Chapter XVI (continued, part 2)
presbytery, and leave minorities completely in the hands of majorities.
It may be said that these remarks apply only to that form of the new doctrine which excludes complaints, no less than appeals, in all except judicial cases. We have already admitted that the evil is far less sweeping, if the right of complaining against unconstitutional or injurious executive acts be allowed to remain. But the right of appeal is no less sacred than that of complaint. The constitution places them on the same ground, as far as the present subject of debate is concerned. The Assembly has no more authority to take away the one, than it has to take away the other. The argument which has been applied to justify the denial of the right to appeal, except in judicial cases, applies in all its force to complaints. It is proper, therefore, to show what would be the effect of the full assertion of the new doctrine. Besides, the evil arising from denying the right of appeal where the constitution allows it, is no less real and grievous, though less extensive than when the denial is extended to complaints. A man dismissed from his charge, a congregation divided, or over whom a pastor has been installed against its consent, have a right not merely to have these acts reviewed, but their operation arrested. And it is often of the last importance that the effect of the decision should be suspended until a final determination can be had. The reversal of a presbyterial decision to divide a congregation, after it had actually been organized for nearly a year, into two parts, would often aggravate instead of healing the difficulty. And so in a multitude of other cases, of which abundant examples might be cited from the Minutes. This new doctrine, therefore, is inconsistent with the radical principles of Presbyterianism, and its full operation effectually subverts our whole form of government; and even in its restricted application to appeals, it is in direct conflict with the
constitutional rights of aggrieved parties, and productive of much injustice and hardship.
This doctrine is at variance also with the undeviating practice of our own and all other Presbyterian Churches. This of itself is a fatal objection to any new doctrine. The fact that we have been going on in accordance with the usage of all other Presbyterian bodies, for a hundred and twenty years, interpreting and administering our constitution in a certain way, is answer enough to any man who comes forward with a new doctrine, extracted by legal subtlety from the technicalities of the constitution. The words of our book have the sense which they were intended to bear; and they were intended to bear the sense in which its authors and administrators have ever understood and applied them. If we depart from this rule of construction we might as well have no constitution at all. Stability is one of the primary requisites of good government. And hence it is a great evil that any long-established principle should be unsettled by some novel interpretation of our fundamental laws. That the practice of our Church has been uniform on this subject, is admitted. It is maintained, however, that this usage, as far as concerns the period anterior to the revision of the constitution in 1821, is of no authority, and that the time which has since elapsed is too short to give to usage any force in opposition to what is supposed to be the sense of the constitution. This principle is, no doubt, correct. Usage is not of authority in opposition to a written constitution. But it is of the greatest authority in a question of interpretation. It cannot be rightfully disregarded, unless the constitution be clearly in opposition to the usage. We have already seen that there is no such opposition in the present case; that the uniform practice of the Church is in harmony with our constitutional rules. This being the case, the argument from usage is of course conclusive.
The assumption that the amendments adopted in 1821 were designed to abrogate the old common law of the Church is a very extraordinary one. This common law had grown up in this country and in Scotland, under the brief and aphoristic statements of Presbyterian principles contained in the Westminster Directory. These statements were incorporated in the constitution of 1788, and are retained in the amended constitution of 1821. If from that time they were to be differently understood, it is strange that they were not so modified as to give some intimation of the fact. But how is it known that these amendments were intended to abrogate the old common law of the Church? The authors of the amendments declare, some in one way and some in another, that they had no such intention The Church certainly intended no such change, because it went on acting under the amended constitution precisely as it had acted before. It was not until fifteen years after the amendments were made, that any one discovered what they were intended to accomplish. It is evident that such a discovery cannot be entitled to much consideration.
To show how uniform has been the usage of our Church on this subject, even since 1821, we shall proceed to cite some of the examples to be found on our Minutes; and for reasons already stated, we shall not confine these examples to cases of appeals. In 1822, the Assembly entertained and decided an appeal from the Synod of Ohio, relating to the validity of the election of certain elders. Minutes, p. 18 and 21. In 1827, Dr. Green and others presented a complaint against a decision of the Synod of Philadelphia, which turned on the question, Whether the same person could properly hold the office of ruling elder in two churches at the same time? The decision of the synod was affirmed, p. 117. Two other complaints of a similar character were decided the same year, p. 125, 130, and 132. In 1828, an appeal was received from some of the pew-holders of the first
Church in Troy, against a decision of the Synod of Albany, p. 228; and a complaint from the Presbytery of Philadelphia against the Presbytery of Columbia, relating to the licensure of Mr. Shaffer, p. 234. In 1829, two complaints were received against decisions which were not judicial. In 1830, an appeal was presented from the Church in Bergen from a decision of the Synod of Genesee, which, however, was dismissed for want of a date and other irregularities in the mode of its prosecution. p. 9 and 17. In 1831, the complaint of the minority of the Presbytery of Philadelphia, in the case of Mr. Barnes, was presented; and in 1832, a complaint against a decision of the Synod of Virginia relating to called meetings of synod, p. 315. In 1832, there appear to have been five, if not six, complaints of the same character presented to the Assembly, p. 476. In 1834, the Assembly received and decided the appeal of the Second Presbytery of Philadelphia against the decision of the synod, before referred to. The same year the Synod of Philadelphia referred for adjudication the appeal and complaint of the Fifth Church of Philadelphia relative to the call of Dr. Beman, p. 8. In 1835, the Assembly received and decided the appeal of Thomas Bradford and others from a decision of the Second Presbytery dividing their church, p. 20; and also an appeal and complaint of Thomas Bradford and others relating to the installation of Mr. Duffield, when the acts of the presbytery in relation thereto were reversed, p. 33. Immediately under the record of this latter decision we find the following minute, viz.: "The Assembly took up the report of the committee on the records of the Synod of Philadelphia, and the records were approved with the following exception, viz.: In regard to the doctrine of the said Synod concerning appeals, complaints and protests, and the application of this doctrine, about which the Assembly express no opinion." There was the less necessity for expressing an opinion in words, as they had just expressed one so intelligibly, by acting in direct opposition to that doctrine. In 1836, we find several examples of the same kind, as,
for instance, the appeal and complaint of the Second Presbytery against the Synod of Philadelphia for dissolving them as a presbytery, p. 273. In 1837, there was an appeal presented by Rev. A. G. Morss and others, of the congregation of Frankford, which does not appear to have related to a judicial decision, p. 417 and 480. In 1838, there was an unusual number of such complaints and appeals; for example, a complaint by the Presbytery of Wilmington; a protest and complaint by R. J. Breckinridge and others against the Synod of Philadelphia for their decision relating to the Third Presbytery of Philadelphia; an appeal and complaint of J. Campbell and others against a decision of the Synod of New Jersey; an appeal and complaint of certain persons claiming to be the Church of St. Charles, against a decision of the Synod of Missouri, that they were not the said church; which appeal was sustained, and the proceedings of the synod in the case were set aside. See pages 11, 13, 14, 15, 16, 19, 23, and 39 of the Minutes.
There is not then, upon our Minutes, a single case of an appeal or complaint, which was rejected on the ground that it did not refer to a judicial sentence. We have been going on for a hundred and twenty years entertaining such appeals without any one dreaming of their being irregular. This has been done as freely since, as before, the revision of the constitution, by those who proposed and by those who adopted the amendments. If after all this a new and opposite doctrine is to be introduced, there never can be any stability or security with regard to any principle of Presbyterian Church government. If precedents so long continued, so numerous, so highly sanctioned, are to be set aside, the Church will demand something more than verbal criticism, or ingenious inferences from collated passages. Nothing short of a plain and intelligible denial of the right to complain of oppressive and unconstitutional acts; or to appeal from unrighteous decisions, though they may not be judicial, will
induce Presbyterians to forego a privilege which they have enjoyed from the very foundation of their Church. No one pretends that there is any such denial to be found in our amended constitution. The prohibition is a mere inference from the technicalities of the rules of process. We think, however, that we have shown that there is no such opposition between our rules of process and the radical principles of our system; that every one of those rules may be observed to the very letter, in cases of appeal or complaint against executive acts, and consequently that there is no foundation in the constitution for this new doctrine. If it is to be applied to appeals, we see not how any one can fail to apply it to complaints and references, and if so applied, all must acknowledge that our system of government would be completely overturned. The right of appeal is already restricted within very narrow limits. It is not the privilege of any member of the court. It belongs exclusively to an aggrieved party; to those whose character or interests are immediately concerned in the decision. And to all such it is a right guaranteed by the constitution and by the undeviating practice of the Church.
b. Review of a Decision that Appeals cannot lie except in Judicial cases
[Book of Discipline, chap. vii., par. ii., and sec. iii., par. ii.—Digest of 1873, p. 574.]
This was an appeal from the decision of the synod refusing to entertain Dr. Skinner's appeal from the decision of the presbytery, dissolving his pastoral relations to the Church in Lexington. After hearing the parties, viz., Dr. Skinner and the commissioners of the synod, the vote was taken by calling the roll, for sustaining the appeal 42; for not sustaining 59. So the appeal was not sustained.
The accounts of the debate on this case published in the papers, are so brief, as to leave us at a loss as to the grounds of this decision. In one paper (New York Observer, June 10th), it is said, the synod "refused to entertain the appeal, as the presbytery had acted on his own request, and that of the people" in dissolving the pastoral relation between Dr. Skinner and the Lexington Church. If this were the ground of the synod's action, then the decision of the Assembly does nothing more than sanction the correctness of their judgment. It involves no constitutional principle. But in other places it is stated that the synod refused to entertain the appeal in question, because the decision of the presbytery was an executive act, and not a judicial sentence. If this was the ground assumed by the synod, then the action of the Assembly would seem to sanction the principle that no appeal can lie except in strictly judicial cases. We presume this is the correct statement of the case, both from the drift of the reports in the newspapers, and from the fact that the former reason, though a very good one for refusing to sustain Dr. Skinner's appeal from the action of his Presbytery, was no reason for refusing to entertain it.
Though this is so, we are slow to believe that the Assembly deliberately intended to sanction the doctrine that appeals are a remedy confined to strictly judicial cases. A member of the house informs us that several members who voted with the majority, told him that the only point they intended to decide by their vote was, that Dr. Skinner ought not to be restored to his relation as pastor of the Lexington Church, that they did not mean to sanction the general principle as to appeals. We see also in the list of those who voted to sustain the action of the synod, the names of brethren who we know do not hold, unless their opinions have been suddenly changed, the doctrine that appeals can lie only in judicial cases. We trust that this decision, made under such circumstances, may not be pleaded as authority for that doctrine. As this is a subject which has been
repeatedly discussed in this journal, we shall not trouble our readers with any extended argument on it now. We beg leave merely to submit the following remarks:
It must be allowed to be a great evil when the action of the Assembly is inconstant and contradictory on important constitutional principles. Such inconsistency not only tends of necessity to impair confidence, but it is in itself a very serious evil. All courts are governed, and should, to a great extent, be governed by precedent. Long-established usage has the authority of law. People have the right to depend upon it. It works manifest injustice, when a party avails himself of a remedy, which a court for years and generations has recognized as appropriate, and he is suddenly and unexpectedly, by a new construction of the constitution, refused a hearing because he has put his case in a wrong form. It is an undoubted fact, that the highest judicatory of our Church, in accordance with the uniform usage of other Presbyterian Churches, has for a hundred years uniformly recognized the right of appeal in an aggrieved party, in any case, whether judicial or executive. There is, as far as we know or believe, but one solitary decision of the Assembly to the contrary, and that preceded and followed by a multitude of cases of an opposite character. It is still more humiliating and injurious when we see men who one year or in one judicatory, take ground that an appellant shall not be heard unless the case be strictly judicial, and in the following year and on other occasions quietly entertain such appeals without a whisper of disapprobation. The only way to avoid these evils, to maintain the dignity and authority of the Assembly, and to deal justly with those who appear at its bar, is to adhere rigidly to the established interpretation of the constitution.
But if this new construction is against all precedent, it is, as it seems to us, no less clearly against the express language and obvious intent
of the constitution. "Every kind of decision," it is said, "which is formed in any Church judicatory, except the highest, is subject to the review of a superior judicatory, and may be carried before it in one or the other of the four following ways." This cannot mean, that one kind of decisions can be carried up in one way, and another kind in another; for it is admitted that every kind may be brought up by review of records, by reference, and by complaint; and, therefore, the passage must mean that the several remedies enumerated, are applicable to any and every kind of error or injustice. But in this enumeration appeals are included, and therefore as any kind of case can be carried up by review, reference, or complaint, so it can be by appeal. This is the plain meaning of the passage as it has ever been understood and acted upon.
In the third section of that chapter it is said, "An appeal is the removal of a cause already decided, from an inferior to a superior judicatory, by a party aggrieved." In the language of our Book a cause is a case, an act or decision of a court, about which diversity of opinion may exist, or in which different interests may be involved. Thus it is said in the next section, "Another method by which a cause which has been decided by an inferior judicatory may be carried before a superior, is by complaint." Here a cause is any decision. This is admitted, for no one contends that complaints are limited to judicial matters. As then any decision or cause may be carried up by complaint, so also by appeal.
Again it is said, "The necessary operation of an appeal is, to suspend all further proceedings on the ground of the sentence appealed from. But if a sentence of suspension, or excommunication from Church privileges, or of deposition from office be the sentence appealed from, it shall be considered as in force until the appeal shall be issued." The plain meaning of this is, that an appeal suspends the
operation of the decision appealed from, except in judicial cases. Suspension, excommunication and deposition are all the judicial sentences known to our constitution, unless mere admonition be added, which last, from its nature, does not admit of being suspended, for the vote to admonish is the admonition itself. Here then the constitution expressly and most justly provides that an appeal suspends the operation of a decision, except in judicial cases, and therefore by necessary implication, admits that there are other than judicial sentences, from which an appeal may properly be taken.
Our book makes two and only two distinctions as to complaints and appeals. The one relates to the persons entitled to avail themselves of these remedies, the other to their operation. Any one can complain of the decision of a church court who thinks that decision is unconstitutional or injurious. It is the right of any member of the judicatory or of the Church, to see that an evil, as he deems it, may be examined into and redressed. But no one can appeal but "an aggrieved party." If he does not see fit to arrest the operation of the decision, no other person has the right to interfere and prevent the will of the judicatory taking effect. An appeal, therefore, differs from a complaint, in being a remedy confined to those who consider themselves aggrieved or injured by the decision of the lower court. It differs also from a complaint inasmuch as the latter does not suspend the operation of the decision complained of. When however our book says, That "every kind of decision" can be carried up from a lower to a higher court, by appeal, it does not mean every decision, but what it says, "every kind of decision," because the interests of parties may be most deeply implicated by every kind of act of a Church court, executive, legislative, or judicial. Appeals, from their nature, are confined to cases of real or supposed grievance.
This suggests the main reason after all for insisting on this right of appeal. It is essential to our system. Neither ministers or church members will ever submit to give it up, and put themselves entirely in the power of a session or presbytery. The denial of the right is an arbitrary stretch of power. There are innumerable cases in which a complaint would afford no redress. The evil is consummated before the remedy can be applied. Suppose, for example, a presbytery should decide that a congregation should be divided, and the people, or a portion of them, feel aggrieved by the decision, what good would it do them to complain? The sentence would take effect; two churches would be constituted and organized, and might both have pastors, before the synod could hear the complaint. It would be a mockery to tell such people, after the evil was all done, they might complain about it. They have no redress, unless by appeal they can arrest the decision, until the higher courts have decided on its wisdom or justice. The same remarks apply to other cases. A presbytery may dissolve the pastoral relation between a pastor and his people; the people may consider themselves deeply aggrieved. If they cannot appeal there is no remedy. Their pastor is gone, installed over another church, before their complaint comes to be heard. Or the pastor may be the aggrieved party, but if he can only complain, his place may be supplied by another pastor, before a final decision is had on the question whether he is to be removed or not. How unreasonable and unjust is this. A sentence is allowed to take full effect, before the competent authorities have decided whether it shall have any effect at all.
We are persuaded the churches will never give up the right of appeal; the right of arresting the operation of decisions which they regard as disastrous or unjust, until the court of the last resort has given its judgment. It is a primary principle of justice that no sentence should take effect, until all who have a right to sit in judgment in the case,
have decided that it shall be carried out. This is "the necessary effect of an appeal," says our book. It is the righteous provision of our standards that an injury shall not be inflicted, before it be finally determined that it is unavoidable or deserved. The exceptions made as to the application of this principle in judicial cases, is plainly a sacrifice of the individual to the whole—it is better that one person should suffer for a while under an unrighteous sentence, than that the whole Church should be disgraced and injured by an unworthy member or minister, until an appeal can be carried through all our courts. The fact is that so far from appeals being confined to judicial cases, those are precisely the cases where they are of the least importance. They have in such cases no advantage over a complaint —they do not arrest the operation of the sentence, and they do not bring it more effectually under the review of the higher court.
There is another remark we cannot refrain from making. The action of the Assembly in this case involves a contradiction. They decide that an appeal cannot lie in a particular case, while in the very act of entertaining such an appeal. If the synod were right in refusing to entertain Dr. Skinner's appeal from the presbytery, how could the Assembly entertain his appeal from the synod? If the case was not a judicial one before the synod, it was not a judicial one before the Assembly. It could not change its character by passing from one court to the other. The only consistent course for the Assembly would have been, the moment the appeal was reported, to refuse to hear it, because the decision against which it was entered was not a judicial sentence. This was what the synod did. But instead of this, the Assembly gravely entertain an appeal from a non-judicial decision of the synod, resolve themselves into a court, hear the parties, deliver as their judgment that they have no right to do what, with so much solemnity, they are actually engaged in. They say appeals are confined to judicial cases, while engaged in trying one from an
executive decision. So deeply wrought into the consciousness of the Church is the conviction that the right of appeal is a right sacred to every aggrieved party, no matter under what form the grievance may be inflicted. If Dr. Skinner had no right to appeal from the decision of the presbytery, he had no right to appeal from a similar decision of the synod, and the Assembly in hearing his appeal from the latter, contradict their own decision, that the synod did right in refusing to hear him as an appellant from the presbytery.
Some of the special advocates of liberty of speech and opinion, are apt, when in the majority, to find out that it is very heinous to express any dissent from the decision of the General Assembly. This is not Protestantism; nor is it Christianity. It is perfectly consistent with all due deference and obedience, for any member of the Church to express without reserve his opinions as to the wisdom or justice of any decision of our ecclesiastical courts. Least of all can the exercise of this right be disputed when the decision in question is opposed to the established usage of the Church, and the previous decisions of almost every Assembly since the first organization of that body. We do not, however, believe that the Assembly, whatever may be the legal import of their decision, consciously intended to sanction the new doctrine on appeals; we believe they simply meant to say that Dr. Skinner ought not to be restored to the pastoral office over the church in Lexington,—a decision, we presume, in which all parties concur.
c. Legitimate Grounds of Complaint
[Book of Discipline, chap. vii., sec. iv., par. ii.—Digest of 1873, p. 596. —Comp. Form of Gov. v. iv., p. 204.]
The Rev. R. J. Breckinridge, D. D., presented to the Synod of Philadelphia, at its late meeting, two papers expressing dissent from
the decisions of the General Assembly of 1843, touching the constitution of the quorum of presbyteries, and the right of ruling elders to join in the imposition of hands in the ordination of ministers, and proposing that the synod should overture the Assembly to reverse these decisions. The question being on the adoption of the said papers, the synod decided not to adopt; and thereupon Dr. Breckinridge and others appealed and complained to the next Assembly. The papers connected with the subject having been referred to the judicial committee, the Rev. S. B. Wilson, chairman of that committee, reported that they had examined the same, and that, in their opinion, the decisions complained of were not, according to our Book of Discipline, matters of appeal or complaint, and recommending that the papers be returned to the parties who presented them.
The adoption of that report was advocated by Dr. Wilson, Dr. Hoge, Dr. Elliot, Messrs. A. O. Patterson and N. L. Rice; it was opposed by Dr. J. C. Young, Mr. Junkin, Mr. Stonestreet, Mr. Gildersleeve, and others. After a protracted discussion the vote was taken and resulted as follows, Ayes: Ministers 88, Elders 53—total 141. Nays: Ministers 21, Elders 26—total 47. Thus the report was adopted, † and the Assembly decided that, in the case before them, there was no ground on which either an appeal or complaint could rest.
Until within a comparatively recent period there was no diversity as far as we know either of opinion or practice, in our Church, on the legitimate grounds of appeals and complaints. At present it would seem that there are no less than four different views more or less prevalent on the subject. The first is that any decision of a lower, may be brought up before a higher judicatory by either an appeal or complaint, at the option of those concerned. The second opinion goes to the opposite extreme, and denies the right of either appeal or
complaint except in cases strictly judicial, i.e. cases in which there has been a trial and a sentence. The third opinion is, that appeals are limited to judicial cases, but that complaints may be entered against any decision of a lower judicatory. The fourth, which we believe to be sustained by the plain doctrine of our book, and the uniform practice of our own and of all other Presbyterian Churches, is that taken by the Rev. N. L. Rice, and we presume by a great majority of the late Assembly, viz. that appeals and complaints may lie not against any decision, but against any kind of decision of a lower court. That is, it matters not whether the act be judicial, legislative, or executive, it may be brought under the revision of a higher court by either of the methods mentioned. But as both appeals and complaints are measures of redress, they from their nature suppose a grievance, a wrong done or charged, and therefore cannot possibly lie in any case where no grievance or wrong-doing is supposable.
It is somewhat remarkable that after nearly a century and a half of practice, during which appeals and complaints have almost yearly and often many in the same year been brought up and decided, it should still be a matter of debate when a man has a right to avail himself of this mode of redress. To the best of our knowledge there never were two opinions on this subject until the year 1834, when the late Rev. Mr. Winchester, in defending the Synod of Philadelphia against the complaint of the Third Presbytery of Philadelphia, took the ground that no appeal or complaint could lie except in a judicial case, a case of trial and censure. At that time the synod which he defended repudiated that ground of defence, for they themselves referred to that very Assembly an appeal from an executive act. The following autumn, however, the synod, under the lead it is believed of some of the present appellants, took the ground, that no appeal, complaint or even protest could lie except in cases of a strictly judicial character. This, however, was a momentary delusion, for the
members of that synod without the least hesitation or objection joined in entertaining and issuing, the following spring, an appeal of Thomas Bradford and others from a decision of a presbytery to divide the Fifth Church of Philadelphia, contrary to the wishes of the people. It was found by the very authors and advocates of the new doctrine that it would not work, without destroying the rights of the people and subverting the constitution. In the case of Mr. Bradford's appeal, the church with which he was connected considered themselves not only aggrieved, but their title to their property jeoparded by the act of the presbytery, and they had therefore the clearest right not only to have that act reviewed, but its operation arrested, until its constitutionality and justice were passed upon by the highest judicatory of the Church. Neither a complaint nor a review of records could afford them redress, for it was necessary that the operation of the act of presbytery should be suspended or the evil would be past remedy. This doctrine therefore was abandoned, and in 1836 there were several cases of appeals or complaints from other than judicial decisions; another in 1837, and in 1838 no less than four or five cases of the same kind; one a complaint by the Presbytery of Wilmington, another a protest and complaint of R. J. Breckinridge and others; another an appeal and complaint of J. Campbell and others; another an appeal and complaint by certain persons claiming to be the Church of St. Charles, against a decision of the Synod of Missouri, that they were not said church. The whole Church therefore went on after this new doctrine was started just as it did before, hearing and issuing appeals and complaints, as in duty bound, from all kinds of decisions. In 1839, however, a complaint was presented to the Assembly by A. D. Metcalf and others against the Synod of Virginia for deciding that appeals may lie in cases not judicial. This complaint the Assembly sustained. This was the origin of the modified form of the new doctrine, viz., that appeals are confined to cases of trial and sentence but that complaints have a
wider range, which is the third of the four opinions on this subject mentioned above.
This decision of the Assembly is against all precedent. It is no disrespect to that body to think and say that it is more probable that they erred in their judgment, than that all other Assemblies that ever sat in this country were mistaken. We beg leave to refer our readers to the account of that case in our volume for 1839, where they will find the precise doctrine on the subject, which we are now advocating, stated and defended. We may be excused from making the following brief extract from our history of the Assembly for that year. "Our constitution says, 'That every kind of decision which is formed in any Church judicatory, except the highest, is subject to the review of a superior judicatory, and may be carried up in one or the other of the four following ways: 1. General review and control; 2. Reference; 3. Appeal; and 4. Complaint.' The question is, what is the meaning of this plain declaration? It does not mean, because it does not say, that every individual decision, but every Kind of decision may be carried in either of these four ways. These different forms of redress contemplate different circumstances, and are not all available in every particular case. A reference, for example, must be made by the body itself, and not by an individual member, but the body may refer any kind of case. An appeal supposes an aggrieved party, but he may appeal from any kind of decision which directly affects himself. A complaint supposes some kind of impropriety in the act complained of, but it may be entered against any kind of act alleged to be improper. So that any kind of decision may regularly be brought up in each of the several ways specified above."* We make this extract and reference to the article whence it is taken, because we understand that our pages were frequently referred to on the floor of the Assembly, and quoted in support of the right of the appellants in the case then before the house. It will be seen however that the
doctrine taught in our pages is not that every particular decision may be made the subject of appeal or complaint, but that these modes of address are applicable to every kind of decision. It is not only when a man is tried and suspended from the Church or the ministry that he has the right to appeal, but if dismissed from his pastoral charge, against his will, or in any way personally aggrieved by the act of a Church court, he has the same right.
The difference between an appeal and complaint is, that a complaint does not arrest the operation of the decision against which it is entered, and secondly, that an appeal can be made only by an aggrieved person; whereas a complaint may be made by any member of the court who considers the decision unjust or unconstitutional.† If a presbytery divide a congregation against its will, it is only the people who have a right to appeal, but any member of the presbytery may complain of the act. Our doctrine, therefore, on this subject is the common doctrine of our Church, viz: that any kind of decision of a judicatory can thus be brought under the review of a higher court. No man can appeal from a decision that does not affect himself, and no man can complain of a decision which is not wrong either actually or supposably; which is not charged with having violated some rule of the constitution or of justice. As a complaint is a mode of redress, where there is no grievance there can be no complaint.
We fully agree, therefore, with Dr. Young and Mr. Stonestreet, in the main drift of their able arguments before the late Assembly, as far as we can judge from the reports given in the papers. Those gentlemen argued to show that the fact that the decision of the Synod of Philadelphia from which Dr. Breckinridge appealed and against which he complained, was not a judicial sentence, was no legitimate bar in the way of the Assembly's entertaining the case.‡ We differ from them, however, in thinking that that principle covered or even
touched the case before the house. Had some ruling elder claimed the right in the Presbytery of Baltimore to join in the imposition of hands in the ordination of a minister, and been refused by a vote of that body, he could have complained to the synod, and if the synod sustained the presbytery, he might complain to the General Assembly. Or if the synod had passed a resolution prohibiting elders from taking part in such service, any member of the body would have had a right to complain. But the case before the Assembly was of a very different nature, and was properly dismissed.
The principle just adverted to, viz.: that a complaint supposes a grievance can hardly be called into question. Does any man complain of anything which he does not think wrong or injurious? Does not the nature of the act imply a charge against the body complained of, that it had no right to do the thing in question, or that it infringed on the rights of others? Does not our book say that a "complaint is a representation," that "a decision by an inferior judicatory has been irregularly or unjustly made?" Of course where there is no room for the charge of irregularity or injustice there can be no room for a complaint. If the decision is not charged with being in violation of any rule, or with inflicting any injury on those concerned, it is preposterous to assert that there is a right of complaint. A body cannot be summoned to a higher court for the exercise of its acknowledged rights, in accordance with the constitution, and in cases subject to its own discretion. If a presbytery elects A. B. instead of C. D. moderator, no one can complain since the presbytery has a right to choose their own moderator, and, within the limits of the constitution may choose whom they please. They may choose the oldest man or the youngest man, the wisest or the weakest, and no man may call them to account because in his judgment they might have made a better choice. If such an act is made a ground of complaint, it must be charged that it was irregularly or unjustly or
corruptly performed. The complaint must rest not on the act itself, but upon the assumption that it violates some rule which the judicatory was bound to observe, or that it affects unjustly the rights or interests of others. There are then certain acts which are purely discretionary, which a judicatory have a perfect right to do or not to do at pleasure, which cannot possibly be made the ground of a complaint, unless they can be charged as unjust or irregular.
The only question then, is, whether the act of the Synod of Philadelphia was such an act. To determine this point, we have only to ask what the act was, and secondly, whether it can be charged or supposed to violate any rule or to infringe any right. As to the act itself, it was a simple refusal to adopt an overture. Dr. Breckinridge presented two memorials condemning in strong language the decision of the Assembly of 1843, as to the constitution of a quorum of presbytery, and the right of elders to join in the imposition of hands in the ordination of ministers, and calling upon the synod to overture the Assembly to rescind the obnoxious resolutions, and to adopt others of a contrary import. This the synod refused to do. Now the only question is, whether a synod is bound to adopt any and every overture presented to it; or whether any right is infringed by their refusing to do so? This question has nothing to do with the correctness or incorrectness of the views contained in the overture. It may assert self-evident or acknowledged truths, still it is a matter entirely within the discretion of the body to receive or reject it. Because a synod may present overtures to the Assembly, it does not follow that it is bound to do so. It may, if it chooses, call upon the Assembly to assert that Calvinism is true and Romanism false, but it cannot be forced to make such a call, or charged with acting unjustly or irregularly for refusing to make it. This is plain from the nature of the case, for such an overture is a petition, and it is absurd to say that a body can be forced to petition. It is clear, therefore, that the act of
the synod was purely discretionary. It is equally clear that the synod's act violated no right, it inflicted no grievance, because no member of a body has a right to make that body adopt his sentiments, or if they hold them, publicly avow them, or to call upon a higher judicatory to avow them. If a man wishes the Assembly to avow certain doctrines, let him make the request, but what right has he to force others to join in that request, or to charge them with acting unjustly or irregularly for refusing to do so? All this is so perfectly plain that Dr. Young, and other advocates of the appeal and complaint, were forced to assume that the synod had decided adversely to the doctrine of the overture. They felt the absurdity of complaining of the mere refusal to adopt a certain paper, and therefore were forced to assume that the refusal to adopt was an expression of an opinion contrary to the contents of the paper. But this is obviously a gratuitous and unwarranted assumption. Had the whole synod agreed with Dr. Breckinridge, and with every word contained in his overtures, they might, with perfect consistency, have rejected them. If a man present a long paper to a synod, asserting the doctrine of the Trinity, and calling upon the Assembly to join in affirmation of the doctrine, do they deny the doctrine because they refuse to adopt the overture? There may surely be other reasons than the incorrectness of its doctrines, to lead a synod to reject such a paper. It may be unnecessary, or uncalled for, or so obviously true as to make the assertion of its sentiments by the body unwise or undesirable. It is therefore obviously a false assumption, contrary to the very face of the record, to say that the Synod of Philadelphia decided that the presence of ruling elders is not necessary to a quorum of presbytery, or that elders may not join in the imposition of hands in the ordination of ministers. They made no such decision; they neither affirmed or denied any thing, they simply refused to adopt Dr. Breckinridge's overture, which cannot be charged with violating any rule, or infringing any of his rights. Of course their action afforded no ground for appeal or complaint.
That this is a correct exposition of the doctrine of our Book is obvious if we ask what is the design of appeals and complaints. They are intended to redress some grievance or secure the censure of those who inflicted it. Suppose then the complaint before the house had been taken up and sustained, what would be the operation of such a vote? One or the other of two things; either to reverse the decisions of the court below, or to censure them. If the former, then the synod would be required to rescind their vote refusing to adopt Dr. Breckinridge's overture, and ordered to adopt it. Would not this be absurd? One Assembly order a synod to petition another Assembly to condemn the act of a previous Assembly! Or if sustaining the complaint was to amount to a censure on the synod, what were they to be censured for? Why for not joining in a petition. Is this not again absurd? It is plain, therefore, the complaint could not be taken up, because to sustain it, could work no effect which would not be ridiculous or nugatory.
Another legitimate ground on which this extraordinary appeal and complaint were opposed was, that the mere entertaining of it would work a great injustice, if it was to have any effect at all. Properly speaking the complaint would not have brought up any other question than this. Did the synod do right in refusing to adopt Dr. Breckinridge's overture? But the propriety of their action did not depend on the correctness or incorrectness of the sentiments the overture contained. The synod neither affirmed nor denied any thing as to that point. They simply refused to adopt. The truth of the doctrines taught in the overture, therefore, would not fairly have been brought into discussion by considering the appeal. That was not the way to bring up that point, for the synod was not complained of for having denied those doctrines, but for having refused to petition the Assembly to avow them; and as remarked in the preceding paragraph, to sustain such a complaint would not be to affirm the
doctrines of the overture, but to censure the synod or to reverse its vote. But if the merits of the question were to be brought up in that way then an obvious injustice would be wrought. For what was the question? It did not relate to the administration but to the meaning of the constitution. But with what colour of justice could one of the largest of the synods of the Church be debarred from taking part in deciding in thesi what is the meaning of the constitution? The object professedly sought was to get the judgment of the highest judicatory of the Church as to the principles of our constitution. Why then not ask the whole judicatory? What fair end could be answered by bringing up the question in a form to exclude from all participation in the decision so large a part of the body? They had no more prejudged the matter than other synods and other members of the the house, and the injustice of excluding them would have been flagrant.
Again, if the principle on which this appeal and complaint were advocated should be sanctioned, then any man in the Church could at any time force the General Assembly to consider any abstract question he might choose to propose. The control of the house over its own time and over the subjects that should come before it, would be destroyed. If one of our modern abolitionists, for example, were to overture a synod to request the General Assembly to declare that no slaveholder should be admitted to Church communion, the synod would be bound to present the petition, or be subject to be arraigned at the bar of the Assembly for refusing to do so. And then the Assembly would be bound to consider, not the propriety of the synod's action, but the merits of the question. Thus any and every abstraction in theology, morals, politics, or polity might be forced upon the house, and its time consumed and the peace of the Church destroyed by any man who chose thus to trouble his brethren. No Church court could act on this principle; and if our constitution
allowed of such complaints, it would work our ruin or a change in a very short time. Such were the principal arguments urged against the propriety of entertaining Dr. Breckinridge's appeal and complaint, as they are embodied in the answer drawn up by Rev. N. L. Rice, to the protest of the minority, and, as we have seen, the house, by a majority of nearly one hundred, pronounced them valid.
d. In Favor of a Commission to try Appeals and Complaints
There is no part of our system which works so heavily as that of appeals and complaints. There are great inconveniences connected with it. 1. The whole Church is liable to be harassed and occupied by causes of no general importance. Three hundred men sitting in Philadelphia as the representatives of the whole of our Church, may have their time largely occupied in deciding whether a man in Georgia showed, on a given occasion, six months ago, a bad spirit. 2. The General Assembly is, from its size, an incompetent tribunal. Most persons would rather be tried by twelve men chosen out of the Assembly by lot, than by the whole three hundred. 3. The consumption of time is intolerable. A judicial case recently occupied one of our presbyteries sixty days. It would require three weeks' session of the General Assembly, intelligently and righteously to review that case. This is out of the question; and hence, 4. There is a frequent denial of justice. Such is the disposition of the house to get rid of a protracted judicial case, that every expedient is resorted to, to stave it off.
We know that the minds of many are directed to the means of correcting these evils, consistently with our principles. Some propose to make the decisions of synods final in all cases of appeal or complaint from the presbyteries. But this violates our great principle that the whole must govern the parts, and that each part has a right
to the protection of the whole. Besides, the remedy does not meet the case. It is impossible that our synods can devote the time required to hearing such cases. We think we shall have to adopt the Scottish (and the Kentucky) method of commissions. A commission is a body consisting of not less than a quorum of the court appointing it, and in which every member of the court who chooses to attend, has the right to a seat, clothed with full power of the court itself. The Synod of Kentucky set the example of acting judicially by commission in the case of the Cumberland Presbytery. We think the practice must utimately be sanctioned and incorporated into our system.
4. Decisions may Confirm or Reverse in Part, and be Expressed in Minute of a
Special Committee
[Book of Discipline, chap. vii., sec. iii., par. x.—Comp. Digest of 1873,
p. 572.]
A second judicial case was what is called the "appeal and complaint" of Samuel Lowrie against the decision of the Synod of Illinois, refusing to sustain his complaint against the Presbytery of Peoria, for recognizing a second Church in the town of Peoria. This case was taken up and regularly issued by the Assembly. It is twice or oftener called an appeal, as well as a complaint.
The Assembly having heard the documents and the parties, referred the whole matter to a committee to prepare a minute expressive of the judgment of the house. We call attention also to this familiar and proper method of proceeding, because its propriety has sometimes been questioned. Our readers may remember that in the case of Mr. Barnes, the appointment of a committee to draft a resolution which
should express the judgment of the house was strenuously resisted, on the ground that the only question which could properly be submitted, was, sustain or not sustain? It was in vain urged that in a multitude of cases the decision of that question would not express the judgment of the house, who might be disposed to sustain in part, and not in whole; sustain as to a point of order, but not on the merits; therefore it was indispensable in order to the ends of justice that a minute should be formed, stating exactly wherein the appeal was sustained, and wherein it was refused. Thus in this case of Mr. Lowrie, before any decision of the case, the matter was referred to a committee to prepare a minute which should state how far the Assembly thought the complaint ought to be sustained, and how far the synod and presbytery were justifiable in what they had done.
5. Finality of the Assembly's Judicial Decisions
[Book of Discipline, chap. vii., par. ii.—Comp. Digest of 1873, p. 533,
534, 596.]
The Rev. Archibald McQueen having married the sister of his deceased wife, was for that offence suspended by the Fayetteville Presbytery from the communion of the Church, and from the exercise of the office of the ministry. In 1842 this sentence was confirmed by the decision of the General Assembly. Having submitted to the sentence of suspension for about three years, he applied to be restored to the privileges of the Church and to the exercise of his ministry. The presbytery decided not to restore him. Of this decision he complained to the Assembly of 1845, and at the same time memorialized that body praying them to decree his restoration. In the Minutes of that Assembly, p. 32, is found the
following record in relation to this subject. "The second order of the day was taken up, viz., the complaint and memorial of Archibald McQueen against the Presbytery of Fayetteville; and on motion, the Rev. Mr. Goldsmith was appointed to manage the case of Mr. McQueen in his absence, and agreeably to his request.
"The moderator having reminded the members that they were about to sit in a judicial capacity, the papers in the case were read in due order, and the original parties were fully heard. After which the following resolution was on motion adopted, viz.: Resolved, That the prayer of the memorialist be granted, so far as that the General Assembly recommend the presbytery of Fayetteville to reconsider their decision in the case of Rev. Archibald McQueen; and, if in their judgment it should appear conducive to the peace of the Church, and the promotion of religion in the region around them, to restore Mr. McQueen to the communion of the Church, and to the exercise of the functions of the gospel ministry, on the ground that in his case, the ends of discipline are attained, by the operation of the sentence under which Mr. McQueen has been lying for a period of three years."
The Presbytery of Fayetteville referred the matter to the Assembly of 1846, but the reference was dismissed, by a vote for its indefinite postponement. The presbytery then proceeded to take action in the case, and restored Mr. McQueen to the communion of the Church and to the exercise of his ministry. Against this decision Rev. Colin McIver and others complained and appealed to the Synod of North Carolina. The synod sustained the action of the presbytery. Mr. McIver and others complained of this decision of the synod to the General Assembly.
The judicial committee having reported the case to be ready for hearing, it was made the order of the day for Tuesday afternoon. When that hour arrived the case was called up, and the moderator, in a very impressive address, reminded the Assembly that they were about to sit in a judicial capacity. The papers in the case were then read in part. When the decision of the synod against which the complaint was entered had been read, a motion was made to dismiss the case, on the ground that no complaint could lie; the matter having been decided by a former Assembly. This motion was after considerable debate, laid aside in order that the complaint itself and the reasons on which it was grounded, should be read.
The motion was then made to dismiss the case, by the introduction of the following preamble and resolution, viz.:
"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 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."
The above resolution was adopted, ayes 95, nays 53. This vote was not arrived at until Saturday morning at 12 o'clock, the question having been in the meantime debated at great length. The resolution was opposed by Messrs. Gazley, Woodrow, Kerr, Berry, Pryor, Junkin, Mitchell, Johnston. It was advocated by Messrs. Cunningham, Hoge, Janeway, Hamil, Hunt, Hodge.
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.