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each of them, may be presented to the judicatory at one and the same time, and may, in the discretion of the judicatory, be tried together. But, when several charges are tried at the same time, a vote on each charge must be separately taken. [New.]
[See under sec. xxiii., below, 3.]
XVII. In all cases of alleged personal injury, where the prosecution is by the injured person or persons, the charge must be accompanied by an averment that the course prescribed by our Lord, Matt. xviii. 15-17, has been faithfully tried. [New.]
OF PROCESS: GENERAL RULES PERTAINING TO ALL CASES.
XVIII. Original jurisdiction, in relation to Ministers, pertains to the Presbytery; in relation to others, to the Session. But the higher judicatories may institute process in cases in which the lower have been directed so to do, and have refused or neglected to obey. [New.] [As adopted in 1884, after the word "ministers" were the words "and acting ruling elders," which were stricken out.-1885, p. 601.-M.]
XIX. When a judicatory enters on the consideration of an alleged offence, the charge and specifications, which shall be in writing, shall be read; and nothing more shall be done at that meeting, unless by consent of parties, than to furnish the accused with a copy of the charge and specifications, together with the names of all the witnesses then known to support each specification; and to cite all concerned to appear at a subsequent meeting of the judicatory, to be held not less than ten days after the service of the citations. The citations shall be signed, in the name of the judicatory, by the moderator or clerk, who shall, also, furnish citations for such witnesses as either party shall name. The accused shall not be required to disclose the names of his witnesses. [IV. 5, 6, 7 ; V. 8.]
1. Censure without Trial Unconstitutional.*
a. Messrs. Ker and Rankin, the commissioners to this Assembly from the Presbytery of Lewes, in behalf and by the order of the said Presbytery, applied to the Assembly and remonstrated against a decision of the last Assembly in the case of Mr. Hindman, in which they conceive the Presbytery of Lewes is virtually condemned without their having had an opportunity of defending themselves, which they conceive they could readily have done.
After considerable discussion, it was
*No. 1 above does not apply to "Cases without Process," as specified in Book of Discipline, chap. vii.-M.
Resolved, As the sense of this house, that no man or body of men, agreeably to the Constitution of this Church, ought to be condemned or censured without having notice of the accusation against him or them and notice given for trial; and therefore, that if the General Assembly of last year meant by the minute in question to pass a censure on the Presbytery of Lewes, it was informal.-1793, p. 71.
b. There was an error in the Synod of North Carolina in expressing a judicial opinion in relation to charges against Mr. Davies which did not come before them.-1849, p. 264, O. S.
2. A Judicatory may not Suspend without Trial.*
The Committee appointed to examine the records of the Synod of the Carolinas reported, and the book was approved to page 28 of the twentythird sessions of said Synod, with the exception of the resolution to make a minister liable to suspension without trial for three years' absence from Synod, without sending forward his reasons for absence.-1811, p. 468.
3. Censure upon an Absent Person without Citation Disapproved of.*
The Assembly, moreover, cannot forbear expressing their regret that the Presbytery of Washington should have passed a vote of censure upon Mr. McCalla without citing him to appear before them or giving him any opportunity of making a defence, since this mode of proceeding seems to have occasioned a portion of the irregularity in the Presbytery of West Lexington, of which the Presbytery of Washington have complained.1821, p. 21.
4. Exclusion from the Pulpit or from Communion may not be without Trial and Conviction.*
Whereas, It appears from memorials sent up to this Assembly, that several of our Presbyteries have adopted resolutions excluding slaveholders from their pulpits and from their communion: And whereas, our Constitution requires that no member of the Presbyterian Church shall be thus disfranchised without a regular trial and conviction, . . . therefore;
Resolved, That the said Presbyteries be requested to rescind such resolutions.-1840, p. 24, N. S.
5. The Accused may not be Required to Declare what he Expects to Prove by his Witnesses.
The Judicial Committee in reference to Judicial Case No. 4-the case of J. H. Spillman against the Synod of Kentucky-after a further conference with the parties representing this case, would recommend to the General Assembly the adoption of the following minute disposing of the
While this General Assembly do not undertake to reverse the decision of the Synod of Kentucky against Mr. J. H. Spillman, it cannot be doubted for it is admitted by the Synod's and the Presbytery's repre sentatives here—that there were some informalities in the proceedings of the lower courts against Mr. Spillman, which this General Assembly is bound to disapprove; in particular, that the session had no right to insist upon Mr. Spillman's making known beforehand what he expected to prove by his witnesses as the condition upon which he should be allowed to proceed in the examination. On the other hand, it is equally clear that Mr. Spill*Nos. 1, 2, 3, and 4 above do not apply to "Cases without Process," as specified in Book of Discipline, chap. vii.—M.
man ought not to have abandoned his case, as it appears by the record that he did, upon that decision by the session. This General Assembly, however, grant leave to Mr. Spillman to withdraw his appeal, and recommend to the session of Paint Lick Church to take up the case where it was abandoned before their tribunal, provided that Mr. Spillman assure them that he has testimony to produce which may be relevant to the case.-1860, p. 45, O. S.
XX. Citations shall be served personally, unless the person to be cited cannot be found, in which case the citation shall be sent to his last known place of residence; and, before proceeding to trial, it must appear that the citations have been served. [1st clause new; 2d clause IV. 14.]
XXI. If an accused person refuses to obey a citation, a second citation shall issue, accompanied by a notice that, if he do not appear at the time appointed, unless providentially hindered, he will be censured for his contumacy, according to the subsequent provisions of the Book of Discipline. (See secs. xxxiii., xxxviii. and xlv.) If he does not then appear, the judicatory may proceed to trial and judgment in his absence; in which case it shall appoint some person to represent him as counsel. The time allowed for his appearance, on any citation subsequent to the first, shall be determined by the judicatory, with proper regard for all the circumstances. The same rule, as to the time allowed for appearance, shall apply to all witnesses cited at the request of either party. [IV. 10, 11, 12, 13.]
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.
2. 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 (Old). 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 chap. vii., sec. iii., sub-sec. xcix.]
3. 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 appear to have been precipitate, and not to have observed the constitutional rules. [See Discipline (Old), 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.
4. To Proceed in the Absence of the Accused, without a Second Citation, Irregular; but the Right to Complain Waived by Appearing afterward and Pleading.
An appeal of Mr. William McElwee from the action of the Synod of Toledo for sustaining the Presbytery of Maumee in refusing to furnish him with the usual letter of good standing and transfer to the Presbytery of Philadelphia. The Committee report that it appears from the papers put in their hands that Mr. McElwee was charged with a heinous crime, of which he made a written confession; that the Presbytery took action upon this charge, and issued a citation for Mr. McElwee to answer to it, the same being sent to him through the post-office. When the Presbytery met, the accused did not appear, but this written confession was presented, together with testimony that it was signed by him in the presence of witnesses, and with the understanding that it was to be made use of in the Presbytery. Under the circumstances the Presbytery judged that it was not necessary to cite him a second time, but thought themselves authorized to proceed as though he had been present. They therefore proceeded, deposed Mr. McElwee from the ministry and suspended him from the Church. Some time after this Mr. McElwee asked the Presbytery to remove his deposition, restore him to his former good standing and dismiss him to another Presbytery. He asked this on the ground that he was deeply penitent for the sin of which he had been guilty; and the request was concurred in by several other persons.
The Presbytery refused to restore him, and this action the Synod sustained. Mr. McElwee complains that the Presbytery adjudicated the case in his absence and without a second citation. The Committee are of the opinion that the Presbytery acted irregularly in disposing of this case in the absence of the complainant and without a second citation. But they are of the further opinion that the complainant waived his further right to complain by afterward appearing before Presbytery, confessing his guilt, and asking to be restored. And while a sentence of deposition from the gospel ministry and suspension from the communion of the Church may be removed upon evidence of repentance, of the genuineness of such repentance the Presbytery alone are to judge. Nor is there any evidence that the Presbytery misjudged. The Committee recommend that the case be dismissed.-Adopted 1875, pp. 511, 512.
5. 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 (Old), chap. iv., sec. xiii.), yet they did judge the pamphlet, of which Mr. Arthur admitted himself to be the author, to contain slande 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.
6. 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. [The principles of this Deliverance are affirmed in the last clause of sec. xxi., above.-M.]
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 (Old), 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 (Old), 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 an