(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.

But there is another point of view also, and I think a very material one in which I wish to present the decision to you. And it was this of which we were speaking yesterday. Supposing the decision to be of greater weight in governing future cases than for the above reasons I think it is, what is the decision itself? Now it seems to me quite clear that the governing part of every decision as to future cases is the rule of law laid down therein. If the Judges who decide make a blunder as to the facts of the particular case, and upon that erroneous view decide it, laying down the law correctly supposing those facts to be true, the decision may be a wrong one in the individual case, but the law laid down will be right and may well govern in future.

To illustrate my proposition let me suppose that the Judicial Committee in stating what they, from the facts before them, considered to be Mr. Gorham’s opinions, had stated that they considered him as holding “that all children duly baptized in the mode prescribed by our Liturgy were thereby regenerate”—and had proceeded to lay down as a rule that a Clergyman holding that opinion could not justly be refused institution by your lordship. Who could have differed from them as to the rule—however much we might have been surprised as to their opinion on the facts? The rule would be that which would govern future cases. It would have been determined that Clergymen holding the specified opinions must be instituted—and no injury could arise to the Church from such a decision. Our complaint would be that Mr. Gorham did not hold these opinions in fact. This wrong would only apply to his individual case.

Let me now call your attention to what the Judicial Committee have done. They begin by stating, as I have suggested, Mr. Gorham’s opinions as they collect them from the documents laid before them. They are these.

1. That Baptism is a Sacrament generally necessary to salvation; but that the grace of regeneration does not so necessarily accompany the act of Baptism that regeneration invariably takes place in Baptism.

2. That the grace may be granted before, in, or after Baptism.

3. That Baptism is an effectual sign of grace by which God works invisibly in us, but only in such as worthily receive it: in them alone it has a wholesome effect: and that without reference to the qualification of the recipient it is not in itself an effectual sign of grace.

4. That infants baptized and dying before actual sin, are certainly saved.

5. But that in no case is regeneration in Baptism unconditional.

Upon these opinions, and these alone, the Court proceeds to give judgment,—and they hold that your Lordship was not justified in refusing institution to a Clerk holding these opinions. Even if the decision was in the nature of a law, which it is not, it is at the most a law framed in these specific terms. Now taking this to be so, I am somewhat at a loss to perceive which of these five propositions taken to the letter necessarily and clearly militates against any known rule or doctrine of the Church of England.

Does the first? For I have divided the statement into parts for greater convenience. I apprehend not. For that adults being baptized and not sincerely believing what they profess to believe are not regenerate in Baptism, is a proposition, I believe not disputed by many. If this be true, regeneration does not so necessarily accompany the act of Baptism, that regeneration invariably (that is to say in all cases) takes place in Baptism. As expressed therefore, the first proposition is not necessarily inconsistent with true doctrine. Its real fault is its ambiguity. It is open, as lawyers would say, to a special demurrer, and if Mr. Gorham really so expressed himself, I should think that in him an adroit special pleader had been lost to the law.

I proceed to the second clause. That the grace may be granted before, in, or after Baptism. I doubt whether this be open to exception. I speak with diffidence, but I think there are passages of Holy Writ in which it at least seems probable that the grace was granted before, perhaps being confirmed in, Baptism. St. Paul is one instance of it. The assembly at the house of Cornelius another. And who shall say that a converted and believing heathen man, a sincere candidate for Baptism, may not have grace before Baptism? Grace in Baptism does not seem disputable. Grace after Baptism is surely possible. Suppose the case of an adult duly baptized with water, and in the Name of the Father, and the Son, and the Holy Spirit, who being not completely a believer, becomes a complete and sincere Christian believer afterwards. It is at least doubtful, and that would be enough, whether a new Baptism would be lawful in such a case. But I conceive it is, as to this, sufficient to say that the Church in her Articles and Liturgy has not clearly pronounced such a belief to be erroneous.

The third clause which confines the grace of regeneration in Baptism to those who worthily receive it and to them alone is, I conceive, true as far as it goes. It is defective in not adding that our Church holds that all infants are worthy recipients. But, as it stands, it is not inconsistent with such an opinion.

The fourth clause is in the very words of the Liturgy.

The fifth, you will observe, is very carefully worded. It merely asserts, “that in no case is regeneration in Baptism unconditional.” Nor does the Church, as I believe, say otherwise. There is always the condition of being a worthy recipient. If Mr. Gorham thinks all infants are so, and he nowhere in this statement of his opinions says the contrary, I do not think the Church will disagree with him, for it may well be holden that a condition of worthiness is both required and fulfilled in infant Baptism. And in adult Baptism the Church does hold that this condition is not only required, but that it may or may not be fulfilled at the time of Baptism. It may also be that this paragraph means that the condition of using the element of water and the words of our Lord is required. And if so, I conceive we do not differ with him in that respect.

I have now gone through the whole. I hope I may satisfy you as I have satisfied myself, that if this statement of Mr. Gorham’s opinions be a true, full, and complete statement of them, and he holds nothing more adverse to the Church than these exact words necessarily import, you cannot with justice impeach or complain of the decision in his favour. If such an opinion had come before you as Bishop, in his examination, I do not for a moment suppose that you would have been satisfied with it. What in it is ambiguous you would have required to be made more precise. What in it is defective you would have caused to be supplied. But this the Court could not do. They are limited by the actual examination and the opinions to be extracted from it. And they cannot refuse Mr. Gorham’s prayer of institution if the case be not made out affirmatively against him.

The law, then, laid down by the Judicial Committee is, that a Clerk holding these specified opinions, and no more, must be instituted, if in other respects unobjectionable. This law, if it be a law, is that which affects future cases. If, therefore, a Clerk were avowedly to hold now, totidem verbis, that all Infants are not worthy recipients of Baptism, and are not regenerate by Baptism, he will find it impossible, in the letter of this decision, to obtain protection for that opinion. For it is not mentioned in the terms of the decision at all.

Do I then say that I think the decision in this case is right? Far from it. I own that to my mind it is altogether erroneous. But the error consists in this, that the Judges in their supposed abstract of Mr. Gorham’s opinions, have not stated the facts correctly. It seems to me that he holds other opinions not stated in this abstract, which ought to have produced an opposite decision. But this is like the case of a Jury mistaking, or falsely finding the facts of a case. That makes no rule for the government of future cases—though it does a particular and irremediable injustice in the case in which it happens.

I conclude, therefore, 1st. That this is but a decision and no law. That it governs future cases only if the Judges who shall be called to determine them, agree with the reasons given in this case. That if on argument and full consideration these reasons are insufficient, this decision may—ought to be—and will be—overruled. Therefore, it does not govern or affect the Church, as a law made in Convocation would do.

2nd. I conclude that even if it were a law, it must be taken in the exact terms used by the Court; and that those terms construed literally, are not necessarily inconsistent with sound doctrine.

3rd. That the real error in this case is one of fact, viz., that the Judges have misstated Mr. Gorham’s opinions, or, which is the same thing, have not fully stated all the erroneous opinions which, from the documents submitted to them, he really holds; and that this error, lamentable as it is, does not go beyond a wrong decision in the individual case, and cannot be cited as a precedent, except for the purpose of avoiding such mistakes in future.

Now if this be so, why should this decision so much disturb the minds of zealous and sincere men, who in all other respects, and up to this time, have remained in our Communion amongst the most valued of its members? After turning this matter much and often in my thoughts, I must deliberately say, that in my humble judgment it should have no such effect. It may be that the prevalence of erroneous views, brought now under our notice, should cause a greater care to set forth often and more emphatically the truth in this matter. In all probability this will succeed. For the truth needs only to be shown to be successful. Or it may be that your Lordship and your brethren will do well to assist the inferior Clergy, and us, the laity of your flocks, with some assurance and advice on this important subject in dispute, and to declare authoritatively that our Church does not hold doubtful opinions on either of the two great Sacraments, for surely if she did, she would not be a true branch of the Catholic Church at all. I trust we shall not look in vain to our Bishops for an answer to this question.

But in any event, I see no ground for leaving the Church in such an emergency. We ought rather, I think, to cling more closely to her in this struggle against error and latitudinarian opinions.

With many apologies for giving you the trouble of reading this long letter, and with the request that you will favour me with your opinion as to the subject of it.

Believe me,

My dear Lord,
Very faithfully yours.

The Lord Bishop of Exeter.

P.S.—I am aware that it is a received, and probably a correct opinion, that Baptism, if rightly administered, is to all persons effectual regeneration, either for good or for ill. Perhaps it was for this reason that the very same declaration, “Seeing now that these persons are regenerate,” is retained in the service for adults, as is found in that for infants, although the regeneration for good is in adults confined to the worthy receivers of the rite. And there is a further confirmation of it in the peculiar wording of the Article of Baptism, which speaks of them who rightly receive it; whereas, the article as to the Eucharist speaks of those who (not only) rightly (but) worthily and with faith receive it. If this be so, it would seem to exclude worthiness, and with faith, from being necessary ingredients in the effectual regeneration of baptism, though necessary in the effectual regeneration to eternal life.

But this really would not vary the above argument, and therefore I only advert to it here, that I may not seem to have undesignedly omitted it. For it is quite obvious that both your Lordship in your examination—Mr. Gorham in his answers, and the Judicial Committee in their Judgment, refer only to Regeneration to Eternal Life—using it always in the good sense as distinguished from the effectual regeneration above referred to. And therefore granting the above to be the true and correct view of the doctrine, it will leave the present argument precisely of the same, if of any, value as before.

LONDON: J. MASTERS, PRINTER, ALDERSGATE STREET.