, 1874-08-16

constituting the court In the commanding officer Th
That the rroner officer may appoint general courts
Martial Wien necessary" And IT is ia his discretion
q a.. what humber they shall consist between five
treeh but no. lesa than thirteen, II that nu1nbe
can be convened without manifest injury to the ser
se;, slee; Tho commanding officer is to detern.iu
Whethcr the public service w permit thirteen ana
Lot then he is to fix the number.
| 1hrFe IL no analogy between sueh court and on
maj de'1yes all its power from tho stipulation of tt,
'ar:fes Ntgant. Uron the first trial OF Mr. Cheney
he having filcd to select from the list Of ogh presby
tcrs fusu2heI by the Dishor the three or the i've b
y tb u w b. tried ss q m11esbye1s ssieee
h1t That Mr. Cheney might have selected only thre
from The eight, Or upon his default, the Standing
mt Of doubt Bit the cauou declares that the NUN
ber selected {hatorer 1t e) shall be a assessors I,
Try Try thS a, f4ss ~ te court b
number Ct PresbyteEs," they shall proceed to trial
and majorty nay render verdict. What va
ne Isanse xsef f5 ,ea required number, no, 10
that 1ef. TIC number avo or three, as misI
thereafter b. determined by tho party making th'
which III pursuance Of the canon the nccnEcd. OF th
ntanuns connlttes IN bis stead might demand to tr,
tho issue Of fact Unless The number selected, d
elected. was present. the Court WAS not and
| COULD NOT BE
within tho meaning IT the Tue defendant slip
u!ac.l :snt majority might decide but he nowhere
stipulated that majority lniKit try him If the .np
LIS been correctly sttel, anu the st;sua. Ut tae
cueed WIS that tue number selected to be The
|
convened, to board Of arbtrators, CURT Wit;
qu18-!u'cin powers, tn neither eseus coal4 the &c
cusca be legally tried il all tho members Of the eour
were not present at all stasea Of the trial. including
the hhal consultation nnd Judgment unless oI
1uoro Of the pcEsons acting Ariratura had wffuly
| withdrawn from the arbitration.
There il nothing in tho evidence to show that the
Rev. Dr. Pierce w1ll{ull Withdrew from the Court In
theinttrAal between the first commencement Of the trial
aud its resumption. after the decision In the Supreme
| Cutrt, having becume legally disqualified to act he
took no further part in the proceedings. have M!
been tsd TO- 10 IN; case nor haro ever seen case,
wllsful withdrawal. 1t IL neither within the Language
nor reason Of The exception.
DISQUALIFICATION
would more nearly Resemble oA n its effect upou
The arbitration. The death OF arbitrator before The
making Of the award operates revocation OF the
Should in tcruls have empowered them to act Jointly
and severaly. MorEa on Arb and Award, rs, Fl
Tenn. State All, kcus Com. 643.
cstaot avoid the conclusion that the Court, which
tile Standing Committee Of the Diocese had selected
for the trial Ut the dcfcudant Cheney was view OF
his express stipulation and their election under the
well settled rules OF Law,
4 COURT or FIVE rnzspprrzns,
and their presence ard consequent action
1T all stages of tho trial Although al eilg present
It the rendition Of tho verdict the verdict Of the
jorty sufficient and uat the action Of the four
Assessors {no of them hasing wiful!y itbrvn),
in finding said Cheney guilty, was unauthorized and
void
It might have been greater, but not In law mora
ccr.iu, violation of the s::lnla,ou upon which the
tr1l was ha il Mr. Cheney had lcen tried by two
stead OF folr, Asscssorn I'D makes difference.
to the question OF law, whether the Asacssors believed
thcy h11 Jurisdiction NJ. Cheney or not, It in
question Of power, and not oi good fah It appears,
from the eyidtncc in this case, that Judge OTIS, tho
proctor for the prosecution upon the frs. trial OF Mr.
ChHuey, after it became known that the 1tev Or.
Pierce could not longer act OF the AAse8sors
Wrote to the Hon. Murray Hoffman to the legality
Of Proceeding in his absence. To that letter Hr
Hoffman, replied tia Goth Of December, that his
opinion not decided one, hut concluding his let
trc thus: =. Upon the whole. think tho best concu-
Q{rt f11$
that all the Eeicrs should me:t. atid such eoncision
is in accordance with much analogous Law heuce,
that the Court ought to be constituted aud the
notices frc+hly served" He aso thar letter. went
to the ttoubo OF citing large number Of authorities
to e:'sa!n his position On the 11l of November,
1870 the Chancellor Of the Diocese addressed letter
to a1t Hoffman. in opposition 10 thu opinion hereto
fore EXPRESSED by HIN, and, in short reilly thereto,
Mr.. Holman ho is glad 10 aay thst he hna been
convinced ly the asgeut Of the writer Of tho latter
tia. his former impressions WIRING, aud that
there unly point in tho letter which he dis
ru:e1.
cannot hut think however that the opdniou Of the
learned canonist, given after apparently careful
examination Of. aud certainly after a quotation If
many authorities, and being, he then declared,
" in accordance with much analogous law" il the
better opinion.
TIE SECOND TRIAL
OF Mr. Cheney LAsed upon Lis cOntun1hcions
duct III not submitting to the former sentence OF
pension. The Supreme Csurt y. this State, in the
case Of case VI. Cheney, often ab'ye referred to.
this l.nsuage: ts If tie Court {the Assessors)
hs Jurisdiction Of the suoject-ma.ter .n the persou
i: haa lower to proceed. The sut,iect-matter WAS
c:urt had neither jurisdiction OF tbe person nor
the xubject-a,atter for it was no Court; in tie
sss'nd o51 ' s9ntans in tho
was III, ofsense Of the accused in rot
submitting to sentence based upon void finding,
~ act, and Mr.. Cheney, having been illegally s,s-
pended, guilty of offeuse. unless the poaton
assumed upon the part Of the complaluans he correct
that by the law Of the Episcopal Church. the Bishop,
vested Inherent
be condemn and punish for ecc1es;,seA oErEses
in The absent of any ianding by the church courts
To pr6te what is
THE CHURCH
upon this subject. several of the n1Ht learned PFC
Iatcs professors, authors, and ca1onsta in the Esco
p.t denomination in the United States and England
have Lgcn examined, aud of their .epo4ition-
for their learning and ability might b regarded well
worthy Of place in tie standard literature Of the
Church. They are elegant tcatisc upon the subjects
discussed More than whole week devoted upon
the argument e1slns:yely to this question, and to the
ti,n Tn,rch to the ,,rrsnnt trc Ti,s rrcst ,,n.b
Of this opinion forliels from assigning to this
question the time which, from the importance given
to it by tbs character and amount Of the eyiderc, aud
the elaborate anl learned arguments of counsel, it
would seem to LIE entitled.
The defer,l!n ch snsy, and evory other clergyman
Joining himself to the Protestant EpiscoEal Church
has voluntarily submitted to its laws and rules exist
ING ut the time of his connecting himself With tha
Church, OF thereafter made whether those rules
to be found in the unwritteu common law Of the
Church or in its statutory law.
What is the statutory law OF the Church Is to Re
cert3neu by examination OF it's cuous, ancient and
modern, What IL the common law, may be proved
from the works which generally received by the
Church authority upon questions of doctrine and
drcine and ly the statement Of witnesses learned
III chureh Law.
THE WRITINGS OF THE FATHERS
Bre be CONSULTED to 1scertafn whit the common Iaw
il the sHe uf which tAey wrote, and the evidence
Of earued churchmcu Of the present day ia to be
ceired to determine whether such IL the
Law accepted by tie Church. The re-
utly euaeted by tlr Church to be examined to
ateect.:u whether the common Law the ancieut
non Law Ags be.n modified or repealed by subsequent
ecclesiastical legislation. We to determine what
tne law uf the Church is at present anl the law It
existed in former centuries, is only matter Of cu
ruus inquiry, unless by the general consent Of the
C.inrch II has ccn brought down to this age and
ies CT, i'll anu submitted to by the Protestant Erisc
pal Church IN tie nineteenth century.
THE POWER OF HlsuoP.
That there is power Of government and discipline
inherent in the Office Of Bishop be rc-
g,.del, in OF the authorities and tho
She universally acttptcd doctrine
Of the Protestant Episcopal Church in America.
Ey,r sinrc tho Church .lau existence this power
cniinc to exist and has been exercised. Even
it admitted that in tue progress of the ageH it
; becll greatly curtailetl aud restricted it would DO
impossible to PROVE that it lad teu entirely sboiistcd.
TIE REAL CONTROVERSY
upon this subject t to thu extent of the power not
its existence fr it III almost universally cpncc
ed IL, th- CAnr.h that power inneres in the
10 ~ arbitrary anl absolute. l;st it must be
flrT