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Anderson, Stuart --- "The Courts, the church and the constitution by Lord Rodger of Earlsferry" [2009] OtaLawRw 9; (2009) 12 Otago Law Review 197

Last Updated: 26 February 2012


The Courts, the Church and the Constitution

(by Lord Rodger of Earlsferry, Edinburgh University Press 2008,


Subtitled ‘Aspects of the Disruption of 1843’ this book is a revised version of the inaugural Jean Clark Memorial Lectures, a series intended to parallel the Hamlyn Lectures. It is perhaps more historical than the sponsors would have liked, Lord Rodger acknowledges, but it contains not just an exploration of the constitutional crisis that fractured the Church of Scotland but also a stream of analogies and asides about the role of the modern appellate judge. Lord Rodger ’s opinions, judiciously phrased of course, are apparent on many of the episodes and arguments he recounts, as too on their counterparts today, but he draws no large conclusions. Perhaps the themes are too big to expect that from three lectures, one of which discusses not the legal pains of the Disruption but the difficulties of the reunification fifty years later. Still, this is both an entertaining story and a work of serious scholarship with much to say about constitutions and judges, nineteenth century and modern.

Lord Rodger asks what it was like to be a judge involved in Scotland’s most serious constitutional crisis since the union with England. It began as a fundamental struggle for power within the Church of Scotland between the ‘moderates’ and the ‘evangelicals’. The latter, more Calvinist, anxious also to take the Gospel and its regimen into the life of the urban poor, slowly became the new majority.

Schism and secession are ways of life for churches, a renewal of faith that many of them experience at one time or another, some of them (including the Church of Scotland) several times over. As in many a divorce the dispute will often turn into one about property but, unlike a divorce, there is no judicial mechanism for sharing. If the parties cannot agree a secular court will decree one to be the winner, who then gets to keep the name, the buildings and the endowments, but not necessarily the allegiance of the congregations. Usually secular courts touch on the spiritual issues only tangentially, when construing ancient trust deeds to rule which party is following the true (old, legal) path and which is the deviant – a ruling that in itself may be experienced as spiritually painful however tactfully it is delivered. What gave the schism of the Church of Scotland in 1843 its extra dimension was that the Church was the established church, the official church, the one that (on one view) owed its existence and its constitution to acts of Parliament.

When disputes within an established church reach a secular court the arguments can reach deeper into spiritual issues than they do with non-established churches, since the government, and sometimes even

the doctrine, of the former are provided externally by Parliament. There is a sense in which a national church belongs to the people generally, not just to the most devoted adherents for the time being. Inevitably litigation leads to charges that secular courts are deciding matters other than secular law. The Church of England experienced much the same on a smaller scale in the Gorham litigation in 1850. Challenges are made to the secular courts’ jurisdiction, which might blow out into full-scale disagreement about the proper division of authority between secular and religious institutions. That is not the same as Church and State arguments experienced from time to time in the twentieth century, where the church is juxtaposed to the state, because an established church is by definition part of the state itself. So the question can be experienced as constitutional. Further, this particular schism differed from earlier ones in that it did not result from expulsion of minorities, rather from a takeover by a new majority whose acts were then attacked in secular courts by the old establishment. It was a struggle for control of Church institutions in which the group losing internally appealed successfully for outside aid. Each wanted to remain the established church, but on their own terms.

The Church of Scotland had its own rule-making capacity, as any church does, manifested through acts of its General Assembly. Those might be drafted and voted upon in very much the same way as one passing through Parliament. One church law passed by the new majority to hasten its spiritual renewal was the Veto Act, a measure giving congregations a veto over appointments of their minister – by the Patronage Act, an act of Parliament, rights of presentation of a minister were property rights, often owned by lay persons. In addition to raising mere legal issues about the meaning of the Patronage Act and about the ability of the secular courts to adjudicate upon that conflict, the Veto Act had serious social and political implications. At a time of establishment anxiety about Chartist and other social unrest the act of the General Assembly could be seen as undermining the deference properly owing to the lairds who owned rights of presentation and as tending dangerously towards democracy. Similarly the General Assembly’s Chapels Act extended membership of the Church’s governing institutions to ministers occupying posts outside the regular network of parish churches, which favoured the evangelicals and diluted the power of the patron-appointed moderates. Collision with the rules laid down by Parliament in the eighteenth century was inevitable, indeed to some extent it was courted.

Lord Rodger treads his way adroitly through these themes, his eye kept firmly on the way in which the judges behaved. Some of them had a deep and continuing involvement in Church government that would in modern times disqualify them from adjudication. One who perhaps did not himself was the father of a leading protagonist on the establishment side, an advocate in the litigation, a man who was thought by some to have been the spoiler who prevented a compromise being reached in

1840. As Lord Rodger points out, to have applied modern standards of

recusal for bias would have left the bench severely understaffed. He notes also how rarely any of the judges changed his mind during the various cases that marked the dispute, though he himself indicates a sympathy with the majority (establishment) judges who held the General Assembly’s Veto Act invalid but with the minority (evangelical) judges who would have held its Chapels Act valid. The former seems to him plausibly to involve secular rights, whereas the latter does not.

One conclusion, though Lord Rodger does not draw it, may be that each of the judges had a more or less coherent view of the relation of Church, Parliament and secular courts, and a corresponding view of the evangelicalism that was driving the new majority, and those views determined how they would behave in General Assembly and the courts alike. It helped them that stare decisis was regarded as a weak principle. The minority could go on reiterating their position without any feeling that they were acting disrespectfully towards the majority, which must have made it easier for them each to arrive at a personal reconciliation of his roles within the Church and the court.

That weak view of stare decisis, a view that the law exists independently of any particular judicial decision on it, fitted well with the argument advanced by the evangelicals who, having lost in the courts, took their claim to Parliament. They were not claiming that the constitution of Scotland was wholly transcendent, but they did say that Parliament alone was its authoritative interpreter. They were inclined also to see the question as involving more complex constitutional material: the Treaty of Union, the debates leading up to that, conventions and understandings. The constitution and what the courts (including the House of Lords) said was the constitution were not the same thing. This was seen not just as a political claim; it was important to each faction to believe and to demonstrate that constitutional right was on their side. Perversely perhaps, because by then it was too late, Parliament appeared to agree. Its Benefices (Scotland) Act 1843 contained the compromise first mooted in 1840 and declared it always to have been the true principle, though not so as to undo what had been done. Lord Cottenham, who had ruled on the true interpretation of the Patronage Act in the Aucterarder cases, and Lord Campbell, who joined him out of sympathy, formally recorded their dissent: for them the constitution was what the supreme court said it was. By then, however, the secession had occurred.

Lord Rodger tells the stories well, focusing always on the judges, their personality and legal style, the choices they and the advocates made, the language they used, the contexts they thought relevant to their opinions and the impact that they had. As one judge to another he is generous to them, not uncritical, but always understanding that judges do not choose the cases that come before them. His commentaries take him into the modern cases on disqualification of judges for bias (they go a bit too far), the view that judges take sides (quite wrong), the fashion for mediation (not always a good thing), the nature of rights-based claims and the difficulty of drawing the line between the spiritual and the secular in

modern litigation. At the end he reaches a general conclusion about the Disruption judges, but he does not draw together his commentaries on modern judging. Perhaps for a sitting judge that would be injudicious. His focus is on illuminating the past by modern contrast or analogy rather than on analyzing the present with the aid of historical example.

Stuart Anderson, Faculty of Law, University of Otago.

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