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Arr. II.-A CONSTITUTIONAL HISTORY OF
JERSEY. By Charles Le Quesne, Esq., Jurat of the Royal Court, and Member of
the States. London: Longman and Co., 1856.
WHERE can be no doubt that to the isolated position of
Jersey,—its distance from the shores of England, whereto the allegiance of its denizens is due-and its contracted area, comprising some forty-five square miles, are directly referable the following singular facts. We there find the feudal system to be still in force; the mode of procedure in civil and criminal cases to be antiquated and peculiar, in the former without a jury, in the latter by the enditement, and grande enquête, which are of Norman origin; we there find still extant the Clameur de Haro, the Transport de Justice, and other relics of an age long past, indeed, but which had till recently left its impress strongly on our laws and institutions. Of these relics of the olden time, a clear and interesting account is given in the work of which the title is placed at the head of this article.
The Clameur de Haro, observes Mr. Le Quesne, is of very ancient origin, and “is attributed, with every appearance of reason, to Rollo, the first Duke of Normandy. The old forms connected with this institution are still followed in the Channel Islands; but with this difference, that in Normandy the Clameur de Haro was principally raised in matters of a personal or criminal nature; whereas in Jersey and Guernsey it is only used in cases relative to real property. The proceedings are very summary: an appeal to the Prince must be attended to and obeyed without hesitation or delay. The Clameur is usually raised in cases of encroachment of property. When the name of Rollo is invoked in legal form, all workmen employed on the spot must instantly cease,—no work can there be proceeded with until the Royal Court has investigated the case, and pronounced judgment upon it. The form of appeal to Rollo has not lost its ancient solemnity. The party complaining must, on his knees, in the presence of witnesses, call on Rollo's name in these prescribed words, 'Haro, Haro, Haro, à l'aide, mon Prince, on me fait tort.' The word Haro is an abbreviation of the words Ah Rollo, or rather, Ah Rou, which was the name by which that duke was really called. The Prince is the fountain of justice. None of his men or subjects must suffer wrong; an appeal to him must not be in vain. He will maintain right and equity. If the party, however, thus calling for the aid and protection of his Sovereign, is found on inquiry to have done so wrongfully, he is fined by the Court, for having, without just grounds, called on the name of Rollo; but if found to be in the right, the other party is fined for his transgression. The Sovereign is not to be invoked in vain; and the party in the wrong is subjected to a fine to the Crown, besides losing his case, and being cast in costs.” Such is the Clameur de Haro.
The object proposed to be effected by the Transport de Justice is very much the same as is with us effected by a view. In Jersey, however, the Court itself is transported to the locality in question, whereas with us jurymen only go thither as viewers.
The Transport de Justice is thus explained by our author :“In many cases of difficulty respecting houses and lands, when an official report is required to guide the Court in coming to a sound judgment on the matter sub judice, the Vicomte (who is the principal executive officer of the Royal Court, as well in civil as in criminal affairs) is directed to inspect the locality, and to make a report on the points in difficulty. This report may not be considered sufficient, and the parties may desire that the Court itself should proceed to the spot, and ascertain more accurately the position of affairs. This view by the Court is called a Transport de Justice, and it may take place with or without a preliminary inquiry by the Vicomte. The Court there hears the statements of the two parties, and the evidence produced by them, and pronounces judgment.” A proceeding such as here described seems well adapted for doing justice in that class of cases in which complete justice cannot readily be done without ocular investigation of the locality which is the subject of litigation,—the jurisdiction of the Court being circumscribed by very narrow limits, as in Jersey.
“Another very ancient form preserved in Jersey, is that of taking an oath. It was followed in Normandy. It was employed in the early ages of the world. An oath is not in Jersey] administered on the Testament, or on any book; but the witness, holding up his hand towards heaven, swears that he will declare the truth, as he will answer to Almighty God, at his peril. Hence men of all creeds can take an oath in Jersey, in accordance with the prescribed form. It is a solemn declaration, an appeal to the God in heaven, that they will speak the truth, which they swear and promise to do-' sans aucune faveur, haine, ou partialité, comme ils voudront en repondre devant Dieu à l'acquit de leur conscience.'”
Such are some of the more remarkable results of an insular position, and of its Norman derivation, which still linger in Jersey.
It would be absurd, remarks Mr. H. D. Inglis in his work on the Channel Islands, to expect generally, in an isolated community such and so small as that of which we are now speaking, those enlarged views, and that absolute freedom from prejudice, which may be looked for in larger communities. “There is usually in every small district, and especially in one distinguished by exclusive privileges, an overweening attachment to place, and to all that belongs to it, which is too apt to interfere with the correct exercise of judgment in distinguishing between good and evil. This is the origin of whatever defects may be observable in Jersey character." One result of the attachment to place and its belongings, here spoken of, is a disposition unduly to magnify the importance of local events; to look with too jealous an eye to local interests; and to affect to ignore events which happen elsewhere, and have no direct bearing thereupon. Writing but a dozen years ago, the author whom we have above quoted thus expresses himself :-It is certain, he says, that the number of Jerseymen who take any interest in what passes save within the limits of the island, is extremely small. “The proceedings of the British Legislature are far less interesting than the proceedings of their own States. The procedure in a suit before the Jersey Court of Justice is a far more engrossing topic than would be the
1 4th ed. p. 66.
VOL. I. NO, I.
impeachment of a king's minister ; the politics of Europe at large would have no chance, weighed in the scale against some local political contention; and if the same packet were expected to bring the decision of kings and nations upon peace or war, or the disposal of crowns, and also the decision upon an appeal to the Privy Council upon some insular dispute, the latter would be the subject of the first and most eager questions by the crowds assembled on the quay.”
But besides the excessive, though to some extent pardonable, concentration in self thus indicated, it unfortunately happens that party feeling is very rife in Jersey, its effects being proportionately greater as the limits within which it acts are circumscribed. The great mass of the country people and of the tradespeople of the towns and villages are of one party, assuming to defend against the attacks of the better educated and higher classes their so-called island privileges. The inhabitants of the island, remark the Royal Commissioners, Messrs. Ellis and Bros (Report, p. 39), are divided into two parties, which contend with the utmost vehemence and even virulence for the possession of power in the States and in the parochial assemblies : with these parties the police are inevitably mixed up. One-third of the States, renewable by periodical (triennial) popular election, consists of the constables; the jurats, who constitute another third, are elected for life by the ratepayers; and the rate is fixed by the parochial assembly, of which the police constitute a necessary component part, and in which they form the nucleus of a party. The remaining third portion of the States, or governing body of the island, consists of the clergy, the rectors of the twelve parishes into which it is divided, who are appointed by the Crown. And thus we have before us the sufficiently discordant elements whereof the Legislative Assembly of the island of Jersey, presided over by the Bailiff, is composed.
One striking peculiarity in the constitution so dear to Jerseymen is this; the Royal Court, or supreme judicial tribunal of the island (whence an appeal lies only to her Majesty in Council), is constituted of a section of the States, -viz. the Bailiff and the Jurats,-in whom, accordingly, legislative and judicial functions
are combined. Bearing in mind the strong political excitement which prevails at the election of a jurat, upon which occasion “the whole island is in a ferment,” and recollecting that the judge may be described as “borne into the seat of justice on the shoulders of a party," we can hardly wonder if the court of justice is sometimes an arena for party feuds, nor if the appeals to the Judicial Committee of the Privy Council have, in bygone years, been somewhat numerous. Another ground of objection to the constitution of the Royal Court is, that legal education or legal knowledge is not deemed a requisite qualification of a jurat. “A farmer, a shipowner, a merchant-anybody—may be seated on the bench by the electors. No previous acquaintance with law or usage is required; no preparatory education; no education of any kind requisite.”—(Inglis, p. 93.) Upon the point here adverted to we have the concurrent testimony of the Commissioners. “The jurats,” they tell us, “are chosen under a system of election in which the suffrage is very widely extended; and as members of the States, they are expected to take an active share in the struggles between contending parties. The persons thus selected have therefore seldom received any legal education: other requisites are more valued. It results almost inevitably, that they must often be prompted to act
upon their own individual notions of justice, instead of ascertained rules of law. A strong instance of this occurred lately upon a conviction for murder, where two of the jurats, avowedly from a dislike to capital punishment, proposed to pass a sentence of transportation for life, though no punishment of this crime other than capital has ever been recognised by the law of Jersey.”
The Bailiff, indeed, who presides in the Royal Court, is, and of late years has generally been, a regularly-educated lawyer; but his legal knowledge is never available, unless there be a difference of opinion among the jurats, and an equality of votes for each opinion. Even then he can vote only for one of the opinions which the jurats support; and it has happened that he has been compelled to support an opinion at variance with his own, because of the two opinions held by the jurats neither accorded with his view of the law.-(Report, p. 42.)
It does not appear that this objectionable state of things,