Fragmentum Legis [27]
Anyone who is in any way engaged in the practice of law does not require to be reminded of its complexity or of the need at all times to be practical; this is especially so in our day and age when each succeeding year sees the relentless outpouring of complex and technical legislation, This being so, it is particularly refreshing on occasions to look back to more leisurely days and glimpse some long-forgotten aspect of the law which, although it may now seem irrelevant, was of considerable importance in its own time.
One such example must surely be that of church bells! In strict theory congregations of Christians outwith the established church of Scotland are not, it would seem, entitled to the use of a bell to summon their members to worship. This was clearly stated in the case of Macnaughton v. Magistrates of Paisely (1835) 13 S. 432. The judgments in that case are of particular interest. Lord Meadowbank remarked that, with the one exception of the bell of the King’s Chapel Royal which had been transferred by Royal Charter to the Episcopal Chapel in Edinburgh, it was clear that no body of dissenters [28] was entitled to a bell. He also referred to a previous attempt of a dissenting meeting-house in Fife to erect a bell but pointed out that the judgment of Lord President Blair in that case was quite clear and that no dissenting body was so entitled. In the Paisley case (supra) one very interesting factor was that Lord Medwyn, one of the presiding judges, was himself a dissenter – the only one, as it happened, on the bench in this case. Nevertheless he strongly supported the judgment of Lord Meadowbank because (as he put it) he felt it to be his duty as a judge to protect the established church in her rights and to check every encroachment upon them.
It is not surprising that this case has not, in fact, been frequently invoked and that bells have continued to ring from dissenting places of worship. The question did arise in Kirk Session of Peebles v. Magistrates of Peebles (1874) 1 R. 1139. Here, Lord Deas stated that in his opinion, the sooner the law on this matter was altered or modified the better and that one could safely assume that every dissenting meeting house was legally entitled to a bell if it so wished. In the same case, Lord Ardmillan remarked that any exclusive right which the established church might have had anent the use of a bell was “...opposed to the constitutional toleration which law recognises and justice demands”.
The Peebles case (supra) was taken to the House of Lords but the question of the legality or otherwise of bells for dissenters was not dealt with since the case was decided on grounds that did not call for consideration of it.
Nevertheless, it is virtually certain that the obiter dicta of Lords Deas and Ardmillan in the Peebles case “...tolled the knell of a parting day” and that no Scots court today would even consider enforcing the law as stated in 1835 in the Paisley case.
Accordingly one can say fairly confidently that no dissenting congregation in Scotland need rush to dismantle its bell for fear of imminent legal action!