The Revised Book of Discipline [pp. 692-721]

The Revised Book of Discipline.
The introduction to this chapter consists at present of two
paragraphs which remain unchanged in the revision. The first
states the importance of the principle of review and control;
and the second says that any and every kind of decision
(i. e. whether legislative, executive, or judicial) may be carried
up for the review of a higher judicatory, in one or the other
of the four following ways, viz. general review and control,
reference, appeal, or complaint. To these paragraphs or subsections, it is proposed to add a third, in these words, viz.
"When a matter is transferred in any of these ways, from an
inferior to a superior judicatory, the inferior judicatory shall,
in no case, be considered a party; nor shall its members lose
their right to sit, deliberate, and vote, in the higher courts."
This is, perhaps, the most radical change proposed in the new
Book. The rule, as it now stands, makes every inferior court
a party as the cause goes up. The objections to this mode of
proceeding are so serious, and consequently the reasons in
favour of the proposed change are so strong, that we trust the
amended rule will meet with universal approbation. In the
first place, it is a false and derogatory principle that a judge
becomes a partisan by the exercise of his prerogative of judgment. This is assumed in our present Book. The lower court
is arraigned, as for an offence, before a higher, and is put on
its defence. It is turned out of the house, and judgment is
passed upon it. This surely is derogatory. A session's deciding
that a professing Christian has been guilty of falsehood, or a
presbytery's deciding that a minister is a heretic, is no offence,
even if the judgment be not borne out by the testimony. It
may be an erroneous judgment, but it is not a crime; and, therefore, furnishes no good reason for making the lower court a party
in the future conducting of the case. It is of great importance that it should be assumed that judges are upright, and to
have the contrary assumption engrafted into our very laws is a
great evil. In the second place, there is no reason for the
present rule. A man's having tried a cause once is no disqualification for his trying it again. To say that he has prejudged the case, and is not fit to participate in the rehearing,
is to say that he is prejudiced, or influenced by corrupt motives,
or that he is so opinionated as not to be open to conviction.
708
[OCTOBER