theological training, judge of cases of heresy. Between these two ways our elders are to be shut out from giving judgment either in Presbyteries, or Synods, or Assemblies. The eldership had better see to what things are tending. It was alleged in our Presbytery, and the authority of Dr Cunningham was adduced for it, that we had no other Scripture proof of any Presbyterian government than that it was a government by Presbyters. My friend Dr Forbes very properly said, of course, met in Presbytery. If not, what were Presbyters but Episcopei, bishops. I have not examined Dr Cunningham's statement; but if that was his idea, it really made it a government by bishops after all. It was argued as proof demonstrable and incontrovertible, and could not be gainsaid, because Dr Cunningham had said it. We, at all events, vow that our government by Kirk-sessions, Presbyteries, Synods, and General Assemblies, is founded on, and agreeable to, the Word of God." If not, we should no longer vow that it is. The main reasons pleaded for these changes are these two, viz., Presbyteries should not be both prosecutors and judges, and Synods and Assemblies should see and hear the witnesses. Now, I protest against the idea that our Presbyteries, in exercising the discipline of the Church, are to be considered in the light of criminal prosecutors, whose function it is to obtain a conviction and sue for punishment. That is not their function. Their function is to deal with the case, to ascertain facts, and bring all proper religious considerations, whether doctrinal or practical, to bear upon the conscience of the subject of discipline in the first instance; and it will go hard indeed if in a Presbytery no one will show either justice or compassion. A criminal prosecutor has no function but that of securing a conviction, irrespective of the effect on the mind of the accused; and then, in the proposed commission, the accused is placed at the bar without remedy or appeal. It is, in every aspect of the case, an oppressive proposal. As to seeing the witnesses, notwithstanding all that has been said on that score, I am of opinion that the evidence which is made to depend on the appearance of a witness is too scant to determine anything of such moment as the character or status of a minister; and in all cases of appeal, either in our civil or criminal courts, the higher authorities must and do depend on written or printed evidence. Men understand these matters well enough when the case becomes their own or that of their friends. Gentlemen who voted against my overture for the repeal of these Acts in the Court below made, and justly made, strong and decided objection in a case with which we were dealing, being referred even to the ordinary Commission, and the party involved not having the full benefit of having his case tried in the ordinary way, and of being heard in the several courts if he deemed it advisable and right. It was long considered the glory of our Church that the humblest member had this right. Dr Gibson here referred to the danger of framing our rules of procedure on the principle and practice of civil or criminal courts, and not on the principles of the Word of God, as we could not even plead conscience against their interference, and stated the fact that Mr M'Millan had entered his dissent against these Acts; and if the Presbytery of Dumbarton had tried his case by them, the Church, in the Cardross case, would have been in a very serious position. He contended, therefore, for their repeal. He concluded by moving, "That, with consent of Presbyteries, the Act IX., 1854, entitled,' Act anent Reference by the Presbytery to the Superior Courts, as to taking of Proof,' also an Act X., 1854,

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entitled, 'Act anent Reference to Superior Courts when the Presbytery are prosecutors,' &c., be repealed."

Dr FORBES, Glasgow, seconded the motion. He thought the onus probandi of the necessity for a change lay entirely on those who had brought forward this new method of dealing with these cases-a method which had never come into actual operation. They had never had a motion for referring any such matter to a commission. He held there was no analogy between cases in the Church courts and procedure in a civil court. The Church courts were courts of conscience. The question they were called upon to determine was not only one of guilt or innocence, but to bring the party to a sense of guilt, with the view of administering the discipline for his correction, and at the same time securing the purity of the Church; and he did not think they ought to assimilate their proceedings to those of the civil courts.

Sir H. W. MONCREIFF then proposed "That the General Assembly, having considered the overtures, resolve to appoint a large committee, consisting of members from various parts of the Church, to consider how far there are, or are not, any serious defects or evils in the existing law and practice of the Church, as to cases of libel, and how far, if there be such defects or evils, any remedy can be scripturally and constitutionally applied." They would observe that he did not assume in his motion that there were evils. He only assumed that on the face of the overtures there were manifestly strong opinions in some quarters that evils existed, and in case they should be found as so serious as was stated, he asked a committee to be appointed, consisting of members from various parts of the Church. He wished that any proposal to be put before the Church should emanate not from one particular locality, but from the various Presbyteries of the Church, so that there could be no idea that it proceeded from one class of persons. Five of the overtures prayed generally for inquiry, and one of them asked that the Presbyteries should be relieved from the duty of prosecuting. There had always been a feeling to that effect in the Church, and the subject was carefully considered some time ago, but his opinion was that the same conclusion would be arrived at now as formerly, that it will be scarcely possible, consistently with the proper character of the Church discipline, to bring in any external prosecutor in cases of libel. The question would turn out to be, he was persuaded, in the event of a remedy being found needful, whether there was any practical way of proceeding in the line of the present permissive legislation. He confessed an inclination in favour of their present system, and no desire for its abandonment, but he perceived that a great deal of dissatisfaction existed in connexion with it, and certainly there was some ground for that dissatisfaction. He proceeded to show that the permissive legislation now standing on the books was perfectly constitutional. The fact that it had not been used was in some respects in its favour, because it implied it was not intended that this course should always be taken; but it made it possible that it could be taken when parties thought it advisable. was not strictly true that application had never been made from any Presbytery to have this course followed. Application was once made, but it was made at the wrong stage. With regard to Sheriff Cleghorn's motion, he could not understand, if the power of the Presbytery was kept intact in dealing with parties in the first instance, of doing what they could to bring them to a confession, of doing what they could to deal with the

conscience, if there was no interference with Christian principle and Presbyterian order, why they should not take the best means they could, according to the most approved principles by which evidence was judged of, of getting evidence disposed of. But before they began to dispute about the remedy, they should consider whether evils existed; and provided they preserved the purity of the Church and Christian character of its discipline, he did not care what remedy was adopted. Principal FAIRBAIRN seconded. Like Sir H. Moncreiff, he did not feel very strongly on the subject of the overtures, but it was quite clear from them that a pretty general feeling did exist of something being wrong in our method of procedure. The permissive enactment, however, passed twelve years ago, had evidently not answered the purpose, as it had never been called into operation; and he believed this arose from its artificial character, placing it in a manner outside the regular operation of our church system. Nothing of that sort, he was convinced, would ever be satisfactory or prove efficient; the remedy, if it is to be had, must be sought in the proper working of our Presbyterian constitution. The great evil undoubtedly lay in allowing the ultimate decision on the facts embraced in a libel to be given by a court which has not itself taken the evidence, has not seen and examined the witnesses, has only heard their depositions read, or seen them in print. This is such a palpable departure from the course which the common sense and exercised judgments of men had led them to adopt in nearly all cases affecting the character and lives of their fellowmen, that it could not be seriously defended. He had no doubt it had arisen chiefly out of the smallness of many of the Presbyteries, which made it appear reasonable that matters affecting the character and position of a minister should be brought under the review of a larger, and as might be thought more impartially competent tribunal. Hence appeals to the Synod, and from the Synod to the General Assembly. Now, there was nothing in the essential principles of Presbytery, as founded in Scripture, nothing in the constitution of the Church as that was understood and worked for centuries, to require such a course of procedure, and he thought it should be abandoned. It was absurd to say, that anything is essential to the Presbyterian form of Church government, which would render it practically unworkable; and if all Scotland, and still more if all England, or even the one-half of it, were unitedly under one Presbyterian administration, it would be next to impossible to bring up all the cases of libel to one supreme court. Its meetings in such a case would be wholly engrossed with them, if even so it could overtake them; and its sittings would be a calamity rather than a blessing to the Church. We have no example of such a mode of procedure in the apostolic Church, nor in the early Church for centuries. Cases of discipline in particular localities were always taken up and disposed of in those localities. Nothing but what affected the doctrine or general order and administration of the Church, was brought before the larger Synods or taken out of the province to which they immediately belonged-except the quarrel raised by the impracticable and wrong-headed Donatists, whose charges against one or two bishops were, at their own urgent request, taken up by courts constituted for the purpose, and at a distance. But such charges, charges affecting moral character, were as a rule dealt with in the locality, and should be so still. He would have two points first of all settled, viz., the minimum number of members in the court that should be empowered to

examine into the facts of a libel, and then the final character of their decision after the evidence was taken-an appeal being allowed only on the sentence founded on the ascertained facts, but not on the evidence establishing the facts. No court should review this, because no other court can have the evidence at first hand, or be properly competent to review it. In all the larger Presbyteries there is a court perfectly sufficient in point of number and qualifications for the purpose now indicated. And where the Presbyteries are too small, why not call into operation your Synods of what use are these at present? For the most part extremely little, and as regards cases of libel they are an obstruction rather than a help; they only serve to embarrass and complicate matters. But in themselves these Synods still are the proper courts for taking up and disposing of cases of discipline, which are too important for the particular Presbytery within which they occur. His advice, therefore, would be to find here, in the existing constitution of the Church, the remedy that was needed for the evils complained. It had these great advantages-first, its plainly constitutional character being liable to no challenge on any plea of principle or law; secondly, its freedom from all delicate and difficult questions about the composition of the court empowered to pronounce upon the facts of a libel-the courts already exist as competent parts of our ecclesiastical constitution; and lastly, it is perfectly workable, the parties who have to act being resident in the district, and those properly responsible for the administration of discipline and the maintenance of good order ; and if not competent for such a business one would be at a loss to say for what purpose they exist.

Sheriff CLEGHORN said that, owing to the numerous expressions he had heard at last Assembly of dissatisfaction with the mode of conducting those cases, he had made a motion on this subject in the Presbytery of Edinburgh, and the Presbytery had appointed a committee who, after much consideration, recommended the course which he now submitted to the House. The Presbytery did not indeed adopt the suggestion, but adopted an overture on the subject of a somewhat more general kind. It was, however, a carefully considered suggestion by several members thoroughly versed in the constitutional law of the Church. The two great evils felt and very generally complained of, were, that in the original part of the procedure the Presbytery are put in the anomalous position of being both prosecutors and judges; and second, it is felt to be a very serious evil, that when a case comes up to the Assembly, it comes after repeated discussion in the Presbytery and Synod-to a jury of 600 members, whose time is taken up and their attention distracted by a great quantity of other business. It humbly appeared to him, then, that it was highly expedient, and that there was nothing unconstitutional in delegating to a special commission the power of dealing with such cases. He therefore moved :- "That the General Assembly, having considered the overtures, resolve to enact, with consent of a majority of Presbyteries, that hereafter if a libel shall have been served and found relevant against a minister or probationer, and if the proof of it shall appear to depend exclusively or largely on oral testimony, whether the Presbytery are prosecutors or not the Presbytery shall refer the case to the Provincial Synod, in the event of its meeting taking place before the meeting of the General Assembly, and otherwise to the Assembly; that the Synod, after considering the circumstances of any such reference that might be brought before them,

shall, if they find the proof of the libel to be dependent exclusively or largely on oral testimony, sustain the reference, and refer the case to the General Assembly; that the Assembly, after considering the circumstances of any such reference that may be brought before them, shall, if they find the proof of the libel to be exclusively or largely dependent on oral testimony, sustain the reference, and remit the case to the consideration of a special commission, who shall hear the evidence on both sides, and give a deliverance as to its effect; that they shall report this deliverance to the ensuing General Assembly, which shall pronounce such sentence or issue such instructions to the Presbytery as to them may seem just, unless a motion shall be made and carried in the Assembly for a new trial before a new commission. And, further, that the Assembly resolve to enact, with consent of a majority of Presbyteries, that, in the event of the General Assembly sustaining such a reference as that referred to, it shall be competent for the Assembly, on request of the Presbytery, to appoint some qualified person or persons to conduct the further prosecution of the libel in the name of the Presbytery; and that in the event of such person or persons being appointed to conduct the prosecution, the expense of the further prosecution shall be borne, not by the individual Presbytery, but by the Church at large; and that even in the event of the Presbytery still conducting the prosecution, any additional expense caused by the appointment of the special commission, beyond what the Presbytery would incur according to the present law of the Church, shall be borne by the Church at large."

Mr SMITH, Cowgatehead, seconded the motion, and in reference to the case of appeal to the General Assembly, he put it to his reverend friend, Dr Forbes, whether, in a case coming before a judicial court of such unwieldy magnitude as the General Assembly, a decision in which the vote came to was, say 300 to 299, did not really come to be worth nothing? Were they not far more likely to get a right decision from a specially constituted court, whose business it was to take up one particular case remitted to them? Then, with reference to the conduct of cases in the Presbytery, he appealed to the Assembly whether, if it were imposed upon any of them, as a member of Presbytery, to conduct a case, he would not do what he could to make out that case, and so put himself in a position in which he could but ill trust his judgment to take a calm view of it judicially? For himself, he confessed if a case were remitted to him to conduct, he would strain every nerve to make out a case on one side or the other, and that in doing so he would quite unfit himself for being a judge.

Mr MACAULAY, Glasgow, said-I regret that the three motions under consideration are not fairly opposed to each other. But without dwelling on this, I feel obliged to support the proposal of Professor Gibson. Sir Henry Moncreiff has acknowledged that there was great difficulty in framing the acts referred to, so as to render them compatible in their working with the constitutional principles and procedure of this Church. And the estimate formed of them by the Presbyteries of the Church is attested by the fact that for twelve years they have lain as a dead letter in our statute-book. Principal Fairbairn has told us that there is nothing in these acts, or in the proposal of Sheriff Cleghorn, inconsistent with the principles or practice of the primitive Church. But with all deference to the Principal, this statement has no bearing on the matter