Scottish Court of Session Decisions

The late Rev. John Spence, minister of Kinnaird, Perthshire, by his trust-disposition and settlement directed his trustees to hold the residue of the trust-estate “for the purpose of providing as many bursaries as the fund will support to promote the education at the Universities of St Andrews and Edinburgh of such deserving students as shall be preferred and selected by my trustees, each of the said bursaries not to be less in amount than £50 per annum, and my trustees having full power in exceptional cases, as to which they shall be the judges, to increase the bursary to a greater amount than the foresaid annual sum, and I authorise and empower my trustees to form such rules as they shall deem requisite to carry out the object I have in view, and to vary and alter such rules and regulations as they shall deem circumstances require.”

In 1888 a scheme was approved under the Educational Endowment (Scotland) Act 1882 for the administration of the endowment, and a governing body was duly incorporated.

The residue of the trust-estate amounted to nearly £13,000, and the income arising from it was applied by Mr Spence's trustees for the purposes of the bequest till the endowment passed into the hands of the governing body appointed under the scheme.

By article 24 of the scheme it was provided with regard to the application of the income arising from the fund — “The governors shall establish as many bursaries for university education as the funds at their disposal will allow, which shall be called the Spence Bursaries. They shall be awarded by competitive examination among deserving students who have attended one or two sessions in the Faculty of Arts in the university of St Andrews or Edinburgh — that is to say, who have attended one session in the case of students who have, immediately after matriculation, entered the second year's classes of Humanity, Greek, and Mathematics, and intend to graduate in three years from the time of their entrance, or who have attended two sessions in the case of those who have entered the first year's classes and intend to graduate in four years from the time of their entrance session in the Faculty of Arts in the University of St Andrews or Edinburgh, as the case may be, and shall be tenable for two years in the Faculty of Arts at either of these universities.”

A petition was presented by the governors of the scheme craving the Court to approve of certain alterations and variations on the scheme.

It was proposed to substitute the following paragraph for that in italics printed above—

Page: 19↓

“Among deserving students of either sex, who after passing the preliminary examination or such other examination as may from time to time be accepted by the Joint Board of Examiners as equivalent thereto, have attended one winter session, or its equivalent, in the Faculty of Arts in the University of St Andrews or Edinburgh, and have attended at least two classes qualifying for graduation, and who intend to complete the course of study for the degree of Master of Arts in the University of St Andrews or Edinburgh.”

On 19th November 1896 the Court remitted to Mr Bremner P. Lee, advocate, to report upon the regularity of the procedure and upon the proposed alterations, and to communicate with the University Courts of Edinburgh and St Andrews inviting their observations.

Mr Lee reported that he had received the following letters from the Secretaries of the two University Courts—

“St Andrews, 27 th November 1896.

University Court of St Andrews.

Petition—Governors of Spence Bursary Trust.

Dear Sir,—I have to acknowledge receipt of your letter of 25th curt., enclosing copy of the above petition, presented to the First Division of the Court of Session, praying for an alteration of the scheme of the Spence Bursary Trust. Your letter and copy petition were submitted by me to a meeting of the University Court of St Andrews held yesterday.

I am directed by the Court to inform you that by a majority of 5 to 4 (the Lord Rector and one of the other members abstaining from voting) it was resolved not to approve of the alterations proposed, in so far as they would allow the Spence Bursaries to be opened up to qualified women students. In other respects the Court unanimously agreed to approve of the alterations shown in Appendix II. of the petition.—I am, dear sir, yours faithfully,

Stuart Grace,

Secretary, University Court.”

University of Edinburgh,

23 rd Dec. 1896.

Petition—Spence Bursary Trust.

Dear Sir,—Referring to your letter of 25th ult., I am directed to state that the University Court—after consultation with the Senatus—have no objection to offer to the prayer of the petition being granted.— Yours faithfully, M. C. Taylor, Secy.”

With regard to these letters the reporter stated—“While the University Court of St Andrews by a majority of one (nine members voting, the other eight either being absent or abstaining) has resolved ‘not to approve’ of the bursaries being ‘opened up to qualified women,’ it is not stated that the Court actually disapproved, nor is any reason given for its decision. I have very carefully considered whether any such reason can be found either in the regulations of the universities, the provisions of the Act under which the petition is presented, or the general rules which have guided the decision of the Court in similar cases.

This is not the ordinary case of an application to the nobile officium of the Court for a new charitable object. Were it so, the fact that the whole fund can be most usefully expended on the existing object would preclude the necessity, and therefore the probability, of interference by the Court. Here, however, the petitioners invoke your Lordships' exercise of a statutory power. The section (45 and 46 Vict. cap. 59, section 20) which confers this power seems not merely to save the common law jurisdiction of the Court of Session, but rather to provide machinery by which the work of the Educational Endowment Commission might be carried on after the Commission had expired. Thus the section indicates as the test of the propriety of alterations on the schemes of the Commissioners, that ‘they shall not be contrary to anything contained in this Act.’ Judged by this test, there cannot, I think, be any doubt of the propriety of the alteration now proposed. Section 17 of the Educational Endowments Act 1882 provides:—‘In framing schemes, provision shall be made, so far as can be equitably arranged, and as the circumstances of each particular locality require, for extending to both sexes the benefit of endowments.’ When the scheme was framed the university classes and degrees were closed against women students, and provision could not be made for extending the benefits of this endowment to them. Now, however, that women are admitted both to the classes and to the degree of Master of Arts, and can therefore qualify for competition under the scheme, their inclusion appears to be contrary to nothing contained in the Act, but, on the contrary, to be directly recommended by it.

The original words of bequest by the founder contain nothing to suggest the exclusion of women.”

Certain amendments were suggested by the reporter on the other proposed alterations, which were approved by both University Courts.