Those who sustained the resolution argued substantially thus: In the first place the question which this Assembly is called upon to decide, is the precise question decided by the Assembly of 1845. That question is, the propriety of restoring Mr. McQueen to the ministry. The Assembly of 1845 decided he ought to be restored; this Assembly is called upon to say he ought not to be restored. The former said the ends of discipline in his case were answered; we are called upon to say they have not been attained. It was strongly argued on the other side, that if the Assembly of 1845 could reverse the decision of the Assembly of 1842, this Assembly can reverse that of 1845. The Assembly of ‘45 did not reverse the decision of that of ‘42. The one Assembly said Mr. McQueen ought to be suspended from the ministry; the other, that having suffered that suspension for more than three years, he should be restored. To reverse a decision is to declare it erroneous and to render it inoperative. The Assembly of ‘45 did not sit in judgment on the decision of the Assembly of ‘42, and reverse it; the sentence of suspension was not pronounced erroneous or invalid; the punishment was declared to be sufficient. It was never, we suspect, before argued that to restore a suspended minister or Church member is to sit in judgment on the sentence of suspension. The questions therefore decided by the Assemblies of 1842 and 1845, were entirely different. In the present case the question is precisely the same. The thing complained of is the restoration of Mr. McQueen, the very thing which the Assembly of 1845 decided should be done. It is that decision which we are called upon to pronounce unconstitutional and wrong.
In the second place, the decision of this case in 1845 was a judicial decision, and being the decision of the court of last resort, is of necessity final. It requires no argument to show that the decision of one Assembly cannot be reviewed by a subsequent Assembly. There cannot be a remedy after the last, a court higher than the highest. One Assembly may indeed decide one case one way, and a following Assembly decide a similar case in another way. One may act on the principle that the marriage of a man with his wife’s sister is null and void, and that therefore separation must precede restoration, and on this ground refuse to restore A. B. suffering under a sentence of suspension for such a marriage. Another Assembly may act on the principle that the separation of the parties to such a marriage is not an indispensable condition to a restoration to church privileges, and on this ground decide to restore C. D. to Church fellowship. In this way one Assembly may go counter to the decision of another Assembly; but it never can be contended that one Assembly can review the judicial decision of a previous Assembly.
All therefore that can be required in the present case, is to show that the decision of 1845 in reference to the restoration of Mr. McQueen was really a judicial decision. It is readily conceded that if Mr. McQueen had merely memorialized the General Assembly to take action in his case, and the Assembly had proceeded to recommend to the presbytery to restore him, such a recommendation would be no bar to our entertaining the present complaint. One Assembly is not bound by the opinions or recommendations of another. Neither is any judicial decision binding as a precedent, as has already been remarked. But a case being once judicially decided by one Assembly, the decision is final. The only question, therefore, is whether the Assembly did decide judicially in favour of the restoration of McQueen.
A judicial decision, in the sense here intended, is the judgment of a court in the decision of a trial. McQueen complained of the Presbytery of Fayetteville for refusing to restore him to the ministry. The Assembly of 1845 entertained that complaint. They resolved themselves into a court for that purpose. The papers were read in order. The parties were fully heard. The court then proceeded to pronounce its judgment; which was that the ends of discipline had in his case been answered, and that the presbytery ought to restore him provided, in their judgment it was right to do so. This was in form and effect a judicial decision. It was the judgment of a court in a case regularly tried. Our book teaches us that a complaint may be sustained in whole or in part; absolutely and conditionally; on a condition to be performed by the complainant or by some other party. The Assembly might have restored Mr. McQueen on some conditions to be performed by himself—as for example, that he put away his wife, or that he make a public confession before the presbytery. No one can question that on the performance of such condition, the judgment of the Assembly, would have been final. The Assembly, however, wisely made the restoration dependent on the judgment of the presbytery, as to its propriety. The point really decided by the Assembly was that temporary suspension is an adequate punishment for the offence for which Mr. McQueen had been condemned. But whether that suspension had been, in his case, sufficiently protracted; whether it had wrought its proper effect upon him, or satisfied the demands of the Christian community of which he was a member, were points on which the presbytery was the only competent judge. The restoration, therefore, was made conditional on the judgment of the presbytery as to these points. As soon as the presbytery declared that, in their judgment, the interests of religion and the peace of the Church would be promoted by his restoration, the only condition attached to his restoration was fulfilled, and the decision became final.
The objections urged on the other side, were principally these two: first, that the act of the Assembly of 1845, was a mere recommendation and not a judicial decision. And secondly, that even if a judicial decision it was null and void, because contrary to the constitution of the Church. The answer to the former of these objections is contained in the records of the Assembly, which show that the case was strictly a judicial one; that it was so regarded by the Assembly, and so treated and decided.
The answer to the second objection is two-fold. First, admitting the allegation that the decision was unconstitutional, it is still final, and cannot be reviewed because the decision of our highest court. It is not denied that there are numerous decisions of a like kind upon our records; and yet no one pretends that these decisions can be brought up and re-examined by this or any subsequent General Assembly. It often happens that the decisions of a supreme court are erroneous or unconstitutional. And when so considered, they ought to have no weight in the determination of similar cases, but they are not the less final and irreversible for all that.
But in the second place, it is denied that the decision in question was unconstitutional. The allegation is, that the constitution clearly declares that the marriage of a man with his deceased wife’s sister, is incestuous, and therefore null and void in the sight of God and the Church, and consequently, that the parties to such a marriage cannot be admitted or restored to the privileges of the Church, unless the marriage relation between them be dissolved.
The answer to this is, in the first place, that the word incest, as the word manslaughter, and others of a similar kind, is a term of wide import, embracing under it acts of very different degrees of moral turpitude. Manslaughter may vary from justifiable homicide to murder in the first degree. And incest may vary from the lowest to the highest degree, according to the degree of relationship between the parties. It is to confound all our ideas of right and wrong, to shock the moral convictions of all sane men, to maintain that there is no difference between marriage within the prohibited degrees, when those degrees extend from a niece to a parent. No man believes this; and our Confession of Faith cannot be understood to teach any such doctrine. Admitting, therefore, that the Confession does pronounce the marriage in question incestuous, in the sense of being within the degrees of consanguinity and affinity prohibited in the word of God, it does not follow that no distinction is to be made between such a marriage and one between brother and sister, or parent and child. Such a distinction is made in Scripture, and in the nature of man. It is made by every human being, and should be made by the Church, unless the Church means to bring herself into conflict with the Bible, and with the instinctive moral sentiments of men.
In the second place, the interpretation of the Confession insisted upon on the other side, is contrary to the uniform action of our highest judicatory for more than a hundred years. While the old Synod and the General Assembly have repeatedly censured the marriage in question, they have never to the best of our knowledge, required the parties to separate as a condition of their restoration to Church membership. They have, however, repeatedly decided just the reverse. See Minutes of the Assembly for 1810, &c.* It cannot be just to enforce an interpretation of the constitution contrary to the established action of the Church, from a period long anterior to the date of the admission of our oldest living members. The Church has in this respect always recognized the obvious distinction between what is unlawful and what is invalid, any thing contrary to the rule of duty laid down in the Scriptures, is unlawful; but many engagements and contracts which men ought not to form, are, when formed, nevertheless binding. It is unlawful, i.e. contrary to the rule contained in Scripture, for a Christian to marry a pagan, but such a marriage would be valid. In the same sense, it is unlawful for a man to marry a member of his own household, i.e. any one so connected with him, as to render it proper on the ground of that relationship, that they should live together as members of the same family. This is the obvious rule laid down in Scripture; but such a marriage may nevertheless be valid; and is valid, unless the relationship be one of those in reference to which separation of the parties is decreed in the word of God.
In the third place, the interpretation of the constitution, now contended for on the other side, is contrary to the practice of its very advocates. As members either of presbyteries, synods, or of the General Assembly, they are in constant communion with parties living in the relation in which McQueen and his wife stand to each other. It is not for one moment to be believed that these brethren would or could sit quietly, if within the bounds of their own presbyteries, Church members were allowed to enjoy their privileges undisturbed, who were notorious drunkards, or thieves, or who, being brothers and sisters, had intermarried. And yet, if we are correctly informed, within the bounds of this very Presbytery of Fayetteville, there is more than one such case. And sure we are that such cases are numerous in all parts of our Church, where such marriages are not forbidden by the law of the land. The only consistent course, therefore, is the one on which our Assembly has so long acted. That is, to censure such marriages, whenever brought before them judicially, but not to insist on the separation of the parties. It was, therefore, very proper in the Assembly of 1842, to sanction the action of the Presbytery of Fayetteville, in suspending Mr. McQueen; but it would be contrary to our long established usage for this Assembly to insist that he must repudiate his wife.
In the fourth place, the interpretation in question, is contrary to the Word of God. It supposes that all violations of the general law, “none of you shall marry any who is near of kin to him,” are to be treated just alike; whereas the Bible makes a great distinction between the cases. For one offence against that law, the parties were to be burnt to death; for another, they were to be stoned; for another, excommunicated; for another, they were to die childless. These penalties being part of the judicial system of the Hebrews, are no longer binding. But the offences to which they are attached, being offences against a law having its foundation in the permanent relations of men, are offences still. And the fact that they were visited by divine appointment, with such different degrees of punishment, shows that they are not to be confounded.
The decision of the Assembly of 1845, that a man who had married his deceased wife’s sister might be restored to the privileges of the Church, without repudiating his wife, is not contrary to the constitution, as that instrument has been interpreted for more than a hundred years, and as understood in the light of God’s own word. All this, however, is really foreign to the present question, which is simply this, whether a man restored to the ministry by one Assembly, can be again suspended on the ground that such restoration was unwise, injurious, or unconstitutional? Mr. McQueen was conditionally restored by the Assembly of 1845, and the condition having been fulfilled by the action of his presbytery, the decision became final.
It is due to the complete history of the marriage question before this Assembly, to add, that the following resolution was offered by the Rev. Dr. Patterson, viz: Resolved, That the General Assembly overture to the presbyteries the following question, viz: Shall that part of the fourth section of the twenty-fourth chapter of the Confession of Faith from 1 to 2, which says, “Nor can any such incestuous marriages ever be made lawful by any law of man, or consent of parties, so as those persons may live together as man and wife,” be stricken out? This resolution was urged by the mover and Dr. Hoyt, solely on the ground that the law as it now stands in the book is inconsistent with the practice of the Church. The previous question was moved by Mr. Hunt, after very little discussion, and the resolution was rejected by a vote of 57 ayes to 89 noes.
A resolution offered by Mr. Berry, reproving, and bearing testimony against those presbyteries and Church sessions which allow the formation of this marriage relation, was also rejected without a division, and by a very large vote.
← Chapter XVI. Discipline, § 4. Decisions may Confirm or Reverse in Part, and be Expressed in Minute of a Special Committee · Contents