Relations between Jersey and the Privy Council
Before William the Conqueror invaded England in 1066 and became King of England as well as Duke of Normandy, the Channel Islands were a part of Normandy, answerable ultimately to the Duke through a feudal system of government.
Still part of Duchy?
After William's death, control of England and Normandy was separated between two of his sons, and although, in subsequent generations, the Kingdom and Duchy were sometimes joined again under a single ruler, they continued to operate as separate entities. Records of what happened in the Channel Islands in the 11th and 12th centuries are few and far between, but there seems little doubt that they continued to be regarded as part of the Duchy of Normandy rather than the Kingdom of England.
All this changed in 1204 when William's great-great grandson, who was then King of England, Duke of Normandy and ruler of substantial other territories which today are part of France, surrendered virtually all his French domains and retreated back to England to consider how he might recover them. Among the little that remained were the Channel Islands, and the islanders' traditional version of what happened next is that they were given the option of whether to stay English or revert to being French. And so the story has been told for centuries, because it suited the islanders' purpose - which was to retain as much independence as possible.
But it is a story which does not really bear close scrutiny. Is it likely that King John, having lost the vast proportion of his French territory, including the whole of the Duchy of Normandy save for the Channel Islands, would have said to the land-owning elite in the islands:"The choice is yours. You can go back to being French or stick with me?"
It seemed far more likely that he said (or rather, got one of his trusted lieutenants to say, because there is no real justification for the assertion that King John ever visited the Channel Islands):"The choice is yours. These islands are now English and they are going to stay English. You can go back to France and give up your property in Jersey, or you can remain in Jersey and sacrifice your estates in France. You can't have it both ways!"
King John was letting go of the Channel Islands if he could help it. His ambition was to regain all his French possessions, if not the whole of the country, and the islands were stragegically important as a stepping stone to French soil. The French king wanted them back for the same reason, and fought to regain them many times from 1204 onwards.
Channel Islanders, seeing their cherished independence threatened on many occasions over subsequent centuries, were quick to remind the English that they had never become part of England and were not subject to English law, nor liable to be controlled by the English Government. They owed allegiance to the Crown and only to the Crown. But that did not actually mean very much, because parliamentary democracy was a long way in the future and the English kings ruled their Kingdom through the Privy Council. How did they rule the Channel Islands? Well, through the Privy Council.
What is the Privy Council?
And what was (or is, because it still exists) the Privy Council?
- "A privy council is a body that advises the head of state of a nation concerning the exercise of executive authority, typically, but not always, in the context of a monarchic government. The word "privy" means "private" or "secret"; thus, a privy council was originally a committee of the monarch's closest advisors to give confidential advice on affairs of state".
That's as good a definition as any. In Norman times, the English Crown was advised by a royal court, which consisted of magnates, ecclesiastics and high officials. The body originally concerned itself with advising the Sovereign on legislation, administration and justice. Later, different bodies assuming distinct functions evolved from the court. The courts of law took over the business of dispensing justice, while Parliament became the supreme legislature of the kingdom. Nevertheless, the Council retained the power to hear legal disputes, either in the first instance or on appeal.Furthermore, laws made by the Sovereign on the advice of the Council, rather than on the advice of Parliament, were accepted as valid.
Powerful Sovereigns often used the body to circumvent the courts and Parliament.For example, a committee of the Council — which later became the Court of the Star Chamber — was during the fifteenth century permitted to inflict any punishment except death, without being bound by normal court procedure. During Henry VIII's reign, the Sovereign, on the advice of the Council, was allowed to enact laws by mere proclamation. The legislative pre-eminence of Parliament was not restored until after Henry VIII's death. Though the royal Council retained legislative and judicial responsibilities, it became a primarily administrative body. The Council consisted of 40 members in 1553,but the Sovereign relied on a smaller committee, which later evolved into the modern Cabinet.
Thus Jersey, and the other Channel Islands, were governed in more or less the same way as England (and Scotland and Wales from time to time). And it is the relationship with the Privy Council which has dominated the history of the islands for 800 years. Indeed, any comprehensive history of Jersey is dominated by tales of disputes which had been referred to the Council. This is partly because the Council has had a considerable influence on island affairs, but it also has a lot to do with the fact that so many Privy Council records survive while insular records for large periods are largely non-existent. With little else available to stimulate the interest of historians, they are forced to paint a picture of island life as viewed through the activities of the Privy Council.
And this view of the Privy Council's role in island affairs paints a heavily biased picture of conflict, inevitably so if the Council usually only became involved in island affairs if they could not be satisfactorily resolved without reference to the council.
In the late 13th and 14th centuries, English kings sent itinerant justices to the Channel Islands from time to time to try serious cases, hear complaints against the island autorities and generally resolve conflicts, but they seem to have tired of this and progressively left the islands to run their own judicial system. But there was no court of appeal until the second half of the 20th century, so the only redress for somebody against what they perceived to be unjust dealings with the Royal Court was to appeal to the Privy Council. This was a course available almost exclusively to the wealthy.
Frequently the disputes which went to the Privy Council did not involve appeals against convictions in criminal cases but disputes between members of the Courts. Jurats would present petitions claiming that they were unable to work with their Bailiff; Bailiffs would imprison Jurats who upset them by saying the wrong thing in Court; Jurats would pursue cases against fellow Jurats for the right to a more senior position on the bench; all of these situations required a ruling by the Privy Council, and it could sometimes take an inordinate time to get a ruling.
Bailiffs and Governors
But perhaps the greatest call on the Privy Council was to resolve disputes between Bailiffs and Governors, or their Lieutenants. The two men charged between them by the Monarch with the administration and defence of the island frequently disagreed over who was responsible for what. In the early years these disputes were usually resolved quickly and simply by the Governor sacking the Bailiff and putting his own man in office, but King Henry VII tried to put a stop to this in the 16th century by ruling that only the King could hire and fire the senior island officials.
This did not stop subsequent Governors from doing what Governors had always done in the island; which was basically whatever they wanted to. Some of them never went near the island they had been appointed to defend on behalf of the King and sent Lieutenants to do the job on their behalf, with instructions which usually included the need to milk the local economy as much as possible, to maximise the Governor's and King's income.
And even if Governors were not corrupt and determined to do as much as they could on the island's behalf, they found it difficult to understand the attitude of the resident officials, many of whom still clung to the rather outdated belief that Jersey had nothing to with England and was really still a part of France. This attitude changed noticeably at times when the French threatened to raid and take the island back, when local officials were wont to shout loudly at the Privy Council demanding better defences.
It was not always the threat of French occupation which scared islanders, however, but the rape, pillage and burning of their properties which frequently went hand in hand with it. Indeed, there was a period from 1461-1468, when the French did capture and rule Jersey, and in many respects life went on as it had before. The Bailiff and his Jurats were left to get on with their jobs, although the French did manage to persuade them to embark on some improvements in their administrative processes.
Administrative and judicial processes, and defence were other areas in which the the Privy Council became involved. Royal Commissioners would frequently be sent to the Island to investigate a particular aspect of the Island's government, possibly to keep the Royal Court and States of Jersey on their toes, but more likely because news had reached the King's courtiers that all was not well in one respect or another.
The island resented this interference and kept referring back to the island's rights and privileges; they wanted to be left alone to govern as they had always done. The problem was that nobody in England seems ever to have had a very clear idea of what the islands rights and privileges actually were. The problem arose as early as the reign of Henry III, who succeeded his father King John. He didn't know what, if anything, his father had promised the Channel Islands, and wrote asking them.
Henry III had been king for ten years when, in 1226, he gave orders that islanders should enjoy the same liberties as they had in the times of Henry II and Richard . It is not clear what happened 22 years later to cause him to issue his 1248 demand to know what his father might have commanded which was at variance with his grandfather and great-grandfather's instructions.
The islands sent off a scrap of parchment which purported to set out the "Constitutions" of King John, but, even if it did date from the time of the King, did little more than set out a few simple rules relating to legal processes, access to ports, fishing and trade in eight Latin clauses. About 100 years later the island petitioned the Privy Council seeking to have what it believed to be ancient custom ratified. The petition contained a further 13 clauses, but does not appear ever to have been formally accepted.
Over the centuries Kings and Queens ruled and died and most, at a relatively early stage in their reign, would issue a proclamation renewing the rights and privileges of the Channel Islanders, without actually stating what they were. Occasionally an important provision was added, such as the right to trade freely through English ports without any duties being levied, but by and large things were left to continue as they always had.
So it was perhaps not surprising when Sir John Peyton arrived in the Island in 1603 to succeed Sir Walter Raleigh as governor, when the latter fell out of favour on the death of Queen Elizabeth, that Sir John sought a briefing on the island's constitution and its relationship with England. The man he asked was the Rector of St Helier Thomas Olivier. He took five of the original eight 'King John' clauses which he though were relevant, added the 13 later clauses, and put them all under the heading Constitutions and Provisions.
And to this day, nobody, including a Royal Commission sent in 1860 supposedly to establish once and for all what Jersey's customs, rights and privileges are, seems to have challenged the Rev Thomas Olivier's list.
To this day Royal Assent, through the Privy Council, is still required for any new legislation in the Channel Islands. But as England's government has become more and more democratic and parliament has become all-powerful, to the exclusion of the King or Queen's Council, so the islands dealings have been with elected politicians, initially through the Home Office and now through the Department of Justice.