Committee--Report-Convention (Ireland) Act | residentiaryship of York, there had been CHURCH OF ENGLAND-THE CHAPTER OBSERVATIONS. QUESTION. any separation between the prebend and the residentiaryship, which together made up the position of canon residentiary of York. He thought there could be but one feeling-that this was a state of things inconsistent with the high ecclesiastical rank of the Cathedral Church of York. He could not but believe there must be some misapprehension with regard to this case. The most rev. Primate could not have contemplated that Canon Fleming would be deprived of the rights and privileges of a member of the chapter; but Mr. Fleming had not been able to exercise the right to preach in his turn in the cathedral, and it was doubtful even whether his vote in the chapter had been recorded. He thought their Lordships would agree that this state of things in the cathedral ought not to exist. The question, then was, what was the remedy for such a state of affairs? He had been informed on high authority that the proper thing to do was to apply to the Court of Queen's Bench to issue a mandamus to the dean and chapter of York; but he would venture to suggest a remedy free from any of the anxiety attending a mandamus, and which required no suit at law. His remedy was that there should be a conciliatory re rev. Primate should appoint Canon Fleming to the next prebendal vacancy. He was supported in his view by a letter he had received from one of the deans of the old foundation. The letter stated LORD HAMPTON, in rising to call attention to the painful position of the Reverend James Fleming, as a canon residentiary of York Cathedral, in being deprived of the rights and privileges of a member of the chapter; and to ask the First Lord of the Treasury whether the difficulties which have arisen with respect to Canon Fleming's position will be referred for consideration by the proposed Royal Commission, said, that Canon Fleming now found himself in a very painful, as well as unprecedented position; and in order to avoid the consequences of that position, he was contemplating a resignation of the office which he had received from the Crown. The public generally were aware of the fact that in cathedrals of the old foundation the office of canon residentiary was composed of two parts-consideration of the case, and the most the one the canonry, and the other the prebendary, the latter of which gave to the canon residentiary his rights to a seat in the chapter. York Cathedral | was one of the old foundations; but it had been the invariable custom, when a canon residentiary fell vacant, for one person to be appointed to both the canonry and the prebendary. By ancient custom rather than by law, when a clergyman was promoted to a Bishopric, the appointment to fill up the vacancy caused by the promotion fell to the Crown. The Crown appointed the Rev. James Fleming to the canonry, but the most rev. Primate (the Archbishop of York) intervened, and appointed the hon. and rev. Mr. Forester to the prebendal stall which had been vacated by the promotion to the Bishopric. He (Lord Hampton) believed he might say, without fear of contradiction, that the course taken by the most rev. Primate, whatever might have been his motives, or his views of the question, was entirely without precedent-that there had been no case in which, upon the filling of the "I hold that the Bishop or the Crown have a perfect right to nominate any spiritual person, although not a prependary, to a vacant can n residentiaryship. It is of great importance to the Bishop and the Crown to contend for this privilege, for it widens the area of their choice. But this granted, I submit it is well for the Bishop to give a prebendal stall to such an incoming canon (whether appointed by the Crown or by himself) as soon as possible, and so reduce any conflict between 3 & 4 Viet. and the statutes of an old foundation cathedral as much as possible. It would be well to join a prebendal stall indissolubly with each canon residentiaryship. so that they might fall vacant together, and a new canon (whether appointed by the Bishop or the Crown) become at once a member of the prebendal body." In conclusion, he begged to ask the First Lord of the Treasury, Whether the difficulties which had arisen with respect to Canon Fleming's position would be referred for consideration by the proposed Royal Commission? THE EARL OF BEACONSFIELD: | trative of the law which they laid down, There can be no doubt that this is, the Law Officers referred to a then recent as my noble Friend (Lord Hampton) case, the "Queen v. the Dean of Herehas said, a complicated case; but it is ford." All this was communicated to the only complicated by matters being intro- Chapter, and no further difficulties ocduced into its consideration which really curred. Canon Forester was appointed, have nothing to do with the point which and enjoyed his rights and privileges we have to decide. The case to which as a canon. A remarkable circumstance my noble Friend has called the atten- is that a considerable time afterwards tion of your Lordships cannot, as he - some months subsequently-I_rehas said, be fairly understood without ceived a letter from the most rev. Prisome reference to a previous appoint- mate the Archbishop of the Province, ment to a canonry in the same chapter of informing me that he had, in the first York. When Dr. Basil Jones was ap- instance, from want of knowledge, given pointed to the See of Llandaff, the pre- me inaccurate advice as to the order of bendal stall and residentiary canonry, the appointments; and that he was adtogether with the chancellorship of the vised that by the law, as it now stood, the cathedral, which he had held, became appointment of every prebend not in vacant; and I asked the most rev. receipt of emolument was reserved to Primate the Archbishop of the Province the Archbishop. That was rather a (the Archbishop of York) as to the order startling announcement, and as the only in which the three appointments should object which the Government could be filled up. The answer which I re- have was to ascertain the truth and to ceived was that the prebend was to be defend the just Prerogative of the Crown, filled first, then the chancellorship of I thought the best course to adopt was the cathedral, and next the canonry. I again to submit the new point to the then instructed the Secretary of State Law Officers. They considered it, and to take the necessary steps; but when they decided that the Archbishop was it came for the most rev. Primate to per- quite right in his interpretation of the form his part of the duty, he reversed law. It appears that after the Act which the order which he had recommended I have already quoted was placed upon me to adopt, and nominated the hon. the Statute Book-either in the followand rev. Mr. Forester to the canonry, ing year, or two years afterwards, in the before he issued his mandate for the reign of her present Majesty an Act appointment of the same hon. and rev. was passed which reserved, as the Archgentleman to a prebendal stall and to bishop stated, all the prebendaries not the chancellorship of the cathedral. connected with emolument to the ArchSince then, the Chapter have demurred bishop. There was no controversy at to the order in which the appointments the time to which I am now referring, were made, and not only questioned the the question as to Canon Forester having propriety of what had been done, but been settled; but, shortly after this, absolutely declared that under no cir- another vacancy occurred by Her Macumstances should any clergyman be jesty nominating Dr. Thorold to the See appointed to a canonry who had not of Rochester. He was canon residenpreviously been a prebend of the ca- tiary of the Chapter of York. At that thedral. This course being one which, time, the most rev. Primate wrote to me if correct, would have limited the power announcing that he should exercise his of the Crown as patron, which power it privilege, which was not contested; and was my duty to defend, I caused a case after the Law Officers had given their to be submitted to the Law Officers of decision, I felt it my duty to write to the Crown. They considered it, and him, acknowledging that the position they decided that the course taken by which he had adopted was recognized the Chapter was quite erroneous-that by the Government, and that, in future, an Act had passed the 2 & 3 Vict. c. I certainly should not contest the ap113-which had terminated the qualifi- pointments. By the appointment of Dr. cation for holding a canonry which the Thorold, a canon residentiaryship beChapter had insisted upon, they them- came vacant. The Archbishop wrote selves being probably not aware of the to me to say that, in accordance with existence of such an Act. But the his previous announcement, with the matter had been decided, and as illus- opinion of the Law Officers, and with my letter which had sanctioned the course, he should exercise his privilege and appoint a prebendary-leaving me, of course, to avail myself of the right of exercising, with the consent of Her Majesty, the Royal Prerogative of appointment to the canonry. Under these circumstances, I felt it my duty to recommend Her Majesty to appoint Dr. Fleming to the canonry, in recognition of his great ability, zeal, and high character, and in a full conviction that he would do further honour to the sacred Order, of which he was already a distinguished member. This being so, one would have thought that if the Chapter held the strong opinions which my noble Friend now attributes to them they would have called a meeting, and, after arriving at some strong opinion, would have communicated it to me; but they did nothing of the kind, and, as far as I know, the only thing done was a few individual protests until after the canon had been installed, and then the Chapter expressed their opinion that their views should be submitted to the Law Officers of the Crown. Your Lordships must be aware that it is not customary to allow strangers to submit their cases, as matter of course, to the Law Officers of the Crown. Generally, it is considered to be the privilege of Her Majesty's Ministers, when in doubt, to fall back upon those gentlemen; but I knew that corporations, and especially ecclesiastical corporations, are of a sensitive character, and, therefore, I determined to meet their views in every possible manner. I wrote to the Chapter of York, telling them that if they would have their case prepared by themselves it should be submitted to the Law Officers, and that I would authorize some gentleman, on their part, to see all the papers and to inspect the opinions when they were given. The Law Officers decided distinctly against the position which the Dean and Chapter of York had taken up. They decided according to what they considered to be the clear intention of the Act referred to by the most rev. Primate-not viewing it in any way as a question on which there could be any doubt. I think your Lordships will be rather astonished that the matter did not then rest; because, although it was not a formal arbitrament, yet still one might have morally expected that the decision of the Law The Earl of Beaconsfield Officers would have been accepted by the Chapter. But that was not the case. The opinion given by the Law Officers was entirely adverse to the claim of the Dean and Chapter, and instead of submitting to it, they passed at last this resolution "That the recent appointment of the Rev. James Fleming to the office of canon residentiary, he not having been previously appointed a member of the prebendary body, is, in the opinion of high legal authorities, consulted at different times by the Dean and Chapter of York, likely seriously to affect the constitution of the cathedral. The Dean and Chapter, therefore, deem it expedient that the points in debate should be referred to a Court of Law, so that a conclusive decision may be obtained on a matter of such importance." What were we to do under these circumstances? There was only one interpretation to put upon them. We were perfectly ready that the matter should be settled by a Court of Law, if the decision of such a Court was deemed necessary by the Dean and Chapter. I called upon the Solicitor to the Treasury to put himself into communication with the legal advisers of the Chapter, so as to see how the matter could be brought before the Queen's Bench. A long time elapsed, and much correspondence passed between the Solicitor to the Treasury and persons on behalf of the Chapter; and, after a long time, the Solicitor to the Treasury said that it was totally impossible to induce the Chapter of York to agree to any basis upon which a legal point could be raised and the decision of the High Court arrived at, and that it was quite clear to him that they had no wish to have the decision of a Court of Law. They were, in fact— 66 'Willing to wound, and yet afraid to strike." Your Lordships should observe that it was the Dean and Chapter who first started the idea of having the decision of a Court of Law. It was not Her Majesty's Government. I should mention that nothing could be so simple as to obtain a legal decision. The Dean and Chapter had only to refuse Canon Fleming a vote upon any occasion when a vote was taken in the Chapter, or to inhibit him from preaching, and the whole question could then have been submitted to the Court of Queen's Bench. The Dean and Chapter, however, would never make any movement of the kind; and as Her Majesty's Government were advised by the Law Officers of the Crown | are denied him by the Dean and Chapter, that the appointment of Mr. Fleming to I am ready to advise that he shall have the canonry was perfectly legal, they those rights and privileges asserted. declined to take any further step. Cer- Before I do so, however, his rights must tainly, when I heard from my noble be denied him. The Dean and Chapter Friend that the question which he have involved us in a most painful and has brought before your Lordships is lengthy correspondence-painful, only, a most painful question, and that because it is lengthy; but they have no there is a chance, in consequence of its case whatever. They are really setting having been raised, of Canon Fleming's up the memory of an ancient custom resigning the important and well-de- against the statute law of the Realm. served preferment which he has gained, No one can be more interested than myI must say that nothing could give self in Mr. Fleming's possession of all me more pain than if a man so dis- his rights and privileges, as I am retinguished were by any misunderstand-sponsible for having advised the Crown ing between the most rev. Primate to nominate that gentleman to his post. the Archbishop of the Province and the I believe he will be an honour to the Dean and Chapter to be deprived of a position which he occupies; and if any position which he is calculated eminently member of the Chapter of York attacks to adorn. I will ask your Lordships' his rights and privileges-if they prepermission to read a few questions which vent him from voting when there is a I have placed upon paper, and which meeting of the Chapter, or if they prewill make the exact situation of affairs vent him from residing or preaching, clear. Are the privileges of Canon or in any way impugn the undoubted Fleming denied? First, as to his vote. and legal rights which he possesses as In a letter dated the 3rd of October, canon residentiary of York-I am the 1877, Mr. Fleming writesperson who will be first ready to take up his cause. "I claimed my place in the chapter to-day and voted. The Dean allowed me to vote, for I asked him whether he acknowledged my vote, and he replied "Certainly.'" As to Mr. Fleming's stipend, he has always been paid a stipend. As to his residence, he has resided regularly. As to his preaching and this is important, for he is one of the most eloquent preachers I have ever listened to -well, Mr. Fleming has preached, though there did appear an anonymous paragraph which said that he did so only by courtesy, but which was not traced to any authority. The Law Officers assert that Canon Fleming's admission has been complete and formal, and that no complaint can be made based upon the form of the oaths of admission. Under these circumstances, what is the conclusion that it seems must inevitably be drawn? It is that Mr. Fleming is as good a canon as any canon of any cathedral, and that he enjoys all his privileges. As to the conduct of the most rev. Primate the Archbishop of the Province, it is clear that, as far as his communication with the Government has gone, he has acted under legal advice. My Lords, I can only say, if Mr. Fleming is placed in a painful position, that I am here to defend him; and that if his rights and privileges are not admitted or, at least, THE ARCHBISHOP OF YORK said, he only rose to say a few words, lest the noble Lord who had brought this subject before the House (Lord Hampton) should think his silence disrespectful. This was not a new controversy, for it had, in fact, been going on for 15 years. He would quote several instances which showed that that was the case. The first occurred in 1864, when the Dean. and Chapter ignored the Act of Parliament altogether, and elected a canon by the old process, under which nobody was collated as a residentiary canon, but under which one went through the process of "protesting one's residence,' and thus became a residentiary canon. The Act of Parliament provided that any priest who had been in Priest's Orders for six years could be collated a canon residentiary; but the Dean and Chapter preferred their own custom of only making prebendaries canons residentiary. He had taken legal advice in reference to this matter, and those whom he had consulted, in every case said that the statute, in its plain, obvious meaning, did away with the ancient custom. Dr. Jones was collated in July, 1873, but not installed, and the same course was adopted in the next casenamely, that of Dr. Thorold in February, 1874. In that which followed, Mr. | respondence with the noble Earl at the Forester was admitted in December, head of the Government (the Earl of 1874, and without being a prebendary Beaconsfield), the Dean and Chapter used he was installed-the first case of the some expression of this kind-" We kind on record. But there, it was known cannot admit we have done what we that if installation was refused, legal have not done"-that was, they could not proceedings would be adopted; and then admit that they had refused the vote. followed the case so fully explained by Well, according to that, Mr. Fleming the noble Earl (the Earl of Beaconsfield). had his vote; and, in one point, he had The question, which had just been so lu- taken the matter in rather a wrong minously dealt with, might be reduced to point of view. He was a man of great this-had a canon so appointed a right eminence, and the choice of the Crown to vote in chapter, and whether any but might well fall upon him. Since Mr. residentiary canons had a right to vote? Fleming had been in York, notwithIn the Act it was provided that a standing the somewhat cold and sus"canon" should be understood through-picious atmosphere of the place, no 'residentiary canon," and it would be seen by the Act that he had full power to vote in the chapter. In the present case, the Dean and Chapter obtained a doubtful opinion from Sir Robert Phillimore on the whole case; but, in reply to the question out as a "Would such residentiary become by virtue of his office a member of Chapter, not having ever been elected to a vacant prebend-in fact, has the Archbishop of York the power to increase the number of members of the chapter?" -He said "I incline to the opinion that he would be a member of the Chapter." He (the Archbishop of York) had been applied to as to whether he would not present Mr. Fleming to the vacant prebend. Well, he did not see how his doing so would remove the difficulty. In 1877 Mr. Fleming voted, and he either voted in his right, or he did not. If he did not vote in his own right, he was an intruder; and his receiving, in 1879, a perfect appointment would not mend the matter. It was not a question whether he had the right of appointment, or the Crown, or the Dean and Chapter; the question was, whether the matter was to remain in a state of muddle? He had asked Mr. Fleming whether his vote was taken, and he said that there was so much confusion, so many people were talking at once, that he could not say whether his vote had or had not been taken. Then he asked the same question of the dean, and he replied that he had prepared a statement, which he would send him, and it was sent to him, and to many of their Lordships as well. It made out that he (the Archbishop of York) had done some very sad things, with very painful effects; but it did not say a word as to whether Mr. Fleming had voted. In their corThe Archbishop of York person had so rapidly gained the hearts and affections of the people as Mr. Fleming had. He was not aware that he had been forbidden to preach; but if that were so, he (the Archbishop of York) would undertake to find him enough preaching within the ambit of York to last him till that time next year. But Mr. Fleming had taken the matter in the painful point of view. After all, it was a principle of law. Why had he not appointed Mr. Fleming to the vacant prebendal stall? Because there was not the least necessity for it. He had now every possible privilege he could then have; and it was not desirable, after 15 years, that this dispute should be prolonged. Up to his appointment, he had not seen Mr. Fleming, though he had known him very well ever since. He could not appoint a clergyman he did not know. The Crown looked over a broader space; he was concerned only with his own diocese, and appointed Mr. Landon, who bore a distinguished name. The question, as he said, was one of dry law, and it was very undesirable that this scandal, for it had almost become a scandal, should go on festering among them. The course taken by the Crown appeared to him to be perfectly straightforward and reasonable. The Dean and Chapter had been offered every facility for raising the question, and they had refused to do so. It was for their Lordships to say whether the case was one for a new Act of Parliament. For his part, a new Act did not appear to be necessary. There was another case which was on all fours with the present, that of the Dean and Chapter of Chichester. The Dean and Chapter belonged to an old cathedral. The present Bishop took precisely the same course he (the Arch |