« PrécédentContinuer »
we think, been performed as successfully as the nature of the undertaking would admit. The discussions, as a rule, are connected, clear, and very suggestive. While the statements are necessarily brief, they are, at the same time, accurate and precise.
We shall have occasion further on to criticise some of the details, but we have no hesitation in commending the work as a valuable codification of the principles of law and evidence; val. uable for the purposes had in view in its preparation.
Part First is a sort of philosophical disquisition on the origin, nature, and binding force of law-divine and human; the relations of ecclesiastical and civil law; and the responsibilities of those who are the subjects of law. Part Second treats of the organization and government of the M. E. Church, with special reference to the judicial administration of its Discipline. Parts Third and Fourth are devoted to a consideration of the rules of evidence. Part Fifth relates to practice, and this is supplemented at the end of the book with a collection of appropriate forms and precedents. Part Sixth is a discussion of the legal evidence of the authenticity of the Scriptures.
The main feature of this work is the portion devoted to the law of evidence. This includes a considerable part of that which comes under the title of “Practice.” It is no overstatement when the author says: “Under this head, which is by far the most important part of a Church investigation or trial, we propose to consider those general rules that experience and the wisdom of ages have demonstrated as important guides to the attainment of truth. Every science has its rules of investigation, the ultimate object being the attainment of truth, whether it be the solution of a mathematical truth that is capable of demonstration, or a moral truth which is incapable of demonstration, except to satisfy the conscience of the tribunal before whom the investigation takes place. The rules of evidence are the means employed for the attainment of this object.” -P. 108. To give even a synopsis of the treatment of this subject would monopolize the space allowed to this article.
It will strike the reader of the work that the author has extended his discussion beyond those rules and principles which have a direct or practical application before Church tribunals. There is much that relates to the various and intricate questions which arise in the civil courts. But, in order intelligently to adıninister a role in the simplest case, it is useful to understand its origin, and to trace the sometimes subtle distinctions which attend its application. It is quite the fashion to sneer at the technicalities of lawyers as being artificial, and perhaps absurd; but the thoughtful student of the science of evidence (as of other branches of law) will perceive that it is a system of common sense applied to the affairs of civilized communities. Mr. Phillipps says: “The principles of evidence are founded on our observations of human conduct, of common life, and living manners; they are not just because they are 'rules of law, but they are rules of law because they are just and reasonable." It is a code which has been built up by gradual accretions, through the reasonings of jurists, the tests of experience, and by the searching and sifting discussions of advocates in the courts, till it comes to ns as the crystallized wisdom of ages. In sharp analysis and severe logic no science can excel it, but it is at the same time elastic, fitting itself to the requirements of every topic of investigation. Now, the inastery of these principles is not a matter of instinct. Dogberry says, “ To write and read comes by nature,” but the knowledge of jurisprudence is an acquisition. It requires, to be sure, a substratum of common sense, for without this any amount of legal learning will be unmanageable rubbish. But no man can safely handle the complicated machinery of jnstice till he has been somewhat indoctrinated in the principles and rules which have been handed down to us by our predecessors.
And yet, under the Discipline of our Church, those who preside at trials and make the rulings of law, from the lowest to the highest courts, (until we reach the General Conference,) are men who have not, unless outside of their present profession, had any legal training, and whose prescribed course of study, preparatory to the ministry, does not embrace even the most elementary work in juridical science. Of course, it is to be expected that the preachers should hold this important place in our judicial system. The preacher in charge is naturally the president, upon the trial of a member before a committee, and rightly so, as he is responsible for the proper administration of Discipline; the presiding elder, of course, occupies the same position at a Quarterly Conference, and a bishop in a Judicial Conference. The committee of an Annual Conference trying a member must necessarily be composed of ministers, who, in that case, açt in the double capacity of judge and jury.* An appeal can only come to the General Conference upon questions of law, and under the present arrangement it is referred for disposition to a Judiciary Committee, which at the General Conference of 1876 was composed of eleven ministers and one layman. A committee appointed under the authority of the General Conference of 1872 to report a code, and a committee of the General Conference of 1876, to which the report, or rather reports, of the former committee were referred, both proposed to introduce the lay element into our ecclesiastical courts; but the very complete report of the latter committee, which seemed to be received with considerable favor, was presented at a late date, and failed of consideration for want of time. But whether under our present arrangement, or any other which may be adopted, it is obvious that it is very needful for our ministers to familiarize themselves somewhat with the principles and practice which obtain in the courts of law. We would venture to recommend the work under consideration as a sort of postgraduate text-book for those who have passed through the course prescribed by the bishops. And not only this, but that they should, as time and occasion serve, by other studies and by observation, acquaint themselves with legal modes of reasoning and with the practical application of laws to the daily concerns of life. There is a great temptation to suppose that our own ideas of right and wrong, and what we may be pleased to call a natural sense of justice, will guide us to correct results. Hence we are inclined to throw off the restraints of precedents. We say we will decide according to equity and good conscience. But herein lies the germ and opportunity of arbitrary and irresponsible dealing with the rights of others. Our courts, in the exercise of what is specially distinguished as their equity jurisdiction, are governed by principles as fixed and well defined as those pertaining to any other branch of law. Though the powers of a court of equity are more flexible and far-reaching than those of strictly legal tribunals,
* The last General Conference shut off all opportunity for professional assistance upon the trial of ministers by enacting that in all such cases no one shall appear as counsel either for the prosecution or defense, except a member of an Annual Conference.
+ In the General Conference of 1880 there were thirteen members of the Judi. ciary Committee, of whom five were laymen.
hey are yet as settled and fenced in by precedent and principle. Otherwise these decisions would be simply the expression of arbitrary will under the name of law. They might be mere whim, or caprice, or worse. There is a quaint saying to the effect that if the chancellor's own notion is to be taken as law, then the standard of all measurements is the chancellor's foot. Arbitrary power is always dangerous, even when conscientious; perhaps most dangerous when most conscientions. We want law to rule over us, not men.
Men must interpret and administer the law, but they should do so as its servants, not as our masters. In the administration of Church discipline there is greater peed of observing the rules of legal investigation, from the fact that it is so difficult to constitute a perfectly impartial tribunal. When a case is presented to a court of law for its determination, the court is supposed to regard neither of the parties, but to look only at the cause. Hence justice is represented with bandaged eyes, and holding her balanced scales. In the very large majority of cases this is not only theoretically but practically true. The court knows nothing of the litigants. Problems of law and of fact are subjected to modes of analysis which are employed in all like cases, as if they were questions of science, instead of a heated contest between plaintiff and defendant. But it is difficult to secure these conditions in a Church trial. From the nature of the case, impartiality is apt to be wanting. Previous intimate associations, and prepossessions or dislikes, are quite likely to exist. Sometimes hot partisanship usurps the judgment-seat. The writer remembers an instance where a committee of eminent ministers, sitting in jndgment upon the conduct of another, had most of them avowed their antecedent convictions upon the very matters in issue, and one of the triers had publicly, and under oath, stated his belief in some of the charges upon which he was to pass. Such a tribunal was quite liable to make the wildest possible work in the attempt to administer justice. Sympathy or prejndice and passion, with religious feelings and an unenlightened conscience, is a combination unhappily sometimes met, and it cannot be said to conduce to calm judicial inquiry.
It is said that Lord Tenterden when at the bar was a poor leader; that, in fact, he showed the most marvelous inaptitnde for the functions of an advocate, and almost always lost the verdict. His biographer says: “This partly arose from his power of discrimination and soundness of understanding, which, enabling him to see the real merits of the cause on both sides, afterward fitted him so well for being a judge.” If the ability to take a view on both sides of a question is perplexing to an advocate, it must be confessed that it is sometimes troublesome to the judge who is to decide. But no man should undertake to determine the rights of another who is too lazy to weigh conflicting arguments, or too biased to do so with at least an effort to be fair. While, as we have said, it is important that offenses should be punished, it is essential that they should be dealt with in a spirit of candor, and without committing violence upon the safeguards which even criminals have a right to invoke. This is necessary not only for the protection of the accused, but that the administration of justice may be respected, and punishment carry with it the moral weight which shall make it wholesome.
Upon the arraignment and trial of members the preacher in charge occupies a delicate position, and ought to act discreetly and with judicial circumspection. It has probably been to a great extent the practice for him to frame the charges, though, as our author suggests, he should avoid this, as he may be called on to decide upon their sufficiency in substance or forni. He selects the jury (coinmittee) and presides as a judge upon the trial, admitting or rejecting testimony, and deciding questions of law, and thus, perhaps, controlling the outcome of the investigation. But here we most emphatically protest against a practice which seems to emanate from high authority, and may have thus become extensive, and which seems to be approved by Bishop Baker in the following, which is quoted from him without disapproval in the note at p. 414 of this work. In fact, the text to which this is a note states the same thing in substance : “ The question has frequently been asked, May the preacher remain with the select number while they are making up their judgment? In reply, Bishop Hed