Year: 1878

Having mentioned three provisions Of our
Book which seem to be intended to prevent
what is wrong in Judicial process, | pro-
ceed now to notice others


"a Some persons may be disposed to
think that in that device of our Book called
Reference, ample provision is made for
getting rid of the difficulties l speak of, but
careful examination of the matter shows
this to be mistake. (See Book, chap. vii,
sec. 2 GA reference is judicial repre-
sentstiOn made by an inferior judicstOry to
superior, of 8 case not yet decided. i" They
are made either to obtain advice as to GER
tain points, with q view to concluding the
matter afterwards, or with view to having
the whole matter disposed of finally by the
superior court. The first objection to this
device as q means of obvisting the evils re-
ferred to, is that there are no cases specified
as being of kind calling for reference of
them to the court above. The lower court
has the settling of that question itself. That
is to say, the lower court decides for itself
whether given case is of the peculiar kind
calling for its reference, and it also decides
whether il will refer it or not. No court
above can settle this point for it, and the
minority in the lower court must submit to
the majority. no matter how proper it would
be to refer the matter under consideration.
But the objection of most weight is, that the
obvious design of this mode of preventing
trouble is not to avoid the deciding of dis
puted matters by the votes of deeply inter-
ested persons in the lower court, but to OBJ
tain the advice of large number Of expe-
rienced persons upon questions that are ''new
and difficult" The question of the ''incom-
potency" of certain members of the lower
courts, by reason of kinship or pecunisry in
terest, was evidently not in the minds of the
trainers of this rule, because they expressly
declare, in Subsection vii, that the members
of the lower court can vote in the trial and
decision of the matter in the court above
Surely, if they we're, any of them, too deeply
Interested in the case to admit of their vot-
ing in the court below, why should they be
expressly given the right to vote in the court
above? The force of this question is best
seen by noting the next provision of the book
now to be stated.


(5.) 1t is provided by the Book that when
the records of a court are under review in
the coC'rt above, or an appeal or complaint
from tho decisions of the lower court is being
decided in the superior court, the members
of the lower court are prohibited from voting
upon all questions connected with such re-
view, appeal or complaint (See Baird's
Digest, pages 119 and 12O, and the Book, IN
lOcO) The reason for excluding the mem
bers of the lower court is, evidently, that
they are apt to be more or less biased in
mind, and as matter of deicacy should ab
stain from voting. This is as it should be,
but it fails to meet the dificc cltiss referred to.
1t recognizes the ordinary bias of an honest
mind as sufficient to render man sn lneom-
peteut judge, whilst it allows others to vote
in the decision who may be pecunisrlty IN
terested in the result to the amount of a nil
lion dollars. Surely this is strange.


Let as now notice few provisions of our
Book of 8 purely corrective and remedial
sort, bearing upon this subject:


a. According to section 1 of chapter vii,
as interpreted by the Assembly, the superior
courts have power, not only TO undo, in
measure, the wrong dOings of the inferior
courts, but also 20 compel them 60 do what
they have been neglecting to do. This power
fails, however, to meet the cases l speak of.
First of sll, this section, like those which
treat of appeals and complaints, has this de-
fectiVe festure-it is proposed remedy for
Vrong already committed 1t is sort of
moral emetic or stomach pump to rid the
body ecclesiastical of hurtful things already
making the patient sick and weak. 1t is 8
soothing ointment laid upon a sore now open
and inAsmed. 1t may heal the sore, but 3
scar will remain nevertheless, despite all our
skill-snd some sores there are which moth
ing but heaven can heal. What is the value
of even one ounce of wise prevention How
immeasursbly better never to open wound
than to be never so skillful in the healing of
it But the objections are, first, Judicial
decision can never be reversed on review, but
only 1pon appeal or complaint; secondly,
the courts above can never know one tenth
of the neglscts of the cOCrtS below, nor rem
edy many of the evils liable to arise from
partial and unjust trials, for the simple res'
son, so often given, that neither the law mol
usage of the Church gives any court right
to exclude from voting in Judicial trials those
who are deeply interested in the result
Our Assembly has decided that minister
and one elder may be session to try ju