Attorney-General -v- Glasgow College: Apostolic Succession and English Law

by Philip Jones

(1846) 63 English Reports 908

A will trust made in the 1670s provided scholarships to graduates of Glasgow College to study at Oxford, on condition that they ‘enter into holy orders’ in Scotland.  The testator was a Scotsman who had studied at Glasgow in 1643.  However, he later settled in England, and the trust was of English property.

The Church of Scotland had a presbyterian structure in the 1640s, the time when the testator was a student.  By the 1670s, when he died, it had changed to an episcopal structure, in the sense that it possessed an ordained ministry of bishops, priests and deacons.  After the testator’s death, the Church of Scotland reverted to a presbyterian structure, a result of the ‘Glorious Revolution’ of 1688, which it has retained ever since.  However, an unofficial episcopal ministry continued in Scotland after 1688.

In the 1840s there was a dispute over the administration of the trust.  The episcopalians argued that they, not the presbyterian Church of Scotland, were the true beneficiaries of the Oxford scholarships.  The presbyterians answered that their Church was one and the same as the Church of Scotland of the 1670s, notwithstanding the change of structure in 1688.

The English court, required to settle this dispute between Scotsmen, examined the terms of the trust, in particular the words ‘holy orders’.  It held that this expression could only mean ‘orders by episcopal ordination’ (p.923).

On this basis, the court went on to conclude that the episcopal Church ‘as it now is … is identical with the protestant episcopal Church of Scotland as it was in 1677-9’ (p.926).  The proof of this identity was ‘continu[ity] by an unbroken succession of bishops, from the [1670s] down to the present time’.

However, this succession of bishops had had no legal basis after 1688.  Indeed it had for many years been positively unlawful.  The court overcame this difficulty with the historically questionable assertion that the post-1688 episcopal Church ‘does not appear to have had toleration legally refused to it in Scotland at any period’ (p.923).  It also pointed out that Acts of Parliament passed in the 18th and 19th centuries had lifted the restrictions on episcopalianism and had expressly recognised the Scottish bishops.  This meant that the Scottish bishops ‘can[not] be correctly suggested to have had no legal right to that title in Scotland’ (p.923).

Thus the ratio of the court’s conclusion was the episcopal Church had survived 1688

(1) by an unbroken succession of bishops (a fact)

(2) this unbroken succession had not been unlawful and

(3) it was positively recognised by Act of Parliament.

This case was decided during the tractarian era, when the doctrine of Apostolic succession had become newly fashionable in the Church of England (and in Scotland).  Tractarian influence may explain why the court was evidently impressed by the fact of an unbroken succession of bishops.  Had the case arisen before the tractarian era, the court might have been much less impressed by this fact, and placed more emphasis on the bishop as an official of the state, whose appointment and function is regulated by the law of the land.  The Scottish bishops could hardly have satisfied this pre-tractarian concept of episcopacy.

In spite of this favourable conclusion, the episcopal Church did not obtain the benefit of the Oxford scholarships.  The court ordered an inquiry, to see if anything could be done in this regard.  However, the House of Lords set aside the order: Glasgow College v Attorney-General (1848) 9 English Reports 978.

The House of Lords agreed with the original court’s interpretation of ‘holy orders’.  It also seemed to accept the court’s conclusions (1), (2) and (3) above (at least, it did not expressly deny them).  However, it noted that, as a result of court orders made in the 18th century, the trust property ‘had been declared to be administered, not according to the terms of the testator’s will (that having become impossible), but according to a scheme omitting that part of the direction which required the scholars to enter into holy orders’ (p.989). 

Thus a court-approved scheme had been substituted for the original trust in the 18th century, because the change of Scottish ecclesiastical government after 1688 from an episcopal to a presbyterian system had made it impossible to comply with the condition about entering holy orders.

The Lords rejected the episcopalians’ plea that times had changed since the Glorious Revolution and the 18th century: ‘Is not the presbyterian form of Church government still the established Church government of Scotland? … nothing has taken place since those [18th century] decisions were pronounced which would justify a court … in departing from them …’ (p.990).

The Lords also repeated the questionable assertion that the post-1688 episcopal Church had never been denied legal toleration: ‘it is possible and legal to apply any income for the better provision of the protestant episcopal Church of Scotland’ (p.988) … There was no prohibition of persons following the episcopalian form of church government in Scotland’ (p.990).  If that was indeed the case, it is difficult to see why the 18th century courts should have concluded that the testator’s condition about holy orders had become ‘impossible’.