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.
[The end]
Augustine Birrell's essay: 5 Edward VII., Chapter 12