Colquhoun (The State) v Darcy and Other

JurisdictionIreland
Judgment Date11 December 1936
Date11 December 1936
CourtHigh Court (Irish Free State)
The State (Colquhoun) v. D'Arcy and Others.
THE STATE (at the prosecution of the REV. SAMUEL R. S. COLQUHOUN)
and
THE MOST REV. CHARLES FREDERICK D'ARCY AND OTHERS, being members of the Court of the General Synod of the Church of Ireland (1).

High Court.

Prohibition - Proprietary Church - Incumbent an ordained priest of the Church of Ireland - Jurisdiction of the Court of the General Synod of the Church of Ireland - Whether subject to prohibition - Irish Church Act, 1869 (32 & 33 Vict. c. 42), sects. 13, 19, 20, 21, 69, 70, 72 - Constitution of the Church of Ireland, chap. iv., sects. 52, 58, chap. viii., sects. 28, 67, chap. ix., sect. 24.

Held by the High Court (Sullivan P., Hanna and O'Byrne JJ.), that prohibition will only issue to a court or tribunal or body of persons, other than the Superior Courts, having, under statute or common law, authority to impose liabilities upon, or to determine questions affecting the rights of, individuals, and having the duty to act judicially. The Court of the General Synod of the Church of Ireland derives its authority solely from the consent or agreement of the members of that Church and is, therefore, not a tribunal to which an order of prohibition will lie, though the legality of its decisions may be otherwise questioned and determined in the High Court of Justice.

Prohibition.

The prosecutor, the Rev. Samuel Colquhoun, applied to make absolute, notwithstanding cause shown, a conditional order for prohibition, directed to the Court of the General Synod of the Church of Ireland and the several members thereof, prohibiting them from hearing and determining certain charges filed against him in the said Court on the grounds that the said Court had no jurisdiction.

No cause was shown on behalf of the said Court against making the said conditional order absolute but, liberty having been obtained by the petitioners who preferred the said charges against the prosecutor, they showed cause.

The facts, as stated in the affidavit of William Henry Robinson, Registrar of the Court of the General Synod, and in the affidavit of the prosecutor, the latter filed in support of the conditional order, are sufficiently set out in the judgment of Sullivan P.

Cur. adv. vult.

Sullivan P.:—

The prosecutor in this matter, the Revd. Samuel Randall Sproule Colquhoun, is a minister of the Church of Ireland, and vicar of the Church of St. John the Evangelist, Sandymount, to which office he was instituted on the 7th June, 1930, by the Most Revd. John Allen Fitzgerald Gregg, the Protestant Archbishop of Dublin. That church is a proprietary church, erected pursuant to the provisions of the Church Building Acts by Mr. Sidney Herbert and endowed by him by deed of endowment, dated the 1st April, 1850. The object of those Acts was, as stated by Holmes L.J. in Le Fanu v. Richardson(1):—"to enable and encourage the erection and endowment by private enterprise of churches and chapels in which the liturgy and rites of the United Churches of England and Ireland as by law established should be used and observed, and which would be subject to the spiritual jurisdiction of the bishop of the diocese. For this purpose power was given to persons desirous of promoting such work to vest in trustees money and property, and to declare the trusts thereof, subject to the provisions in other respects of the statutes for the time being in force."

On the 13th December, 1934, Frederick W. Christie, William Chamney, Frederick A. G. Davis, William H. Going, W. Hamilton Kenny and Percival B. Morrison, being members and communicants of the Church of Ireland, presented a petition to the Court of the General Synod of the Church of Ireland alleging that the Revd. Mr. Colquhoun, as such minister and vicar as aforesaid, on divers occasions in the said church caused or permitted certain acts not prescribed in the Book of Common Prayer as altered by the General Synod or the Canons of the Church of Ireland, and asking that the Revd. Mr. Colquhoun be duly brought to trial. On the 28th December, 1934, the Revd. Mr. Colquhoun filed an answer to that petition in which he denied the jurisdiction of the Court of the General Synod to hear or adjudicate upon the charges alleged against him. On the 8th March, 1935, the respondents in this matter sat as the Court of the General Synod to decide the question of jurisdiction raised by that answer, and they decided that they had jurisdiction to entertain the charges alleged in the petition.

On the 29th March, 1935, the prosecutor obtained from this Court an order that an order of prohibition do issue, directed to the Court of the General Synod and to the

members thereof, prohibiting the said court and the said members and each of them from proceeding with the hearing and determination of the charges preferred against the prosecutor filed in the said court on the 13th December, 1934, on the ground that the said court has no jurisdiction to entertain, hear or determine the charges in the said petition set out or any of them, unless cause be shown to the contrary within ten days after service of the order upon William Henry Robinson, Registrar of the Court of the General Synod as such officer and on behalf of the members of the said court. On the 31st May, 1935, the petitioners in the Court of the General Synod applied for and obtained from this Court an order that they be at liberty to show cause against the conditional order, and declaring that the affidavit of William Henry Robinson filed on 15th April, 1935, be deemed to be cause shown on behalf of the said petitioners. The prosecutor now applies that the conditional order be made absolute notwithstanding such cause shown.

On the hearing of this motion counsel on behalf of the prosecutor contended:—

(1.) That the decision of the questions raised by the petition depends upon the construction, meaning and effect of the deed of endowment under which the Church of St. John the Evangelist, Sandymount, was erected and endowed, and by which it is managed and controlled, and that the Court of the General Synod has no authority or jurisdiction to adjudicate upon such questions.

(2.) That prohibition lies to the Court of the General Synod.

I propose to consider first the latter proposition, and this necessitates a consideration of the origin and nature of the court in question.

The Act of Union between Great Britain and Ireland, Article 5, united into one Protestant Episcopal Church the Churches of England and Ireland as then by law established, and such United Church of England and Ireland became the established church of this country. The union so effected was dissolved by the Irish Church Act, 1869. Sect. 2 of that Act provides that:—

"On and after the 1st day of January, 1871, the said union created by Act of Parliament between the Churches of England and Ireland shall be dissolved, and the said Church of Ireland, hereinafter referred to as 'the said Church,' shall cease to be established by law."

The status of a Church not established by law is, in the words of Barry J. in O'Keeffe v. Cullen(1) "the status of a voluntary association the members of which subscribe or assent to certain rules and regulations, and bind themselves to each other to conform to certain laws and principles, the obligation to such conformity and observance resting wholly in the mutual contract of the members, enforceable only as matter of contract by the ordinary tribunals of the land when brought within their cognizance and not enforceable under any independnet coercive jurisdiction."

That being the position of the Church of Ireland, the Legislature recognised that the members of the Church should frame its constitution and make provision for its government and maintenance, and that this would necessitate that they should meet together from time to time for the purpose of so doing, and accordingly, to ensure that there should be no legal obstacle which would prevent or interfere with such meetings, sect. 19 of the Act provided that:—

"From and after the passing of this Act there shall be repealed and determined any Act of Parliament, law, or custom whereby the archbishops, bishops, clergy, or laity of the said Church are prohibited from holding assemblies, synods, or conventions, or electing representatives thereto, for the purpose of making rules for the well-being and ordering of the said Church; and nothing in any Act, law, or custom shall prevent the bishops, the clergy and laity of the said Church, by such representatives, lay and clerical, and to be elected as they the said bishops, clergy, and laity shall appoint, from meeting in general synod or convention, and in such synod or convention framing constitutions and regulations for the general management and good government of the said Church and property and affairs thereof, and the future representation of the members thereof in diocesan synods, general convention, or otherwise."

Notwithstanding the arguments that were addressed to us by counsel for the prosecutor, I cannot give to the very plain language of that section any meaning beyond that which, to my mind, it obviously bears. I have no doubt that the only effect of that section was that the assemblies, synods, or conventions contemplated by the section could thenceforth be held without infringing the law.

The position of the Church of Ireland as regards the

existing ecclesiastical law and the articles, rites and discipline of the said Church were dealt with by sect. 20. That section provided that:—

"The present ecclesiastical law of Ireland, and the present articles, doctrines, rites, rules, discipline, and ordinances of the said Church, with and subject to such (if any) modification or alteration as after the 1st day of January, 1871, may be duly made therein, according to the constitution of the said Church for the time being, shall be deemed to be binding upon the members for the time being thereof in the...

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