United Kingdom House of Lords Decisions

These cases are reported ante ut supra.

In the case of the General Assembly of the Free Church v. Lord Overtoun and Others the pursuers appealed.

The case of Young and Others v. Macalister and Others was an action at the instance of the United Free Church and the trustees in whose name the Free Buccleuch and Greyfriars Church, Edinburgh, was held, against the Rev. D. M. Macalister, minister of that church, and others, containing declaratory conclusions that the said church belonged to the pursuers, and that the defenders (who had refused to join in the Union with the United Presbyterian Church) had no right or title therein. A similar question was raised in other actions with regard to the churches at Aultbea, Kyleakin, and Culter. All these churches were held under titles framed in terms of the Model Trust Deed adopted by the Free Church of Scotland in 1844. An excerpt from this deed containing the passages material to the present report is printed infra, p. 746. The Court of Session having decerned in terms of the conclusions of the summons, the defenders appealed. The cases were heard together.

The following is a narrative of the leading facts in both cases, under reference to the preceding report:—On 30th October 1900 the General Assembly of the Free Church of Scotland passed an Act providing for the Union of the Free Church and the United Presbyterian Church. A Declaration with a similar object was also adopted by the Synod of the United Presbyterian Church, and on the 31st October the General Assembly and the Synod, meeting together, passed an Act known as the Uniting Act, providing for the Union of the two Churches. This Act declared that the Free Church and the United Presbyterian Churches should henceforth constitute one United Church under the name of the United Free Church.

This Union was the result of negotiations between the two Churches which had been in progress since 1896. In the Free Church it had been preceded by an Overture anent Union, which in terms of the Barrier Act 1697 was transmitted to the various presbyteries of the Church for their opinion. The presbyteries, by a majority of 70 to 4, approved of the Overture, and an Act in terms of the Overture was adopted by the Assembly.

In the United Presbyterian Church the Declaration in favour of union was adopted unanimously. In the Free Church the Act with that object was carried by a majority of 643 to 27. The minority did not join in the meeting with the United Presbyterian Church on 31st October, but held a meeting in continuation, as they alleged, of the sederunt of the Free Church Assembly, at which they appointed from their own number a moderator, clerk, and other officials, on the footing that the majority by the proceeding above narrated had severed their connection with the Free Church. They also appointed a Law and Advisory Committee, with power to take such legal proceedings as might be necessary to maintain the interests of the Church. At their instance the legal proceedings now reported were taken in order to determine the rights of the majority or minority to the property held by the Free Church prior to the Union.

The leading action relating to the property of the Free Church, other than the Churches and Manses, was brought at the instance of the Free Church and the Rev. Colin A. Bannatyne, minister of the parish of Cullen, the Moderator of Assembly appointed on 31st October 1900, as such Moderator and as a member of the Law and Advisory Committee, and the other members of that committee. The defenders called were—(1) Lord Overtoun and others, as general trustees of the Free Church prior to 30th October 1900; (2) the general trustees of the United Free Church; (3) the Moderator, Clerks and Members of the General Assembly of the United Free Church. The other actions, four in number, related to the right to the Churches and Manses held in trust for congregations. Of these actions (which all raised the same question) the one ultimately appealed to the House of Lords related to the Free Buccleuch and Grey-friars Church, Edinburgh. It was brought at the instance of the trustees in whom the property of that Church was vested, and of the Rev. Robert Rainy, Moderator of the United Free Church, and the other

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officials of that Church, against the Rev. Donald Macalister and the Rev. Robert Gordon, ministers of the Church, and certain office-bearers and members, all of whom adhered to the minority.

This was a test case, as the Church in question was held by trustees under an instrument known as the Model Trust Deed drawn up in 1844, under which practically all the heritable property of the Free Church was held. Its terms, so far as material to the present report, are quoted infra.

The claim put forward by the pursuers in the leading action, shortly stated, was that they and those who adhered to them alone represented the Free Church of Scotland, and were alone entitled to the whole funds and property of the Free Church, which were held for behoof of the Church by its General Trustees. Their alternative claim was to share in these funds with the United Free Church in such proportion as the Court might decide. The funds in question amounted to considerably over a million sterling. The third and sixth conclusions of the action were in the following terms:—“(3) That the said United Free Church of Scotland has no right, title, or interest in any part of the said lands, property, or funds. (6) That the 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, and are entitled to have the whole of said lands, property, and funds applied according to the terms of the trusts upon which they are respectively held for behoof of themselves and those so adhering to and associated with them, and their successors, as constituting the true and lawful Free Church of Scotland, and that the defenders … the general trustees foresaid, or the defenders second enumerated, or those of the defenders in whose hands or under whose control the said lands, property, and funds may be for the time being, are bound to hold and apply the same for behoof of the pursuers and those adhering to and associated with them as aforesaid, and subject to the lawful orders of the General Assembly of the said Free Church of Scotland … and in particular that they are bound to denude themselves of the whole of said lands, property, and funds in favour of such parties as may be nominated as general trustees by a General Assembly of the Free Church of Scotland, but subject always to the trusts upon which the said lands, property, and funds were respectively held by the said defenders for behoof of the Free Church of Scotland as at 30th October 1900.”

The ground on which the dissentient minority relied in support of these claims was that the United Free Church was an association whose constitution did not recognise or provide for maintaining certain principles which, as they alleged, were essential and fundamental principles in the Free Church of Scotland. From this they drew the conclusion that the majority in joining the United Free Church had for feited all right to the property vested in trustees for the Free Church. The “essential and fundamental” principles referred to were two—(1) The principle of Establishment, and (2) The maintenance of the Westminster Confession as an essential standard of belief. With regard to these doctrines they made the following averments:—

“The said Free Church of Scotland is a voluntary association or body of Christians associated together under a definite contract involving the maintenance of definite principles. That contract is constituted by the foresaid Claim of Right, Declaration and Protest of 1842, Protest of 1843, and Act of Separation and Deed of Demission of 1843, and the Acts of Assembly of the Church of Scotland in so far as not modified thereby. The foresaid contemporaneous documents, viz., the Act of Assembly of 1846, cap. 12, and the questions and formula thereby sanctioned, and the Act of Assembly of 1851, cap. 9, are in accord therewith and expository thereof. Said constituting documents recognise as an essential principle of the Free Church the assertion of the duty of the State ‘to maintain and support an establishment of religion in accordance with God's Word,’ and as an essential standard of her belief the Westminster Confession.

The contract of association or constitution of the said Free Church of Scotland under which it was first associated contains no provision for any alteration being made in the essential principles of the said constitution and standard of belief, or for union with any other Church or association of Christians holding different principles or recognising a different standard of belief, by any mere majority, however large, of the members for the time being of the said Free Church of Scotland.

In course of its existence the Free Church of Scotland has from time to time acquired lands, moneys, and other property which belong to it for application to various purposes in connection with it as a church existing under the contract of association or constitution as here in before specified. Said contract of association or contract or constitution does not provide for or admit of any majority of the members of the Free Church of Scotland thereby constituted diverting the said property from the uses of said Church to the uses of any other Christians or association of Christians, and particularly to the uses of any such church or association holding principles and standards of belief differing from those of the said Free Church of Scotland as orignally constituted. The individual pursuers became members, ministers, or office-bearers of the said Free Church of Scotland under and in reliance upon its constitution as here in before defined,

As already stated, one of the essential principles recognised by those who associated themselves to form the Free Church of Scotland, emphasised by their leaders in their utterances at the time of the Disruption, and embodied in the contract of association or constitution of said Church as hereinbefore defined, is that it is the

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duty of the civil magistrate to maintain and support an establishment of religon in accordance with God's Word; and the said Church as originally associated recognised and maintained the propriety and advantage of the endowment of pastoral charges and the promotion of religious education by the State. The principle of the duty of the recognition of religion by the State by means of the establishment and, where possible, endowment of a national church, was moreover impliedly involved in the position claimed by the Free Church as being the Church of Scotland freed merely from the control of the civil court in matters spiritual. The said principle formed an essential principle of the Free Church of Scotland, and its maintenance was one of the main reasons for the formation of that Church as a separate association or body of Christians, distinct and apart from those who professed themselves to be ‘voluntaries.’ There were several such associations of seceders from the Establishment Church of Scotland in existence at the time of the Disruption of 1843, holding views practically identical with those of the founders of the Free Church in matters of doctrine and as to the encroachments of the civil courts, but differing from them as regarded the duty above referred to. In regard to this, these bodies were ‘voluntaries’ in the sense of holding such action of the State to be unlawful. The foundation of the Free Church was a protest against the position of such churches on the one hand, just as it was against the encroachments of the civil power on the other.” …

But it is not merely in regard to the Establishment principle that the appellants maintain that the Union involves departure from fundamental principles of the Free Church. They aver that in 1892 and 1894, as part of the scheme which culminated in the Union, Declaratory Acts were passed by the majority of the Assembly, which were however dissented from by the party whom the appellants represent, and were consequently expressly declared not to be compulsory upon any member of the Free Church; and that these Acts and a relative Declaratory Act of the United Free Church have been definitely recognised and imposed upon office-bearers of the United Church as an integral part of the forms of ordination to office. These Acts, they contend, involve essential departures from the former doctrinal Standards of the Free Church. Without entering into detail, it is sufficient in this place to say that it is impossible to see how the provisions of the Declaratory Act of 1892 and of the United Presbyterian Declaratory Act of 1879 are reconcilable with certain of the chapters of the Confession of Faith, and especially with chapters 3, 5, 9 and 10, and 16, of the Confession.

The objection of the appellants, however, goes deeper than merely to specific alteration; for whereas the formula adopted by the Free Church by Act xii, 1816, accepted the Confession of Faith in its entirety by requiring ministers, &c., to subscribe affirmatively to the question—‘Do you sincerely own and declare the Confession of Faith approven by former General Assemblies of this Church to be the confession of your faith; and do you own the doctrine therein contained to be the true doctrine which you will constantly adhere to?’ the United Church, in requiring the subscription to the similar questions appended to the Act of 31st October 1900, merely requires acceptance of ‘ the doctrine of this Church set forth in the Confession of Faith approven by Acts of General Assemblies,’ and an acknowledgment of the said doctrine ‘as expressing the sense in which you understand the Holy Scrip tures,’ or, in the case of deacons, an acceptance of ‘as in accordance with Holy Scriptures, the system of evangelical truth taught in this Church and set forth in the ‘Westminster Shorter Catechism.’ Any departure is thus rendered possible in the new Church from the former doctrinal standards of the Free Church, for which is substituted merely so much of that doctrine as is approven by the Church for the time being. This is, moreover, emphasised by the liberty claimed for the new Church in the first of the express Declarations in view of which the Union was authorised, and which undoubtedly forms a term of the constitution of the new Church.”

In their defences the United Free Church denied that the principle of Establishment was a fundamental or essential principle of the Free Church or that it had ever formed part of the doctrine or tenets binding on its ministers, office-bearers or members. It was not a term or condition of the trust on which the property of the Free Church was held that the Church should hold or maintain the doctrine put forward by the minority with regard to the civil magistrate. The question of Establishment, they averred, had always been in the Free Church an open one on which liberty of opinion was allowed, or at all events was a minor point, and not a fundamental or essential part of the creed. They also denied that the United Presbyterian Church had ever regarded opposition to Establishment as part of the creed or doctrine of the Church. They maintained that, looking to the terms of the Uniting Act, they had not in any way departed from the standards of doctrine of the Free Church or ceased to recognise the authority of the Westminster Confession; and they also maintained that “the Free Church as a voluntary association of persons united together for religious purposes possessed from the beginning the right at common law to control and regulate its own affairs, and, if it saw fit, to change its own doctrines or tenets by virtue of the legislative power inherent in the General Assembly—its Supreme Court—acting by a majority of its members.”

The documents relating to the standards professed by the Free Church before and after the Disruption of 1843 are quoted in the preceding report (39 S.L.R. 793) and in the opinions of the Judges, infra. The Model Trust Deed, after a narrative of the

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events leading to the Disruption, and a recital of the Protest of 1843, declares that the subjects therein described are held upon, inter alia, the following trust purposes:—“ First, Upon trust, that the building or place of worship erected, or in the course of being erected upon the ground hereby disponed, or any building or place of worship that may hereafter be built and be erected thereon, with the appurtenances thereof, shall in all time coming be used, occupied, and enjoyed as and for a place of religious worship by a congregation of the said body of Christians called the Free Church of Scotland, or of any united body of Christians composed of them, and of such other body or bodies of Christians as the said Free Church of Scotland may at any time hereafter associate with themselves under the foresaid name of the Free Church of Scotland, or under whatever name or designation they may assume, and to be made use of by such congregation occupying and enjoying the same for the time being, in the way and manner in which, by the usages of the said body or united body of Christains, places of religious worship may be or are in use to be occupied and enjoyed.” “ Ninth, It is hereby specially provided and declared that if at any time hereafter one-third of the whole ordained ministers having the charge of congregations of the said body or united body of Christians, or any larger number of the said ordained ministers having charge, as aforesaid, shall simultaneously, or within a consecutive period not exceeding three calendar months, not only publicly separate from the said body or united body of Christians, but at the same time publicly claim and profess to hold truly and in bona fide the principles of the Protest of 18th May 1843, here in before recited, and to be carrying out the objects of the said Protest more faithfully than the majority of the ministers of the said body, or united body of Christians, and shall unite in forming one body of Christians, having kirk-sessions, presbyteries, Provincial Synods, and a General Assembly, then in that case, and anything herein to the contrary notwithstanding, it shall be competent to and in power of the majority of the congregation in the use, occupation, and enjoyment of the said building or place of worship for the time, to provide and declare, by a deed of declaration and appointment under their hands to that effect duly executed, that the ground hereby disponed, and building, or place of worship then upon the same, shall from henceforward be held in connection with the body of Christians adhering to the ministers who shall have separated as aforesaid.”

The Barrier Act 1697 enacts—“The General Assembly, taking into their consideration the overture and Act made in the last Assembly concerning innovations, and having heard the report of the several commissioners from presbyteries to whom the consideration of the same was recommended, in order to its being more ripely advised and determined in this Assembly, and considering the frequent practice of former Assemblies of this Church, and that it will mightily conduce to the exact obedience of the Acts of Assembly that General Assemblies be very deliberate in making of the same, and that the whole Church have a previous knowledge thereof and their opinion be had therein, and for preventing any sudden alteration or innovation or other prejudice to the Church in either doctrine or worship or discipline or government thereof now happily established; do therefore appoint, enact, and declare that before any General Assembly of this Church shall pass any Acts which are to be binding rules and constitutions to the Church, the same Acts be first proposed as overtures to the Assembly, and being by them passed as such, be remitted to the consideration of the several presbyteries of this Church, and their opinions and consent reported by their Commissioners to the next General Assembly following, who may then pass the same in Acts, if the more general opinion of the Church, thus had, agree there unto.”

In view of the course of the argument in the House of Lords the following documents are printed in addition to those quoted in the previous report:—

“Excerpt from the Westminster Confession of Faith, 1647.

Chap. III.— Of God's Eternal Decree.

III. By the decree of God, for the manifestation of his glory, some men and angels are predestinated into everlasting life, and others foreordained to everlasting death.

IV. These angels and men, thus predestinated and foreordained, are particularly and unchangeably designed; and their number is so certain and definite, that it cannot be either increased or diminished.

V. Those of mankind that are predestinated unto life, God, before the foundation of the world was laid, according to his eternal and immutable purpose, and the secret counsel and good pleasure of his will, hath chosen in Christ unto everlasting glory, out of his mere free grace and love, without any foresight of faith or good works, or perseverance in either of them, or any other thing in the creature, as conditions or causes moving him thereunto; and all to the praise of his glorious grace.

Chap. IV.— Of Creation.

I. It pleased God the Father, Son, and Holy Ghost, for the manifestation of the glory of his eternal power, wisdom, and goodness, in the beginning to create or make of nothing the world, and all things therein, whether visible or invisible, in the space of six days, and all very good.

Chap. V.—Of Providence.

VI. As for those wicked and ungodly men, whom God as a righteous judge, for former sins, doth blind and harden, from them he not only with holdeth his grace, whereby they might have been

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enlightened in their understandings, and wrought upon in their hearts; but sometimes also withdraweth the gifts which they had, and exposeth them to such objects as their corruption makes occasion of sin; and withal, gives them over to their own lusts, the temptations of the world, and the power of Satan: whereby it comes to pass, that they harden themselves, even under those means which God useth for the softening of others.

Chap. VI.— Of the Fall of Man, of Sin, and the Punishment thereof.

IV. From this original corruption, whereby we are utterly indisposed, disabled, and made opposite to all good, and wholly inclined to all evil, do proceed all actual transgressions.

VI. Every sin, both original and actual, being a transgression of the righteous law of God, and contrary thereunto, doth, in its own nature, bring guilt upon the sinner, whereby he is bound over to the wrath of God, and curse of the law, and so made subject to death, with all miseries, spiritual, temporal, and external.

Chap. IX.— Of Free Will.

III. Man, by his fall into a state of sin, hath wholly lost all ability of will to any spiritual good accompanying salvation, so as a natural man, being altogether averse from that good, and dead in sin, is not able, by his own strength, to convert himself, or to prepare himself thereunto.

Chap. X.— Of Effectual Calling.

I. All those whom God hath predestinated unto life, and those only, he is pleased, in his appointed and accepted time, effectually to call, by his word and Spirit, out of that state of sin and death in which they are by nature, to grace and salvation by Jesus Christ; enlightening their minds spiritually and savingly to understand the things of God; taking away their heart of stone and giving unto them an heart of flesh; renewing their wills, and by his almighty power determining them to that which is good; and effectually drawing them to Jesus Christ; yet so as they come most freely, being made willing by his grace.

III. Elect infants dying in infancy are regenerated and saved by Christ through the Spirit, who worketh when, and where, and how he pleaseth. So also are all other elect persons, who are incapable of being outwardly called by the ministry of the word.

IV. Others not elected, although they may be called by the ministry of the word, and may have some common operations of the Spirit, yet they never truly come unto Christ, and therefore cannot be saved: much less can men not professing the Christian religion be saved in any other way whatsoever, be they ever so diligent to frame their lives according to the light of nature, and the law of that religion they do profess; and to assert and maintain that they may is very pernicious and to be detested.

Chap. XVI.— Of Good Works.

VII. Works done by unregenerated men, although, for the matter of them, they may be things which God commands, and of good use both to themselves and others; yet because they proceed not from an heart purified by faith; nor are done in a right manner, according to the word; nor to a right end, the glory of God; they are therefore sinful, and cannot please God, or make a man meet to receive grace from God. And yet their neglect of them is more sinful and displeasing unto God.

Chap. XXIII.— Of the Civil Magistrate.

I. God, the supreme Lord and King of all the world, hath ordained civil magistrates to be under him over the people for his own glory and the public good, and to this end hath armed them with the power of the sword for the defence and encouragement of them that are good, and for the punishment of evil-doers.

II. It is lawful for Christians to accept and execute the office of a magistrate when called thereunto: in the managing whereof as they ought especially to maintain piety, justice, and peace according to the wholesome laws of each commonwealth, so for that end they may lawfully now under the New Testament wage war upon just and necessary occasions.

III. The civil magistrate may not assume to himself the administration of the word and sacraments, or the power of the keys of the kingdom of heaven, yet he hath authority, and it is his duty, to take order that unity and peace be preserved in the Church, that the truth of God be kept pure and entire, that all blasphemies and heresies be suppressed, all corruptions and abuses in worship and discipline prevented or reformed, and all the ordinances of God duly settled, administered, and observed. For the better effecting whereof he hath power to call synods, to be present at them, and to provide that whatsoever is transacted in them be according to the mind of God.

IV. It is the duty of the people to pray for magistrates, to honour their persons, to pay them tribute and other dues, to obey their lawful commands, and to be subject to their authority for conscience sake. Infidelity or difference in religion doth not make void the magistrates' just and legal authority, nor free the people from their due obedience to him, from which ecclesiastical persons are not exempted; much less hath the Pope any power or jurisdiction over them in their dominions or over any of their people, and least of all to deprive them of their dominions or lives if he shall judge them to be heretics, or upon any other pretence whatsoever.”

By the Declaratory Act, passed by the General Assembly of the Free Church in 1892, it was enacted—“Whereas it is expedient to remove difficulties and scruples which have been felt by some in reference to the declaration of belief required from persons who receive licence or are admitted

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to office in this Church, the General Assembly, with consent of Presbyteries, declare as follows:—

That in holding and teaching according to the Confession the Divine purpose of grace towards those who are saved, and the execution of that purpose in time, this Church most earnestly proclaims, as standing in the forefront of the revelation of Grace, the love of God—Father Son, and Holy Spirit—to sinners of mankind, manifested especially in the Father's gift of the Son to be the Saviour of the world in the coming of the Son to offer Himself a Propitiation for sin, and in the striving of the Holy Spirit with men to bring them to repentance.

That this Church also holds that all who hear the Gospel are warranted and required to believe to the saving of their souls, and that in the case of such as do not believe but perish in their sins, the issue is due to their rejection of the Gospel call. That this Church does not teach, and does not regard the Confession as teaching, the foreordination of men to death irrespective of their own sin.

That it is the duty of those who believe, and one end of their calling by God, to make known the Gospel to all men everywhere for the obedience of faith. And while the Gospel is the ordinary means of salvation for those to whom it is made known, yet it does not follow, nor is the Confession to be held as teaching, that any who die in infancy are lost, or that God may not extend His mercy for Christ's sake, and by His Holy Spirit, to those who are beyond the reach of these means, as it may seem good to Him, according to the riches of His grace.

That in holding and teaching according to the Confession of Faith the corruption of man's whole nature as fallen, this Church also maintains that there remains tokens of His greatness as created in the image of God; that he possesses a knowledge of God and of duty; that he is responsible for compliance with the moral law and with the Gospel; and that, although unable without the aid of the Holy Spirit to return to God, he is yet capable of affections and actions which in themselves are virtuous and praiseworthy.

That this Church disclaims intolerant or persecuting principles, and does not consider her office-bearers, in subscribing the Confession, committed to any principles inconsistent with liberty of conscience and the right of private judgment.

That while diversity of opinion is recognised in this Church on such points in the Confession as do not enter into the substance of the Reformed Faith therein set forth, the Church retains full authority to determine, in any case which may arise, what points fall within this description, and thus to guard against any abuse of this liberty to the detriment of sound doctrine, or to the injury of her unity and peace.”

The formulæ for ordination of ministers, after and before the Uniting Act of 1900, were in the following terms—“2. Do you sincerely own and believe the doctrine of this Church set forth in the Confession of Faith approven by Acts of General Synods and Assemblies; do you acknowledge the said doctrine as expressing the sense in which you understand the Holy Scriptures, and will you constantly maintain and defend the same, and the purity of worship in accordance therewith?” The corresponding question prescribed by the Free Church formula in 1846 was as follows:—“Do you sincerely own and declare the Confession of Faith approven by former General Assemblies of this Church to be the confession of your faith; and do you own the doctrine therein contained to be the true doctrine which you will constantly adhere to?”

In the Inner House of the Court of Session both parties renounced probation, and the cases were heard as on concluded proofs.

In the House of Lords the cases were heard in November and December 1903 before the Lord Chancellor (Halsbury), Lords Macnaghten, Davey, Robertson, Lindley, and Shand.

In consequence of the death of Lord Shand a rehearing was ordered.

The following is a summary of the argument:—

For the appellants—The general contention was that the majority in joining the United Presbyterians, and in the course of action leading up to that Union, had departed from principles which were essential to the Free Church, and had therefore forfeited all right to the property, which was held in trust for persons professing and upholding these principles. A Church which was not established by the State was regarded in law merely as an association of individuals united for certain purposes and bound by certain conditions. The continuity of such an association depended on the observance of the conditions under which it existed, and one of these was the adherence to the doctrine which at its inception it professed to uphold. Such an association represented itself to the public as a body holding certain principles, and obtained its property from donors who approved of these principles. The maintenance of these principles was the purpose for which the trust property was held. The association could not desert the principles under which it entered into existence without losing its identity. In theory a voluntary Church could not alter its fundamental and essential principles, even by the unanimous voice of all its members, though there might be difficulty in seeing how in that case the question could be brought up in a court of law. But where the alteration was not unanimous the result was that the minority who adhered to the original principles which the majority deserted became the Church, and were therefore entitled to the property belonging to the Church. The right to property given to a Church, in the event of internal dissension, was not now raised for

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the first time. It was fully established by decisions that the question was to be solved not by counting the number of adherents either party might have, but by inquiring which party—majority or minority—represented the original tenets of the Church— Craigdallie v. Aikman, 1820, 6 Paton's App. 618; Couper v. Burn, 1859, 22 D. 120; Forbes v. Eden, 1865, 4 Macph. 143, 5 Macph. (H.L.) 36; Dill v. Watson, 1836, 2 Jones' Exch. Cas. (Irish) 48; Pearson v. Attorney-General, 3 Merivale 347, per Lord Eldon, p. 418 ( Lady Hewley's Charities); Craigie v. Marshall, 1850, 12 D. 523. The principle was exactly the same as that which confined the trustees of a charitable trust to those objects which the truster intended to benefit. Any other view would lead to the conclusion that the majority of a Christian Church might declare it to be non-Christian, or that the majority of a Presbyterian Church might join the Church of Rome, and thus devote property given to it to purposes which the donors intended to discourage and defeat.

It might be true that a Church could at its inception reserve to a majority the power to alter its standards of belief. In that case the donor of property might be assumed to make his gift in the knowledge that he was endowing a body with a varying and alterable standard. But it was by no means clear that such a reserved power would justify an alteration in essential doctrines— Forbes v. Eden, 1867, 5 Macph. (H.L.) 36. That question, however, did not arise here, because no such power of alteration had been reserved in the Free Church. That could be demonstrated, whether the powers of the Free Church were those of the Church of Scotland, which it claimed to represent, or whether they were to be gathered from the declarations on which its founders left the Established Church at the Disruption of 1843.

Historically, the Church of Scotland had never held or claimed the right to alter its standards of belief, and the Free Church had in this respect simply adopted the position of the Church they left. The General Assembly was a governing and judicial, not a legislative body. It was true that the Church adopted John Knox's Confession in 1560, but the right to adopt a standard of belief (which must necessarily belong to every Church) did not involve the right to alter it. In adopting the Westminster Confession in 1647 the Church did not in any way alter its standards. In all doctrines which could be considered essential the two Confessions were agreed. A survey of the later history of the Church of Scotland would show no attempt in any way to interfere with the standards of doctrine thus adopted. The only possible exceptions that could be pointed to were the Chapel Act and the Veto Act, both passed shortly before the Disruption, and these had been held to be ultra vires of the Church—Stewarton Case, Cunninghame v. Presbytery of Irvine, 1843, 5 D. 427; Auchterarder Case, Earl of Kinnoull v. Presbytery of Auchterarder, 1838, 16 S. 661, aff.; M'Lean and Robinson's Reports, 220.

The Second Division had largely proceeded on the terms of the Barrier Act of 1697, which, the respondents maintain, was adopted by the Free Church. The fact of adoption was disputed; assuming it to be proved, the Act, fairly read, would not bear the meaning put upon it by the Court below. It was not an Act conferring expressly or by implication any power of alteration; it was merely a procedure Act, limiting the General Assembly in the exercise of the powers it already possessed, for the purpose of preventing hasty innovations in matters of discipline. The Act was open to the same construction as was given to Acts of Parliament or other deeds of its date. It was therefore legitimate and necessary to look to contemporary opinion in order to see what meaning the framers of the Act intended to convey by the language they used. Using this canon of interpretation, it was impossible to conceive that the Act was intended to sanction alteration of doctrine provided that certain forms were observed. No one in 1697 held that the doctrine of the Church, once ascertained, would be altered by declaratory Acts or otherwise, to suit the state of public opinion in religious matters.

If then the Church prior to 1843 possessed no power to alter its standards, it was submitted that nothing which took place at the Disruption could be pointed to as conferring that power on the Free Church, The Protest in 1843 declared that its framers left the Church “maintaining with us the Confession of Faith and standards of the Church of Scotland as heretofore understood.” No document or resolution could be pointed to implying that the standards so adopted could be altered at the will of the majority,

Assuming then that any alteration of its fundamental and essential doctrines was ultra vires of the majority of the Free Church, and would have the effect as to property above contended for, the remaining question was, whether the majority in uniting with the United Presbyterian Church had in fact made such an alteration? The minority maintain that they have done so in two respects—(1) In uniting with a body holding voluntary principles—holding, that is to say, the principle that the establishment of a Church by the State was wrong—they had abandoned the principle of Establishment, which was a principle both fundamental and essential in the Free Church. (2) In the Uniting Act, and in the Declaratory Act of 1892, they had adopted doctrines opposed to the Confession of Faith, and had substituted a fluctuating for a fixed standard of belief.

The principle of Establishment—that it was the duty of the State to uphold and maintain the Church—was a fundamental and essential part of the constitution of the Free Church. It was the principle which distinguished the Free Church from other bodies existing outside the Establishment.

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This principle was contained in the Westminster Confession, and was abundantly recognised in the documents which set forth the position of the Free Church party at the Disruption. It was in fact vital to their position; it was their defence against the charge of schism. Thus in the Claim, Declaration, and Protest of 1842 the recognition of the propriety of Establishment on the part of those who ultimately founded the Free Church is distinct; and the same may be said of the Protest of 1843. No doubt in these documents the principle of Establishment is not expressly said to be fundamental, and indeed is referred to parenthetically, but that was clearly due to the fact that it was not the point then in question. Again, in the address by Dr Chalmers, as the Moderator of the Free Church, there is an express repudiation of the principle of voluntaryism, which is described as a sin. That address was not to be regarded merely as an expression of opinion by an individual, it was adopted by the Church. It was the prospectus on which persons favourable to the views there expressed were invited to contribute money for the support of the Church. The reason why the principle of Establishment was regarded by Dr Chalmers and his followers as fundamental and essential was, that it was the only point upon which the Free Church differed from the other voluntary churches then existing in Scotland. There were other churches recognising the Confession of Faith, the Headship of Christ, and the principle of non-intrusion. In its support of Establishment, though outside the Established Church, the Free Church stood alone. The recognition of that doctrine was therefore part of the identity of the Free Church as such; a body which professed voluntary principles was not the Free Church, but something quite different.

The Union involved the surrender of the Establishment principle. True, that was not expressly stated in the Uniting Act, but the whole history of the United Presbyterian Church showed that they were in doctrine voluntaries, and would not have united with a body holding the views which the Free Church held in 1843.

(2) Apart from the question of Establishment, the proceedings of the majority in the Union and in what led up to it involved a departure from the standards of the Free Church in matters of doctrine. That Church was founded with the Westminster Confession of Faith “as heretofore understood” as an unalterable standard. It had been infringed in two ways. First, in the alteration of specific doctrines. For that the appellants looked to the Declaratory Act of 1892. That Act was passed with a view to union by bringing the standard of doctrine in the Free Church into agreement with that adopted by the United Presbyterian Church by their Declaratory Act of 1879. The doctrine laid down in 1892 with regard to predestination was absolutely irreconcilable with the terms of the Confession of Faith. The Confession of Faith set forth the Calvinistic, the Declaratory Act the Armenian, view of the subject. It was idle to say that this was mere interpretation; such interpretation would eat away any standard. Whether or not the two views of predestination might be reconcilable by regarding both as mysteries incomprehensible to the finite mind, there was no doubt that the framers of the Westminster Confession regarded them as irreconcilable and a subject of the bitterest controversy. The Declaratory Act therefore involved a departure from the most fundamental doctrines of the Free Church.

It was no doubt said that the appellants had acquiesced in the Declaratory Act, and could not therefore now raise this point. As a matter of fact, as individuals they had protested against it. They could do nothing more—no question of property was involved on which they could obtain the opinion of the Court as to its competency. Having protested, they were not bound to take the extreme step of leaving the Church. But even if they were held to have acquiesced for the moment, that did not bar their right now to object. They were beneficiaries in the trusts on which the property of the Free Church was held, and a beneficiary, though he might condone a breach of trust, was not thereby bound to allow that breach of trust to continue.

But the contention of the appellants goes beyond any question of departure from specific doctrines. They maintain that by the formula adopted for ordination by the Uniting Act of 31st October 1900 a new and fluctuating standard of belief has been adopted. That declaration substitutes for an expression of adherence to the Confession of Faith an expression of adherence to “the doctrine of this Church set forth in the Confession of Faith approven by Acts of General Assemblies.” That made the standard of belief of the Church one subject to constant fluctuation, as successive Assemblies might happen to approve or disapprove of particular doctrines. It was entirely inconsistent with the position of the Free Church in 1843.

Argued for the respondents—The judgment of the Court below ought to be sustained. The fallacy of the appellants' argument lay in treating continuity of doctrine as the sole element in the identity of a church. Continuity of doctrine was one element; there were others—continuity of membership and of organisation. An analogy was the case of a club, which might alter its rules and objects without ceasing to be the same club. Two churches might hold identical doctrines; it surely did not follow that they formed only one church. There might be limits; doctrines with which the life of the Church was so thoroughly bound up that it would be an act of suicide on its part to abandon them. In such cases, as, for instance, if a Christian Church became Mohammedan, it might fairly be contended that it had lost its character as a Church, and become something entirely different. But it by no

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means followed that a Church might not alter its tenets in minor details or explain its doctrine. Therefore when any question arose as to the competency of any change in a particular Church, the point for inquiry must be, What were the fundamental doctrines of that Church, doctrines which it could not abandon without a postacy? In the case of the Free Church these doctrines were the Infallibility of the Bible, the Headship of Christ, and the Presbyterian form of government.

On an appeal to history it was contended that the Free Church had at least the modified power of alteration of standards above indicated. Nothing that occurred at the Disruption gave any colour to the supposition that the Free Church claimed less power in that respect than the Church of Scotland possessed. If necessary to the argument, the fact that the Free Church separated on the question of spiritual independence involved an assertion of higher powers in the Church than the Church of Scotland had been held to possess. But it was quite sufficient for the respondents to contend that the Free Church inherited the powers of the Church of Scotland. That Church had an inherent power to alter its doctrines, subject perhaps to the limits already indicated. That was shown first by the adoption by the inherent power of the Church of John Knox's Confession in 1560. The right to adopt a standard involved the right to modify it. But the legislative power inherent in the Church was shown much more conclusively by the substitution in 1647 of the Westminster Confession for that of John Knox. That was an act of legislation involving the alteration of the standard of doctrine by the inherent power of the Church alone. The two Confessions, though no doubt bearing a strong resemblance to each other, were not identical in doctrine, and the substitution of the one for the other would, on the principles for which the appellants contend, have been an act ultra vires of the Church. Later history showed other examples of the exercise of legislative powers—for instance, the Chapel Act and the Veto Act, referred to by the appellants. It was true that these Acts were held to be invalid, but the decision did not proceed upon the absence of legislative powers in the Church, but on the ground that the particular Acts were violations of the conditions of Establishment.

Again, the theory of inherent legislative power in the Church was confirmed by the terms of the Barrier Act 1697, which had been adopted by the Free Church. That Act was passed “for preventing any sudden alteration or innovation or other prejudice to the Church in either doctrine or worship or discipline or government thereof,” and went on to provide a method by which such innovations might be legally made. The Act was meaningless if, as the appellants contended, no innovations were within the powers of the Church.

If then the Church of Scotland possessed the power to make innovations in doctrine, and the Free Church was constituted with the same powers, no breach of trust was committed by any alterations in doctrine provided that these were within the limits under which that legislative power existed. Donors to the Free Church gave their money to a body possessed of these legislative powers, and must be held to have had in contemplation the possibility of their exercise.

The question then came to be whether the allegations of the appellants set forth anything beyond the limits of the legislative powers of the Church. In other words, Had they established alterations in doctrines so fundamental and essential as to be immutable? It was submitted that these allegations fell far short of this.

Dealing first with the question of the principle of Establishment, it was denied that that principle formed an element of doctrine in the Free Church. It was a matter of private opinion, on which all members of the Church might exercise the right of private judgment. It was matter of decision that it was not laid down as a canon in the Confession of Faith— Smith v. Galbraith, 1843, 5 D. 665. It was true that it was recognised in the Claim, Declaration, and Protest of 1842 and the Protest of 1843, but even then only parenthetically, and as a matter of opinion. In the Model Trust-Deed (which, rather than any other document, was analogous to the prospectus of the Free Church) it was not mentioned at all. But even if it was conceded to the appellants that Establishment was a principle of the Free Church in 1843, it was not so in 1900. None of the documents referred to by the appellants treated it as other than a minor point. The subsequent history of the Free Church showed that it had been totally disregarded. It was a principle which the Church had done nothing, and could do nothing, to promote. It was not a principle requiring the performance of any duty by the Church or individual member. It was a speculative opinion as to the duty of a third party—the State. It was, in the words of Lord Medwyn in Smith v. Galbraith, 5 D. 665, not a principle “influencing conduct as men or Christians in a state of separation.’ Such a principle was not essential, it was one which the Church had the power to abandon.

A further answer to the charge of abandoning the principle of Establishment was that no such abandonment had taken place. Voluntaryism, i.e., the doctrine that the connection between Church and State was wrong, was no part of the standard of the United Free Church, although no doubt a prevalent opinion among its members. But it was now a point on which each member of the United Free Church was free to form his own opinion. It would still be perfectly competent for a majority of the United Free Church, acting according to prescribed forms, to unite with the Established Church. In doing so they would not infringe any standard or rule of the Church.

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Passing to the question as to the alleged alteration in the standards of belief, the appellants were not entitled to object to the Declaratory Act 1892. Individually some of them may have protested, as a body they had accepted the Act by remaining in the Church, and were bound by its provisions. But the Declaratory Act was perfectly within the power of the Church. The primary standard of the Free Church was the infallibility of the Bible. The Confession of Faith was a subordinate standard, expressly bearing to be binding only in so far as it was consonant with scripture. Such a Confession must necessarily be subject to interpretation, for in no other way could it be ascertained whether it was consonant with Scripture or not. The Declaratory Act did no more than interpret the Confession of Faith, and that was within the powers of the Church. The particular point to which the appellants objected was the statement regarding predestination. But, rightly regarded, the Declaratory Act in that respect did not differ from the Confession. Predestination and free will were held by theologians to be a mystery, involving an antinomy, or apparent contradiction. Both sides of the question, though apparently irreconcilable, were to be found explicitly taught in the Bible; both were laid down in the Confession of Faith. Statements regarding such questions must not be regarded as if they were statements regarding the ordinary affairs of daily life; such an attitude involved the error of regarding the Divine mind from an anthropomorphic point of view. The accepted view of theologians was that we must be content to believe, as a matter of faith, that predestination and free-will were reconcileable on a higher plane of thought. He who said that the exposition of predestination and free-will in the Declaratory Act was inconsistent with that in the Confession of Faith merely showed that he was looking at the question as if it were a point in mercantile law. What the Church by the Declaratory Act did was to guard against any misconception that might arise from the terms used in the Confession of Faith. It did no more than had already been done in 1846 when the Church declared that it repudiated the doctrine that persons holding erroneous views ought to be proceeded against by the civil magistrate. That declaration, like the Declaratory Act, was the interpretation of a passage in the Confession which the Church thought was open to misconstruction.

Lastly, the respondents denied that the change in the ordination oath resulted in the substitution of a fluctuating for a fixed standard of belief. The new form merely expressed, what had always been implied, that the candidate for ordination accepted the Confession of Faith in the sense in which it was interpreted by the Church.

At delivering judgment—