First.—Was the decision wrong? 'Yes' or 'No.' If it was right—
Second.—Was the law, in pursuance of which the decision was given, so manifestly unjust as to demand, not the alteration of the law for the future, but the passage through Parliament, ex post facto, of an Act to prevent the decision from taking effect between the parties according to its tenour?
Third.—Supposing the decision to be right, and the law it expounded just and reasonable in general, was there anything in the peculiar circumstances of the successful litigant, and in the sources from which a considerable portion of the property was derived, to justify Parliamentary interference and the provisions of 5 Edward VII., chapter 12?
Number Three, being the easiest way out of the difficulty, has been adopted. The decision remains untouched, the law it expounds remains unaltered—nothing has gone, except the order of the Final Court giving effect to the untouched decision and to the unaltered law. That has been tampered with for the reasons suggested in Number Three.
John Locke was fond of referring questions to something he called 'the bulk of mankind'—an undefinable, undignified, unsalaried body, of small account at the beginning of controversies, but all-powerful at their close.
My own belief is that eventually 'the bulk of mankind' will say bluntly that the House of Lords went wrong in these cases, and that the Act of Parliament was hastily patched up to avert wrong, and to do substantial justice between the parties.
If asked, What can 'the bulk of mankind' know about law? I reply, with great cheerfulness, 'Very little indeed.' But suppose that the application of law to a particular lis requires precise and full knowledge of all that happened during an ecclesiastical contest, and, in addition, demands a grasp of the philosophy of religion, and the ascertainment of true views as to the innate authority of a church and the development of doctrine, would there be anything very surprising if half a dozen eminent authorities in our Courts of Law and Equity were to go wrong?
Between a frank admission of an incomplete consideration of a complicated and badly presented case and such blunt ex post facto legislation as 5 Edward VII., chapter 12, I should have preferred the former. The Act is what would once have been called a dangerous precedent. To-day precedents, good or bad, are not much considered. If we want to do a thing, we do it, precedent or no precedent. So far we have done so very little that the question has hardly arisen. If our Legislature ever reassumes activity under new conditions, and in obedience to new impulses, it may be discovered whether bad precedents are dangerous or not.