OUTER HOUSE, COURT OF SESSION

[2005] CSOH 46

A5138/01

 

OPINION OF LADY PATON

in the cause

THE GENERAL ASSEMBLY OF THE ASSOCIATION OR BODY OF CHRISTIANS known as THE FREE CHURCH OF SCOTLAND and for administrative purposes only as THE FREE CHURCH OF SCOTLAND (CONTINUING) and OTHERS

Pursuers;

against

THE GENERAL ASSEMBLY OF THE FREE CHURCH OF SCOTLAND and OTHERS

Defenders:

 

________________

 

 

Pursuers: J. W. McNeill, Q.C., Parratt, Dawson; Drummond Miller W.S.

Defenders: Wright, Q.C., Charteris; Simpson & Marwick W.S.

24 March 2005

[1] This case concerns a dispute between two groups, each claiming to be the true Free Church of Scotland. At issue are assets held in trust "for behoof of and in connection with the association or body of Christians known as the Free Church of Scotland". The assets comprise pension funds, shareholdings, and buildings such as office properties and the Free Church of Scotland College in Edinburgh, but not churches and manses held by congregational trustees.

The Free Church of Scotland: 1843 to the late 20th century

[2] The Free Church of Scotland came into existence in 1843, when certain ministers and members of the Church of Scotland objected to state interference in their worship. A group separated from the Church of Scotland. They left behind churches, manses, and other assets. They made public appeals for financial support. Dr. Chalmers, their moderator, was a particularly active fund-raiser. His address, known as Dr. Chalmers' Affectionate Representation, was adopted by the General Assembly, and became one of the acknowledged authoritative sources of definition of the fundamental tenets of the Free Church.

[3] The appeals to the public produced substantial funds. Funds and property belonging to the Free Church were held by general trustees for behoof of and in connection with the association or body of Christians known as the Free Church of Scotland.

[4] In the second half of the nineteenth century, certain voluntary churches in Scotland moved towards unification with other churches. The United Presbyterian Church of Scotland was considering unifying with the Free Church. A minority of the Free Church, including the convenor Dr. Begg, could not accept the doctrinal compromises involved. As early as 1863, Dr. Begg expressed concerns that the proposed union would result in a departure from the fundamental tenets of the Free Church such that the body would no longer truly be the Free Church. In the view of Dr. Begg and the minority, the proposed union was unconstitutional.

[5] Years of dispute and disagreement followed. A Free Church Defence Association (FCDA) was set up to protect the fundamental tenets of the Free Church. No disciplinary action was taken against Dr. Begg or the FCDA.

[6] In 1883, Dr. Begg also protested against the introduction of instrumental music. He was permitted to do so without being considered in breach of his ordination vows.

[7] In 1900, the majority of the Free Church finally unified with the United Presbyterian Church, becoming the "United Free Church". The minority refused to participate. Instead, they commenced an action in the Court of Session seeking to have the property and assets of the Free Church transferred to them as adherents of the true Free Church. In the House of Lords in Bannatyne v Overtoun [1904] A.C. 515, the minority were vindicated. Their Lordships identified fundamental tenets of the Free Church from which the majority had departed, including the doctrine of predestination and the Establishment Principle (concerning the right and duty of the state to establish and maintain the Christian Faith). The minority were found to be the true Free Church, and were awarded all the assets.

[8] Those assets were however disproportionately great for the number of members of the true Free Church. Accordingly the state intervened. By the Churches (Scotland) Act 1905, a commission was set up to redistribute the assets as appropriate.

The present troubles

[9] In about 1989, complaints emerged about the conduct of a professor working in the Free Church of Scotland College in Edinburgh. The professor was an ordained minister, but not in charge of a ministry. He was engaged in educating and preparing students for the ministry. The complaints concerned alleged sexual misconduct towards women.

[10] A formal report was made to the Training of the Ministry Committee of the Free Church (the TOM committee). That committee consisted of a number of members of the church, with certain duties and responsibilities in respect of the college staff. In particular, as paragraphs 2.11 and 2.12 of the Practice of the Free Church of Scotland (8th ed.) page 107 explain:

"2.11 Process against a Professor: Act IX, 1861 lays upon the General Assembly's Training of the Ministry Committee the special function of originating and prosecuting before the Church Courts any process required against a Professor in the Church's College for heresy or immorality. The rights competent to all parties according to the law of the Church are at the same time reserved. This lays upon the Training of the Ministry Committee the duty of precognition and preliminary investigation prior to any decision respecting the presentation of a Libel to the relevant Presbytery.

2.12 Preliminary Examination: In all cases which may lead to a Libel, a careful preliminary examination of proposed witnesses is requisite by the party prosecuting in order that a charge incapable of proof may not be proceeded with ..."

[11] The TOM committee's initial role was rather similar to that of a procurator-fiscal or an advocate depute having to assess whether there should be a prosecution. If a libel was to be drawn up against the professor, the committee would also have the responsibility of conducting the case against him (whereas in cases not involving college staff, the relevant presbytery conducted the case). The committee therefore carried a heavy responsibility. That responsibility was all the greater, as the professor in question was an ordained minister, and paragraph 2.10(1) of the Practice of the Free Church of Scotland provides:

"Since a scandal against a minister, once raised, cannot be easily wiped off, a presbytery must exactly ponder by whose information and complaint it comes before them. And in judging the probability that would justify them in proceeding, they are called upon to weigh well the measure of credit due to the quarter from which an allegation of scandal proceeds ..."

[12] The TOM committee duly investigated the complaints. In 1990, they concluded that that there was insufficient evidence to support the allegations.

[13] Further complaints emerged. In 1993, the TOM committee appointed a sub-committee to interview witnesses. Statements were taken. Letters and affidavits were studied. The sub-committee then reported on the evidence, and recommended that a libel against the professor be drawn up. In December 1993, the TOM committee rejected the sub-committee's proposal. The committee decided, by majority vote, that insufficient evidence had been found capable of proving in the courts of the church censurable conduct on the part of the professor.

[14] When the General Assembly met in May 1994, the TOM committee presented a supplementary report containing their decision that there was insufficient evidence. The minority of the TOM committee also presented a minority report, requesting that the evidence be submitted to the church's law agent, and the clerk of assembly, for advice. The General Assembly agreed to that request. The TOM committee were directed to review their decision in the light of that advice.

[15] The law agent and the clerk considered matters, and agreed with the TOM committee that there was insufficient evidence. Meantime however, three new complainants had come forward. The TOM committee appointed a sub-committee to interview them. Having considered the report of the sub-committee, together with the advice of the law agent and the clerk, the TOM committee decided to adhere to their original decision.

[16] Accordingly, at the General Assembly in May 1995, the TOM committee again reported that insufficient evidence had been found capable of proving in the courts of the church censurable conduct on the part of the professor. The minority of the committee appealed against that finding. The General Assembly by majority vote rejected the appeal, upheld the committee's finding, directed that the matter was closed, and stated that anyone seeking to pursue the matter further did so at risk of being censured as a slanderer. A dissent to that decision was recorded by twenty-seven commissioners and by the minority of the TOM committee. The dissent stated that the matter had been closed without basic evidence having been examined, and without basic presbyterial procedures whereby a fama clamosa (widespread rumour) could be quietened, and the innocence of the innocent established.

[17] In 1996, in a trial in Edinburgh sheriff court, the professor was acquitted of criminal charges relating to some of the allegations of sexual misconduct. Other allegations of sexual misconduct not amounting to criminal behaviour had not formed part of that trial.

[18] In 1997, a minority of the TOM committee presented a report to the General Assembly, requesting the constituting of a special committee to exercise the functions of the TOM committee in relation to a booklet concerning the professor "and his opponents". The General Assembly rejected the request as being contrary to church practice, and in particular contrary to the Act of 1861. The Assembly also found those who had presented the report to be in contempt in respect that they had raised matters declared to be closed in 1995.

[19] Some ministers and members of the Free Church of Scotland remained dissatisfied with the investigation into the allegations. They considered that the nature of the allegations, and the identity of the person against whom they were made, resulted in potential damage to the work and standing of the Free Church. They felt that the success of the gospel depended in part upon the credit and reputation of members and of those ordained. They set up a Free Church Defence Association (FCDA). The FCDA had its own funding, magazines, meetings and procedures. The FCDA openly criticised decisions of the Free Church General Assembly, the commissions of the General Assembly, and the synods.

[20] In 1998, the General Assembly expressly referred to the 1995 ruling (declaring matters to be closed) as an "embargo".

[21] In 1999, at the General Assembly, the professor was voted by secret ballot to be the principal of the Free Church College. The Reverend Gracie attempted to dissent against the proposed appointment. His dissent was neither allowed nor recorded. The professor was duly appointed. Later in 1999, a commission of the General Assembly ordered that all documents relating to the investigation against the professor be destroyed. The documents were duly destroyed.

[22] In October 1999 a commission of the General Assembly passed a resolution declaring that the FCDA was pursuing a divisive course from the government and discipline of the Free Church. The commission called upon the FCDA to disband. Those involved in the FCDA refused to comply. That response was deemed a prima facie act of continued and wilful contumacy. Libels were drawn up against the twenty-two ministers adhering to the FCDA. At a hearing before the commission on 19 and 20 January 2000, the libels were declared relevant. That declaration was immediately protested by the twenty-two ministers. Nevertheless the commission ruled that the ministers were suspended from the duties of their ministries. Their cases were remitted for proof before the General Assembly in May 2000.

[23] The twenty-two ministers responded by walking out of the hearing. As they did so, they invited adherents of the true Free Church to join them. Some did join them. The twenty-two ministers and their adherents re-constituted themselves in another place. They designated themselves "The Free Church of Scotland (Continuing)".

[24] Thereafter the Free Church of Scotland (Continuing) comprised the twenty-two ministers (subsequently enhanced by a further four ministers), about 650 members, and 500 adherents. They continue to meet and worship, existing quite separately from those they had left behind. They contend that they are the true Free Church in that they continue to adhere to the fundamental tenets of that church. They also contend that those left behind, being the majority of the church numbering about 147 ministers and 4,500 members (designated for convenience "The Free Church of Scotland (Residual)") had departed from the constitution of the Free Church to such an extent that they are no longer truly the Free Church. In particular, the majority had failed to adhere to a fundamental principle or constitutional right, namely the right of continued protest, in contravention of their ordination vows and the constitution.

[25] In August 2001, the Free Church of Scotland (Continuing) raised the present action in the Court of Session, seeking declarator in terms of the first to fifth conclusions of the summons that they are entitled to all the property and assets held by trustees for the body of Christians known as the Free Church of Scotland, and that the Free Church of Scotland (Residual) have no right or title to the property and assets. Alternatively, they seek declarator in terms of the sixth conclusion that they are entitled to the property and assets "in such proportion and upon such conditions as the court shall determine".

Outline of the parties' contentions

Pursuers: The Free Church of Scotland (Continuing)

[26] During the debate, the pursuers contended that certain doctrines and principles of the Free Church were so essential to its nature that, without them, the church ceased to exist. The defenders had abandoned a particular principle, namely the right of continued protest. That principle was fundamental to the nature and constitution of the Free Church. The defenders had abandoned the principle in 1995 by denying a dissenting minority the right to continue their protest against the decision not to proceed further against the professor. The defenders had deemed the matter closed. They had done so by means of a non-judicial decision which was not binding, without due constitutional process, in a way which did not constitute the exercise of lawful power of the courts of the church. By so doing, they had departed from or abandoned the constitution, as the minority had the right to continue their protest until the error had been corrected, or alternatively until a judicial decision had been issued by the church courts after due constitutional process and inquiry, or alternatively until the reasons for protest were answered and shown to be invalid. No such proper conclusion had been reached. After the erroneous decision in 1995, the only way in which the courts of the church could hear anything further about the complaint was in the context of a private libel - a difficult, risky and costly matter for an individual who did not necessarily have the documentation or resources to support the libel, and who faced censure as a slanderer in the event that the libel was not made out. In closing the matter in the way they had, the General Assembly had effectively denied the minority the opportunity to oppose, by lawful means, the decision reached by the TOM committee (a decision which was non-judicial, reviewable, and not binding). The General Assembly had denied the minority their right to protest. Only a judicial determination would have entitled the General Assembly to take such a step.

[27] As a result of the defenders' departure from the fundamental principle (namely the right of continued protest), the pursuers were now the true Free Church of Scotland. As such, they claimed the beneficial interest in the property and assets held for behoof of that body of Christians being the Free Church of Scotland. The Court of Session had jurisdiction to determine the parties' rights in the church's property. That court would require to ascertain which party adhered most closely and faithfully to the essential and fundamental principles of the Free Church of Scotland. Such a determination would clarify which party was the true Free Church.

[28] The Court of Session was therefore being asked to interpret the constitutional principles of the church. In particular, the court would have to consider whether the right of continued protest was a fundamental and essential principle of the Free Church. The defenders' own pleadings disclosed an abandonment by them of that fundamental principle. Accordingly the pursuers invited the court to repel the defenders' preliminary pleas and to grant decree de plano in terms of the first to fifth conclusions, in effect finding the pursuers to be the true Free Church entitled to the property and assets held for behoof of that body of Christians known as the Free Church of Scotland. Alternatively, if the Court of Session concluded that neither party had forfeited their rights to the assets and that the assets should be apportioned between them in terms of the sixth conclusion, the case should be put out By Order for further procedure.

Defenders: The Free Church of Scotland (Residual)

[29] The defenders' primary position was that the pursuers' averments were not capable of establishing the existence of a right of continued protest. In any event, no such right amounted to a fundamental or essential principle of the constitution of the Free Church. Further, even if there were such a right, or such an essential principle of the constitution, the minority had not been prevented from exercising it. If any individual minister had been wrongly subjected to discipline, the remedy lay with that individual. The circumstances did not provide a basis for the present action. The defenders further maintained that the pursuers' claim was inconsistent with the principle of spiritual independence, itself a fundamental principle of the Free Church. The court was invited to sustain the defenders' first and third pleas-in-law and to grant either absolvitor or dismissal.

[30] Alternatively, the defenders' third plea-in-law should be sustained to the extent of excluding the following averments from probation:

Articles 15 to 21 relating to events from 1863 to 1900.

Articles 22 to 28, and Article 29 so far as relating to events between 1990 and 7 October 1999.

Thereafter a proof before answer should be allowed.

Search for the fundamental principles of the Free Church

[31] During the wide-ranging debate, counsel for pursuers and defenders sought to identify and define the fundamental principles or tenets of the Free Church of Scotland. That church has no formal written constitution, trust deed or other such document setting out those principles. Accordingly counsel referred to the pleadings, certain documents, and authorities.

[32] The documents referred to included: The Claim, Declaration and Protest of 1842; the Protest of 1843; the Act of Separation and Deed of Demission of 1843; the Act of 1846 anent questions and formula; the Act of 1851 chapter 9; the Westminster Confession of Faith; the Barrier Act 1697; and the Acts of Assembly of the Church of Scotland.

[33] The authorities referred to included: Bannatyne v Overtoun (1902) 4F. 1083 (Inner House); [1904] A.C. 515 (House of Lords); Craigdallie v Aikman (1813) 1 Dow 1 and (1820) 2 Bli 529; Smith v Galbraith (1843) 5 D. 665; Craigie v Marshall (1850) 12 D. 523; Couper v Burn (1859) 22 D. 120; The Ferguson Bequest Fund Case (1879) 6 R. 486; Mackay and others v Macleod and others, 10 January 1952 (unreported); Brentnall v Free Presbyterian Church of Scotland, 1986 S.L.T. 471; Orr Free Church Appeals 1903-04, pages 336-337; Connell v Ferguson (1861) 23 D. 683, at pages 691 and 693; Burnley etc. Textile Union v A.T.W.U. [1986] 1 All E.R. 885 at page 889H.

Non-contentious matters

[34] Certain matters were not disputed. For example, counsel were agreed that:

(i) The general trustees of the Free Church of Scotland were vested in the property as trustees under trust for behoof of and in connection with the association or body of Christians known as the Free Church of Scotland. No part of the property could lawfully be diverted to the use of any other association or body of Christians without the assent of the Free Church, or at least the unanimous assent of the members of a lawfully-convened General Assembly of the Free Church.

(ii) The question of true adherence to the constitution and principles of the Free Church of Scotland was not necessarily to be determined in favour of the majority. As was demonstrated in Bannatyne v Overtoun (particularly at pages 617 and 670), it was not a question of the size of the group, but rather which group adhered most faithfully to the fundamental tenets of the Free Church.

(iii) Any non-judicial decision taken within the Free Church could be the subject of review. The decision of the TOM committee was non-judicial. The further decision of the General Assembly in 1995 not to pursue further any investigation concerning the professor, and to close the case, was also non-judicial.

Contentious matters

[35] Certain other matters were contentious. In particular:

Tempus inspiciendum

[36] The pursuers submitted that in seeking to identify the fundamental principles or tenets to which the Free Church must adhere in order to maintain its identity, the court was not restricted to a time-scale of "around 1843". The court was entitled to seek guidance from the period before 1843, the Disruption in 1843, and the period from 1843 to the present, as was done in Bannatyne v Overtoun, and Couper v Burn. Thus for example the Act of 1851, chapter 9, was a useful source.

[37] By contrast, the defenders, also under reference to Bannatyne v Overtoun, submitted that the fundamental principles had to be identified from the intentions of the donors of funds at the time of the founding of the church. Accordingly the correct tempus inspiciendum was the time of the creation of the church, about 1843.

Sources, and whether principles express or implied

[38] The pursuers argued that the Court of Session was not restricted in its search to the constitutional documents of the church. On the contrary, the court was entitled to look at all sources, as had the House of Lords in Bannatyne v Overtoun. The court was entitled to look at all relevant and credible material expository of the original principles. Any material subsequent to 1843 was not necessarily secondary or supportive, but might be primary and important. If material was credible and reliable, and tended to demonstrate what the fundamental principles were, it should be taken into account. There was no need to be constrained (as was the court in Mackay and others v Macleod and others, a case involving a trust document). Moreover, a fundamental principle did not have to be expressly stated. Such a principle could be implied. Thus the right of continued protest was inherent in the constitution of the Free Church, even although it might not be found to be explicitly stated as a fundamental principle in the church constitutional documents. For example, the whole tenor of passages in Ch.XX and XXXI of the Westminster Confession pointed to a right of continued protest, guided by conscience.

[39] By contrast, the defenders asserted that a fundamental principle had to be expressed. Alternatively, at the very least, there had to be an implication which had been accepted and made fundamental from the outset. Moreover the search for fundamental principles was restricted to certain authoritative documents, such as the Bible; Dr. Chalmers' Affectionate Representation; the Westminster Confession of Faith; the Claim, Declaration and Protest 1842; the Protest 1843; and the Act of Separation and Deed of Demission 1843 : cf. Bannatyne v Overtoun, at pages 613, 617 to 619, 677, 707; Lord Guthrie at page 20 of his judgement in Mackay and others v Macleod and others; and the Lord Justice-Clerk in Craigie v Marshall.

The views and actions of individuals, and the reaction of the church

[40] The pursuers submitted that the concept of protest stemmed from the history and development of the Free Church. Thus the views and actions of individuals might be of some significance in determining the fundamental principles of the church. It was not the individuals upon whom reliance was placed, but rather the response or reaction of the church to those individuals. That response might be a useful exposition of the views of the church. The actings of Dr. Begg and others during the period from 1863 onwards and the church's reaction to them (all as set out in Article 15 of Condescendence) were illustrative of what was essential to the character and identity of the Free Church. The protesters had been permitted to protest. They had not been outlawed or suppressed. No libels had been served. There had been a recognition within the church that protest in defence of the constitution was an essential part of the fabric of the Free Church. Counsel did not go so far as to suggest that the 19th century protests proved a right of continued protest. Without other sources, there might be doubt as to whether what occurred in the 19th century was toleration, liberty, licence, or exercise of a right. But the events of the late 19th century, taken with the words of the Disruption Fathers in the Act of 1851, went some way to assisting the court as to the nature of protest.

[41] The defenders however argued that the opinions or actings of individuals, and the reaction of the church to such opinions or actings, could not be used as a means of identifying a fundamental principle. On the contrary, it was necessary to examine the authoritative declarations of the church: Bannatyne v Overtoun, pages 657, 681-2; Smith v Galbraith, at pages 683-4. Dr. Chalmers' Affectionate Representation was referred to not simply because he had been the moderator of the church at the relevant time, but because his address had been adopted and ordered to be circulated by the General Assembly: Bannatyne v Overtoun, at pages 617-8.

A two-stage search process

[42] The pursuers contended that the search for a fundamental principle was a two-stage process. First, was there a principle of the sort contended for? Secondly, was that principle fundamental? The court should be hesitant to conclude that a principle, once established by evidence, was not fundamental: Bannatyne v Overtoun, at pages 645, 647-8, 651, 661, 676, and 678.

[43] The defenders did not give any particular support to such a two-stage process, preferring to emphasise the importance of identifying the principle in question before any attempt was made to impose an onus of establishing that the principle was "not fundamental".

A right of continued protest as a fundamental principle of the Free Church

[44] The pursuers submitted that an analysis of all relevant material demonstrated that the right of continued protest was fundamental to the constitution of the Free Church of Scotland: cf. Bannatyne v Overtoun, cit. sup. The right to be heard when one's conscience dictated that one should speak was at the very heart of the historical documentation. The right was inherent in the constitution, it being essential to the nature and the fabric of the church and its development. The right was linked to the ordination vows of the office-bearers to assert, maintain, and defend the constitution of the Free Church. The right derived from the importance of the recognition in the Free Church's ideology of the headship of Jesus Christ, and the liberty of conscience. The character of the right involved continuing to protest where the dictates of conscience compelled one to do so: cf. the Westminster Confession. The 1851 Act (referring to abuses after 1711) could not be clearer in identifying "the unjust denial of the right of protest for the exoneration of individual consciences". The ordination vows, when read together, required the constitution to be defended, provided that lawful decisions of the church courts were not disobeyed while so doing. The right of protest did not extend to decisions reached after due observance of the laws of the church, but did extend to decisions which had not been taken in accordance with due constitutional process: cf. the Westminster Confession, and the ordination vows. "Protest" was different from "dissent", as it implied an active, rather than a passive reaction. The right (and duty) was to continue protesting until the error had been corrected, or alternatively until a judicial decision had been issued by the church courts after due constitutional process and inquiry, or alternatively until the reasons for protest were answered and shown to be invalid.

[45] The defenders for their part contended that the proper approach to the search for fundamental principles did not reveal a right of continued protest as a fundamental principle of the Free Church.

The decision not to pursue further any allegations against the professor

[46] The pursuers contended that the issue before the court related to the response by a majority to a minority who wished to have further discussion on matters of due process of discipline, in order to safeguard the purity of the church and contribute to its Godly integrity. The pursuers' position was that neither the majority decision of the General Assembly, nor the view of the TOM committee, was a judicial determination. Accordingly those decisions were not immune from review. They could competently be protested against. Those in the church whose consciences dictated that justice had not been done or seen to be done were therefore entitled and indeed bound to continue to protest against that decision until a judicial decision was issued by the church, after due constitutional process and inquiry. It was that right of continued protest which had been wrongly suppressed, resulting in a fatal departure from fundamental principle and constitution such that the Free Church (Residual) was no longer the true Free Church of Scotland. The pursuers in the present case were not therefore defying lawful decisions of the church courts (which would, the pursuers contended, have the effect of bringing the right of continued protest to an end).

[47] By contrast, the defenders' position was that the TOM committee had certain duties to examine and assess the allegations made against the professor, all as set out in paragraphs [10] and [11] above. The defenders pointed out that the TOM Committee had simply fulfilled those duties. They had ultimately concluded that insufficient evidence had been found capable of proving in the courts of the church censurable conduct on the part of the professor. That decision had been endorsed by majority vote in the General Assembly of the Free Church of Scotland. No further procedure had then been required.

Apportionment of the assets of the Free Church

[48] The pursuers contended that it was competent (as an alternative to decree de plano finding the pursuers entitled to the assets held in trust for the Free Church) to apportion those assets between the pursuers and defenders. The question of joint entitlement had not been ruled upon in Bannatyne v Overtoun. In Craigdallie, the dicta of Lord Eldon suggested that he would have given serious consideration to apportionment if such an option had been argued for. Lord Eldon's views were referred to in Couper v Burn, at page 145. The decision in Mackay and others v Macleod and others demonstrated that there was a high test for forfeiture of a right to participate in church property held in trust, for in that case, the separating group were held not to have forfeited their right. Lord Shand at page 519 of The Ferguson Bequest Fund Case gave useful guidance as to options available when competing bodies were deemed still to be under the umbrella of the intention of the trust. The court should therefore give consideration to an equitable resolution of the current dispute, doing equal justice to both parties. The Free Church Model Trust Deed, used in relation to congregational property, was of no assistance in construing the general trust under which the assets in question were held. If the court was minded to consider apportionment in terms of the sixth conclusion, the case should be put out By Order for further procedure.

[49] By contrast, the defenders submitted that there was no reason in law or policy why a remedy of apportionment should be granted. At page 1103 of Bannatyne v Overtoun (1902) 4 F. 1083, Lord Low expressly rejected such a suggestion in the Outer House. The Inner House should also be taken as rejecting such a claim. In the House of Lords, an argument about apportionment did not succeed, counsel having abandoned the argument. Cases such as Craigdallie and Mackay should be distinguished, as they involved congregational property coupled with actual possession by the party at risk of forfeiture. Moreover at page 23 of his judgement in Mackay the Lord President warned that "Seceders secede at their peril". The Ferguson Bequest Fund Case involved circumstances very different from the present case, namely the sharing of an income stream where a testator intended to benefit a number of voluntary churches. Connell v Ferguson (1861) 23 D. 683 supported the defenders' position. The Free Church Model Trust Deed, which applied to congregational property and contained provision for apportionment, did not assist in relation to the general assets of the church. Indeed the provisions for apportionment contained in that deed relating to congregational property suggested that it was the intention of the church to have no form of sharing in relation to the general assets of the church.

Opinion

Extent to which the Court of Session can interfere

[50] In The Ferguson Bequest Fund Case, (1879) 6 R. 486, Lord President Inglis observed at page 508:

"... Where two parties, in the position of those now before us, each claim exclusive right to the property of the religious association to which they both originally belonged it is sometimes impossible to decide the question of property so raised without inquiring which party has adhered to and which has departed from the doctrines and rules of the association. And the same occurs where a particular congregation, having separated itself from the rest of the body, claims to retain the buildings or other property occupied by the congregation, but held on titles permanently connecting the property with the society or church, and justifies its separation on the ground that the majority of the body have renounced or departed from the articles of belief or general laws which formed the bond of union. In such cases it must be observed that the claim is based on allegations of breach of contract, that the subject in dispute is matter of civil and patrimonial right, and that the court cannot decide that question of right without reading and interpreting the contract which imposes on the members adherence to particular doctrines, laws, or usages as conditions of membership of the association ..."

[51] Lord President Cooper confirmed the limitations of the jurisdiction of the Court of Session in Mackay and others v MacLeod and others, 10 January 1952 (First Division, unreported) as follows:

"The pleadings and the arguments of counsel in this case have ranged over a very wide and highly contentious field, and it was represented to us, at least from one side of the Bar, that the purpose of this litigation was to secure a decision on a matter of principle of grave concern to the Free Presbyterian Church of Scotland. In these circumstances, I deem it necessary to re-affirm at the outset the limited jurisdiction which alone a civil court can be required to exercise in a case of this kind.

In form and in substance the single controversy which we are invited to resolve relates to a matter of patrimonial right. It arises in a competition between two parties, each claiming to be the beneficiaries entitled to certain trust property. The trust is so expressed as to make the beneficial right dependent upon adherence by the beneficiary to the constitution and whole standards of the Free Presbyterian Church of Scotland as set forth in specified documents. In such a case it is the duty of the court to take cognisance of relevant matters of belief, doctrine and church government for the purpose, but only for the purpose, of informing themselves as to the essential and distinguishing tenets of the church in question, and of discovering the differences, if any, which can be detected in the principles to which the competing claimants respectively profess adherence. For us all such matters are matters of pure fact, which we investigate with the limited object of enabling us to apply the provisions of the trust; and it is not our province to form, still less to express, any view of our own upon the truth, reasonableness, propriety or relative importance of the various doctrines, standards, or matters of ecclesiastical polity to which our attention may be directed, nor to decide any question of ecclesiastical principle which is not inseparable from the question of patrimonial right. I refer to the series of authoritative decisions beginning with Craigdallie 1 Dow 1 and ending with The Free Church case 7 F. (H.L.) 1, in all of which the courts have stressed their reluctance to embark upon an investigation of this kind except to that limited extent and with that limited purpose ..."

[52] More recently, Lord Justice-Clerk Ross made similar observations at page 480 of Brentnall v Free Presbyterian Church of Scotland, 1986 S.L.T. 471.

[53] As the resolution of the current dispute over the assets of the Free Church depends upon alleged departure from a fundamental principle of the Free Church, the Court of Session has the limited jurisdiction outlined above.

Parameters of a search for the fundamental principles of the Free Church

[54] In both Couper v Burn (1859) 22 D. 120 and Bannatyne v Overtoun (1902) 4F. 1083, [1904] A.C. 515, the court's search for the fundamental principles of the Free Church was not restricted to the period around 1843. On the contrary, in each case the court considered the period from around 1843 to the date of the debate before the court. In my view therefore the pursuers are correct in their contention that in searching for the fundamental principles of the Free Church, the court is entitled to consider the whole period from around 1843 to the present.

[55] Similarly I consider the pursuers to be correct in their submission that the court is not restricted to certain constitutional documents of the church, such as those listed by the defenders. In order to ascertain what a donor of funds had said or written (Bannatyne, the Lord Chancellor at page 617), or what the donor had professed or declared (Bannatyne, Lord Davey at page 645), or to ascertain the donor's utterances (Lord Davey at page 647) or expression of views (Bannatyne, Lord James at page 657), or to ascertain how a principle was regarded by the founders of the Free Church (Bannatyne, Lord Alverstone at page 717), I consider it necessary to examine all relevant and credible material expository of the essential fundamental principles of the Free Church. Such an approach was adopted by some of their Lordships in the House of Lords in Bannatyne v Overtoun, and by lower courts in Smith v Galbraith, and Couper v Burn, (where regard was had to the Act of 1851). In Mackay and others v Macleod and others, the court was restricted in that it had to determine the nature and constitution of the Free Presbyterian Church of Scotland from the provisions of a Deed of Separation, together with certain documents specified in that deed. There is no such restriction in the present case. I shall therefore take into account material such as the Act of 1851, chapter 9 - an Act accepted by the defenders as being expository of the constitution of the Free Church (pages 23E to 24A, and 24C-D of the Closed Record) but not strictly forming part of that constitution (page 107C of the Closed Record).

[56] Finally, the pursuers may be correct in their submission that the views and actings of individuals are of significance in determining the fundamental principles of the Free Church. Lord Robertson at page 681 of Bannatyne did not categorically exclude such an approach. The particular circumstances relied upon in any case would require to be closely scrutinised: cf. the cautionary words at page 684 of Smith v Galbraith. For the purposes of the present debate, I accept the suggestion that the actings of persons such as Dr. Begg and others in the FCDA during the latter part of the 19th century, and the church's reaction to them, may be taken into account when seeking to identify the fundamental principles of the Free Church. I am also content to adopt the two-stage procedure advocated by the pursuers.

Whether search reveals a right of continued protest as a fundamental principle of the Free Church

[57] I have applied the approach outlined in paragraphs [54] to [56] above. I have given careful consideration to the documents referred to by the parties; the averments on record; and the legal authorities cited. I have been unable to identify a right of continued protest as a fundamental constitutional principle of the Free Church.

[58] It was submitted that the Free Church was born out of protest (reflected in the Protest of 1842 and 1843). It was also submitted that the activities of Dr. Begg and the FCDA in the latter part of the 19th century amounted to a demonstration of the fundamental right of continued protest, or rather a recognition within the church that protest in defence of the constitution was an essential part of the fabric of the Free Church. In my view, however, the formation of the Free Church, and the activities of Dr. Begg, the FCDA, and others, simply illustrated a determination to maintain and protect what were considered to be the substantive fundamental principles of the Free Church. Protest was a means to that end. Protest was not in itself a fundamental constitutional principle. The tolerant reaction of the church to the activities of Dr. Begg and the FCDA did not in my view elevate the protest into a fundamental and constitutional principle, namely a right of continued protest.

[59] Further, it was submitted that the preamble to the Act of 1851 disclosed that fundamental right of continued protest. However I consider that the preamble does no more than set out the genesis of the Free Church, the problems which beset the church, and the members' determination to remain true to the fundamental principles of the Free Church, such as the Establishment principle, the presbytery principle, and the principle of spiritual independence. There is nothing in the preamble, even when taken with surrounding circumstances and events, which can in my view be construed as a fundamental constitutional principle of a right of continued protest.

[60] Nor do I consider that other documents and materials referred to in the course of the debate can properly be construed as referring to a right of continued protest as a fundamental principle of the Free Church. Chapters XX and XXXI of the Westminster Confession emphasise the importance of being guided by conscience. Properly construed, those chapters do not in my view disclose a right of continued protest as having the status of a fundamental principle of the Free Church: cf. the views of Lord President Cooper at page 16 of his judgement in Mackay and others v Macleod and others, 10 January 1952 (Inner House, unreported). The Claim, Declaration and Protest of 1842 makes no mention of a right of continued protest, but again illustrates that the substantive fundamental principles of the Free Church may be defended by means of protest. Similar observations apply to the Protest of 1843. The Deed of Demission and the ordination vows are silent on the question of a right of continued protest, while the Barrier Act 1697 adds nothing in that context.

[61] In my view, protest is a flexible concept: cf. paragraphs [67] to [69] below. The Oxford English Dictionary (2nd ed.) includes the following definitions of protest:

"4. A formal statement or declaration of disapproval of or dissent from, or of consent under certain conditions only to, some action or proceeding ...5. Demonstrating or representing a protest against a specific action or proceeding"

Protest is a means of achieving an end. The end may, or may not, represent a fundamental principle of the church: cf. dicta of the Lord President at pages 13 et seq. of Mackay and others v Macleod and others, cit. sup. The range of possible protests extends to all manner of disagreements and disputes, both major and minor, matters of fundamental principle and matters which cannot be regarded as such, and may be used in relation to allegations of shortcomings on the part of one particular member.

[62] There may well be circumstances in which an attempt to stifle a protest by a minority amounts to an aspect of a departure from a fundamental tenet of the church. For example, if protest were directed against unification with another church involving such doctrinal compromises as to result in a departure from fundamental tenets of the Free Church, then attempts to stifle such protest might properly be deemed an aspect of that departure. Similarly, if protest were directed against a decision of the General Assembly that the commandment "Thou shalt not commit adultery" should no longer be observed (in other words, a decision that there should be toleration of immorality similar to the "abuses in the administration of the church's discipline and government" referred to in the preamble of the 1851 Act), such a ruling would be a blatant departure from the fundamental principles of the Free Church, and attempts to stifle any protest against the ruling might properly be deemed to be an aspect of that departure.

[63] But such a situation has not arisen here. There has been no ruling that immorality is to be tolerated. Certain disciplinary procedures were invoked in relation to alleged shortcomings on the part of an ordained member of the church holding a responsible position. The procedures were regarded as highly unsatisfactory by a minority in the church. But those circumstances are very different from the departure from fundamental tenets outlined in paragraph [62] above. Similarly the grounds underlying the formation of the FCDA in the present case were very different from the grounds which gave rise to the formation of the FCDA in the 19th century.

[64] In the result therefore I have been unable to identify a right of continued protest as a substantive principle of the Free Church of Scotland, nor have I been able to identify such a right as a fundamental constitutional principle of the Free Church of Scotland. On the view which I have reached, it is unnecessary to consider the arguments presented as to whether or not a fundamental right of continued protest would be compatible with the fundamental principle of spiritual independence.

Esto the right of continued protest is a fundamental principle, whether there has been a departure from that principle

[65] Lest I am wrong in my conclusion that a right of continued protest is not a fundamental principle of the Free Church, I give a view on the contentious issue as to whether the defenders departed from that fundamental principle in the circumstances outlined in paragraphs [9] to [25] above. The pursuers contended that there was such a departure; the defenders contended that there was not.

[66] In my view, esto there is a fundamental principle comprising a continued right of protest, the protean nature of that principle makes it difficult to be satisfied that the defenders have departed from it to such an extent that they can no longer be regarded as the true Free Church. As became apparent during the debate, the nature and parameters of the fundamental principle contended for by the pursuers could not be satisfactorily defined. Neither the nature nor the time-scale of any right of protest could be clearly identified.

[67] The pursuers' own pleadings disclose a wide variety of writings and actings falling within the definition "protest". For example, lodging protests against the decisions and rulings of the General Assembly, including judicial rulings (pages 31D to 32A, 32E to 33A, 37A-B, 98D, 119A, 119D-120A, 122B-D, 135C-D, and 215A-B of the Closed Record); lodging dissents combined with protests (pages 44C-D, 114E, 122D, 137B-C); lodging minority reports (page 50A-B); petitions (pages 89A, 146A-B); public meetings (page 33C); setting up protest associations such as the FCDA (page 31B-C); issuing dissenting material in the form of pamphlets, newsletters, articles and magazines (pages 31B, 33C, 88D-E, 92B-D and 167C-D).

[68] The authorities and the history of the Free Church suggest that protest may be a preliminary to, or a concomitant of, a separation or secession: cf. Bannatyne v Overtoun; dicta of the Lord President in Mackay and others v Macleod and others, at page 14 of his judgement, and dicta of Lord Keith in the same case, at pages 4 and 5 of his judgement. One type of protest may be followed by, or take place at the same time as or overlapping with, another form or forms of protest. A protest may be by an individual or individuals within the church, or by a group on separating from the church, or by the church against the state, or may involve yet other circumstances.

[69] In the course of the debate, the pursuers were unable to give a clear definition of the parameters of the claimed fundamental right of continued protest. At times the right of continued protest was presented by the pursuers' counsel as continuing until the error had been corrected (or the departure from the constitution had been remedied): cf. the pursuers' averments at page 251C of the Closed Record. At other times, the right was described as coming to an end on the issuing of a judicial decision by the courts of the church after due constitutional process and inquiry, properly conducted. At yet other times, the right of continued protest was described as coming to an end once the reasons for protest had been answered and shown to be invalid, for to continue protesting in such circumstances would be vexatious and contumacious against a lawful order. It is noteworthy that in Bannatyne v Overtoun (the leading authority founded on by the pursuers) the minority paid no attention to a judicial ruling from the supreme church body namely the General Assembly that the church should unite with the United Presbyterian Church. The minority continued with their protest against that very union, and were ultimately vindicated by the House of Lords. The minority were then declared to be the true Free Church, and were awarded the assets. By contrast, the right of continuing protest contended for by the pursuers in the present case would (according to counsel's submissions) be satisfied by proper procedure investigating the allegations against the professor, including a proof before the General Assembly during which witnesses could give their evidence, and culminating in a judicial ruling by the General Assembly, all prior procedures having been properly and fully adhered to. Thus the right of continued protest, as presented by the pursuers' counsel in the present case, would not survive beyond the judicial ruling of the General Assembly - a very different sort of protest from that in Bannatyne v Overtoun.

[70] The lack of clear definition, time-scale, and parameters of the claimed fundamental right of continued protest, makes it impossible in my view to hold in the present case that there has been such a departure from the claimed fundamental right as to render the defenders no longer the true Free Church.

Entitlement to assets held in trust

[71] I have been unable to categorise the events averred by the pursuers (or any part thereof) as a departure or departures by the defenders from the fundamental tenets of the Free Church. I have been unable to identify from the pleadings any other way in which the defenders could be said to have failed to adhere to the fundamental tenets of the Free Church. Accordingly the defenders - the Free Church (Residual) - are in my view fully entitled to the assets and property held in trust "for behoof of and in connection with the association or body of Christians known as the Free Church of Scotland as an association or body of Christians professing, adhering to and maintaining the whole fundamental principles of the Free Church".

[72] Nevertheless it seems to me that the pursuers equally have not departed from any fundamental tenet of the Free Church. From the point of view of adherence to fundamental beliefs and faiths, they have not forfeited any entitlement to the assets and property held in trust referred to above. The question then arises whether they have forfeited any rights in the particular circumstances of the present case by refusing to comply with certain lesser rules and regulations - not the fundamental tenets of the church, but simply rules and procedures with which members of the church have agreed to comply.

[73] The Free Church is a voluntary organisation constituted by the voluntary consent of members to certain terms of association: cf. the pursuers' averments at page 23 D of the Closed Record. Those terms include the ordination vows and Formula signed by prospective office-bearers (elders and deacons). The Formula is in the following terms:

"... I promise that, through the grace of God ...to the utmost of my power [I] shall, in my station, assert, maintain, and defend the said doctrine, worship, discipline and government of this church, by kirk sessions, presbyteries, provincial synods and general assemblies, together with the liberty and exclusive jurisdiction thereof; and that I shall, in my practice ... submit to the said discipline, government, and exclusive jurisdiction, and not endeavour, directly or indirectly, the prejudice or subversion of the same; and I promise that I shall follow no divisive course from the doctrine, worship, discipline, government, and exclusive jurisdiction of this church ..."

[74] Similarly, the Questions for probationers for the ministry include questions 5 to 7:

"5. Do you promise that, through the grace of God, you will firmly and constantly adhere to, and in your station, to the utmost of your power, assert, maintain, and defend the said doctrine, worship, and discipline, and the government of this church by kirk sessions, presbyteries, provincial synods and general assemblies?

6. Do you promise that in your practice you will conform yourself to the said worship and submit yourself to the said discipline and government of this church, and not endeavour, directly or indirectly, the prejudice or subversion of the same?

7. Do you promise that you shall follow no divisive courses from the doctrine, worship, discipline and government of this church?"

[75] In addition to probationers and prospective office-bearers, ordinary members voluntarily join the Free Church, agreeing to comply with the discipline and government of the church.

[76] Against that background, it seems to me that some or all of the pursuers in the present case may be in breach of promises or undertakings made on joining the Free Church. Matters have still to be ruled upon by the General Assembly, but in my view there are at least prima facie grounds of failure by the pursuers (or some of them) to comply with the discipline and government of the church.

[77] Complaints about what was perceived to be an unsatisfactory disciplinary procedure might be made in a variety of ways. For example, judicial review in the Court of Session appears prima facie to be a possible option: cf. the observations of Lord Justice-Clerk Ross in Brentnall v Free Presbyterian Church of Scotland. But the course adopted by the pursuers goes far beyond what is envisaged in the rules and procedures of the church, or indeed what could be achieved in a judicial review in which it was maintained, for example, that inadequate or inaccurate information had been given to the General Assembly, or that proper procedures had not been followed (cf. the pursuers' averments at pages 38D-E; 49D-E; 51E to 52C; 53C; 56A; 57D; 58B to 60B; 73C-E; 88D-E; 89A-C; 92B-D; 94D; 150D to 151A; 151D; 154B-D).

[78] In those circumstances it would in my view be inappropriate for this court to rule relevant and competent a possible apportionment of the property and assets between pursuers and defenders. If a party is in breach of a promise or undertaking given when he became a member of a voluntary association, he is not in a position to claim exclusive entitlement to a portion of the property and assets of that association.

Conclusion

[79] I am not persuaded that the pursuers have averred a relevant case entitling them to all or any of the declarators sought. Neither however am I persuaded that it would be appropriate at the stage of a debate to grant absolvitor, particularly where parties have not renounced further probation. I shall accordingly sustain the defenders' third plea-in-law and dismiss the action.