Transcribed from the 1850 Joseph Masters edition by DavidPrice,
A LETTER
TO
THE BISHOP OF EXETER.
BY A LAYMAN.
FOR PRIVATECIRCULATION ONLY.
LONDON;
PRINTED FOR THE AUTHOR BY
JOSEPH MASTERS, ALDERSGATE STREET.
MDCCCL.
p. 2PRINTED BYJOSEPH MASTERS,
ALDERSGATE STREET.
p. 3ALETTER.
(COPY.)
My Dear Lord,
In the course of our conversationyesterday you did me the honour of saying that I had presentedthe decision of the Judicial Committee of the Privy Council in asomewhat new point of view to you, and you wished that I wouldput the same down in writing for your more matureconsideration. I do so now—not without the hope thatmy view, if it be correct, may tend to quiet the fears of some ofour more anxious friends by showing them what the effect of thatJudgment really is, and how little when properly understood itaffects the future prospects of the Church. But first Iwould wish to point out that a decision is not properly to betreated as a law. It differs in this most materialcircumstance; that a law governs all future decisions, whetherthe Judges appointed to decide agree with the law or not. But a decision is questionable by them, and only binds them ifthey agree with it. I p. 4grant that a long course of uniformdecisions constantly made, and often recurring, would probably beso 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 whichyou are interested. The Queen’s Bench have refusedyou a rule for a prohibition, and you are questioning that, byrenewing the same application to the Common Pleas. If theyagree with the Queen’s Bench on the merits of the argument,they will decide as the Queen’s Bench have done. Ifthey do not agree they will without scruple act contrary to thatdecision. If the decision of the Queen’s Bench were alaw they could not do this. It may be said no doubt thatthese are courts of co-ordinate jurisdiction, and that theJudicial Committee is the Court of ultimate appeal. Butthis really makes no difference. It is clear that anyfuture Judicial Committee could overrule this decision; and somight even any inferior court subject however to the consequencesof an ultimate appeal against their decision, to which appeal theJudicial Committee itself is not liable. In truth, wherethe House of Lords makes in a civil suit, a decision contrary tothe rules of law, the courts of law very soon, although they donot expressly overrule it, make it practically inoperative bydistinguishing every case which comes before them from it,however minute such distinctions may be; whilst if the decisionbe right and p.5well-founde