Craigdallie and others v. Aikman and others [1820] UKHL 2_Bligh_529

UKHL
Craigdallie and others v. Aikman and others
[1820] UKHL 2_Bligh_529
REPORTS OF CASES HEARD IN THE HOUSE OF LORDS, UPON APPEALS AND WRITS OF ERROR, And decided during the Session , 1820.1 Geo . IV.SCOTLAND.AN APPEAL FROM COURT OF SESSION.

No. 13

Craigdallie and others Appellants v. Aikman and others Respondents

1820 .In the year 1736, a meeting-house was built by contributions of materials, money and labour, and collections at the church door, of persons professing the principles of those who seceded at that time from the Church of Scotland. The meeting-house, and the ground on which it was built, were vested in certain persons, as trustees for the use of the society, and managers of the house of public worship for the Associate Congregation of Perth.A schism took place in 1796 among the members of this religious community; and several of the members, including the representatives of some of the trustees, to whom the legal right of property had devolved, separated themselves from the rest of the community, and absolved themselves from the authority of the Associate Synod, which was the constituted authority for the government of the community. This separation took place on grounds of alleged difference of opinion, on a question as to the power of the civil magistrates in religious concerns, which the Court of Session pronounced to be unintelligible.Held, that in a case where it was difficult to ascertain who were the legal owners, as representatives of the contributors, the use of the meeting-house belongs to those who adhere to the religious principles of those by whom it was erected; and those who had separated themselves from the Associate Synod, and declined their jurisdiction, were held to have forfeited their right to the property: although it had been judicially declared that there was no intelligible difference of opinion between them and the adherents of the Synod.The question in this case arose upon a dispute between the members of a congregation of seceders

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Footnote

* Originally, by stat. 1597. By act 1606 Episcopacy was restored; Presbytery again 1638; Episcopacy again 1662; and, finally, Presbytery by stat. 1689. The Kirk Session is composed of the clergyman of the parish, and of certain persons called elders, selected from the congregation of each parish, and ordained by a clergyman. This is the lowest court in the church, having jurisdiction in spiritual matters only over its own parish.A Presbytery is composed of the clergymen of a district, together with one elder from each of the Kirk Sessions within that district. This is the court next above the Kirk Session,

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In the confession of faith annexed to this act, one of the articles is in the following words:
“The civil magistrate may not assume to himself the administration of the word and sacraments, or the power of the keys of the kingdom of heaven; yet he hath authority, and it is his duty to take order, that unity and peace be preserved in the church; that the truth of God be kept pure and entire; that all blasphemies and heresies be suppressed; all corruptions and abuses in worship and discipline prevented or reformed; and all the ordinances of God duly settled, administered, and observed: for the better effecting whereof, he hath power to call synods, to be present at them, and provide that whatsoever is transacted in them be according to the mind of God,”
The national covenant of Scotland, and the solemn league and covenant of the three nations, which had been adopted by the first assembly of the church, were adopted also by the Seceders. These, as the standard principles of religious doctrine and discipline in their church, were recognized by the Seceders in their “act, declaration and testimony for the

Footnote

exercising jurisdiction over the district from which the members are selected.A Synod is formed by the union of a certain number of Presbyteries, over which its jurisdiction extends.The General Assembly is composed of representatives from all the different Presbyteries, from the Universities and the Royal Burghs. This is the supreme ecclesiastical court. Its power extends over the whole kingdom in all ecclesiastical subjects, and there is no appeal against its judgments.

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In the year 1795, upon the petition of a member of the Associate Synod, a committee was appointed to review the questions in the formula, and to bring in an overture (the heads of an act) for uniting the members in their sentiments, respecting the power ascribed in the confession of faith to the civil magistrate in matters of religion, and respecting the nature of the obligation of the national covenants upon posterity; in the mean time, allowing presbyteries to exercise forbearance as to licence and ordination, with respect to the articles in question. After a report had been made by the committee, proposing an act of forbearance, and various meetings and discussions upon the subject, that measure was abandoned.

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At a meeting of the session, on the 13th of April 1797, a petition, on behalf of those who maintained the principles of the appellants, was presented against any alteration in the substance of the formula; but assenting, for the sake of peace, to prefatory explanation, as the following passage in the petition imports.
“At the same time, as certain expressions in the said formula, or in other ecclesiastical standards, and our national covenants, have been understood by some as favouring persecution for conscience sake, and ascribing an exorbitant power of religious interference to the civil magistrate; we are far from wishing the synod to request, from any candidate, his licence or ordination, or approbation of any such principles of which we disapprove; and, as there is a diversity of opinion anent the obligation of our covenants, national and solemn league, we consider them as binding on posterity only, so far as these covenants respect a solemn engagement of adherence unto all the truths and ordinances of the Lord Jesus Christ, as contained in our confession and catechisms. If the prefixing an explication of this nature to the old formula would satisfy our brethren, who object to said formula, we will agree thereto.”
At a meeting of the synod, in April 1797, a resolution passed by a majority of voices, adopting the following preamble (as an explanation) to the formula:licence or ordination: And whereas a controversy has arisen among us respecting the nature and kind of the obligation of our solemn covenants on posterity, whether it be entirely of the same kind upon us as upon our ancestors, who swore them; the synod hereby declare, that while they hold the obligation of our covenants upon posterity, they do not interfere with that controversy which hath arisen respecting the nature and kind of it, and recommend to all the members to suppress that controversy, as tending to gender strife rather than godly edifying.”
“Whereas some parts of the standard books of this synod have been interpreted as favouring compulsory measures in religion, the synod hereby declare, that they do not require an approbation of any such principle, from any candidate for

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Against the adoption of this preamble various petitions were presented to the synod, which, having been considered and rejected, the measure was finally approved, and the preamble retained, by a resolution of the synod in 1799.This resolution was followed by a protest and declinature on the part of several ministers. In one of these, after reciting the points in dispute, his opinions upon the subject, and the measures adopted by the majority of the synod, the minister, “in his own name, and in the name of all the members of the congregation who should adhere to him, protests against the proceedings of the synod, relative to, &c. and, until the preamble should be removed, declines the authority and jurisdiction of the associated burgher synod, and of all presbyteries subordinate to it,” &c.In consequence of this protest and declinature, the synod declared the minister, protesting, to be no longer a member of their body, and excluded him from the pulpit of their meeting-house, where he

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Judgment in D.P. 1813.Against this judgment an appeal was presented to the House of Lords, which was argued in the year 1813, when, after a long hearing: The Lords, by their judgment, found, “as matter of fact, sufficiently established by proof, that the ground and buildings in question, were purchased and erected with intent

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In prosecution of this judgment, the appellants presented a petition to the First Division of the Court of Session, praying them to apply the remit; and

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21st Feb. 1815.Interlocutor of the Court of Session appealed from.
“The Lords having resumed consideration of this petition, with condescendence, answers, replies, the Court of duplies, and whole cause, find, that the pursuers, James Craigdallie and others, have failed to condescend upon any acts done, or opinions professed by the associate synod, or by the defenders, Jedidiah Aikman and others, from which this Court, as far as they are capable of understanding the subject, can infer, much less find, that the said defenders have deviated from the original principles and standards of the associate presbytery and synod. Farther find, that the pursuers have failed in rendering intelligible to the Court, on what ground it is that they aver, that there does at this moment exist any real difference between their principles and those of the defenders; for the Lords further find, that the act of forbearance, as it is termed, on which the pursuers found, as proving the apostacy of the defenders from the original principles of the secession, and the new formula, were never adopted by the defenders, but were either rejected or dismissed as inexpedient; and that the preamble to the formula, which was adopted by the associate synod in the

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The appellants, conceiving themselves to be aggrieved by this interlocutor, again appealed to the House of Lords.19th July, 1820.

The Lord Chancellor :—There is a cause which has been repeatedly before the House, and one of the most difficult and distressing which I ever met with;

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When this matter was formerly before the House, we acted upon this principle, that if we could find out what were the religious principles of those who originally attended the chapel, we should hold the building appropriated to the use of persons who adhere to the same religious principles; and in that view, it became necessary to determine whether any, and if so, which of the persons, who were contending for the use of this place of worship, adhered to or had ceased to adhere to those which were originally the religious principles which led to the establishment of this place of worship, with a view to determine

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I cannot read this judgment of the House without your perceiving, that the House felt infinite difficulty how to proceed with a case so very singularly circumstanced as this was; but, however, it was remitted to the Court of Session: and being remitted to the Court of Session, the appellants presented a petition to the First Division of the Court, praying their Lordships to review the interlocutors having

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The appellants accordingly gave in a condescendence, which was followed by different pleadings; and in those pleadings it was maintained, that a certain preamble, which has been very much heard of in the course of the cause, was in perfect harmony with the original, and the strictest principles of the association; and that, at all events, it was originally proposed by the appellants themselves, and was ultimately adopted merely in consequence of their zeal in its behalf.The Court pronounced an interlocutor * , in which it describes the utter impossibility of seeing any thing like what was intelligible in the proceeding; and I do not know how this House is to relieve the

Footnote

* The Lord Chancellor read the interlocutor, which is printed ante, p. 537.

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The questions, therefore, in this case are, whether the interlocutors by which the defences are sustained, and these parties assoilzied, are right? And, to be sure, if they cannot show that the defenders, or any of them, had departed from the original standard and principles of their association, and if the Court is satisfied that the pursuers have not departed from these principles, but have thought proper, voluntarily,

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On the other part of the interlocutor I entertain a doubt, namely, upon that part of it whereby, “in the counter-action of declarator, at the instance of the defenders Aikman and others, they decern and declare in terms of the libel;” in which terms, among other things prayed, are, that those defenders may forfeit all their interest in the property. Now I can conceive that, consistently with the declaration contained in this interlocutor, there being no difference of religious opinion among those persons, as far as the Court of Session could understand the subject, that it might be right to decern in the terms of the libel; namely, that those who are now engaged in

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Friday, 21st July.The Lord Chancellor .—In that case of Craigdallie and Aikman, there was one point which I reserved in some measure for further consideration; but in looking through the case again, my opinion is, that I shall act most properly in advising you to affirm that judgment generally.Judgment affirmed.

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