Court of Session (Day 2)
Wednesday 13th October 2004
In concluding her submission on the 1904 House of Lords Free Church case, Ruth Charteris, Junior Counsel for the Free Church, brought out the emphases of one of the judges:
1. In deciding if a principle is fundamental and essential, one must look at how it was regarded by the founders of the Free Church.
2. The Claim of Right (1842), the Protest (1843), and Chalmers’ Affectionate Representation were regarded by ministers and members as formulating the essential principles on which the Free Church was founded.
3. Any consideration of subsequent history should be confined to the official proceedings of the Free Church, and not to the views of individuals.
She had looked in such detail at the 1904 Case because the FCC have founded their case on it and application of its legal opinions are so important. The circumstances of the 1904 Case, however, are completely different from the FCC case, both as to the identification of fundamental principles and as to the alleged departure by the Free Church of Scotland.
She then led the Court through the Craigdallie vs. Aitken Case (1803-19) which involved an Associate Presbytery building in Perth, and highlighted the opinion of the Lord Chancellor that:
1. A building held in trust for a congregation is appropriated to the use of persons who adhere to the same religious principles as those who originally attended that church.
2. It is necessary to determine if any, and if so which, of the persons who contend for the use of the place of worship, adhere to or cease to adhere to the original principles which led to the establishment of the place of worship.
She then proceeded to the Smith vs. Galbraith Case (1843) which concerned a building of the Relief Church in Campbelltown, and highlighted the following opinions:
1. The onus is on the minority to prove by clear and unequivocal evidence that the majority had departed from certain fundamental and essential principles which the minority themselves adhered to.
2. The tenets and professions of a body are to be found in their own declarations and proceedings, not in the words and publications of individuals.
In the Craigie vs. Marshall Case concerning a church in Kirkintilloch, she brought out that in the Lord Chief Justice’s opinion:
1. The party who has said that the other has lost the right, especially if the majority have possession, must make out and establish that such majority have lost the character of those for whom the property is held.
2. A Trust for members of a congregation is in the first instance a Trust for the majority, until it is made out that such majority can no longer hold the property because they are no longer properly the congregation designed.
After dealing with Couper vs. Burn (1859) and the Ferguson Bequest Fund Case (1879), Junior Counsel proceeded to consider the Mackay vs. MacLeod Case (1952) which concerned the Free Presbyterian Manse in Inverness and the holding of it by the minority who left under Rev MacQueen. Mr MacQueen, had been required to leave church and manse after he had tabled a Protest concerning a disciplinary matter. In the course of that Case, the Lord President had inquired as to what the effect of tabling a protest was, and had found no explanation. Since the Reformation the word had acquired an ominous significance – it had become associated with immediate separation. He also did not find any justification for Protest in the chapter on Liberty of Conscience in the Confession of Faith. The kind of Protest being envisaged led not to freedom of conscience but anarchy. In addition, Protests do not appear as a fundamental tenet of the Church.
At this point the Court adjourned to resume tomorrow (Thursday 14th) at 10.45 am.
Alex MacDonald
Media Officer |
