1855 – Report of the Committee on the Form of Process given in to, and approved of by, the Assembly 1855

This Committee was appointed by the last General Assembly “to consider whether any further steps ought to be taken in the way of explaining the practical operation of the Form of Process as now altered, or consolidating into one Act the overtures converted by this and the previous General Assembly into standing laws of the Church, with instructions to report to next Assembly.”

The Committee, having considered the matter thus remitted to them, are of opinion that no immediate steps should be taken with a view to the consolidation of the overtures into one Act, but that, before the adoption of that course, more time should be allowed for a careful estimate throughout the Church of the state of the law as now set-tled. On the other hand, the Committee think that, as the changes have been effected, not by one complete enact-ment, but by several separate Acts passed in successive years, it is desirable to bring under the view of our Church Courts, in a distinct and comprehensive manner, the nature of that order of procedure which results from the recent legislation. Ministers and elders must, of course, interpret that legislation for themselves, and, in case of difference of opinion, the Assembly will, of course, decide between the parties. But were the Assembly to authorise the trans-mission to the members of Presbyteries of copies of the present report, without, of course, interponing any special sanction to its suggestions, the Committee hope that these suggestions may be useful in affording assistance towards the interpretations of the Acts in the meantime, and towards maturing the judgment of the Church for any more au-thoritative explanation in the future.

I.      In the first place, it is desirable that the Acts should be brought together before the eye, not in the order of their enactment, but in the order of their practical application.

 

In this view the recent legislation stands as follows:—

1.     That, hereafter, in every case of charge or fama against Minister of this Church, which is of such a nature as may lead to the necessity of serving the accused party with a libel, no complaint or appeal shall have the effect of sisting procedure until a libel shall have been served and found relevant (Act IV, 1853).

2.     That when a Presbytery are themselves libellers in a case of charge against a Minister of this Church, they shall, before serving the libel, summon the accused party in regular form to attend a meeting of Presbytery, at which it shall be proposed to consider the propriety of serving it, and they shall, at the same time, furnish him with a copy of it. That the meeting shall not be held for at least ten free days after the Minister shall have been summoned and been furnished with a copy of the libel. That, at that meeting, the Presbytery shall carefully consider the question of its relevancy; and that thereafter, if they serve it, they shall serve it as a libel which they have already judged to be relevant (Act V, 1853).

 

3.     That, in every case in which a Presbytery shall have resolved to order a libel to be served upon a Minister of the Church, the accused Minister shall ipso facto cease to exercise the functions of his office, both ministerial and judicial, until the libel shall have been finally disposed of (Act VI, 1852).

4.     That, hereafter, in every case in which a libel shall have been served against a Minister by a Presbytery as prosecutors, it shall be a competent ground on which the Presbytery, if they see fit, may refer the case to the Supe-rior Courts, that it does not appear expedient, in the circumstances, for the Presbytery to act both as prosecutors and judges: that, in the event of any such reference having been duly brought under the consideration of the General As-sembly, it shall be competent to the Assembly, if they see fit, to appoint a Special Commission to hear the evidence on both sides, and give a deliverance as to its effect; and that any Special Commission so appointed shall report their deliverance to the General Assembly, or to its ordinary Commission at one of its stated diets (as the Assembly may direct), who shall pronounce such sentence, or issue such instructions to the Presbytery, as to them as may seem just (Act X, 1854).

5.     That, hereafter, in every case in which a libel shall have been served against a minister and found relevant, it shall be a competent ground on which the Presbytery, if they see fit, may refer the case to the Superior Courts, that it does not appear expedient, in the circumstances, for the proof to be taken except in the presence of those who have the power of giving a final deliverance as to its effect: that, in the event of any such reference having been duly brought under the consideration of the General Assembly, it shall be competent to the Assembly, if they see fit, to appoint a Special Commission to hear the evidence on both sides, and give a deliverance as to its effect; and that any Special Commission so appointed shall report their deliverance to the General Assembly, or to its ordinary Commis-sion at one of its stated diets (as the Assembly may direct), who shall pronounce such sentence, or issue such in-structions to the Presbytery, as to them may seem just (Act IX, 1854).

6.     That, hereafter, in the event of the General Assembly sustaining an appeal, or a dissent and complaint against the relevancy of a libel against a minister, it shall be competent for the Assembly, if they see fit, to correct the libel, and appoint the case to be tried with the amended libel (Act VIII, 1854).

II.     It is desirable to point out the bearing of each of these enactments in its order upon the course of proceed-ing in connection with the old constitutional law of the Church.

1.     It has been enacted that, in every case of charge or fama against a minister of this Church, which is of such a nature as may lead to the necessity of serving the accused party with a libel, no complaint or appeal shall have the effect of sisting procedure, until a libel shall have been served and found relevant.

The Committee consider that this arrangement applies to every case in which there is any serious allegation against a minister, such as, if established, may scripturally and constitutionally affect his character or standing; that it applies, in every such case, to all competent complaints or appeals which may be taken, up to the point when the process of serving the libel and the act of finding the libel relevant shall both have been completed, whether the act of finding the libel relevant shall have come before the process of serving it, as now provided for in the case of the Presbytery being themselves the prosecutors, or shall have come after it, according to the old and unchanged rule of procedure in the case of third parties having appeared as prosecutors.

 

The Committee are further of opinion, that although procedure can no longer be sisted by complaints or appeals during the stages referred to in this enactment, still every complaint or appeal, which would previously have been competent, may now be competently taken against each judgment of the Presbytery, and must go in regular course to the Provincial Synod, if its meeting take place before that of the General Assembly, and directly to the Assembly only when no meeting of the Synod shall intervene.

2.     It has been enacted that, when a Presbytery are themselves the libellers, they shall, before serving the libel, summon the accused party in regular form to attend a meeting at which it shall be proposed to consider the propriety of serving it, and shall, at the same time, furnish him with a copy of it. That the meeting shall not be held for at least ten free days after the minister shall have been summoned and been furnished with a copy of the libel; that, at that meeting, the Presbytery shall carefully consider the question of its relevancy; and that thereafter, if they serve it, they shall serve it as a libel which they have already judged to be relevant.

The Committee consider that the expression “accused party” in this enactment must not be understood as constituting the minister a party at the bar of the Presbytery. For, by the supposition made, the Presbytery have not as yet resolved, even as prosecutors, that there is any relevant ground of charge against him. But an allegation has been made to his prejudice, and the Presbytery are about to consider the question as to whether it will be their duty or not to serve him with a libel; and in order that he may suffer no injustice, the Presbytery must specially summon him to attend their meeting in his place as a member, and must intimate to him definitely the form which the accusation, if they shall resolve to take it up and charge him with it, will assume in their hands.

 

The Committee consider that, if the Presbytery before serving the libel shall make any change upon the form in which it appeared in the copy with which the minister had been previously furnished, they must, before serving it, again furnish him with a copy and again summon him in the terms of this enactment.

The Committee are of opinion that the expression regular form, employed in the first clause of this enactment, indicates that the Presbytery cannot competently proceed in absence of the minister, without repeating the process of summoning three times, according to the old practice.

The Committee further consider that the minister, or any other member of Court, may take a dissent and com-plaint against any judgment of the Presbytery, by which the libel is found in any respect relevant, or the reverse, whether that judgment be simply a resolution to serve or not to serve the libel, or a particular deliverance on any par-ticular point raised. The Committee think that any such dissent or complaint must go to the Provincial Synod, if it meet before the General Assembly, but that it will not sist procedure until the Presbytery shall have evidence before them that the libel has been duly served.

3.     It has been enacted that, when a Presbytery have resolved to order a libel to be served, the accused minister shall ipso facto cease to exercise his functions until the libel shall have been disposed of.

 

The Committee have to observe here, in the first place, that this rule has no application while the Presbytery are only considering the relevancy of a libel, which they are proposing themselves to serve as prosecutors, and before they have actually resolved to serve it. This observation illustrates the importance of what has been said, in relation to the previously considered enactment, as to the minister being not yet a party at the bar.

But the Committee have to observe, secondly, that the expression resolved to order in this enactment, shows that the minister becomes a party at the moment when the resolution to have the libel serviced has been come to. The Presbytery, therefore, must not wait, before acting upon the rule here laid down, until they shall have proof of the libel having been actually served, but must, in the face of all dissents and complaints, proceed at once to take charge of the minister’s pulpit and congregation, according to the old law in cases of suspension.

 

It has been enacted that, after a libel shall have been served by a Presbytery, it shall be a competent ground on which the Presbytery may refer the case to the Superior Courts, that it does not appear expedient, in the circum-stances, for the Presbytery to act both as prosecutors and judges. The Committee consider that the Presbytery cannot competently adopt this procedure, until, at a meeting subsequent to that at which the resolution to order the libel to be served has been come to, they shall have competent evidence before them that the libel has been actually served in due form according to the old law.

The Committee consider that the expression Superior Courts implies that the reference is to be made to the next Superior Court, as the case may be; the Synod, if it meet before the General Assembly, and the Assembly itself, if there be no previous meeting of Synod, and the Commission of Assembly only in the event of the Assembly having specially empowered that body to receive complaints or appeals in the particular case. The Committee think that if the reference go to the Synod, the Synod may take one of three courses. It may either differ from the Presbytery and dismiss the reference, requiring the Presbytery to try the case themselves; or, secondly, it may sustain the reference, and resolve itself to try the case; or, thirdly, it may sustain the reference, and refer the case on to the General Assembly.

 

As it is very desirable that the words of the Presbytery’s deliverance in such a reference should be clear and ex-act, the Committee would suggest the following form:—

“It having been duly certified to the Presbytery that the libel against Mr A.B. has now been served in due form, and the matter being now ripe for further procedure, the Presbytery, after careful consideration, find that it does not appear expedient in the circumstances for them to act both as prosecutors and judges, and therefore, they hereby refer the case to the Free Provincial Synod of …….. at their meeting in …….. next (or, as the case may be, to the General Assembly, etc.)”.

 

The Committee are of opinion, that although a complaint or appeal would at this stage prevent the Presbytery from taking any other step, it should not be considered as preventing them from making the reference allowed by this enactment.

5.     It has been enacted that a similar reference may be made, on the ground of its not appearing expedient for the proof to be taken, except in the presence of those who have the power of giving a final deliverance as to its effect.

The Committee would observe, first of all, as to this enactment, that it applies, not only to the case in which the Presbytery are prosecutors, but also to that in which other parties are prosecutors, and that it takes for granted that in this last case the libel must be served before it has been found relevant, and the relevancy judged of according to the old law.

 

The Committee would observe, secondly, that the form of reference for the Presbytery ought to be varied as follows, in the case in which the Presbytery are not the prosecutors:—

“The libel having now been found relevant, and the matter being now ripe for further procedure, the Presbytery, after careful consideration, find that it does not appear expedient, in the circumstances, for the proof to be taken, ex-cept in the presence of those who have the power of giving a final deliverance as to its effect, and, therefore, the Presbytery hereby refer the case to the Free Provincial Synod of …….. at their meeting in …….. next (or, as the case may be, to the General Assembly, etc.)”.

The Committee would observe, thirdly, that this enactment furnishes a ground on which the Synod may also refer the case to the Assembly. The Synod, however, may do so on other competent grounds.

 

The remaining parts of these two last-mentioned enactments refer to the General Assembly’s own procedure, and the Committee think it unnecessary to make any remark upon them.

 

6.      The same remark applies to the last enactment in order of application, by which it has been made compe-tent for the Assembly to correct a libel, and to appoint the case to be tried with the amended libel.

It appears to the Committee that, for the present, they have sufficiently discharged their duty, in laying these suggestions before the Assembly.

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