A GREAT LAW ACTION.

Evening Post, Volume LXVIII, Issue 62, 10 September 1904, Page 2

A GREAT LAW ACTION.

RELIGIOUS LITIGATION. THE FREE CnURCH OF SCOTLAND. EFFECTS ON VAST INTERESTS. (From Our Own Correspondent.) LONDON, 6th August. A law case of truly stupendous charactor, alike in its dimensions and in the vast interests both religious and financial that are affected, has just been determined by the highest tribunal in tho land — tho House of Lords. Tho decision was given on Monday in this week. It will bo read with keen interest in every part of tho world whero the Presbyterian form of religion exists. ' I may explain that the appollanta are the minority of the Free Church of Scotland, who rofuwed to go into union with the United Presbyterian Churoh, and the respondents are Lord Overtoun and the other trustees of the United Free Churoh, the titlo which tho united ohurches have taken. The allegation that the union was a violation of the principles of the Free Church opened up not only questions as to these principles, but as to tho constitution of the Church of Scotland, from which it seceded in 1843, and therefore the ecclesiastical history of the Kingdom from the time of John Knox waa reviewed. The Freo Church of Scotland, of course, dates from that "ecclesiastical convulsion" of 1843, tho Disruption, when 470 of its ministers, after tho long controversy known as "The Ton Years' Conflict," abandoned their churches, maiuses, and the benefit* of o. Stnte Church rather than surrender tho claim they mado to spiritual freedom. They and thoso who adhered to them fornved a body under tho distinctive name of the Free Churoh of Scotland, which became a powerful organisation, possessing many churches in the large towns, and at leart ono church in neany every parish in Scotland. In the year 1900, by a very large majority, the Ohurch docided to unite with tho United Presbyterian Churoh, which represented earlier secessions from tho Established Churoh, orcd came into the union with five or six hundred charges and about 200,000 communicants. Tho appellant* are 24 ministers of the Free Church, who, out of a total of 100, protested against tho union with tho United Prefcbytorions, and contend that they aie entitled to tho property of« the Fi*f Churoh of Scotland, by which name they continuo to describe themselves, on the ground that the union was a violation of tho principles of the Free fhnr^li They urged that the Froe Churoh had wicrifieed its principles, because at the bmw of the .Disruption the founders nf tho Church asserted thnt a rightly-cmi-ntitubed establishment was right antf proper, and that in consummating the union in 1900 the Freo Churoh had modified tho pulvini.om of its confession by proclaiming Armininnism. The mult of the decision, given in a sense which will create dismay throughout Scotland, nffect* a mi in whioh ainnot bo precisely estimated, but certainly amounts to soveral million";, tho value of tho heritable and movable property poswossed by th« Church being very >argc. By a majority- of five to two the appeal .from tho Rcottish Law Courts has boon mitHnitied, and the contention of two dozen »iini«teis who protested against Union with the United Presbyterian Church htiii been uphold. Th« arguments for and tutninst the appeal havo bftou tv ico hc+rd. Kiqht days were devoted to it tow in d the close of last Tcir, 'nnd judgment vi;s rewvvvd, l*ut CaiJy thif, year it reappeared on the list for hcfu-mg on account of the dtsKth of Lord tlhond, who vrnu one of tboce btfor« \y-liom Mt wn« fir,H() i argiiixl. Tho Court whs specially constituted nt the second hearmtf, the Wfltiments, which this tiinic Icstcd nino dnyu, being dotivewd before the Lord Chaneollor, Lord Lord 11avc£, Lord James of Hereford, I, otd A I writ on o (tlir Lord Chief JuM ico), Lord Bobeitwn, Jind Lord Lindley. Tho cminsel wore: — For tho appellants: Mr. H. Johnnlon, X.C. .Mr. Sa'.vosen, X.C, nnd Mr J. R. CJirinic ; for tho respondents, The Dean of Faculty (Mr Aslxi", X.0.), Mr. R. H. Haldnno. X.C, Mr. C. J. Guthric, X C, and Mr. R. L. On. THE JUDGMENT. The judgment given, however, did not settle any. of th«»« metaphysical problems mi-sod, but simply determined tie secular merits of the mow important pioblom which 'fejs presented it-self in Scottish eccleaia»tica.l history. The Lord Chancellor sa,id the appellants complained of a breach of trust, tho trust being for tho benefit of the Free Church of Scotland, and tho breach of trust alleged being tho we of certain property held for behoof of tho Freo Church for another and a different body — namely, the United Freo Church. There could be no doubt in his opinion of the purpose of the trust. It whs for the maintenance and support of tho Free Ohurch of Scotland. Equally the question what was the Free Church of Scotland in 1843 could hardly admit of doubt. Neither could there- be any doubt of the principles and faith of those who came out of the Churoh of Scotland and described tieinee'.ves as Froe Church. Their name Was significant. They claimed to bo still the Church of Scotland, but freed from interference of the Stato in matters spiritual. It was to the persons thus describing themselves that the funds in dispute were given, and until the union of 1900 no difficulty was heard of as arising in administration of the trust. As the identity' of the now body with the Fr«o Church was now disputed, it became necessary to consider what constituted the idontity of the original body. Speaking generally, one would say that the identity of a religious community described as a Church must consist in the unity of its doctrines. If that were so there was no laok of material from which to deduce the identity of the Free Ohurch of Scotland. Its founders left their claim, declaration, and protest to stand for all time as a clear exposition both of their reasons for leaving tho Churoh of Scotland and as a profession of their faith as the true Churoh of Scotland, though separated from tho Establishment. In the controversy whioh had arison a court of law had nothing to do -with the soundness or imsoundness of a particular doctrine. Tho Court had simply to determine the original purpose of tho trust. He did not think their Lordships had any right to speculate as to what was or wns not important in the views held. Tho question -was, what, in fact, those views wore, and what tho founders of the trust thought important. Having quoted various authorities, ,tho Lord Chancellor said the conclusion was that no question of a majority of persons could affect tho question ; tho original purpose of the trust must be the guide. In these circumstances the question in dispute seemed to be reduced to an examination of the evidence as to what was tho difference between tho majority and the minority, if any, and if their difference did or did not accord with, the original purposes of tho trust. Upon the question whether the Establishment principle formed one of tho essential principles of the Freo Church, ho could not doubt that thero was an overwhelming body of evidence in favour of the appellants ; indeed, throe of the learned Judges had stated in express terms that originally the Free Church did profess the Establishment principle, {hough they

did not think that those who now represented the Church were bound by the original opinion. Ho was unable to understand by what test he could ascertain what tho donor of a fund had made essential to his gift, unless it was by what he had said or written, and when ho found that tho Free Church invited support by the circulation of Dr. Chalmers's address, what could ho say but that that divino expressed the views of the Church he represented. He found conclusive evidence that, originally, at all events, tho views of the founders of the trust wero in favour of tho Establishment principle. The Frc» Church asserted tho right and the duty to maintain and sup« port the establishment of religion, wliilo the United Presbyterian Church asserted that Christ's ordinance excluded State aid. Each of them, therefore, treated the question as one of roligious belief and obligation, and not as one from which religious duty might be oxohidcd. The Lord Chancellor then dealt with the second question in debate, the difference! between theiwo bodies as to the Calvinistic and Arminian doctrino of predestination. Looking to the history of the particular dispute whioh was now brought into debate, it could not be said that the language of the Confession ' of Faith* was lightly drawn up or arrived at without long deliberation. After reviewing tho ■history of the predestination controversy, tho Lord Chancellor said he was Jed to the conclusion that upon this second question the appellants were entitled to succeed. He did not suppose that anybody would dispute the right of any man or any collection of men to change their religious principles according to their own consciences, but when men subscribed money foe' a particular object, and left it behind them for the promotion of that object, their successors had no right to change tho object endowed ,He was not able to concur in the inference that the Barrier Act suggested a license to change. It appeared to him that there was nothing in calling an associate body a Church that exempted it from the legal obligation of insulins that money given for one purpose should not be devpted to another. Any other view -would be fatal to the existence of every Nonconformist body throughout the country, but- there was another and- further pround upon which ho thought tbe appellants wero entitled to succeed, Rnd tbnt was the socalled union was not really a union of 'religious belief at nil. After most careful e-lcaminaHon of tho various documents submitted, ho could not trncc the least evidence of either of tho two Churches having abandoned their original views. Tt was not the case of two associated bodies of Christians in complete harmony as to their doctrino agreeing* to share their ftimds, but two bodies each agreeing to keop their separate roligious views where they differed and ncroeing to mnko their formularies so elastio as to permit rho«o who accepted them to do so according as their respective consciences would admit. It bocamo. but a colournblo union, mid no trust, fund devoted to one form ot faith could be enured by another communion simply bccauM they said in effect that- there were some parts of this or that profession which thoy would ajjreo not to di.»c\iFiS. For al! thesr reasons ho tlmujrht the judgment of Hie Court below shou'd bo revroed, and he moved accordingly. Lord Mncnnjrhten spid he wos unable to ncree with tho Lord Chancellor's- conclusions, nlthoiich he did not differ as to the Inw applicable to the case. Every ono of their lordships must feel the consequpnoes of thoir decision would be, for good or evil, far-reaching and of momentous importance. The conseqnonoes would bo graver, and, ho thought, more serious, thnn the consequences of any decision in which it had been his lot to toko part. Nevertheless, the question at issue wns of n very ordinary description. Tho complaint was that funds contributed to and set apart for one purpose hnd beon diverted to another and a different purpose. Such questions wero of everyday occurrence, and- the problem in ench case must be s&lved by the ordinary commonplace enquiry: What was tho' purpose for which the funds in dispute were collected T What, in fact, was the original tru«t? Months before the disruption in . 1843 actually took place the leaders of the FiVangelirol party, with Dr. Chalmers at its head, set* about collecting funds for the needs of the Church. When the disruption took place, and appeals vrern msdo to every parish and every nook and corner of Scotland — calling upon the people to stand by the Churoh of their fqr«f«rhers, denouncing tho tyranny of the State, describing in narrowing terms bhe sufferings of ministers, old nnd young, driven from their homes with their, wives and children, and forced to seok shelter in shed and hovel, when they faithfully ministered to thtir flocks, and some of them were actually dying of want and exposure — money cauio m abundantly. The fund wns collected for the needs of the Free Church of Scotland — the Church severed from the State. Supporting the character which _ thoy had assumed, rightly or wrongly, thoy must be taken, he thought, to have all the powers of a national church. Tie could not conceive of a national church, untrammelled by connection with tho State, which did not at least possess the power of revising and amending, the formula of subscription. His point was that the -Free Church never mode the Establishment principle an article of faith. As timo went on, and the splendid voluntarism of the Free Church, on a basis and on a scalo never before understood or attempted, placed the Froe Church on a level with the Established Church ut homo and in a position certainly nob inferior as regards missionary labours abroad, the natural tendenoy ever among thoso who wore disposed to regard tho Establishment principle as a sacred principlo (if any such there wero/ must nave been in the direction of the conclusion that tho Church of Scotland, whether established or freo, could exist not only without any establishment, but even without the protcssion of tho Establishment principle. With the utmost deforence to the majority from M-hom ho had tho misfortune to differ, ho thought this question about the Establishment a very small question indeed. He did not agree with tho learned counsel that tho United Freo Church was a changeling, a creation of a composite nature, with a double face and ,two voices. Though the name was slightly altered, he thought the Freo Churoh had preserved her identity. He thought she was entitled to n« much respect—he had almost said as much veneration — «s when she went forth, casting oft for conscience sake the fetters and tho bondages of State connections. . He did not think she had forfeited any rights by receiving into her bosom a reformed and Presbyterian Church, one with her in faith, in baptism, and all essential points of doctrine. For his part, he should long hesitate before he gave his voice to a decision which should direct her to subordinate the Scriptures to tho Confeision of Faith. If the Church had powor to relax the stringency of tho formula required from hfer ministers and office boarers, thnt was all that was required. That she had that power he had no doubt. If these formmla owed their force and efficiency in the Established Church to Acts of Parliament, tho Free Church had rejected the ordinances of man and the authority of Parliament, and was free to regulate her own formula. Ho therefore cdncurrcd with the, opinions delivered in the Court I below. ' Lord Davey, in concurring with the

Lord Chancellor that the appeal should be sustained, held that the Establishment principle was part of the body of doctrino which the Freo Church took with them out of the Established Church, and ho did not think ifc had been shown thut there was an inherent power of legislation in the Church, for he could not absent to the proposition that the United Free Ciinrch merged its identity in aud was the legitimate successor of the Free Church. Lord James of Hereford also concurred with the Lord Chancellor. He held that tho Free Church had not accepted voluntarism, and that the two bodies might unite and agrco to differ, but tho faeb of their doing so showed that th& Free Church had lost Ho identity. He was aware that their lordships' duty was only to give judgment upon the strict issues raised, bufc even at the risk of exceeding his duty ho expressed the sincero hope that some way would bo found to avoid the capture by either litigants of any spoil* of war, and that hope was confident because the primary object of those who had united, and those who had dissented, had been to promote the interests of the Church, and that equally now would it be their care that the Church as a whole and the individual members of it should in no degree suffer from the events with which the House had had to deal. Lord Robortson agreed with the Lord Chancellor, while Lord Lindley concurred with Lord Macnaghten in support of tlie judgment of tho Court below. Lord Alverstone agreed with the Lord Chancellor that the appeal should be sustained. WHAT THE SCOTSMAN SAYS. Commenting on tho case, the Scotsman says:— "The union with the United Presbyterian Church had no more connection with spiritual matters than had the- union between Great Britain and Ireland. -It was a business arrangement. It was an evil business arrangement -on the face of it, and it is now declared to have been an illegal business arrangement. To few men other than those on the Free Church side >vh« carried out the union would it have occurred to justify breach of trust by spiritual independence, or, rather, to seelc to evade by such a plea tho consequences of committing a breach of trust. That plea was used. It simply meant that men who act unjustly in a civil rtrust are to escape the logal consequences because they do it with professions of religion in their mouths. Happily the House of Lords has refused to givo sanction to such a plea. The question for decision was purely civil, and it has been decided as a civil question. It is too soon to ' ask what thoso who have been successful in tho litigation will do with their victory. They will be ili-adyiscd if they imiUite the bad example* set them after the , union by wrongdoers. They can afford to be generous in t!k-h hour of triumph. It may be that their victory will bring nearer that reconstruction of tlio churches in Scotland for which so many ;.>ood men have expressed an ardent deeire."