1956_Douglas_Walsh_Legal_Decision.pdf

1986 SESSION CASES.

THE,COURT OF SESSION,

AND -0 IN THE

COURT OF JUSTICIARY

HOUSE OF LORDS,

EDITOR), D. I. MACLEOD,

R. KING MURRAY, rn~

J. M. PETERSON, ADVOCATES.

EDITED BY

R. C. MACFARLANE, Q.C.

PUBLISHED FOR THE FACULTY OF ADVOCATES

OLIVER AND BOYD

TWEEDDALE COURT, EDINBURGH

REPORTED BY

J. R. FIDDES (ASSISTANT

126

CASES DECIDED IN THE 1966 S. C. (H.L.).

July 19, 1966.hee been of (I Very unudohah,and the feat that t h~

pointa

Britth were raised for the first time during the hearing of thia appeel tmggeefe

Oxygen CO. V. that they heve had little, if tmy, proper oomidmtion in the earlier

Waet

Sootlend

El~trioity the whole form of action here b not mieoanceived.

Bo8rd.

ategee of the aeee. There meme to me to be a seriou queation whether

I would dismiss the appeal.

WW,

& my. W.S., Edinburgh-

R. A. -, for CAMPBELL SYITH ~~TEIBON & OLIPHIWT, W.S., Edin-

burgh, W~~oar,

JOHNSTON

Glesgow, and BIOOABT,

LWMSDEN

& Co.. Glesgow.

- Sir Lynn CTngoed-Thomae, Q.0.-5. 61. Noakee--1Emlie.

July 19, 1956. THELORD ADVOCATE,

Donaus WALSH, hrrsuer (Appellant).-

welsh V.

aa repreeenting the Wter of Labour and

National Service, Defender (Respondent).-Lord

Adv.

LOK~

Advocate.

ue&Mity to sctuics--E~p

tiow-" RcguIar minister of any religioue denomination "-" Rhguw

denomination "-" Regulor minieter "-Church-Yinbter-NdM

8ervice Act, 1948 (11 and 12 Qeo. VI, cap. 64), First 8cM., par. 2.

The National Servioe Act, 1948, by Fht Sched., par. 2, exempts

from liability to national servioe " a man in holy ordm or a

regular minister of any religioua denomination."

A member of a body of professing Chrietians known aa Jehovah's

Witnessee, holding the appointmenta of pioneer publisher and

congregation servant of that body, brought an action against

the Lord Advocate for declarator (1) that Jehovah's Witnesses

were a religious denomination within the meaning of the etetutory

exemption, and (2) that he, by virtue of hie appointments, wee a

regular minister of that religioua denomination, and consequently

exempt from national service.

The Lord Ordinary (8trachan) having after a proof granted

the first declarator and refused the second, the Lord Advo-

cate, for the purposes of the action, eooepted the deobion of

the Lord Ordinary on the firet point, and, on a reclaiming

motion by the pursuer, the Second Division affied hie decision

on the second point.

HeM (aff. judgment of the Second Division) that the pursuer

was not " a regular miniater of a religious denomination " within

the meaning of the statute, in reapect more eapecrslly that he

and othere holding similar appointmenta had not a statue which

set them apart from the other members of the denomination

and placed them above the othere in spiritual matters.

Opinione that the organisation of Jehovah's Witneasee wae of

such a kind as to create no such office ae a " regular minister "

in the statutory sew.

Dictum of Lord Anderson in Ouy v. Mackenna, 1917 J.C. 69, at

p. 63, dkapproved by Lord Keith of Avonholm.

NO-, HABUSY & Co., for PBXXOWP

& ~

No. 8.

MiUigat+Leslie, Q.0.-Kissen, Q.C.

Stdutc-Conet~N~

1066 8. C. (H.L.). HOUSEOF LORDS.

127

lo, 1966.

Donglaa Wsleh brought an action againet the Lord Advocate, Webb-

m repreeenting the Minister of Labour and National service,^^^

in which he concluded " (1) for declasator (a) that the body of~dvooate.

Christian people known as Jehovah's Witnesses forms and is aLord=-

religions denomination for the purposee of paragraph 2 of theof~en.

First Schedule to the National Service Act, 1948, and (6) that the Lzdd.

pursuer, by virtue of his appointments 8s pioneer publisher and Lord

company 88rvant * of the said body, is a regulrtr mhisbr of thatMecDermott.

~uly

religious denomination ; (2) for an order, in terms of section 21 t;zvf$,"kn.

(1) (a) of the Crown Proceedings Act, 1947, declaring that the hrd

pursuer not being a person subjeot to mgbtration for the purposes Bomervell of

of eection 8 (1) of the National Service Act, 1948, the MinisterHmow.

of Labour and National Service has no power to serve or cause

to be served upon the pumer a notice requiring him to submit

himself for medical examination . . . 3'

A proof before answer was allowed. The facts established

at the proof appear sufficiently from the opinions of the Judgee.

On 7th January 1955, after considering the proof, the Lord

Ordinary (Strachan) granted a declarator in terms of conclusion

1 (a) and aeaoilzied the defender from conclusions 1 (b) and 2.

LOBD STR~~AN'S

o~mo~.-Thepursuer in this action is one of

the body known as Jehovah's Witnesses and within that body he holds

appointmente as a " pioneer publisher " and as a " congregation

servant." The question in the case is whether in virtue of those

appointments, or of one or other of them, he is exempt from national

eervice. The persons who ere not liable to be called up for national

service are set forth in the First Schedule to the National Service

Act, 1948, paragraph 2 of which is in the following terms :-" (2) A

man in holy orders or a regular minister of any religious denomination.''

The pursuer's cclse is that in view of the appointments which I

have mentioned he is a regular minister of a religious denomination

and is therefore exempt from service. That claim is opposed by the

Crown.

On 12th February 1954 I allowed a proof before answer in the case

and I refer to my opinion of thst date. The proof has now been

held before me end I have to decide the case upon the evidence which

hae been led. A very great deal of evidence was adduced for the

pursuer, the shorthand notee extending to no less than 760 pa es.

In my opinion, the relevant evidence could have been stated wit % in

much shorter compaee, but as this is a very unusual case, and is indeed

a teat case from the point of view of Jehovah's Witnesses, and as

three of their headquarters staff came specially from America to give

evidence, I took the view that it was desirable to give them the fullest

opportunity of putting forward their case and I was not disposed to

curtail the evidence which they offered. I had in mind also that this

is really the first opportunity in this country for an enquiry into the

relevant fads in a civil process. A similar question has been raised

in earlier caw but it has always previously been initiated in (I summary

prosecution, with the consequent limitations upon a right of appeal.

Ae indicated in my previous opinion there are two main questions

for decision, namely, (1) whether the body known as Jehovah's

* The title " company servant " wee later altered to " congregation

mant."

the Court of &mion 21st July 1966.)

CASES DECIDED IN THE ,1866 8. C. (H.L.).

Welsh v.

Lord

Advocete.

is. Wit,nesses is a religious denomination within the meaning of the

statute, and (2)whether the pursuer is a regular minister of a religious

denomination within the meaning of the statute.

Before dealing specifically with those questions it is necessary in

the fist place to consider the history of Jehovah's Witnesses and

the evidence as to the nature and size of their organisation at the

present time, and aa to their activities. My previous opinion con-

tained a narrative of their history, so far as it appeared from the

averments made in the pleadings. At the risk of some repetition,

however, I think it is proper that I should restate the position aa now

disclosed in the evidence.

The body known ee Jehovah's Witnesses had ita origin in a Bible

cless or Bible study group whioh began studying the scripturea +ut

the year 1870 in Pittsburgh, in the County of Allegheny, Pennsylvania.

One of the group waa Charles Taze Russell, who conducted a haber-

daahev store in Pittsburgh. He became the leader of the group and

his studies appear to have been directed among other things to an

interpretation of the prophecies and teachings of the scriptures wit,h

a view to fixing the date of the second coming of Christ and the events

that would happen then and thereafter. It is apparent that he formed

distinctive viewe on these and other topics, and he seems to have

attracted a growing number of adherents in a very short time. In

1879 he started to publish the magazine which is now known as The

Watchtower and which was originally called Zion'~ Watchtower. He

and hb fellow students took the name of Zion's Watch Tower Tract

Society, and, to give continuity to the body which he had thus founded,

a charitable corporation was formed under that name in 1884 under

the laws of Pennsylvania. Of four forms of corporation known to

the law of Pennsylvania the form of charitable corporation was

adopted because it was best suited to the purposes in view. The

reasons for forming the corporation were explained in the copy of

the Watchtower published in October 1884, to which I refer. The

purposes of the incorporated body as set forth in its charter in its

original form were, inter alia, as follows :-" The dissemination of

Bible truths in various languages by means of the publication of

tracte, pamphlets, papers and other religious documents, and by

the use of all other lawful means whioh its board of directors, duly

constituted, shall deem expedient for the furtherance of the purpose

stated."

In 1896 the name of the corporation was changed to Watch Tower

Bible and Tract Society. That corporation has always been the

parent society of the body now known as Jehovah's Witneeses.

By 1909 the activities of the society had spread to several countries

and for convenience in administration the headquarters waa moved

from Pittsburgh to Brooklyn, New York. In the same year another

corporation was incorporated under the law of New York with the

name of People's Pulpit Association. That association was formed

as a separate corporation on legal advice, partly in order to obtain

exemption from taxes in New York, and it became the corporation

for holding property in America and for directing the work of the

society in America. The name of the New York corporation was

later changed to Watch Tower Bible and Tract Society Inc.

The organisation continued to develop and spread, and itrc adherentcr

throughout the world became known rte the International Bible

Studenta Association. That n7as the name officially sanctioned by

the headquarters of the society for the membere of the body aa a

whole. Charles Taze Ruaeell was recognised by the membem aa

Lord

8trachn

(Ordinary).

July 19, 196

L.). HOUSE OF LORDS.

different countries in order to hold property and for other similar z::h

19, 1968.

London under the name of International Bible Students Association. -

A copy of the memorandum and articles of aeeociation of that company Lord

is in process. That body waa not, and never has been, the governing Strachen

authority of Jehovah's Witnesses in this country.

(Ordinary).

At an international convention of members held in Columbia, Ohio,

in 1931 it waa resolved to change the name of the organisation to

" Jehovah's Witneeses " and the body has been known by that name

ever since.

Great stress is laid by Jehovah's Witneesea on what is referred to

as theocratio rule, that is, government by God. The organisation is

wid to be theocratic, that is, it is governed from the top downwards

and not from the bottom upwards. Prior to 1938, however, the

congregations throughout the world had the right to elect certain

elders by whom the affairs of the congregations were managed. That

form of democratic election was held to be inconsistent with the

theocratio principle. In fact some of the eldere had evidently shown

excessive independence and, to put an end to that position, the office

of elder was abolished in 1938. An account of that change can be

found in the Watchtower of 1st Deoember 1951 in an article headed

" Theocratic Organisation Re-established."

In 1944 there waa a very material amendment of the charter of

the parent society. Claw I1 of the charter, which sets forth the

purpose8 of the society, waa thereby amended so as to read, inter dio,

as follows :-" 11. The purposes of thie Society are : To act as the

servant of and the legal worldwide governing agency for that body

of Christian pereons known aa Jehovah's Witnesses ; to preach the

gospel of God's kingdom under Christ Jesus unto all nations, aa e

witnees to the name, word and supremllcy of Almighty God JEHOVAH :

to print and distribute Bibles and to dieseminate Bible truths in

various languages by means of making and publishing literature

containing information and comment explaining Bible truth and

prophecy concerning establishment of Jehovah's kingdom under

Christ Jesus ; to authorize and appoint agents, servants, employees,

teachers, instructors, evangelists, missionaries and ministers to go

forth to all the world publicly and from house to house to preach

and teaah Bible truth to persons willing to listen by leaving with

such persona aid literature and by conducting Bible studies

thereon . . ."

In view of the material amendments of 1938 and 1944 I do not

propose to deal in any further detail with the orghtionof Jehovah's

Witnesses prior to those years. I have mentioned the amendments

becauae I think they are of considerable importance in relation to the

previous casee in this country in which the liability for military service

of a member of Jehovah's Witndhas been considered. In view

of the amendments these wea are largely superseded. The preaent

caee must be dispoeed of on the evidence as to the organhtion of the

present day.

The memberehip of Jehovah's Witnesses is now spread over about

160 countries. The year book for 1964 shows that the peek number

of members in 1953 waa 519,982. For the purposes of organisetion

and administration the world ie divided into 72 branches. Each

branch is divided into districts, which in turn are sub-divided into

circuib, and circuits into congregations. The British branch

1956 8. C. (H.

their pastor and he beoame known as Pastor Russell. With the spread ~uly

of the organisetion it was found convenient to form corporations in -

pnrposee. In 1914, for such purposes, a company waa registered in *dvwete.

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