It is established that the Crown en droit or
in right is a many faceted piece of constitutional jewelry.
It has a sense of immanence above mere national interest that is
the fundamental distinguishing feature of what outside spectators
view, inadequately as a mere "common law" system. The United States
has several common law jurisdictions within it and yet ails to meet
that criteria otherwise than by a profession of faith by its
subjects as distinct from its objects.
Others simply assume out of modernist convenience that the
Supreme Court has the final say in all matters judicial within the
United Kingdom and for that matter outside it. That is the problem
with borrowing a term from another -ex-colonial- jurisdiction whose
law has evolved from an independent declaratory basis. The United
Kingdom, at law, is anything but a federalised State. It existed
before that distinction existed. The old term describing the
function of the final appellate jurisdiction within the United
Kingdom itself was the Judicial Committee of the House of Lords,
and the equivalent for matters outside the jurisdiction of the
United Kingdom and its Parliament was the Judicial Committee of the
Privy Council. The Judicial Committee was effectively composed of
the same "Law Lords" and senior judges from elsewhere including the
dependencies and dominions affected, Canada's and certain
Commonwealth jurisdictions' final appellate court in some
circumstances remains the Privy Council, or more precisely
the Judicial Committee of the Privy Council. Its
powers include power to hear constitutional issues. Oops, did we
miss something here?
How does this impinge upon the current Rule of Law litigation
over the exercise either by Parliament or by Crown prerogative on
Brexit, which is due to be heard in September? To whom should
the subjects of Her Majesty now genuflect when her United Kingdom
Government attempts to leave or take leave to leave the
European Union?
The leapfrog appeal in the pending Brexit litigation is being
stated as lying to the Supreme Court. Following basic
training, namely that a Barrister should make no assumptions
and question everything, one has to try that assertion
"through the furnace" to test its mettle.
So, does it?
It is a constitutional matter involving the Crown and a matter
of Crown Prerogative. What is more, it is not only the insularised
United Kingdom Crown, a Union of two crowns, but other "Crowns in
right", such as the separate Manx crown, the CD's feodal "crowns en
droit" and what is more the part of the Crown which is the
Unionised Scottish Crown which are affected. Note that other
"crowns in right" exist, such as the Canadian and the Australian
relevant here to the extent that these depend upon the following
appellate structure. The Scottish devolution issues and
cases were originally the province of the Judicial Committee of the
Privy Council, until 2008. Whilst the appeal in the Brexit
litigation is from a Court within the United Kingdom, as the
government of the United Kingdom is being sued in England, that may
not mean that the Supreme Court is the only Court with competence
in the matter.
That in constitutional terms may be so far removed from the
absolute relativistic truth to be remarkable. It sometimes may help
to step outside a peculiar constitutional "box", or in this context
"casket". It is also an error into which certain parts of the
United Kingdom Civil Service might even attempt to immerse the
debate. So at the risk of being accused of rendition and
waterboarding my republican minded friends at the Bar with a blast
from the past outside the five mile limit .....:
The previous postings on the position of the Channel Island and
Manx Crown Dependencies in relation to the feodal Beast of
Westminster has shown that the relationship between these Crown
Dependencies or perhaps better Peculiars and and the United
Kingdom, itself under, if not subject to, the Crown in right
concept has show that it boils down to a form of centuries old tug
of war between competing feodal, not republicanised interests.
The end of the Protectorate and its replacement by a form of
constitutional monarchy which became the model for post Napoleonic
Europe after the Vienna Council in 1815 shows that. The British
Islands as a whole resisted the subsequent republican trend in
Europe, with the unfortunate result that our democratic structure
and methodologies cannot now be fully appreciated by Continental
lawyers.
Has that constitutional fundamental been subject to such
sclerosis to have ossified her Majesty's Subjects within the United
Kingdom?
Even Jack Straw admitted that he had to sit as a member of the
Privy Council in issues relating to the Dependencies. The closer
one gets to the real power and therefore the responsibility of its
correct exercise, the closer one gets to the palatable or
unpalatable political reality and truth of the matter. It is not a
servile one. By way of comparison with our immediate
neighbour, the French State in its acquired supremacy will not take
an individual citizen of subjects's rights into consideration and
will override these with the supposed combined power of the mass of
a presumed democratic pacte. The right of
judicial review of administrative action and appeal is so limited
as to be laughable. "They seek it here, they seek it
there...." Napoleon III sent Commissioners to Normandy to
research the local foreshore customs. Why? To subsequently repeal
these to stem the the budgetary leakage to various monasteries and
convents in the Cotentin, in order to pay for Haussman's rebuilding
of Paris. Those lucrative foreshore rights remained intact and
unrepealed in Jersey as Norman feudal rights binding the Crown of
which the United Kingdom Government is a subservient,part. Their
continuing existence is one of the reasons for the continuing
existence of the seat of Norman Law at Caen. Witness also the
issues raised by the United Kingdom itself in the
Minquiers and Ecrehos case before the ICJ in
1953.
The laws of the United Kingdom, working under this elusive
notion of the Crown have yet to sink to that level of illegal and
extra-constitutional expropriation. The tug of war between the
Island's authorities and the various Commissions set up by the
United Kingdom still function upon the basis of over-assertion of
rights and their contradiction by prescriptive feudal rights, going
back to the Norman as opposed to English privileges confirmed by
King John as applicable in the Channel Islands. The position of the
Norse Crown in the Isle of Man is entirely separate, but
nonetheless parallel. However Scottish Independence would throw up
past history in relation to which part of the Scottish crown
territory would gain independence, and which parts of the Scottish
Islands would revert to the separate Manx feudal crown title.
I can only professionally genuflect before the learned writings
of Jersey advocates Richard Falle and John Keeleher on this issue
in Jersey & Guernsey Law Review - June 2010 : THE
CUSTOMARY LAW IN RELATION TO THE FORESHORE (2)
"4 Although 1204 is generally considered to be
the critical date for King John's loss of Normandy, the fate of the
Islands was not settled in that year. John had lost possession of
the Duchy. His legal title was in issue and the nature of that
title, whether based on inheritance or conquest in 1204, would be
relevant to those who held their own land from John and his
successor kings. But the struggle for the Islands was not over.
Everard and Holt tell us -
"In proceedings before royal justices in Jersey in 1309,
sworn evidence was given that:
A certain king of France disinherited the Lord John,
formerly King of England, of the Duchy of Normandy and then the
King of France on two occasions ejected the said Lord John the King
from these islands and occupied them as annexed to the said duchy.
And the said Lord John the King with armed force on two occasions
reconquered these islands from the said King of France. And from
that his said second conquest he and his posterity kings of England
have held these islands up to the present."
5 Everard and Holt agree that other evidence
supports this narrative-
"King John's representatives were 'ejected' from the
Channel Islands by the rival Capetian forces twice, first in 1204
and a second time in 1216. On both occasions, the Plantagenets
successfully counter attacked and re-conquered the Islands within a
matter of months."
6 In the Assise Rolls of 1309 the
representatives of the king would claim that John's title to the
Islands was rooted in conquest, a claim which, if true, would have
put the men of the Isles and their titles on the same footing as
those in England after the Conquest in 1066.[7] But John had not
conquered the Islands, just as seven centuries later, the Islanders
were not "conquered" by the allied forces in 1945. Some would say
rather that in each case they were liberated from an alien
oppressor. The men of the Isles certainly never thought of
themselves as a conquered people. Indeed, it was not on that basis
that John and his son Henry III treated the Islanders in the
decades that immediately followed the loss of Normandy. Loyalty was
rewarded and secured not by conquest, but by the grant of
privileges and the confirmation of customary rights.[8] Perception of those
events would, however, later change. We see in the Assise of 1309,
an early attempt by English common lawyers to argue that John's
"conquest" had interrupted the continuity of custom and thereby,
the Islanders' title to their land.
7 We find our contention supported by two
important documents which form part of a series of Royal Letters in
the early 13th century giving directions to the Warden of the
Isles-
(a) In 1226, a "Letter" from Henry III of England[9] directs the Warden
Richard de Grey-
"... according to the same franchises and free customs
[he] deal with the good subjects of the Lord King in Jersey,
Guernsey and the other Islands to which the Lord the King has
confided the guardianship; customs which have governed them from
the time of the King Henry grandfather of the Lord the King, of
King Richard his uncle and of King John his father until the
declaration of war etc ...";
(b) On the same day Henry issued a further order[10] to Richard de
Grey-
"That according to the Customs of the Isle of Jersey full
justice [jurisdiction] be rendered to Enguerand de Furnet on the
subject of the wreck of the sea which he is entitled to have on his
manor of Rosel ("apud manerium") of which according to his
complaint, Geoffroy de Lucy has dispossessed him ..."
This is clear and unambiguous both as to custom and title.
Here is a royal direction that the men of the Islands should be
allowed to continue to enjoy their ancestral custom and this
notwithstanding the transfer of the seat of authority from the
Norman Exchequer to the King's Council in England. The Islands
would not live according to English Law.[11] John's recovery of the
Islands from Philip Augustus would therefore not disturb the basis
of Custom and, in particular, title to land. Significantly, we find
here no hint of a claim to an original Crown title by conquest. In
relation to the particular matter of wreck, the key words in
Henry's second letter are "quod secundum consuetudines insule de
Geresey plenam justiciam [which according to the Custom of the
Island of Jersey, full jurisdiction] quod habere debit apud
manerium suum [which he is entitled to have on his
manor]". This showed-
(i) that de Furnet was entitled to wreck with jurisdiction
("plenum justiciam") to adjudicate it. The right existed not in
virtue of a royal grant, but by Custom; and
(ii) that he would take possession of the wreck "apud
manerium" [on the manor] of Rosel; varech was an incident of the
fief and exercisable only within the strictly territorial
jurisdiction of a Seigneurial court.
8 The direction to the Warden in 1226 was
consistent with Custom. In the words of Philippe Le
Geyt-
"La Coustume de Normandie en fait un
Droit Féodal".[12]
That is to say, it was according to Norman custom a right
arising from and attaching to ownership of land.
9 It is significant that Henry III had so early
confirmed that Norman Custom would continue to govern the Islands.
Everard and Holt state[13]-
"... throughout the 12th century the Law of England was
developing its own uniform set of principles, the 'common law' of
the Royal Courts. After 1204, it would have been possible for the
common law of England to have been extended to apply to the Channel
Islands. This did not occur, being neither practical nor desirable.
To have replaced the well-known customary law of Normandy with the
embryonic common law of England would have caused disruption and
uncertainty amongst the Islanders ... Convergence in law with
England was not desirable because King John and Henry III after him
anticipated that one day Normandy would be restored to Plantagenet
rule, in which case the Channel Islands would have resumed their
historical status as part of the Duchy of Normandy. It was
therefore preferable for their legal system to remain harmonious
with that of Normandy. The 'Coûtume de Normandie' remained the law
of Jersey ..."
Had the current pretensions of Westminster been justified, even
following the Tudors and the Breton, not Norman, Stuarts and the
Protectorate, the Act of Union between the Scottish and the English
Crown was a purely insular issue on the Mainland following the
entire loss of sovereignty over French soil and Calais by Mary
Tudor.
That said, in this perpetual legal contest between the different
parts of the overall Crown, Westminster, or even the Duchy of
Cornwall in matters relating to the Jersey foreshore, attempts to
pull the ribbon indicating the mid point of the relationship back
over the line to its neo-feudal advantage; whilst the Crown
Dependencies respond with the pull anchored in time that the rights
retained by them are by now beyond the reach of any claim by a
Republicanised suzerain, on the basis of the prescription of any
challenge to their superior feudal rights. "Submission" is not the
order of this particular book of days, as neither team expects it
from the other. It is a legal balance of competing feudal rights,
nothing more but nothing less. It has been since 1066 and the
assizes of King John in 2004 leading to the incessant historical
passage of Crown Commissions, now Parliamentary Commissions to the
Islands to endeavour to attempt to recover a lost position. As
Falle and Keeleher point out, the English common law was still
nascent and not in a position to be applied by sovereign force or
enacted in the Dependencies. It is at that point that the real
meaning of the figurative and legal term dependencies as a set of
jewels hanging off a Crown becomes important, These are no more and
no less than jewels of if not equal in certain constitutional
status to the baubles of Westminster and its republicansing but
necessarily neo-feudal pretensions..
Were the Republican element to assert that the feudal
relationship no longer existed, it would lose any claim and
influence which it had. A consequence of the Minquiers and Ecréhos case of 1953 pleaded
before the International Court of Justice at the Hague. Does
Westminster really want to give France a reason to be cheerful and
think that it has capitulated to the French claim out of
neo-republican spite? I think not.
The National Union of Miners was very happy to have had the
facility of a Manx bank account to elude seizure of ts working
capital under an English Court order obtained by the then United
Kingdom Government during the Miner's strike; as it was to have
used another offshore account to empty it in the nick of time
before the Manx Court's freezing order applying the English
judgment arrived at the Bank. To quote a certain antipodean wit:
"Times were never tougher for an errant knight"; certainly one
without a Parliamentary Commission.. Many a true word spoken in
joust: with all due reference to what may be pulled out from the
sea by a man on horseback with his lance. See Falle and Kelleher
for the Gorey details..
Now, what about the position in the recently devolved State of
the United Kingdom itself?
A clue may be found in the allocation of judicial powers under
the United Kingdom devolution structure, a process started after
the now notorious Killbrandon Report.
To sum it up the Privy Council, not the Supreme
Court, was given juridical power of last resort over the issues of
devolution of Scotland raised by Killbrandon (available from no
good online bookstalls). It is an issue relating to Crown
Sovereignty and could not be addressed by any other body than the
Privy Council. That is the time prescribed and time
enforced function of the Privy Council. However that was modified
by the 2005 legislation which renderedthe final Court of appeal for
Devolution Case, the Supreme Court. Whether that is sufficient to
remove the Judicial Committee of the Privy Council's position as
final arbiter in matter pertaining to the "Crowns in Right" in
general, including the Scottish Crown in relation to the EU, is
another matter. In my view it did not remove that
jurisdiction which is by its nature a general and fundamental
one.
Members of the Supreme Court also sit (with
occasional members from other Commonwealth jurisdictions) in
the Judicial Committee of the Privy Council, with jurisdiction over
issues arsing from the relationship of Commonwealth States to the
Crown in Right to which they are voluntarily subject. That is an
entrustment.
Is the only manner in which any rebellious foreign subjects or
possessions could be brought to order would be by the use of
feodalised force to recover them? Such a reaction would be
archaïc. The fact is that the system of Crowns in Right is a legal
convention which enables jurisdictional consistency through the
constitutional continuation of the rule of law. The law's
development in territories and States who have acheived
independence is assured in that it is retained not discarded with
the safeguard of the appeal system which went with those. The
Judicial Committee of the Privy Council assures that rôle with a
degree of historical elegance that passes largely ujnnoticed.
That is the Crown in Right or Crown en droit under whose
ultimate sovereignty the Privy Council as a judicial body can and
continues to operate.
The Crown en Droit grants the Privy Council its status as the
ultimate (third degree) court of appeal for Jersey, Guernsey and
the Isle of Man, as well as the prior ultimate court of appeal for
points of law relating to so-called "devolution" issues (ie
the constitutional competence of the devolved governments of
Scotland,
It is going to be very entertaining to watch the convoluted
attempts by the republican extremes of the political scene to avoid
becoming entangled with what is essentially a set of feodal
principles of relative power in their plaints as to the Rule of Law
being applied.
It is indeed Law, but a law seasoned with the paradox of
relative, not absolutist legal power which renders it independent
of individuals and powerful.
That is the essence also of the various and different property
laws in force in these British islands which the Republican
sympathisers will have either to face down or compromise at some
point.
That law goes to our national identities. It is, in the last
analysis, the reason why the English and now Scottish trust as a
concept of property law draws its legal and equitable being.
Without the Crown in Right, as opposed to Henry VIII or later
republican elements, the question of the enforcement of a trust or
an executorship, or even a guardianship and the management of
an estate of an individual struck with an incapacity by the
Court of Conscience would not exist. That fact that the trust
recovered from the massive civilian assault on it by those educated
at the Regis seats of Roman law at Durham, Manchester and
Oxford, in no order of merit, is a sign that it is useful in
matters of property law.
It is also the reason why our island's reasoning should not be
"Monteskewed" by continental republican lawyers who will never be
able to grasp the subtlety of this constitutional umbrella under
whose protection as to property rights and rights of the
individual subject, every British subject has been raised. If
you wish to be governed by laws emanating from German influence
which itself recognises the proprietary rights arising at
international law to take and appropriate property by force
belonging to another, then be overrun by a modern day Genghis Khan
and capitulate.
That is our "Rule of Law" to which everyone makes reference,
albeit sometimes irreverently. That is also the advantage of that
"demn'd elusive Pimpernel".
So to my Republican friends at the Bar. Keep on taking the
feudal "prescription" of beyond living memory, in the time honoured
manner. It is not poisonous: even hemlock is not fatal if taken
daily in small doses.