Part 1

Transcribed from the 1850 William Pickering edition by David Price, email [email protected]

[Picture: Pamphlet cover]

A LETTER TO THE REV. WILLIAM MASKELL, A.M.

BY

THE REV. MAYOW WYNELL MAYOW, A.M. VICAR OF MARKET LAVINGTON, WILTS, AND LATE STUDENT OF CHRIST CHURCH, OXFORD.

* * * * *

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.

* * * * *

Second Edition.

* * * * *

LONDON: WILLIAM PICKERING. 1850.

* * * * *

MY DEAR MASKELL,

IN these “last days,” in which “perilous times” have “come,” it seems a duty, to be somewhat less nice and scrupulous as to any charge of presumption or lack of modesty to which a man may lay himself open by making known his thoughts upon the great matters which now agitate us, than would be the case at another time. One whose name will add no weight to any thing he may say, might well shrink under ordinary circumstances from commenting upon your recent letter, and appear, even to himself, over-bold in supposing he can add any thing to the views therein expounded. But the very pain with which we approach these topics is some warrant to express our thoughts; inasmuch as it is, I think, something of a guarantee that whatever is said, will be, at any rate, not said lightly. Most heartily do I desire to adopt and echo your words “that the enquiry on which we are all engaged is far too great to admit of any personal consideration; and our aim is not to win a victory, or to prove that we ourselves are in the right, but to discover the truth, and point it out to others.”

If then I imagine a line of argument tending to elucidate this truth, has been partially overlooked in the expression of your views, I trust I shall stand excused, both by yourself and any others who may read this letter, from the charge of a too great boldness in writing it. The crisis and exigence of the time is, as it appears to me, too great to allow us to stand upon niceties, or permit any thing to be kept back which may even by possibility be found of service in indicating the line of duty.

Let me, however, here say in the very outset, I am not by any means about to attempt an answer to your letter; a task for which I am, in the first place, not qualified, and in the second place, not disposed. I feel the difficulties you bring forward too much myself to be prepared to ignore them, though I will not say I go with you in the whole of the positions you are concerned to establish. But it is _became_ I feel the pressure of many of them so strongly; _because_, much as the names of Mr. Keble and of many who take the same line of argument with him, are to be revered, nevertheless, I am at a loss to make up my mind that they have established an unassailable position in denying the competency and authority of the court of the Committee of Privy Council, that I am the more anxious to say a few words upon one point which appears to me to have escaped your notice.

Let me come at once to this point: and to do so I cannot, perhaps, proceed more conveniently than by making a quotation from your letter. At page 54, you say:—“No doubt this court,” (The Judicial Committee of Privy Council,) “nor any other court cannot make canons: but, as has been before said, this is a question, not of new canons and formularies, but of the right construction of old ones. Now, in such a cause, either the court of the Judicial Committee has authority or it has not: . . . If then the decision of the court is to be listened to at all, it is not easy to discover how one will be able to draw distinctions, and place limitations upon the extent to which it reaches. _There seems to be no middle way between accepting and acting upon it_, _and repudiating it altogether as if it had never existed_. I mean, repudiating it in every other respect than in the one point, comparatively unimportant and trivial, of the institution of a certain person to a certain benefice.”

You say, it is not easy to discover a middle way. I would hope, though not _easy_, it may be _not impossible_.

Let me however here, and in the first place, clear myself from any suspicion, if you should be inclined to attach it to me, that I am about to seek a middle course by softening the amount of error contained in a denial of the exclusive doctrine of regeneration in baptism. Let me not be deemed guilty, even in thought, of doubting that such denial is a denial of the “one baptism for the remission of sins,” and is absolute unmitigated heresy; being such as would have shut out any Church permitting its profession, from the communion of Christendom in the primitive ages; such as no Church can maintain, and remain a living branch of the one Body of Christ. I cast to the winds and repudiate with all my soul, that spurious charity of our day, which would seek to “please men” at the expense of God’s truth; which would recommend the Gospel by denying the Faith; which would render it more popular or palatable, by explaining away the Creeds; and all, to be able to include _the more_ within the Church’s pale, under the plea of an extended usefulness. Such liberality (with what is not our own to give,) is, in my estimation, a giving away God’s honour, and so, mere and absolute treason against HIM: therefore is a giving away our place in His Church, and a blotting out it’s name from the book of life.

Let me explain further: that in what I am about to write, I am going to admit, at any rate for the sake of argument, the authority and jurisdiction of the Committee of Council as a tribunal in this case. I may, and indeed do think, that in your letter, you have allowed too little for the difficulty in which the Church has been placed as to making her voice heard: too little therefore to the circumstances which have hitherto trammelled her, as accounting for and excusing her silence, especially in later times: as for example in the changes made in 1832, and perhaps in other instances. Still I am not concerned in what I am about to write to controvert your positions on this matter, because for the present purpose of my argument I am going to admit the competency, i.e. the authority as distinct of course from the fitness, of this tribunal to try the issue, between Mr. Gorham and the Bishop of Exeter.

Still, as it seems to me, both these points may be conceded: first that the court is sufficient: and secondly, that to deny unconditional regeneration in the case of infants, is heresy; and yet, it may be reasonably maintained, that whatever the decision in this trial shall be, The Church of England may not stand committed to heresy thereby.

No doubt, at first sight this will appear a paradox; and the interpreter the harder to be understood of the two, in thus imagining it not impossible to find a middle way between “accepting and acting upon this court’s decision, and repudiating it altogether as if it had never existed.” But I mean, not impossible to find a point of view, regarding the tribunal from which, we may be able justly and reasonably to allow it’s competency for the present judgment on doctrine, and yet to repudiate, not exactly the decision itself, but the effect of it as committing the Church at large: repudiate it, in your own words, “in every other respect, but the one point comparatively unimportant and trivial of the institution of a certain person to a certain benefice.”

Now the only postulate I ask for this conclusion, is, that the Church shall not, and cannot, stand committed to heresy without proof that her crime is something not accidental, but wilful and deliberate; something more than a mistake, which she is ready and willing to clear up the moment opportunity is given her to do so. In short that as a man is not a liar, without the intention to deceive; so a Church is not heretical, unless the animus of heresy be proved against her.

If you will concede me thus much, I think I may be able to shew that there is a middle course between denying the jurisdiction of the Court, and admitting the _weight_ even if I allow the justness, of the sentence: that is to say, the sentence may be such as under the circumstances, the judges were bound to give, (I am not conceding but supposing this:) and it may therefore carry the conclusion that the Church’s formularies on the subject in question are indistinct; still without proving also that the Church ever intended them to be so; and therefore without affording ground to say that, though her words are ambiguous, her heart and mind have ever been heretical. Of course upon the strength of the sentence, if thus given, Mr. Gorham would gain his institution; but I say again, I do not think the Church would be committed to his heresy.

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.

But shall we on this account blame the judges in the case? Assuredly not; they have but done their necessary duty in interpretation. Shall we say the court was not competent, or the decision not binding, or in any way attempt to resist its legal effect? Assuredly not; or we overthrow all principles of law and order. Nevertheless shall we say that this judgment convicts of cruelty or double dealing the framers of the measure, or the parliament which passed it? Assuredly not; because it is much easier; much more accordant with common sense and experience; much more agreeable to charity and reason, to believe that the subtleties of language introduced an unintentional ambiguity, which the judge’s eye was obliged to search out and judicially recognize, than to believe that Mr. Fielden, or Lord Ashley, or even parliament at large, when they professed to relieve young persons working in factories, intended to “palter with them in a double sense and keep the word of promise to the ear but break it to the hope.”

Does any one then, I ask again, now feel justified in charging those parties with cruelty, whose bill is nevertheless found capable of a cruel working. Do we charge them with the intention of such ambiguity, and such consequences, though they are found both to exist in the act of parliament? Do we infer the animus from the wording, and say that such as the bill is practically, such _must_ have been the intention of its framers?