The Express.
London, England, 1861-03-09 00:00:00

AND FELLOWS OF ALL SOULS COLLEGE.

This morning, at half-past ten, the Archbishop of Canter.
bury pronounced his decision in the above came.
His Grace was accompanied by his assessors, Baron Wens-
leydale and Dr. Travers Twiss, vicar-generaL
The Attorney-General and Mr. Coleridge were present le
counsel forth. appellants; and Sir Hugh Cairns, Mr. Bova"
and Mr. Granville Somerset as counsel for the reepoodentta
Baron Wensleydale read the following "report" of the
$llllOOllOll :

" May it please your Grace,—This important appeal, on
the part of threeof the fellows of All Souls' College, Oxford,
against the course of proceeding sanctioned by the warden
and the rest of the fellows, in the election of fellows,
having with the consent of all parties been reheard and
argued by counsel at great but not unnecessary length, con-
sidering the great importance of the question, before your
grace and the undersigned your grace's assessors ; end every
possible argument that could be urged upon every part of
the case having been brought to our notice by most learned
and able counsel, we have now to report our opinion, after
full consideration of every part of the case.
" The main question to be determined is the true mean-
ing of the onlinance of the commissioners appointed for the
purposes of the statute 17th and 18th Vict. c. 81. Upon
the proper construction of that ordinance the other questions
raised by this appeal mainly depend ; and, when that
construction is determined, present no difficulty iu their
solution.

" The ordinance made by the commissioners having been
laid before the college and visitors, baying been sanctioned
and confirmed by her Majesty in council and laid before
both houses of parliament, undoubtedly now operates u
part of the statutes of the college, and supersedes all for•
mer statutes which are inconsistent with it.

" The important clause of the ordinance la the Btb.

"It is as follows :—` The intellectual qualifications of the
candidates for fellowships shall be tested by an examination
in such subjects recognised in the school of jurisprudence,
and modern history, within the university, as the warden
and fellows shall determine ; and the warden and fellows
shall elect that candidate (being otherwise duly qualified
sooording to the statues in force for the time being) who
after balh examination shall appear to them to be of the
greatest merit, and most fit to be a fellow of the college, as
a place of religion ant learning, with special reference to
the subjects recognised in the said school.'

" This clause, read in conjunction with the 43rd and 44th
clauses, and other parts of the ordinance, leaves no doubt
on our minds that the commissioners meant to constitute
the foundation fellowships of Archbishop Chicheley a
means for the encouragement of the study of jurisprudence
and modern history, two brandies of knowledge especially
suitable to the requirements of the present times, the other
colleges in the university supplying ample means for en.
couraging the study of other subjects having a more especial
bearing upon the education of candidates for holy orders.
The commissioners have endeavoured to effect this object
by founding two new professorships in those departments
of science, out of the revenues of ten fellowships, and
devoting all the other fellowships to the encouragement of
such persons as are proficient in those studies, and who, by
their attainments and example, would be likely to promote,
in the college and elsewhere, the cultivation of the same
branches of knowledge.
" We form this opinion from construing the statutes and
ordinance together, according to the established rules of
law for the construction of instruments ; and it is • sann
faction to us to find that our construction agrees entirely
with the explanation which the commissioners themselves
have given of their intention, in the letters of their secre.
taries, Mr. (loldwin Smith, of May 22,185&, and Mr. Waite,
of December, 1857.

"It seems to us, therefore, that the respondents are
wrong in the notion they once entertained, as may be col-
lected from their answer (Art. 64), that the original inten-
tion of tho founder, which was undoubtedly to benefit the
church, ought still to preset', and that those qualities
which render young men hopeful candidates for ordination
hereafter nre still to be mainly regarded by the electors.
"They do not seem to have persisted in the supposition
in their rejoinder, but we think it very important, and
most likely to conduce to the proper conduct of future elec-
tions, to express our opinion that this notion of the duties
of the electors under the ordinance, is erroneous. It by no
means follows, that proficiency io those special studies,
which, under the new oonstitution of the college, mainly
entitles the successful candidate to be elected, will be the
slightest impediment to his devoting himself in after life to
thqsacred profession of a clergyman, if ho thinks fit.
" We now come to consider minutely the construction of
the Bth clause of the ordinance, which gives the rule for
the election of fellows.

" Its first direction is that the intellectual quails
ficatioos of the candidates shall be tested in one
mode : that is, by an examination in such subjects as are
recognised in the school of jurisprudence and modern his•
tory, giving the warden and fellows the power of selection
within those limits. These subjects are fully described in
the 26th Title of the Statutes of the University. No other
test of intellectual qualification is mentioned ; and we think
this is the sole test or criterion of intellectual qualification
which the commissioners must be taken to have intended.
This clause of the ordinance, in effect, repeals every part of
the old statutes which might be construed to require any
further test of intellectual qualification, the ' rudiment&
gri.mmatice,' for instance, spoken of in the second of the
old statutes. The right of the warden and fellows to ex-
amine the candidates in the works of classical authors, as a
means of judging of the intellectual qualifications, accent•
pliabmenta, and tastes of the candidates, must accordingly
be subject to the limitation, that the works of such authors
selected for the purposes of examination, must be on some
one or other of the subjects described in the 26th Title of
the Statutes of the University. The field is sufficiently
large to afford an ample opportunity of ascertaining the re-
lative acquirement. of the candidates in the Latin and Greek
languages, as well as in those modem languages, including
English, in which the works of the authors on the prescribed
subject.; are written.
*. When the actual and relative degree of intellectual
qualification, the degree of acquirement and intellectual
power, of all the candidates, has been ascertained by an
examination in the prescribed subjects alone, which it is
clearly the bounden duty of the electors to make, then
follows the further duty of considering the other qualifiot-
tions mentioned in the statutes.

"It is pmbahlo that the words 'greatest merit' mean
to describe the merit as appearing at the examination ; but
it is not very material whether they do or do not, for the
electors are clearly bound to consider and decide, not only
which candidate has the highest intellectual qualificatioos,
hut which candidate is most fit to be a fellow of the col•
lege, u a place of religion, and also as a place of learning,
with special reference to the subject. of the examination.
We think the words ' most fit' imply comparison, aa con-
tended by the respondenta, and are not descriptive merely
of a high degree of fitness, as insisted on by the appellants•
" In estimating the fitness of a candidate to be a fellow
of a college, as a place of religion or learning of any kinds
his religious and moral character must be taken into con•
siderstion. However great his eminence In the particular
science of which the college is to he a school, an atheist, •n
unbeliever, an irreligious man, could never be a fit person

hallow. These &Gets too deeply affect the charm.
kr. t make it pmaihle that soy such person should be
tsti, a...witted with others for the advancement of religion
harsiog. The mime may be sod of a grave moral
da,t ; hut we do not agree with the petitioners (Reply,
trt..ii'd that no other consideration than that of the mind.
of .. lcoutioo moral is to weigh with
e electors ; for we think that many matters ought to be
Uteri into fair rou-ideratiou M the inquiry, whether a man
i• newt lit to be useiriateil with other fellows. under the
..if of theme idle. iu the cultivation aal advancement

I a particular science. The hal•its, the manners, the
1.14.1 Aral 4i.pimition, may all be reganlal Coarse aul
cork- habit• ; a quarrelsome and overbearing temper
• '.4lll••ir surd psncrs•• intellect, :night constitute a meson
chjectioti to aaocute a candidate in the aono useful
Aral honourable pursuit. These, however, are questions of
drove, mil the eminence of a candaLite may he such in the
iimaibed branches of learning as to outweigh, in the
of lb" electun, m.me objections this nature
the .4ber hand, his merit may he imuffseient to counteract
m sill tbes•- tuatara must be fully and impurtially
:....dorm by the electors ; but they ought to bear in mind
that the advancement of a particular branch of OCkElit is
rsolimtly the great object of the 111111111iDtr.
" It was arguod on behalf of the warden and follows
that the words • being otherwise duly qualified accordiag
to the statutes for the time being,' continued
the imalitications prescribed in the old statutes, which
are not expready repealed, such as, that the penes. elected
stionkl b. • bouts amalitiouilum et monbus t+•nornati.' We
thir' these words of the ordinance relate to the alexia]
.leeklications required by the ordinance or statutes thou, or
at see future tin" is farce—for instance, that they should
tint-d.•.he men. km --and sotto the intellectual or moral
qualib.'alc•na of the candidates. We interpret the word
'otherwise' mesa otherwise than is respect of their
intelhetoal merits. and their Aimee to be follows of the
college a.. plena d religion and learniag. The rtth clause
makes rr. re provision that the earinsiesimen deem moor
sery es to intellectual and moral qualifications. We am of
opinions that the ordieance does not intend that every per-
won be qu.ditird for a fellowship should be 'bona coe-
chtamilms et 'Donbas perimatus,' as a condition precedent
to his election.

"Having thus determined what we consider to be the
pnilwr construction of the important clause, the 4th, it is
e ,or to dispels, of the other points discussed in the case.
•• We have already held that the minion mid fellows
twist decide for themselves, and must not delegate to
others, so as to bawl themselves absolutely, the duty of
aw,rtaining the positive and relative intellectual qualiket-
mos of the camdklates. The examiner. MU only make pre-
Melees inquiries for the information of the electors ; the
micas of the candidates must be ascertained by each
elector, each must exercise his own judgment, as to the
patties and comparative merits of the candidates, by a
peres.d of the papers, or by personal communication
with the ezanueers or some fellow of the college qualified
to !dorm bins.

We are of opinion that the restriction in the byelaw of
the f;th of .tpril, ISM, that the esamioers are not only to
no report of the order of merit as ascertained by the
ooinati,o), but are prohibited from answermg any quell-
lo.n reverting that order, altogether renders the appoint-
P.rllt of examioer. nugatory, and may in its operation vio•
L.d.• the letter and spirit of the ordinance.

" The warden and fellows, in order to do their duty wider
t ought to adopt mean■ to enable them to judge
of the “impanitiee merit of the tandidates, in respect of
iotell,tual qualifications.

" After ascertaining the intellectual qualifications of the
candidates, their kora% to be fellows of the college must be
investr,akel. As this cannot be ascertained by examination
of the individuals, it must be done by communicatioas
amongst the electors themselves, and inquiries, from others
aeinsinted with the candidates, as to their morals and cha-
racter, in the same sense that we have attributed to that
wird. so es to caddis them to eatisfy theirconeciences thatthe
candidates in this respect have the requirements of the ass.
&mince. FIN that object we see no objection to a meeting
being held fur the purpose of mutually communicating and
deliberately considering any infortnatiou respecting the
keens of the aailidates ; and in order that such informs.
lion may be given and discussed with perfect freedom and
°peening, and that the peace of the college may not be
endangered, mid that injustice may not be done to any
person within or without the college, we think the byelaw
so far not improper, being in accontsuce with the injune.
lions of Archbishop Wake, concerning the secrecy of votes,
in providing that all such information, and the discusaioa
thereupon, shall be deemed strictly coofidential, and every
person present shall be considered to be bound by such obliga-
tion, as well as pledged in honour never to divulge his own
Cote to any others within or without the college, nor to
make public any public part of the proceedings at mach
meeting, on any pretence whatever. But such obligation
if secrecy is in accordance with the spirit of the statute 17
sad 18 Viet. c. 81, to he understood not to extend to cases
where* disclissure is lawfully rejoiced by lawful authority.
"The plan which is adopted very generally in mates
bees fur testing comparative intellectual merit, is for the
minim's to ensign a certain vales to the questions indi-
mini by the number of marks, and to arrange the cam
didatee wordier( to the number obtained by them. By
adopting some such arrangement, the examinations will be
reelected according to the letter and spirit of the ordi-
nance. By the method hitherto adopted its provisions may
me the risk of being defeated.
" It remains to consider what ought to ho the proper
mime to be pursued with respect to the emunination
psp. re. We think the written mowers of the candidates
to the questions pmposed, whether written or verbal,
if there be any such, should be destroyed when no longer
nen...my ; that is, se semi as the votes have been given ; for
too long as the elector hes any opportueity to reconsider the
comparative merits of the candidates, so long as there is a
locus pureiteeter.' there ought to be the swam of referring
to the telt of that merit as ascertained by the sneerers of
the stedidate. When the votes are actually give., there is
so nese why the written laelielfs should got be destroyed,
fie the decisson of the electors upon the merits cannot he
mewed. With regard to the due conduct of that seaming.
tine, whether it had been duly held tie the prescribed sub-
jsee,, the rapers of questions should always be preserved,
to be used in ease any question should he raised before the
smite, until the time for appealing has expired, es well as
record of the books which naj have been used in the oral
examinatiors .1 the auelidates.

Having thus fully explidued the opieims we have formed
upoo all the mitten, as we believe, in dispute, we nicom•
moot your grace to disallow such parts of the bye-laws or
rerolatious of Apra 4, 1.454, sad April 27, 1459, as are at
valuers with the views we have ezpreesed. Your gram
has act the power to mike say byelaw yourself, but we
thin pour grace might suggest to Use warden lied fellows
that 115.7 sbuebi themselves make • bye-law to emery the
ordirseacc, as we lisse interpreted it, into full effect : that
L. to eistsblisli A 41.4 fi•/, e:mu:otitis tato the sampan-
live merits of the emsdi.Lites io the subjects prescribed by
the unliassoe foe determining their istellectual Flunks.
tiima, so am to esahle each elector to satisfy himself es to
the degree of merit of each candidate.

" DALY..
" TRAWLIDI TWIII/4."

Ills Grace the Archhishop then maid :
" I desire to mime. to my meet teams! mid irsperleweed
my best thank. for their report uti this dam&
importset wee!, se I likewise beg to Weiler to the
••.eisel rogsgal my aekoowledgments for their able reit.

It a
rny duty to roolirm the report of my mean" mad
vie this appeAl in full sad strict accurdaane with the
•`.... report."
Iht. terminated the proenalinca

Tut Iht trine Aw' .—Aceording to a parliameu-
: ,ry rrtarn issue,' this morning, the number of effective'
the British e•tablishment, riot including officers, on
Ist of February last, was 82,410 at home; and
.1.107 in the colonies. Of the Indian establishment, the
• sabers were 61',909 in India, and 1:1,429 in depots .t bona
number of embodied militia was kW& The avenge
per man of the British establishment, in 185960, was
i• 1..51

Wr (A trn y awl Nu ry Gaz,l(..) hear that Lieutenant-
' -,wral Knotty' is likely to mooted to the office of Vim-
-1,-sultot of the Council of Military Education, about t
~ated by Maj..r.Gvaersl Runiley, who. WI WO aa•
het week, ix ab,ut to become leonener-Oesieral of
I. ixotry.

Lt.,Attt, or TRADE, WHITEHALL, MARCH B.—TINI
chc Flonourahk the Lords of the Committee of Privy
ninth for Trade have received, from the Porzetery of
s'ste for Foreign Alfain, a espy of a (I...retch hasi hf
4, ,aty's coastal at Costa Ham, reportinz that the port of
iota areas. eeased to be a free pun as!the 26th January