A Letter to the Bishop of Exeter

Transcribed from the 1850 Joseph Masters edition by David Price, email ccx074@pglaf.org
BY A LAYMAN.
FOR PRIVATE CIRCULATION ONLY.
LONDON; PRINTED FOR THE AUTHOR BY JOSEPH MASTERS, ALDERSGATE STREET. MDCCCL.
PRINTED BY JOSEPH MASTERS, ALDERSGATE STREET.
(COPY.)
My Dear Lord,
In the course of our conversation yesterday you did me the honour of saying that I had presented the decision of the Judicial Committee of the Privy Council in a somewhat new point of view to you, and you wished that I would put the same down in writing for your more mature consideration. I do so now—not without the hope that my view, if it be correct, may tend to quiet the fears of some of our more anxious friends by showing them what the effect of that Judgment really is, and how little when properly understood it affects the future prospects of the Church. But first I would wish to point out that a decision is not properly to be treated as a law. It differs in this most material circumstance; that a law governs all future decisions, whether the Judges appointed to decide agree with the law or not. But a decision is questionable by them, and only binds them if they agree with it. I grant that a long course of uniform decisions constantly made, and often recurring, would probably be so nearly equivalent as to be treated practically as a law. But we are speaking of one decision and the effect of it. We have now a practical illustration of that in a case in which you are interested. The Queen’s Bench have refused you a rule for a prohibition, and you are questioning that, by renewing the same application to the Common Pleas. If they agree with the Queen’s Bench on the merits of the argument, they will decide as the Queen’s Bench have done. If they do not agree they will without scruple act contrary to that decision. If the decision of the Queen’s Bench were a law they could not do this. It may be said no doubt that these are courts of co-ordinate jurisdiction, and that the Judicial Committee is the Court of ultimate appeal. But this really makes no difference. It is clear that any future Judicial Committee could overrule this decision; and so might even any inferior court subject however to the consequences of an ultimate appeal against their decision, to which appeal the Judicial Committee itself is not liable. In truth, where the House of Lords makes in a civil suit, a decision contrary to the rules of law, the courts of law very soon, although they do not expressly overrule it, make it practically inoperative by distinguishing every case which comes before them from it, however minute such distinctions may be; whilst if the decision be right and well-founded, they carry it into effect fully and with all its reasonable consequences as corollaries from it. To those therefore, and there are many, who think that this decision of the Judicial Committee is wrong, I should say, “lay before the public the grounds of your difference of opinion openly, in the shape of well-considered arguments; and in the next case of a similar nature which arises go with confidence in those arguments to the next Judicial Committee, and you will probably succeed, even if the same Judges sit there, and more certainly if their successors do so, in overruling this erroneous decision. In the mean while you will say, there is the evil of a clerk of heretical opinions admitted into the Church; I admit the evil; but suppose it was one who had been acquitted, improperly perhaps in your opinion, of any other offence by competent authority, would it be fair to say, because the tribunal had mistakenly acquitted him, that it was decided that the Church might properly be served by a criminal, and therefore that you must leave it? certainly not. This clerk is in a similar category. In your opinion he is a heretic. But it has been adjudged otherwise by a competent tribunal, and you must acquiesce in this instance, in that judgment which you deem erroneous.” This, my dear Lord, is the advice I should venture to give under these circumstances, and I hope that in so doing, I should have your concurrence.