Bannatyne v Overtoun
Encyclopedia
Bannatyne v Overtoun, [1904] A.C. 515
(more correctly cited as General Assembly of the Free Church of Scotland v Lord Overtoun: Macalister v Young [1904] AC 515
:1904 7 F (HL) 1 and better known as the Free Church case), was a protracted legal dispute between the United Free Church of Scotland
(which was a union in 1900 of the majority Free Church of Scotland
with the United Presbyterian Church of Scotland
) and the minority of the Free Church who had remained outside of the union (see Free Church of Scotland (post 1900)
).
where Lord Low (upheld by the second division) ruled that the Assembly of the 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 was 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, manse
s, 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.C. and the (now distinct) Free Church to come to some working arrangement, found that no basis for agreement could be reached. 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.
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 manse
s 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 objections to erecting additional 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 provided for the relaxation of subscription to the Westminster Confession in the Church of Scotland; thus Parliament, had involved itself in the affairs of all Presbyterian churches.)
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(more correctly cited as General Assembly of the Free Church of Scotland v Lord Overtoun: Macalister v Young [1904] AC 515
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
:1904 7 F (HL) 1 and better known as the Free Church case), was a protracted legal dispute between the United Free Church of Scotland
United Free Church of Scotland
The United Free Church of Scotland is a Scottish Presbyterian denomination formed in 1900 by the union of the United Presbyterian Church of Scotland and the Free Church of Scotland...
(which was a union in 1900 of the majority Free Church of Scotland
Free Church of Scotland (1843-1900)
The Free Church of Scotland is a Scottish denomination which was formed in 1843 by a large withdrawal from the established Church of Scotland in a schism known as the "Disruption of 1843"...
with the United Presbyterian Church of Scotland
United Presbyterian Church of Scotland
The United Presbyterian Church of Scotland was a Scottish Presbyterian denomination. It was formed in 1847 by the union of the United Secession Church and the Relief Church, and in 1900 merged with the Free Church of Scotland to form the United Free Church of Scotland, which in turn united with...
) and the minority of the Free Church who had remained outside of the union (see Free Church of Scotland (post 1900)
Free Church of Scotland (post 1900)
Free Church of Scotland is that part of the original Free Church of Scotland that remained outside of the union with the United Presbyterian Church of Scotland in 1900...
).
Litigation
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 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 SessionCourt of Session
The Court of Session is the supreme civil court of Scotland, and constitutes part of the College of Justice. It sits in Parliament House in Edinburgh and is both a court of first instance and a court of appeal....
where Lord Low (upheld by the second division) ruled that the Assembly of the original Free Church had a right, within limits, to change its position.
An appeal to House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
, (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 was 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, manse
Manse
A manse is a house inhabited by, or formerly inhabited by, a minister, usually used in the context of a Presbyterian, Methodist, Baptist or United Church...
s, 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.C. and the (now distinct) Free Church to come to some working arrangement, found that no basis for agreement could be reached. 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
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
was sought.
Legislation
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 mutual ill-feelings 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 manse
Manse
A manse is a house inhabited by, or formerly inhabited by, a minister, usually used in the context of a Presbyterian, Methodist, Baptist or United Church...
s 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
Scottish Highlands
The Highlands is an historic region of Scotland. The area is sometimes referred to as the "Scottish Highlands". It was culturally distinguishable from the Lowlands from the later Middle Ages into the modern period, when Lowland Scots replaced Scottish Gaelic throughout most of the Lowlands...
, found shelter for a time in the parish churches; but it was early decided that, in spite of objections to erecting additional 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
Assembly Hall
An assembly hall is traditionally a building used for the purposes of holding deliberative assemblies. An example is the Assembly Hall where the general assembly of the state of Mississippi was held. Some Christian denominations call their meeting places or places of worship, assembly halls, such...
and the New College
New College, Edinburgh
New College was opened in 1846 as a college of the Free Church of Scotland, later of the United Free Church of Scotland, and from the 1930s has been the home of the School of Divinity of the University of Edinburgh...
Buildings were to belong to the U.F. Church while the Free Church received the offices in Edinburgh
Edinburgh
Edinburgh is the capital city of Scotland, the second largest city in Scotland, and the eighth most populous in the United Kingdom. The City of Edinburgh Council governs one of Scotland's 32 local government council areas. The council area includes urban Edinburgh and a rural area...
and a tenement
Tenement
A tenement is, in most English-speaking areas, a substandard multi-family dwelling, usually old, occupied by the poor.-History:Originally the term tenement referred to tenancy and therefore to any rented accommodation...
to be converted into a college
Free Church College
The Free Church College is a theological seminary in Edinburgh connected to the Free Church of Scotland. It traces its origins back to the foundation of New College, Edinburgh at the time of the Disruption of 1843...
, 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 provided for the relaxation of subscription to the Westminster Confession in the Church of Scotland; thus Parliament, had involved itself in the affairs of all Presbyterian churches.)