superior judicature. They are like reductions, and ought to be so libelled, calling the parties and judge to produce what is craved, to be reviewed. They are not much in use with us, and if they were, some self-willed and litigious persons would take too much encouragement from it. Assemblies, from which there lies no appeal, may review or recal their own sentences, on some new or extraordinary discovery. But inferior judica tures from which parties may appeal, are not to determine, but to refer the desired review or reduction to their superior judicature. If a party shall omit to propone a competent and proper defence, with a fraudulent and vexatious intention to protract and resume debates, in that case he ought not to be heard in his making thereof out of due time and order. But to hear emergent and new discovered defences since the conclusion of the cause, is but just.

8. In the latter part of the 23d act, Parl. 1693, it is statute, that the lords of their Majesty's privy council, and all other magistrates, judges, and officers of justice, give all due assistance, for making the sentences and cen sures of the church, and judicatures thereof to be obey. ed, or otherwise effectual as accords.

9. Declinatures are ante latam sententiam definitivam; but appeals are made from and after that sentence. These declinatures are of two sorts; the first unwarrantable, when a judicature is declined, as having no authority, as if a minister should decline his own presbytery, or the other superior judicatures of the church to be his lawful judges, which is a higher degree of contumacy, than that which follows upon non-compearance, and may be warrantably censured with deposition by the 5th act of Parliament 1690. There is a warrantable declinature, when a judicature is declined as having committed injustice in some interlocutory sentence. There is likewise a warrantable declinature, which may be made against particular members, who are related to the party by consanguinity or affinity, nearer than a cousin-german, or who have be haved themselves as parties in the cause. It is just now said, that appeals are properly made from definitive sen,

tences, but they are likewise made from interlocutory sentences, when they contain such damage to the party, whereof no reparation can be expected, from the definitive sentence that is to ensue. Thus Paul's appeal was just, Acts xxv. 9. for although his accusers could not prove their libel against him, yet his judge did not absolve him, but partially and unjustly remitted him to the judgment of his false and malicious accusers.

10. Appellatio is by lawyers said to be "Iniquitatis sententiæ querela, a minore judice ad superiorem provocans;" the design of appeals is to redress wrongs done by the iniquity, unskilfulness, or precipitancy of judges.

11. As to the effect of appeals, "non sortiuntur effectum suspensivum sed devolutivum tantum," and consequently resolve only in the nature of protests for remeid of law against a sentence pronounced by the Lords of Session, and not in the nature of suspensions. By the last article, cap. 5. act 11. Assembly 1707, an appeal being made by parties, should sist the execution of the sentence appealed from, only while the appeal is duly and diligently prosecute, and may thereby be determined, otherwise not; unless the judicature appealed to, receive the appeal, and take the affair before them: and in that case, the judicature appealed from, is to sist till the appeal be discussed.

12. By the act of Assembly, August 30. 1639, appellations are discharged to be made by leaping over either presbytery or synod, except it be after the synod is past, and immediately before or in the time of the sitting of the General Assembly. The Assembly 1648, sess. 30, orders thus, that where the appeal after sentence is not ready to be given in, the party shall protest for liberty to appeal, and accordingly, within ten days, give in his written appeal to the judicature or moderator thereof, otherwise it falls; which order and method is further cleared by the 8th act of Assembly 1694, whereby it is appointed, that verbal appellants give in their subscribed appeals, within ten days to the clerk of the judicature appealed from, (notwithstanding the judicature may be up before the time,) and also intimate the

same to the moderator, by leaving with him an authentic copy thereof, with the reasons of the same, to be registered by the clerk, and summons direct thereupon against parties defenders, and extracts thereof, with the citation foresaid, are to be produced by the appellants at the discussing thereof, declaring that any appeals or insistings thereupon, otherwise made, shall be rejected.

13. When the judicature ad quem meets, the party appealed, and oftentimes the judge a quo, craves that the appellant may be called, and if he appear not, the appeal is holden as deserted; in which case firmatur sententia. If the appellant fail, then to insist, it ipso facto falls, becomes void, and the sentence of the judicature appealed from, is to be put in execution. See the Form of Process on this head, enacted 1707. Unless the appellants send full instructions and documents for the necessity of their absence. See chap. 9. art. 9. of the French Church Discipline.

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14. By the act of Assembly, August 3. 1643, it is appointed, that all bills whatsoever of particular concernment, whereunto all parties having interest are not cited, should be rejected. As also, that they be first presented to the inferior judicatures of the kirk, who may competently consider of them, and from them be orderly et gradatim brought to the Assembly, and references are to be made by the inferior to the immediate superior judicatures in the same manner. Likewise, upon a reference made and intimate, all parties present are thereby cited, apud acta, to the judicature referred unto: but if absent, the clerk must be ordered to direct summons against them, which if omitted, the reference cannot be received.

15. When an appeal is brought from the kirk-session to the presbytery, they are to consider, whether the cause is of that nature, as it behoved at length to come to the presbytery, by the course of discipline, before the final determination thereof: as, if it be in a process of alledged adultery or such like; in which case, they may, to save themselves time, fall upon consideration of the affair, without insisting upon the bene or male appellatum,

even though it seem to be preposterously appealed. But if the cause be such, as the kirk-session are the competent and proper judges of, to its ultimate decision, and if there hath no cause been given by the session, through transgressing the rules of an orderly process, or by the incompetency of the censure, the presbytery is not to sustain the appeal; and if they do not sustain it, but find the appellants to have been malicious, litigious, or precipitant, then they are to inflict some censure, such as reproof before the presbytery, or appoint them to acknowledge their precipitancy before their own session, and that besides remitting the process to them. If the appeal to be sustained, and yet upon proceeding in the cause, the presbytery find the appellant censurable, they are to order him to be censured accordingly: but if they find that the kirk session hath unwarrantably proceeded, either to the contributing to the raising of a scandal, or inflicting a censure without a sufficient cause, they are then not only to absolve the appellant, but to take proper ways for vindicating his innocence: yet so as not to weaken the kirk session's authority; for which end they may give that session suitable instructions and rules to walk by, or private admonition, or to call for a visitation of their session register. See that forecited Form of Process, Assembly 1707.

TITLE VI.

Of the Order of Proceeding to Excommunication.

1. If a guilty person continue in that condition mentioned Tit. 1. of this Book, or lie under the censure of the lesser excommunication for a considerable time, after intimation thereof hath been made, both in the congre gation where it was inflicted, and also in that to which he belongeth, and yet be found frequently relapsing in these vices he was censured for, it may be constructed such a degree of contumacy, and so aggravate the crime, as to found a process for the censure of the higher excommunication, which is to be inflicted or not, as may most tend

to the reclaiming of the guilty person, and edification of the church. Where there is no obdurate contumacy, the lesser excommunication needs only have place. Again, where no scandalous practice hath been proven, only there is a simple contumacy following by not appearing, in that case, the lesser excommunication is length enough. But if the scandal be of an heinous nature, and that it is spreading and infectious, as in heresies or schism in the church, in which cases, contumacy is to be proceeded against.

2. Yet every error or difference in judgment about points wherein learned and godly men may differ, and which subverts not the faith, nor is destructive to godliness, or when persons out of conscience do not come up to the observation of all these rules, which are or shall be established by authority for regulating the outward worship of God, and government of his church, the censure of excommunication should not be inflicted for such causes. See Durham on Scandal. The letter from the Assembly of Divines at Westminster, with the answer of our General Assembly, 1645.

3. The kirk-session having brought the process to the lesser excommunication, before they proceed further, they are by a reference to lay their whole proceeding in writ before the presbytery, who finding them to have orderly proceeded, and that the lesser excommunication is not sufficient, they are to cause cite the scandalous person. If he appear, and deny the scandal alleged and libelled, then they are to lead probation as in other cases. If he appear not, then the citation is to be renewed till he hath got three.

4. If he contemn these three citations, then he is to be admonished out of the pulpit, to appear and submit three several Sabbaths; and a presbytery diet should intervene betwixt every one of these admonitions. By these admonitions intimation is to be made, that the presbytery will proceed to inquire into the guilt, although the delinquent be absent, and threatening him with the highest censure of the church, if he continue impenitent; and therefore the minister is gravely to admonish the party