Scottish Court of Session Decisions

By trust-disposition and settlement Miss Georgina Bannerman, who died in 1876, directed her trustees to set apart the sum of £3000, the capital thereof to be retained by them, and the income arising therefrom to be paid “to the incumbent for the time being of St James’ Episcopal Church in Aberdeen, for the purpose of augmenting

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his stipend, but that only so long as … the congregation worshipping in said church shall not be united to or in connection with the Scottish Episcopal Church.” There followed a declaration that in the event, inter alia, of the congregation worshipping in said church at any time uniting or being in connection with the Scottish Episcopal Church,” the trustee should be bound to pay over the said capital sum to the residuary legatees of the testatrix, and the incumbent should forfeit his interest in the said provision.

St James’ Episcopal Church, Aberdeen, was an offshoot from St Paul's Episcopal Church, Aberdeen, one of those congregations which had enjoyed toleration under the Act 10 Anne, c. 7, upon condition of their clergymen taking the oath to Government, and being in English or Irish orders only, and which even after the Act 3 and 4 Vict. c. 33, held aloof from the communion of the Scottish Episcopal Church, and refused to recognise the authority of its bishops or canons. (For a full account of these “English Episcopal” congregations, see Dunbar v. Skinner, March 3, 1849, 11 D. 945.)

St James’ was founded in 1854, and by its constitution dated 1867, and entitled “Constitution of St James’ English Episcopal Church,” it was declared that the said church “shall be used solely and exclusively as and for a church for divine service and the ministration of sacred ordinances in strict conformity with the articles of the United Church of England and Ireland, as by law established, and ritual conform thereto,” and that the cure of the said church “shall be held by clergymen having the orders of the said United Church of England and Ireland, and by such only.”

The constitution of the church was altered in 1886, but as regards the provisions above cited, only verbally and to the extent rendered necessary by the Disestablishment of the Church of Ireland in 1869.

From the date of its origin, accordingly, down to 1877, the year subsequent to Miss Bannerman's death, the church was independent of the ministrations and authority of the Bishop of the Scottish Episcopal Church, within whose diocese it was situated. Candidates for confirmation were sent to the Bishop of Carlisle and the Bishop of Durham, and although orders conferred by a bishop of the Scottish Episcopal Church were in 1864 fully recognised by the Church of England (27 and 28 Vict. c. 94), the incumbent of St James’ was required to have either English or Irish orders, and early in 1877, in consequence of the inconveniences of sending candidates for confirmation to England, and the growing difficulty of finding an English bishop to administer the rite, it was arranged that the administrations of Bishop Beccles, an ex-colonial bishop, should be procured for the English Episcopal congregations in Scotland, the number of which had been increased by several congregations which had seceded at various times from the Scottish Episcopal Church, e.g., St Thomas’, Edinburgh. About the same time the Association of English Episcopalians in Scotland was formed at a meeting at which St James’, Aberdeen, was represented by its then incumbent.

In April 1877 the Convocations of Canterbury and York passed resolutions condemning the breach of ecclesiastical order involved in Bishop Beccles’ intrusion into the territory of the Scottish bishops.

Thereupon the incumbent of St James’ withdrew from the Association of English Episcopalians in Scotland, and accepted a licence from the Bishop of Aberdeen. His successor in the charge did the same, and the present incumbent, who had been ordained by an English Bishop, accepted a licence from the Bishop of Aberdeen on being appointed to the incumbency in 1886. The licence was in the following terms:—“The Rev. Angus Mason Mackay, B.A., having this day appeared before us, exhibited his letters of orders, testimonials, and title for nomination, and having, moreover, in our presence subscribed the thirty-nine articles and code of canons of the Church, is hereby licensed to perform all the duties competent to his order in the Church of St James and the district attached thereto in our diocese.—In testimony whereof, &c., A.G., Aberdeen and Orkney.”

In consequence of this licence the incumbent became entitled to a seat on the Representative Church Council and the Diocesan Synod; he was entitled to and did present candidates for confirmation to the Bishop of Aberdeen, and there was a free interchange of pulpits between him and clergymen of the Scottish Episcopal Church.

The congregation of St James’ made collections for the Home Mission, Education, and Foreign Mission Funds of the Representative Church Council of the Scottish Episcopal Church, all which contributions were duly entered in the statistical returns from the diocese of Aberdeen and Orkney. In the St James’ Parish Magazine and relative leaflet, the incumbent repeatedly urged the claims of these funds upon his congregation, recommended them to subscribe to the recognised organs of the Scottish Episcopal Church, intimated from time to time the date of confirmations by the Bishop of the Diocese, and on one occasion announced that in obedience to a new canon of the Church he was about to assume the title of rector.

In these circumstances, General Banner—man and others, residuary legatees of Miss Bannerman, raised an action against (1) John Otto Macqueen, S.S.C., Aberdeen, Miss Bannerman's sole surviving trustee, (2) the Rev. A. M. Mackay, incumbent of St James’ Episcopal Church, and (3) W. K. Glover and others, managers of said church, to have the forfeiture of Miss Bannerman's bequest declared.

The pursuers pleaded—“The congregation worshipping in St James’ Episcopal Church in Aberdeen having become united to, or at all events in connection with, the Scottish Episcopal Church, or Episcopal Church in Scotland, and Miss Bannerman's bequest mentioned in the summons having been thereby forfeited, the pursuers as

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residuary legatees of Miss Bannerman are entitled to have decree in terms of the conclusions of the summons.”

The defenders Glover and others, inter alia, averred in their answer to art. 14 of the pursuer's condescendence—“The congregation of St James' has never taken the necessary steps required by” the Canons of the Episcopal Church in Scotland “to become connected or united as a congregation with the Scottish Episcopal Church.” In particular, they averred (and the averments were not denied) ( a) that the congregation had made no formal application to be admitted into connection with that Church (Appendix xxiii); ( b) that the incumbent of St James’ had neither been “presented” nor “instituted” by the Bishop of Aberdeen to the living (Canon xiii, and Appendices xiv, xvii); ( c) that the congregation of St James’ had chosen no lay-elector to take part in the election of a bishop (Canon iv); ( d) that the Bishop of Aberdeen had made no Episcopal visitation of the congregation (Canon viii. 2); ( e) that the title-deeds of St James’ had not been deposited with the diocesan registrar (Canon xxvi); ( f) that the congregation of St James’ had elected no lay representative to act on the Representative Church Council.

The defenders pleaded—“The said congregation not being in connection with or united to the Scottish Episcopal Church, and no forfeiture of the legacy having been incurred, the said capital sum falls to be retained by the defender John Otto Macqueen, for the purpose of augmenting the stipend of the incumbent of said Church of St James.”

The Lord Ordinary allowed parties a proof of their respective averments, and the facts disclosed by the proof are summarised above.

The following excerpts from the evidence may be given in addition:—The Rev. Mr Mackay, the incumbent, in cross-examination—“(Q) Have you not become a Scottish Episcopalian by crossing the border?—(A) Yes, I hold myself to be a Scottish Episcopalian personally.”

The Bishop of Aberdeen (Douglas) in cross-examination—“I had no negotiations or arrangements with the managers of St James’ Church about the matter, viz., Mr Mackay's appointment, whatsoever; anything I had to do that related to St James’ was in regard to the licence granted to Mr Mackay and the consequences flowing from it … Mission charges and mission stations both require to their constitution their having been made missions by the Bishop's sanction after certain notice. No such notice has been given as regards St James’. I have no doubt it is not a mission of our Church … I regard the position of St James’ and of its ministry as perfectly anomalous. It certainly does not come within any description of any kind as a congregation of the Episcopal Church recognised in the canons.”

Mr R. L. Stuart, W.S., gave evidence as to the history of the English Episcopal churches, and as to a “concordat” which had once existed between St Thomas’, Edinburgh, and the Bishop of Edinburgh, and in particular deponed that three English Episcopal congregations existed at the present time, one in Edinburgh, one in Glasgow, and one at Montrose.

On 20th February 1896 the Lord Ordinary ( Kyllachy) pronounced an interlocutor assoilzieing the defenders from the conclusions of the action, and finding the defenders other than the defender Macqueen entitled to the expenses of one appearance only, modified as regards the expenses of the proof to one-fourth of the taxed amount.

Opinion.—.… “The question I have to decide is, whether the congregation of St James’ has become ‘united to or in connection with’ the Scottish Episcopal Church. But really the question is—whether it has become connected with that church in the sense of the settlement; for the pursuers do not, I understand, contend or suggest that there has as yet at least been anything which could be described as union.

“Now the term ‘connection’ is, it must be confessed, a somewhat loose term. It is not a term which is known in ecclesiastical history, or in the history of the Scottish Episcopal Church, or of these particular congregations. In popular language, it is often employed in senses so loose and indefinite as to be quite outside the cognisance of a court of law. It is therefore here necessary to find a sense for the expression which shall satisfy the words of the will, and also be sufficiently tangible to base the forfeiture of a legal right. It was argued for the defenders—and I am inclined to agree with them—that in order to reach a connection in this sense several conditions must at least be satisfied.

(1) The connection must be between the Scottish Episcopal Church and the congregation—that is to say, the congregation as distinguished from the incumbent.

(2) It must also be something direct and tangible—something of which a court of law can take cognisance.

(3) It must also result in some tie—some vinculum—stronger or weaker—fettering pro tanto the independence of the congregation.

In short, the connection may be short of union, but it must be something ejusdem generis with union—I mean union temporary or permanent.

Now, what are the facts brought out by this long and tedious proof—a proof which, I must observe in passing, has only served to show that there are no facts of importance in dispute, and that there should have been no difficulty in adjusting a minute of admissions sufficient for the decision of the case.

There are, in the first place, certain things which are not proved, and indeed not alleged:—1. There has been no change in the constitution of St James’ Church. That remains intact.

There has been no agreement of any kind, written or verbal, between the congregation and the Scottish Episcopal Church. Indeed, no communications,

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written or verbal, have ever, so far as appears, passed between the two bodies or their officials,—excepting always certain statistical statements, and contributions to mission schemes, transmitted to Edinburgh, as I shall afterwards notice.

The case of the pursuers accordingly is, and must be, that the alleged connection exists, and has been established, not by convention, but by a course of action; and the first matter founded on is the acceptance by each of the incumbents of the church since 1877 of a licence from the Bishop of Aberdeen.

Now that, since 1877, licences have been so accepted is quite true, and the history of the matter seems to be this: Prior to 1877 the English churches in Scotland had no bishop to whom they could apply (for example) for confirmation. Their own incumbents had no licences from the Scottish bishops, and could not therefore present candidates to those bishops. On the other hand, no English bishop could be induced to come to Scotland for the purpose. Up, therefore, to 1877, the young people of the different congregations had to be sent for confirmation to England, and in fact generally were so; but about that time an arrangement was made with a Colonial bishop (Bishop Beckles) that he should perform episcopal functions within the several congregations; and Bishop Beckles accordingly came down to Scotland. In the interval, however—the English bishops having come to consider that the Scottish Episcopal Church was in full communion with the Church of England, and that it was contrary to ecclesiastical order that any Anglican bishop should officiate within the diocese of any Anglican bishop, whether Scottish or English, without that bishop's consent—a resolution was passed by convocation censuring the arrangement with Bishop Beckles, and in effect condemning as contrary to the law and practice of the Anglican Church the position of the incumbents of the several Episcopal Churches in Scotland, of which St Paul's, Aberdeen, was one. These incumbents were clergymen in English orders, performing their sacred functions in recognised bishoprics without the licence of the bishop; and when the question was once raised that position was pronounced to be indefensible.

The result was that towards the end of 1877, Mr Allan, the then incumbent of St James’, declined to recognise Bishop Beckles, and applied for and obtained a licence from the Bishop of Aberdeen; and his two successors, Mr Black and the present incumbent Mr Mackay, took the same course. By doing so, it cannot, I think, be doubted that they became, while they held their licences, to all effects clergymen of the Scottish Episcopal Church. They became bound to obey its canons, and subject to the jurisdiction of the Bishop of Aberdeen; and personally their relation to the bishop and to the Church was not different from that of the other clergy in the diocese of Aberdeen. The licence might, no doubt be renounced, and its renunciation would not affect their incumbency; and, of course, to that extent they were in a different position from other incumbents. But so long as they held the bishop's licence they were beyond doubt connected in the most direct and tangible sense with the Scottith Episcopal Church.

The question, however is, whether the acceptance by successive incumbents of the bishop's licence established in the sense of Miss Bannerman's settlement a connection between the Scottish Episcopal Church and the congregation of St James’. In a loose sense it no doubt did so. The incumbent had relations with the Church, and the congregation had, of course, relations with the incumbent; but as between the Church and the congregation no direct relation of any kind was established. They stood just as they had stood before. The congregation were not parties to the incumbent's action. The members, no doubt, knew of it, and did not object. But if it did not affect their position they had no call to object. The incumbent was not prohibited by the constitution from holding any licence which he thought useful; and all that the congregation could do, if they did object, was to exercise their power under the constitution to dismiss the incumbent. They had that power, and of course they might exercise it. But the fact that they had such a power and could exercise it at any time is itself really conclusive against any change having been made in the congregation's position. They were as independent as ever, and neither gave nor received anything. Their position simply was that they were connected by a the dissoluble at their pleasure with a person (viz., their incumbent) who was connected by a the dissoluble at his pleasure with the Scottish Episcopal Church. Now that, it seems to me, is a connection much too indirect and remote to satisfy the condition expressed in Miss Bannerman's will.

The pursuers, however, rely upon certain other matters which they say grew out of the incumbent's new position, and directly affected the congregation. I do not refer to the facts that the incumbent from 1877 downwards has been a member of the Diocesan Synod, and the Representative Church Council, and has had all the rights and privileges of a clergyman holding a licence from a bishop, with a definite sphere of duty. I have already dealt with these matters, which, as I have said, I consider personal to the clergyman. But the matters now in question are said to be these:

1. That the congregation take the benefit of the incumbent's new position by having their young people confirmed by the Bishop of Aberdeen.

2. That they take the benefit of the exchange of pulpits now possible between their incumbent and the incumbents of the other churches in Aberdeen.

3. That in the same way they take the benefit of the bishop's assistance in the services of the church, he being now accustomed frequently to officiate, although always upon invitation.

4. That returns of statistics of membership,

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&c., are from time to time made by the officials of St James’ Church to the offices of the Scottish Episcopal Church, which returns are published in the Year—Books and other books published or recognised by the authorities of the Scottish Episcopal Church.

5. That collections are frequently made for certain schemes of the Scottish Episcopal Church, and particularly its mission schemes and education scheme.

I am bound to say that I have had some difficulty as to the combined effect of these several matters. The incumbents and the congregation have certainly so acted as to reduce to a minimum all external manifestations of the differences which divide them from the other Episcopal churches in Aberdeen. They have done so, I have no doubt, from the best of motives, so much so that it occurs to one to ask whether, for the sake of preserving their hold on Miss Bannerman's legacy, it is really worth while to perpetuate those differences. But whatever the motive may have been, the fact remains. And I confess it does seem to me that the congregation entered upon somewhat dangerous ground (with respect I mean to Miss Bannerman's legacy) when they began not only to co-operate with the other Episcopal churches in mission and other work, but to allow their statistics of membership to be included in the statistics of the Scottish Episcopal Church, and their contributions to the schemes of that church to appear without note of distinction in its publications. Still, co-operation is one thing, and union or connection is another; and there is undoubted force in the defender's argument (1) that they are not responsible for the form in which the accounts of the Scottish Episcopal Church are kept; and (2) that there is nothing which they as a congregation do or have done which might not be done by congregations of the Church of England across the Tweed, or by persons accustomed to gather for English service in private chapels or schoolhouses throughout Scotland. There is also, I think, great force in their view that all essential matters—all matters which affect the independence and autonomy of the congregation—the distinctions which have always existed are still maintained. I do not think it necessary to go over those matters in detail. They are very distinctly and correctly recited in the 14th article of the defenders’ statement, and also in the evidence of Bishop Douglas. The general result is that in everything which can be called crucial, the congregation of St James’ is as separate and unconnected with the Scottish Church as any church of the Anglican communion can be—I mean any church situated within the diocese of a Scottish bishop. So far, of course, some degree of connection is inevitable, and exists. But it is not, I think the kind of connection contemplated by Miss Banner—man's settlement.

On the whole, therefore, I have found myself unable to come to any other conclusion than that the pursuers have failed to establish the forfeiture which they ask the Court to declare, and therefore that the defenders are entitled to absolvitor.”

The pursuers reclaimed.

The arguments of the parties sufficiently appear from the opinions of the Judges.

At advising—