The Free Church Case

The actions

In May 1901 the General Assembly of the Free Church approved the civil actions raised “with a view to declare and maintain and secure the civil interests of the Church”, the first named being “BANNATYNE versus OVERTOUN”, followed by eleven more: Whiting Bay, Coll, Shiskine, Buccleuch and Greyfriars’, Edderton, Aultbea, Kinlochewe, Kyleakin, Snizort, Oban and Dornoch.¹

Morrison writes that the summonses were issued on 14 December 1900, “in the name of the General Assembly of the Free Church and in the name of the Rev. Colin A. Bannatyne and others … against Lord Overtoun and others, being the general trustees”. The defenders named in the summons included “the Reverend Robert Rainy, D.D., Edinburgh, Moderator”, and the clerks of the United Free Church Assembly. A second action, Macalister v. Young, concerned property held under the Model Trust Deed [the standard deed on which congregations’ churches and manses were held] of 1844.²

The pursuers’ first plea was that they, “being the Free Church of Scotland, have right to the property and funds held upon trust for behoof [the benefit] of said Church, and that to the exclusion of the defenders and all others not members of the said Church”. The defenders pleaded that the Free Church had acted “throughout lawfully and regularly, and in virtue of its inherent powers and liberties”.³

In the Court of Session

Lord Low dismissed the action by an interlocutor [order of the court] of 9 August 1901. On appeal, the Second Division (the Lord Justice-Clerk, Lord Young and Lord Trayner) recalled that interlocutor “in so far as it dismisses the action, and in lieu thereof assoilzie [find for] the defenders from the conclusions of the action”.⁴

Lord Young had said that “there is, in my opinion, no rule of law to prevent a dissenting Church from abandoning a religious doctrine or principle, however essential and fundamental, or from returning to it again with or without qualification or modification. Whether or not a property title is such that a forfeiture of property will follow such abandonment or return is another matter.” The Lord Chancellor quoted the words in the House of Lords and answered: “Yes, but that is the whole question now before your Lordships”.⁵

In the House of Lords

Morrison writes that the appeal was first heard by “the Lord Chancellor (Lord Halsbury), Lord Lindley, Lord Macnaghten, Lord Robertson, and Lord Shand, but before judgment was given Lord Shand had died, and, according to custom, there was a rehearing of the case.” Lord James of Hereford and Lord Chief-Justice Alverstone joined the bench for the rehearing. Orr’s Preface counts the first bench differently: it “consisted of six judges—the same peers as sat in the Re-hearing, except that Lord Shand was then present, while Lord James of Hereford and Lord Alverstone did not sit”, which includes Lord Davey, whom Morrison’s list leaves out. Counsel for the Free Church were Mr H. Johnston, K.C., Mr E. T. Salvesen, K.C., and Mr Roberton Christie; for the United Free Church, the Dean of Faculty (Mr Asher), Mr R. B. Haldane, K.C., Mr C. J. Guthrie, K.C., and Mr R. L. Orr. “The rehearing began on 9th June, 1904, and occupied nine days.”⁶

Orr’s report heads the judgment “House of Lords. Monday, 1st August 1904”, with the Lords present: the Lord Chancellor, Lord Macnaghten, Lord Davey, Lord James of Hereford, Lord Robertson, Lord Lindley and Lord Alverstone. Scott: “Judgment was given on the first of August, 1904. Five of the judges were in favor of the minority and only two were for the majority.”⁷

The judgment

The Lord Chancellor began from the purpose of the trust: “Speaking generally, one would say that the identity of a religious community described as a Church must consist in the unity of its doctrines.” He added that “a Court of Law has nothing whatever to do with the soundness or unsoundness of a particular doctrine”, and “has simply to ascertain what was the original purpose of the trust.”⁸

On the first question, the duty of the civil magistrate to support the Church, he found the founders’ statements “conclusive evidence that originally, at all events, the views of the founders of the trust were in favour of the Establishment principle”, while the United Presbyterian Church held that Christ’s ordinance “excludes State aid”. On the second, he set chapter 3 of the Confession beside the second section of the Declaratory Act of 1892 and concluded: “Each meant to exclude and denounce the doctrine of the other. I am therefore led to the conclusion that upon this second question the Appellants are entitled to succeed.”⁹

Of the argument that a Church may change its doctrines, he said: “I do not suppose that anybody will dispute the right of any man, or any collection of men, to change their religious beliefs according to their own consciences, but when men subscribe money for a particular object and leave it behind them for the promotion of that object, their successors have no right to change the object endowed.” He gave a further ground, “that the so-called union is not really a union of religious belief at all”: “It becomes but a colourable union, and no trust fund devoted to one form of faith can be shared by another communion simply because they say in effect there are some parts of this or that Confession which we will agree not to discuss”.¹⁰

Lord Robertson said: “I find nothing from beginning to end which supports the theory that the Church of Scotland exercised or claimed the right to alter doctrines which she had asserted to be scriptural.” Ross sums up: “The majority of the judges were convinced that the Church could not change its principles and at the same time preserve its identity.”¹¹

Two judges dissented. Lord Macnaghten began: “My Lords, I am unable to agree in the conclusion at which your Lordships have arrived. I do not differ from any of your Lordships as to the law; at least I think not.” Lord Lindley found that “In passing the Declaratory Act of 1892, and the Act of Union of 1900, I can discover nothing ultra vires [beyond its powers] or contrary to any law”, and gave his voice “for the dismissal of both Appeals with costs.”¹²

The House ordered, in each case, “That the Order appealed from be reversed”, and in the General Trustees’ case that the cause be remitted to the Court of Session “to declare in terms of the third and sixth declaratory Conclusions of the Summons”. The judgment as Morrison prints it begins: “It is ordered and adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, that the said interlocutors complained of in the said appeal be, and the same are hereby, reversed”.¹³

The decree in Scotland

The Free Church’s Act of 25 May 1905 recites the decree. On 22 October 1904 the Second Division of the Court of Session, “applying the Judgment of the House of Lords”, found and declared “(1) That the association or body of Christians calling themselves the United Free Church of Scotland has no right, title, or interest in any part of the whole lands, properties, sums of money and others which stood vested as at the 30th day of October 1900 in the Right Honourable John Campbell Baron Overtoun, and Others, general trustees of the Free Church of Scotland: And (2) that the appellants (pursuers) and those adhering to and lawfully associated with them, conform to the constitution of the Free Church of Scotland, are, and lawfully represent the said Free Church of Scotland”, entitled to the property “as constituting the true and lawful Free Church of Scotland”.¹⁴

On 5 October 1904 the Commission of Assembly [the body that acts for the Assembly between its meetings] had appointed new General Trustees “for holding the whole property of the Free Church of Scotland”: Major Robert Greig, Edinburgh; Robert Reid, Campbeltown; James Coltart, Bearsden; John Macdonald, Glasgow; Charles MacKessock, Forres; and John Pursell, Leith. The Free Presbyterian Magazine of October 1904 reported that the House of Lords “declared that the minority who refused to enter the union in 1900 are ‘the true and lawful Free Church of Scotland’”.¹⁵

The Royal Commission

Morrison writes that “On the 17th day of December, 1904, a Royal Commission was appointed by His Majesty the King to inquire into all the facts connected with the funds and properties”, consisting of “the Earl of Elgin, Lord Kinnear, and Sir Ralph Anstruther, Bart.” The Royal Warrant recites that in 1900 “certain Members of the Free Church entered into a Union with the United Presbyterian Church … but certain other Members of the Free Church refused to enter the Union, and remained as the Free Church”, and that “it is doubtful how far the Free Church are or may be in a position to carry out the Trusts as declared by the House of Lords”.¹⁶

The inquiry opened at Edinburgh on 11 January 1905, according to Morrison, and the Commission sat on twelve occasions. Its report, signed on 12 April 1905, concluded: “We are forced to the conclusion that the Free Church, from the paucity of its numbers and the poverty of its resources, is incapable of carrying on the religious work of the Church which it represents, and therefore of putting to their proper purpose the enormous endowments with which it claims to be entrusted. But, on the other hand, it would be unjust that these endowments, or the greater part of them, should be handed over absolutely and without condition to the United Free Church.”¹⁷

The Churches (Scotland) Act 1905

Meanwhile, on 25 May 1905, the General Assembly of the Free Church appointed a deputation “to wait upon the Government and present her Claim of Right [a formal statement of the Church’s rights]”: the Moderator, Mr D. M. Macalister, Mr C. A. Bannatyne, Mr J. D. M’Culloch, Mr A. Galbraith, Mr Wm. MacKinnon and Mr J. K. Cameron, ministers, with Mr A. MacNeilage, Mr R. Reid and Mr J. Hay Thorburn, elders.¹⁸

The Churches (Scotland) Act is dated 11 August 1905. Its preamble recites that “questions have arisen as to property between the Free Church and the United Free Church in Scotland, and judgments have been given by the Courts in favour of the Free Church”, and that the Royal Commission had reported “that the Free Church are unable adequately to carry out all the trusts of the property”. It provided that a Commission “shall allocate between the Free Church and the United Free Church the property in question … in such manner as appears to the Commission fair and equitable”.¹⁹

Congregational property was to go to the Free Church where, of the members and adherents of the congregation on 30 October 1900 still resident in the district, “at least one-third are members or adherents of the Free Church congregation”. The Commission was to make “adequate provision” for training the Free Church’s students for the ministry, for its aged and infirm ministers and its ministers’ widows and orphans, for its ministers and itinerant preachers, and for its administration. Proceedings in the courts over the property were “permanently sisted [stayed]”, and no court could review the Commission’s orders.²⁰

The Act set up a Commission of five appointed by the King. Morrison names them: “The Earl of Elgin, K.G., K.C.S.I., Baron Kinnear, Sir Ralph Anstruther, Bart., Sir Thomas Gibson Carmichael, Bart., and Sir Charles Logan.” In its Address to the King on 25 May 1906 the Free Church Assembly spoke of the Church “Suffering as we as a church are, from the exceptional legislation of last year, the far-reaching effects of which are now unfortunately manifesting themselves”.²¹