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Of Public Scandals.
1. PUBLIC Scandals are those which are so circumstanced as to require the cogniaance of a Judicatory.
2. It often may, and does happen, that a scandal may be gross in itself, and known to several, while yet it cannot be pursued to conviction. In such cases, though it be afflicting to upright men to see the church of Christ profaned with impunity ; yet it is proper to forbear, till the Lord shall bring to light the hidden things of darkness: since nothing tends more to weaken the authority of discipline, and to multiply scandals, than Judicatories commencing processes against offenders, and failing in their proof.
3. Offences are public, i. e. are to be brought before Church Judicatories for trial:
First. When they are not removed by the method laid down in the preceding chapter. In such cases, a scandal, though at first private, is aggravated, by obstinacy, into an evil which requires, as the last human remedy, the interference of public authority: and it is then the duty of the person offended to lay it, with its evidence, and the means which it hath resisted, before the proper Judicatory. Tell it to the Church.
Secondly. When a scandal, gross in its nature, is so notorious and open, that many are in danger of being infected, it is immediately to be inquired into judicially; nor is private admonition at all necessary to ripen it for a process.
Thirdly. When a scandal is rumoured abroad, even though it doth not appear to have been committed before a considerable number of witnesses, it falls under the cognizance of the Church Judicatory. It is the duty of members who hear such reports to acquaint the Judicatory. Nor is previous expostulation, in private, either necessary or proper: because the scandal is not in any sense private; and because the credit of religion, especially in that branch of the church to which the scandal is attached, may greatly suffer before private admonition can produce its effect,
This ground of process is denominated in church discipline, Fama Clamosa, (crying fame,) and the management of it requires the greatest prudence.
It is not every tale of scandal which amounts to a Fama Clamosa. In order to this ilis indispensible, 1st. That the report specify some particular sm or sms: 2dly. That it be wide spread: 3dly. That it he not transient: 4thly. That it be accompanied with public presumptions of its troth. 4. When scandals, originally private, are brought before a Judicatory, it may often be expedient to deal with the scandalous person by a deputation of members, in order to gain him, without resorting to a formal process.
Of Processes in general.
1. When all other means of removing a scandal are found ineffectual, the Judicatory which hath immediate cognizance thereof, is to take it under the most serious judicial consideration.
2. No person can be admitted as an accuser, who either is, at the time of accusation, or who hath been recently, lit enmity -with ihe person accused; or who is employed by another to accuse; or who is not of entire fame; or who is actually under censure, or process for censure. Judicatories are also to be exceedingly cautious in receiving accusations from any who have the prospect of temporal advantage from the accusation, or of temporal disadvantage from its failure: as likewise, in receiving them from any who, though not of ill repute, are known to be trifling, officious, querulous, passionate, rash, or imprudent.
3. No person can be compelled to become an accuser.
4. AH processes, raised at the instance of a party complaining, against scandals originally private, must be pursued in the name of the complainer; and he bound to make aut, not only the proof of the scandal, but of his previous Christian demeanor with regard to it, on peiil of being himself censured as a scandalous person.
5. In all other processes for public scandals there is no need of an accuser; nor is the name of the informer, without his consent, to be given up. Yet if the innocence of the party charged be satisfactorily cleared, the Judicatory is to inquire whether the information was lodged through malice, or imprudence, or otherwise, and to deal with the informer accordingly.
6. Although a process for scandal be relinquished by the party who commenced it, yet it may not therefore be dismissed by a Judicatory ; since the support of discipline, the recovery of the offender, and the edification of the church, are concerned in bringing it to an issue.
7. In a judicial process it is requisite that the scandal be libelled—the offender cited—proof adduced—and sentence given.
1. A libel is a written charge of scandal preferred against an individual by judicial authority. It consists of two parts, whereof the first contains the scand.il itself, and the second charges it, in point of fact, on a particular person. Thus, if A. B. were prosecuted for drunkenness, the libel would set forth, Jirst, the heinousness of the sin, and then, that A. 6. hath actually committed it." But, in ordinary cases, it may be sufficient simply to state the charges against the offender.
2. Every libel, excepting those grounded on nfamaclamosa," must specify not only the scandal libelled, but also time and place, that the person accused may have the benefit of every circumstance which can contribute to his vindication.
3. In the case of fama clamosa, it often happens, that though the scandal be exceedingly flagrant, yet the circumstances of time and place are very difficult to be proved; and, therefore, in such cases the charge in the libel should be couched in more general terms.
When a complaint is, in the judgment of a Judicatory, clearly vexatious and frivolous, they are to endeavour to convince and satisfy the complainer; but, on no consideration to grant a libel.
1. When it is judged proper to prefer a libel against an, offender, he shall, by a written citation, signed by the moderator and clerk of the Judicatory, or either of them, be summoned, at least eight free days, to appear at the bar of the Judicatory, and put in his answer.
2. Every citation must specify, 1st. The Judicatory before which the offender is to appear: 2d. The name of the offender: 3d. The time and place of appeal ance: and 4th. -The name of the prosecutor, unless the process be instituted by the Judicatory. It must also be accompanied, in the first instance, with a copy of the libel.P
n Appendix I. No. 11. o See chap. iii. 3. p Appendix I. No. J0,
3. A citation is also to be sent to all who are designed as witnesses, provided they be members of the church ;1 othe1 persons, and members of other churches, can only be requested to appear.
4. If the offender refuse to obey his summons, he is to be cited again within at least ten free days after the day first appointed for his appearance; but the time allotted him after his second summons, is left to the discretion of the Judicatory, provided it be not less than is fujly sufficient for a seasonable appearance before them. A second neglect or refusal shull be followed by a third citation, with a certification, that if the offender do not appear at the time appointed, the Judicatory, besides censuring him for contumacy, will proceed to try the libel exhibited against him as if he were present.
5. That Judicitories may not be rash or unreasonable in this part of the process, they are to be well ascertained, before they order a second or third citation, that the first and second have been duly served; and for this purpose, the person appointed to serve the summons shall certify the Judicatory of its execution.
6. If the offender appear, or if, having refused to appear, he be proceeded against in his absence, the first thing to be considered is the Relevancy of the libel; that is, whether the thing charged, even supposing it to be proved, is really censurable. To the relevancy, the person accused hath always a right to object; but the Judicatory must judge of the weight of his objections.
7. If, on due consideration, the libel be found not relevant, all further proceedings are precluded of course ; but if it be sustained, the offender is to be interrogated respecting the matter of fact. If he acknowledge it, the way is prepared for a decision ; but if he deny it, the Judicatory is to examine the proof by which it is supported; and previously to give him a list of the witnesses.
V 1. Witnesses, who, being members of the church, refuse to appear and give their testimony when legally summoned, may be censured for contumacy.
2. Children, idiots, those defective in any of the senses on which the accuracy of their knowledge and testimony depends, accusers, persons of infamous character, at en
q Appendijc I. No. 13.
mity with the accused, under censure or process for censure, who expect, directly or indirectly, to reap any temporal advantage, or to avoid any temporal disadvantage, by giving testimony, cannot be admitted as witnesses either for or against an offender. On any of these grounds, he has a right to challenge a witness, and the Judicatory is candidly to hear and to decide on his exceptions.
3. Two unexceptionable witnesses,-at least, whose testimony goes to the precise act charged in the libel, and to the circumstances of time and place under which it is stated to have been committed, are necessary to conviction.
4. In those cases, however, of afama clamosa, in which the libel charges the scandal more generally, although there be not two concurring testimonies as to the same act; yet if several unexceptionable witnesses bear testimony to different similar acts, belonging unquestionably to the scandal charged, the libel shall be considered as proved. Thus, if a person be accused on a fama clamosa, of profane swearing, if several good witnesses testify ; one, that he hath heard him swear profanely at such a time or place; another, at such a time or place; another, at such a time or place, &.c. it shall be sufficient for conviction.
5. Witnesses are to be examined in the presence of the accused, who is at liberty to cross-examine them: the same privilege belongs to every member of the Judicatory; but no questions are to be put or answered, except through the moderator.
6. Every witness, before his tesliniony is heard, must be solemnly purged of malice against the accused, or of receiving any advantage, directly or indirectly, from appearing as a witness; and then is to be solemnly sworn. The oath is to be administered by the moderator, and to be taken by the witness, holding up his right hand; all the members of the Judicatory, and others present, standing.1"
7. The depositions of witnesses are to be taken down in writing, and then read to them, that mistakes may be corrected, or omissions supplied; after which they are to be signed by the deponents, and to be laid up among the papers of the Judicatory.
8. When an offence is committed m the bounds of a Judicatory, different from that with which the offender is immediately connected, the former should give intelligence
r Appendix I. No. 14i