United Free Church of Scotland - Legal Dispute: 'The Free Church Case'

Legal Dispute: 'The Free Church Case'

The minority of the Free Church, which had refused to join the union, quickly tested its legality. They issued a summons, claiming that in altering the principles of the Free Church, the majority had ceased to be the Free Church of Scotland and therefore forfeited the right to its assets – which should belong to the remaining minority, who were the true ‘Free Church’. However, the case was lost in the Court of Session, where Lord Low (upheld by the second division) held that the Assembly of original Free Church had a right, within limits, to change its position.

An appeal to House of Lords, (not delivered until August 1, 1904 due to a judicial death), reversed the Court of Session’s decision (by a majority of 5–2), and found the minority entitled to the assets of the Free Church. It was held that, by adopting new standards of doctrine (and particularly by abandoning its commitment to ‘the establishment principle’ – which was held to be fundamental to the Free Church), the majority had violated the conditions on which the property of the Free Church was held.

The judgement had huge implications; seemingly it deprived the Free Church element of the U.F. Church of all assets—churches, manses, colleges, missions, and even provision for elderly clergy. It handed large amounts of property to the remnant; more than it could make effective use of. A conference, held in September 1904, between representatives of the U. F. and the (now distinct) Free Church, to come to some working arrangement, found that no basis for agreement could be found. A convocation of the U. F. Church, held on December 15, decided that the union should proceed, and resolved to pursue every lawful means to restore their assets. As a result, the intervention of Parliament was sought.

A parliamentary commission was appointed, consisting of Lord Elgin, Lord Kinnear and Sir Ralph Anstruther. The question of interim possession was referred to Sir John Cheyne. The commission sat in public, and after hearing both sides, issued their report in April 1905. They stated that the feelings of both parties towards the other had made their work difficult. They concluded, however, that the Free Church was in many respects unable to carry out the purposes of the trusts, which, under the ruling of the House of Lords, was a condition of their holding the property. They recommended that an executive commission should be set up by act of parliament, in which the whole property of the Free Church, as at the date of the union, should be vested, and which should allocate it to the United Free Church, where the Free Church was unable to carry out the trust purposes.

The Churches (Scotland) Act 1905, which gave effect to these recommendations, was passed in August. The commissioners appointed were those on whose report the act was formed, plus two others. The allocation of churches and manses was a slow business, but by 1908 over 100 churches had been assigned to the Free Church. Some of the dispossessed U. F. Church congregations, most of them in the Highlands, found shelter for a time in the parish churches; but it was early decided that in spite of the objection against the erection of more church buildings in districts where many were now standing empty, 60 new churches and manses should at once be built at a cost of about £150,000. In October 1906 the commission intimated that the Assembly Hall, and the New College Buildings, were to belong to the U.F Church, while the Free Church received the offices in Edinburgh, and a tenement to be converted into a college, while the library was to be vested in the U. F. Church, but open to members of both. After having held its Assembly in university class-rooms for two years, and in another hall in 1905, in 1906 the U. F. Church again occupied the historic buildings of the Free Church. All the foreign missions and all the continental stations were also adjudged to the United Free Church. (Incidentally, the same act also contained provided for the relaxation of subscription in the Church of Scotland, thus Parliament had involved itself in the affairs of all Presbyterian churches.)