EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

 

Lord Osborne

Lord Bonomy

Lord Drummond Young

 

 

 

 

[2011] CSIH 52

A148/07

 

OPINION OF LORD OSBORNE

 

in Motion for Review

 

in

 

THE REVEREND DONALD SMITH AS MODERATOR OF THE GENERAL ASSEMBLY OF THE FREE CHURCH OF SCOTLAND AND OTHERS

 

Pursuers and Respondents;

 

against

 

THE REVEREND JOHN MORRISON AND OTHERS

 

Defenders and Reclaimers:

 

 

 

_______

 

 

Act: Moynihan, QC, Charteris; Simpson & Marwick

Alt: McNeil, QC, Dawson; Drummond Miller LLP

 

12 August 2011

 

The background circumstances

[1] The pursuers and respondents in this action are, first, the Moderator of the General Assembly of the Free Church of Scotland, holden at Edinburgh on 22 May 2006, second, the Principal Clerk of that General Assembly, third, the Congregation of Sleat and Strath Free Church of Scotland, worshipping at Broadford Church of Scotland, and five named persons, all of said congregation, being its office-bearers, as such office-bearers and as representing that congregation and, fourth, three named persons designated as Trustees of the Congregation of Sleat and Strath Free Church of Scotland. The defenders and reclaimers are, first, the Interim Moderator of the Congregation of Strath Free Church of Scotland (Continuing), second, an elder of the Congregation of Strath Free Church of Scotland (Continuing), third and fourth, members of the Free Church of Scotland (Continuing), fifth, the Congregation of Strath Free Church of Scotland (Continuing) and five named persons, all of the said congregation, being its known office-bearers, as such office-bearers and as representing the said congregation for any interest they may have, and, sixth, six named persons described as the purported Trustees of the Congregation of Strath Free Church of Scotland (Continuing), for any interest they may have.

[2] This action contains two substantive conclusions which are:

"1. For declarator that, under the Trust constituted in the Feu Charter, hereinafter referred to, the subjects hereinafter described are presently held in Trust for the Congregation of the body of Christians called the Free Church of Scotland at Broadford, in the Parish of Strath, Skye, formerly known as Strath Free Church of Scotland and now known as Sleat and Strath Free Church of Scotland, viz. ALL and WHOLE that piece of ground at Broadford in the Parish of Strath, Island of Skye and County of Inverness being the subjects particularly described in Feu Charter by the Right Honourable Somerled James Brudenell Lord Macdonald with consent therein mentioned in favour of the Reverend Alexander MacKenzie and others, Trustees for the Congregation of the Body of Christians called the Free Church of Scotland at Broadford, dated 10 March and 2 April and recorded in the Division of the General Register of Sasines applicable to the County of Inverness on 12 October all in the year 1869, together with the Church and Manse and whole other buildings erected thereon, the fittings and fixtures applicable thereto and the pertinents thereof; and for declarator that the said Congregation of Sleat and Strath Free Church of Scotland are entitled to the beneficial interest in the said subjects; and for declarator that the Trustees of the said Congregation of Sleat and Strath Free Church of Scotland and their successors in office and acceptors and survivors and acceptor and survivor are vested in title to the said subjects.

2.                  For interdict against the first, second, third and fourth named defenders, their agents, their contractors, or anyone on their behalf or acting under their instruction from (a) unlawfully entering or trespassing upon the Manse erected upon said subjects, (b) carrying out alterations or renovations to said Manse, (c) purporting to let or allow any person to use, possess or occupy said Manse, and (d) causing, directing, procuring, assisting or enabling others to do any of the above acts; and for interdict ad interim."

[3] The present action called before the Lord Ordinary on the procedure roll for debate of the defenders' first three pleas-in-law and the pursuers' fourth plea-in-law. The defenders' first three pleas-in-law are in the following terms:

"1. The pursuers having no title to sue, the action should be dismissed.

2.                  All parties are not called.

3.                  The pursuers averments being irrelevant et seperatim lacking in specification, the action should be dismissed".

The fourth plea-in-law for the pursuers is in the following terms:

"4. The defenders averments in answer being irrelevant et seperatim lacking in specification ought to be repelled and decree de plano granted."

By interlocutor dated 31 July 2009, the Lord Ordinary repelled the defenders' first, second and third pleas-in-law, sustained the pursuers' first, second and fourth pleas-in-law and granted decree of declarator and interdict as concluded for. Against that interlocutor the defenders have now reclaimed.

[4] It should be explained that, during the course of the hearing before us, arguments were addressed to certain alleged defects of the pursuers' case. These were:

(1)               General relevancy;

(2)               The plea of no title to sue;

(3)               The plea of all parties not called; and

(4)               Particular relevancy issues.

As the hearing proceeded, it came to be appreciated by those acting for the pursuers and respondents that there might be force in the defenders and reclaimers' pleas-in-law 1and 2. Accordingly, prior to the conclusion of the hearing, there was tendered a Minute of Amendment for the pursuers and respondents, in which it was sought to introduce certain additional pursuers into the action and to call certain additional defenders. The additional pursuers sought to be introduced were the third and fourth-named pursuers. The additional defenders sought to be called were the fifth and sixth- named defenders. There was no opposition from the defenders and reclaimers to the reception of this Minute of Amendment and to its being given effect. Accordingly we allowed amendment in terms of the Minute, which also effected a minor alteration to the second conclusion in the action. There was also agreement concerning the expenses occasioned by the Minute of Amendment and the expenses in the Outer House and before this Court relating to pleas-in-law 1 and 2 for the defenders, which were conceded by the pursuers. Following on the conclusion of the hearing before us, the necessary formalities of service on the fresh defenders were undertaken. On 2 December 2010, at a By Order roll hearing, it was indicated that these formalities had been undertaken and that none of the additional defenders wished to enter the process and that they were content with the submissions already advanced on behalf of the existing defenders and reclaimers. Following upon that confirmation, the Court made avizandum. It was recognised by the reclaimers and the respondents that the result of the amendment process was that further consideration of the issue of title to sue and the plea of all parties not called became unnecessary.

[5] The Free Church of Scotland, "the Free Church", came into being in 1843 following the Disruption of that year, when certain ministers and members of the established Church of Scotland, objecting to state interference in their worship, separated from it. In doing so, they left behind the churches, manses and other assets of the Church of Scotland and raised funds of their own. There were proposals for unification of the Free Church with another church, which were made in the latter part of the 19th Century. Ultimately, the majority of the Free Church, in 1900, unified with the United Presbyterian Church, to become the United Free Church. In 1929, the United Free Church and the Church of Scotland were unified. The minority of the Free Church not unified with the United Presbyterian Church in 1900 continued in being as the Free Church.

[6] In about 1989 complaints emerged concerning the conduct of a professor working in the Free Church of Scotland College in Edinburgh. In May 1995, the General Assembly of the Free Church, having considered the results of an investigation into the allegations, directed that the matter was closed. There was dissatisfaction with the investigation on the part of some ministers and members of the Free Church. They set up a Free Church Defence Association, which openly criticised decisions of the General Assembly of the Free Church. In 1999, at the General Assembly of the Free Church, the professor in question was voted by secret ballot to be the Principal of the Free Church College. In October 1999, a Commission of the General Assembly of the Free Church passed a resolution declaring that the Free Church Defence Association was pursuing a divisive course in relation to the government and discipline of the Free Church and called upon it to disband. Those involved in the Free Church Defence Association refused to comply. That response was deemed a prima facie act of continued and wilful contumacy. Libels were drawn up against the 22 ministers adhering to the Free Church Defence Association. At a hearing before the Commission on 19 and 20 January 2000, these libels were declared relevant. That declaration was immediately the subject of a protest by the 22 ministers. Nevertheless, the Commission ruled that the ministers were suspended from the duties of their ministries. Their cases were remitted for proof before the General Assembly of the Free Church in May 2000. The 22 ministers responded by walking out of the hearing. As they did so, they invited adherents to what they described as the true Free Church to join them. Some did join them. The 22 ministers and their adherents reconstituted themselves in another place. They designated themselves as The Free Church of Scotland (Continuing), "The Free Church Continuing". Thereafter, the Free Church Continuing comprised the 22 ministers, subsequently augmented by a further four ministers, about 650 members, and 500 adherents. They continued to meet and worship, existing quite separately from those they had left behind. They contended that they were the true Free Church in that they continued to adhere to the fundamental tenets of that Church. They also contended that those left behind, being the majority of the Church numbering about 147 ministers and 4,500 members, whom they designated as "The Free Church Residual", had departed from the constitution of the Free Church to such an extent that they were no longer truly the Free Church.

[7] In August 2001, the Free Church Continuing raised an action in the Court of Session seeking declarator that they were entitled to all of the property and assets held by Trustees for the Body of Christians known as the Free Church of Scotland and that the Free Church Residual had no right or title to the property and assets. That action was determined on 24 March 2005 by dismissal; that decision is reported as Free Church (Continuing) v Free Church 2005 S.C. 396. The present action is, in one sense, a sequel to that one.

[8] The particular circumstances that have given rise to the present action are as follows. By a Feu Charter by the Right Honourable Somerled James Brudenell Lord Macdonald, with consent therein mentioned, in favour of the Reverend Alexander MacKenzie and others, dated 10 March and 2 April, and recorded in the Division of the General Register of Sasines for the County of Inverness on 12 October, all 1869, the title to the subjects to which this action relates was vested in Trustees for the Congregation of the Body of Christians called the Free Church of Scotland at Broadford for the purposes and upon the trusts and under the conditions set forth therein. In due course, a church and manse were erected on the subjects. Following the events of 1900 already narrated, the subjects, together with the church and manse, were allocated to the Free Church for behoof of the Congregation of that church in Strath, known as the Strath Free Church Congregation, by the Churches (Scotland) Act Commission, in terms of an Order of Allocation, dated 30 June 1909 and recorded in the Division of the General Register of Sasines applicable to the County of Inverness on 15 July 1909. On 9 April 2001, Strath Free Church Congregation united with Sleat Free Church Congregation, becoming one congregation in terms of Act XVII of the Commission of the General Assembly of the Free Church of Scotland of March 2001.

[9] In January 2000, a minority of ministers, elders, members and adherents left the Free Church, in the circumstances already outlined, forming the Free Church Continuing. One of the ministers who left the Free Church was the Reverend Alan MacIver, the then minister of Strath Free Church of Scotland. Some of the congregation, including the second-named defender, left along with their minister. Despite having left the Free Church, the Reverend MacIver continued to occupy the Free Church manse at Broadford. He and his Congregation continued to occupy the Free Church at Broadford itself. The trustees of Strath Free Church of Scotland were unwilling to raise proceedings against him, particularly since he was elderly. The Reverend MacIver retired in January, 2007 with the result that the manse was thereafter unoccupied. In February 2007, the present trustees learned that certain of the defenders intended to let out the manse, possibly to a theological student, or at least allow such a student to occupy it. On 15 February 2007, the Reverend Stewart, the minister of the Congregation now known as Sleat and Strath Free Church of Scotland went to the manse, in order to see if any person was living there and to provide any such person with a letter explaining that he had no right to occupy it. He entered the manse and observed that work was being carried out within it. He was informed by a workman present that renovations were being carried out, which would take several weeks to complete. It was confirmed that a person was due to move into the manse after the completion of the works. The following day, three of the present trustees, together with another member of the congregation, attempted to regain possession of the manse. They were prevented from doing so by the third and fourth defenders, who were present. In subsequent correspondence, solicitors acting on behalf of the defenders and reclaimers have confirmed that they do not accept that they have forfeited their rights to the manse. The congregation of Sleat and Strath Free Church of Scotland, which is the Congregation of the Body of Christians called the Free Church of Scotland at Broadford has been prevented from meeting regularly at the church building in Broadford, because those adhering to the Free Church Continuing have occupied the church. However, it has been permitted by the Free Church Continuing to hold special services in the church from time to time.

[10] The first condition set out in the Feu Charter under which the subjects are held is in the following terms:

"First; that a place of worship with a Manse or Dwelling house, offices and garden for the Minister thereof, shall be erected upon the ground before disponed, which place of worship 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 shall with the said Manse and others be managed, made use of, occupied and enjoyed in the way and manner and subject to the rules and conditions according to which by the Laws and usages for the time of the said body or united body of Christians, places of worship, Manses and others, shall be managed, occupied and enjoyed; and in particular the said Trustees or Trustee acting for the time shall at all times, and from time to time hereafter permit and suffer to preach and expound the Holy Scriptures and administer Ordinances and perform the usual acts of Religious worship within the said place of worship as said is, such person or persons only as may or shall from time to time be authorised or appointed so to do by the said body or united body of Christians acting through the medium of its Kirk Sessions, Presbyteries, Provincial Synods and General Assemblies, or according to the form or forms in use with the said body or united body for the time; Providing always that when so ever any person holding such authority or appointment as said is, and enjoying the permission and sufferance foresaid shall by a sentence of the said body or united body of Christians pronounced by one or other of its Presbyteries Provincial Synods or by its General Assembly or Commission of such Assembly for the time being or in any other way or manner in use in such matters for the time by the said body or united body of Christians be deposed or suspended from office or cut off from the said body or united body of Christians or declared no longer a Minister thereof, his authority and appointment foresaid shall ipso facto cease and determine; and the said Trustees or Trustee acting for the time shall not only be no longer bound but be no longer entitled to permit or suffer him to preach and expound the Holy Scriptures or administer ordinances or do or perform any Act of Religious worship or other Act or thing whatsoever within the said place of worship erected or to be erected as said is; and shall be bound and obliged to debar him therefrom aye and so long as he remain deposed or suspended or cut off as aforesaid; and in like manner the said Trustees or Trustee shall permit and suffer the said Dwelling house, Garden and Offices in all time coming to be used, occupied and enjoyed as and for a Manse in connection with the said body or united body of Christians, and that by and for the use of the Minister for the time being of the said Congregation having right to the occupation of the foresaid place of worship during his life, but only so long as he shall remain minister thereof and shall not be debarred from the use, occupation or enjoyment of the same by or in virtue of a sentence of the said body or united body of Christians pronounced as aforesaid; and it is hereby provided and declared that the Moderator and Clerk of the said General Assembly for the time being or of the then immediately preceding General Assembly of the said body or united body of Christians or the parties generally known or understood to hold these offices for the time shall at all times have full power and sufficient status and right and interest to pursue or defend any action or actions in whatever Court or Courts of Law or Justice for the enforcement, maintenance or protection of the purposes and trusts for which the same are disponed ....".

Submissions of the defenders and reclaimers

[11] Senior counsel began by adopting the written submissions lodged on behalf of his clients. I shall not attempt to summarise the contents of those written submissions, which could hardly be achieved in this Opinion within reasonable bounds and, in any event, deal with certain matters that have now become academic. Senior counsel moved us to recall the interlocutor of the Lord Ordinary of 31 July 2009 and to sustain the defenders' plea-in-law 3; which failing, to allow a proof before answer. It was his intention to examine issues of general relevancy and certain issues of relevancy of particular averments. The position of the pursuers and respondents was that the defenders and reclaimers had left the institution of the Free Church and had done so at their own risk. They had thus lost their right to the subjects. The reclaimers position was that, since it was acknowledged that there was no conflict of doctrine between the parties and since the reclaimers were in possession, their rights in the subjects survived.

[12] As regards the issue of relevancy, the respondents' case had been summarised in paragraph [46] of the Lord Ordinary's opinion in eight points, which were (1) in terms of the Feu Charter the subjects were disponed to the Trustees for the Congregation of the Body of Christians called the Free Church of Scotland at Broadford; (2) in terms of the Feu Charter the subjects were to be used, occupied and enjoyed by a Congregation of the Free Church or of any united body composed of them and of such other body or bodies of Christians that the Free Church may at any time associate with; (3) the respondents sought to vindicate the rights of the Trustees of the Congregation of Sleat and Strath Free Church to the subjects; (4) the reclaimers admitted that the respondents were the Moderator and Principal Clerk of the Free Church seeking that the subjects be held for the benefit of the Sleat and Strath Congregation; (5) the reclaimers admitted that a division occurred within the Free Church in January 2000 and that a minority of ministers associated themselves under the banner of the Free Church Continuing; (6) the reclaimers admitted that they adhered to the Free Church Continuing and that those who adhered to it occupied the subjects at Broadford; (7) the reclaimers' averment that they were entitled to the subjects because they adhered to the principles and practice of the Free Church were irrelevant in the absence of an averment that the Free Church Congregation in question did not so adhere; and (8) even if adherence to the principles and practice of the Free Church meant that the reclaimers had not forfeited their right to the subjects, there was no basis averred in the defences upon which the reclaimers should be preferred over the Free Church Congregation or permitted to share the subjects with the Free Church Congregation.

[13] The respondents claimed that the reclaimers were "leavers". Unless the reclaimers averred that the Free Church did not adhere to the principles that were relevant, then the defences were irrelevant. Putting the matter in another way, separation was the basis of the respondents' case. The defence was that the reclaimers adhered to those principles. It was common ground that no party alleged any departure from the 1843 principles.

[14] The positions of the parties were clearly set out in condescendence and answer 6 on pages 32 to 35 of the Reclaiming Print. The respondents claimed that departure had led to forfeiture; the reclaimers contended that the proper test was whether they continued to adhere to the tenets of the Free Church of 1843 and 1844. These positions were reflected in paragraph [61] of the Lord Ordinary's opinion. At paragraphs [70] and [71], he had set out the reclaimers' contentions. The Lord Ordinary's reasoning commenced at paragraph [72]. Senior counsel acknowledged that there was very little, if anything, habile to go to proof. Senior counsel submitted that the fact that there were now two separate bodies, the Free Church and the Free Church Continuing, was irrelevant. It was contended that, in the year 2000, two new voluntary unincorporated associations came into being. The General Assembly of a Presbyterian Church was elected for one year only. Therefore, no one General Assembly could bind another. The Barrier Act of 1697 prohibited undue innovation. That was respected by the Free Church. Thus the Moderator was chosen by an Assembly as Chairman for that Assembly only. The first-named pursuer was the Moderator current at the time of the raising of the present action on 18 March 2007. The Commission of Assembly was a separate body from the General Assembly itself, which dealt ad hoc with business between Assemblies. Its powers were not defined closely.

[15] In paragraphs [73] and following, the Lord Ordinary had erred, as would appear from the authorities that would be cited. As a matter of trust law, it was accepted that there might be a split in a voluntary association that resulted in more than one body having rights in property. By way of introduction to the law, senior counsel relied upon Stair Memorial Encyclopaedia, Volume 3 (Voluntary Churches), paragraphs 1632, 1633 and 1638. What emerged from these passages was that a governing body, recognised in a voluntary church, did not have any individual standing as a legal person.

[16] Senior counsel next draw our attention to Craigie and Others v Marshall and Others (1850) 12 D 523, an important authority. The case concerned a dissenting meeting-house, vested in Trustees "For behoof of the members of the Associate Congregation in Kirkintilloch, commonly called Seceders, and presently in connection with the United Secession Church." The minister of the Congregation declared his separation from the Secession Church and a majority of the Congregation adhered to him. Shortly thereafter a union took place between the Secession and the Relief Churches, the two bodies taking the name of the United Presbyterian Church. The court held that the defenders having separated from the Secession Church, was not a violation of the conditions on which the property of the meeting-house was held in trust, so as to lead to a forfeiture of their rights to it, they still continuing to hold the doctrines and opinions originally maintained by that body, and that they were entitled to refuse to concur in the union with the Relief Church, and were not bound to submit themselves to the change in the Church government consequent upon it. Senior counsel relied upon the observations of Lord Justice Clerk Hope at pages 529 to 532, 534 to 537, 539, 541 to 542, and 543 to 544; those of Lord Moncreiff at pages 560 to 562, and of Lord Cockburn at pages 569 to 570. What emerged from that case, particularly from the judgement of Lord Justice Clerk Hope, was that there was a distinction between trusts in favour of an over-arching body and trusts for a congregation. In the latter case, if there was no difference in principle, then the rights remained.

[17] Senior counsel next examined Couper and Others v Burn and Others (1859) 22 D 120. There a congregation of Seceders possessed a chapel which was vested in trustees for behoof of a congregation in connection with the body that afterwards became the "United Associate Synod of Original Seceders". A majority of the Synod joined the Free Church; the minority met and constituted themselves the Synod adhering to their former principles. The Congregation was divided, but a majority was in favour of the union. In an action of declarator by the minority to vindicate their right in the chapel it was held that, having regard to the trust title under which the property was held, the chapel belonged to the part of the Congregation which adhered to the principles maintained by the Church for whose behoof it was vested in trustees; that a majority of such a body were not entitled to compel the minority to unite with any other body, or divert the chapel from the purpose for which it was held in trust; that the principles of the Free Church and of the United Associate Synod of Original Seceders were different in essential particulars; and, therefore, that the pursuers were entitled to decree as concluded for. Senior counsel commented that this was a case where the party not in possession succeeded. It was a congregational trust case. Reliance was placed on the observations of Lord Wood between pages 140 to 146. This case was an exemplification of the difficulty which arose when there were leavers and stayers. The majority in that case stayed together and with the proponents of union. In taking that step, however, they departed from fundamental principles, though not from an institution. The institution came to an end. The minority absented themselves from the majority. At a national level they moved away from the national body and reconstituted themselves in the way that they wished.

[18] In Wallace and Others, the Reformed Presbyterian Church of Scotland (minority) v Symington and Others, the Reformed Presbyterian Church of Scotland (majority) (1879) 6 R 486, the Court was concerned with the proper application of a charitable bequest, The Ferguson Bequest Fund, in a context in which one of the objects of the bequest, the Reformed Presbyterian Church of Scotland, had experienced a schism. The facts of the case were dissimilar from those of the present, but reliance was placed on the passages between pages 508 and 512 of the Report. What they demonstrated was the reluctance of the court, unless it was absolutely necessary as a means of deciding some question of civil right, to make inquiry into the doctrines and rules of particular religious societies.

[19] Senior counsel went on to rely on the decision in The Reverend Angus MacKay and Others v The Reverend A.D. MacLeod and Others (First Division), 10 January 1952 - unfortunately and surprisingly unreported. The pursuers in that action represented the Inverness Congregation of the Free Presbyterian Church of Scotland, worshipping in the Free Presbyterian Church in Inverness. The defenders in the action included the whole persons known to be professing members of a congregation worshipping in the Old High Church Hall in Inverness. Also called as defenders were the trustees presently acting under a particular trust. Under that trust, created in 1920, the subjects concerned were held for the sole use and behoof of the Congregation of the Body of Christians called "the Free Presbyterian Church of Scotland" then worshipping in the Free Presbyterian Church, Inverness and "adhering to the Constitution and to the whole standards of the Free Church of Scotland as set forth and enumerated in the thereinafter mentioned Deed of Separation, and to their successors in office to be assumed or appointed in terms of any Rules and Regulations which might be made by the said Body of Christians for the assumption or appointment of new or additional trustees".

[20] In the action, the pursuers sought, first, a declarator that the Congregation which the pursuers represented, was a Congregation of the Free Presbyterian Church of Scotland adhering to the constitution and the whole standards of the Free Church of Scotland, as set forth and enumerated in the documents referred to; second, a declarator that the defenders did not represent a congregation et seperatim a section of a Congregation of the Free Presbyterian Church of Scotland adhering to the said constitution, whole standards and protest; third, a declarator that, under the Trust constituted in the Disposition specified in the averments, the subjects were held for the sole use and behoof of and belonged to the Congregation which the pursuers represented.

[21] In a judgment dated 2 August 1951, the Lord Ordinary recorded that the Disposition referred to also provided that, in case of any disruption or secession taking place in the Congregation, the subjects were to be held for the sole use and behoof of and should belong to the section of the Congregation, whether the majority or minority, who adhered to the constitution and whole standards and the protest mentioned in all particulars, and that in case the Congregation became extinct, or in case the whole members and adherents forming the Congregation at any time failed to adhere to the constitution, standards and others, the subjects should be held in trust for the general body of Christians known as the Free Presbyterian Church of Scotland continuing to adhere to the constitution standards and others. For reasons which need not be narrated for the present purposes, a disruption took place within the Congregation. A portion of the congregation supported the minister of the Congregation, the Reverend Macqueen, the rest disagreed with him. Mr Macqueen and his followers thereafter worshipped in a hall, being unable to obtain access to the church itself. The remainder of the original Congregation remained in possession of the church. The remainder of the original Congregation sent a notice to Mr Macqueen to quit the manse, dated 2 March 1939. That notice was not acted upon and was not put into effect upon compassionate grounds. Accordingly Mr Macqueen occupied the manse until he died on 27 November 1949. The action was at the instance of the minister and representative office-bearers of the congregation worshipping in the church itself. The defenders were the members and adherents of the congregation worshipping in the hall, their pastor and office-bearers, being the section which had supported Mr Macqueen. The dispute between the parties was as to which body was entitled to the manse conveyed by the Disposition referred to; that involved consideration of the question raised by the terms of the Disposition as to which section, if either, of the original Congregation adhered to the constitution, whole standards and others mentioned in the document. The issue of entitlement was dependent upon the view taken as to the consequences of the circumstances which led to the departure of Mr Macqueen and part of the original congregation from that congregation.

[22] The matters in issue in a debate before the Lord Ordinary included the relevance of the pursuers' averments and the relevance of the defenders' defence to the pursuers' claims. The pursuers had argued that the defenders were a "self-constituted congregation unconnected with the Free Presbyterian Church". Upon the basis of that and associated allegations, the Lord Ordinary held that the pursuers had a case for inquiry. Since the Presbyterian form of church government was an essential part of the constitution of the Free Church of Scotland, it was obvious that a body which departed from that form of church government could not be regarded as adhering to the constitution and standards of the Free Church; accordingly, the pursuers had stated a case for inquiry as to whether or not the actings on the part of the defenders congregation involved a failure to adhere to that constitution and those standards and consequently disentitled them to possession of the manse under the Disposition in question. The Lord Ordinary went on to hold that, without fuller knowledge of the facts, he could not hold that the events in the history of the dissentient congregation, and in particular the appointment of a minister and elder, and the severance of connection between that body and the courts of the church were necessarily a departure from the Presbyterian form of church government. Accordingly, the Lord Ordinary decided to allow a proof before answer on the question whether the defenders had departed from the constitution and standards of the Free Church of Scotland. The Lord Ordinary's decision was the subject of a reclaiming motion, which resulted in the recall of his interlocutor and the dismissal of the action. In the Inner House, the majority, the Lord President (Cooper), Lords Carmont and Keith were for the dismissal of the action, but Lord Russell dissented. He would have been prepared to recall the Lord Ordinary's interlocutor and to grant the three declaratory conclusions de plano.

[23] Senior counsel examined each of the opinions of the majority individually. He drew attention particularly to the opinion of the Lord President. At page 20 and following, he considered the situation where an existing congregation split. At page 21 he concluded that the lack, on the part of that section of the congregation that had left the church in Inverness to worship in a hall of their own, of the elements of typical presbyterial church government and their limitation to a single congregation were not per se sufficient to disqualify them under the trust deed under consideration. That was of considerable importance in the context of the present case. At page 24 of his opinion, the Lord President concluded that it had not been made to appear that the defenders had ceased to adhere to the Constitution and Standards of the Church as defined in the trust. He therefore held that the pursuers had failed to show by relevant averments that they had a right and title to the subjects exclusive of the defenders. The situation with which the court had been dealing was a casus improvisus under the trust. It followed that the action had to be dismissed.

[24] Senior counsel drew attention to a passage at page 23 of the Lord President's opinion, in which he stated that, if a difference leading to a secession related to a matter not covered by the Constitution and Standards of the Church, and if therefore the continuing section could not be shown to have violated or departed from the Constitution and Standards, the "seceders secede at their peril" and could not by "professions of conscientious conviction elevate minor or extraneous points of controversy into principles embodied in the Church's Constitution and Standards". Senior counsel said, after some discussion of this passage in the opinion, that he was unable to offer a view as to exactly what the Lord President meant. However, his position was that he did not mean that if seceders, following a secession could not be shown to have departed from the Constitution and Standards of church, they did not necessarily lose their patrimonial interests in the property of the body. Had that been the meaning of the passage, it would have been inconsistent with the decision reached by the court. Thus the Lord President's decision was that a clear withdrawal from the congregation of the church, as it originally stood, did not determine rights to the property of the congregation.

[25] Senior counsel went on to the consider the opinion of Lord Carmont. Certain parts of it appeared to be at odds with the decision in Craigie and Others v Marshall and Others. Lord Keith adopted a somewhat different approach but concurred in the majority decision, holding that the pursuers had failed to show that the Reverend Macqueen, by his protest, had separated himself from the church. In these circumstances, submitted senior counsel for the reclaimers, the decision in this case supported the position of the reclaimers in the present action, to the effect that separation itself did not denote withdrawal from the church Constitution and Standards. The respondents, in their written submissions at page 42 and following dealt with the case of Reverend Angus MacKay and Others v The Reverend A D MacLeod and Others in some detail. However, it was submitted that they did not address the gravamen of the Lord President's judgement.

[26] Senior counsel then turned to consider General Assembly of the Free Church of Scotland and Others v Lord Overtoun and Others [1904] A.C. 515. While this had been a decision of the greatest importance in its context, he contended that it was of limited assistance in the present case, because the court in this case was concerned with the interpretation of a congregational trust. The case mentioned had been concerned with the property of the denomination as a whole. The outcome of the case was that the minority, which did not favour union with the United Presbyterian Church, succeeded. The property consequences of the decision had been enormous and had subsequently been regulated by legislation. Two members of the committee, Lord Macnaughten and Lord Lindley dissented. What had been in issue was the establishment principle. Senior counsel drew attention to the observations of the Earl of Halsbury, L.C. at pages 613 to 617. The Lord Chancellor emphasised that the issue concerned the interpretation of the original purpose of the trust involved in the case. Reliance was also placed on the observations of Lord James at pages 655 to 656, which were consistent with the position of the Lord Chancellor, emphasising that the issue was one of the interpretation of the trusts under which the properties were held. Senior counsel went on to draw attention to the exchange, during the course of submissions, between Lord James and Mr Salveson, counsel in the case, which were reported in detail in the Free Church of Scotland Appeals 1903 to 1904 at page 335 and following. Senior counsel submitted that there was nothing in this exchange which affected what might be called congregational trusts.

[27] Senior counsel then went on to consider the General Assembly of the Free Church of Scotland (Continuing) and Others v General Assembly of the Free Church of Scotland and Others. In that action, the Free Church Continuing had taken action to obtain the benefit of property held in trust for the Free Church, endeavouring to show that the Free Church Residual had departed from the fundamental principles of the church in relation to the matter of the right of continuing protest. However, the Lord Ordinary had concluded that the right of continuing protest was not a fundamental principle of the church, in consequence of which the action had been dismissed. The passage from paragraph [72], line 4 to paragraph [78] was of interest and significance. Although there had been a claim for apportionment in the action, it was unsupported by authorities. Accordingly these observations of the Lord Ordinary came as a surprise. This case was the subject of submission in the respondents' written submissions at page 31. The proposition there set forth was not supported by authority.

[28] Summarising his position, senior counsel contended that, in the present action, not only was a relevant defence pled, but the respondents' case failed because they did not aver non-adherence on the part of the reclaimers to fundamental principles. Thus the present action was irrelevant and should be dismissed. Finally, in paragraph [75] of the Lord Ordinary's opinion in the present case, mention was made of the so-called "chaos" argument which was said to arise out of the reclaimers' contentions. Senior counsel submitted that this argument had no real basis. If a situation were to be recognised in which the two parts of a split congregation each possessed rights in the congregational property, machinery existed whereby the administration of that property could be properly regulated. There might be a sharing of the property; there might be a petition for directions to the court; or a cy-près division. There was no reason to suppose that such a situation could not be properly handled. The Lord Ordinary had misdirected himself in this respect. Furthermore, his decision had been reached upon the basis of a failure properly to analyse the relevant authorities.

Submissions of the respondents

[29] Senior counsel moved the Court to refuse the reclaiming motion and to adhere to the Lord Ordinary's interlocutor of 31 July 2009. He began by adopting the written submissions of the respondents. At the outset, he said that it would be helpful to identify four agreed propositions:

(1) As a matter of law, the Free Church was a voluntary association; as such it was not a corporate body, but the collective of its members who were bound together by contract.

(2) Prior to the year 2000, there had been a single association, the Free Church of Scotland. It had its own governing structures. The reclaimers and respondents were all members of that association.

(3) Since January 2000, however, there had been two associations with distinct governing structures. One of these was called the Free Church of Scotland. The respondents were members of that association. The other association was the Free Church Continuing. The reclaimers were members of that association.

(4) Both associations adhered to the fundamental principles of the Free Church of Scotland of 1843. Looking at the case law, there was but one case in which that factor had been the subject of argument to conclusion, which had not, so far, been cited. That was Craigdallie and Others v Aikman and Others (1820) II Bligh 529, a decision in the House of Lords in 1820.

[30] The question in the present case was how did the trust deed involved here apply in the circumstances of the four preceding propositions, of which the fourth was of great importance. The only two cases bearing on the matter were Craigdallie and Others v Aikman and Others and MacKay and Others v MacLeod and Others. It was submitted that the issue arising in the present case had not been argued in the latter case.

[31] Senior counsel went on to examine MacKay and Others v MacLeod and Others. The background of fact in that case was that one group in a congregation had left it because of particular circumstances, but not because of any fundamental differences of doctrine. Certain points had to be stressed. First, as appeared from what the Lord President had said at pages 22 to 24 of his Opinion, what was singular concerning that case was that in the relevant trust deed there was a clause dealing expressly with the matter of secession and its effect on the beneficial interest under the trust. The beneficial interest went to that part of the congregation that adhered to the constitution and whole standards of the Church. However, as the Lord President pointed out at page 24, it did not deal with the situation in which both parts of the congregation did so adhere. The origin of the terms of the trust deed involved in that case was explained by Lord Keith at page 1 of his Opinion. It contained the expression "the Constitution and Whole Standards of the Church as set forth and enumerated in the Deed of Separation by which the church was established in 1893 and .... the Protest contained in the said Deed of Separation". The issue dealt with in the case did not involve a situation where, in the event of a split in a congregation, each section adhered to the "Constitution and Whole Standards of the Church". That issue turned exclusively on the clause in the trust deed which dealt with secession. Thus the decision in the case was not to be seen as in any way in conflict with the line of authority from Craigdallie and Others v Aikman and Others and including Craigie v Marshall. The outcome of MacKay and Others v MacLeod and Others was a consequence of the fact that the court held that both parts of the original congregation had an equal right; accordingly the action was dismissed. Craigdallie and Others v Aikman and Others was of a great importance in the present case, since only one party was held to have an exclusive right. Had the decision in the latter case been relied on in MacKay and Others v MacLeod and Others, the pursuers should have prevailed.

[32] The position of the respondents was that, if a person or group of persons left a voluntary association in which the patrimonial benefit resided, and that whether by resignation or death, the right to that benefit was lost. That was the simple answer to the question raised in the present case, which was furnished by the decision in Craigdallie and Others v Aikman and Others. It was clear that MacKay and Others v MacLeod and Others was not of assistance to the reclaimers because, first, its outcome depended on the precise wording of the trust deed applicable, which differed from that in the Feu Charter, and, second, the case was decided on a limited argument which did not address entitlement where both congregations adhered to the fundamental principles of the Free Church of Scotland established on the Disruption of 1843. Senior Counsel contended that the pursuers in MacKay and Others v MacLeod and Others had failed in the action because no argument based on Craigdallie and Others v Aikman and Others had been advanced on their behalf.

[33] Turning to look in detail at that latter case, senior counsel pointed out that there were two reports to be considered, both of proceedings in the House of Lords, the first of which was reported in (1813) I Dow 601, [No. 1]. The Lord Ordinary in the present case had summarised his understanding of this case in paragraph [50] of his opinion. However, it was instructive to go beyond that. A more detailed account of the history of the matter was to be found in the report in I Dow at pages 601 and 602. However, for the conclusion of the whole matter it was necessary to look at the second report in II Bligh 435, [No. 2]. He relied on what was set forth at page 436 to 439 of that report. At page 438, there was to be found the interlocutor of the Court of Session which represented the outcome of certain enquiries which had been undertaken. In that interlocutor, the court concluded that the pursuers had to be considered merely as so many individuals who had thought proper voluntarily to separate themselves from the congregation to which they had belonged, without any assignable cause and without any fault on the part of the defenders; it was held that they had no right to disturb the defenders in the possession of the place of worship originally built for the profession of principles from which the pursuers had not shown that the defenders had deviated. The pursuers and appellants, conceiving themselves to be aggrieved by this interlocutor, appealed to the House of Lords. The decision of the House of Lords was given in the speech of Lord Eldon, the Lord Chancellor. Recognising that the Court of Session had failed to identify any intelligible cause why the pursuers had thought it proper to separate themselves from the congregation to which they had belonged, the Lord Chancellor concluded that the judgment of the Court of Session should be affirmed. Those who had separated themselves from the Associate Synod and declined their jurisdiction, were held to have forfeited their right to the enjoyment of the property previously available to them, although it had been judicially declared that there was no intelligible difference of opinion between them and the adherents of the Synod. Senior counsel observed, I think with some justification, that it was difficult to expiscate the reasoning of the House of Lords, but what was clear was that the interlocutor of the Court of Session had been affirmed.

[34] Looking at the matter from the viewpoint of the law of trusts, if there was a trust for religious purposes, in the event of a split of the beneficiaries, the destination of the property was not determined by whether a majority or a minority of the original group remained after the split. Nor was the matter determined by the continuity of a name or a constitutional structure. The destination of the property would be determined by which group adhered to the fundamental principles of the original organisation. However, where two groups adhered to those fundamental principles, Craigdallie and Others v Aikman and Others [No. 2] ruled. Putting the matter very shortly, resignation from a voluntary association involved an associated loss of right to benefit from that association. If those resigning formed a new association, that was a different voluntary association.

[35] In the present case the terms of the trust deed did identify the voluntary association to benefit from it. The words that appeared in the first condition in the Feu Charter relating to those persons who were to be permitted to preach and expound the Holy Scriptures within the place of worship were to be "such person or persons only as may or shall from time to time be authorised or appointed so to do by the said body or united body of Christians acting through the medium of its Kirk Sessions, Presbyteries, Provincial Synods and General Assemblies ....".

[36] Senior counsel next turned to consider whether, in any circumstances, there was justification for the holding of a proof before answer in this case. He submitted that there was not. The facts that had been averred and accepted constituted a sufficient basis for a decision in the case. The respondents founded upon the continuity of structure before and after the schism.

[37] At this point in the discussion, senior counsel for the reclaimers intervened to indicate that he was in a position to make what he described as a concession, to the effect that, if the reclaimers' contentions were correct regarding adherence to the fundamental principles of the church being the applicable criterion, they being also in possession of the subjects, the reclaimers should succeed. He also agreed that if the respondents' contentions were correct in law, it was to be expected that they would succeed. That was reflected in what the Lord Ordinary had said in paragraph [71] of his Opinion.

[38] Senior counsel for the respondents resumed his submissions, saying that he intended to show that, in any event, the trust deed involved here was defining as to the beneficiaries. It was a trust established for the benefit of a voluntary association; it benefited those who were members of that association, from time to time. It was appropriate to consider carefully the terms of the trust deed between page third and page seventh. It was noteworthy that on page fifth of the deed a provision was made for the preacher in the place of worship to be subject to the discipline of the institutions of the Free Church of Scotland. That conferred on those institutions a status in the trust.

[39] Senior counsel then turned to consider the reclaimers' submissions, particularly what had been said concerning Craigdallie and Others v Aikman and Others. What the reclaimers had not done was to explain the result finally reached by the House of Lords in a manner that was consistent with their own position. It was submitted that adherence to the Synod was an important consideration in that litigation. The claim to an exclusive interest in the subjects made in the counter-action was based on such adherence, as appeared from pages 437 to 438 of the report of 1820. Reference was also made to page 602 of the 1813 report. It was contended that the decision in Craigdallie and Others v Aikman and Others [No. 2] could not be explained simply on the basis of both contenders adhering to fundamental principles. The decision in that case undermined the basis of the present reclaiming motion. Craigie and Others v Marshall and Others had to be seen in the light of the decision in the former case.

[40] Senior counsel for the reclaimers had sought to portray a dichotomy between what he called a congregational trust, on the one hand, and a national trust, on the other. That was a false dichotomy. There were trusts, of which the present one was an example, which could not be so categorised. The present trust was one for the benefit of the congregation of the Free Church at Broadford, but that congregation was to be seen as part of the wider institution of the Free Church. The donor had provided for the incorporation of the national institutions of that church in the trust. Those institutions were given a supervisory function. Putting the matter in another way, the trust deed proceeded on the premise of a united body, not two separate institutions.

[41] Senior counsel went on to discuss Craigie and Others v Marshall and Others. It was important to notice what was said at page 531 concerning the possible bases upon which a right to property might be forfeited. In that passage, the Lord Justice Clerk did not say that the sole criterion was adherence to fundamental principles. Of first importance were the terms of the trust deed involved in the case. The commentary by the Lord Justice Clerk on the decision in Craigdallie and Others v Aikman and Others was of great assistance. In that connection, senior counsel relied on what was said at pages 540 to 541. The view of the Lord Justice Clerk was that the ultimate criterion used in the earlier case had been a departure from the church and its institutions, because no intelligible difference of principle could be discerned. The decision in Craigdallie and Others v Aikman and Others [No. 2] was quite consistent with the Lord Justice Clerk's judgement in Craigie and Others v Marshall and Others. Putting the matter in another way, if persons leave an existing congregation with no issue of principle involved, then continuity prevails. The proposition relied upon by the reclaimers was that adherence to principles was the exclusive criterion in a matter such as this. That was an erroneous view. In this connection the observations of the Lord Ordinary in paragraph [75] of his Opinion were correct. The reclaimers' position ultimately would lead to an absurdity.

[42] Senior counsel next turned to consider Smith and Others v Galbraith and Others (1843) 5 D 665. At first sight the decision might appear to be inimical to the respondents' submissions. However, at page 673, the Lord Ordinary (Moncrieff) demonstrated, it was submitted, a proper understanding of Craigdallie and Others v Aikman and Others. The situation in the present case was that there were two congregations which adhered to the fundamental principles of the Free Church. However, the respondents retained their benefit under the trust because of the constitutional element in their position. The Lord Ordinary's analysis of the authorities, summarised in paragraph [74] of his opinion, was sound. It relied on no concessions, and neither did the respondents here. The decision in the present case had to turn on the choice of criterion applicable to the situation. Regardless of concessions, there was no need for a proof.

[43] Senior counsel referred finally to Wallace and Others v Symington and Others, the so-called Ferguson Bequest Fund case. The facts of that case were far removed from those of the present one. The decision was an application of the principle that, for a solution, it was necessary to look at the terms of the trust under consideration. It did not support the proposition that, when a division occurred in a church on non-doctrinal grounds, both parts resulting from the division qualified as beneficiaries. Everything depended on the terms of the trust involved. Reliance was placed on the observations of Lord President Inglis at pages 511 to 512.

[44] Senior counsel went on to consider the possibility that it might be necessary to hold a proof before answer. While certain individual points might be the subject of proof, there was no need for evidence in relation to the fundamental issues which divided the parties. Summarising that, senior counsel said that the reclaimers' position was that right to the property was determined by adherence to principle and possession. The respondents contended that it was determined by identifying which party had left the church. Looking at the case as a whole, certain propositions might be advanced:

(1) Neither party was accusing the other of non-adherence to the principles of the Free Church.

(2) If the reclaimers were correct and adherence to principle was the sole criterion for a right, the conclusion had to be, where there were two congregations each adhering to principle, they had a common right to the property under the trust.

(3) Such an outcome as that just described would be inconsistent with Craigdallie and Others v Aikman and Others, as explained in Craigie and Others v Marshall and Others. In the latter case Lord Justice Clerk Hope had said that, where both parties adhered to principle, a mode of solving the issue had been found in the former case by the granting of decree in the counter action, as a consequence of which one of the adhering groups was allowed to prevail.

(4) What followed from (3) was that the reclaimers test was wrong in law.

(5) The decision in Craigdallie and Others v Aikman and Others [No. 2] was inconsistent with the reclaimers' contention.

(6) The appropriate test had been formulated in the rubric of Craigdallie and Others v Aikman and Others [No. 2] and in the interlocutor pronounced in the Inner House to be found at pages 438 to 439 of the report.

(7) The starting point of the Court's consideration was the issue of the relevance of the pursuers' pleadings. What appeared in paragraph [46] of the Lord Ordinary's Opinion was simply a formulation of the submissions made to him by the respondents. The same observation could be made about paragraph [57] of the Lord Ordinary's Opinion. Nothing turned on those formulations. What mattered was the statement of a position in averments. The respondents' position was explained in Condescendence VI in the reclaiming print at pages 32 and 33. A variant of that was to be found in Condescendence V at page 26. Either of those formulations could be tested by the criterion set out in Craigdallie and Others v Aikman and Others. It followed from that that the respondents had a relevant case. It had to be recognised that neither of those formulations was admitted by the reclaimers.

(8) The reclaimers' position was expressed at pages 34A to 35A of the Reclaiming Print. Some of their averments were more contentions of law than averments of fact. However, the reclaimers averred that a "division" occurred within the Free Church of Scotland in January 2000. That begged the question. It could be seen as a generic description of the result of what occurred in that year. A division could occur bilaterally, or unilaterally, where one person or group of persons left an existing association. That formulation of position led to the submission that the reclaimers' averments were irrelevant. But that did not necessarily lead to a decree de plano. What was important in the situation was recognised by the Lord Ordinary in paragraph [72] of his Opinion, where he concluded that the Free Church Continuing was a separate ecclesiastical structure with a separate assembly. He went on: "It is a body set up by those who left the Free Church in January 2000 and a body which does not accept the authority of the governing bodies of the Free Church." That was the defining position. The court was in the realm not of dealing with disputed primary facts but of the making of inferences from those facts.

(9) In these circumstances, the respondents contended that a proof before answer was unnecessary since there was no significant dispute on primary facts. The substance of the dispute was an issue of law and inference. If the Court considered that it was necessary to hold a proof before answer, the respondents did not suggest that any part of the reclaimers' averments should be excluded from probation.

[45] Senior counsel for the respondents emphasised again the importance of Craigdallie and Others v Aikman and Others. He submitted that certain matters clearly emerged from the reports of that litigation. First, the court and the House of Lords looked at the church established following the First Secession as it stood prior to the subsequent division. Second, what was decided ultimately was that those who had a voluntarily separated themselves from the congregation of those with whom they had formerly been in association, forfeited their right under the trust. Third, if those who separated went "into the wilderness", then they had lost their right to the property because they had ceased to be members of the association that established and controlled it. Fourth, it made no difference in principle that those who separated did not just go "into the wilderness" but reconstituted themselves as a separate voluntary association.

[46] The important point was the association at the commencement. Those who left that association lost their right by virtue of having done so. The paradox was that it did not matter that those who had separated themselves proceeded to reconstitute themselves and claim continuity with the original body. Looking at the rubric of the report of 1820, the important point was separation from the Associate Synod, as it had been prior to the division. The ground of decision in the case could most clearly be discerned from the interlocutor of the Court of Session, which was affirmed, set out on page 438 of the report of 1820. To appreciate fully the effect of that interlocutor it was necessary to look at the counterclaim raised by the respondents, Aikman and Others, which was described at page 437 of the report. What was in issue in that counterclaim was that Aikman and Others sought to have it declared that the parties protesting and declining the jurisdiction of the Synod had lost all interest in the subjects. In that connection reference was made to Craigie and Others v Marshall and Others at page 541. The particular circumstances of the separation in 1797 were described at page 437 of the report of 1820. The determining factor had been the refusal of Craigdallie and Others to accept the authority of the Associate Synod. In the present case, the proper inference from the facts was that the reclaimers, by reconstituting themselves after separation in an association, accepted that they no longer were associated with their former associates. On that basis, decree de plano could be pronounced. Senior counsel commended to the court the view expressed by the Lord Ordinary in paragraph [72] of his Opinion. Based on a fuller reading of Craigdallie and Others v Aikman and Others the Lord Ordinary's conclusion was not one of fact, but of law, which he was entitled to reach. It was a corollary of that conclusion that the defences in the present action were irrelevant. Plea-in-law 4 for the respondents should be sustained in accordance with its terms and decree de plano pronounced. Decree was also sought in terms of pleas-in-law 1 and 2 for the respondents. The decree would be for declarator and interdict as amended. Pleas-in-law 6, 7 and 8 for the reclaimers should be repelled.

Reply on behalf of the reclaimers

[47] Senior counsel wished to reply in relation to certain particular authorities and matters. He dealt first with the Reverend MacKay and Others v The Reverend MacLeod and Others. In that case there had been emphasis on the terms of the deed and its provisions for secession. That was evident from the judgement of Lord Carmont. It was submitted that that emphasis was misplaced. At page 1 of his judgement, Lord Keith adverted to the "model clause" contained in a book of Church Documents of the Free Presbyterian Church of Scotland. By contrast, the trust deed operative in the present case did not include a secession provision. The judgement of the Lord President (Cooper) did not suggest that the issue in the case turned on the provisions of the clause.

[48] Turning to the case of Craigdallie and Others v Aikman and Others, senior counsel drew attention to the observations about that case at page 341 in Craigie and Others v Marshall and Others. In Craigdallie and Others v Aikman and Others there had been a split in the congregation with those who separated from it rejecting the authority of the Synod. That could be distinguished from what had happened in the present case where, not only had there been a split in the congregation, but there had also been a national division in the Free Church, as a result of which there had come into being two Presbyterian systems. That was a more fundamental matter. The split at a national level had given rise to the litigation of The Free Church of Scotland (Continuing) and Others v The Free Church of Scotland. Reverting to Craigdallie and Others v Aikman and Others it was apparent from the interlocutor of the Inner House of the Court of Session that the concept of possession was important. So far as the counter action was concerned, the conclusion was granted, but the reason for that was not clear. The House of Lords in 1820 left that decision standing. Aikman and Others retained exclusive possession of the property; they had adhered to the Synod. However, there was nothing to show that they would have prevailed had they not been in possession. In the present case, the reclaimers had always been in possession of the church until the Reverend Maciver removed and interim interdict was obtained. So far as Craigdallie and Others v Aikman and Others was concerned, it showed that possession was nine-tenths of law. If there was an attempt to disturb possession, a reason must be shown why that should happen.

[49] Senior counsel reverted to Craigie and Others v Marshall and Others. What was said at page 541 by Lord Justice Clerk Hope was critical. It amounted to a commentary on the decision in Craigdallie and Others v Aikman and Others. It was accepted that in that case, as observed by the Lord Justice Clerk, there was no intelligible difference of principle between the contending parties. What the Lord Justice Clerk said in paragraph 5 on page 541 was important. Separation from the Synod might or might not be seen as an essential condition in the contract or trust. Senior Counsel emphasised the importance of what was said by the Lord Justice Clerk at pages 530 to 532 concerning the character of different kinds of trust.

[50] Concerning the trust deed involved in this case, the respondents had sought to show the closeness of the connection between the beneficiaries of the trust and the Free Church. It had been suggested that the trust deed made that link important in this case. However, it had to be emphasised that the present trust was a congregational trust. The national body of the church had been given no rights. However, senior counsel agreed that the donor of the property had contemplated adherence to the structures of the national body. Looking at the details of the trust deed here, what was apparent was that the national body had been given certain powers in the area of spiritual matters. It was quite apparent from page third of the trust deed that the benefit of the trust had been given to the congregation. In that regard, the words used were almost identical with those used in the deed in the Reverend MacKay and Others v The Reverend MacLeod and Others. Coming to page fifth, it was accepted that persons preaching in the church required to be authorised by the national body. If the entire body of the congregation had moved away from the national body, it was submitted that that body would have had no right in the property. They would have had no interest to enforce the authorisation provisions in the trust deed, as appeared from Lord Justice Clerk Hope's view of the nature of a congregational trust.

[51] The terms of the model trust were to be seen in the General Assembly of the Free Church and Others v Lord Overtoun and Others at page 746 in the Appendix to the report. There was a more direct provision there involving subjection of the trustees to the General Assembly. The importance of the model trust deed was that those at a very high level in the Free Church had contemplated that there might be splits in the church and had made a specific provision for that eventuality. It was a matter for local congregations to follow such a style, if so advised. In the trust deed operating in the present case, there was no such provision. Accordingly it was necessary to look at the way in which the trust operated at common law. It was submitted that here a local congregation could decide where to go and take their property with them. Certainly there was a provision in this trust concerning spiritual direction, but not as regards property. The position now was that the national church had divided, but neither part had departed from fundamental doctrines of the Church. It would be odd if the national body had not forfeited its property, but that such a thing had occurred at a congregational level. There was thus a potential conflict between what might be done in the present case and what was done by the Lord Ordinary in Free Church of Scotland (Continuing) v Free Church of Scotland and others. In the present case the respondents had been unable to point to any principle justifying their position.

[52] In answer to a question by the court, senior counsel for the reclaimers said that the observations of Lord President Cooper at page 23 in his judgement in The Reverend MacKay and Others v The Reverend MacLeod and Others that persons "secede at their peril" was puzzling. It was not clear what was meant by secession in that context. What he seemed to envisage was a continuing body and persons withdrawing from it. The words "at peril" must mean at peril of loss of property rights, but it did not connote an inevitable loss of property rights. That observation was not a necessary part of his reasoning. If it had been, the result of the litigation would have been different.

Further submissions on behalf of the respondents

[53] Senior counsel for the respondents raised the issue of a possible inconsistency between the outcome of this case and the decision of the Lord Ordinary in Free Church of Scotland (Continuing) v Free Church of Scotland and others. In that case the pursuers had sought, in the first instance, an exclusive right to the property and assets of the Free Church, alternatively participation in those assets and property. The Lord Ordinary in that case had not been addressed on the issue which had arisen in the present case.

 

My conclusions

[54] The subjects to which the present dispute relates are particularly described in the Feu Charter, to which I have referred. The granter of that deed, in consideration of the feu duty specified in it, sold, alienated and in feu farm disponed those subjects to the persons named in the deed as trustees "for the Congregation of the Body of Christians called the Free Church of Scotland at Broadford in the Parish of Strath, Skye." Following the execution of that conveyance and in accordance with the conditions contained in it, there was erected a place of worship with a manse or dwellinghouse for the minister thereof.

[55] In the circumstances described, the resolution of the issue raised in this case, which concerns entitlement to benefit under the trust, appears to me inevitably to depend upon the proper interpretation of the trust created by the deed in question. The first feature of the deed to be noted is that the trustees are stated to be "trustees for the Congregation of the Body of Christians called the Free Church of Scotland at Broadford". During the course of the debate before us, much emphasis was placed upon the opinion of Lord Justice Clerk Hope in Craigie and Others v Marshall and Others. In particular, senior counsel for the reclaimers was at pains to emphasise the categorisation of trusts for ecclesiastical purposes adopted by him at page 530 of the report. There he said

"The property intended for the use of a dissenting congregation may stand, generally speaking, in one or other of two situations - widely different, and to which totally different rules are to be applied. The property (especially if it come in whole, or partly, from the funds of other parties than the congregation) may be held by titles vesting it in trustees for the general governing body or ecclesiastical judicatory of the sect, so as to separate the patrimonial right and interest entirely from the individuals composing the congregation, in such a way as to make their adherence or separation in truth a matter of no importance, since the property belongs to managers or trustees for the aggregate representative of the sect. Or the property - as has generally been the case when purchased and built by funds contributed by the individuals composing the congregation - may be held by the titles as a trust for the congregation and its members. Such a trust may, it is true, restrain and limit the property to the portion of the congregation holding certain opinions, or as in subjection, it may be, to a certain governing body. That is an adjection perfectly consistent with a trust for the congregation and its members.

Now, property standing in these two several positions is held on totally different conditions, and the principles to be applied, in the event of difference among its members, are perfectly distinct."

[56] In my opinion, it is quite clear that the trust created by the deed in question, albeit granted by a third party, was a trust for a congregation and its members, as submitted by senior counsel for the reclaimers. However, in my view, while that cannot be seriously disputed, the consequences of that status for which he contended do not appear to me to follow from the categorisation. Nevertheless, on the basis that the trust was of that character, it is appropriate, in my opinion, to go on to consider what was said by Lord Justice Clerk Hope concerning that particular species of ecclesiastical trust. Having dealt with the former kind of trust, "for the general governing body or ecclesiastical judicatory of the sect", at page 530, he goes on in this way at page 531:

"But in regard to property held on the other footing, the leading consideration to keep in view in such questions as the present is, that the members of the congregation are the proprietors; - under whatever conditions - whatever may be the restraints as to the opinions those must hold who form the proper congregation - still the members of the congregation alone are the proprietors. In them the right - a direct personal right and interest in the heritable property - exists, from the very nature of the trust. The governing body, or ecclesiastical judicatory, has no interest in, or power over the property. The relation of the congregation to such governing body, or the maintenance of the same opinions with that body, or the maintenance of the opinions originally professed by that body, may be, in different cases, more or less important in ascertaining for what portion of the congregation, in the event of division among the congregation, the property is held. But such a question is one entirely between the individual members of the congregation. The party who says the other has lost the right, especially if the majority have possession, must make out and establish that such majority have lost the character of those for whom the property is held, and have individually, by their acts, opinions, and tenets, departed from the principle of the associated congregation - (I use that term as a generic description of such society) - and so forfeited their right of property. What is to prove such departure is a different point. It may be affected or decided by the terms of the contract of such society; it may be affected, or even decided, by the relation subsisting or renounced with some ecclesiastical judicatory, when such has been proved to form a condition of the trust; or it may be a question depending wholly on adherence to the principles on which the congregation associated and formed itself - the maintenance of which being in truth always the rule, even when the determination of that point is affected by the continued relation with, or renunciation of, ecclesiastical superiors. In the latter case, the point is still (when the property is held for the congregation) to ascertain by whom (in the event of difference) the original principles of the association are maintained. Adherence to a certain judicatory of the sect may, by the terms of the title, decide that point".

[57] Further guidance in the expiscation of rights following a division in a congregation may be found at a later stage of the Lord Justice Clerk's extensive opinion where he discussed the significance of the case of Craigdallie and Others v Aikman and Others. At page 541, referring to that case, he said:

"As no difference could be made intelligible to the Court in Craigdallie's case, then, in that very strange and unexampled state of things, the party leaving their Church and Synod were held, as the only mode of solving the matter, to have gone out of their congregation and trust without cause; and in this way alone it was that the concurrence between Aikman's party and the Synod came to be of weight.

The truth is, that if the original principles of the congregation are established, adherence to them, and not to the Synod, is the rule fixed by the case of Craigdallie; so that separation from the Synod is really in that case immaterial. If the party separating have departed from the principles of the original trust, then, in respect of that departure, they lose their property, though in connection with the Synod. If they have not - if that is made out - then separation from the Synod is in itself of no moment - for the Synod may have departed from its principles. The standards of the Synod may be very important in evidence of the principles of the congregation itself, and the declared adherence of the Synod to these standards, without addition or construction, may also be important in the matter of evidence; and if the parties, though a majority, can show no departure in those who adhere, then the fact of separation may cast the balance in such a case as Craigdallie, or it may not.

But the mere fact of separation from the Synod or governing body in any congregation in which the trust is for the members of the congregation, and where the principles on which the association was formed can be ascertained and cleared up, so as to show what was the object of the trust, is in itself of no moment, unless adherence to that body is made an essential condition in the contract, without reference to principles or opinions."

[58] Following the events of January 2000, a number of ministers, elders, members and adherents left the Free Church of Scotland nationally forming the Free Church of Scotland Continuing. One of those ministers who took that course was the Reverend Alan Maciver, the then minister of Strath Free Church of Scotland. Some of the congregation left along with their minister. It was acknowledged in the debate before us that there is no difference as to ecclesiastical principles between that part of the congregation of Strath that remained and that part that left. Against that background of fact and in the light of the guidance given by Lord Justice Clerk Hope, the question which we have to address is whether, on a proper interpretation of the terms of the trust, benefit was or was not made to depend upon, to use Lord Justice Clerk Hope's words at pages 530 and 531, "Subjection ..... to a certain governing body", or "The relation subsisting or renounced with some ecclesiastical judicatory", or "Adherence to a certain judicatory of the sect". With that issue in mind, I turn now to consider in detail the terms of the trust.

[59] The purposes and conditions of the trust are set out on page fourth and following of the deed. At the outset it is made clear that the place of worship and manse for the minister thereof was to be in all time coming 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". The deed goes on to provide that the place of worship and manse were to be "managed, made use of, occupied and enjoyed in the way and manner and subject to the rules and conditions according to which by the laws and usages for the time of the said body or united body of Christians, places of worship, manses and others, shall be managed, occupied and enjoyed ....". Thus the truster contemplated that the subjects concerned would be managed in accordance with the laws and usages of the Free Church of Scotland, or united body of Christians of which it might come to form a part.

[60] The deed, in the conditions of the trust, goes on to provide specifically for the manner of use of the place of worship. It is provided on page fifth that the trustees were to "permit and suffer to preach and expound the Holy Scriptures and administer Ordinances and perform the usual acts of Religious worship within the said place of worship as said is, such person or persons only as may or shall from time to time be authorised or appointed so to do by the said body or united body of Christians acting through the medium of their Kirk Sessions, Presbyteries, Provincial Synods and General Assemblies, or according to the form or forms in use with the said body or united body for the time ....". The deed goes on to provide that "whensoever any person holding such authority or appointment as said is, and enjoying the permission and sufferance foresaid shall by a sentence of the said body or united body of Christians pronounced by one or other of its Presbyteries, Provincial Synods or by its General Assembly or commission of such Assembly for the time being or in any other way or manner in use in such matters for the time by the said body or united body of Christians be deposed or suspended from office or cut off from the said body or united body of Christians or declared no longer a minister thereof, his authority and appointment foresaid shall ipso facto cease and determine; and the said trustees or trustee acting for the time shall not only be no longer bound but be no longer entitled to permit or suffer him to preach and expound the Holy Scriptures or administer ordnances or do or perform any Act of Religious worship or other act or thing whatsoever within the said place of worship ....". Thus, in my opinion, it is perfectly clear that the authorisation for the use of the place of worship was made dependent upon the judicatories of the Free Church of Scotland. In particular, the use of the place of worship by any minister not so authorised or appointed, or, having been authorised, or appointed, but deposed or suspended, was prohibited. During the course of the debate before us, it was contended that those provisions amounted to no more than the provision of "spiritual guidance". However, having regard to the clear terms of that part of the deed, I cannot agree with that characterisation.

[61] Later, on pages fifth and sixth of the deed, there are parallel provisions concerning the occupation and use of the manse to be erected on the subjects. That occupation and use was to be as "a manse in connection with the said body or united body of Christians, and that by and for the use of the minister for the time being of the said Congregation having right to the occupation of the foresaid place of worship during his life, but so long only as he shall remain Minister thereof and shall not be debarred from the use, occupation and enjoyment of the same by or in virtue of a sentence of the said body or united body of Christians pronounced as aforesaid ...".

[62] Once again, this appears to me to be an example of the recognition of the authority of the ecclesiastical judicatories of the Free Church of Scotland in relation to the use of the subjects and, in particular, the manse. That position appears to me to be confirmed by certain further provisions on page sixth of the deed conferring on the moderator and clerk of the General Assembly for the time being of the said body or united body of Christians "full power and sufficient status and right and interest to pursue or defend any action or actions in whatever Court or Courts of Law or Justice for the enforcement, maintenance or protection of the purposes and trusts for which the [subjects] are disponed ....". In my opinion, that particular provision plainly recognises the right of the judicatory of the Free Church of Scotland to take such action as may be necessary for the enforcement of the trust purposes, in the proper performance of which, it must be inferred, it has an interest.

[63] Finally, on pages sixth and seventh of the deed, there are to be found provisions for changes in the composition of the body of trustees appointed to hold the subjects. It is to be noted that a person to be elected as a trustee must be a person who is "in full communion with said body or united body of Christians ....". Likewise the composition of the electorate for the purposes of, among other things, the election of new trustees, is made to depend upon the status of that person in relation to the central body of the Free Church of Scotland. To be qualified, the name of such a person must "appear in an Annual Roll or List of the members of the Congregation in the use, occupation and enjoyment of the said place of worship being in full communion with the said body or united body of Christians, to be annually attested by the Presbytery connected with the said body or united body of Christians of the bounds in which such place of worship is situated ....". Once again, it appears to me that those provisions accord recognition to the authority and status of the judicatories of the Free Church of Scotland in relation to the administration of the trust.

[64] Following my examination of the terms and conditions of the trust affecting the subjects, I revert to the criteria formulated by Lord Justice Clerk Hope in Craigie and Others v Marshall and Others which, in their several forms, I have already quoted. I conclude that, in these circumstances, the trust involved in this case, while it was undoubtedly a congregational trust, was one conceived for the benefit of a congregation which was, to quote the words of Lord Justice Clerk Hope, "in subjection .... to a certain governing body", in a "relation subsisting .... with some ecclesiastical judicatory", or adhering "to a certain judicatory of the sect". What, in my opinion, follows from this state of affairs, is that the trust was not conceived to afford benefit to a congregation, or part of a former congregation, which had renounced its relation with the relevant ecclesiastical judicatory and was no longer in subjection to it. Since the reclaimers, by withdrawing from the Free Church of Scotland, as they did in practical reality in 2001, ended their relationship with the judicatories of that church, in my opinion they have forfeited any benefit under the trust. In Craigie and Others v Marshall and Others at page 531, the Lord Justice Clerk recognised that the relationship of a congregation with such a governing body might be more or less important in ascertaining for what portion of the congregation, in the event of division among the congregation, trust property was held. I respectfully agree with his view.

[65] I shall now turn to consider some of the several other arguments advanced during the course of the debate. The case of Craigdallie and Others v Aikman and Others [Nos. 1 and 2] figured very prominently in the submissions of the respondents and was relied upon by them. It is necessary therefore to consider what significance that case may possess in the present context. The facts from which the litigation emanated are somewhat involved, but may be described thus. A Mr Wilson, minister of Perth, was one of the four clergymen who seceded from the Church of Scotland in the First Secession, and were consequently deposed from their livings in 1740. They became the Secession Sect. A considerable number of Mr Wilson's congregation continued to adhere to him and purchased a piece of ground on which they built a chapel, where he might continue to exercise his ministry. This was accomplished by the making of voluntary contributions following a general meeting of the whole congregation. Most of the contributions were in very small sums; other members of the congregation contributed by their personal labour and by offering the use of their carts and horses. The minister's stipend was paid, repairs made, and debts paid by contributions made at the church doors. The Secession having arisen merely from a difference of opinion upon a particular point, the seceding clergymen retained the plan of church government by which the national church was regulated and formed themselves into a church judicatory accordingly. The congregations which separated from the established church of the same principles submitted to this judicatory; among these was the congregation at Perth. Four of the money contributors, Messrs Millar, Davidson, Brown and Craigdallie, were chosen by the congregation as managers, and to them the ground on which the chapel was built was disponed. The destination was to ".... themselves, and as trustees for and in the name of the whole subscribers and contributors to the building of a meeting house for Mr William Wilson, minister of the gospel in Perth, and the congregation who submits to his ministry, and in the name of the whole contributors, towards a stipend for the said Mr William Wilson, in the said congregation, and to the successors of the aforesaid contributors, who shall continue to contribute for the purpose before mentioned, and to the assignees of the managers and trustees, who shall be chosen and appointed as such, from time to time by a general meeting of the said contributors ....". A back bond was executed by these trustees in which they declared that they claimed no further right, title or property than the other subscribers according to their several proportions.

[66] In 1745, the Secession Sect split into two parts, in consequence of a dispute about the lawfulness of a clause in an oath imposed on persons elected to the magistracy in certain Royal burghs. A minority of their clergy held it to be unlawful, separated from those who still adhered to all the original principles of the secession, and formed a distinct sect known by the name of Anti-Burghers. The remainder of the sect came to be known as the Burghers. A Mr Brown, who was then the clergyman of the Perth congregation, and a majority in point of number, joined the new sect and gave up their chapel to the rest, containing a majority of the original money contributors, who adhered to the Burgher sect and principles. In 1795, another dispute arose among the Burgher seceders, respecting the power of the magistrate to suppress heresy and other points. The synod, by a majority sanctioned the new or innovating doctrines. A Mr Jarvie was at this time minister of the Perth congregation and a Mr Aikman, his colleague or assistant. A majority of the money contributors, along with Mr Jarvie adhered to the original principles of the sect. Mr Aikman and a majority of the congregation adopted the new doctrine and adhered to the synod. In this state of matters, the question arose as to which of the parties the chapel belonged. Mr Aikman and his followers claimed it, as being a majority of the congregation, but chiefly as submitting to their church judicatory, the associate synod, such submission being, as they alleged, the essential distinctive mark of the community for which the property was originally acquired. Mr Jarvie and his adherents on the other hand, claimed the property as adhering to the original faith of their sect, but chiefly as constituting according to them the representatives of a majority of the original contributors in money towards the purchasing of the ground and the building of the chapel.

[67] Litigation ensued before the Sheriff of Perth and subsequently the Court of Session. The matter came before the Lord Ordinary and then the whole Court, which concluded that the property in the subjects in question was held in trust for a society of persons who contributed their money for purchasing the ground and building, and repairing and upholding the house or houses thereon. However, upon a petition by Mr Aikman and the other respondents against that decision, the whole Court altered their former interlocutor in certain respects, making reference to a congregation continuing in communion with and subject to the ecclesiastical discipline of the associate Presbytery and Synod of Burgher seceders. The matter was thereafter remitted to the Lord Ordinary, who pronounced an interlocutor purporting to give effect to the decision of the whole Court. The matter subsequently was brought before the House of Lords on appeal. The decision is reported in [1813] 1 Dow 601, [No. 1]. For present purposes it is unnecessary to examine what was said in the speech of the Lord Chancellor (Lord Eldon), other than to note that it was considered that the interlocutors in the Court of Session were, to a degree, unsatisfactory and self-contradictory. He proposed that the cause should be sent back to the Court of Session with two findings by the House of Lords:

"1st. That the ground appeared to have been purchased and the house built for a society united, and proposing to continue united, in religious opinion.

2nd That it did not in point of fact appear how this property was to be applied, in case the society should happen to differ and separate."

In due course, the case returned to the House of Lords, the decision in which is reported in [1820] II Bligh 435, [No. 2]. In understanding the effect of the decision, it is of assistance to note the terms of the interlocutor against which the second appeal was taken, set out at page 438 of the report. In that interlocutor the Court of Session found that "the pursuers must be considered merely as so many individuals who have thought proper voluntarily to separate themselves from the congregation to which they belonged, without any assignable cause, and without any fault on the part of the defenders, and, therefore, have no right to disturb the defenders in the possession of the place of worship originally built for the profession of principles from which the pursuers have not shown that the defenders have deviated ....". It should be explained that a counter-action had been raised by the respondents to have it declared that the parties protesting and declining the jurisdiction of Synod had lost all interest in the subjects. The conclusion in that counter-action of declarator at the instance of Jedidiah Aikman and Others was sustained. Once again the decision in the House of Lords was expressed in the speech of the Lord Chancellor (Lord Eldon). It is by no means easy to discern from his observations the specific grounds upon which the decision was reached. However, what is quite clear is that the interlocutor of the Court of Session against which the appeal had been taken was affirmed. I can do no better than refer to the narrative of the decision in the rubric of the report to the effect that, in a case where it was difficult to ascertain who were the legal owners of the property, as representatives of the contributors, the use of the meeting house belonged to those who adhered to the religious principles of those by whom it was erected; and that those who had separated themselves from the Associate Synod, and declined their jurisdiction, were held to have forfeited their right to the property, although it had been judicially declared that there was no intelligible difference of opinion between them and the adherents of the Synod.

[68] In my view, it must be recognised that there are certain material differences between the facts of that case and the present one. As I have narrated, the property in controversy was held by trustees under a disposition in which the beneficiaries were said to be the subscribers and contributors to the building and the congregation who submitted to the ministry of Mr Wilson. What is clear is that that deed made no mention of adherence to the Synod of the sect as being of significance. The trust appears to have been one for the benefit of the congregation specifically, including, in particular, those who had contributed to the expense of the erection of the chapel and other buildings. By comparison, in the present case, as I have observed, the trust embodied in the Feu Contract contains numerous references to the institutions of Free Church. By contrast, the case bears this similarity to the present one, that there was held to be no intelligible difference of opinion as regards principles between the different parts of the congregation which separated. What may be of significance is that, at the conclusion of that litigation, those who had separated themselves from the Synod of the sect and had declined its jurisdiction were held to have forfeited their right in the property. One feature of the litigation to be noted is that, at a certain stage, it was considered that identification of the heirs of the original contributors might assist in expiscating rights. However, that proved to be impossible in practical terms. No such feature exists in the present case, since the trust property derived from an individual benefactor. In all these circumstances, I conclude, although with some hesitation, that the ultimate decision in Craigdallie and Others v Aikman and Others [No. 2] is consistent with the position of the respondents; however, it has to be said that the reasons for the final decision taken in the House of Lords are far from clear and that the factual circumstances from which the case arose are very different from those existing here.

[69] A further decision of potential significance for the present case is The Reverend Angus Finlay MacKay and Others v The Reverend A.D. MacLeod and Others. The circumstances of that case have already been described in part. The disposition declared that the subjects conveyed should in all time coming be held in trust for the sole use and behoof of the congregation of the Free Presbyterian Church of Scotland and presently worshipping in the Free Presbyterian Church, Inverness, adhering to the constitution and to the whole standards of the Free Church of Scotland as set forth and enumerated in the Deed of Separation by Ministers and Elders from the Church calling herself the Free Church of Scotland, dated 14 August 1893 and to the Protest against the defections and departures therefrom contained in the Deed of Separation. The disposition also provided that in case any disruption or secession should take place in the congregation, the subjects should be held in trust for the sole use and behoof of and should belong to the section of the congregation, whether the majority or minority, who adhered to the constitution and whole standards and to the Protest last mentioned in all particulars, and that in case the congregation should become extinct or in case the whole members and adherents forming the congregation at any time should fail to adhere to the constitution, standards and the Deed of Separation or any of them or any part thereof, then and in either of these events the subjects should be held in trust for the general body of Christians known as the Free Presbyterian Church of Scotland and continuing to adhere to the constitution, standards and Deed of Separation. In 1924, a dispute arose between the then minister of the congregation, the Reverend Macqueen, and a lady member of the congregation regarding her admission to communion. In consequence of that event, in 1937, a disruption took place in the congregation. A portion of the congregation supported the position taken up by Mr Macqueen; the remainder disagreed with him. Mr Macqueen and his followers proceeded to worship in another hall, being unable to obtain access to the church in North Church Place, Inverness. The remainder of the original congregation remained in possession of the church. That body sent a notice to Mr Macqueen, dated 2 March 1939, to quit the manse. The notice to quit was however not acted upon, upon compassionate grounds. Mr Macqueen continued to occupy the manse until his death on 27 November 1949. The action was at the instance of the minister and representative office-bearers of the congregation worshipping in the church at North Church Place, Inverness. The defenders were the members and adherents of the congregation worshipping in the Academy Street Church Hall, their pastor and office-bearers, being the section of the original congregation which had supported Mr Macqueen. The original conclusions in the action were, first, for declarator that the congregation represented by the pursuers was a congregation of the Free Presbyterian Church of Scotland adhering to the constitution and whole standards of the Free Church of Scotland, as set forth in the Deed of Separation and Protest, and that under the trust constituted by the disposition, the manse was presently held for the sole use and behoof of that congregation. However, during a discussion in a procedure role debate, a further conclusion was added for declarator that the defenders did not represent the congregation, nor a section of a congregation of the Free Presbyterian Church of Scotland adhering to the constitution, whole standards and protest. The dispute was therefore as to which body was entitled to the manse conveyed by the disposition. After excluding certain averments from probation, the Lord Ordinary allowed a proof before answer. However, against that decision the pursuers reclaimed. A majority of the First Division allowed the reclaiming motion and dismissed the action. Lord Russell, dissenting, would have recalled the Lord Ordinary's interlocutor and granted the three declaratory conclusions of the action de plano. The approach taken by the majority can be seen from the opinion of the Lord President (Cooper). Referring to the trust purposes involved in that case, at pages 1 and 2 of his opinion, the Lord President said:

"The trust is so expressed as to make the beneficial right dependent upon adherence by the beneficiary to the constitution and whole standards of the Free Presbyterian Church of Scotland as set forth in specified documents. In such a case it is the duty of the Court to take cognisance of relevant matters of belief, doctrine and church government for the purpose, but only for the purpose, of informing themselves as to the essential and distinguishing tenets of the Church in question, and of discovering the differences, if any, which can be detected in the principles to which the competing claimants respectively profess adherence."

The Lord President went on to examine the terms of the trust in question in greater detail, including those which dealt with the possible eventuality of a disruption or secession taking place within the congregation. He then expressed his conclusion in regard to these matters in this way at pages 6 and 7 of his opinion:

"From the terms of these trust purposes I deduce:-

(1) that to qualify as beneficiaries under the trust the claimants must be a Congregation, or a section of a Congregation, of the Free Presbyterian Church of Scotland;

(2) that they must therefore adhere to the specified constitution and standards;

(3) that the constitution and standards must be found in the Deed of Separation and in the documents enumerated therein, and there alone;

(4) that on the occurrence of a cleavage within the original Congregation, a minority thereof might qualify as beneficiaries to the exclusion of the majority if it were made to appear that the minority do, while the majority do not, adhere to the constitution and standards of the Church; and

(5) that the only type of "Disruption or Secession" referred to in the trust is a disruption or secession which results in the production of one section which adheres, and another section which does not adhere, to the constitution and standards of the Church, - from which it follows that a disruption or secession due to some extraneous cause and not productive of such results is not provided for."

At page 20 of his opinion, the Lord President gave further explanation as to the nature of the trust with which the Court was then dealing, saying:

"Be that as it may, we have here to deal with a trust which contemplated that a section of a single congregation, and a minority section at that, might satisfy the qualifications of the trust. Such a body could not be more than a nucleus of a Church and could not, at least initially, have any Presbyterial organisation. Further it seems obvious that every body of seceders who adhere to the constitution and standards of a parent Church may for at least a time be unable to set up an ordinary system of Presbyterial government and, if their numbers are sufficiently small may never be able to achieve more than a skeleton or embryo organisation."

On that basis, his Lordship concluded that he could not affirm that their lack of the elements of typical presbyterial church government and their limitation to a single congregation were per se sufficient to disqualify them under the trust in question. At page 24 of his opinion, the Lord President expresses his conclusion overall, saying:

"Being forced to the conclusion that it has not been made to appear that the Defenders have ceased to adhere to the constitution and standards of the Church as defined in the trust, I must hold that the Pursuers have failed to show by relevant averments that they have a right and title to the subjects exclusive of the Defenders, and therefore that the situation before us is a casus improvisus under the Trust. It follows that the action must be dismissed, both pleas to the relevancy being sustained."

[70] Thus, in that litigation, the pursuers failed to demonstrate an exclusive right in the property in question and accordingly failed to obtain the orders which they sought. As I understand it, this case was relied upon by the reclaimers for the purpose of urging upon the Court a similar outcome in the present action. However, from my narrative of the terms of the trust involved in that case and comparing them with the terms of the trust in the present case, which I have earlier narrated, it is evident to me that they are materially different. In that case, the qualificatory requirement was adherence to the Constitution and Standards of the Free Presbyterian Church. In the present case, as is evident from the terms of the Feu Contract as I interpret it, the qualificatory requirement of the trust was a participation in the administrative and judicial structures of the Free Church of Scotland. For that reason, I consider that The Reverend Angus Finlay MacKay and Others v The Reverend A.D. MacLeod and Others must be distinguished from the circumstances of the present case. In my opinion, that decision does not have the effect in the present context contended for by senior counsel for the reclaimers.

[71] Several other cases were the subject of discussion before us, upon which it is appropriate that I should express my view. The first of these, in terms of date of decision, was Smith and Others v Galbraith and others. It involved an action raised by two proprietors of a dissenting chapel, and by the minister, who had been declared by the church judicatories of the dissenting body to be out of their communion, against the other proprietors, the object being to have it found that the principles held by the dissenting body, when the chapel was built and joined in their connection, embraced the Establishment principle, or duty of the State to maintain an endowed Church, as a scriptural doctrine, and that the minister and proprietors, pursuers, adhered to these principles, including that of a national Establishment of religion, while the church judicatories of the body and the other proprietors of the chapel had deviated therefrom by denying the lawfulness and scriptural character of such an Establishment. The court held that the pursuers had failed to prove that the Establishment principle was held originally as a fundamental and essential tenet of the dissenting body in question; and that the chapel being held in trust for a congregation belonging to that dissenting body, could be enjoyed and occupied only by a congregation and minister in their communion, and that this was an essential condition and quality of the trust. It appears to me that this case, unlike the present, was concerned with the scope of the fundamental and essential tenets of the dissenting body. I therefore do not find it of assistance here.

[72] A further case discussed before us was Couper and Others v Burn and Others. There, a congregation of seceders possessed a chapel which was vested in trustees for behoof of a congregation in connection with the body that afterwards became the "United Associate Synod of Original Seceders". A majority of the Synod joined the Free Church; the minority met and constituted themselves a Synod adhering to their former principles. The congregation was divided, but a majority was in favour of the union. An action of declarator was raised by the minority to vindicate their right in the chapel. It was held that, having regard to the trust title under which the property was held, the chapel belonged to the part of the congregation which adhered to the principles maintained by the church for whose behoof it was vested in trustees. That a majority of such a body were not entitled to compel the minority to unite with any other body, or divert the chapel from the purposes for which it was held in trust; further, that the principles of the Free Church and of the United Associate Synod of Original Seceders were different in essential particulars; and that therefore the pursuers were entitled to the decree which they sought. In my view, this decision is not of assistance in the circumstances of the present case. The amalgamation of the majority of the Synod with the Free Church meant that, in relation to them, the trust purposes could not be implemented, whereas the minority remained faithful to the United Associate Synod of Original Seceders. The principles of the Free Church and of that body were different in essential particulars. In my view, the facts of the present case are far removed from those involved in that decision, which may therefore be distinguished.

[73] In Wallace and Others v Symington and Others, the Court was concerned with benefit under a trust created by a testator who left the residue of his estate to be held as a permanent fund, the annual income of which was directed to be applied "Towards the maintenance and promotion of religious ordnances and education and missionary operations, and that by means of payments for the erection of churches and schools, and in supplement of the stipends or salaries of ministers, missionaries, and teachers and for forming, etc, public libraries, all in connection with the Established, Free, United Presbyterian, Reformed Presbyterian, and Congregational Churches in Scotland". In 1865 a schism took place in the Reformed Presbyterian Church on the question whether the taking of the oath of allegiance and exercising the elective franchise on the part of members of the church should continue to involve suspension of church membership and expulsion from the church or not. The majority, who were for abolishing such ecclesiastical consequences of these acts, and the minority who opposed this decision as contrary to the testimony and subversive of the fundamental principles of their church, formed and continued to exist as separate churches from 1863 to 1876, each claiming to be the true reformed Presbyterian Church, and organised with a Synod. The trustees of the Ferguson Bequest, in 1864, recognised the majority as the reformed Presbyterian Church and refused the minority participation in the benefits of the fund. In 1876, the Church of the majority united with the Free Church quoad sacra retaining their separate organisation quoad civilia. In 1877 the church of the minority brought a declarator to have it found that they were the reformed Presbyterian Church of Scotland and were entitled to be represented on the trust and to participate in the fund to the exclusion of the majority. In dismissing the action of declarator, the Court held that it was unnecessary to enquire strictly into the fundamental principles and standards of faith of the reformed Presbyterian Church so as to determine which section had adhered to and which had departed from such principles and standards, in as much as looking to the indefiniteness or elasticity of the contract or bond of union of that church, to the intention of the testator and the scope of his bequest, and the wide discretion left to his trustees, both sections of the once united body still remained channels of the testator's bounty such as were contemplated in his settlement. One of the main factors that influenced the decision, as appears from what is said in the judgement of the Lord President at page 509, was that the reformed Presbyterian Church, or Cameronians, were not bound together by a contract or bond of union so definite that it was essential to the existence of the body that they should all remain permanently under the supervision and control of the same Synod or other superior church judicatory. It appears to me that the facts of this case are far removed from those of the present one. Much turned upon the terms of the particular trust in question. In these circumstances, I do not find it of assistance in the present case, save in that there is in it an emphasis on the importance of the language of the particular trust under consideration.

[74] Before us The General Assembly of the Free Church of Scotland and Others v Lord Overtoun and Others was discussed. That well-known case was concerned with the patrimonial consequences of the union between the majority of the Free Church of Scotland and the United Presbyterian Church. The appellants before the House of Lords, a small minority of the Free Church, objected to the union, maintaining that the Free Church had no power to change its original doctrines, or to unite with a body which did not confess those doctrines, and they complained of a breach of trust inasmuch as the property of the Free Church was no longer being used for behoof of that church. They had brought the action in the name of the General Assembly of the Free Church seeking a declarator that they, as representing the Free Church, were entitled to the property. The House of Lords held that the Establishment Principle and the Westminster Confession were distinctive tenets of the Free Church; that the Free Church had no power, where property was concerned, to alter or vary the doctrine of the church; that there was no true union, as the United Free Church had not preserved its identity with the Free Church, not having the said distinctive tenets; and that the appellants were entitled to hold for behoof of the Free Church the property held by the Free Church before the union in 1900. Plainly the circumstances of that case, which was concerned with property held under the so-called "model Trust Deed" and the implications of the union with the United Presbyterian Church, are materially different from those of the present one. That being so, in my view, the decision itself does not appear to be of assistance. However, the observations of the Earl of Halsbury, Lord Chancellor, at pages 611 to 613 are of significance. There he emphasised that a court of law had nothing to do with the soundness or unsoundness of particular church doctrine; it had simply to ascertain what was the original purpose of the trust which it had to consider. The question was what the founders of the trust in question thought to be important. It is upon that basis that I have endeavoured to approach the controversy in the present case.

[75] Finally, in this review of authorities, it is appropriate to mention Free Church of Scotland (Continuing) and Others v Free Church of Scotland and Others. It is of interest to note that this litigation arose out of the same set of circumstances as, eventually, gave rise to the fissure in the congregation of the Free Church of Broadford. The pursuers in that action had argued that the right of continued protest was so fundamental to the nature and constitution of the Free Church that, in abandoning it, the defenders had ceased to be the true Free Church of Scotland. It was contended that the pursuers were, as a result of the defenders departure from the fundamental principle of continued protest, the true Free Church of Scotland and entitled to the beneficial interest in the property and assets held for behoof of that body of Christians being the Free Church of Scotland. It can thus be seen that the action was concerned with the whole property held for the benefit of the Free Church of Scotland. The defenders' position was that the pursuers' averments were not capable of establishing the existence of a right of continued protest. Such a right would not, in any event, constitute a fundamental or essential principle of the constitution of the Free Church. It was held that the right of continued protest contended for had not been established, either as a substantive, or fundamental constitutional principle of the Free Church of Scotland and the action was dismissed. It is apparent from the judgment of Lady Paton that the Court was essentially concerned with the identification of the fundamental principles of the Free Church of Scotland and, further, whether the right of continued protest was to be found among those principles. It is plain that no such issue arises in the circumstances of the present case and accordingly the decision is not of direct significance in relation to it. At one stage in the course of the discussion before us it appeared to be suggested that there was a risk of conflict between the decision in that case and a possible outcome in the present one. I reject any such suggestion. Because of the differences between the issues raised in each of the cases, I consider that there is no risk of any such conflict. However, in paragraphs [71] and [72] of her judgement, Lady Paton expressed the view that the defenders were fully entitled to the assets and property held in trust "for behoof of and in connection with the association or body of Christians known as the Free Church of Scotland as an association or body of Christians professing, adhering to and maintaining the whole fundamental principles of the Free Church". In paragraph [72] she expressed the view that equally the pursuers, not having departed from any fundamental tenet of the Free Church, had not forfeited any entitlement to the assets and property held in trust referred to in the preceding paragraph. She went on to consider whether they had forfeited rights by refusal to comply with certain lesser rules and regulations, not the fundamental tenets of the church. In paragraph [78] of her judgment, she contemplated the possibility that a possible apportionment of the property and assets held on that trust might be appropriate, but that was not a matter which could be determined in the action before her. It will be observed from the terms of the trust narrated by Lady Paton in paragraph [71] of her judgment, that it differs from that to be found in the Feu Charter in this case, which deals much more specifically with property to be held on behalf of a congregation upon the conditions set out therein. For that reason also, I do not recognise any potential conflict between the course which I consider should be taken in the present case and the views expressed by Lady Paton in those parts of her judgment.

[76] During the course of the submissions of the reclaimers, some reliance was placed upon the implications of the fact that the original congregation of the Free Church at Broadford was, of course, a voluntary association, but that, upon the withdrawal from it of those whom the reclaimers represent, the identity of that voluntary association changed. The argument appeared to be that, in consequence, those whom the respondents represent could not claim to be the continuing congregation. What was now in being following the withdrawal were two congregations of identity different from the original single congregation, each of which adhered to the fundamental principles of the Free Church of Scotland. While that analysis may possess validity in relation to the character of the voluntary associations in being following the withdrawal, it does not appear to me that the analysis assists in the resolution of the issue in this case. As I see it, the issue in the case is essentially to be resolved by an examination of the trust purposes set forth in the Feu Charter, regardless of the identity, at any particular time, of the voluntary association constituting either of the existing congregations. It is in the nature of things that a voluntary church, or the congregation of a voluntary church, being in legal terms a voluntary association, will change as regards its identity, in the sense of its membership, from time to time, it may be even from day to day. Members of a voluntary association may die, or withdraw from it; others may become members of it by joining the association. In these circumstances it does not appear to me to be useful to draw any conclusion from the particular identity of a voluntary association at any one moment in the context of a consideration of the entitlement to benefit under a trust. No doubt the truster in the present case contemplated the inevitability that the precise membership of the congregation would vary from time to time.

[77] In all these circumstances and for all of these reasons, I have reached the conclusion that the decision of the Lord Ordinary is sound and ought to be affirmed. I would therefore move your Lordships to refuse the reclaiming motion.


 

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

 

Lord Osborne

Lord Bonomy

Lord Drummond Young

 

 

 

 

[2011] CSIH 52

A148/07

 

OPINION OF LORD BONOMY

 

in Motion for Review

 

in

 

THE REVEREND DONALD SMITH AS MODERATOR OF THE GENERAL ASSEMBLY OF THE FREE CHURCH OF SCOTLAND AND OTHERS

 

Pursuers and Respondents;

 

against

 

THE REVEREND JOHN MORRISON AND OTHERS

 

Defenders and Reclaimers:

 

 

 

_______

 

 

Act: Moynihan, QC, Charteris; Simpson & Marwick

Alt: McNeil, QC, Dawson; Drummond Miller LLP

 

12 August 2011

 

[78] Having had the benefit of considering the Opinion of your Lordship in the Chair and that of Lord Drummond Young, I have nothing useful to add other than to confirm my agreement with the terms of both and with the conclusion that the reclaiming motion must be refused.


EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

 

Lord Osborne

Lord Bonomy

Lord Drummond Young

 

 

 

[2011] CSIH 52

A148/07

 

OPINION OF

LORD DRUMMOND YOUNG

 

in the cause

 

THE REVEREND DONALD SMITH AS MODERATOR OF THE GENERAL ASSEMBLY OF THE FREE CHURCH OF SCOTLAND AND OTHERS

 

Pursuers and Respondents;

 

against

 

THE REVEREND JOHN MORRISON AND OTHERS

 

Defenders and Reclaimers:

 

 

_______

 

 

Act: Moynihan, QC, Charteris; Simpson & Marwick

Alt: McNeill, QC, Dawson; Drummond Miller LLP

 

12 August 2011

 

[79] This action relates to the beneficial interest in property held for the purposes of the congregation of the Free Church of Scotland at Broadford, in the parish now known as Sleat and Strath. It concerns a division that arose in the Free Church in January 2000. At the outset I should record that I am in agreement with the reasoning of your Lordship in the chair and with the result reached by your Lordship. Nevertheless, the issues raised in the present case are of great importance to all voluntary churches in Scotland. Furthermore, the two leading cases, Craigdallie v Aikman, 1813, 1 Dow 1; and subsequently 1820, 2 Bligh 529; and Craigie v Marshall, 1850, 12 D 523, are not particularly easy to follow; in the former case, the ultimate ratio is not wholly satisfactory, and the reasoning in the latter case concentrates on the detailed facts, which were in important respects different from those in the present case. For these reasons I propose to set out my reasons for refusing the reclaiming motion and affirming the decision of the Lord Ordinary.

[80] The right to the property of a voluntary Church is obviously dependent on the circumstances of the individual case, and in particular the terms of the trust or agreement subject to which the property is held. Consequently I will begin by setting out the factual background to the present dispute. In applying the law to those facts, I am of opinion that the essential features of the Presbyterian system of church government are of vital importance, and I accordingly go on to consider that system. Thereafter I will consider the existing state of the law, as laid down in Craigdallie, Craigie and subsequent cases. Finally I will consider the terms of the trust on which the congregational property at Broadford is held and the application of the law in the light of that trust.

 

The facts of the case
[81] The Free Church broke away from the Church of Scotland in the Disruption of 1843, essentially on the ground that presbyteries should have a veto in matters of patronage. The legal aspects of those events are the subject of a recent discussion in The Courts, The Church and The Constitution: Aspects of the Disruption of 1843, by Lord Rodger of Earlsferry (Edinburgh 2008). In 1900 a majority of the Free Church merged with the United Presbyterian Church to form the United Free Church; the United Presbyterian Church had resulted from a merger in 1847 of the majority of the Original Secession Church, which seceded from the Church of Scotland in 1733, and the Relief Church, which seceded from the Church of Scotland in 1761. A minority of the Free Church, however, refused to join in the union of 1900 and considered itself to be the continuation of the Free Church of Scotland; the minority objected to the refusal of the United Free Church to adhere to the principle of establishment and to its refusal to accept the Westminster Confession of Faith in its entirety, in particular the provisions relating to the doctrine of predestination. Those events are discussed in General Assembly of the Free Church of Scotland v Lord Overtoun, [1904] AC 515, where it was held that the continuing Free Church were entitled to the whole of the assets of the original Free Church. That result proved impractical because the majority of the members of the original Free Church had joined the United Free Church, and consequently a Commission was set up under the Churches (Scotland) Act to divide the assets of the pre-1900 Free Church. The Free Church of Scotland had erected a church and manse at Broadford, and in the division of the assets of the pre-1900 Free Church, carried out by the Churches (Scotland) Act Commission these were allocated to the Free Church as constituted after 1900.

[82] In January 2000 a substantial minority of ministers, elders, members and adherents separated themselves from the majority of the Free Church and associated themselves according to Presbyterian forms of church government; they adhered to the laws and practice of the Free Church. Other members remained within the government of the Free Church that existed prior to 2000. The congregation at Broadford divided; the pursuers represent the part that has continued the government of the Free Church as it existed prior to 2000, and the defenders represent the part that separated itself in that year. Although the defenders only use the name as a matter of administrative convenience, they are referred to in the pleadings in the present action as the Free Church of Scotland (Continuing), and for the sake of convenience and clarity I will refer to them in that manner. Likewise, following the pleadings, I will refer to the pursuers as the Free Church of Scotland, although the defenders claim to enjoy the rights of that church.

[83] At this point I should draw attention to two important features of the case. First, although the Free Church and the Free Church (Continuing) have separated from each other, they both follow the laws and practice of the pre-2000 Free Church. Consequently the form of government followed by the two successor churches is identical, but the particular structures of government of each church are distinct. Secondly, there is no difference between the two successive churches on matters of doctrine; that is a matter of agreement between the parties.

[84] Part of the funds and property of the Free Church was held centrally, and that property was the subject of a previous action: Free Church (Continuing) v Free Church, 2005 SC 396, where Lady Paton held that the group that had continued the government of the Free Church as existed prior to 2000 (those allied to the present pursuers) were entitled to the whole of that property. The present action was raised subsequently, in March 2007, to determine the ownership of the property held in trust for the Broadford congregation of the Free Church. It involves congregational property, property held for the purposes of a single congregation, rather than property held for the purposes of the Free Church as a whole. Originally the action was brought by the Moderator of the General Assembly of the Free Church held in Edinburgh on 22 May 2006 and the Principal Clerk of that General Assembly. The defenders, however, tabled pleas of no title to sue and all parties not called. Those were debated both at first instance, when the action called before Lord Uist in the procedure roll, and in the course of the subsequent reclaiming motion. In consequence of certain comments made by the court during the hearing of the reclaiming motion, the pursuers moved a minute of amendment in which they added as additional pursuers the congregation of Sleat and Strath Free Church of Scotland together with the minister and elders of that congregation, who were its office bearers and as such represented the congregation. They further added as pursuers three of the elders in their capacity as trustees of the congregation. The original defenders comprised the interim moderator of the congregation of Strath Free Church of Scotland (Continuing) and an elder and two members of the same congregation. The pursuers' minute of amendment added two further groups of defenders: first the congregation of Strath Free Church of Scotland (Continuing) together with their interim moderator and four elders, those being the known office bearers of that congregation and as representing that congregation; and secondly six individuals designed as the purported trustees of the congregation of Strath Free Church of Scotland (Continuing). The minute of amendment was allowed without opposition, subject to certain conditions relating to expenses; consequently the present parties are as named and designed therein. It is accepted by the defenders that its effect was to cure the defects in the pursuers' case relating to title to sue and the calling of the defenders. In this way we are able to deal with the substance of the dispute between the Free Church and Free Church (Continuing) in relation to congregational property. This is a satisfactory result, because the arguments advanced during the reclaiming motion were very thorough and were presented with great ability, and the legal status of congregational property is likely to have much wider implications than the present dispute.

[85] As already mentioned, the pursuers in the present action are representatives of the part of the pre-2000 Free Church that has continued the forms of government of that Church in use before 2000. The defenders are representatives of the Free Church (Continuing), the group that reconstituted itself in 2000 and which also claims to represent the pre-2000 Free Church. The primary conclusion of the summons is for declarator that, under the Trust constituted in a Feu Charter dated 10 March and 2 April and recorded in the Division of the General Register of Sasines applicable to the County of Inverness on 12 October, all 1869, the heritable subjects comprising the church and manse of the Free Church of Scotland at Broadford are "presently held in Trust for the Congregation of the body of Christians of the Free Church of Scotland at Broadford, in the Parish of Strath, Skye"; in effect, that is a declarator that the church and manse belong to the Free Church congregation rather than the Free Church (Continuing) congregation. A further part of the declarator sought is that the Free Church congregation are entitled to the beneficial interest in the church and manse, and that the trustees of the congregation of Sleat and Strath Free Church of Scotland and their successors in office are vested in title to the church and manse. A further conclusion is against the defenders, the Free Church (Continuing) congregation, and their agents or contractors from entering or trespassing upon the manse, carrying out alterations or renovations to the manse, purporting to allow any person to use, possess or occupy the manse, and causing or enabling others to do any of those acts.

[86] The factual background to the dispute within the Broadford congregation is set out in the pleadings, and is not in dispute. When the Free Church split in January 2000, one of the ministers in the minority (the Free Church (Continuing)) was Rev Allan MacIver, the then Minister of Strath Free Church of Scotland. A number of the members of that congregation also associated themselves with the Free Church (Continuing). Rev Mr MacIver continued to occupy the Free Church manse at Broadford, and he and his congregation continued to occupy the Free Church there. Rev Mr MacIver retired in January 2007 and the manse is now unoccupied. In February 2007 the Free Church Trustees of the Broadford congregation (the present fourth pursuers) understood that the Free Church (Continuing) were proposing to allow a theological student to stay in the manse. At the same time certain renovation works were carried out on the manse by the Free Church (Continuing). Three trustees and a member of the Free Church congregation attempted to regain possession of the manse but were prevented from doing so by the third and fourth defenders, who were carrying out work there. The defenders claim that they have not forfeited their rights to enjoy the benefit of the manse and remain in occupation of it. The present action is designed to compel the Free Church (Continuing), in the persons of the defenders, to yield possession of the church and manse to the Free Church.

[87] After sundry procedure, the action called in the procedure roll before Lord Uist. On 31 July 2009 he granted decree in terms of the first conclusion of the summons in favour of the pursuers. He held that the division that occurred in January 2000 had nothing to do with either party's departing from the fundamental principles and practice of the pre-2000 Free Church; neither side made any averments to that effect. The situation that had arisen was accordingly a simple schism of the Free Church into two groups, the reason for which was not averred. The defenders, the Free Church (Continuing), were a new body set up after January 2000 with a separate and distinct organisation and structure from the Free Church. The Free Church (Continuing) did not accept the authority of the governing bodies of the Free Church as it existed after January 2000. Adherence to the fundamental principles and practice of the pre-2000 Free Church was not sufficient to entitle the Free Church (Continuing) to the use and occupation of the subjects in the absence of any averments that the Free Church itself no longer adhered to fundamental principles and practice. The Free Church (Continuing) is not, either in name or composition, the Free Church; it had entirely separated itself from the Free Church and consequently had no right under the trust to the use and occupation of property intended for the benefit of the Free Church. The defenders have now reclaimed against that interlocutor.

[88] Extensive case law exists on the property of voluntary churches, and I will go on to consider the most important of those cases. Before doing so, however, I think it appropriate to say something about the Presbyterian system of church government.

 

The Presbyterian system of church government
[89] Historically, Presbyterian churches have been identified with certain religious doctrines, notably the importance of scripture as the only source of revelation, a Calvinist approach to justification and, in large measure, a Calvinist or strongly Augustinian approach to predestination, with a corresponding view of the doctrine of the atonement. Nevertheless, it is important not to lose sight of the fact that Presbyterianism itself is a system of church government. Consequently it is perhaps not surprising that most of the disputes among members of Presbyterian churches in Scotland have centred on the nature of church government and the associated question of the relationship of the church to the civil power. This can be seen clearly in the history of the Free Church itself, and also in the case law discussed below. Disputes about doctrine, in the strict sense, are relatively rare. In the present case it is a matter of agreement between the parties that there are no significant differences of doctrine or belief between the Free Church and the Free Church (Continuing); consequently their differences are merely differences of church government, and even then they relate only to the particularities of government, not the fundamental structures.

[90] The essence of Presbyterian church government was explained by counsel for the Free Church (Continuing), and his explanation was concurred in by counsel for the Free Church. The national church in Scotland is of course Presbyterian, and consequently the basic structures of Presbyterian church government are well known. Nevertheless, I think that it may be helpful in construing the feu charter that governs the property held for the Broadford congregation to state the essential structure of the system. The essence of Presbyterianism is government of the church by presbyters acting through a hierarchy of church courts. The representatives on those courts are elected by the members of the church. Presbyterianism thus stands in sharp contrast to the two other forms of government most commonly found among Christian churches: episcopacy, which involves government of the church by bishops, who are held to act in the apostolic succession; and congregationalism or independency, which is a form of church polity resting on the independence and autonomy of each local church congregation. The Presbyterian system rejects bishops and imposes a system of church courts over the individual congregation. In that system the basic constituent units of the Church are congregations, which will typically each comprise a minister, elders, members and adherents. Each congregation is governed by a kirk session, consisting of elders and the minister. The kirk session is the lowest court of the church. The next level upwards in the system of courts is the presbytery. Representatives of the congregations in a prescribed area are grouped together to form a presbytery, which consists of ministers and representatives of the elders of the congregations within that area. The presbytery is the primary governing court of the church, and governs the congregations within its area. A congregation may be associated with a parish, but a parish is a geographical area containing a church. Representatives of presbyteries join together in higher levels of church courts: those are regional synods and ultimately the general assembly in the case of the larger churches. With smaller churches, the synod may function as the church's supreme governing court. At all levels the church courts are representative bodies based ultimately upon popular election. What is of critical significance for present purposes, however, is the principle that a Presbyterian church is governed by a specific hierarchy of church courts.

[91] The Presbyterian system of church government is essentially democratic, and perhaps for this reason the Scottish Presbyterian churches have tended to resist interference, whether from the civil power or elsewhere, in their democratic structures. This in large measure explains the disputes that led to the creation of the Free Church in 1843 and the earlier disputes that led to the creation of the Seceder and Relief churches in 1733 and 1761 respectively. The situation in Scotland stands in sharp contrast to the largely Erastian position of the Church of England and, at least historically, of some continental Lutheran churches. Nevertheless rights in the property of Presbyterian churches are obviously subject to the jurisdiction of the civil courts. It has repeatedly been pointed out, however, that in exercising that jurisdiction a judge must set aside his or her personal views and must come to a decision on the strict principles of the law of property, trusts and contract. It is to those principles that I now turn.

 

The case law on voluntary churches
Craigdallie v Aikman
[92] Prior to 1813, when a difference arose in a voluntary church (a church other than the established Church of
Scotland), the rule was that the opinion of the majority should prevail. Thus the whole property of the congregation was held for the majority, and the minority, if they were not prepared to compromise with the majority, were compelled to leave. That rule was applied by the Court of Session in Craigdallie v Aikman, 1 Dow 1, the relevant majority being held to be a majority of the money contributors towards the church. That case arose out of a division among the congregation of Original Seceders in Perth. That congregation had left the Church of Scotland in about 1737, and thereafter had purchased ground and built a chapel. The costs of doing so and of paying the minister's stipend were met from small donations from the congregation. The Original Secession arose from a difference of opinion as to the appointment of ministers, and, as is noted in the report, the seceding clergymen still retained the plan of church government by which the national church was regulated and formed themselves into a church judicatory accordingly. In other words, they remained a Presbyterian church with the usual system of courts found in Presbyterian church government. The congregations that had separated from the established church, including that in Perth, submitted to this system of government. Title to the chapel in Perth was taken in the name of trustees for "the whole subscribers and contributors to the building of a meeting-house" for the seceding minister and the congregation submitting to his ministry. In 1745 the Original Seceders split into two parts, the Burghers and the Antiburghers, on the lawfulness of certain provisions in the burgess oath. The Perth congregation adhered to the Burghers. In 1795 a further dispute arose among the Burgher Seceders as to a number of matters regarding the relationship between the civil authorities and the church, in particular the power of the civil authorities to suppress heresy. Underlying this formal dispute was a further dispute, less easily articulated but perhaps more fundamental, as to the extent to which the principles of the Westminster Confession should yield to modern intellectual developments, which at that time were of course heavily influenced by the Enlightenment. The majority of the Burgher Synod, referred to as the New Licht, sanctioned what the minority, the Auld Licht, considered to be new and innovating doctrines. The Perth congregation split: the minister and a majority of the money contributors (represented by Craigdallie and others in the litigation) adhered to the Auld Licht, whereas the assistant minister, Aikman, and a numerical majority of the congregation adhered to the New Licht. The New Licht faction claimed the chapel, partly on the basis that they were a majority of the congregation but principally on the ground that they submitted to their church judicatory, the associate Synod, which the New Licht faction did not; such submission was, they alleged, the essential distinctive mark of the community for which the property was originally acquired. The Auld Licht faction, on the other hand, claimed the property partly on the basis that they adhered to the original faith of the Seceders, but chiefly because they constituted the representatives of a majority of the original money contributors towards the construction of the chapel. The Court of Session decided that the church should go to the majority of the money contributors, and accordingly found for the Auld Licht faction: 1 Dow 4-5. Thus effect was given to the principle of majority rule. The decision was by a bare majority, seven votes to six; the Lord President favoured the minority position but at that time only had a vote in the event that the other judges were equally divided. The New Licht faction appealed to the House of Lords.

[93] In the House of Lords Lord Eldon proceeded on an entirely different approach towards the property of dissenting churches, and his approach has been followed consistently since that time. He referred (at 1 Dow 14-15) to the practical difficulties that might arise if the principle were that the majority of money contributors could determine what happened to the property, especially in a case where contributions had been made over a very long period. He then continued (at 1 Dow 15):

"But if the judges below still adhered to the principle, it was this principle, that, because in 1737 a society then agreeing in their religious opinions adhered to a Presbytery or Synod then holding the same opinions with themselves, the property belonging to that society should be held in trust, not for those who adhered to their original principles, but in trust for those who adhered indeed to the Synod, but who did not adhere to their original principles; that was a proposition very difficult to be maintained in law".

Lord Eldon then reviewed the position in English law, where the principle was that, in a trust for a religious society, those who adhered to "the opinions and principles in which the congregation had originally united" would not forfeit the property merely because the majority had decided otherwise. Thus the principle emerged that, in the event of a division in a voluntary church, the property held for the purposes of a congregation of that church will go to the part of the congregation that adheres to the fundamental religious principles of the church, as identified in the church's original constituent documents. In this way the principle of majority rule was replaced by the principle of adherence to fundamental doctrine. The result was to treat the essential beliefs of voluntary churches in a serious manner in determining the right to church property; under the old rule, by contrast, the systems of belief held by voluntary churches were not taken into account in determining such a right. It may be that the change of approach reflected a general shift in public attitudes towards religious opinion that occurred at about this time; a major reaction certainly took place against the anti-religious excesses that followed the French Revolution, and to some extent against the dry legalism of the Enlightenment thought that had preceded the Revolution. Whatever the reason may be, the law changed. Consequently the decision of the Court of Session was reversed.

[94] The House of Lords made specific findings to the effect that the chapel appeared to have been built for a society united, and proposing to continue united, in religious opinion, and that it did not appear from any contract how the property was to be applied if the society should happen to differ and separate. The case was accordingly remitted to the Court of Session for review, subject to those findings. When the case was again considered by the Court of Session (reported at 2 Bligh 529; the Court's interlocutor is at pages 537-538) it was held that Craigdallie and the other members of the Auld Licht party had failed to condescend upon any acts done or opinions professed by Aikman and the other members of the New Licht party "from which this Court, as far as they are capable of understanding the subject, can infer, much less find, that the said defenders have deviated from the original principles and standards of the associate Presbytery and Synod". The Court went on to hold that, as the pursuers had failed in rendering intelligible how there existed any real difference between their principles and those of the defenders, it was unnecessary to embark upon the inquiries ordered by the House of Lords. The result was that "the pursuers must be considered merely as so many individuals, who have thought proper voluntarily to separate themselves from the congregation to which they belonged, without any assignable cause, and without any fault on the part of the defenders, and, therefore, have no right to disturb the defenders in the possession of the place of worship originally built for the profession of principles from which the pursuers have not shown that the defenders have deviated".

[95] Craigdallie and the Auld Licht party appealed once again to the House of Lords. Lord Eldon repeated the principles that he had earlier laid down: the chapel was appropriated to the use of persons who adhered to the same religious principles as those who originally attended it (2 Bligh 539). The Court of Session, however, had been unable to discover any intelligible difference between the parties. In view of the fact that it was more likely than the House of Lords to understand the principles and standards of the Associate Presbytery and Synod of the Original Secession, Lord Eldon did not feel able to interfere with its decision. Neither party had been able to show that the other had departed from the original standards and principles of the Secession. The result was that those who had voluntarily separated themselves from the Associate Synod of the Seceders had no cause for doing so and accordingly forfeited their right to the property. That meant that the Auld Licht party, who had separated themselves from the majority at Synod, lost the right to the chapel; the New Licht party, who retained their connection with the Associate Synod, were solely entitled to it. The case clearly caused Lord Eldon great difficulty ("after racking my mind again and again upon the subject, I really do not know what more to make of it": 2 Bligh 544), but after great hesitation he concluded that he had no alternative but to adhere to the opinion of the Court of Session that there was no intelligible difference between the parties on any matter of doctrine. I am bound to say that I do not share the difficulty that the judges of the Court of Session appear to have had on this matter. The parties split on the question of whether the civil magistrates should have power to compel adherence to basic religious standards. Such a power may be regarded as repugnant to the modern conception of freedom of religion, and indeed to the basic principle of freedom of conscience, a principle that must have been keenly felt at the time when Craigdallie was decided by dissenting groups across the whole religious spectrum from Cameronians to recusants. The power to compel adherence to religious standards is, however, referred to in the Westminster Confession, to which the Seceders adhered. The New Licht had moved away from the Westminster Confession in this respect, resulting in the split of 1797. It therefore seems to me that there was a genuine difference between the parties on a matter of doctrine that they considered important; for this purpose it is immaterial whether the Court considers the difference to be of any doctrinal or moral significance. Nevertheless, Lord Eldon felt unable to interfere.

[96] In addition to the action brought by Craigdallie and others of the Auld Licht party, a counter-action was brought by Craigie and the New Licht party, to have it declared that the Auld Licht party "(protesting and declining the jurisdiction of the synod) had lost all interest in the subjects". When they reconsidered the case following the remit by the House of Lords, the Court of Session granted decree in terms of the libel, on the ground that the Auld Licht party must be considered merely as individuals who had thought proper voluntarily to separate themselves from the congregation without any assignable cause and without fault on the part of the defenders. The counter-action caused Lord Eldon difficulty (see 2 Bligh 544-545). He thought that, consistently with the finding of the Court of Session that there was no difference of religious opinion among the members of the congregation, it might be possible to permit those presently engaged in worship in the property (the Auld Licht party) to continue. If worship continued as it had hitherto proceeded, it might not be possible to say that that worship could be prevented. The Auld Licht party had separated from the rest of the congregation, but it might be going too far to say that they had thereby lost any interest in the land and buildings, as they were still using those for the purposes to which they were originally devoted. Thus decree in the counter-action might not be necessary. On this matter, however, Lord Eldon gave the case further consideration, and ultimately decided to adhere to the decision of the Court of Session. It seems, therefore, that the ultimate ratio of the case was that, in consequence of the Auld Licht party's separation from the Synod, they forfeited their right to the congregational property.

[97] This might be thought to favour the present pursuers, in that they have continued the forms of government of the Free Church as it existed prior to 2000, and the defenders can be regarded as having separated themselves from those forms of government. Counsel for the pursuers relied on the decision in the counter-action in Craigdallie as settling the law. For my own part, I do not feel able to reach such a conclusion; indeed, I cannot regard the ultimate decision in the counter-action as satisfactory in its reasoning. Lord Eldon did nothing more than to adhere to the decision reached in the Court of Session, but the detailed reasoning of the latter court is not available in the reports of the decision. If the criterion was, as Lord Eldon held, adherence to the fundamental doctrinal principles of the church, it is not obvious why the mere fact of separation should cause one faction to forfeit the property. In effect, the decision of the Court of Session on the counter-action appears to be a reversion to the old principle of majority rule which Lord Eldon decisively repudiated in his first hearing of the case. Moreover, quite apart from its rejection by Lord Eldon, the principle of majority rule appears to me to be completely unsatisfactory. In the first place, it is not clear who the majority are: are they the majority of the congregation, or the majority of the members (as against adherents) among that congregation, or the majority of the elders, or a majority of the money contributors? If the last of these, how are the contributions of the various contributors to be assessed? In the second place, and more importantly, the principle of majority rule would permit a bare majority of the congregation to effect a fundamental change in the doctrines taught in the church or the religious practices followed there. For example, in a church that had been formed according to reformed theology with a Presbyterian system of government, a majority could convert to Arian or unitarian beliefs (as happened with some Dutch Arminian congregations in the late 18th century), or could adopt a wholly different system of church government, such as episcopacy, with corresponding changes in the form of worship. Consequently I take the view that the apparent ratio of the counter-action in Craigdallie cannot be regarded as satisfactory.

 

Craigie v Marshall
[98] Craigdallie v Aikman was followed in the next of the leading cases on the property of voluntary churches, Craigie v Marshall, 1850, 12 D 523. This case concerned another congregation of Seceders, that in Kirkintilloch. The congregation was formed, as Burgher Seceders, in about 1765. In 1820 the New Licht Burghers and New Licht Antiburghers came together to form the United Secession Church, sometimes known as the United Associate Synod. The congregation in Kirkintilloch became one of the congregations of that church. For some years prior to 1845 doctrinal discussions had taken place in the
United Secession Church as to the nature and effect of the Atonement. Marshall, the minister of the congregation in Kirkintilloch, moved the United Associate Synod that certain views adopted by the Synod on this matter should be rescinded. His motion was rejected, whereupon he lodged a protest, and the Synod declared that he was no longer a minister or member of the Church. Marshall's protest was supported by a majority of the congregation at Kirkintilloch, but a minority disagreed. At about the same time the United Succession Church entered into discussions with the Relief Church, a voluntary church that had seceded from the established Church of Scotland in 1761 in protest against patronage, with a view to union of the two churches. That union was completed in 1847, the resulting body being known as the United Presbyterian Church. As a result certain changes were made to the government of the United Secession Church, notably in relation to admission to communion and the right of private judgment; the Relief Church had traditionally taken a liberal view on these matters, admitting members of other churches who were in good standing to communion and permitting a wide right of private judgment, whereas the Secession Church had not. In the Kirkintilloch congregation, the minority who disagreed with Marshall supported the union with the Relief Church, notwithstanding the changes in government that it involved. Three trustees of the Kirkintilloch church who formed part of the minority, Craigie and others, raised an action against Marshall and other trustees for declarator that that church was held exclusively for the congregation adhering to the United Secession Church and now the United Presbyterian Church. It was held that, although the defenders, the majority within the Kirkintilloch congregation, had separated from the United Secession Church, they continued to hold the doctrines and opinions originally maintained by that body; consequently there had been no violation of the conditions on which the Kirkintilloch church was held in trust. Equally, the defenders were entitled to refuse to concur in the union with the Relief Church in view of the changes in church government consequent upon that union.

[99] Lord Justice-Clerk Hope delivered a lengthy opinion stating the relevant legal principles. He began (at 12 D 529-530) by pointing out that a court of law must scrupulously respect the religious opinions of those involved in litigation, especially as to differences of opinion to which the parties attach importance. Thereafter (at 530-531) he drew an important distinction between two situations. First, property, especially if it comes in whole or in part from the funds of parties other than the congregation, may be held on trust for the general governing body or ecclesiastical judicatory of the church in question. In that event, the patrimonial right and interest in the property is separated entirely from the individuals who compose the congregation; the property belongs to trustees for the church as a body. Secondly, property may be held in trust for a congregation and its members; that is especially so when the property has been purchased and built by funds contributed by the individuals composing the congregation. In the former case, the property must be used for the benefit of those whom the governing body of the church acknowledge as part of that church, and the members of the congregation have no patrimonial interest in the property, at least if they separate from the governing body. In such a case the doctrine held by the governing body is irrelevant; the Lord Justice-Clerk gives the example of Presbyterians holding the Westminster Confession who become unitarians. Even in such a case, the property belongs to the governing body; the object of following this course is to make the property a strong bond of union, excluding differences of opinion because such a difference will necessarily involve forfeiture of the property.

[100] In the second situation, a congregational trust, it is the members of the congregation alone who are the proprietors, and the governing body has no interest in or power over the property. In a passage that appears to me to be of great significance for the present case, the Lord Justice-Clerk continued (at 12 D 531):

"The relation of the congregation to such governing body, or the maintenance of the same opinions with that body, or the maintenance of the opinions originally professed by that body, may be, in different cases, more or less important in ascertaining for what portion of the congregation, in the event of division among the congregation, the property is held. But such a question is one entirely between the individual members of the congregation. The party who says the other has lost the right, especially if the majority have possession, must make out and establish that such majority have lost the character of those for whom the property is held, and have individually, by their acts, opinions, and tenets, departed from the principle of the associated congregation... and so forfeited their right of property. What is to prove such departure is a different point. It may be affected or decided by the terms of the contract of such society; it may be affected, or even decided, by the relation subsisting or renounced with some ecclesiastical judicatory, when such has been proved to form a condition of the trust; or it may be a question depending wholly on adherence to the principles on which the congregation associated and formed itself -- the maintenance of which being in truth always the rule, even when the determination of that point is affected by the continued relation with, or renunciation of, ecclesiastical superiors. In the latter case, the point is still (when the property is held for the congregation) to ascertain by whom (in the event of difference) the original principles of the association are maintained. Adherence to a certain judicatory of the sect may, by the terms of the title, decide that point. But, in all cases of trusts for the congregation, the element of association is the continued maintenance of the opinion of which the congregation (the proprietors) associated; and that is the point to be decided, however it may be ascertained".

[101] In the present case the parties are agreed that the church and manse at Broadford are held on a congregational trust. In the passage just cited, four important features of such a trust are described. First, the members of the congregation are the proprietors of the property, not the governing body of the church. Secondly the relation of the members of the congregation to one another depends upon the terms of the agreement, normally embodied in a trust deed or contract, which governs the association of those members. Thirdly, in any division among the members of the congregation, the right to the congregational property depends on which party adheres to the principles on which the congregation associated and formed itself. Fourthly, in determining the principles on which the congregation associated, a number of different factors may be relevant according to the terms of the particular agreement or trust deed. These may include the maintenance of certain points of doctrine or opinion; they may include adherence to the same doctrine or opinion as the governing body of the church in question; they may equally include simple adherence to the governing body of the church in question. The last of these appears clearly from the Lord Justice-Clerk's statement that "Adherence to a certain judicatory of the sect may, by the terms of the title, decide that point", that is, decide by whom the original principles of the association are maintained. In every case, however, it is the trust deed or other agreement that determines what are the fundamental principles on which the congregation associated.

[102] The foregoing rules are in my opinion sufficient for the determination of the present case. Nevertheless, before leaving Craigie, I should say something about the remaining parts of the opinions delivered by the Second Division, including their decision on the facts of the case. In approaching the facts, the Lord Justice-Clerk began (at 12 D 534-536) with a critical analysis of the decisions prior to Craigdallie and the views of the Court of Session in that case: these proceeded on the principle that, with a voluntary church, the views of the majority of the congregation must always prevail.

"This view... partly involved a denial of the lawfulness of such associations, and of trusts for their behoof, and partly also involved a power in the majority, against the first principles in the law of trusts, to diverge from the purpose for which it could be shown to be clearly held, property bought or built with common funds for that original purpose" (at 536).

As Craigdallie proceeded, a further argument was put forward for the party adhering to the Synod of the Burgher Seceders, namely that separation from the Synod ought to be the test for determining ownership of congregational funds, since subordination to church courts was a fundamental element of association. Lord Justice-Clerk Hope described this view as "inviting", but indicated that

"it was manifestly against the leading principle in the law of trusts, and founded on the assumption, that connection with a dissenting Synod was as decisive a criterion by which to determine property and civil rights, as adherence to the Established Church".

That took as decisive what was only one element in the inquiry; the proper inquiry was: what was the original trust, and which party maintained the principles of the original trust?

[103] The Lord Justice-Clerk concluded his analysis of Craigdallie (at 12 D 541-542) by referring to the remarkable feature of the decision, that no intelligible difference between the parties could be discovered, which meant that the only way of solving the dispute was to hold that those who left the Church and Synod had "gone out of their congregation and trust without cause". It was in this way alone that the adherence of the New Licht party to the Burgher Synod came to be of weight. Nevertheless, if the original principles of the congregation are established, adherence to them, and not to the Synod, is the rule fixed by Craigdallie. This is subject to one exception, however:

"[T]he mere fact of separation from the Synod or governing body in any congregation in which the trust is for the members of the congregation... is in itself of no moment, unless adherence to that body is made an essential condition in the contract, without reference to principles or opinions".

Thus, as indicated in the earlier discussion referred to at paragraphs [22] and [23] above, while the governing rule is which party adheres to the principles on which the congregation was originally formed, those principles may include the requirement of association with a particular synod or other governing body. If that happens, adherence to the governing body will be the critical feature, or one of the critical features, in the relationship of the members of the congregation inter se.

[104] The Lord Justice-Clerk considered the application of adherence to the synod in a subsequent part of his opinion (at 12 D 543-544). He began by asking whether adherence to the Secession Church was proved to have been a matter of positive contract to decide the disposition of the property, even though the majority of the congregation retained all of the opinions on which the original parties associated. The original title, taken in 1793, contained no other description of the parties than the members of the associate congregation in Kirkintilloch, commonly called Seceders. At the date of the formation of the congregation, in 1763, and at the date of the original title taken by them 30 years later, adherence to the United Secession Church could be no part of the objects of the congregation, or the purposes of the trust which they constituted, because the United Secession Church did not then exist; it only came into existence in 1820. The Lord Justice-Clerk thought that this consideration was quite conclusive; the original contract or trust purposes, as formed by those who united into the congregation, could not include adherence to the United Secession Church as a fundamental condition of the original trust. Later titles, in the 1830s, had added the words "and presently in connection with the United Secession Church". There was, however, no proof that this addition was the result of any minute of the congregation or agreement among the ministers. Moreover the description went no further than an indication that the Kirkintilloch congregation had acceded to the Associate Synod; it did not establish that such adherence was an essential principle of the parties' contract or trust. Consequently separation from the United Secession Church, such as had occurred when the majority of the congregation followed the minister, Marshall, in his protest, did not involve any breach of the contract or trust purposes. Any general notions of subordination, union or schism on the rights of property must be rejected: the only question was whether adherence to the United Secession Church was a condition on which the property was held in trust, and that had to be answered in the negative. This again involves an affirmation that the right to congregational property depends on the specific terms of the trust or contract on which it is held, and does not depend on any more general notions of church organization.

[105] It is easy to see why this must be so. The systems of government of various churches differ markedly, and the significance of adherence to particular governing structures varies accordingly. In a church that follows an episcopal polity, adherence to the church structure and communion with the bishops is critical, because those bishops are held to represent the apostolic succession and to be a major teaching authority; by contrast, in a church that follows a congregational or independent polity, adherence to the church structure may signify very little, because the fundamental principle is the independence of the individual congregation, scripture being recognized as the only source of doctrine. Presbyterianism, of course, occupies yet a third position.

[106] The Lord Justice-Clerk concluded by holding that the majority of the Kirkintilloch congregation, led by Marshall, had not deviated in any way from the original doctrines of the Seceders. Indeed, in refusing to join with the Relief Church to form the United Presbyterian Church, the majority had upheld the original doctrines of the Seceders. Consequently no basis had been established for removing them from the church, and they were assoilzied from the conclusions of the summons.

[107] Lord Moncreiff agreed. He held (at 12 D 560) that the act of union with the Relief Church imported a change in the constitution of the congregation; consequently it was incompetent for the Synod of the Secession Church to force the congregation into such a union, or to infer a forfeiture of property by their refusal to go into it. As to the governing principle, Lord Moncreiff stated it as follows (at 560):

"[I]n such questions of property arising between the members of the congregation, originating in supposed differences of religious principle, the civil right is not to be determined by adherence to the Synod or other superior court of the dissenting body, or by departure or separation from such Synod or other court; but by the question, whether the one party or the other is adhering to the original principles on which the society was formed, or the congregation founded".

That principle is essentially the same as that followed by the Lord Justice-Clerk. Lord Moncreiff's formulation is confined in its terms to cases where there is a difference of religious principle. No reference is made to the possibility that adherence to a synod or other governing body might amount to such a principle, but I think it clear that that must be a possibility, as the Lord Justice-Clerk clearly holds. Indeed, if one moves away from Presbyterian forms of church government, churches governed by an episcopal polity invariably regard adherence to the formal structures of the church, notably the system of bishops and other clergy, as an essential criterion of church membership. Consequently, if funds for a new church were raised by a Catholic or Episcopalian congregation, it would normally be agreed, expressly or by implication, that the church and its congregation were to be part of the wider structure of the Catholic or Episcopalian church, as the case might be, and would remain in communion with the church and its bishops. The same general principle must apply to Presbyterian churches: if a congregation chooses to make adherence to a particular governing body an essential feature of their union, adherence to that governing body is an essential condition of ownership of the church property, and in the event of a division in the congregation it is the party that adheres to the governing body that will be entitled to the property.

[108] Lord Moncreiff expressed his conclusion on the law as follows (at 12 D 562), quoting Lord Medwyn in Smith v Galbraith, Fac Coll, June 1839:

"If we can find out what were the original principles of those who originally attended the church or chapel, we must hold the building appropriated to the use of the persons who adhered to the same religious principles, though these be a minority of the congregation".

That principle applied whatever the Synod might have done: ibid. In the case under consideration, there was no suggestion that the defenders had departed from the original principles on which the Kirkintilloch congregation was established, and accordingly they were entitled to the church. Lord Cockburn concurred, although he thought that Dr Marshall, the minister, was in a different position from the other defenders in that he had expressly resigned his connection with the Associate Synod some time before the union with the Relief Church took place.

 

Further cases
[109] The legal principles necessary for the present case are in my opinion fully laid down in Craigdallie and Craigie. Before going on to consider how they apply to the facts of the present case, however, I must say something about certain subsequent cases, in which, generally speaking, the two foregoing cases were followed. First, in Couper v Burn, 1859, 22 D 120, the principles laid down in Craigdallie and Craigie were applied in relation to a further division among a congregation of Seceders, on this occasion the Auld Licht Antiburghers in Thurso. In
1852 a union was effected between the Free Church and the Synod of United Original Seceders. The latter body was the synod formed by the Auld Licht Antiburghers following the division of the Antiburghers into Auld and New Lichts in 1806; the Auld Lichts had stayed out of the United Secession Church, whose union with the Relief Church in 1847 formed part of the background to the dispute in Craigie. The Synod of United Original Seceders agreed to the union with the Free Church by a single vote, and the minority protested and met as a separate body, holding themselves still to constitute the Synod of United Original Seceders. In Thurso a majority of the congregation resolved to unite with the Free Church, but the minority dissented, and they claimed right to the church. The Seceders who agreed to union with the Free Church became merged in that church, and in doing so abandoned their position to represent a separate and distinctive Christian body. This point was made very clearly by Lord Wood, who delivered the opinion of the Second Division (at 22 D 143):

"There was but one church and one system of discipline and government. The Judicial Testimony of 1736, and its renewals in 1827 and 1842 -- the standards of the Secession body -- never received the sanction of the Free Church, and after the union they ceased to be authoritative. They no longer constituted the badge of any separate sect or denomination of Christians.... [N]o more explicit statement of the result of the union could be made than was done by the distinguished mover of the incorporating Act of Assembly, who introduced the subject, by observing... that the step was the extinction of the Secession in Scotland, and that the union 'put an end to the existence of any body of Seceders, properly so called, from the Church of Scotland'".

In these circumstances it was held that it was the minority in Thurso who opposed union with the Free Church, not the majority, who represented the Original Seceders. They were accordingly entitled to the church.

[110] Craigie was expressly followed (at 144). The principles taken from that case were expressed by Lord Wood as follows:

"(1.) That when the church or ecclesiastical building is held in trust for any particular congregation, the resolutions adopted by the Synod or governing body were not obligatory on the congregation, so as to compel the members to go along with the governing body, at the peril, if they refuse to do so, of losing their right and interest in it; and (2.) That the test of retention or loss of the proprietary right and interest in such cases, was adherence to or departure from the principles held by the congregation for whose behoof, in beneficial right, the feudal property was held in trust".

Applying these principles, the court held that the pursuers, the minority, had not departed in any way from the principles or from the separate Testimony and distinctive designation of the communion as it stood while they were still a united body. It was the defenders who had departed from the principles of the Secession and had abandoned the name and separate Testimony of the once united body.

[111] In "The Ferguson Bequest Fund" Case, 1879, 6 R 486, a testamentary bequest was to be applied for the promotion of specified activities in connection with the Established, Free, United Presbyterian, Reformed Presbyterian and Congregational Churches in Scotland. From 1863 onwards divisions arose within the Reformed Presbyterian Church, the church that represented the Cameronians, Covenanters who had remained out of the Church of Scotland when it adopted a presbyterian rather than an episcopal system of government in 1690; their basic tenet was strict adherence to the National Covenant of 1638. In 1876 a large majority of the Reformed Presbyterians joined the Free Church, and thereafter the minority claimed to be entitled to that part of the Ferguson Bequest destined to the Reformed Presbyterian Church. The court accepted that in some cases it was necessary, in order to determine the civil right to church property, to inquire into the doctrines and rules of a particular religious body. The nature of the inquiry in such cases was described by Lord President Inglis in the following terms (at 6 R 508):

"In such cases it must be observed that the claim is based on allegations of breach of contract, that the subject in dispute is matter of civil and patrimonial right, and that the Court cannot decide that question of right without reading and interpreting the contract which imposes on the members adherence to particular doctrines, laws, or usages as conditions of membership of the association".

In the case under consideration, however, it was unnecessary to embark on any such inquiry. In the first place, it was difficult if not impossible to state that the Reformed Presbyterian Church was "bound together by a contract or bond of union so definite and ascertained that it is essential to the existence of this body of religion as that they should all remain permanently under the supervision and control of the same Synod or other superior Church judicatory". The body of Christians in question, popularly known as Cameronians, had existed for many years, but they had never seceded from the established church because they had never belonged to it. Thus they had no occasion to record formally the conditions under which they were associated together, and they had simply considered themselves to be the representatives of the Church of Scotland as it existed from 1638 to 1649. Thus the essential standards of the Reformed Presbyterian Church did not include adherence to any particular Synod or other institution of church government, as against the Presbyterian form of church government (6 R 508-510). In the second place, the testator had not in his bequest shown any partiality for any particular beliefs or institutions of the Reformed Presbyterian Church; his bequest extended to five separate denominations, out of about twelve that existed in Scotland at that time. While these excluded all denominations that had an episcopal form of church government, they were not confined to Presbyterian churches, as the Congregational Church was included; it rejected all creeds and formulae and took the Bible alone as its standard of faith and rule of life. The factor that united the various churches, however, was that they all taught a form of evangelical theology which could be said to represent the Scottish Reformers of the 16th century and, in the form of the Congregationalists, the English Puritans or independents of the same period. In addition, they all adhered to a very simple form of public worship. Thus it could be said that the testator intended to benefit a range of churches that taught and worshipped in a manner typical of reformed Protestantism in a particular period. If that was his intention, the testator must have known that the chosen churches might separate or unite; that was a feature that had affected several of them during his lifetime and previously. Consequently he cannot have had precise differences or divisions within the various individual churches in mind, but rather intended to benefit the totality of religious bodies that fell within his chosen area (6 R 510-512). On that basis both parts of the Reformed Presbyterian Church were entitled to benefit, and the trustees were directed accordingly.

[112] Free Church of Scotland v Lord Overtoun, [1904] AC 515 (a fuller report than is found in Session Cases) was the principal case arising out of the union in 1900 of the Free Church and the United Presbyterian Church to form the United Free Church. The case concerned the general property of the pre-1900 Free Church rather than its congregational property. It is unnecessary for present purposes to go into the details of the case, beyond indicating that the minority of the original Free Church claimed that the United Free Church had departed from two important doctrines held by those who originally formed the Free Church: first, the principle of establishment, that there should be an established church, and secondly, the totality of the Westminster Confession, including its provisions on predestination. It was held by a majority of the House of Lords that those two matters were fundamental doctrines of the Free Church, which could not be varied in such a way as to affect the right to property. The United Free Church had moved away from those beliefs, with the result that it could not be identified with the Free Church as it existed before 1900. Thus the property of the pre-1900 Free Church passed to the minority who still held to the original doctrines.

[113] The principles laid down in Craigdallie v Aikman and Craigie v Marshall were followed: Earl of Halsbury LC at 613-615; Lord Macnaghten (dissenting on the facts but not on the relevant legal principles) at 629, Lord Davey at 643-644, Lord James at 666, Lord Robertson at 683, Lord Lindley (dissenting on the facts but not the law) at 702 and Lord Alverstone at 704. The principle was expressed by the Earl of Halsbury as follows (at 612-613):

"Speaking generally, one would say that the identity of a religious community described as a Church must consist in the unity of its doctrines. Its creeds, confessions, formularies, tests, and so forth are apparently intended to ensure the unity of the faith which its adherents profess, and certainly among all Christian Churches the essential idea of a creed or confession of faith appears to be the public acknowledgment of such and such religious views as the bond of union which binds them together as one Christian community".

Lord Halsbury further pointed out (at 617) that the majority of members of a church cannot affect the question of its beliefs; the original purposes of the trust on which the Church's property was held must be the guide. In the case of the Free Church, its founders had left a wealth of material from which it was possible to determine clearly its essential doctrines. Likewise, the doctrines of the United Presbyterian Church and United Free Church had been clearly stated. On the subject of establishment, there was a clear difference between them; the Free Church believed that there should be an established church, and that they were indeed the church that should be truly established. That meant that government had a duty to give resources and means for the maintenance of the church, and to do all that it could to support the church that had been so established. On the doctrine of predestination, Lord Halsbury contrasted the wording of the Westminster confession, which provided that "some men and angels are predestinated unto everlasting life, and others fore-ordained to everlasting death", with the Declamatory Act of 1892 of the United Presbyterian Church, which provided "That this Church does not teach... the fore-ordination of men to death irrespective of their own sin". That was held to amount to a clear contradiction (at 625). It had been argued that the differences of opinion as to predestination could not be regarded as fundamental because the doctrine was treated as a mystery in Scripture and historically various opinions had been held upon it. To this, Lord Halsbury replied that the doctrine had clearly been treated as of fundamental importance during the 17th century; it formed the basis for the division in the Dutch Reformed Church between Calvinists and Arminians, and that dispute had clearly been well known to those who composed the Westminster Confession. Thus the language of the Westminster Confession was quite deliberate, and it had been followed by the founders of the Free Church.

[114] It was argued for the United Free Church that every Christian church has an inherent power to change its doctrines, and that if that were to happen the property would continue to be held for the church with its changed doctrines ([1904] AC 626). The majority of the House of Lords held that, whether or not there was power to change doctrine, property must continue to be held for the purposes to which it was originally devoted. Lord Halsbury stated that "there is nothing in calling an associated body a Church that exempts it from the legal obligations of insisting that money given for one purpose shall not be devoted to another. Any other view it appears to me would be fatal to the existence of every Nonconformist body throughout the country" (at 627).

[115] Lord Macnaghten dissented, but agreed with the basic approach in Craigdallie. On the issue of change of doctrine, he drew rather more clearly a distinction between fundamental issues of doctrine and more minor issues; in the event of a change in fundamental doctrine, the property will go to those who adhere to the original doctrine, on the basis of which the church property was given; but in other cases a certain amount of change will not affect the ownership of property. Lord Macnaghten thought that any church that considered itself a national church, as the Free Church did, must have the power of permitting some latitude of opinion in its members on "matters which, according to the common apprehension of mankind, are not matters of faith" (at 636). He agreed that "a sect may erect any point or any punctilio however trifling and absurd into an article of faith" (ibid), but he considered that the Free Church had never made the establishment principle an article of faith. The fundamental point that emerges from his opinion, however, is that the ownership of property devoted to church purposes depends upon the agreement of those who form the religious body in question, and effect must be given to the terms of that agreement in the event of any schism.

[116] The same approach can be found in the other speeches delivered in the case. It is perhaps worth adverting to the views expressed by Lord James in one respect: he stated (at 656):

"[T]he Church is not a positive, defined entity, as would be the case if it were a corporation created by law. It is a body of men united only by the possession of common opinions, and if this community of opinion ceases to exist, the foundations of the Church give way. But difference of opinion to produce this result must be in respect of fundamental principles, and not of minor matters of administration or of faith".

The fundamental points of difference between the majority and minority were whether the so-called establishment principle was indeed a fundamental matter of faith rather than a matter of administration and whether the difference between the Free Church and the United Free Church on the issue of predestination involved a fundamental doctrinal issue. Religious opinions do of course change over time; the Reformation itself involved important and fundamental changes in doctrine from the preceding period (although of course the reformers held that they were merely rediscovering the doctrines of the early Church), and the more gradual development of doctrine in the early church is the subject of Newman's celebrated Essay on the Development of Christian Doctrine, published in 1843. Such changes continue to occur, and whether a change in doctrine is in fact fundamental must be determined in relation to the history of the particular church in question.

[117] The next significant case on church property is MacKay v MacLeod, decided at first instance by Lord Guthrie on 2 August 1951 and by the First Division on 10 January 1952; neither decision is reported. This case involved a division within the Inverness congregation of the Free Presbyterian Church of Scotland, and is concerned primarily with the significance of an act of protest; consequently it is of limited assistance in the present case. Nevertheless, the court made it clear that the terms of the trust are of fundamental importance, and the decision thus proceeds on the principles laid down in Craigdallie and Cragie, albeit in a somewhat singular factual situation. The Free Presbyterian Church of Scotland separated from the Free Church in 1893 on certain points of doctrine; essentially, the Free Presbyterians considered that the confessional standards of the Free Church had become unduly liberal, and that a more strict adherence to fundamental church doctrines was required. The trust governing the property of the Inverness congregation was expressed so as to make the beneficial right to the property dependent upon adherence to the constitution and whole standards of the Free Presbyterian Church as set forth in specified documents. In 1924 a dispute had arisen between the minister of the congregation and a lady member regarding her admission to communion, and the Kirk Session suspended her from church privileges. Appeals by her to the Northern Presbytery and Synod of the Church were dismissed. In 1937 she presented a petition to the Kirk Session to have the suspension removed and her privileges restored. The minister objected to the reading of the petition, but the majority of the Session dissented, and the case was transmitted to the Presbytery and ultimately the Synod. The Synod granted the prayer of the lady's petition, whereupon the Minister tabled a protest against the decision on the basis that it was irregular, unconstitutional and unscriptural. He then left the Synod. Thereafter the congregation split into two parts; those siding with the Minister met for worship in a hall near the church, whereas the remainder of the congregation, siding with the petitioner, remained in possession of the church. After the minister died, in 1949 those who worshipped in the church raised an action against the part of the congregation who worshipped in the hall to establish title to the manse, which was then vacant.

[118] Lord Guthrie indicated (at page 5) that the dispute involved consideration of the question, raised by the terms of the disposition of the trust property, as to which section of the original congregation had adhered to the constitution, whole standards and protest of the Free Presbyterian Church. After considering the pleadings in some detail, he held that certain averments on both sides should be deleted, and that otherwise the case should proceed to proof before answer. In the First Division, however, it was held (Lord Russell dissenting) that the action should be dismissed. Lord President Cooper expressed the issue as follows (at pages 1-2):

"In form and in substance the single controversy which we are invited to resolve relates to a matter of patrimonial right. It arises in a competition between two parties, each claiming to be the beneficiaries entitled to a certain trust property. The trust is so expressed as to make the beneficial right dependent upon adherence by the beneficiary to the Constitution and whole standards of the Free Presbyterian Church of Scotland as set forth in specified documents. In such a case it is the duty of the Court to take cognisance of relevant matters of belief, doctrine and church government for the purpose, but only for the purpose, of informing themselves as to the essential and distinguishing tenets of the Church in question, and of discovering the differences, if any, which can be detected in the principles to which the competing claimants respectively profess adherence".

The starting point was the trust destination contained in the disposition of the church and manse. This stated that the subjects were held for behoof of "the Congregation of the Body of Christians called 'The Free Presbyterian Church of Scotland' presently worshipping in Free Presbyterian Church, North Church Place, Inverness, and adhering to the Constitution and to the whole standards of the Free Church of Scotland as set forth and enumerated in the herein after-mentioned Deed of Separation". The Deed of Separation was the document by which certain ministers and elders separated themselves from the Free Church in 1893 in order to form the Free Presbyterian Church; in that document a number of well-known doctrinal and ecclesiastical formularies were enumerated, beginning with the Westminster Confession. The trust destination specifically dealt with the possibility of "any Disruption or Secession" within the congregation; in that event, the subjects were to belong to the section of the congregation, whether a majority or a minority, who adhered to the foregoing constitution and whole standards "in all particulars". Lord Cooper held that the constitution and standards must be found in the Deed of Separation and documents enumerated therein, and there alone. It followed (at pages 6-7) that the only type of "Disruption or Secession" referred to in the trust was a disruption or secession "which results in the production of one section which adheres, and another section which does not adhere, to the Constitution and standards of the Church, -- from which it follows that a disruption or secession due to some extraneous cause and not productive of such results is not provided for".

[119] The Lord President then considered the nature of a protest, and the Synod's reaction to the minister's protest. The Synod had treated the minister's protest as an act effecting his separation from the Church, and thereafter the pursuers, adhering to the Synod, had ceased to regard him as their minister. It could not be said that that action by the Synod was in any sense a departure from or violation of the constitution and standards of the Free Presbyterian Church, essentially because of the importance that a protest had come to assume among Scottish churches. On that basis, the defenders' challenge to the pursuers' right and title had to fail; the pursuers and the Synod to which they adhered had maintained the constitution and standards of their Church. Lord Cooper then went on to consider the relevancy of the defenders' case. The fact of the protest was not enough to effect a separation from the Church; it did not involve any departure from the constitution and standards of the Church. Nor was the fact that the defenders had set up a congregation worshipping in the church hall enough to separate them from the Church; the terms of the trust expressly contemplated that a single congregation, even a minority of the original congregation, might satisfy the qualifications of the trust. Finally, Lord Cooper considered the fact that the defenders had, over a period of 13 years, remained "the avowed champions of an open rebellion against their parent Church, with which they have manifestly resolved to have no further dealings or association" (page 22). On that basis they could hardly be considered objectively to be a congregation or a section of a congregation of the Free Presbyterian Church of Scotland adhering to the constitution and standards of that Church. Nevertheless, the pursuers' case against them was based on the terms of the trust destination governing the manse, and that document did not make any provision for the withdrawal of a section of the congregation who still claimed to adhere to the constitution and standards. The defenders fell into that category. Consequently the pursuers' case against them must fail.

[120] Lord Carmont agreed with the Lord President, for similar reasons. The terms of the title excluded from relevance the fact of secession, provided that the constitution and whole standards of the Free Presbyterian Church were adhered to. Moreover, the mere fact of protest did not cut the protester off from the church. Lord Keith relied on the fact that the trust disposition made no provision for the event of a split in a congregation where each section professed and was held to adhere to the constitution and whole standards of the Free Presbyterian Church. That was the situation disclosed in the pleadings, and on that basis there was no ground for holding that the defenders had lost the title to the manse. Lord Russell dissented. He held that the right of protest was in no sense a fundamental right, and that making a protest did not involve any separation of the protester from the church. Nevertheless, he considered that the defenders, the part of the congregation worshipping in the church hall, had abandoned the Presbyterial form of church government, which was a fundamental part of the defined constitution and standards of the Free Presbyterian Church.

[121] Finally, in Free Church (Continuing) v Free Church, 2005 SC 396, Lady Paton had to consider the present division in the Free Church in relation to the property held by the Church as a body, as against congregational property. She held that the defenders in that action, those corresponding to the pursuers in the present action, were entitled to the property of the former Free Church. The arguments presented were somewhat different from those deployed in the present case; they related in particular to the significance of an alleged right of continued protest, a principle that, the pursuers alleged, had been abandoned by the defenders. Lady Paton held that the right of continued protest contended for had not been established as a constitutional principle of the Free Church, and on that basis she dismissed the action. The present defenders do not now maintain that there is any fundamental right of continuing protest. Nevertheless, it is noteworthy that Lady Paton's opinion proceeds on the basic principles laid down in Craigdallie and Craigie and followed in subsequent cases.

 

The Broadford congregational trust
[122] The principles disclosed in the foregoing cases must be applied to the trust governing the congregational property of the Free Church in Broadford. For that purpose, three particular matters appear to me to be of fundamental importance. First, the right to the congregational property in Broadford must depend upon the terms of the trust under which that property is held. Secondly, in interpreting that trust, the fundamental principles governing the association of the congregation must be identified. Thirdly, those principles may take a number of forms. Particular doctrines may be important, but so too may be a system of church government, and so may adherence to specific structures of church government. The last of these is in my opinion of decisive importance in the present case.

[123] The proposition that adherence to a particular structure of church government may be a decisive principle in a congregational trust appears to me to be clear. Church government is clearly a matter of fundamental significance. Historically, it has been a major source of division among Christian churches. This tendency is particularly marked among the various Presbyterian churches in Scotland, where differences of government, including the relationship of the church to the state, have been a major factor in the various schisms that have occurred since the religious settlement of 1690. The practical consequences of church government are of great importance. The particular government of a church will determine who is in communion with that church. It will determine who the ministers or priests are who may preach and administer the sacraments. It may be given power to determine how the property and funds of the church are to be used, for example where a new church is needed or where foreign missions may usefully be developed. It may determine details of worship; for example, it may determine whether hymns may be sung, or only psalms, and how often communion services should take place.

[124] Most importantly, the government of a church may in some cases have power to define the doctrines and beliefs that are fundamental to that communion. While some doctrines, for example the Incarnation, the Resurrection and the Trinity, must no doubt be held by any church that can properly be described as Christian, many others cannot be regarded in that light. In such a case the constitution of a church may confer power on its organs of government to determine whether any such doctrine is or is not held by the church. Predestination is perhaps a good example of such a doctrine; it played a significant part in the Free Church case of 1904, and the majority of the House of Lords held that the doctrine laid down in the Westminster Confession was fundamental to the Free Church as constituted in 1843. Nevertheless, Lord Halsbury makes reference (at [1904] AC 621-626) to a range of differing views expressed on the subject. Apart from the Westminster Confession he refers to the differing views held in the Netherlands by Calvinists and Arminians (a leading member of whom was the lawyer Hugo Grotius), and by Orthodox Councils, notably the Synod of Jerusalem of 1672, the most important Orthodox Council of the early modern period. He could equally have mentioned the Catholic controversy between Dominicans, who under the influence of Thomas Aquinas favoured a strict view of predestination, and Jesuits, who under the influence of Luis de Molina and Francis Suarez favoured a view that accorded much more importance to human free will; the controversy was settled by a papal decision in 1607 ("De Auxiliis") that both views were acceptable and neither side should pronounce the other heretical. In relation to any doctrine of that nature, the particular government of a church (such as an Orthodox Council or the papal authority) may be given power to determine what the precise beliefs of the church are or, as with the decision De Auxiliis, to leave the matter open to individual conscience. Whether any such power is given will, however, depend on the constituent principles of the particular church.

[125] It is entirely a matter for any particular congregational trust to determine whether adherence to any defined structure of church government is a fundamental condition of the trust. Such a condition will perhaps be very natural in any church that follows an episcopal polity, because of the importance accorded by such churches to the apostolic succession transmitted through the structure of bishops. It may be less natural in a church that follows a congregational or independent form of government, because the fundamental principle there is the independence of the congregation, with only the Bible as a source of doctrine. With a Presbyterian church the position is somewhere between these. Nevertheless, Presbyterianism is a form of church government that is based on a structure of church courts, and if appropriate wording is used a Presbyterian congregational trust may make adherence to a particular Presbytery or Synod or Church an essential principle of the congregation's association. In my opinion this is such a case.

[126] The terms of the trust on which the church and manse are held are set out in a feu charter by Lord Macdonald in favour of the Trustees of the church dated 10 March and 2 April and recorded in the General Register of Sasines applicable to the County of Inverness on 12 October 1869. The feu charter was granted in favour of the then Minister, the Rev Alexander MacKenzie, and three other named persons "as Trustees for the Congregation of the Body of Christians called the Free Church of Scotland at Broadford in the Parish of Strath, Skye, presently worshipping under the pastoral charge of the said Reverend Alexander MacKenzie, and to their successors in office, to be appointed by the said Congregation, in the way and manner hereinafter mentioned", together with acceptors and survivors. Its purpose is said to be "for a place of public Christian worship in connection with the Communion after mentioned". The terms of the trust on which the property is to be held by the trustees are then set out at length. These are as follows; I have italicized the passages that I consider most important:

"First; that a place of worship with a Manse or Dwelling house offices and garden for the Minister thereof shall be erected upon the ground before disponed, which place of worship with the appurtenances thereof shall in all the 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 aforesaid name of the Free Church of Scotland or under whatever name or designation they may assume, and shall with the said Manse and others be managed, made use of, occupied and enjoyed in the way and manner and subject to the rules and conditions according to which by the Laws and usages for the time of the said body or united body of Christians, places of worship, Manses and others, shall be managed occupied and enjoyed, and in particular the said Trustees or Trustee acting for the time shall at all times, and from time to time hereafter permit and suffer to preach and expound the Holy Scriptures and administer Ordinances and perform the normal acts of Religious worship within the said place of worship as said is, such person or persons only as may or shall from time to time be authorized or appointed so to do by the said body or a united body of Christians acting through the medium of its Kirk Sessions, Presbyteries, Provincial Synods and General Assemblies, or according to the form or forms in use with the said body or united body for the time".

[127] Those trust purposes are followed by a number of supplementary provisions. The first of these deals with the possibility that the minister might be deposed or suspended; it provides as follows:

"Providing always that whensoever any person holding such authority or appointment as said is, and enjoying the permission and sufferance aforesaid shall by a sentence of the said body or united body of Christians pronounced by one or other of its Presbyteries Provincial Synods or by its General Assembly or Commission of such Assembly for the time being or in any other way or manner in use in such matters for the time by the said body or united body of Christians be deposed or suspended from office or cut off from the said body or united body of Christians or declared no longer a Minister thereof, his authority and appointment foresaid shall ipso facto cease and determine; and the said Trustees or Trustee acting for the time shall not only be no longer bound but be no longer entitled to permit or suffer him to preach and expound the Holy Scriptures or administer ordinances or do or perform any Act of Religious worship or other act or thing whatsoever within the said place of worship erected or to be erected as said is; and shall be bound and obliged to debar him therefrom aye and so long as he remain deposed or suspended or cut off as aforesaid".

Similar provisions are made regarding the manse. Provision is then made for the trustees, as follows:

"Secondly, That it shall at all times be in the power of any Trustees or Trustee whether named herein as aforesaid, or that may be appointed in virtue of the powers and provisions herein contained, who may have acted in the said Trust, to resign the Trusteeship, and that in the event of any such Trustees or Trustee whether named or to be appointed as said is, ceasing to be Members of the said body or united body of Christians then and in that case such Trustees or Trustee shall ipso facto cease to have any right to act under these presents and the trust shall be thenceforward conducted by the other Trustees as if such Trustees or Trustee ceasing as said is were actually dead".

Power is then conferred on the Congregation occupying the church to appoint new trustees; that has to take place at a meeting called in a prescribed manner. It is further provided that "such Trustees [should be] always persons in full communion with the said body or united body of Christians". Finally, it is declared that

"no person shall be deemed or taken to be a Member of Congregation in the sense of these presents or shall be entitled to vote or act in any of the proceedings of the Congregation, unless the name of such person shall appear in an Annual Roll or List of the Members of the Congregation in the use occupation and enjoyment of the said place of worship being in full communion with the said body or united body of Christians, to be annually attested by the Presbytery connected with the said body or united body of Christians of the bounds in which such place of worship is situated".

[128] Certain of these provisions call for comment. First, the basic trust purpose specifies that the church and manse are to be occupied by a congregation of the Free Church according to the laws and usages of that body. Secondly, the minister is to be authorized or appointed by the Free Church acting through the medium of its church courts. Thirdly, the minister may be deposed or suspended by a sentence of the church courts of the Free Church; in that event, the minister is forbidden to preach. Fourthly, if any Trustee should cease to be a member of the Free Church he or she will ipso facto cease to have any right to act as trustee. Fifthly, any new Trustee must always be a person in full communion with the Free Church. Sixthly, certain powers, including the appointment of new trustees, are conferred on members of the congregation, and it is provided that these must be persons whose names appear in an annual roll and who are in full communion with the Free Church, that to be annually attested by the relevant Presbytery. All of these factors in my opinion point very clearly to the conclusion that a fundamental principle on which the congregational trust was established was that the congregation should form part of the structures of the Free Church, including its Presbyteries, Synods and General Assembly. In other words, membership of and participation in the institutional structures of the Free Church was an essential feature of the trust. That is not to say that doctrine is not important. If the Free Church itself divided on a question of doctrine, then the members who adhered to the original doctrines of the Church would be regarded as the continuation of the existing Church, as happened following the events of 1900. In that event it would be the members of the congregation who adhered to the original doctrines who remained in communion with the continuing Church, and under the present trust purposes it is those members who would be entitled to the congregational property. In the present case that does not matter, however, because it is agreed between the parties that there are no fundamental differences of doctrine between them; the differences relate only to the institutional structure of the church.

[129] On that basis, I am of opinion that it is the pursuers, and not the defenders, who are entitled to the occupation and use of the church and manse at Broadford. The defenders' averments on the separation of the two parties are as follows. In January 2000 a division occurred within the Free Church. A minority of ministers associated themselves as a united body of Christians known as the Free Church of Scotland (Continuing). The Free Church of Scotland (Continuing) adheres to the laws and practices of the Free Church of Scotland. As such, it is said, the ministers, elders and adherents (and presumably communicants) of the Free Church of Scotland (Continuing) have not forfeited any rights which they enjoyed prior to the said division in so far as those rights were vested in the body of Christians called the Free Church of Scotland or any united body composed of such Christians. On that basis, it is said, the defenders have not forfeited any rights pertaining to the subject at Broadford, and are entitled to the continued enjoyment and use of those subjects, which they have continued to use for the purposes of worship as they did before the division in 2000. What is averred, therefore, is that the Free Church of Scotland (Continuing) continues to adhere to the laws and practices of the pre-2000 Free Church. It is not, however, averred that they maintain the continuity of church government of the pre-2000 Free Church; in particular, it is not stated that they remain part of the system of church courts of the pre-2000 Free Church. It is, of course, that system of church courts that is the distinctive feature of any Presbyterian form of church government, and in my opinion it is membership of and participation in that system of church courts that is the decisive principle on which the Broadford property is held on trust. Indeed, the defenders' averments are only consistent with the view that they have withdrawn from the system of church courts that existed prior to 2000. The averment that the minority of ministers associated themselves as a united body with, plainly, a distinct identity indicates very clearly that new church structures were set up, and indeed the defenders' counsel admitted as much in his submissions to the court.

[130] The primary submission for the defenders was that they adhere to the principles and practice of the Free Church as it was established at the Disruption in 1843. Consequently, as the party in possession of the church and manse in Broadford, they are entitled to that property. The proposition that the defenders adhere to the principles and practice of the Free Church as it was originally constituted was not disputed, and indeed seems quite clear. Nevertheless, that is not in my opinion sufficient for the defenders to satisfy the requirements of the present congregational trust. In addition to establishing that they adhere to the principles and practice of the Free Church, they must also show that they remain part of the institutional structures of that church. That is something that they do not, and could not, claim. On that basis I am of opinion that the defenders' case is irrelevant. I accordingly agree with your Lordship in the chair that the reclaiming motion must be refused and that we should adhere to the decision of the Lord Ordinary.

[131] In a number of the cases where the court has required to deal with church property, the view has been expressed that the parties should try to make up their differences in a spirit of Christian charity. The present case is one where there is no difference of doctrine between the parties; nor is there any disagreement as to the form of church government that they wish to govern them; the only disagreement appears to be of a largely personal nature. In the course of submissions we were referred to a number of churches, especially in areas where there has been new housing development, where different denominations share the same church, despite important differences in doctrine. May I, in conclusion, respectfully suggest that this is a case where such an arrangement might be reached? It is true that the right to the Broadford property belongs to the congregation who adhere to the structures of the pre-2000 Free Church, and that the minister and communicants of that congregation must be members of the Free Church as governed by those structures. Nevertheless, I can find nothing in the trust that prevents the congregation so determined from permitting the use of the church to other bodies of Christians who follow similar doctrines and forms of worship. The defenders appear to me to be such a body. In this respect, the exhortation to longsuffering, forbearance and unity of the spirit within a congregation may be as relevant to Broadford and other communities in Scotland in the twenty first century as it was to Ephesus in the first century.