A Letter to the Rev. William Maskell, A.M. / How far the Judicial Committee of the Privy Council commits the Church of England by its decision, even allowing it to have jurisdiction in points of doctrine

by Mayow Wynell Mayow

Let us consider again, what it is precisely which the judicial Committee of Council are about to do. [8] It cannot be stated more entirely according to my sense, than in your own words. You say (page 7) “The question is one simply of interpretation of the Law of the Church of England . . . It is not a question of what is in itself true or untrue, agreeable or not agreeable to the Holy Scriptures, but solely whether a certain doctrine has or has not been clearly defined to the exclusion of some other statement about the same doctrine, which would seem to deny it or explain it away.” Again in the passage already quoted (p. 54) “This is a question not of new canons and formularies, but of the right construction of old ones.”

Then if this be so: though the Decision should affirm what shall be in its form, heresy, may there not still be a limitation as to its effect: rather perhaps I should say, a suspension of the actual heresy altogether until some further condition shall be fulfilled to give it life: that is to say, though the decision may affirm that the formularies of the Church of England do not so clearly define the faith on this point, as to preclude the words admitting an uncatholic, nay an heretical interpretation, does it follow that the animus of the Church is therefore even in the least degree shown to desire or intend to teach such error, nay even to allow it to be taught; and if there be no heretical animus, can She be pronounced herself to have incurred the guilt of heresy? I answer, (and I hope safely) to both questions; No! because all that will be brought out, even in the event of the decision of the court of appeal being to reverse the judgment of the court below, will be merely that there is an ambiguity of language, in the documents on which that court had to found its judgment; and this, an ambiguity, it may be, unintentional on the part of the Church, though really inherent in the wording of her formularies, acting therefore imperatively on the judges in the case (if so,) and obliging them to give a decision such as shall leave the point at issue, an open question. Let me be well understood. If such ambiguity of language be intentional on the part of the Church; if she can be proved to have desired in drawing up her articles and services to admit two interpretations on baptismal regeneration: if it be her view and plan to include two such opposite parties within her as those represented by Mr. Gorham and the Bishop of Exeter, by such ambiguous, and therefore comprehensive language, I most fully admit she stands convicted of unpalliated heresy both in form and matter. But if it be lawful without violence to reason or conscience to believe she had no such view, but meant to assert the undoubted ancient catholic faith on baptism, I do not think we are bound to make her answerable, as if she had knowingly and wilfully assented to uncatholic doctrine, though as it turns out (if so it be) the wording of her formularies is inadvertently insufficient to protect the one truth. I cannot but think that though the misfortune of such inadvertence is not to be denied, its guiltiness is not lightly to be admitted; and that we are bound in all reason, (and I am sure if so, in conscience and loyalty) not to consider her chained by such ambiguous language to the denial of God’s truth, and the catholic faith.

With regard then to the animus in question. Surely in the first place we may say this; that it is not settled adversely to sound doctrine, because not involved in, this decision itself, whatever it may be. The Judges in the present trial would I imagine, even though using to guide them in their judgment contemporary documents, and even contemporary opinions to elucidate the language of the formularies, yet themselves admit, that to decide the animus with which those formularies were originally drawn up, is beside the point they have had to try: that it suffices for them to declare the ambiguity if they find it in the words; but that it is foreign to the matter in hand to settle whether such ambiguity be accidental or intentional. Of course I am not saying they would deny the intention of comprehensiveness. On the contrary they would probably appear as a matter of course to infer it; and may even make mention of what they suppose the intention of the Church to have been: but still they will not rule the animus, as a part of their judgment. As to mere legal consequences indeed, I presume they will necessarily so far imply the intention to have been according to the judgment they deliver, as fully to give the benefit of their construction to the appellant in the cause: but yet this intention is to be distinguished, as a different point from any which they have had to try, which has surely been merely what is in the words of the formularies, not how it came to be there.

But even should the court proceed so far as to say it gives its judgment on the latitudinarian side, expressly on the ground that it believes the Church in drawing up her formularies intended such comprehension, even that declaration would have no judicial authority to impose itself on any man as the truth. The grounds of a judge’s sentence are a different thing from the sentence itself; and, I think all those “learned in the law” will bear me out in saying, form no part of it. It is not an impossible nor an unheard of case for a judge to give a right judgment, yet upon wrong grounds. The grounds are merely his opinion which challenge no authority beyond their intrinsic weight, and which any man may canvas; the judgement is authoritative, and of course in a court from which there is no appeal, is assumed ex necessitate rei, to be sound.

Let us then next proceed with one or two considerations which may be of service in determining for ourselves what animus we shall attribute to the Church in drawing up those of her formularies which bear upon the doctrine of baptism.

A point of great weight surely is this:—that they are (even if really ambiguous when subjected to the searching eyes and acute minds of the most subtle lawyers: I use the word in no ill sense; yet) to all ordinary men, and ordinary unbiassed minds, so clearly on the catholic side, and so plainly to such minds convey nothing but the ancient doctrine of regeneration in baptism, that it is much more easy and natural to believe the Church never contemplated the ambiguity than that she did. Let it be remembered too that if now on the present appeal, the six eminent law officers who have heard the case do decide for the ambiguity, yet, so indistinctly is this ambiguity itself discernible, that not merely ordinary men, but one of the ablest and perhaps the most practised ecclesiastical lawyer of our day, had no doubt or hesitation on his mind when the case was argued before him as the Archbishop’s judge of doctrine in the court of Arches, that it did not exist; that there was no such approach even to ambiguous language as to make him have recourse to extraneous comment to guide him, or cause him to give in the very slightest degree a doubtful judgment; but on the contrary, thought there was no sense to be put upon the Church’s statements on this subject but the one catholic doctrine, which, a priori, we should suppose she would enunciate.

Take with these general considerations the particular circumstance that if we assert the ambiguous animus, we must suppose the Church, not only in fact to have inadvertently qualified words naturally carrying the catholic meaning; but so to have intended to qualify them, that when she says “seeing this child is regenerate,” she meant “seeing he is not regenerate,” or, at the least, “seeing I have no reason to believe he is regenerate,” and shall we not have a sufficient case to prevent our feeling compelled to “think” that “evil,” that the Church had a double mind. To me, at least these thoughts bring home a satisfactory conviction that it is much more likely the Church herself has been ignorant of ambiguity, and did not mean to be indefinite, than that she purposely drew up her articles and services, with merely such a subtle and almost imperceptible residuum of doubtful words that it appears a mere chance, under a peculiar combination of circumstances that it ever comes to the light at all: that she so speciously concealed her own desire to include a second meaning, that taken “in her own craftiness” she deceived Sir Herbert Jenner Fust, so that even when her words were most elaborately sifted by him, this hidden sense escaped his observation; and is only now at last made manifest upon the most laboured and minute investigation in another court, where it is not too much to say there has been every inducement to the learned judges composing it to split hairs, and find an ambiguity if by possibility they could. I say this not as impeaching the impartiality of the tribunal, but yet as worthy of note by any, who knowing what human nature is, would rightly weigh the circumstances of this decision before drawing further inferences from it. If I am at all correct in the argument I have attempted to draw out, that decision, if in Mr. Gorham’s favour, will decide the ambiguous language of the formularies, and nothing more. Abstract then your mind from the present judgment, and what will you say is the animus of the Church? Will it not be the same as heretofore; and that our estimation of our Church’s soundness in the faith is as yet unshaken? For should we, I boldly ask, judge that any friend of ours intended an indirectness or double dealing by us upon no better evidence? Should you so judge me, or I you, in any circumstances bearing even a distant analogy to these? and if not, how thus judge our mother, who has borne us unto Christ?

An illustration from secular affairs may perhaps make my meaning in all this clearer, and, as it happens, there is one made ready to our hand.

We all remember the act of Lord Ashley and the late Mr. Fielden, to prohibit the labour of young persons in factories, for more than ten hours a day. It was drawn up, no doubt, to the best of their ability to attain this object: to give persons under a specified age, rest and cessation from labour after ten hours at the mill. But as we well know likewise, an interpretation of the act grew into use among the mill-owners, by which they worked their factories twelve or fifteen hours a day, using the labours of the younger persons employed by relays; so that though no one of them was actually at work more than the ten hours, the object of the bill was frustrated, if it were to secure their being dismissed to their homes after so many hours at the mill. The resting them an hour, or two hours, in the middle of the day, whilst others took their place, to be also rested for the same time, at another period, did not secure to those young persons what was at any rate supposed to be the humane object of the framers of the bill, and the legislature which passed it; a return to their homes at such a reasonably early hour as might afford some time for relaxation, and some opportunity for mental cultivation. This usage however of the mill-owners did not pass unquestioned, and a case involving the principle of it, was first heard before an inferior tribunal, and, the decision being given there I think, against the legality of the system of relays, was brought afterwards by appeal before the Barons of the Exchequer. The jurisdiction, observe, of this court was beyond all question, and it applied itself to the decision of the case. Of course, (exactly as in the Gorham cause before the Privy Council,) the matter in hand was simply a question of the interpretation of the act of parliament. The judges had nothing to do with which arrangement might be most humane, nor even with which they imagined to be most accordant with the mind of parliament in passing the act, if the act itself were clear to their understanding. They most properly confined themselves to the terms of the act, and to the determination of this point, whether it excluded the working by relays or not. It might be, (as has been strongly asserted,) perfectly true, that to permit that system, frustrated in great measure, if not wholly, the attempt to better the condition of those young persons; but however true, it was nothing to the purpose. And those judges, as the event shewed did come to the conclusion that the terms in which the act was couched were not sufficient to make the system which had been used, illegal: and therefore judgment went in favour of the mill-owners.

Now let it be granted that this, in its effect, destroys the bill as a measure of humanity: that so to legislate is in fact cruelty, whatever the intention of the act may have been.