ཟ| ?། ཟ། །
PUBLIC RECORD OFFICE
C.O. 8
Reference :-
885
15 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
2
second time to the Acting Chief Justice through a friend in St. Helena for a Writ of Prohibition. That the application was, however, again refused, and in these circum- stances he had asked the Secretary of State to interfere on his behalf.
That you apprehended that Mr. Barraclough's proper course would have been either to have appealed to the Metropolitan against the Vicar-General's judgment within the statutory period of 90 days as provided by Ordinance 2 of 1867, or to have appealed to the Judicial Committee of the Privy Council against the refusal of the Acting Chief Justice to issue a Writ of Prohibition.
That we would observe that you had confined yourself hitherto to the statement. that the Ecclesiastical Court appeared to have been properly constituted, and that Mr. Barraclough might have appealed to the Metropolitan against its decision; but as -it was possible that attention might be called to the matter in Parliament, you would be
glad to be guided by our opinion in your further reply.
That Mr. Antrobus was to request that we would take the papers into our consideration, and to favour you with our opinion upon the following points :-
(1) Would it be a suffi'ient answer to Mr. Barraclough to say that you could not interfere with the decision of the Supreme Court of St. Helena, and that as Mr. Barraclough had not appealed to the Metropolitan, his only remedy appeared to be an appeal to the Judicial Committee of the Privy Council against the judgment of the Vicar-General.
(2) If not, was the Acting Chief Justice justified in refusing to issue a Writ of Prohibition against the Vicar-General's exercise of his jurisdiction in the case of Wood r. Barraclough.
(3) What action, if any, should be taken by the Secretary of State with reference to the representations of Mr. Barraclough.
(4), What reply should be ma le to Mr. Barraclough.
(5) Generally,
We have taken the matter into our consideration, and in obedience to your commands have the honour to
Report.
1. That the Ecclesiastical Courts of St. Helena possessing jurisdiction recognised by law, and liable to prohibition in the event of their attempting to exceed their jurisdiction, came to an end on the death of Bishop Welby in January, 1899.
The so-called Court of the Vicar-General of the Bishop of Capetown, acting under the Canons of the Church of South Africa, is merely a part of the machinery of a Voluntary Society, to the rules of which Mr. Barraclough appears to have submitted himself (see Vicar-General's judgment). This Court is only a tribunal of arbitration.
It has no jurisdiction" and is not liable to prohibition, and no appeal lies from its decisions to the Judicial Committee of the Privy Council, An appeal, however, appears to be allowed from it to a Provincial Court (a tribunal of a similar kind) constituted under the Canons of the Church of South Africa (Canon XXX., p. 50). Subje:t to this appeaMr. Barraclough appears to have undertaken to accept the, decision of the Vicar-General (Canon XI. p. 301. But for this undertaking it would be open to Mr. Barraclough to bring an action for an injunction to restrain the carrying out of the sentence on the ground that it is not in accordance with the Rules and Canons which form the contract by which he is bound in-relation to the Church of South Africa. There would appear to be grave reason to doubt whether either of the grounds on which the Vicar-tioneral proceeded is well founded in ecclesiastical law and fair construction of the Canons of the Church of South Africn.
We think it will be a sufficient answer to Mr. Barraclough to say that as the Church of England is, not now connected with the State in St. Helena, and as Mr. Barraclough appears to have undertaken to obey the regulations of the Church of South Africa, the dispute appears to concern Mr. Barraclough's position as a member of that Church, which is a voluntary body, having its own constitution and machinery of internal administration entirely independent of the State, and that Mr. Barraclough's remedy (if any) must be sought under the rules of this Society. It may be pointed out that the Supreme Court of St. Helena has no jurisdiction to prohibit" the proceedings of a Voluntary Society, such as the Church of South Africa, and that the Secretary of State canpot-interfere with its decision in the present case, which appears to have been right, but that possibly proceedings in the Supreme Court of another kind for an injunction on the ground that the Vicar-General's sentence is a violation of the
3
rules of the Voluntary Society may be open to Mr. Barraclough, although the Secretary of State can express no opinion on this point, which is one for Mr. Barraclough's advisers, and depends on the construction to be put on his submission under Canon XI. to the tribunals of his Church.
2. Yes:
3. We do not think the Secretary of State should take any further action in the
matter.
4. See answer to 1.
5. We have nothing to add.
The Right Honourable J. Chamberlain, M.P..
&c..
&c.,
&c.
We have, &c..
RICHARD E. WEBSTER,
ROBERT B. FINLAY.
}
F