Scottish Court of Session Decisions

cannot entertain the smallest doubt that, as guardians of the rights of the people of Scotland, we are bound to interfere to prevent these proceedings; and I must farther add, that I cannot concur in any of the grounds given by the Lord Ordinary for recalling the interdict. The bill asks nothing that we are not perfectly warranted to grant, though I would not object to a qualification as to the use of the bell for particular secular uses, as hitherto exercised.

Lord Glenlee.—I am entirely of the same opinion. The question of interdict seemed to me identical with passing the bill. It is curious how this question arose. Mr M'Naughtan being out of the way when Mr Begg wished the bell rung for his new church, the magistrates, instead of just letting the bell be rung and saying no more about it, make a minute, in which they insert this clause:—“The principle being admitted, that the bells be rung on like occasions, on the application of any other religious body, for the purpose of public worship, and also for any public meeting.” It is plain, from the very terms of this minute, that they are going to exercise a right they never were in use to do, for they do not pretend to any practice, but lay it on the principle, which they attempt to maintain, and on that they have not a word to say against recalling the interdict, which is a very moderate one.

Lord Meadowbank.—I have so recently had occasion to give an opinion as to the rights of ministers, magistrates, and heritors, regarding churches, that there is no call at present to enter fully into the question, having been confirmed, by after consideration, in every thing I then took the liberty of stating; and this case materially depends on the decision we then arrived at. My opinion was, that the clergy have right to the possession of churches for ecclesiastical purposes, and cannot be interfered with. Now, in point of fact, this steeple is part of the High Church of Paisley ; and it would take some very strong argument, indeed, to satisfy me that we could separate it from the church, and hold that the minister was entitled to possess one part, while be could not possess the other. If this were the case, the magistrates might order the bell to be rung at the very moment the congregation were assembled in the church, and the worship of God be interrupted. But what is the claim here? It is set forward in clear language in the minute, in which the magistrates maintain “the principle, that the bells be rung on like occasions, upon the application of any other religious body, for the purpose of public worship, and also for any public meeting.” The magistrates are bound to maintain the Established Church, and to protect it from disturbance, and they are not entitled to order the bells to be rung on the application of any other religious body. Indeed, it might so happen, that a majority of the Magistrates and Council of Paisley were Roman Catholics, and, under this minute, they might summon the people to the sacrifice of the mass, or any body of worshippers whatever. Now, they have not even a right to summon the people for public worship by means of a bell, to any but the Established Churches. I conceive that, with the single exception of the King's Chapel Royal, the bell of which was transferred by royal charter to the Episcopal Chapel in Edinburgh, where it still is, no body of Dissenters are entitled to a bell. This is not a new idea. An attempt was made in Fife some time ago to put up a bell at a Dissenting Meeting-house. Opposition was given, however, and the law-officers of the Crown (including the late President Blair) gave a clear opinion, that no Dissenting body were entitled to have a bell at all, and the attempt was consequently abandoned. Still more, therefore, must such use of a parish bell be illegal. I do not need to enter into the practice alleged to have proceeded with consent of the minister. Then the whole remaining question comes to be, the right to ring for secular purposes, and we are not called upon to say whether it is proper to be rung or not at work-hours, or for public rejoicings; for, as to that point, interdict is not craved, and the question, therefore, is not before us. As to the Voluntary Church meeting, however, a more flagrant piece of indecency on the part of magistrates never fell within my notice. Their duty is to protect the Established Church and maintain its privileges; and I do differ from the Lord Ordinary, that no irremediable damage will be done by allowing the bell to be rung for such purposes, pending the discussion of the question. I do think it an irremediable injury, that the inhabitants of this populous town should have the example of magistrates set before them to countenance the pulling down of the Established Church. On the whole, I have no doubt that the interdict should be granted as craved.

Lord Medwyn.—As I concur with your Lordships in the opinion that the interdict in this case should not have been recalled, and should be again imposed, I might not have thought it necessary to trouble the Court with stating at any length the grounds of my opinion, had it not been, that, being the only dissenter from the Established Church at present on the Bench, I am desirous to show that I have considered the question with attention, and being of opinion that it is the privilege of the Established Church alone to assemble her members for public worship by the sound of a bell, I feel it my duty to protect the Church in her rights, and to check every encroachment upon them. In truth, I look upon this case as a very clear one, much more so than the somewhat analogous case we lately had relative to St Andrew's Church.

Attend to the facts here. There is at the old Court-house a steeple and a bell. This is properly the burgh bell. In all burghs it was customary to have such, which were rung for meetings of the magistrates, the holding of courts, and such other secular purposes. When this church was erected, in 1755, there was neither steeple nor bell to it; but it is stated that these additions were made about twenty years afterwards, by a voluntary subscription among the inhabitants, and they were placed in that conspicuous situation as a useful ornament to the town. The magistrates did not put it up themselves; so that I cannot see upon what ground, in their minute of September last, they speak of this being one of the town's bells, the only town bell being that at the Cross. It appears that the bell thus erected by the inhabitants at the church has been used daily for warning the people to and from their works, and for other public secular purposes. This is a use of a church bell which has crept in since the Reformation, where the Tolbooth bell has been given up, or the town has extended beyond its warning voice. For it cannot be supposed that, in the times of Popery, the consecrated church bell was used for any secular purpose; and the curfew, which was regularly rung, and still is in many places, as the eight o'clock bell, was no doubt rung on the burgh bell. This was general throughout Europe, and very necessary, when the houses within burghs were of wood, and thus liable to fire. See Barrington on the Statutes, p. 116., Ducange voce Ignitegium. It was not a regulation peculiar to England alone, an instance of the tyranny of William the Conqueror, but was known in Italy, France, Spain, and Scotland. It is mentioned in Balfour, p. 60, c. 80, from the L1. Burg. “at time of covert fyre,” or, as in the Latin copy of these laws, “quando pulsatur ignitegium;” and, in the Treatise of Crimes, in Skene's Collection, III. c. 33, “after that coverfeu is rung.” In Edinburgh this bell is still rung at eight o'clock from the Tron Church steeple. It is so in Aberdeen. Kennedy's History of Aberdeen, I. 88, and in other burghs also.

When private clocks and watches were few in number, hours were publicly announced from the town clock. Thus, by act James I. c. 144, “It is ordainit that no man in burghs be fund in taverns after the straike of nyne hours, and the bell that sall be rung in the said burgh.” M'Kenzie, in his Observations, p. 31, says, “The bell rung in Edinburgh at nine at night, conform to this act, till it was ordained to ring at ten (as it does), which being altered at desire of the Earl of Arran's lady, when he was chancellor: it is therefore called the Lady's Bell.” This bell is still rung at ten o'clock from St Giles's steeple.

I have no doubt that the use of the church bells for such purposes is to be referred to a period subsequent to the Reformation. Kennedy, Vol. II. p. 46, mentions an instance of this at Aberdeen, “some years after the Reformation,” and it arose from the circumstances connected with the Reformation of religion in this country, where respect to sacred edifices and their appendages was not carried so far as in some other reformed countries, and where the clergy were never recognised as entitled to the patrimony or privileges of their Popish predecessors, although at first they naturally maintained such a claim.

But it is not on any circumstance connected with the secular use of a church bell that the decision of this question depends; it is on the privileges of an Established Church, as contradistinguished from that which is tolerated merely. This is not founded, so far as I know, on statute, but on the common law, and practice, and consent of the country. In times of Popery, all were heretics who dissented, and all heresy was prescribed. After the Reformation, toleration was just as little admitted by the Church, whether its form was Presbyterian or Episcopal, and it was only in the Established Church that people were permitted, and, of course, invited to worship. Bells then could only be in the churches of the establishment.

After the re-establishment of the Presbyterian form of Church Government, and the Confession of Faith, by 1690, c. 5, the case still continued the same. The severity of the laws against Papists was even increased by 1700, c. 3; and ministers of the Episcopal communion were debarred, by 1695, c. 12, from baptizing or marrying, under the sanction of banishment for life, and were only partially tolerated by 10 of Q. Anne. Still severer penalties were imposed upon them and their congregations after 1746, which were only repealed in 1793, after a similar toleration had been granted, in 1791, to Roman Catholics, under certain conditions.

Now, it need scarcely be said that none of these religious communions did or could use a bell for their forbidden, nor do they now for their tolerated, meetings for worship.

As to the Secession Dissenters, the law against non-conformity having been happily repealed at the Revolution, they have always enjoyed the privileges of toleration, but do not now, so far as I know, assert any higher claim. In England, it was thought proper, in granting toleration to Roman Catholics, to provide that no priest should “officiate in any place of worship having a steeple and a bell,” 31 Geo. 3, c. 32, a provision only declaratory of the common law.

It is of little consequence, even though the bell were put up for the decoration of the town alone. The very circumstance of having placed it in the steeple attached to the church, confers upon it all the characters which it would have had if it had been the ancient church bell, or erected at the same time with the church, and by those who built the church. It in fact becomes church property, though not expressly given to the church. This is common sense, and it has been so held in England. Burn's Eccl. Law, Vol. I. 377.

Therefore, on the whole, I am of opinion that the bells of the church can only be rung to assemble people for worship in the Established Church, that this is a distinction applicable to the Church as established, and that it goes beyond the privileges of a tolerated church to claim any such right; and that magistrates, being bound to support the rights of the Established Church, can have no power to authorize the bell, even their own proper burgh bell, to be rung at the meeting of any dissenting congregation whatever, whether of the Secession, of Papists, Episcopalians, or any other denomination whatever.

I am, therefore, for altering this interlocutor, and for reimposing the interdict.