The board was to meet every year at the aforesaid theological institution to execute the business of their appointment; and "also, upon emergencies, when called thereto, as hereinafter directed." Art. XIV.

By Art. XIX. it was provided that every visitor, before taking his seat at the board, should make and subscribe a declaration as follows: "Approving the statutes of the aforesaid theological institution, and those of the associate founders, I solemnly declare, in the presence of God and of this board, that I will faithfully exert my abilities to carry into execution the statutes of the said founders, and to promote the great object of the institution." Every visitor was also required to subscribe "the same theological creed which every professor elect is required to subscribe, and a declaration of his faith in the same creed shall be repeated by him at every successive period of five years."

The powers and duties of the board of visitors thus constituted and organized were set forth in Art. XX., which is as follows: "The power and duties of the board of visitors thus constituted and organized shall be as follows: namely, to visit the foundation once in every year, and at other times when regularly called thereto; to inquire into the state of this our fund, and the management of this foundation, with respect both to professors and students; to determine, interpret, and explain the statutes of this foundation in all cases brought before them in their judicial capacity; to redress grievances, both with respect to professors and students; to hear appeals from decisions of the Board of Trustees, and to remedy, upon complaint, duly exhibited in behalf of the said professors or students; to review and reverse any censure passed by said trustees upon any professor or student on this foundation; to declare void all rules and regulations made by the said trustees, relative to this foundation, which may be inconsistent with the original statutes thereof; to take care that the duties of every professor on this foundation be intelligibly and faithfully discharged, and to admonish or remove him either for misbehavior, heterodoxy, incapacity, or neglect of the duties of his office; to examine into the proficiency of the students, and to admonish, suspend, or deprive any student for negligence, contumacy, or any heinous crime committed against the laws of God or the statutes of this foundation; and, in general, to see that our true intentions, as expressed in these our statutes, be faithfully executed, always administering justice impartially, and exercising the functions of their office in the fear of God, according to the said statutes, the constitution of this seminary, and the laws of the land."

Art. XXII. is as follows: "The visitors shall appoint a standing committee to ascertain the qualifications of applicants for the advantages of this foundation. Those whom they approve may be recommended for admission as resident applicants on trial for two months; and, if at the expiration of this term the faculty approve them, they may be placed on the list of resident students until the next annual meeting of the visitors. And, if upon examination by the board of visitors, they be then approved, they shall be registered as associate students; but, if not approved by the visitors, after careful examination and the best information respecting them, they shall be dismissed from the foundation."

Art. XXVI. is as follows: "Every annual meeting of the board of visitors shall be introduced with prayer, after which these statutes shall be read by the president."

I do not propose to inquire how far Moses Brown and William Bart

let and John Norris in establishing these statutes adopted the original statutes of the institution established by Phoebe Phillips and others, or to discuss any differences that may be suggested between the original statutes of the institution as modified by the additional statutes of the original founders and the associate statutes. I assume, without considering it, that the Brown Professor of Ecclesiastical History, holding his office, as I understand, under the associate statutes, might be removed from his office by the trustees, acting under Art. XIV. of the original statutes of the Theological Institution, "for gross neglect of duty, scandalous immorality, mental incapacity, or any other just and sufficient cause," and that heterodoxy is a just and sufficient cause. Still it is evident that for the protection of the institution from heterodoxy, Moses Brown and his associates relied mainly upon the board of visitors established by them. The board of visitors was to be composed ultimately of two clergymen and one layman of distinguished talents and piety, in the prime of life, who were to read or to listen to the reading of the statutes every year, and who, before taking their seat at the board, were required to declare their faith in the creed prescribed by these statutes, and to repeat this declaration of faith every five years. They were required to examine the persons proposed for professors, with reference to their religious principles, and to examine the applicants for admission as students, and to approve or reject both professors and students. The trustees might be of any or no theological belief, and a majority of them were laymen, and no qualifications were required which would enable them to decide intelligently theological questions. It is manifest that the associate founders were unwilling to trust the management of their foundation on its theological side to the trustees. Accordingly the associate statutes gave the visitors established by them not only general visitatorial powers, but special powers, both original and appellate, and it is in the exercise of one of these special powers that the visitors acted in the present case. No question arises in the case of the incidents of general visitatorial powers. So far as the visitors may attempt to supervise the action of the trustees, justice may require that the trustees should have notice and an opportunity to be heard. So far as the visitors are authorized" to hear appeals from decisions of the board of trustees," that board would be in a sense a party, as their record must be produced before the visitors, and as the trustees might be both prosecutors and judges the trustees might have an interest in maintaining the propriety of their action.

But the duty imposed on the visitors to take care that the duties of every professor on this foundation be intelligibly and faithfully discharged, and to admonish or remove him, either for misbehavior, heterodoxy, incapacity, or neglect of the duties of his office," as well as the duty" to examine into the proficiency of the students, and to admonish, suspend, or deprive any student for negligence, contumacy, or any heinous crime committed against the laws of God or the statutes of this foundation," is a duty directed, not against the trustees, but against the professors and students, and is one that must be performed by the visitors according to their own judgment, and not according to the judgment of the trustees. It is an original and not a supervisory power. The complaint of Mr. Wellman and others against Professor Smyth, filed with the visitors, charged no maladministration on the part of the trustees; and the conduct of the trustees was not in any way involved in the proceedings. It was the primary duty of the visitors to entertain the complaint,

if it seemed to them to require consideration. The visitors, in determining the matter of the complaint, could render no decree or judgment against the trustees. If the trustees, as a corporation, had been cited to appear, it is difficult to see in what capacity they would appear in the proceedings, whether for the prosecution or the defense, or sometimes for one and sometimes for the other. If Professor Smyth had pleaded that he was guilty of the charges and specifications, could the trustees have pleaded that he was not guilty, or if he had pleaded that he was not guilty, could the trustees have pleaded that he was guilty? If the trustees are made a party, what is or can be the issue tried between them and the complainants, or between them and Professor Smyth? Suppose Professor Smyth had admitted in evidence before the visitors that the doctrines he taught were inconsistent with the creed established by the associate founders in manner and form as charged, and had consented to be removed from his office, or had asked leave to resign his office, could the trustees have prevented it?

There may be some embarrassment on the part of the trustees after Professor Smyth has been removed from his office by the visitors pending an appeal to this court. If the court affirms the decree, then he is removed from office, as of the date of the original decree; if the complaint is dismissed, or the decree is set aside, then he remains a professor until he dies, resigns, or is removed from office by a new decree. But the status of Professor Smyth pending an appeal to this court, if he is removed by the visitors, is a consequence of the action of the visitors, and the embarrassment of the trustees arises not during the trial but only after the visitors have determined the matter of the complaint. The relation of the trustees to Professor Smyth after the decree of the visitors pending an appeal to this court is the same whether they have been admitted as a party to the original proceedings or not. The same embarrassment arises in every case where one body has the power of removing an officer and another body pays him his salary while he holds his office. It arises in most ecclesiastical trials. It arises in the case of the policemen of Boston appointed by the Board of Police, who may be removed by the board, but while they continue in office are paid by the city. It was never supposed that the city of Boston was a necessary party to a complaint against a policeman before the Board of Police. Ham v. Boston Board of Police, 142 Mass. 90. In the present case the visitors are a special tribunal under the statutes of the associate founders and the statute of the Commonwealth for the trial of Professor Smyth on such a complaint as was made in this case. Professor Smyth had the rights of any incumbent of an office who can only be removed for cause, and these are defined in Murdock v. Phillips Academy, 12 Pick. 262. The trustees were not the prosecutors. The members of the board of trustees, if they knew anything of the matters charged, could be called as witnesses, but the conduct of the trustees as a corporation was not involved in the proceedings, and the opinion of this corporation on the truth or falseness of the charges, or whether, if true, they constituted heterodoxy, could not lawfully be used to influence the judgment of the visitors. Even if the opinion of the trustees could be received for this purpose, it would be competent as evidence, but the competency of such evidence would not require that the trustees be made a party. If this were an appeal from the decision of the trustees the opinion of that board could not lawfully be used to affect the judgment of the visitors. This is the general rule

in proceedings on appeal. "They [the visitors] are bound on appeal to hear the cause de novo, and without any regard to antecedent steps except that the cause shall be regularly brought before them." Murdock, appellant, 7 Pick. 328, 329. A fortiori when the visitors take original jurisdiction of a complaint the opinion of the trustees who never heard the complaint cannot be admissible.

I think that the appeal cannot be disposed of on the ground that the trustees were not made a party to the proceedings before the visitors, and that it should be considered on its merits so far as under the Statute of January 17, 1824, this court is authorized to consider it. I refrain from expressing any opinion on the merits for the reason, among others, that there may be a new trial of the complaint by the visitors, and another appeal to this court.

THEOLOGICAL AND RELIGIOUS INTELLIGENCE.

RESPONSE TO THE CHARGES AND SPECIFICATIONS SUBMITTED TO THE PRESBYTERY OF NEW YORK.1

MR. MODERATOR, MINISTERS, AND ELDERS OF THE PRESBYTERY OF NEW YORK:

Gentlemen, - I appear before you at this time in compliance with your citation, dated October 6, 1891, to plead to the charges and specifications placed in my hands by the Presbytery at that time. It is now

my right, in accordance with the Book of Discipline, § 22, to “file objections," if I have any, "to the regularity of the organization, or to the jurisdiction of the judicatory, or to the sufficiency of the charges and specifications in form and in legal effect, or any other substantial objection affecting the order or regularity of the proceeding."

I have no objections to the regularity of the organization, nor to the jurisdiction of the Presbytery of New York; but it is necessary, both in my own interest and in the interest of the order and regularity of the judicial proceedings in the Presbytery, to file objections to the sufficiency of the charges and specifications in form" and "in legal effect."

It is far from my purpose to raise any objections of a technical kind, that may in any way directly or indirectly delay the probation of charges that are approved as sufficient, and specifications that are recognized as relevant by the Presbytery of New York; but the order of the Book of Discipline requires that the question of relevancy should first be decided

1 The Prosecuting Committee, appointed by the Presbytery of New York in the case of Dr. Briggs, have formulated and taken an appeal from the Presbytery to the next General Assembly of the Presbyterian Church in the United States. The document numbers 24 pages. We should suppose that the first question for the Assembly to determine must be, whether such a committee has any standing before the Assembly; whether its occupation was not gone when the Presbytery which appointed it dismissed the case.

A complaint of the decision of the Presbytery, addressed to the Synod of New York, has also been filed. It is signed by Rev. Dr. William G. T. Shedd, Dr. R. R. Booth, and thirty-two others. It is sufficient for the purposes of this Review thus to refer to these documents. As we have published the charges against Dr. Briggs, we give also his response. -- ED.

by the Presbytery, before I can with propriety plead "guilty," or "not guilty."

No one has made this clearer than the Rev. E. R. Craven, D. D., the chairman of the Committee of the General Assembly which prepared the present Book of Discipline, when he said:

"In every trial there are two issues: first, do the facts alleged, if true, sustain the charge? and, second, are the facts true? Ordinarily the affirmative of the former question is tacitly assumed by both the judicatory and the accused person. In such cases the only question to be decided is the latter. Cases sometimes arise, however, especially where there is an individual prosecutor, in which both issues must be tried. They cannot, with propriety, be tried together, for one is a question of law, the other of evidence. In such cases it is manifest wisdom to dispose of the legal question first, and thus possibly prevent a useless waste of time and laceration of feeling.” - Presbyterian Review," 1884, p. 57.

Adopting the course thus recommended, I do hereby file the following objections to the "sufficiency of the charges and specifications in form and in legal effect."

I. THE PREAMBLE.

The report of the Committee of the Presbytery, which presented the charges and specifications, contains, in its preamble, intimation of charges and specifications which they have not proposed for trial, as follows:

"It has been decided by your committee that it is neither necessary nor advisable to embrace in the list of charges all the doctrinal errors contained in the inaugural address, and, while its teachings respecting miracles, the original condition of man, the nature of sin, race redemption, and Dr. Briggs' scheme of Biblical theology in general, are not in harmony with the Scriptures, and are calculated to weaken confidence in the Word of God, and to encourage presumption on the clemency and long-suffering of God, yet in order that we may avoid an undue extension of the trial, and the confusion of thought that might follow an attempt to compass all the errors contained in said address, we have deemed it best to confine attention to a few departures from the teachings of the Scriptures which are fundamental to the entire discussion.

Furthermore, your committee is not unmindful of the fact that the erroneous and ill-advised utterances of Dr. Briggs in the inaugural address have seriously disturbed the peace of the Church and led to a situation full of difficulty and complication, and have produced such wide-spread uneasiness and agitation throughout the Church as to cause sixty-three Presbyteries to overture the General Assembly with reference to the same, yet for the reasons above given we have determined not to include this grave offense against the peace of the Church in the list of formal charges" (pp. 4, 5).

I object (1) that, if there are any such errors contained in my inaugural address as the committee allege in the preamble of their report, it was their duty to formulate them into charges and specifications sufficient in form and in legal effect.

(2) That, if the committee did not think best so to do, they should have refrained from alleging doctrinal errors which they did not propose to submit to probation, and which so alleged without opportunity of refutation, seem calculated to exert prejudice against me in the minds of the members of the court.

(3) That, if, as the report alleges, "The erroneous and ill-advised utterances of Dr. Briggs in the inaugural address have seriously disturbed the peace of the Church," and these constitute a grave offense against the peace of the Church," it was the duty of the committee to

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