fixed and well defined as those pertaining to any other branch of law. Though the powers of a court of equity are more flexible and far-reaching than those of strictly legal tribunals, they are yet as settled and fenced in by precedent and principle. Otherwise these decisions would be simply the expression of arbitrary will under the name of law. They might be mere whim, or caprice, or worse. There is a quaint saying to the effect that if the chancellor's own notion is to be taken as law, then the standard of all measurements is the chancellor's foot. Arbitrary power is always dangerous, even when conscientious; perhaps most dangerous when most conscientious. We want law to rule over us, not men. Men must interpret and administer the law, but they should do so as its servants, not as our masters. In the administration of Church discipline there is greater need of observing the rules of legal investigation, from the fact that it is so difficult to constitute a perfectly impartial tribunal. When a case is presented to a court of law for its determination, the court is supposed to regard neither of the parties, but to look only at the cause. Hence justice is represented with bandaged eyes, and holding her balanced scales. In the very large majority of cases this is not only theoretically but practically true. The court knows nothing of the litigants. Problems of law and of fact are subjected to modes of analysis which are employed in all like cases, as if they were questions of science, instead of a heated contest between plaintiff and defendant. But it is difficult to secure these conditions in a Church trial. From the nature of the case, impartiality is apt to be wanting. Previous intimate associations, and prepossessions or dislikes, are quite likely to exist. Sometimes hot partisanship usurps the judgment-seat. The writer remembers an instance where a committee of eminent ministers, sitting in judgment upon the conduct of another, had most of them avowed their antecedent convictions upon the very matters in issue, and one of the triers had publicly, and under oath, stated his belief in some of the charges upon which he was to pass. Such a tribunal was quite liable to make the wildest possible work in the attempt to administer justice. Sympathy or prejudice and passion, with religious feelings and an unenlightened conscience, is a combination unhappily some

times met, and it cannot be said to conduce to calm judicial inquiry.

It is said that Lord Tenterden when at the bar was a poor leader; that, in fact, he showed the most marvelous inaptitude for the functions of an advocate, and almost always lost the verdict. His biographer says: "This partly arose from his power of discrimination and soundness of understanding, which, enabling him to see the real merits of the cause on both sides, afterward fitted him so well for being a judge." If the ability to take a view on both sides of a question is perplexing to an advocate, it must be confessed that it is sometimes troublesome to the judge who is to decide. But no man should undertake to determine the rights of another who is too lazy to weigh conflicting arguments, or too biased to do so with at least an effort to be fair. While, as we have said, it is important that offenses should be punished, it is essential that they should be dealt with in a spirit of candor, and without committing violence upon the safeguards which even criminals have a right to invoke. This is necessary not only for the protection of the accused, but that the administration of justice may be respected, and punishment carry with it the moral weight which shall make it wholesome.

Upon the arraignment and trial of members the preacher in charge occupies a delicate position, and ought to act discreetly and with judicial circumspection. It has probably been to a great extent the practice for him to frame the charges, though, as our author suggests, he should avoid this, as he may be called on to decide upon their sufficiency in substance or form. He selects the jury (committee) and presides as a judge upon the trial, admitting or rejecting testimony, aud deciding questions of law, and thus, perhaps, controlling the outcome of the investigation. But here we most emphatically protest against a practice which seems to emanate from high authority, and may have thus become extensive, and which seems to be approved by Bishop Baker in the following, which is quoted from him without disapproval in the note at p. 414 of this work. In fact, the text to which this is a note states the same thing in substance: "The question has frequently been asked, May the preacher remain with the select number while they are making up their judgment? In reply, Bishop Hed

ding remarks, Certainly he ought, for he is pastor of the flock, and he would neglect his duty were he to be absent, and consequently not know on what law or evidence the judgment is rendered." What follows from the text of Bishop Baker shows the unsoundness of this position, though it does not seem to be so intended. He says: "The preacher under no circumstances should attempt to balance the evidence, weigh the probabilities, determine the credibility of witnesses, or draw inferences from the facts proved, and thus determine disputed questions of fact, even at the request of the parties." He has no right, then, to be present during the deliberations of the "select number." The reason given by Bishop Hedding is certainly a strange one; as if the preacher is to "know on what law or evidence the judgment is rendered" by listening to the discussions of the committee after the case is given to them! The judge who, after charging the jury in court, should retire with them to their room to coach them into a proper verdict, or to overhear their conference so as to ascertain on what the verdict is founded, would probably soon find his way before a court of impeachment. The triers of the facts are entitled to consult in secret, and the question is, Whether their findings are sustained by the evidence as given on the trial, and the known law of the case. Even if the preacher had the power, like a judge in a civil court, to set aside the findings, (which he has not,) it would be his duty to test them by the record and not by the conversations of the committee room. If it should be said that it is his duty to see that the findings are in due form, the obvious answer is, that when the committee return the findings to him any informality or insufficiency can be remedied before they separate. It not unfrequently happens that a jury come into court with a verdict in improper form, and the correction is made on the spot, and their assent taken to the same.

Let us now turn to one or two branches of the law of evidence on which the text of the book before us seems to be behind the age. The author says, (p. 129,) "The rule, as we have seen, which excludes parties from being witnesses for themselves, applies to the case of husband and wife, neither of them being admissible as a witness in a case, civil or criminal, and where, by law, the other would be incompetent." That this was a

rule firmly grounded in the common law is indisputable; and it is just as clear that the drift of modern judicial legislation is toward the free examination of parties, and also the admission of the husband or wife of a party to testify, under certain restrictions, grounded in public policy. The copious notes on this chapter show this in part, but the text adheres to the old rule. We think the more liberal rules now prevailing to a great extent are the more enlightened, and that the ecclesiastical courts should adopt the improvements which the municipal laws have inaugurated. The exclusion of parties proceeded upon the theory that the man who had a direct interest in the event of a suit was not to be relied upon to tell the truth even under oath. This principle also shut out persons, not parties, who could be shown to have a pecuniary interest in the result, to the amount of a sixpence. In short, the minutest interest raised a presumption of perjury. And so, when a jury was solemnly impaneled to well and truly try, and a true verdict give, upon some important question of fact, the law studiously stopped the mouths of the very persons who could tell them most about the subject in hand, and oftentimes the only persons who had any positive knowledge of the matter. As early as 1824 Lord Denman thus exhibited the hardship, not to say absurdity, of the rule then in force:

In other cases the absolute rejection of light because there is a possibility of its leading astray, is difficult to be explained on rational grounds. Take, as example, the case of forgery. Unless the crime has been committed in the presence of witnesses, it can only be proved (in the proper sense of the word) by the individual whose name is said to have been forged; yet that person is the only person whom the law of England prohibits from proving the facts. The trial proceeds in the presence of the person whose name is said to have been forged, who alone knows the fact, and has no motive for misrepresenting it. His statement would at once convict the prisoner if guilty, or, if innocent, relieve him from the charge; and he is condemned to sit by, hearing the case imperfectly pieced out by the opinions and surmises of other persons on the speculative question whether or not the handwriting is his. And this speculation, incapable under any circumstances of satisfying a reasonable mind, decides upon the life of a fellow-citizen, in a system which habitually boasts of requiring always the very best evidence which the nature of the case can admit.

At length it began to be suspected that parties might tell the truth, no matter how strong their interest, and that those who were "disinterested witnesses" in the eye of the law, from bias or prejudice or want of moral principle might, after all, be as apt to lie as an honest man who is testifying in his own cause. A great many witnesses who have no legal interest in the issue of a trial are nevertheless so warped by feeling, or testify under such strenuous temptation to deviate from the truth, that they color and prevaricate and conceal as corruptly as even an unscrupulous party who has every thing at stake. The sensible conclusion has been adopted, that as the credibility of all witnesses must be determined by the jury, it is best to let the opposing parties confront each other and the other witnesses, and undergo such tests as the rules of evidence, the skill of counsel, and the common sense of the jury, may supply, for the discovery of truth and the detection of falsehood. Accordingly, England in 1843 removed the restriction from witnesses, other than parties who had a pecuniary interest in the case, and in 1851 admitted parties to testify in their own behalf, or at the call of their adversaries. This reform was adopted in New York in 1857, and it is believed that it has found its way into the codes of most of our States; and by Act of Congress it has been made the law in all the Federal Courts. There is one general restriction upon the examination of the party to an action or proceeding which is, in substance, that he may not testify in relation to a personal transaction or communication between himself and a deceased person or lunatic, as against the executor or administrator of such deceased, or a person deriving title or interest through or under him, or against the committee of the lunatic, unless such personal representative, etc., shall have offered himself as a witness to the same matter. The ground of this is obvious, but the restriction would not be applicable in any proceeding under our Discipline, except in the case of arbitrations as to "disagreement in business and non-payment of debts."

The policy of allowing defendants in criminal cases to testify in their own behalf was looked upon with greater distrust, and probably has not yet been so generally adopted, though it will doubtless become entirely prevalent. It seems barbarous to compel the accused to sit in silence, while a net-work