Popular History of Jersey Chapter 42

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States v Crown

Constitutional issue

The lawsuit alluded to in the preceding chapter in connection with the Three Orders in Council involved, perhaps, one of the most important constitutional questions that have ever arisen in Jersey, the whole, as a matter of fact, revolving round the vital point of the English Sovereign's power, or otherwise, of promulgating and enforcing Laws and Regulations in the Island without the knowledge or consent of the States of Jersey.

To fully understand the import of the matter, it is as well to remember that the Three Orders in question were the actual outcome of the Royal Commission, conducted by Messrs. Ellis and Bros, who arrived in the Island some six years previously for the purpose of inquiring into its Criminal Law; the substance of their report being that matters were, taken altogether, in a most unsatisfactory state and needed trenchant measures.

Three orders

The outcome of this report was that Her Majesty in Council, on 14 February 1852, without the knowledge or concurrence of the States, promulgated Orders for the following purposes:

  • 1 Establishing a Court for taking preliminary proceedings in criminal cases, and of summary jurisdiction
  • 2 Establishing a Civil Court for the more easy recovery of small debts
  • 3 In the town of St Helier and its vicinity, establishing a new police in lieu of those at that time acting as such.

These orders were transmitted to Major-General James Frederick Love, Lieut-Governor, and were accompanied by a letter from the Under-Secretary of State for the Home Department directing their registration, without which, as aforetime stated, their legal value in the Island would be nil.

This registration of the Orders was suspended by the Royal Courts and the States on the consideration that they effected very important changes in the institutions of Jersey and had been ordered to be registered nolens volens. In other words, the authorities of the Island respectfully declined to make legal what they had never sanctioned and did not agree with. And a spirit of opposition was aroused in the breasts of the majority of the Islanders such as perhaps has never been equalled, against what was thus looked upon as an arbitrary action on the part of the Crown, and one which was considered derogatory to the dignity, privileges, and liberties of the States.

Petition

A petition was accordingly, at the earliest moment, addressed by that body to Her Majesty in Council, to the effect that the Orders were calculated to deprive the States of the right they had hitherto enjoyed in the initiation and enactment of such laws as might be deemed necessary for the happiness and welfare of the inhabitants over whom they were the constitutional rulers. At the same time it was prayed that the Orders might he recalled, so that the States might feel themselves at liberty to adopt such measures as might be necessary and in keeping with existing institutions — such measures to apply to the establishment of a more efficient police force, of a night watch in St Helier, and the providing of a summary mode of dealing with petty offences and the recovery of small debts. A petition was also sent from 6,750 of the inhabitants of the Island to the same effect, whilst, subsequently, a deputation of the States waited upon Earl Lonsdale, President of the Privy Council, and H S Walpole, the Home Secretary, which resulted in time being allowed for the States to consider and adopt the measures suggested by them.

In accordance with this the States, on 10, 16 and 17 August of the same year (1852), adopted six Acts embodying to a great extent the ideas of the Three Orders, and, from that body's point of view, free from the objections connected with them.

Six Acts

The substance of the now locally celebrated Six Acts related to the following matters connected more especially with the town of St. Helier :—(1) The number and increase of Centeniers and other officers. (2) The appointment of paid police. (3) The amending of the practice in taking evidence in criminal cases. (4) The establishment of a Court for the recovery of debts under £10 sterling. (5) The amending, in certain cases, of the practice of the Royal Court. (6) The establishment of a minor Court for criminal cases.

These Acts were duly forwarded to the Imperial authorities, in the hope that by their confirmation a final settlement of the whole affair might be thus arrived at. This hope, however, proved an abortive one. Discontent was still rife upon the Island, and the transmission of the Six Acts was quickly followed by various petitions. Of these, the principal one was signed by some 4,427 persons, praying, indeed, for the repeal of the obnoxious Three Orders, but also pleading against the confirmation of two of the six adopted by the States, in other words, against the establishment of a Court for the recovery of small debts and the establishment of a minor (police) Court, in consideration of the fact that they were inadequate for the purposes intended. At the same time a petition was also forwarded by a small but "most influential" minority, numbering 49, who strongly urged the enforcement of the Three Orders and the rejection of the Six Acts. And the result of the whole was an argument which lasted three whole days before the Judicial Committee of the Privy Council.

Material differences

The Acts of States, it may be added, though they had the same object in view as the Three Orders, differed very materially from them. In the former, for example, it was enacted that the Judge of the new Court should be the Bailiff of the Island, Lieut-Bailiff, or his deputy, or a Jurat specially appointed. Whereas in the latter (Three Orders) it was enjoined that a Judge should be appointed by the Crown at a salary of £400 per annum, to be paid by the States, whilst again in the matter of the extension of the police and the establishment of paid officers, the Orders contained a regulation to the effect that the appointment of such should not be in the hands of the States, but of the Home Government; and it was these two items that were specially uncongenial to Jersey ideas.

The end of the conflict, however, argued out at length before the Lord Chancellor, Viscount Palmerston, Lords Justices Knight, Bruce, and Turner, Sir J Patterson, Dr Lushington, and Mr Pemberton Leigh, was a victory for the Island; though judgement was not given in the case until 29 December of the following year; the judgement then resulting in the withdrawal of the Three Orders and the confirmation of the Six Acts of States which were afterwards put in force, and are, up to the present time, in vogue.

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