§ 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—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 boon 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 1888 residentiaryship of York, there had been 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 reconsideration of the case, and the most 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—I hold that the Bishop or the Crown have a perfect right to nominate any spiritual person, although not a prependary, to a vacant canon 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 &c 4 Vict. 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
There can be no doubt that this is, as my noble Friend (Lord Hampton) has said, a complicated cage; but it is only complicated by matters being introduced into its consideration which really have nothing to do with the point which we have to decide. The case to which my noble Friend has called the attention of your Lordships cannot, as he has said, be fairly understood without some reference to a previous appointment to a canonry in the same chapter of York. When Dr. Basil Jones was appointed to the See of Llandaff, the prebendal stall and residentiary canonry together with the chancellorship of the cathedral, which he had held, became vacant; and I asked the most rev. Primate the Archbishop of the Province (the Archbishop of York) as to the order in which the three appointments should be filled up. The answer which I received was that the prebend was to be filled first, then the chancellorship of the cathedral, and next the canonry. I then instructed the Secretary of State to take the necessary steps; but when it came for the most rev. Primate to per for in his part of the duty, he reversed the order which he had recommended mo to adopt, and nominated the hon. and rev. Mr. Forester to the canonry, before he issued his mandate for the appointment of the same hon. and rev. gentleman to a prebendal stall and to the chancellorship of the cathedral. Since then, the Chapter have demurred to the order in which the appointments were made, and not only questioned the propriety of what had been done, but absolutely declared that under no circumstances should any clergyman be appointed to a canonry who had not previously been a prebend of the cathedral. This course being one which, if correct, would have limited the power of the Crown as patron, which power it was my duty to defend, I caused a ease to be submitted to the Law Officers of the Crown. They considered it, and they decided that the course taken by the Chapter was quite erroneous—that an Act had passed—the 2 &c3 Vict. c. 113—which had terminated the qualification for holding a canonry which the Chapter had insisted upon, they themselves being probably not aware of the existence of such an Act. But the matter had been decided, and as illus- 1890 trative of the law which, they laid down, the Law Officers referred to a then recent ease, the "Queen v. the Dean of Hereford." All this was communicated to the Chapter, and no further difficulties occurred. Canon Forester was appointed, and enjoyed his rights and privileges as a canon. A remarkable circumstance is that a considerable time afterwards—some months subsequently—I received a letter from the most rev. Primate the Archbishop of the Province, informing mo that he had, in the first instance, from want of knowledge, given mo inaccurate advice as to the order of the appointments; and that he was advised that by the law, as it now stood, the appointment of every prebend not in receipt of emolument was reserved to the Archbishop. That was rather a startling announcement, and as the only object which the Government could have was to ascertain the truth and to defend the just Prerogative of the Crown, I thought the best course to adopt was again to submit the new point to the Law Officers. They considered it, and they decided that the Archbishop was quite right in his interpretation of the law. It appears that after the Act which I have already quoted was placed upon the Statute Book—either in the following year, or two years afterwards, in the reign of her present Majesty—an Act was passed which reserved, as the Archbishop stated, all the prebendaries not connected with emolument to the Archbishop. There was no controversy at the time to which I am now referring, the question as to Canon Forester having been settled; but, shortly after this, another vacancy occurred by Her Majesty nominating Dr. Thorold to the See of Rochester. He was canon residentiary of the Chapter of York. At that time, the most rev. Primate wrote to me announcing that he should exercise his privilege, which was not contested; and after the Law Officers had given their decision, I felt it my duty to write to him, acknowledging that the position which he had adopted was recognized by the Government, and that, in future, I certainly should not contest the appointments. By the appointment of Dr. Thorold, a canon residentiaryship became vacant. The Archbishop wrote to me to say that, in accordance with his previous announcement, with the opinion of the Law Officers, and with 1891 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 1892 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 he 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—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 1893 advised by the Law Officers of the Crown that the appointment of Mr. Fleming to the canonry was perfectly legal, they declined to take any further step. Certainly, when I heard from my noble Friend that the question which he has brought before your Lordships is a most painful question, and that there is a chance, in consequence of its having been raised, of Canon Fleming's resigning the important and well-deserved preferment which he has gained, I must say that nothing could give me more pain than if a man so distinguished were by any misunderstanding between the most rev. Primate the Archbishop of the Province and the Dean and Chapter to be deprived of a position which he is calculated eminently to adorn. I will ask your Lordships' permission to read a few questions which I have placed upon paper, and which will make the exact situation of affairs clear. Are the privileges of Canon Fleming denied? First, as to his vote. In a letter dated the 3rd of October, 1877, Mr. Fleming writes—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, 1894 are denied him by the Dean and Chapter, I am ready to advise that he shall have those rights and privileges asserted. Before I do so, however, his rights must be denied him. The Dean and Chapter have involved us in a most painful and lengthy correspondence—painful, only, because it is lengthy; but they have no case whatever. They are really setting up the memory of an ancient custom against the statute law of the Realm. No one can be more interested than myself in Mr. Fleming's possession of all his rights and privileges, as I am responsible for having advised the Crown to nominate that gentleman to his post. I believe he will be an honour to the position which he occupies; and if any member of the Chapter of York attacks his rights and privileges—if they prevent him from voting when there is a meeting of the Chapter, or if they prevent him from residing or preaching, or in any way impugn the undoubted and legal rights which he possesses as canon residentiary of York—I am the person who will be first ready to take up his cause.
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 case—namely, that of Dr. Thorold in February, 1895 1874. In that which followed, Mr. Forester was admitted in December, 1874, and without being a prebendary he was installed—the first case of the hind on record. But there, it was known that if installation was refused, legal proceedings would be adopted; and then followed the case so fully explained by the noble Earl (the Earl of Beaconsfield). The question, which had just been so luminously dealt with, might be reduced to this—had a canon so appointed a right to vote in chapter, and whether any but residentiary canons had a right to vote? In the Act it was provided that a "canon" should be understood throughout as a "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—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 cor- 1896 respondence with the noble Earl at the head of the Government (the Earl of Beaconsfield), the Dean and Chapter used some expression of this kind—"We cannot admit we have done what we havenotdone"—thatwas, they could not admit that they had refused the vote. Well, according to that, Mr. Fleming had his vote; and, in one point, he had taken the matter in rather a wrong point of view. He was a man of great eminence, and the choice of the Crown might well fall upon him. Since Mr. Fleming had been in York, notwithstanding the somewhat cold and suspicious atmosphere of the place, no 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- 1897 bishop of York) adopted when, in 1870, a canonry and prebend became vacant. He wished to make two appointments, and give them to men of merit. A correspondent of The Times said about that ease—As at York, there was no stall appropriated to a canon residentiary; but the Bean and Chapter made arrangements for a stall. As at York, there was no preaching turn for a canon residentiary; but Mr. B., like his brethren, supplied, in his turn, the place of an absenting prebendary. The difference between York under Dean Buncombe, and Chichester under Dean Hook, seems to be this. The Chapters of both cathedrals have been aware of their power of raising an obstruction; the Chapter of York-showed their ability in making the most of it, the Chapter of Chichester in breaking it down.Well, what occurred at Chichester was either a great violation of the Act of Parliament, or it interpreted the law quite sufficiently for their guidance. The difficulties in the case of York had been artificially raised, and were not much worthy of their Lordships' attention.