|
Return to Contents
The
Sources Of Jersey Law
Richard
Southwell, QC
This modest note is a voyage of personal
exploration, not a statement of judicial views. Suppose that an English and
Welsh/Scottish/Northern Irish QC receives the honour of appointment to the
Court of Appeal of Jersey. He (or she) knows nothing of Jersey law and its
sources. Where does he or she begin? The starting point now, as always since
the Jersey Court of Appeal came into existence in 1964, is to consult Sir
Godfray Le Quesne QC, whose advice, crisp, to the point and accurate, has
unfailingly sustained several generations of non-Jersey members of the Court
of Appeal. After that one must consult the books.
Much help can be found in the Reports of the
Commissioners appointed to enquire into the criminal law of Jersey (1847)
("the Criminal Report") and the civil, municipal and ecclesiastical
laws of Jersey (1861) ("the Civil Report"). These Commissioners had
the tasks of carrying out a thorough investigation of the laws and courts of
Jersey, and not surprisingly they started with the sources of Jersey law,
considering these under the two heads of common or customary law, and
legislation.
It is convenient to refer first to legislation,
of which there are these kinds:
1. Royal Charters, which are listed in the
appendix to the Criminal Report of 1847, including a charter attributed to
the reign of King John (see the same Appendix at page 72) which, whether
authentic or not, and of whatever date, has been recognised as correctly
recording established privileges of the inhabitants of Jersey.
2. Laws passed by the States of Jersey (or
before 1771 by the Royal Court) and sanctioned by Orders in Council. Laws
passed by the Royal Court were collected in the "Code" of Jersey which was ratified by Order in Council in 1771. The Recueil
des Lois containing the Laws thus passed by the States and sanctioned
since 1771 run to several volumes. Taking the Advocates and Solicitors (Jersey)
Law 1997 as an example of the procedure this Law was passed by the States on
22nd October, 1996, sanctioned by Order in Council on 12th February, 1997,
and registered in the rolls of the Royal Court on 28th February, 1997.
3.
By
virtue of an Order in Council of 14th April, 1884
the States may enact and renew provisional laws of a
purely municipal and administrative nature for periods not exceeding 3 years,
without these laws having been sanctioned by Orders in Council [1] and provided that they are not expressly disallowed by
Order in Council [2] . These are called "triennial
regulations".
4. Acts of the British Parliament or parts of
such Acts which are expressed to apply, or by necessary implication apply, to
Jersey, and which are sent to Jersey accompanied by Orders in Council
directing their registration (though it seems not to be finally decided
whether such registration is necessary for the Acts to become binding as part
of Jersey Law).
Whether laws can be imposed on Jersey simply by
the making of an Order in Council which is commanded to be registered in
Jersey (without the concurrence of the States or the assent of the British
Parliament) remains an undecided question, thought the undelivered argument
of Mr. Haldane Q.C. (later Lord Chancellor) in the Prison Board
reference to the Privy Council remains the locus classicus for the
view that the Crown has no such power. Some of the 19th
century battles over this question were gracefully recalled in Sir Godfray
Le Quesne’s Third Joan Stevens Memorial Lecture to the Société
Jersiaise [3] . It is hoped that there will be no
occasion for these battles to recommence.
Turning to the common or customary law of Jersey, the Criminal Report is
of considerable interest. As early as 1846 when the Commissioners were taking
evidence, the answers given by those in authority in Jersey indicated that
though the criminal law of Jersey derived from the ancient laws of Normandy
as cited in the ancient commentaries and considered by the Royal Court
(together with legislation), in practice the authorities mainly relied on were English authorities [4] .
Though differences could be found between the relatively undeveloped Norman
law of crime and the 19th century English authorities, this was no doubt a
pragmatic approach in view of the difficulty in determining the exact
requirements of customary law.
How to ascertain the common or customary law was
considered in both the Criminal and the Civil Reports at much length. I refer
primarily to the Civil Report.
The continental part of the Duchy of Normandy
was conquered by the King of France in 1204. Though it returned to the
control of the King of England for relatively short periods after that, the
divergence in legal systems between the continental part of the Duchy and the
Channel Islands can effectively be dated from 1204. The ancient Norman law
remained the common law of Jersey, and a separate body of law from that of
England and Wales. In the Civil Report, page iii, it was concluded that the
divergence between Jersey and English law at 1861 had certainly been greater
than any assimilation.
The starting point is the Ancienne Coûtume
as set out in Le Grand Coûtume du Pays et Duché de Normandie, a work
probably of the time of Henry III usually cited in the 1539 edition with Rouillé’s
Latin commentary. The Ancienne Coûtume together with the main
commentaries, especially those of Terrien and Poingdestre,
is the springboard from which all researches into Jersey common law have to
start.
The next stage is the Coûtume
Réformée, a compilation in France of the law of continental Normandy
existing in about 1585. By that time Jersey had been separated from
continental Normandy for nearly 400 years. So the Coûtume Réformée
could not in any event be as authoritative as the Ancienne Coûtume. In Att.Gen. for Jersey v Sol.Gen. for Jersey [5]the Privy Council considered relevant parts of the Coûtume
Réformée. The Earl of Selborne in delivering the judgment stated (at
p.333) that this "has itself no authority in Jersey", but went on
to state (at p.333-4) that the relevant article of the Coûtume Réformée
"might, without substantial error, be regarded as expository, not indeed
of the text of the Ancienne Coûtume, but of the law and practice
under it, agreeably to Terrien’s Commentary". This could be
done in that case, but not where the text of the Coûtume Réformée
differed from the text of the Ancienne Coûtume. Earlier in La Cloche v La Cloche [6]the
Privy Council had referred at length to the Coûtume Réformée [7] as evidence of the custom of
Jersey before the separation of continental Normandy. Further, in La
Cloche v La Cloche [8]there is a material passage at page 334 which reads as follows:
"It was also contended that we could not
look at what was called the Reformed Customs of the Duchy of Normandy.
There seems upon that latter point to be a fallacy. These collections of
Customs are not written laws at all; they are not legislative Acts within the
letter of which persons are to be brought. They are written illustrations,
written evidences, authoritative declarations of what the unwritten Common Law
or custom of the Country was, and unless it can be shewn that in that to
which their Lordships have been referred - the Reformed Custom - some new
principle had been introduced by legislative or other sufficient authority in
the Duchy of Normandy, subsequent to the separation, the Reformed Custom of
the Duchy of Normandy can be looked at as evidence of what the old law was,
just as Coke upon Littleton would be looked at as evidence in
Marylandor Virginiaof what the Common Law and Equity to this day are admitted
as evidence in every country which has derived its law
from England of what the old law was.
[A footnote follows]
It appears that the customary Laws of France
were reduced to writing by the authority of the French Crown, and were
afterwards reformed by the same authority ...."
|
The differences between the Ancienne Coûtume
and the Coûtume Réformée appear for the most part not to be large,
and during those 400 years the law of Jersey had not developed independently
to any large extent. So in practice the Coûtume Réformée, and the
main commentaries on it (especially those of Basnage; Bérault, Godefray et
d’Aviron; Flaust; Houard; Pesnelle; Poingdestre and Routier) have played a
considerable part in the development of Jersey law.
Mention must also be made of those who have
written specifically on Jersey law, in particular -
1. Le Geyt wrote around 1700 but
his works were not published until the 19th and 20th centuries. He wrote
two works: Privilèges, Lois et Coûtumes de l’Ile de Jersey, and Manuscrits
sur la Constitution, Les Lois et les Usages de Jersey. He was described
in Godfray v Godfray [9] as being "as
high an authority as can be produced on the local law of Jersey".
2. Poingdestre
wroteon Les Lois et Coûtumes de Jersey, and further manuscripts on
the Coûtume de Normandie as practised in Jersey and Guernsey; viz.
Commentaires sur l’Ancienne Coûtume de Normandie and Remarques et
Animadversions sur la Coustume Réformée de Normandie.
3. two works of 1789 on the
procedures of the Royal Court, by Hemery and Dumaresq, and PiponandDurell (the
unusual circumstances in which these were produced were
described in Foster v Att.Gen. [10] );
4. Le Gros, Droit Coûtumier
de Jersey; [11]
5. Le Quesne, Constitutional History of Jersey; and Bois (already cited); [12]
6. Matthews and Nicolle, Jersey Law of Property; [13]
7. Matthews and Sowden, Jersey Law of Trusts. [14]
So far all this will be
rather familiar to Jersey solicitors and advocates. It is when we come to the
influence of French law and English law that the picture becomes less clear.
French law as such is not authoritative in Jersey. But behind this brief
statement lies a wealth of influence on Jersey law. It is necessary to take
French law in historical stages:
1. At the time of the Ancienne Coûtume
the law in the northern part of what is now the French Republic would have
been in many respects the same or similar. The principal other Coûtumes,
those of Paris and Orléans, provide useful evidence of what the law of
Normandy, and particularly Jersey, was and have been referred to for this
purpose.
2. Like the Coûtume de Normandie, the Coûtumes de Paris and d’Orléans continued to
develop, but still provide helpful evidence of the ancient customs. So in La
Cloche [15] the Privy Council referred
to these Coûtumes
"for
the purpose of testing the interpretation we have put on the custom as stated
by Terrien, and also for the purpose of explaining the force and
effect of particular expressions."
3. See also Falle v Godfray [16] . The Privy Council in this
respect in La Cloche (1870) cited the description of these Coûtumes
in the works of Pothier.
4. Pothier, who lived from 1699-1772, was the
greatest authority on French law of the 18th century. He wrote on almost
every aspect of French law at that time, including the Coûtumes. His
importance as an authority lies not only in his mastery of his subjects (his Traité
des Obligations was universally regarded as a major contribution to
jurisprudence, and regularly cited in the English courts including the House
of Lords in the 19th century), but also in the fact that he stated French
customary law just before it was superseded by the Codes Napoléon.
Not surprisingly Pothier has been much cited in the Courts of
Jersey: see eg the Jersey Law Reports Index and Tables 1959-93 at pages
432-434 for the many citations during this period; and also La Cloche
(1870) at pages 138-139. Similarly Domat has been much cited as a
contemporary authority on French law before the Revolution.
5. The Codes Napoléon superseded the
law of France as it previously stood. Many of the provisions of the Codes
were intended simply to reproduce in the form of a code the pre-existing law.
But the draftsmen of the Codes made numerous changes. It is
therefore unsafe to assume that the Codes state the pre-existing
French law unaltered, or that they can be taken as evidence of the law of
Jersey derived from the Ancienne Coûtume,
without detailed research to establish this.
6. French law after the introduction of the Codes
Napoléon has been much cited in the Jersey Courts, as an examination of
the references in the JLR Index and Tables 1950-93 shows. The references to Dalloz,
Merlin, and Planiol et Ripert have been quite frequent. But any
such reference has to be made with care. As I have indicated, changes were
made in the Codes. Subsequently the jurisprudence of the French courts
and learned commentators have developed the sometimes simplistic provisions
of the Codes substantially. So any reference to French law as it
stands today has to be made with considerable care, because it may bear no
relation, direct or indirect, to the law of Normandy as inherited by the
island of Jersey. That is why a caution was expressed
recently by the Court of Appeal in Maynard v Public Services Committee
[17]against the over-enthusiastic citation of modern
French authority.
7. One of the questions on which further
research is needed is the extent to which the Royal Court and the Court of
Appeal have relied on French law in, for example, commercial matters, either
to fill gaps in Jersey customary law or in lieu of reliance on English
commercial law. This would require some detailed research into the decisions
in Jersey over the last 50 years which unfortunately I have not had time to
embark on before writing this note. But one day I hope to do so.
Turning to English law, it is inevitable that English doctrines
have played a large part in the great development of Jersey law during the
last 50 years. The references to Halsbury’s Laws of England alone in the JLR
Index and Tables 1950-93 show how large this part has been. As I have indicated,
as early as 1847 in the Criminal Report the Commissioners drew attention to
the extensive citation of English criminal law and cases.
Citation of English law is naturally of assistance where Jersey law or
procedure can be seen to be based on English legal principles or English
procedure. One aspect where this is directly in point is in relation to the
law of negligence, in which the Courts of Jersey have accepted the English
principles, save to the extent that any separate Jersey rule has become established:
se eg the judgment of Sir Godfray Le Quesne QC in Picot
v Crills [18]with which Sir Charles Frossard
agreed.
However, the notion that English law has only
played a major role in Jersey over the last 50 years would not be right.
English law has, for obvious reasons of common loyalty to the Crown and
valued collaboration between Jersey and English lawyers, taken a major role
in the development of Jersey law. This is of long standing. As early as 1700
Le Geyt was concerned that English principles might displace those derived
from the Ancienne Coûtume in the Préface to his Manuscrits.
Inevitably with a larger neighbour the influence of England was bound to be
considerable. It is not always one way, however, as can be seen with the
citation in the English courts of the Court of Appeal
decision on the duties of trustees in Midland Bank Trust Co. (Jersey) Ltd
v Federated Pension Services Ltd. [19]See eg Armitage v Nurse [20] .
However, in two recent cases a note of caution
as to the acceptance of English law too readily as a guide to determining
what is the law of Jersey has been sounded.
In Maynard (above) the Court of Appeal has expressed (obiter) some doubt whether
the principle of English common law in Cartledge v Jopling [21] is to be regarded as the law of Jersey, and has
referred to recent decisions of the New Zealand Court of Appeal (and one of
the Privy Council on appeal from New Zealand) as perhaps showing a more
realistic way for the law of Jersey to develop, having regard also to the
statutory rejection by the British Parliament of the Cartledge v Jopling
principle.
One of the questions which
will need further consideration is to what extent the Jersey courts consider
and may even follow developments in jurisdictions other than England and
Wales, rather than simply following English law. It can be seen from Maynard
that where English law has become primarily the creature of statute and the
earlier English common law has been replaced, there may be much to be said
for looking to see in what way the same problem has been resolved by the
courts of other common law jurisdictions, particularly where there is no
difference in practical circumstances between the different jurisdictions. An
opportunity to create a Commonwealth-wide common law jurisdiction was missed
after 1945. Nevertheless in all the countries of the Commonwealth there is
extensive citation of decisions from other common law jurisdictions. Each
country seeks to learn from the good solutions or the mistakes of the other
jurisdictions. For my part I welcome the opportunity to be able to put a
difficult problem under Jersey common law in the context also of the
decisions of, for example, Australia and New Zealand as well as those of
England and Wales.
Another question which arises out of Maynard
(and also arose in Guernsey in the case of Morton
v Paint [22]referred to in the next paragraph) is
to what extent the courts of Jersey take account of the influence of
statutory developments in England and Wales, even when the statutes have not
been expressed to extend to Jersey. So in Maynard the Court of
Appeal did not disregard the fact that the principle of English law
established in Cartledge v Jopling had been replaced by statute in a
way which was much more consistent with the just solution which the House of
Lords recognised could not be achieved in Cartledge v Jopling.
The other case involves a decision of the Court
of Appeal of Guernsey, in Morton v Paint . In Morton it was
argued that the law of Guernsey on occupiers’ liability remained in the same
state as English common law had been in 1956 before the statutory reforms in
England and Wales of 1957 and 1984. The Guernsey Court of Appeal held that
Guernsey law in this regard could not remain ossified in this way, but must
develop in line with the statutory reforms in England and Wales and with
developments elsewhere in the common law, particularly in Australia. The article by Jason Morgan [23] provides interesting observations on the decision in Morton.
As indicated above, the Court of Appeal Jersey in Morton took
account of the fact that English common law as it had stood in 1956 had been
radically changed by statutes of 1957 and 1984, and the Court had regard to
the policy underlying those statutes which had developed the law of England
and Wales in the same direction as it had gone through the development of the
common law in Australia and other Commonwealth countries. This is another
example of a court in the Channel Islands taking a wider view than merely
having regard to pre-1957 English common law, and trying by reference to principles
developed by statute in England and in the common law elsewhere to ensure
that Guernsey law is more in tune with the needs of the island community
today.
I do not embark here on the choppy waters of European Law and its application to Jersey (to which the
Editor made brief reference in his Foreword to the first issue of this Review
[24] or the calmer but still rock-strewn waters of the
European Convention on Human Rights. Those are topics for later
consideration.
Finally I emphasise that this is no more than a
voyage of discovery. No doubt there are others who can more successfully
chart their way through the history of the development of Jersey law and
correct my mistakes.
Richard Southwell QC is an Ordinary Judge of
the Jersey and Guernsey Courts of Appeal.