a. Need of Revision
[Book of Discipline, chap. vii., sec. iii., especially par’s. viii. and xvii. —Comp. Digest of 1873, pp. 564, 592, &c.]
SOME eight or ten cases of this kind were presented to the Judicial Committee, but by the skill and wisdom of that body matters were so managed that all but three were arranged without being brought before the house. No. 1 was the complaint of the Church of Stillwater against the Synod of New Jersey.
The session of the Stillwater Church suspended one of their ruling elders. The ruling elder appealed to the presbytery, and the presbytery directed the session to restore him to office; the session then complained to synod, and the synod sustained the presbytery. It was against the action of the synod the session now complains.
After a great deal of discussion, extending over parts of six days, Dr. Thornwell said he thought the whole question was one of technicalities, and moved that the complaint be sustained pro forma, and the session be directed to give Mr. Shafer (the suspended elder) a new trial. This motion was carried almost unanimously.
This is another lesson teaching what the Church seems slow to learn; that a body consisting of upwards of two hundred members is not a very suitable court of appeal. Lawyers tell us that the apparently anomalous plan of making the upper house of the Legislature the ultimate court of appeal in civil matters answered very well, because the house uniformly deferred to the judicial members, except in cases where those members differed among themselves, and then the instinct of the lay members generally inclined them to take part with the right side. Such is not the constitution of our Assembly. It would be more of a parallel case if the appeal in civil matters were from the bench to the whole bar of a state assembled as a court, or if the House of Representatives of the United States were the supreme court of the Union. We believe the necessity for the appointment of a commission is forcing itself more and more on the conviction of the leading minds of our Church.
Another infelicity in our mode of conducting judicial cases was made very manifest on this occasion. This case was introduced on the fourth day of the sessions of the Assembly and decided on the tenth. When the case had been partly heard, other matters were taken up, and the whole subject driven from the minds of the members, and then it was resumed. This was done over and over again. It is obvious the case would have occupied much less time and been much better understood, could it have been heard continuously.
There is another point worthy of remark. It is impossible for any reader of the Minutes of the Assembly, or of the debates, to have the least idea of the merits of the case. The complaint is not given, neither the action of the presbytery nor of the synod is so stated that the reader can understand either the grounds or the justice of their decision. The only insight he can get is from the conflicting statements of the debaters.
We will venture still further to urge the necessity of the revision of our Book of Discipline. It is unintelligible, inconsistent, and in some of its parts unreasonable. This is proved beyond dispute from the fact that so much diversity of opinion exists as to its interpretation. We never knew of a judicial case brought before the Assembly where the mode of procedure did not create debate and confusion. Who are the original parties? is the question almost certain to be started, and just as certain to receive conflicting answers. In the present case, the moderator decided the session and the synod were the original parties.
But what can the word original then mean? The original parties must mean the parties concerned in the origin of the dispute; which in this case, were the elder and the session—another difficulty is, that in the great majority of cases there are no parties, in the sense of plaintiff and defendant. It seems unreasonable and anomalous to make the lower court a party. In civil matters, a lower tribunal does not appear at the bar of a higher, as a party to be tried. Its decision is reviewed— but the original litigants are the only parties, no matter how many steps there may be before the ultimate tribunal is reached. Would it not simplify matters if we adopted the same course? Our plan is first to try the synod as a culprit, then the presbytery, then the session, and at last we get down to the original offender. No wonder we never fail to get into confusion.
The simple and natural course when a case is brought from a lower to a higher court is, to try the cause, and not the court. The thing to be done is to administer justice, that is, for example, to decide whether a member has been rightfully suspended. Why not do this directly, instead of indirectly? Why must we get at the ultimate point by first having the synod arraigned, accused by one party and defended by another, and then turned out of the house as a culprit, and when all is done, we have to see how the presbytery acted, and at last we get to the session. In the state, if a man brings a cause before a lower court, and it goes against him, he appeals to the superior court; if not satisfied, he takes it up to the Supreme Court, and, if still aggrieved, he goes to the Court of Errors. In every step he takes simply his cause; he does not drag all the courts with him. The case is re-heard at every step, and if injustice was done in the original decision, or in any of the subsequent ones, the matter is set right. The cause goes up with all the records in the case, and is decided on its merits. We cannot see why we should not adopt the same course. If a man is suspended unjustly, in his judgment, by a session, let him take the case to the presbytery, and have the case (not the session) tried over again. If not satisfied with the decision, let him go to the synod, and have the case (not the presbytery and session) re-heard; and, if still aggrieved, let him take the case to the Assembly, and have it (and not the synod, the presbytery and session) tried again. This, we are persuaded, would save a great deal of time and trouble, and deliver us from that labyrinth in which our higher courts never fail to get bewildered.
It is a natural consequence of making inferior courts parties, to put them out of the house, and deny them any voice in the ultimate decision of the case. What justice is there in this? If it is a question of fact or morals, or of doctrine, or of constitutional interpretation, they have as much right to be heard in the last resort as others. Suppose a Synod consists of three presbyteries, one with fifty members, another with twenty, and the third with ten, and that the first should unanimously pronounce a given doctrine heretical, then, in case of an appeal, sixteen members might set aside the judgment of fifty. Is there any sense or reason in this? Is it a personal matter with the presbytery any more than with the synod? Is a circuit judge excluded from his seat in the Supreme Court when his judgment is appealed from? This making lower courts parties, and denying them a voice in the final judgment, and, to cap the climax, turning them literally out of the house, does appear to us a monstrous perversion of judicial principles.
There are several other points in which the obscurity of our book was manifested. What is meant by the synod, as a party, being fully heard? Dr. Rice said, it means hearing all that the members appointed by the synod to defend its judgment, had to say. The moderator decided it means hearing all that any member of the synod, present at the synodical decision, might wish to say. Again, it was disputed whether the complaint brought up the merits of the case; some said it did, others, with the moderator, said it did not; and yet it was so impossible to get on without bringing up the merits, that the moderator was forced to admit that “it seemed necessary that some little reference to the history of the case should be made!” Is not this pitiable? We do not blame our excellent moderator, whom everybody respects and loves; we blame the system. The whole process is disreputable. The session suspended an elder, no one knows why; no one knows whether it was done justly or unjustly, regularly or irregularly. The presbytery ordered the elder restored to office—no one knows why. The synod confirms the action of the presbytery, and the session complains to the Assembly—of what? we have not the slightest idea, and no one else can have, from the record. If the proceedings of a civil court, or of a court-martial, were so conducted, and so reported, what would the public think? Instead of being behind and below all other tribunals in the mode of administering justice, the Church courts should present a model for all other courts. This can never be done until we have a complete revision of our system.
b. Effective Methods for Revision The Rev. Dr. Beatty moved that the Assembly take up the consideration of the Revised Book of Discipline, commenced in the last Assembly, and by it referred to this body. He proposed the adoption of the eighth chapter of the new book, with a view to its being sent down to the presbyteries. The Rev. Dr. Rice moved that the consideration of the subject be referred to the next Assembly. This motion was warmly seconded by Dr. Musgrave, and sustained by Drs. Elliott, Junkin, Nevin, and Messrs. Haskell, Kempshall, Miller, and others. It was opposed by Dr. Beatty, who urged that as the work had already been seven years on hand, it ought to be finally disposed of. Drs. Krebs, Lowrie, and Backus took the same view, but Dr. Rice’s motion to postpone was adopted by a large majority. We do not know that any surprise need be felt at this decision. In the first place, the General Assembly is a large body. Its vis inerticoe is great. It requires a great and continued force to set it in motion.
In the second place, in every such body, and in every community, there is a party opposed to all change. They are wedded to old ways, and cannot be persuaded that anything new is good. The old naval officers of England and America opposed the introduction of steam into the navy. It is not surprising therefore, when a man has trod the quarter deck as long as Dr. Musgrave has done, that he is disposed to pitch any new sailing orders into the sea without even looking at them. He has sailed in all weathers, and always got into port; he is therefore satisfied with things as they are. This class of men are very respectable, very strong, and very confident. With them, seeing is believing. It is no use to tell them that steam is surer and better than wind as a motive power. They have sailed too long to believe that a ship can go ahead against wind or tide, no matter how large “a tea kettle,” (as an English Admiral called a steam engine,) she may have on board. These good men can be moved only by a vis a tergo. But move they must. Still for the time being they keep things steady. In the third place, not one in ten of the General Assembly knew anything of the new book. They had, therefore, no ground for judging of its merits. More effective than any other consideration was no doubt the desire to get rid of business. There is so much more to be done by every Assembly than can be done deliberately, that every item is stricken from the docket which can with any show of propriety be got rid of. There is also a latent consciousness that the General Assembly is not a fit body to frame a Book of Discipline, or to discuss its several provisions. Its members change year by year. Every question comes up new to every mind. It must decide on the first impression, or not at all. Congress might as well be expected, in the midst of the pressure of all other business, to frame a constitution, as the General Assembly wisely to frame a new Book of Discipline.
There are only two ways, as it seems to us, that this work can be well done. The one is, to have a convention called for the purpose, to sit two or three weeks; and when they have settled everything to their satisfaction, send it down to the presbyteries to be ratified or rejected. Thus our national constitution was framed. The other method is, for the presbyteries to take the Revised Book and carefully consider, amend. or reject it; and then for the Assembly to act definitively under their guidance. The work of deliberation must be done either in a convention, or in the presbyteries. It cannot be done in the Assembly; and the plan of having it done by a committee of eight or ten, experience shows will not answer. The reasons for the alterations are presented to too few minds. The mass of those who are called to judge and decide have not considered the several points to be determined, and they cannot be expected to act blindly. That something must be done, we are fully persuaded. Our present book is confused, contradictory, and impracticable. It cannot be acted upon, without a consumption of time that is intolerable. In every Assembly where judicial business is to be transacted, there are confusion, and disorder,—decisions which shock and offend, first one party and then another, all because the book itself is what it is. It is no answer to this to say that our present book was framed by great and good men. So was the constitution of England the work of great men. But it must be altered or overthrown to suit the change in men and things. And our old book, we are persuaded, must be altered, or our whole system will utterly break down. That a Church of three thousand ministers shall be occupied, as it may be for days, or even weeks, in its General Assembly, in determining the merits of a petty slander case, in any village in the Union, is a solecism not to be longer endured.
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