Sunday, April 02, 2017

Lawyer Schadenfreude

Haldane, hat in hand.

Richard Haldane was the best, most highly-compensated lawyer in London. He was later Secretary of State for War and Lord Chancellor. In 1904 Haldane, a Scot, took the "Free Church of Scotland" case* a dispute between two Presbyterian churches that had once been one. Haldane represented what I shall call the "Big" Church, which seems called for since the other was informally called the "Wee Church." The issue between Big and Wee was, as in all divorce cases, "Who gets the property?", and the case is one of the most important in Anglo jurisprudence on the issue of church-state relations, the issue there being, "Who gets taxed?" Big had won in the lower court and Wee appealed to the House of Lords. The appeal should have been comparatively small beer for a modestly skilled lawyer, you've already won, just don't let any birds hit the air pump on appeal, and it should have been a walk in the park for one of Haldane's reputation.

Lawyers are a vain subset of humanity. We take credit where credit is not due and shoulder blame where, "Dude, they had a video confession and fifteen unimpeached eyewitnesses against your client.", it is almost always the facts and the law that determine the outcome, not the damn lawyers.

Not so, the Free Church of Scotland case. Richard Haldane lost that case personally. We can take it from Lord Rodger of Earlsferry on that one. Haldane's argument was so abstruse that he lost his lordly interlocutors and thus the case. It took an act of Parliament to untangle the mess Haldane left behind. Barely had Haldane begun than he ran into difficulty. Haldane began his "speech" by asserting the astounding proposition that in this "peculiar case,"

Your Lordships sitting as a Court of Law, have to travel outside what properly comes within the province of a Court of Law.


And, therefore, was not only right but necessary to go outside what were the strict rules of evidence...

Haldane cited precedent for that which there was no precedent and the Lord Chancellor and Lord Davey, hard of hearing, disputed:

Mr. Haldane: This is no new experience. In the Bishop of Lincoln's case your Lordship on the woolsack [i.e., the Lord Chancellor] laid it down that such a case came before you a case the tribunal was called upon to matters relating to doctrine and relating to law it was not only but necessary to go outside what the strict rules of evidence and look works of authority upon the matters of which emerged.

The LORD CHANCELLOR: Rather may I say that it was within the strict rules of evidence. 
Mr HALDANE:  It was within the strict rules of evidence; your Lordship overruled the argument 
which was addressed you by my Lord Davey who was Counsel in the case upon the point.

Lord DAVEY: What case was that? 

Mr HALDANE:  The Bishop of Lincoln's case; your Lordship remembers that exception was taken...

Lord DAVEY:  I was Counsel in the case. 

There then came a moment, every lawyer's nightmare, when it was clear that the House of Lords were doubting everything Haldane said. He had lost credibility: at the very beginning of his speech, on the FIRST PAGE of the official record!

The LORD CHANCELLOR:  Would you forgive me for interrupting you a minute Where is the Bishop of Lincoln's case reported?

Mr HALDANE:  Appeal Cases 1892 my Lord I have not got it here and I am quoting from recollection but I am sure the report is to be found in Appeal Cases 1892. 

He didn't have the cite. It didn't matter to Lord Davey:

Lord DAVEY:  Mr Haldane I cannot for the life of me find out--I have not yet found out--what this has to do with this case...
Haldane would have the House of Lords travel FAR "outside what properly comes within the province of a Court of Law," to philosophy, Hegelian philosophy (on which Haldane was expert), and the navel-contemplating proposition that a thing is not really a thing but a combination of the thing and its opposite:

The LORD CHANCELLOR:  You know,  your proposition which I note the purpose of, appears to be this, that the two doctrines, which certainly ever since the commencement of the seventeenth have been recognised as directly opposed, are not really opposed at all.

Mr HALDANE:  Yes; I do not admit for a moment, my Lord, that they are opposed.

 The LORD CHANCELLOR:  I thought so.
FAR beyond. Haldane is in the Outer Limits and the Lords do not wish to accompany him:

The LORD CHIEF JUSTICE:  Argue that on these two Creeds as much as you like Mr Haldane but speaking for myself it does not advance it one bit for the purpose of our present discussion either to quote the Scriptures or to quote these Articles of the English Church of which you have only read one part it seems to me we have nothing to do with them I do not agree with you but we have got to consider whether there is inconsistency in these doctrines.
The LORD CHANCELLOR: ...what you propose that we should do would immediately change what we have to do with into a theological discussion as to what is the true doctrine, and not what is the meaning of these doctrines we have before us as constituting the Trust. 
The LORD CHANCELLOR:...What we have to construe is what the Free [i.e. "Big," not "Wee"] Church adopted as its Standard. 

Mr HALDANE:  Yes I want to get what the Free Church--- 

The LORD CHANCELLOR You want to show that Arminius himself was not an Arminian.

OMG. There comes a moment in some lawyer's practice when he sees that learned co-counsel is driving the whole flock of Big birds right into the air pump and it becomes his disagreeable DUTY to yank the jackanapes off the stage before all is lost. (No such loving intervention occurred. Haldane continued.)

The LORD CHANCELLOR:  I do think we are getting a little wide. Surely we must, if we can, admit as I do, the power of exposition of contemporary theological controversy; but we must get a little quicker to what is the real test here, whether these two doctrines as agreed upon by their respective Churches are reconcilable. 

That's a big HINT, Haldane.

Mr HALDANE Well take it so my Lord and I do not want to go one hairs breadth beyond that but I do want to show that the words I am going to quote of Calvin from his Commentary on the Gospel of St John... 

OMG, Haldane.

Lord JAMES of Hereford: You have read something from Calvin What is your object?  Is it to show that the Confession of Faith means something different from the extract?...Is there any doubtful expression in the words? Are they not as we may read them or do you mean that there is a hidden difficulty from what is on the surface?

Mr HALDANE No I mean this if there were two ordinary human beings and one had complete control over the other and one predestined the other's actions it would of course follow that the second the one controlled had no free will What is held by theologians is that that is not true of the relation of the Divine mind to the human that has been held right through all periods of the Church and is held by the first theologians of to day.

 Lord JAMES of Hereford:  With the greatest deference I have not the slightest idea how that last answer of yours answers what I have put to you.

I have had on one occasion to make the painful decision to rise from co-counsel's chair and go up to lead counsel in the middle of jury trial and explain to her that she was bird pumping. I made the decision and I did it. SOMEONE should have done this here to Haldane.
Lord JAMES of Hereford: To come down to a very simple matter not tonight as there is not time probably but perhaps to morrow morning I wish you would take page 2 of Appendix A and take Articles III and IV and tell me how I am to read them by the light of anything you have got there. I
have not the slightest idea as to what you have said just now.

THE EIGHTH DAY (sic, official record)

LIKE NOW! Before he starts again! Someone should have taken over the argument for the Bigs.

But, they did not and on the eighth day he did not rest, he quoted himself:

Mr. Haldane:...Now my Lords I have one other reference and then I have done There is a book which was published in 1841 by Professor Vatke a Professor of Theology at the University of Berlin which is perhaps the best known book on the freedom of the will and the most important work that has ever been written on that subject I have myself translated a few sentences from that book and I would venture to read them to your Lordships. I will read a translation from page 414 of the German edition The title of the book is Vatke's Die Menschliche Freiheit..

And condescended that he did not expect his Lords to understand his erudition:

Mr. Haldane:...I do not ask your Lordships to follow these things out I only cite them for the purpose of showing...that here is what is called an antinomy. There is a book which some of your Lordships know written by Mr Balfour upon the Foundations of Belief...The thesis of the book is that the contradictions in theology are not more striking than the contradictions of science and that the solution to all these contradictions is to be found in tracking them to their source and the mistake is that you have looked at things from too exclusive a point of view and have not taken a large enough conception 

Lord ALVERSTONE: Would you kindly tell me what you mean by antinomy?
The Lord CHANCELLOR: I suppose the word is derived from the two Greek words anti and nomos.

Mr HALDANE: Yes my Lord but it has nothing to do with the antinomian controversy.
Mr HALDANE:  All I am doing now is not to ask your Lordships to accept these things or even to follow me in my reasoning about them but to recognise that the first thinkers.

Lord JAMES of Hereford: The first thing is to understand you I hope I have tried my best but I cannot say I have succeeded very well so far.

The Lord CHANCELLOR I confess that though this is very interesting it does not strike me that it meets the point that was put to you and that still stands for exposition. We have got a particular form of words from which a particular set of persons say they derive this doctrine such as it is...who have put it in language which seems to me not to be susceptible of a double meaning at all--I cannot understand there being any ambiguity about what they have said.

Mr HALDANE: If I were entitled to argue with your Lordship instead of before your Lordship I would take your Lordship at once to the Westminster Confession and challenge your Lordship's minor premise.

The LORD CHANCELLOR: By all means. 

Mr HALDANE: My proposition is that the Confession of Faith does not assert exclusively the one side which your Lordship is putting I submit your Lordship is laying stress exclusively upon one side of the antinomy but that the other side is also here in the Confession--

The Lord CHANCELLOR: You seem to be fascinated by that word antinomy...
Lord JAMES of Hereford: I do not follow that. I wish to speak with all reverence...Is it not said somewhere that it is a mystery?

Mr HALDANE:  It is a mystery and if you turn to Article 8 of this very chapter you will see it is called a mystery and there is a warning there as to handling it with prudence and care It says The doctrine of this high mystery of predestination is to be handled with special prudence and care.

Lord JAMES of Hereford: That is not the mystery I mean It is your explanation which I could not follow.

Mr HALDANE No doubt they are both very difficult...


Lord JAMES of Hereford: I am most earnestly desiring to follow your argument but I have great difficulty in following your argument at present. 
The LORD CHANCELLOR: I am not quite that I follow all you say because are dealing here with metaphysics not with theology, I think. But the plain proposition you have to meet this: Whatever be its real meaning, although you may establish an esoteric meaning of it which to the ordinary mind is not plain (I am putting it mildly), the question is whether you have accepted a particular creed or test or symbol, call it what you will...That is the question which as it seems to me you have to deal with and I protest against the idea that you have to go away from that and begin to discuss these doctrines in the abstract either founding yourself on Scripture or on the metaphysical works of learned persons. What you have to do is to show that you have the right to alter the test which was the agreed test of those who belonged to the congregation.

Really, the Lords have instructed Haldane now numerous times what they want to hear, it really is a very simple matter, but he just cannot do it. More usage of "antinomy," discussion of predestination and finally:

Lord JAMES of Hereford:  I never knew how incapable I was of understanding these things until I 

heard your argument. I know it is my fault entirely but I cannot follow you.
The LORD CHANCELLOR: I should have thought that your proposition, and if I may say so I think it is a little obscured by metaphysics,  putting it in plain terms is this: That taking Arminius on the one side and Calvin on the other if they had only been good metaphysicians they would really have understood that they did not mean what they had said but had misunderstood each other. 

Mr HALDANE:  Well Arminius would certainly to the end of time have been denounced by some--

The LORD CHANCELLOR: I am afraid I must interrupt this interesting argument for a short time.

After a short adjournment---

It is too late now, all is lost. Haldane has lost the Lords and lost the case. There is nothing left to do in this short adjournment but take Haldane out and shoot him.

Maybe somebody talked to Haldane during the short adjournment (they did not take him out and shoot him) because when he comes back he reads as rattled. His condescension has edged closer to insult, here in this exchange:

Lord JAMES of Hereford: I do not think that anyone doubts that free will must exist...

Mr HALDANE:  This is quite general my Lord. 

The NERVE of this guy!

Lord JAMES of Hereford: Yes, but you must take it according to the subject matter you read before.

Mr HALDANE: I submit that is an unnatural reading of the context.

Lord JAMES of Hereford: Why? 

Mr HALDANE: And there is no reason for reading it so apart from the text. 

Lord JAMES of Hereford:  I will tell you one reason. That it is contradictory and absurd almost to contradiction if you do not read it so; that is one reason. 

HAHAHAHAH! Good for old Lord James of Hereford. He told Haldane!

Mr HALDANE: Our proposition is that it is not so every observation your Lordship has made would apply to the passages in the New Testament.

Lord JAMES of Hereford: You are going into another field; here you have an explanation which makes this cease to be contradictory, and makes it reasonable.

Mr HALDANE: My point is that the most unreasonable thing of all would be to take the construction your Lordship considers reasonable because it would make the will of God the direct cause of sin. 

Omg, the most unreasonable thing of all would be to take Lord James of Hereford's reading as reasonable. Sure knows his audience, huh! This was a distinctive trait of Haldane's lawyering. John Buchan, Lord Tweedsmuir wrote that where Haldane differed from other lawyers was in "presenting his argument as an inevitable deduction from any sane conception of the universe."

Mr HALDANE: Well there my Lord [speaking to Lord James of Hereford] you are dealing with something that requires special knowledge just as the scientific specification of a patent does.

In other words, YOU don't have that special knowledge, I do.

The LORD CHANCELLOR: You say people ought not to understand it in the ordinary meaning and that you must have some esoteric doctrine in your own mind which will enable you to filter down the words into something that I think practically means nothing.

Haldane and Lord James of Hereford really get into it now. This is a street argument now, voices were raised, no doubt:

Mr HALDANE: I take the ordinary meaning 'God hath endued the will of man with that natural liberty that it is neither forced nor by any absolute necessity of nature determined to good or evil.' What is plainer than that?  Why should it be read unnaturally?

Lord JAMES of Hereford:  It is not unnatural it is explained by what has gone before.

Mr HALDANE: Why should it be explained by what has gone before? It confines the doctrine to the Selected.

 Lord JAMES of Hereford: Because it contradicts what the Confession said before if you do not do it.

Mr HALDANE: If you say it contradicts it you assume the whole point against me.

Lord JAMES of Hereford: I do not indeed. I assume I read there what is there. 

Mr HALDANE: No, because your Lordship says the reason for giving this other than the general meaning is because of the contradiction.

Lord JAMES of Hereford: It is to avoid contradiction. 

Mr HALDANE: Is there a contradiction? That is the whole point--My whole argument.

Lord JAMES of Hereford: Take your reading how do you explain it?

Mr HALDANE: My reading is that it is...

Lord JAMES of Hereford: Take it generally. 

Mr HALDANE: This is an assertion that man possesses free will in harmony with the Divine predestination which I have told your and I have quoted authority...

Lord JAMES of Hereford:  If you read the definition of predestination it is unchangeable and must be.

 Mr HALDANE:  Your Lordship is only reading a part of it.

The LORD CHANCELLOR:  It says so,  it is incapable of change. 
Lord JAMES of Hereford:  If there is no contradiction it seems to me you are getting rid of the doctrine of predestination altogether.

Mr HALDANE: No, my Lord I am not; your Lordship is assuming if I may respectfully say so, an anthropomorphic conception of the Supreme Being ["An anthropomorphic conception of the Supreme Being," I bet Lord James of Hereford had no idea he was doing that.]. It is very difficult to discuss these things but I must say your Lordship is really assuming that the Supreme Being stands to a particular man in the relation of another man a cause external to Him in space and time acting on space and time and separate from Him as one thing is separate from another. The whole point of the speculative teaching has been that that is not so; the whole point of the Church has been that that is a 
totally inadequate conception and that at any rate without resorting to any explanation they have to hold the two things as in harmony and reconcilable.

Lord JAMES of Hereford: Mr Haldane till you told me so I had not the slightest idea that I was conceiving that.


Mr HALDANE:  I am afraid my Lord theologians would deal severely with your Lordship's statement.

 ["To differ from him seemed to be denying the existence of God."-Tweedsmuir.]

Lord JAMES of Hereford:  I am much obliged to you. 


Mr HALDANE: That is very much the same. There is also the other passage which I read to your Lordship to be found there too; the two sides of the antinomy appear to be stated from what your Lordship quoted to me. Perhaps your Lordships would be so kind as to turn to the Sum of Saving Knowledge at page 157 of F. That as I have said was a Westminster document. 

Mr JOHNSTON:  Mr Haldane we dispute that. You must not assume we admit that. Make your statement upon it but do not assume that we admit it.

Mr Johnston, a Wee, opposing counsel.
Lord JAMES of Hereford:  I wish to speak of this with all reverence but really it gets beyond my comprehension, the way you are putting that. You have told us the finite man cannot understand it...And yet it is a doctrine presented to the people with the intention that they shall understand it.  
Lord JAMES of Hereford: One question more Was the Act of 1892 passed in anticipation of the Union?

Mr HALDANE: No it had nothing whatever to do with it.

Mr JOHNSTON: So you say.

Mr HALDANE:  If you look into the Debates of the Assembly you will find Mr Johnston it had nothing to do with the Union.

And then miraculously this storm of ill feeling seems to pass :o Mr. Johnston seems to have affected a calm over the proceedings. Or maybe the Lords had heard enough. That happens. The eighth day passes and Haldane pledges that he will finish on the ninth day, by 1:00 pm. Mr. Johnston gets the last word on that day with includes these words:

Mr. Johnston: I am not going to follow my learned friend Mr Haldane into any discussion of the metaphysical or the question of divinity I could not do it if I tried and I am certain your Lordships do not wish me to do so He has not feared to tread in that branch of learning but I cannot follow him.

The last sentences in the record are these:

The Lord Chancellor: Their Lordships will consider this case.

Judgment reserved.

However long the Lordships held the matter formally under advisement, and I do not suspect it was long before their opinion, the matter was decided, probably after that break on the eighth day. Richard Haldane certainly knew that the case was lost and that he, personally, had botched it completely. After the proceedings were concluded on the ninth day he was walking with one of the Big's ministers and gave the minister a check for $1,000. The vote to reverse, when it came, was an emphatic 5-2. 

*Bannatyne v Overtoun (1904) AC 515 (General Assembly of the Free Church of Scotland v Lord Overtoun: Macalister v Young 1904 7 F (HL) 1).