I do not say, in saying these things, that Lords Campbell and Langdale, Mr. Pemberton Leigh, Dr. Lushington, and Mr. Baron Parke were consciously one-sided in the judgment they delivered: but I do say, it appears to me, and I believe it will appear to posterity, when all these things shall be matters of unimpassioned historic reference, that whatever their judgment in the case of Gorham v. the Bishop of Exeter may be as to its uprightness, they lose caste as to ability, by its delivery. They lose, and will lose caste, if only from the fact that they were not able to see, to remember, to combine, to take count of various matters (some of which I have just noticed) bearing upon the very documents, (the great things as they themselves allow by which they were to be guided,) and essential to a fair decision; and this moreover when those very points had been distinctly pressed upon their attention. They deviated likewise, I believe, from all the ordinary rules of courts of appeal, in ignoring, instead of examining, the judgment of the court from which the appeal came up, the decision of which they were about to reverse. Many will be the hearts that will grieve over these things as time goes on, first, generally, on the ground of the dissatisfaction and distrust which such proceedings cast upon the character of the administration of our law; but next also, on the narrower though hardly less painful ground, of seeing men who might have stood so high, losing their position in the world’s history, by the too sensitive desire to do the things which, as they imagine, make for peace, rather than boldly daring to adopt the divine motto, “Be just, and fear not.”
To say nothing of others, how many will think remorsefully of the deed done which cannot now be undone, when they find (as find I am sure they will) that this judgment has struck down from the pedestal of honour where he might perchance have stood with few equal and none superior to him, one, whose name as a lawyer was promising to fill the world. That learned Baron’s name might perhaps have descended to posterity, coupled with the very greatest of the judicial names this country has ever boasted; but now, (sorrowfully will many hearts attest it,) in spite of all the blind flattery of party feeling, and all attempts to patch the matter up or smooth it over by party declamation; now;—for and by this Gorham judgment, will he fall from that pre-eminence, and be found, to those highest honours, to have forfeited his claim.
Before I leave this part of my subject there is one further remark I must needs make. This is not the first time that the people of this country have had cause to look with suspicion upon the administration of the law, where the interests of the Church have been affected. There is, I think, a growing feeling in the world, that, (it may be unadvisedly and unconsciously in those concerned, still really and practically,) the Church does not meet with exactly the same measure which would be dealt out in mere legal construction of documents to a railway company or a merchant’s clerk. When in the year 1848, in the Hampden case, the Lord Chief Justice of the Queen’s Bench of that day reversed the unvarying practice of his court for 250 years: [46] (if I am mistaken in the fact, no doubt I shall be corrected,) when Lord Denman nullified in that case (and expressly from a regard to consequences;—his own reason, as stated by himself in his judgment;—) so general and so just a practice as that when the judges are divided equally in opinion, “the writ should go,” to give opportunity for further argument, and consideration by a higher court (that a writ of error, I believe it is termed, may lie), he did a thing so pernicious, that Englishmen may well be grieved he should ever have held so high an office. To throw suspicion on the fountains of justice is among the greatest wrongs any man can inflict upon his country. It is high treason against the majesty of law. It is a teaching of rebellion to all who have the wit to understand what has been done. It substitutes distrust even in the rightfully condemned, for the general and generous confidence even of him who may think or know, in his own case, the law has erred. Let such a persuasion grow but a little, and we shall find no more instances of the spirit of him who said
I had my trial
And must needs say a noble one: . . .
The law I bear no malice for my death,
It has done, upon the premises, but justice;
whilst “every puny whipster” who thinks himself aggrieved, will only proclaim “with outstretched throat,” the impossibility of obtaining equal justice, and the corruption of the law. No man can doubt it is the paramount duty of those concerned in its administration to “abstain from all appearance” of this “evil,” and give no possible colour to its existence. In truth, so sacred is the subject I have here handled, that nothing but the most weighty considerations should induce us to mention at all the circumstance of so just a rule having ever been disregarded. These however do exist in reference to the present matter; and where the question at issue is the preservation of the true faith in our branch of the Church of Christ, we dare not omit the notice of any of the dangers which beset it. We dare not, for peace’ sake, or for the sake of a worldly expediency, “keep silence.” We dare not, for fear of casting an imputation (not, observe, a vague one, but supported by fact and testimony) on the administration of human law, run the risk of its being cast upon the truth of God, and the Church of Christ. Much have these things pressed upon me, in reference to our present state, and future prospects: and many times have I weighed them before venturing thus to bring my thoughts to light. “My heart was hot within me, and while I was thus musing, the fire kindled, and at the last I spake with my tongue.” [48]
But it is more than time that I turn from these, however very important, yet somewhat preliminary considerations, to the more direct purport of your letter, and to the answer I may be able to give to the charge contained in it. What this is, your title-page sufficiently declares: “The want of dogmatic teaching in the reformed Church of England:” and my answer is plain and simple: such as you will not quarrel with for want of distinctness and pertinency, if only I sustain it. I join issue as to the fact. I maintain we have a rule of dogmatic teaching in our Church’s constitution on all those points on which it is essential a Church should have it. I think, in and by God’s good providence over us, (and if it be so, you will yourself allow it is a most singular mark of his gracious favour towards us,) this has been preserved as to what we ought to teach, though I acknowledge in practice and in fact, we fall lamentably short of teaching, and our people of believing according to it. I imagine, however, you will not charge it as any conclusive argument against the catholicity of either ourselves, or any branch of the Church of Christ, that gross and frequent cases of practical short-comings may be adduced, if it can nevertheless be shown, that the Church’s rule requires what is right, and, rightly understood, dogmatically inculcates it.
You may be curious to learn upon what basis I think myself able to sustain so direct a challenge to the whole principle and bearing of your second letter; and, strange to say, I know no one, whose words so aptly enunciate, and give expression to my argument as your own. You will think, I doubt not you have disarmed the quotation I am about to make, (which by this time you anticipate,) by having already brought it forward yourself, and stated you can no longer rely upon it. But you must excuse me for not so easily parting with it, and for endeavouring to prove you right in your earlier view, even against your own subsequent change of mind. “It is a miserable matter,” (you say, after having given various authorities among our ritualists to confirm your view of absolution,) “it is a miserable matter merely to be able to escape from condemnation. I am not content to think the interpretation which I insist upon is but one of many which may or may not, according to individual caprice or individual ignorance be held without rebuke by our people, and taught by our clergy. If any one of the above theories is the true one, all the rest are false. And are we for ever to remain disputing? Is there no voice by which we may learn the truth? I believe that there is a voice, long neglected and long forgotten, the voice of the Church of England. Let us listen to her teaching, and we shall find that now, as of old, by the great grace of God, she does not speak with a doubting or hesitating tongue.” [50]
This was your opinion at the close of the year 1848, and this is what I still claim. I am prepared, even against yourself, to maintain, and I believe I can shew, its soundness. Do not suppose that I dream of quoting this or a further passage which I shall have occasion to extract presently, merely in order to show a discrepancy between what you asserted then, and what you hold now. I do not desire to cavil with your right to be inconsistent in search of truth, if that were all; and I must allow besides such things have “come to pass in these our days,” between then and now, as may much diminish our surprise at inconsistency or change of mind in any one. At any rate, it would be, I am well aware, a most idle task to endeavour to prove my position in favour of the dogmatic teaching of the Church of England, merely by convicting you or any man of inconsistency, and showing that what you think and say now is different from what you thought and said a year and a half ago. In all truth this is not my object; but I cite these passages, because I know not how better, nay, not how so well to express my own meaning; that I may also comment a little upon the passages I cite, and your reasons for thinking the position they take up no longer tenable; and that in so doing I may add a few words beyond what you said even in 1848, for believing in their soundness. Let me turn to your words. You say, “Here though open to the charge of repetition, I must again lay down the principle upon which alone we can possibly decide what the judgment of the Church of England really is; and to which principle we are bound to bring for proof as to a test every doctrine which we assert or deny.”
Then this principle follows, most clearly enunciated:—
“We declare, therefore, that the Church of England now holds, teaches, and insists upon, all things whether of belief or practice, which she held, taught and insisted on before the year 1540, unless she has since that time, plainly, openly and dogmatically asserted the contrary. This we declare in general. And in particular, as regards that most important question, the right interpretation of the various services in our Common Prayer Book, we further add: that whatsoever we find handed down from the earlier rituals of the Church of England, and neither limited nor extended in its meaning by any subsequent canon or article, must be understood to signify (upon the one) hand fully and entirely all, and (on the other hand) no more than it signified before the revision of the ritual.” [51]