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inhibition placed upon Canon Barraclough, and restoring him to all the benefits of his preferment.

That on the 24th June the Bishop, disregarding the proceedings in the Supreme Court, held his Consistory Court at the Cathedral, though warned by the Chief Justice that the consequences would be serious, and declared Canon Barraclough's benefice vacant under section I of the Clergy Discipline Act.

That, thereupon, the Acting Chief Justice cited the Bishop to appear before him to answer for the contempt of Court committed in holding his Consistory Court, and, after a lengthy hearing, the Bishop was fined £49 19s. 6d.—the fine to be levied within ninety days, and a warning was added that it might be increased if submission was not made to the Court.

That against that fine, and also apparently against the decision of the Acting Chief Justice in the proceedings on the hearing of the Rule nisi, the Bishop had expressed his intention of appealing to the Judicial Committee of the Privy Council,

That Ordinance 3 of 1895 provided by section 23, that subject to all local Ordinances and Orders in Council in force, for the time being, for the time being, as was applicable to local circumstances, was and should be in force so much of the law of England in St. Helena, so far as it was suitable and appropriate, and subject to such qualifications as local circumstances rendered necessary.

That the jurisdiction of the Bishop of St. Helena in ecclesiastical matters of discipline was derived from Ordinance No. 2 of 1867.

That Mr. F. Graham was to request that we would take the papers into our consideration, and favour you with our opinion upon the following points:

1. Whether the Clergy Discipline Act. 1892. was, by virtue of section 23 of Ordinance 3 of 1895, in force in St. Helena, and, if so, whether its provisions were supplementary to, or in substitution of, the provisions of Ordinance 2 of 1867 ?

2. Whether on the assumption that the Clergy Discipline Act was in force in St. Helena, the Bishop was justified in depriving Canon Barraclough under section 1. subsection 1 (c), thereof without trial?

3. Whether, on the same assumption, Mr. Barraclough's incapacity to hold prefer- ment had been cured under section 6. subsection 2 (b), of the Clergy Discipline Act by his appointment to a benefice in St. Helena ?

4. Whether the Supreme Court had power to prohibit the Bishop from holding his Consistory Court on the ground that his proceedings were based on a misconstruction of the Clergy Discipline Act ?

5. Whether the Bishop committed a contempt of Court in holding his Consistory Court after the issue of the prohibition by the Supreme Court ?

6. Whether the fine of £19 -198, 67, imposed upon the Bishop should be remitted ? And, generally.

We have taken the papers into our consideration, and, in obedience to your commands, have the honour to

to

Report-

1. That we think that the Clergy Discipline Act, 1892, is not in force in St Helena. The 23rd section of the Ordinance of 1895 applies the law of England only subject

any

local Ordinances and so far as it is applicable to local circumstances. The Clergy Discipline Act. 1892, is framed in terms which show clearly that it is applicable only to the Church in England and Wales, and St. Helena had already the Ordinance of 1867 making provision for clerical discipline. But, even if the Act could be considered as to any extent in force in St. Helena by virtue of the 23rd section of the Ordinance of 1895, it can have no application to the case of Canon Burraclougir, who had been instituted in 1894. The 23rd section cannot possibly be read as having a retrospective operation so as to disqualify a clergyman who had been lawtully instituted in 1894. The Act itself applies to offences committed before the Act only as regards prosecution and trial under the Act- -Section 14 (2).

We should add that when the Canon was instituted in 1894 it was apparently quite well known that he had been found guilty of adultery, and the fact, first discovered in 1897, that he was a married man and was divorce for cruelty and adultery is, from the point of view of the Clergy Discipline Act, 1892, quite immaterial.

2. On this assumption, the Bishop was bound to give the Canon an opportunity of being heard on the question of alleged disqualification. The Canon had been found guilty of adultery before his institution. given.

This opportunity, however, was apparently

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3. No. Section 6 (2) (b) is-in its terms-applicable, and, even if the Bishop of Cape Town as Metropolitan could be considered as corresponding to the Archbishop of the Province for the purposes of the subsection, its terms do not appear to have been satisfied.

4. Yes. The Bishop was affecting to exercise a jurisdiction not competent to him. and was, in our opinion, properly restrained.

5. Yes. 6. No.

Generally. The Bishop should be left to take such proceedings as he may be advised to take by way of appeal. It is of the greatest possible importance that the right of Supreme Courts to restrain usurpation of jurisdiction should, in suitable cases. be

exercised.

The Ecclesiastical Courts have their own proper sphere, and, so long as they keep - within it, cannot be interfered with. The Bishop of St. Helena is, however, now asserting a right not to try for an ecclesiastical offence but to deprive without trial of the facts on account of an alleged disqualification under the Clergy Discipline Act. 1892. If our view as to that Act be right he is attempting to exercise a jurisdiction which the law has not conferred upon him, but he has the opportunity, if he be so advised, of taking steps to have the point devided by the Privy Council,

We have, &c..

The Right Honourable Josephi Chamberlain, M.P.. &c..

&c.

&..

RICHARD E. WEBSTER.

ROBERT B. FINLAY.

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חווורנ

Reference :-

C.O.885

14 PUBLIC RECORD OFFICE, LONDON

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