Nb. The text that follows was originally prepared in relation to the legality of nuclear weapons, however, its relevance is equally great in relation to the constitutional position regarding the possibility of war with Iraq. The text has been slightly amended as of January 2003 to include (in Section 2), reference to the Coronation position regarding the relationship between Christianity and British law.
Ulla Roder, Angie Zelter & Ellen Moxley
Constitutional Theology in Legal Defence
of Ellen Moxley of the
Three" Peace Women
by Alastair McIntosh
Click here for official Trident Ploughshares website
Keywords: Trident Three, Treaty of Union 1707, Royal Titles Act 1953, Union of the Crowns 1603, Treason Act 1708, Treason Felony Act 1848, Defender of the Faith, DG, FD, Act of Union 1706, Church of Scotland Act 1921, Barrier Act procedure 1926, Articles Declaratory, Angie Zelter, Ulla Broda, Quaker Peace Testimony, Sheriff Margaret Gimblett, British constitution, constitutional law, Kelso Seal, David 1, Declaration of Arbroath, A V Dicey, Sidney Low, Sir Edward Coke, Robin Callander, English Crown, Scottish Crown, Canon Kenyon Wright, Scottish Constitutional Convention, John Calvin, Walter Bagehot, James Dalrymple Viscount of Stair, Lord Stair, Institutions of the Law of Scotland 1693, Sir William Blackstone, Lord MacKay of Clashfern, Sir Kenneth Jupp, Church and Nation Committee 1989 report, just war theory, sovereignty of parliament, Walter Wink, have a good laugh.
This text is a document prepared at Ellen's request for her legal team. I anticipate using parts of it in my own defence for alleged breach of the peace (blocking the road at the Faslane nuclear submarine base) to be heard in Helensburgh District Court on 5 October 2001.
On October 21 1999 Sheriff Margaret Gimblett ruled that the women's action was "justifed" and the were freed (See: The Times, "Saboteurs cleared as 'Trident is illegal'", p. 4, 22-10-99. A subsequent legal procedure - the Lord Advocate's ruling - concluded that Sheriff Gimblett had been in error. However, it was interesting that Lord Prosser delivered this without wearing his wig, perhaps signifying his discomfort with the finding.
On 5 October 2001 I was prepared to use the following argument in my own defence. I was on trail for alleged breach of the peace for lying down in the road, with 400 others, at the Big Blockade in February. By this time I had further augmented the following case by drawing on the treason acts - particularly "misprison" (or concealment) of treason from the Treason Act 1708, and the Treason Felony Act 1848 (which makes it an offence to deprive the Sovereign from the style, honour or royal name of the Crown of the United Kingdom. My argument was to be that as the Sovereign's title (and therefore style) of Defender of the Faith applies in Scotland (though it is actually an English designation), she is deprived of the style fitting to this when, as Commander in Chief of the UK Armed Forces, she is required to preside over nuclear weapons that the Established Church in Scotland has deemed un-Godly.
However, I was not able to advance this argument in court. As I arrived carrying a large quantity of legal textbooks, I saw the prosecutor laughing. I was asked how I pled, and on saying "Not Guilty," I was told that my plea was accepted because of a "problem" with police witnesses.! I protested that I wanted to make my case, but was told by Justice of the Peace Gillies, "That's the best deal that I'll be offering this morning. Good bye."
I am given to understand that Ian Hamilton QC (with whom I shared a police cell) was similarly acquitted, and that this has happened many times to Morag Balfour, it is supposed because they don't want a disabled rights activist in a wheelchair in Cornton Vale Prison!
The following fragment of a press report on this was picked up from the www.icScotland.co.uk website: note that the case was not to accuse the Queen of treason, but rather, to suggest that her Government was acting treasonably against the Crown.
"Sunday Mail October 7, 2001, NEWS; Pg. 37
NUKE TREASON BID IS BLOCKED
A PEACE activist lost his chance to accuse the Queen of treason after a court dropped charges against him.
Alistair McIntosh hoped to use his trial on breach of the peace charges following a protest at the Trident base at Faslane to accuse the Queen and Government ministers of treason.
But Helensburgh Sheriff Court decided to accept his not guilty plea.
McIntosh, a fellow of the Centre for Human Ecology in Edinburgh, said: "It stopped me mounting my defence. I was prepared to go to jail."
He said the Queen's position as both commander in chief of the armed forces and defender of the faith made her Government's possession of nuclear arms treasonable.
weapons are contrary to the will of God” - General Assembly of the Church of
you members of the jury would agree that sabotaging the ovens of Auschwitz would
have been a moral duty. The moveable incinerator that is Trident is many times
more lethal” - Ellen Moxley, Trident Ploughshares 2000 defendant, 1999.
legal defence for the 3 Trident Ploughshares 2000 peace women argues that in
British constitutional theory, military defence is the ultimate responsibility
of a monarch who is both Commander in Chief of the armed forces and, by divine
grace, “Defender of the [Christian] Faith.” Such implied theocracy sits in a
framework of Scots constitutional law where, contrary to the English position,
the Community of the Realm, and not Parliament, is Sovereign under God. God’s
legal recognition is further emphasised by Scotland’s primary constitutional
instrument within the United Kingdom, the Treaty
of Union, 1707, and it is alluded to in the schedule to the Church of Scotland Act, 1921. Additionally, Lord Stair (like
Blackstone in English law) affirms
that divine law is the foundation and context within which Scots law develops.
It follows from this that British military defence policy as it affects Scotland
ought to be consistent with Christian principles. Such principles were taught by
Christ as pacifism, but accommodated by most of the mainstream churches as
“just war theory.” However, both stances - pacifism and “just war” -
refute genocide as being ultra vires. Nuclear weapons are, of course,
potentially genocidal, which is why they are opposed by the mainstream Scottish
churches which do not, otherwise, adopt a pacifist position. To destroy the
infrastructure supporting nuclear weapons is therefore consistent with a
citizen’s duty to prevent a greater crime from being perpetrated. Within
Christian tradition, the precedent for such preventative destruction was
established by Jesus turning over the tables of the money changers in the
temple. Set in such a context we can see that these three women are not
criminals: they are stalwart upholders of law and order. Their work of witness
calls us back to the constitutional nature of the British state that we are in.
They remind us to raise ourselves up to our nation’s God-given higher vocation
and to turn our backs on those “fallen” faces of nationhood that would
traditionally have been called “sin,” such as possessing weapons of mass
- the Carbeth Hutters’ Case
This defence has been prepared at the request of Ellen Moxley but is also available for her two co-accused - Angie Zelter and Ulla Broda. I have known Ellen through our mutual Quaker membership and the Iona Community since the mid 1980’s. I have known Angie for a year since being asked to advise Trident Ploughshares 2000 on their public relations strategy. I do not think I have ever met Ulla.
The following case comprises constitutional legal material originally put together for the Carbeth Hutters’ eviction case (Ecotheology, Sheffield Academic Press, due January 2000), but recontextualised to address sovereign considerations of defence rather than land ownership. Lawyers for the accused should be aware that in the Carbeth case (acting as a witness in the self-defence of their Secretary, Chris Ballance), Sheriff Kenneth Pritchard prevented me from giving evidence as I was not, in his opinion, legally qualified. He delivered a “Finding in Fact and in Law” “That Alistair (sic) McIntosh is not an expert witness in respect of the law of Scotland as it relates to the leases of heritable property” (Stirling, 10 June 1999, Act. Pettigrew. Alt. Party). Mr Ballance is presently seeking leave to appeal on this and other points. It was Mr Pritchard’s take, not ours, that construed (misconstrued?) our bid as being to express expertise in the law of leasehold. Our argument was about implied terms of contract in a constitutional context.
Mr Ballance did, however, use my arguments as best he could in his summing up. These were rejected by Mr Pritchard on grounds which suggested he had failed to understand the argument as well as he might have if he had been prepared to listen to its proper presentation (The Herald, Glasgow, March 31 1999, p. 12, and Letters to the editor, Herald, 6 April, p. 14 and 21 June, p. 14).
The relevance of this background to the present case is that lawyers for the accused should be aware that the argument being stated here may be an argument that the Courts would prefer not to have aired. Depending on the sheriff’s sympathies and the prosecution’s acuity, procedural tactics may be used to block it and do so drawing upon Mr Pritchard’s precedent.
I shall now present a case in a manner that might be helpful to defence lawyers by using a question and answer format.
(Note: The defence advocates have decided, mid-way through the trial, not to call this testimony. This is because the case has gone well so far, but if I am to be called it would need to be right at the end. They fear that the Procurator Fiscal would find a number of points to object to, and this could have the psychological effect of deflating the defence in the eyes of the jury. I find myself regretfully inclined to agree with them. Nevertheless, the following material may have uses in other contexts).
Alastair McIntosh, in what respect are you qualified to give expert
witness in this case?
My witness is, firstly, on moral grounds as a long-standing friend of Ellen Moxley. This needs little justification. And secondly, as what might be called a “constitutional theologian.” I have many scholarly publications in theological journals. Several of these deal with the interface between Scots or British law and religion. Examples are my work in the Journal of Law and Religion, Hamline University School of Law, USA (XI:2, 1995, pp. 757-788), and Ecotheology, Sheffield Academic Press (due January 2000). Furthermore, as a Fellow of Edinburgh’s Centre for Human Ecology I am advising the head of the Economics Department of the Russian Academy of Sciences on potential theological underpinnings of sovereignty in relation to the Russian Orthodox Church (Land, Power & National Identity, at press, St Petersburg), and I lecture each year on a topic that addresses the constitutional legal considerations of nonviolence to 400 senior army, navy and air force officers of sixty different nationalities on the Advanced Staff and Command course at the Joint Services Command and Staff College, Bracknell. Finally, as part of my masters degree in business administration (MBA) from the University of Edinburgh, 1981, I attended law classes delivered by the late Professor Wilson.
What place does the Judeo-Christian God have in Scots law?
My understanding is that God’s place is, firstly, at the very heart the Scots construct of nationhood, secondly that it is seated at the heart of British constitutional theory to which Scots constitutional law is allied, and thirdly, it is at the root of jurisprudence in Scots law. Whether we personally believe in God or not, and whether our God is the Biblical God or not, it is nevertheless a fact that British citizenship, as it is presently constructed in law, looks to this God for legitimatisation and contextualisation.
The Introduction to the Gideon Bible, as placed in many
British hotel rooms, notes the following:
During the British coronation ceremony the Bible is presented to the monarch with the words: “We present you with this Book, the most valuable thing this world affords. Here is wisdom. This is the Royal Law. These are the living oracles of God.” (p. 11).
Indeed, in this very court of law the standard of truth by which many witnesses swear oaths is one based upon this God. I should point out lest there be any puzzlement about the issue that the reason we Quakers choose to affirm rather than swear oaths is that we believe that the importance of life being set in a divine context is so great that we ought not have two standards of truth - one under oath and one for other times. All our lives should approximate truth as closely as we are capable of achieving. To swear an oath would suggest a dual standard of truth, and therefore Quakers in court choose simply to affirm.
3. To start with your first assertion, what is the constitutional place of God in Scots nationhood?
Historically we can reliably trace it back to at least the 12th century when feudal tenure is believed to have been introduced into Scotland from the Continent around the time of David I. The “Kelso Seal” of 1159, made by David’s successor, is considered to reveal this French influence. In Scotland: a New History (Pimlico, London, 1992), Michael Lynch states that the seal represents “a king who still holds a sword, the traditional symbol of kingly power, upright in his right hand and an orb, a novel emblem of the sacred nature of kingship, firmly grasped in his left” (p. 80, my emphasis).
The 1320 Declaration of Arbroath which was endorsed to the Supreme Pontiff on behalf of “the community of Scotland” placed Christian identity at the core of national sovereignty - and to successful political effect. I have discussed this in my St Andrew’s Day (30-11-98) essay in The Herald newspaper. But briefly, Scotland is portrayed as being confirmed in the Christian faith by St Andrew and remaining under his “special charge.” King Robert the Bruce is likened to “Maccabaeus or Joshua” in defending what the Declarations portrays as that most important of all Scottish national attributes - freedom.
I shall address other aspects of the status of God in Scots nationhood below in relation to the United Kingdom.
Secondly then, what is the constitutional place of God in the British
We must, in a manner that some leading constitutional experts have failed so to do, distinguish between the English constitution, the Scottish one, and the constitution of Great Britain - or the United Kingdom as it is known in law. As Sidney Low put it in 1904, “British government is based upon a system of tacit understandings. But the understandings are not always understood” (in Vernon Bogdanor, Politics and the Constitution, Dartmouth, Aldershot, 1996, p. 6). What follows is therefore necessarily complex to unpack.
In English constitutional law, which as we will see below is often confused with Scottish and British law, sovereignty rests in Parliament. Vernon Bogdanor (op. cit., p. 5) therefore sums up the great constitutional expert, A. V. Dicey, in eight words: “What the Queen in Parliament enacts is law.” In the absence of a single agreed source of written constitutional understanding, our “unwritten constitution” is based on convention. Bogdanor continues (p. 6):
But in Britain (sic), doctrinal disagreement can be masked by attachment to a common stock of historical precedents; the standard of appropriateness is internal to the system, not external to it. For there is no objective reference point, no pouvoir neutre beyond Parliament, which is able to erect a standard for what is constitutional.
Sir Edward Coke in like vein famously surmised (in J. Harvey & L. Bather, The British Constitution, MacMillan, London, 2nd edn., 1968, pp. 7-8):
The power and jurisdiction of parliament is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds.... What the parliament doth, no authority upon earth can undo.
Scottish constitutional law takes a fundamentally different position. Scots constitutional expert, Robin Callander, draws attention to the fact that whilst there is one British sovereign, their are two Crowns. The sovereign personifies both. The English Crown is generally considered to be vested in the Queen in Parliament acting under the principle that, “The Queen reigns, but does not rule.” However, the Scottish Crown represents the “Community of the Realm” - the people of Scotland. Callander, representing Adamson’s position in Vol 7 of the Stair Encyclopaedia of Scots Law, thus refers to (How Scotland is Owned, Canongate, Edinburgh, 1998, p. 44):
... the fundamental difference between the Crown’s sovereignty in the two jurisdictions, based on the nature or identity of the Crown as determined by the respective sources or authority of its sovereignty. The difference is also demonstrated in the different style of monarch’s titles in each kingdom pre-Union. In England, the monarch was the King or Queen of England. In Scotland, the monarch was always the King or Queen of Scots (for example, Mary, Queen of Scots). This difference reflects that in Scotland, in a basic contrast with the English position, sovereignty still derives from the people. The Crown’s identity in Scotland is dependent on the sovereignty of the people and the Crown’s status is as the representative of the people or, as traditionally identified, the Community of the Realm.
Affirmation of the constitutional importance of this distinction in contemporary Scotland may be observed, for example, in a letter to The Herald (24-9-99) by Canon Kenyon Wright, Convener of People & Parliament and, during the seminal period of the devolution process, Chair of the Executive of the Scottish Constitutional Convention. This points out that the 1988 Claim of Right for Scotland, recently accepted by Sir David Steel for permanent display in the new Scottish Parliament, affirmed that, “The foundations ... of the new political culture that we are struggling to build ... are the sovereignty of the people (not Parliament)...” It was, of course, the Scottish Crown that was presented to the Queen at the opening of Parliament.
The implication of the foregoing is not only that the two Crowns are different, but that whilst “united” under the 1603 Union, both retain their distinctive personae or faces, and these personae incorporate fundamental distinctions. As Lord Cooper put it (cited in Callander, op. cit., p. 45), “the principle of the unlimited sovereignty of Parliament is a distinctly English principle which has no counterpart in Scottish constitutional law.” Of course, the apparent contradiction of a unified Crown with two distinct personae is comprehensible given that the Established theological position of the British state has been a trinitarian one, which believes in a three-in-one God. That said, it should be remembered that the 1603 Union was more a union of lines of succession than a “union of Crowns” since the respective Crowns always remained distinct.
The relevance of the foregoing in this witness testimony is to clearly derive the point that in Scotland, the Crown is vested in the people and not, therefore, subordinate to Lord Hailsham’s “elective dictatorship” of an English system that has its roots in early Saxon feudalism (Harvey & Bather, op. cit., p. 18). In post-Reformation Scotland this principle has been linked to the so-called “seedbed of modern democracy” passage in John Calvin’s Institutes of the Christian Religion (IV:XX:8):
Men’s fault or failing causes it to be safer and more bearable for a number to exercise government, so that they may help one another, teach and admonish one another; and if one asserts himself unfairly, there may be a number of censors and masters to restrain his wilfulness.
In the Established churches, we see the difference between the Scottish and English constitutional positions reflected by the top-down role that the Prime Minister plays in appointing Church of England bishops on behalf of the Queen, compared with the bottom-up democratic or “presbyterian” process by which the Church of Scotland elects its Moderator. In other words, there is a sense in England in which God’s representation is rendered subordinate to Parliament, whilst in Scotland it is transmitted through the people. This distinction has colossal implications in arguing the relative strength of the place of God in Scots constitutional law as distinct from the English position with which it is so often confused.
I wish now to turn to the anchoring of God in the constitution. Perhaps our most clear-cut indicator of this is the 1707 (1706) Treaty or Act of Union. This is effectively the national constitution of the United Kingdom. Article II and Appendix I of the Treaty requires that “Her Most Sacred Majesty” and heirs shall adhere, whether we happen to like this or not, to what it calls the “True Protestant Religion.” This means pre-eminently (though not exclusively) the Judeo-Christian construct of God as expressed in the Westminster Confession of Faith, usually drawing upon the 1611 “Authorised” translation of the Bible.
It is to Article IV of the 1647 Westminster Shorter Catechism that we might seek a definition of “God” that might be constitutionally acceptable. This defines God as follows, and does so in terms which, perhaps with the dropping of the third word and possible reconsideration of the gender projection, would remain broadly acceptable to most mainstream Scottish Christian denominations, Protestant and otherwise:
God is a Spirit - infinite, eternal, and unchangeable - in His being, wisdom, power, holiness, justice, goodness, and truth.
The 1707 Treaty finds subsequent expression in the Church of Scotland Act, 1921. The Schedule to this Act contains the Articles Declaratory of the Constitution of the Church of Scotland in Matters Spiritual, which were adopted by Barrier Act procedure in 1926 (in James Weatherhead, The Constitution and Laws of the Church of Scotland, Board of Practice and Procedure, Edinburgh, 1997). Article VI of these acknowledges that “the Church and State owe mutual duties to each other.” This includes recognition of “the divine appointment and authority of the civil magistrate” and:
...the duty of the nation acting in its corporate capacity to render homage to God, to acknowledge the Lord Jesus Christ to be King over the nations, to obey His laws, to reverence His ordinances, to honour His Church, and to promote in all appropriate ways the Kingdom of God.
In Scotland and England alike the Crowns are represented by a single sovereign, Her Majesty the Queen. Under the Royal Titles Act, 1953, she is “Elizabeth II, by the Grace of God of Great Britain, Ireland and the British Dominions Beyond the Seas, Queen, Defender of the Faith.” We find the designations of “divine grace” and “Defender of the Faith” reflected in Latin, for instance, on every minted British coin in the letters “D.G.” and “F.D..” Whether we agree with them or not, then, and whilst we might consider that “Defender of the Faith” refers to an English construct, Christian principles (and, specifically, Protestant interpretations) are central to the existing basis by which the British state legitimatises its legislature, its courts of law and the actions that might legally be expected to follow from its law-abiding citizens and visitors to the country.
Whilst the Sovereign may bear two Crowns, her titles pertain to the one Queen and therefore leave no doubt that the British state is, at its deepest level, theocratic. In Our Mutual Friend Charles Dickens therefore says (in Harvey & Bather, op. cit., p. 6):
We Englishmen are Very Proud of our Constitution, Sir. It Was Bestowed Upon Us By Providence.
Similarly, in his classic 1867 essay, The English Constitution, Walter Bagehot (Dolphin, NY, undated, p. 97) said:
If you ask the immense majority of the Queen’s subjects by what right she rules, they would never tell you that she rules by Parliamentary right, by virtue of 6 Anne, c.7. They will say she rules by “God’s grace”; they believe that they have a mystic obligation to obey her.
In Scotland, by contrast, I think it follows from the argument I have made that that presumption of obedience follows only inasmuch as the monarch is responsive to the wishes of the Community of the Realm, the people, who in turn have traditionally viewed God as their ultimate reference point in matters of “obedience.” This is evident from that formative Scots constitutional instrument, the Declaration of Arbroath, which says:
The high qualities and deserts of the [Scottish] people, were they not otherwise manifest, gain glory enough from this: that the King of kings and Lord of lords, our Lord Jesus Christ, after His Passion and Resurrection, called them, even though settled in the uttermost parts of the earth, almost the first to His most holy faith. Nor would He have them confirmed in that faith by merely anyone but by the first of His Apostles by calling - though second or third in rank - the most gentle Saint Andrew, the Blessed Peter’s brother, and desired him to keep them under his protection as their patron for ever.
The Declaration adds that if the sovereign should fail “the community of Scotland” on whose behalf it was endorsed, then:
... we should exert ourselves at once to drive him out as our enemy and a subverter of his own rights and ours, and make some other man who was well able to defend us our King...
In conclusion, I have sought to establish here that it is a British sovereign’s duty to act in accordance with obedience to God. In England, that position is arguably compromised by the sovereignty of Parliament. Arguably (and seeking alternative positions for English people would go beyond the scope of this paper), this implies that in England citizens must be obedient to Parliament’s laws and that their consciences are subsumed by that Parliament. However, in Scotland the relationship between conscience (or “voice of God”) and Parliament makes it possible to envisage rare situations where breaking criminal or civil law might be required in order to uphold the underlying greater principles of Scottish constitutional law, thereby avoiding treason.
And thirdly, what is the jurisprudential place of God in the underlying
construct of Scots law?
To answer this I shall turn to the so-called “Father of Scots Law” - the institutional writer, James Dalrymple, Viscount of Stair. I refer to his seminal 1681 Institutions of the Law of Scotland, using the 1693 edition (Edinburgh & Glasgow Universities’ Press, 1981).
Stair’s position is uncompromising. His work opens by famously declaring the position of God as the source of law to be such as to “make the absolute sovereign divine law” (1.1.1). Stair looks to the law of Moses as “the prime positive law of God” (1.1.9).
Given the contents of, say, parts of Deuteronomy 20-25, Stair thankfully acknowledges that the Mosaic law must be re-cast in Christian context. As he puts it in discussing one example, “Christ did expressly abrogate that law” (1.1.9).
Commenting upon Stair’s achievement in Whose Justice? Which Rationality? (Duckworth, 1988) the great modern Scots philosopher, Alasdair MacIntyre, says that whilst theology became largely redundant in English law with its utilitarian, case-precedent approach, Scots law proceeds more from first principles and these are theological. MacIntyre remarks that:
In Stair’s Institutions theology cannot be excised without irreparable damage to the whole... The compatibility of Stair’s Institutions with the Confessions and the Catechisms is much more than a matter of general principles. Stair on many particular points adduces scripture as confirmation of the moral law... It is important to notice that the appeal to scripture is essential to Stair’s legal argument and not merely a piece of pious superstructure... To have provided such a structure of the laws of Scotland was in itself a considerable achievement; to have done so in such a way that not only the fundamental principles of Calvinist theology, but also what Stair took to be the truths of astronomy and physics could be incorporated into the same structure was a much greater one (pp. 230-233).
The significance, then, of Lord Stair to this case today, is the extent to which he roots Scots law in Scripture. In his discussion of the significance for sovereignty of 1 Samuel 8, Stair acknowledges that it is proper for humankind to make laws “to enjoy their rights ... in safety and security,” but he implies that this must be undertaken in such a way that, “... human laws are added, not to take away the law of nature and of reason...” (1.1.15). In other words, divine law continues to provide the framework in which human law ought to be fashioned.
I would add that a similar stance to Stair’s appears hold sway also in the writings of England’s foremost institutional writer, Sir William Blackstone. In his Commentaries on The Laws of England (18th edn., 1829, Vol 1, section II: 38-41) Blackstone says of the “unerring rules laid down by the great Creator” that: “This law of nature, being coeval with mankind, and dictated by God himself (sic), is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive their force, and all their authority, mediately or immediately, from this original." A note to this passage (note 5) suggests that if a judge should be required to go against his conscience in interpreting the law – as with “the edict of Herod command[ing] all the children under a certain age to be slain,” then “the judge ought to resign his office rather than be auxiliary to its execution.” We might also note A.V. Dicey's Note VII to The Law of the Constitution (7th edn., 1902) which defines "unconstitutional" law as that which is "opposed to the spirit of the English constitution." Set in the context of constitutional theology, we may therefore be led to conclude, from examination of both Scots and English constitutional law, that for a British government to act contrary to divine law is for it to act unconstitutionally. Given that the Bible is an historical document reflecting an evolving and therefore sometimes seemingly-contradictory articulation of relationship with God, that yardstick must ultimately be applied to the highest standard, namely, in accordance with the principle of 1 John 4:8 that “God is love.” Anything less would sell God short.
6. How would more modern authorities view the constitutional place of God?
I think that we would be misled, in a secular age, were we to dismiss concern for the Christian basis of Scots law as belonging only to the past. Allow me to offer some examples.
a) In his foreword to Christian Perspectives on Law Reform (ed. Paul Beaumont, Paternoster Press, Carlisle, 1998), the Right Honourable Lord MacKay of Clashfern, a former Lord Chancellor and President of the Lawyers’ Christian Fellowship, says:
Secular law making and Christianity are not the most obvious companions... The chapters of this book ... show how shallow that understanding is. Not only can the process of law reform in a modern secular democracy to be informed by biblical perspectives, but there is also a great deal to be gained by considering our laws in this light (p. xiii).
b) In The People Say Yes: The Making of Scotland’s Parliament (Argyll, Argyll, 1997), Canon Kenyon Wright, Convener of the Executive of the Scottish Constitutional Convention, connects the relaunch of the Scottish Parliament to the spiritual principles that underlie the Scottish Nation.
c) Wright acknowledges the seminal importance of the Rev. William Storrar’s work, Scottish Identity: a Christian Vision (Handsel, Edinburgh, 1990). Storrar makes many of the same arguments as are found in overlapping parts of this present testimony. He roots Scotland’s constitutional status in the Declaration of Arbroath, the 1560 Reformation, the 1707 Treaty of Union and the Church of Scotland Act 1921. He concurs that “The Scottish legal system is founded on the notion of underlying legal principles derived from the divine law” (p. 3).
d) In his column in the West Highland Free Press (5-2-99), the Rev. Prof. Donald MacLeod, Principal of the Free Church College in Edinburgh, discusses the 1707 and 1921 Acts and concludes:
Scotland is not a secular nation any more than Britain is a secular state. There is a clearly recognised religion which the political power is sworn to protect and preserve... The constitution of the United Kingdom gives a special place to Christianity in general, and to the presbyterian and protestant traditions in particular... It may be, of course, that these legal provisions no longer reflect “the settled will of the Scottish people” ... but if that is the case the law itself must be changed. It is intolerable to govern in defiance of the law and in flagrant contradiction of the constitution. We cannot have the very legislature itself making the law an ass... The nation prays to the God of the Act of Union.
e) Sir Kenneth Jupp, for 15 years an English High Court judge, notes that the case of Donoghue v. Stevenson 1932 (concerning liability where a snail had been found by a girl in a bottle of ginger beer which had allegedly sickened her) was decided by Lord Atkin with direct reference to the New Testament precedent of the Good Samaritan and its implication that we have a duty to our “neighbour” (pers. com., 1999).
f) The 1989 report of the Church and Nation Committee to the General Assembly of the Church of Scotland said:
From a Scottish constitutional and theological perspective this English constitutional tradition of state absolutism has always been unacceptable in theory. It is now intolerable in practice...
Professor Torrance has well set out the theological and philosophical nature of the British constitutional crisis in his essay, Juridical Law and Physical Law, 1982... In his foreword to this essay Lord MacKay of Clashfern, [then] Lord Chancellor, stated, “He argues for the view that all human law making is dependent on the objective reality of Almighty God for its validity. This divine Justice underpins natural law, in its moral sense, and the fundamental law of written constitutions, or a bill of rights, which in turn provide binding legal norms for the statue laws of Parliament and thus limit the state’s sovereignty.”
If God’s place in Scots law is accepted on the constitutional and legal
grounds that you have advanced, what do you consider are the implications for
the present case?
It implies that we must weigh these women’s actions in the light of God’s view on nuclear weapons. In so doing we must remember that our reference point is not the law of Moses per se, which quite clearly did countenance genocide (e.g. Deuteronomy 20), but that law as recast by Christ through the lens of the gospel of love. This urges “turning the other cheek” and not responding to evil with evil in kind (Luke 6:29). We know that Jesus was prepared to take direct action against evil. Most famously, he turned over the tables of the money changers and drove the sacrifical animals out of the temple with a whip he made of cords, thereby saving them (John 2, etc.). However, such use of “violence,” if it can be called that, was clearly intended to be symbolic and certainly not lethal. We see this very clearly in Luke 22. Jesus allows Peter to use a sword. Symbolically, this appears to have been to fulfil prophesy. However, when he cut off the Roman soldier’s ear Jesus said, “No more of this!” and healed the damage done. His ethic seems to have been that you defend yourself up to a point, and you make your point symbolically up to a point. However, you do not step over the threshold of causing lethal or even lasting grievous bodily harm. If pushed to such a point you accept, as he did, being killed rather than being the killer. You express willingness to die, say, for your country, but not to kill for it. Two points follow for the present case from this theological example set by Jesus.
The first implication is that direct but non-lethal action in affirmation of peace and justice is an appropriate part of spiritual witness. Property, in the example I have referred to with Jesus in the temple, was not treated by him as sacrosanct. We may reasonably presume that damage was caused to the temple tables, that money and accounts of transactions, or data, was lost, that the careers of the temple guards who failed to prevent this were adversely affected, and that Jesus’ intent was to deprive the money changers of the manner in which they derived their livelihood. The parallels with today’s accused women’s actions will be clear. However, Jesus was not prepared to take life. He did not follow Peter’s later attempted precedent of using the sword. He did not raise an army. His resistance to Roman rule and corrupt religious authorities was strident, but non-lethal.
The second implication is that there is a spiritual duty to uphold nonviolence against the person and to live in God’s created world with a spirit of reverence towards the natural environment. Theologically the “Body of Christ” incorporates all creation. The Niceano-Constantinopolitan Creed which is the received text of the Protestant churches affirms “one Lord Jesus Christ ... by whom all things were made” (cf. Proverbs 8:22-36, John 1:1-9, Romans 8:19-23). To commit an atrocity against God’s people or creation is therefore to commit it against Christ. War should therefore be trenchantly resisted. This is a Christian duty and therefore, as I have tried to show, a duty implied by law of any person residing certainly on Scottish soil and, quite possibly, more generally on British soil and beyond.
Whilst your interpretation of Christianity would certainly be consistent
with Quaker tradition, how does such pacifism rest with mainstream churches,
particularly the established Church of Scotland?
The mainstream Scottish churches, including the Church of Scotland, have generally rejected pacifism - helped, no doubt, by the Calvinist principle of “accommodation.” In this, Calvin saw that humankind would invariably fall short of the high vocation called to by God. In the ordering of human affairs, he suggested, it was necessary to make compromises. God being a forgiving God would allow “accommodation” of our weaknesses. This was the basis on which Calvin justified going against the Biblical teaching on usury. He suggested that money might be loaned at “reasonable” rates of interest.
On the matter of war, the position of the mainstream churches whether Catholic or Protestant has similarly been to “accommodate” it. This has been effected through Augustinian “just war” theory. For a war to be considered just, it must (1) have a just cause; (2) be waged by a legitimate authority; (3) be formally declared; (4) be fought with peaceful intention; (5) be a last resort; (6) have reasonable hope for success; and (7), be proportional to the end sought. It is on this latter point that the churches have expressed most concern about genocidal weapons, such as nuclear weapons. It is one thing to defend oneself against an assailant and to use conventional weapons as a last resort in so doing. It is quite another thing to take down with one innocent third parties through blast, radiation or subsequent intergenerational genetic damage. From this principle “just war” theory derives its concern that civilian causalities should take place, if at all, only as a carefully unintended consequence and not as a matter of inevitability. A parallel would be the acceptance of the inevitability of road accidents involving pedestrians, but taking every reasonable step to minimise the frequency with which these occur.
Because nuclear weapons cause inevitable damage to innocent third parties, the mainstream Scottish church position is to consider them immoral. They are morally disproportionate. The 1984 General Assembly of the Church of Scotland, for example, resolved that “Nuclear weapons are contrary to the will of God.” Indeed, the Rev. Maxwell Craig, who was until his recent retirement Secretary of the churches’ umbrella group, Actions of Churches Together in Scotland (ACTS), became a fully signed up member of Trident Ploughshares 2000 (and therefore, in law, a fellow conspirator with the accused). This is just one example of the degree to which the Scottish churches consider genocidal weapons to be uncountenancable within a Christian constitutional construct. Of course, Christ himself taught nonviolence, not “just war.” However, even within “just war” accommodation the position would be that if you cannot defend yourself in a temperate way, it is better to accept crucifixion. After all, in Christian belief a new life awaits. It would be irrational to destroy one’s moral nature in order to preserve a way of life which, through the use of nuclear weapons to conserve it, could no longer be considered moral.
Surely if the Crown is Christian in construct, it is aware of these
issues. How, then, do you view the legality of the actions of the accused?
Within the framework of Scots constitutional law that I have discussed, I think the jury might consider that these women have broken the law in a small way, but upheld it in a much bigger way. It would be pedantic in the extreme to think of this as “guilt.”
As we have seen, were they in England their case would be weaker. There the Crown, and so, its divine attributes, are located in the sovereign in Parliament. If Parliament deemed nuclear weapons acceptable, as it has done, it would be harder (though not necessarily impossible) for the citizen to argue against it by posing a direct moral challenge in the way that these women have done. But in Scotland the people are sovereign. That invites consideration that common people, such as these women, have a right and a duty to call Parliament to moral account.
The theological basis of any such challenge is that in Christian theology, both individuals and nations are considered to have a God-given higher vocation, and a “fallen” personality (c.f. discussion of Daniel 10 in Walter Wink’s The Powers that Be, Doubleday, 1999). The work of salvation is to call one another, and our nations, to awareness of what was traditionally called “sin,” and to elevate what we stand for back to its God-given vocation. This may seem like “prophetic” work and therefore rather presumptive, but Scripturally, all God’s people called to be prophets (Numbers 11:29, etc.).
As Commander in Chief of the British armed forces as well as being “Defender of the Faith” by “divine grace,” Her Majesty the Queen ought, really, to be aware of the difficulty posed by the armed forces in Scotland being out of step with prevailing church opinion and specifically, the opinion of the Established Church, the Church of Scotland. This cannot rest easily with the Crown in Scotland. It is therefore acceptable if uncomfortable that in Scotland the Crown is challenged through this case held in its own court of law. We must remember that theologically speaking, even Her Majesty and her loyal armed forces, and even the Crown itself, cannot be perfect. To suggest otherwise - to take an English constitutional position and presume a Bagehotian “mystic obligation to obey” would, arguably, be idolatrous. It would place the state before God. Sinfulness is, sadly, inevitable. But redemption is always a possibility ... if the so-called “sinner” awakes and repents. That is what the British state is called to in the matter of possessing nuclear weapons.
The history of religion shows that spiritual awakening, whether of an individual or of a nation, often comes about through being confronted with the consequences of one’s fallen nature. This is why acts of spiritual witness are so terribly important in religious life. They can call us back to our highest human dignity. They can heal us of our blindness, enable us to walk again and dance, and even raise us from the spiritual death which enables us to countenance potential atrocity such as genocide in the first place.
In causing serious damage to the Trident nuclear submarine underwater laboratory at Loch Goil, these women have testified to the nation. They invite the jury, in this Court today, to examine both our constitution and our consciences. They beg us to uphold that part of our constitution that most deeply affirms human dignity. They ask us to reflect upon the national state that we are in. They challenge us to understand them as the stalwart upholders of a deeper law and order. They call on our discernment to see them not as common criminals, but as the expression of Christ’s spirit testifying before us at this very moment. In short, they beseech this Court to turn its back on the path chosen by Pilate. They beseech this Court to draw upon deep reservoirs of integrity. They beseech this court to hold their case in nothing less than the light of God, and to seek from God the courage it will take to pronounce them “not guilty.”