of the island, their decisions were almost always at fault, and great numbers of complaints were made, which were at last gathered together; and Sir Henry Spigurnell, and the individuals named in the Précepte d'Assize, were sent, in the seventeenth year of Edward III., to examine into those decisions. They declared the decisions to be of none effect, and that the inhabitants of the island. continued in the enjoyment of their liberties and privileges as fully as before those processes and decisions had taken place. But, as their judgment did not declare what those liberties were, but only that the inhabitants possessed the right of enjoying them, annulling the old proceedings which had been in opposition to them, the Court had them laid down and approved by Sir Henry Spigurnell and his associates, and afterwards by the different justices in Eyre named in the Précepte d'Assize." This view did not commend itself to the Channel Islands Commissioners. They came to the conclusion that "the Précepte d'Assize was framed by the Royal Court, and is valuable as evidence of what the inhabitants, at an early time, claimed to be their customs and privileges," but that "it derives no force from the approval of the justices in Eyre in the manner stated in the instrument. . . . An attentive comparison of the documents shows that the liberties granted by the Constitutions are greatly expanded in the construction put upon them by the Royal Court." The "Extente of the King."-In the Précepte d'Assize, reference is made to another document, the "Extente of the King," which is probably an inquisition taken in obedience to certain writs, directing an inquiry, inter alia, into the question of the privileges claimed by the inhabitants. The "Approbation des Loix."-The great authority, however, for the law, both civil and criminal, of Guernsey, is the "Approbation des Loix, Coustume et Usages de l'Isle de Guernezey, differentes du Coustumier de Normandie d'ancienneté observés en ladite Isle." "It professes in the introductory chapter to be a digest and arrangement of these laws, customs and usages, made May 22nd, in the 24th of Elizabeth, by Sir Thomas Leighton, Knight, the then Governor of the Island, Thomas Wigmore, the Bailiff, the jurats of the Royal Court, and the acting Procureur of Her Majesty, in obedience to two Orders in Council made, the one at Richmond, on October 9th, 1580, the other at Greenwich, on July 30th, 1581. It was ratified and approved of by Her Majesty in Council on October 27th, 1581, in the 25th year of her reign" (b). The work is, however, nothing more than a series of remarks on each chapter of Terrien (c) stating wherein the custom of Guernsey differs from, and wherein it accords with, the law laid down in the particular chapter of Terrien, "often simply using the expression nous usons de ce chapitre." Proceedings of the Court.-"Besides the written law found in Terrien and the Approbation. . . records of the proceedings of the Court are preserved at the office of the Greffe, which have the force of precedents in doubtful cases. No digest, however, of the decisions, nor index to the cases exists: but the advocates keep collections of cases which are cited as authorities for the guidance of the Court" (d). French Jurists: Le Marchant, Carey." The criminal procedure in Terrien being very similar to that in force in France before the first Revolution, the older French criminal jurists, more particularly Pothier, Jousse, and De la Combe, come to be considered as authority." In addition to these sources of law, may be mentioned a work, frequently referred to in discussions on Terrien and the "Approbation des Loix": "Remarques et Animadversions sur l'Approbation des Lois et Coustumier de Normandie usitées es Jurisdictions de Guernezé et particulierement en la Cour Royale de la ditte Isle." Its author, Mr. Thomas Le Marchant, was a Presbyterian minister, who lived in the middle of the seventeenth century. This book was afterwards published by Order of the Royal Court, with a preface in which it was explained that the Court neither confirmed nor approved all the opinions expressed by the writer, and that the sole object of the publication was to furnish the inhabitants with an opportunity of instructing themselves in the origin and history of their customary law. There may also be mentioned "Essai sur les Us, Coutumes et Privilèges de L'Isle de Guernesey, par Laurent Carey, Jure Justicier (1765-1769);" also published by Order of the Royal Court. Orders in Council: States of Guernsey.-As regards Guernsey, there is no controversy that Orders in Council, while, as in Jersey, they require registration, derive no additional force from such (b) Report of Commissioners, 1846, 8 St. Tri. (N. S.), p. 1178. (c) As to Terrien, see ante, p. 133. (d) Report, ubi cit. sup. 8 St. Tri. (N. S.) p. 1182. registration nor has the Court any such suspensive power as exists in Jersey. The legislative functions of the States of Guernsey are very limited. "The initiative belongs to the Royal Court, where the projected law must be first discussed and adopted before it can be submitted to the States. If it be passed by the States, it is transmitted to the Privy Council for confirmation: if it is rejected, the measure falls to the ground." Courts of Law: Royal Court.-The Royal Court of Guernsey sits either as a Court of first instance (when it consists of the Bailiff and not less than two of the twelve jurats), or as a Court of Appeal (consisting of the Bailiff and the twelve jurats). The Bailiff exercises presidential functions, and collects the votes of the jurats, giving a casting vote where they are equally divided (f). The Royal Court exercises jurisdiction over all offences committed within the bailiwick, except (1) treason, (2) coining, and (3) laying violent hands on the Bailiff or on any jurat while he is in the exercise of his office. The cognisance of these three offences is said to belong to the Court, and the punishment of them only is reserved to the Crown. The "Procureur du Roi" and "Contrôle du Roi" (g) correspond roughly to the Attorney and Solicitor-General in England, but form a constituent part of the Court when sitting as a criminal tribunal. No sentence can be passed till their "conclusions" have been given, i.e., their opinion on the law applicable to the case, and their view as to the effect of the facts proved, and the punishment that the crime demands. An appeal lies to the Royal Court from the Court of Alderney and the Court (f) See Carey, Institutions de Guernesey," pp. 29–38. As to the relations between the LieutenantGovernor and the Bailiff and jurats, see In re Bailiff, &c., of Guernsey (1844), 5 Moo. P. C. 59; S. C. 6 St. Tri. (N. S.) 159. It was held in this case that a Royal writ of pardon need not be verified and registered in the Royal Court of Guernsey before being executed. See In re Daniel (1891), supra, p. 135, note (g). (g) As to the origin, history, and relative powers and duties attached to these offices, see In re States of Guernsey (1861), 14 Moo. P. C. 368. The office of "Contrôle" was, upon a vacancy occurring in it in 1851, amalgamated, by an arrangement made by Sir George Grey, then Home Secretary, and the Procureur de la Reine, but without the cognisance of the States of the Island, with the office of Procureur de la Reine. But, upon a petition by the States to the Crown, complaining of that amalgamation, and the suspension of the office of " Contrôle," as unconstitutional and interfering with the due administration of justice and the legislature of the island, the office was by Order in Council of July 25th, 1861, directed to be revived (S. C.). of Sark, and from the Royal Court to the Privy Council, under an Order in Council of May 13th, 1823, where the amount in dispute, if realty, is of the value of £10, and, if personalty, is of the value of £200 (h). The Royal Court is also a legislative body (i). The States of Deliberation as at present constituted under an Order in Council of the 8th August, 1899, consist of the Bailiff, the twelve jurats, the ten rectors, the two law officers of the Crown, fifteen delegates nominated by the Douzaines or Parish Councils, and nine Deputies elected by the ratepayers throughout the Island. Ecclesiastical Jurisdiction.-The Ecclesiastical Court consists of the Dean or his deputy and the rectors of the ten ancient parishes as assessors, with an appeal to the Bishop of Winchester, or, sede vacante, to the Archbishop of Canterbury. The Canons of 1603 were accepted in the islands of Guernsey, Alderney, and Sark (k) upon the re-establishment of the Dean's Court in 1662. Alderney Court of Alderney.-The Court of Alderney, consisting of a President, called the Judge, six jurats, and, as in Jersey, a "Procureur du Roi" and "Controle du Roi" has criminal jurisdiction, limited to preliminary investigation into the fact of a crime having been committed, the offender being then referred to the Royal Court of Guernsey, unless he submits to the jurisdiction. An appeal lies to the Royal Court of Guernsey. Sark: Royal Court of Sark.-The Royal Court of Sark, held under the Seneschal (1), has criminal jurisdiction up to "fines of three livres tonendis,' or imprisonment to the extent of three times. twenty-four hours" (m). Herm and Jethou.-The islands of Herm and Jethou are, for judicial purposes, parts of Guernsey (n). Neither has any Courts or Constitution of its own, although Herm once made an unsuccessful attempt to assert its independence (o). (h) Stat. R. & O. Rev., 1904, vol. vi., "Judicial Committee," p. 30; also Order in Council of July 15th, 1835 (ib. p. 33). (i) On this subject, see Second Report on the State of the Criminal Law in the Channel Islands-Guernsey, pp. 11 et seq. See further on the whole subject, Carey, ubi cit. sup. ; Anson, "Const. Law," Pt. ii., p. 262; Berry, "Hist. CHAPTER II. MEDITERRANEAN POSSESSIONS. We pass now to a group of possessions, united to England by ties of a somewhat different character, in the Mediterranean SeaGibraltar, Malta, and Cyprus. GIBRALTAR: Political History (a).-The town and fortress of Gibraltar capitulated to Admiral Rooke in 1704, were ceded to Great Britain for ever by Art. X. of the Treaty of Utrecht, and have been held by her ever since their first acquisition, in spite of sieges in 1705 and 1727, and the famous siege lasting from 1779 to 1783, when General Eliott (afterwards Lord Heathfield) held Gibraltar for three years and seven months against a combined French and Spanish force. It appears that, on the conquest of Gibraltar, the old inhabitants almost universally abandoned the place, and for some years nothing in the shape of civil government existed; landed property was held on a kind of sufferance, or at the will of the Government (b). A petition by the inhabitants to the Crown in 1722 to establish a civil judicature in Gibraltar states that the Spanish, French, Genoese and Dutch residents had each, at that time, a consul and a lawyer, who decided all differences between them (c). Law in Force.-But although "the peculiar situation and character of Gibraltar and the circumstances consequent upon its capture render it difficult to ascertain how or when the alteration of its laws first took place by some means, the law of England. was substituted in Gibraltar for the law of Spain (d). The gradual extension of English law to this possession by successive charters (a) See Lucas, "Hist. Geog. of the Brit. Cols.," i., p. 9. (b) See appellants' case in Jephson v. Riera (1853), 3 Knapp, 133; 3 St. Tri. (N. S.) 594, in which it was held that the English law of dower had been introduced in Gibraltar (Benatar v. Smith (1812), 3 Knapp, 143, n.; and (c) Clark, ubi cit. sup. at p. 675. p. 150. |
