The Prison Board case
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On 23rd June 1894(1) Her Majesty in Council issued an Order rescinding a previous Order of 27th June 1891 (2), which had appointed the Lieutenant-Governor of Jersey to be chairman of the island's Prison Board, and had presented him with a casting vote in the Board's proceedings. It had taken three years of legal preparation, the services of the most eminent Privy Council barristers, and the expenditure of £5,000 in legal costs, to secure what the island's historian, G. R. Balleine, has dismissed as " a worthless victory "(3).
Balleine's is an ill-considered conclusion, born no doubt of understandable impatience with the " .. sordid atmosphere of squabbles between officials "(4). But this was not the first time in British imperial history that a notable constitutional milestone had been reached by the thorny path of personal animosity and ambitions». The victory in the Jersey Prison Board case did not seem worthless to contemporary islanders. They received the report of the 1894 Order in Council with considerable satisfaction and self-congratulation.
Whether or not their enthusiasm was misplaced, is more open to debate. Critics could point to the fact that neither in this case, nor in its precursor the Daniel case, was the central constitutional issue decided. Basing their claim upon a provision in the island's Code of Law of 1771, the Jersey authorities consistently argued that the process of ' registration " by which Orders in Council applying to Jersey were registered in the island's Royal Court before promulgation, was not simply procedural, but substantive. In other words, registration was to be seen as the equivalent of assent, amounting to a power of veto, or at least a delaying power, over these and other legislative instruments.
The fact that the claim was not decided upon would seem to rob both cases of much of their constitutional significance. But it is the argument of this paper that had their Lordships decided the question, that decision would almost certainly have gone against the claims of the Jersey States (6) • By refraining from so doing, the Privy Council effectively enhanced the States' constitutional position.
The action, or inaction, of the Privy Council in this case was parallelled by that of the Home Office, the Department of State directly responsible for Jersey affairs. From having (through the Order of 1891) aggressively asserted Royal authority over this area of the island's administration, the Home Office, in the face of determined local opposition, backed down. With the adoption of a new constitution for the Prison Board in 1895(7) the States achieved complete control over the administration of the prison, and the influence of the representatives of the Crown was reduced to a minimum.
The origin of the Prison Board affair lay in attempts by successive Bailiffs of the island to increase the power of their office at the expense of that of the Lieutenant-Governor, the chief representative of the Crown. The Bailiff of Jersey is the principal local official and President of the Royal Court. Though appointed by the Crown, he has habitually seen himself as the leading spokesman for the island, and the upholder of the islanders' constitutional rights. Thus he has sought to establish local control over various institutions in the island by asserting his own right to preside over any board of management or other body responsible for their administration. In 1853, when an Order in Council had vested the chairmanship of the governing body of Victoria College in the LieutenantGovernor, the States had successfully petitioned for him to be replaced in that office by the Bailiff. In their view, the authority of the Lieutenant-Governor should properly be confined to military affairs, and they saw his appointment as chairman of the College as " ... an attempt to remove that line of demarcation which for ages has existed between the military and civil authorities of the island "(8). By the early 1860s, if not before, the Bailiff had begun to claim the official title of President of the Prison Board (9).
The Presidency of the Prison Board really became a major issue in 1889-90. In July 1889 the Lieutenant-Governor, Lieutenant-General Charles B. Ewart, wrote to the Home Office asking that the question of his being allowed to send a deputy to meetings of the Board be clarified (10). In its reply the Office mentioned in passing that" an elected member has no right to elect a deputy "(11). This obiter dictum brought an immediate response from the Bailiff, Sir George Bertram. Describing himself as " ex-officio President of the Prison Board", he asked" whether it was your intention ... to exnress any opinion with respect to the right of the Lieutenant-Bailiff to represent the Bailiff on me Prison Board in the latter's absence "(12). Although the Under-Secretary, Godfrey Lushington, quickly drafted a reply disclaiming any such intention (13), the Bailiff was clearly not satisfied, and the matter was soon, perhaps deliberately, put to the test.
At a meeting of the Prison Board held on 25th February 1890, in the Bailiff's absence, the Lieutenant-Bailiff, E. C. Malet de Carteret, presented himself as the Bailiff's representative, and as such claimed the right to take the chair(14). As the Lieutenant-Governor had already protested to the Home Office against the Bailiff's assumption of the right to preside'P', he naturally took exception to the Lieutenant-Bailiff's action. Taking the Receiver-General, Edouard Mourant, and the Yiscount'P", Gervaise Le Gros, the two other Crown officials on the Board, with him, he withdrew. Before leaving, however, the Viscount, as secretary to the Board, wrote an account of what had taken place in the minute book, and this was signed by the three Crown officers. At the March meeting of the Board, however, attended this time by the Bailiff, Viscount, Jurat (17) FaIle, and the Constable of St Helier, Philippe Baudains, a motion was carried to have the Viscount's motion struck out(lS). This action so strained relations between the members of the Board as to render it ineffective for several years.
It would be difficult to explain why matters had been allowed to reach such a crisis, were it not for the fact that another affair, also involving the administration of the Prison, and affecting many of the same protagonists, had been coming to a head over the same period. This was the unusual case of Marie Francoise Daniel, a Frenchwoman resident in Jersey, who was convicted in the Royal Court on 1st November 1889 of the crime of bestiality'U". Although found guilty, she was adjudged to have been insane at the time, and the Court ordered that she be detained " ... until an opportunity should occur of sending her to such place as it should please Your Majesty to order".
Nothing was heard of the matter for nearly two months. Then on 27th December the Gaoler of the Prison reported to the Bailiff that a pardon for Daniel had been received, together with instructions that she be deported on the boat leaving for France in the early hours of the following Monday'w'. In response to the Gaoler's request for instructions the Bailiff ordered him not to release Daniel until the alleged pardon had been received by the Royal Court and duly registered by it. On the following Tuesday, at a meeting of the Prison Board, he twice demanded of the Lieutenant-Governor whether a pardon had in fact been received(21), and getting no answer again insisted that any such document would have to be registered by the Royal Court before it could be put into operation.
This was now much more than a personal quarrel; a constitutional issue of fundamental importance had been raised. Throughout the subsequent proceedings the Bailiff insisted upon the right of the Royal Court to register the pardon, and the necessity of such registration before the pardon could become operative. If such a Royal instrument were to be considered, as the Bailiff clearly intended it should, as an instrument of the Royal prerogative in effect legislating for the Island, then his stance on registration amounted to an assertion that Her Majesty in Council could not legislate for Jersey without the consent of the Jersey authorities. This was likewise to be the central point at issue in the subsequent Prison Board case.
On the evening of lith January 1890, the Bailiff received a letter from the Lieutenant-Governor, in which Ewart informed him that a Royal Warrant for the release of Daniel had been received, and that he intended to act upon it by sending her to St Brieuc on the steamer due to leave at 1.00 a.m. the following Monday(22). The Bailiff immediately protested in writing that such a course was unconstitutional, and there followed an exchange of letters in the course of which the LieutenantGovernor agreed to defer action, but demanded to know the grounds for the Bailiff's position on registration. In response the Bailiff quoted from the island's Code of Laws of 1771, to the effect that" aucuns Ordres, Warrants, ou Lettres de Quelques nature qu'ils soient ne seront point executes dans l'Isle, qu'apres avoir ete presentes it la Cour Royale, it fin d'y etre enregitres et publies: et dans le cas que tels Ordres, Warrants, ou Lettres soient trouves contraires aux chartres et privileges et onereux it la dite Isle, l'enregitrement, l'execution et la publication en peuvent etre suspendus par la Cour, jusqu' it ce que Ie cas ait ete represente it sa Majeste, et que son bon plaisir soit signifie la dessus"(23) .
Despite this, General Ewart evidently felt that he had delayed long enough (24). In a letter to the Bailiff of 25th January 1890 he informed the latter that the warrant must now be put into immediate effect. The Viscount, probably acting under orders from Ewart, instructed the Gaoler to release Daniel, and to show the Bailiff a copy of the Warrant, but the Gaoler, caught between conflicting authorities, was again told by the Bailiff that it was his duty to refuse to liberate Daniel until the pardon had been registered (25).
The dispute had now reached the stage when it could no longer be contained within the shores of the island. At a meeting held on 28th January, the Bailiff and Jurats of the Royal Court drew up a representation to the Queen in which Her Majesty was asked to instruct the Lieutenant-Governor to present the Royal Warrant to the Royal Court for registration. In order to strengthen his position still further, the Bailiff reported his actions to the States of Jersey, gaining a vote of confidence in himself and the Jurats(26).
Lord Haldane's account of what followed is more dramatic than accurate, though the truth was curious enough. According to Haldane (who was under the mistaken impression that Daniel had been sentenced to death) her life was saved only by the timely intervention of a British gunboat, which arrived at the Jersey prison and conveyed the woman away to a place of safety(27). In fact Daniel was released by the Lieutenant-Governor in person, who arrived at the prison on 31st January, together with the Viscount, Deputy-Viscount and some others, " overawed" the turnkey, and took charge of the prisoner. After being lodged in the police station overnight, she was removed from Jersey the next day on a steamer to " foreign parts "(28).
The unorthodox behaviour of the Lieutenant-Governor and his officials was naturally embarrassing for the Bailiff and the States. For one thing the fait accompli removed much of the point of their petition to the Queen, and the Bailiff was obliged to write in haste to the Lord President of the Council asking that consideration of the petition be delayed until they had had a chance to take counsel's opinion. His plea was in vain. On 6th February the Privy Council Committee for the Affairs of Jersey and Guernsey met to consider the matter, only to report to the Queen in Council that since the warrant had been duly executed, there was no longer any need for any further directions to be given by Her Majesty(29).
Such an outcome, leaving the whole question of registration undecided, pleased neither the Bailiff nor the States. Accordingly, on 5th April they drew up and presented a further petition to the Queen asking for a declaration not only that the original warrant of December 1890 ought to have been registered in the Court, but that all future" Orders, Warrants, or Letters of Your Majesty ... shall be presented to the Royal Court for registration before being put into execution". In doing so, they disavowed " any appearance of bringing any personal charge or accusation against Your Majesty's Lieutenant-Governor", their" sole object in the present case" being" to uphold the ancient rights and privileges of your Petitioners and of the inhabitants of Your Majesty's Island of Jersey "(50).
The case of the States, which was heard by the Committee for the Affairs of Jersey and Guernsey on 7th and 8th July 1890, really rested on two arguments. The first depended upon the section of the 1771 Code quoted above-indeed the terms of their petition followed the wording of the Code almost to the letter. In case this should be insufficient, they also made a strong and thoroughly researched appeal to precedent's!'. The weight of precedent seemed to suggest that the LieutenantGovernor had no right to keep such a warrant to himself, the weight of written law that such a warrant must be duly registered by the Royal Court before it could be put into operation.
In the event, the constitutional issues as the petitioners understood them were neatly sidestepped by the Lords of the Committee. They refused to-consider either whether the Order of 1679 (which had been the authority for the Code of 1771) was in force, or what would be the effect of that Order on the question of registration. Even assuming that the Order of 1679 was in force, they felt that it was inapplicable to the circumstances now under consideration, and that the communication of Her Majesty's pleasure in the Daniel case was not an Order, Warrant or Letter within the intent and meaning of that Order. In their opinion the" Warrant mentioned in the petition was of its force binding upon the gaoler as well upon the Lieutenant-Governor and all others whom it might concern, and it was the duty of the gaoler to give obedience to it "(32).
The key to their Lordships' report lay then in the nature of the instrument in question. A distinction was drawn between an Order, Warrant or Letter which would (or might) come within the terms of the Order of 1679, and a Warrant issued in the exercise of the prerogative of mercy. " A pardon by the Sovereign is an exercise of the Royal prerogative which operates immediately, and requires no further act to make it effectual. It is, in their Lordships' opinion, contrary to the constitutional law of the Kingdom that any exercise of the prerogative of mercy or any Warrant or Order declaring such exercise should be capable of revision or hindrance. * Any alleged practice to the contrary in any portion of Your Majesty's dominions could have no force or validity." The most that their Lordships could suggest to satisfy the prayers of the Petitioners was that in future warrants issued in exercise of the prerogative of mercy should be communicated to the Bailiff as well as to the Lieutenant-Governor, "but for the sole purpose of giving notice of Your Majesty's pleasure "(33).
The outcome of Daniel can only be described as a defeat, if not a conclusive one, for the Bailiff and the States. The high-handed actions, as they saw them, of the Lieutenant-Governor had not been disowned. Indeed his handling of the business had been commended by the Home Office(34). Their petition in respect of the registration of pardons, past and future, had been denied. And now, to add to their discomfiture, Her Majesty in Council issued an Order which seemed to settle once and for all the issue of the Presidency of the Prison Board, an Order which, according to Haldane, was specifically designed to ensure that the wishes of the Crown in respect of pardons would be promptly carried out(35). This Order spelt out in detail how a chairman for the Board was to be found. "Whenever the Lieutenant-Governor is present at any meeting of the Prison Board, he shall preside over such meeting. In the absence of the Lieutenant-Governor, the Bailiff of the Island of Jersey, if present, shall preside. When neither the Lieutenant-Governor nor the Bailiff is present, the members of the Board present at the meeting shall elect one of themselves to preside over such meeting and in the event of an equality of votes for the election of a chairman, the senior member by length of service on the Board then present shall have a second or casting vote. And further that at all meetings of the Prison Board, the chairman shall have a second or casting vote"(36).
There was probably a good deal of truth in Haldane's allegation that the purpose of this Order was to ensure that the British government would in future control a majority on the Prison Board, which might then be directed to give immediate effect to a reprieve or other Royal commandw?'. It was certainly received with horror by the Royal Court and the States. At a meeting of the Court on 3rd July 1891, the motion of the Attorney-General that the Order in Council be registered and published in the usual way was not approved, the Court ruling that inasmuch as the present Order was supplementary to an Order of 1837 which had been obtained" with the concurrence of the States ", registration should be suspended, and the Order referred to the States(38). When the States convened on 9th July to consider the Order, strong opinions were voiced in support of the view expressed by the Rector of St Martin that" a severe attack was being made upon our autonomy "(39). Deputy Durell felt that the real question was one of the official status of the English and French languages. " The English language," he pointed out, " for the last twenty years or more had been the language used at its [the Board's] meetings; during the past year French had been revived. This was the real question. War had been declared against the English language, and the Government had been provoked. They asked them whether they were French or English, and the result was the present Order. He considered it a highly provocative act" (40). Jurat Falle also spoke against the Order as being " almost an affront to the States". His particular grievance was that although the States contributed large sums to the upkeep of the prison, they had almost no effective control over the actions of the Board. "What... was the effect of this Order, which seemed so innocent?
Who was the senior member of the Board? The Receiver-General or the Viscount. The members of the States were only nominated for three years at a time, and were always therefore juniors. The representatives of the Crown could thus spend the public money as they chose, and the people would have no control"(41). The Attorney-General'<" on the other hand, in a speech which reduced the assembly to utter confusion, upbraided the Bailiff (in his absence) for his behaviour in the Daniel case and on other occasions. "When an official took upon himself such responsibilities," he argued, •• it was time to question his authority, and the solution the Government had arrived at was the only one under the circumstances." There followed an " indescribable scene" and the President adjourned the sitting.
While the opinions expressed during the debates in the States ranged from the patriotic to the cautious, there was general agreement on two points, summed up by the Constable of St Helier on 15th July. The first was the necessity for fair representation of the States on the Prison Boarda demand based largely on the ground that the States contributed the greater part of the cost of upkeep. The" principal question ", however, as Jurat FaIle had stated it early in the debate, " was really the right of the States to legislate for the people "(43). Even the moderate Constable was moved to ask" whether the Privy Council had really the right to legislate for Jersey? "(44) Despite Deputy Durell's warning that his proposals might bring in train another costly law suit, the Constable's motion that registration of the Order be suspended, and a Committee be formed to look into the matter and if necessary prepare a representation to the Queen, was put to the house and carried(4S).
The Report of this Committee began by facing squarely the central constitutional and political issue. Noting that the offending Order of 1891 had been issued to rectify an omission in the Order of 1837 establishing the Prison Board, they complained of Her Majesty's Government's action in doing so without consulting the States as " a serious attack upon the constitutional rights of the Island" (46). Their argument was based upon the assumption that the original Order had been a legislative act passed with the concurrence of the Legislative Assembly of Jersey, and that any modification of that act must also be regarded as a law. Mindful, no doubt, of the distinction drawn in the Daniel case, they denied that the present Order was" only an act issued in the exercise of the Royal prerogative" to settle a minor question of precedence.
Raving established this point, they progressed to a much bolder thesis. "Now it is recognised," they claimed, " that Her Majesty in Council has not the power to legislate for the Island without the consent of the States"(47). In support of this view they referred to a precedent more fully explained in the Representation of the States to the Queen adopted on 19th Octoberw". In 1853 the Privy Council had recommended that certain Orders in Council be withdrawn on the grounds that" serious doubts exist whether the establishment of provisions ... by Your Majesty's prerogative without the assent of the States of Jersey is consistent with the constitutional rights of the Island of Jersey". If, therefore, the British Government thought that, after the remarks made in the Privy Council in the Daniel affair, it was obliged to supply the supposed omission in the 1837 Order, " it was essential before doing so to consult the States, who had been parties thereto, and, at least, ascertain their views "(49).
The Committee then turned to the question of precedence-a point also elaborated upon in the Representation. They pointed out that, by long usage, the Bailiff had acted ex officio as President of the Prison Board, and was indeed referred to as such in the case of Rex v. Aubin (1855) and in the Report of the Royal Commissioners into the Civil Law of Jersey (1860). It had moreover been the" constant practice" for centuries that in civil affairs the Bailiff was entitled to precedence over the Lieutenant-Governort-?'.
The other major argument advanced by the Committee related to the financial support contributed to the prison by the States. Under the original arrangements agreed between the Jersey authorities and the then Home Secretary, Lord John Russell, in 1837, the States had undertaken to bear half the estimated maintenance costs of £600 p.a., plus any excess over the £600, in return for representation on the Board equal to that of the British Government. According to the Committee, the principle had thus been established that each party would be represented on the Board in proportion to its financial contribution. As in fact the annual expense of maintaining the prison regularly exceeded £600, the implication must be that the States were entitled to greater representation than the Government. This could be most easily accomplished by confirming the Bailiff in his position as President, whose casting vote would in effect provide the States with additional representationw".
In spite of this triple appeal to constitutional principle, precedent, and common justice, the Privy Council remained unimpressed. On 13th November the Clerk to the Council, Sir Charles Peel, wrote to the Bailiff pointing out that the Representation of the States contained little more than was stated in the Bailiff's own letter of 14th March, which had been duly considered before the June Order was issued. Their Lordships therefore felt unable to advise Her Majesty to recall the Order. Nor would the Privy Council agree to meet a deputation from the States in support of their prayer, offering instead to hear counsel in support of and against the Representationc='.
This proposal was greeted in the States with a mixture of dismay and defiance. On the one hand were ranged Deputy Durell and his supporters, who feared the crippling effect of yet another lawsuit on the island's finances. There was already a deficit of £8,000, " and they might shake the Treasurer's coffers without evoking the slightest metallic sound". Was it really" in the interests of the island to be in perpetual conflict with the British authorities . . . the most paternal government which had ever existed? "(53) In any case he doubted whether legally their case was a good one. On the other side stood Jurat Falle and the more moderate Rector of St Mary, who also claimed to represent the best interests of the islanders. To this group the issue of expense was secondary. " The real question," declared the Rector, " was whether they were fit to govern themselves or not"(54). Clearly opinion in the States was fairly evenly divided-a division reflected by the narrowness of the majority (25-21) by which Durell's proposal to consult their constituents before proceeding further was defeated. Consequently the States adopted the Constable of St Helier's motion to engage the services of English advocates, and to " take all measures necessary for safeguarding the interests of the island in this affair "(55).
It might be appropriate at this stage, when the arena for the debate was about to be moved from the island to London, to consider the motives behind the Privy Council's actions up to this point. In particular, why had Peel been instructed to offer the islanders the opportunity of presenting their case through counsel? To this question the Rector of St Mary, the Reverend E. Luce, had a ready answer. "The Privy Council," he claimed, "had apparently thought that by telling us we might be heard by counsel, we would quietly abandon the matter" (56). It is difficult to accept this opinion. For one thing, if the Privy Council had in fact wanted the matter to be dropped, they need not have suggested that counsel be heard at all. For another, no one who was aware, as their Lordships must have been, of the litigious and independent nature of the islanders, could possibly be confident that the offer of a lawsuit would be turned down. Lack of money had not deterred the States from carrying the Daniel case to London.
Only one construction can be put on Peel's letter which fits all the facts-it must be that this was a bona fide offer, designed to give to the States the opportunity to present their case as fully as possible, with the benefit of expert counsel.
And yet it must have been reasonably clear to their Lordships, at least at the start of the hearing if not sooner, that in strict law the case of the States was not strong. Both sides, counsel for the States and the Law Officers of the Crown, produced long and thoroughly documented statements of their case. But the legal and constitutional arguments of the States' counselw", Horace Davey, R. B. Haldane and W. R. Sheldon, were answered authoritatively in the Memoranda prepared by the Attorney-General for Jersey, W. H. V. Vernon and his colleague H. Sutton(58).
While the bulk of the case of the States was taken up with a rehearsal of the history of the Prison Board and the negotiations which had taken place between the Jersey authorities and the Secretary of State, it began with a firm statement of what they believed to be the true constitutional position. In demanding the recall of the Order of 23rd June 1891, they characterised" the question in issue as a matter of grave constitutional importance, and the said Order as an infringement of their constitutional rights "(59). Justification for this statement rested principally on two grounds: first, that the States were, and always had been, the representative assembly of the island with full legislative powers, and secondly" that it was the immemorial right of the island [confirmed by the Code of 1771] that no Orders, Letters, or Warrants of the Sovereign or of the Privy Council had legislative force in the island until they had been registered "(60). Thus, since the Order of 1891, "a substantive legislative act", in effect modified and altered the earlier Order of 11th December 1837, and since that earlier Order had been issued "with the concurrence and assent of the States", then the later Order should also have received their assent. As no attempt had been made even to consult the States, let alone seek their assent, the 1891 Order could not be considered as the law of the land. In other words, the States were claiming that the Crown had no power to legislate for the island without the consent of the States, and that registration of Orders in Council implied a right of veto over such instruments.
In reply, the authors of the Memorandum made short work of the States' contentions. In their view, there was no justification for the claim that the States possessed general legislative authority in the island. The powers of the States were limited to those it had inherited from the Royal Court, i.e, the power to enact bye-laws or Ordinances, confined to local or administrative affairs, pursuant to Orders in Council. These powers" in no wise affected the legislative power of the Crown "(61). In a clear, but not explicit, reference to Campbell v. Hal/(62), Vernon and Sutton denied that the establishment of the Code of 1771 could be regarded as granting a constitution to the island, or in any way limiting the prerogative power of the Crown. Nor, in their view, could the practice of registering Orders in Council be interpreted as a limitation upon the Crown's legislative authority. Registration had nothing to do with the signification of assent-its object was simply to " give publicity to the act of the Sovereign, and to preserve a local record of its existence". The duty of registration could in any case be imposed by the Crown (63).
Nor were they impressed with the validity of that part of the Code of 1771 which seemed to imply some connection between registration and assent. It was probably invalid, being repugnant to previous and subsequent Orders and Acts of Parliament. Even if it were valid, it applied only to registration by the Royal Court.
" Historically and constitutionally," the authors of the Memorandum concluded, " the States of Jersey are not a provincial Parliament or local legislature, but a Municipal Corporation or Common Councilfor the whole Island."(64) It followed that they did not have a power of general and independent legislation, but only a limited power of making provisional Ordinances, subject to the absolute control of the Crown in Council.
The second major objection of the States was against the provision of the 1891 Order which appointed the Lieutenant-Governor rather than the Bailiff as President of the Prison Board. Here the States were on stronger ground. They could not of course point to any provision of the 1837 Order specifically appointing the Bailiff to the Presidency, but it was clear that the Bailiff had been accustomed by long usage to preside. "The right of the Bailiff to preside at the Prison Board," they pointed out, " has been without interruption recognised by the Home Office, by the Privy Council, and by the Commissioners who were in 1859 appointed by Her Majesty to enquire into the laws of Jersey." (65) They were on less strong ground, however, when they tried to erect a strict line of demarcation between the jurisdictions of Bailiff and Lieutenant-Governor as between civil and military affairs(66). According to Vernon and Sutton, all civil, military and judicial powers had originally been vested in the Governor or Warden, and despite the transfer of certain powers, in particular judicial authority, to the Bailiff, the Governor, or rather Lieutenant-Governor, continued to exercise some important civil functions-notably the power of veto(67). Moreover it was perfectly within the power of the Crown to regulate the respective powers and duties of Governor and Bailiff, and " there is no general constitutional right on the part of the States, nor any right on the part of the Bailiff by virtue of his office, that these respective powers and duties shall remain unaltered "(68).
Finally there was the issue of representation on the Board. By giving to the Lieutenant-Governor, as President, an additional casting vote, the Order of 1891 had upset the existing balance between representatives of the States and Crown officials. The argument of the States was that under the agreement of 1837, representation had been made proportional to the respective financial contributions of the island and the Crown. At the time they had been content to settle for equal representation, since it had been estimated that the total expense of maintaining the prison would not exceed £600 p.a., and the Home Secretary was prepared to guarantee £300 p.a. out of Crown revenues. In fact the annual cost of maintenance had now risen far above £600, the States being responsible for the excess, yet the" representation of the States on the Board remains the same as when it was originally settled on the basis of representation in proportion to financial liability "(69).
It was by no means certain that the original agreement had really been based on any such principle. If counsel for the States had examined their own document more carefully, they would have perceived that Lord John Russell, while appearing to concede the principle of equal representation, in fact perpetuated a theoretical Crown majority on the Board by insisting that the Bailiff, a Crown appointee, be one of the three representatives of the States. Thus the latter were really outnumbered by 4 to 2, and the States would have done better to have accepted Russell's earlier offer of 4 to 3. This point was not overlooked by Vernon and Sutton, who argued in their further Memorandum that the arrangement of 1837 " scarcely gave the States a right of equal representation on the Board (except in form) inasmuch as it was provided that one of the States' representatives should be the Bailiff, a Crown servant, with the object, presumably, of securing a majority of Crown officers on the Board". In any case, the money which the States had agreed to contribute towards the upkeep of the prison did not, as the States had inferred, come out of the pockets of the ratepayers, but out of the' impots " for the renewal of which the States were dependent on the pleasure of the Crown (70).
The Case of the States and the Memoranda are lengthy documents, covering a number of minor points additional to those discussed here. In the opinion of Vernon and Sutton all of these were " immaterial so far as regards the legal and constitutional power of Her Majesty in Council", if it were conceded that the Crown in Council was" alone the supreme legislative power in the Island "(71). The contentions of the States which did not relate to the constitutional issue were thus material at all " only as arguments in favour of the recall or amendment of the Order either as a matter of expediency, or as an act of grace and favour "(72).
To Vernon and Sutton, and as we shall see to Haldane himself, the constitutional question was crucial. Yet it must have been clear at the time that the States' claim to legislative autonomy and an effective veto through registration over Orders in Council, was unlikely to be upheld by the Committee. Even Haldane seems to have felt this, and he expressed his anxiety over the case in letters to his mother in May 1894. Writing on the 19th he told her, " I have again had a long day at the Jersey Case. I fear we have not a very good case, but we shall make the best of it"(73). Two days later he was writing in similar terms(74), and on the day before the case was due to be heard he was still worried. "How it will go I do not yet knoW"(75). When at last the case was won, he was both relieved and surprised. "You will be interested to know," he wrote, "that I have won the Jersey case. It has been decided on a short point, but quite enough for US"(76). And again, on the 26th, he told her, "the victory over the Law Officers of the Crown is very satisfactory. Nobody would believe that we had a chance, and we really compelled the tribunal into believing in us ... the relief from the strain is certainly very great"(77).
Not only was it unlikely that the States would have won their case on the legal point-it was also unlikely that the Committee would have decided the point at all. In previous cases involving similar issues the Committee had consistently refused to make a general ruling. In the famous Three Orders case of the 1850's, care was taken not to lay down any hard legal line, though sufficient doubts had existed for their Lordships to recommend recall of the Orders(7S). As we have seen, much the same attitude was adopted in the Daniel case.
Although pressed hard by Haldane, their Lordships in the present case were equally unwilling to commit themselves. "The real question," he claimed, " which not only we, but the Crown, desire to have settled for the guidance of both parties in the future is what are the relations between the Crown on the one hand and the States on the other, as regards power of legislation." But the Lord Chancellor was not to be drawn. "What," he asked, "is the exact reference to the Committee? Because to ask us generally to define the relations between the Crown and the Legislature of Jersey is rather a large demand, is it not? "(79)
The refusal of the Committee to offer a solution to the general question is not difficult to understand, either in terms of their traditional attitude to Jersey constitutional issues, or of the nature of judicial decision making in the British system. Courts naturally prefer to decide cases by reference to the particular rather than the general. As the Times correspondent noted, "The Privy Council, it is clear, will always shrink from the broad question Aye or No-Can the Crown in Council legislate for all affairs of Jersey by Order in Council? "(SO) The Lord Chancellor underlined the point when he continued the remark quoted above: " ... if it is only left to us in a particular instance to say whether it was within the one or the other, that is a very different question "(Sl). But having once taken this view, it was difficult for the Committee to separate the two, and lay down a ruling on the particular point, i.e. whether or not it was within the competence of the Crown to issue the Order of 1891.
Yet the tenor of their Lordships' remarks made in the course of the hearing suggests that, if they had been prepared to lay down a decision on the constitutional issue, it would have gone against the States. This impression is confirmed by Haldane who noted later that "at first the Council were rather against me "(S2). It was one of Haldane's principal contentions that, in certain areas, the Crown had no power to legislate for the Island of Jersey without the assent of the States, and that the process of registration was the means whereby the States signified that assent. Neither Lord Watson nor Lord Selborne was much impressed with this argument. According to the former, the purpose of registration was " in order to apprise the lieges that the law registered then applied to the island . . . and that there could be no breach of the law on the part of an inhabitant of the island until that notice had been given "(83). Whereas Lord Selbourne objected that since the act of registration was carried out by the Royal Court, it could scarcely be considered as a legislative act on the part of the States(84).
Aware that a strictly legalistic approach was unlikely to pay dividends, Haldane began to shift his argument from legality to constitutionality, while still trying to avoid arguing on grounds of sheer expediency. The essential distinction was put into words for him by Bryce: "You said there was something which might be strictly within their power, but which was so opposed to the whole tenor and usage and spirit in which the relations of this country with the Island had been conducted that ... it would be unconstitutional "(85). And Lord Watson, later in the hearing: "There may be something falling short of an absolute defect of legislative power. There may be reasons under which it would be an unconstitutional proceeding on the part of the British Sovereign to strain to a certain extent Her undoubted legislative power." Haldane was still anxious to avoid any confusion between constitutionality and expediency, and once again Bryce came to his rescue. "As Lord Watson suggests, there are certain kinds of expediency. There is the expediency of issuing this Order under the circumstances under which it was issued, having regard to the way in which the Order of 1837 was made; and there is also the question of expediency as to the contents of the Order, whether or no it is desirable that the Board should be regulated in the way the Order proposes." The way was now open for Haldane to develop his argument as to the advisability of the Order or, as Lord Watson put it, to argue " whether the limits of the Sovereign's power now are limited to the consideration of expediency by the large considerations of constitutionality "(86).
In their report to the Queen, their Lordships made no comment on the legality of the Order of 1891 (87). In recommending that it be recalled they confined themselves to a single point, viz: that the Order, in appointing the Lieutenant-Governor to the presidency of the Prison Board and giving the President a casting vote, had "materially altered the arrangement embodied in the Order in Council of December 1837, on the basis of which the States agreed to pass and did pass the necessary Acts for making the financial contribution prescribed by that Order". Their Lordships may, as the Times correspondent put it, " have turned their backs upon the larger question which had been prepared for them at three years expenditure of time and money"(88), but in so doing they had abandoned legalism for constitutionalism, and given the islanders just cause for celebration.
The decision was greeted in the island with predictable satisfaction. Haldane was officially congratulated by the States. In a letter to the Times one Jerseyman declared that " the islanders now feel that their interests are safe in the hands of' My Lords' and that their appeal unto Caesar ... has been justified by its unqualified success." The writer was convinced that the decision had confirmed the authority of the States to legislate for the island. "In these days, when some would attempt to give' Home Rule' to communities not fitted to its exercise, it would be a positive absurdity to deprive of self-government a people who for centuries have proved their ability to possess it. The decision of the Council," he hoped, "will, no doubt, stimulate the States to initiate ... certain reforms ... now that an absolute power of legislation is accorded to it, subject to the sanction of Her Majesty in Council"(89).
This was certainly stating the case too strongly. The attitude of the Privy Council to the constitutional authority of the States had been passive rather than positive. What they had done was to leave untouched an important constitutional convention, rather than create a new one. "It may well be wise," commented the Times correspondent, " for the Privy Council to abstain from giving a decision which would have the effect of crystallising into definite law that which, if it exists, is only a constitutional rule" (90).
As the law then stood, it would have been difficult if not impossible for the Committee to have done any such thing. Had it faced up to the "large question" of the true relationship existing between the Crown and the States, the strong presumption must be that it would have rejected the States' denial of the power of the Crown in Council to legislate for Jersey. Only by avoiding the question could the Committee do what it clearly wanted to do-to permit the constitutional development of Jersey's legislative institutions.
Amidst the general rejoicing over the decision, there were some who recognised more clearly than others what would be its immediate practical effect. As the Home Office pointed out to Lieutenant-Governor Markham in August, with the recall of the 1891 Order" matters have reverted to the status quo ante, and all the difficulties which led to the passing of the Order of 1891 remain, viz: the questions as to the rights of Deputies, the Chairmanship, and the casting vote "(91).
Markham indeed needed no reminding. He had already written to the Under-Secretary, Sir Godfrey Lushington, in July, suggesting that new modifications to the Order be now consideredo». He had also had first hand evidence of the fact that their Lordships' decision had not succeeded in eradicating friction between the Crown and States representatives on the Board.
For the revival of ill-feeling the Lieutenant-Governor was himself partly to blame. Acting, no doubt, in good faith and out of a desire to get the Board in operation once more, he had written to the Viscount and the Receiver-General (the two other Crown representatives on the Board) requesting them to attend the next Board meeting(93). Neither felt disposed to comply. In reply the Viscount reminded Markham of the indignity which the Crown officials, including the former LieutenantGovernor, had suffered at the hands of the States' members of the Board, and pointed out that the issue of the chairmanship was bound to come up again at the next meetingwv. He ended by refusing to attend unless at the direction of the Secretary of State, "the point in question," he asserted, "being one which affects my honour"(95). The Receiver-General took a similar line, and the unfortunate Markham was obliged to appeal for Asquith's support(96).
Senior officials at the Home Office were critical of both the Lieutenant-Governor and the Viscount.
Lushington felt that" it would have been more prudent of the Lieutenant-Governor to have stated to the Viscount that he was acting under your [Asquith's] instructions. .. This, however, does not excuse the Viscount-he ought to have assumed, as indeed he knew, that the Lieutenant-Governor was only expressing your view" (97). In a draft despatch to Markham (to be shown also to the Viscount) Lushington made it plain that the Secretary of State expected the Crown officials to resume attendance at the Board (98).
Even armed with this support, and a reluctant promise from the Viscount (accompanied by the offer of his resignation) that he would attend (99), Markham managed to mishandle the affair once again. Having learned that the Bailiff would be unavoidably absent from the Board meeting, Markham decided that it would be best for him also to stay away so as not to "take advantage of his absence to assume the Presidency of the Board "(100). Unfortunately Markham failed to explain this to the other Crown officials, and the result was, for them, an extremely embarrassing meeting, at which they waited in vain for the Lieutenant-Governor to arnve. Ultimately the States' Members pressed for the busine-ss to be begun and when one of them, Jurat FaIle, insisted on presiding, both the Viscount and the Receiver-General withdrew, leaving the meeting without a quorum(101).
These exchanges added extra urgency to the need to re-open the whole question of the Board's constitution. Markham had taken the initiative early in July, when he had suggested that both Lieutenant-Governor and Bailiff should cease to be members of the Board. This would leave only two representatives for the Crown and two for the States. Probably the States would claim, in view of their proportion of financial responsibility, that they should have a preponderating influence, and he suggested the addition of a third States' member(102).
In the discussions which ensued between the Home Office and the Jersey authorities, the agreement that the Lieutenant-Governor and Bailiff should become Visitors rather than members of the Board was the only one which might be considered a victory for the Crown. To begin with the Bailiff was prepared to oppose even this, until it occurred to him that if he stayed on the Board, his actions would be subject to review by the Lieutenant-Governor as Visitor, an eventuality which he thought " very undesirable" (103).
On every other major point, officials in the Home Office and the Privy Council Office were ultimately persuaded to bow to local opinion. The most important of these, and the one to which all others were related, was the issue of representation on the Board. Lushington had had some reservations about allowing the States to get away with three members out of five. As he objected to Asquith in July, " if an occasion should arise when the imperial will wishes to assert itself, it will be powerless." But he concluded that this was unlikely, and Asquith agreed (104). Having once conceded the principle, it was difficult to oppose the demand of the Committee of the States that they be allowed four members to the Crown's two, on the grounds that" representation on a Board administering public monies should be proportional to contribution, and that inasmuch as the States contribute more than two-thirds towards the maintenance of the Prison, their representation should at least be not less than two-thirds "(105). Only one member of the Office, Mr Fellows, raised any serious objection to this argument, pointing out that half of the contribution made by the States was derived from the impot, which in England would be classed as ' imperial' rather than ' local' taxation(106). Fellows' objections, and his radical recommendations for the reorganisation of the Board were alike ignored by Lushington and Asquith(107).
There were only two questions left-whether or not provision should be made for the Deputy Viscount to attend the Board in the Viscount's absence, and the issue of the chairmanship. Once again the opportunity to assert the authority of the Crown over the conduct of the Prison was not grasped. The original Order of 1837 had enabled the Deputy Viscount to attend, and the present Viscount urged that the provision be retained, on the ground that, given the preponderance of the States representatives under the new constitution, it was especially important that the Crown representatives be allowed to exert their full voting power(108). The suggestion found some support from the Lord President, but was finally abandonedv". Similarly, Fellows' proposal that the President of the new Board be a Crown appointee was not taken Up(l1O), while the demand of the States Committee that the chairman be elected by the Board (thus of course ensuring that he was acceptable to the States majority) was the solution embodied in the final documentv '!'.
The Home Office volte-face was remarkable. Only four or five years before, the Secretary of State had been fully behind the Lieutenant-Governor in his battle with the Bailiff. At that time, Home Office policy had been based on three principles. First, that the administration of justice and the administration of the prison should be kept separate'P'": second, that control over the prison should be removed from the hands of the local authorities and transferred to the Imperial government; third, that the dignity of the Crown and its officers should be upheld. Only the first of these had been satisfied, or partially so, by the removal of the Bailiff from the Board. The second principle had been the basis of the Order of 1891, which was now being abandoned (113). The authority of the Crown and the dignity of its officers had been undermined by Asquith's refusal to support the Viscount and his acceptance of the new constitution for the Board-a constitution which he and Lushington recognised would render " the imperial will powerless". In view of the events of the past five years it was remarkably naive to suggest, as Lushington did, that" the occasion [when the imperial will wishes to assert itself] is not very likely to arise "(114).
The truth was that the Home Office was weary of the whole business. Hence the reaction of its members to the refusal of the Crown officers in Jersey to cooperate with those who had" shamefully ill-used" them in the Prison Board, was annoyance. "At this rate," complained Lushington, " there will never be peace"(115).
The Jersey Prison Board case provides us with, amongst other things, a colourful commentary on the process whereby British imperial power came to be eroded. On the one hand we find a semiindependent community, aggressively determined to weaken, though not yet to break, the links tying it to the superintending power. On the other was a complaisant administration, composed of judges who shrank from making retrogressive decisions, and officials who wanted peace.
Mr F. de L. Bois, a former Deputy Bailiff of Jersey, has provided the following account of the last chapter of the Prison Board story in which he played a prominent part.-Editor
Having had the advantage of reading, before publication, Dr Swinfen's valuable article on the Daniel and Jersey Prison Board cases of 1890 and 1894, I take the opportunity of placing on record a sequel to the latter, the significance of which has, in my opinion, never been generally appreciated.
At the end of January, 1953, a time when I held the joint offices of Greffier of the States and Law Draftsman, I was consulted by the Prison Board with regard to the drafting of new Prison Rules. The introduction of new Rules had been under consideration for some time, and I was handed a draft of the proposed Rules, together with a memorandum on them prepared by the Prison Commission in London. On studying the draft and the memorandum, I quickly came to the conclusion that the Prison Board did not possess all the statutory powers necessary to make the rules included in the draft.
If, therefore, the rules were to be made, the rule-making power conferred on the Prison Board by the Order in Council of 1837 required to be extended, and I decided to consult the AttorneyGeneral, C. S. Harrison. There were delays largely due to his pre-occupation with the Minquiers and Ecrehous case, and when I took the matter up again, I noticed that, while the control of the States over the administration of the Prison was restricted, they had to bear almost the whole of the costs. The situation was that £300 was provided out of Her Majesty's revenues and £300 by the States, and that the balance required to meet the costs had to be provided by the States. In fact, it could be said that the States bore the whole of the costs as, under an agreement made some years previously, the Crown revenues were paid over to the States on condition that the States met all expenses chargeable to those revenues, an agreement under which the States were the losers. The Finance Committee's estimates for 1954 had just been published, and they showed an estimated cost to the States of £26,000. The control then exercised by the States amounted to no more than the right to appoint four members of the Board and to receive an annual report, for, although the States' appointees formed a majority on the Board, the fact that the Board was required to appoint two of its members as Secretary and Treasurer respectively led to an exclusivity not enjoyed by any other States' Committee for whom those duties were performed by the Greffier of the States and the Treasurer of the States normally through their staffs.
It therefore seemed to me that the time had come to end the privileged position enjoyed by the Prison Board and, without pausing for further thought, I went to the Attorney-General and told him that, as new legislation was required, the opportunity should, in my opinion, be taken to vest the administration of the Prison wholly in the States. He agreed and suggested that I should prepare a draft Projet de Loi designed to effect the improvements which we thought to be desirable.
This I proceeded to do, the draft providing, amongst other things (a) that the administration of the Prison should be vested in a Committee of the States, to be called the Prison Board (that is to say, a Committee consisting of seven members of the States), (b) that the Viscount (who, with the Receiver-General, would cease to be a member of the Board) should have a right to visit the Prison, a right which was conferred on the Lieutenant-Governor and the Bailiff when they ceased to be members of the Board in 1895 and which they would continue to enjoy, and (c) that there should be a Board of Visitors consisting of Jurats of the Royal Court (replacing the provision of the Order in Council of 1837 which confided this duty to members of the Prison Board).
The draft was sent to the Home Office and useful comments on it were received, but the extraordinary thing was that no comments whatsoever were made on the proposal to abolish the Prison Board whose constitution had given so much trouble in the preceding century.
The Orders in Council of 11th December 1837, and lith May 1895, were revoked by an Order in Council of 29th April 1957, and with effect from 1st July 1957, were replaced by the Prison (Jersey) Law, 1957.
I have always thought surprising the general lack of interest shown in this final outcome of the Prison Board case, a comment which does not apply to Deputy K. A. Baal (later Constable of St Helier) whose enthusiasm did much to carry the project to a successful conclusion.