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An Introduction to the History of Guernsey Law
1066 and 1204
The Channel Islands were a part of the Duchy of Normandy from early in the 10th century. When Duke William II of Normandy conquered England in 1066 and became, additionally, King William I of England, the fate of the Channel Islands became allied to the English Crown. After King John lost mainland Normandy to King Philippe Auguste in 1204 the Channel Islands remained loyal to the English Crown. The Islands were never incorporated into the Kingdom of England, let alone the United Kingdom, let alone, and more recently, the European Union. Through the grant of various rights and privileges over the years and centuries, the Channel Islands find themselves today as two separate and near-independent jurisdictions (Jersey and Guernsey), each with their own laws and customs; Guernsey of course having its own dependant islands forming their own jurisdictions within the Bailiwick of Guernsey; Alderney and Sark. But it is the Norman origins of the Islands which are fundamental. Merely because mainland Normandy was lost to the French King did not mean an end to Norman culture generally, and law specifically, in the Channel Islands.
The tomb of William the Conqueror, Abbaye aux Hommes, Caen
Customary law
What distinguished Norman law was its customary law. Customary law has two senses in Guernsey law. It has a general sense equivalent to the English notion of common law, by which is essentially meant the evolving body of case law and practice as opposed to statutory or regulatory law. It is perfectly proper to talk of Guernsey customary law as a living thing being developed in the courts of the Bailiwick each working day. The other sense refers to the ancient body of Norman customary law itself.
Norman customary law evolved in the same way; through practical custom and usage over the course of years, decades and centuries until it was collated first in the form of a document (or book) known as the Trés Ancien Coutumier, literally “Very ancient customary” in the sense of a collation of customs. This document dates from the early years of the 13th century and was itself soon eclipsed by a slightly later collation called the Grand Coutumier , literally “Great customary”, which dates from a few decades later, towards 1245. Extraordinary as it may seem it is still the Grand Coutumier which continues to be the principal source for Norman customary law in these Islands. It takes the form of a lengthy series of articles which seek to distil legal principles ranging from the law of inheritance to the law of guardianship to rights relating to shipwrecks and the collection of seaweed.
Although there is a certain irony that customary law, which is notionally unwritten law, should all but have been codified, customary law stayed true to its roots by continuing to evolve over the centuries. Commentaries on the Grand Coutumier would be published from time to time, setting out current law and practice as evolved from the Grand Coutumier which continued to form the basis of Norman law; which same Norman law continued to exercise a profound influence in the Channel Islands. It is important, for example, not to overlook the fact that for a little over 30 years the English Crown again occupied Normandy until evicted finally in 1450 at the end of the 100 years’ war. It is noteworthy that the University of Caen, which every would-be Guernsey Advocate must still attend, was founded during that time by Henry VI of England. In addition there continued daily exchanges of commercial, cultural and familial life between Guernsey and its true mainland; admittedly punctuated by hostilities.
L’Approbation
In the latter part of the 16th century, Queen Elizabeth I and her government became curious as (it is recorded) to the “true state of that Isle” and sent out commissioners to Guernsey make enquiries. An Order in Council dated 9th October 1580 records that they found complaints of “want of due administration of Justice through the libertie, the Bailiffe and Jurats do take unto them selves to directe their Judgements by presidents, wherein there is neyther certainety nor rule of Justice … forsaking the Customarye of Normandie whereunto they should holde them selves …”. The Bailiff and Jurats were ordered to follow the Grand Coutume save in those respects where local practice and law differed, as to which they were to produce for the Privy Council a written report . Meanwhile they were only to observe variations from the Grand Coutume such “… as they can shew have ben used there time out of minde …”. The order appears not to have been respected; because a further Order in Council followed dated 30th July 1581 again required the making of “… a booke of the sayd Lawes and Customs …”.
The Bailiff and his team carried out their task of defining Guernsey law by reference to the latest, and as it turned out, last great commentator on the Grand Coutumier, one Guillaume Terrien (the 1580 Order had required a comparison to be made with the Coutume as corrected and amended in the time of King Henry II of France, who died in 1559). His work is simply referred to as “Terrien” and you are very likely to find one or more copies of this substantial work in every firm of Advocates’ offices. A translation of the frontispiece and preface to his great work can be found here.
Terrien’s commentary had appeared in 1574. By that time the Grand Coutume was itself a mere 330 odd years old but already showing its age! By unhappy coincidence, while the Bailiff and Jurats were busy defining Guernsey law by reference to Terrien, the mainland Normans themselves were re-editing or re-writing the Grand Coutumier. The Guernseymen produced their report which was called “L’Approbation des Loix”; literally “The Approbation of Laws”, ie indicating which parts of Terrien and the Grand Coutume were approved as being a part of Guernsey law. That report acquired the status of a statute on 27th October 1583 which is the date of the Order in Council adopting “L’Approbation”. Alas, on 1st July 1583, just 17 weeks before, the commissioners appointed by Charles VII of France had completed their work of revising the Grand Coutume. It was on this date that the new Coustumes du Pays de Normandie, anciens ressorts et enclaves d’iceluy, or la Coutume Redigée or Reformée, the Reformed Custom came into force.
So you have the historical curiosity that Guernsey law was defined and enshrined in the legal strait jacket of an Order in Council which took as its defining reference point a body of law only recently superseded to a very great extent in its jurisdiction of origin. The effect was stultifying, at least for a time. Jersey went through no equivalent experience and looked (and continues to look) much more freely than Guernsey law at the Coutume Reformée and the commentators which followed Terrien, commenting of course on the new Coutume, as opposed to the old. Guernsey law continued, and continues, to work from Terrien, the Grand Coutume and L’Approbation. Sitting in the class rooms of Caen University our fellow French students were studying what was, for them, quite ancient legal history; whereas for us, customary law continued to live.
Thomas Le Marchant
Alas, it is not even as if the authors of L’Approbation had done a particularly good job. There was much criticism, culminating in the work of the Reverend Thomas Le Marchant, who wrote what amounts to a commentary on L’Approbation , which you will recall is itself a commentary on Terrien, a commentary on the Grand Coutume. Le Marchant went through L’Approbation saying where the authors had gone wrong, and more rarely, where they had got it right, and amplifying matters generally. Le Marchant was writing in the mid 17th century but it was not until 1826 that his work was printed and published in two volumes which are still in use today.
The wonderful thing is that where an area of modern Guernsey law still has its roots in Norman customary law it is not at all uncommon to start with Terrien and the Grand Coutume before looking at Le Marchant to see what he says before then turning to more modern sources - I say more modern because the next commonly looked to source is another Guernsey law author who had to wait until long after his death for his work to be printed. Laurent Carey was a Jurat of the Royal Court and wrote his manuscript in the mid-18th century; he died in 1769. His work remained in manuscript form until it was finally printed and published in 1889. The Bar had been in the habit of referring to a single manuscript deposited in the Greffe until it became evident that a work so important “devait être mis à l’abri d’accidents” as the preface says - literally “sheltered from accidents”; presumably fire or perhaps the then Greffier’s mug of coffee. The work is called Essai sur les Institutions, Lois et Coûtumes de l’Île de Guernesey and runs to 232 pages. Again Laurent Carey’s work is commonly cited and to be found in every firm’s library.
It follows that there is this incredible core of Guernsey customary law reaching back to the mid-13th century, and even further back when you consider that the Grand Coutume itself represented law and custom which had evolved over a great length of time. It is fair to say that through Terrien and the Grand Coutume we still touch the ancient Duchy of Normandy. This is the specific sense of Customary law; the only true living link with the Duchy from which Guernsey derived her special status apart from the constitution itself.
Succession and realty
The areas of Guernsey law where Norman customary law still hold sway are comparatively restricted, but nonetheless of great importance. Although Guernsey laws of succession (or inheritance) have been refined over the centuries, the underlying principles still owe a considerable amount to Norman customary law. Norman customary texts would still be considered where statute did not produce a solution.
The whole area of land law is still influenced heavily by customary law; indeed it is only since 1969 that conveyancing in Guernsey has even been carried on in English. In Sark and Jersey it is still in French, although for how long remains to be seen.
Again, for example, if you have a dispute between neighbouring landowners concerning servitudes (or easements, as they would be known in English law) such as rights of way and the like; you will soon find yourself consulting customary law texts.
Coutume Reformée
Although we have seen how Guernsey customary law was in some sense fixed in the 16th century it is nevertheless permissible to look to later Norman customary law to see how Guernsey customary law could and should evolve; albeit having to respect the 16th century starting point of L’Approbation where, for example, Jersey law need not. One therefore looks to the great commentators of the Coutume Reformée; and in the particular context of servitudes there is, for example, a treatise on the subject written by Basnage forming a part of his substantial collected works in 2 very large volumes, the last, 4th edition of which dates from 1778. Likewise authors such as Flaust, Pesnelle and Bérault.
Code civil
It was not long after that there occurred a further hiatus in Channel Island law with the French revolution and eventual introduction of the Code Civil in 1804. Normandy had not been the only region of France with its own customs. For example, Orléans and Paris also had their distinct customs. One of the purposes of the Code Civil was to unify civil legal systems in France. In that process the dominant influence was the Coutume of Paris, but Norman coutume had its influence also. In truth it seems that the various coutumes had influenced each other for centuries with the net result that the reforming synthesis of the Code Civil seems in many respects to be very familiar from a Norman point of view. It follows that the Code Civil is itself another source for contemporary Guernsey law when it can be shown that the area under consideration is customary or French law leaning; or that French law in a more general sense may have something to contribute.
It is interesting to note that, on occasion, the Guernsey Court imported wholesale parts of the Code Civil when establishing Guernsey law. There is at least one 19th century ordonnance, concerning questions relating to life interests , where the words of the Code were copied directly. Again Guernsey’s existing Evidence Law from 1865 is plainly drawn in part from the Code (again written in French). The Code itself is now in its 104th edition; and celebrated its bicentenary in 2004, which was a happy coincidence with the 8th centenary celebrations of the Islands’ status.
Pothier
Again there are areas of law where Norman customary law has very little to say. There is not much assistance to be derived from Terrien on the question of contract or the law of civil wrongs (tort law) generally. Contract law is accordingly another area where it is permissible to look to the Code Civil for ideas as to how Guernsey law should be expressed; but in this context in particular there is a French jurist whose influence is still felt strongly in both Guernsey and Jersey. His name is Robert Joseph Pothier, who lived between 1699 and 1772. Alas, his name is not well known today but he was and still is a legal superstar of the first order. His work was of profound importance and is of great interest to Channel Island lawyers especially. His first great contribution was, in effect, a massive re-editing of the compilation of Roman law made under the auspices of the Emperor Justinian in the 6th century . He also produced his own commentary on the Coutume of Orléans before then producing the work for which he is chiefly remembered, his Treatise on Obligations; essentially an extended and deeply influential study of the law of contract. In addition he wrote a number of sub-treatises, the most important of which today are his works on the contracts of sale and partnership. Guernsey law would still look closely to what Pothier says concerning any contractual issue, whilst also looking to modern French law to see whether any later development or refinement should be adopted. There is always a slight hesitation over modern French law in that the Code is itself a statute, and reformed repeatedly by statute as opposed to being more purely common law in origin, although case law has its place in French law.
It follows though that here in Guernsey we still look to this marvellous 18th century jurist who very few English lawyers will be conscious of; and yet whose work contributed a great deal to Anglo-American common law notions of contract law also. It is no accident that Pothier’s sculpted image takes its place amongst those of 23 great jurists in the Capitol building in Washington DC, the seat of the United States legislature. There are eleven figures on one side and eleven on the other; in the middle is Moses.
The influence of English law
But all this talk of Customary and French law is not to overlook the powerful influence of English law. It has to be conceded that in many areas of Guernsey law the influence of English law is almost total; this is particularly so for criminal law, tort law itself and business law where that law is statute based. For example Guernsey company law is very largely copied from English statute; and where an English statute is copied it means inevitably that English case law is also followed. English contract case law would also be influential, but less so than in other areas.
So in this single jurisdiction we may have to look to ancient Norman customary law as filtered through a 16th century French commentator, the Royal Court of the early 1580s, and a 17th century cleric as well as consider 18th century French jurists, modern French law and modern English law whilst looking over our shoulders to see what Jersey is doing with an ability to read English and French interchangeably. That makes Guernsey law very special.
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