The Sun.
London, England, 1844-12-17 00:00:00

LAW INTELLIGENCE
PRIVY COUNCIL, Dec. 16.

THE LIEUFENANT-GOYEBNOR OF GUERNSEY.
(Continued from our Afternoon Edition of yesterday.)
Mr. ROEBUCK, Q.C. (with whom was Mr. Wadding-
ton), continued his argument on the part of the Crown,
in defence of the Lieutenant-Governor. Ile commenced
by referring to the opinion.pf the Procureur- General of
the Island (who formed part, ex officio. of the loyal
Court), whioll had been given as to the legality of the
Lietltemint,Governor's conduct in respect to the depor-
tation of the Frenchman.

The LORD CHANCELLOR thought the opinion could not
be received as evidence ; but it might be read as part of
the Learned Gentleman's argument.
Mr. ROEBUCK then read that part which referred to
the point at issue :—" We give our opinion that the
Lieutenant-Governor has the power of sending any in-
dividual away whose sojourn here appears dangerous to
the public peace. We believe many instances might be
fatted of the exercise of this power on cis part, though
we cannot cite the cases, not having access to the books.
But we believe it to he generally the received opinion
that the Lieetetiant-Governor has the power of sending
mettec any alien from the island and that no alien can
reside either in Guernsey or Jersey without the assent
of the Lieutenant-Governor in each case," The Learned
Gentletaaa then animadverted on the tone in which the
Royal Court had asserted what he oonceived their illegal
and unfounded uitaruptioals of power. They had spoken
of the Lieutenant-Governor as having acted "in igno-
rance of the constitution," " contrary to his oath," and
"in violation of the law." They actually asserted that
the Orown had only reserved to itself political and mili-
tary power in the island, and that supreme civil executive
power resided in themselves. It had positively been
pretended, that registry by the Royal Court was neees-
eery to give etibot and force, not only to writs of pardon,
bet to Orders in Council—nay, to Acts of Parliament.
Mr. S. WORTLEY denied that the petitioners' counsel
had ever asserted that Acts of' Parliament had no force
till so registered, but that it was the regular and legal
practice so to register them.
Mr. Ronnucrt declared, that till the Royal Court dis-
tinctly relinquished that pretension he should assert that
they premed it, and he should prove that they did so.
Les upprobations des lois (of the time of Elizabeth),
rested upon, as conferring on the Royal Court such
powers, only pee eeetain powers of regulating the in-
ternal effitieu of the island ; and her Majesty had dis-
tinctly reserved to herself and her successors, as she
could not avoid doing, all her regal prerogatives. He
should argue, however, that the Qoeen of England could
not divest herself of the prerogative of pardon in any
part of her dominions without an Act of Parliament, that
the island had been annexed (by conquest) to the realm,
and formed part of the dominion of England, and sub-
jected to the laws of England awl the prerogative of the
Crown. But he eenteeded that on the true construction
of the ancient oustoms of Normandy, as set forth in the
Coms,entaries of Terrier (confirmed by the authority of
Warburton's Laws of Guernsey), combined with the
approbations des lois in the legal operation of the royal
letters of pardon, was declared to be, de facto, the libera-
tion of the prisoner. The words were, " Les lettres de
pardon; remission, ou grace, du Prince ou Reine d'Angle-
terre, zont acceplA ici, et deffait mettre les oriminels
en libert6 scion la tenour des dites lettres." _

Th.? Loan CHANCELLOR—What construction do you
put on the phrase—" aont acceptc63 et deffait I inettre
des criminels," &c. ?

Mr. ROEBUCK—" Are considered, de facto, to set the
prisoners at liberty."
Mr. S. WORTLEY denied this construction of the phrase
" dqrait," as Norman translation of de facto.
The Loan CHANCELLOR intimated that something,
might turn on the import of the word " acceptees," ac-
cording to the uiages of the island.
Mr. ROEBUCK proceeded to observe, that though the
claims of the Royal Court professed to be founded on
the " Constitutions of John," they had adduced no in-
stances of letters of' pardon registered earlier than 1641.
Why ? Because their books, which had been searched,
presented, no earlier authorities for their claim, though
numerous writs of pardon existed on the records of the
island before 1641—a pregnant proof this, that their
claim was unfounded. The instances, which had been
cited, however, also proved this claim unfounded. They
tended to show* that the prisoners before they had regis-
tered their pardons " had been discharged 1" instead of their
registering the pardons in order to be discharged. ":„"
writs, too, were addressed to the goveree-- Now, in ow,
the ease At Issue, a man having eusentenced by the
Royal Court to a
1.6"" nf imprisonment had been coin-
he Royal Court had discharged their
were' judicial. Once in prison, the man
was in the custody of the Executive—that is, of the
Crown. The prison was her Majesty's. The gaoler was
the servant of the Crown. He had been appointed by
the Governor—by the last Governor, Sir W. Keppell
(since whose time there had been only a Lieutenant •
Governor), and had continued in the office since. He
gave a security that he would surrender to the Royal
Court any prisoners to be tried ; but once tried and sen-
tenced, he held them for the Crown. The terms of the
bond were, "par deliverance en justice"—i.e., to ti ial. In
this case there bad been no interference with the course

of judicial proceeding. On this point the Learned
Counsel cited Warburton. The King's Prevot was to
bring the prisoners before the Court, " and to see its
sentence executed"—that is, to see them put into prison,
or hanged, &c.
Mr. S. WouTLET—IIe is to see the sentence com-
pleted ; he must be responsible for their custody.
Mr. ROEBUCK—No, no. He cannot so much as enter
the prison. The Learned Counsel went on to argue that
this claim of the Royal Court, undoubtedly shackling
and fettering the exercise of the Queen's prerogative,
raised the question whether any Sovereign of England
could, without the authority of Parliament, so shackle
the prerogative. He contended that this could not be
done according to the laws and constitution of England,
as laid down by Lords Coke, Hale, &c. Those high au-
thorities, confirmed by " Berry's History of Guernsey,"
showed the island to be under the dominion of the Crown,
and to form part of the realm of England. The royal
prerogative, therefore, must prevail in the island, as in
any other part of the country. He also cited " Ryley's
Pleadings in Parliament," pages 467-9. " Justices
itinerant" had sat in the island under the Royal
Commission, as in England. The Barons of the
Cinque Ports and of the County Palatine of Chester
had made claims akin to those now urged by the
Royal Courts of Guernsey and Jersey, and they had
been disallowed. The fact was, in all these cases the
" Royal Charter " had conferred no more than the usual
powers and privileges of corporations of such a cha-
racter. These jurisdictions were under the sovereignty
of England, arid subject to the prerogatives of the Crown
of Englaid, instead of being, as the Royal Court pre-
tended, part of some foreign sovereignty, under some
sort of independent separate powers, and laws and
usages. In the 4th Institute, Lord Coke had laid it
down that the King could not, without an Act of Par-
liament, divest himself of any portion of the imperial
prerogatives, among which he enumerated the writ of
pardon ; and if the Queen was so ill advised as to issue
" letters patent" (as Coke called them), granting to any-
body the power of " verifying" her writs of pardon, &c.,
and the privilege of not obeying them till so verified, the
charter would to that extent be null and void.
Sir S. Lusurstwroar was understood to draw a distinc-
tion between countries conquered, and merely annexed
by treaty.
Mr. BOEBUCK remarked that the islands of Guernsey
and Jersey had been re-conquered by English sovereigns
subsequently to the forfeiture of Normandy to France.
Mr. BURGE—But he also alleges the King of England's
seisin of those islands to be a good seisin (pars pro tanto)
of the whole duchy.

Mr. ROEBUCK considered that a curious principle.
He, however, admitted that C,.ke conceived the islands
not part of the realm of England, though subject to the
Crown of England; giving as his reason that writs from
Chancery ran not out of the jurisdiction of Chancery.
But it was enough for this case that the islands were
under the Crown of England, subject to the prerogatives
of the Crown.

Sir S. LUSHINGTON—Do you contend that the prero-
gative of pardon is similar to that of declaring peace or
war, and is coextensive with it ?

Mr. ROEBUCK—Certainly. Lord Cuke affirms it to
be, " Omni, soli, et semper."
Sir S. LUSAINGTON—This argument is a most mo-
mentous one. Let me clearly comprehend your proposi-
tion. Is it, that whenever the Crown of England be-
comes possessed (at the close of war, by peace, &c.) of a
foreign country, there the great prerogatives of the
Crown instantaneously, and without any qualification,
attach ? " Omni, soli, et semper" are large and compre-
hen ive words, certainly. But let me put a case. Sup-
pose we reconquered what we now call " British" Guiana,
and that previously the right of pardon had been in some
other jurisdiction than the Crown's, would the royal pre-
rogative of pardon directly prevail ?
Mr. ROEBUCK cited Lord Coke, 4th Institute, pages
356 and 357. At the same time, he admitted that Lord
Mansfield; in his judgment in the great case of the
island of Grenada, had appeared to consider that seine
of the principles laid down, on the authority of Coke,
might be worthy of revision. This, however, was dis-
tinctly laid down, by Coke, that the Sovereign could not
grant away by charter any part of the royal prerogatives,
and that even by Act of Parliament it could not be done
by implication. Now he affirmed the language of les
approbations des lois, appealed to, as proving a grant of
this privilege now claimed for the Royal Court, could
only be conceived as conferring the privilege by way of
implication, if at all ; for it was only a general approval
of the customs of the island, which, according to the
Norman usages and laws, were said to justify the claim.
It was of the highest importance for the protection of the
liberty of the subject, that, in an island where a peculiar
local jurisdiction existed, with no right of appeal save to
the Queen in Council, the royal writ of pardon should
not be rendered nugatory by a privilege of disregarding
it until that local court should choose to register it. Let
it be observed, that the claim was made equally as to
writs, Orders in Council, and even Acts of Parliament—
all were placed in the same category ; yet, from the time
of Charles 11- downwards, whenever the Royal Court
hal presumed, in reference either to Orders in Council or
Acts, to claim that its registry was a condition precedent
to their validity, :he Council had (so lately in one case
as the governorship of Sir J. Doyle) peremptorily di-
rected the Court to regard them as binding on the
Wand, independently altogether of the registry, which
was only for convenience.
Mr. S. WPMET refeePod to the order of the time of
Charles 11. (set forth in " Duncan's History of Guernsey")
as expressing that the Court had only acted under an
erroneous impression.
Mr. ROEBUCK read the order at length. The argu-
ment had been placed on, the sync footing with respect
to acts of Parlialuent and Royal writs. Now, he con-
tended that the claim, as admitted to be groundless
=pith respect to Acts of Parliament, and as shown by
precedents since Charles IL's time to have been dis-
regarded and overruled by the Crown in Council with
regard to Orders in Council, must be equally groundless as
to royal writs of pardons it being by law as impossible