The appearance of this undebated Act of Parliament in the attenuated
volume of the Statutes of 1905 almost forces upon sensitive minds an
unwelcome inquiry as to what is the attitude proper to be assumed by
an emancipated but trained intelligence towards a decision of the
House of Lords, sitting judicially as the highest (because the last)
Court of Appeal.
So far as the _parties_ to the litigation are concerned, the decision,
if of a final character, puts an end to the _lis_. Litigation must, so
at least it has always been assumed, end somewhere, and in these
realms it ends with the House of Lords. Higher you cannot go, however
litigiously minded.
In the vast majority of appeal cases a final appeal not only ends the
_lis_, but determines once for all the rights of the parties to the
subject-matter. The successful litigant leaves the House of Lords
quieted in his possession or restored to what he now knows to be his
own, conscious of a victory, final and complete; whilst the
unsuccessful litigant goes away exceeding sorrowful, knowing that his
only possible revenge is to file his petition in bankruptcy.
This, however, is not always so.
In August, 1904, the House of Lords decided in a properly constituted
_lis_ that a particular ecclesiastical body in Scotland, somewhat
reduced in numbers, but existent and militant, was entitled to certain
property held in trust for the use and behoof of the Free Church of
Scotland. There is no other way of holding property than by a legal
title. Sometimes that title has been created by an Act of Parliament,
and sometimes it is a title recognised by the general laws and customs
of the realm, but a legal title it has got to be. Titles are never
matters of rhetoric, nor are they _jure divino_, or conferred in
answer to prayer; they are strictly legal matters, and it is the very
particular business of courts of law, when properly invoked, to
recognise and enforce them.
In the case I have in mind there were two claimants to the
subject-matter--the Free Church and the United Free Church--and the
House of Lords, after a great argle-bargle, decided that the property
in question belonged to the Free Church.
Thereupon the expected happened. A hubbub arose in Scotland and
elsewhere, and in consequence of the hubbub an Act of Parliament has
somewhat coyly made its appearance in the Statute Book (5 Edward VII.,
chapter 12) appointing and authorizing Commissioners to take away from
the successful litigant a certain portion of the property just
declared to be his, and to give it to the unsuccessful litigant.
The reasons alleged for taking away by statute from the Free Church
some of the property that belongs to it are that the Free Church is
not big enough to administer satisfactorily all the property it
possesses; and that the State may reasonably refuse to allow a
religious body to have more property than it can in the opinion of
State-appointed Commissioners usefully employ in the propagation of
its religion. Let the reasons be well noted. They have made their
appearance before in history. These were the reasons alleged by Henry
VIII. for the suppression of the smaller monasteries. The State,
having made up its mind to take away from the Free Church so much of
its property as the Commissioners may think it cannot usefully
administer, then proceeds, by this undebated Act of Parliament, to
give the overplus to the unsuccessful litigant, the United Free
Church. Why to them? It will never do to answer this question by
saying because it is always desirable to return lost property to its
true owner, since so to reply would be to give the lie direct to a
decision of the Final Court of Appeal on a question of property.
In the eye--I must not write the blind eye--of the law, this
parliamentary gift to the United Free Church is not a _giving back_
but an _original free gift_ from the State by way of endowment to a
particular denomination of Presbyterian dissenters. In theory the
State could have done what it liked with so much of the property of
the Free Church as that body is not big enough to spend upon itself.
It might, for example, have divided it between Presbyterians
generally, or it might have left it to the Free Church to say who was
to be the disponee of its property.
As a matter of hard fact, the State had no choice in the matter. It
could not select, or let the Free Church select, the object of its
bounty. The public sense (a vague term) demanded that the United Free
Church should not be required to abide by the decision of the House of
Lords, but should have given to it whatever property could, under any
decent pretext of public policy and by Act of Parliament, be taken
away from the Free Church. If the pretext of the inability of the
Free Church to administer its own estate had not been forthcoming,
some other pretext must and would have been discovered.
Having regard, then, to 5 Edward VII., chapter 12, how ought one to
feel towards the decision of the House of Lords in the Scottish
Churches case? In public life you can usually huddle up anything, if
only all parties, for reasons, however diverse, of their own, are
agreed upon what is to be done. Like many another Act of Parliament, 5
Edward VII., chapter 12, was bought with a sum of money. Nobody, not
even Lord Robertson, really wanted to debate or discuss it, least of
all to discover the philosophy of it. But in an essay you can huddle
up nothing. At all hazards, you must go on. This is why so many
essayists have been burnt alive.
_First_.--Was the decision wrong? 'Yes' or 'No.' If it was right--
_Second_.--Was the law, in pursuance of which the decision was given,
so manifestly unjust as to demand, not the alteration of the law for
the future, but the passage through Parliament, _ex post facto_, of an
Act to prevent the decision from taking effect between the parties
according to its tenour?
_Third_.--Supposing the decision to be right, and the law it expounded
just and reasonable in general, was there anything in the peculiar
circumstances of the successful litigant, and in the sources from
which a considerable portion of the property was derived, to justify
Parliamentary interference and the provisions of 5 Edward VII.,
chapter 12?
_Number Three_, being the easiest way out of the difficulty, has been
adopted. The _decision_ remains untouched, the _law_ it expounds
remains unaltered--nothing has gone, except the _order_ of the Final
Court giving effect to the untouched decision and to the unaltered
law. _That_ has been tampered with for the reasons suggested in
_Number Three_.
John Locke was fond of referring questions to something he called 'the
bulk of mankind'--an undefinable, undignified, unsalaried body, of
small account at the beginning of controversies, but all-powerful at
their close.
My own belief is that eventually 'the bulk of mankind' will say
bluntly that the House of Lords went wrong in these cases, and that
the Act of Parliament was hastily patched up to avert wrong, and to
do substantial justice between the parties.
If asked, What can 'the bulk of mankind' know about law? I reply, with
great cheerfulness, 'Very little indeed.' But suppose that the
application of law to a particular _lis_ requires precise and full
knowledge of all that happened during an ecclesiastical contest, and,
in addition, demands a grasp of the philosophy of religion, and the
ascertainment of true views as to the innate authority of a church and
the development of doctrine, would there be anything very surprising
if half a dozen eminent authorities in our Courts of Law and Equity
were to go wrong?
Between a frank admission of an incomplete consideration of a
complicated and badly presented case and such blunt _ex post facto_
legislation as 5 Edward VII., chapter 12, I should have preferred the
former. The Act is what would once have been called a dangerous
precedent. To-day precedents, good or bad, are not much considered. If
we want to do a thing, we do it, precedent or no precedent. So far we
have done so very little that the question has hardly arisen. If our
Legislature ever reassumes activity under new conditions, and in
obedience to new impulses, it may be discovered whether bad precedents
are dangerous or not.