the accused at the examination of witnesses, but to "manage his defence." The idea of defence in a judicial proceeding is inseparable from answer or trial. If, therefore, the non-appearing accused has a defence to be managed, he has an answer to be put in, a trial to undergo. Taking testimony in support of the accusation is no part of the defence. Cross-examination of the witnesses may be a part, but the appointee of the judicatory is to manage the whole.

It may also be argued that the provision for taking testimony at all, when an accused person fails to respond to the citation, implies that the case may proceed to a final determination. For what purpose take testimony, if no action is to be based upon it? If it be said to preserve it for use when the accused, repenting of his contumacy, may choose to appear for trial, it may be answered that no such purpose appears in the book. None of the provisions usual, when the object sought to be accomplished is the perpetuation of testimony, are even hinted at. By the sixteenth section the judgment is required to be entered upon the records of the judicatory, but nothing is said of the preservation of unused evidence. It is not even required to be reduced to writing, unless demanded by one of the parties.

It may also be argued from the language of the fourteenth section that a trial for the offence charged is intended, though the citations have been disobeyed. In that section it is said that judicatories, "before proceeding to trial," "ought to ascertain that their citations have been duly served on the persons for whom they were intended." If a person cited is in attendance, nothing is to be ascertained respecting the service of the citation. It is plain, therefore, that this injunction refers mainly at least to proceeding to trial of an absent accused, and it assumes that the judicatory will, after having assured itself of the service of the citations, go on to adjudicate the case. This section is susceptible of no other meaning.

A similar implication is found in the next section, the fifteenth, which declares that "the trial shall be fair and impartial," and that “the witnesses shall be examined in the presence of the accused, or, at least, after he shall have received due citation to attend." This is a regulation of the mode of trial, and it is expressly made applicable both to cases where the accused yields obedience to the citation and to cases where he does not. With these harmonize the sixteenth section, which assumes that there will be a judgment, and the seventeenth, nineteenth and twentieth sections, prescribing the discipline to be administered in the event of conviction. The last of these directs excommunication in certain cases. Its fair interpretation evidently is that the ground of such extreme action is not contumacy in disobeying process, but the gross offence charged, to answer for which the accused had been cited.

Taking all these sections into consideration, and regarding them as parts of one system, as having reference to the same subject-matter and designed to secure the ends avowed, the Committee are constrained to regard them as applicable to the course of proceeding through all the stages of trial alike in cases where the accused does not appear in obedience to the citations as when he does. In both the judicatory is empowered to proceed to trial and to final judgment.

To this conclusion an objection has sometimes been urged that at first mention seems to have some plausibility. It is that trial of a person in his absence and the rendition of judgment against him are in conflict with common right and justice; that even criminal courts in State governments do not try offenders in their absence, and that ecclesiastical courts ought to avoid ex parte proceedings. The objection aims less at the power of a

judicatory, as recognized by the Book of Discipline, than it does at the policy of exercising it. But it misapprehends what are acknowledged common right and justice, what are the proceedings of courts of law and equity in analogous cases, and what are ex parte proceedings. Nowhere is it held that a man may not deny himself his plainest rights. While he may not be tried for an alleged offence without having an opportunity to be heard, he has no just cause to complain of a trial to which he has been summoned by a tribunal having jurisdiction, and which he has persistently refused to attend. In such a case it is he who throws away his own rights. They are not taken from him. This is a principle universally recognized in courts of civil law and of equity, and such courts go farther. They construe a refusal to obey process requiring an appearance as a substantial confession of the complaint, and they render judgment accordingly. It is true, State courts having criminal jurisdiction do not try persons for crimes and misdemeanors in their absence. This is for two reasons: They have power to compel attendance, which ecclesiastical courts have not; and the punishments they inflict affect the life, the liberty or the property of the convicted criminal. In fact, they concern the life or the liberty of the accused; for even if the penalty be only a fine, its payment is usually enforced by detention in custody until satisfaction be made. But ecclesiastical tribunals can pronounce no judgment that touches either the life, the liberty or the property of the accused. Their sentences are peculiar. Indeed, it is asserting a false analogy to assimilate a trial before a church session to an indictment and trial in a criminal court. It bears a much stronger resemblance to proceedings very common in courts of law, in which members of associations or corporations are called upon to respond for some alleged breach of corporate duty, for which they are liable to be punished by the imposition of penalties or by amotion from membership. In such cases, when the person summoned refuses to obey the mandate of the writ, courts proceed at once to dispose of his case and render final judgment. No one ever supposed that by so doing injustice was done or that any right of the accused was invaded. Much less can he complain who has been cited to answer an accusation taken into judicial cognizance by a church judicatory and who has contumaciously refused to obey the citation, if the tribunal proceed to try the case, presuming nothing against him but contumacy from his refusal, but founding its judgment solely upon the testimony of witnesses. This objection, therefore, when examined, appears to be without substance.

In conclusion, it remains only to recommend, as the opinion of the Committee, that the overture be answered by a declaration of the Assembly that in the case proposed the judicatory may proceed to trial and final judgment as if the accused were present.-1866, pp. 283-288, N. S.

XIV. Judicatories, before proceeding to trial, ought to ascertain that their citations have been duly served on the persons for whom they were intended, and especially before they proceed to ultimate measures for contumacy.

XV. The trial shall be fair and impartial. The witnesses shall be examined in the presence of the accused; or, at least, after he shall have received due citation to attend; and he shall be permitted to ask any questions tending to his own exculpation.

a. In Trying a Case the Judicatory may not Censure One not on Trial. The Commission on Judicial Case No. 2 presented the following report, which was adopted:

The Commission to whom was referred Judicial Case No. 2, being the complaint of sundry members of the Presbytery of Oxford and others against the Synod of Cincinnati in the matter of the complaint of Alexander Guy against the Presbytery of Oxford, beg leave to report that after a careful examination of the case, as it appears of record, and a full hearing of the parties, they unanimously recommend the following minute: This complaint against the Synod is founded not so much on what the Synod did in condemning the record entered by the Presbytery of Oxford in the case, as on the failure of the Synod to censure the party to whom the record related. Now, in no sense was that party before the Synod. No charges had been tabled, no formal complaint against him had been laid before that body. It would, therefore, have been incompetent for the Synod, in trying the issue between Dr. Guy and the Presbytery of Oxford, to have censured another person not on trial before it, and only incidentally connected with the proceedings.

But whilst refusing to sustain the complaint against the Synod under these circumstances, the Assembly would remind the complainants that they have a remedy against any grievances under which they may labor in the regular forms of procedure laid down in our Book of Discipline. It is recommended that the complaint be not sustained.-1867, p. 360, O. S.

b. Nor Pass Sentence without Conviction by Trial.

In the complaint of Rev. John Mack, etc., against a decision of the Synod of Illinois the Assembly inter alia declare:

The action of the Presbytery upon a certain resolution was extrajudicial.

Our Book of Discipline, chap. v., sec. vii., pronounces a man a slanderer who on trial fails to make good his charges.

S. L. Hobson was censured as a slanderer without the court reaching by trial the point contemplated in our Book.-1867, p. 355, O. S. [See below, chap. v., sec. vii., 5.]

XVI. The judgment shall be regularly entered on the records of the judicatory; and the parties shall be allowed copies of the whole proceedings, at their own expense, if they demand them. And, in case of references, or appeals, the judicatory referring, or appealed from, shall send authentic copies of the whole process to the higher judicatory.

1. Appellant Entitled to a Copy of the Sentence.

They deem too the request of Mr. Arthur for a copy of the first sentence to have been reasonable, and that it ought to have been complied with.-1822, p. 53.

2. What is an Authentic Copy?

a. By "the forms of process" Mr. Bourne ought to be allowed copies of the whole proceedings in his case, yet the judicatory appealed from is by the same rules "to send up authentic copies of the whole process;"

his copy, therefore, which he says was taken by himself, but is not shown to the Assembly, is not sufficient; his affidavit is not required by the course of proceeding in this body, and the three papers presented by him are not to be considered as the commencement of a cause, or the entry of an appeal in this judicatory.-1816, p. 627.

b. [See Form of Government, chap. xx.: "It shall be the duty of the clerk... to grant extracts from the records whenever properly required, and such extracts under the hand of the clerk shall be considered as authentic vouchers of the fact which they declare in any ecclesiastical judicatory, and to every part of the Church."]

3. Where Courts Fail to Send up Documents, the Case is Re

manded.

a. It appearing from the official certificates of the stated clerks of all the courts below that important documents in evidence before the session which first tried the case were not sent to the Presbytery and Synod, it is therefore

Ordered, That this case be sent back to the Presbytery of Charleston for a new trial, and that the session of the church of Columbia be directed to correct their record and to send to Presbytery an authentic copy of all the evidence and all the documents before them.-1843, p. 186, Ö. S.

b. Lower Courts Directed to Send Up Complete Records.

It appearing that the record in the case of Abigail Hanna against the Synod of Wheeling is incomplete, although the Assembly are informed that a complete record was sent by the Synod, it is ordered that the courts below send up a complete record to the next General Assembly.—1843, p. 192, O. S.

c. It appears to the Committee that Mr. Russell has conducted his complaint in due form, but the Synod has failed to. furnish the documents needful to its prosecution. The minutes of Synod are present, and complainant has furnished attested copies of minutes of Presbytery and of the testimony of witnesses examined. But we have still no attested copy of the charges which had been the basis of the original trial, nor of sundry papers referred to in the Presbytery's records, and which had been received as testimony. The Committee recommend to the Assembly the adoption of the following resolutions in the case:

Resolved, 1. That the Synod of Georgia be directed to send up to the next Assembly authenticated copies of all their records, and of the whole testimony relating to the matter of the complaint, together with their reasons for not sending up the papers to this Assembly, unless the case shall be previously adjusted.

Resolved, 2. That the papers received from complainant be returned to his own custody. Adopted.-1852, p. 212, O. S.

XVII. The person found guilty shall be admonished, or rebuked, or excluded from church privileges, as the case shall appear to deserve, until he give satisfactory evidence of repentance.

Censure not to be Removed without Evidence of Repentance.

The Assembly having heard the complaint of the Presbytery of Carlisle against the Synod of Philadelphia in the case of William S. McDowell, with the facts and arguments offered both by the Presbytery and the

Synod, judged that the Synod had a constitutional right to reverse the decision of the Presbytery in the case, either in whole or in part, as to them might seem proper, but that in the exercise of this right the Synod have not duly regarded the principles of discipline prescribed in the Constitution, inasmuch as it appears by their records that they have removed all censure from a man whom they declare to be deserving of rebuke, without directing that rebuke to be administered, and without receiving any evidence of his penitence.-1823, p. 81.

XVIII. As cases may arise in which many days, or even weeks, may intervene before it is practicable to commence process against an accused church member, the session may, in such cases, and ought, if they think the edification of the church requires it, to prevent the accused person from approaching the Lord's table, until the charge against him can be examined.

The Accused may be Suspended Pending the Issuing of the

Case.

Overture No. 21. An inquiry from J. A. Clayton: Whereas, Our Book of Discipline, chap. v., sec. ii., says, "the same general method, substituting Presbytery for the session," is to be observed in investigating charges against a minister as are prescribed in the case of private members, Does this authorize the Presbytery to apply the principle contained in chap. iv., sec. xviii., to ministers against whom charges exist that cannot be seasonably tried, so far as to suspend them from the functions of the gospel ministry until they can be tried? P. S.-If the above will not apply, what should a Presbytery do in the case?

The Committee recommended the following resolution, which was adopted, viz.:

Resolved, That when charges are tabled against a minister, and it is impracticable at once to issue the case, the Presbytery has the right, if the interests of religion seem to demand the measure, to suspend him from the exercise of his ministerial functions until the case shall have been issued.-1848, p. 34, O. S.

See below, under v., ix.

XIX. The sentence shall be published only in the church or churches which have been offended. Or, if the offence be of small importance, and such as it shall appear most for edification not to publish, the sentence may pass only in the judicatory.

XX. Such gross offenders, as will not be reclaimed by the private or public admonitions of the church, are to be cut off from its communion, agreeably to our Lord's direction (Matt. xviii. 17), and the apostolic injunction respecting the incestuous person. 1 Cor. v. 1-5.

XXI. No professional counsel shall be permitted to appear and plead in cases of process in any of our ecclesiastical courts. But if any accused person feels unable to represent and plead his own cause to advantage, he may request any minister or elder, belonging to the judicatory before which he appears, to prepare and exhibit his cause