HC Deb 26 June 1861 vol 163 cc1624-33

Order for second reading read.

MR. SERJEANT PIGOTT

said, he rose to move the second reading of this Bill. On moving for leave to bring in the Bill he had stated the objects of the Bill, and the necessity for amending the constitution, practice, and procedure of the Court of the island of Jersey. It would not, therefore, be necessary to detain the House at any great length. For a long period of time great complaints had been made about the delays in the law in Jersey, and three Secretaries of State had granted commissions to inquire into the state of the law and the mode in which it was administered. It was conceded on all hands that nothing could be worse than the administration of the law by the Royal Court of Jersey. That Court was composed of a bailiff who was appointed by the Crown, and paid partly by salary and partly by fees; and of twelve jurats, who were representatives of the several parishes in the island, and elected for life. These jurats not only acted as judges, but sat in the states and made laws for the island. In point of fact, they usurped the whole duties of the Royal Court, because the bailiff never delivered judgment except when the jurats were equally divided, and then he gave a casting vote. The attendance of the jurats was not compulsory, and they attended as they pleased. The consequence was that as all civil cases were Adjourned, and as the Court at each adjournment must be constituted as at the first hearing, endless and vexatious delay took place before a case was finally decided. In 1846, a Commission was appointed to inquire into the working of the criminal, as well as the civil laws. The Commissioners reported that the jurats seldom received any legal education, and that the Court, as now constituted, was unfit to administer the law. But the incapacity of the tribunal did not constitute the greatest objection to it. The Commissioners said party feeling found its way into the Court, and that the jurats sometimes had a personal interest in the cases which came before them; and that the result was that the tribunal did not possess the confidence of the inhabitants of Jersey. It was proposed by that Commission that there should be three paid Judges, and that the jurats should cease to exercise their functions in the court. That was in 1846, but nothing having been done to carry out that recommendation, another Commission was appointed by Her Majesty on the address of the House in 1859, to inquire into the municipal laws of the island. That inquiry was conducted by three very able gentlemen, who went into the whole of the laws of the island, and in a very ample and able Report impeached the administration of the laws, and showed, from the evidence even of the jurats themselves, that whatever may have been in ancient times the fitness of the tribunal for its purposes under a wholly different state of society, the island had outgrown its system of judicature, which must be either abolished or reformed. The modes of procedure were simple, but the intolerable delays and vexations were the natural result of having a Judge who was powerless, the actual arbiters numerous, and without legal knowledge, and punctuality precarious. Under these circumstances he, at the commencement of the Session, inquired if the Government intended to bring in a measure on the subject, and finding that they did not he had introduced the present Bill, which was confined to the amendment of the constitution of the Courts and their procedure; and the abolition of arrest on mesne process. It would leave the jurats as they were at present, members of the States, elected in the same way as hitherto. It would not interfere with their election or with their legislative power; but they would cease to administer the law in the Royal Court, and in their stead would he appointed three Judges as proposed by the Commission of 1853. The only difference was that the Commissioners proposed that the Judges should be elected, while his Bill proposed that they should be nominated by the Crown, as the bailiff was under the present system. One cause of the existing evils was the fact that the jurats, being elected, were mixed up with parties and obliged to take part in political matters, which sometimes related to the proceedings going on in the Court. The Bill would also abolish imprisonment for debt, except upon affidavit. Under the present system of arrest on mesne process, a creditor could obtain, on payment of 1s., a writ for the apprehension of the debtor. These documents were signed by the score. To illustrate the existing state of the law he might mention a single case. In 1857 an English gentleman, Mr. Dodd, was apprehended in Jersey, on mesne process for an alleged debt arising out of certain transactions relating to a trust fund in England, and in consequence of the English law relating to trusts not being understood in Jersey, the case was adjourned from time to time, referred to the greffier, decided in favour of the defendant by a Court consisting of a bailiff and two jurats, and then referred to the full Court on an appeal. All the time the alleged debtor was in prison, and had no means of recovering his liberty, unless he had chosen to pay a sum of £300, which he really did not owe. While he was awaiting the result of the appeal, the creditor, who, according to the law of Jersey, had to pay 5s. a week for the maintenance of the defendant in prison, failed to keep up the payment, whereupon (he defendant recovered his liberty in November, 1859, having been incarcerated since January, 1857. The appeal then came on, when the Royal Court decided that he ought never to have been arrested, and that the Jersey Courts had no jurisdiction in his case. Cases of that description could not occur if the proposal of abolishing mesne process without an affidavit was adopted. He might also refer to a case in which a gentleman, seeking to eject from certain property a person who had illegally taken possession of it, was told that he must join with himself in the action all those who had common rights over any portion of the property, and they numbered 800, and were most of them unknown to him; that was impossible, and he was obliged to abandon the cause. He might be met by an opposition emanating from the jurats themselves, setting forth that it would be a grievance if the Imperial Parliament should interfere with the affairs of the island. This representation was not entitled to much weight, because those who signed it had not then seen the measure. His Bill did not propose to tax the island, as the salaries of the Judges would be paid out of the Fee Fund and other sources. He should not have brought forward this Bill if he had not felt convinced that the States had determined not to apply any remedy, Indeed, from the very nature of the case, the reform could not be expected to proceed from the States, because the jurats took the most active and influential part In the proceedings of the States. As to the right of Parliament to legislate for the island, there could be no doubt legislation for Jersey had been going on from all time, and a great number of statutes applicable to the Channel Islands had been passed by Parliament. The question was whether there was not a necessity for the interference of the Legislature in the present ease? In his opinion the reform was urgently called for, for the sake not only of the people of Jersey, but of Englishmen who went to reside there, and were injuriously affected by the maladministration of the law and as there was no hope that the local legislature Would do it, Parliament was bound to take it up. But if Her Majesty's Government had any desire to take the matter in their own hands, and thought that it ought not to be carried out by a private Member, he should with great pleasure give way to them. He was not anxious to force the matter, if he could be assured that the matter would be carried out by those who had a better opportunity of doing it successfully.

Motion made, and Question proposed, "That the Bill be now read a Second Time."

SIR GEORGE LEWIS

said, he regretted that it was not in his power to vote for the second reading. He did not object to the hon. and learned Member having an opportunity of explaining the manner in which the Bill proposed to carry into effect the recommendations of the Royal Commissioners, but it did not seem desirable that Parliament should interfere by its legislation in the internal affairs of Jersey, and by an Act of Parliament make a constitutional change in that island except in case of necessity. As the Report of the Commissioners was only brought under the notice of the States of Jersey early in the present year, it did not appear that such a delay bad occurred as would justify Parliament in resorting to that extreme measure, No reasonable doubt could exist as to the power of Parliament to legislate for the Channel Islands. The inhabitants of those islands were the subjects of Her Majesty, and he conceived that the universal constitutional rule was that to all subjects of the British Crown, wherever they were in a community as subjects of the British Crown, the supreme power of Parliament extended. That constitutional 'doctrine, however, appeared not to be admitted universally by the inhabitants of Jersey, by whom it was very generally held that laws affecting the constitution of the island could only be made by the States and the Crown, and that Jersey stood to the Crown of England land in the same constitutional relation as Scotland before the Union and as Hanover the while belonging to Kings of England, He did not subscribe to that doctrine, for he entertained no doubt of the abstract power of Parliament to legislate for the Channel Islands, but, at the same time, he admitted that it was not the practice of Parliament to introduce by its own legislation constitutional changes in those islands. The practice was when Parliament pasted ge- eral statutes affecting the United Kingdom of England, which in their terms included Jersey, that those statutes were directed by Order in Council to be registered in the Royal Court, and then obtained the force of law. Under these circumstances he confessed that he thought it would not be discreet to read the present Bill a second time. The inhabitants of Jersey were a loyal and well-affected community. Their geographical position and their language would rather connect them with France that with the United Kingdom; but, nevertheless, they were firmly attached to their ancient institutions; and though hon. Gentlemen, if they tried those institutions by an ideal standard or by an analogy with English law, might be disposed to condemn them, yet the people of the island, having inherited them from their forefathers, and not finding anything in their working to which they materially objected, viewed them in a different light. In the absence, then, of any strong dissatisfaction among the inhabitants of Jersey he did not think it prudent for Parliament to interfere, and he should, therefore, move as an Amendment that the Bill be read a second time that day three months.

Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day three months."

Question proposed, "That the word 'now' stand part of the Question."

MR. ROLT

said, he questioned whether the British Parliament was authorized to legislate for Jersey. He was by no means sure that the people of Jersey were subjects of the Crown of Great Britain as the Sovereign of Great Britain. His recollection of their history was that they formed part of the Dukedom of Normandy. A large portion of that dukedom revolted from the duke, leaving him nothing but the sovereignty of a few places of which these islands formed part. If that was so, then Jersey was only subject to the Kings of Great Britain in their capacity as the Dukes of Normandy. Might Was often represented to be right, and he did not say that at some time it would not, perhaps, be necessary to act on that doctrine, but it was a very serious matter, and the question arose whether, in legislating in the way proposed, they were not asserting the right of conquerors, although Jersey was not a conquered country? As the Government suggested that the second reading of the Bill should not be proceeded with, he would not enter into the question further, but whenever the matter was again brought forward he hoped some attempt) would be made to show in what way the subjects of the Dukes of Normandy became subjects of the Sovereign of Great Britain. He hoped it would not be inferred that he thought the laws of Jersey to be in a perfect condition, but the constitutional authority ought to alter them, and if it failed to do so, then, if it was thought right that Jersey should be annexed to Great Britain, such a step ought to be taken openly, and after the greatest consideration.

MR. E. P. BOUVERIE

said, he was startled at the position assumed by the hon. and learned Gentleman that Parliament had no authority or right whatever to deal with the Channel Islands, or to legislate for them. At the revolution of 1688 the Channel Islands followed the. Act of Settlement, and that was as great an interference as could be exercised under any Act of Parliament. He rather thought that the hon. and learned Gentleman pitched the claims of the inhabitants of the Channel Islands higher than they were disposed to do themselves. The right of Parliament, however, ought to be exercised with the greatest caution and discretion, and the best way of securing a change being effected by the ordinary legislative authority of the Channel Islands was to hold out the prospect of the interference of Parliament, if a strong case of necessity for such interference were established.

MR. WALPOLE

said, that the hon. and learned Member for West Gloucestershire (Mr. Rolt) only stated that there was great doubt as to the authority of Parliament to deal with the Channel Islands, but did not give, as represented by the right hon. Gentleman who last spoke, any positive opinion that Parliament had no such power. In any opinion of that sort he, certainly, for one could not have agreed for he believed that it would be found that Parliament had aright to interfere, though probably in a different mode from that now proposed, and by address to the Crown to call for the exercise of the prerogative by means of Orders in Council. There were two classes of people in the Channel Islands—the representatives of the old inhabitants and Englishmen who had gone to reside there, and who took a different view of the customs and institutions of the islands from that entertained by the older inhabitants. That was an additional reason for proceeding with great caution. He thought it desirable not to go on with the present Bill. The best way was to leave the matter in the hands of the responsible advisers of the Crown, and in the meantime the inhabitants of Jersey would have the opportunity of considering the admirable Report of the Commissioners.

MR. HADFIELD

said, the right of this House to legislate for the Channel Islands had been so often admitted that an objection to it then was matter of surprise. The right hon. Secretary for the Home Department asserted the right when this Bill was first introduced, and he had that day re-asserted the same opinion. The right hon. Member for Wilts, when he held the same office, two years ago, after full deliberation, and with the advice and approbation of the right hon. and learned Member for the University of Cambridge, expressed in this House, had satisfied himself that the House had the right to legislate in the matter, and he advised a Royal Commission to be issued to inquire into the laws of Jersey in civil matters, with a view to reform, them. In 1846 the right hon. the Chancellor of the Duchy of Lancaster, then Home Secretary, had advised to be issued a Royal Commission of Inquiry in matters of criminal law in Jersey. Three Governments of different political parties and principles, supported by both sides of the House, had asserted the right to legislate for Jersey. The right hon. the Chancellor of the Duchy of Lancaster in 1846 had sent a letter to Guernsey, expressing an intention to legislate for the Islands. [Sir GEORGE GREY: I did not give an opinion as to the right of Parliament to legislate.] He regretted he did not bring a copy of the letter with him, but he had not been aware of any distinction. No doubt he (Mr. Hadfield) was wrong. Why issue, at great expense to this country, two Commissions of Inquiry if there had been a doubt as to the right to redress existing grievances when ascertained? By this Bill it was intended to reform the Royal Court, and little more. It was impossible to begin the work of reform more mildly. It would assist in future improvement by establishing a sound process of administering justice; and it would constitute a fulcrum on which to proceed with safety in future measures. It imposed no new tax on the people, and that would delight every Jersey-man who loved our laws but disliked our taxes. It made no new laws, except to regulate and control the present law of arrest, which rendered it unsafe for an English trader to visit Jersey. So late as last week an advocate (M. Gibaut) said, in open court— If this system of arrest were continued it would be dangerous for English creditors to come over to Jersey and visit their debtors, if they could be put in jail on ex-parte statements. He asserted that that Case was another illustration of a debtor arresting his creditor, because the former wished the latter to give up his goods without receiving cash. No doubt it was a very ingenious way of getting goods and staving off the payment. Was this a proper way of treating Her Majesty's subjects in any part of Her Majesty's dominions or dependencies? The statements of grievances arising from this state of things were so numerous that he had despaired of being able to condense the recital of them so as to present them in an acceptable form to the House. Generally, they were admitted, and, therefore, the time had arrived to take some action. After the lapse of fifteen years, he contended, there had been deliberation enough. One or other of two courses was now before the House—either to read the Bill a second time, and thus assert the right of Parliament to legislate, or to let the Government undertake the business for the future, for the benefit of everybody. He insisted the Bill, when passed, would, under any circumstances, be useful, and he was assured it was approved by many of the inhabitants of Jersey as the foundation for future improvement. He cordially supported it, and was confident the late inquiries and reports would entitle the right hon. Members who had been the promoters of them to the thanks of the people of Jersey. He would divide with the learned Serjeant if he went to a division, and hoped he would do so, unless the Government would take in hand the future conduct of the needful legal reforms in the island.

MR. SOTHERON ESTCOURT

observed, that if there should be a division he should vote with the right hon. Gentleman the Home Secretary. He did not share in the opinion that Parliament was not competent to deal legislatively with Jersey, but such an opinion being held by hon. Gentlemen holding a high legal position, and whose judgment, therefore, was entitled to respect, formed a reason why Parliament should proceed in the matter with great reserve. He thought that the hon. and learned Gentleman had done good by bringing the matter under consideration. The Bill represented very fairly the opinion of the Commissioners as expressed in their very able Report, and the inhabitants of Jersey would understand that a great number of the Members of that House conceived that the laws and constitution of their island required entire remodelling. Unless they effected the necessary reforms themselves, he trusted that the hon. and learned Gentleman or the Government would in a future year introduce some measure for reforming the laws of Jersey, and making them more in accordance with personal liberty and fair justice between man and man.

MR. SERJEANT PIGOTT

, in reply, said, the doctrines started by the hon. and learned Member for Gloucestershire had very much surprised him. There could be no doubt that Parliament had a right to interfere in improving the proceedings of the states of the island, and if he could believe the question at issue was in training for ultimate settlement he should not object to the postponement which had been suggested. He trusted, however, that if no reform took place between that and the next Session in the direction to which the Bill pointed he should be afforded an opportunity of again bringing the subject before the House.

Amendment and Motion, by leave, withdrawn.

Bill withdrawn.