[Form of Gov., chap. xii., sec. v.—Comp. Digest of 1873, p. 564.]
Dr. Lacy, from the Judicial Committee, reported on the resolution offered by Dr. Wines, instructing the Judiciary Committee to consider some action looking to the relief of the General Assembly in judicial cases, either the appointment of a commission to hear and issue such cases, or the adoption of an overture to be sent down to the presbyteries, or some other plan.
In regard to the first suggestion, the committee reported it unconstitutional, and the second inexpedient; which conclusions the report argued at some length, and further reported by a small majority that it was inexpedient to attempt any change.
Judge Fine submitted a minority report favouring an amendment in the constitution, and proposing an overture to be sent down to the Presbyteries, asking—Shall the constitution be so amended as to terminate all judicial cases originating in Church sessions in the synod, and all originating in presbyteries, in the General Assembly?
When the subject came up for discussion, Dr. Wines moved a resolution declaring that so much of the report of the committee as pronounced the appointment of a commission by the Assembly, unconstitutional, be not approved. His argument in support of this resolution embraced the following points.
- The General Assembly is a representative body, and does not act from powers original and primary. Its powers are not so extensive as those of the old synod, which was a meeting of all presbyteries in one body. “The General Assembly is vested only with defined powers, which it cannot enlarge without the original constituencies—the Presbyteries.”
This is a very common theory, but in our opinion an erroneous one, with respect to our constitution. All legitimate Church courts act from inherent primary powers. Neither session, presbytery, synod, nor Assembly derives its powers from the constitution. The constitution is of the nature of a treaty, or compact between different portions of the Church, as to the way in which their inherent powers may be exercised. If a presbytery may ordain, or try a minister, what is to hinder a synod or a General Assembly doing so? Nothing in the world but an agreement that they will not exercise these powers. All Church councils representing the Church, are vested with all Church power. A presbytery may do all that a session may do; a synod can do all that a presbytery or session can do; and the General Assembly can do all that a synod, presbytery or session can do—except so far as their hands are tied by a written agreement. Even a presbytery can exercise its inherent powers only according to the prescriptions of the constitution. It is not the true theory of our government, therefore, that the General Assembly has only delegated powers. It has all Church power, legislative, judicial and executive—though the exercise of these powers, as in the case of the presbytery, is limited and guided by a written constitution; and therefore it is true that our Assembly, under the limitation of the constitution, has not the powers of the original Synod, of which it is the successor. Still the distinction here stated is one of importance. Much depends on the question, whether our constitution is a grant, or a limitation of powers.
So far as we can judge from the reports of the debates, the objections to the appointment of a commission for judicial cases, were not urged with the plausibility and force with which they were presented last year by Chancellor Johns and Dr. McMasters. The great objection then urged was, that a court could not delegate its powers. What would be thought, it was asked, of the Supreme Court of the United States, if that venerable body should delegate its functions to a part of its members? The answer to this objection is, that there is no delegation of powers involved in the appointment of a commission. A quorum of a presbytery, no matter how large the presbytery may be, is the presbytery; a quorum of a synod is the synod, and a quorum of the Assembly is the Assembly. In like manner, inasmuch as a commission must embrace at least a quorum of the appointing body, a commission of a presbytery is the presbytery, a commission of the synod is the synod, and a commission of the Assembly is the Assembly. A commission, therefore, is not of the nature of a committee with powers, but it is the appointing body itself, adjourned to meet at a certain time and place, for the transaction of a specific business—with the understanding expressed or implied, that while the whole body may convene, certain members are required to attend. When a candidate for the ministry is to be ordained, A B are appointed to take part in the exercises. It is understood that any member may be present, but in point of fact, few beyond those named are generally convened. They are the presbytery, whether any other member is present or not; and they act as such. In many cases, they examine the candidate, they judge of his qualifications and orthodoxy, they decide whether he shall be ordained or not, and if the way be clear, they ordain him. Does any body cry out against this, as a delegation of powers? or against three or four men being trusted to exercise the functions of a body consisting it may be of eighty or a hundred members? In England, the house of Lords is the court of ultimate appeal in judicial cases. When they have transacted their ordinary business, they adjourn to meet in their judicial capacity for the trial of causes, but it is with the understanding that none need attend but the law-Lords; and, in point of fact, few others ever do attend. What constitutional principle, then, forbids a presbytery or synod, when their ordinary business is transacted adjourning to meet for the trial of a judicial case, with the understanding, that, (as in the case of an ordination,) while the whole body may convene, certain specified members are obligated to attend? It may, however, be objected, that the presbytery and synods are permanent bodies, and the Assembly is an annual one, and is dissolved and not adjourned. The Assembly, however, may sit a whole year. It may sit a month, and then adjourn to meet at any time within the year it may see fit to appoint. We are, therefore, unable to see any constitutional objection to the appointment of a judicial commission. It is well known that our ecclesiastical courts have often appointed such bodies, and that the General Assembly of the Church of Scotland annually appoints a commission, to which all unfinished business is referred. It is said that this is because the session of that body is limited by law to ten days. This, however, does not apply to the Free Church. Besides, what difference does it make? If it is anti-presbyterial to act by a commission, the law of the State cannot make it presbyterial. It is no presumption, therefore, to say that a mode of action which has been adopted for centuries by the most stringent and influential Presbyterian Church in the world, of its own free will, is not inconsistent with the principles of Presbyterianism.
It is, therefore, a mere question of expediency. Something must be done to relieve the Assembly of the pressure of judicial cases. To make appeals stop with the synod, violates an essential principle of our system, and must tend to the dissolution of the Church. The appointment of a commission is a long tried and approved method of relief, and we hope it will be ultimately adopted, not only by the Assembly, but by synods and presbyteries.
It is said, that probably not more than forty members would attend a commission of the Assembly, and then we should have a body not more than one-half as large as an ordinary Synod, acting as the supreme judicatory of the Church—with its two thousand ministers and two hundred thousand communicants. It is said also, that if the decisions of such a body were not to be reviewed, its power would be alarming, and if reviewed, it would be of no use. It is further said, the Church would have no confidence in the judgment of such a body. It is evident that these objections are addressed to the imagination, and not to the understanding. Fourteen members are a quorum of the Assembly, and may constitutionally act as the supreme judicatory of the Church. Seven members are a quorum of a synod, and may act for the whole body. Three are a quorum of a presbytery, even if it consists of an hundred members. The United States’ Court consists of some eight or ten judges, and lays down the law for twenty millions of freemen. A dozen law-Lords make decisions affecting all the subjects of Great Britain. It is a mere chimera, that a commission would be a monstrum horrendum. Respect and confidence follow competency and fidelity, not numbers.
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