The Express.
London, England, 1847-08-26 00:00:00

THE EXPRESS, THURSDAY EVENING, AUGUST 26, 1847.

FIRST REPORT OF THE COMMISSIONERS

ON THE STATE OF THE CRIMINAL LAW IN
THE CHANNEL ISLANDS.
A commission was issued on the 16th of May, 1846, I
to Messrs. Ellis and Bros, barristers-at-16w, appointing them
commissioners to inquire into " the criminal laws now in
force in our Channel Islands, and into the constitutions and
powers of the tribunals and authorities charged with the
execution of such laws." Their first report relates to the
Island of Jersey alone. The reason assigned for the separate
consideration of Jersey andthe Guernsey group is, that " as to
the state of their political intelligence and knowledge, the
population in the two is very differently constituted ; "
intercourse
which we know to be true : and that " the be-
tween Jersey and Guernsey is very much lea than that be-
tween either and Great Britain ; on which point we will
not venture to express an opinion.
The commission had its origin in strong party contests in
the island, of the manner of carrying on whichptlftliZish
public had a specimen some time ago in the gs,
relative to a habeas corpus moved for in behalf of a refrac-
tory and long-legged English lawyer resident than. The
parties are not incorrectly described by the commissioners
in the following passage of their mat :
We are homed es state to your lISM our 10••11:6•1 SS some of
the drew vslish we seises wilt be dietetic be • seernees part
oftn MSS" and OM M tasetai pet It vll pow that we
Law est ism he sent go Mom am In Hips of Se aerrese
reins*" , ft wee oriel mos is ea reessemi ameres
MIS llas Sort d In ahnisis sagells et as Ugh&
law, eel se emention of the Mal to OAS Meek.
We' eamst biles that tbls ta , mil ese pained
iahatYsssY t els Ss failure of rimy le mem le lie
Ohs pseinedes of pass, gni the 'Mak.
wake se *the, by a ate of their suss Lyons.
so Solent a dime mid set tele stimptsd. Be Meielarity,
Mash mg a Mak aimless Is yet stabs Om lese Ihe Sager
that gmerselem say peen aeq 1•6•• • MINN oess4 vim r obi
Yes
inkerhsr sal isesses aimed le the ham owl
bsbl the On the roar Insi. *we Is • wry mem
ran FM le Se nese brt of • done some aessilien
I an lelmiten as siren the ementellen of the tie A or, at Se hen,
to favour sees et the mere et mem Between am ONO
are two pantes Be as maim for a rehasof Lit
unvAllim to see Om to. stately, sad kink alive to Be Ma of
notes dimple Se *Sr 1.117.10 l• •11011••• will tree is evil,
but savrtilhig Is woke allowances ye a presmitlee le Ismer of
*tat eziskind Yak, into the Maid* al Mmlllsom
One very important element is, kinglet, bore prod over
in silence—that the fierce reformers mist mainly of the
clan of English, who, for various reams, fled Jersey a con-
venient residence; the dogged conservatives of the native
population of French race. This hes a strong basin on
the following recommendation is the report:
It has ham mien* to us that the pronekens lo Mar-
ried an to INDIA. awl sot, as mer, m am& et Y *Melee that
this *II be essemy at a Ms not kr fesemt. Be. Medlar Wee-
==glbs wags of isms Me, lir preellogimitesh_.....ll* be
essents to hen Ss iseekelee.
Se alemeoleVra it seem te m Sri posperl=la
het we kePt lest ask* pmt et Os
goo hem • vim _ part of Se
Bellatt. me pear iii=4 alai
l=ffilla =lesellmily Imo, V we IN .Me ha
i Int less ban if pass she astir eels Yee grin-
= seems* the Mans of Se iselnisa d Mon Issliee
Or list the Beglib pun Im is ilk palm
gromilkerrt. Silo% Is est 11••••■asr•• 101161 TMm a poke lubb
must mum lalstlit; sal la ust urns ef the SUM his

children can do so almost *venially. Probably, In another genera-
ting, the Eogish langUide •ria be at least as familiarly known as the
French. We are. neverthohles, not prepared is recommend a total
chugs. If the neetwally should ark* the chants wlll be *Lunar
called far, which is certainly not the ease at. meat But acne
modified* of the present MP= is necemary. TY offenders
brought before the court in the tea years width clap* from* end
of 1833 to the end of 1163, weep In number—
English, Ire* and Boo* 1,344
Inhabitants of the Channel Wanda 670
Foreigners
Be that much the IMger part of the persons who have been subjected
to the criminal law of Jersey have boar Ignorant of the Language In
which the Prtaedings have taken plats. This becomes very impor-
tant la the ease of a trial; for the unused party, ankle he under-
stands the language used by *advocate, tamable buffer informa-
tion or suggestions which may be brought to his mind by the
speech of his counsel We should recommend, therefore, that the
court should have the po discretion, upon a reatei,t to that
effect from the prisoner, Wear
legal adviser, to order that the pro.
*dingo should. take place in English. This order should him ade
before the jury * selected, as 'gnomes of the language in which the
proceedings are to take place should be • good ground of challenge.
It iv curious that nesr:y two-fifths of the offenders ehould
be of that race which is tat least numerous, and which is
seeking to fora the use of its language in the tribunals on
the other. This really looks as if the more or less disor
derly immigrants considered that the feet that they contri-
bute most liberally by their personal exertions to keep the
criminal courts in employment, gave them a superior elides
to decide in what language the proceedings ought to be car-
ried on. No doubt every effort should be made to give even
offenders fair play, but not at the expense of the parties
offended. It is lucky that the commissioners were two
English gentlemen, and as such fond of fair play : to this we
are indebted for the mezzo tennine they recommend.
In one respect, however, the appointment of two English
barristers has had a learn fortunate effect. Of all lawyers
those of the English bar appear in general the least
able to emancipate their minds from the techni-
calities and farms of their own system. They
look with cockney wonderment on every legal form and
word to which they are unaccustomed, and are utterly in-
competent to detect the same elements at work in other sys-
tems from their own as soon as the external appearance is-in
any degree changed. There are few systems in which
" judge-made law," as Bentham termed it, is more predo-
moment than in the English. It obtains to, at lent, an equal
degree in the law of Jeremy. And our English barristers are
shocked at finding in the oourta of tit. Helier what
never struck them as in the slightest degree ob-
jectionable in those of Westminster. Their condem-
nation of the Royal Court of Jersey might read like
a covert satire on our justice of peace courts of quarter ses-
sions, did not the whole tenor of their lengthy and somewhat
lumbering report show that the worthy gentlemen have not
a grain of wit or satire in them.
In the first place, the Royal Court, till within the last eighty yens,
pommel the power of legislation. The Order of Council of 1771
expressly put an end to this power. It has, indeed, been suggested
that the variations of the law may have born produced by exams
enactments of the Royal Court, made at times before the fire of 1503
which destroyed the meords We think this ve: y unlikely. WOW
no Important change of this sort introduced during the three canaries
for which the records are preserved; and, as to some changes, we
know that they are mach more recent. But it IA probable that, while
this legislative power existed, the members of the court would not
feel very strongly the necessity of adhering to the actual law in par-
ticular cares, when they knew that the general law Itself was geed
only as long as they chose to peemit, and that they might at any time
introduce an absolute change. Neat, we have no doubt that the popular
nature of the tribunal km contributed to unsettle the law. The Jumts
are chosen under a system of election in which the suffrage is very
widely extended; and, as members of the states, they are expected to
take an active share lathe struggles between contending parties. The
persons thus selected, have therefore, seldom received any legal educa-
tion; other requisites are more valued. It results elmost inevitably
that they must eaten be prompted to act upon their own individual
notions of jounce, kid* of aeurtalned *deed law. A strong in-
stance of this occurred lately upon aconviction for murder, when two
of the jurists, avowedly from a dielike to capital punishment, proposed
to pus a sentence of transportation for life, though no purl la-
ment of this crime other than capital has ever born re-
mit:Mad by the LAP of Jersey. Indeed, the aliangre In the law have
for a long time been almost invariably from more to leap severe. One
exception, the introduction of transportation, is lore strong than at
first sight it appears to be; for transportation is often Inflicted In
rases where formerly the sentence would have been, not banishment,
but loss of life or limb. The tendency of the law In this direction,
though honourable to the feelings of there who have administered it,
is nearly conclusive evidence that the cause which we are now point-
ing out mutt have been one materially contributing to the variation
and inconstancy of the practice. Nor is It reasonable to expect that
called upon to act judicially without previoue triaging by
legal study or habit.. should not be more keenly alive to what may
appear to them the expediency in the particular case before them
than to the paramount importance of acting on fixel principle, of law.
Another cause of the unfixed state of the law is to be found In the
rarity of recorded precedents. The law now, as we have shown, rest
almost exclusively on the modern practice of the royal court ; but the
number of decisions is email; and these, as we have inenlioned, are not
reported was to furnish adequate means of instruction in the principle'
recognised by tho court. The annual number of offenders tried by the
royal court, on an average of ten years, is only 137, of whom 50 sub.
mitred In the first instance. There Is a record of every cause ; and
occasionally this cantatas the ruling on some disputed point. But the
grounds of the decision never appear otherwise than by • very brief
and technical recital of the view which the court takes no detailed
judgment, showing the reasoning which hoe led to this view, appears;
nor are the arguments of counsel set forth. It is almost impossible
that decisions, so Mw In number, so slightly reported, and not pub-
lished at all, can afford a foundation for a fixed system of law.
And to this innocent ignorance of the defective state, for
all practical purposes, of the only criminal law with which
they.were previously acquainted, we attribute their ludicrous
proposal to amend the criminal law of Jersey by substituting
for it the English system bodily.
A definite system of penal law ought undoubtedly to Ile laid down ;
the question en, what that system should be. The history of co*
teaches us generally that no language can anticipate the variety of
eases to which the law is to be applied, and that a course of prece-
dents, more or ices copious, smut be paned through before the sys-
tem acquires a practical certainty and precision. We have already
pointed out that precedents lie Jersey arc not numerous or well re-
corded; and we see no reason for expecting any material change in
en.:., seepcst. The proposed alteration should therefore, 51 poesthce, be
one which will furnish the criminal c suet with authoritative deci-
sions, and enable them to appropriate to throneless the experience of
tribunals of more extensive practice. For this pans*, the most et&
cient mean. appears to be the adoption, with such *strife-allow u
may be thought advisable, of the general criminal law of some larger
country. The French criminal code has already been In action for •
considerable period of time, and has been explained by nomeroas
decisions which am easily accessible. But an abjection to adopting
it in Jersey seems to arise from its dissimilarity to the prevent,
even ancient, law of Jersey, and from the comparative rarity of ooca.
shins in which it has been cited in the royal court, The English
criminal law is abundant in reported decisions but it is not re-
duced to the form of scale. It * however, well defined by practice:
and that practice is now constantly referred to In Jersey. It appears li
to on, therefore, that the states, if so inclined, might easily take
a step which would at least place the criminal law of the island on as
steady a foundation as that of England. An enumeration might be
made of the felonies and misdemeanors cognisable by English law
which it was thought fit to purdah in Jersey. nesse would compre-
hend every offence not provided for by specific enactnunt. Ewell
might bc strictly defined byi
we; an
to be found in any approved
digest of English criminal law ; and it would be underetood, without
direct enactment, that all the authority and resuming upon which
such definitions bad been founded, or by which they had been ex-
plained, might be referred to in the court of Jersey exactly as in the
corns of Westminster-hall. To avoid any doubt on the subject, the
new code might recite that the language and provisions of the old
Jersey criminal law had In many inetancee become obrolete, and that
' the more modern criminal law, oo far as not introduced by express
enactment, was not sufficiently defined for the purposes of jar-tire,
and that it, therefore, became advisable to lay down the law In
language *informable, as far as possible, with the language used In
the courts of England. Care would, of course, be token that no ex.
Fenton was used rendering any authority binding on the court In
any stricter anise than that in which authorities are held binding in
our own courts. And, where any law noticed in the English books
appeared mot conveniently applicable to the island, it might be
omitted, The pariah** might be the same In kind as those
in the English law, but mere or lees severe in the particular
came, as the states: might think advisable. The new law should
distinguish between olencsis which are triable by the en-
quete and thou which may be diapered of summarily. We
are persuaded that a law of this kiml, saillkiently definite for all
practical purposes, might be drawn up In • few hours. The innova-
tion, we believe, would not be felt And we think It highly important
that this improvement should come from the states dyes. If
the labours of the learned persons intrusted by your ?Lacey with the
revision of the Engliali criminal law should terminate in the compila-
tion of a criminal code, it might be adopted, In whole or in part, by
the states in framing a criminal law for Jersey. But we do not think
that the piealbility of this result suggest. any reason lor delaying the
proposed change. The criminal law of Jersey may easily be an.
etrueted titan language of the Engl.* criminal law, aa now m
ing and, holdalls node** be afterwards produced, it would
probably ha,
of a moot art, a digest of the existing law ; and a
new ordinance of the states might, in • few sentence& adopt ifs pro.
estate, so far ulna thoughliright, without any embarrass- meat being
produced by their former ordinance.
Nevertheless there is much information, and several good
suggestions in this report. But the government will do well
to beware of rashly acting on its recommeadations as a whole.