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swer to citations. Such cases are judicial assertions of power, never de nied, 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 effectu ating it are to be interpreted with reference to the purpose, and, if possi ble, 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 min
utely 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 affirmative evidence that a trial and judgment were contemplated by its framers, notwithstanding the refusal of the accused to obey the citations. The evidence is found in the notice that the judicatory will assign some person, not to appear for the accused at the examination of witnesses, but to "manage his defence." The idea of defence in a judicial proceeding is inseparable from answer or trial. If, therefore, the non-appearing accused has a defence to be managed, he has an answer to be put in, a trial to undergo. Taking testimony in support of the accusation is no part of the defence. Cross-examination of the witnesses may be a part, but the appointee of the judicatory is to manage the whole.
It may also be argued that the provision for taking testimony at all, when an accused person fails to respond to the citation, implies that the case may proceed to a final determination. For what purpose take testimony, if no action is to be based upon it? If it be said to preserve it for use when the accused, repenting of his contumacy, may choose to appear for trial, it may be answered that no such purpose appears in the book. None of the provisions usual, when the object sought to be accomplished is the perpetuation of testimony, are even hinted at. By the sixteenth section the judgment is required to be entered upon the records of the judicatory, but nothing is said of the preservation of unused evidence. It is not even required to be reduced to writing, unless demanded by one of the parties.
It may also be argued from the language of the fourteenth section that a trial for the offence charged is intended, though the citations have been disobeyed. In that section it is said that judicatories, "before proceeding to trial," "ought to ascertain that their citations have been duly served on the persons for whom they were intended." If a person cited is in attendance, nothing is to be ascertained respecting the service of the citation. It is plain, therefore, that this injunction refers mainly at least to proceeding to trial of an absent accused, and it assumes that the judicatory will, after having assured itself of the service of the citations, go on to adjudicate the case. This section is susceptible of no other meaning.
A similar implication is found in the next section, the fifteenth, which declares that "the trial shall be fair and impartial," and that "the witnesses shall be examined in the presence of the accused, or, at least, after he shall have received due citation to attend." This is a regulation of the mode of trial, and it is expressly made applicable both to cases where the accused yields obedience to the citation and to cases where he does not. With these harmonize the sixteenth section, which assumes that there will be a judgment, and the seventeenth, nineteenth and twentieth sections, prescribing the discipline to be administered in the event of conviction. The last of these directs excommunication in certain cases. Its fair interpretation evidently is that the ground of such extreme action is not contumacy in disobeying process, but the gross offence charged, to answer for which the accused had been cited.
Taking all these sections into consideration, and regarding them as parts of one system, as having reference to the same subject-matter and designed to secure the ends avowed, the Committee are constrained to regard them as applicable to the course of proceeding through all the stages of trial alike in cases where the accused does not appear in obedience to the citations as when he does. In both the judicatory is empowered to proceed to trial and to final judgment.
To this conclusion an objection has sometimes been urged that at first mention seems to have some plausibility. It is that trial of a person in his absence and the rendition of judgment against him are in conflict with common right and justice; that even criminal courts in State governments do not try offenders in their absence, and that ecclesiastical courts ought to avoid ex parte proceedings. The objection aims less at the power of a judicatory, as recognized by the Book of Discipline, than it does at the policy of exercising it. But it misapprehends what are acknowledged common right and justice, what are the proceedings of courts of law and equity in analogous cases, and what are ex parte proceedings. Nowhere is it held that a man may not deny himself his plainest rights. While he may not be tried for an alleged offence without having an opportunity to be heard, he has no just cause to complain of a trial to which he has been summoned by a tribunal having jurisdiction, and which he has persistently refused to attend. In such a case it is he who throws away his own rights. They are not taken from him. This is a principle universally recognized in courts of civil law and of equity, and such courts go farther. They construe a refusal to obey process requiring an appearance as a substantial confession of the complaint, and they render judgment accordingly. It is true, State courts having criminal jurisdiction do not try persons for crimes and misdemeanors in their absence. This is for two reasons: They have power to compel attendance, which ecclesiastical courts have not; and the punishments they inflict affect the life, the liberty or the property of the convicted criminal. In fact, they concern the life or the liberty of the accused; for even if the penalty be only a fine, its payment is usually enforced by detention in custody until satisfaction be made. But ecclesiastical tribunals can pronounce no judgment that touches either the life, the liberty or the property of the accused. Their sentences are peculiar. Indeed, it is asserting a false analogy to assimilate a trial before a church session to an indictment and trial in a criminal court. It bears a much stronger resemblance to proceedings very common in courts of law, in which members of associations or corporations are called upon to respond for some alleged breach of corporate duty, for which they are liable to be punished by the imposition of penalties or by a motion from membership. In such cases, when the person summoned refuses to obey the mandate of the writ, courts proceed at once to dispose of his case and render final judgment. No one ever supposed that by so doing injustice was done or that any right of the accused was invaded. Much less can he complain who has been cited to answer an accusation taken into judicial cognizance by a church judicatory and who has contumaciously refused to obey the citation, if the tribunal proceed to try the case, presuming nothing against him but contumacy from his refusal, but founding its judgment solely upon the testimony of witnesses. This ob jection, therefore, when examined, appears to be without substance.
In conclusion, it remains only to recommend, as the opinion of the Committee, that the overture be answered by a declaration of the Assembly that in the case proposed the judicatory may proceed to trial and final judgment as if the accused were present.-1866, pp. 283–288, N. S.
XXII. At the meeting at which the citations are returnable, the accused shall appear, or, if unable to be present, may appear by counsel. He may file objections to the regularity of the organization, or to the jurisdiction of the judicatory, or to the sufficiency of the charges and specifications in form or in legal effect, or any other substantial
objection affecting the order or regularity of the proceeding, on which objections the parties shall be heard. The judicatory, upon the filing such objections, shall, or on its own motion may, determine all such preliminary objections, and may dismiss the case, or permit, in the furtherance of justice, amendments to the specifications or charges not changing the general nature of the same. If the proceedings be found in order, and the charges and specifications be considered sufficient to put the accused on his defence, he shall plead "guilty," or "not guilty," to the same, which shall be entered on the record. If the plea be "guilty," the judicatory shall proceed to judgment; but if the plea be "not guilty," or if the accused decline to answer, a plea of "not guilty" shall be entered of record and the trial proceed. [New.]
XXIII. The witnesses shall be examined, and, if desired, crossexamined, and any other competent evidence introduced, at a meeting of which the accused shall be properly notified; after which new witnesses and other evidence, in rebuttal only, may be introduced by either party. But evidence discovered during the progress of the trial may be admitted in behalf of either party, under such regulations, as to notice of the names of witnesses and the nature of the proof, as the judicatory shall deem reasonable and proper; and then the parties themselves shall be heard. The judicatory shall then go into private session—the parties, their counsel and all other persons not members of the body being excluded; when, after careful deliberation, the judicatory shall proceed to vote on each specification and on each charge separately, and judgment shall be entered accordingly. [IV. 15; VI. 14; last period new.]
1. The Withdrawal of Parties' Counsel, etc., Construed Literally. a. The appeal of Mr. Joseph E. Bell, from a decision of the Presbytery of Concord, suspending him from the office of the gospel ministry, was taken up.
The appellant having requested that some person may be appointed to manage his appeal, the Rev. N. S. S. Beman was accordingly appointed.
The decision of the Presbytery appealed from, the reasons assigned by the appellant for his appeal, which were on record, and the whole record of the proceedings of the inferior judicatory in the case, were read.
After which, Mr. Beman, on behalf of Mr. Bell, was heard. The Presbytery of Concord was then heard by its delegate, in explanation of the grounds of its decision.
Mr. Beman and the delegate from Concord then withdrew. The roll was then called, to give each member an opportunity to express his opinion; after which the final vote was taken, and the appeal of Mr. Bell was sustained.-1828, p. 238. See also 1836, p. 265.
b. The moderator having decided that the rule requiring the parties to withdraw should be understood in the obvious and literal sense, an appeal