have a right of representation according to the principles of the Form of Government, chap. x., sec. v.-1851, p. 15, N. S.; also 1847, p. 377, O. S.

3. Churches in different Presbyteries under one Pastor, as permitted by the Reconstruction Act.

Overture No. 16, from the Presbytery of Kittanning, asking further action from the Assembly in reference to churches in different Presbyteries united in one pastoral charge.

The Assembly judge any additional action upon the subject to be unnecessary, as the action of the previous Assembly was intended to cover all such cases, and is valid, until repealed.-1872, p. 86.

The action referred to is as follows, viz.:

4. That, when two or more congregations, on different sides of a synodical or presbyterial line, are under one pastoral charge, they shall all, for the time, belong to that Presbytery with which the minister is connected, but only so long as such pastoral relation continues.-1870, p. 88.

V. Every vacant congregation which is regularly organized shall be entitled to be represented by a ruling elder in Presbytery.

1. Every Congregation is Vacant which has not a Pastor duly Installed.

a. Should every congregation be considered as vacant which is not united to any minister in the pastoral relation? and if it should, is not every such congregation entitled to be represented by a ruling elder in Presbytery?

Resolved, That from a comparison of sections iii. and v. of chap. x., Form of Government, it is evident that every congregation without a pastor is to be regarded as a vacant congregation, and consequently, if regularly organized, is entitled to be represented by a ruling elder in a Presbytery.-1843, pp. 190, 196, O. S.

b. When a domestic missionary has organized in his field of labor two or more churches to which he statedly ministers, though not installed as pastor over any of them, are these churches to be considered vacant, and have they a right each to send an elder to represent them in Presbytery?

Answer: That in the cases specified the churches are vacant, and entitled to be represented by elders.-1860, p. 38, O. S.

[See iv., above.]

VI. Every elder not known to the Presbytery shall produce a certificate of his regular appointment from the church which he repre

sents.

VII. Any three ministers, and as many elders as may be present belonging to the Presbytery, being met at the time and place appointed, shall be a quorum competent to proceed to business.

1. A Quorum may be Constituted wholly of Ministers. a. Resolved, That any three ministers of a Presbytery, being regularly convened, are a quorum competent to the transaction of all business, agree

ably to the provision contained in the Form of Government, chap. x., sec, vii. [Yeas 83, nays 35.]-1843, p. 196, O. S.

In answer to memorials on this subject, the Assembly

b. Resolved, That the last Assembly, in determining that three ministers are a quorum of the Presbytery when no ruling elders are present, did not detract in any degree from the dignity and importance of this office, nor did they question the perfect right or duty of elders to be present and take part in all acts of government and discipline, but only declared that according to the true intent and meaning of our constitutional rules, their absence does not prevent the Presbytery from constituting and transacting business if three ministers are present; and this decision is based upon the fact that ministers are not only preachers of the gospel and administrators of sealing ordinances, but also ruling elders in the very nature of their office. [Yeas 134, nays 45.]-1844, p. 370, O. S.

[Against this action of the Assembly a protest was entered by twentyeight members of the Assembly. For protest and answer see Baird's Collection, revised ed., pp. 71, 75. The Assembly disavows the charges by the following:]

c. Resolved, That this Assembly, in reaffirming those decisions of the last Assembly which have been called in question, design to maintain the purity, order and peace of the Church, and the continued and faithful observance of those principles and regulations which have heretofore been found to consist with true Christian liberty and secure the common welfare of all classes in the Church. Also, they reaffirm and maintain the scriptural authority of the office of ruling elder, and the great importance and solemn obligation of the attendance of elders on the meetings of the judicatories of the Church, and of their equal participation in the exercise of government and discipline.-1844, p. 371, O. S.

2. Less than three Ministers cannot be a Quorum.

The records of the Synod of Genesee were excepted to because the Synod made two clerical members of Presbytery a quorum for business.-1857, p. 387, N. S.

3. Less than a Quorum can do no Presbyterial Act other than to Adjourn.-They cannot Receive a Member, so as to form a Quorum.

The Committee appointed by the last Assembly with reference to a presbyterial quorum presented their report, which was adopted, and is as follows:

The overture is presented in three several branches, and is in the following words, viz.:

1st. Has any number of members of a Presbytery less than a quorum for the transaction of business, as mentioned in the Form of Government, chap. x., sec. vii., authority to transact any business except to adjourn? Have they authority to receive members into the Presbytery, to send delegates to the General Assembly, etc.?

2d. And where members received into the Presbytery by a number less than a quorum take up charges on "common fame" against a minister of the gospel belonging to such Presbytery, is a trial founded on charges so taken up authorized by our Book of Discipline?

3d. Is a Presbytery duly organized, when the moderator and temporary clerk are ministers, who have not been admitted into the Presbytery by a quorum for the transaction of business? And is any business transacted

by a Presbytery so organized constitutional, especially the trial of a minister of the gospel?

The Committee are unanimous and unhesitating in the following views, presented under the several branches of the overture in their order:

As to the first branch of the Overture:

The law of a quorum is not a mere rule of procedure, a provision of order, but a matter respecting the very being of the judicatory. Any number of members less than the constitutional quorum do not make a judicatory, and are not competent to any organic act. Nor can they, by associating others with themselves, under the pretence or form of receiving them as members of the judicatory, make a constitutional quorum. Their acts are simply null and void. Ex nihilo nihil fit. This statement applies to every judicatory in the series from the church session to the General Assembly.

Any number of persons less than "three ministers and as many elders as may be present belonging to the Presbytery," do not constitute a Presbytery, and are not competent to do a presbyterial act. Of course they have not "authority to receive members into the Presbytery," nor "to send delegates to the General Assembly." Ministers received by them do not thereby become members of the Presbytery, and, if they assume to act as such, they are simply aliens and intruders. Commissioners sent by them to the General Assembly should not be allowed to sit, when the facts of their appointment are understood.

The doings of such a meeting should not have a place on the records. But if the stated clerk records them, the Presbytery itself, when constitutionally organized, should take action to adopt or disaffirm them; and, in failure of this, the Synod, under its power of review and control, should, on inspection of the records, notice the unconstitutional proceedings, and require the Presbytery to make the necessary correction.

Were it necessary to confirm these positions, it would be sufficient to refer to the decision of the General Assembly (Digest, p. 105) in regard to a quorum of sessions, to the effect, that what is "necessary to constitute a quorum," is "necessary to form a session;" and to the deliverance of the Assembly of 1860 (see Minutes, pp. 260, 261), on an overture respecting certain disorderly proceedings of a church, in which the principle is involved and affirmed, that an "unconstitutional act" is "utterly null and void;" and that "being void," it "works no effect."

As to the second branch of the Overture:

"Taking up charges" is equivalent to "entering process," or "commencing process." (Cf. "Book of Discipline," chap. iii., sec. v., with chap. v., secs. ii. and v.) It is the beginning, or first formal step, of a judicial proceeding; and is of course the act of the judicatory. Now, all the provisions of the "Book of Discipline," in relation to the trial of persons subject to the jurisdiction of a judicatory, presuppose and assume, that "the charges have been taken up," as well as that every subsequent step of the proceedings has been had by the judicatory itself. Hence the "Book of Discipline" does not "authorize" the trial of a minister of the gospel by his Presbytery, "on charges taken up" by individuals usurping its prerogatives, but only on charges taken up by itself.

The "Book of Discipline," however, prescribes (chap. vii., secs. i. and iv.) that "no judicial decision of a judicatory shall be reversed, unless it be regularly brought up by appeal or complaint."

The trial of a minister, under the circumstances proposed in the over

ture, must be regarded as any other trial, where there has been informality or irregularity in the citation, or other preliminary stages of the process. The trial, with the judgment based upon it, must be respected, until the Synod, as the superior judicatory, shall judge how far the irregularity vitiates the proceedings, and defeats the ends of justice, and shall annul or confirm the same.

As to the third branch of the Overture:

The moderator and clerk are ministerial officers of the judicatory. In respect of their office, they are servants merely, and not members of the body. Of the clerk, this would seem to be unquestionably true. The constitution knows nothing of the temporary clerk as distinguished from the stated clerk. As far as any provision of the "Book" is involved, it is plain that a judicatory may select any convenient person, though not a member, to record its transactions, and discharge all other duties pertaining to a clerk. For the part of those duties usually devolved upon the temporary clerk, we believe, it is no unfrequent thing for a Presbytery to employ a licentiate, or other person not a member of the body.

Nor does the constitution explicitly, at least, require the moderator to be chosen from the members of the judicatory. It does indeed prescribe chap. xix., sec. ii.) that, in a certain contingency, "he shall possess the casting vote." And as voting is the act of a member, the implication seems to offer itself, that the moderator himself must be a member. But against this implication some other facts of the constitution may be cited. Thus ("Form of Government," chap. ix., sec. iii.), there is the provision for inviting, in certain contingencies, a minister to moderate the church session, who is not the pastor of the church, and of course not a member of the session; while the general law of "Moderators" (chap. xix.) gives him the casting vote. Then, again, the "Form of Government" (chap. xii., sec. vii.) prescribes, concerning the General Assembly, that "the moderator of the last Assembly, if present, or, in case of his absence, some other minister, shall preside, until a new moderator be chosen." Under this provision, it is not necessary that the minister called to preside in the Assembly, should himself be in commission. (Digest, p. 173.) It may be said, that this is merely for organization. True. But the whole principle seems to be involved. For the time being, one, not a member of the Assembly, is its moderator, and as such has a casting vote on the numberless issues that may be raised between the formation of the roll and the choice of a new moderator. And in the former case, pertaining to church sessions, no such limitation for mere organization exists. Hence these two points are clearly recognized: 1st. That it is not essential to the idea of a moderator that he be a member; 2d. That the privilege of a casting vote does not necessarily imply membership.

In the United States Senate we have an instance of the moderator being foreign to the body over which he presides. By the constitution of the United States, the Senate "shall be composed of two senators from each State," etc. The senators make the whole body; and yet, by the same instrument, the "Vice-President of the United States shall be President of the Senate," with a casting vote. In the State of New York (as perhaps in other States) the Speaker of the Assembly may have two votes, one as a member of the body, and the casting vote besides; a fact which rebuts the supposition that the casting vote is an incident of membership. All this is urged, without respect to the immemorial usage of our church courts, but solely in view of what is essential by the provisions of the written constitution and the nature of the subject.

If these suggestions are sound, then a Presbytery in the position proposed by the Overture is "duly organized," and every business done by it is constitutional-quoad hoc.

2. But, if it be not admitted that the constitution allows a Presbytery to choose for its moderator one foreign to its body, it may still be said, the selection of officers is a matter relating not to the being of the judicatory (like the presence of a quorum), but to its form and order merely. An irregularity here does not nullify the body. It is still a judicatory, with all the essential elements, and competent for business. Its business may be constitutional, though done in an unconstitutional way, and liable to correction by a superior judicatory.

3. Besides, though the persons chosen officers "are ministers who have not been admitted into the Presbytery by a quorum," or (which is its meaning) have been received by a number less than a quorum, and are not thereby constitutionally members, it would still be open to the inference, that the Presbytery (with a constitutional quorum), in choosing such persons to office, thereby virtually affirmed and adopted the previous unconstitutional act, by which they were received into the body, made it their own, and made it good.

Hence, in every view, the committee are clearly of the opinion that, in the case proposed in the third branch of the overture, the answer should be, that the Presbytery is "duly (that is, validly) organized," and competent to any business, including the trial of a minister of the gospel.

Still, it is obvious, that the presence in the Presbytery of persons received as members by any number less than a quorum, and in virtue thereof claiming to exercise the privilege of members (whether chosen to office or not), may work great wrong and vexation, by overruling the voice of the majority of the lawful members of the judicatory. And every member has the constitutional right, in some appropriate way, to carry any grievance from this source to the notice of the Synod for correction. We would, therefore, qualify the above answer to this branch of the overture, by adding, that, however the acts of a Presbytery so organized may be irregular, they are not necessarily void and null (as where there is the want of a quorum), but voidable only in the judgment of the superior judicatory, when brought before it in a constitutional way.-1861, p. 455459, N. S.

4. Reception of a member by less than a quorum, Sanctioned by the Assembly, as an Exceptional Case.

a. Overture from the Presbytery of Santa Fé on the reception of John Annin without a constitutional quorum; recommending that it be sanctioned, by reason of the singularity of the case. The recommendation was adopted.-1870, p. 49.

b. A similar case.-Overture from the Presbytery of East Florida, with a statement, that owing to the decease of one of their ministers, and the removal of another, they were reduced to a membership of only two ministers; and that by the advice of the stated clerk of the General Assembly, they had at their recent meeting received a third minister, and having thus obtained a constitutional quorum, had transacted the business of their stated meeting.

They ask the Assembly to legalize this proceeding. The Committee recommend that the action of the Presbytery of East Florida, in receiving the Rev. Matthew L. P. Hill, under the circumstances stated in the memorial, be and the same is hereby ratified and confirmed. Adopted.1871, p 538.