¹ This article began as a paper written for the Cardiff LLM course. I am grateful to Professor Norman Doe for his comments on the original paper and to Professor Francis Lyall for commenting on the article in draft. Any remaining infelicities are my own.Google Scholar

² Itself the result of an earlier union between two groups that had left the Church of Scotland over doctrinal differences.Google Scholar

³ The Confession was concluded in 1646 by the Westminster Assembly of Divines–a group of English and Scots Presbyterians called together by the Long Parliament in 1643; unsurprisingly, the theology of the Confession is Calvinist. It was adopted by the Church of Scotland on 27 August 1647 and enshrined in statute by the Scots Parliament as the Confession of Faith Ratification Act 1690. To a greater or lesser degree, the Confession still remains an important statement of faith for all the Churches that have grown out of the undivided Church of Scotland, both in Scotland itself and throughout the wider Scots diaspora.Google Scholar

⁴ The Proceedings of the first General Assembly were described simply as those of ‘The Church of Scotland’, and various names were current at the outset: ‘Protesting Church’, ‘Free Protesting Church’, and ‘Free Presbyterian Church’ were all used.Google Scholar It was not until the autumn of 1843 that the new institution came to be referred to as ‘The Free Church of Scotland’: Drummond, Andrew L and Bulloch, James: The Church in Victorian Scotland(St Andrew Press, Edinburgh, 1975), p 13.Google Scholar

⁵ Proceedings of the General Assembly of the [Free] Church of Scotland (1843) p 12: emphasis added.Google Scholar

⁶ For example, the UPC was the first Scottish Presbyterian Church to introduce hymns and pipe-organs into its services, at a time when unaccompanied metrical psalms and scriptural paraphrases were the liturgical norm.Google Scholar

⁷ Articles forming the Basis of Union of the United Secession and Relief Churches to form the United Presbyterian Church.Google Scholar

⁸ Simpson, P Carnegie: The Life of Principal Rainy vol I, p 277Google Scholar (quoted in Sjölinder, Rolf: Presbyterian Reunion in Scotland, 1907–1921 (T&T Clark, Edinburgh, 1962), p 85).Google Scholar

⁹ Carruthers, S W ed.: The Confession of Faith of the Assembly of Divines at Westminster (Free Presbyterian Publications, Glasgow, 1978): emphasis added.Google Scholar

¹⁰ Ibid.

¹¹ Act of Assembly ix of 1697, which provides that any Act altering the ‘Rules and Constitutions of the Church’ may be made only with the consent of a majority of Presbyteries and which is normative for all the bodies descended from the undivided Kirk.Google Scholar

¹² See MacLeod, James Lachlan: The Second Disruption—The Free Church in Victorian Scotland and the Origins of the Free Presbyterian Church (Tuckwell Press, 2001).Google Scholar

¹³ General Assembly of the Free Church of Scotland v Lord Overtoun: Macalister v Young [1904] AC 515; (1904) 7 F (HL) 1; 12 SLT 297, hereinafter referred to collectively as the Free Church Case.Google Scholar Fraser's report is the less comprehensive; much fuller is Orr, Robert L: The Free Church of Scotland Appeals 1903–04 (Macniven & Wallace, Hodder & Stoughton, Edinburgh & London, 1904).Google Scholar

¹⁴ Collins, GNM: The Heritage of Our Fathers: The Free Church of Scotland: Her Origin and Testimony (Knox Press, Edinburgh, 1974), chapter 15, paragraph 2.Google Scholar

¹⁵ [1904] AC 519; see also Lyall, Francis: Of Presbyters and Kings—Church and State in the Law of Scotland (Aberdeen UP, Aberdeen, 1980), p 109.Google Scholar

¹⁶ It was rumoured that Lord Shand, persuaded by the arguments advanced on behalf of the General Assembly, had written a speech to that effect and that, had he not died, the Committee would have divided 3:3: see, for example, Stewart, Alexander and Cameron, J Kennedy: The Free Church of Scotland: The Crisis of 1900 (np, Edinburgh 1910, reprinted Knox Press, Edinburgh, 89) p 194.Google Scholar But that is pure speculation.

¹⁷ [1904] AC 519 at 559.Google Scholar

¹⁸ 1904 7 F(HL) 1.Google Scholar

¹⁹ [1904] AC 519 at 613.Google Scholar

²⁰ (1813) 1 Dow, 1, 16.Google Scholar

²¹ [1904] AC 519 at 613.Google Scholar

²² [1904] AC 519 at 620.Google Scholar

²³ [1904] AC 519 at 617 ff.Google Scholar

²⁴ [1904] AC 519 at 617.Google Scholar

²⁵ [1904] AC 519 at 621.Google Scholar

²⁶ Some of which, it should be said, are of doubtful relevance. For example, all strands of the seventeenth-century Kirk—Episcopalian as well as Presbyterian—would have dismissed the deliberations of the 1672 Synod of Jerusalem as mere heretical ramblings.Google Scholar

²⁷ [1904] AC 519 at 624: emphasis in original. One might well ask, ‘So why bother with Christianity at all?’Google Scholar

²⁸ Ibid.

²⁹ [1904] AC 519 at 626.Google Scholar

³⁰ [1904] AC 519 at 627.Google Scholar

³¹ [1904] AC 519 at 626.Google Scholar

³² [1904] AC 519 at 627.Google Scholar

³³ [1904] AC 519 at 646–647.Google Scholar

³⁴ [1904] AC 519 at 648.Google Scholar

³⁵ [1904] AC 519 at 648.Google Scholar

³⁶ [1904] AC 519 at 650.Google Scholar

³⁷ [1904] AC 519 at 719.Google Scholar

³⁸ [1904] AC 519 at 688–689.Google Scholar

³⁹ [1904] AC 519 at 689–70.Google Scholar

⁴⁰ [1904] AC 519 at 631.Google Scholar

⁴¹ [1904] AC 519 at 632.Google Scholar

⁴² Melville, James: The Autobiography and Diary of Mr James Melville (Wodrow Society, Edinburgh, 1842)Google Scholar (quoted in Foster, Walter R: The Church Before the Covenants (Scottish Academic Press, Edinburgh, 1975), p 12, note 18).Google Scholar

⁴³ [1904] AC 519 at 636.Google Scholar

⁴⁴ [1904] AC 519 at 634.Google Scholar

⁴⁵ [1904] AC 519 at 634. Lord Alverstone CJ disagreed strongly with this contention: ‘It would in my view be contrary to every rule of law applicable to such a case to hold that it gave the Assembly of the Free Church power by mere union to divert the funds to a body which did not conform to the fundamental principles of the Free Church’:[1904] AC 519 at 718.Google Scholar

⁴⁶ Stewart and Cameron: The Free Church of Scotland, pp 286–297.Google Scholar

⁴⁷ For a full discussion of this point, see Thompson, David M: ‘Unrestricted Conference? Myth and Reality in Scottish Ecumenism’ in Brown, Stewart J and Newlands, George (eds): Scottish Christianity in the Modern World (T & T Clark, Edinburgh, 2000), pp 201, 213.Google Scholar

⁴⁸ Johnston, Christopher N: ‘Doctrinal Subscription in the Church of Scotland’: Juridical Review (1910) XVII 201–220 at p 213.Google ScholarIt should be said that Johnston (later raised to the Bench as Lord Sands) had little time for the theology of the Confession: ‘The Confession of Faith, framed according to the harsh ideas of its own bigoted days, seems to adopt as its keynote, “God having out of His mere good pleasure elected some to everlasting life”. Any confession which truly represented the living faith of the Christian today would take as its keynote, “God so loved the world that He gave His only-begotten Son.”’: op. cit. p 210.Google Scholar

⁴⁹ Mackay, James H [Lord Mackay of Clashfern]: ‘The Law, the Word, and the Head of the Kirk’ (in S, Lamont ed: St Andrews Rock (Bellew, London, 1992) p 149): emphasis added.Google Scholar

⁵⁰ For a fuller discussion of this point, see Cranmer, Frank A: ‘Judicial Review and Church Courts in the Law of Scotland’: [1998] Denning LawJournal p 61.Google Scholar

⁵¹ When in 1929 the Church of Scotland and the UFC united under the terms of the Church of Scotland Act 1921, provision was made at the outset for the continuance of those UFC congregations that opposed the Union.Google Scholar

⁵² For the history of the two Acts, see HC Deb (1975–1976) 913 cc 411–421.Google Scholar

⁵³ United Reformed Church Act 1972; United Reformed Church Act 1981.Google Scholar

⁵⁴ United Reformed Church Act 2000: emphasis added. The declaration that the purposes of the Act cannot be effected without the authority of Parliament is a necessary prerequisite to the promotion of a Private Bill.Google Scholar

⁵⁵ Jeremy, Anthony: ‘Doctrine and Law in the Anglican Communion’: unpublished text of a lecture given at Cardiff Law School on 11 September 1999.Google Scholar

⁵⁶ Their opinions are published in Lyall: Of Presbyters and Kings, as Appendices III and IV.Google Scholar

⁵⁷ The proposal was finally rejected by the General Assembly in 1974. The full story is set out in Herron, Andrew: Minority Report (St Andrew Press, Edinburgh, 1990), p 323ff.Google Scholar Some years later, the Assembly passed an Act disavowing its affirmation of the most anti-papal clauses of the Confession: Act of Assembly v of 1986 [Declaratory Act anent the Westminster Confession of Faith].

⁵⁸ Lyall, Francis: ‘The Westminster Confession: the Legal Position’, in Heron, Alasdair IC (ed): The Westminster Confession in the Church Today (St Andrew Press, Edinburgh, 1982), p 55.Google Scholar

⁵⁹ Murray, Ronald King [Lord Murray]: ‘Church and State’: The Laws of Scotland: Stair Memorial Encyclopaedia (Butterworths, Edinburgh, 1994), vol 5, para. 700.Google Scholar

⁶⁰ Davidson, Charles K [Lord Davidson]: ‘Church of Scotland’: Stair, vol 3, para. 1504.Google Scholar

⁶¹ I.e. without a jury. In the absence of a formal law report, this account is based on contemporaneous reports in The Scotsman, June 1996 passim. The story is also set out in the Free Church of Scotland Monthly Record—March 2000, p 54.Google Scholar

⁶² Trial by libel (i.e. on the basis of a written charge) is the traditional mechanism by which complaints against ministers are investigated and adjudicated by presbytery—though the Church of Scotland has recently abolished it in favour of investigation by an independent Presbyterial Commission.Google Scholar

⁶³ They were subsequently joined by four others. The Report of the Commission of Assembly is summarised in the FC Monthly Record March 2000, p 52.Google Scholar

⁶⁴ Free Church of Scotland (Continuing): ‘Free Church (Continuing) General Assembly’, Press Release—31 May 2000.Google Scholar

⁶⁵ Acts of the General Assembly of the Free Church of Scotland 2000: Act V [Anent the Free Church Defence Association], Act IX [Anent Suspension of Ministers withdrawing from the Church], Act X [Endorsing the Findings of the several Commissions of the General Assembly of 1999]. There is recent precedent for such a split. In 1988, the then Lord Chancellor, Lord Mackay of Clashfern, was suspended for six months from communion and the eldership by the Southern Presbytery of the Free Presbyterian Church: his offence was attending Requiem Masses for two Roman Catholic colleagues, Lord Russell of Killowen and Lord Wheatley. A significant minority of his supporters tabled a formal Protest and left the FPC: shortly afterwards, fifteen ministers and about one-quarter of the total FPC membership formed the Associated Presbyterian Churches [APC], while others joined the FC or the Church of Scotland. The resulting breach in the FPC has never healed. Uncertainties still remain as to the rights over various FPC properties but the present writer is not aware of any litigation arising from the FPC/APC schism.Google Scholar

⁶⁶ I.e. hearing.Google Scholar

⁶⁷ Craig (for Judicial Review) 2000 Court of Session P677/00 6 July (unreported).Google Scholar

⁶⁸ FC: Monthly Record—September 2000, p. 195. The report to the May 2000 General Assembly of its Finance, Law and Advisory Committee had stated that the Committee was not seeking to instigate litigation, though it was taking legal advice on the possibility of claims against the Free Church.Google Scholar

⁶⁹ Unreported: see Free Church of Scotland (Continuing): Free Church Witness—October 2000, p. 10.Google Scholar

⁷⁰ FC: Monthly Record—November 2000, p 251.Google Scholar

⁷¹ FCS(C): Free Church Witness—November 2000, insert.Google Scholar

⁷² December 2001.Google Scholar

⁷³ The Legal Advice and Property Committee of the FCS(C) announced in November 2001 that it would be bringing an action which, if successful, would ‘have the effect of freezing all invested funds held by the [FCS] General Trustees and [would] prevent the sale of property held under the terms of the Trust’: FCS(C): Free Church Witness—November 2001, p 6.Google Scholar

⁷⁴ Lyall: Of Presbyters and Kings p 109.Google Scholar