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which we think ought to guide every Judicatory of the Presbyterian church. In general, we agree with the Presbytery of Albany, in the doctrines which they have embodied in practice, and think the volume of reported cases before us, well worthy of being consulted; but in a few points we differ. We give then in any case of Fama Clamosa, the following directions.
Rule 1. When any member of a Judicatory intends to lodge information against any one, he should request the judicatory to be alone. This is designed to prevent the spreading of scandal, if a trial should not be deemed requisite; but this course was not pursued in the Presbytery of Albany. In open presbytery, a member informed the court, that common fame charged another member of that judicatory with unchristian walk, without naming him. A committee was then appointed to inquire who the member was, and what the nature of the charges. The committee also was instructed to specify the charges and name the witnesses, if they should judge presbyterial interference necessary.
Rule II. The Presbytery being in secret session, the member who thinks it his duty to give information, should say. Common Fame charges W - C-, (giving the name of the accused,) with having violated at (such a time and place,] the
commandment, by saying or doing (something which should be specified.]
Rule III. The Presbytery should then decide whether the charge is relevant; that is, they should determine whether the words alleged to be uttered, or the action performed, would, if proved, subject the accused to cen. sure for a violation of the specified commandment.
Rule IV. If the Presbytery judges the charge to be NOT RELEVANT they should dismiss the subject: if RELEVANT they should require the informer to prove the existence of Common Fame on the subject of the charge. It would be best for him to do this, by any two members of the judicatory, who might be qualified, give evi. dence, and resume their seats as judges. He should be compelled to prove, that in some place, named by him, it is currently reported, that the accused uttered the words, or performed the action laid to his charge; and in
case of failing to do this, should himself be censured, for promulgating an evil report, detrimental to the cause of religion. If this course is not pursued, a member of a Judicatory might at any meeting create a fama cla. mosa, by telling the court that such a common fame existed. This course was not pursued by the Presbytery of Albany; but after the committee had reported three charges on the ground of common fame, against Mr. C. he disputed the fact, when “A motion was made and carried to institute an enquiry of all the ministers and elders present, as to the extent of public fame." p. 8.
Rule V. After the Informer has adduced his testimony; the presbytery should decide, ist, whether the existence of the common fame has been proved; and 2dly, whether it is of such a nature, and so extensive, as lo render a trial requisite for the honour of religion, and the welfare of the accused.
Rule VI. The Fame having been proved, the informer is to be considered as having done his duty, and may resume his seat as a judge in the cause; because his knowledge of the common fame, and his formal communication of information to the court, no more disqualify him from judging, than the previous knowledge of the other members of the judicatory disqualifies them.
By inquiring into the nature of the Common Fame, the Presbytery will be likely to discover its origin, and ascertain the persons who should be cited as witnesses to prove the fact alleged.
Rule VII. Having judged a trial requisite, a Prosecutor should be appointed, who should be considered as acting in the name, and on behalf, of the Great Head of the Church. He should be a member of the Judicatory; and if one is not sufficient, a committee of prosecution may be named.
Rule VIII. The prosecutor should either adopt the original charge of the informer, or vary it, according to the testimony heard, concerning the fact and the nature of the Common Fame; and should name the witnesses to substantiate the same.
This being done the Presbytery should be again opened for spectators, and
Rule IX. The appointed prosecutor should then publicly read the libel formed against the accused person; and the Moderator should ask the prosecutor and the ac. cused if they are ready to proceed to trial. If the witnesses are not present, or if the parties do not agree to proceed, the accused person must be served with a copy of the libel, and the witnesses cited to attend; according to the provisions of our Constitution.
Rule X. The time of trial being come, the Moderator of the Presbytery, as Chief Justice, should read the charge aloud, in open court, and ask of the accused what he has to plead. It is desirable that every person on trial should reduce his plea to writing, that it may be entered on the records of the Judicatory.
Rule XI. After the Plea of the accused has been offer. ed, if he pleads not guilty as charged in the libel, the Prosecutor should adduce his witnesses, in the manner prescribed in our Forms of Process; and the defendant, personally, or by counsel, should be permitted to interrogate each of them. Any member of the Judicatory, through the presiding officer, may do the same.
Rule XII. After all the witnesses on the part of the prosecution have been heard, those cited on the part of the defendent should be first examined by himself, and then interrogated by the Prosecutor and Court.
The testimony having been heard, recorded, and subscribed, or approved, by each witness, separately, it is a matter of common law, founded on equity, that the prosecutor should be heard in argument on the case, and the defendant, in reply. The defendant should, if he wishes it, invariably be the last person to speak, before the parties so far withdraw as to have no further privilege of speaking:
Rule XIII. No prosecutor should sit in judgment, be. cause the performance of the part assigned him may have excited some prejudice in his mind.
Rule XIV. Either the Prosecutor or the Defendant may challenge any witness; and show his reasons for doing so; and if the Judicatory deem them sufficient, the witness must be set aside.
After hearing the parties until they are satisfied, it is
proper for the Judicatory to resolve, that it will now proceed to ascertain what is the judgment of the court. This being done,
Rule XV. The Moderator should ask each member of the judicatory, in the order of the Roll, " is the defendent guilty as charged in the libel?” Each member should be permitted to explain his views of the whole case, but should conclude with “ guilty,” or “not guilty.” If the court are equally divided, or if the vote of the Moderator will make a tie, then, and only in such a case, the presiding Judge should give his voice for acquittal or condemnation.
Rule XVI. When the majority of a judicatory have convicted a person, said judicatory should then resolve what kind and degree of censure shall be inflicted.
Rule XVII. From any resolution, or decision affecting him, the defendant may appeal to a higher Judicatory; and the court appealed from ought to make a record of the appeal in every instance. This, however, should not prevent the judicatory from proceeding to final decision in the case; because they are not to judge themselves incompetent, at the pleasure of an appellant.
It has long been a matter of dispute in the Presbyterian church, whether an appeal may coine regularly from an inferior court to the General Assembly, without first having been tried by the Synod to which that inferior court belongs. It was decided by the General Assembly of May 1818, that it might; for the Synod of Virginia censured the Presbytery of Lexington for allowing of such an appeal, and the Assembly by reversing the judgment of the Synod in this case, sustained the Presbytery. We shall venture to lay down as
Rule XVII. That an appeal may be made from a. Session to its Presbytery, from a Presbytery to its Synod, and from a Presbytery directly to the General Assembly, when no regular meeting of Synod intervenes between the time of appealing, and the next General Assembly
If a Synod should be objected to, as a tribunal disqualified to judge in the case, by reason of any interest in the cause depending, and the cbjection should not be Vol. I.
overruled, it would render an appeal to the Assembly justifiable, even if a regular meeting of Synod should intervene.
Rule XIX. When a Judicatory proceeds to try the merits of an appeal to them, all the records of the inferior court, or courts, in the case, should be read in their order: then the appellant should be heard; next the couri appealed from, by commissioners should reply; the appellant should have opportunity of closing the debate; and finally, the Moderator should ask every member sitting in judgment, in the order of the Roll, on each decision appealed from,“ do you sustain the appeal or not?” It being thus decided, article by article, whether each decision appealed from be correct or not, it will then be proper for the court to decide by a resolution, either that they confirm or reverse the final judgment of the Judicatory appealed from. If the appeal from the final decision of the Judicatory be sustained, a reversal of that decision will of course follow; if the appeal be not sustained, it will be a matter of propriety solemnly to confirm the sentence.
Rule XX. Should an appellant prove to a higher Judicatory that he offered any testimony which was rejected by the lower court, and should said higher Judicatory judge that said testimony ought to have been received, they may order a new trial, or hear the testimony themselves, and act on the same.
Of the book before us we shall remark in addition to what we have said, that it presents President Nott, as acting with great dignity and decision, in the office of Moderator; Mr. Chester as eloquent and benevolent in defending himself; Mr. Cumming as being quite as ingenious, cool, calculating, and argumentative as any man who charitably thought him insane; and the Rev. Simon Hosack, D. Ď. as the most thorough disciplinarian in the Presbytery of Albany.
In the commencement of the trial of Mr. Chester, Dr. Nott delivered a discriminating address on the doctrine of slander, and before Mr. Tucker was required to plead, this same Chief Justice in the Presbytery, after the manner of civil courts, charged, not the jury, but his co-presbyters, or associate judges, on the subject of