“In answer to this question it may be remarked, that to deprive our judicatories of an original and important right, something more than mere implication is, in all ordinary cases, necessary. No one however pretends that there is any express prohibition of the exercise of the power in question, contained in the constitution. 2. No fair inference in favour of such prohibition can be drawn from the mere silence of the constitution. As the power is not derived from the constitution it is not necessary that it should be there recorded. As far as we recollect, the Westminster Directory is equally silent on the subject, yet it is admitted that under that instrument Church courts freely exercised this power.

“3. Nor can it be inferred that the constitution tacitly prohibits the exercise of this right, from the fact that it always treats of certain acts as being the acts of a presbytery or synod. An act does not cease to be a presbyterial act when performed by a committee in the name and by the authority of the presbytery. Even the ordinary process of reviewing records, is performed not by the whole presbytery or synod, but by a committee in their name and under their sanction. And the executive acts of ordination and installation, when performed by a committee are still presbyterial acts. Nothing was more common in the early portions of our history, than for our presbyteries to ordain by a committee. And yet our fathers did not deny that ordination was a presbyterial act. It cannot therefore be inferred from the fact that the constitution recognizes certain acts as the acts of presbyteries and synods, that those acts may not be legitimately performed by a commission appointed for that purpose. Such commission is by delegation, and pro hac vice, the presbytery or synod. The body virtually resolves itself into a committee to meet at a certain time and place for a specific purpose.

“On these grounds your committee rest the conclusion that it is not contrary to the constitution of our Church that our primary Church courts should appoint a commission to determine judicially any case that may come before them.

“As to the second point embraced in the resolution under consideration, viz: whether such appointments are contrary to the uniform practice of the Presbyterian Church in the United States, it may be remarked, 1. That it is well known that the original Synod of Philadelphia, the Synod of New York, and the united Synod of New York and Philadelphia, from the original institution of the first mentioned body in 1716, to the formation of the General Assembly in 1788, did each, during their several periods of existence, annually appoint a commission with full synodical powers. This commission sometimes consisted of a definite number of members named for that purpose, and at others any member of the Synod who chose to attend was recognized as a member.

“There is therefore no principle better sanctioned by long continued usage in our Church, than the right of a synod to act by a commission in adjudicating any case that may come before them.

“2. This, however, is a small part of the evidence which bears on this subject. Not only did the judicatories above mentioned annually appoint a commission with full power for general purposes, but the original Presbytery of Philadelphia, the Synod of Philadelphia, the Synod of New York, and the united Synod of New York and Philadelphia, were uniformly in the habit of appointing special committees with full powers (i.e. commissions) to act in their name and with their authority, in any matter, executive or judicial. The Assembly would be fatigued by the citation of all the cases on record bearing on this subject. The following may be deemed sufficient:

“In 1713 a committee was appointed by the Presbytery of Philadelphia for the examination of Mr. Witherspoon, and if satisfied as to his qualifications, they were authorized to proceed to his ordination and settlement. Records, p. 32. In 1714 a similar committee was appointed by the presbytery for the examination and ordination of Mr. H. Evans. In 1715 two other candidates were ordained in the same manner. pp. 36, 37. In 1716, two more. p. 43. In all these, and in many similar cases subsequently recorded, the committees appointed for the purpose were invested with full presbyterial powers to judge of the qualifications of the candidate, to determine whether he should be ordained or not, and if they saw fit, actually to ordain. In most cases the reports made by them show that they did ordain, in others they say that they declined to proceed on account of the incompetency of the candidate, or for some other sufficient reason.

“In 1717 a committee was sent to New Castle, Delaware, ‘to receive and audit the reasons of the people of New Castle against the removal of Mr. Anderson (their pastor) to New York, or to any other place.’ And ‘it was further ordered, that the said committee do fully determine in that affair.’ p. 47. The following year they reported that ‘they had transported Mr. Anderson to New York, having had power lodged in them by the Synod to determine that affair.’ p. 49.

“In 1723 a committee was appointed to act in the name and with the full power of the Synod, in a conference with the Connecticut ministers in relation to certain difficulties in the congregation of New York, arising out of the interference of the two bodies, p. 75.

“In 1720 it was ‘overtured that a committee be sent to Rehoboth with full power from the Synod to act in their name and by their authority in the affair between Mr. Clement and the people, and that Mr. C. be suspended from the exercise of his ministry, until the determination of the committee.’ The overture was carried in the affirmative, nemine contradicente.” p. 60. At that time therefore, there was not one member of the body who questioned the right of the Synod to act by committee in judicial cases. Again, it is said in the Record, ‘The Synod having received letters from Snowhill, by way of complaint against Mr. D. Davis, have appointed Mr. McNish (and six others,) or any three of them, to be a committee to go to Snowhill, with full power to hear, examine, and determine about the complaints made or to be made against said Mr. Davis.’

“In 1722, a committee was appointed to attend at Fairfield, N. J., with full power to restore a suspended minister, unless they saw a sufficient reason to the contrary. p. 71.

“In 1724, a committee reported that they had not removed the suspension from Mr. Walton. p. 76. In 1726, difficulties having occurred in the Church at Newark, N. J., a committee was appointed to visit that place with full power of the Synod in all matters that may come before them in respect to that congregation, and to bring an account of what they do to the next Synod. p. 83.

“In 1727, a committee was sent to New York to accommodate differences in the Church there, ‘and to receive Mr. Pemberton as a member of the Synod, or not as they should see cause.’ p. 85. In 1731, a committee was sent to Goshen, to hear and determine matters of dispute in that congregation, ‘with full powers.’

“In 1734, an appeal from the Presbytery of Donegal was presented to Synod, and by them referred to a committee to meet at Nottingham, ‘with full power to hear said appeal, and to determine it by authority of Synod, they bringing an account of their proceedings therein to the next Synod. And the Synod do also empower the said committee to hear any matter … that shall be brought before them by the said John Kirkpatrick and John Moor, (the appellants,) with relation to the affair aforesaid, and authoritatively to determine the same; appointing also that if either party do appeal from the determination of the committee, they shall enter their appeal immediately, that it may be finally determined by the next Synod.’ p. 107.

“In 1735, another appeal from the same presbytery was referred to a committee to meet at —— ‘and determine the business.’ p. 119. In the same year the two presbyteries of Philadelphia and East Jersey were appointed a committee to try the case of Rev. Mr. Morgan. p. 130. In 1735, a committee with full powers was sent to New York. p. 254. In 1751, a committee was sent to Jamaica, L. I., with authority to decide whether the pastor, Mr. Bostwick, should be removed to New York. p. 206. In 1759, an appeal from the Presbytery of New York was referred to a committee at Princeton, any seven of whom to be a quorum to try the matter. p. 312. A similar committee was sent to Chesnut Level in 1762. In 1764, the Synod decided that the censure inflicted by a committee was inadequate to the crimes contained in their charge, p. 338. In 1764, the Synod say, in reference to an appeal from New Castle presbytery, ‘As this matter cannot be issued here we appoint (thirteen members) a committee to hear and try the merits of the case, and to issue the whole affair, and to take what methods they may think proper in relation thereto.’ p. 340. In 1765, two appeals from the Presbytery of Donegal were presented, ‘and the Synod,’ it is said, ‘considering the impossibility of determining the said affairs at present, have appointed a committee to issue and determine both matters.’ p. 360.

“In 1766, a similar case occurred; an appeal from the Presbytery of Suffolk was referred to a committee ‘to try and issue the whole affair.’ p. 360.

“From all these cases it is apparent that from the beginning, the right has been claimed and exercised by our primary courts of appointing committees with full powers, (i.e. commissions) to act in their name and authority, in all kinds of cases, executive and judicial.”

“Though from the altered circumstances of the Church, and the great increase in the number of presbyteries, this mode of action has been less necessary and therefore less common, since the adoption of the present constitution it has never been renounced, and as far as known to your committee, never condemned by the Assembly. On the contrary, in the remarkable case in the Synod of Kentucky, it received the sanction of the Assembly in 1809. It is well known that the Cumberland Presbytery had, for some time, persisted in licensing and ordaining men who had not received a liberal education, and who refused to adopt the Confession of Faith. These proceedings were brought before the Synod of Kentucky, in 1805, by a review of the records of that presbytery. But as the synod had not sufficient data on which to act, as the case did not admit of delay, they appointed a commission consisting of ten ministers and six elders, ‘vested with full synodical powers, to confer with the members of the Cumberland Presbytery, and to adjudicate on their presbyterial proceedings.’ Much doubt was expressed in the Assembly of 1807, of the regularity of the proceedings of this commission; but as far as can be learned from the letter from the Assembly to the synod, the former body did not deny the right of the synod to appoint a commission. The Assembly requested the synod to review their acts in question, and demand that the licentiates of the presbytery should be re-examined, and in approving the action of the commission in suspending ministers without trial who had been irregularly ordained. The synod having reviewed all proceedings in this whole matter, and re-affirmed their decisions in relation to it, sent up their explanation and vindication, to the Assembly; which did not reach that body, however, until 1809. The action of the synod was in that year sustained without a dissenting voice, and the Assembly declared the synod entitled to the thanks of the whole Church for the firmness and zeal with which they had acted. See chap. ix. of Dr. Davidson’s instructive and interesting History of the Presbyterian Church in Kentucky.”

“In view therefore of the original rights of our judicatories, of the long continued practice of the Church, and of the great value of the right, on due occasions, of acting by commissions, the hope is respectfully expressed that the Assembly may do nothing which may have the effect of calling that right into question.”

A motion was, in the first instance, made to adopt this report. But that motion was subsequently withdrawn, with a view to introduce a resolution for the indefinite postponement of the resolution referred by the last Assembly to the consideration of the committee. This was the disposition of the subject proposed and advocated by those who were in favour of the doctrine presented in the report. The resolution referred by the Assembly of 1846, declared it to be contrary to the constitution and uniform practice of the Presbyterian Church in the United States, to decide judicially by commission any case whatever. The rejection of that resolution, or its indefinite postponement, was a refusal on the part of the Assembly to deny this right to our primary courts. This was all the friends of the report wished, and the motion for indefinite postponement was accordingly made by the chairman of the committee. And this was the disposition ultimately made by common consent. The debate was interrupted by a motion for the indefinite postponement of the whole subject.

There was no opportunity afforded for testing the real sense of the house, but we have little doubt that a decided majority was in favour of the doctrine that our primary courts have the right to act by commission in any case that may come before them. The objections urged against this doctrine resolve themselves into two. First, that the constitution makes no mention of such a power. Secondly, that its exercise is liable to abuse.

The first of these objections rests on the radically false principle, combated in the report, that our courts get their powers from the constitution, a principle inconsistent with the essential doctrines of Presbyterianism. We hold that our courts get their powers from the head of the Church. He has instituted a government. He has determined the nature and limits of the powers to be exercised by Church courts. A constitution is and can be nothing but a written agreement between certain judicatories consenting to act together, as to the conditions on which they will exercise the powers given them from above. Now according to our Confession of Faith, “It belongeth to synods and councils, ministerially, to determine controversies of faith, and cases of conscience; to set down rules and directions for the better ordering of the public worship of God, and the government of his Church; to receive complaints in cases of mal-administration, and authoritatively to determine the same.” That is, by the word of God, Church courts have inherently certain legislative, judicial, executive powers. These powers inhere in them, just as by the gift of God, similar powers inhere in the community. And if they belong to our courts, it follows they can exercise them, in any way not inconsistent with their nature and design, and the limitations of the word of God, or their own voluntary agreement. Whether a presbytery shall ordain or install in full session, or by a commission, is a matter left entirely to its discretion. It is responsible to God for the exercise of this power, and also to its associate presbyteries. But that it has no right, in itself considered, to exercise its powers except in full session, seems to us a most extraordinary assumption. All analogy is certainly against it. The people delegate the powers which inhere in them, to be exercised by representatives acting in their name and by their authority. So do kings, so do parents. Why then may not primary Church courts? All usage is against it, the usage of the continental Presbyterian Church; the usage of the Church of Scotland; the usage of our own Church from its very foundation, before and since the adoption of the present constitution. The Presbytery of Hanover, in Virginia, sent a commission to ordain men in Kentucky, and one venerable father on the floor of the Assembly, was understood to say that he himself was ordained in that way; and another member said that it was not two years since the Presbytery of Susquehanna, acted in an important case, by a commission. We have therefore, Scripture, analogy, and usage in favour of the doctrine that certain powers inhere in our primary Church courts, which powers they may exercise either directly, or by commission, subject to the limitations laid down in the constitution.

It was the neglect or oversight of this last qualifying clause that gave rise to most of the objections to the report urged under the second head mentioned above. The power was deemed liable to great abuse, because it was supposed that it was unlimited; that if a presbytery or synod had the right to act by a commission, it would have the right to delegate its whole power to a single member. But no such doctrine was contended for. As the constitution requires that a presbytery should consist of at least three ministers, and a synod of at least seven, it would be a direct violation of that agreement for a presbytery or synod to give presbyterial or synodical powers to any commission consisting of less than a quorum of their own bodies. What would be the use of the provision that not less than three ministers can constitute a presbytery, if those three could meet and devolve their whole power upon a single minister or elder? It is obvious therefore that no commission of a presbytery, if clothed with presbyterial powers can consist of less than a quorum of presbytery; and no commission of synod can constitutionally consist of less than a quorum of that body. This single consideration is an answer to the great majority of the arguments drawn from the supposed liability of the right in question to be abused. Another answer, however, is drawn from experience. The right to act by commission has been exercised by all Presbyterian Churches, and by our own for a long series of years. There is not a single case upon our records of the abuse of this power. There is not a single instance of complaint of injustice, unfairness, or injury arising from this source. The prediction, therefore, of such evils, in the face of an opposing experience so diversified and so long continued, cannot be entitled to much consideration. If the principles of Presbyterianism can be learned from the practice of all Presbyterian Churches, it is most unreasonable to denounce the right in question as anti-Presbyterian. The innovation is all on the other side. The encroachment is on the part of the Assembly, and against the lower courts; if the ground should be assumed by the former that the latter have not a right which from time immemorial they have claimed and exercised.

The strict construction of the constitution for which some of the opponents of the report contended, would, if consistently carried out, effectually tie up the hands of all our Church courts. Where do we find in the constitution the explicit recognition of the right to appoint stated clerks, committees of review, boards of education, of domestic and foreign missions; directors of seminaries, &c., &c.? If our Church courts have no powers but those laid down in the constitution, we shall have to give up all the general institutions of the Church, and many of our most familiar modes of action.

If the right in question were not one clearly recognized in the past history of our Church, and one of real value, it would not be worth contending for. But the single instance of the Synod of Kentucky, in the case of the Cumberland Presbytery, shows that there may be cases, in which it is of the highest importance that this right should be called into exercise. And cases are constantly occurring, in which it is impossible to get a large presbytery, or a whole synod, to devote the time and attention requisite for their due consideration and decision. In such cases, a commission of a third or a fourth of the whole body might be sent to investigate, deliberate and decide, with obvious advantage to all the parties concerned. If the parties are satisfied, the matter ends there. If not, an appeal is open to the appointing body, before whom the matter comes with all the advantage of a previous protracted and careful examination. In this way the ends of justice are better answered, and the time of our Church courts is saved. We are, therefore, glad that the Assembly refused, by indefinitely postponing the whole subject, to sanction the resolution denying to our primary courts the rights in question.

It is proper to mention that the committee, consisting of Drs. Hodge, McFarland, Lindsley, McDowell, and Musgrave, were, with the exception of Dr. Lindsley, unanimous in sanctioning the report submitted to the Assembly.

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