Popular History of Jersey Chapter 55

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Prison Board case

Bailiff or Governor?

To thoroughly understand the Prison Board Case, which caused so much stir upon the Island from about the Midsummer of 1891 to the Midsummer of 1894, it is necessary to go back in the annals of Jersey history for some 215 years. For the official conflict, which arose in its connection between Lieut-General Charles Brisbane Ewart (Lieut-Governor), and Sir George Clement Bertram (Bailiff), was really one of precedence, whether or no, that is to say, the Bailiff, as chief civil authority of Jersey), was ex-officio chairman of the Prison Board, or whether that position did not of right belong to the Lieut-Governor as military head of affairs, and thus, in this respect representative of the Sovereign on the Island.

In supporting the rights of his position, the Bailiff held that from the year 1676 to 1771 the nomination of the gaoler of the prison (and therefore the actual authority concerning the matter) was vested in the hands of the Bailiff and Jurats, and that from 1771 to 1837, when the new Prison Board was formed, the appointment of that public functionary had been in the hands of the Bailiff, with the advice of the Royal Court; the management of the prison being entrusted to the Vicompte under the direction of the Bailiff.

He further pleaded that prior to the formation of the Board in 1837, considerable correspondence had taken place between the English Government and the States in connection with the matter, at the same time pointing out that when the Government originally proposed that the Prison Board should be composed entirely of the nominees of the Crown, the Lieut-Governor, the Bailiff, two Law officers and one of the King's receivers, the States had strenuously objected to such on the ground that they were called upon to contribute equally with the Crown towards the expenses of the prison, and were moreover liable for any excess of expenditure that might occur, and hence claimed equable representation on the Board.

Precedent

In the matter, too, of Victoria College in 1853, when the propriety of making a permanent President of a local administrative body had been upheld by their Lordships of the Privy Council, and the Order in Council of that year concerning it had been sent to the Royal Court of Jersey for registration, enacting inter alia that the Lieut-Governor should be President of that body, the States had again protested that they viewed such an appointment "as an attempt to remove that line of demarcation which for ages had existed between the military and civil authorities of the Island; and especially as an encroachment on the prerogative of the Bailiff, who in all Assemblies of the States, Administration of the Impot, Committees, the Prison Board; and other bodies, had ever been regarded as, ex officio, entitled to preside, and hitherto had presided".

Such were the chief points in the case for Sir George Bertram as Bailiff of Jersey; and on the side of the Lieut-Governor, the following items are of special note. In the first place, the Order in Council of 1837 confirming the constitution of the Jersey Prison Board did not make any provision at all as to who should or who should not be President of that body, and when the case of Marie Francoise Daniel brought matters to a point, Lieut-General Charles Brisbane Ewart wrote to the Home Secretary (14 February 1890) urging the necessity of the revision of that Order, so as to invest the appointment of such Chairman in the Home Office.

On 25 February 1890, at a meeting of the Prison Board, when the Bailiff was not present, the Lieut-Bailiff, Malet de Carteret, claimed the right ex officio to take the Chair in Sir George's absence, whereupon the Lieut-Governor, the Viscount (Gervaise Le Gros), and the Receiver-General (Edward Mourant), withdrew from the meeting; the Lieut-Governor afterwards abstaining with the sanction of the Home Secretary, from being present on all such occasions pending Her Majesty's opinion. Hence came the following all-important document, the actual cause of the long lawsuit that ensued :

Order in Council

Order in Council of 23 June 1891, at the Court at Windsor

Present:

The Queen's Most Excellent Majesty The Lord President Earl of Limerick Marquis of Salisbury Lord Arthur Hill

Whereas, in the Order in Council of 11 December 1837, constituting a Prison Board for the Island of Jersey, no directions are given with reference to the appointment of a Chairman of the Board, and it is expedient that provision should be made for such appointment, now, therefore, Her Majesty, by and with the advice of Her Privy Council, is pleased to order and direct as follows:—
Whenever the Lieut-Governor is present at any meeting of the Prison Board, he shall preside over such meeting. In the absence of the Governor, the Bailiff of the Island of Jersey, if present, shall preside. When neither the Lieut-Governor nor the Bailiff is present, the members of the Board present at the meeting shall elect one of themselves to preside over each meeting.

The States, not unnaturally, held this to be a violation of the Order of 1837, and postponed its registration, at the same time upholding the right of the Bailiff, as their representative, to preside; a right, as they affirmed, that had always been acquiesced in by former Lieut-Governors; whilst Lieut-General Brisbane Ewart at once harked back to what he considered a fundamental Order of 15 June 1618, and by it claimed a right which had not been defined in the Order of 1837, constituting the New Prison Authorities.

Legal action

Upon this followed the celebrated action-at-law, which may virtually be said to have commenced on 12 November 1891, when from the Privy Council there was received a letter to the effect that their Lordships could not, upon the facts before them, advise Her Majesty to recall the order of 23 June 1891; but in compliance with the prayer of the States to be heard before the Lords of the Committee of the Privy Council, they were prepared to hear it.

All the items of the case, and every point dealing in any way upon the matter from the earliest times, were thoroughly and exhaustively gone into, and in the end, when it did come, which was not until the Order in Council of 27 June 1894, the result was a true and significant case of in statu quo.

In their Lordships' opinion the Order in Council of 23 June 1891, materially altered the arrangement embodied in the Order of 13 December 1837 (which, it will be remembered, did not constitute any one person President of the Prison Board) on the basis of which the States agreed to pass, and passed the necessary Acts for making the financial contribution prescribed by that Order.

"Their Lordships therefore think" — so the wording runs — "that the Order in Council of 23 June 1891, ought not to be sustained, and they humbly advise your Majesty that it should be recalled."

The most judicious and beneficial part taken in the matter by Lieut-General E Markham, whilst acting as immediate successor to Lieut-General Charles Brisbane Ewart, as Lieut-Governor of Jersey, can only be passingly alluded to here, as many items of importance took place prior to it.

Heatwave and storm

To return, therefore, to the other principal matters of the year 1891, we find that the Island, during the July of that year, experienced an unusual wave of heat and a succession of violent thunderstorms, during which, on the 16th, some dozen men of the 1st South Lancashire Regiment, then stationed in Jersey, "fell out" through the beat during the presentation to that gallant corps of their new colours, 26 July being the occasion of a terrible thunderstorm, and 21 August memorable for a semi-hurricane that passed over the place, uprooting trees and unroofing buildings to a considerable extent.

On 29 September 1891, the new Church of St Paul's was opened, and on the 29th of that month the sad news of the suicide of General Boulanger was received in Jersey, where he had several times been conspicuously prominent for his charitable and philanthropic work. On that date, too, came the sorrowful tidings of the death of one of the Island's former Lieut-Governors (1860-1863) in the person of the late Sir Robert Percy Douglas.

Then, owing to the prevalence of pleuro-pneumonia, the importation of foreign cattle was again prohibited by the States on 19 October, though the preceding 12th is noteworthy as having seen another celebrated Jersey cow, "Fancy III", sold for £110.

Following upon this there comes to the fore another succession of heavy winds and storms, with the Jersey Railway traffic interrupted, owing to the washing away of the line throughout nearly the whole of St Aubin's Bay on 11 November, a delayment of the mails, and an interruption of telegraphic communication; the force of the prevailing gale being shown by the fact that on that date a man was blown into the quarry at Westmount, St Helier.

In postal affairs 16 November 1891 saw an innovation in the inauguration of the evening delivery for the town , and 1 December saw the first public election by Ballot that had ever taken place on the Island, in the election of two Centeniers for St Helier.

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