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THE GREEN BAG

TRUSTS (Scottish Church Case) AN interesting explanation of the exact scope of the decision of the House of Lords in Bannatyne v. Lord Overtoun, entitled the "Scottish Church Case," by James Ferguson, K. C., appears in the Juridical Review for De.cember, (Vol. xvi, p. 347). The controversy arose from the act of a large majority of one non-confonnist Presbyterian body in joining with a similar sect holding slightly different views on church policy, the one though non-conformist being in its origin an advocate of an established church, while the other was opposed to this principle. The small minority of the former church sought to oust the united body from the control of its temporal property on the ground that its trustees by submitting it to the control of others of different religious views had com mitted a breach of trust. In the Scotch Courts the act of the majority was sustained on the ground that the differences in principle of the two denominations were of secondary im portance. Though differences of doctrine were also in issue, the abandonment of the es tablishment principle was the chief point of contention, and upon this ground the English House of Lords reversed the decision of the Scotch Courts. "Thus all five judges gave judgment on the ground of the abandonment of the Establish ment principle, treating it as sufficient for the determination of the case. Two (Lord Davey and Lord Robertson) also were satisfied with the fundamental change operated by the sub stitution of the fluid and mutable 'doctrine of this Church ' for the ' whole doctrine of the Confession of Faith' declared to be 'the truths of God." Two (Lord James and Lord Alverstone) declined to go beyond the Estab

lishment question. One only (the Lord Chan cellor) proceeded on the abandonment of the Calvinistic doctrine of predestination. Neither in the decision nor in any of the judgments is there a trace of any interference with the principle of spiritual independence. The judg ment simply affirms that the property, whether given immediately after the Disruption or sub sequently acquired, being settled in trust for the Free Church of Scotland, and the consti tutional documents which expressed the prin ciples on which the Free Church was formed containing the principle of Church Establish ment side by side with that of spiritual inde pendence, those who continue to hold both are the Free Church of Scotland, and the property can be vindicated by them, even though a minority. There is no judgment of the House to the effect that a Dissenting Church may not explain or modify a theological doctrine, and none to the effect that the passing of the De claratory Act per se, or any particular change or abandonment of doctrine as opposed to constitutional principle is a breach of trust." "The opinions of the judges, other than that of the Lord Chancellor, do not hold out much hope of a similar decision being pronounced, where the materials for determination can only be found in doctrinal differences, or the interpretation of purely theological state ments of belief. The judgment, of course, deals only with temporal and civil conse quences of changes which any dissenting Church has full freedom to make; it was a civil determination as to which of two com peting claimants was the owner of certain property, and it is a misuse of language to de scribe it as 'penalising' the unsuccessful liti gant, or as involving any denial on the part of the Law of ' the Libertv of the Church to live.1 "