1. Contumacy not to be Hastily Inferred.

In the progress of this case the Presbytery proceeded regularly to cite the accused, once and again; and upon his not appearing, they proceeded to the trial, and having gone through the evidence they referred the whole to the Synod to adjudicate upon it, with the expression of their own opinion that Mr. Craighead ought to be suspended. The Synod met immediately after Presbytery, and took up the case, and in concurrence with the opinion of the Presbytery suspended Mr. Craighead from the gospel ministry.

In this proceeding the General Assembly are of opinion that there was too much haste. Mr. Craighead was not guilty of contumacy, for he wrote two letters to the Presbytery excusing himself for non-attendance; and if he had been guilty of contumacy, he ought to have been suspended on that ground.-1824, p. 121.

[Craighead's case, see below, chap. vii., sec. iii., sub-sec. x.]

2. Proceedings in Case of Contumacy.

When an accused church member is contumacious on a second citation, the member is suspended for contumacy; is it the duty of the session after having examined witnesses and spread the testimony on the record to decide the case, and enter the judgment also on the record?

Answered by referring to Book of Discipline, chap. iv., secs. x., xi. and xiii.-1865, p. 537, O. S.

3. Contumacious.-Restored on Submission.

The Committee to whom was referred the appeal of Mrs. Maria Hill from the decision of the Synod of Albany at their stated meeting at Catskill in her case respectfully report:

That after examining the documents presented, and hearing the statements of the parties, by themselves or counsel, your Committee are satisfied that substantial justice has been done in their case.

The alleged irregularities in the lower judicatories which are complained of are of a technical character, or caused by the course pursued by the appellant or her agents. She could at any time have arrested the proceedings and prevented a conviction of contumacy by submitting to the authority of her session and answering their citations, and can now at any moment reverse the sentence and be restored in the manner provided by the tenth article of the fourth chapter of our Book of Discipline. Your Committee, therefore, recommend that the appeal of Mrs. Maria Hill be not sustained. Adopted as the decision of this Assembly.-1864, p. 504, N. S.

[See in full below, chap. iv., sec. xiii.-1866, p. 282–288, N. S.]

XI. Although, on the first citation, the person cited shall declare in writing, or otherwise, his fixed determination not to obey it; this declaration shall in no case, induce the judicatory to deviate from the regular course prescribed for citations. They shall proceed as if no such declaration had been made. The person cited may afterward alter his mind.

1. Contumacy not to be Charged on first Citation.

The Assembly sustained the appeal of Mr. Arthur from the sentence of the Presbytery, by which he was suspended from the gospel ministry on the ground of contumacy, because the Presbytery appeared to have been precipitate, and not to have observed the constitutional rules. [See Discipline, chap. iv., secs. vi., x. and xi.] They deem, too, the request of Mr. Arthur for a copy of the first sentence to have been reasonable, and that it ought to have been complied with.-1822, p. 53.

2. The Forms of Process may not be Dispensed with.

a. Is it within the province of the session to excommunicate, without formal trial, a church member who makes a written confession of having embraced heretical views, and in consequence having violated covenant by long-continued absence from the ordinances of the Church, and who requests to be cut off from the Church?

The Committee recommend that the party asking the above question be referred to the Book of Discipline, chap. iv., and such session be urged to follow strictly the order laid down therein.

The report was adopted.-1865, p. 12, N. S.

b. [See also under Form of Government, chap. ix., sec. vi.]

If an accused person confess judgment, the actual process may be shortened, but it cannot be dispensed with.-1866, p. 268, N. S.

XII. The time which must elapse between the first citation of an accused person, or a witness, and the meeting of the judicatory at which he is to appear, is at least ten days. But the time allotted for his appearance in the subsequent citation is left to the discretion of the judicatory; provided always, however, that it be not less than is quite sufficient for a seasonable and convenient compliance with the

citation.

XIII. The second citation ought always to be accompanied with a notice, that if the person cited do not appear at the time appointed, the judicatory, besides censuring him for his contumacy, will, after assigning some person to manage his defence, proceed to take the testimony in his case as if he were present.

1. In the Absence of the Accused Counsel must be Assigned. But the appeal from the first sentence, by which the charge of slander preferred against him by the Rev. Joshua L. Wilson was declared to be substantiated and Mr. Arthur required to submit to a rebuke, the Assembly could not sustain. For, although the Assembly noticed the omission of Presbytery to assign Mr. Arthur counsel to manage his defence (see Discipline, chap. iv., sec. xiii.), yet they did judge the pamphlet, of which Mr. Arthur admitted himself to be the author, to contain slander against Mr. Wilson, and could not but disapprove of the spirit under the influence of which it appeared to have been written.-1822, p. 53.

2. In case of Contumacy, the Order of Procedure.

a. Where an accused church member is contumacious on a second citation, and the member is suspended for contumacy, is it the duty of the ses

sion, after having examined witness and spread the testimony on the record, to decide the case and enter the judgment also on the record?

Answered by referring to the Book of Discipline, chap. iv., secs. x., xi. and xiii.-1865, p. 537, O. S.

b. When the Judicatory has taken the Testimony as above, it may Proceed to Trial and final Judgment as if the Accused were present.

[The Assembly of 1865 (N. S.) appointed a Special Committee-Rev. Samuel W. Fisher, D. D., Rev. Thomas Brainerd, D. D., Rev. Ezra E. Adams, D. D., Hon. William Strong, LL.D., and Hon. Joseph Allison, LL.D. -to report to the next Assembly. See Minutes, 1865, p. 49. Their report was presented the next year and was adopted, viz.:]

The undersigned, a Special Committee, to whom was referred Overture No. 14, to the General Assembly of 1865, together with the report of a former Committee thereon, and who were instructed to report to the present Assembly, respectfully submit the following:

The overture is in these words: "When the judicatory have proceeded, in accordance with chap. iv., sec. xiii., of the Book of Discipline, to take the testimony in the case of an accused person, may they proceed to pass judgment thereon, as if he were present, or shall he be left simply under censure for contumacy?"

The question thus presented is exclusively one of power. It is not whether, in all cases, it is advisable that a church judicatory should proceed to a final determination of the case; nor is it what has been the usage in some of the tribunals of the Church; but it is strictly, What does the Book of Discipline authorize? It is freely admitted, that a long course of usage under a statute is no inconsiderable evidence of the meaning of that statute; but it must be a usage growing out of the enactment itself, and claimed to have been authorized by it. Mere neglect to exercise powers conferred is no proof that they were not granted. Had the fathers of the Church generally decided that, by the fourth chapter of the Book of Discipline, no power is recognized in a judicatory to proceed to the trial of an accused person when he has refused to obey its citations, that his contumacious refusal must arrest all steps to purify the Church of the offence charged, beyond taking evidence to prove that offence, and had such a construction of the Book been generally accepted, it ought to have weight in answer to this overture. But there is no evidence that any such judicial construction has been generally given to the language of the Book. Undoubtedly there have been differences of opinion, and, possibly, it may have been decided in some judicatory, that jurisdiction over an offence charged is necessarily suspended, whenever an accused person disobeys the citations; but this is of little value in determining what the framers of the Book of Discipline meant by its directions respecting process, trial and judgment. It is much more important that, in certain cases, where the proof is clear, as where the accused has confessed his guilt, or where he has been convicted of violating the civil law and has absconded, church sessions have been accustomed to proceed to trial and judgment, notwithstanding a refusal of the accused to appear in answer to citations. Such cases are judicial assertions of power, never denied, so far as we are informed.

But there is not enough in judicial decision nor in authoritative usage to settle the question. After all, it must be answered from the Book; and the true inquiry is, What is the fair interpretation of the rules laid down in the fourth chapter? A universally recognized rule of construction is,

that, when the purpose of a statute is clear, the means given for effectuating it are to be interpreted with reference to the purpose, and, if possible, so as to secure its accomplishment. Now the ends of discipline are clearly defined. They are declared, by the second section of the first chapter, to be "the removal of offences, the vindication of the honor of Christ, the promotion of the purity and general edification of the Church, and also the benefit of the offender himself." The fourth chapter contains the directions given to church judicatories, by which these ends are to be secured. Manifestly, they were intended to be a complete and ef ficient system adequate to the purposes in view. If they fail of that, the avowed object of their framers is defeated. Then there is no power to remove an offence in any case where the alleged offender refuses to submit himself to trial. Plainly, it is the offence charged which is sought to be removed, either by bringing the offender to repentance, or by the judg ment of the Church upon it, and ultimately, if necessary, removing the offender. It is from that offence the Church is to be purified, and the honor of Christ vindicated, for by that offence the evil has been done. Anything that comes short of discipline for that, fails of accomplishing the avowed purposes for which the directions of the fourth chapter were prescribed. Contumacious disobedience of citations is another distinct offence, punishment for which is entirely collateral to discipline for the cause that induced the commencement of the process. It is contempt of the lawful authority of the Church, and suspension for it is summary punishment for the collateral offence alone. Neither directly nor indirectly is it an expression of opinion respecting the delinquent's guilt or innocence of the charge preferred originally against him. Suspension for contumacy would be proper, without regard to anything beyond it. It is quite conceivable that an accused person may willfully disobey citations, and yet be innocent of the charges made against him. It certainly would be an anomaly in any judicial proceeding to hold that a penalty inflicted for a collateral offence vindicates the law against another and possibly much greater crime.

If, therefore, the defined ends of discipline are to be secured, a church session must have power to proceed to trial and judgment, though the accused person refuse to obey the citations duly served upon him; and it is not to be concluded, without clear evidence, that means given to secure those ends are inadequate. When the meaning of the language used in the fourth chapter is sought, the best guide to it will be found in the paramount intention the language was designed to subserve. The directions given must be construed consistently with that intention; to further rather than to defeat it. Looking then to the sections of the fourth chapter, and regarding them as part of a system designed for the purposes above mentioned, to be interpreted so as to harmonize with those purposes as well as with each other, the conclusion seems inevitable that whenever an accusation has been made against a church member, and a church judicatory has entered judicially upon its consideration and obtained jurisdiction by serving of citations upon him, it may go on to final judgment, though he refuses to obey the citations. It is observable that the entire fourth chapter is but an outline of process. It does not undertake to prescribe minutely each step that may be taken. It does not even expressly authorize a judicatory to proceed to trial in any case. It rather assumes that, having taken judicial cognizance of the proceeding, the tribunal will go to trial and judgment. Like a writ of summons in a civil court, the citation is notice that the judicatory has assumed jurisdiction of the case, and that it will proceed to its final determination. When that notice has been

given as prescribed, it is contemplated rather than expressly required that witnesses will be examined; that a trial will be proceeded with, and that a judgment will be given. All these things are implied from what is directed respecting them. They are not affirmatively enjoined or even permitted. Thus it is said, "witnesses shall be examined in the presence of the accused, or at least after he shall have received a citation to attend,” and that he shall be permitted to ask any questions tending to his exculpation. This is a regulation of the mode of examination, not a direct gift of power to take testimony, yet the implication of power is irresistible. The fourteenth section prescribes certain things before proceeding to trial; and the fifteenth declares that the trial shall be fair and impartial; but nowhere is it said there shall be a trial. The sixteenth section requires the judgment to be regularly entered on the record; but no section in words authorizes a judgment. Everywhere it is assumed that these successive steps in a judicial proceeding may be taken. It would be a rash conclusion from the absence of a specific grant of these powers to deny any right to take testimony, to try and to give judgment. The powers are not only to be implied, but they are comprehensively given by the general provision of the first section, that "the judicatory shall judicially take the offence into consideration when all other means of removing it have failed;" and they are included also in the directions to issue citations. Nor is there any substantial distinction made between cases in which the accused yields obedience to the citations and those in which he is contumaciously disobedient. The thirteenth section is the only one that is supposed to make a difference. By that a second citation is required, to be accompanied with a notice, that if the person cited do not appear at the time appointed, the judicatory, "besides censuring him for his contumacy, will, after assigning some person to manage his defence, proceed to take the testimony in his case, as if he were present." It has sometimes been asked, if it was intended that the judicatory might proceed in such a case to final judgment, why was not notice required that they would thus proceed? Why limit the notice to taking testimony? These questions are easily answered. A notice that the judicatory will proceed to trial and decision would be unnecessary and superfluous. It has already been given in the assumption of jurisdiction over the case and in the citations; but notice of taking testimony is a different matter. Separate notice of that is generally given in all judicial proceedings. Its design is to give a party an opportunity to cross-examine the witnesses produced against him. And, as the judgment in all ecclesiastical courts must be founded upon evidence, as a judgment for default of appearance is not authorized, it is proper that the accused should have special notice of taking the testimony, though he may refuse to appear in answer to the citation. In fact, however, notice that the testimony will be taken is notice that the judicatory will go on with the trial; for taking testimony is a part of trial, its first stage. Undue inferences are therefore drawn from the form of the notice, if it is supposed to indicate that the proceedings are to stay, when the testimony shall have been taken. At most, it raises but a very feeble implication that, because notice of one thing is required (a thing very peculiar in itself, and always demanding a special notice), therefore nothing else can be done. A similar mode of reasoning, would render a trial in any case impossible.

Moreover, the thirteenth section affords strong a trial and judgment were contemplated by its the refusal of the accused to obey the citations. the notice that the judicatory will assign some

affirmative evidence that framers, notwithstanding The evidence is found in person, not to appear for