Bannatyne v The United Free Church of Scotland
| Jurisdiction | Scotland |
| Judgment Date | 19 July 1902 |
| Docket Number | No. 199. |
| Date | 19 July 1902 |
| Court | Court of Session |
Lord Low, Lord Justice-Clerk, Lord Young, Lord Trayner.
ChurchDissenting ChurchUnion of two Dissenting ChurchesAbandonment of essential principleJurisdictionProperty claimed by minority.
At a meeting of the General Assembly of the Free Church of Scotlanda dissenting Churchheld on 30th October 1900, an Act was passed by a majority agreeing to a union with the United Presbyterian Churchanother dissenting Churchand relative Acts followed transferring the property of the Free Church to trustees for the United Church when constituted. The minority regarding the said Acts as incompetent, professed as a quorum to continue to act as an Assembly of the Free Church. After the Union, which took place on 31st October, they raised in name of the Assembly of the Free Church an action against the General Trustees of the Free Church and the General Trustees of the United Free Church and its Assembly for declarator (1) that the pursuers, as representing the Free Church, were entitled to the whole property held in trust for that Church, and that no part of the said property might be lawfully diverted therefrom to any body of Christians not adhering to the whole fundamental principles embodied in the constitution of the Free Church, without the consent of the Free Church, or at least without the unanimous assent of the members of the General Assembly; (2) that the United Free Church was an association associated under a constitution which did not embody nor provide for maintaining the whole principles fundamental to the constitution of the Free Church; (3) that the United Free Church had no right, title, or interest in any part of the said property; (4) that those members of the Free Church who had become members of the United Free Church had thereby forfeited all right or title to, or beneficial interest in, the said property; and (5) that the pursuers and those associated with them truly constituted the Free Church, and were entitled to have the whole of the said property held and administered for their behoof; or otherwise, and alternatively to the foregoing conclusions, for declarator, in the second place, that the pursuers and their adherents, by declining to enter into union with the United Presbyterian Church, and by electing to remain under the name and maintain the standards and constitution of the Free Church as heretofore existing, had forfeited no right, title, or interest which they had at or prior to the 30th October 1900 in the said property, but were entitled to use and enjoy the same either by themselves, or along with such of the members of the United Free Church as had formerly
been members of the Free Church, in such proportion and on such conditions as might be determined in the process to follow.
Then followed relative conclusions for interdict and reduction if necessary.
The Pursuers averred that in separating from the establishment in May 1843 the ministers and members in their protest expressly asserted the duty of the State to maintain an Established Church, and reserved to themselves and to their successors to strive, by all lawful means as opportunity should offer, to secure the performance of this duty, and that the said duty or principle formed an essential principle of the Free Church, and that its maintenance was one of the main reasons for the formation of that Church as an association distinct and apart from those which professed themselves to be voluntaries, and that the foundation of the Free Church was a protest against the position of such Churches.
The pursuers further averred that the United Presbyterian Church was a voluntary body, and opposed to the principle of Establishment, and had, since its formation in 1847, held the doctrine that it was not within the province of the Civil Magistrate to provide for the religious instruction of the subjects.
After a proof scripto, and both parties having renounced further probation, held (in aff. judgment of Lord Low) that the defenders were entitled to be assoilziedper the Lord Justice-Clerk and Lord Trayner on the ground that the principle of Establishment was not essential to and its abandonment not a violation of the constitution of the Free Churchper Lord Young on the ground that when two dissenting Churches unite they carry with them into the united Church the property held by them respectively upon an unqualified title, and that the Court has no jurisdiction to entertain an action at the instance of a dissenting minority of one of the Churches claiming right as representing that Church to its property, on the ground that the union involved a violation of one of the fundamental principles of that Church.
On 31st October 1900 the General Assembly of the Free Church and the Synod of the United Presbyterian Church, both Scottish Dissenting Churches, met together and passed an Act called the United Free Church of Scotland Uniting Act, enacting and declaring that the Free Church and the United Presbyterian Church should henceforth constitute one United Church; that the name of the United Church should be the United Free Church of Scotland; and that its Supreme Court should be designated the General Assembly of the United Free Church of Scotland.*
The Union was preceded by a sitting of the General Assembly of the Free Church on 30th October, at which Acts were passed sanctioning the passing of the Uniting Act; declaring the United Free Church
to be the successors of the Free Church; and appointing General Trustees for holding the property of the Free Church of Scotland from and after 31st October 1900, who with their successors in office, to be from time to time appointed by the General Assembly of the United Free Church, should be the successors in office of the existing General Trustees of the Free Church. The Act anent trustees further directed the General Trustees of the Free Church, as soon as required after the Union, to transfer all property held by them as said trustees to the said enlarged body of trustees of the United Free Church. These Acts were passed by a majority, the minority dissenting and protesting (on the ground that they could not be adopted consistently with the constitution and standards of the Free Church); and thereafter an Act of Adjournment of the sitting having been moved and carried by the majority for the purpose of meeting next day to carry through the Union, the majority withdrew.
The dissentient minority, who claimed that by the above proceedings the majority had severed their connection with the Free Church, and that they alone now constituted the General Assembly of the Free Church, professed to continue the sederunt, and proceeded upon the following day to elect from their own number a Moderator, Clerk, and other officials in place of those who had gone with the majority; and further appointed, a Law and Advisory Committee, who, with the Moderator and Clerk, were empowered to take such legal steps as might seem necessary to maintain the interests of the Church.
In pursuance of this appointment, and in order to have the question determined whether by the Union the majority had severed their connection with the Free Church, and had forfeited all right to its property, the present action was raised at the instance of (1) the General Assembly of the Association or Body of Christians known as the Free Church of Scotland, acting through its Commission of Assembly duly appointed by an Act of said General Assembly, of date 2d November 1900, and the Reverend Colin A. Bannatyne, Culter, Moderator, and others, members of the said Assembly and its said Commission, and also of the said Association called the Free Church of Scotland, as such members and as representing said General Assembly, Commissioners of Assembly, and Association, and also as individuals; and (2) the said Reverend Colin A. Bannatyne, and others, being members of a Committee appointed and authorised by the said General Assembly to sue for and on behalf of said General Assembly, as such members and also as individuals.
The defenders called were (1) the General Trustees of the Free Church of Scotland as these existed previous to the 30th October 1900; (2) the General Trustees of the Free Church of Scotland alleged to have been appointed by the General Assembly of the Free Church of Scotland on 30th October 1900, for holding the whole property of the Free Church of Scotland from and after the 31st day of October 1900, and also the General Trustees of the Association or Body of Christians calling themselves the United Free Church of Scotland, alleged to have been appointed by Act of a General Assembly of said Church of 31st October 1900; and (3) members of the General Assembly of said Association or Body of Christians calling themselves the United Free Church of Scotland, assembled at Edinburgh on 31st October 1900, and being the members of the Commission of said General Assembly, as such members and as representing the said Association, its said General Assembly and Commission thereof.
Shortly stated, the conclusions of the summons were for, inter alia, declarator, in the first place (1), that all property vested as at 30th October 1900 in the defenders first called as General Trustees of the Free Church was held by them for behoof of the Free Church, and that no part of said property could be diverted to the use of any other association, or at least of any other association not professing and maintaining the whole fundamental principles embodied in the constitution of the Free Church, without the consent of the Free Church, or at least without the unanimous assent of the members of a lawfully convened General Assembly of the Free Church; (2) that the United Free Church was an association associated under a constitution which did not embody nor provide for maintaining the whole principles fundamental to the constitution of the Free Church; (3) that the United Free...
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