CO885-(13-15) — Page 615

PUBLIC RECORD OFFICE

Reference :-

PEPETC.O. 885

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14 PUBLIC RECORD OFFICE, LONDON

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which was printed on pages 61 and 62 of the Parliamentary Paper, C. 4064, con- taining correspondence on ecclesiastical and educational questions in Mauritius. That that despatch was in reply to two despatches from the Governor, dated the 28th and 31st December, 1883, respectively, the former of which would be found on pages 42–44 of the same Parliamentary Paper, while the latter simply transmitted a copy of Mr. Greene's pamphlet mentioned above. Derby was unable to attach any weight to those arguments in favour of granting That it would be observed that the Earl of special or increased endowments to the Roman Catholic Church, which were based on the terms of the Capitulation, and that he did not consider that it could be maintained that these terms were to be construed as implying that the laws which existed in Mauritius in 1810 were to be for ever unchanged.

That a somewhat similar question was raised with regard to the position of the Dutch Church in Ceylon in 1881, under Article 18 of the Capitulation Treaty of 1796, and Sir Edward Wingfield was to refer us to the opinion* given by the then Law Officers (Sir Henry James and Sir Farrar Herschell) and Sir J. Parker Deane (No. 256 of 1st June, 1881), which was to the effect that the 18th Article of the Capitulation could not be deemed binding upon the British Government for all time, and in, all circumstances, even if the state of things which existed at the time of the Capitulation had continued.

That Sir Edward Wingfield was to request that we would take the papers trans- mitted to us into our consideration, and that we would favour you with our advice on the following points:-

1. Whether the Arrêté of the Assemblée Générale of Mauritius of 17th February, 1791, and Article 1 of the Proclamation of 28th December, 1810 (Code Farquhar, No. 14), are in force in the Island, and should be included in Schedule A. to the Draft Law Revision Ordinauce, or whether they are obsolete or impliedly repealed, and should be excluded therefrom.

2. Whether the Capitulation of 3rd December, 1810, or any, and if so what, part of is in force in the Island, and whether it, or any, and if so what, part, of it should

the same,

be included in Schedule A. to the Draft Law Revision Ordinance.

3. And, generally.

We have taken the papers into our consideration, and in obe lience to your commands

have the honour to

Report-

1 and 2. That we are of opinion that Article 1 of the Proclamation of 28th December, 1810, is still in force in the Island, except in so far as it has been modified by subsequent legislation, as by the Proclamation of 30th March, 1825, the Ordinance, No. 2, of 4th October, 1825, the Ordinance. No. 4, of 10th December, 1825. Ordinance, No. 7, of 1864, No. 14, of 1865, No. 27, of 1890, &c.

We do not think that the Capitulation is part of the law of the Island. nature of a convention with the representative of the French Government as to the terins It is in the of surrender. These terms were carried out by the Proclamations of 5th and 28th December, 1810. The Capitulation cannot be treated as a charter stereotyping the laws of the Island.

We are disposed to think. upon the materials before us, that the Arrêté of 17th February, 1791, is still in force.

It does not appear that it was entirely superseded by the Arrêté of 1800. quoted on page 11 of Mr. Greene's pamphlet. us have been greatly exaggerated; it is left to the State to fix the amount of the The effect of the Arrêté of 1791 appears to maintenance to be provided, and this is regulated by the Act of 1890.

We cannot,

however, say, upon the materials at present before us, that the Arrêté of 1791, recognising the principle of a right to some endowment, can be treated as entirely obsolete. It was part, apparently, of the law of the Island at the time of the cession, and has not been repealed.

3. Generally.

Revision should, we think, receive very full consideration.

The expediency of proceeding with this measure of Statute Law

It raises a question which apparently excites very keen feeling as to the Arrêté of 1791. If that Arrêté be inserted in the schedule it would probably be treated as laying the foundation of fresh demands on the part of the Roman Catholic Church in the Island. If that Arrêté be excluded from the schedule it may occasion a good deal of angry feeling.

The question whether the Capitulation should be included is also one which, from political point of view, may be of importance. If it be included it may be regarded us a sort of recognition that it is an inviolable charter; if it be left out

if that there is some sinister design behind,

may be supposer!

Unless the need for Statute Law Revision is very urgent in Mauritius, a point upon which we can offer nu opinion, we submit for the consideration of the authorities whether it is desirable to proceed with a measure which involves raising points of no great intrinsic importance, but which may excite a good deal of public feeling.

The Right Hon. J. Chamberlain, M.I'.. &c.,

&c.

&c..

We have, &c.,

RICHARD E. WEBSTER. ROBERT B. FINLAY.

• No. 256 in Vol. III.