for change
- An article by former Bailiff Sir Philip Bailhache on arguments for changing the dual role of the Bailiff of Jersey
- Balleine's History of Jersey, Marguerite Syvret and Joan Stevens (1998) ISBN 1-86077-065-7
- Memoirs of Lord Coutanche