cused, it is proper for him to ask, and for the judicatory to grant, a new trial.

2. It is very conceivable that after the lapse of five or six years the sentence of an ecclesiastical court, which was originally considered as just and wise, although no new testimony, strictly speaking, has appeared, may in the view of the church appear under an aspect equivalent to new testimony, and calling for reconsideration; yet,

3. Inasmuch as the frequent reconsideration of cases adjudged by the inferior judicatories, without the appearance of new testimony, admits of great and mischievous abuse, and might lead to an endless recurrence of reviews and reversals of former decisions, in the absence of a majority of the court pronouncing the same; it is evidently more regular, safe and for edification, when a review of a decision, without the disclosure of new testimony, is thought desirable, to refer the case to the next higher judicatory.-1833, p. 405.

LXXIX. References are, either for mere advice, preparatory to a decision by the inferior judicatory, or for ultimate trial and decision by the superior; and are to be carried to the next higher judicatory. If for advice, the reference only suspends the decision of the inferior judicatory; if for trial, it submits the whole case to the final judgment of the superior. [VII. ii. 3, 8, 4.]

1. References; Disposal of Them

a. A reference from the Presbytery of Chenango asking advice in the case of Rev. Edward Andrews, a member of that body, who has recently withdrawn and received episcopal ordination, was taken up. See Form of Government, chap. x., sec. viii.-1828, p. 239.

See also 1832, p. 363.

b. The permanent clerk announced to the Assembly that there had been put into his hands a reference from the Presbytery of Philadelphia of the whole case of the Rev. Albert Barnes before that body. This case was referred to the Judicial Committee.-1831, p. 321.

[Against the reference above a complaint was entered, as also a complaint against the action of the Presbytery in the case. After the whole proceedings of the Presbytery had been read, and the sermon entitled The Way of Salvation] the parties then agreed to submit the case to the Assembly without argument, when it was resolved to refer the whole case to a select Committee. Dr. Miller, Dr Matthews, Dr. Lansing, Dr. Fisk, Dr. Spring, Dr. J. McDowell, Mr. Bacon, Mr. Ross, Mr. E. White, Mr. Jessup and Mr. Napier were appointed this Committee.1831, p. 325.

Subsequently, the Committee to whom was referred the whole case in relation to the Rev. Albert Barnes, made a report, which being read was adopted, and is as follows, viz. :

That after bestowing upon the case the most deliberate and serious consideration, the Committee are of the opinion that it is neither necessary, nor for edification, to go into the discussion of all the various and minute details which are comprehended in the documents relating to this case. For the purpose, however, of bringing the matter in controversy, as far as possible, to a regular and satisfactory issue, they would recommend to the Assembly the adoption of the following resolutions, viz.:

Resolved, 1, That the General Assembly, while it appreciates the conscientious zeal for the purity of the Church, by which the Presbytery of Philadelphia is believed to have been actuated in its proceedings in the case of Mr. Barnes; and while it judges that the sermon by Mr. Barnes, entitled "The Way of Salvation," contains a number of unguarded and objec tionable passages, yet is of opinion that, especially after the explanations which were given by him of those passages, the Presbytery ought to have suffered the whole to pass without further notice.

Resolved, 2. That in the judgment of this Assembly, the Presbytery of Philadelphia ought to suspend all further proceedings in the case of Mr. Barnes.

Resolved, 3. That it will be expedient, as soon as the regular steps can be taken, to divide the Presbytery in such way as will be best calculated to promote the peace of the ministers and churches belonging to the Presbytery.

With respect to the abstract points proposed to the Assembly for their decision in the Reference of the Presbytery, the Committee are of the opinion that if they be answered they had better be discussed and decided in thesi separate from the case of Mr. Barnes.

The Judicial Committee reported that the other complaints and the ref erence in relation to the case of Mr. Barnes, they considered as merged in the report just adopted. This report was accepted.

The Assembly having finished the business in relation to Mr. Barnes, united in special prayer, returning thanks to God for the harmonious result to which they have come; and imploring the blessing of God on their decision.-1831, p. 329.

[See also under Form of Government, anté, p. 161, 42, 1, b, and p. 218, v. 1.]

2. When Reference has been Made, the Judicatory Referring can Regain Jurisdiction only by the Action of the Superior Judicatory.

In the case of the appeal of James W. Hamilton against the Synod of Sandusky (1863, p. 36, O. S.) the following report was made by the Judicial Committee:

"When this case was first before the Session, the Session being composed of the moderator and one ruling elder, the moderator, as appears from the minutes, waived his right to sit in judgment on the case;' but an order was then made that the Session then proceed to take the testimony in the case, and submit the same to the Presbytery at its next meeting."

The testimony having been taken, the whole case, charges and evidence were then accordingly submitted and referred to the Presbytery. The action of the Presbytery was to the effect "that the case be not issued before Presbytery." But the Presbytery directed that "the accused be admonished to give none occasion for evil to be spoken of his character; to look more carefully to his conduct, and walk more uprightly, as becometh the gospel;" and recommended the minister of the church to read said action before the congregation; which duty was performed on the 25th day of August, 1861.

After this, on the 7th day of September following, the Session, without notice to the accused, and without giving him an opportunity to be heard, proceeded to give judgment on the charges and evidence as originally before the Session and Presbytery.

The case, having been submitted to Presbytery, passed from the possession and proper jurisdiction of the Session, and Presbytery alone could again give the Session such jurisdiction, by reference back to the Session.

This was not done. Even if the case had been in some proper way referred back by Presbytery to the Session the accused was entitled to notice of any further proceedings before the Session, and especially so of any new matter of accusation.

The Presbytery, although, in terms, they did not "issue the case," did substantially make a decision, and by that decision subjected the accused to a mortifying public admonition, which was carried into effect, as directed by the Presbytery.

The Session, in afterwards giving judgment on the charges, in effect subjected the accused a second time to discipline on the same charges. This is not allowable. If the accused, since he was publicly admonished, as directed by the Presbytery, has been guilty of offences, or disorderly conduct, he should be tried for the same on proper charges and notice.

Resolved, That for the informalities and errors above mentioned, the appeal be and is hereby sustained, and all proceedings in the case, by the Session, Presbytery and Synod, since the admonition before the congregation, on the 25th of August, 1861, are hereby annulled and set aside.

MS. endorsement on Records of Synod of Sandusky, 1863. Minutes, 1863, p. 36, O. S.

3. Reference must be Carried to the next Higher Judicatory. [Under the former Book reference was allowed from the lower courts to the Assembly. See Digest, p. 546; this sec. lxxix. forbids.-M.]

LXXX. In cases of reference, members of the inferior judicatory may sit, deliberate, and vote. [VII. ii. 7.]

LXXXI. A judicatory is not necessarily bound to give a final judgment in a case of reference, but may remit the whole case, either with or without advice, to the inferior judicatory. [VII. ii. 6.]

The Committee appointed to draw a minute on the subject of the memorial from the Session of the First Church in Genoa, reported the following, which was adopted-viz. :

Resolved, That the church of Genoa be referred to the minute of the Assembly formed in the case of David Price in the year 1825; from which it will appear that, in the judgment of the Assembly, "an admonition" was "deserved" by the said Price, in consequence of his unchristian conduct. And it is the judgment of this Assembly that the Session ought immediately to have administered such admonition; that they ought still to administer it; and that if the said Price refuse to submit to such admonition, or do not thereupon manifest repentance and Christian temper, to the satisfaction of the church, he ought not to be received into the communion of that or any other Presbyterian church.-1827, p. 202.

LXXXII. The whole record of proceedings shall be promptly transmitted to the superior judicatory, and, if the reference is accepted, the parties shall be heard. [VII. ii. 9.]

1. Testimony Attested by the Moderator and Clerk Sufficient. The following question, signed by William C. Davis, "Whether testimony taken before a Session, and sent up to the Presbytery under the sig nature of moderator and clerk, will not be sufficient in references as well as appeals to render the case thus referred both orderly and cognizable by Presbytery," was answered in the affirmative.-1797, p. 128.

2. A Superior Judicatory may Entertain a Reference which is not Accompanied by the Testimony, and Proceed itself to take it. The records of the Synod of Kentucky approved, "with one exception, viz.: According to the record on page 66, the Synod taught and acted on the principle that a Presbytery acts irregularly, which, upon the reference of a church session, takes the testimony and issues the case according to its bearings, even when the parties concerned agree to the reference. Your committee are of opinion that this principle is wrong in itself, and evil in its tendency, and therefore recommend this Assembly to express its disapprobation of it."-1853, p. 455, O. S.

In reply to a protest against this decision, the Assembly says:

The action condemned is not "in exact accordance with the Constitution, Discip. (Old), chap. vii., sec. ii., art. ix.," as asserted by the protestant; the article referred to containing a rule designed to facilitate business, but, as its language shows, it does not preclude a Presbytery from taking original testimony in certain cases, and it does not appear from the records that the Presbytery of Muhlenburg was irregular in so doing.— 1853, p. 456, O. S.

SECTION III.-OF COMPLAINTS.

LXXXIII. A complaint is a written representation made to the next superior judicatory, by one or more persons subject and submitting to the jurisdiction of the judicatory complained of, respecting any delinquency, or any decision, by an inferior judicatory. [VII. iv. 2, 3.]

[See Digest of 1873, pp. 593–595. Under the practice complaints, as well as appeals, were carried over the next superior judicatory, where satisfactory reasons were assigned. See below, under Appeals, sec. cii. Under the head of "person or persons" the judicatories of the Church are included. In 1885 the words "or by any other reputable person or persons" were stricken out.-1885, p. 602.

Complaints were entertained

a. Of the Presbytery of Washington, Ohio, against the Presbytery of West Lexington.-1821, p. 21. [These Presbyteries belonged to different Synods.] See also 1828, p. 237.

b. Of the Third Presbytery of Philadelphia against the Presbytery of Luzerne..... Brought before the Assembly, because of these Presbyteries having had no common Synodical relation.-1870, p. 27.

c. Of the General Synod of the Reformed Church in America against the Presbytery of Philadelphia.-1874, pp. 62-64.

d. Of the Presbytery of Saharanpur of the Reformed Presbyterian Church against the Board of Foreign Missions of the Presbyterian Church.-1883, pp. 628, 629; 1884, p. 108.

The following decisions, under the head of complaints, are cited. Some of them, it is probable, do not conform to the present section. But all are of value, as showing the practice of the Assembly. The decisions under them are not affected by the changes in the Book. See Digest of 1873, pp. 596, 597.-M.]

1. The Distinction between an Appeal and a Complaint must be Observed.

The records of the Synod of Utica were, on the recommendation of the committee, approved, with the exception that, on p. 275, the Synod recognizes a reference to them as an appeal which should have been con

sidered and acted on merely as a complaint against, and not as an appeal from, the decision of Presbytery concerning the settlement of a pastor.1843, p. 22, N. S.

2. The Same Matter may be the Subject both of Appeal and

Complaint.

The question was taken on sustaining the appeal and complaint (of the Second Presbytery of Philadelphia against the Synod of Philadelphia). A division being called for, the question was first taken on the complaint. Sustained by yeas 118, nays 57. The question was then taken on the appeal. Sustained, yeas 90, nays 81.-1834, p. 431.

[See under sec. xciii., below.]

3. Complaint will not Lie against a Judicatory for Obeying the Orders of the Superior Judicatory.

a. Whereas, The Rev. Archibald McQueen prosecuted a complaint before the Assembly of 1845 against the Presbytery of Fayetteville for refusing to restore him to the exercise of the gospel ministry, and did at the same time memorialize that Assembly to decree his restoration; and whereas, that Assembly did take up and judicially entertain the said complaint, and pronounced judgment in the case by authorizing and recommending the Presbytery to restore the said Archibald McQueen to the gospel ministry, provided that in the judgment of the Presbytery it was wise so to do; and whereas the Presbytery, in the exercise of the discretion thus confided to them, did restore Mr. McQueen; therefore,

Resolved, That the complaint of the Rev. Colin McIver and others against the Synod of North Carolina, for having sustained the action of the Presbytery of Fayetteville in restoring the said Archibald McQueen, in accordance with the judicial decision of the Assembly of 1845, cannot be entertained by this house, and is hereby dismissed.

In making this disposition of the above-mentioned complaint, this General Assembly wishes it to be distinctly understood that they do not mean either to retract or modify any judgment hitherto expressed by any Assembly respecting the offence for which Mr. McQueen was suspended from the exercise of the gospel ministry. They simply declare that his case cannot be regularly brought before them by this complaint.-1847, p. 395, O. S.

b. The complaint is not sustained, the Presbytery having acted entirely in accordance with the directions of the Assembly of 1867.-1868, p. 641, Ó. S.

4. Complaint will not Lie against Advice given on Memorial. The complaint of members of the Park Church, Newark, New Jersey, against the Synod of New York and New Jersey, was dismissed, on the ground that the action of the Presbytery was not a subject-matter of complaint, or removal of the case to a higher judicatory, their proceedings having been merely advisory upon the memorial of the complainants.— 1852, p. 166, N. S.

5. Nor against a Refusal to Adopt a Proposed Paper. The Judicial Committee having had under consideration No. 1, the appeal and complaint of the Rev. Robert J. Breckinridge, D. D., and others, against a decision of the Synod of Philadelphia on the quorum question; and No. 2, the appeal and complaint of the Rev. R. J. Breckinridge, D. D., and others, against a decision of the Synod of Philadelphia on the question of the imposition of hands in ordination, report, that in their opinion