ART. VIII. — GENERAL CONFERENCE POWERS AND

PROCEDURE.

THE Constitutional powers of the General Conference, though given in brief terms, are broad and comprehensive. The general grant is of "full authority to make rules and regulations for our Church," subject to limitations needless here to specify. Its assent, by a two-third vote, is also requisite to any amendment of the organic law. For present purposes it suffices to say that, barring certain powers belonging ex officio to the bishops, the entire authority of government is conferred upon this body, with the right also of participation in action to amend the Constitution. We therefore are to regard it as possessing, besides the function last named, general legislative, executive, and judicial powers. As these differ in essential features, wise policy clearly demands that they should be separately exercised. Moreover, in respect to each class of powers, legitimately to 'call them into action, a matter in nature appropriate thereto must be before the body. Apparently, however, in the practice of the General Conference what should follow from the propositions stated has been lost sight of at times or but dimly seen. Beyond all this, also, extra-constitutional function has been exerted, from which, perhaps, some confusion has arisen, though when its character is understood and a true order of business adopted the action is wholly unobjectionable. object now is to note the great divisions of power with which the General Conference is invested; to show the necessity of a matter in nature accordant therewith, in order to the exercise of each; the character of the extra-legal action referred to; and then to point out the procedure that logically follows as the method by which the business of the body should be conducted.

Our

All understand the general differences between legislative, executive, and judicial powers. But when, as here, they are conferred upon a single body their distinctions are not so easily observed. Add to this a practice which almost entirely fails to class them and that these several functions are exercised by a large assembly, most of whom are untrained in such af fairs, and the marvel is not that misconception and confusion have at times crept in, but that so little has followed, This

last, no doubt, is attributable in large part to the line of very able presidents which the General Conference has been blessed with from the beginning.

No particular analysis of the different powers which government, ecclesiastical no less than civil, implies is deemed necessary, save as an incident to showing that from the nature of things none of them can be exerted legitimately unless upon an appropriate subject-matter. We begin with the legislative function. This, in its substance, is the power to enact law, to make or change rules of action or conduct for those within their authority. Obviously, unless some new law or rule is to be made or an old one repealed, this power cannot be exercised. There is nothing upon which it can operate. For example, a resolution that it would be wise to make a certain regulation, or that the Conference has authority to enact it, is no exercise of legislative function, but a mere expression of opinion and, except as such, void of any effect whatever. A matter, then, respecting which the power is exerted, in a form to make new or repeal old laws, is necessary to its lawful exercise. Precisely the same principle applies to the executive authority of the General Conference. This is largely invoked in the appointment and supervision of bishops and the various agents for the performance of executive duties, such as our economy requires. Manifestly a resolve that those officers are needed for the different departments of Church work would be no exertion of executive power. But when the Conference appoints them, then it is called into operation-an executive act is done. So, also, as respects the question of amending the Constitution. A declaration that it would be improved by a certain change could have no legal effect. The action must be directly upon a proposition to amend-a matter within this field of powerin order to its exercise. All this is so obvious that its statement might be regarded as superfluous. But, as it shows a principle in applications beyond doubt, it may aid in making clear how it applies in cases not quite so plain.

On the point in question more misapprehension appears as to the exercise of judicial power by the General Conference than is found in respect to its other functions. The necessity for a matter before the body of a nature which calls for judicial action, as a condition therefor, is not always clearly per

ceived. A simple example, however, will illustrate legitimate activity of function under each class of usual powers. Suppose a new office is to be created and filled. Legislation becomes necessary to provide for it and to prescribe its duties. By an executive act the officer is appointed. Thereafter he is charged with a breach of duty such as to subject him to discipline, which he denies. Now, the hearing and decision by the Conference of the case thus made would be a judicial act, calling into activity its judicial powers. But a resolution, passed prior to the dereliction, declaring what the decision ought to be if such a case arose, manifestly would not. One reason of this is that judicial action is from its nature impossible, except upon a state of facts already in existence.

That which distinguishes a judicial from a legislative act is, that one is a determination of what the existing law is in relation to some existing thing already done or happened, while the other is the predetermination of what the law shall be for the regulation of all future cases falling under its provisions.*

There is another question closely connected with this, which, in order to a full understanding of the judicial function, it is important to consider. The judicial capacity is the only one in which cases involving a right under the law can be decided and the law authoritatively interpreted. This principle is elementary and fundamental in the American constitutional system. Regarding the Constitution of the United States a most able and learned writer says:

The judicial interpretation . . . is the ultimate interpretation; but it must be given through the form of a case, and can be given only upon such questions as form a proper subject for a case. †

This doctrine and a correct practice under it are of paramount importance if we wish to have a system of ecclesiastical law in which each great function of government will find its proper place and limitations. The fact that all these powers are vested in the General Conference possibly has led to misunder. standing here. A few seem to suppose that if a case arises and is decided, still, by some assumed exercise of fancied legislative power, it may be declared overruled, and so set aside. Yet from the nature of the thing this is impossible. The Conference can

* Cooley's Constitutional Limitations, *91.

+ Burgess's Political Science and Constitutional Law, vol. ii, p. 327.

39-FIFTH SERIES, VOL. X.

never legislate what a decision shall be, for the reason that if no case has arisen the act is void for want of anything upon which to operate, while if one be before the body, and it is decided, whatever the form of the action, it is judicial in nature, and not legislative. If a case were to arise under a statute, which a decision construed and applied, its effect might be destroyed, as to future cases, by repealing or changing the statute. But where a provision of the Constitution is involved the decision must remain as the law until reversed in another case or the instrument is changed by amendment. No resolution that the Constitution shall be differently interpreted and read could have the slightest legal effect, as the legislative power does not extend into the judicial, and such an act is not, nor can it be, legislation. Chief Justice Marshall long ago said: "The difference between the departments undoubtedly is, that the legislature makes,... and the judiciary construes, the law."* The two functions are in nature separate and distinct, and cannot, without the overthrow of all system, be confused in practice. If this were done, indeed, no one ever could know what the law was in its application to cases. A decision, solemnly made, might be set aside by an ad captandum resolution declaring that those voting for it are of a different opinion. Such a procedure would breed confusion, render settled rules of judicial decision impossible, and bring the administration of our law into merited contempt. The judicial power, it may be added, extends to all cases of alleged infraction of our laws and Constitution which may come before the General Conference. It also covers questions relating to the qualifications of its members. Their decision is a judicial act. When hearing and deciding such questions the Conference ipso facto becomes a "court."+ This is true also in all cases in which it acts judicially. The circumstance that the body is large in number, and its modes of procedure different from those usual in courts, does not alter this result.

Before amendment of the organic law can be made the General Conference by proper action must concur therein. Hence it is invested with a portion of what may be designated as

*Wayman vs. Southard, 10 Wheaton, 46.

+1 Kent's Commentary, *235; People vs. Hall, 80 New York, 123; Cooley's Constitutional Limitations, *133.

constitution-making power. The simple fact is all that attention need now be called to, as it alone shows one of the distinct functions of the body.

A short statement is required regarding the extra-constitutional powers assumed by the General Conference. In strict legal view these really are proceedings of the persons composing the body, in unofficial capacity, but clothed in official forms. Expressions of opinion by resolution, report, adopted, or otherwise, on public questions touching morals and religion, such as the liquor traffic, Chinese exclusion, Sunday newspapers, and the like, are wholly outside of the authority conferred upon the Conference. But if that be understood, in view of its representative character and the weight naturally attaching to its utterances, such action is not only free from objection, but eminently right and proper. It makes, however, no "rule" or "regulation”—is extra, though not, within certain limits, unconstitutional. Attention is directed to it that the nature of such action may be clearly seen and its place indicated in a correct procedure.

The foregoing review of the powers and practice of the General Conference makes manifest that, within constitutional limits, it may act in four separate and distinct capacities—legislative, executive, judicial, and constitution-making. To this is to be added the extra-legal, which may be termed the expressed opinion of its members on important affairs, beyond the powers of the body, but in form as its action. We thus get the grounds for a logical order of business, that is, one by which, in the proceedings of the Conference, these functions shall be separated in their exercise. The way to this is simple and perfectly practicable. When legislation is the work to be done, let it be in what shall be known as a legislative session; executive business, in executive session; judicial action, in court session; consideration of constitutional amendments, in amendment session; and extra-legal acts, in extra session. By this or some similar method the business of the body would be classified, its nature disclosed, and confusion avoided. The "mixed" states of mind at times apparent in the Conference as to its powers, and especially the disposition occasionally manifest to run them into one another, as'a sort of hotchpotch, one might hope would disappear. A session of one kind should of course exclude