Scottish Court of Session Decisions

The previous procedure in connection with this case will be found reported ante, November 29, 1877, 15 Scot. Law Rep. 163. The case now brought before the Court was the action of declarator there narrated. The facts are there, and in the opinions narrated below, set forth sufficiently for the purpose of the report.

The pursuers pleaded, inter alia—“(1) The pursuers are entitled to decree, in respect that by their adherence to and maintenance of the constitution and fundamental principles and doctrines of the Reformed Presbyterian Church, as the same existed at the date of Mr Ferguson's codicil and of his death, they fulfil the designation contained in the said codicil. (2) The majority of the Synod of 1863, to whose principles the individual defenders and others adhere, having by their actings in 1863 and subsequently, and at all events by their union with the Free Church of Scotland in 1876, departed from the distinctive position and principles of the Reformed Presbyterian Church, they have not been since 1863, nor are they now, entitled to the name of the Reformed Presbyterian Church, or to any of the principles or advantages belonging thereto or connected therewith; and in particular they are not entitled to participate as such Church in any of the privileges and benefits of Mr Ferguson's trust.”

The Ferguson Bequest trustees pleaded, inter alia—“(1) The pursuers have no title to sue. (2) The claim of the pursuers is barred by personal exception, and is contrary to public law, and founded on pactum illicitum. (5) On a sound construction of the codicil libelled there is thereby conferred on the trustees of the Ferguson Bequest Fund the power of determining what particular churches, schools, ministers, missionaries, teachers, or libraries should be aided by grants from the fund, providing only that such objects of aid are connected, as pointed out in the codicil, with one or other of the churches or classes of congregations designated in the codicil. (7) The pursuers having no connection with the Reformed Presbyterian Church designated in the Ferguson Bequest Fund Act 1869, they are by the terms of the said Act excluded from all interest in the Ferguson Bequest Fund. (8) The pursuers are not entitled to decree, in respect that they do not constitute or represent the Reformed Presbyterian Church as constituted and existing in and prior to the year 1863.”

The majority pleaded, inter alia—“(1) No title to sue. (2) The claim of the pursuers is barred by personal exception, and is contrary to public law, and founded on pactum illicitum. (3) Mora and acquiescence. (4) The pursuers having no connection with the Reformed Presbyterian Church designated in the Ferguson Bequest Act 1869, they are by the terms of that Act and by the codicil interpreted thereby excluded from all interest in the Ferguson Bequest Fund. (6) The pursuers, having cut themselves off from the Reformed Presbyterian Church in 1863, have no interest in its relations to the Ferguson Bequest Fund, and have no right or title to found on its ecclesiastical proceedings of 1876. (7) The resolution of the Reformed Presbyterian Synod of 1863 being not a change of principle, much less a change of fundamental principle, but merely a regulation as to the administration of discipline in certain classes of cases, it formed no sufficient ground for the minority seceding from the body and calling themselves by its name. (13) The Ferguson Bequest Fund ought to make grants from the fund to the Reformed Presbyterian Church, which in 1876 formed an ecclesiastical union with the Free Church, in respect—1. That the objects of the testator's bounty were individual congregations, schools, &c., that the designations used by him were not used for the purpose of favouring political or theological tenets peculiar to one section of Scotch Presbyterians, but for the purpose of designating certain existing classes of Presbyterian and Independent congregations so as the better to distribute his bounty, and that the said united Reformed Presbyterian Church still represents one of these classes. 2. That it was not the testator's intention that any of the churches or classes of congregations favoured in his codicil should be deprived of the benefits of his bequests on account of union with one or more of the other churches so favoured. (14) The said Church and its congregations having, after the union as before, a separate and recognisable existence, the Ferguson Bequest Fund can have no difficulty in exercising the discretion vested in it as to payments, or in appointing a trustee in secession from the membership of the said congregations.”

The Lord Ordinary ( Curriehill) in this action assoilzied the defenders, i.e., the trustees and the majority of the Reformed Presbyterian Church, appending to his judgment this note:—

‘ Note.—… At the date both of Mr Ferguson's settlement (13th May 1853) and of his death (8th January 1856) there existed a body of Christians in Scotland known as the Reformed Presbyterian Church, composed of about fifty or sixty congregations, distributed among several presbyteries, and united in one synod, called the Synod of the Reformed Presbyterian Church in or of Scotland. In 1863, some years after Mr Ferguson's death, in consequence of a resolution passed by the majority of the body at a meeting of Synod, the minority, consisting of about six or eight congregations, protested that the majority had abandoned the principles of their Church, and they withdrew from the majority, and have ever since, with some addition to their number, called themselves the Synod of the Reformed Presbyterian Church of Scotland. The majority, however, likewise continued to design themselves by the same appellation, and they also received certain additions to their number; but in 1876 they formed a union with another body of Christians designing themselves ‘The Free

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Church of Scotland,’ and the united body is now known simply as the Free Church of Scotland, although by the Act of Union the foresaid uniting ‘majority’ retain their corporate designation of the ‘Reformed Presbyterian Church of Scotland quoad civilia.’ Ever since the separation in 1863 the Ferguson Bequest Fund trustees, including Mr Reid (the trustee amongst the body who, in terms of the testator's directions, was the one representative of the Reformed Presbyterian Church), who adhered to the ‘majority,’ have declined to recognise any of the congregations or ministers of the minority as belonging to the Reformed Presbyterian Church, and they have excluded them from all participation in the benefits of the fund. They have, however, regularly distributed a portion of the income of the fund among the ministers and churches of the majority ever since the union with the Free Church.

The present action has been raised by the said ‘minority,’ designing themselves the Reformed Presbyterian Church of Scotland and Synod thereof, against the ‘Ferguson Bequest Fund,’ against the said Thomas Binnie, as acting or claiming to act as a trustee under said fund, and against the said ‘majority’ which has formed the foresaid union with the Free Church. The conclusions are—(1) For declarator that the Church or Association, or body of Christians, of which the individual pursuers are the accepting members of committee and representatives, is the Reformed Presbyterian Church of Scotland, and that the individual defenders either never were, or have ceased to be, ministers, elders, or members thereof, and have no right or title to participate in any of the ecclesiastical rights or privileges, or in any of the property belonging to said church; (2) For declarator that the term ‘The Reformed Presbyterian Church,’ or ‘The Reformed Presbyterian Church in Scotland,’ contained in Mr Ferguson's settlement, is applicable to and designative of the pursuers, and that they are entitled to have one of their members in full communion with them nominated, assumed, and appointed to the place and office of a trustee of the Ferguson Bequest Fund; (3) To have the ‘Ferguson Bequest Fund’ ordained forthwith to nominate, assume, and appoint to said office a person in full communion with the pursuers; and (4) For declarator that the Church of the pursuers, being the Reformed Presbyterian Church of Scotland, and the churches, schools, ministers, missionaries, &c., of that body are entitled to participate in the application, appropriation, and benefits of said fund or annual income thereof, along with the other five churches mentioned in the settlement, and that to the exclusion of the individual defenders, ‘in so far as they may claim or pretend any right thereto founded on their alleged connection or identity with the Reformed Presbyterian Church of Scotland, all in terms of the said codicil, but subject always to the option and discretion of the quorum of the trustees as to the proportions of the said fund or income to be applied to the several objects therein mentioned.’

It is not disputed that the minority of the Synod who separated from the majority in 1863, and who are now represented by the pursuers, did then adhere, and have ever since adhered, to the testimonies and fundamental principles of the body which up to that time had been known as the Reformed Presbyterian Church; and the first question raised by the summons is, Whether the majority then abandoned these fundamental principles, or any of them? The second question raised is, Whether, assuming the first question to be answered in the affirmative, the Act of 1869 has, notwithstanding such abandonment by the majority, recognised that section as the Reformed Presbyterian Church? And the third question is, Whether, assuming the second question to be also answered in the affirmative, the union of the majority with the Free Church in 1876 has deprived that majority of its title to be called the Reformed Presbyterian Church, to the effect of entitling the pursuers to be now regarded as the Reformed Presbyterian Church in terms of Mr Ferguson's settlement? Various other subordinate questions arise, which shall be noticed in the sequel.

In dealing with questions such as the first and third now stated, the Court will not inquire into the principles maintained or professed by either party for the purpose of deciding whether they are doctrinally sound or correct. All that the Court will do is to ascertain as matters of fact which of the contending parties adheres to the fundamental principles held by the Church or Association while it remained undivided. But if, in course of such inquiry, it shall appear that the principles held by either party are opposed to public policy, or contra bonos mores, it is the duty of the Court to refuse its aid to vindicate any patrimonial rights which are claimed by such party in respect of adherence to such unlawful principles. And if the principles of both parties are equally unlawful, the maxim ‘ in turpi causa melior est conditio possidentis’ will apply. In the present case the defenders maintain that the principles which the majority abandoned in 1863—in vindication of which the minority then withdrew from their brethern—and which the pursuers now adhere to and assert as their distinctive fundamental principles, are of that unlawful character, and they plead ‘ pactum illicitum’ as a ground for absolvitor from the whole conclusions of the action. As I am inclined to be of opinion that this plea is well founded in fact, I might perhaps have disposed of the case by simply stating the circumstances attending the separation in 1863, and the grounds assigned by the pursuers for that separation. But as a different view of the plea may be taken elsewhere, I shall, as requested by the parties, state as shortly as I can—though I fear I cannot do so very shortly—the views which have occurred to me, not only on this but on the other important questions which have been raised for decision. For this purpose it is necessary to trace the history of the ‘Reformed Presbyterian Church’ from its commencement till the year 1863.

The Roman Catholic religion was abolished in Scotland in 1560. The First and Second Books of Discipline, defining the form of government of the Church of Scotland by presbyteries, were framed in 1578. In 1580 and 1581 the National Covenant, directed chiefly against Popery, was subscribed and sworn to by the king and the people; the Acts in favour of the Church of Scotland were renewed and confirmed by the Act 1592, c. 116; and thus what is called the First Reformation was effected. It ended when prelacy was imposed on Scotland by King James VI.; but in 1638 the General Assembly at Glasgow

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abjured Episcopacy, re-enacted the Second Book of Discipline, and renewed the National Covenant. Then commenced the Second Reformation. The National Covenant was subscribed by the people in 1639; and the proceedings of the Assembly of 1638 were ratified by the King and Parliament in 1640 and 1641. In 1643 and 1644 the Solemn League and Covenant was subscribed by the nation, and by King Charles II. in 1650; and in 1645 and in the following years the Westminster Standards and Confession of Faith were approved of and adopted. The Solemn League and Covenant is directed chiefly against prelacy, and binds its adherents to endeavour to bring about ‘Conjunction and uniformity in religion, confession of faith, form of Church government, and directory for worship and catechizing’ in the Churches ‘in the three kingdoms,’ and to endeavour the ‘extirpation’ of prelacy, and to endeavour to discover and bring to ‘public trial’ and ‘condign punishment’ all parties ‘hindering’ the Reformation. As the First Reformation was from Popery, so the Second Reformation was from prelacy; and the latter ended when, on the Restoration, Episcopacy was reimposed on Scotland. In 1661 an Act was passed annulling all the Acts of previous Parliaments favourable to the Church since 1633. The Revolution Settlement in 1689–1690, by which Presbyterianism was re-established in Scotland, proceeded on the basis of the Act of 1592, but did not in several respects restore the Church to the position attained by it during the period of the Second Reformation.

The Revolution Settlement was accepted or acquiesced in by the great body of the people of Scotland, and the Church as thus established became the Church of the nation, although at various times between 1733 and 1843 secessions of greater or less magnitude took place, the last being the secession in 1843 of those members who then formed themselves into the body now known as the Free Church. But from 1660 and afterwards there were several small scattered bodies of persons who, adhering firmly to the principles of the Second Reformation, and especially to the National Covenant and the Solemn League and Covenant, and to the perpetual obligation of these Covenants, refused to accept or in any way recognise the Revolution Settlement, mainly on the ground that it ignored the Covenants and the Second Reformation, and went back to the Act of 1592.

Those persons, who came to be designed in popular language as ‘Cameronians,’ and whose ecclesiastical successors afterwards formed themselves into the Reformed Presbyterian Church, never were members of the Church of Scotland as established at the Revolution. They had during the two previous reigns been continually protesting against the persecutions to which the Church of the Second Reformation was then subjected, and against what they considered the defection of many of its members, who were disposed to hold laxer views than themselves as to the connection between the Church and the State. And when at the Revolution the establishment of the Church was settled and was accepted by the great majority of the nation, the persons referred to, whose scattered communities had been in correspondence with each other, gave expression to their views in a document of great length, entitled—‘An Informatory Vindication of a poor, wasted’ misrepresented remnant of the suffering anti-popish, anti-prelatic, anti-Erastian, true Presbyterian Church of Christ in Scotland united together in a general correspondence. By way of reply to various accusations in letters, informations, and conferences given forth against them.’—[ His Lordship then quoted at length various passages from the Vindication’.]

From these quotations it will be seen that the fundamental principles thus set forth by the ecclesiastical ancestors of the Reformed Presbyterian Church are shortly the following:—(1) the perpetual obligation of the Covenants, National and Solemn League; (2) the sinfulness of the British Constitution, by which prelacy is recognised and established in England, and the sovereign becomes bound to maintain and support prelacy in that part of the kingdom; (3) the unlawfulness of the Parliament of which bishops are a component part; (4) the unlawfulness of taking the oath of allegiance to the sovereign, and of taking any part or share in the British Parliament. I have given these quotations at considerable length, inasmuch as they throw much light upon the latter testimonies of the Reformed Presbyterian Church, to which I shall have occasion afterwards to advert.

The ‘remnant, as these persons design themselves, of the ‘suffering, etc., true Presbyterian Church of Christ in Scotland,’ thus consisted of persons who had never joined the Church of Scotland as established in 1690. They are therefore not seceders from the Church, but dissenters from it—that is to say, they dissented from the basis upon which the Church as well as the State was established. They are very well described in a pamphlet published by authority of the Reformed Presbytery in 1806, entitled—‘A Short Account of the Old Presbyterian Dissenters.’ It is there said—‘The old Presbyterian Dissenters have assumed and received the appellation of dissenters on account of the part which their forefathers acted at the Revolution in 1689, while they openly and candidly dissented from the public deeds of the nation's representatives in both Church and State, considering these deeds as involving a mournful departure from former laudable attainments. The epithet old has ordinarily been prefixed to signify that they are of longer standing, as a distinct body, than any other denomination of Presbyterians who have separated from the Established Church. In some parts of the country, especially in Ireland, they have been called Covenanters, because of their avowed attachment to the National Covenant of Scotland, and the Solemn League and Covenant of the three kingdoms.’ In 1689 all their ministers appear to have deserted them, and to have given in their accession to the judicatories of the Established Church; and the ‘Short Account’ goes on to say:—‘Thus the people who wished closely to adhere to the Reformation attainments were left as sheep without a shepherd. Having long before this time formed themselves into praying societies, they still continue these, and had at particular times a general correspondence of all the societies together, in order to ascertain the state of matters through the body at large, and to cultivate a closer acquaintance with one another. In this very trying and rather singular situation, without any change of sentiment, they stedfastly adhered

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to the very same principles which were openly espoused by and solemnly ratified by the Covenanted Church of Scotland in the times of her purest Reformation, as can be clearly and fully proved from their written deeds and declarations. Thus they remained for about the space of sixteen years, till in 1706 the Rev. John M'Millan, formerly minister of Balmaghie in Galloway, having previous to this left the Established Church, acceded to them and espoused their cause.’ Other accessions were received, and at length Mr M'Millan, and those who held the like principles, ‘formed and constituted a Presbytery in the name of Christ, the alone King and Head of His Church, on the 1st of August 1743, under the title of the Reformed Presbytery.’ That title continued until 1811, when the various Presbyteries which composed the body united themselves into a Synod, which was thenceforward known as the Synod of the Reformed Presbyterian Church in Scotland, and continued to be undivided and bound by a common testimony until 1863. The identity of that body with the ‘suffering remnant’ already described is not and cannot be disputed.

In addition to the Informatory Vindication, and the various Protestations and Declarations from 1689 to 1707 already referred to, the foresaid ‘Remnant’ in the year 1712, at a meeting held at Auchinsaugh, renewed the National Covenant and the Solemn League and Covenant, adding an acknowledgment of sins and engagement to duties, which however it is not material to notice here at length. But in 1761 the Reformed Presbytery prepared and issued a solemn testimony which is described as an ‘Act, Declaration, and Testimony for the whole of our Covenanted Reformation, as attained to and established in Britain and Ireland, particularly between the years 1638 and 1649 inclusive, as also against all the steps of defection from said Reformation, whether in former or later times, since the overthrow of that glorious work down to the present day.’ It is unnecessary to enter into any detailed account of the contents of that Testimony, because it was revised and issued in a new and more convenient shape by the Reformed Presbyterian Church in 1837 and 1839, the doctrinal part of the Testimony having been issued in 1837, and the historical part in 1839. These later testimonies, it is admitted, are substantially identical with the Testimony of 1761, and they must be regarded as the testimonies which from and after 1839 were the testimonies or contract by which the body known as the Reformed Presbyterian Church held its distinctive and peculiar existence, and unquestionably they were the testimonies to which both the majority and minority of the Synod adhered—and by which they were all alike bound—at the date of Mr Ferguson's will and at the date of the separation in 1863. In the historical part of the Testimony the whole history of the body is traced, and it is shown very clearly that the Reformed Presbyterian Church considered itself to be the Church of the Second Reformation, bound by the National Covenant and Solemn League and Covenant, and regarding the obligation of these as perpetual. It is also shown that although the arrival of William Prince of Orange in Great Britain was at first hailed by the ‘Remnant’ with joy, their joy was soon turned into lamentation when they found that by the Revolution Settlement prelacy and the royal supremacy in regard to the Church were to be admitted into the Churches of England and Ireland, and that to a certain extent the State reserved to itself some control over the proceedings even of the Church of Scotland.—[ Here followed quotations from the Testimony, from both the historical and the doctrinal portions of it.]

Such being the general nature of the testimonies recognised and adhered to by the Reformed Presbyterian Church as a body prior to 1863, there is little difficulty in seeing that in addition to the perpetuity of the obligation of the Covenants, National and Solemn League, the doctrine that presbytery was the only divinely instituted form of Church government, and the protests against the Revolution Settlement and the Union, it was a distinctive principle of the Reformed Presbyterian Church that its members should take no part in the administration of the affairs of the country by either entering Parliament themselves or voting for the election of members of Parliament, and that no member should by entering the military or civil service of the Crown voluntarily place himself in such a position as should require him to take the oath of allegiance to the sovereign. The exercise of the elective franchise and the taking the oath of allegiance were declared in the Testimony to be ‘immoral’ acts, which no member could perform without a breach of his Testimony and subjecting himself to the discipline of the Church—certainly to admonition, possibly to suspension or excommunication.

Prior to the legislation in 1833, by which the elective franchise was greatly extended, the question does not seem to have been of much practical importance in the Reformed Presbyterian Church, as comparatively few of its members possessed the franchise. But after 1833 the question became of more importance, and the records of the various kirk-sessions of the body show that in numerous cases discipline was exercised upon members in respect of their having voted at elections. In like manner, the question as to the oath of allegiance did not assume very formidable proportions until in and after the year 1859, when the volunteer movement became general throughout the country; and in several cases discipline appears to have been exercised by sessions upon members who entered the volunteer service and consequently took the oath of allegiance. It is quite evident from the proof that from 1833 to 1863 the great majority of the members, both lay and clerical, of the Reformed Presbyterian Church had come to regard with disfavour the parts of the Testimony which dealt with the oath of allegiance and elective franchise; and in 1862 an overture was sent down to all the presbyteries and sessions, to the effect, inter alia, that taking the oath and the exercise of the elective franchise should no longer be grounds for the infliction of the ecclesiastical penalties of suspension and expulsion from the Church. At the meeting of the Synod in May 1863 it was found that a large majority of the presbyteries and congregations were in favour of the overture in so far as relating to the exercise of discipline, and the Synod, by a majority of 46 to 11, passed a resolution to the effect, that while recommending the members of the ‘Church to abstain from the use of the franchise, and from taking the oath of allegiance, discipline

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to the effect of suspension and expulsion shall cease, and earnestly enjoin upon all under their charge to have respect to this decision, and to follow after the things which make for peace, and things wherewith one may edify another. Thereupon the minority protested against the decision now adopted as the law of the Church by the majority of this Court as opposed to the Word of God and to the testimony of the Church, and unconstitutionally adopted; and seeing that they have thereby abandoned in regard to the matters referred to in that decision the principles of the Reformed Presbyterian Church, clearly set forth in her Testimony, to which we are all solemnly pledged, and have thereby departed from the scriptural position which the Church has occupied for more than 170 years, we do hereby protest and claim for ourselves, and for those adhering to us, to be constitutionally the Synod of the Reformed Presbyterian Church in Scotland — resolved, in the strength of divine grace, to stand by the solemn vows we have made to God and to His Church, retaining the position, holding the principles, and maintaining the testimony of the Reformed Presbyterian Church of Scotland, as witnesses for the crown and covenant of the divine Redeemer; and we do also protest and claim all the powers, rights, and privileges of said Synod, and resolve to meet as a Synod in the Religious Institution Rooms, Glasgow, to-morrow, being Friday, at 11 A.M.; and we do also protest and claim for all the members of our congregations adhering to us all the rights and privileges which do or shall appertain to them or any of them as members and congregations of the Reformed Presbyterian Church of Scotland; and we do accordingly protest for all remedy as accords, and thereupon take instruments in the hands of the clerk, and crave extracts;’ and on the following day the minority made a more formal and material protest.

From the foregoing narrative it is abundantly clear that the only point on which the minority separated from the majority, and which led the minority formally and solemnly to declare that the majority had abandoned the principles of the Reformed Presbyterian Church, was the resolution of the majority to abolish discipline by suspension or expulsion in the case of those members who should take the oath of allegiance or exercise the elective franchise. The minority thus declared in the most solemn manner possible that, according to their interpretation of the Testimony and principles of the Reformed Presbyterian Church, no member could take the oath of allegiance or exercise the elective franchise without forfeiting his right to remain a member of the Church, because either of these acts was an immoral act, the performance of which involved the penalty of suspension or expulsion. Now, it appears to me that if these were truly the principles of the minority, and are the principles now held by the pursuers, who represent the minority, they are of a most dangerous tendency, being opposed to public policy and to the wellbeing of the country. Were the whole, or a large body of the whole, community to adopt and act upon these principles, anarchy would be the result. The sovereign could not obtain soldiers or civil servants for the defence of the country or the administration of its affairs, and one branch of the Legislature would become extinct. Persons who hold these principles may be, and I doubt not are, peace-loving and peaceable subjects; and they may hold these views as individuals without interference on the part of the State. The case is different, however, when such persons become bound, by a solemn contract or Testimony, not only as matter of conscience, but by the sanction of the heavy penalty of expulsion from the body, to abstain from voluntarily entering the service of the sovereign in any capacity, civil or military, and from exercising the privilege of electing members of the Legislature, and when, in respect of that particular part of their contract, they invoke the aid of the Civil Courts for the vindication of civil rights. It appears to me that the principles held by the pursuers are such as to disentitle them to appeal to the Courts of the country for the vindication of civil and patrimonial rights, their sole title to which, as in competition with the defenders, is their adherence to those unlawful principles, and to an illicit pact which the defenders have abandoned. For it must not be overlooked, that in all other respects, and as regards every iota of the Testimony, the views of the majority and of the minority were in 1863, and continued to be at all events until 1876, absolutely identical. I am, therefore, as I have already indicated, inclined to hold that the pursuers have no locus standi in this Court at all, in consequence of the illicit nature of their contract, and that the action ought therefore to be dismissed upon that ground alone.

Nor should I arrive at a different result if it were to be maintained, as I think it was maintained, that the question upon which the majority and minority split in 1863, being merely one of discipline, the Testimony remained a binding contract upon both parties, to the effect of subjecting to the censure of admonition and rebuke any members who should take the oath of allegiance or exercise the electoral franchise. Were such really the case, the principles of both parties would be, in my view, equally objectionable—that is to say, equally opposed to public policy. But as the pursuers have thought it right to separate from the defenders, and as the defenders have for the last fifteen years been, de facto, in the enjoyment of the advantages of the Ferguson Bequest Fund, I should be inclined to say melior est conditio possidentis, and dismiss the action.

If I am right in these views, it is of course unnecessary to add more; but as different views may be taken elsewhere, I shall endeavour to prepare the cause for full and final decision upon all the questions raised, by expressing my opinion upon these also. Assuming, then, that I am wrong in holding that the principles held by the minority, and in the assertion of which they separated from the majority in 1863, were not opposed to public policy, then the question arises, whether the resolution come to by the majority in 1863 to dispense with discipline in the cases mentioned, was or was not an abandonment by them of one of the essential and distinctive peculiarities of the Reformed Presbyterian Church? I am inclined to answer that question in the affirmative; and if the minority had, either in 1863 or within a reasonable time thereafter, raised an action with conclusions like the present, I would have been disposed to hold that the majority had ceased to be the Reformed Presbyterian Church; and in that view the minority might,

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with much force, have contended that they were entitled to participate in the benefits of the Ferguson Bequest Fund, and to have one of their members appointed a trustee of the fund, to the exclusion of the defenders. It appears to me that dispensing with the punishment of suspension or expulsion for a breach of the Testimony is virtually eliminating from the Testimony the prohibition of those acts which had previously been held to be a breach of the Testimony. This might, as I have said, have given the minority a title to challenge the right of the majority to participate in the benefits of the fund; but the minority did not adopt that course. They applied, it is true, more than once to the trustees of the fund to be recognised as the Reformed Presbyterian Church, but although their applications were invariably refused, they took no steps to vindicate their claim under Mr Ferguson's will. And it was decided in the case of Cairncross v. Meek, 28th May 1858, 20 D. 995, that, in cases like the present, parties in the position of the present pursuers are, by their failure to take proceedings debito tempore, barred from insisting in an action for the assertion of their alleged legal rights. But, further, when the private Act of Parliament was applied for by Mr Ferguson's trustees in 1869, the bill was remitted to two of the Judges of the Court of Session for inquiry, and it was open to the minority to have attended that inquiry and stated their objections to the majority being recognised as the Reformed Presbyterian Church. But they made no appearance, and took no steps to oppose the passing of the Act, although it expressly declared Mr James Reid, who belonged to the majority, to be a trustee, as being a member of the Reformed Presbyterian Church in Scotland. Now, two things are certain—First, That during the year 1869, while this Act was passing through Parliament, there existed in Scotland two bodies or associations of Christians, each designing itself the Reformed Presbyterian Church in Scotland, one being the Church of the minority, the other of the majority; and, Second, That Mr Reid, who was declared by the Act to be a trustee, as being a member of the Reformed Presbyterian Church, did not belong to the body now represented by the pursuers, but to the Church of the majority. I think, therefore, that from and after the passing of that Act it was impossible for the incorporated Ferguson Bequest Fund to recognise as the Reformed Presbyterian Church in Scotland any Church or association other than that of which Mr Reid was a member. Accordingly they continued, in distributing the trust funds, to ignore the pursuers' Church, and to allot a proportion of the income to the Church of the majority. So also, on Mr Reid's death in 1871, the trustees elected and assumed as his successor the defender Thomas Binnie, also a member of the Church of the majority, and in doing so they simply obeyed the enactment of the 7th section of the statute, which provides, in terms of one of the directions of Mr Ferguson's settlement, that the trustee to be elected and assumed, in the case of a vacancy arising in consequence of any trustee ceasing to act by death or otherwise, shall ‘be a member of the Church of which the trustee so ceasing to act was a member.’ Mr Binnie was a member of the Church to which Mr Reid belonged at the dates both of the Act and of his death, i.e., the Church of the defenders, and it would have been ultra vires of the trustees to elect as the successor of Mr Reid a member of the Church to which the pursuers belong. These considerations, if I am right in the views now expressed, appear to me to go far to dispose of the whole case. And but for the union of the majority with the Free Church in 1876, I should have thought the case quite clear, and that the pursuers were excluded from insisting in their present claim not only by their delay in asserting their alleged rights but by the Act of Parliament passed in 1869.

A difficulty, however, does arise in consequence of the union of the majority with the Free Church in 1876, and it was in view of that difficulty, and for the purpose of comparing the fundamental principles of the two Churches, that I considered it necessary in the early part of this note to state in detail the leading principles on which the Reformed Presbyterian Church was founded, and on which, apart altogether from the questions as to the oath of allegiance and exercise of the franchise, that body while undivided, and both the majority and minority after 1863, have all along taken their stand. These are, as I have already more than once pointed out, their claims to be the Church of the Second Reformation, their insisting in the perpetual obligation of the Covenants, National and Solemn League, their assertion of the divine right of presbytery—meaning thereby that it is the only form of church government which is agreeable to the Word of God—and their protest against the Revolution Settlement and the civil and ecclesiastical establishments which were thereby settled, and against the Union of the kingdoms. Now, the body of Christians known as the Free Church does not adopt these fundamental principles. I am fortunately saved the necessity of entering into any detail in this branch of the case, because the whole question as to the distinctive principles of the Free Church formed the subject of anxious consideration and deliberate judgment in the case of Couper v. Burn, December 2, 1859, 22 D. 120. The question there arose in consequence of the union in 1852 of the body of dissenters called the ‘United Associate Synod of Original Seceders’ with the Free Church. A minority of that synod refused to accede to the union, and in one of the congregations which did accede a minority was opposed to the union, and brought an action against the clergyman and majority of the congregation in order to vindicate their right to the chapel. In that case it was held that as the property of the chapel had been vested in trustees for the associate congregation of Thurso in connection with the said Associate Synod the majority of the congregation were not entitled to retain the property as in connection with the Free Church, and that the minority were entitled to the property in respect of their adherence to the original principles of their body—the ground of judgment being that the fundamental principles of the two churches were essentially different. In that case Lord Wood, who delivered the judgment of the Court, in a long and elaborate and carefully-prepared opinion traced the history of the two bodies, and arrived at the result that the majority of the Associate Synod by uniting with the Free Church had abandoned their distinctive principles. It is enough to state shortly that three most important fundamental principles of the Original Seceders were — (1) Their resting

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upon the National Covenant and the Solemn League and Covenant; (2) the divine right of presbytery, as being the only form of church government which has the divine sanction; and (3) the unequivocal assertion that the Associate Synod stood on the ground of the Second Reformation, as preceded by the National Covenant, and followed by the Solemn League and Covenant, and that it protested against and condemned the Revolution Settlement and the Union; whereas the authoritative Standards of the Free Church treated all these matters in an entirely different point of view. The Court then had before them the same authoritative Standards of the Free Church which have been produced and founded upon in the present case as these are specified in a claim of right made before the secession took place in 1843, and the Act and Declaration of the General Assembly of the Free Church in 1851, and they came to be clearly of opinion that on all the points mentioned, viz., the perpetual and descending obligation of the Covenants, the claim to be the Church of the Second Reformation, the divine right of presbytery, and the Revolution Settlement and the Union, the Free Church held entirely different views. The Free Church does not make it an article of her testimony that the obligation of the Covenants is perpetual and descending; while maintaining that the Presbyterian form of church government is agreeable to the Word of God, it does not maintain that it is the only form sanctioned by Scripture; it does not maintain that it is the Church of the Second Reformation; and although regarding the Revolution Settlement as not in all respects satisfactory, it appeals to that Settlement and to the Treaty of Union as the grand bulwarks and securities of the Presbyterian Church in Scotland. And it will not do for the defenders to say that in the present case there has been a full proof, whereas the judgment in the case of Couper v. Burn was pronounced without any proof as to what were the authoritative Standards of the Free Church. I do not think that a single document of the slightest importance has been proved to be an authoritative Standard of the Free Church which was not before the Court and fully and anxiously considered in the case of Couper v. Burn. I lay out of view the verbal expositions of some of these Standards given by some of the witnesses, eminent as these gentlemen are in the Church of which they are members. It is for the Court to interpret the documents, and I should have considered myself bound to adopt the interpretation put upon them by the Second Division in the case of Couper v. Burn even if I had felt (as I do not feel) any doubt as to the soundness of that interpretation. If, then, in that case, dealing with the Associate Synod of Original Seceders, whose doctrines as to the Covenant, the divine right of presbytery, the Second Reformation, the Revolution Settlement, and the Treaty of Union, were certainly not more distinctly laid down than the corresponding doctrines of the Reformed Presbyterian Church — with which indeed they are substantially identical — the Court had no difficulty in holding that the corresponding doctrines of the Free Church on these points were so materially different that by uniting and merging themselves in the latter body the Associate Synod abandoned their own distinctive principles, it is impossible for me in the present case to hold that the Reformed Presbyterian Church by uniting with the Free Church did not virtually abandon their distinctive fundamental principles. I am not moved by the fact that in order to retain their patrimonial rights in their churches the majority when they united with the Free Church retained their corporate name of the Reformed Presbyterian Synod quoad civilia, because I think that a minority of any one of these congregations could have debito tempore vindicated the property of such congregation from the majority uniting with the Free Church.

But although these are my views as to the essential dissimilarity of the fundamental principles of the Reformed Presbyterian Church and of the Free Church, and although I think that the majority of the Reformed Presbyterian Church must be held to have abandoned all their distinctive fundamental principles by uniting with the Free Church, it does not follow that the pursuers are now entitled to prevail in their demand to be recognised by the Ferguson Bequest Fund as the Reformed Presbyterian Church in Scotland. If indeed the union had been formed immediately after the separation of 1863, and before the Act of Parliament of 1869 had been passed, I should have been inclined to give much weight to the claim of the minority. But it appears to me that by their own delay, and by the operation of the Act of 1869, they have lost all right which they may at one time have had to claim the character of the Reformed Presbyterian Church in Scotland within the sense and meaning of Mr Ferguson's will. I think that at all events from and after 1869, and therefore in 1876 when the union took place, the church of the pursuers was not within the sense and meaning of Mr Ferguson's will the Reformed Presbyterian Church in Scotland—that character being held exclusively by the church of the defenders, the majority. Now, did the events of 1876 confer upon the pursuers a character which, prior to that date, they did not possess? I think not. I think it is impossible to hold that by uniting with the Free Church that section of the original Reformed Presbyterian Church, which had been recognised by the Act of Parliament as being the Reformed Presbyterian Church entitled to the benefits of the fund, not only deprived themselves of their right to participate in the benefits of the fund, but opened the door for participation to a body which up to that time had not right to participate. Then, again, let it be assumed that the church of the majority by uniting with the Free Church ceased to be the Reformed Presbyterian Church in Scotland, and that Mr Binnie having ceased to be a member of that Church thereby also ceased to be a trustee. From what body is the vacancy thereby created to be supplied? The Act of Parliament says that it shall be supplied only by electing a member of the Church of which the trustee so ceasing to act was a member. Now, the trustees could not by electing one of the members of the pursuers' Church make a legal appointment of a trustee under the Act of Parliament, because Mr Binnie did not belong to the pursuers' Church. It may be that the Ferguson Bequest Fund may find some difficulty on the death or resignation of Mr Binnie in supplying his place, and I can readily conceive that questions may be raised even at an earlier date either by the other trustees or by the other Churches entitled to participate in the benefit of

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the fund as to the legality of Mr Binnie continuing to act as a trustee. But no such questions are now before me, and upon none of them do I express any opinion. The pursuers, however, do not appear to me to be in titulo to raise any such question.

On the whole matter, therefore, I have come to be of opinion that the defenders are entitled to be assoilzied from the whole conclusions of the action, not merely on the grounds that the fundamental principles maintained by the pursuers are so opposed to public policy as to disentitle them to invoke the aid of the Court to vindicate a patrimonial claim which they could not make without asserting these principles as being at the foundation of their contract, but because they, from and after 1863, or at all events from and after 1869, ceased to be the Reformed Presbyterian Church in Scotland within the sense and meaning of Mr Ferguson's will. And although in arriving at this conclusion I have, as it will be seen, been much influenced by the mora of the pursuers and the terms of the Act of Parliament, I cannot help thinking that the judgment is one of which Mr Ferguson himself would have approved had he been now in life. I think a consideration of the whole tenor of his will shows that by selecting as the objects of his liberality not only certain churches in connection with the Established Church, but other four Churches which comprised the great bulk of the Protestant dissenters in Scotland, Mr Ferguson did not mean to encourage sectarianism or disunion or proselytising, or to assist one or more of these bodies in propagating their own distinctive doctrines, but that he meant to encourage and assist those five religious bodies in improving the condition of his fellow-countrymen. I think he did not mean to discourage union between two or more of the bodies whom he favoured. On the contrary, I think that the catholicity of spirit which prompted his bequest would have been gratified by such union. He may not have thought such a union probable, or even possible; but I do think that he would have cordially approved of the union which took place in 1876 between the Free Church and the great majority of the Reformed Presbyterian Church (a movement with that object in view having begun long before he died), and that he would not have approved of the small minority of 1863 asserting for themselves the right to have one of their own body nominated as a trustee, and to participate in the benefits of the fund, to the exclusion of the majority, whose doctrinal tenets remained substantially unaltered. In conclusion, I have only to say, that although I hold the opinion that if the present had been a question like that in Couper v. Burn, raised debito tempore between the minority and majority of a congregation of which the majority had joined the Free Church, I should have held that the minority were entitled to vindicate the property of their chapel as a place of worship in connection with the Reformed Presbyterian Church. The present case does not really belong to that class of cases at all. We are not here dealing with the patrimonial rights of a congregation, where the title to the property expressly bears to be for behoof of a congregation in connection with a specified religious association. We are dealing with a bequest which is vested in trustees for behoof of five classes of beneficiaries, all of which were at the date of the bequest separate religious associations. The true question therefore is, what was the intention of the truster? Did he intend that as long as there remained one Reformed Presbyterian congregation in Scotland, that congregation should receive all the benefits and be entitled to exercise all the rights which were competent to the large body of which that class was composed at the date of the will and at the death of the testator? I think not. It rather appears to me, as indeed I have already indicated, that the intention of the testator was that, in the event of a split taking place in any one of these bodies, the majority of the body, and not the minority, should continue to be the beneficiaries, especially where the majority was very large and united with another of the classes which he designed to benefit. The result of my opinion on the whole case is that the defenders should be assoilzied, with expenses.”

The pursuers reclaimed, and consideration of the petition proceedings reported ante, vol. xv. p. 163, was resumed. As to the materiality of the difference between them, the Court, they maintained, was not entitled to inquire if they themselves were satisfied on this point. The authorities relied on were Couper v. Burn, 2d Dec. 1859, 22 D. 120, and cases referred to there. [ Lord President—I may remark that Lord Wood's judgment in that case was very carefully considered in consultation by the Second Division.] Cairncross v. Meek, 28th May 1858, 20 D. 995, H. of L. 3 Macq. 827.

On the question of pactum illicitum, the trustees argued that the fundamental principle of the Church was to protest against the present form of government and the constitution of the country.

The majority maintained that having regard to the changes that had from time to time taken place in the doctrines of the Church, they did not in 1863 do anything to forfeit their right to be considered the Reformed Presbyterian Church, and that the minority should have followed their decision.

The argument as to the legal bearing of the union with the Free Church in 1876 upon the case was not required by the Court.

At advising—