/■ ■^t-^ vv^axvi ot *t ®hfo%val ^,,„. '%/V PRINCETON, N. J. '% Presented by Mr. Samuel Agnew of Philadelphia, Pa. t5A syD 1 .U /u Green, Ashbel, 1762-1848, The case of the General assembly of the / . \\ THE CASE OF THE GENERAL ASSEMBLY OF THE PRESBYTERIAN CHURCH IN THE UNITED STATES OF AMERICA, BEFORE THE Supreme Qtouxt ot the Ctommontoealth ot Hennsglijaitfar, IMPARTIALLY REPORTED B Y DISINTERE S TED STENOGRAPHERS; INCLUDING ALL THE PROCEEDINGS, TESTIMONY, AND ARGUMENTS AT NISI PRIUS, AND BEFORE THE COURT IN BANK, WITH THE CHARGE OF JUDGE ROGERS, THE VERDICT OF THE JURY, AKD THE OPINION OF CHIEF JUSTICE GIBSON. THE WHOLE COMPILED AND PREPARED FOR THE PRESS REV, D. Vr.XATHROP PHILADELPHIA: PUBLISHED BY A. M'ELROY. 18 39. Entered accorcUng to act of Congress, in the year 1839, by A. M'ELROY, in the Clerk's Office of the District Court of the Eastern District of Pennsylvania. PEINCETON '^MlEMh^' CO "Sits. Pa?e Abrogation of the Plan of Union, 48 Adair, Rev. Robert, testimony of, 136 A^new, Samuel, testimony of, 238 Associate Reformed Church, Union with, 156 Auchincloss, Hugh, testimony of, _ 2ir, 264 Assembly, Jurisdiction of, 31,32, 33,34 Pa so B 111 Bissell, case of, Boardman, Rev. Henry A., tes- timony of, 215, 233, 264 Breckinridge, Rev. Robert, tes- timony of. Brown, Rev. Isaac, testimony of. Brown, Henry, testimony of. 203 249 Cathcart, Robert, D. D., testi- mony of, 113, 141 Citation of inferior Judicatories, 49, 56 Committee on State of the Church, (1837,) Constitution of the Presbyterian Church, amended 1821, 29— in evidence. Converse, Rev. Amasa, testimo- ny of. Counsel, names of, 49 156 144 ■ 9 D Davis, Rev. James M., testimo- ny of, 252 Dingee, Charles H., testimony of, 146 Disciphne, Forms of, 36, 37, 38 £ Elders, election of, 261 Elliott, David, D. D., testimony of, 228 Elmes, Thomas, « « 251 Evans, Thomas, « " 214 Ewing, Mr., resolution (1837,) 101 Excinded Synods, creation of, 30 — Recognition of, 30 — Presby- teries belonging to, 45 Excision of the four Synods, 55 Fisher, Samuel, D. D., testimo- ny of, 131, 150 Form of Government, &c.. Ex- tracts from, 39 Gemmell, James R., testimony of, 246 General Assembly, how formed, &c., 30 General Assembly, Minutes of 1837, 40, 47, 126, 59, 261 Gibson, C.J., Opinion, 620 Gilbert, Rev. Eliphalet, testimo- ny of, 113,129 H Hamilton, Wm., testimony of, 236 Harris, Wm.,M. D., " 199 Hill, Wm., D. D., " 109,245 Hubbell, Mr., Argument, 542 — Opening, 159 — On points of evidence, 40, 42, 43, 84, 93, 99, 1^6, 213, 214, 257 I Incorporation, act of, 28 Ingersoll, Mr., argument, 412 — On points of evidence, 42,43, 101, 102, 254 Introduction, 3 Jessup, William, Judge, testi- mony of, 92 Jones, S. B., Rev., testimony of, 238 Jury, Names of, 20 — Verdict, 529 Krebs, Rev. John M., statement, 101— testimony, 185, 264 Lathrop, Rev. Daniel W., testi- mony of, 25>'» I.owrie, Walter, testimony of, 208, 264 CONTENTS. M Maclean, Rev. John, testimony of. 240, 119, 100, Mason, Erskine, D. D., McDowell, John, D. D., McElroy, Archibald, " McP'arli'ind, Rev. Francis, " Meredith, Wm. M., arguments, 265, 566 — On points of evi- dence, 21 Miller, Samuel, D. D., testimo- ny of, Mitchell, Alex. W., M. D., tes- ti^mony of, Mitchell, Joseph B., testimony of. Moderator, change of,(1835,)112 — duties of, 262 — induction. N Page 245 158 243 141 213 257 201 234 237 223 239 263 Norris, Edward C, testimony of, Nott, Eliphalet, D. D., deposi- tion, Noyes, Rev. Varnum, testimony of, 212 O Organization of General Assem- bly, rules, 223 — minutes of 1838, 258 Page Process, forms of, 36, 37, 38, 39 Protests, 55, 57, 59, 62, 70, 72, 76 Presbyteries of the four Synods, 46 R Randall, Mr., arguments, 589, 619 — opening, 20 — on points of evi- dence, 40, 42, 43, 84, 93, 99, 118 530 117 Reasons for new trial, Relators, election of. Report of Committee on slate of Church, 49 Rogers, J., charge to Jury, 505 — decisions on points of evi- dence, 99, 101, 119, 127, 152, 213, 214, 222, 254, 257, 260 Report of the Synod of W. Reserve, 34 S 593 Sergeant, Mr., argument, Session of Church, how formed, &c., 261 Squier, Rev. Miles P., testimony of, 104 Suits, record of, 231, 232 Symington, Alexander, testimo- ny of, 235 Synod, how formed, &c., 30 Synods, Geneva, Genessee, W. Resei-ve, and Utica, formation of, 30, 31 Pastoral Letter, 219 Patton, Wm,, D.U., testimony of, 84 Paul, James W., testimony of, 249 Phelps, Rev. Eliakim, testimony of, 47, 150 Philadelphia, Third Presbytery of, dissolved, 57 PhiUips, Wm. W., D. D., testi- mony of, 195, 210, 264 Plan of Union (1801,) 77— Ab- rogation, Plan's of Union and Correspon- dence, &c., Pleadings, Plumer, Wm., D. D., testimony of. Potts, Stacy G., testimony of. Presbytery, how formed, &,c., Preston, Mr., argument, 316 — on points of evidence, 96, 119, 127, 135, 254 48 80 9 224 198 30 Tarr, Elihu D., testimony of, 248 Testimony for Relators, 28 to 158 Testimony for Respondents, 159 to 265 Trustees, how chosen, 28 Twitchell, Jerome, testimony of, 210 W 154 155 204 Wetmore, Rev. Oliver, testimo- ny of. White, Ambrose, testimony of. White, Rev. Nathan G., testimo- ny of, Wilson, Samuel B., D.D., testi- mony of, 200, 202 Wilson, Samuel P., testimony of, 206 Wilson, Wm., testimony of, 218 Wood, Mr , argument, 469 — on points of evidence, 93, 126 Worrell, Charles F., testimony of, 241 ,,t>5mRTv OF :-^ j5*^^vV #^uxii c:^'ro>A INTRODUCTION. In preparing for the press, the report now submitted to the pnbhc, the single aim of the editor has been, accuracy in the exhi- bition of the facts, testimony, arguments and decisions, which make up the whole case, as it was actually developed in court. To accomplish this object, all that could be effected, by unre- mitting perseverance in the use of the best materials for the pur- pose, has probably been attained. No apprehension is entertained that any candid man, of any ec- clesiastical party, will find occasion to complain of partiality or favoritism in this report. The case necessarily involved the discussion, by distinguished civilians, of great principles of law, order, and constitutional and natural rights, which have given to it an importance, rarely if ever attached to a judicial investigation in our country. Eminent law- yers not connected with the case, have even said, that in view of the extensive range, and weighty character of the questions in- volved, it is the most important judicial case, to be found on the legal records of the world. Its importance is perhaps not diminished by the condition in which it now stands on the records of the court, by the fact that it is yet undecided. Whether or not, this case in its present form, shall ever be prosecuted to an ultimate decision; it*is hardly possi- ble, if it be not, that other cases will not arise involving the same principles, and resting, indeed, on the precise facts of this case. So far, the case has elicited two official decisions in the same court, of a diametrically opposite character, and involving opposite legal opinions on points of fundamental import. One of the parties now claim of right, on their side, the decided opinion officially promulgated, of the judge of the Supreme Court, who presided at the trial, in relation to the law, and the verdict of a jury of twelve enlightened freemen on the fads of the case, in coincidence with the opinion, as understood and admitted by all parties, of another judge of the same court; while the other side, with equal truth, claim the opposite opinion, both of the law and the facts, of the three other judges, being the majority, and including the chief justice of the same high court; the latter in the regular course of legal authority, suspending the verdict of the jury, super- ceding the former legal opinion, and granting to the defendants, the privilege of a new trial. Under these circumstances, not only the two large bodies, each claiming to be "the Presbyterian Church in the United States," but the whole community, and especially all religious denominations in the country, as well as all connected with the legal profession are interested to know the facts, and the arguments on which these opposite conclusions are predicated, while many are desirous, ir- respective of any interest in the result, to be acquainted with the testimony relating to the controversy, and to see the arguments, in a case of this magnitude, of gentlemen, so distinguished in their profession, as those who advocated the cause of the respective parties in this suit. To make the work as perfect as possible in the particulars pro- posed, no practicable pains have been spared, and a much longer period has been occupied, ihan, with less regard to accuracy, "would have been requisite, and particularly, has the assistance of the counsel in the cause been obtained, whenever it could be, in rela- tion to that which pertained respectively to their own part of the case. In this respect special acknowledgments are due to Josiah Randall and George Wood, Esqs., for the relators, and F. W. Hubbell, Esq., for the respondents at Nisi Prius, and to Wm. M. Meredith and F. W. Hubbell, Esqrs., for the same parties respectively, before the (>ourt in Bank. The argument of Mr. Randall before the Court in Bank is given only in the form of a succint statement, by that gentleman, of the points made in argument, this course having been preferred by him, as his absence, when it was needed for the press, prevented a revision of his argument as reported by the stenographer. It may not be inappropriate to note the following facts con- nected with the early history of the Presbyterian Church; facts un- questioned, it is supposed, by all parties in the church, and which may, perhaps, to those unacquainted with them, throw some light on the occasion of the present divisions. As early as the 6th of April, 1691, the Presbyterian and Con^egational deno- minations in Great Britain, consummated a union of the two denominations, adopting- what they called the "Heads of Agheement," embracing a few cardinal prin- ciples, wiiich were to govern them in their fraternal intercourse. This Presbyterian and Congregational Union, sent over one of their number, Mr. M'Kemie, as a missionary to the new settlements in America, who, in connexion •with Messrs. M'Nish, Andrews, Hampton, Taylor, Wilson and Davis, in 1704, form- ed the first presbytery in this country, the presbytery of Philadelphia. This pres- bytery was formed upon the principles which governed the London Association, by which Mr. M'Kemie was sent, and was composed partly of Presbyterian and partly of Congregational ministers and churches. [Mr. Andrews, the first pastor of the first church in Philadelphia, was a decided Congregational Presbyterian. That church was under the care of the presbytery sixty-four years, before they elected ruling elders.] This state of things continued until 1716, when the Synod of Phila- delphia was formed out of the presbyteries of Philadelphia, New Castle, Snow Hill and Long I.sland, the last three having grown up after the formation of the first. The Church of Scotland, instead of imbibing those principles which resulted in the union of 1691, in London, and in the establishing of a modified Presbyte- rianism in America, solemnly bore their testimony against religious toleration. In 1724, those ministers from Scotland, who, in the language of Dr. Miller, "were desirous to carry into effect the system to wliich they had been accustomed in all its extent and strictness," began to insist that the entire system of the Scottish church be received in this country. This led to the adopting act of 1729, which embodied the liberal principles of 1691, in such language as follows : "Although the synod do not claim, or pretend to any authority of imposing our faith on other men's consciences, but do profess our just dissatisfaction with, and abhorrence of sucli impositions, and do not only disclaim ali legislative power and authority in the chtircli, being willing to receive one another as Christ has received us to the glory of God, and admit to fellowship in church ordinances, all such as we have grounds to believe that Christ will at last admit to the kingdom of heaven, yet we aie un- doubtedly obliged to take care that the faith once delivered to the saints, be kept pure and uncorrupt among us, and do therefore agree, that all tlie ministers of this synod, or that shall hereafter be admitted to this s) nod, shall declare their agree- ment in, and approbation of the Confession of Faith, with the Larger and Shorter Catechisms of the Assembly of divines at Westminster, as being in all essential and necessary articles, good forms and sound words, and systems of Christian doctrine, &c. And we do also agree, that the presbyteries shall take care not to admit any candidate but what declares his agreement in opinion with all the essential and necessary articles of said Confession. And in case any minister, or any candidate shall have any scruples with regard to any article of said Confession or Catechisms, he shall declare his sentiments to the presbytery or synod, who shall, notwithstand- ing, admit him to the exercise of the ministry within our bounds, if they shall judge his scruples or mistakes to be only about articles not essential and necessary in doctrine, worsliip, or government. And the synod do solemnly agree, that none of us will traduce or use any opprobrious terms towards those who differ from us in those extra essential and not necessary points of doctrine, but treat them with the same friendship, kindness and brotherly love, as if nothing had happened." Tn 1730, an increased determination to the more rigid forms of adoption was ma- nifested by the presbytery of New Castle, by the presbytery of Donegal, in 1732, and by a majority of the synod, in 1736, which met with such opposition as to re- sult in the great schism, of 1741, and the organization of the Synod of New York, in 1745. In 1758, the Synods of New York and Philadelphia were united ; and in the 6th article of their union, they agreed to adopt the Confession of Faith, Catechisms and Directory, as they had been adopted in 1729. In 1766. eight years after the union of the synod, under the name of the Synod of Xew York and Philadelphia, that body proposed a convention of delegates of the pastors of the Congregational, Consociated and Presbyterian Churches in North America, wliich was held amiually for ten years, when it was Interrupted by the American Revolution. In 1788, the General Assembly was organized, and in 1790, the Assembly, " being peculiarly desirous to renew and strengthen every bond of union between brethren so nearly agreed in doctrine and forms of worship, as the Presbyterian and Congregational Churches evidently are, do resolve, that the Con- gregational churches in New England, be invited to renew their annual convention with the clergy of the Presbyterian Church." This resolution resulted in the plan of correspondt-nce with the Congregational bodies of New England, which still exists, and which provides that "every preacher travelling from one body to the other, and properly recommended, shall be received as an authorized preacher of the gospel, and cheerfully taken under the patronage of the presbytery or associa- tion, within whose limits he shall find employment as a preacher." In 1801, the two denominations produced another Plan of Union, which is the one so often alluded to in this trial, and is fully spread out in the following pages. One or two errors in regard to matters of fact, obviously unde- signedly connmitted, during the trial, although, of course, the editor is not accountable for them, yet, as they cannot affect the ca.se, or be regarded as interfering with it, it may not be amiss to correct. When Judge Rogers inquired, if the assent of the General Asso- ciation of Connecticut had been obtained to the repeal of the Plan of Union, it was replied, that " a communication had been sent to the Association requesting such consent, but no answer had been re- ceived." The fact was that a resolution was adopted by the Assem- bly to that effect, but the request was not presented to the Associa- tion, the commissioners from the Assembly not being furnished with the minutes for that year. An error of some of the counsel, in regard to the profession of Presbyterial reports, may be corrected by ihe following statement. The Presbyterial rejjorts are made out according to forms pre- scribed and sent down; and the few presbyteries which add to that form a designation, (Con.) for Congregational, do so to show that certain ministers are pastors of (congregational Churches, having no connexion with the presbytery, altogether unlike the class of churches alluded to in the testimony as " initiate, &c.,'* in connexion with the excluded synods; which churches,in the presbyteries alluded to, are as fully under the care of the presbytery, as any others in their connexion. These presbyteries do not report at all the churches not connected with them, although some of their mem- bers (ministers) may be pastors of such churches. For example, in the Presbytery of Portage, Rev. Giles Doolittle is reported as SS., (stated supply,) but the church which he supplies, Hudson, a Congregational Church, is not reported at all. So with Rev, Joseph Merriam of the same presbytery, reported as pastor, but his church (Randolph) is not reported at all. It is perhaps due to the respective parties, and may elucidate the state and prospects of the case, to give the subjoined fact : — In the Assembly, which met in the first church, May 20th, 1839, Judge Darhng-, from the committee of twelve, appointed on the 21st day of May, 1838, " to advise and direct in respect to any legal questions and pecuniary interests that might require attention during the ensuing year," reported that previous to the trial before Judge Rogers, at Nisi Prius, the committee were informed by one of their counsel, that John K. Kane, Esq., one of the trustees of the General Assembly, and who was of counsel for the respondents, had stated to him that those he represented were dis- posed to adjust, amicably and equitably, all matters in controversy in this cause, and had requested him to ascertain what terms the committee would propose, as a basis for an amicable division of the Presbyterian Church, and the final adjustment of all the matters in dispute between the Reformed and Constitutional General Assemblies. Keeping in view the resolution of the General Assembly of 1838, viz.: " That this body is willing to agree to any reasonable measures tending to an ami- cable adjustment of the difficulties in the Presbyterian churcli, and will receive, and respectfully consider, any propositions made for that purpose," — they waived all exceptions which might have been taken to enter into negotiation with, or to making propositions to, an irresponsible individual, and promptly requested their counsel to furnish Mr. Kane with a copy of the following articles. ARTICLES OP AGREEMENT PROPOSED. "In order to secure an amicable and equitable adjustment of the difficulties exist- ing in the Presbyterian church in the United States of America, it is hereby agreed by the respective parties, that the following shall be articles on which a division shall be made and continued. Article I. The successors of the body which held its sessions in Ranstead Court, shall hereafter be known by the name and style of " The General Assembly of the Presbyterian Church in the United States of America :" The successors of the body which held its sessions in the First Presbyterian Church, shall hereafter be known by the name and style of " The General Assembly of the American Presby- terian Church." Article II Joint application shall be made by the parties to this agreement, to the legislature of Pennsylvania, for a charter to incorporate trustees of each of the respective bodies, securing to each the immunities and privileges now secured by the existing charter to the trustees of the General Assembly of the Presbyterian Church in tlie United States of America ; subject, nevertheless, to the limitations and articles herein agreed on ; and when so obtained, the existing charter shall be surrendered to the state. Article III. Churches, ministers, and members of churches as well as presby- teries, shall be at fidl liberty to decide to which of the said Assemblies they will be attached ; and in case the majoi-ity of legal voters of any congregation shall prefer to be connected with any presbyterjf connected with the Assembly to whicli their presbytery is not attached, they shall certify the same to the stated clerk of the presbytery, which they wish to leave, and their connexion witli said presbytery shall thenceforth cease. Article IV. Tiie Theological Seminary of Princeton, the Western Theological Seminary, the Board of Foreign Missions, the Board of Domestic Missions, the Board of Education with the funds appertaining to each, shall be the properly and subject to the exclusive control of the body which according to this agreement, shall be chartered under the title of ** the General Assembly of the Presbyterian Church in the United States of America." This agreement shall not be considered a secession on the part of either body, from the Presbyterian Church in the United States of America, but a voluntary and amicable division of this church into two denominations, each retaining all the eccle- siastical and pecuniary rights of the whole body, with the limitations and qualifica- tions in the above articles specified." The only reply which the committee x-eceived to these propositions was, that they could not be accepted, but that the Old School party would agree that the members of the Constitutional General Assembly, and all who adhered to this General Assembly, should be at liberty to leave the Presbyterian Church without molestation from them, and that they should not be called Seceders. The following appears on the minutes of the Assembly which met in Ranstead Court, May 21, 1839: — Be it resolved by the General Assembly of the Presbyterian Church in the United States of America, I. That this body considers itself and the church at large, bound, as both have been, not only willing, but desirous to adjust all claims against the coi-porate pro- perty of the church, xvhether legal or equitable, in the most prompt, fair, and liberal manner. II. That tliis is especially the case touching any claims which may exist on the partofthefour Synods of Utica, Geneva, Genessee, and Western Reserve, declared in 1837 to be no part of the Presbyterian Church : or on the ])art of those wiio seceded from the church in 1838 ; or on the part of any body constituted out of the whole or any part of these elements. And that in regard to all and each of tliest; bodies and persons, the Assembly will faithfully adhere to any pledge or promise, express or implied, which it can justly be construed ever to have made, arid will fulfil every expectation which it knowingly allowed to be clierislied. III. The trustees of the Assembly are hereby authorised and requested to do on the part of this Assembly, should occasion offer, whatever is lawful, competent and equitable in the premises, conformable to tlie priiiciples and in the manner heretofore laid down* in the minutes of this Assenib y for 1837 and 1838, so far iis relates to the corporate property of the diurch, or any equities springing- out of the same. IV. With reference to all institutions, corporations, congregations, and other public persons or bodies in coiuiexion with us, but holding- properly for ecclesias- * An act was adopted by the Assembly in Ranstead Court, May 30th, ISJi! directing that minorities of presbyteries, sessions, and chui-ches should be consi- dered as the true presbyteries, in cases when the majority " decline or fail to adhere to the Presbyterian Church on the basis of the Assemblies of 1837 and 1838." Tlie following clause of sec. 5 of that act is all that 1 find in the minutes of that bodv to which allusion can be made, in these resolutions, subsequent to tiie excindin"'- re- solutions of 1837 ; — "In regard to the temporal interests of the churches, and tlie difficulties w.'iich may arise on their account, the Assembly advise tliat, on the one hand, great liberality and generosity should mark the whole conduct of our people, and espe- cially in cases where our majorities in the churches are very large, or our minori- ties are very small : while on the other hand, it would aclvise, that pruvideiui:J advantages, and important rights, ought not in any case to be lightly thiou a away."— [Ed.] 8 tical purposes or for religious and benevolent uses, which property is not subject to the control of the Assembly, althoug'h the said persons, institutions or congi-ega- tions may be — in all such cases where difficulties relating- to property have arisen or shall arise, in consequence of the long- and painful disorders and divisions in our church, we advise all our members and friends to act on the general principles heretofore laid down, and with the spirit of candour, forbearance, and equity which has dictated this act. V. The Assembly reiterates the declaration that its chief desire, on all this part of our church troubles, is to do even and ready justice to and between all persons and interests over which it has any contiol or in reg-ard to which it has any duty to perform. Having endeavoured faithfully to execute the task, reluctantly assumed at the earnest solicitation of others, and at an expense of time and a sacrifice of other interests, which, had they been antici- pated, would certainly have prevented the attempt, I might consider myself released from any further obligation respecting it. But I cannot readily dismiss the reflection, that in preparing these pages I have been occupied about controversies, the beihgerent contests of brethren, with whom I have been associated in the same branch of the church of the Prince of Peace, for about twenty years, and for more than fifteen years in the ministry of reconciliation, in the same church. With many of those now ranged in the one and the other of these "hostile bnnds," I have in former years "taken sweet counsel," as together we contemplated the mild but rich glo- ries of the gospel of peace, or concerted measures for extending its benign ministry among the poor and perishing. If any choose to call it weakness, I would not therefore wish to conceal the fact, that though not easily moved to tears, I have, more than once, wept over this painful scene of contention and strife. Compelled, in the revision of the several portions of the following work, to have the subjects, and the occasions of the strife passing under my notice, bow often have I most earnestly desired to reach the hearts of those thus ranged in hostility, with the expostulation, " Sirs, ye are brethren !" Whatever may be the present aspect of the controversy, what- ever its immediate results, whatever developments of the imperfec- tions of good men, it may occasion, or whatever unveiling of the deformities of bad men, in the church; JEHOVAH will ultimately vindicate the cause of truth and righteousness. Thai is his cause. Those who are sincerely and intelligently associated with that cause, devoted to its interests, consecrated to its advancement; they shall ultimately triumph. That all, who, from any motive, shall look into these pages, may be led to "pray for the peace of Jeru- salem," and may "prosper" with those "that love her," is the sin- cere prayer of their servant for Christ's sake, D. W. LATHROP. THE CASE OF " THE GENERAL ASSEMBLY OF THE PRESBYTERL\N CHURCH IN THE UNITED STATES OF AMERICA," BEFORE THE SUPREME COURT OF THE COMMONWEALTH OF PENNSYLVANIA. QUO WARRANTO. COUNSEL. For the Relators, JOSTAH RANDALL, '? f p,-, ^ , , ■ i? • WM. M. MEREDITH, ^ of I'hilade/phia, Esquires. GEORGE WOOD, ofNeiu York, Esquirt. For tht Respondents, F. W. HUBBELL, ") JOSEPH R. mGERSOLUiofFhiladelphia, Esquires. JOHN SERGEANT, 3 WM. C. PRESTON, of South Carolina, Esquire. The Commonwealth at the suggestion"^ of Jamf.s Todd, John R. Neff, F. A. Raybold, Geoiibe W. M'Clelland, William Darling, and Thomas Fleming, y vs. AsHBEL Green, William LaTta, Thomas Bradford, Solomon Allen, and Cornelius C. Cuiler. J Of July Term, 1838. No. 60. IN THE SUPREME COURT OF PENNSYLVANL\, FOR THE EASTERN DISTRICT. City and County of Philadelphia, ss. James Todd, John R. Neff, Frederick A. Raybold, George W. M'Clelland, Wil- liam Darhng and Thomas Fleming, who sue for the Commonwealth in this behalf, come here into the Supreme Court for the Eastern District of Pennsylvania, and for the said Commonwealth give the court here to understand and be informed, that Ashbel Green, William Latta, Thomas Bradford, Solomon Allen and Cornelius C. Cuyler, all of the city and county of Philadelphia, since the tv/enty-fourth day of May, in the year of our Lord one thousand eight hundred and thirty-eight, have exercised and do still exercise the franchises and privileges of corporators, within the said city and county, without lawful authority, namely, the franchises and pri- vileges of trustees of a certain corporation, called and known by the name of Trustees of the General Assembly of the Presbyterian church in the United States of America: That on the day and year last aforesaid, the above named J.ames Todd, John R. Neff, Frederick A. Raybold, George W. M'Clelland, William Darling and Thomas Fleming, were in due and regular form of law, elected trustees of the said 2 14 corporation, by the General Assembly of the Presbyterian Church in the United States of America, agreeably to the provisions of an act of assembly, passed on the twenty-eighth day of March, in the year of our Lord one thousand seven hundred and ninety-nine, entitled, " An act for incorporating the trustees of the Ministers and Elders constituting the General Assembly of the Presbyterian Church in the United States of America," but, notwithstanding the said election, they the said Ashbel Green, William Latta, Thomas Bradford, Solomon Allen and Cornehus C. Cuyler, have for the time aforesaid used, and still do use the franchises, offices, privileges and liberties aforesaid, and during the said time have usurped and do usurp upon the Commonwealth therein, to the great damage and prejudice of the constitution and laws thereof. Whereupon the said relators for the said Common- wealth, do make suggestion and complaint of the premises, and pray due process of law against the said Ashbel Green, William Latta, Thomas Bradford, Solomon Allen and Cornelius C. Cuyler, in this behalf to be made, to answer to the said Commonwealth by what warrant they claim to have, use and enjoy the franchises and privileges aforesaid. 29th May, 1838. .T. Randall, W. M. Mekedith, For the Relators. City of Philadelphia, ss. Frederick A. Raybold, of the city of Philadelphia, being duly affirmed, says, that the facts set forth and contained in the foregoing suggestion are true to the best of his knowledge, judgment, information and belief. F. A. Raybold. Affirmed and subscribed this 29th May, 1838, before me, PjiTER Hat, Alderman. Writ of quo warranto allowed on special cause shown the 31st May, 1838, be- ing returnable 1st Monday in July next. John B. Gibson. Filed June 2, 1838. Exit. June 2, 1838. Commonwealth of Pennsylvania, Eastern District, ss. The Commonwealth of Pennsylvania, to the Sheriff of Philadelphia county, greeting: We command jou that you summon Ashbel Green, William Latta, Thomas Bradford, Solomon Allen and Cornelius C. Cuyler, so that they be and appear before our Supreme Court of the Commonwealth, for the Eastern District thereof, to be holden at Philadelphia, on the first Monday of July, A. D. 1838, and then and there to show by what authority they claim to exercise the office of trus- tees of a certain c(,rporation, called and known by the name of Trustees of the General Assembly of the Presbyterian Church in the United States of America, iu the county of Philadelphia, or to show by what authority they exercise within the said county, the liberties and franchises following to wit : " That since the 24th day of May, A. D. 1838, have exercised and still do exercise the franchises and privileges of corporators within the said city and county of Philadelphia, without lawful au- thoi'ity, namely, the franchises and privileges of trustees of a certain corporation, called and known by the name of the Trustees of the General Assembly of the Presbyterian Church of the United States of America, and have you then there this writ. j- j_ g 1 Witness the honourable John B. Gibson, Chief Justice of the said '■'■■' Court, at Philadelphia, second day of June, A. D. 1838. Joseph Smith, Prothonotary. Endorsed. Served by leaving a copy of the within writ at the residence of Ashbel Green and Thomas Bradford, in the presence of an adult member of his family, on the 22d day of June, 1838. Served by giving Solomon Allen and Cornelius C. Cuyler, defendants, notice of 15 the contents of the writ, and by giving them a true and attested copy thereof, on the 22d day of June, 1838. So answers, Amos Phtllips, D. S. Jno. G. Watmough, Sheriff. The Commonwealth at the suggestion"^ of James Todd, and al. | vs. [ Supreme Court, Ashbel Green, William Latta, Thomas f Bradford, Solomon Allen and Cor- j July 1838, No. 60. nelius C. Cuyler. J Enter my appearance for the defendants, de bene esse, with reservation of all objections, because of the writ being returnable on a day in vacation. J. K. Kane, for defendants. Philada. 3d July, 1838. To the Prothonotary, S. C. E. D. ^n°"!!^- ^"^^''^^ 1 Supreme Court, Todd and al. V- ^ ^*- , f July, 1838. No. 60. Green and al. J ■' Enter rule on defendants to plead in four weeks or judgment. 3d July, 1838. P, S. C. Meredith, for Com. Filed July 3d, 1838. Plea of Ashbel Green. In the Supreme Court of the Commonwealth of Pennsylvania, for the Eastern Dis- trict, of the term of July, 1838. No. 60. And now, this thirty-first day of July, in the year of our Lord one thousand eight hundred and thirty-eight, comes the said Ashbel Green, by John K. Kane, his attorney; and protesting that the suggestion filed in this case, is altogether in- sufficient in law, and that he need not, according to the law of the land, to make answer thereunto ; nevertheless, for a plea in this behalf he saith, that the said commonwealtii ought not to implead him by reason of the premises in the said suggestion set forth, because he saith, that by the first section of an act of assembly of this commonwealth, passed the twenty-eighth day of March, A. D. 1799, enti- tled An act for incorporating the trustees of tlie ministers and elders constituting the General Assembly of the Presbyterian Church in the United States of America, this defendant and certain other citizens of this commonwealth, were made, de- clared and constituted a corporation and body politic and corporate in law and in fact to have continuance for ever, by the name style and title of Trustees of the General Assembly of the Presbyterian Church in the United States of America; by force of which said act of assembly, lie saith that he became lawfully authorized and entitled to exercise with his associates, in that behalf lawfully constituted, the office of one of the trustees of the General Assembly of the Presbyterian Church in the United States of America, and the franchises, liberties and privileges there- unto belonging and appertaining, within the city and county of Philadelphia. And he further in fact saith, that he did thereupon accept and take upon himself the said office, and that he liath ever since, and as well after as before the twenty-fourth day of May, A. D. 1838, exercised and continued to exercise the same in the city and county of Philadelphia, by virtue of the said act of assembly of this commonwealth ; all which he is ready to verify, without this, that on the twenty-fourth day of May, A. D. 1838, or at any other time before or since, the relators or any of them were in due and regular form of law elected ti'ustees of the General Assembly of the Presbyterian Church in the United States of America, as they have suggested to this honourable Court. And without this, that by reason of any matter or thing whatsoever, the said office of this defendant and his right to have, exercise and enjoy the same, together with the liberties, franchises and privileges thereunto be- 16 longine: and appertaining', have been in any wise vacated, detemiined or abridged. V/lierefore, this defendant prays judgment, and that the office, liberties, franchises and privileges, by him herein claimed as aforesaid, may be adjudged and allowed to Jiim, and that he may be dismissed and discharged by the court here, of and from the premises above charged upon him, &c. J. K. Kane, Altorneij for defendant . Filed July 31, 1838, Plea of Thomas Bradford. In the Supreme Court of the Commonwealth of Pennsylvania, for the Eastern Dis- trict, of the term of July, A. D. 1838. No. 60. And now, tliis thirty-first day of July, in the year of our Lord, one thousand eight hundred and tiiirty-eigiit, the said Thomas Bradford, one of the above named defendants, in liis proper person, comes and protesting that tlie suggestion filed in this case, is altogether insufficient in law, and that he need not, according to the laws of the Lind, to make answer thereto ; nevertheless, for a plea in this behalf he saith, that the commonwealth ought not to implead him, by reason of the premises in the said suggestion set forth, because he saitli, that on tlie twenty-seventh day of May, A. D. 1822, the General Assembly of the Presbyterian Church in the United States of America, then holding its session in the State of Pennsylvania, to wit, in the city of Philadelphia, did, according to the provisions of an act of Assembly of this Commonwealth, passed the twenty-eighth day of March, A. D. 1799, entitled *' An act for incorporating the Trustees of the Ministers and Elders constituting the General Assembly of the Presbyterian Church in the United States of Ame- rica," in due and regular form of law, elect, constitute and appoint him the defen- dant, to be one of tlie trustees of the General Assembly of the Presbyterian Church of the United States of America, by force of which election and appoint- ment so made as aforesaid, lie saith that he became lawfully authorized and entitled to take upon himself, and with his associates in that behalf lawfully constituted, to exercise and enjoy the office of one of the trustees of the General Assembly of the Presbyterian Church in the United States of America, and the franchises, liberties and privileges thereunto belonging and appertaining within the city and county of Philadelphia. And he further in fact sailii, that he did thereupon accept and take upon himself the said office, and th.at he hath ever since, and as well after as before the twenty-fourth da}' of May, A. D. 1838, exercised and continued to exercise the same in the city and county of Philadelphia, by virtue of the authority so to him granted by the said election and appointment, and by virtue of the said act of as- sembly of this commonwealth, all which he is ready to verify. Without this, that on the twenty -fourth day of May, A. D. 1838, or at any other time, before or since the said relators or any of them were in due and regular form of law elected trus- tees of the General Assembly of the Presbyterian Church in the United States of America, as they have suggested to this honourable Court ; and without this, that by reason of any matter or thing whatsoever, the said office of him, this defendant, and his right to have, exercise and enjoy the same, together with the franchises, liberties and privileges thereunto belonging and appertaining, have been in any wise vacated, determined or abridged. AVherefore this defendant prays judgment, and that the office, francliises, liberties and privileges by him herein claimed as aforesaid, may be adjudged and allowed to him, and tiiat he may be dismissed and discharged by the Court here, of and from the premises above cliarged upon him, &c. Thomas Brabford. Filed July 31, 1838. Replication to the Plea of Ashbel Green. Com. ex, rel. 1 o _ /-. .. Todd, and al. i Supreme Court, ; Green and al. J July, 1838. No. 60, And the said relators, who prosecute for the Commonwealth in this behalf, hav- ing heard the plea of the said Ashbel Green, in manner and form aforesaid, above pleaded in bar to the said suggestion for the said Commonwealth, say, that by any 17 thing in that plea alleged, tlie said Commonwealth ought not to be barred fi-om having the said sugg-estion against the said Ashbel, because protesting that the said plea and. the matters therein contained, are not sufHcient in law to bar the said Common- wealth from having the aforesaid suggestion against the said Ashbel, to which said plea in manner and form above pleaded, tiie said relators are under no necessity, nor any ways obliged by tlie law of the land to answer; for replication, neverthe- less, the said relators say, that by the said act of Assembly of this Commonwealth, in the said plea above mentioned and referred to, it was among other things enact- ed, that the said Ashbel Green and seventeen other persons in the said act named, and their successors duly elected and appointed in manner as is thereinafter directed, should be, and they were thereby made, declared and constituted a cor- poration and body politic and corporate in law and in fact, to iiave continuance for ever, by the name, style and title of Trustees of the General Assembly of the Pres- byterian Church in the United States of America, and that the said corporation and their successors, by the name, style and title aforesaid, should be able and ca- pable in law, all and every matter and thing to do in as full and effectual a man- ner as any other person, bodies politic or corporate, within this commonwealth might or could do, and that the said corporation should not at any time consist of more than eighteen persons, whereof the said General Assembly, might at their discretion, as often as they should iiold their sessions in the state of Pennsylvania, change one-third in such manner as to the said General Assembly should seem proper, which said act of assembly, the persons named therein, afterwards, to wit, on the said twenty-eightli day of March, in the year one thousand seven hundred and ninety-nine accepted, to wit, at the city and county aforesaid. And the said relators in fact say, that on the seventeenth day of May, in the year one thousand eight hundred and tiiirty-eight, the said General Assembly commenced and held a session at the city of Philadelphia, in the state of Pennsylvania, to wit, at the city and county aforesaid, and thenceforth continued to hold the same there for a long space of time, and that during the last mentioned session thereof, to wit, on the twenty-fourth day of May, in the j'ear last aforesaid, the said General Assembly in pursuance of the provisions of the said act of assembly, and in the due and lawful ex- ercise of the power and authority thereby conferred upon them, to change the said trustees as therein mentioned, chose the said James Todd to be one of the trustees of the General Assembly of the Presbyterian Church in the United States of Ame- rica, in the place of the said Aslibel Green, and lie the said James Todd was thereby then and there in due manner elected and appointed one of the said trustees as aforesaid, in the place of the said Ashbel Green, and the said James Todd then and there accepted ^ik1 took upon himself the said office, and the said General Assem- bly thereby then and there amoved, disfrancliised and discharged the said Ashbel Green, of and from the office of one of the trustees of the General Assembly of the Presbyterian Church in the United States of America, and of and from the fran- chises, liberties and privileges thereunto belonging* and appertaining; all and singular which said matters and things the said relators are ready to verify and prove as the court shall award: wherefore they pray judgment, and that the said Ashbel may be convicted of the premises above charged upon him, and that he may be ousted and altogether excluded from the said office of one of the trustees of the General As- sembly of the Presbyterian Church in the United States of America, so by him claimed in manner aforesaid, &c. J. Ra^'dall, Mehedith, For Relators. Filed October 10th, 183S. ' Comm. ex rel. "^ „ r^ ,. Todd and al. J^ Supreme Court, Green and al. J J" ^^SS. No. 60. Enter rule on defendants Green, Cuyler, Allen and Bradford, to rejoin in four weeks, or judgment, sec. reg. W. M. Meredith, For Relators. 10th Oct. 1838. To P. S, C. 2* IS Replication to the Plea of Thomas Bradford. Comm. ex rel, 1 c- ^ ^ Todd and al. j^ Supreme Court, „ ""■ ,' I J. 1838. No. 69. Green and al. J And the said relators who prosecute for the Commonwealth in tills behalf having' heard the plea of the said Thomas Bradford, in manner and form aforesaid above pleaded in bar to the said suggestion for the said Commonwealth say, that by any thing in that plea alleged, the said Commonwealth ought not to be barred from hav- ing the said suggestion against the said Thomas Bradford, because protesting that the said plea and tlie matters therein contained are not sufficient in law to bar the said Commonwealth from having the afoi-esaid suggestion against the said Thomas Bradford, to which said plea in manner and form above pleaded, the said relators are under no necessity, nor any ways obliged by the law of the land to answer ; for replication, nevertheless, the said relators say, that by the said act of assembly of this Commonwealth, in the said plea above mentioned and referred to, it was among other things enacted that Ashbel Green and seventeen otlier ])ersons named in the said act, and their successors duly elected and appointed in manner as is thereinaf^ ter directed, should be and they are thereby made, declared and constituted a corporation and body politic and corporate in law and in fact, to have continuance for ever, by the name, style and title of Trustees of the General Assembly of the Presbyterian Church in the United States of America, and that the said corpora- tion and their successors, by the name, style and title aforesaid, sliould be able and capable in law, all and every matter and thing to do in as full and effectual a man- ner as any other person, bodies politic or corporate within this commonwealth, might or could do, and that the said corporation .should not at any time consist of more than eighteen persons, whereof the said General Assembly might at their discretion, as often as they should hold their sessions in the state of Pennsylvania, change one-third in such manner as to the said General Assembly should seem pi'oper, which said act of assembly, the persons therein named, afterwards, to wit, on the said twenty-eighth day of March, in the year one thousand seven hundred and ninety-nine, accepted, to wit, at the city and county aforesaid. And the said relators in fact say, that afterwards, to wit, on the seventeenth day of May, in tlie year one thousand eight hundred and thirty -eight, the said General Assembly com- menced and held a session at the city of Philadelphia, in the state of Pennsylvania, to wit, at the city and county aforesaid, and thenceforth continued to hold the same there for a long space of time, and that during the said last mentioned session thereof, to wit, on the twenty-fourtii day of May, in the year last aforesaid, the said General Assembly in pursuance of the provisions of the said act of assembly, and in the due and lawi'ul exeixise of tlie power and authority thereby conferred upon them to change the said trustees as therein mentioned, elected and appointed the said George W. M'Clelland to be one of the trustees of the General Assembly of the Presbyterian Church in the United States of America, in the place of the said Thomas Bradford, and he the said George W. M'Clelland was thereby then and there in due manner elected and appointed one of the said trustees as aforesaid, in the place of the said Thomas Bradford, and the said George W. M'Clelland, then and there accepted and took upon himself the said office, and the said General Assembly thereby then and there amoved, disfranchised and discharged the said Thomas Bradford of and from the office of one of the trustees of the General As- sembly of the Presbyterian Church in the United States of America, and of and from the franchises, liberties and privileges thereunto belonging and appertaining; all and singular which said matters and things the said relators are ready to verity and prove as the court shall award. Wherefore they pray judgment, and that the said Thomas Bradford may be convicted of the premises above ciiarged upon him, and that he may be ousted and altogether excluded from the said office of one of the trustees of the General Assembly of the Presbyterian Church in the United States of America, so by him claimed in manner aforesaid, &c. J. Randall, Meredith, For the Relators. Filed October 10, 1838. 19 Green et al. ats. » Commonwealth ex relatione Todd, et al. And the said Aslibel Green, protestuig- that the said plea of^^V'^IA'PdJltijrs, &c., in manner and form aforesaid, made and pleaded in reply, and the matters therein contained, are not sufficient in law, &c., and that he need not, nor is he obliged by the law of the land to answer thereto, yet the said Ashbel Green, for a rejoinder to the replication of the said relators, saith, that the General Assembly of the Presby- terian church, in the United States of America, did not choose the said James Totld to be one of the trustees of the General Assembly of the Presbyterian Church, in the United States of America, in the place of the said Ashbel Green, nor was the said James Todd in due manner elected and appointed one of the trustees as afore- said, in the place of the said Ashbel Green, nor did the said General Assembly amove, disfranchise and discharge the said Ashbel Green, of and from the office of one of the trustees of the Genei-al Assembly of tlie Presbyterian Churcii, in the United States of America, nor of and from the franchises, liberties and privileges thereunto belonging and appertaining, in manner and form as the said relators have in their said replication alleged, and of this, he the said Ashbel Green puts himself upon the country, wherefore this defendant prays judgment, &.c. F. W. Hub BELL. Filed November 7, 1838. Green, et. al. ^ ats. I Commonwealth, }- ex relatione | Todd, et al. J And the said Thomas Bradford protesting that the said plea of the said relators, &c., in manner and form aforesaid, made and pleaded in reply, and the matters therein contained are not sufficient in law. Sec, and that he need not, nor is he obliged by the law of the land to answer thereto, yet the said Thomas Bradford, for a rejoinder to the replication of the said relators saith, that the General Assem- bly of the Presbyterian Church, in the United States of America, did not elect and appoint the said Georg-e W. M'Clelland to be one of the trustees of the General Assembly of the Presbyterian Church in the United States of America, in the place of the said Thomas Bradford, nor was the said George W. M'Clellancl in due man- ner elected and appointed one of the said trustees as aforesaid, in the place of the said Thomas Bradfoi'd, nor did the said General Assembly amove, disfranchise and discharge the said Tliomas Bradford of and from the office of one of the trustees of the General Assembly of the Presbyterian Church, in the United States of America, nor of and from the franchises, liberties and privileges thereunto belonging and appertaining in manner and form as the said relators have in their said replication alleged, and of tiiis, he the said Thomas Bradford puts himself on the country, &c., wherefore the said defendant, Thomas Bradford, prays judgment, ike. F. \V. HUBBELL. Filed November 7, 1838. Comm. ex. rel. "\ S. C. J. 1838. Todd & al. J > No. 60. Ashbel Green & al. J Quo warranto. Enter the similiter on the several rejoinders of Ashbel Green, Thomas Bradford, Solomon Allen and Cornelius C. Cuyler, and set the issues down for trial. J. Randall, W. M. Meredxth, To P. S. C. for Relators. 7th November, 1838. Similiter and issues, filed Nov. 7th, 1838. 20 This cause was tried at the December Term, Seco\d Period, before Hon. Molton C. Rogers, at Nisi Prius, and a special Jury. It commenced on Monday, March 4, A. D. 1839, and occupied twenty days being; committed to the Jury, and their verdict ren- dered, on Tuesday the 26th of the same month. The Jurors empanelled were: Charles Barrington, William S. Greiner, Charles Wagner, Miller N. Everly, James Simpson, R. C. Dickinson, Lewis Quandale, John Burks, George Mecke, S. Baker, Isaac Jeanes, Edward R. Myers. Tuesday morning, March 5th. The jury having been charged to inquire of the matters of fact contested, Mr. Randall, for the relators, opened the case as follows: May it please your Honour — Gentlemen of the Jury: This action is brought in the name of the Commonwealth of Pennsylvania, but it is not to be considered in the light of a criminal proceeding. It does not involve any question as to the moral character of the de- fendants. The suit, though nominally a prosecution by the Com- monwealth, is only a method which the law has prescribed, to de- termine the rights of individuals. The object of the writ Quo War- ranto in this case is to try whether certain persons, viz. Dr. Ashbel Green, Thomas Bradford, Esq., Solomon Allen, Esq., and Dr. Cor- nelius C. Cuyler were, on the 24th day of May, A. D. 1838, trustees, a body incorporated by the Legislature of Pennsylvania, as " The Trustees of the General Assembly of the Presbyterian Church in the United States of America." In order to understand this case, it will be necessary to recur to a portion of the history of the Pres- byterian Church. The first presbytery formed in the United States was the Pres- bytery of Philadelphia. In the year 1758, there existed two sy- nods, the Synod of New York and the Synod of Philadelphia; in that year they united, forming an ecclesiastical body, called the Synod of New York and Philadelphia. This organization continued until the year 1788, when, in the place of this general synod, was instituted what was termed the General Assembly of the Presbyte- rian Church in the United States of America, the first meeting of which was held in the city of Philadelphia, on the third Thursday of May, 1789. On the 28th day of March, 1799, the Legislature of Pennsylvania passed an act incorporating certain persons therein mentioned, under the name of "The Trustees of the General As- sembly of the Presbyterian Church in the United States of America." The sixth section of this act is as follows: "That the said corporation shall not, at any time, consist of more than eighteen members; whereof, the said General Assembly may, at their discretion, as often as they shall hold their sessions in the State of Peiiasylvania, change one-third, in such manner as to the 21 said General Assembly shall seem proper: And the corporation aforesaid shall have power and authority, to manage and dispose of all moneys, goods, chattels, lands, tenements, and hereditaments, and other estate whatsoever committed to their care and trust, by the said General Assembly; but in cases where special instructions for the management and disposal thereof, shall be given by the said General Assembly in writing, under the hand of their clerk, it shall be the duty of the said corporation, to act according to such in- structions: Provided, said instructions shall not be repugnant to the constitution and laws of the United States, or to the constitution and laws of this Commonwealth, or to the provisions and restric- tions in this act contained." The lowest court of judicatory known to the Presbyterian Church is the session. This primary ecclesiastical body consists of the pastor, or pastors, and the ruling elders of a particular congre- gation, such elders being chosen from among the male members of the church, and holding their office for life. The next court is the presbytery, which consists of all the ministers, and one ruling elder from each congregation, within a certain district; at least three ministers, however, and as many elders as are present being neces- sary to constitute the body. The next superior judicatory is the synod, which includes a number of presbyteries, at least three, and is composed of all the ministers, and of representative elders, one from each church within its bounds. The highest tribunal is the General Assembly, which is entirely a representative body, con- sisting of ministers and elders delegated from the various presby- teries. The representation of each being in proportion to the num- ber of its constituent number of ministers within its bounds, each presbytery being entitled to one minister and one elder, and to two additionaf commissioners when the number of ministers exceeds twenty-four, and so in proportion for each successive twenty-four ministers, to two additional commissioners of like character. The synods, as such, have no representation in the General Assembly; they are courts superior to the presbyteries in certain points, as in the right of trying appeals from the latter, yet they are passed by in the organization of the Assembly, which is composed of the im- mediate representatives of the presbyteries. In the year 1803, the Synod of Albany was created, by a union of the Presbyteries of Oneida, Albany and Columbia: and in 1812 this synod was divided into the two Synods of Albany and Geneva, the latter comprising within its bounds the Presbyteries of Onon- daga, Cayuga and Geneva. The Synod of Geneva thus formed, was itself divided in the year 1821, the Presbyteries of Niagara, Genessee, Rochester and Ontario, then component parts of that body, being erected into a separate synod called the Synod of Genessee. In the year 1825 the Synod of Pittsburgh was divided and the Presbyteries of Grand River, Portage and Huron were constituted the Synod of the Western Reserve. In 1829, the Synod of Albany was a second time divided, and the Presbyteries of Ogdensburg, Watertown, Oswego, Oneida and Otsego, separated therefrom, were constituted a new synod, called the Synod of Utica. 22 We have thus traced the formation of the Synods of Utica, Ge- neva, Genessee and Western Reserve — the four synods to which, in the progress of this cause, your attention will be particularly di- rected. The presbyteries constituting these synods, continued to act under the General Assembly for many years; they were always recognized as parts of the Presbyterian Church, they were repre- sented in the General Assembly, the officers of that body being sometimes chosen from their members, and funds being collected among them, were paid into the common treasury. Thus matters continued until differences of opinion crept into the church, which, however, it was at first hoped would not destroy its unity or its peace. But they increased — two conflicting parties divided the General Assembly, and the terms Old and New School began to be applied respectively to them; which terms we shall employ for the purpose of description, without, however, intending to admit that those whom we represent have in any respect departed from the original Presbyterian faith. For some years these two parties continued nearly equal. In 1831, 2, 3 and 4, our Old School brethren, for as brethren we still regard them, were a minority in the General Assembly. In 1835, they had a majority; in 1836, the New School were again a ma- jority. This led to the adoption of a project by the Old School party, to separate from their brethren with whom they could not accord; and in May, 1837, a meeting of that party was held in Philadelphia, for deliberation on this project, and all the preliminary arrangements were made by the Old School party for a voluntary separation or secession. But in the Assembly of that year, they unexpectedly found themselves a majority, and this state of things changed their whole plan of action. At the meeting of the Assem- bly, a proposal of separation was made by the Old School, on their own terms, securing to them the name and succession; and to force a compliance with this proposal, the purpose of cutting ofi'from the church a sufficient number of their opponents, to place themselves in a decided majority, was held out as a punishment to be inflicted on the New School, if they would not consent to the proposed separation. The New School party were willing to entertain the proposal, and to enter into a negotiation on the subject; and the terms which they offered are in our opinion most equitable, but they were refused, and the plan of excision resolved upon. The Old School were determined to secure a future majority in the General Assembly. Their partisans were told plainly by the gentleman who was their master spirit in all these movements, that unless they improved the opportunity then offered, it might never again occur. Accordingly, they proceeded to the work of des- truction, and cut off from the church the four synods above named — Utica, Geneva, Genessee and Western Reserve; by this act, cast- ing out from their communion five hundred and nine ministers, five hundred and ninety-nine churches, and fifty-seven thousand seven hundred and twenty-four communicants. In several cases, reverend fathers of the church, who had reached the patriarchal limit of three-score and ten, were excluded; and this by a body, of 23 which the chief actors had been but a few years in the church. Dark as are the pages of ecclesiastical history, itfurnishes no parallel to these proceedings. Perhaps there is no part of the Presbyterian form of church go- vernment more wisely and carefully guarded, than that which pro- vides for cutting oft" or expelling a member. For every such case a plan of proceeding is circumstantially prescribed. There must always be an accusation of crime, witnesses and proof; and above all, a regular trial, giving a full opportunity to the party accused to face his accuser, if there be one, and to speak in his own defence. To exhibit fully to you, gentlemen, the care with which this right is guarded, I will advert to the Form of Government and Discip- line adopted by the Presbyterian Church, for the rules in relation to this matter. Chapter fourth, of the Book of Discipline, is devoted to the subject of Actual Process. Some of its provisions I will read. [Mr. Randall then read different parts of the chapter referred to, as also of the succeeding one, which prescribes the form of "Pro- cess against a Bishop or Minister," to show how precise and strict were the rules on this point. They will be found in full in a subsequent part of this report. They provide for two modes in which an offence may be brought before a judicatory — by an in- dividual appearing as accuser, or by common fame; enjoin great caution in receiving accusations from malicious, interested and otherwise improper persons; require a copy of the charge, with the names of the witnesses to be given to the accused, and notice to all parties concerned; that the trial shall be put oft' until the meet- ing of the judicatory next succeeding that at which the accusation is preferred; that the charge shall be made with all possible pre- cision as to time, place and circumstances; and that the trial shall be fair and impartial, the witnesses being examined in the presence of the accused, who are permitted to question them; and prescribe the manner and degree of punishment to be inflicted, whether ad- monition, rebuke, or exclusion. Process against a Gospel minister is required always to be entered before the Presbytery of which he is a member.] These are the provisions of the Book of Discipline; but widely different were the proceedings in the case before us ! There was no accuser, no accusation. Notice was not given to the parties thus disciplined. In fact, the first information carried to the o-reat mass of Presbyterians who inhabit the proscribed districts was, that they had been cutoff", excluded from the communion of their church. Even the names of the individuals who moved and seconded one of the excinding resolutions are not recorded in the published minutes of the Assembly. The ground for these proceedings of excision, upon which the Old School party rely, is the unconstitutionality of a certain Plan of Union, entered into in the year 1801, between the General As- sembly of the Presbyterian Church, and the General Association of the State of Connecticut ; a plan, by which, as they contend, Congregationalists have been received into the Presbyterian com- munion, and under the aid of which, they allege the four excinded 24 synods to have been formed. But we shall show you that this was only a plan of fellowship, of the same character as that adopted with the General Association of New Hampshire, Ver- mont, Massachusetts, the Associate Reformed Church and Dutch Reformed Church, both before and after the Plan of Union in 1801, and that not a single elder, minister, church, or presbytery has been, or ever could be admitted under its operation. By its terms it can have no operation on a minister until he shall have been previously ordained as a Presbyterian minister. The Plan of Union authorized Presbyterian ministers to preach to a Congregational church, and in case of dispute between the pastor and his people, authorized a voluntary tribunal to adjust it by arbi- trament. But it could in no manner afiect or operate upon the admission of a minister or church into the presbytery, synod or General Assembly; the two subjects had no connexion. Under the plan a small proportion of ministers were settled over Congrega- tional churches; that number has been, and is, yearly diminishing, and in the three excinded synods of New York is now almost ex- tinct. Thus, gentlemen, you will perceive, that the General As- sembly in 1801, authorize Presbyterian ministers to preach to Congregational churches, and in 1837 expel them for obeying their own resolution, and to increase the unequalled obliquity of the act, they excind every minister, communicant or church, that re- spectively may live or be located within the bounds of the synod, where a Presbyterian minister has, in obedience to their own au- thority, preached to a Congregational church. We shall further exhibit, gentlemen, the unjust effect of the ex- cinding acts. The synods have local bounds. Accordingly, there- fore, by these resolutions, it becomes a crime for a Presbyterian to live within the proscribed districts. The mere circumstance of residence makes an individual, or ecclesiastical body, heretical or otherwise. While a minister, who had entered into the communion of the church, and received his ordination within the bounds of one of those synods, but who has removed to some other district, before the excision, remains in good standing, another, ordained by a body still acknowledged as strictly Presbyterian, has by entering the infected region, lost the right of fellowship, and is excinded. The practical operation of these excinding resolutions is the local desecration of a whole region of country, about two thirds of the state of New York, and a portion of the state of Ohio. It was purely local, or geographical, and had the Rev. gentleman now before us, {Df. Green,) removed before 1837 to any part of this expatriated country, he would have been cut off among the rest. The General Assembly of 1837 did not, with any consistency, carry out its plan of operation, into every case to which it was legitimately applicable. At one blow these four synods were ex- cluded, while other bodies, equally obnoxious to the charges brought against them, were not touched, and still remain in full commu- nion. The Synods of South Carolina and Georgia should have been excinded, if the Old School party had wished to be consistent and impartial. The Synods of Pittsburgh and New Jersey equally 25 deserved the same fate. And the parent Synod of Albany was suffered to escape, although obnoxious to the very charges under which its offspring was cut off. The case of the Synod of the Western Reserve is still more extraordinary. It was erected out of the Synod of Pittsburgh, and formerly included what is now the Synod of Michigan. In the course of time the Synod of Michigan was created, and while the Synod of the Western Re- serve was cut off, those of Pittsburgh and Michigan were left un- touched. The Assembly first abrogated the Plan of Union, and then declared that this plan having been unconstitutional and void from the beginning, no rights had ever been acquired by it ; and therefore that the four synods, which were alleged to have been formed under its operation, had never been parts of the Presbyte- rian church. Yet the same consequences were not visited on other synods, standing in precisely the same situation. If any circum- stance were wanting to render this proceeding more unjust, it was, that the General Assembly had, in 1835, repealed prospectively the Plan of Union of 1801, reserving intermediate rights acquired under it. Thus far the work of excision was complete ; but it was neces- sary to extend the operation of the act into the Assembly of 1838, in order to make it of any avail. It is the duty of the clerks of that body, who continue in office from year to year, during the pleasure of the Assembly — as a Committee of Commissions, to ex- amine the commissions of the members, and report at the opening of the session, those duly elected. They are, in this matter, but ministerial, or executive officers, bound to act according to the constitution and laws of the church. It was feared that the clerks of 1837, in assisting in the organization of the next General As- sembly, might refuse to acknowledge the legality of the resolutions of that year, excluding a part of the constituency of the Assem- bly, and might receive the commissions of delegates coming from within the bounds of the excinded synods. A pledge was therefore required from these clerks, that they would carry out the illegal acts of 1S37, in the new organization of 1838. But no minute of this proceeding — of this pledge demanded and given, is to be found upon the published minutes of the Assembly of 1837. At the time appointed in 1838, commissioners from the various presbyteries in the United States, including those coming from the four excinded synods, met as usual, in this city. The latter, with the rest, presented their commissions to the Stated and Permanent Clerks, and demanded that their names should be enrolled. But these officers had already been pledged to a course forbidding the reception of these commissions ; and they accordingly refused. Next, all the commissioners met together in the Seventh Presby- terian Church — the place appointed for the meeting of the Assembly of 1838. It was the duty of Dr. Elliott, the moderator of the last year, to preach a sermon at the opening of this Assembly, and preside during its organization, until the election of a new mode- rator. After the customary religious services, he accordingly took the chair. When the body was about to be organized, Dr. Patlon, 3 26 a commissioner from the Third Presbytery of New York, rose> stating that he wished to offer certain resolutions, which he held in his hand. The Moderator declared him out of order. Dr. Patton appealed from his decision, and the Moderator declared the appeal also out of order, and refused to put the question upon it to the house, saying that the first business in order was the report of the clerks upon the roll. Dr. Patton then took his seat, and the clerks proceeded with their report. This being concluded, the Moderator announced, that if there were any commissioners present whose names had not been enrolled, that was the time for them to present their commissions. Upon this call. Dr. Mason, also a delegate from the Third Presbytery of New York, rose, and holding in his hand the commissions from the excinded synods, tendered them to the moderator, informing him that they had been presented to the clerks, and by them refused, and moved that the roll should be completed by the addition of the names contained in these commissions. The Moderator declared this motion also out of order, though it was in answer to his own call, and though the report upon the roll had then been concluded. Dr. Mason respectfully appealed from the decision: his appeal was seconded; but the Moderator, as before, declared it out of order, and declined putting the question to the house, that it might judge of the correctness of his decision. Under these circumstances. Dr. M'Dowell, and Mr. Krebs, acting as the Committee of Commissions, having violated their duty, and Dr. Elliott, as Moderator, having upheld them in their illegal course, and created himself an autocrat — I use the term without intending any personal disrespect — exercising the illimitable power of deter- mining every question, and every right, without admitting any appeal from his decision to the house, of which they all were but ministerial officers, it became absolutely necessary to depose these officers, in order to secure a constitutional organization of the As- sembly. Accordingly, at this period, the Rev. John P. Cleveland, a commissioner from the Presbytery of Detroit, rose, and stated the difficulty that had occurred, and the necessity that a constitu- tional organizaiion should be then and there effected, moved that Dr. Beman, of the Presbytery of Troy, should be temporary Mo- derator, and put the question to all the commissioners present. The motion was almost unanimously carried — there being, however, a few votes in the negative. The Assembly thus constituted, Dr. Fisher was chosen Moderator, and Dr. E. Mason and the Rev. E. W. Gilbert were chosen Clerks, and then adjourned to the First Pres- byterian church of this city, where it sat in the regular discharge of its ordinary duties, for nearly two weeks. We shall contend that the original excision of the four Western Synods was void, unconstitutional, and unlawful, and without pre- cedent or authority; that the Rev. Dr. Elliott had, in attempting to carry into effect, in the organization of the Assembly of 1838, the illegal acts of the Assembly of 1837, forfeited his right to the mo- derator's chair : in short, that there was an imperative necessity for his removal, as also for the removal of the clerks, who, equally with him, had usurped an authority unconstitutional. 27 The General Assembly, organized as I have described, held its session in the First Presbyterian church, and in the course of its proceedings, on the twenty-fourth of May, 1838, according to the provisions of section 0, of their charter of incorporation, elected six trustees, namely: James Todd, Frederick A. Raybold, Geo. W. McClelland, William Darling, Thomas Fleming, and John R. Neff, respectively, in the place of Dr. Ashbel Green, William Latta, Thomas Bradford, Solomon Allen, Dr. Cornelius C. Cuyler, and George C. Potts. The question, gentlemen, that you are to decide is, whether the gentlemen last mentioned were lawfully re- moved from their places by such election — whether they have a right to exercise the offices which they continue to hold and exer- cise. In other words, you have to decide, whether the Assembly constituted, as above explained, which met in the First Presbyterian church, or the body which remained in the Seventh Presbyterian church, was the true and only General Assembly. One feature of this case, gentlemen, I hope will be remembered during this inquiry. Our object is to preserve the unity of the church. We do not deny the rights of our opponents ; but we deny their power to exclude from the communion of the church, without charge, accusation, or trial, the body of Presbyterians who reside within the bounds of the four excinded synods. We come into court reluctantly, and our effort is, not to take away the rights of others, but to preserve our own inviolate. Mr. Randall, having concluded, proceeded to read the pleadings in the casft, of Tvhioh the following is an abstract. The suggestion verified by the affidavit of one of the relators, Frederick A. Raybold, Esq., on which the writ was issued, sets forth that the defendants have exercised, since the twenty-fourth day of May, 1838, and do still exercise the franchises and privileges of trustees of the General Assembly, without lawful authority, since, on the day mentioned, the relators were duly elected to that office; and prays that the said defendants may be made to answer, by what warrant they claim their places. To this, Ashbel Green pleads his appointment under the original act of incorporation, and Thomas Bradford, Cornelius C. Cuyler, and Solomon Allen, in separate pleas, their regular election by the General Assembly; and all deny that any thing has happened to determine their offices. Then follow replications to these pleas, setting forth the choice of James Todd, George W. McClelland, Thomas Fleming, and Wil- liam Darling, in the place of the four defendants named, according to the provisions of the act of incorporation. The rejoinders deny such choice, and on this fact issue is joined. William Latta, though his name appears in the suggestion and in the writ, was not served with a process, and takes no part in the pleading. [The pleadings, in full, are placed on preceding pages, 12 to 19, of this Report.] 28 The plaintiffs in support of this case, then read in evidence, the Act of the Legislature of Pennsylvania, passed May 28th, 1799. (Assembly's Digest, pp. 192 to 198,) entitled, "An Act for incorporating- the Trustees of the Ministers and Elders, constituting' the General Assembly of the Presbyterian Church in the United States of Ame- rica." "Whereas the ministers and elders forming- the General Assembly of the Presb34e- rian Church in the United States of America, consisting of citizens of the state of Pennsylvania, and of others of the United States of America aforesaid, hare by their petition represented, that by donations, bequests or otherwise, of charitably disposed persons, they are possessed of moneys for benevolent and pious purposes, and the said ministers and elders have reason to expect farther contributions for similar uses ; but from the scattered situation of the said ministers and elders, and other causes, the said ministers and elders find it extremely difficult to manage the said funds in the way best calculated to answer the intention of the donors ; Therefore, Sec. 1. Be it enacted by the Senate and House of Representatives of the Com- monwealth of Pennsylvania, in General Assembly met, and it is hereby enacted by the authority of the same. That John Rogers, Alexander McWhorter, Samuel Stan- hope Smith, Ashbel Green, William M. Tennant, Patrick Allison, Nathan Irwin, Joseph Clark, Andrew Hunter, Jared Ingersoll, Robert Ralston, Jonathan R. Smith. Andrew B.ayard, Elias Boudinot, John Nelson, Ebenezer Hazard, David Jackson, and Robert Smith, merchant, and their successors duly elected and appointed in manner as is hereinafter directed, be, and they are hereby made, declared and constituted, a corporation and body politic and corporate, in law and in fact, to have continuance for ever, by the name, style, and title of " Trustees of the Gene- ral Assembly of the Presbyterian Church in the United States of America ;" and by the name, style, and title aforesaid, shall, for ever hereafter, be persons able and capable in law as well to take, receive and hold, &c. &c. &c. Sec. 2. Provides as to gifts and devises to the said corporation. Sec. 3. Relates to the corporate seal. Sec. 4. Relates to powers and liabilitiea of the corporation to sue and be sued. Sec. 5. Authorizes said corporation to make by-laws. Sec. 6. And be it further enacted by the authority aforesaid. That the said cor- poration shall not, at any time, consist of more than eighteen persons : whereof the said General Assembly may, at their discretion, as often as they shall hold their sessions in the state of Pennsylvania, change one-third, in such manner as to the said General Assembly shall seem proper : And, the corporation aforesaid, shall have power and authority to manage and dispose of all moneys, goods, chattels, lands, tenements and hereditaments, and other estate whatsoever, committed to their care and trust by the said General Assembly, but in cases where special in- structions for the management and disposal thereof, shall be given by the said Ge- neral Assembly in writing, under the hand of their clerk, it shall be the duty of the said corporation, to act according to such instructions : Frovided, the said instruc- tions shall not be repugnant to the constitution and laws of the United States, or to the constitution and laws of this commonwealth, or to the provisions and i-estric- tions in this act contained. Sec. 7, 8, 9 and 10 relate to the proceedings and powers of the said corpora- tion. The plaintiffs then read in evidence the Act of the General As- sembly itself (Digest, p. 198,) prescribing the mode of choosing Trustees, in accordance with the charter. The mode of choosing the trustees, adopted in 1801. The General Assembly took into consideration the important concern of voting^ for trustees of the General Assembly of the Presbyterian Church in the United States, agreeably to the provision made in the sixth section of the act of the Le- gislature constituting the charter of incorporation. After maturely discussing this subject, the Assembly resolved, that it is expedient to adopt and recommend the following system : — 1. That when this subject is called up annually, a vote shall first be taken whether, for the current year, the Assembly will, or will not, make any election of members in the board of Trustees. 2. If an election be determin- ed on, the day on which it shall take place shall be specified, and shall not be within less than two days of the time at which such an election shall be decided 29 on. 3. When the day of election arrives, the Assembly shall ascertain what va- cancies in the number of the eighteen trustees incorporated, have taken place by death or otherwise ; and shall first proceed to choose other members in their places. When this is accomplished, they shall proceed to the trial whether they will elect any, and if any, how many of that third of the number of the trustees which by law they are permitted to change, in the following manner : viz . The list of tlie trustees shall be taken, and a vote be had to fill the place of him who is first on the list. In voting for a person to fill said place, the vote may be given either for the person who has before filled it, or for any other person : if the ma- jority of votes shall be given for the person who has before filled it, he shall con- tinue in office ; if the majority of votes shall be given for another person, this person is a trustee, duly chosen in place of the former. In the same form the As- sembly shall proceed with the list, till they have either changed one-third of tlie trustees, (always including in the third those who have been elected by the sitting Assembly to supply the places that become vacant b)' death or otherwise,) or by going through the list, shall determine that no further alterations shall be made. — Vol. i. p. 252. The plaintiffs then gave in evidence the constitution of the Pres- byterian Church, with the form of government and discipline, as amended and ratified by the General Assembly in May, 1821, and the report of the committee as to the ratification of the amendments, from the Assembly's minutes of 1821, page 5. The minute in relation to the adoption of the amended constitu- tion, is as follows : The presbyteries were called upon to report their several decisions on the re- vised form of government and forms of process, sent down by the last Assembly, and their reports being read, were committed to Dr. McDowell and Mr. Chester, to ascertain precisely the opinions of the several presbyteries on the subject, and report their decision tot his Assembly. * * * The Committee appointed to ascertain the decisions of the several presbyteries on the subject of the revised form of government, and forms of process, and the amendments to the directory, sent down by the last Assembly, reported, and their report being read, was adopted, and is as follows, viz : That there are connected with this Assembly, sixty-two presbyteries ; that there- fore the affirmative vote of thirty-two presbyteries is necessary to make any one article binding ; that forty -five presbyteries have reported to the Assembly their decisions on each chapter, section, and article ; that from these reports it appears that most of the articles have been adopted unanimously, and that every chapter, section, and article, has been adopted by a majority of the whole number of pres- byteries ; that the smallest number of votes given for any one article is thirty -seven ; that, therefore, the whole of the amendments sent down by the last Assembly to the presbyter.es is ratified, and becomes a part of the constitution. In relation to this subject, Mr. Randall said — Previous to the year 1821, when the revised or amended consti- tution, including the Form of Government, was adopted by the presbyteries, the Synod of Geneva had been erected out of a part of the Synod of Albany, and then comprised the presbyteries of Onondaga, Bath, Geneva, Ontario, Niagara, Rochester, and Ge- nessee. The presbyteries of St. Lawrence, Oneida, and Otsego, now within the bounds of the Synod of Geneva, then belonged to the Synod of Albany; and the presbyteries of Grand River and Port- age, wow belonging to the Synod of the Western Reserve, were part of the Synod of Pittsburgh. It therefore appears, that of the twenty-eight presbyteries at present within the bounds of the four excluded synods, fourteen, having been erected prior to that time, participated in the adoption of the amended constitution, as is seen by the minutes of the Assembly given in evidence, 3* 30 The plaintiffs then read the following sections from the form of government : chap. X. Of the Presbytery. Sec. 2. A presbytery consists of all the minis- ters, with one ruling- elder from each congregation within a certain district. (Page 357.) Sec. 7. Any three ministers, and as many elders as may be present, belonging to the presbytery, being met at the time and place appointed, shall be a quorum com- petent to proceed to business. (Page 358.) Chap. XI. Of the Synod. Seel. As a presbytery is a convention of the bishops and elders within a certain district ; so a synod is a convention of the bishops and elders within a larger district, including at least three presbyteries. The ratio of the representation of elders in the synod is the same as in the pres- bytery. (Page 361.) Sec. 2. Any seven ministers belonging to the synod, who shall convene at the time and place of meeting, with as many elders as may be present, shall be a quo- rum to transact synodical business, provided, not more than three of the said mi- nisters belong to one presbytery. (Page 362.) ('hap. XII. Of the General Assembly. Sec. 1. The General Assembly is the high- est judicatory of the Presbyterian Church. It shall represent in one body, all the particular churches of this denomination ; and shall bear the title of The General Assembly of the Presbyterian Church in the United States of America. (Page 363.) Sec. 2. The General Assembly shall consist of an equal delegation of bishops and elders from each presbytery, in the following proportion, viz. : each presbyterj' consisting of not more than 24 ministers, shall send one miniscer and one elder : and each presbytery consisting of more than 24 ministers shall send two ministers and two elders ; and in the like ])roportion for every 24 ministers in any presby- tery ; and these delegates so appointed shall be styled Commissimiers to the General Assembly. Sec. 3. Any fourteen or more of these commissioners, one-half of whom shall be ministers, being met on the day, and at the place appointed, shall be a quorum for the transaction of business. (Page 364.) The plaintiffs than read in evidence the following resolutions of the Assembly creating synods : Synod of Albany. Minutes, Vol. 2, 1803, /?a^e 17. Resolved, That the Presbyteries of Albany, Oneida and Columbia, be, and they hereby are, constituted and formed into a synod, to be known by the name of the Synod of Albany; tliat they hold their first meeting in the Presbyterian Church of Albany on the first Wednesday of October next, at 2 o'clock P. M., and be opened with a sermon by the Rev. Jedediah Chapman; or, in case of his absence, by the next senior minister who may be present; and that they afterwards meet on their own adjournments. Synod of Geneva. Minutes. Vol. 3, page 23. The following application from the Synod of Albany, was overtured by the com- mittee of overtures, that the said synod be divided in the manner following, viz: That the Presbyteries of Londonderry, Columbia, Albany and Oneida, form the Eas- tern division, and be constituted a synod, to be called and known by the name of the Synod of Albany; and that they hold their first meeting in the Presbyterian Church in the city of Albany, on the first Wednesday in October next, at 11 o'clock, A. M., and that the meeting be opened with a sermon by the Rev. Samuel Blatchford, D. D., and in case of his absence, then by the oldest minister present. That the Presbyteries of Onondaga, Cayuga and Geneva, form the Western division, and be constituted a synod; to be called and known by the name of the Synod of Ge- neva; and that they hold their first meeting in the first Presbyterian Church in Ge- neva, on the first W^ednesday in October next, at 11 o'clock A. M., and that the meeting be opened with a sermon by the Rev. David Higgins, and, in case of his absence, then by the oldest minister present. Resolved, That the Synod of Albany be divided as above; and it hereby is accord- ingly divided. Synod of Genessee. Minutes, 1825, Vol. 5, page 10. The Synod of Geneva requested that said synod be divided in the following man- ner, and their request was granted, viz: That the Presbyteries of Niagara, Genessee, Rochester and Ontario, be erected 31 into a synod, to be known by the name of the Synod of Genessee, and that they hold their first meeting' at Rochester, on the third Tufesday of September next, at 2 o'clock P. M., and be opened with a sermon by the Rev. Ebenezer Fitch, D. D., or, in case of his absence, by the senior minister present, and afterwards meet on their own adjournments; that the remaining' presbyteries constitute the Syncd of Geneva, and that they meet on their own adjournments. Synod of the Western Reserve, Minutes, 1825, Vol. 5, page 263. Application was made, throug-h the committee of overtures, to erect a new sy- nod, to be composed of certain presbyteries in the Synod of Pittsburgh. The As- sembly, after hearing- the papers in relation to this application read, and duly con- sidering' the subject. Resolved, That the Presbyteries of Grand River, Portage and Huron, be, and they hereby are, detached from the Synod of Pittsburgh, and constituted a new synod, to de designated by the name of the Synod of the Western Reserve ; that they hold. their first meeting at Hudson, on the fourth Tuesday of September next, at 11 o'clock A. M., and tliat the Rev. Joseph Badger preach the synodical sermon, and act as moderator till another shall be chosen; or, in case of his failure, then the oldest minister present shall officiate in his place. Synod of Utica. Minutes of 1829, page 373, Vol. 5. Overture No. 3, — an application from the Synod of Albany, for the erection of a new synod was taken up, when it \i'as resolved that the request be granted agree- ably to the request of the synod, the Presbyteries of Ogdensburg, Watertown, Os- wego, Oneida, and Otsego are hereby constituted a new synod, to be called the Sy- nod of Utica. Resolved, Tliat the Synod of Utica hold their first meeting in Utica, in the First Presbyterian church, on the Tuesday preceding the third Wednesday of Septem- ber next, at 7 o'clock, P. M., and that the Rev. Israel Brainerd preach the opening sermon, and preside until a moderator is chosen, and in case of his absence, these duties shall devolve on the senior minister present. Plaintiffs' counsel then read extracts from the records of the As- sembly, showing that it had extended its jurisdiction over the iern- torij of the excinded synods for thirty-six years; that the validity of their presbyteries, in all this time, had not been questioned. In 1801, (Minutes, page 18, vol 1,) the Assembly appointed mis- sionaries to labour in the region embraced in those synods. 1802, (id. p. 8,) the Assembly divided the Presbytery of Albany, and formed the Presbytery of Oneida. 1802. Rev. J. Chapman, the Assembly's missionary, reported to that body that he had organized three churches in the Genessee country. The General Assembly appointed a missionary to labour within [what is now the territory of the Synod of Geneva.] (id. page 12.) 1803. Oneida Presbytery reported as having done its duty in contributing to the Assembly's funds for missions. The Presbytery of Oneida, with those of Albany and Columbia, were this year erected into the Synod of Albany by the General Assembly, (id. page 16.) 1804. The Assembly appointed missionaries to labour in West- ern New York, and the Presbytery of Oneida contributed to its contingent fund. (id. 61, 69.) 1805. Oneida Presbytery contributed to the contingent funds of the Assembly. This presbytery also reported its approval of cer- tain amendments to the constitution. The Assembly divided this presbytery, and formed out of it the presbyteries of "Oneida" and " Geneva.'" (Vol. 2, pages 82, 90, 108.) 32 1806. The Oneida Presbytery contributed to the General Assem- bly's missionary funds. The Assembly order its Committee of Missions to cause a number of copies of the Plan of Union between Presbyterians and Congregationalists to be printed and delivered to the missionaries sent to Western New York. (id. 141.) 1807. The Oneida Presbytery contribute to the missionary funds of the General Assembly, (id. 173.) 1808. The Presbyteries of Oneida and Geneva contribute to the same funds; also to the commissioners' fund. In the minutes of this year there is a record of the Assembly's approval of the con- duct'of these presbyteries, (id. 188, 189, 197.) In 1809, The presbyteries just named contribute to the Assem- bly's missionary, education and commissioners' funds, (id. 220, 230, 252.) In 1810, the same presbyteries are reported as having done their duty in raising funds for the Assembly, (id. 278, 288.) In 1811, the Presbyteries of Oneida, Geneva, Onondaga and Cayuga, contribute to the Assembly's missionary and commission- ers' funds, (id. 353.) In 1812, the same presbyteries contribute to the Assembly's funds for missions, &c. (vol. 3, page 30.) In 1813, they do the same. The Assembly also acknowledges the receipt of funds for the Theological Seminary at Princeton, (vol. 3, pp. 85, 101.) In 1814, a similar acknowledgment is found in the Assembly's minutes, (id. 141.) In 1815, the Assembly acknowledges the receipt of funds ($1666.26) from the excinded region, for the Seminary at Prince- ton. Also funds for missions, education, &c., from the same source, (id. 250, 267.) 1816. The Presbyteries of Onondaga and Geneva raise money for the Seminary at Princeton; and these and two other presbyte- ries in that region contribute to the missionary and commissioners' funds, (id. 313, 318, 330 and 337.) 1817. These presbyteries report funds for the education cause. The Presbytery of Grand River, in the Western Reserve Synod, contribute to the funds for the Theological Seminary at Princeton, (vol. 4, p. 9.) 1818. The records of the Assembly acknowledge the receipt of moneys from the excinded districts for the Theological Seminary at Princeton. The Presbyteries of Niagara, Ontario, Bath, Gene- va, and Cayuga, contribute to the Assembly's education and com- missioners' funds, (id. 59, 61, 83.) 1819. Several of the excinded presbyteries vote on alterations to the constitution; and Grand River, Portage, Ontario, Bath, Ge- neva, and Onondaga, contribute to the Assembly's education funds, (id. 158.) The Assembly this year commend some of the excinded presby- teries, for having done their duty in educating men for the ministry, (id. 159 and 200 to 211.) 1820. The presbyteries of Ontario, Cayuga, Geneva, Bath, 33 Oneida, Onondaga, Portage and Grand River, are commended for having faithfully attended to the education of men for the min- istry, (id. 306, 345, 6, 7, 8, 9.) 1821. The revised form of government was voted for by the presbyteries which have been excinded. The General Assembly designate a line bounding the Synods of Pittsburgh and Geneva. The presbyteries of Geneva, Rochester, Cayuga, St. Lawrence, Otsego, Portage, Hartford and Grand River, all contribute to funds for education. Theological Seminary, missions and commissioners. The General Assembly, this year, divide the Synod of Geneva, and form the Synod of Genessee. (vol. 5, pp. 5, 6, 10, 12 and 16, 31 to 41.) 1822. The Assembly recognise said excinded presbyteries as under their care. (See vol. 5, pp. 8 & 9.) The Assembly approve the records of the Synod of Geneva, (p. 12.) The Assembly, in a compendious view, include as under their care the excinded presbyteries, (p. 19.) The excinded presbyteries contribute as in previous years, to the Assembly's funds for different purposes. The Assembly appoint a missionary to labour in that region, who was pastor of a Presbyte- rian Church at Buffalo. (Vol. 5, p. 45 to 59.) 1823. Assembly issued a complaint against Synod of Genessee, (id. 135.) Minutes of Synod of Genessee approved, (id. 145.) The excinded presbyteries reported contributions to education funds for the ministry. ' (id. 159, 160, 161.) Report of the Board of Education, established by the General Assembly,- for May, 1823. This year no reports have been received from the Presbyteries of Northumber- land, Grand River, &.c. The presbyteries which have reported are the follow- ing, viz: 1. Genessee, which has one young man under its care, and has expended last year nineteen dollars. 2. Rochester, which supports three beneficiaries. 3. Geneva, which has two youths under its care, and co-operates with the West- ern Education Society. 4. Bath, which has one beneficiary, raised last year twenty -six dollars thirty-four cents, and expended twenty-five dollars. 5. Oneida, which has nine beneficiaries. 6. Onondaga, which aids five young men in board and clothing, &c. 1824. The same was done. The Assembly, this year, send missionaries to the excinded region, (id. 235.) 1825. The Presbytery of Geneva is decided to be competent to try two elders, &c. (id. p. 262.) Funds raised in these synods are reported in the minutes, (id. 335 to 360.) The Assembly appoint more missionaries to labour in the excinded region, (id. 300.) 1826. The excinded presbyteries vote on an alteration of the con- stitution, (vol. 6, p. 11.) Funds are reported as usual, from these presbyteries, (id. 63, 4, 5, 6 & 7.) The Assembly this year, form the Presbytery of Chenango, of ministers detached from the Pres- byteries of Otsego, Cayuga, Columbia and Susquehanna, and attach said presbytery to the Synod of Geneva, (id. 21.) The Assembly appoint missionaries again to labour in the excinded region, (id. 59.) 34 1827. Presbytery of Detroit attached to the Synod of Western Reserve, (id. 120.) Records of Synod of Genessee approved by General Assembly: (id. 121.) Dr. H. Axtill of Geneva and Horace Hill of Auburn, members of the Board of Education, (id. 147.) The excinded presbyteries contributed to the Commissioners, Education, Theological Seminary and Missionary funds. (Page 178 to 183.) 1828. Funds contributed for Missionary, Commissioners, Theo- logical Seminary and Education purposes, (p. 282 to 284.) 1829. Records of Synod of Geneva and Western Reserve, ap- proved, (id. 371-2.) Funds to Missions, Commissioners, Educa- tion and Theological Seminary, (p. 439 to 442.) 1830. The Assembly give instructions to the Presbytery of St. Lawrence, (p. 30.) Moneys acknovi'ledged from the excinded presbyteries, (pp. 65, 66 & 67.) 1831. The Assembly detach a church from the Synod of New Jersey and put it into the Synod of Geneva, (p. 175.) The records of the Synods of Geneva, Genessee and Western Reserve approved by the General Assembly, (p. 184.) Funds acknowledged as raised in the presbyteries excinded. (id. 221 to 263.) 1832. The records of the Synods of Utica and Western Reserve, approved by the General Assembly, (p. 324.) Funds received from excinded presbyteries, (id. 367 to 418.) 1833. The Rev. Sylvester Eaton was elected temporary clerk of the General Asspmbly. Mr. Eaton was from the Presbytery of Buffalo. (Vol. 6, p. 173.) The excinded presbyteries vote on a proposed alteration in the constitution, (p. 485.) The committee appointed to examine the records of the Synods of Utica and Genessee, reported, and those records were approved, (p. 485.) The Synod of the Western Reserve gave an answer to certain questions proposed to them by the General Assembly. (See p. 489.) And the Assembly approve their records, with a single exception, (pp. 489 & 490.) The committee to whom was referred the report of the Synod of the Western Reserve made a report, which being read and amended, was adopted, and is as follows, viz. After having maturely considered the subject referred to them, they recommend to the Assembly, without approving the views of the synod in relation to order and discipline, as stated in their report, that the report be accepted and printed in the Minutes of the Assembly. The report of the Synod is as follows: Report of the Synod of the Western Reserve to the General Assembly of the Presbyterian Church in the United States of America, in relation to the direction to this synod, by the last Assembly, recorded in their printed minutes, p. 327. At the stated meeting of the Synod of the Western Reserve, held at Detroit, Oct. 18th, 1832, the following resolution was adopted, viz. Resolved, That in reference to the point named by the Assembly, as having been charged by common rumour against this synod; the synod having, as their custom is, and agreeably to the direction of the Assembly, devoted a part of their sessions to review and examine the state of the presbyteries and churches under their care, do report to the next General Assembly : 1. That the synod see no ground for the charge of delinquency in relation to the permission alleged in the first specification. The synod would remark, that previously to the resolution of the Assembly on this subject in 1828, it is beheved that a difference of practice prevailed in our presbyteries, in the reception of mem- bers from corresponding churches; (as has been common in other presbyteries in 35 different parts of the country,) without any formal profession of adopting the Con- fession of Faith of the Presbyterian Church. But since the passage of that resolu- tion by the Assembly, the synod believe that no such practice has obtained in any of our presbyteries. In regard to the allegation respecting persons licensed and ordained by our presbyteries, without receiving and adopting the Confession of Faith, the synod have no knowledge or belief of the prevalence of any such prac- tice in any of our presbyteries. 2. That in relation to the remaining allegation, viz. on the subject of ruling elders, the synod do not discover any reason for the charge of having violated the constitution of the church, inasmuch as that constitution does not make the elder- ship essential to the existence of a church, and as the number of persons in many churches is too small to admit the election of suitable persons to fill that office, and where this is not the case, the fact of their being Congregationalists mingled with Presbyterians in many churches, is a sufficient reason for the non-existence of the eldership, according to the plan of agreement between the General Assembly and the General Association of Connecticut; from the spiritof which, the synod believe, that none of our presbyteries liave departed. However, with regard to the charge of tlie presbyteries allowing the office of ruling elder to go into disuse, the synod would say, that during the last year, there have been more ruling elders elected and ordained, in the churches con- nected with our presbyteries, than during any three or four years previously. By order of the Synod of the Western Reserve, Attest, Wm. Hanford, Stated Clerk. The report of the committee to examine the recoi'ds of the Synod of the Western Reserve, which was laid on the table, was taken up, and adopted, and is as follows, viz. That the records be approved, with the exception of the sentiment on p. 154, viz. that the eldership is not essential to the existence of the Presbyte- rian Church. In the opinion of the committee, the Synod advanced a sentiment, that contravenes the principles recognized in our F'orm of Government, Chap. II, sec. 4. Chap. 111. sec. 5. Chap. V. Chap. IX. sec. 1, 2. Funds acknowledged from the excinded presbyteries. (Id. 517 to 5G8.) 1834. The excinded presbyteries vote on a change in the con- stitution. (Vol. 7, p. 13.) The Assembly send an appeal against a decision of the Presbytery of Otsego to the Synod of Utica, to be judicially settled by them. (p. 17.) Also another case on p. 19. The Assembly entertain a petition from the Synod of Western Reserve, and at their request make a new Synod, viz. " the Synod of Michigan," p. 22. The General Assembly set off the Presbytery of Angelica, from the Synod of Geneva to the Synod of Genessee, p. 27. The Assembly approve of the records of the Synod of Western Reserve, p. 28. The General Assembly, at the request of the Synod of Albany, put the congregation of Stratford into the Synod of Utica, p. 38. The Assembly appoint committees in the excinded synods, to superintend the publication of the constitu- tion, pp. 40, 41. Funds reported from excinded presbyteries, Id. 82 to 139. 1835. The Assembly approve the records of the Synod of Geneva, with some slight and unimportant exceptions, vol. 7, p. 17. The records of Utica and Geneva, p. 18, 19. The Assembly state that it is no longer desirable that churches should he formed on Plan of Union, p. 29. The Assembly consider an appeal from the Synod of Utica, p. 30. The records of the Synod of the Western Reserve were approv- ed, p. 32. 36 1836. The Rev. Josiah Hopkins, of Cayuga Presbytery, was appointed a delegate to the Association of New Hanapshire. The Assembly approve the records of the Synods of Uiica, Western Reserve, and Genessee, p. 263. The excinded presbyteries vote on a proposed alteration as to the time of studying for the ministry, to change the term to three years, p. 276. 1837. Assembly acknowledges the receipt of funds from the excinded Presbyteries. Minutes from page 527 to 544; and from 572 to 576. The next evidence offered by the plaintiffs, was Chapters IV. and V. of Form of Discipline, to show how carefully the constitu- tion of the church guards the rights and character of its mem- bers. chap. IV. Of Adual Process. Sect. 1. When all other means of removing an offence have failed, the judicatory to which cognizance of it properly belongs, shall judicially take it into consideration. 2. There are two modes in which an offence may be brought before a judica- tory: either by an individual or individuals, who appear as accusers, and undertake to substantiate the charge; or by common fame. 3. In the former case, process must be pursued in the name of the accuser or accusers. In the latter, there is no need of naming any person as the accuser. Common fame is the accuser. Yet a general rumour may be raised by the rashness, censoriousness, or malice of one or more individuals. When this appears to have been the case, such individuals ought to be censured, in proportion to the degree of criminality which appears attached to their conduct. 4. Great caution ought to be exercised in receiving accusations from any per- son who is known to indulge a malignant spirit towards the accused; who is not of good character; who is himself under censure or process; who is deeply interested, in any respect, in the conviction of the accused; or who is known to be litigious, rash, or highly imprudent. 5. When a judicatory enters on the consideration of a crime or crimes alleged, no more shall be»done, at the first meeting, unless' by consent of parties, than to give the accused a copy of each charge, with the names of the witnesses to support it; and to cite all concerned to appear at the next meeting of the judicatory, to have the matter fully heard and decided. Notice shall be given to the parties con- cerned, at least ten days previously to the meeting of the judicatory. 6. The citations shall be issued and signed by the moderator or clerk, by order, and in the name of the judicatory. He shall also furnish citations for such wit- nesses as the accused shall nominate, to appear on his behalf. 7. Although it is required that the accused be informed of the names of all the witnesses who are to be adduced against him, at least ten days before the time of trial, (unless he consent to wave the right, and proceed immediately,) it is not necessary that he, on his part, give a similar notice to the judicatory of all the wit- nesses intended to be adduced by him for his exculpation. 8. In exhibiting charges, the times, places, and circumstances should, if pos- sible, be ascertained and stated, that the accused may have an opportunity to prove an alibi, or to extenuate or alleviate his offence. 9. The judicatory, in many cases, may find it more for edification, to send some members to converse, in a private manner, with the accused person; and if he con- fess guilt, to endeavour to bring him to repentance, than to proceed immediately to citation. 10. When an accused person, or a witness, refuses to obey the citation, he shall be cited a second time; and if he still continue to refuse, he shall be excluded from the communion of the church, for his contumacy, until he repent. 11. Although, on the first citation, the person cited shall declare in writing, or oth- erwise, his fixed determination not to obey it; this declaration shall, in no case, in- duce the judicatory to deviate from the regular course prescribed for citations. They shall proceed as if no such declaration had been made. The person cited may afterwards alter his mind. • 37 12. The time which must elapse between Wxejird citation of an accused person, or a witness, and the meeting- of the judicatory at which he is to appear, is at least ten days. But the time alloted for his appearance in the subsequent citation is left to the discretion of ti\e judicatory; provided always, however, that it be not less than is quite sufficient for a seasonable and convenient compliance witii the cita- tion. 13. The second citation ought always to be accompanied with a notice, that if the person cited do not appear at the time appointed, the j udicatory, besides cen- suring- him for his contumacy, will, after assig-ning some person to his defence, proceed to take the testimony in his case, as if he were present. 14. Judicatories before proceeding- to trial, ought to ascertain that their citations have been duly served on the persons for whom they were intended, and especially before they proceed to ultimate measures for contumacy. 15. The trial shall be fair and impartial. The witnesses shall be examined in the presence of the accused; or, at least, after he shall have received due citation to attend; and he shall be permitted to ask any questions tending to his own excul- pation. 16. The judgment shall be regularly entered on the records of the judicatory: and the pai-ties shall be allowed copies of the whole proceedings, at their own expense, if they demand them. And in case of references or appeals, the judicatory refer- ring, or appealed from, shall send authentic copies of the whole process to the higher judicatory. 17. The person found guilty shall be admonished or rebuked, or excluded from church privileges, as the case shall appear to deserve, until he give satisfactory evidence of repentance. 18. As cases may arise in which many days, or even weeks, may intervene be- fore it is practicable to commence process against an accused church member, the session may, in such cases, and ought, if they think the edification of the church requires it, to prevent the accused person from approaching the Lord's table until the charge against him can be examined. 19. The sentence shall be published only in the church or churches which have been offended. Or, if the offence be of small importance, and such as it shall ap- pear most for edification not to publish, the sentence may pass only in the judi- catory. 20. Such gross offenders as will not be reclaimed by the private or pubhc admo- nitions of the church, are to be cut off from its communion, agreeably to our Lord's direction, Matt, xviii. 17. And the apostolical injunction respecting the incestuous person. 1 Cor. v. 1 — 5. 21. No professional counsel shall be permitted to appear and plead in cases of process in any of our ecclesiastical courts. But if any accused person feel unable to represent and plead his own cause to advantage, he may request any minister or elder, belonging to the judicatory before which he appears, to prepare and exhibit his cause as he may judge proper. But the minister or elder so engaged, shall not be allowed, after pleading the cause of the accused, to sit in judgment as a mem- ber of the judicatory. 22. Questions of order, which arise in the course of process, shall be decided by the moderator. If an appeal is made from the chair, the question on the appeal shall be taken without debate. 23. In recording the proceedings, in cases of judicial process, the reasons for all decisions, except on questions of order, shall be recorded at length ; that the record may exhibit every thing wliicli had an influence on the judgment of the court. And nothing but what is contained in the record, may be taken into con- sideration in reviewuig the proceedings in a superior court. Chap. v. Of Process against a Bishop or Minister. 1. As the honour and suc- cess of the gospel depend, in a great measure, on the character of its ministers, each presbytery ought, with the greatest care and impartiality, to watch over the personal and professional conduct of all its members. But as, on the one hand, no minister ought, on account of his office, to be screened from the hand of justice, nor his offences to be slightly censured; so neither ought scandalous charges to be received against him, by any j udicatory, on slight grounds. 2. Process against a gospel minister shall always be entered before the presby- tery of which he is a member. And the same candour, caution, and general me- thod, substituting only the presbytery for the session, are to be observed in inves- tigating charges against him, as are prescribed in the case of private members. 4 38 3. If it be found that the facts with which a minister stands charged, happened without the bounds of his own presbytery, that presbytery shall send notice to the presbytery within whose bounds they did happen: and desire them either (if within convenient distance,) to cite the witnesses to appear at the place of trial; or, (if the distance be so great as to render that inconvenient,) to take the examination themselves, and transmit an authentic record of their testimony: always giving due notice to the accused person, of the time and place of such examination. 4- Neveilheless, in case of a minister being supposed to be guilty of a crime, or crimes, at such a distance from his usual place of residence, as that the offence is not likely to become otherwise known to the presbytery to which he belongs; it shall, in such case, be the duty of the presbytery within whose bounds the facts shall have happened, after satisfying themselves that there is probable ground of accusation, to send notice to the presbytery of which he is a member, who are to proceed against him, and either send and take the testimony themselves, by a com- mission of their own body, or request the other presbytery to take it for them, and transmit the same properly authenticated. 5. Process against a gospel minister shall not be commenced, unless some per- son or persons, imdertake to make out the charge: or unless common fame so loudly proclaims the scandal, that the presbytery find it necessary, for the honour of religion, to investigate the charge. 6. As the success of the gospel greatly depends upon the exemplary character of its ministers, their soundness in the faith, and holy conversation; and as it is the duty of all Christians to be very cautious in taking up an ill report of any man, but especially of a minister of the gospel; therefore if any man knows a minister to be guilty of a private, censurable fault, he should warn him in private. But if the guilty person persist in his fault, or it become public, he who knows it, should apply to some other bishop of the presbytery for his advice in the case. 7. The prosecutor of a minister shall be previously warned, that if he fail to prove the charges, he must himself be censured as a slanderer of the gospel minis- try, in proportion to the malignancy or rashness that shall appear in the prosecu- tion. 8. When complaint is laid before the presbytery, it must be reduced to writing; and nothing further is to be done at the first meeting, (unless by consent of par- ties,) than giving the minister a full copy of the charges, with the names of the witnesses annexed; and citing all parties, and their witnesses, to appear and be heard at the next meeting ; whicli meeting shall not be sooner than ten days after such citation. 9. When a member of a church judicatory is under process, it shall be discre- tionary with the judicatory whether his privileges of deliberating and voting, as a member, in other matters, shall be suspended until the process is finally issued, or not. 10. At the next meeting of the presbytery, the charges shall be read to him, and he shall be called upon to say whether he is guilty or not. If he confess, and the matter be base and flagitious; such as drunkenness, uncleanness, or crimes of a higher nature, however penitent he may appear, to the satisfaction of all, the pres- bytery must, without delay, suspend him from the exercise of his office, or depose him from the ministry; and, if the way be clear for the purpose, appoint him a due time to confess publicly before the congregation offended, and to profess liis peni- tence. 11. If a minister accused of atrocious crimes, being twice duly cited, shall refuse to attend the presbytery, he shall be immediately suspended. And if, after another citation, he still refuse to attend, he shall be deposed as contumacious. 12. If the minister, when he appears, will not confess ; but denies the facts alleged against him, if, on hearing the witnesses, the charges appear important, and well supported, the presbytery must, nevertheless, censure him; and admonish, suspend, or depose him, according to the nature of the offence. 13. Heresy and schism may be of sucli a nature as to inter deposition ; but errors ought to be carefully considered ; whether they strike at the vitals of religion, and are industriously spread; or, whether they arise from the weakness of the human imderstanding, and are not likely to do much Injury. 14. A minister under process for heresy or schism, should be treated with Chris- tian and brotherly tenderness. Frequent conferences ought to be held with him, and proper admonitions administered. For some more dangerous errors, how- ever, suspension may become necessaiy. 15. If the presbytery find, on trial, that the matter complained of, amounts to 39 no more than such acts of infirmity as may be amended, and the people satisfied ; so that little or nothing remains to hinder his usefulness, they shall take all prudent measures to remove the offence. 16. A minister deposed for scandalous conduct, shall not be restored, even on the deepest sorrow for his sin, until after some time of eminent and exemplary, humble and edifying conversation, to heal the wound made by his scandal. And he ought in no case to be restored, until it shall appear, that the sentiments of the religious public are strongly in his favour, and demand his restoration. 17. As soon as a minister is deposed, his congregation shall be declared vacant. The following passage from the Form of Government and extract from the minutes of the General. Assembly of 1822 were here read by plaintiffs' counsel, to show the powers of the General Assembly, as they were understood immediately after the adoption of the amended constitution in 1821, and that, in the judgment of that body, on an occasion when peculiar circumstances had drawn together an unusually large share of the deliberative wisdom of the church, it was utterly inconsistent with the constitution for the Assembly to attempt the exercise of its powers in the excision of members, with- out regular disciplinary process. chap. XII. Form of Government. 4. The General Assembly shall receive and issue all appeals and references, which may be regularly brought before them, from the inferior judicatories. They shall review the records of every synod, and approve or censure them; they shall give their advice and instruction, in all cases submitted to them, in conformity with the constitution of the church; and they shall constitute the bond of union, peace, con-espondence, and mutual confidence among all our churches. 5. To the General Assembly also belongs the power of deciding in all contro- versies respecting doctrine and discipline; of reproving, warning, or bearing tes- timony against error in doctrine, or immorality in practice, in any church, presby- tery, or synod; of erecting new synods, when it may be judged necessary; of superintending the concerns of the whole church; of corresponding with foreign churches, on such terms as may be agreed upon by the Assembly and the corres- ponding body; of suppressing schismatical contentions and disputations; and, in general of recommending and attempting reformation of manners, and the promo- tion of charity, truth, and holiness, through all the churches under their care. 6. Before any overtures or regulations proposed by the Assembly to be estab- lished as constitutional rules, shall be obligatory on the churches, it shall be ne- cessary to transmit them to all the presbyteries, and to receive tiie returns of at least a majority of them, in writing, approving thereof. 1822. Min. p. 22. The committee to which was referred a paper purporting to be a remonstrance from John M. Rankin and others, who allege that they are mem- bers of the Presbyterian Church in the United States, having had the same under serious consideration, submitted the following report, which was adopted, viz: The General Assembly can never hesitate, on any proper occasion, to recom- mend to those, who, at both their licensure and ordination professed "sincerely to receive and adopt the Confession of Faith of this Church, as containing the system of doctrine taught in the Holy Scriptures," and to all other members of our church, steadfastly to adhere to that "form of sound words." But while the General Assembly is invested with the power of deciding in all controversies, respecting doctrine and discipline ; of reproving, warning, or bear- ing testimony, against error in doctrine in any church, presbytery, or synod; or of suppressing schismatical contentions and disputations, all such matters ought to be brought before the Assembly in a regular and constitutional way. And it does not appear that the constitution ever designed, that the General Assembly should take up abstract cases, and decide on them, especially when the object appears to be, to bring those decisions to bear on particular individuals, not judicially before the Assembly. Neither does it appeal", that the constitution of the church, intended that any person or persons, should have the privilege, of presenting for decision, re- monstrances respecting points of doctrine, on the conduct of individuals, not brought 40 up from the inferior judicatories, by appeal, reference, or complaint; and this es- pecially, when such remonstrances contain no evidence whatsoever, of the facts alleged, but mere statements, of the truth or justness of which, the Assembly have no means of judging", inasmuch as a contrary course, would allow of counter and contradictory remonstrances, without end. Wherefore, on motion resolved, that the committee be discharged from the fur- ther consideration of this remonstrance; and the committee were accordingly dis- charged. The Court now adjourned. Wednesday, March 6th. The plaintiffs offered in evidence the minutes of the General Assembly of 1837, and called the attention of the Court to the sta- tistical table of that year, (pages 521 — 523,) by which it appears that presbyteries not afllected by the excinding acts of 1837 have several ministers who are pastors of Congregational churches. In the Presbyteries of Londonderry and Newburyport, belonging to the Synod of Albany, there were forty-one ministers reported to the General Assembly of 1837; sixteen of whom were pastors of Con- gregational churches, and only fourteen pastors of Presbyterian churches; while by other parts of the table it appeared that there were no cases of that character reported by any of the presbyteries belonging to the four excinded synods. Next was read from the same table (page 527) the amount of contributions to the funds of the church made by presbyteries within the four synods, for the year then reported to the General Assembly. Among the presbyteries were The Presbytery of St. Lawrence, which contributed in that year S953 33 The Presbytery of Oswego, " " 662 07 " Geneva, " " 7729 95 " Rochester, " " 15,750 50 Mr. Randall, of counsel for the relators, then said he would read from the minutes of the General Assembly, (page 520,) the official statement, made by order of the Assembly, of the synods and pres- byteries recognized as in its connexion at the opening of the As- sembly. Mr. Huhhell, of counsel for the respondents, objected to this being admitted as evidence, on the ground, that the admission would involve other questions than those stated in the pleadings — that the testimony was irrelevant to the issue. Why, (he asked,) do the relators desire to introduce the proceedings of the General Assembly of 1837? Is it their purpose to show that the General Assembly of 1837 dismembered, destroyed, annihilated itself? If they propose any thing other than this, what effect can the pro- ceedings of the General Assembly of 1837 have on those of the General Assembly of 1838? But the pleadings preclude the ad- mission of evidence for this purpose. The General Assembly of 1838 derived its very existence from the last act of the Assembly of 1837. The very appearance in this suit, of the relators, as Trustees, is, on their part, an acknow- ledgment that the General Assembly of 1837 did not dismember 41 itself; for they can claim only under the appointment of an Assem- bly as the successor of that of 1837. Their object must be, and by their own admission in their opening, it is, to prove that the offi- cers of the General Assembly of 1838 committed error, that they defeated, or endeavoured to defeat, the constitutional organization of the General Assembly, by their refusal to admit certain claim- ants to their seats. If this is so — if they can prove such a rejection as they allege, and that it prevented the organization of the As- sembly in the usual manner — then the relators have succeeded in that part of their case. Now we, as counsel for the respondents, deny that any such re- jection was ever made by the General Assembly of 1838, or by its officers. We deny that they ever committed themselves on that subject; and we challenge the proof. But if it were so, are our opponents to be allowed to bring in the proceedings of the previous General Assembly, to show our reasons, either good or bad, for doing it? If any such reasons exist, it is our business to exhibit them, not theirs. They have no right to come into our camp to find reasons for our conduct. The General Assembly of 1838 was the sole judge of the quali- fications of its own members. In this respect, it was entirely in- dependent of the General Assembly of 1837. It was composed of different members, or if in part the same, yet a new election had intervened, and it might have been composed entirely of different members from those of the former year. The same Moderator did not preside in both of those Assemblies : for the old Moderator continues in office no longer than is necessary to constitute the new Assembly, when a new Moderator is chosen. The Clerks, whose business it was to judge of the validity of commissions, rejected those of certain commissioners. An attempt was made to bring the matter before the General Assembly for consideration. The Moderator declared the motion for that pur- pose, out of order. An appeal was taken from his decision, and he decided the appeal to be out of order also. Now the relators may claim that the General Assembly dismembered and destroyed itself by this act: or that, on an appeal being made to the house, it, by a unanimous vote, removed its officers, on account of their misconduct. This is their case, if they can make it out. If they do so, we may need the acts of 1837 for our justification; but let them not anticipate our defence. Suppose it were even true, that the General Assembly of 1837 committed acts of injustice, what effect can these acts have to impart an evil character to the proceedings of the Assembly of 1838? " Suppose they take the ground, that the action commenced by the Moderator and Clerks for organizing the Assembly of 1838, was irregular; and that every thing done in this process, after the rejection of certain of the commissioners by the Clerks, was utterly null and void. Must we proceed in the way prescribed by them, when we at- tempt to justify our Moderator and Clerks? We intend to prove that those officers acted rightly ; and that the party of the relators 4* 42 becoming offended at the inferior and primary tribunal, never pre- sented their case regularly to the General Assembly, and conse- quently were not rejected by that body. The plaintiffs assert that the error of the Clerks and Moderator constituted them the true General Assembly, and also dismem- bered and annihilated our Assembly. But now they propose to go much further. They propose to enter into our motives: they pro- pose to show that we were (as they have charged upon us) actuated by bad motives. Judge Rogers said the evidence appeared to him to be precisely of the same character with that already admitted by the court. Mr. Hubbell resumed. For the purpose for which we understood the other to be admitted, we have no objection to the admission of this. It is doubtless the right, the duty of the opposite counsel to build up a General Assembly if they can. But is this to be done by showing that these bodies have been admitted and recognized as parts of the Presbyterian church? That point is conceded. We have no contest on that subject : but whether they were con- stitutionally recognized by the General Assembly or not, is quite another thing. At any rate, they cannot be allowed to show that our proceedings in 1837, were a poor reason for our conduct in 1838; or that our defence is a poor defence, until we have given that reason, or made that defence. We have a right to be the masters of our own defence. Mr. IngersoU, also for the respondents, said he would like to know the objects for which this species of evidence was offered. It might have a double object. If the testimony were offered simply to prove the recognition of the four synods, and the inferior judica- tories belonging to them, he would not object to it, inasmuch as it was merely irrelevant. But if offered with a view to prove the re- jection of those synods, it was wholly inadmissible. The Court inquired of Mr. Randall what was the object of the evidence. M7\ Randall repWed : May it please your honour, our object is to show what was the state of the Presbyterian church at the meet- ing of the General Assembly of 1837. We desire to show that the four excinded synods were then in good standing, as a part of the Presbyterian church in the United States, as the documents already introduced show that the presbyteries belonging to those very synods participated in the adoption of the constitution of 1820. We then intend to follow this up, by showing the act of dismem- berment of the General Assembly in 1838, begun by the Clerks, and carried out by the Moderator, by which they defeated their own attempt at an unjust and partial organization, and enabled us to carry out the regular and lawful organization, as the true General Assembly of the Presbyterian church. We intend further to show that these measures of the Clerks and the Moderator originated in the acts of excision of the General Assembly of 1837, and were an attempt to carry out those acts, which were null and void. The document offered is part of a consecutive chain of evidence, the several hnks of which are independent of each other, except as to 43 their order. We expect to prove them all — but one link at a time. The Court intimated to Mr. Hubbell that he might proceed. 3/?-. Hubbell then argued, that, as the respondents do not set up the pretence that the act of the Clerks refusing lo receive the com- missions of the claimants from the detruded synods, was a mistake, the relators could not bring evidence to prove that it was not a mistake ; that they were precluded by the rules of evidence, from going into an inquiry as to the designs of the adverse party. If the relators (he said) can prove their positions, before adverted to, respecting the incipient measures for organizing the Assembly of 1838, then they have laid the ios/sof their superstructure ; but they must not be allowed to anticipate our defence against their allega- tions. If the proceedings of 1837 dismembered and destroyed the General Assembly, then our trustees, previously elected, are entitled to hold. If this were alleged, it would defeat the issue chosen by the relators. It would put them immediately out of Court. They there- fore admit that the trustees, which were elected in 1837, were legally chosen, notwithstanding they were elected after the acts of excision, of which they complain. If, then, on the other hand, as appears to be admitted by them, no dismemberment of the General Assembly was effected, what can be the influence of the evidence offered by the counsel 1 The General Assembly of 1838 was the judge of the qualifications of its own members; and in this respect was entirely an independent body. The rejection of commissioners by the Clerks in 1838, was not, and could not be influenced by the proceedings of the General Assembly of 1837, except so far as they furnish us with an excuse, or a reason, if you please, should we choose to employ it, tor our defence. The relators themselves contend that the proceedings of the General Assembly of 1838 ought not to have been influenced by what took place in 1837. They say that the acts of 1837 were null and void, and that therefore the rejection of certain commissions by the Clerks, in 1838, was a bad procedure; and shall we be de- nied the advantage of these admissions, by their anticipating our defence? We will show^ the reason for the rejection of those com- missions, in our own time, and do not intend to allow our case to be anticipated and mangled by our opponents. Judge Rogers said that he did not like, at this stage of the pro- ceedings, to decide the question, whether the testimony now ofl'ered involved the merits of the case or not. He did not see how the defendants could do without it. It might be admitted now, unless they had something further to object to its character; and its bear- ing could be decided afterwards. Mr. Ingersoll said he should like to say one word more, perhaps half a dozen, in explanation ; whether the testimony were admitted or not. If it resembled the testimony offered by reading the minutes yes- terday, was intended to prove the same thing, it was merely irrele- 44 vant; but if it proceeded one step further, it was decidedly objec- tionable, inasmuch as it presented a false — a dangerous issue, and might be highly injurious and fatal to the defendants. There were two courses which the New School party might have taken. They might have applied for a mandamus, and this court would, at once, have reinstated them in the full enjoyment of their rights, if they had been unjustly deprived of any right. If, as they al- lege, one hundred and eighty thousand worshippers were, without form or reason, excluded from their connexion with the Presbyte- rian church, they could have brought an action, such as was insti- tuted against Mr. Breckinridge, Dr. Elliott, and Dr. Plumer, in May last, and this court would have restored them. They had not, however, chosen to take that course as a remedy for their grievances. They chose to try a bolder course. They chose to meet in Ranstead court and offer certain motions and resolutions, and at a certain period of their proceedings, to resolve the body into its original elements. It was a bold and intrepid measure, surely. But they did not succeed, for having reached a certain point of these proceedings, and meeting some unexpected obstacles, they openly seceded from the body. They withdrew from the General Assembly, and created another Assembly, and it is for them to prove that theirs is the true and lawful General Assembly. The question now at issue is, did they secede in a proper man- ner ? Under this writ of quo warranto, the remedy of their own selection, it is for them to show their title. They say that we acted irregularly in the General Assembly of 1838 — and therefore ask the judgment of this court in ouster: but the General Assembly of 1837 was entirely dissolved by the very terms of its adjournment. Look at what is prescribed in the constitution. Form of Government, Chapter XII. sect. 8. Each session of the Assembly shall be opened and closed with prayer. And the whole business of the Assem- bly being finished, and the vote taken for dissolving the present Assembly, the moderator shall say from the chair — " By virtue of the authority delegated to me, by the church, let this General Assembly be dissolved, and I do hereby dis- solve it, and require another General Assembly, chosen in the same manner, to meet at on the day of A. D. ," after which he shall pray and return thanks, and pronounce on those present, the apostolic benediction. The General Assembly of 1837, then was dissolved, entirely extinguished and annihilated, as though it had never had an ex- istence. It was not an adjournment of the General Assembly to meet again, nor a curia advisare vult, as is the practice of the Supreme Court of this state. As to the General Assembly of 1837, then, when it adjourned there was an end of every thing. It was dissolved. If any had been unjustly excluded from that Assembly, their proper remedy was to apply for re-admission to the General Assembly of 1838. They should have so applied. But instead of doing so, they chose to secede, and it is not competent for them now to prove that the proceedings of the General Assembly of 1837 were wrong, but they must prove that their secession was right, and conducted properly. We say that they never were ex- cluded from the General Assembly of 1838, that they never sought 45 admission there in a proper manner ; that they never gave that General Assembly an opportunity to decide their case. Judge Rogers said that the evidence appeared to be one link in connexion with the testimony which had already been admitted. The proceedings of the Assembly of 1837, were necessary to ex- plain the proceedings of 1838 ; and if not necessary for the relators, it would be for the respondents. The Court therefore overruled the objection, and admitted the minutes of 1837, as evidence in the case. The plaintiffs then read in evidence, an extract from the minutes of 1837, page 520, viz. Synods and Presbyteries. The following summary account of synods and presbyteries, tog-ether with the statistical reports of presbyteries in detail, present the Presbyterian Church as it was at the commencement of the sessions of the General Assembly. During these sessions, four of these synods, with all their respective presbyteries, were declared to be no longer a part of the Presbyterian church in the United States of America, viz. the Synod of the Western Reserve, [see Minutes, page 440,] and the Synods of Utica, Geneva and Genessee, [see Minutes, page 444,] and the Third Presbytery of Philadelphia was dissolved, [see Minutes, page 472.] The Assembly directed the Stated Clerk, having inserted a note to this effect, to pubhsh the statistics of these judicatories for the past year. [See Minutes, page 494.] The General Assembly of 1837, at the commencement of their sessions, bad under their care twenty-three synods, comprising one hundred and thirty-five pres- byteries, viz. 2. The Synod of Utica, containing Mh^five Presbyteries of St. Lawrence, Water- town, Oswego, Oneida, and Otsego. 3. The Synod of Geneva, containing the nine Presbyteries of Geneva, Chenango, Onondaga, Cayuga, Tioga, Cortland, Bath, Delaware, and Chemung. 4. The Synod of Genessee, containing the si'a; Presbyteries of Genessee, Ontario, Rochester, Niagara, Buffalo, and Angelica. 9. The Synod of the Western Reserve, containing the eight Presbyteries of Grand River, Portage, Huron, Trumbull, Cleveland, Maumee, Lorain, and Medina, In explanation of the document just read, Mr. Randall said he would read the following extract from the same minutes, (1837,) page 414. In answer to a request of the Stated Clerk, for direction in making out the general statistical table, for the current year, the Assembly ordered that he should insert in that table, the statistics in his hands for the past year, of those judicatories that have been declared by the General Assembly to be no longer parts of the Presbyterian Church, and to insert a marginal note to this effect; and that hereaf- ter, those statistics shall not appear in the general table published by the General Assembly. The plaintiffs next offered in evidence, a list of the presbyteries within the bounds of the four excinded synods, with the dates of their erection by the proper judicatories, by which it appeared that there were connected with those synods, twenty-eight presbyteries, jive hundred and ninety-nine churches, with five hundred and nine ministers, and fifty thousand four hundred and eighty-nine commu- nicants, as officially reported ; and by an estimate founded on the number of churches not reported, the whole number of communi- cants is stated at fifty-seven thousand seven hundred and twenty- four. The list is here subjoined. 46 PRESBYTERIES OF THE FOUR EXCINDED SYNODS. Presbyteries. ■5 Cm 6 ^2; lA 4) 0 c- 0 *- 'V. S 0 es . 0 C Church, and the General Synod of the Associate Reformed Church, respettiv ^"au The meeting was closed with prayer by the Rev. Ebenezer Dickey. ^^V- All which is respectfully submitted. Ashbel Green, Samuel Blatchford, John M'Dowell, Henry Southard. ^ min Strong, J. M. Mason, Ebenezer Dickey, John Lind, William Benja- Joseph Gushing. *Vi]son„ The foresroinsr report havinsr been read, and duly considered, was unr adopted. . . '"^"wusly Ordered, that the committee of conference on this subject wait oijitb „ the Associate Reformed Church, and inform them of the adoption oi. th' ^ rT ' j °^ union on the part of this General Assembly. " cies of Chui Minutes of 1822, p. W. The following communication from the General Synod of tb.e Jsss< jciate R r [ch, was received and read, viz : eiormed Resolved, That this Synod approve and hereby do ratify ' cbe ' pj^n of rr ' tween the General Assembly of the Presbvtei-ian Church ar ■ (\ 0"ie Associ p^r ed Church, proposed by commissioners from said churche ■ j_ «eiorm- Extract from the minutes of the General Svnod c,j • \hf Acc^^-„* ^^ ^ Church of Philadelphia, 21st May, 1822. " ^^^^ciate Reformed J^ iMEs Laurie, Moderator. J . Arbuckle, Clerk. Resolved, That a copy of the above resolution, autb. anticated bv thp a and the clerk, be immediately sent to the General As semblv of the P "'? ^''^^°^ Church, and that Rev. Ebenezer Dickey and Dr. Rob«i ft Patterson be a ^ *^"^" to wait upon tlie Assembly with said resolution. committee J. Arbuckxe, Clerk. The committee from the Synod of the Associate Re jformed Church the Assembly, and the resolution was read. Ppeared in Whereupon, Resolved, T\\3X the Assembly receive tJiis communication with pleasure; and the Rev. Jonas Coe, D. D., the Rev. TThomas M'Aulev I r " S'^^^t Rev. William Gray of the Presbytery of New York^ and Mr. Divie Beth '/''^ appointed a committee to wait upon said synod; and, inasmuch as ihe^d^tf'^^-^'^ presbyteries under the care of the synod, cannot appoint deleo-ates to attend tl"* 158 present General Assembly, cordially to invite all the delegates to the synod to take their seats in this house, as members of the Assembly. Resolved, moreover, That the committee aforesaid be directed to request the members of said synod to attend this Assembly on to-morrow, at 4 P. M., that we may, unitedl}'^, return thanks to Almighty God, for the consummation of this union. Rev. Erskine Mason, D. D., was here recalled by the plaintiffs. Interrogated by Mr. Randall, the witness said : I never knew an instance of the reordination of ministers coming from other deno- minations into the Presbyterian Church. My father was an or- dained minister of the Associate Reformed Church, and came into the Presbyterian Church under the union of 1821 without a reordi- nation. The same rule is observed in regard to ministers coming from other countries. There are instances of this character in the Presbytery of New York. Cross-examined by Mr. Preston, the witness said: the Second Presbytery of New York, which came into this church from the Associate Reformed Church, under the union of 1821, has never required ministers coming from other bodies to subscribe to our Confession of Faith. They do not use it themselves, as it was not required by the terms of the union between the two churches. The book of the Associate Reformed Church is that under which they act. The two books differed in some particulars in the Form of Government. I do not certainly know that the Confession of Faith is the same in all points. I believe that it is substantially the same as the Westminster Confession. I was a member, formerly, of the Second presbytery, but now belong to the Third presbytery. The Form of Government of the Associate Reformed Church is Presby- terian. It has sessions of ruling elders. Foreign ministers, that is, those coming across the Atlantic, are subjected to an examination and to a probation of a year, before they are received by the Third Presbytery of New York. We require in the Third presbytery an acknowledgment of the Confession of Faith of the Presbyterian Church. Re-examined by Mr. Randall, the witness said : The part of the Westminster Confession of Faith in relation to civil magistrates has been altered by both the Reformed and the Presbyterian Churches. The difference was not material. I do not recollect distinctly what. The constitution of the Associate Reformed Church was now given in evidence. Mr. Randall proposed to give in evidence the testimony of Dr. Green, in the case of Duncan against the Ninth Presbyterian Church. Dr. Green being one of the respondents in this case, the counsel for the relators proffer here his testimony in that suit, as unquestionable evidence, and decisive against the respondents in that case. Mr. Ingersoll would shortly favour him with his notes taken on that occasion, when he would recur to the subject again. With this exception he now closed the case for the relators. 159 The testimony for the relators having closed, Mr. Hubbell opened the case for the respondents, as follows : May it please the Court — Gentlemen of the Jury : You have been engaged nearly a vv^eek, in listening to a series of attacks, (so to speak.) made by the witnesses, and the counsel of the relators, upon the party which I and my colleagues have the honour to represent; and we have been compelled, by the decorum of the court, to sit and silently endure it. I cannot flatter myself, that these attacks have made no impression prejudicial to my clients. You would be more or less than human, had they not. I only ask you now, to give me your undivided attention, while I shall endeavour to obli- terate these impressions, by stating succinctly, the true history of this controversy. I engage to satisfy every candid mind, of the purity of my clients' motives, and of the justice and legaUty of their proceedings. In order properly to preface our defence, it will be necessary to analyze the case made, or attempted to be made by the relators. It seems to have divided itself into two heads of charge or in- quiry. First, the Acts of the General Assembly of 1837, called by our adversaries, aflfectedly and ex industria, " The acts of excision," but which, according to a fairer nomenclature, should be called " declarations of disconnexion or disowning acts ;" for by these acts, certain synods were simply pronounced to be no part of our church. Second, the process of organization of the General As- sembly in 1838, by which our adversaries assert, that they have possessed themselves of the sceptre, and by which they claim to be the true succession. As regards the first of these points, the relators, (as far as I can gather their meaning,) consider it merely ancillary to the second, and indeed, his honour only admitted testimony on this first point, as explanatory of that adduced, or to be adduced, on the second. In other words, the relators have attempted to show, that certain commissioners to the General Assembly of 1838, were excluded from their seats, in furtherance of certain acts of the General As- sembly of 1837, and assuming the infirmity of those acts, to deduce from thence the invalidity of this exclusion in 1838. This distinc- tion must be carefully observed, as I shall presently demonstrate to you, that the relators are compelled, by the necessity of their own case, to admit, that notwithstanding those acts of alleged dismem- berment, passed by the General Assembly of 1837, that Assembly retained its constitutional, unimpaired existence, up to the last mo- ment of its session. As regards the relators' second point, it is also to be observed, that they do not contend that the exclusion by the clerks, from the General Assembly of 1838, of the delegates, from the presbyteries in the four synods, violates the organization of 1838. They appa- rently admit that the Assembly of 1838, like that of 1837, might have existed or lived, without the vivifying presence of those dele- gates. They merely contend that the exclusion was unlawful, and seek in its unlawfulness a justification for certain ulterior operations, 160 which they now declare to have been a removal of the offending officers, but which were, as we shall show, adopted by them with a different view and purpose. They contend that the General Assembly had a right to remove the clerks who excluded these delegates, and the moderator, who, as they assert, refused to allow the Assembly to correct the mis- conduct of the clerks in this particular; and although they admit that a clear majority of the members, approved the conduct of the clerks and the moderator, yet, as this majority sat indignantly silent, when Mr. Cleaveland made a disorderly motion, if motion it may be called, and treated it as a tumult and an outrage, they must have been considered to have voted affirmatively. In other words, that this was a vote of the house, setting up an opposing organization, and committing suicide upon its own. When their case is divested of all extrinsic circumstances, it re- solves itself into this one narrow and truly absurd position, viz. " That the majority, when they meant ' JVo,'' and declared their mean- ing in every possible mode, but the use of that monosyllable, must be construed to have meant ' yes.'' " As we conceive, all the other evi- dence, by which you have been wearied, is foreign to this cause ; and this will be apparent, when you reflect that the power of the Assembly to remove its officers, if it exist at all, is not confined to the exigency of their misconduct, but may be exercised at the plea- sure of the Assembly, with or without reason, " stat pro ratione voluntas." Our adversaries maintain that the Assembly did remove these officers : if it did, why then have days been wasted in the attempt to prove that they were deserving of removal? They may, perhaps, mean to say, " these officers committed a wrong, and a majority of the members upheld them, it was there- fore licenseable for the minority to practice this legerdemain, al- though it is manifest it could only have succeeded by surprise, mis- conception, and error." If the members from the disowned synods have been injured, (which we deny,) surely there was some method by which they and their favourites might have brought this question of their right to seats in the Assembly, before the tribunals of the country, without the indecorous proceedings which took place in 1838, and without destroying the rights of those opposed to them. But, as we fear, they have been governed by another spirit, (engendered no doubt by honest but mistaken motives,) and have sought to make a profit from this supposed injury. Not content with regaining their own rights, they seek to usurp those of others. Such, gentlemen, is the case of the relators. We have endea- voured to restrict them to what we consider the true issue formed by the pleadings. His Honour, however, has not sustained these endeavours, and we have submitted, as we hope with grace, to his decision, although it entails upon us the necessity of being as dis- cursive as the relators have been. This unhappy Church has been for years a house divided against itself. Its dismemberment might therefore have been predicted long before the catastrophe occurred. This division is not a mere 161 logomachy, or war of words, as the counsel for the relators has as- serted, but a wide variance in tenets. Tenets so dissimilar, that, like liquids of different gravity and consistency, they cannot be com- mingled. It is a substantial difference on some of the most affecting subjects of human consideration. Our party are for a strict adherence to the doctrinal standards of the Church. Their party accept them only for substance of doc- trine. They cannot and do not dispute our Presbyterianism, but theirs is of a more equivocal character, though they decline from the standards in different degrees of departure. Some of them are nearly right, others are widely wrong. Our doctrines are taught at the Seminary of Princeton, in all their purity. That institution has, from its origin, been the prin- cipal seat of orthodoxy. There it is taught with fidelity, defended with zeal, and adorned with learning. The other party have their seminaries, where their peculiar views are inculcated, and from whence they are diffused with indefatigable diligence. Permit me to point out a few fundamental differences of tenet. One principally to be marked, for it is the root of many others, is an abstract opinion in regard to theology itself. We maintain that it emanated from the Almighty, in his revelations, in a state of entire perfection. That it sprung from the mind of the Deity in its full developed, adult proportions, and knew no infancy, or youth. Our adversaries, on the contrary, maintain that theology is an ad- vancing, improveable science. That the old formularies of the Christian faith are too antiquated for this enlightened age! Another subject of difference is the effect of Adam's sin, or fall, upon his posterity. Our party maintain that the sin of Adam is imputed to his posterity — that it is made their sin. We subject our mere human reason to the unequivocal teachings of holy writ, and for an explanation humbly wait the great teacher, death. Our ad- versaries, on the contrary, maintain that the sin of Adam is not im- puted to his posterity, and made their sin, but, that by Adam's fall, it is made absolutely certain and necessary, (in some incompre- hensible manner) that each and all his posterity will sin. Another subject of difference is one which no human being, whether philosopher or Christian, can contemplate with indifference. It is the power of the Deity over our moral nature. Our party maintain that he is almighty, not only over the physical, but the moral constitution of man, and that by a single act of his will he can make his creature good, how deeply soever that creature may be immersed in depravity and crime. The other party have sought to limit Omnipotence, and say, "thus far shalt thou go, but no farther." They maintain that a man may be bad against the will of the Deity, and the only means by which he can change him is by moral suasion, or by the inciting exhibition of motives. Another great subject of difference is the nature of the sacrifice upon Calvary; the true understanding of the Atonement, and the effect of the sufferings of Christ. We maintain that it was a satis- faction of the violated law; a tribute to Divine justice, by which a righteous God was propitiated. That Christ became our substitute, 14* 162 and underwent death for us. That the merits of Christ, his obe- dience, in the fulfilment of the law by his voluntary death, is im- puted to our race through faith ; that is, to the believers of our race, in the same manner that the sin of Adam was imputed to us. On the other hand, our adversaries deny the doctrine of imputation, and contend that he was always a placable God, and ready to be- stow pardon as soon as governmental justice would permit. They deny that his law requires an infinite victim, or that Christ yielded himself as such a victim, or bore the penalty of the law. They maintain that justification is merely pardon, and the condition, faith. Another great topic of difierence is the subject of regeneration or conversion, or the precise process or plan by which the heart of the sinner is changed. We maintain that it is merely an act of Omnipotence. That the sinner has no ability of his own to concur in that work; that his change is an act of God's grace, and that it may be instantaneous. They, on the contrary, maintain, that since the atonement of Christ, the sinner is competent to his own regene- ration, and that the process is gradual. Such, gentlemen, are the summa vestigia, or general outlines of this great dispute, which has caused the separation of this Church. A cordial re-union is impossible. A separation has been effected and made permanent for the sake of peace and religion. This is that great dispute which has abrupted friendships, divided families, and engendered strifes. It is in your power to rebuke this heaving tumult of the passions, and bid them be tranquil for ever. Such, gentlemen, was the state of the parties, and such the dis- tractions of this Church, when the session of 1887 commenced. It was well known throughout the land, that a great struggle would occur at this session. The parties, therefore, put forth their strength at the election, and the decided majority of the Old School party on the floor of this Assembly, leaves no doubt that they were and are the predominant party in this church ; and that the principles of theology, which they acknowledge are the true tenets, in the opinion of a majority of true worshippers in this Church, and that the doctrines of their adversaries are heretical. Nor was this ma- jority accidental, for it was even more decided in the Assembly of 1838, when, the relators will admit, every nerve had been strained by both parties, to acquire the mastery of numbers. I say that a great struggle was anticipated. For it was known that two systems of theology existed in the church, and both could not be permitted to be taught in an institution expressly formed to preserve uniformity of creed. This church having adopted a stand- ard of faith or a system of holy truths, it admits no double construc- tion of them. They can have but one meaning, and if there be doubt as to what that meaning may be, the constitution of the church refers that doubt to its great council, which has power authoritatively to settle that doubt, and to declare what the church shall teach as the true construction of the standards. Form of Government, chap. XII., sec. v. " To the General Assembly belongs the power of deciding in all 163 controversies respecting doctrine and discipline; of reproving, warning, or bearing testimony against error in doctrine." From the decision of this great council, there is no appeal, and when the General Assembly declares a doctrine heretical, it must no longer be heard in a Presbyterian church. Its maintainers must either conform to this decision, or go elsewhere and form new as- sociations: of which they may, at their pleasure, make what are heresies, when compared with our standards. This decision of the General Assembly, is the decision of the majority of that Assembly, and hence it results, (however harsh it may seem,) that the con- struction which the majority put upon the standards, is orthodoxy, and that of the minority is heresy. This power is necessary to, and inherent in every church establishment, or it ceases to be a church, call it what you please. This decision may be given either in the process of a judicial trial, and be the sentence upon an indi- vidual heretic, or it may be an abstract declaration of the Assembly, or "bearing of testimony" against heretical doctrines. In whatever form this declaration of the Assembly may be given against a particular opinion, that opinion is heresy, and must be abandoned by the faithful. The malcontents have no alternative but submission or secession. This uniformity of opinion is neither impracticable nor difficult. This church itself existed nearly half a century, in harmonious and halcyon repose. The two parties which now distract it are, (each being contemplated by itself,) of homogeneous materials, and capa- ble of forming a peaceful church. That nothing might be left undone which Christian charity seemed to require, upon a proposition emanating from a member of our party, a committee was appointed, consisting of five members from each party, for the purpose of negotiating an amicable separation. The effort failed by the fault of our adversaries, for, although they admitted that " the experience of many years has proved that this body is too large to insure the purposes contemplated by the con- stitution," and that " in the extension of the church, over so great a territory, embracing such a variety of people, difference of view in relation to important points of church policy and action, as well as theological opinion, are found to exist," and that " a division will be of vital importance to the best interests of the Redeemer's king- dom:" (I cite their language, Minutesof 1837, page 432:) yet they imposed one condition, to which no true lover of the church could submit — viz: that the church should be destroyed, and two new churches created from its fragments ! We allowed them their own terms in regard to their share in the property of the church — nay, had they asked it all, it would have been given to them ; but, as the majority, as the possessors and representatives of all the old seats of Presbyterianism, as the party who confessedly and rigidly ad- hered to her standards, we asked to be allowed to maintain the succession of our fathers! Our adversaries would only grant us peace upon the condition that we should destroy all for which we had hitherto been contending ! It will now be my duty to explain to you the real character of 164 the much abused transactions of 1837, by a studied misnomer, called, the acts of excision, viz : the resolutions of the Assembly of that year, declaring the Synods of the Western Reserve, Utica, Geneva, and Genessee, to be no part of the Presbyterian Church. When the great controversy, which I have described, was at its height, attention was drawn to an imposthume which had long af- flicted the church, but which, being filmed over and disguised, had hitherto escaped detection. I mean New England Congregational- ism, which had insidiously undermined the Presbyterian constitu- tion, and was the fatal source of all these errors in doctrine, which afflicted our church. The New School party is emphatically a New England party, it being composed, in a great measure, of New Englanders, or their descendants. New England Calvinism is not Presbyterianism ; they are Congregationalists or Independents, and are the lineal or collateral descendants of the English Independents, who, under the guidance of Cromwell, drove out Presbyterianism, after Presbyte- rianism had driven out Episcopacy. Our New England brethren are proverbially shrewd, acute, indefatigable, and ambitious, and are seldom introduced into our institutions without becoming mas- ters of them. The party which I represent, have long apprehended a design in their adversaries to convert the funds, the institutions, and above all, the name, of this venerable church into the means of furthering this peculiar system of theology, and various other pro- jects of their own. The instrument by which they have obtained admittance into our church, is a certain plan or agreement of Union between this church and the Congregational Association of Connecticut, adopted in the year 1801, which admits Congregationalists, upon certain terms, which I shall presently describe, into the bosom of this Presbyterian institution. The essence of Presbyterianism is a government by ruling elders, and the profession of Calvinistic doctrines. A church which is de- ficient in either of these elements, is not a Presbyterian church. The doctrines are, of course, considered of divine origin, and the government by ruling elders is deemed not less so, and, therefore, it is not capable of change or modification. The constitution of this church is strictly Presbyterian, both in these particulars, and also in all the other details of its government. The primary go- vernment is the church session, composed of ruling elders, elected by the congregation for life, ordained by a regular process, and pledged to our written Confession of Faith, and of the minister who is ordained in a similar manner, by the presbytery, which is the next highest tribunal. The church session may try any member of the congregation, for ecclesiastical offences, with an appeal to the pres- bytery, but the church session cannot try or dismiss the minister. When once ordained, this clerical officer holds independently of his congregation, and is only amenable to his presbytery. The Con- gregational system has no church session composed of ruling elders, elected and ordained for life. It wants this essential, and, as we believe, apostolical feature of Presbyterianism. The government 165 of the Congregational Churches, is vested in the whole of the male members of the church. They elect their own ministers, and de- pose them at will. They have no Confession of Faith. Each church is independent of all others, or only connected in associa- tions for mutual advice. In the Presbyterian Church there is, on the contrary, a regular system of connexion and subordination. Above the church session, and controlling it by appeals and other- wise, is the presbytery, which has ecclesiastical rule over a territory containing several churches. All the ministers, and a representa- tive ruling elder from each church within this territory, compose the presbytery. These presbyteries are the constituent bodies, which are represented by delegates in the General Assembly. The synods are judicatories superior to the presbyteries, embracing a wider territorial jurisdiction, but as they are not represented in the General Assembly, are no more in the church polity, than an ap- pellate judicatory. Here, gentlemen, let me pause, and request you to observe the effect of this constitution of things. The delegates to the General Assembly are elected by the presbyteries, and the delegates who compose the presbyteries, must be ruling elders from the churches. Of course, it results, that if there be any thing vicious and uncon- stitutional in the primary delegation, that is from the churches to the presbytery, it will affect and vitiate that from the presbyteries to the General Assembly. If the churches should send mere lay- men, instead of ordained elders to the presbyteries, these presbyte- ries are viciously constituted, and the delegates from such presby- teries to the General Assembly, are elected by a false and uncon- stitutional constituency. On the apex of this pyramid of subordinate tribunals, sits that august body, the General Assembly. It unites the wisdom of all, and by the weight and pressure of its authority, keeps the inferior parts in their true position, and preserves the beautiful symmetry of the whole. But the Plan of Union marred this structure, for it provides, among other things, "That if any congregation consists partly of those who hold the Congregational form of discipline, and partly of those who hold the Presbyterian form, we recommend to both parties, that this be no obstruction to their uniting in one church, and settling a minister. And that, in this case, the church choose a standing committee from the communicants, whose business it shall be to call to account every member of the church who shall conduct himself inconsist- ently with the laws of Christianity, and to give judgment on such conduct. And if the person condemned by this judgment, be a Presbyterian, he shall be at liberty to appeal to the presbytery; if a Congregationalist, he shall be at liberty to appeal to the body of male communicants of the church: in the former case, the deter- mination of the presbytery shall be final, unless the church consent ,to a further appeal to the synod, or to the General Assembly; and in the latter case, if the party condemned shall wish for a trial, by a mutual council, the cause shall be referred to such council. And 166 provided, the said standing committee of any church, shall depute one of themselves to attend the presbytery, he may have the same right to sit and act in the presbytery as a ruling elder of the Pres- byterian Church." — Assem. Dig. p. 298. This Plan of Union was adopted at the solicitation of the Asso- ciation of Connecticut, and it was intended as a temporary provi- sion to foster the formation of churches on the frontier, " with a view to prevent alienation, and to promote union and harmony in those new settlements which are composed of inhabitants from these bodies." — Dig. 297. Every provision of this Plan of Union which I have read to you, is a violation of the constitution of the Presbyterian Church. It introduces into the body of the Presbyterian Church, whole con- gregations of communicants who have not professed our standards of faith — who are not governed by ruling elders — and who are, therefore, not Presbyterians. It enables congregations to send un- ordained lay delegates to the presbyteries. It takes away from Presbyterians the right of appeal from the decisions of the presby- teries. It introduces into the body of the church persons who are not subject to the tribunals of the church. If the Presbyterian form of government, in its essential features, be of divine origin, (which is the faith of our church,) then these alterations in its essential structure, would, under any circumstances, be without warrant or foundation, but considered simply as human institutions, their alter- ations were void, because not submitted to the presbyteries. " Before any overtures or regulations proposed by the Assembly, to be established as constitutional rules, shall be obligatory on the churches, it shall be necessary to transmit them to all the presby- teries, and to receive the returns of at least a majority of them, in writing, approving thereof." — Form of Gov. p. 365. They will be void, too, in the consideration of this civil tribunal, as conflicting with the act of the Legislature of Pennsylvania, in- corporating the " Trustees of the General Assembly of the Pres- byterian Church in the United States of America." The power of electing these trustees being given to " the ministers and elders forming the General Assembly of the Presbyterian Church." Besides, the direct unconstitutional provisions in this Plan of Union, it was made the cover of various other unconstitutional practices. This plan provides, in the section read, for mixed churches; but pure Congregational churches, without any inter- mixture of Presbyterianism, owing to the laxity produced by this Plan of Union, sent their unordained lay delegates to the presby- teries, and were admitted. When controversy called attention to the subject, it was ascer- tained that, by means of this Plan of Union, and the abuses that originated with it, there were, in the bounds of the Synod of the Western Reserve, one hundred and nine churches, out of one hun- dred and thirty-nine, purely Congregational or mixed. And in the Synods of Utica, Geneva, and Genessee, two-fifths of the churches were Congregational or mixed. Here was this vast body of Con- gregationalists, although denying our standards, rejecting and 167 scoffing at our form of government, and in no wise subject to our discipline, or to our tribunals, yet participating in our counsels, voting upon our questions of faith or doctrine, and actually inflict- ing upon us the discipline of a code, whose authority upon them- selves they utterly deny. They were themselves conscious of the absurdity of their claims, and of our submission to them, and there- fore, in the statistical reports which they made to the Assembly, disguised themselves under the name oi Presbyterian churches. In the great struggle which was anticipated between tlie parties thus divided, it was the determination of those whom I represent, that none but Presbyterians should participate, and in this determi- nation originated the acts, in regard to which there has been so much clamour. That the purpose was just, constitutional, and proper, none who have heard my statement can doubt. The ques- tion now to be agitated is, whether the means used to effect that purpose were equally commendable. These means were, the passing of a resolution by the General Assembly, abrogating the Plan of Union, as unconstitutional and void from its origin, and certain acts disowning the Synods of the Western Reserve, Utica, Genessee, and Geneva. Our adversaries have thought fit to represent these acts as tyran- nical, because, (as they assert,) they disfranchised 500 ministers, 599 churches, and 60,000 communicants. This statement has been so often repeated, and so many changes have been rung upon it, that you will perhaps be surprised to hear me assert that it is untrue. I will presently prove to you, that no minister, church, or commu- nicant, has been disfranchised by these acts. Our adversaries have also thought fit to represent these acts as a condemnation, without hearing, of 500 ministers, 599 churches, and 60,000 communicants; this is also untrue. These acts were simply requisitions made by the General As- sembly, upon the presbyteries and churches within the bounds of these synods, that they should ask such Congregational churches, as, under the Plan of Union, or by falsely representing themselves to be Presbyterians, had gained access to the judicatories of the church, to adopt our form of government, or if they refused, then to shake them ofl^. So far from disfranchising 599 churches, none were to be excluded from our connexion, if they would adopt our form of government; or, in the case of their obstinate nonconfor- mity, the measure would result in the exclusion of but two hundred and sixty-nine churches, or thereabout, that being the estimated number of Congregational churches in the bounds of these synods. The residue of the 599 churches being Presbyterian, were in no substantial manner affected by these acts. As to the 509 ministers, they were not, in the least degree, the subject of these measures, for none of them were Congregational ; the clergy of this district having, almost without exception, caused themselves to be ordained as Presbyterians, preferring, no doubt, the more stable tenure of office which that institution afforded them. These disowning acts simply required of them to leave one presbytery and go to another most convenient to themselves. As regards the 60,000 commu- 168 nicants, if the churches in which they worshipped did not choose to adopt the Presbyterian form of government, each individual had but to enter the nearest Presbyterian church, and claim the bene- fits of communion. As regards them, those denounced acts merely require them not to continue to worship in churches which would not adopt our discipline and order. That such is the true operation of these acts, will be apparent to any unprejudiced man who will peruse them. They are, perhaps, unskilfully drawn, and if but part of them be read, they seem to justify the aspersions of our adversaries; but if the whole be read together, then the injustice which has been done to us will be apparent. "That in consequence of the abrogation by this Assembly of the Plan of Union of 1801, between it and the General Association of Connecticut as utterly unconstitutional, and therefore null and void from the beginning, the Synods of Utica, Geneva, and Genessee, which were formed and attached to the body under, and in execu- tion of this Plan of Union be, and are hereby declared to be out of the ecclesiastical connexion of the Presbyterian Church in the United States of America, and that they are not in form or in fact an integral portion of said church." He that should stop here, would perhaps deceive you and himself, but let us continue. "That inasmuch as there are reported to be several churches and ministers, if not one or two presbyteries, now in connexion with one or more of said synods, which are strictly presbyterian in doc- trine and order, be it therefore farther resolved, that all such churches and ministers as wish to unite with us, are hereby directed to apply for admission into those presbyteries belonging to our con- nexion, which are most convenient to their respective location ; and that any such presbytery as aforesaid, being strictly Presbyterian in doctrine and order, and now in connexion with either of said synods, as may desire to unite with us, are hereby directed to make application, with a full statement of their cases, to the next General Assembly, which will take proper order thereon." From this it is manifest that the nature, character, and object of these acts are just what I have asserted, and no more. No Presbyterian minister is injured, unless it be an injury which entitles him to turn his para- cidal hand against his church, that the General Assembly has re- moved his connexion from one presbytery to another, and that other of his own selection. No Presbyterian church is injured, unless it be an injury to detach them from one presbytery and annex them to another. I have not heard from our adversaries, how these re- movals were injuries, except that by the statutes of the church, when a. minister removes from one presbytery to another, he is bound to undergo an examination on practical religion! Would it not be as well for the church, that all its pastors should undergo such an examination periodically'? It certainly can be no great hard- ship, when the ministers themselves select the presbyteries to which they will apply. As regards the presbyteries in these synods, which are strictly Presbyterian in doctrine and order, a kindly provision 169 is made for ihem. But were it otherwise, it would be a matter of indifference, for when the churches and ministers are provided for, all that equity and justice require is fulfilled; the presbyteries are merely artificial bodies, and incapable of having rights apart from those of their constituents. They are, it is true, in some sense, the constituent bodies of the General Assembly, but that is merely in the sense of electoral colleges, sending delegates to represent, not their own rights, but those of their constituents. Thus I have de- monstrated, that, by these acts, no essential part of the Presbyterian Church was excinded, except at their own election and by their own obstinacy. These acts do not compel the presbyteries, churches and ministers, to continue their connexion with us, but merely by requiring from them an act of adhesion, put it in the power of the malcontents, to retire and voluntarily relinquish the connexion with us. With the same view, the disowning acts contain the followino; provisions: *' That the General Assembly has no intention, by these resolu- tions, to afifect in any way the ministerial standing of any members of either of said synods; nor to disturb the pastoral relation in any church ; nor to interfere with the duties or relations of private Chris- tians in their respective congregations; but only to declare and determine according to the truth and necessity of the case, and by virtue of the full authority existing in it for that purpose, the relation of all said synods, and all their constituent parts, to this body and to the Presbyterian Church in the United States." It was contemplated, as I have said, that the Presbyterians in these synods might prefer their Congregational Associations to ours; this declaration was therefore adapted to such a contingency. It leaves them a complete church system, should they choose to declare their independence. These acts did not go into those synods, presbyte- ries, and churches, and expurge them of Congregationalism, and thus reduce them to a fragmentary state: but by acting upon whole synods, they benevolently gave these churches the option of our communion, or of a separate organization of their own, ready to their hands, in sj'nods, presbyteries, and churches. And here let me observe, that we are in the habit of calling our church the Pres- byterian Church, whereas, it is more properly a Presbyterian Church; connexion with us is not necessary to Presbyterianism. There may be, and are in this country other churches essentially Presbyterian, which are unconnected with us. Those churches which might retire from our connexion would not thereby lose their Presbyterian character, if otherwise entitled to it. Many clergymen and churches within these synods, have con- formed to the requisitions of the disowning acts, and are now in full connexion with our Church. The mass of them have refused to comply. They met in convention, and determined to reject the means of restoration which we pointed out to them, and resolved to cast themselves upon us with their burthen of Congregationalism ; and now as a means of tyrannizing over us, falsely represent that we have tyrannized over them. The other untrue representation, with which our adversaries have 15 170 endeavoured to excite passion and prejudice against us, is, that we have condemned 599 churches, 509 ministers, and 00,000 commu- nicants, without a trial, or an opportunity of defence. I have just demonstrated that it is only the Congregational portion of these 599 churches, and 60,000 communicants, which has been affected by these acts. This action of the General Assembly to expurgate Con- gregationalism bears no resemblance to a cundemnation, and it would have been impossible to have subjected the obnoxious churches to a trial. Try them! for what? For being Congrega- tional in their order? That certainly is no crime. Try them! They do not acknowledge your jurisdiction ; they participate in go- verning you by sending their lay delegates into your judicatories, but they are not subject to your tribunals. The only tribunal to which they are subject by the Plan of Union, is their own congre- gation! Thus they must try themselves, if they are tried at all! and the only appeal from this tribunal is to the Association to which they belong. But perhaps the presbyteries must be tried for admit- ting Congregational delegates. Until the Plan of Union was abro- gated, this was no offence, the presbyteries were, by the existing laws, bound to receive these delegates. It is only then by contin- uitig to admit such delegates, after the abrogation of that plan, that they would become obnoxious to censure; in other words, the abro- o^ation of the Plan of Union made it necessary for the presbyteries to purify themselves of Congregationalism, and this is substantially the whole efTect of these disowning acts. The entertaining of these Congregational delegates was no crime, before the abrogation of the Plan of Union, for which there could be a trial, and the disowning acts prevented its becoming a crime thereafter. The General As- sembly has unquestionably the power to create presbytenes and synods; as to the latter, it is expressly given by the constitution, and as to the former, it is a power of necessary implication, and has been repeatedly exercised without question. If the General Assembly has power for the convenience of the church, to erect presbyteries and synods, she has necessarily the power to dissolve or destroy them, when the like convenience requires it. Had the General Assembly dissolved those synods and presbyteries, and de- clared the churches and ministers within their bounds to be united to the adjacent synods and presbyteries, all must have admitted that this was a constitutional proceeding, and we should have had no clamour of disfranchisement and condemnation without hearing. How does our proceeding differ from this ? I have shown that we have substantially united all the Presbyterian churches and ministers to the adjacent presbyteries, we have, however, excluded the Con- gregationalists; in this consists the distinction, if there be any; our right to exclude them rests upon the unconstitutionality of the Plan of Union. If that arrangement was unconstitutional and void, the party who claims the benefit of it is not to be tried and condemned for his unconstitutional claim, but the party from whom is sought performance of the illegal arrangement, may refuse on the ground of its invalidity and unsoundness. This is substantially what the General Assembly has done. 171 It were a waste of time to discuss whether the powers of the General Assembly are judicial or legislative. She here acted in the mere simple and uncomplicated character of a party to an arrange- ment, called upon to fulfil that arrangement, but declining because the arrangement was illegal and void. These acts may be justified in another aspect. The General Assembly is a representative, de- liberative body, and entitled to determine upon the qualifications of those who may claim membership. This is not only the general law in regard to such bodies, but has been for years the practice of this very Assembly. The constituency of this Assembly is pe- culiar: it consists not of natural persons, but of artificial bodies. The right to determine claims of membership involves the right to decide the qualifications of the electors, and, if those electors be artificial bodies, to ascertain their legal organization. When these artificial bodies admit into their structure materials of an unqualified and vicious nature, may not the Assembly require the expurgation of these materials? The Plan of Union I have demonstrated to be unconstitutional. It is sought, however, to maintain it, and supply the want of the jurisdiction of the presbyteries by their long acquiescence. An unconstitutional statute remaining on the statute book unused and inactive, would not be considered as acquiesced in, because it is not repealed. It is its use and effects that may be the subject of acquiescence. Before this presumption arises, it must be shown, that the parties acquiescing were aware of the facts and events which they are to be construed to have approved. These Congre- gational Ciiurches have grown up insidiously and in disguise, and until recently were unknown to the great majority of the presbyte- ries. Under such circumstances there can be no acquiescence. Had these churches represented themselves in the statistical reports which they presented yearly to the General Assembly, as Congre- gational, we should have yearly acquiesced ; but when in these re- ports they have represented themselves to be Presbyterian churches, we can only be construed to have acquiesced, by being construed to have disbelieved them. We will, however, put it on higher grounds; the incorporating act is for the benefit of a Presbyterian Church, and nothing short of the power of the Legislature can make it, in whole, or in part. Congregational. The government by ruling elders, according to the faith of this church, is of apostolical and divine institution; the action or acquiescence of the presbyteries may change the constitutional rides, but cannot alter the essential doctrines of the church, which claim a heavenly origin. But whatever may have been the infirmity of these proceedings in 1837, they, by the confession of our adversaries, did not destroy the Assembly of that year. On the contrary, it continued its legal existence up to the last hour of its session, when it was regularly and constitutionally dissolved, and was from thenceforth to be ac- counted with things that were, and are not. For by the constitution of this church, the General Assembly is a deciduous body. It en- dures but one session, and the General Assembly of any one year is not a continuation of the General Assembly of the preceding year, 172 but a new and independent body. The succession, the principle of identity is preserved in the church itself, and not in the General Assembly. Hence at the end of its session, the moderator pro- nounces it dissolved, and calls another for the ensuing year, and proclaims the time and place at which such ensuing Assembly shall meet. "Each session of the Assembly shall be opened and closed with prayer. And the whole business of the Assembly being finished, and the vote taken for dissolving the present Assembly, the mode- rator shall say from the chair, ' By virtue of the authority delegated to me, by the Church, let this General Assembly be dissolved, and I do hereby dissolve it, and require another General Assembly, chosen in the same manner, to meet at on the day of A. D.' " Form of Governiuent, Chap. xii. Sec. viii. When, therefore, on the 8th day of June, 1837, the Assembly of that year resolved : " That this General Assembly be dissolved ; and another General Assembly, chosen in like manner, be required to meet in the Seventh Presbyterian Church, in the city of Philadelphia, on the third Thurs- day of May, 1838, at 11 o'clo'ck, A. M.," and "the moderator dis- solved the Assembly accordingly." That Assembly ceased to exist for good or ill, and the Assembly of 1S38 came together with au- thority, powers, and faculties unimpaired by any acts of the pre- ceding Assembly. Particularly in the matter of admitting or rejecting members, and deciding on their qualifications, &c., it was bound to take no directions from the preceding Assembly. The members of the General Assembly of 1838 may not have been, and in point of fact many of them had not been members of the Assem- bly of 1837. You will presently see, gentlemen, the important bear- ing of these considerations. 1 have said that our adversaries have recognized the continued legal existence of the Assembly of 1837, down to the last day of its session. Among the many proofs of this fact, let me select two. The New School organization, if organi- zation it can be called, commenced with Mr. Cleaveland's declara- tion. "We have been advised by counsel learned in the law, that a constitutional organization of the Assembly must be secured at this time and in this place." Now as it was the very last resolution of the General Assembly of 1837, to fix that time and place for the organization of the Assembly of 1838, this pi'oceeding of Mr. Cleave- land clearly recognizes the capability of that Assembly to do legal and valid acts, after the members from the four synods were ex- cluded. Again, the General Assembly of 1837, after disowning the Synod of the Western Reserve, elected three trustees to supply va- cancies which had occurred in the Board of Trustees. Now it is manifest, that if this disowning act was a dismemberment of the church, and the excluding or excision of a material part of the cor- poration, then this decision was invalid. The members so excluded endeavoured to treat it in that light, and gave notice to the trustees not to recognise any orders which might be made upon them by this dismembered Assembly for the disbursement of money. But the New School Assembly of 1838 thought otherwise; for when they 173 were about electing the relators as trustees, they expressly declare that there were no vacancies in the board. A declaration which would have been untrue, had the Assembly of 1837 been incapable of valid action after the supposed dismemberment. Nor was this a mere declaration, for by the standing rules it is provided "When the day of election arrives, the Assembly shall ascertain what va- cancies in the number of the eighteen trustees incorporated, have taken place by death or otherwise ; and shall first proceed to choose other members in their places." Assembh/s Digest, page 199. The declaration of the New School Assembly to which I allude, is in these words. " At ten o'clock the Assembly proceeded to the order of the day, viz. the election of six trustees of the General As- sembly. Messrs. Bogue, Brown, and Chapin, were appointed to receive the ballots, and report the result. The Assembly ascei'iained that no vacancies in the Board of Trustees have occurred by death, or otherwise.'" New School Minutes of 1838, p. 654. T have taken pains to prove this position for two purposes; first, to show, that if the disowning acts were unconstitutional and void, they did not destroy the General Assembly, and make it a hareditas jacens, into which any straggler might enter and become the occu- pant: and, secondly, to show that, as the organization of 1837 con- tinued valid after the removal of the members from the synods in question, so the Assembly of 1838 might, also, be validly organized, upon the principle of their exclusion. I have endeavoured to demonstrate, that the General Assembly of 1837 was entirely dissolved at the close of its session. And that the Assembly of 1838 was a new and independent body, for the ob- vious purpose of demonstrating that the proceedings of 1838 must stand or fall by their own intrinsic merit or demerit, and can derive neither detriment nor aid from the preceding session, except so far as the proceedings of any anterior year form a precedent, or rule of action, to be respected and obeyed by the ministerial officer, for the time being, until the succeeding Assembly shall, in the exercise of its free and unshackled independence, abolish such rules. Now, let us examine the proceedings of 1838. The relators have brought witness after witness, to prove that the clerks rejected the members from the four synods; that Mr. Patton moved to have their names added to the roll, that his motion was declared out of order; that he appealed, that his appeal was declared out of order; that Dr. Mason made a motion to the same effect, which was also de- declared out of order; that he appealed, and his appeal was de- clared to be out of order; that Mr. JSquier demanded his seat in the house, and that his demand was refused; and that Mr. Cleaveland rose, and declared, as the reason for the step he was about to take, that the members from the four synods had heanrefused their scats, and, then, treating the chair as vacant, moved that Dr. Beman should take it; that this motion was carried by the acclamations of their partisans, no one voting in the negative, and also, several suc- ceeding motions, by which a complete set of officers were created, and the virtue, (as they maintain,) entirely extracted from the old organization, under the former officers, who were left sitting in 15* 174 their places, holding tiieir barren sceptres, divested of all real au- thority. Now, I will undertake to dennonstrate, both from the relator's testimony, and that which we will produce on our side, that the whole of these proceedings, from the beginning to the end, were a series of the most ridiculous blunders. That these gentle- men came into the Assembly, with a programme of conduct to be pursued, but that the exigency which they anticipated did not occur, and yet they performed their premeditated parts, and left the incon- gruities to subsequent explanation. By the constitution of this church, the presiding officer, called the moderator, and the clerks of the preceding Assembly, act as the officers of the succeeding Assembly, until it is organized, and chooses officers of its own. Previously to the year 1826, after the moderator had made his opening prayer, the commissioners pre- sented their commissions to the clerks, who read them publicly, and then enrolled them. And, until such reading and enrolment, the commissioners had no right to sit, speak or vote as members of the Assembly. In that year, an amendment to the constitution was originated, which afterwards received the sanction of the presby- teries, by which the commissions, instead of being publicly read, were to be examined merely, and certain standing rules were adopted, regulating the manner and process of this examination. They are in these words: " 1. Immediately after each Assembly is constituted with prayer, the moderator shall appoint a committee of commissions. 2. The commissions shall then be called for and delivered to the committee of commissions, and the person delivering each, shall state whether the principal or alternate is present. 3. After the delivery of the commissions, the Assembly shall have a recess until such an hour in the afternoon as will afford sufficient time to the committee to examine the commissions. 4. That the committee of commissions shall, in the afternoon, report the names of all whose commissions shall appear to be re- gular and constitutional, and the persons whose names shall be thus reported, shall immediately take their seats and proceed to business. 5. The first act of the Assembly, when thus ready for business, shall be the appointment of a committee of elections, whose duty it shall be to examine all informal and unconstitutional comtnissions, and report on the same as soon as practicable." Subsequently the stated and permanent clerks were appointed to be a standing committee of commissions, under the foregoing rules. And the commissioners were directed to present their commissions to this committee, before the commencement of the session in the morning, and the committee were thus enabled to make up their report for the morning session. I will now read to you the only constitutional provision which bears upon this subject, and then we shall be prepared to measure the conduct of our adversaries by these standards. "No commissioner shall have a right to deliberate or vote in this Assembly, until his name shall have been enrolled by the clerk ; and 175 his commission examined and filed among the papers of the As- sembly." Form of Government, cliap. xii, sec. 7. JNow it appears that the commissioners from the four synods presented their commissions to the committee of commissions, who had the power, by the 4th of the above rules, to reject them, if they did not deem them constitutional. They, though by no means bound by the proceedings of 1837, except as a precedent, (it being the opinion of the highest tribunals of the church on the constitu- tionality of these commissions,) reject them as unconstitutional Notwithstanding they were at Hberty to decide otherwise, they gave this judgment, and being a competent tribunal, their decision could only be reversed by the General Assembly, according to a system provided by these rules. The General Assembly confides this review to a committee of elections, and it is the first business of the Assembly to appoint this committee. Now you will observe that the committee of commissions are only bound to put the names of such, as in their judgment, have regular and constitutional com- missions on the roll, the others they simply reject, and they must be brought before the house, like other business, by the motion of some member, and the moderator will refer the same to the com- mittee of elections as soon as that committee is appointed. We shall show you that the committee of commissions advised them thus to apply to the house. A practice has sprung up of reporting irregular commissions in a separate roll and thus to bring them to the notice of the house which refers them to the committee of elec- tions, but this, you will observe, is no part of these rules, and is a mere practice of convenience adopted by the clerks. We shall prove to you that the clerks debated between themselves the point whether these rejected commissioners ought to be presented to the house by them, or whether they should be presented by some mem- ber. The latter opinion, which is a strict adherence to the rule,, prevailed. Now here let us pause and inquire whether these clerks have committed any breach of duty. To them is referred, bv the standing rules of the house, the question of the constitutionality of all commissions which are presented to them. They may make a weak or erroneous judgment, but that is no crime! Were they in- fluenced or aftected by the disowning acts of 1837? It is most likely that they were; is that a crime? That those disowning acts deprived them of the exercise of their judgment we deny, but we would have considered it the height of arrogance had those officers disregarded the opinion of the highest tribunal in the church; it was but a decent respect to the majority of that body to submit the correction of their errors, if there were errors, to the judgment of the house. On this act of the clerks our adversaries base the right to remove them, which, they say, they subsequently exercised. The right to remove the moderator, they attempt to deduce also from his misconduct (as they call it) in his treatment of Patton, Mason and Squier. Now what is the real account of this matter, both as the relators have shown it upon their testimony, and as we shall more fully develope it in ours'^. And first, immediately after the moderator, Dr. Elliott, had opened the Assembly with prayer, 176 Mr. Patton rose and said he had certain resolutions in his hand which he wished to offer. He did not read the resolutions, and the moderator was entirely ignorant of their contents. His decision, therefore, cannot be ascribed to any opposition to their matter. He decided that they (and so would have been his decision as to any other resolution) were out of order, as the first business was the formation of the roll. The propriety of tiiis decision no one in his senses can doubt. The rules of 1826, which I have read to you as they originally stood, consider the house so absolutely inane and in- capable before the roll is reported, that they direct it to be adjourned from the time the commissions are committed to the clerks, until they are ready to report. And the constitution itself provides, that no member shall be allowed to deliberate or vote until he is enrolled. Until, therefore, the roll is reported, as no one is entitled either to deliberate or vote, who is there to entertain a motion? Mr. Patton, after committing this solecism, still persisted and thereby betrayed a remarkable unacquaintance, in himself and the party whose organ he was, of the structure of this body. He appealed from this just decision. To whom did he appeal? The appeal must be to some persons who can deliberate and vote upon that appeal. But the roll not being reported, there were none entitled to deliberate and vote; in other words there was no house to which the appeal could be made. The moderator, properly, therefore, declared that ap- peal out of order. Mr. Patton took his seat and acquiesced in the decision. The roll was then reported, and thereupon, the mode- rator made a proclamation or call for any commissions which had not been presented to the clerks, and stated if there were any such, now was the time to present them. A usual formula and a rem- nant of the original practice under the rules of 1826. Rule II. — " The commissions shall then be called for, and deliver- ed to the Committee of (^Commissions." This practice was subsequently modified, as you have already learned, by delivering the commissions to the clerks, composing the Committee of Commissions, before the meeting of the General As- sembly: but it was deemed judicious to retain the old practice of calling for commissions at the opening of the Assembly, lest some from inadvertence, misapprehension, or want of opportunity, should not have presented their commissions to the clerks. Although the clerks have read the roll, yet the roll is not completed, and the house ascertained, until this proclamation has been made, and a reason- able opportunity given to assent to it. The essential nature of this proclamation to the well ordering of the house, even in the opinion of our adversaries, is made manifest, by the fact, that the first act, performed by the New School moderator, after he was installed, was to make this very proclamation. While this call, by Dr. Elliott, was pending, and one commissioner, at least, was coming forward to avail himself of it. Dr. Mason rose, and disregarding the busi- ness which already possessed the house — (for he did not pretend that his application was responsive to that call) — disregarding that standing rule of order, which provides that the very first business of the house shall be the appointment of a Committee of Elections, 177 he moves that the names of certain commissioners, whose commis- sions had been presented to the clerks, and rejected by them, sliould be added to the roll. Notwithstanding the manifest disorderly na- ture of this motion, the moderator. Dr. Elliott, acted with great moderation and composure. Instead of absolutely, and at once declaring the motion out of order, as he had reason to suspect, that the commissions so offered were from the disowned synods, he in- quired, and ascertained that fact, and then carefully qualifies his rejection of the motion, by saying, it is out of order, at this time. That the rejection of the motion might not be construed into a re- jection of the men, he carefully qualifies it, so as to show that the order only of the motion was objectionable, and that the time would come, when it would be receivable. Here let me interrupt the flow of events, to state, that it is mani- fest that it was not the intention of the officers to exclude these commissioners from access to the decision of the house, in this case. The clerks told them to apply to the Assembly. The moderator told Dr. Mason that a time would come for their presentation. And there cannot be a reasonable doubt, that if presented to the house, after the appointment of a Committee of Elections, they would have been referred to that committee; and such of them as could have demonstrated that they came from pure presbyteries, would have been admitted to their seats; there would have been no pre- tence to exclude them. Even the disowning acts invite such to come to the Assembly of 1838, and take their seats. As to those whose primary constituency were Congregational churches, they would have had their case decided on by a majority of the house, entirely uncontrolled, and unshackled, by the proceedings of 1837; and if the conjectures of Mr. Phelps, one of the relators' witnesses^ which you have heard given in evidence, be right, then the majority would have admitted them. For he assures us, that many Old School members would have voted for their admission, so as to make a majority in their favour. But to return to Dr. Mason : not abashed by the impropriety of his motion, he appealed, and the moderator refused to put that appeal. Here is the very head and front of our offending. The motion may have been wrong; at all events, the moderator was constitutionally authorized to decide it to be wrong, but the refusal to put the appeal, was, say they, an usurpation, an act of tyranny, and breach of privilege ! That an appeal may be out of order, will not be denied. For instance, an appeal must be made immediately, upon the decision complained of; if other business is allowed to intervene, the right of appeal is gone, and he who should attempt to make an appeal under such circumstances, would have it rejected by the moderator. If there be one such case, there may be others ; and no stronger case than the one I am discussing, could be suggested : for, by putting the appeal, in order to avoid the violation of Dr. Mason's privilege, he would have violated the privilege of others. The roll was in the process of being completed ; a call had been made for persons who were present with commissions, to come forward and qualify them- selves for voting, by being enrolled. The physical performance of 178 this act required some lapse of time. We are informed by the evi- dence, that there was one commissioner, Joshua Moore, who was in the act of avaihng himself of the moderator's invitation, when Dr. Mason rose. Had there been fifty in that predicament, some time must have elapsed before the last, in the succession of fifty, (for the enrolling must be done successively,) could have been qualified to vote. Might not such fiftieth commissioner, or even Joshua Moore, if he stood alone, have said, " Submit no question to the house, until I am qualified to participate in the same. The roll is not yet complete." And such was the principle of the re- jection of the appeal; the roll was not yet complete, and the house had not yet been ascertained. The clerks had reported such as had presented their commissions, and whom they deemed entitled to seats: the moderator was about adding to them, by his procla- mation, such as had unquestioned commissions, but had not availed themselves of the previous opportunity. But suppose this honest, well meant decision, was erroneous, and a breach of privilege, what flowed from it ? We understand that Dr. Mason acquiesced in it: he sat down without complaint, and another application to the moderator from one of their own party (Squier) followed. This question of the breach of privilege is en- tirely an after thought. The subsequent proceedings of Mr. Cleave- land are so plainly opposed to numerous rules of the house, and the principles which govern every deliberative body, that our adversaries are constrained to seek some extraordinary justification for this ex- traordinary conduct ; and they think they have found it in this sup- posed breach of Dr. Mason's privilege. But 1 will presently show you that none of the ulterior proceedings had any connexion with this supposed breach of privilege. But there is, however, an inter- mediation between Dr. Mason and Mr. Cleaveland, which must first be explained. Mr. Squier rose and demanded his seat in the house. The moderator had now official notice, that the four synods had been excluded from the roll; for the roll had been read. He there- fore inquired, if he, Mr. Squier, belonged to those synods, and having ascertained that he did, told him that he did not know him, that is, no one had a right to address that house but enrolled mem- bers, and that its officers could not recognize any others. This reason, you must be satisfied by this time, was conclusive; and so Mr. Squier thought, for he did not attempt to appeal. Mr. Squier should, upon every principle of order, have asked some enrolled member to present his application. Up to this time, gentlemen, it is manifest that the General Assem- bly of 1838 had rejected no appplicant for the rights of member- ship. If, assuming the unconstitutionality of the disowning acts, there had been fault or misconduct in attempting to enforce them, that fault or misconduct was entirely in the clerks. The moderator had certainly done nothing but to enforce the rules of order. But, supposing, for the sake of the argument, that he had, by his con- duct, been endeavouring to carry out these acts, no sanction had been given by the house to this conduct, or the conduct of the clerks. ' 179 The New School party had convened in caucus before the meet- ing of the General Assembly, and liad resolved, " That should a portion of the commissioners to the next General Assembly attempt to organize the Assembly without admitting to their seats commissioners from all the presbyteries recognized in the organization of the General Assembly of 1837, it will then be the duty of the commissioners present, to organize the General Assem- bly of 1838, in all respects according to the constitution, and to transact all other necessary business consequent upon such organi- zation." Now this furnishes a key to their whole proceedings. " Should a portion of the commissioners to the next General Assembly at- tempt to organize," &c., a portion, no matter whether that portion were great or small, the majority or the minority, "It will then be the duty of the commissioners present to organize in all respects according to the constitution," says the resolution. That is the commissioners, other than these included in the portion, will oro^a- nize, admitting the commissioners attempted to be excluded by the portion. In other w^ords, should the portion be the majority, the minority will organize according to their notions of the constitution, and claim to be the true house. This was the design of our adver- saries; and when the clerks rejected the commissioners from the four synods, the attempts of Messrs. Patton, Mason, and Squier, were made for the purpose of forcing the house, or the portion or majority of the house, into a concurrence in that rejection, which would establish the postulate, this resolution and plan of action had assumed. But owing to the remarkable unacquaintance of these gentlemen, with the rules of the house, they made their attempts at improper periods of time, and therefore were prevented from ob- taining the vote of the house on these rejections. They however dashed on in the career which they had prescribed for themselves. Mr. Cleaveland rose and read a paper which he had prepared, in accordance with the resolution of the caucus, which paper stated " that as the commissioners to the General Assembly of 1838, from a large number of presbyteries had been refused their seats ; and as we had been advised by counsel learned in the law, that a constitu- tional organization of the Assembly must be secured at this time and in this place, he trusted it would not be considered as an act of dis- courtesy, but merely as a matter of necessity, if ice proceed to or- ganize the General Assembly for 1838, in the fewest words, the shortest time, and with the least interruption practicable." He then moved that Dr. Beman be the moderator to preside till a new mo- derator be chosen. Now you will observe, that not a word is said about a breach of privilege by the moderator, in refusing to put \}r. Mason's appeal to the house, not a word about removing him for misconduct, but Mr. Cleaveland's motion is founded altogether on the assumed fact, that certain commissioners had been refused their seats. It is true that the clerks had refused to enrol them, but nei- ther the house nor any portion of the commissioners, had sanctioned that act. The exigency, contemplated in the caucus resolution, had not therefore arisen. Mr. Cleaveland's motion was, in conse- 180 quence, based solely upon the acts of the clerks, which could only be properly reviewed by an appeal to the house, but which he un- dertook to review in another method, that is, by considering them and the moderator as nonentities, and by organizing the Assembly anew from its original elements. His motion, to put Dr. Beman in the chair, was received with loud shouts of " Aye !" from their par- tisans. They appointed clerks, and a permanent moderator, in the same way, and adjourned to the First Church, where they sat, as- suming to be the General Assembly, and elected the relators as trustees. When they had time to cool, they saw that they had not accomplished their design; that upon their own principles, no por- tion of the house had rejected the commissioners in question ; that they had punished the majority, for the fault of the clerks, without giving that majority an opportunity of reviewing and correcting the decision of the clerks. They would, therefore, have been put to that shame, which is always the punishment of unsuccessful rash- ness, had it not been for one bright thought! Before I introduce this to your acquaintance, let me call your attention again to the caucus resolution. They resolved in effect, that should a portion of the commissioners attempt to organize, omitting the members from the four synods, that they, our adversaries, would organize, admitting them. Now, it is manifest, that if this portion were the majority, and should vote upon the questions put by these self-styled constitutional organizers, they would vote them down, and thus defeat their intended constitutional organization. It is, therefore, necessarily involved in this resolution, that these sticklers for our constitution would treat the interference of the portion, that is, the majority, by vote or otherwise, in their attempt at constitutional organization, with entire inattention and disregard. Well might one of the members of this caucus (as you ha ve it in proof) exclaim upon the adoption of this i*esolution, " we have passed the Rubicon." We asked the witnesses of this party what they would have done, had the Old School majority, (a clear, confessed, undoubted ma- jority) voted in the negative on Mr. Cleaveland's motion? The relators' counsel instantly objected to the question, and the Court sustained the objection. We have not, therefore, the benefit of an answer, but if you examine the caucus resolution on •which Mr. Cleaveland's motion was based, you will be convinced that they would not have regarded any^jegative vote from the Old School party. In other words, the motion was addressed to the New School party, and as they were pledged to vote affirmatively, they could easily be distinguished. But the Old School party put them to no such strait; they sat in- dignantly silent, or only opened their mouths to cry order. And it is upon this conduct that the bright thought is formed which has given our adversaries a topic for their sophistry. The 30th of the general rules for judicatories provides: " Silent members, unless excused from voting, must be considered as acquiescing with the majority." The position of our adversaries now is, that the moderator com- mitted a breach of privilege by refusing to put Dr. Mason's appeal, 181 he thereby forfeited his office, and any member had a right to move the house for his displacement. That Mr. Cleaveland's motion was such in substance, and as the silent members are to be accounted to have voted affirmatively, that motion was carried by an unani- mous vote of the house. They make no complaint of the Old School party in the house, but the offence was entirely the moderator's, committed against the whole house, and the whole house joined in punishing him. These new positions are infinitely more infirm, when duly con- sidered, than those which preceded them. They are, moreover, censurable as disingenuous. It is stealing a march upon, and out- generaling us; a species of strategy, licensable in war, but not to be practised by the grave ministers of a Christian church. It would exhaust your patience, to enumerate the fatal objections to these positions. Let a few suffice. The intendment that he, who sits silent, votes in the affirmative, can only arise, when the question is properly and legally proposed. No man is bound to treat a disorderly motion otherwise than as a disorder. Now, here was a motion proposed confessedly under the most extraordinary circumstances, and he who relies upon its efficacy, must prove it to have been strictly legal. The first objection which I shall take to it, is, that it was in direct opposition to the stated business of the house. The standing rules of 1826, providing, that the first business which the house shall transact, after the report on the roll, shall be the appointment of a committee of elections, to whom shall be referred the commissions rejected by the clerks or committee of commissions. A standing rule, intimately connected with the privileges of the members; for while the appointment of this committee is suspended, members en- titled to seats, through the action of that committee, are deprived of their privileges as members. To this, a feeble answer is returned, that the refusal of Dr. Mason's appeal was a breach of privilege, and questions of privilege are always in order. I trust I have demonstrated, that the rejection of that appeal was rightful. But Jet us assume, for the argument's sake, that it was a breach of privilege. Did it justify Mr. Cleave- land's proceeding ? There was no connexion between the two. Dr. Mason had a right, and perhaps another for him, to bring his ques- tion of privilege, immediately, and distinctly before the house, and obtain his redress, even by the expulsion of the offending officer. If so brought forward, it would have been intelligible, and all would have voted advisedly; but it did not entitle him, or any other for him, to bring a foreign matter, out of its order, before the house. Did Mr. Cleaveland bring this question of privilege before the house ? What was the grievance that he alleged to be the cause and justification of this truly extraordinary motion? We have his very words, ''That as the commissioners from a large number of presbyteries had been refused their seats," &c. On this account, and for this reason, and to redress this injury, he made his motion. Was there the slightest intimation from which any member of that 16 182 house, who had seen Dr. Mason take his seat quietly ; who had seen Mr. Squier, a gentleman in the same connexion of party and counsels, intervene, and introduce another matter — I say, was there any intimation to such member in Mr. Cleaveland's motion, written and prepared with a formal preface, before he had come to the house, and, of course, before Dr. Mason's appeal had been rejected, and before it could be known that it would be rejected, except by the spirit of prophecy, that his motion was intended as a measure of penal visitation, for the rejection of that appeal? The form of government prescribes, *' That the moderator is to propose to the judicatory every subject of deliberation that comes before them." " He shall, at a proper season, when the delibera- tions are ended, put the question and call the votes." " In all ques- tions, he shall give a concise and clear statement of the object of the vote ; and the vote being taken, shall then declare how the question is decided." Chap. xix.Sec. 11. Now Mr Cleaveland's proceedings were a violation of every one of these constitutional provisions. An individual rises in the rear of the members' seats, makes a mo- tion which he does not address to the moderator, assumes the office of moderator, and puts the question himself, the real incumbent of the office of moderator still holding the seat of office, and up to that moment acknowledged by all parties to be the real moderator. Nay, the first part of Mr. Cleaveland's preface being addressed to him, for he commenced by saying, "Mr. Moderator," but afterwards turned from him, and addressedhimself to the audience. This indi- vidual, under these circumstances, and under calls to order from the moderator, proposes a question himself, and calls for votes, and declares the result. The whole of this proceeding, thus suddenly and unexpectedly started, is completed in the lapse of a few seconds; and yet it is seriously contended, that the majority, whom it is conceded were opposed to the measure, by this silence legally con- curred in the measure ; and it is to be accounted as passed by their votes. The party who resorted to this proceeding were prepared and drilled; they not only understood what was to be done, but who was to do it. To their adversaries, it was all surprise; and, as one of the relators' witnesses has expressed it, they sat in amaze- ment. Can such silence be acquiescence? But if they did under- stand the matter, were they bound to vote upon a motion not put by the constitutional organ to the house? Our adversaries' answer to this, is, that it was a question for his own removal, and therefore it would be improper to require him to put it to the house. Should we concede this position, still Mr. Cleaveland was not the proper person to put the question : the practice of this body, and the estab- lished parliamentary usage has settled, that should any question arise touching the moderator, speaker, or chairman, or whatever else may be the designation of the presiding officer, the motion must be put to the house by the clej^k, and no man is bound to notice a motion put otherwise. But to this our adversaries answer, thai the clerks were as deep in fault as the moderator, and would not have put the motion. Were they asked to do it? It does not appear that they would have refused, a sense of duty often, for the honour of our 183 race, overcomes individual predilections. I am speaking, now, the language of our adversaries, and assuming that right and duty is on their side. If Mr. Cleaveland had stated his motion, and requested the clerks to propose it to the house, and they had refused, the house would then have fully understood its purpose, and been prepared to vote upon it, when, as a dernier resort, Mr. Cleaveland proposed it himself. As regards the moderator, they assert that the question pertained to his own removal, and that it would have been absurd to require him to put it to the house. Without acquiescing in the logic of this position, we say, that this reason, good or bad, did not apply to the clerks, whose removal the question did not agitate. But this question was not only proposed unconstitutionally, by an improper person, but the subject matter was improper ; it being to call Dr. Beman to the office of moderator ; for a rule of order pro- vides, " If a quorum be assembled at the hour appointed, and the moderator be absent, the last moderator present shall be requested to take his place without delay." Now it is in proof, that there were present at the time of Mr. Cleaveland's motion, three gentlemen who had held the office sub- sequent to Dr. Beman. This gentleman had already once felt the inflexibility of this rule. I cite from the minutes of 1835. " A motion was made to reconsider the vote by which Dr. Beman was called to the chair, on the ground that many persons voted in the apprehension that Dr. M'Doweli, the moderator immediately preceding, was not in the house." Dr. Ely, the stated clerk, put the question, " All who are in favour of sustaining the resolution, by which Dr. Beman was called to the chair, will signify it by saying, aye." The motion was lost, and Dr. M'Doweli, the last moderator present, took the chair. The answer that our adversaries make to this objection, is, that this rule does not apply to extraordinary cases, like that we are discussing, but only to the ordinary cases of the absence of the moderator of the last year. The word is absent, but if the mode- rator be physically present, but disabled by misconduct, he is legally absent. If the occasion was extraordinary, why make it more so by extraordinary expedients? The constitution and rules supply a method of conduct for almost every possible exigency. If Dr. Elliott had vacated his chair by his misconduct, every one would have understood a call upon the last preceding moderator present to take the chair. INo one would have mistaken the operation for a revolution or secession, for its strict conformity to rules, would have argued its being a submission to the laws. And now, gentlemen, you will observe the deceptive nature of this whole process, to those who were not admitted to the secret. A resolution is passed at a caucus, and promulgated, that our ad- versaries were about to organize an opposition Assembly, which they would claim to be the true Assembly. Mr. Cleaveland rises, and reads a paper, purporting to emanate from a party. " We" says he, " have been advised by counsel learned in the law." Who had been advised by counsel? Not the Old School, but the New School ! He then further states, or reads, that the same " we," that 184 had been so advised by counsel learned in the law, that is, the New School party, would proceed to oiganize the Assembly, with the least " interruption" possible. Interruption to whom ? Certainly, to the Old School party; that 'portion of the commissioners spoken of in the caucus resolution. If Mr. Cleaveland meant, as they now assert, to address this resolution to the whole house, (I have given you my reasons already for disbelieving this,) he certainly did it in a very deceptive way. Will any man have the audacity to assert that the Old School party would have remained silent, had they been fairly informed of the use that would have been made of their silence ? The effect given to silence, by the rules of the General Assembly, was only intended for ordinary occasions. When a question is put by the usual officer, in the usual form, there is but one alternative, aye or no — and silence may be reasonably con- strued into acquiescence. But when the presiding officer, and a member, comes into collision, and the one calls for the ayes and noes, and the other cries order, is it not as, or more reasonable, to construe silence into obedience to the cry of order, which merely requires silence, than into an affirmative vote? Aliud est dicere aliud tacere, is the dictate of common sense. He that, under the extraordinary circumstances of this sudden, rapid, indirect, am- biguous motion, would take advantage of our silence, must show that we were not surprised, that we were not deceived, that we were not mistaken, and that our silence was a deliberate concur- rence. You will not, nor will this Court, permit these solemn things to be made a mockery; nor these important rights to turn upon a quibble ! Another fact ought not to be omitted, in examining into the in- tentions of our adversaries, in making these movements. We maintain that they intended to organize another Assembly, not by our votes, but against our votes, and to maintain that theirs was the real Assembly. That the position, now assumed by them, that they organized by our votes and are the continuation of the same Assembly which commenced its organization under Dr. Elliott, is an after thought. Now hear a further proof. A written copy of a resolution was handed to Dr. Beman, in these words: "Resolution of the Trustees of the Seventh Presbyterian Church, adopted May 7th, 1838: ^^ Resolved, That the General Assembly of the Presbyterian Church, which is to convene in Philadelphia on the 17th instant, and which shall be organized under the direction of the moderator and clerks officiating during the meeting of the last General Assembly, shall have the use of the Seventh Presbyterian Church, during their ses- sions, to the exclusion of every assembly or convention which may be organized during the same period of time." Upon the receipt of this paper, the pseudo Assembly adjourned to the First Presbyterian Church; thereby distinctly acknowledg- ing that they were not the General Assembly which organized under the moderator and clerks of 1837. Various other acts of theirs denote the same foregone conclusion. Their moderator did not demand the chair, but retired to the nethermost part of the 185 building and stood in the aisle, his party crowding too much around him. Their clerks did not demand the roll, nor take the clerks' seats, but performed their important functions standing, and without implements of writing. We shall show you, that their whole proceeding was carried on in tumult and disorder. That the important motion, made by Mr. Cleaveland, was not reversed so as to give us an opportunity of voting had we desired it. We will bring forward every commis- sioner within our reach, who was present on that occasion, and they will tell you that such was the noise, the clapping of hands, the hissing, and other disorderly manifestations, from the mixed crowd on the floor of the house and in the galleries that they could not, and did not hear. I have now, gentlemen, gone through the case which we shall exhibit to you. I have stated what we shall prove, and have, at the same time, pointed out the conclusions which we seek to main- tain by that proof. Before, however, I leave the subject, permit me to remark, that any language which I have used, which may- savour of asperity, has been used impersonally. I respect the gen- tlemen of the parly, against whom I am called to act professionally, both as individuals and as ministers of the Gospel. They will, however, permit me to point to one particular in which, I fear, they have acted with harshness. Why is it, that almost the first act that was done, under their new organization, was the removal, from office, of the venerable patriarch of this church? Out of eighteen trustees, whom they might have removed, why did they attack him first and make him the first defendant in a proceeding, criminal in its form 1 A reverend father, who was named and constituted trustee, by the act of incorporation itself, and who has been continued, for forty years, amidst all the vicissitudes of party. Does this not betray some bitterness of feeling? To the fluctuating faith of their party, does not this inflexible example prove a re- proach ? He has stood for years, in the consistency of his Doric simplicity, a land-mark, from which might be measured the deflec- tions of erratic opinion. Ours is, perhaps, gentlemen, the unpopular party. There may, perhaps, be some severe and uninviting features in our faith. It is, however, of too high and inflexible an origin to be accommodated, at will, to the prejudices of the many. We count not upon the ap- probation of the light and frivolous, but, I am convinced, that all thinking and discreet men will unite with us in a fervent aspiration, that our visible church, the ark of a pure theology, may endure till that great day, when the angel of the Apocalypse shall raise his hand to heaven and swear, that time shall be no longer. Mr. Hubbell having concluded his opening on behalf of the re- spondents on Wednesday, P. M., March 13th, then offered in evi- dence in support of their case from the minutes of the General Assembly of 1837, page 350, [See page 59 of this report.] Section 3d of a protest against the abrogation by the Assembly of the " Plan of Union." The respondents now called the Rev. John M. Krehs. 16* 186 Interrogated by Mr. Huhhell, the witness testified : I am a minis' ter of the Presbytery of New York, I reside in the city of New York, and am pastor of the Rutgers' street Presbyterian Church in that city, in connexion with the Presbytery of New Yori<. I was permanent clerk of the General Assembly of 1837, and also of that of 1838. Dr. John M'Dovvell, of Philadelphia, the stated clerk of the General Assembly, and m3'self, were the Committee of Com- missions. The difference between the stated and permanent clerks is this. The latter makes up the journal of the Assembly from day to day, reads it, and keeps the papers until after the dissolution of that body, when he hands them over to the stated clerk. The one is the writing clerk, and the other the depositary of the records. There is also another clerk elected at the meeting of the Assembly^ who is called the temporary clerk, whose business is to assist the permanent clerk. His office ceases with the dissohilion of the As- sembly. The Committee of Commissions, as I said, consists of the permanent and stated clerks. Some weeks previous to the meeting of the Assembly of 1838, Dr. M'Dowell and myself had published, over our signatures as clerks, in several religious newspapers, a notice, that between four and five o'clock on the afternoon of the day previous to the meeting, and between nine and eleven o'clock on the morning of the meeting, the Committee of Commissions would be in attendance, to receive and examine commissions. In preparation for the pressure of business usual at the opening of the Assembly, 1 had prepared a blank form before I left New York, embracing the usual opening minute with a list of the synods and presbyteries, to which I might attach the names of persons who might present commissions. These were our preliminary arrange- ments. In this blank roll the names of one hundred and twenty or perhaps one hundred and thirty commissions were received by us on Wednesday afternoon the 16th of May. Every person present- ing a commission is asked, Are you the principal or the alternate named in this commission? The principal is the one first named^ and then to provide for his absence, another is appointed, who in any emergency may take the seat. If any one answers that he is the alternate, we make an arbitrary mark, to designate the very man who presented the commission. The clerks, as a committee of commissions, insert the names of those whose commissions we approve, on the roll. A large number were inserted on the morn- ing of the next day. The roll, as completed by Dr. M'Dowell and myself, contained the names of about two hundred and twenty, perhaps two hundred and fourteen commissioners, and four or five were not included on account of informality or some circumstance on which we could not decide. We made a separate report in relation to these informal commissions. Those commissions which had any defect we kept separate from the others in order to refer them to the Committee of Elections, which committee is appointed as the first business in order at the opening of the Assembly. This committee is appointed from amongst those members of the house whose seats are undisputed, to examine and report on the informal or defective commissions. The first business, according to a standing rule of the General 187 Assembly, is the appointment of this committee. Of those com- missioners which presented their commissions to us on the evening of Wednesday, there were not more than five New School men. The others presented their commissions next morning. Those who presented their commissions on Thursday morning, were both New School men and Old School men. Their commissions were ex- amined, and, .so far as found correct, were enrolled. I cannot give the precise order of events ; but some time in the morning of Thurs- day, Rev. Albert Barnes and Rev. Mr. Brainerd presented their commissions from the Third Presbytery of Philadelphia. We told them that we could not receive the commissions. Mr. Barnes ex- postulated with Dr. McDowell; but Dr. M'Dowell told him that we could exercise no discretion on the subject ; that we could not receive a commission from that presbytery, which had been dis- solved by the General Assembly of 1837 ; that the Assembly itself, and not its officers, must now decide the matter. The Rev. Miles P. Squier also presented a commission, purporting to be from the Presbytery of Geneva, which we also refused to receive, telling him that the Assembly of 1837 had declared the synod to which his presbytery belonged, no part of the Presbyterian Church ; that his remedy must be in the Assembly, and not in its officers. Mr. Squier, I think, observed to Mr. Barnes, " Your case is different from ours ; you have been dissolved." He replied, " I beg your pardon, sir; but you are mistaken." [The counsel for the relators objected to the witnesses going into these conversations between Mr. Barnes and Mr. Squier.] Several others presented commissions of a similar character, which we refused to receive. Rev. Dr. Richards presented one ; and to him we gave the same answer, that we had no right to re- ceive the commission; no liberty to decide his case, unless further orders were given to us by the Assembly. We treated all alike, from the four synods, were very civil, and told them that their only remedy was in the Assembly. Next we were met by a very respectable deputation, one of whom was Mr. Squier, who said they were authorized to offer the commissions from the presbyteries within the four excinded synods, and to demand that they should be received. We answered, that they could not be received or enrolled, and gave an absolute re- fusal. One gentleman asked whether, " We could not," meant, "We would not." I replied, (being well acquainted with him,) in a pleasant manner, that we did not intend to be abrupt, but if he preferred that, I uould not receive it. Rev. Mr. Aikin, of Cleve- land, asked those standing by, to take notice of the refusal. I ob- served, that this was not necessary; that if he chose, we would endorse the refusal upon the commissions. He said, " We shall complain to the Assembly." I answered, that that was just what we wished : that their remedy was in the Assembly, and it would meet the next hour. I recollect nothing more in regard to the meet- ing of the Committee of Commissions. Being interrogated as to the locking of the door, the witness said: We occupied a small room under the pulpit: from it two doors, one on each side of the pulpit, opened into the body of tbe 188 church. On each end of the room are two large doors, one open- ing into the court in which the house stands, and the other into the grave-yard. On Wednesday and Thursday, we found the disposi- tion of persons to press through the Httle doors by the side of the pulpit, was a great annoyance. They interrupted us, while attend- ing to commissioners who presented themselves. I repeatedly locked the door that opened from the session-room into the grave- yard, and that on the left side of the pulpit, as you face the audi- ence. My table was near that door. When any one wished to enter, I, perhaps not being so kindly disposed as I should be, refused to open it. The room may be eight or ten feet wide. The five large doors opening into the body of the church were open, and one of the little doors from the session-room constantly so. The door by which we sat was closed, in order to prevent the room from being made a passage-way. Application was made for ad- mission by Old School men whom we excluded. It is probable that we refused admission to some of the New School men also, as we excluded a number, telling them to go round by the other doors. We drew no line of distinction. Our purpose was simply to prevent interruption to our business in relation to commissions and the completion of the roll. Public worship commenced at 11 o'clock. A. M. We remained in the room during the time occu- pied by the sermon, and went on with the examination of com- missions. This appeared absolutely necessary, as a number of com- missions had not yet been examined, and we could not otherwise have completed the roll in seasgn for the Assembly. We entered the church by the door which had been locked, as before stated, about five minutes before the religious exercises were closed. I think they were singing at the time I entered the body of the church, the prayer after the sermon being over, and the moderator still in the pulpit I took my stand by the clerk's table, which is under the pulpit, and just beneath the moderator's chair, which is raised from the floor. The table is appropriated to the business of the clerks, and is from four to five feet long. My position, ordinarily, is at the head of the broad aisle, with my back to the audience and my face toward the moderator, for the Qonvenience of writing. I stop- ped before I reached my seat, and took a station on the west side of the table, facing the audience : I cannot say whether I sat or stood. I never before had seen the house so crowded. The galle- ries and the floor were very full. I either sat or stood on the west side of the table, facing the audience, until Dr. Elliott entered the chair, as moderator. I was present during the constituting prayer, immediately after which Dr. Elliott called on me to report. But I did not speak, as I saw Dr. Patton on the floor, and heard his voice, saying, " Moderator, Moderator," two or three times. At the same time a voice fell on my ear, calling on me to go on with the roll — and Dr. Elliott told me to go on ; but I remained quiet. Dr. Patton said, that he wished to ofier certain resolutions, and to take the sense of the house upon them without debate. The moderator told him he was not in order, as the first business was the report of the clerks upon the roll. Dr. Patton said, that he had the floor before 189 the clerks. The moderator replied, that the first business was the report on the roll. Dr. Patton said, I must take an appeal from your decision to the house. The moderator said that he was out of order ; for, as there was no house in existence, there could be no appeal. I was still waiting until the floor should be cleared, and silence restored. The precise terms of this colloquy I do not pre- tend to give, but only the substance. Dr. Patton sat down, and I proceeded to report the roll, as clearly and distinctly as I could. I also reported four or five informal commissions, which had been presented but not enrolled, that they might go to the Committee of Elections, which it was usual to appoint then. I did not report the commissioners from the excluded synods. We did not think we had a right to do so. I ought to state, however, that there was a difference of opinion between Dr. M'Dowell and myself, in regard to this subject. I supposed it our duty to receive and report, but not to enrol them. He thought that we should not receive them, any more than com- missions from any strange body which was not Presbyterian: that their only remedy was in the Assembly. He being older than my- self, I yielded my assent, though retaining my opinion. I believed then, and I believe now, that we ought to have received them, and reported on them, stating the circumstances. Dr. M'Dowell would not consent to this, and I accordingly made such a report as he would consent to. After the roll had been read, the moderator announced that those persons whose names had been reported, were to be considered as duly elected members of the General Assembly ; and added, that if there were any other commissioners present, who had not had an opportunity of handing in their com- missions, now was the time to present them. Dr. Mason rose, and, holding a bundle of papers like that here exhibited, and which I presume is the same, said, that he offered certain commissions from the presbyteries within the bounds of the four disowned synods; that he had offered them to the clerks, who had rejected them ; and now moved that the roll should be completed, by inserting the names of the commissioners to whom they belonged. He did not call them, however, the disowned synods; perhaps he named them. This is the substance of what he said. The moderator said to him, " Your motion, sir, is out of order at this time." Dr. Mason said, that, with great respect, he must appeal to the house from that decision. The moderator replied that his appeal was out of order, and Dr. Mason obeyed him, and sat down : that is, he sat down when the moderator told him his appeal was out of order. Then Mr. Squier rose, on the opposite side of the aisle from Dr. Mason, and said, (I do not recollect the whole of what he stated,) that he had a commission from the Presbytery of Geneva; that he had of- fered it to the clerks, and it had been refused ; and that he now ten- dered his commission and demanded his seat on that floor. The moderator inquired whether that presbytery was within the bounds of the Synod of Geneva, or, of the disowned synods ; I do not re- collect precisely w^hich. Mr. Squier answered, that it was. The moderator then said, " We do not know you, sir." It was at this 190 point that Mr. Cleaveland rose, and began to read a paper ; what it contained, or what he said, I cannot tell. There was a noise of calls to order. The moderator called to order; and the members about me cried " Order, order." If I recollect any thing at all of what Mr. Cleaveland said, it was something about legal. I thought he used the word " legal," and it was the only one impressed upon my memory. I do not recollect any thing more. I can only give my impression of what he was about. Mr, Meredith objected to the witness' saying more, as he had stated that he recollected nothing more. The Court said : The witness may state what he recollects. The Witness proceeded : I don't recollect any thing else distinct- ly; I don't know what Mr. Cleaveland said. I did not know then, what he said, and had only a confused notion from having caught the word legal, or something of that sort; but it is all darkness to me. I was looking on, endeavouring to see and hear. My recol- lection is, that Mr. Cleaveland gradually turned round, until he faced the western wall. While he read, there were calls to order from the moderator, and those near him, mingled with the waving of hands, and the voices of some saying " Hush, hush 1" These things continued for a little while. The reason that I did not, and could not hear, was, that there was too much noise. I should ob- serve that by this time, during the colloquy between Mr. Squier or Dr. Mason and the moderator, I had moved round to the place which I usually occupied, a little stool, without a back, so that I could face either the audience or the moderator. Mr. Cleaveland's read- ing, or speaking, or whatever it was, continued ; I could hear his voice mingling with the others. Then there was a sort of confused buzz, and the next distinct sound, overtopping all the rest, was a loud " Aye !" Very rapidly after, at so small an interval that I could not pretend to mark it, but very quickly, in rapid succession, there was another loud " Aye !" I heard no motion, nor did I hear any question put. I think, at this time, the cries to order were not so frequent as they had been. My attention was particularly di- rected to the place where Mr. Cleaveland stood, but many persons were now standing up between me, as I stood on the floor, and the actors in the scene, and shut them out entirely from my view. I had risen, and was standing, looking sometimes towards the mode- rator, and sometimes back again. 1 think I heard a third " Aye !" and that very loud, and a few "Ayes" distinct from the mass, in a very shrill key. I had no idea at the time to what these "Ayes" were a response. I endeavoured to hear in order to record the proceedings — as clerk, to catch the motion, if I could hear any. Well, the next thing I recollect was a general movement towards the east door of the church of the body of men around Mr. Cleave- land. I could see, as they moved ofl', some putting on their hats, and some jumped over the partitions intervening between the two ranges of pews. One person returned from the door, as near as I could see, and shouted out, that the General Assembly of the Pres- byterian Church would meet in Mr. Barnes's lecture-room imme- diately. I don't know that it was Dr. Fisher. I don't know whe- 191 ther it was he or not, but I think it was not. It was a notice given by some person who returned, for the information of the persons assembled there. I don't recollect the exact words of the notice. The persons engaged in this affair having moved off, the tumult, subsided, and the Assembly became quiet. I am a little near-sighted, but this defect is repaired by artificial means. I hear very well. The Assembly continued to sit in the Seventh Church about two weeks, or longer. The session certainly continued at least two weeks. The great body of those who acted with Mr. Cleaveland moved off down the aisle very regularly; I speak of but a few per- sons who had their hats on, and jumped over the backs of the pews. A mass of men moving off in that way must have made some noise. During the time that the tumult continued, (this word, which I use without intending any disparagement, conveys the very idea that the scene impressed upon me at the time,) a motion was pending for the appointment of a Committee of Elections. Whether this motion was made before Dr. Mason rose, or while Mr. Cleaveland was on the floor reading, I can't say. It was certainly one of the two. The noise was very great. Some called to order, and others said, " Hush ! let them go on." The moderator said, we would wait till the tumult should subside, and the house become quiet, and then proceed to business. The moderator merely sat still in his chair, or perhaps he rose. I kept in my place, waiting until we could go on. After the departure of the mass to which I have re- ferred, the appointment of a Committee of Elections was made, to whom were referred all the doubtful commissions. This was the first business done after their departure. I don't recollect any thing else that was done then. I cannot tell the length of time that elapsed after Dr. Patton arose. There was the interval, between Dr. Patton and Dr. Mason's rising, of my reading the roll. From Mr. Cleaveland's rising till the departure of his friends from the church, was, I should think, four or five minutes. I have no dis- tinct impression as to the time: I was very much amazed, and looked on in great wonder. Dr. Elliott had made a call for com- missions when Dr. Mason rose. I cannot say whether the motion for the appointment of a Committee of Elections was made after Dr. Mason, or after Mr. Cleaveland rose. I did not hear any "Noes" on Mr. Cleaveland's motion. I did not myself vote: I was not a member of the Assembly. The gentleman who asked me whether by " I could not," I meant " I loould not," was the Rev. George Duffield. He was not a commissioner, but having come merely with his friends, he interposed. Mr. Duffield had been for five years my pastor, and it was on the ground of my familiarity with him, and without meaning to be uncivil, that I told him, that if he liked that form of expression better, I would not. I have with me the roll that I called. [Witness here produced papers.] This is the original paper, the blank prepared by me before I left New York. The roll as reported and read by me, contained the names of two hundred and fifteen members. Afterward were added five other names from commissions that were defective, informal, or irregular, making in all, two hundred and twenty. These last were 192 referred to the Committee of Elections, and on their report were entered on the roll, with the exception of a minister and elder from the Presbytery of Greenbriar, a new presbytery, which had been erected by the Synod of Virginia, and was formed by a division of the Presbytery of West Hanover. Their commissions were re- ferred back to the Committee of Elections, that they might inquire concerning the regularity of the establishment of the presbytery. Again they reported, and both were admitted. Two hundred and twenty therefore were reported that day. The commissioners so enrolled had all presented their cotnmissions to us. No name was on the roll for which we had not a commission in our hands, nor unless we were satisfied that the commissioner was present. I did not call the roll in the morning, after they had retired to the First Church; but on the opening of the Assembly in the afternoon, a motion was made to call it, to see how many answered, and to mark the absentees. Of those whose names were on the roll, there answered one hundred and fifty-two. I speak to the best of my recollection of numbers, about which I took pains to inform myself. They are recorded in that manuscript, or in the subsequent part. The minutes occupy five or six books of twelve sheets each. There were recorded present one hundred and fifty-two, and sixty-eight absent. On the next morning, three of these sixty-eight appeared, and requested that their presence might be recorded. These were Dr. Green, Mr. King, and Mr. Snowden. They had been enrolled and present the day before. Mr. King was either an elder or minister: both the others were ministers. They had been present on Thursday morning; and their absence at the time of calling the roll was excused, because of the inclemency of the weather, and their feeble health. Of the remaining absentees, two others subse- quently appeared, and voted on several propositions which came before the Assembly up to the time of its dissolution. I saw them, and heard them vote and speak. I don't know whether they went off with the party that retired to the First Church. They were the Rev. Elipha White, and the Rev. Mr. Magruder, of Charleston Union Presbytery. No notice was taken of their subsequent ap- pearance: they made speeches and voted. At the dissolution of the Assembly, Mr. White came and had his mark removed from the roll, saying that he had been out only a few minutes. There were subsequently added to the roll the names of four commissioners. One of them was Mr. John Green, who first at- tended on the ninth day of the session. Another was the Rev. A. W. Lion, a commissioner from the Presbytery of Arkansas, who first attended on the twelfth day of the session. On the eleventh day of the session, the two commissioners from the Presbytery of Salem, in the state of Indiana, Rev. Wm. W. Martin and Henry L. Fabrigue, attended for the first time. The names of these four commissioners were not inserted on the original roll. They ap- peared before the Committee of Commissions, and that committee having approved their commissions, added their names to the roll. We were not authorized to inquire why they were not in attendance at an earlier day. They are accountable to their own presbyteries 193 for their attention to the objects of their appointment. I think, however, that when they appeared, I inquired of them what had happened to detain them. Messrs. Martin and Fabrigue arrived late, and looked sick. During tlie calling of the roll, to mark ab- sentees, Mr. Scott was inquired of, or he himself rose to state, why he did not answer to his name. I think Mr. Scott was afterwards present, and that his case is referred to on the minutes. The names of these two were upon the original roll. Mr. Scott asked permis- sion to state his reason : he did not answer to his name, but got up immediately afterwards. I do not recollect what reason he assigned for not answering to his name when called on the roll. The examining counsel asked the witness when Mr. Scott first appeared. Objection was made to the minute investigation into which the counsel appeared to be going, respecting the attendance of indi- viduals. The objection was sustained by the Court, but subsequently waived by the plaintiff', and the witness proceeded: Mr. Scott attended on the Assembly on that afternoon. I have no personal acquaintance with him, and should not know him if I saw him. The minute which I have referred to, that relating to Mr. Scott's explanation, was written by Mr. Crane, the temporary clerk. The minute does not state his reason. On a subsequent day, but on what occasion I don't recollect, Mr. Eagleton rose, when his name was called, and said that he did not feel at liberty to acknowledge that as the Assembly. He did not say that he had joined the other: I understood him to repudiate both. Dr. Hill was one of the two hundred and twenty. He was marked absent on the afternoon of the first day, and that is all that I know about him. Mr. Jamieson was marked absent, and that is all I know about him. Mr. Ralph Smith was also marked absent, and I know nothing fur- ther in regard to him; I mean of my own knowledge: I am not speaking of rumours, or information subsequently received. Cross-examination. — Interrogated by Mr. Meredith, the witness said: The papers in my hand are not mere memoranda, made by myself, of the occurrences of the organization of the Assembly; I will tell how they were made up. At the opening of the Assembly in the afternoon, I read the minute I had prepared of the occur- rences of the morning, and proposed to notice, in a general way, that a disturbance had taken place. It was objected to. It was said, that it was not usual to notice transactions which led to nothinf^; as when a resolution had been debated, and withdrawn, it was not customary to insert it on the minutes; it had been abortive. It was said, during the remarks on the correctness of the minutes, that my report should not stand. I think it was at the same time, though my recollection is a little confused, that a committee was appointed to prepare a minute, which should give a full account of the trans- action. My account was very concise, merely stating that Dr. Mason made a motion, which was declared out of order by the moderator; that then a scene of confusion occurred, and that after the tumult subsided, we proceeded to business. A committee, the 17 194 record does not state whom, was appointed. I recollect that Dr. Nott and Dr. Elliott were on the committee; these two I recollect, and perhaps might remember others, if there names were suggested. I think a minute was made of this appointment. I am sure that I made a note with my pencil on the margin of the rough minutes, that that was the place where it should be inserted. It is very custom- ary for the Assembly, when not satisfied with a minute, to appoint a committee to prepare one, to take the place of the clerk's. In such case, all I have before made is erased or cut out. That was the way here. There is no record here of the appointment of the com- mittee. This record is the prepared minute. It is inserted, as you see, on different coloured paper from that which I brought from New York- Interrogated by M?'. Wood, the witness said : I do not remember who moved the appointment of a committee of elections. I presume the motion was seconded. I made a minute of it at the time. I am in the habit of making full records, if possible, at the time, and if not, notes to be filled up afterwards. I am not confident whether the motion was made while Mr. Cleaveland, or while Dr. Mason was speaking. My strong impression is, that Dr. Mason was on the floor, and that the proceeding was interrupted by the noise. I cannot tell certainly, whether it was made while Dr. Mason was on the floor, or after he sat down, or after Mr. Cleaveland rose. I don't know whether the moderator was in order, when he made proclamation, that if there were any who had not yet presented their commissions, they should hand them in. I don't know: you must ask him. I have no doubt of it. This proclamation preceded the appointment of the Committee of Elections. The appointment of this committee was not made until after Mr. Cleaveland's motion. Mr. Joshua Moore's commission was presented after the procla- mation of the moderator, and after the appointment of the commit- tee. He did not present it until after the election of a new mode- rator. The record, in regard to this matter, is wrong ; it was not made in my presence. I will say now, what was done in this mat- ter. The record, in regard to Mr. Moore, was contained in the report of Dr. Elliott. Mr. Moore did not come to me, until after the election of the moderator. I informed Dr. Nott that, at a cer- tain stage of the business, Mr. Moore's commission was presented; and he inserted my information in the wrong place. There was, in the Assembly of 1S3S, some action on the excinding resolutions of 1837; but no other, that I know of, than what is contained in the " famous three acts," as they are commonly called. The excinding resolutions were not reversed. There was no action, either to re- verse or to afiirm them, except in what are commonly called "the famous three acts:" these acts were adopted on the report of the committee for the pacification of the Church. I cannot interpret these acts: they are very long. I do not know w-hether they treat of the four synods as excinded synods. I merely know, in a gene- ral way, that they provide for the incorporation with the church, of all in those synods who should prove to be purely Presbyterian in doctrine. 195 By Mr. Meredith. — Some days the roll was called, and some not. At the end of the sessions of the Assembly, it was called; and all who were absent without leave, were so marked. Very few, per- haps from six to ten, had obtained leave of absence. In answer to an inquiry of the Court, the witness said: I cannot say, whether the motion to appoint a committee of elections was made while Dr. Mason was on the floor. Part of the time, I was attending to my ordinary business, and, at other times, was looking towards the interruption. Re-examined by M?-. Preston, the witness said : It is usual, shortly after the Assembly is organized, to appoint a standing committee of four or five members on leave of absence. If any member wishes to go home, he applies to them, and, if^they think proper, they give him leave, and report the fact, at the first opportunity, to the house. I think a few asked leave of absence ; I cannot say certainly, how many, for I have nothing to guide my recollection. The defendants called Dr. Wm. W. Phillips. Interrogated by Mr. Hubbell, the witness said: I am a minister of the Presbyterian Church of the Presbytery of New York. I was a commissioner to the General Assembly of 1838. I was present at the opening of the General Assembly on the 17th day of May of that year. I occupied a pew next to the wall of the church at the bottom of the pulpit-stairs. The place which I occupied was near the south-west corner of the house. From the close of the religious exercises, and after the moderator had opened the meeting of the Assembly with prayer, a very short time elapsed until Dr. William Patton arose and made his motion, stating that he desired to offer certain resolutions which he held in his hand. The moderator stated to him that his motion was out of order at this time. He presented himself to the house, and addressed the moderator, saying " I hold in my hand certain resolutions which I desire to offer for the con- sideration of the Assembly." The moderator told him, " you are out of order. The first business is the report of the clerks on the roll." Dr. Patton said his resolutions had relation to the roll. The moderator then said, " your motion is out of order at this time." He appealed from the decision, and the moderator pronounced the appeal to be out of order, as he said there was then no house to appeal to. Dr. Patton then took his seat, and the moderator di- rected the clerks to proceed with the report on the roll. The report was read by Mr. Krebs, the permanent clerk. Dr. Erskine Mason arose, and addressing the moderator, said he held in his hand cer- tain commissions which he wished to have added to the roll. The moderator asked whether they had been presented to the clerks, and whether the commissioners therein named were from presby- teries which were belonging to or in connexion with the General Assembly of the Presbyterian Church, at the close of its session in 1837. Dr. Mason replied that they were from the presbyteries within the bounds of the four Synods of Utica, Geneva, Genessee, and Western Reserve. The moderator then said, your motion is out of order, as it was commissions of a different kind were called for. Dr. Mason then said that he would respectfully appeal from 196 the decision of the moderator. The moderator decided that the appeal was out of order. Mr. Squier then rose, and said he held in his hand a commission which had been tendered to the clerks, and which they had refused to receive, and that he now tendered it there, and demanded his seat as a member of that house. The moderator inquired of him what presbytery his commission was from. Mr. Squier replied that it was from the Presbytery of Ge- neva. The moderator then said, " We do not know you, sir." Mr. Cleaveland then rose, and read a paper, the contents of which I did not hear distinctly, though 1 heard some detached sentences. I heard him say "Counsel learned in the law," and something con- cerning the organization of the General Assembly in the shortest time possible. I could not hear all. There were incessant calls to order from the moderator and several members. Although I had determined to keep still, I found myself twice saying in an under tone, I hope we shall have order. Some extended their hands, and said "Hush, hush," and some said "Oh shame! shame!" I could see Mr. Cleaveland from where I stood, and heard him make a motion, as I understood it, that Dr. Beman take the chair. I heard a vote of " aye !" very loud, and one shrieking voice above the rest. The members in the neighbourhood where I sat did not vote on his motion. Immediately, there was a movement in the aisle, and Dr. Beman came out of the pew. I heard a motion made for the appointment of clerks, but do not recollect that I heard their names. I heard no reversal of the questions, and no negative votes. I did not hear the name of Dr. Fisher nominated as mode- rator, nor knew I that he had been appointed until I was so inform- ed next day. I think I heard the motion for adjournment. I heard no prayer. I am not certain in regard to the adjournment, for a proclamation of the adjournment was afterwards made at the seve- ral doors of the church. I do not know by whom the proclama- tion was made. The movements in these proceedings were very rapid. I am not able to judge how long, but should say that the whole time occupied, from the period when Mr. Cleaveland rose to the time of their adjournment, was not more than five minutes. It may have been longer; but every thing was done as rapidly as possible. During this time there was much confusion. From the time of the motion for Dr. Beman to take the chair, some were standing, some rushed into the aisle, and most of these remained standing. My impression is, that there were some ayes came from the gallery. The place that I occupied was, I think, one step above the floor. I was obliged to stand, it being painful for me to sit ; on this account I chose that position, which I occupied during most of the time that the General Assembly was in session. Those who retired, went out in a crowded manner, very rapidly. There was a great press, whether by members of the body, or others, I cannot say. There was a great dust after they got out of doors. There was a rising in the gallery, manifesting great interest. There may have been a noise there; indeed, there must have been, from the persons who occupied it rising from their seats, coming forward, and looking over. I suppose the Old School party were generally 197 in the part of the house near where I was. We had occupied the house from nine o'clock in the morning, for prayer and consulta- tion, and remained in the seats which we had then taken until the closing of the Assembly. I heard no votes from the Old School, upon any of the questions put by members of the other party. There were cries of order from the different individuals among them, as well as from the moderator. Cross-examination. — Interrogated by M: Meredith, the witness said: I was not ordained as a minister of the Presbyterian church. I was ordained by the Associate Reformed Presbytery of New York, in the year 1818, but was installed, in 1826, as pastor of the First Presbyterian Church in the city of New York. I came into the Presbyterian Church in 1822, in accordance with the Plan of Union agreed to between the Presbyterian Church and the Asso- ciate Reformed Church in that year. I was not re-ordained when I came into the Presbyterian Church. The Associate Reformed Church united with the General Assembly of the Presbyterian Church, and was acknowledged as a constituent part thereof. The Associate Reformed Church was Presbyterian ; quite as much so, we thought, as the General Assembly. The Confessions of Faith and Catechisms were essentially the same. Both adhered to the Calvinistic creed. One of the conditions of this union, agreed to, was, that we of the Associate Reformed Church should retain our distinct organization as a presbytery. There may have been some slight difference in the phraseology of the two Confessions of Faith, but there was no substantial difference ; they were substantially the same. The Westminster Confession and Catechisms are the stan- dards of both. Question by Mr. Wood. — Was there not some difference in the mode of administering the rite of baptism, and in receiving the com- munion, as prescribed by the Confession of Faith of the Associate Reformed Church. Witness. — There was a slight difference, I think. I still use the form I always have, in the admission of members, and in baptism. I suppose these forms do differ from those of the General Assembly. There is a directory in the book of the Associate Reformed Church. I did not continue to use this directory, but have used that of the General Assembly since I was installed. I have not changed ifiy doctrinal views at all, but continue to refer to the same Confession of Faith, and Catechism, because they are the same in both deno- minations. Mr. Meredith handed to the witness the book of the Associate Reformed Church, and requested him to see if that, (pointing to an article in the book,) is the act of adoption of the Confession of Faith by the Associate Reformed Church. Witness said there was subsequently, I think, an alteration in that part which relates to civil magistrates. I think this is not the Confession now used. The doctrines are essentially the same; indeed, the Confession is the. same, with the difference mentioned. I am not prepared to answer whether this is the act of adoption. The Confession was subsequently changed in the particular which 17* 198 I have noticed; perhaps there was another act of adoption at thaS time. The defendants called Mr. Stacy G. Potts. Interi'ogated by Mr. Hubbell, the witness said : I reside in the city of Trenton, New Jersey. I was in Philadelphia in May, 1838. I was present at the organization of the General Assembly on the 17th day of that month. I went to the church in Ranstead court, directly from the steamboat, about half an hour before the commencement of the preliminary religious exercises. I took my seat in one of the wall pews toward Fourth street. I entered at the east door of the church, and took my seat beyond the centre of the church from the mode- rator's chair. Every thing was perfectly quiet until the religious exercises had closed, and the moderator had taken the usual station occupied by him when presiding over ihe deliberations of the General Assembly. Shortly afterwards, a gentleman arose and made some remarks, but the noise at the time prevented me from hearing what passed. In a short time he took his seat. I then heard the clerk, as I supposed, call over the roll of the General Assembly. There was ihen another interruption by a gentleman whom I did not know. From that time the confusion in the part of the house where I was, increased greatly. My view was so intercepted by the people standing up that I could not see what was going on. As I perceived that it was a scene of some interest, I endeavoured to ascertain what was going on, but could not. I then got up myself and remained standing in my place. The first sound which I could distinctly understand was a very loud " aye," which came from difterent parts of the house, and, I think, from the gal- leries, and from females. I shortly afterwards heard another very loud "aye." I did not hear any motion, nor knew what the aye meant. It appeared to be expressing a visible assent to something. I was located so that I could not hear what was going on, but I saw several individuals move into the aisle. It was impossible to hear, where I was seated, a syllable of what was spoken in ordinary language. I did not know one person in the vicinity where I stood, and caimot tell whether any person voted who was not a member. I think there were two or three oyes, at short intervals : two or three votes were taken in this way. I heard no question proposed during thfe whole time. I think that I heard a few scattering noes on one occasion. Whether this was on the first or subsequent questions I don't know. I saw a crowd near the centre of the church. I was located in a wall pew, a little farther toward Market street. The ends of the pews are against the wall. The next thing which I noticed was a general movement toward the doors. In a very short time after this they went out. Immediately afterwards a gentleman presented himself at the door and })roclaimed, in a loud voice, that the General Assembly of the Presbyterian Church had adjourned. He made a similar proclamation at three doors of the church. At the third door, appearing to be a little hoarse, he cleared his throat and repeated it very loudly. I heard no motion for adjournment ; nothing at all of it. 199 Cross-examined. — Question by Mr. Meredith. — You belong to thd Old School party, I suppose. Witness. — 1 am a member of the Old School Church at Trenton. Defendants called Dr. William Harris. Interrogated by Mr. Huh- hell, the witness said: I attended in the church on Ranstead court, on the 17th of May, 1838, as a spectator. I stood in the west aisle, near the south-west corner of the church, in front of Dr. Phillips, and near him. I heard the moderator call the house to order, and state that the first business was the reading of the roll. He directed the clerk to read, but the clerk did not begin immediately, and a gentleman rose, saying that he had a resolution to ofl^er. He pre- mised his remarks by " Mr. Moderator." I was not personally acquainted with the gentleman, but learned that it was Dr. Patton. The moderator said, " Sir, you are out of order at present." The gentleman said, "I appeal from your judgment, sir." The modera- tor decided that the appeal also was out of order, and Dr. Patton sat down, and the clerk proceeded to read the roll. When he had finished, another gentleman rose, who, as I learned from a by- stander, was Dr. Mason. He said that he had some commissions to offer, which had been presented to the clerks and refused. Dr.. Elliott asked him where the commissions were from. He answer- ed, I think, that they were from the Synods of Utica, Geneva, Ge- nessee, and the Western Reserve. Dr. Elliott then said, "Sir, you are out of order at present." Dr. Mason replied, " Mr. Moderator, with due respect, I must appeal." The moderator said that the appeal was out of order. A third person, who, I learned, was Mr, Squier, then rose. He said he had a commission to offer, which had been rejected by the clerks, from the Presbytery of Geneva. The moderator asked him vidiether that presbytery was in the Synod of Geneva. Mr. Squier answered that it was. The moderator said, " Sir, we do not know you." Afterwards a fourth gentleman arose, whom I knew to be Mr. Cleaveland: I had seen him before in the General Asseaibly. He was in a diagonal direction from me, and so far distant that I could not hear distinctly all he said ; but I heard distinctly the words, " by the advice of counsel learned in the law," and " about to proceed to organize the Assembly." After a few remarks, he began to read. The moderator called him to order, but he continued. The moderator called him to order three or four times, but he proceeded. Dr. Elliott called to order again, rapped on the desk with his hammer, and then sat down. Mr. Cleaveland moved that Dr. Beman, or Beecher, should take the chair, and said, " Those who are in favour will say, aye." There was a gene- ral " Aye !" in the part of the house where Mr. Cleaveland was. After that 1 did not distinctly hear any motion, but the words, "Those who are in favour will say, aye," and then the "Ayes" very distinctly. I did not hear Mr. Cleaveland's question, or any other, reversed. I did not hear any negative votes. It was a con- fused, tumultuous scene. The tumult arose from the cries of "Aye!" in an unusual loud voice, from persons standing on the seats, and from the whole Assembly being in disorder. Nearly all the Old School members were sitting in their seats: there were a few stand- 200 ing up on either side of the pulpit, near the wall ; but all those in the main body of the house were seated. They did not join in the votes. There were some few around me, who said, in an under tone, " I hope we shall have order," and " What a shame !" or something of that kind. Cross-examination. — In answer to a question by Mr. Randall, the witness said : I am an elder in the Tenth Presbyterian Church, in this city, Mr. Boardman's church. Defendants called the Reii. Samuel £. Wilson, D. D. Interrogated by Mr. Huhbell, the witness said : I attended at the organization of the General Assembly of 1838. I attended as a commissioner. I was present in the church in Ranstead court on the day and at the time of the organization. I sat on the first row of seats, nearest where the moderator stands. I sat on the west side of the middle aisle, on the front seat. Mr. Huhhell. — Did you see or hear Mr. Cleaveland when he was speaking? Sitting as I was, with my face to the moderator, I did not see him rise, but I heard a gentleman whom I was told was Mr. Cleaveland, speaking or reading something, but I could not under- stand what it was. I could only hear pretty distinctly some of the first words which he said. Very soon after he commenced the moderator called him to order, and repeated his call to order more than once. Another member, one who sat near me, also rose and called him to order. This produced confusion, which prevented me from hearing what he said. Some part of what he said I heard, and some I did not hear. Perhaps I should here explain another reason for my not hearing. There was a considerable commotion in that part of the house where Mr. Cleaveland stood, at times after he was called to order and persevered. Some persons standing on the floor, and some, as I suppose, standing on the seats, altogether made a good deal of noise. I do not think that I could state dis- tinctly any proposition made by Mr. Cleaveland. I heard him but indistinctly. I am not able to say that any thing was proposed dis- tinctly. But it appeared that something had been proposed, as there was a vote taken. I heard the vote distinctly; a number of unusually loud " Ayes," and one voice much louder than the rest, as has been stated by others. I heard no reversal of the question. I do not recollect that I heard any voice saying " No." Question by Counsel. — Did you endeavour to hear Mr. Cleave- land? Witness. — I cannot say that I did endeavour to hear him. I could not have heard him if I had tried. Counsel. — Did you vote ? Witness. — I did not vote. Mr. Huhbell. — Why did you not endeavour to hear? This question was objected to by the opposite counsel. Judge Rogers. — You may ask whether he had an opportunity of voting. Mr. Ingersoll. — I will put the question in this form : Were you prevented, by any circumstance, from voting ? 201 Dr. Wilson. — 1 could not have voted, for no enunciation of a question reached my ears. I believe my hearing is as good as usual. Mr. Ingersoll. — I now propose to ask, whether, if he had heard a motion made, not by the chair, but by some person out of the chair, he would have voted '' Objection was made to this question. Judge Rogers. — You must confine yourself to what was actually done. Examination continued. — My back was towards Mr. Cleaveland •when I first heard him speak, but I naturally turned, to get a view of him, and hear what he said. When I turned, I think he was reading from a paper in his hand. I thought he did not hold it very firmly in his hand. Partly from his agitation, and partly fromi the noise, I had but a confused idea of what he said. I was near the division line between the two ranges of pews. The confusion and tumult, after this, increased, particularly in the back part of the house. I can't say that I heard any thing more, distinctly, the con- fusion was so great. I can say, only, that there was some kind of voting, but I don't know upon what questions: for so far was I in the dark, that I didn't know that Dr. Fisher was chosen moderator until it was reported next day. There was a rush of some persons into the aisle, after Mr. Cleaveland commenced. The adjournment took place with continued noise and tumult; the noise, for a little while, was considerably increased, by persons descending from the galleries, as those who formed the religious body in the First Church, passed out of the doors below. Cross-examined hy Mr. Meredith. — I am a minister, and was a member of the Assembly of 1838. I am one of the Old School party. The defendants called the Rev. Samuel Miller, D. D. Interrogated by Mr. Hubbell, the witness said: I was present at the organization of the General Assembly of 1838, but was not a commissioner. I was on the south-west side of the church, about twenty or twenty-five feet left of the moderator, I was standing on the floor. Mr. Cleaveland rose, holding a paper in his hand, which he seemed to be attempting to read. There were cries of order. He began in a loud tone, but seemed to experience great difficulty in proceeding. 1 believe that he did not read it all. The contents of the paper, so far as I heard them, were, that they had been ad- vised by counsel learned in the law, that at that time and place, they must organize an Assembly, and they would proceed to do it with as little interruption, in as short a time, with as few words as possible, and that he hoped they would not be considered as acting in a discourteous manner. He then made his motion to call Dr. Beman to the chair. There was at this time considerable tumult and disorder and calls of order. What Mr. Cleaveland said, did not by any means appear to be distinctly uttered. With the ex- ception of a few calls to order, the disorder was in that part of the house occupied by the speaker. I heard no vocal utterance except these calls to order in the part of the house where 1 was. Neither 202 proposition was reversed ; the nays were not called for on either vote. After moving, without reversing the question, that Dr. Beman take the chair, I think that he made a similar motion without reversing the question, that Dr. Mason and Mr. Gilbert be appointed clerks. After this Dr. Beman went into the aisle and moved a little down the aisle and appeared to place himself in the position of a presiding officer. Those engaged in these transactions moved down the aisle towards the door opposite the pulpit. I then heard an indis- tinct sound but I heard no distinct articulation after this. What was the result, or what occurred after he took the chair, I am unable to testify of my own knowledge. I am not able exactly to define the position of the Old School party, but the great part of. them occupied that part of the house in which I was, and the correspond- ing part on the right side of the moderator, together with the front pews. I think that I was in the midst of them. I did not hear a vote from any of the Old School party. So far as I could hear there was not an Old School man in the whole house who voted. I did not hear any negative votes on either motion. I think there were some in the galleries voted. When the vote of aye was given, there was something in its character which satisfied me that some of the votes came from the gallery. There was a lightness and shrillness of voice which did not appear as coming from consider- ate, serious and dignified men. There was certainly a character about it to which I was altogether unaccustomed. It would be difficult to make an estimate of the time occupied by these trans- actions as the whole movement was so thrilling. But I suppose that the time occupied was not more than five or six minutes. I did not learn that Dr. Fisher had been appointed moderator until the next day, and I was not at all sensible of that part of the ope- rations. I suppose that the General Assembly has been held ten or fifteen times in that church, but this is only a rude guess. I think I have been a member of the Assembly, in that house, half a dozen times. The fixtures are always in the same places. They are put up I suppose by the janitor, at the direction and the expense of the General Assembly. I know the janitor was always consi- dered the proper man to be called upon, to get a chair for any in- dividual that needed one, and he always did it. Cross-examined by Mr. Meredith, the witness said : I have no pastoral charge, am a professor in the Theological Seminary at Princeton. I remained the whole time in the same place. Do not recollect crossing over to speak to the moderator, and am persuaded that I did not. I am entirely confident, that I did not pass hastily to the moderator, and ask him not to permit them to be organized : no such thing occurred. If it had occurred I am sure that I should recollect it. Dr. Wilson, re-called by respondents, said: Dr. Elliott's reply to Dr. Mason, when he made his motion, was, " It is not in order at this time." I think those were the exact words. Cross-examined by Mr. Randall. — As soon as the Committee of Commissions had made their report, the moderator called for other commissions. It was immediately before Dr. Mason rose, that he 203 had made this announcement. He had called for commissions that had not been presented, but Dr. Mason, in his explanation, said, that those he offered had been rejected by the Committee of Com- missions. The kind which he offered was not that that was called for. Mr. Meredith. — Was it not commissions which had not been en- rolled that the moderator called for ? Witness. — I am not certain that it was not, but I believe that by this the same thing would have been understood. I cannot say, but I think that it was not commissions which the committee had rejected. By Mr. Meredith. — I was not a member of the committee to pre- pare a minute of these transactions. I presume that I approved of the minute. Mr. Meredith. — What was the exact phraseology used by the moderator, when he made the call for other commissions ? Witness. — I have no distinct recollection of the phraseology of the moderator. I cannot tell what were the exact words which he used, when he made the call for other commissions. Rev. Isaac V. Brown, called by the respondents. Interrogated by Mr. Hubbell, the witness said : I am a clergyman in communion with the Presbyterian Church. I was not a com- missioner to the General Assembly of 1838. I attended at the or- ganization. I was located immediately in the rear of Mr. Cleave- land, about five feet distance from him. There was one pew be- , tween his and mine. (Witness here explained the position which he occupied, to the jury, by reference to a plan of the church which was exhibited on the occasion.) I am not certain as to the door I came in at, but as to my position in relation to that of Mr. Cleaveland, I am perfectly certain. Mr. Cleaveland rose with a paper in his hand. I did not hear him say " Mr. Moderator." His back was towards me at the time, and his face to the moderator. I did not hear his precise language. He turned a little round from the chair toward the right, which gave me an opportunity to see the handwriting of the paper which he held in his hand, and also to hear what he read. J can mention distinctly the main points contained in the paper read by Mr. Cleaveland nearly in their order. He stated that " we are about going to form a new body. He then expressed an apology for the interruption which he made. He said they were going to do it in the shortest time, and with the fewest words possible. He further said, that they were going to do it in consequence of the advice of counsel learned or eminent in the law. One or other, or both forms of expression, he certainly used. He said their object was to obtain certain legal advantages. These were his words as he uttered them, and that is about the substance of what I recollect. Then imme- diately, and hastily, he moved that Dr. Beman should take the chair, and immediately put the question. There was no reversal of the question, I am very confident ; I heard nothing like it. There was not time, between the first and second motion, to admit of it. When 204 he moved that Dr. Beman should take the chair, there was a very tumultuous response of "Aye!" in certain parts of the house. I think there were votes from the gallery, voices that clearly mani- fested that they did not belong to members of the General Assem- bly. They were shrill and squeaking, more like female voices, from the north-west end of the house, in the rear of the body. There was a considerable volley from that quarter, and some were very like female voices, or, if not so, came from minor youth. There was a very promiscuous assembly, of all sexes, and all ages. There were a few gentlemen occupying the seats immediately in my rear whom I did not know. I heard no negative votes at all. After tl.is a motion was made for the appointment of clerks. I heard the name of Dr. E. W. Gilbert, and Dr. , the name I could not distinguish, nor who made the motion, owing to the confusion at the moment, producing some embarrassment; but I supposed, by the sound of his voice, it was made by the same man. That motion was put and carried in the same manner, but without reversal. Immediately after, there was a sudden call or explanation, the words of which I do not remember, but the object of it was, to pro- duce a movement among those who acted in the scene, towards the north-western, or the western part of the house. Immediately there was a very hasty rush towards that part. There was an assembly thus created very speedily, at a distance from the focus of their pre- vious operations of about twenty-five feet. I endeavoured to ascer- tain the distance, and, without success, what they were doing. I rose up, and got on the seat, to discover, if possible, what the se- ceding members were about. I listened as closely as I could, but the noise and tumult were such, as to prevent my hearing any thing at all. In a very few minutes there was a loud outcry, first near the central point of the body, again at the outskirts, and near the east door, giving notice that the body which had recently organized, were about retiring to another church, Mr. Barnes's church, I think; I don't know the style it goes by in this city. I heard Dr. Mason's motion relating to the documents, which he held in his hand. Dr. Elliott replied to him, " You are out of order at this time," distinctly and emphatically ; these were the very words. Cross-examined by Mr. Meredith. — I have no pastoral charge at present. I reside at Lawrenceville, in New Jersey. I am estimated a member of the Old School party. Witness. — Have you any further questions to ask me ? Mr. Randall. — Nothing further. Rev. JVathan G. White, called by the respondents. Interrogated by Mr. Hubhell, the witness said : I was a delegate to the General Assembly of 1838. I am a clergyman, settled in M'Connelsburg, in Carlisle Presbytery, of which I am a member. I attended at the organization, on the 17th of May. I was in the eastern part of the church, about four pews from the moderator, on the east side of the middle aisle, next the door of the pew open- ing into that aisle. Mr. Cleaveland was two pews behind me. He rose with a paper in his hand, and after stating something, appeared to read from the paper. I supposed him to have uttered about one 205 sentence, before I heard what he was saying. About a moment had elapsed. He said, " as w^ have been advised by counsel learned in the law, that a proper and constitutional General Assembly can- not be organized except at this time and in this place, or house." This was the only sentence which I heard continuously. Then he made something like an apology, and used the words "discour- teous," and " short time;" but there was then considerable noise. I thought perhaps he did not read all that was on the paper, be- cause, although he spoke words loud enough for me to hear, they were not heard continuously, so as to form a sentence. At this time he was turning his face towards the middle aisle, and away from me. He then made a motion that Dr. Beman should take the chair, and just as he made it, a number near and around him rose, and immediately I heard a very loud "Aye." I then heard Mr. Gilbert and Dr. Mason nominated for clerks. I did not hear the motion for Dr. Beman to take the chair reversed. I heard no nega- tive voices. Immediately after the loud " Aye," the names of Mr. Gilbert and Dr. Mason were mentioned for clerks, the same person putting the motion, to which there was a very loud response of "Aye." This motion was not reversed. I mean, I heard no re- versal. Then, for a moment or so, there was a low murmuring of voices, after which I heard again a very loud " Aye." Soon after, those who were standing in the aisle, and on the seats, and even on the backs of the pews, as some of them were, commenced mov- ing towards the door, and out of the house, in a very hurried man- ner. When, as I suppose, about one-third or one-half of these were out of the door, I heard a loud cry at the door, that the General Assembly of the Presbyterian Church had adjourned, to meet in the First Presbyterian Church, on Washington Square. This was re- peated by a middle-aged looking man, standing in the lobby, and was also repeated by him, or some one else, at the other doors. The cries of "Aye" came principally from persons standing in the immediate neighbourhood of Mr. Cleaveland, and also from some standing in a north-west direction from me. I had now turned round, with my face toward Mr. Cleaveland. I cannot say certainly that any of the ayes were from the gallery. There was noise in the gallery, on the west side of the house. I heard Dr. Patton niake a motion; that is, he held certain papers in his hand, and said he wished to ofier a resolution. Dr. Elliott said he was out of order, that the first business was to hear the roll, as it had been made out by the clerks. Dr. Patton replied, that his motion had reference to the roll, and that it could be put in a moment, as he wished the question taken without debate. The moderator declared him out of order. Dr. Patton said that he must appeal from the decision. The mo- derator said that the appeal also was out of order, as there was no house, and as the first business was the report of the clerks upon the roll. He then directed Mr. Krebs to proceed, and INIr. Krebs reported his roll. As soon as he had done with the report, the mo- derator stated that if there were any commissioners from churches within our bounds, who had not yet had an opportunity of present- ing their commissions to the clerks, now was the time to present 18 206 them. Then Dr. Mason of New York, rose and said, that he held in his hand certain commissions. He had a bundle of papers in his hand, which he held out, and said, they had been refused by the clerks, and that he now tendered them, and moved that the names should be enrolled, and the commissioners allowed to take their seats. The moderator asked where the commissions were from. Dr. Mason answered, that they were from the four Synods, naming them, of Utica, Geneva, Genessee, and the Western Reserve. The moderator replied, you are out of order at this time, as the call was made for commissions of a difierent character. Cross-examined by Mr. Meredith. — I am attached to what is denominated the Old School party. Mr. Samuel P. Wilson called by the respondents. Interrogated by Mr. Hubbell, the witness said : I am a theological student of the Princeton Seminary. 1 belong to the Old School party — if I may be considered worthy of that honour. Counsel. You all belong to the Old School party there, I suppose. Witness. I can't say. I attended at the organization of the Ge- neral Assembly of 1838. I attended as a spectator. I had a com- panion with me, a young man ; his name was Twitchell. My position in the house was in the gallery, near to the place occupied by the moderator. When I came into the house, I passed through the recess into the graveyard, and entered the house by the side door. After a few minutes, I went into the gallery, by the side of the pulpit. My companion went with me, or at least we sat together. I remember the motion being made by Mr. Cleaveland, that Dr. Beman act as moderator until a new moderator should be chosen. I recollect that he rose, holding a paper in his hand, with his face, at first, towards the moderator, from which he commenced reading — or certainly appeared to read. During the time, whilst he was reading, or speaking, he turned, so that his side was toward the moderator and his face toward me, and concluded by saying, "I move that Dr. Beman be moderator," or " take the chair." I did not hear the motion seconded, but took for granted that it was, as it was put, and there was a loud affirmative vote of aye. I did not hear the question reversed. My impression at the time was, that it was not reversed. I heard no negative votes. I did not make any memorandum at the time with my pencil, but remarked to my companion, that the question had not been reversed. My impres- sion was very strong, but I will say, merely, I did not hear it. The next thing that I heard, after the gentleman, whom I subsequently learned was Mr. Cleaveland, had put his motion, was a motion that Dr. Mason and some one else, should be clerks. He put this mo- tion, I thought at the time; and J still think that he did, but I did not hear it put. The first thing that I heard after the names, was the response of" aye." I did not hear him propound any question, except at first. I heard the response of " aye," but no reversal, and not any noes. There was no change in Mr. Cleaveland's posi- tion, when he made the last motion, but there were a number of persons around him, who had risen to their feet. Then I observed a person moving out of the pew, and up the aisle, and a gentleman 207 next to me informed that it was Dr. Beman. He stood facing the • moderator, about one-half of the way down the aisle from the pulpit. What he was doing, I don't know ; I could see his lips move, but could not hear what he was saying. There was considerable confu- ' sion by this time in the house. At first it was noise, but after Dr. Be- man took his position, it was rather a buzz, and a confusion of voices, than any loud, clamorous noise. The next thing I was aware of, was a general movement of those persons engaged in these pro- ceedings, and a number of the spectators, towards the north door. After the great mass of them had reached the door and passed through, the Rev. Mr. Beecher, of Jackson Seminary, in Illinois, announced, in a very loud tone, that the General Assembly would meet in the First Presbyterian Church. The same was repeated by a second person at the side door, by a person somewhat advanced in life. It was not Dr. Beecher. I have seen Mr. Eliakim Phelps here, and I think it was he; that is my impression. Counsel. I wish now to turn your attention to the time when Dr. Patton rose. State what then took place. Witness. When the moderator called for the reading of the roll by the clerk. Dr. Patton rose. I cannot tell which rose first, he or the clerk, who was under me. He said that he had certain re- solutions, touching the roll, which he wished to offer. The mode- rator told him he was out of order, as the next business was the reading of the roll by the clerks. Dr. Patton said that his motion referred to the completion of the roll, I don't profess to give his words exactly, and that he wished it put without debate. The mo- derator said that he was out of order. He appealed to the house. The moderator told him that the appeal was out of order. Dr. Patton sat down, and the clerk proceeded with and finished his roll. The moderator stated, that those whose names had been read by the clerks, were to be considered as members of the Assembly, and that if there were any persons, who had not yet presented their commis- sions to the clerks, now was the time to do so. Upon that, a gen- tleman, who I was informed was Dr. Mason, rose, and moved that the roll should now be completed, by the addition of the names of certain commissioners. He said that their commissions had been presented to the clerks, and rejected. The moderator inquired if they were from bodies in connexion with the Presbyterian Church, at the close of the Assembly of 1837. Dr. Mason said that they were from the bounds of the Synods of Geneva, Genessee, Utica, and the Western Reserve. The moderator declared that they could not be received, and were out of order. Dr. Mason said, that, with respect for the chair, he must appeal. The moderator told him the appeal was out of order. Dr. Mason then tendered the commis- sions, and, I think, demanded that the names should be put upon the roll. I don't know whether I have given the exact language of the moderator's replies; only the substance is impressed upon my mind. The moderator, at this time, repeated his call for commis- sions; and Mr. Squier, as I was told it was, rose at that moment and stated that he had a commission from the Presbytery of Geneva, •which he had presented to the clerks, and which they had rejected 208 or refused. He demanded a seat on that floor, and that his name should be put on the roll- Cross-examinatio7i. Questioned by Mr. Meredith.. — Were many of the students of the Princeton Theological Seminary in town at that time. Witness. — I can't say positively, but as it was a period of vaca- tion at the Seminary, I think, a number of the students, as well as some of the professors, were present in the city at that time. They were in and out of town occasionally and frequently, so that 1 can- not tell how many of the students were present, nor how many were in Philadelphia on any particular day. I should not think that a majority of the professors were here. Hon. Walter Lowrie called by the respondents. Interrogated by Mr. Hubhell, the witness said : I w^as present at the organization of the General Assembly of 1838. The position I occupied was a seat nearly against the south-west door of the church, through which is the passage into the graveyard. I sat in one of the pews which are placed against the wall of the house. After the General As- sembly was opened with prayer, the moderator. Dr. Elliott, an- nounced that the first business was the report on the roll by the Committee on Commissions, and he called on the clerks for the report. Dr. Patton rose and stated that he wished to submit a motion. He did not state the motion, but he held in his hand a paper, which I presumed to contain the motion. Dr. Elliott told him he was out of order, as the first business was the report on the roll. Dr. Patton stated that his resolutions had relation to the roll. The moderator decided that he was out of order at that time. Dr. Patton said that he must respectfully appeal from that decision to the house. The moderator decided that his appeal was out of order. I do not recollect that any reason was given why the appeal was out of order. Dr. Patton sat down. The moderator directed the clerk to proceed with the roll, and Mr. Krebs read for a consi- derable time. When he ceased reading, the moderator announced that if there were any commissioners present who had not handed their commissions to the clerks, it then was the proper time to pre- sent them. Dr. Mason, as I afterward understood it was, rose at about that time and presented the commissions, as he stated, of a number of commissioners from certain presbyteries. Perhaps he named them as being presbyteries of the four Synods of Utica, Geneva, Genessee, and the Western Reserve. He tendered these commissions to the moderator, stating that they had been presented to the clerks, but not received. The moderator informed him that he was not at that time, or not now, in order ; which his ipsissima verba were, I can't tell, but one or the other. Dr. Mason said that he must, respectfully, take an appeal from this decision. The mo- derator pronounced the appeal out of order, because the business immediately before the house was, to receive those commissions that had not yet been presented, if any such there were. After that, or before, a gentleman rose, who, I was told, was the Rev. Mr. Squier, saying, that he had presented his commission to the clerks, and that they had refused it. I am not certain whether he 209 rose before or after Dr. Mason. He tendered the commission, and claimed a seat as a member of that house, from the Presbytery of Genessee. The moderator asked him if that presbytery belonged to the Synod of Genessee. He said that it did. The moderator replied, " Sir, we do not know you." It was the Synod of Geneva, not Genessee. I confound the two frequently, because I do not know their locality, except from indistinct recollection of the geo- graphy of that part of the country. 1 think it was immediately after this that Mr. Cleaveland rose. At the moment that he rose, I got up and stood on the seat. As it was a back seat, I could do this without the appearance of disorder. I had a full view of Mr. Cleaveland. He had a paper in his hand, and, apparently, com- menced by reading. I heard but about three or four lines of the paper. The first, I did not hear; but T distinguished these words: "We have been advised by counsel, learned in the law, that, to secure a constitutional organization, and certain legal rights, it is necessary to organize at this time and place ; which we will pro- ceed to do in the shortest time possible." Before he had proceeded this length, there were calls to order, from the moderator and from others. After these words, I heard nothing more, distinctly, partly on account of the noise, partly from his hurried enunciation, as he was in a great hurry at first, and the calls to order seemed to hasten him, and partly by reason of individuals around him rising. After he had ceased reading, he moved that Dr. Beman should take the chair, and immediately propounded the affirmative of the question. He was answered by the persons in his neighbourhood and behind, with a very emphatic " Aye." He said, " I move that Dr. Beman take the chair." The question was then propounded : " Those in the affirmative will say, aye." I did not hear the question re- versed ; and 1 would say, and say distinctly, that the reverse was not put. It might have been put, in a lower tone of voice, and I not have heard it from my position. But the proceedings which immediately followed did not leave time for it to be put, even in a whisper. I would not thus swear to a negative, but that the want of time is sufficient proof I have been accustomed to deliberative assemblies. For seven years I was in the Senate of this state, for six years in the Senate of the United States, and eleven years I was secretary of that body. The immediate proceeding to which I refer was, the motion that Dr. Mason, and another person, whose name I did not hear, should be clerks. By that time, the noise in the neighbourhood of Mr. Cleaveland, and the rising around him excluding him from view,' I did not hear the question put. I heard nothing but a response, like the first. It was a very earnest and hurried response. I thought there were two or three voices from the gallery. I heard nothing of this on the first question. I did not hear, distinctly, any question after that. Others were put, but what they were, or who put them, I did not hear. I thought that the person had moved nearer the door who put them, but persons rose between, and shut them out from my view. I heard no nega- tive responses. All the votes I did hear were around Mr. Cleave- land. I don't know what testimony has been before given; I have 18* 210 just come into the court-room to-day. During the time these ques- tions were passing, a member rose, and asked Dr. Elliott if nothing could be done to restore order. The moderator said that he had called to order, and made what efforts he could, that he supposed the scene would soon be at an end, and the house restored to quiet. This member was the Rev. Robert J. Breckinridge. I could not measure the time that elapsed from Mr. Cleaveland's rising till the adjournment, except by ideas. It was such a hurried scene, that, without looking at a watch, I could not give the time a name. The whole transaction passed in extraordinary haste. I did not hear of Dr. Fisher's appointment until the next day. When I went home, I told the family where I staid, that Dr. Beman had been chosen moderator. They said, the next day, that it was Dr. Fisher. I told them, then, any man might be mistaken, for I was looking on, and had seen nothing like it. I suppose I would be set down as an Old School man. I was not a member of that Assembly, but the members were all around me. I sat there by courtesy. I had business with all the members of the Assembly, and took any seat I found vacant. Cross-examined. — Interrogated by Mr. Wood. — I was not a mem- ber of the Assembly of 1838; but I was the year before. I hold the office of corresponding secretary of the Board of Foreign Mis- sions of the Presbyterian Church. Re-examined by Mr. Ingersoll. — I was elected by the Board to that place, in the fall of 1837, the time wlien the Board commenced its existence. Interrogated by Mr. Preston. — I was elected, before I resigned my place in the Senate, corresponding secretary of the Western Foreign Missionary Society, .which was transferred, in 1837, to the General Assembly. Thursday morning, March 14tJt. Dr. William Phillips, recalled by the respondents, testified : I was moderator of the General Assembly in 1835, which was since Dr. Beman was moderator. I believe Dr. Witherspoon was present at the organization of the General Assembly in 1838. He had been moderator since Dr. Beman was, viz. in 1836. Dr. Beman was moderator in 1831, I think. Respondents called Mr. Jerome Twichell. Interrogated by Mr. Hubbell, the witness said : I am a student of the Princeton Theological Seminary. I went there from Miami University, Oxford, Ohio. I was from Cincinnati, in Ohio, origin- ally; am' a member of the Second Presbyterian Church there, under Dr. Beecher. I attended the organization of the General Assembly in 1838. When I came into the building, I took a seat on the right side of the church, near the door which leads into the grave-yard. I staid there a short time, and then went into the gal- lery. There were several vacant seats around me where I first sat. There were also several vacant seats on the right of the pul- pit. It was nearly eleven o'clock. Dr. Elliott was then in the pul- pit. It was before the sermon commenced. I think I first took a seat 211 on the right side of the aisle, but shortly afterwards I moved back, as several ladies were standing. I afterwards saw a gentleman standing, gave him my seat, and went into the gallery, near the pulpit. Mr. Samuel VVilson was with me. I saw the moderator, Dr. Elliott, come out of the pulpit, and taking his station in front, open the General Assembly with prayer. He then said that the next business was to read the roll. Shortly after this, Dr. Patton rose to offer certain resolutions which were in his hand. The mo- derator said, " You are out of order at this time, sir, inasmuch as the first business is the report of the clerks on the roll." Dr. Patton then said that his resolutions related to the roll, and he was wil- ling to have them passed upon without remark. The moderator decided that he was out of order. Dr. Patton appealed from the decision. The moderator decided that his appeal was out of order, as the house was not yet organized. Dr. Patton then sat down. The moderator then directed the clerk to proceed with the reading of the report on the roll. Mr. Krebs read the roll accordingly. Immediately after this, an individual, whose name I afterwards learned was Dr. Erskine Mason, rose, with a bundle of papers. Previous to this, however, the moderator announced, that if there were any commissioners present who had not presented their com- missions to the clerks, now was the proper time to present them. Dr. Mason said he held in his hand certain commissions which had been presented to the clerks and refused. He then moved that the roll be completed by the addition of the names on these commis- sions. The moderator asked if they were from presbyteries in connexion with the General Assembly at the close of the meeting of 1837. Dr. Mason replied, that they were from presbyteries belong- ing to the Synods of Utica, Geneva, Genessee, and the Western Reserve. The moderator said, " ive can't receive them at this time.''' After Dr. Mason had taken his seat, a gentleman rose, whose name I have since learned, and stated that his commission had been re- fused by the clerks, and that he now presented it, and demanded his seat in the General Assembly. The moderator asked him from what presbytery he came. He replied, from the Presbytery of Geneva. The moderator asked if the Presbytery of Geneva be- longed to the Synod of Geneva. The gentleman replied, that the Presbytery of Geneva was within the bounds of the Synod of Ge- neva. The moderator then said, "it-e do not know you, sir.'^ The gentleman then took his seat. I afterwards learned that the gen- tleman's name was Mr. Squier. I believe I have omitted one declaration of the moderator to Dr. Patton. He said there could be no appeal, because there was no house to appeal to. Next an individual rose, whose name I after- wards learned was Mr. Cleaveland, holding a paper in his hand, from which he appeared to read. The first part of what he read or spake, I heard distinctly. The latter part I did not. It was to this amount: Whereas, the rights of certain commissioners have been violated in their being refused their seats as members of the General Assembly, it therefore becomes necessary to organize the General Assembly at this time and in this place. I distinctly heard 212 something like the word " discourteous." There was considerable noise and confusion at the time. The next thing I distinctly heard, was something like B . I supposed, at the time, the word was Beecher. I thought that he said Dr. Beecher, who was sitting be- side Mr. Cleaveland; but I could not be certain, as all I heard was " Dr. jB." Soon after this, there was a very loud vote in the affirma- tive of some question which I did not hear. The next thing that I saw, for I could not hear any thing except the cries of " order, or- der," and some gentleman saying "I hope we shall have order," the moderator distinctly responded that the confusion would soon be over, that he had tried to preserve order, and that he hoped the members would keep their seats. The next thing which I saw, was several individuals going into the aisle near the pews occupied by Dr. Beman, Dr. Mason, and Mr. Cleaveland. In several places in the house there were individuals standing up, and considerable rustling of dresses, and noise occasioned by persons rising in the gallery. Those whom I have mentioned, went into the aisle about this time, and I heard distinctly after they had gone some distance into the aisle, affirmative responses to something which I did not hear. In a short time, a great part of the persons in the gallery, and on the floor below, including ladies and others, left the house. I could not distinguish members iVom others. About this time there was a general clapping and some hissing, which I supposed to pro- ceed from the audience, rather than the actors in the scene. After they had generally left the house, Mr. Edward Beecher came back to the door, and proclaimed in a very audible voice, that the Gene- ral Assembly of the Presbyterian Church had adjourned to meet forthwith at the First Presbyterian Church. The same was pro- claimed at the side door of the house, by some one whom I did not distinctly see nor recognize, but still I heard him distinctly. Another individual then repeated the proclamation at the other doors of the house, that the General Assembly had adjourned. The Jirst vote on Mr. Cleaveland's motion, I saw him and heard the affirmative distinctly. I heard no negative votes. I did not hear a reversal of the question. I cannot affirm that I heard any votes from the gallery. But the votes arose in a body, and I can't say from what part of the house they came. I cannot say how long it occupied them to go through with these transactions. But it was a very short time. It was a time of deep excitement. I did not know of Dr. Fisher's being elected moderator at that time. I was informed afterwards that he had been. Rev. Varnum A. Noyes was called by the respondents. Interrogated by Mr. Hubbell, the witness said: I am a clergyman of the Presbyterian church. I was not a delegate to the General Assembly of 1838; I reside in the Western Reserve in the northern part of the State of Ohio. I belong to the Presbytery of Wooster. I did belong to the Presbytery of Medina in 1837. I previously belonged to the Presbytery of Cleveland. The Presbytery of Me- dina is within the bounds of the Synod of the Western Reserve. lam somewhat acquainted with other presbyteries in the Western Reserve. I have some acquaintance with the Presbytery of Portage belong- ing to the Synod of the Western Reserve, also that of Cleveland. 213 Mr. Huhhell asked, as to the Presbytery of Medina, how is it con- stituted as regards CongregationaHsts and Presbyterians'? Mr. Meredith asked for what purpose the counsel had introduced the inquiry ? Mr. Hubhell. — Our purpose is to prove that this presbytery is principally composed of Congregational churches, and to follow up the inquiry by other proof of other witnesses that other presbyteries are composed of a majority of Congregational churches. Mr. Meredith. — I object, because the inquiry is totally irrelevant to the issue of this cause. Suppose it were proved that in the whole of the excinded presbyteries there is a majority of ministers who are pastors of Congregational churches, and that a single presbytery is composed entirely of ministers, who are pastors of Congregational churches, what effect would it have, seeing the ministers and not the churches compose the presbyteries? An extended colloquy ensued. The counsel for the respondents urged the admission of the tes- timony for the sake of showing such an admixture of Congrega- tionalism in the churches connected with the excinded synods, as to justify the acts of excision and the exclusion of the commissioners from the presbyteries within those synods. The relators, on the other hand, contended that if the admixture were proved, it could not affect the integrity of the presbyteries, as they existed indepen- dent of the churches and were erected in the constitutional manner, by the proper judicatories; and that if it were otherwise, it was not competent to the party of the respondents, now, to adduce evidence of a vice which might have been cause of a judicial trial in the church court, thereby to justify the excision of these bodies without a trial. It was too late, they contended, to set up such a defence even in the church courts, much less could it be brought into this case before the civil tribunal. Judge Rogers ruled that the evidence was inadmissible, and said, the proceedings of the Assembly of 1837 were admitted in explana- tion of those of 1838. I then did not, and still do not understand, how we could do without them. I then thought that the proceed- ings of 1837 were necessary to the defendants' case, and I still think so. But with the reasons of these proceedings we have nothing to do. We are to determine only what was done ; the reasons of those who did it are immaterial. If the acts complained of were properly and constitutionally within the jurisdiction of the Assembly, their decision must be final, even though they decided wrongfully. The civil courts have enough to do without interfer- ing with such questions. The respondents called the Rev. Francis M^Farlane. Interrogated by Mr. Hubhell, the witness said : The General Assembly has three Boards: the Board of Education, the Board of Missions, as it is called, for domestic missions, and the Board of Foreign Missions. The Assembly has no connexion with the Home Missionary Society, though some years ago they recommended the Home Missionary Society to the patronage of their churches. The Assembly has no connexion with what is styled, I think, the Central Education So- 214 ciety. I am Corresponding Secretary to the Board of Education, attached to the General Assembly. I have here some of the books of that board. Our register contains the names of the young men assisted by the board, and our leger, the sums paid to all these young men. Judge Rogers inquired, what has this to do with the case ? Mr. Huhbell informed the Court that he designed to rebut the evidence which Mr. Randall had exhibited the other day from the statistical tables, &c. ; to show that the contributions then exhibited were made in obedience to a resolution of the Assembly, requiring the presbyteries to report their contributions, not only to the boards of the Church, but to all charitable societies ; and that, in those years, when, from the extracts read, the presbyteries referred to, would appear to have contributed largely, but a few hundred dollars of these contributions were appropriated to the Church funds. Judge Rogers. — The extracts read by Mr. Randall were offered to prove, merely that these presbyteries were part of the Church, and as such, recognised by the General Assembly in the act of receiving funds from them; and it is entirely immaterial, whether only one dollar, or ten thousand dollars were contributed. The respondents called Mr. Thomas Evans. Interrogated by Mr. Hubbell, the witness said : I attended the General Assembly in Ranstead court, and was present at its organization in May, 1838. The position which I occupied was one of the side pews in the south- west gallery. I never was in the house but once before. I saw Mr. Cleaveland rise. He held in his hand a paper. I was told that it was Mr. Cleaveland, but I did not know him. I have resided for nearly twelve years in one of the southern states, and am there- fore a stranger in this city. His face was towards the moderator when he rose, but he turned round as he read or spoke. I could not hear distinctly what he said, nor whether he read from the paper, or spoke independently of it, though I thought he read from it. I heard his voice, but could not understand what he said. The moderator called him to order, by rapping with his hammer, and otherv^'ise. A number of other persons also cried "Order! order!" I was in the first seat in the gallery, near to the pulpit. Mr. Cleave- land was located on the floor, almost opposite to me. I am con- fident I did not hear what he read, that is, I did not hear it so as to understand any part thereof. There was a confusion at the time, which prevented me from understanding him. I heard his voice merely. After his reading what he did from the paper, he pro- posed that Dr. Beman act as temporary moderator. He stated that he wished those in favour to signify it by saying aye, when there was a loud vote in the afiirmative. I did not hear any noes. Im- mediately Dr. Beman stepped into the aisle. The question was not reversed. I took particular notice of this at the time. From what I had heard out of doors, I expected to hear it voted down. After the General Assembly had adjourned, I recollect stating to a gen- tleman, that the question was not reversed. I am not only con- fident of this, I may say positively that I know it. Dr. Beman, as 215 I said, stepped into the aisle. Mr. Cleaveland, I think, had occu- pied ihe same pew with Dr. Beman, Dr. Beman sitting by the door. After Dr. Beman took his station in the aisle, a motion was made by some one, I think by Mr. Cleaveland, that Dr. Mason and ano- ther gentleman act as clerks, and the question was carried by a very loud " Aye." Dr. Fisher was then named by some person as moderator of the Assembly of 1838, and the nomination was seconded. The motion was then put and carried. There was a very loud affirmative voice. There was then a motion made, I think, that those in favour of these proceedings should retire or adjourn, to the rear of the house ; I am not certain which. Accord- ingly, a great many persons went towards the end of the house, and formed in the middle aisle, I should think about halfway from the pulpit. Some were at this time standing on the seats in or near the middle aisle of the church. I am unable to state accu- rately what was said after that. I heard nothing distinctly, except that the General Assembly had adjourned to the First Presbyterian Church ; to Mr. Barnes's church, was reiterated. There was con- siderable confusion at the time, which prevented me from hearing. I saw, in the north-east corner of the house, several persons clap- ping their hands, as though in applause of what was going on ; the names of all of them I did not know, though I think I could know some of them. I should say that every one whom I knew appeared to belong to the respectable portion of the community. I don't know to which party they belong. I heard a loud "Aye" in the case of Dr. Beman; that is, on the question of appointing him tem- porary moderator. Several persons around me, and one young man in the gallery close by me, on my left hand, voted " No." This young gentleman was the one from whom I learned the names of the different parties. There were ladies in the gallery: I cannot say whether they were silent. Those around me appeared so. While the body was retiring, there was great applause, I recollect distinctly. I keep a hat store in this city, and attend the Tenth Presbyterian Church, Mr. Boardman's. 1 am a communicant of that church. I think I had then handed in my certificate, from the First Presbyterian Church of Augusta, Georgia, of which I had before that time been a member. Cross-examined by Mr. Randall. — I think my papers were handed in before, and that I was admitted afterwards. Mr. Boardman's church belongs to the Old School party, and to the Second Presby- tery of Philadelphia. I profess to be a Presbyterian. I think I have sympathized with the Old School, believing myself nearest the truth in sympathizing with them. I have been influenced by nobody in these sympathies. Rev. Henry A. Buardman, called by the relators. Interrogated by JW. Huhbell, the witness said : I am pastor of the Tenth Presby- terian Church in this city. I was not a delegate, but attended at the opening of the General Assembly of 1838. The position which I occupied was a pew in the south-west part of the church, on the right hand of the moderator's position ; that is, to one facing him. I don't remember whether I was in the seat which binds against 216 the wall of the house or in the next one to it. These seats are raised a single step above the floor of the church. Mr. Cleaveland rose, facing the moderator, with a paper in his hand, and com- menced reading, in the manner which has been pointed out by several witnesses. He made some remark which 1 did not under- stand. I heard nothing, which I can now remember, except the words, " counsel learned in the lawJ" Whether those words were in the paper or prefatory remarks, I do not know. His eyes were closely fixed on the paper. Mr. Cleaveland's countenance was flushed, and he appeared much agitated. His frame and voice Trembled. He turned gradually as he read, till he faced the west side of the house. The moderator called him to order and rapped with his hammer repeatedly, and there were cries of order from a number of the members around me, who used various expressions ; some cried ^^ Shame, shamed and I heard one or two gentlemen say, " Let him go on." At this time some rose on their feet, and there were some standing on the seats, which prevented me from seeing Mr. Cleaveland. I however heard him make a motion something like this, that Dr. Beman be appointed moderator. I am not positive that those were his words, but what he said was some- thing equivalent to what I have mentioned. He called for the yeas, saying that those in favour would say, aye. There was then a very loud " Aye." He did not reverse the question, on his nomi- nation of Dr. Beman. I distinctly heard the next question, and he did not reverse it either. I speak with entire confidence, because I spoke of it frequently afterwards. I supposed that the omission to reverse the question arose from embarrassment. Shortly after this there was a movement of several persons toward the north door in the middle aisle. After this they were completely obscured from my view by the intervention of persons who were standing on the floor, on the seats, and even on the backs of the pews. I heard not what passed, except a hum or buzz, and then a loud and tumultu- ous " Aye," from a number of voices, and one voice sounding high over all the rest. I did not know at the time that Dr. Fisher was appointed moderator, and denied it when I first heard it afterwards. Soon after the responses of "Aye," the actors in the scene rushed toward the north door of the church. I supposed from what I saw- that they were leaving the house. At length there was another movement toward that and the east door, and a person appeared at the door, and in a very loud, shrill voice, proclaimed that the Gene- ral Assembly of the Presbyterian Church had adjourned, to convene immediately in the First Presbyterian Church, which excited a smile. This was repeated at the east door of the house. Whether the person who made this proclamation went round and put his head in at the east door, I don't know. The house was very much crowded until part of the spectators went away. As far as I can judge, the greater part staid with us after they left the house. According to the best of my recollection, I did hear a few "Noes" on the first question, but not in response to Mr. Cleaveland. They appeared to be simultaneous or intermingled with the "Ayes," or immediately, in quick succession, afterwards. The " Noes" did not 217 come from my part of the house. They appeared to come from the same vicinity as the "Ayes." Perhaps some of them might have come from the gallery. None of the Old School party, so far as I know, voted on either of the questions. Mr. Hiig/i Auchindoss, called by the respondents, interrogated by Mr. Hubbell, said: I attended the organization of the General As- sembly of 1838; was a commissioner from the First Presbytery of 'New York; was located in the south-west corner of the church; am not a clergyman : am a ruling elder. Dr. Mason had scarcely sat down before Mr. Cleaveland rose up and commenced reading a paper. It appeared to me that he did not address the moderator. 1 could not distinctly hear what he read from that paper, but I heard him say, " I move that Dr. B take the chair." I did not distinctly hear whether he said Dr. Beman or Dr. Beecher. A number of persons immediately responded "Aye," in a very loud voice. I heard no negative voices, nor did I hear any one of the questions reversed, and knew not what they were : I only inferred that, for I did not hear. On the second question I am positively certain that there was no negative vote. Neither of the questions was reversed. Of this I am positive. I distinctly heard voices from the gallery saying "Aye." They went out of the house in a very disorderly manner, as it appeared to me. These proceedings passed very rapidly. I suppose they did not occupy more than five mi- nutes, if as much. The moderator's answer to Dr. Mason was, "You are out of order at this time." Those were the exact words used by the moderator. I am positively certain ; I cannot be mis- taken. I did not hear Dr. Fisher's name mentioned, and did not know that he had been elected moderator until next morning. I did not vote on any of the questions. Cross-examination. — Interrogated by Mr. Randall, the witness said : I belong to the Duane street Church in the city of New York. We have no party there. The question was never agitated in our church. We range under no banner but the Presbyterian banner, the banner of the cross. We are certainly an Old School church. The noise and confusion and tumult at the time prevented me from hearing what was going on, when Dr. Fisher was appointed mode- rator. Mr. Meredith. — I understand you to say that you are Old School men 1 Witness. — We are of the Old School, as the New School party call us. Mr. Meredith. — Do you know by whom those terms were first used? Witness. — They were first used by the New School party, in the General Assembly of 1831. Counsel. — Are you quite sure that they were first used by the New School party? Witness. — I will refer you to my respectable friends on the other side. Perhaps they can give you the information. I am very proud to be ranked with the Old School. Mr. Meredith. — Do you know who first used that term? 19 218 Witness. — I do not know, but believe it first came from the neigh- bourhood of my respected friend hei'e (Dr. Peters.) The term has been used a long time. Respondents' counsel here read in evidence, from the Assembly's Digest, page 118, the second of "three articles" selected from the Plan of Union adopted by the Synods of New York and Philadel- phia in 1758, from the minutes of the United Synod, page 3, as fol- lows: 11. That when any matter is determined by a major vote, every member shall either actively concur with, or passively submit to, such determination ; or, if his conscience permit him to do neither, he shall be at liberty modestly to reason and remonstrate, and peaceably withdraw from our communion, without attempting to make any schism ; provided, always, that this shall be understood to extend only to such determinations, as the body shall judge indispensable in doctrine or Presby- terian Government. Mr. William Wilson, called by respondents' counsel, interrogated by Mr. Huhhell, said: I was a delegate from the Presbytery of New Brunswick, to the General Assembly of 1838. I attended at the opening of that Assembly in May. (Witness here described, as several others did, the position which he occupied in the house, by referring to a plan of the church pre- sented by counsel.) I was on the west side of the centre aisle, six or seven pews from the front, next the pulpit. I am a ruling elder of the Presbyterian Church. Mr. Cleaveland was close by where I sat. He had some paper in his hand, which he attempted to read. He said he meant no discourtesy, but that "we have been advised by learned counsel that this is the place in which we must organize." I did not know who "we" meant. I sat by the door of the pew, next the aisle. He was called to order by the moderator. Several voices near the moderator, and in different parts of the house, called him to order, and one person urged him to proceed. It was in a low, but seem- ingly earnest tone, urging him to go on. In the course of his re- marks, he moved that Dr. Beman take the chair, which was second- ed by some person, who I did not know, in the same quarter. When he had put the motion, there was a very loud " Aye" which rung through the whole church. From the manner of the sound filling the whole house, my impression was that some of the voices came from the galleries. The calls to order were repeated and continued. The moderator used his mallet, and used some words which I did not exactly hear, and finally sat down. Dr. Beman, who sat at the door of the pew with Mr. Cleaveland, then came out of the pew into the aisle, and passing down the aisle a little space, took his station there. I did not hear the question on his motion reversed. I am certain I was so near him that I should have heard it, if it had been reversed. It teas not reversed. There was then a move further back in the house. Dr. Beman was then between the mass which seemed to be moving back and the moderator's chair. I heard the calls to order. They were very loudly made. That is the chief ihat I can tell, as I kept my seat for the whole time. I heard noise, confusion, and very loud " ayes," but no " noes." I did not vote. I heard afterwards the voices, which appeared to be much nearer 219 the north door of the house. A great number had then gone out of the house. An individual proclaimed that the General Assembly of the Presbyterian Church would meet at the First Presbyterian Church, on Washington Square, immediately or forthwith. I knew nothing about Dr. Fisher's being elected moderator, except that I heard it by common fame. The whole of this movement occupied but a very few minutes, perhaps not more than five. Its manner was very hasty, and the proceedings were had with great rapidity. A gentleman in the same pew with Mr. Cleaveland, and whom I was informed was Dr. Wm. Patton, made a motion. He was on the side of the aisle just opposite to where I sat. 1 recollect that gentleman arose, after the moderator had opened the Assembly with prayer, and stated that then was the time for the clerks to proceed with the roll. He offered a paper, which he stated to be in con- nexion with the roll. The moderator declared it to be out of order at that time. He appealed, and the moderator, for the same reasons that he had declared the first motion to be out of order, declared the appeal to be out of order. I understood him so. I may not have given the exact words. Another gentleman presented a paper of the same kind after the roll had been read, which the moderator de- clared to be out of order. The vote taken on the question was a shout of " aye." The whole was conducted in a peaceable manner, that is, I mean actually peaceable; but it was not conducted in an orderly manner. When these two gentlemen arose, I mean the first two, I considered them orderly. I believe that I have stated all that I know. The first question was put to the house. I did not hear any others put. I did not act with them. It was necessary to pay very close attention, in order to understand what was going on; and I presume that much of the time there were some present that did not hear the transactions. There was considerable applause when they retired, something like cheering. I could observe at the same time numbers in the gallery moving toward the place where they went. Here the defendants' counsel oflTered in evidence and read from the minutes of the New School Assembly of 1838, p. G63-7, a part of the pastoral letter, as it is called, and the court decided at the in- stance of the opposite counsel that the whole was to be considered in evidence. It is as follows : Pastoral Letter to the Churches under the care of the General Assembly. Beloved in the Lord. — It is well known as a matter of history, that the Presbyte- rian church in our nation commenced in the union of pious natives and foreigners of Congregational and Presbyterian origin. These differences, in her early and feeble state, occasioned no interruption of her peace and efficiency. But as her members increased, they produced contentions, which resulted in the violent ex- pulsion of one synod by another, and a separation of seventeen years. The terms of reunion were, a subscription of the Confession of Faith, " as con- taining the system of doctrine taught in the Holy Scriptures," notwithstanding any such "scruples with respect to any article or articles of said Confession, as the presbytery or synod shall judge not essential or necessary, in doctrine, worship or discipline;" and "the synod do solemnly agree that none of us will traduce or use any opprobrious terms of those who differ from us in those extra essential and not necessary points of doctrine, but treat them with the same friendship, kindness and brotherly love, as if they had not differed from us in such sentiments." By this "plan of union," the peace of the church was restored, and her prospe 220 rit\' augrnented, tliough from some circumstances the administration of her pohcj was continued without envy, in the hands of the immig-rant Presbyterian portion of the chui'ch. Wiien the tide of population began to roll westward, and the territories of our church were fast filling- up with pious emigrants fiom the East, a proposal was made by the General Assembly of our chuixh to the Association of Connecticut, to permit the iniion of the same cliurch of Pi-esbyterians and Congregation alists in the new settlements, for tiie greater facilitj' of supporting and extending the institu- tions of religion. This union, so congenial with t'le spirit of the gospel, exerted for a long time an auspicious influence, in the extension of Presbyterian churches from tlie Hudson to the Mississippi. But at length, in the mysterious pi-ovidence of God, it came to pass that the very causes of our pi-osperity became tlie occasions of disaster. For, in the rapid mul- tiplication of new states and Presbyterian churches, it soon became apparent that native American Presbyterians must unavoidably become a majority of the church ; and though the slight variations of docti'ine and policy created no alarm while the helm of power was supposed to be safe, the prospect of its passing to other hands created a strong sensation. About this time a plan of union was formed with the Associate Reformed church, and a considerable accession was made to our church from tliat body ; and, soon after, the system of ecclesiastical organization commenced for the administration of tlie charities of tlie church, witii increasing unfriendliness to voluntary associations, till the one was established and the otiiers w"ere disclaimed and opposed. During the progress of these movements, the slight shades of doctrinal differ- ence, always known and permitted to exist in the church, before and since the adopting act, and recognized in every form, as consistent with the Confession of Faith and the unity of the Spirit in the bonds of peace, became the occasions of alarm, and whisperings, and accusations, and at length of ecclesiastical trials for heresy ; while doctrines and measures unknown to the confession were selected as tests of orthodoxy. As the results of these efforts to change the terms of subscription and union, tlie General Assembly of 1837, "convinced that a separation of the parties was the only cure," and "that a separation by personal process was impossii:)le, or, if pos- sible, tedious, agitating and troublesome in the highest degree," proceeded with- out ciiarges, citation, witnesses or a judicial trial, to separate four synods and one presbytery from the Presijyterian church. In these circumstances, apprised by counsel of the unconstitutionality of the disfranchising act, and advised of a consti- tutional mode of organization, we did, in a meeting for consultation and prayer, on the 15th day of May, 1838, send the following proposal to a large number of com- missioners to the Assembly met in another place, viz : " Resolved, That while we reg-ard with deep sorrow the existing difficulties in our beloved church, we would fondly hope that there are no insurmountable ob- stacles in the way of averting the calamities of a violent dismembennent, and of securing such an organization as may avoid collisions, and secure the blessings of a perpetual harmonious action." "Resolved, That we are ready to co-operate in any efforts for pacification which are constitutional, and which shall recognize the regular standing and secure the rights of the entire church, including those portions which the acts of the last Ge- neral Assembly' were intended to exclude," "Resolved, That a committee of three be now appointed, respectfully to commu- nicate the foregoing resolutions to those commissioners now in session in this city, who are at present inclined to sustain the acts of ihe last General Assembly, and inquire vvhetiier they will open a friendly conference for the purpose of ascertain- ing if some constitutional terms of pacification may not be agi-eed upon." While this proposal was under consideration, it was resolved by the meeting, "That, should a portion of the commissioners to the next General Assembly at- tempt to organize the Assembly, without admitting to their seats commissioners from all the presbyteries recognized in the organization of the General Assembly of 1837, it will then be the duty of the commissioners present to organize the Ge- neral Assembly of 1838, in all respects according to the constitution, and to trans- act all other necessary bvisiness consequent upon such organization." To our communication we received the following answer: " Tiie committee on tlie communication from ' the meeting- of commissioners,' now in session in the lecture room of the First Church, presented the following pi'eamble and resolutions, which were adopted: viz.: Whereas the resolutions of nhe meeting,' whilst they profess a readiness «to 221 co-operate in any efforts for pacification, which are constitutional,' manifestly pro- ceed upon the erroneous supposition that the acts of the last General Assembly, declaring the four Synods of the Western Reserve, Utica, Geneva and Genessee out of the ecclesiastical connexion of our church, w^ere unconstitutional and invalid, and the convention cannot for a moment consent to consider them in this light ; therefore. Resolved unanimously. That the convention regard the said overture of 'the meeting,' however intended, as founded upon a basis which is wholly inadmissible, and as calculated only to disturb that peace of our church, wliich a calm and firm adherence to those constitutional, just, and necessary acts of the last General As- sembly, can alone, by the blessing of Divine Providence, establish and secure. Resolved, That, in the judgment of the convention, the resolution of the last Ge- neral Assembly, which provides, in substance, that all churches and ministers within the said four synods, which are strictly Presbyterian in doctrine and order, and wish to unite with us, may apply for admission into those presbyteries belonging to our connexion which are most convenient to their respective locations ; and that any such presbytery as aforesaid, being strictly Presbyterian in doctrine and order, and now in connexion with either of the said synods, as may desire to unite with us, are directed to make application, with a full statement of their case, to the next « Ge- neral Assembly, which will take order therein,' furnishes a fair and easy mode of proceeding, by which all such ministers, churches, and presbyteries, within the said synods, as are really desirous to be ' recognized' as in regular standing with us, and as proper parts of our 'entire church,' may obtain their object without ti'ouble and without delay." By this answer, all prospect of conciliation or an amicable division being fore- closed, we did, after mature consideration and fervent prayer, proceed, at a proper time and place, to organize, in a constitutional manner, tlie General Assembly of 1838 ; which, being accomplished on our part, without violence or tumult, the Assembly adjourned to the First Presbyterian Cliurch. During the session of the Assembly, on Wednesday, May 24th, the following resolution was passed, viz : " Resolved, That this body is willing to agree to any reasonable measures, tend- ing to an amicable adjustment of the difficulties existing in the Presbyterian Church, and will receive and respectfully consider any propositions which may be made for that purpose." Beside these overtures for peace, influential members of the Assembly held per- sonal conference with members of the other body, till it was ascertained that there was no hope of an amicable settlement of differences. In the retrospect of this mournful history, we are compelled to regard the exci- sion of the four Synods and the Third Presbytery of Philadelphia, with the setting up a new test of doctrine and measures, as an exercise of power by the Assembly unknown to the constitution, and dangerous to the purity and liberty of the church, perpetuating to an accidental majority unlimited and irresponsible power, and affording to minorities only such protection as may be found in passive obedience and non-resistance. We could not fail to perceive, in a General Assembly concentrating in itself leg- islative, judicial, and executive power, and dispensing the discipline, the honours, and the copious revenues of the church, the elements of an ecclesiastical organi- zation, which, with less pretension in the beginning, had once, for more than ten centuries, subverted the liberties and rolled back the civilization of the world. To have acquiesced in such concentration of Irresponsible ecclesiastical power and patronage, would have been to abandon the constitution of the cl^urch, which we had solemnly engaged to defend; to expose large amounts of property to di- version fi'om its intended use, to subject the churches to a wide-spread, vexatious litigation ; to abandon to aggression and division, a large and efficient body of con- cordant churches with their pastors; to surrender rights of conscience, and free inquiry, and charitable enterprise, to an organization never recognized by Heaven as their keeper, or clothed by our constitution with their power; and, finally, to throw apparently the example of our extended and powerful church — the patron, hitherto, of constitutional liberty — on the side of those elements of strife and vio- lence, which already so powerfully agitate tlie nation. We love and honour the Confession of Faith of the Presbyterian Church, as con- taining more well-defined fundamental truth, with less defect than appertains' to any other human formula of doctrine, and as calculated to hold, in intelligent con- cord, a greater number of sanctified minds than any which could now be formed ; 19* 222 and we disclaim all desigri, past, present, or future, to change it. But it is not tlie Bible, nor a substitute for the Bible, nor a stereotj'ped page, to be merely com- mitted to memory, by unreflecting, confiding minds, without energy of thought^ and a prayerful, faithfid searcliing of the Scriptures. It is itself an illustrious monu- ment of the independent investigation of the most gifted minds, and breathes and inspires the spirit which formed it. We impute to our brethren no intention of producing the results which we an- ticipate from their measures, but good intentions do not change the nature or avert the mischiefs of erroneous principles and injurious actions. It is a matter of his- tory, that some of the greatest calamities of the church have flowed from principles and innovations introduced by good men, and with the best intentions. And now, beloved brethren, we beseech you to unite with us in thanksgiving to God, for the harmony, and kind feeling, and decision, which have pervaded our de- liberations and action, and for those wide-spread and exuberant effusions of the Sjiirit the past year, which, amid unusual sorrows, and fears of deserved judgments, have caused the tide of spiritual prosperity to flow deep and broad, the expression of sovereign mercy and the pledge of future love. It is our desire and expectation that ye will persevere in well doing, and not be seized with any sudden amazement, through manifold temptations and trials of your faith and patience, and tliat you will not be moved away from the gospel which ye have heard, and the "form of sound words" and salutary discipline, so influential in our past prosperity. We exhort that fervent charity be maint.iined among you, and a spirit of prayer for the continued presence and power of the Holy Spirit, and devotedness to those hibours which God especially employs for the promotion of revivals of religion, the great end of all means, and the comprehension of all spiritual good. But while tiiese things are faitlifuUy done, we pray you that other duties of im- perious obligation and urgent necessity be not neglected ; particularly that your charity for Home and Foreign Missions, and the education of a lioly ministry, and for all our long-clierished voluntary associations, be not suffered to decline, but rather to flow on with augmented power, and faith, and prayer. That especial care be taken to send and sustain a full repi-esentation of the Church, as a means of a mutual communication of knowledge, the culture of con- fidence, and the production of wise counsels. And now, bretliren, we commend you to Him who is "able to keep you from falling, and to present you faultless before the presence of his glory with exceed- ing joy, praying "that ye might be filled with the knowledge of his will, in all wisdom and spiritual understanding, that ye might walk worthy of the Lord unto all pleasing, being fruitful in every good work, and increasing in the knowledge of God ; sti-engthened with all might according to his glorious power, unto all patience and long-sufl'ering with joyfulness." "Now our Lord Jesus Christ himself, and God, even our Father, which have loved us, and given us everlasting consolation and good hope through grace, com- fort your hearts, and establish you in every good word and work." Sam'l Fisher, Moderator. Ehskine Mason, Stated Clerk. Fhiladelplda, May 25th, 1838. The Counsel for the respondents proposed next to read in evi- dence, from the minutes of the General Assembly of 1837, to estab- lish the position that a wide difference of opinion obtained between the two parlies in " doctrinal tenets." Objection was made, on the ground that the investigation was irrelevant. The Counsel for the relators claiming that no such dif- ference as alleged existed, that they were prepared for an investiga- tion of the subject, but considered it as precluded by early decisions of the Court, and by the very nature of the case now pending. Mr. Hubbell, for the respondents, alleged that he considered it an important part of their case, and had accordingly given it pro- minence in his opening speech. Judge Rogers. — I know that you did so, and I thpn notified you that it had no possible bearing on this case. We have nothing to 223 do with differences of doctrine between tiiese parties. No doubt there may be differences, but their consideration does not belong to us here, in this court. The Counsel for the respondents next read in evidence, to show the irregularity of the proceedings of the New School in their or- ganization in 1838, certain rules of the Assembly, pp. 16-18, of the Digest, "Chap. 2. Of the annual organization of the General As- sembly," as follows : Section 1. Immediately after public worship, on the day appointed for the meeting- of the Assembly, the moderator takes the chair ; and having called the commissioners to order, offers prayer to Almighty God for his direction and blessing. Sec. 2. The moderator then calls for the commissions ; which being delivered to the clerk, and publicly read, a list of the commissioners Is made out, in the order of the presbyteries. RULE. The Assembly having proceeded to business without attending sufficiently to the order prescribed in the constitution, respecting the commissions of the members ; and having been led into that inattention by precedents in the former sessions of the General Assembly ; it was thought necessary to declare: That the business ought not, in future, to be entered upon by the Assembly, until the commissions delivered to the clerk shall have been publicly read, according to the express letter of the constitution. — 1791. Vol. I. page 26. Sec. 3. The list of the commissioners present being completed, a new moderator is chosen. Sec. 4. A moderator having been duly chosen, the former moderator before he resigns his seat, addresses him and the Assembly thus : Sir — It is my duty to inform you, and announce to this house, that you are duly elected to the office of moderator in this General Assembly. For your direction in office, and for the direction of this Assembly in all your deliberations, before I leave this seat, I am to read to you and this house the rules contained on the records of this Assembly; which I doubt not will be carefully observed by both, in con- ducting the business that may come before you. [Here the moderator is to read the rules, and afterwards add,] Now, having read these rules, according to order, for your instruction as mode- rator, and for the direction of all the members, in the management of business, praying that Almighty God may direct and bless all the deliberations of this Assem- bly for the glory of his name, and for the edification and comfort of the Presby- terian Church in the United States — I resign my place and office as moderator. — 1791. Vol. I. p. 30 Mr. HubbelL— This Digest is dated 1820. This was the rule of the Assembly before the alteration to which the witnesses have testified. We now offer from the same book, pp. 24-27. Section 9. General Rules for regulating the proceedings of the Assemblv, which are read by the moderator before he resigns his seat to his successor. I. The moderator shall take the chair at the hour to which the Assembly stands adjourned ; shall immediately call the members to order ; and on the appearance of a quorum shall open the session with prayer, and cause the minutes of the preced- ing sessions to be read ; and on every adjournment shall conclude with prayer. II. The moderator may speak to points of order, in preference to other mem- bers ; rising from his seat for tiiat purpose ; and shall decide questions of order, subject to an appeal to the house by any two members. III. The General Assembly, at every meeting, shall appoint a Committee of Bills and Overtures, to prepare and digest business for the Assembly. Any person think- ing himself ag-grieved by this committee, may complain to the Assembly. IV. Petitions, questions relating eithei* to doctrine or order, intended to be brought before the Assembly for decision, and in general all new propositions, tending to general laws, shall usually be laid before the Committee of Bills and Overtures, before they be offered to the Assembly. \. The Assembly shall also, at every meeting, appoint a committee, to be styled the Judicial Committee : whose duty it shall be to take into consideration all appeals and references brought to the Assembly ; to ascerUiin whether they are in order, 224 to digest and arrange all the documents relating to the same ; and to propose to the Assembly the best method of proceeding in each case. VI. A motion made, must be seconded, and afterwards repeated by the mode- rator or read aloud, before it be debated : and every motion shall be reduced to writing, if the moderator, or any member, require it. VII. Any member, who shall have made a motion, shall have liberty to withdraw it, before any debate had thereon : but not afterwards, without leave of the As- sembly. Viri. On questions of order, adjournment, postponement, commitment, or the previous question, no member shall speak more than once. On all the other ques- tions, each member may speak twice, but not oftener, without express leave of the house. IX. When a question is under debate, no motion shall be received unless to amend it, to commit it, to postpone it, for the previous question, or to adjourn. X. The previous question shall be in this form. Shall the main question he now put ? and until it is decided, shall preclude all amendment and farther debate of the main question. If the previous question be decided in the affirmative, the debate on the main question may proceed : but if it be decided in the negative, the effect shall be to arrest the discussion, and to produce an indefinite postponement of the main question. XI. An amendment may be moved on any motion, and shall be decided before the original motion. XII. If a question under debate contain several parts, any member may have it divided, and a question taken on each part. XIII. Every member, when speaking', shall address himself to the chair ; and shall treat his fellow members, especially the moderator, with decency and respect : If a member act disorderly, it shall be the duty of the moderator, and the privilege of the other members to call him to order. XIV. A question shall not be called up, or reconsidered, at the same sessions of the Assembly at which it has been decided, unless by consent of two-thirds of the members who were present at the decision. XV. Any member, wlio may think himself aggrieved by a decision of the Gene- ral Assembly, shall have his dissent or protest, with his reasons, entered on the records of the Assembly, or filed among their papers, if given in before the rising of the Assembly. XVI. If any member act indecently, or disorderly, contrary to these rules, the moderator shall reprove, or otherwise censure him, as the Assembly shall judge proper: and if any member shall think himself denied of any right, or unjustly blamed by the moderator, he shall not speak disrespectfully to him, but modestly require the decision of the house in the case.* Respondents called the Rev. William S. Plumer. Interrogated by Ml'. Hubbell, the witness said : I was a delegate to the General As- sembly of 1838. I attended the organization; was a commissioner from the Presbytery of East Hanover, in the State of Virginia. The Presbytery of East Hanover includes in it such portions of the Presbyterian Church as are within the tide-water district of Vir- ginia, excepting that part lying north of the Rappahannock river, and there it includes two counties on the eastern shore. My resi- dence is in Richmond. I was at the church when the Assembly met, in the early part of the morning of the 17th of May last. I suppose I came there about 9 o'clock. I know all the doors of the church ; three of those at which the congregation usually enter were open from 10 o'clock, and I think were not closed at all that * These rules remain as they were adopted by the Assembly in 1789, except that No. IX. was slightly altered in 1791, and No. IV. in 1819, when No. V. was inserted. [It is proper here to remark, however, that since about 1833, each Assembly adopts the rules for itself after the election of moderator.] 225 morning. I occupied, in the house, a position a little at the left of the moderator, as he sat in the chair which he usually occupies. I did not sit in one of ihe pews, but on a chair in the area in front of the pews, and near to the moderator. This plan of the house which has been exhibited here, is not exactly correct. That portion of the front pews which is represented on the plan as being circular, is now cut off in such manner that it is straight and at right angles with the aisle. Dr. Witherspoon was present, and sat not far from me, on the right of where I sat. Dr. Phillips was not far from me on the left ; perhaps about ten feet. Dr. Miller, Dr. Harris, and Dr. Breckinridge, were all in the neighbourhood where I sat. Mr. Krebs sat not far from me, at the side table nearest to me. Dr. Samuel P. Wilson, one of the witnesses, was also near me, in a position which he described the other day. James C. Wilson, of Virginia, sat near me. When the moderator descended from the pulpit and took his station in front of it, in the usual manner, to organize the Assembly, he took the chair, and stated that the first business would be the hearing of the report of the Committee on Commissions. The clerk, Mr. Krebs, was then standing. He did not, however, instantly commence reading the roll. He, however, had his papers with him. Before he had commenced reading it. Dr. Patton rose and stated that he had certain resolutions which he wished then to offer. The moderator. Dr. Elliott, told him that he v/as out of order, as the first business which must necessarily be taken up was the report of the committee on the roll. Dr. Patton replied that his resolutions related to that very subject. The mode- rator said, " You are out of order, sir, at this time," or " as the house is not yet organized;" something conveying that idea. Dr. Patton said he would appeal, and the moderator said the appeal was out of order. Dr. Patton then sat down, and the clerk, Mr. Krebs, proceeded to read the report on the roll, and having completed it, as I suppose, Dr. Mason, sitting on the middle aisle, six or seven pews from the front, rose and said that he moved, or that he wished to move, that certain commissions which he held in his hand should be entered on the roll. I should, however, state that previous to this, the moderator had announced that if there were any persons present who had commissions which they had not presented to the clerks and had them enrolled, they would now present them, in order that the roll might be completed. It was immediately subse- quent to this call, that Dr. Mason rose and stated that he wished the names of the commissioners whose commissions he held in his hand, and then presented, to be placed on the roll, or that their commissions should be examined and they enrolled. The mode- rator asked him w^hat presbyteries those commissions were from; and Dr. Mason replied that they were from the presbvteries within the bounds of the four Synods of Utica, Geneva, Genessee, and Western Reserve. The moderator replied that they could not be received, or, " You are out of order at this time." I think the lat- ter was the expression he used, but am not positive. At this time Dr. Mason seemed to be greatly embarrassed, but did not manifest it except by his agitation and a tremulousness of his voice. He 226 said, very politely, that, with great respect for the chair, I must appeal from its decision. The moderator told him he was out of order. Dr. Mason then sat down, and to some one in the pew made a remark which I am not certain that I heard, and therefore do not state it. I am not certain whether I gathered it from hear- ing him at the time, or from report since. Dr. Mason stated that these commissions had been presented to the clerks and refused by them, and that he was desirous to get them on the roll. As soon as Dr. Mason had taken his seat, Mr. Squier rose and stated that he had a commission from the Presbytery of Geneva, and demand- ed that his name be placed on the roll, or words to that effect. The moderator asked what presbytery he came from. Mr. Squier re- plied that he came from the Presbytery of Geneva. The modera- tor then asked if the Presbytery of Geneva belonged to the Synod of Geneva. {Belonged was his word.) Mr. Squier replied that the Presbytery of Geneva was within the bounds of that synod. The moderator then, waving his hand, said, " We do not know you." I was reclining at the time against the table, with my head about five feet from the floor. I heard a member nearly opposite to me, after a little consultation which attracted my notice, move the ap- pointment of a Committee of Elections. I am not certain that the motion was seconded ; my^ impression is that it was. I will state the business that was going on, according to my recollection. Be- fore the motion was announced by the chair, the interruption be- gan. I noticed a little stir amongst some of the members, and ob- served Dr. Beecher, and Dr. Taylor of Connecticut, sitting together, I think in the next pew behind Mr. Cleaveland, They were mov- ing their hands, and saying, " Go on, go on." I think that I heard them say the words. They were certainly waving their hands, but am not positive that I heard the words. I am certain that I could not be mistaken as to their gestures. About this time, Mr. Cleave- land, of Detroit, in Michigan, rose, and first pronounced a few words which I did not hear distinctly. He did not address the moderator, nor any other person. He spoke in his usually clear and loud voice. Mr. Cleaveland usually speaks very clearly and distinctly. His face was toward the moderator, and he began with " Whereas ;" but he turned his face toward the opposite side of the aisle, and his voice became lower, and toward the close I could not hear what he said. I heard him say that he did not wish to be discourteous. I could hear the words, "a constitutional organiza- tion must be obtained at this time and place," and " in accordance with the advice of gentlemen learned in the law." I heard his apology, that he hoped it would not be considered discourteous, and I thought that I heard, "least interruption and shortest time possible." Thus much was from his paper. I then heard what I supposed to be his voice, (for it had now lost its usual clearness and energy, and was tremulous and agitated,) saying, " I nominate Dr. B ;" Beman, I supposed it was at the time ; or, " I move that Dr. Beman." To what he nominated him, I did not know. I some- how had the idea distinctly lodged in my mind that the name of Dr. Beecher had been used, at some time after Dr. Beman was 227 nominated, but to what I did not hear. Whether I mistook that for Fisher or Beman, I cannot say. After the nomination of Dr. Be- man, I did not hear any thing, until what would seem to have been an affirmative vote, which, for loudness, I may confidently say that I never heard equalled on the hustings of a Virginia court. I am certain that it might have been heard the whole distance across Washington Square, at any quiet period of the twenty-four hours. Question by Mr. Meredith. — Do you mean to be understood as saying that the individual could have been heard the whole dis- tance from the Seventh Presbyterian Church in Ranstead court to the further side of Washington Square ? Witness. — I did not say, nor did I intend to say, that he could have been heard from Ranstead court to the further side of Wash- ington Square. But what I said was, that he could have been heard across Washington Square. I am not certain who this stentor was. I thought it was a small gentleman, mounted on the back of a pew, upon the little riband at the top. Why I thought so I cannot tell. The gentleman was not facing me, and I did not know him. The back part of his hair indicated that he was an old man, considerably older than myself. [The court adjourned while the witness was on the stand. At the opening of the court in the afternoon, Mr. Plumer resumed.] I closed this morning, my account of the circumstances attending the first vote on the motion of Mr. Cleaveland. So far, I have told all that I saw, but I do not suppose that I saw all that transpired, for there was a dense mass of people standing up, many of them on the seats of the pews. From this time I heard no more nomi- nations, and even as to that of Dr. Beman, I may be mistaken. There were three or four very loud responses of " aye,'" but I could not tell to what they were responses. Not long after the last " aye," there was a movement towards the north end of the church, down the aisle from the moderator. The persons who had been acting in this scene, removed to a considerable distance, possibly twenty- feet. I afterwards heard nothing distinctly, until a gentleman, whom I took to be President Beecher, but if it was he, he had changed his apparel since I had travelled with him, a few days before, came to the middle door, and proclaimed very loudly, that the General Assembly had adjourned to meet in Mr. Barnes' church forthwith. There were two other announcements of the same thing, by, I think, some person of a difl^erent voice. The next one was at the east door, at the north end of the house. The last an- nunciation was at the door nearest the pulpit, on the moderator's right, and the east side of the house. I saw, about this time, some clapping of the hands, and heard some hissing, in i-he gallery. I do not know whether any persons in the gallery voted or not. No person near me voted. I could not have voted, if I had wished to. I could not hear the question, so as to enable me to vote intelli- gently. I did not hear any reversal of the questions put by Mr. Cleaveland. I firmly believe that there was not any reversal o{ the questions ; if there was, I certainly did not hear it. The next " az/e" came so soon, that it confirmed my impression, for no time 228 was allowed to put both the negative and another motion. Of course, any answer in regard to the time occupied by these pro- ceedings, must be exceedingly vague. My impression that day, when conversing on the subject, was, that it did not exceed five minutes. I took no note of time by my watch, nor did 1 think about time; my attention was occupied with what was going on. I now know Mr. Joshua Moore. He sat in the General Assembly in the Seventh Presbyterian Church. After the moderator had called for commissions, 1 saw Mr. Moore come to the clerk's seat, but what he said or did I don't know. I first learned that Dr. Fisher was appointed moderator, some time after the proclamation had been made at the doors, that the General Assembly had adjourned, whe- ther that day or the next, I cannot be certain. I was elected mo- derator of the Assembly which sat in the church in Ranstead Court that year. Cross-examination. — Interrogated by Mr. Randall, the witness said: I became acquainted with Mr. Cleaveland some years ago in Boston, Massachusetts. Mr. Cleaveland is ordinarily very prompt in his manner of doing business.' I think that when unembarrassed, he would put a question as quickly as any other man, with an equally stout voice. I do not think my estimate of the length of time that these proceedings occupied, is testimony. If he said "All those who are in favour will say Aye," and "All those who are opposed will say No," he could say it as quick as I have done. The book requires, that the question should be stated when it is put. I ought perhaps to state, as descriptive of the witness, that I am editor of " The Watchman of the South." That paper was esta- blished in August, 1837; and has taken an active part in the discus- sion of the Assembly's proceedings of that year. It was for the purpose of sustaining those proceedings, among others, that the journal was established. Rev. David Elliott, D. D., called by the respondents. Interrogated by Mr. Hubbell, the witness said : I presided as mo- derator at the opening of the General Assembly of 1838, having been the moderator of the previous General Assembly of 1837. Immediately after the religious exercises were concluded, I an- nounced from the pulpit that I would proceed, as soon as the bene- diction should be pronounced, to constitute the General Assembly with prayer. And that for this purpose I would take the chair under the pulpit which is usually occupied by the moderator when presiding in the General Assembly. I did so, and, accordingly, having offered prayer, I then called on the clerks to report the roll of members, if they had one formed. Before the call was complied with Dr. Patton rose, and stated in substance, or to this effect, that he wished to present certain papers which he held in his hand, or to offer certain resolutions to be acted on by the house. I replied that he was out of order, as the first business was the report of the Committee of Commissions on the roll. He said these resolutions related to the roll, and that they would occupy but little time, or to that effect. At this time the clerk, Mr. Krebs, had risen, or he was then standing on my left. I directed him to proceed with the reading of the roll, and about that time Dr. Patton 229 took his seat. Mr. Krebs read the roll, and, having some papers in his hand, presented some commissions, as he said, to the mode- rator, which were laid on the desk where I sat. I then announced that those persons whose names were read would be considered members of the house, and continuously, that if there were any other commissioners present who were in connexion with the Ge- neral Assembly of the Presbyterian church, who were not enrolled and who had not had an opportunity of presenting their commissions, they could now have an opportunity to present them and be enrolled. A gentleman whom I did not then know, but whom I afterwards understood was Dr. Mason, of New York, rose, I think it was at this time. He held a roll of papers in his hand, which he said were certain commissions which had been presented to the Committee on Commissions and by them refused, and that he now presented them and moved that their names be added for the purpose of completing the roll. I asked him where those commissioners were from, or if they were from presbyteries which were in connexion ■with the General Assembly of the Presbyterian church. I am not sure which expression I used, but one of them. He replied that they were from presbyteries within the bounds of the (Synods of Utica, Geneva, Genessee and Western Reserve. I then stated to him that he was out of order at this time, or now, using one or the other of these forms of expression. He said, that with great respect for the chair, he must appeal from the decision. I remarked that the appeal was also out of order at that time. Mr. Squier then rose. (I did not recognize him at the time, though I had formerly been acquainted with him.) He stated that he held in his hand a commission from the Presbytery of Geneva, which had been ten- dered to the clerks or Committee of Commissions, and refused by them, and that he now demanded his seat in the Assembly. I asked him if that presbytery was within the bounds of the Synod of Ge- neva. He replied that it was. I replied, " We do not know you, sii\" He made some reply which I do not recollect, and sat down with- out pressing the matter any further. I then repeated my call for the same kind of commissions which had not been presented to the Committee on Commissions. Before the last words of this call were out of my mouth, Mr. Cleaveland rose, and commenced either read- ing or speaking, I can't say which; but he had a paper before him, in both hands, towards which he looked. Whether he made some prefatory remarks, or began with reading, I do not know. He was frequently called to order. Several persons, around me, called "order," in the tone usual in the Assembly. Mr. Cleaveland, how- ever, continued to read. I would say, at this time, that during the whole of his reading, and until after the vote on the nomination of Dr. Beman, I called "order" at short intervals. I did this, believ- ing it to be my otficial duty as moderator. He did not address the chair, as I understood. Either simultaneously with the rising of Mr. Cleaveland, or, as I rather think, a little after, and after a cry of order, some person rose, and moved that we should proceed with our regular business, by appointing a Committee of Elections, to whom the informal commissions might be referred. The motion I 20 230 entertained as an officer of the Assennbly, and announced it, but it was not acted on. This was doing while Mr. ('leaveland was reading or speaking, and diverted my attention from him, and I did not, for that reason, hear all that he said. What I heard was to this effect. After some remark, about not being able to get on with the business, and re- flections on the chair, as I thought, he said something of their being advised by counsel learned in the law, and securing a constitutional organization; but these things were not in juxtaposition. Then towards the close, I heard the phrases, "not discourteous," "fewest words and shortest time possible," or something to that purport. He then moved that Dr. Beman should take the chair, or be mode- rator, I don't know which. After this he put the question, " Those in favour of the motion will please to say aye," or words to the same effect. There was a very loud response ; some of the voices I regarded as unusually loud, and there were a few dragging votes. I hardly know how to express what I mean. There was a general burst of voices, and then a few in the rear, "aye, aye." I have an indistinct recollection of a few noes, simultaneous with the ayes, either from the gallery, or some other quarter of the house. 1 can't say whence they came, but they were simultaneous with the ayes. Upon this vote of aye, I saw Dr. Beman move out of the pew of which the location has already been described, six or eight pews from where I sat, into the centre aisle. As he moved out a number of persons from both sides of the same aisle passed into it, simultaneously with him. They fell into his rear, and turned their backs upon me ; and the mass closing up, in a very short time my view was obstructed. What then passed I do not know. They seemed to recede the distance of a few pews. At this time, there was a simultaneous rising, and great excitement in the north part of the house. From about the position that Dr. Beman left, the great mass were on their feet. There were a number standing on the seats of the pews, and some, in my judgment at the time, on the pew backs. I remember, that there was a small man on the back of a pew, supporting himself on the shoulders of those in front of him, and my impression was, that he said " aye" louder than any one else. I had continued to call order during this period. Some gentleman said, "Is it not possible to have order?" or "Can we not have order?' I said I had done all I could, and it appeared that the confusion could not last long. One member, if not more than one, requested that we should wait a little until order could be re- stored. I then made an announcement to the General Assembly that the business would be suspended until the interruption and tumult subsided. I made this announcement as audibly as I could. Up to this time 1 had been standing. When I made this announce- ment I sat down, as it was evident the members could not hear at present. The suggestion came from the neighbourhood of the west door. I considered it altogether as an ex parte organization. I was about to put the question on the appointment of the Committee of Elections, when the request was made that th'e business should be suspended until the tumult had subsided. I then made the an- J 231 nouncement that the business was suspended for the present, and I sat down, as I stated before. After this I heard several ayes, successively, but did not hear any motion, except on the nomina- tion of Dr. Beman. While I was thus seated, the members around the chair, for a considerable distance in front, were quiet in their seats. After some little time, the actors in the scene of disorder began to move towards the north door, and there being a large mass of people in the centre aisle, several passed over the pews to the north-east door. As they passed out somebody proclaimed, in a loud voice, first at the north door, and afterwards at the other doors, successively, that the General Assembly adjourned to meet forthwith in the First Presbyterian Church. I am unable to state how long the whole of these proceedings occupied, but according to the best of my judgment and recollection, I should say that it was from four to six minutes. I did not look at my watch : 1 there- fore cannot say positively, but that is my belief. I ought to have stated, that, at the time they passed out, there was a great increase of noise. There was clapping, and some hissing, though not much, from the galleries. Most of the sounds seemed to be of approbation. After they had left the house, we proceeded to appoint a Committee of Elections, and to the other business of the house. I did not hear Mr. Cleaveland's motion reversed. I recollect when, about the time Mr. Squier sat down, the clerks having closed their report, and the announcement in regard to other commissions having been made, there was a commissioner, or a person claiming to be such, who stated that he came from some presbytery, and had a commission, for which he seemed to be searching in his pocket, but did not find it, and said that he must have left it at his lodgings. I said, when he had it, the Committee of Commissions would attend to that mat- ter. He declared, I think, that he had the commission in the city, but that he had left it at his lodgings. I cannot say certainly, whether this was Mr. Moore. I have some acquaintance with that gentleman, but my attention at the time was diverted, and I cannot say who it was. The commission was not afterwards presented to me, but I know that Mr. Moore subsequently took his seat. I ought, perhaps, to make a statement which may, for aught I know, have some bearing on the case, in regard to a subsequent transac- tion. After the house was fully organized, I was appointed one of a committee to draft a minute in regard to the organization. The history of this transaction I will give, if it is desired. The counsel for the respondents said they did not desire it. The witness urged considerations of duty, and the obligations of his oath, which he "thought, perhaps, made it imperative" on him " to relate the transactions referred to." The counsel remonstrated, and the witness at length yielded and retired from the stand. Respondents' counsel then proposed to read from the docket of the Supreme Court, of July term, 1838, [to show that the party of the relators had other forms of redress for their supposed grievances, which, he urged, they ought to have pursued rather than this,] the entries of suits brought by Miles P. Squier, Henry Brown, and 232 Phiiip C. Hay, against the moderator, clerks, and others of the Old iSchool Assennbly. The opposite Counsel objected to this testimony, and the Court decided that it could not affect the case. Mr. IngersoU, of counsel for the respondents, then said, that Dr. Elliott (the last witness on the stand) still felt himself bound, by the oath he had taken, to state some particulars to which he alluded at the close of his testimony, but which he was at the time prevent- ed, by the counsel, from stating. Under these circumstances, he did not think that they had a right to close the mouth of Dr. Elliott, and on his behalf, therefore, he requested that the witness might have opportunity to proceed with his statement. Dr. E/lioit then resumed: It is my impression that there were some other items in that transaction, besides those mentioned on the record. A committee was appointed to form the minute. Af- terwards, Dr. Nott and myself were added to that committee, and we retired to make up our report. Dr. Nott took a pen, and told me to look over him while he was writing, and whenever I thought proper, to make any suggestion. Accordingly I did so, and sug- gested a number of particulars; but Dr. Nott replied, that it was not important to mention every particular, but that a general sketch, if true, was all that was necessary. I acquiesced, though I thought that several of my suggestions should have been attended to. I proposed to say, that the noise had been disreputable, but Dr. Nott observed, that the less said about that, the better. There is nothing in the record which is not true. I am willing to abide by that as far as it goes, but it is defective, and in giving evidence, I have thought that additional particulars ought to be related. The counsel for the relators here withdrew their objection to the reading of the entries from the docket, offered by the respondents* counsel, Mr. Randall remarking, that as the respondents thought it so important as to make it a ground of exception to the decision of the Court, the relators did not regard the subject of any conse- quence, and as it would occupy but a few moments to read the record, it would, perhaps, be best to hear them read. The Court consented, and the record was read, as follows : Supreme Court, July Tert?i, 1838. J. Randall, Meredith, Bradford, d. b. e. Kane, d. b. e. 25th July, 1838. F. W. Uubbetl, 56 Miles P. Squire, vs. David Elliott, John M'Dowell, John M. Krebs, William S. Plumer and Robert J. Breckinridge. fSummons in case exit May 31, 1838. ^ "Summoned." L /. Randall, Meredith, Bradford, d. b. e. Kane, d. b. e. 27th July, 1838. F. W. Hubbell. 57 Henry Brown vs. Same Defendants. fSummons in case I exit May 31, 1838. " Summoned. 233 J. Randall. Philip C. Hay, ^Summons in case Meredith. 58 vs. exit May 31, 1838. Bradford, d. b. e. Same Defendants. J Kane, d. b. e. > " Summoned." 27th Julv, 1838. F. W. HubhelL In connexion with the remarks of counsel, respecting the intro- duction of these entries from the docket, the Court intimated that it was not the practice to note decisions, respecting the introduction of testimony or collateral questions which arose on the trial, as excepted to, unless exception were actually taken at the time; and that otherwise the decision was regarded as acquiesced in, or sub- mitted to. The counsel for the respondents expressing some surprise at this, and remarking that, owing to the supposition that it had been the practice in that Court to note every decision as excepted to, as was the practice in some other courts, they had omitted to request the Court to note any exceptions of the many which they supposed they should take in a certain contingency. Judge Rogers remarked, that they should lose no advantage from having acted under this misapprehension ; but might consider every point on which he had decided adverse to their wishes, as now raised and decided. Their exceptions should be noted accordingly, and after this explanation, there could not be the slightest difficulty. Respondents now offered to introduce a series of witnesses, to show, that they, being clergymen within the bounds of the four dis- owned synods, have, according to the provisions of the act of 1837, applied to neighbouring presbyteries, and have been admitted into them. Mr. Hubbell, saying : the witnesses are here, and are pre- pared to testify that they have availed themselves, without difficulty, of the provisions of that act ; but, perhaps this testimony falls within your Honour's previous exclusion. Judge Rogers, said: I do not see the pertinency of this evidence. It cannot alter the character of the original acts. Mr. Hubbell. Will your Honour then please to note an exception. The witnesses offered, are Rev. Varnum Noyes, John V. Hughes, Edwin Bronson and William H. Snyder. Mr. Boardman re-cal!ed by the respondents, said : After the mo- derator's call for commissions, the Rev. Joshua Moore went up to the clerks' tabic and presented a commission. I know only, that this was subsequent to the call made by Dr. Elliott. It was, I think, while either Mr. Squier or Mr. Cleaveland was on the floor, though I am not positive. On refieciion, I think it was after Dr. Mason had taken his seat. I cannot speak positively as to the time. Rev. Robert J. Breckinridge called by the respondents. Interro- gated by Mr. Hubbell, said : I was a commissioner to the General Assembly of 1838, from the Presbytery of Baltimore. I attended the organization of the General Assembly. I did not hear any questions put by Mr. Cleaveland, Dr. Beman and Dr. Fisher. I did not know what the motions were, and would not have voted on them if I had known what they were. I was present (in the Seventh 20* 234 Presbyterian Church) from the time when Dr. Palton rose till the adjournment. I have heard various statements in regard to the time that elapsed from Mr. Cleaveland's rising, till the adjournment. I can only say, that it was a very short, and a very confused space of time. I should say, that from the time, when Mr. Cleaveland rose, until the confusion subsided, after the New School party had left the house, not more than three or four minutes passed. I have been in poor health, which has prevented my attendance here, and do not know who have been sw'orn. I, therefore, cannot answer, whether all the members of the Assembly of 1838, who are present, have been examined. Dr. Alexander W. Mitchell was a member, and I think I heard him say, that he had not been sv^orn. I heard a part of Mr. Cleaveland's paper. My position was as one or two gentlemen have described it. I was at some distance from Mr. Cleaveland, I heard nothing distinctly, after he moved that Dr. Beman should take the chair. I recollect that Professor Maclean was a commissioner, and he has not been sworn. I did not hear Mr. Cleaveland put any other question than that on the nomination of Dr. Beman, and if I had been disposed, I could not have voted intelligently upon any motion but that. Whether this motion was reversed, or not, I don't know. I do not know whether any of the other questions were reversed : I heard no vote except the aye. To the best of my recollection, I heard no negative vote on any ques- tion. It is probable that my perceptions were influenced by the state of my own mind. Cross-examination. Interrogated by Mr. Randall, the witness said: I probably did not give as much attention to the proceedings, as I should if I had viewed them in a diiferent light. Dr. Alexander TV. Mitchell, called by the respondents. I was a commissioner to the General Assembly in 1838. My position was nearly opposite to the east door, on the west side of the east aisle. Mr. Cleaveland was in a pew opening on the east side of the mid- dle aisle, on a line with that in the rear of the one in which I sat ; my seat was therefore one pew in advance of the line of his. I was about half way up from the door of my pew, and he about two-thirds of the way up his. He rose, and made some observa- tions, but whether speaking or reading from a paper I do not know. At this moment my attention was diverted to a gentleman in the pew before me. When I turned again Mr. Cleaveland's back was towards me. That which diverted my attention was, a gentleman, in the pew immediately in front of me, standing on the seat. I asked him if he was a member, and he said he was. [The witness here asked if he should proceed, and objection was made to his re- lating individual conversation.] When Mr. Cleaveland finished, he was facing the north-west. He moved that Dr. Beman should take the chair or be moderator. I don't know which. There was a loud response of "aye." The gentleman on the seat in front of me answered in a very loud voice. I don't believe that the nega- tive of the question was put. I did not hear it called for. I heard no negative votes, but there was a great deal of noise and confusion in that part of the house. I did not vote on Mr. Cleaveland's mo- 235 tion. I did not consider that I iiad either part or lot in the matter. I regarded it as disorderly. I did not consider anything to be before the house at that time. The moderator cried " Order!" and a great many in the pew with me called to order. I did not my- self call. After the vote of aye, Mr. Cleaveland made another motion for the appointment of temporary clerks. I understood him to nominate Mr. Gilbert, whom I had seen before, and Dr. Mason, of whom, until that day, I had no knowledge. I did not hear the question reversed. I do not believe that it was reversed. I think 1 should have heard if he had reversed the question, as I was con- tiguous to the place. Afterwards there was an '*aye," in about the same tone as before. The man on the seat in front of me yelled to it. His "aye" was not given in the manner usual in de- liberative assemblies. I should say that it was more like the yell of an Indian, than of a white man. The next thing I observed was, that Dr. Beman moved out into the aisle. There were a number of others moved into the aisle at the same time he did. Others rose on their feet and remained, some standing on the floor and some on the seats. I then sat down. I heard the ayes called two or three times. I remember their going out of the house. Immedi- ately after they left the house some person announced at the doors of the church, in a very loud voice, that the General Assembly of the Presbyterian Church had adjourned to meet forthwith in the lecture room of the First Presbyterian Church. It was not the lit- tle man who yelled like an Indian. This proclamation was repeated two or three times to the best of my recollection. The first that I knew of Dr. Fisher's appointment was either that afternoon or the next morning. The whole of these actions occupied but a short space of time. I suppose five minutes or thereabout. Mr. Preston. — Did you hear any response from the gallery. Witness. — I can't say that I did. There was a confused noise in all that part of the church. Respondents called Mr. Alexander Syinington. Interrogated by Mr. Hubbell, the witness said: I was a delegate to the General As- sembly of 1838. I was a lay delegate. I attended at the organi- zation. I sat on the west side of the house, nearly opposite to where Mr. Cleaveland was. I heard him, or rather I saw him, when he rose. I heard him commence reading or speaking. I heard a good many words at the time, but not having charged my memory with them, I am unable to give an explicit and particular account of all that was said. I heard him say " Counsel learned in the law." I also heard the word "discourteous." I heard him put the ques- tion as to the appointment of Dr. Beman as moderator. I heard the vote in the affirmative on that question. I can't say that the question was not reversed; all that I can say is, that I did not hear it reversed. I am unable to say now whether I heard any negative votes. I did not vote. I did not vote on any of the questions put by Mr. Cleaveland, or subsequently put by Dr. Beman or Dr. Fisher. I did not hear the motion for Dr. Fisher's appointment at all. I did not know of it till the afternoon session ; but think I learned it during that day, some time in the day; I can't say when. 236 Respondents next called Mr. William Hamilton. Interrogated by Mr. Hubbell, the witness said: I attended at the time of the organi- zation of the General Assembly of 1838, on the 17th day of May last, at the Seventh Presbyterian Church, in Ranstead Court. I saw a gentleman, whom I afterwards understood was Mr. Cleave- land. I saw him when he first rose ; he appeared to be reading a paper which he held in his hand ; at any rate, he appeared to be looking at it. I did not hear a motion made. I was on the east side of the church, a little to the north of the east door. I could not hear what Mr. Cleaveland read or said. There was only one gentleman whom I knew in my vicinity, though there were numerous persons there around me where I sat. I heard a cry of " aye" after he had read a part of the paper. Whilst he was reading, he turned round from the moderator. I could not see nor hear him distinctly. The response of " aye" was very loud, and one voice much louder than any of the rest. The person whom I knew, and several others in the pew in which I sat, and in that immediately before me, voted " aye." The person alluded to, was the only one whom 1 knew in the vicinity where I was. It was the Rev. Mr. Duffield, formerly of Philadelphia. When he said " aye," his face was turned toward Mr. Cleaveland, so that I could see the side of his face. He was sitting before me at the time. Mr. Duffield then struck his cane down on the seat quite violently, and said to another gentleman sitting by him, that " It was done according to law, as slick as it could be." He repeated this three times to those around him, and seemed highly pleased. Afterwards they moved, and went toward the north door of the house, but I continued to sit. I heard them cry " aye" another time, but do not recollect at present what it was about. After a great part were out of the house, I heard one gentleman cry in a very loud voice, that the General Assembly hajJ adjourned to meet forthwith in Mr. Barnes' church. I am not certain whether he said Mr. Barnes' church, or the First Presbyterian Church. His proclamation was thrice re- peated at the other doors. I do not know who made the proclama- tion the first and second times, but it was repeated the third time at the east door, directly before me, by Mr. Eliakim Phelps. Cross-examined by Mr. Randall. — Were you a commissioner? Witness. — I was not a commissioner: I was a spectator. Mr. Randall. — Did you know the Rev. George Duffield? Witness. — I had seen him sitting in the General Assembly of 1837, amongst the members. Mr. Randall. — Did he take part in the proceedings in 1837. Witness. — I don't know. Mj: Randall — How often have you ever seen Mr. Duffield in the course of your life? Witness. — I have not seen him more than/ow?- or five times. Mr. Randall. — Did you ever speak to him? Witness. — I never did. Mr. Randall. — Are you certain that the person you described was Mr. Duffield? Witness. — I am confident that it was. 237 Mr. Randall. — Are you certain that Mr. Duffield struck on the seat with his cane? Witness. — I said that he had a cane, and struck on the seat seve- ral times with it. J\]r. Randall. — Did he ever carry a cane before? fViiness. — I don't know. Mr. Randall. — Did you ever see him have a cane at any previous time? Witness. — I don't recollect that I did. Mr. Randall. — Do you know that Mr. Duffield is in this city at present. Witness. — I do not. Mr. Randall. — Do you not know that he is at present at Detroit, in the state of Michigan ? Witness. — I am ignorant as to that. Mr. Randall. — Had Mr. Duffield any pastoral charge whilst he resided in this city ? Witness. — I am not certain, but I meant to say that he had no pastoral charge here at this time. Such is my recollection, though I may be mistaken, as to that point. Respondents called Mr. Joseph B. Mitchell. Interrogated by Mr. Hubbell, the witness said: I was present at the organization of the General Assembly of 1838. I am cashier of the Mechanics' Bank, in this city. I was first located opposite to the south-east door of the house, but afterward stood in the aisle, except for a few minutes, when I went round to the clerks' table. Mr. Cleaveland's position was three or four pews to the north of me, perhaps ten or twelve feet distant. I saw Mr. Cleaveland rise. He was apparently read- ing a paper. I did not hear the language it contained, though I understood his object. He was at first with his side towards me, and his face to the moderator, but I think that he afterwards turned. Persons rising between us, in the confusion I lost sight of him, and do not recollect seeing him at the conclusion of his exordium. I heard something, which I understood to be a motion, but I did not hear it distinctly. I think Dr. Beman's name was mentioned. Whether the motion was made by Mr. Cleaveland or not, I can't say. I took it for granted that it was for moderator or chairman, that his name was mentioned. I immediately heard a response of "aye," in a very loud tone. The noise in the house increased. I did not hear the question reversed. I am certain that there were no negative votes in the part of the house where I was. I did not hear any negative votes. There might have been some in the north-west part of the house, but there were none in the region that I occupied. I did not hear any. I heard a number of persons say " aye." I did not hear Dr. Fisher's name mentioned. I think I heard that he had been elected moderator on the succeeding day. Cross-examination. — Interrogated by Mr. Randall, the witness said : The last of my brother's official acts was with the New School When I last saw him, he sympathized with that school, and was said to be the author of a protest, in the Synod of Virginia, against 238 the proceedings of the other party- I don't Hke party names, but I am ranked on the Old School side. Rev. S. Beach Jones, called by the respondents, interrogated by Mr. Hubhell, said: I attended the General Assembly of 1838 as a delegate from the Presbytery of Mississippi. I was present at the organization of said Assembly, in Ranstead court. I was in the fourth or fifth pew from the moderator, on the west side of the middle aisle. I was about twelve or fifteen feet from where Mr. Cleaveland was seated. His position was diagonally across the house from me, and in the sixth or seventh pew from where I sat. I saw him reading a paper. Although I was so near to him, I did not hear distinctly what he read. I heard a motion from him : it was that Dr. Beman be moderator or chairman. There was rather a tu- multuous cry of " ayes" in answer. I heard no reversal of the question, though I was within a short distance of him. I don't think that I heard any " noes." There were certainly none in my region, and I considered it in the body of the house. He then made a mo- tion for the appointment of clerks. I do not know that I heard the names of the gentlemen. I presume I did hear their names, but I should not like to say positively. They were strangers to me. The party or body of men who took part in these proceedings, particu- larly the leaders, seemed to be congregated near the middle aisle, around where Mr. Cleaveland was. There seemed to be a nucleus in the aisle, around which they congregated; but of this I cannot speak positively. I heard nothing distinctly afterwards, except *' ayes," and an announcement that the General Assembly had ad- journed to meet immediately in the First Presbyterian Church, on Washington street. What it was that passed, I did not certainly know, but it was a scene of much excitement and tumult. I cannot say how long this scene continued, but it was of very short dura- tion. I did not hear Dr. Fisher nominated as moderatoi'. I knew nothing of it at the time. J first heard that Dr. Fisher was elected moderator, either that afternoon, as I was returning to the General Assembly, or the next day: I think it was that afternoon. J did not vote. I had no opportunity to vote as I should wish. Cross-examination. — Interrogated by Mr. Randall, the witness said: I still belong to the Presbytery of Mississippi, unless I have been recently dismissed, as I requested to be. I now reside at Bridgeton, in New Jersey, ministering to a congregation belonging to this presbytery, to which I requested to be dismissed. I pre- sume that I am now dismissed from the Presbytery of Mississippi, to that of Philadelphia, but have no certain knowledge that such is the fact. Mr. Samuel Agnew, called by the respondents, interrogated by Ml'. Hubbell, said: I was not in commission to the General Assem- bly of 1838, but attended its organization. I was situated near the south-west door. I saw Mr. Cleaveland rise with a paper in his hand. He seemed to read it, amidst a great deal of confusion. I did not hear it; the confusion was so great, that it was impossible for me to hear it. I heard him make a motion that Dr. Beman take the chair, or preside. I heard him put the question in the affirma- 239 tive on this motion. I did not hear him reverse it. My impression is, that it was not reversed. The succeeding motion was so quickly- made, and the question put thereon, that there could not have been time for a reversal. There was, at that time, much confusion and considerable noise. After this a number of motions were put, or at least "ayes" taken. Many persons were standing in the church, some on the floor, and some on the seats in the pews. What fol- lowed I did not hear distinctly, owing to the tumult and confusion. I did not hear the motion made to put Dr. Fisher into the chair. I heard the proclamation of an adjournment made at the doors of the house. I heard some votes from the gallery. I think the whole proceedings occupied not more than five or six minutes, though it might have been ten minutes or more. 1 can't tell how lono- the proceedings occupied with any precision. Cross-examination. — To what church do you belong? Witness. — I am a member of Dr. M'Dowell's church, generally called the Central Church, in this city. Respondents called Mr. Edward C. JYo7-ris. Interrogated by Mr. Hubhell, the witness said : I attended the organization of the Gene- ral Assembly of 1838, in Ranstead court. 1 took my station in the south-west door of the church, near to the pulpit; I mean the door next to the grave yard. I saw Mr. Cleaveland rise. He held a paper in his hand, and appeared as if he was reading from the paper. He read in a very loud voice. His voice was very loud, clear and distinct. I could distinctly hear every thing which he read, but do not now remember what it was. When he finished reading the paper, as I presumed, he nominated Dr. Beman to act as chairman. I heard a very loud afl[irmative ; I should think from the galleries as well as the lower part of the house. I do not recollect hearing the question reversed, or any negative votes. Dr. Beman rose, and took his station in the middle aisle. Mr. Cleaveland's face was to- ward the moderator. The next thing that I heard, was two persons nominated as clerks, but by whom they were nominated, I did not know. The next thing that I heard distinctly, was the motion that the General Assembly do now adjourn, to meet again in the First Presbyterian Church, on Washington Square. Then they rose up in a body in the rear of the building, and, together with many from the galleries, went out of the house. There was then a proclama- tion made and repeated at the several doors of the church, in a loud voice, that the General Assembly of the Presbyterian Church (in the United States of America, I think, was added) had adjourned to the First Presbyterian Church. Mr. Hubhell. — How long time did these proceedings occupy? Witness. — I am not positive, but I think that they did not occupy more than twenty or twenty-five minutes. Cross-examination. — I was standing part of the time between the stove and the door, and partly in the door among those most re- mote from Mr. Cleaveland of any persons in the house. There were some outside. I was further from Mr. Cleaveland than most of the members of the General Assembly. 240 Mr. Meredith. — Did you hear the motions at the distance you ■were from him 1 Witness. — The motions which I heard were in a very loud, clear, and distinct voice. They could easily be heard where I was. Mr. Meredith. — Were you a member of the General Assembly? Witness. — I was not a member; I was there as a spectator. Mr. Meredith. — Are you a member of the Presbyterian Church ? Witness. — I am not a Presbyterian; J am an Episcopalian. Mr. Meredith. — Did you feel a particular interest in the pro- ceedings ? Witness. — I had no particular interest in the proceedings. I went there merely out of curiosity to see what they were about, nnd hear what was going on. Professor John M'Lean called by respondents, interrogated by Mr. Hubbell, said: I was a commissioner to the General Assembly of 1838. Mr. Hubbell. — Did you hear Mr. Cleaveland's motion ? Witness. — I did not hear it distinctly. I heard a motion some- what to this effect: "I move that Dr. B ," I thought at the time that it was Dr. Beecher, but heard afterwards that it was Dr. Be- man. This was all that I heard of the motion. I heard the " aye" very distinctly. I did not hear the question reversed. I did not hear any negative votes. 1 did not vote myself I had no oppor- tunity if I had been disposed to vote. I am perfectly willing to say what I would have done. I would not have voted if I had had the op- portunity. I have no distinct recollection of clerks being nomi- nated. Whether I heard it or not, I can't say positively. Sub- sequently, I heard nothing. Till the afternoon, or next morning, I supposed that it was Dr. Beecher who was called to the chair. Cross-examination, by Mr. Randall. — Did you not, in a discussion which afterwards took place in your Assembly, in relation to a re- port of a committee, oppose the adoption of that report because it contained the words " tumult and violence'''' as descriptive of the proceedings of the New^ School party 'I Witness. — I remember opposing the adoption of the words " tumult and violence" which were in the report alluded to. How- ever, I can't say as to the word " tumult." I recollect distinctly opposing the word " violence," apprehending it to be of ambiguous import, that some might understand by it, that there had been per- sonal violence, something like an assault and battery, and farther, because I thought we ought to state the simple facts, without cha- racterizing them. Mr. Randall. — Did you not say, in the course of that debate, that there had been as little disturbance amongst the New School mem- bers as there could have been in such a case, or under such cir- cumstances ? Witness. — I used words of somewhat analogous import. I said it was true there had been violence, in the sense intended, but no violence, in the sense in which the word might be understood. 1 made a remark also to this effect: that there had been as little disturbance by the members of the New School party, as had been 241 possible, in that state of things. The word tumult was not re- tained, by the casting vote of the moderator : my impression is, that I was in a very small minorit}'. My object was to have a simple narrative of what had occurred, without any comment. I respected the motives of my brethren of the New ISchool. I thought that the tumult could not be charged on them, though they were the occa- sion of it. Re-examined by Mr. IngersoU, witness said : There were loud ex- clamations of " aye," and there was great excitement. My remark was, that the disturbance was not greater than was natural under such circumstances. I thought the proceedings disorderly, of course ; I have never thought otherwise. It was a violation of the rules of order. My object was, to defend the motives of my brethren. Towards the conclusion of the scene, there was clapping and some hissing. Bij Mr. Randall. — I did not know any of the individuals who clapped or hissed, but supposed the clapping was in approbation, and the hissing in disapprobation. Mr. Randall. — Is it not more probable that the opponents of the New School men would make a noise to interrupt them, than that they should interrupt themselves? Witness. — As an abstract proposition it may be so. By Mr. Huhbell. — I am not aware that there was disorder among the Old School. By Mr. Randall. — I think some of the commissioners were dis- orderly, but I saw no clapping or hissing from any member of the Assembly. There was certainly disorder. I supposed it was a disorder to form an ex-parte organization. The voices of the New School, in voting, were altogether above the pitch necessary to being heard. Mr. Meredith. — Was it not necessary to speak loud in order to be heard? Witness. — It was a perfect scene of confusion. I suppose it was necessary to speak loud, in proportion to the noise, in order to be heard. The voice naturally rises in loudness with excitement. By Mr. Preston. — I am confident that Mr. Duffield was not a member of the Assembly. Mr. Randall. — He was not: the record shows that. Mr. Charles F. Worrall, called by the respondents, interrogated by Mr. Hubhell, said : I was present as a spectator at the organiza- tion of the General Assembly of 1838. I went into the house about nine o'clock in the morning. I heard Mr. Cleaveland make his motion. I was in the east gallery, in the front pew of those that ascend from the pulpit. Mr. Cleaveland rose, having a paper in his hand, after having consulted with two or three persons near him. He commenced reading, or looked at the paper as if he were read- ing. After he began, he turned round with his face toward the west side of the church. I could have heard nearly all that he said, but my attention was distracted by the confusion in the house, so that I cannot tell exactly what he said. His preamble was very similar, I think, to that of Dr. Patton. During the reading, he 21 242 turned round, till the side of his face was towards me and his back almost to Dr. Elliott. He appeared very much agitated. Some of his words were those so often proved already, that counsel learned in the law had informed them, that it was necessary, that morning, to organize themselves, and that they would accordmgly do it in the fewest words and the shortest time practicable. He was then facing the north-west corner of the house. In the same breath, Mr. Cleaveland moved that Dr. Beman should be appointed to the chair, and put the motion. By this time all north of Mr. Cleaveland arose. Some were standing on the seats, and some on the tops of the pews. Immediately I heard a general yell of "aye!" and there was one *' aye "louder than the rest. It was Dr. Beecher, of Cincinnati, Ohio, who made the loud yell. The side of his face was towards me, and so far as I could tell, it was Dr. Beecher. There was a good deal of clapping and hissing about this time. There was also some votes in the gallery on both sides of the house. The motion was not put in the negative, and was not reversed. The motion for the appointment of clerks was put without a negative. Dr. Be- man then requested that ihey should retire to the back part of the house. He stepped out of the pew into the aisle, but at the same time other persons rushed out of the pews on both sides. He then called for motions. A motion was made by some one of them, I don't know who, that Dr. Fisher be moderator ; and Dr. Beman put the question, without reversing it that I heard. Dr. Mason and Mr. Gilbert were then nominated as clerks, and without loss of time the question was put, without reversing it so far as I heard. It was then moved that they adjourn to meet again at the First Presbyte- rian Church. The motion was put. I heard no negative on this motion, though there were a few "noes" simultaneously with the " ayes." It was then announced at the several doors of the church successively, that the General Assembly of the Presbyterian Church in the United States of America had adjourned, to meet again im- mediately, in the lecture-room of the First Presbyterian Church ; and the whole body, and a part of the audience, about one-third, went out as rapidly as possible, at the north door of the church. It was Dr. Edward Beecher who made this proclamation. The pro- clamation was made in a loud voice, and was, that the delegates should attend at the First Presbyterian Church, and there present their commissions. The proclamation was repeated two or three times. The appointment of a Committee of Commissions, moved some time before, was now under consideration, and Mr. Breckin- ridge on the floor. Cross-examination. — Interrogated by Mr. Randall, the witness said : I live at Princeton, in New Jersey. I am a native of Lan- caster county, in this state ; am now a student of theology in the seminary at Princeton. Dr. Beecher, at the time he made the loud cry of " aye," was standing on the seat, partly on the back, of the same pew in which Mr. Cleaveland was, or of one near it. I was almost right over his head ; have never lived in the same town with Dr. Beecher; had seen him and heard him make several addresses in the meetings at the First Church. I had never seen him be- 243 fore that visit to Philadelphia, and have not since. I feel confident that it was Dr. Beecher, but possibly might be mistaken. I am as confident of its being he as I could be, after having seen him only a few times. I know, by report, that Dr. Beecher is now in the West, that he is not here. I should think the person I took for him was about sixty years of age. Dr. Beecher's manner is rather mild. Mr. Ingersoll, for the respondents, called the attention of the Court to certain testimony (the reporter did not understand what it was) which had been rejected, and which he still desired to introduce. Mr. Randall said: Reduce your proposition to writing, and per- haps we shall not object to it. After a short colloquy between the counsel, the subject was waived. Mr. Randall. — As the counsel on the other side have taken so great pains to throw a doubt over the subject of a reversal of the questions put by Mr. Cleaveland and others, in the organization of the Assembly, we shall be under the necessity of offering some re- butting evidence. No point, we believe, is capable of being more firmly established by human testimony than that. But first we must have Mr. Hamilton to explain his testimony in regard to Mr. Duffield. Mr. Randall then called Mr. Hamilton, and being informed that he had left the Court, said he must then require him at the hands of the opposite counsel in the morning. Mr. Meredith. — It is of no consequence at all. M?'. Hubbell, on behalf of the defendants' counsel, here intimated that they did not know of any further testimony to be introduced by them, yet as it was now late, he was desirous not to close until next morning. He wished the case to be left open, that they might have the opportunity of offering such documentary testimony as they might have omitted, though he did not know of any. He said they did not intend to offer any other oral testimony. The Judge assented, and the Court adjourned. Friday morning, March 15. Rev. John M'Dowell, D. D., re-called by the respondents, said: On the evening of the 16th of May, and during the morning of the 17th, we received, in the Committee of Commissions, two hundred and twelve commissions. These names were enrolled by us, their commissions being unexceptionable. We also reported seven others, to be examined by the Committee on Elections. There were three of these without their commissions, viz: From the Presbytery of Montrose, the Rev. Adam Millar; from the Presbytery of Bedford, the Rev. Robert G. Thomson ; and from the Presbytery of Rich- mond, a Mr. Elliott. From the Presbytery of New Castle, General Ciinningham, a ruling elder, whose commission wanted the signa- ture of the moderator. From the Presbytery of Londonderry, the Rev. Ephraim P. Bradford, whose commission wanted the signature of the clerk. Two persons from the new Presbytery of Green Brier, in Virginia, Mr. David R. Preston, minister, and Mr. Thomas Beard, elder : making in all, two hundred and nineteen. If it be proper in 344 this place, I can tell how it was in regard to Mr. Moore. When the moderator called for commissions not yet presented to be brought forward, immediately, or soon after, Mr. Moore came and laid his commission on the clerks' table. It was examined by the commit- tee after the other body had withdrawn, and we reported his name. I am confident that he presented it that morning. His name is on the minute as one of those called and recorded present, in the after- noon. In the afternoon, one hundred and fifty-four answered to their names. These included six of the seven, whose commissions had gone to the Committee of Elections. That committee was ap- pointed directly after the body of the New School had retired, in the morning. Sixty-eight did not answer to their names. Two of these, Messrs. White and Magruder, of Charleston Union Presby- tery, afterwards acted with our Assembly. Three, Dr. Green, and Messrs. Snowden and King, had not yet come in, and were recorded absent. The number of sixty-eight was thus reduced to sixty-three. Of those marked absent, Mr. Scott rose, gave his reasons for not answering, and I believe withdrew and went home. That left but sixty-two. I do not know that Mr. Scott went home ; he did not afterward act in our Assembly. Of the one hundred and fifty-four who answered to their names, Messrs. Rankin and Crothers, from the far west, expressed a wish not to be considered as acting with that body, and withdrew. At the close of the session, when the roll was called, according to custom, we found fifty-seven absent without leave, all being of the number of sixty-eight recorded absent before. Four members joined our Assembly, arriving after the first day, one on the ninth, two on the eleventh, and one on the twelfth day of its sessions, making the whole number who acted with that Assembly, one hundred and sixiy-one. I was not a member of the Assembly. Dr. Witherspoon was present in the Assembly at its opening. He was the moderator immediately preceding Dr. Elliott^ Dr. Phillips immediately preceded Dr. Witherspoon. I suppose that Dr. Wm. A. M'Dowell was present, though not a member. He had been moderator in 1833. There were others present who had been moderators. Dr. Green had been. I had been mode- rator. Dr. Beman was moderator in 1831. I was appointed stated clerk in the year 1836, after Dr. Ely resigned. Before that, I held the office of permanent clerk, or scribe of the Assembly, from 182& to 1836. In 1837 I held both offices, and was alone on the Com- mittee of Commissions. Cross-examination. — Interrogated by Mr. Randall, the witness said: When the roll was called, at the close of the Assembly, fifty- seven were marked absent. It was either fifty-seven or sixty-seven. I am perhaps mistaken in the number. I may possibly have made a mistake in counting them. [Mr. Randall here handed the witness the Old School minutes of 1838, page 47, requesting him to count the list of absentees, and tell how many there were. After repeated counting, the number was stated by the witness to be sixty-five.] Mr. Hubhell. — Had Dr. Hoge been moderator since Dr. Beman 1 Dr. M'Dowell. — I am not able immediately to say. 245 Mr. McLean having asked permission to explain his testimony, said : I have been informed, that my testimony might be misunder- stood. I was asked, whether I had not said, that there was as little disorder as possible under the circumstances. I answered in the affirmative, but did not mean that it should be inferred, that there was little or no disorder. I meant only that, considering the busi- ness in which they were engaged, they made as little disturbance as could be expected. Part of the disorder which I referred to, w^as made by Mr. Cleaveland. He read a disorderly paper, and did not obey the moderator when called to order. Then a number of persons rose, and went toward the north door. They stood in the aisles, on the seats, and on the backs of the pews. I was una- ble to hear the questions put, and did not vote. The respondents here closed, and the plaintiffs introduced rebut- ting testimony, as proposed last evening. Rev. Wm. Hill, D. D., recalled by plaintiffs, said : I think there was sufficient time given for a reversal of Mr. Cleaveland's first motion, that for the appointment of Dr. Beman. I think that I am not mistaken when I say that it was reversed. I think I may say it was reversed. I will give my reasons. When Mr. Cleaveland was about to put the question, we had then arrived at a most critical period of the proceedings. It was the most deeply interesting to me of any part of the whole transaction, because it was the incipient step in the organization. My feelings of interest were wrought up to a pretty high degree, and the proceedings engaged my whole attention. I paid peculiarly strict attention to what was going on. I was entirely neutral as regarded the controversy, having refused to attach my- self to either party. I had opposed a separate organization in a meeting of consultation which had been previously held. Mr. Randall. — We cannot go into the history of the previous meeting, but you may state the ground on which you were unwilling that a separate organization should take place. Witness. — That is precisely what I was going to state. I had determined to take no part in the proceedings; nor did I take any part therein. I was entirely neutral. And I was opposed to a sepa- rate organization because I apprehended that such a course would lead to results much more painful than what I witnessed. I antici- pated a scene of actual violence, and could not conjecture how far that violence might be carried. I did not suppose that the Old School party would suffer their measures to be defeated. I did not know but collision would ensue, amounting to a scene of tumult and violence. I feared that a riot would be the consequence. This was my full expectation, and I dreaded the result. My whole attention was drawn to the proceedings, of course. When Mr. Cleaveland made the motion that Dr. Beman should take the chair, he put the affirmative ; " All those who are in favour will say aye." At this moment I was particularly attentive to the Old School brethren, casting my eyes over them, to see what they would do. There arose a simultaneous burst of ayes, some of them, I thought, indecorously and offensively loud, but I know not from whom, in a single instance. I kept my face toward Dr. Elliott. Afterwards there 21* 246 fell in d few scattering ayes. They appeared to come from back of me, but I did not turn around. Mr. Cleaveland, as, from the first, he had intended to do all in the shortest time possible, revei-sed the question very quickly: I don't know that all the scat- tering ayes had ceased when he reversed it. I heard a few scat- tering noes, principally from the direction of the Old School brethren-, a few from the south-west, and some from immediately in front of me in the south part of the house. I was surprised at this, because I ex- pected a thundering " no !" I was surprised that there had been any negatives, unless there had been more. I thought they were not well trained, at any rate. 1 supposed that if they voted at all they would have tried to vote the others down, as they claimed to be the majority. For these reasons I think I can't be mistaken in my recollection. I know Dr. Beecher, and saw him that day : he sat in the pew imme- diately before me. During all these transactions he sat perfectly still, and behaved with decorum. If he voted in the affirma- tive, it was not distinguishable from the other voices in that neigh- bourhood. If he did vote at all, it was not in a very loud or re- markable tone of voice. He is, I believe, at present, in Cincinnati, not here on the ground. He is very much of a gentleman in his deportment. I could not be deceived in regard to him, for I sat directly back of him. Mr. Cleaveland and Dr. Patton were in the pew in front of me, and Dr. Beecher sat in the same pew. Mr. Cleaveland was so near me, that I could have laid my hand on his shoulder as he rose. I was as favourably situated for hearing as I could have been ; hence I infer, that I could not be mistaken in the case. Cross-examination. Interrogated by Mr. Preston, the witness said ; J was surprised at hearing any " noes," unless there were more- I had expected that the noes would be of another character, and was agreeably disappointed. I had anticipated events, and feared that a great riot would take place. From personal knowledge I really cannot say whether the Old School had a majority. I sup- pose'that the majority must be very small either way. I know they claim to have had a majority, and I rather suppose that it was the fact. Mr. James R. Geinmill, called by relators, interrogated by Mr, Randall, said : I attended the church in Ranstead court on the day of the organization of the Assembly of 1838. I was leaning on a pew, near the south-west door, just under the gallery, not far from the moderator. I saw Mr. Cleaveland rise, but did not hear much of what he said, distinctly, because of the noise around me. In the neighbourhood where I was, there was a great deal of scraping with the feet, stamping, and other unseemly noises. I saw a great num- ber of the Old School members around me. I saw none others that I knew in that pew, or in the vicinity where I was. I recognized several persons whom I knew at the time. One of them was Mr. Latta. Another was the Rev. Mr. Boardman, pastor of the Tenth Presbyterian Church in this city. There were other gentle- men near and around me whom I recognized at the time, but I 247 cannot now give their names. I merely state what I know. I did not consider their conduct as becoming gentlemen — much less re- verend divines and ministers of the gospel. * * # I did not know all the gentlemen near me. William Finney f think was one of them, though I might be mistaken, as I had not seen him for se- veral years. Some of them scraped with their feet and stamped on the floor, and there was considerable other noise in that neigh- bourhood. This was whilst Mr. Cleaveland was speaking or read- ing. His face was, at first, toward the moderator, that is, when he first commenced. I spoke to some of the gentlemen around me, and asked what was the necessity for making so much noise. I knew some of them to be ministers, and said to them, that I thought that was pretty conduct for clergymen, and asked them if they had not better hear what the gentleman who was reading had to say. One of them observed " yes, they had better do so." Cross-examination. Interrogated by Mr. Huhhell and Mr. Preston, the witness said: I turned and said, this was pretty conduct for clergymen ; that I thought they might hear what the gentleman had to read. I was not a member. I am not a member of any church, and felt that it was rather assuming for me to rebuke them, but I thought their conduct justified me, and I wanted to hear. I attend the First Presbyterian Church, Mr. Barnes'. I knew but few of those near me. Mr. Boardman was two or three pews off, and so was Mr. WiUiam or James Latta. The one whom I took for Mr. Finney, was the nearest to me that I knew. My face was towards the moderator. I did hear scraping among these gentle- men. I addressed those nearest to me. Mr. Boardman was a pew or two off'. I took those near me to be ministers. My observa- tion was a general one, it was not addressed to Mr. Boardman, or to Mr. Latta, or to any one in particular. I don't recollect whether they two were near enough to hear it. There was a tumult through the house. 1 cannot say that it was confined to the Old School party, but I understood, that those near me were the Old School. They generally acted with the Old School party. I saw some there, who had acted with the Old School in 1837. Mr. Latta was such a one. I think all near me were Old School, as well as I could recognize them. I am not positive about any whose names I did not know. I should not call it a riot: there was scraping and coughing. I was twenty or thirty feet from Mr. Cleaveland, and there did not appear to be as much noise near him, as about where I was. [Witness here described the positions by reference to the plan of the house.] I heard Mr. Cleaveland put his motion not- withstanding the noise, and I heard a loud response of "aye." I afterwards heard five or six " noes," I should think, in the part of the house where I was. The ayes were in parts of the house far- ther north. I should think them abundantly competent to carry the question. They were numerous. I changed my position and went north, after the vote was taken. I worked my way through the crowd in getting there, with difficulty. Mr. Ingersoll. — Are the pews or aisles of that church carpeted ? Witness. — I don't know, I rather think there is a brick pavement. 248 Mr. Preston. — How happened you in the first place to get into the neighbourhood of Mr. Boardnnan and Mr. Latta, in the midst of the Old School men ? Witness. — It was merely by accident, so far as I know. I went in just before Dr. Elliott finished his sermon, and entered from the grave-yard. My going to that quarter of the house was purely ac- cidental. Indeed, it was accidental that I went at all. I had some business up Market street, and I merely stopped in out of curiosity to see what was going on. I had understood there was to be some fuss. I anticipated as much, as they had been quarelling for some time. I thought I would like to see and hear what was passing. Some question being raised respecting the correctness of the wit- ness in regard to Mr. Latta, Mr. Randall said, the minutes show that Mr. Latta was a member of the Assembly, both in 1837 and 1838. Plaintiflfs called Mr. Elihu D. Tarr. Interrogated by Mr. Randall, the witness said : My profession is the same as your own. I at- tended at the organization of the General Assembly of 183S, in Ranstead court. I sat three or four pews behind Mr. Cleaveland. I heard him put the motion that Dr. Beman take the chair as mo- derator. He put it clearly and distinctly. I heard the "ayes" from a large number of persons. I heard the question reversed. I distinctly heard the reversal, and heard a few " noes" in the north- west part of the house directly afterward. I was surprised at the vote, as I had understood that the Old School party had the majo- rity, and was surprised that they did not vote the motion down. This caused me to take more particular notice. I am confident that I cannot be mistaken. It was from the south-west part of the house that the noes came. Did I before say " north-west?" As I looked toward the pulpit, they came from my front, and to the right of that. Cross-examination. Interrogated by Mr. Preston, witness said : I am certain that I heard the noes distinctly. I have attended the legislature of this state. There were probably from three to half a dozen noes, but I did not count them. I heard the question put in regard to the clerks, and if my recollection serves me, there were more noes on that than on the former question ; but about this, I am not so certain. I think certainly there were answers in the negative, but whether more or not I can't tell. To the best of my recollection, the question was reversed, on each of the motions. They were all reversed. I distinctly heard the reversal. The ne- gative was put on all the questions which were put by Mr. Cleave- land, Dr. Beman and Dr. Fisher. I heard the motion made in regard to Dr. Fisher, but don't recollect whether there were any noes on that vote. I can't say whether there were any or not. I was in the neighbourhood of and surrounded by the New School party, and was very near Mr. Cleaveland. Up to the time of the General Assembly of 1838, I did not, strictly speaking, belong to either the Old or the New School party, though I inchned to the Old School. The proceedings here and those of the majority in the Assembly of 1837 determined me. I am now opposed to the 249 Old School party, and a decided advocate of the New School pro- ceedings. I was formerly a member of the Presbyterian church of which Mr. Winchester was the pastor, afterward of Mr. Board- man's, and I am now a member of Mr. Rood's chm'ch. Mr. Rood, my impression is, belongs to the Third Presbytery of Philadelphia, but I cannot say certainly. When I removed to the Northern Li- berties, I went to his church, without asking whether he was New or Old School. Mr. James W. Paul called by plaintiffs. Interrogated by Mr. Randall, the witness said : I am a member of the bar. I attended the organization of the General Assembly of the Pres- byterian Church, in May, 1838. I was in the gallery, immediately in front of the organ. I heard Mr. Cleaveland put his motion. I distinctly heard the motion put, and the vote in the affirmative and negative. I am satisfied that the question was reversed. The " ayes" were uttered very loudly, and the " noes" in a lower tone of voice. They were few and scattering. I am fully satisfied that the question was put in the negative. Such was my impression at the time. I think I cannot be mistaken in saying that the question was reversed. Knowing Dr. Beman to be a very prominent man in the New School party, I thought it very strange that such a nomi- nation should pass without a stronger opposition from the Old School men. There is no question that there was sufficient time for the question to be put and reversed, if put rapidly, though the interval was not long between the affirmative and negative vote. Mr. Randall.— You say that there was time, if the reverse of the question was promptly put? Mr. Ingersoll objected to this as a leading question. Mr. Randall. — If the reverse was promptly put, was there time for it 1 After a short colloquy between the counsel, the witness continued- My recollection is, that there was ample time for the reversal. But I did not expect to be called to testify as a witness, and therefore did not charge my memory with what passed. I speak from recol- lection merely. I am a member of the First Presbyterian Church — Mr. Barnes' Church. Hon. Henry Brown called by the relators. Interrogated by Mr. Randall, the witness said : I attended the organization of the General Assembly of 1838. I heard Mr. Cleaveland make his motion, and put the question thereon. I heard him reverse it very distinctly. I am absolutely certain that I heard him reverse the question. I cannot be mistaken in this. I sat on the west side of the east aisle of the church, one pew east of Mr. Cleave- land, and two or three north of him. The question was put dis- tinctly, in a very clear voice, and might have been heard all over the house. There was immediately a very loud "aye," and one individual responded aye much louder than any other. Mr. Cleave- land then reversed the question, I should say, with despatch, but not so rapidly as to prevent him from speaking very distinctly and clearly. I have known a question to be reversed more rapidly than this was. After he reversed the question, I heard several no^$ on 250 the west side of the house, and to the south of where I sat, and two or three in the eastern part of the house, one of them very near to me. I am confident that I heard him distinctly put and reverse the question, and that there were several " noes." I was a member of the General Assembly of 1837 and of that of 1838, from the Presbytery of Lorain, in the Synod of the Western Reserve. I acted with the body which held its sessions in the First Presby- terian Church during its session of about two weeks. There was a man near me who voted aye very loud. Mr. Randall. — Did you know him '' Witness. — I was not acquainted with him previous to that time, but was afterwards told that his name was Foster. He was a ruling elder from the Presbytery of Montrose, in this state. I think he spoke twice as loud as any other person in the house. I took hold of his arm and told him not to halloo so loud next time. Mr. Randall. — Then you know that the little gentleman with the loud voice was not Dr. Beecher? Witness. — it was not Dr. Beecher. He did not at any time stand on the top of a pew, but towards the close of the proceedings I think that he sat on the back of one. Cross-examination. — Interrogated by Mr. Preston, the witness said : I did vote on all the questions. I said " aye" every time, or at least I intended to do so. My commission was rejected by the Committee on Commissions, Mr. M'Dowell and Mr. Krebs. I cannot tell whether all those whose commissions were rejected, voted on the questions put by Mr. Cleaveland, Dr. Beman, and Dr. Fisher. I can't say about others. I myself voted in the affirmative on all the questions, and presume that others did. I know that one did. I could not see them all in so large an assembly. Counsel. — Have you not expressed a doubt whether these questions were reversed? Witness. — I have not. I have heard stated, a doubt in regard to the reversal of the questions, which I do not feel. I distinctly heard the question reversed, on the motion in regard to Dr. Beman ; dis- tinctly, on the choice of clerks; and I believe that it was reversed on the appointment of Dr. Fisher, in a plain, distinct voice, the two former louder than usual. I have never doubted, and do not now feel any doubt as to this matter. I cannot say that every question was reversed, but I have no doubt in regard to the questions on Dr. Beman, Dr. Fisher, and the clerks. I was one range of pews east, and two or three pews north of Mr. Cleaveland. He was at the east end of his pew, and I in the middle, or the west end of mine. We were probably ten, or it might be a dozen feet apart. Mr. Hubbell. — Has there not been a suit brought in your name against Dr. Elliott, Dr. M'Dowell, and Mr. Krebs, for an infringe- ment of your rights? Witness. — There is one suit in my name, among those read from the docket. Mr. Hubbell. — Are you not aware that there have been jive suits commenced? Witness. — Perhaps there are five, I was not very particular about J 251 that matter. I left it to my counsel, with entire confidence that it would be managed correctly. Mr. Thomas Elmes called by the plaintiffs. Interrogated by Mr. Randall, the witness said : I belong to the First Congregational Church of this city. The church of which Mr. Todd is pastor. J have no connexion with the Presbyterian Church whatever. I have not heard the testimony of the witnesses which have been examined, with the exception of one or two to-day. I attended at the organization of the General Assembly in Ranstead court, on the 17th of May, 18-38. I went in at the west door of the house, from the burying-ground, and stood leaning on the rail of the pew near the door. J heard Mr. Cleaveland's motion very distinctly put, the motion for Dr. Beman to take the chair. I heard the affirmative very distinctly, and several negatives, say two or three, after a short interval. I stood near the moderator. Dr. Miller was between Dr. Elliott and me. Dr. Elliott hammered and called to order, and Dr. Miller tried to hush the noise. He put his hand up as though to stop the tumult, and used some expression like, " Let them go through." Dr. Miller, I think, stood up at this moment. He had before been sitting. This was about the time Mr. Cleaveland was endeavouring to read his paper. The tumult was the calling to order, very loudly, in the neighbourhood of the moderator. All the noise, pretty much, that I heard was in that part of the house. I know the Rev. George Duffield. He is now in Detroit, as I understand. I have never known him to use a cane. I have known him for several years, but more particularly for about three. When in Philadelphia, he staid at my house for some time. I never saw him use a cane. His deportment was always very gentlemanly. I never heard him use coarse language. He is far from doing so. Cross-examined by Mr. Preston. — I did not see Mr. Duffield pre- sent at the organization of the Assembly of 1838. He did not walk there, or come away, with me. The reason why I could not hear all distinctly, was, that there were calls to order. The moderator called to order very loudly, and thumped with his hammer; and others around him called order loudly. There was a good deal of stir and bustle. This was what I meant, when I spoke of tumult. I perceived no other noise, or movement, until Mr. Cleaveland had made his motion. When that motion had been put. Dr. Beman stepped into the aisle, and others at the same time. The affirma- tive vote was very numerous. There were a few noes. I did not hear the negative distinctly, but some said "No." I did not hear any noes mixed with the ayes. There was a pretty loud burst of ayes, then a few scattering ones; then, after a short pause, a few noes. I heard Dr. Mason nominated as clerk, but I do not know- by whom. I do not distinctly recollect hearing the motion put, but I think Mr. Cleaveland put it. I did not hear any noes on that question. Dr. Miller was between me and the moderator, some- where near the moderator. Mr. Cleaveland was fifteen or twenty feet from me. I would not like to say, that I distinctly saw Mr. Cleaveland when he made his motion. I can't say that Mr. Cleave- 252 land put the question for the choice of clerks: it might have been Dr. Beman. I belonged to the Congregational Church at that time. I was once an elder in the Presbyterian Church, and was a delegate to the Assembly that met at Pittsburg. I can tell how I voted there. I sympathize with those who do right. I don't know what is un- derstood by Old School or New School. I don't belong to either. Other people must judge which I belonged to. I profess to be a Calvinist; was an elder in the Fifth Presbyterian Church. Mr. Duffield was pastor of it a short time. I was a Presbyterian while I was in that church : I have since become a Congregationalist, to get out of the quarrels of the other church. I don't recollect ever saying that this was a contest between Presbyterians and Congre- gationalists, or that the Presbyterians were struggling for existence. Mr. Preston. — Is it your opinion that it is such a struggle? Mr. Elmes. — I never did conceive it to be so. I have never thought or stated that that was the real struggle. I joined a Con- greajational Church in Maine in 1812. I was ordained an elder in 1828. I became a member of the Presbyterian Church in 1815. Several years I belonged to the Sixth Presbyterian Church. Two years ago, I again entered into connexion with the Congregational Church. I had been a Congregationalist first in Augusta, Maine. I joined Mr. Todd's church in the beginning of the spring of 1837, after the church was completed, because it was convenient for me, though I probably should not have left the Presbyterian Church, if it had not been for their quarrels. The church is in Tenth street below Spruce. Rev. James M. Davis, called by the plaintiffs, interrogated by Mr. Randall, said: I am a minister, am preaching to the Presbyterian Church at Fairmount. I attended at the organization of the As- sembly of 1838. I remember Mr. Cleaveland's motion. I was standing half way down the middle aisle when he rose, and heard his prefatory remarks. I heard Mr. Cleaveland's motion dis- tinctly, and the reversal with equal distinctness. I heard from eight to ten negative voices. My impression was, that they came from the quarter where the Old School brethren sat. I was expecting them from that quarter, and think I do not mistake. There was considerable confusion when Mr. Cleaveland commenced. There were calls to order by the moderator, and by persons at his left; but they soon desisted, and, at the close of his remarks, the house was still. His last sentence has been repeated by every witness. When he made his motion, the house was very still ; all the noise had subsided by that time. I formerly preached at the First Pres- byterian Church at ?Janayunk, belonging to the Third presbytery. I sympathize entirely with the New School. Cross-examined In/ Mr. Preston. — I heard the reversal of the ques- tion. It was put distinctly as the affirmative, but more rapid. I think it was distinct enough for every one in the house to hear it, if disposed to hear, as I was. An individual might have made so much noise, that he could not hear. When it was put, the house was quiet. I was about the middle of the aisle. Dr. Beman came out of the pew by my side, and put the question on the appointment 253 of clerks. I was not a member of the Assembly, and did not vote. I am connected with Mr. M'Clelland, one of the relators in this case. He is my faiher-in-law. I was licensed by a Congregational Asso- ciation, but ordained by the presbytery. I was born in jXew Eng- land, and received my theological education at New Haven. I con- tinued near to Dr. Benian till the close of the proceedings, and left the church when those did who acted with him. I recollect some noes on one or two of the motions. There was considerable clap- ping and some hissing, when Dr. Fisher announced the adjournment. I mentioned my relationship to Mr. M'Clelland, to Mr. Gilbert, and he said that he would tell Mr. Randall. The plaintiffs called Rev. Daniel W. Lathrop. Interrogated by Mr. Randall, the witness said: I attended the Assembly of 1838, as a commissioner from the Presbytery of Lorain, in the Synod of the Western Reserve, That synod is one of the excinded. I came as a minister. I heard Mr. Cleaveland's remarks, and his motion, with perfect distinctness. At the conclusion of his introductory remarks, he moved that Dr. Beman should be moderator, my impression is, or that he should take the chair. I should not hesitate to say un- qualifiedly that " moderator" was the term used, had not the other form of expression been so often repeated in my hearing, here in Court. Referring only to my own recollection, I say that Mr. Cleaveland used the word " moderator." He stated the question distinctly, in his usual loud and clear voice. The question was put in a voice louder than is usual in the Assembly. He put both the affirmative and the negative. There were some negative votes. Counsel. — From what part of the house did the negatives come? Witness. — One of them was my own. I do not recollect any others immediately in my neighbourhood. I was on the east aisle. Some two or three of the noes I should think nearly in front of me, and a little more toward the south-east quarter of the church. The others appeared to come from the south-west part of the house. My recollection of the noise that I heard, is, that it consisted prin- cipally of cries of order, from the south and south-west parts of the house, with some from the south-east, chiefly from near the mode- rator, and from west of him. I heard no noise, or confusion, in the vicinity of Mr. Cleaveland. With the exception of himself, and the others who proposed questions, all were silent, until the ayes were called for. Then there was a distinct and loud response. I do not recollect any noise in that vicinity, other than the one alluded to. There was one aye louder than the rest. I saw the gentleman from whom I supposed the loud aye came: he was an elder from the Presbytery of Montrose. His name was Foster. Counsel. — Then you are quite certain that it was not Dr. Beecher who responded aye so very loudly? Witness. — I am certain. Cross-examination by Mr. Preston. — Did I understand you to say that you voted in the negative on the nomination of Dr. Beman? Witness. — I did. I recollect m.y reason for so voting. Mr. Preston. — Did you also vote in the affirmative on that ques- tion? 22 254 Witness. — I don't recollect voting so, and think that I could not have so done, with the reason that I had for voting the other way. Mr. Preston. — You have spoken of your reasons for voting in the negative: what were those reasons? [The plaintiffs' counsel objected to the question, and the Court ruled that the reasons of the witness for his vote in the Assembly, could not be demanded.] Mr. Preston. — I will then ask whether these reasons were apart from what caused the witness to recollect that he voted in the negative. A colloquy of some length ensued between the counsel. Mr. Ingersoll urged that the recollection of the witness, of his rea- son for voting in the negative, had been mentioned by himself, and would be considered as strengthening the evidence that the question was reversed, and that now the counsel had a right to know what that reason was. Mr. Preston said: Suppose the reason of the witness was a col- lusion among the New School men, an agreement in their previous consultations, to throw a few votes in the negative, so as to cover the pretence, that we of the Old School understood what was doing, and such of us as chose, participated in the vote? 1 have been extremely desirous to reach some evidence of such a fact, and ex- pect that we can find it in the reasons of this witness. The ivitness said : If the Court pleased, he had no manner of ob- jection to stating the reason, the allusion to which had been elicited only by the interrogatories of the counsel, and he was not aware that it would be of particular importance to either party in this case. [The objection was withdrawn, and the Court said the witness could proceed.] Witness. — I had attended no meetings for consultation. Having arrived in the city only at ten o'clock on the evening previous to the opening of the Assembly, after a fatiguing journey, I did not leave my hotel till after ten o'clock in the morning. I saw no mem- ber of the Assembly, or other person of my acquaintance, of either party, or of any school, until I fell in w'ith two or three commis- sioners on my way to the committee-room of the clerks. I had no intimation of any peculiarity in the organization of the Assembly, from any gentleman in the city, or on my way. I went to the house at the usual time, and found a seat as I could. My attention was very much absorbed, during the religious exercises, by what seemed to me the very peculiar character of those services. I was pondering on those strange peculiarities, and was very much grieved and deeply aftected by them, until my attention was ar- rested by the subsequent proceedings. When Mr. Cleaveland rose, and moved the appointment of another moderator, it did not strike me favourably, nor seem to be the course which I should choose to pursue. This was the simple and only reason for my voting in the negative. By Mr. Preston. — I believe that I voted in the affirmative on all the subsequent questions, excepting the first nomination for clerks; as to this, I am not certain. My commission had 255 been rejected by Dr. M'Dowell. I think that on my way, or as I was coming out of the committee-room, I gave it into the hands of a gentleman, who had been similarly treated : I think it was Mr. Squier. I am not certain that I had not the commission at the time. I have no stronger assurance, in regard to this point, than in relation to the other. I think I had given it to Mr. Squier. I subsequently sat with the body that adjourned to the church on Washington Square. I acted, in that Assembly, in the Committee of Overtures, but I think not on any other standing committee. I do not recollect whether I was on any other committee. I think I was not on the committee appointed to revise the minutes. I think I was a member of the committee to I'brm a Pastoral Letter. I was. My name was added to that committee subsequent to its first appointment; and I now recollect meeting repeatedly with the committee. I have no recollection of being on a committee to prepare a minute of the organization of the Assembly. My im- pression is, that there was such a committee. My recollection is not distinct in regard to this point, but such is my impression. I cannot tell how often I have been a member of the Assembly ; I think, about eight times. Counsel. — Did you not once attend as a committee-man? Witness. — I did; the session of 1820. I came to that Assembly, of which Dr. John M'Dowell was chosen moderator, from the Pres- bytery of Hartford, in the Synod of Pittsburg, then, now, and ever, a good, thorough-going Old School synod. My commission was questioned, and discussed a long while, and the previous mode- rator, seeing that the discussion was likely to occupy considerable time, asked me if I would not waive my right to have the question decided before a new moderator should be chosen. I did so. Af- terwards, my seat was given to me. I was, first, a member of a Congregational church, in Norwich, Connecticut, where I was born, the only church in the parish. I was licensed, and ordained, by the Rev. John M'Dowell, and his co-presbyters of the Presbytery of New Jersey. Afterwards, I belonged to the Synod of Pittsburg, a thorough-going Old School synod, where my connexion continued, until, in connexion with others, my presbytery was regularly de- tached from it, by the General Assembly, in erecting the Synod of the Western Reserve. Counsel. — Are you not now acting as reporter for the Journal of Commerce? Witness. — I could not with propriety say that; but I have written a few letters to the editors of that journal, during the progress of this trial, one of those gentlemen being a personal friend of mine. Counsel. — Are the reports in that journal from your pen? Witriess. — I have recently seen two or three letters published in that journal, which were from my pen. Counsel. — Have you them here in court? Witness. — I have not. I saw them in the reading-room at the Exchange. Mr. Randall. — In the case of Duncan against the Ninth Presbyte- rian Church, Dr. Green, one of the respondents in this case, was 256 examined, and I propose, now, to read his testimony. It has been intimated that an objection will be made. I offer it as the confes- sions of a party. Objection was made by the counsel for the respondents. Mr. Randal/. — I withdraw the offer. The plaintiff's here offered in evidence, as rebuttinf? the testimony of the defendants, the minute of the organization in Ranstead courts as contained in the Old School Minutes of 1838, as follows : The General Assembly of the Presbyterian Church in the United States of Ame- rica, met agreeably to appointment, in the Seventh Presbyterian Church, in the city of Philadelphia, on Thursday, the 17th day of May, A. D. 1838, at 11 o'clock, A. M.; and was opened with a sermon by tlie Rev. David Elliott, D. D., the mode- rator of the last Assembly, from Isaiah 60, 1: "Arise, shine, for tbj'^ light is come, and the glory of the Lord is risen upon tliee." After the sermon, the moderator gave notice that as soon as the benediction was pronounced, he would take the chair, and proceed to the organization of the Assembly. The benediction being pronounced, the moderator took the chair, and having opened the meeting with prayer, called upon the permanent clerk to report the roll. The Rev. William Patton, a member of the Third Presbytery of New York, rose, and asked le^ve to ofl'er certain resolutions which he held in his hand. The moderator declared the request at that time to be out of order, as the first business was the report of the clerks. Dr. Patton appealed from the decision. The moderator declared the appeal, for the reason already stated, to be at that time out of order. Dr. Patton stated that the resolutions related to the formation of the roll, and began to read the same: but being called to order, took his seat. The permanent clerk, from the Standing Committee of Commissions, reported that the following persons, present, have been duly appointed, and are enrolled as commissioners to this General Assembly, and laid their commissions on the table> viz: [The roll follows.] The Committee of Commissions further reported that the Rev. Robert G. Thomp- son, of the Presbytery of Bedford; Rev. Adam Millar, of the Presbytery of Mont- rose, and Mr. .Tames Elliott, a ruling elder of the Presbytery of Richland, have stated to the committee that they were appointed by their respective presbyteries, but have not their commissions; that the commission of Mr. John W. Cunningham, a ruling elder from the Presbytery of New Castle, wants the signature of the mode- rator; and that the commission of Rev. Ephraim P. Bradford, of the Presbytery of Londonderry, wants the signature of the clerk. They further reported that the Rev. David R. Preston, and Mr. Thomas Beard, a ruling elder, appeared before the committee with regular commissions from the Presbytery of Greenbrier, which commissions were accompanied with an attested extract from the minutes of the Synod of Virginia, certifying that said presbytery was regularly constituted by the Synod of Virginia, October 10th, 1837. The documents refeiTed to in the foregoing report of the informal cases, were laid on the table by the permanent clerk. After the report of the Committee of Commissions had been read, the moderator stated that the commissioners whose commissions had been examined, and whose names had been enrolled, were to be considered as members of this Assembly ; and added that if there were any commissioners present from the presbyteries be- longing to the Presbyterian Church in the United States of America, whose names had not been enrolled, then was the time for presenting their commissions. Dr. Mason rose, as he said, to offer a resolution to " complete the roll," by add- ing the names of certain commissioners who, he said, had oflered their commissions to the clerks, and had been by them refused. The moderator inquired if they were from presbyteries belonging to the Assembly at the close of the sessions of last year ? Dr. Mason replied that they were from presbyteries belonging to the Synods of Utica, Geneva, Genessee, and the Western Reserve. The moderator 257 then stated that the motion was out of order at this time. Dr. Mason appealed from the decision of the moderator ; which appeal, also, the moderator declared to be out of order, and repeated the call for commissions from presbyteries in connexion with the Assembly. The Rev. Miles P. Squier, a member of the Presbytery of Geneva, then rose and stated that he had a commission from the Presbytery of Geneva, which he had presented to the clerks, who refused to receive it, and that he now offered it to the Assembly, and claimed his rig'ht to his seat. The moderator inquired if the Presbytery of Geneva was within the bounds of the Synod of Geneva. Mr. Squier replied tliat it was. The moderator said: "Then we do not know you, sir," and declared the application out of order. Mr. Cleaveland then rose and beg-an to read a paper, tlie purport of which was not heard, when tlie moderator called him to order. Mr. Cleaveland, however, notwithstanding- the call to order was repeated by the moderator, persisted in the reading. During- which, the Rev. Joshua Moore, from the Presbytery of Hunting-don, presented a commission, which being- examin- ed by the Committee of Commissions, Mr. Moore was enrolled, and took his seat. It was then moved to appoint a Committee of Elections, to which the informal commissions might be referred. But the reading by Mr. Cleaveland still continu- ing, and the moderator having in vain again called to order, took his seat, and the residue of the Assembly remaining silent, tlie business was suspended during the short but painful scene of confusion and disorder which ensued. After which, and the actors therein having left the house, the Assembly resumed its business. On motion. The cases of Messrs. Thompson, Millar, Elliott, Cunningham, Bradford, Preston, and Beard, and the documents concerning them, were referred to Messrs. Culbert- son, J. L. R. Davies, and Hugh Campbell, as a Committee of Elections. The Rev. William S. Plumer was unanimously elected moderator; and the Rev. Ellas W. Crane was unanimously elected temporary clerk. The Committee of Elections reported that the following persons, whose cases had been submitted to them, were regularly appointed commissioners to this As- sembly, and recommended that they be severally admitted to seats, viz. Rev. Ro- bert G. Thompson, of the Presbytery of Bedford; Mr. James Elliott, ruling elder of the Presbytery of Richland; Mr. John W. Cunningham, ruling elder of the Presby- tery of New Castle; the Rev. Ephraim P. Bradford, and Rev. David R. Preston, and Mr. Thomas Beard, ruling elder, from the Pa-esbytery of Greenbrier; they further reported that the Rev. Adam Millar, of the Pi-esbytery of Montrose, did not appear before the committee. The case of the commissioners from the Presbytery of Greenbrier was referred back to the Committee of Elections, and that part of their report relative to Messrs. Thompson, Elliott, Cunningham, and Bradford, was adopted, and it was ordered that their names be inserted in the roll. These commissioners took their seats. And then the Assembly adjourned till this afternoon at 5 o'clock. Concluded with prayer. Plaintiffs' counsel also offered the whole of the statistical table appended to the same minutes, occupying forty or fifty pages, but without reading; and then read extracts from the unpublished manuscript minutes of the earlier Assemblies, to prove the point on which evidence had before been offered from the printed minutes, viz. that it has been customary, in the Assembly, to determine dis- puted rights of membership before the choice of a moderator. The testimony for the relators here closed. The counsel for the respondents then offered in evidence the New School minutes of 1838, pp. 635-646, as contradictory of the testi- mony adduced b}' the relators. Mr. Meredith demanded that the portions of those minutes which were to be relied on, should be specified. Mr. Huhbell. — The whole is offered as contradictory of the evi- dence for the relators. 22* 258 Mr. Meredith. — We indicated distinctly the portions of the minutes of the other party on which we should rely, and deem the same course requisite on the part of the opposite counsel; unless the court decide that the whole minutes of both parties shall be consi- dered in evidence, at least, so far as the counsel shall choose to use them. The Court decided that the minutes of both parties, so far as they were relevant to the case, were to be considered as now in evidence, large portions of both have been read by the respective parties. If hereafter any portions should be adverted to by the counsel which seem to be inadmissible, the Court will decide what portions are to be admitted, and what rejected. Mr. Meredith. — We are content. The following are the minutes particularly adverted to by the respondents' counsel. The General Assembly of the Presbyterian Church in the United States of America met, agreeably to appointment, in the 7th Presbyterian Church in the city of Piiiladelphia, on the third Thursday of May, 1838, at 11 o'clock A. M. and was opened with a sermon by the Rev. David Elliott, D. D. Moderator of tiie last Assembly, from Isa. Ix. 1: "Arise, shine, for thy light is come, and the glory of the Lord is risen upon thee." After public worship, the Moderator of the last Assembly announced from the desk that immediately after the benediction, the Moderator would take the chair on the floor of the church, and the Assembly would then be constituted. After the benediction, the Moderator of the last Assembly took the chair and opened the meeting with prayer. The Rev. William Patton, D. D. from the 3d Presbytery of New \ork, then rose, and asked leave to offer the following preamble and resolutions: " Whereas the General Assembly of 1837 adopted certain resolutions intended to deprive certain presbyteries of the right to be represented in the General As- sembly ; and whereas, the more fully to accomplish their purpose, the said As- sembly of 1837 did require and receive from their clerks a pledge or promise, that they would, in making out the roll of commissioners to constitute the Gene- ral Assembly of 1838, omit to insert therein the names of commissioners from said presbyteries ; — and whereas the said clerks, having been requested by com- missioners from the said presbyteries to receive their commissions and enter their names on the roll of the General Assembly of 1838, now about to be organized, have refused to receive and enter the same ; — Therefore [For these resolutions see page 85 of this report.] The Moderator declared him to be out of order, and refused to allow them to be read. Dr. Patton then stated that he was very desirous to have them put and passed upon without remark or debate. The moderator again declared them out of order, as the next business was the report of the clerks upon the roll. Dr. Patton then appealed from the decision of the chair. The appeal was seconded, and the moderator declared the appeal to be out of order, and refused to put it, and directed the clerk to make his report upon the roll. Dr. Patton then de- clared to the moderator that the paper he wished read had relation to form- ing the roll. The moderator then stated that he was out of order as the clerk was on the floor ; whereupon the moderator was reminded by Dr. Patton that he had the floor before the clerk. The moderator directed the clerk to proceed with the report on the roll, and Dr. Patton thereupon took his seat. The report of the clerks of the last Assembly upon the roll was then read by the Rev. John M. Krebs, one of the Clerks of the last Assembly, and was as follows; [The roll follows.] The reading of the report being finished, the moderator announced that if there were commissioners from any presbyteries of the Presbyterian Church who 259 had not been enrolled, then was the propei- time to make application to have their names put upon the roll. Thereupon the Rev. Erskine Mason, D. D. from the Tliird Presbytery of New York, rose and offered the following' resolution. " liesolved, That the roll be now completed by adding the names of all com- missioners now present from the several presbyteries within the bounds of the synods of Utica, Geneva, Genessee and the Western Reserve." And stated that the commissioners from the presbyteries therein named had offered their commissions to the clerks, who had refused to receive them. The moderator asked Dr. Mason if they were from presbyteries connected with the Assembly of 1837 at the close of its session. Dr. Mason replied that they were from presbyteries within the bounds of the synods of Utica, Geneva, Genessee and the Western Reserve. The moderator then stated that they could not be received. Dr. Mason then formally tendered the commissions of commissioners from THE PUESBTTEKIES OF MINISTERS. EinERS. Lorain, Daniel W. Lathrop, Henry Brown, Geneva, Wm. L. Strong-, Zenas Wheeler, Miles P. Squier, Wm. B. Cook, Genessee, Erastus J. GiUett, Wm. Bridgman, Augustus P. Hascallj Oneida, Horace P. Boque, Joseph Myers, Angelica, Asa J. Allen, Thompson Bell, Maumee, J. H. Francis, Levi Beebe, Watertown, Isaac Brayton, Jason Clark, Portage, George E. Pierce, Sherman B. Canfield, Cayuga, Salem Town, Joseph Esty, Ontario, Silas C. Brown, Hiram Ashley, Rochester, Try on Edwai'ds, A. G. Hall, George A. Avery, Delaware, Daniel Waterbury, D. Penfield, Otsego, Joseph W. Paddock, David H. Little, Trumbull, Selden Haynes, M. Messer, Onondago, Hutchins Taylor, Chemung, John Frost, Huron, E. P. Salmon, Buffalo, Asa T. Hopkins, Jabez Goodell, George R. Rudd, Horace Allen, Grand River, Ferris Fitch, Niagara, Herman Halsey, Cortland, Joseph R. Johnson, Chenango, John B. Hoyt, Frederic Hotchkiss, Cleveland, Samuel C. Aikin, Stephen Whitaker, Bath, E. Everett, Daniel S. Benton, Tioga, J. A. Nasii, Elias Hawlej-, And demanded that they be put upon the roll. The resolution was seconded. The moderator declared it out of order. Dr. Mason then said that with the great- est respect for the chair, he must appeal from that decision. The appeal was seconded. The moderator declared the appeal out of order, and refused to put it. The Rev. Miles P. Squier, from the Presbytery of Geneva, then rose and ad- dressed the chair, staling that he had a commission from the Presbytery of Gene- va, which he had presented to the clerks, who refused to receive it, and he de- manded his right to his seat and required his name to be enrolled. The moderator asked him if the Presbytery of Geneva was within the Synod of Geneva. Mr. Squier repHed that it was within the bounds of the Synod of Geneva. The mode- rator then said " We do not know you," and refused the demand, declaring it out of order. These repeated refusals of the moderator and clerks of the General Assembly of 1837 to perform the duties of their respective offices in the organization of the General Assembly of 1838, till its own officers should be appointed, thus impeding the constitutional progress of business, the Rev. John P. Cleaveland, of the Pres- 260 bytery of Detroit, rose and stated in substance as follows: — that as the commission- ers to the General Assembly for 1838, from a larjje number of presbyteries, had been refused their seats ; and as we had been advised by counsel learned in the law, that a constitutional org'anization of tlie Assembly must be secured at this time and in this place, he trusted it would not be considered as an act of discovu'- tesy, but merely as a matter of necessity, if we now proceed to organize the Gene- ral Assembly for 1838, in the fewest words, the shortest time, and with the least interruption practicable. He therefore moved that Dr. Beman, from the Presby- tery of Troy, be moderator to preside till a new moderator be chosen. The mo- tion was seconded by the Rev. Baxter Dickinson from the Presbytery of Cincin- nati, and no other person being- nominated, the Rev. Dr. Beman was unanimously appointed such moderator. It was then moved and seconded that the Rev. Erskine Mason, D. D. from the 3d Presbytery of New York, and tlie Rev. E. W. Gilbert from the Presbytery of Wilmington, be clerks pro tempore; and no otlier persons being put in nomina- tion, they were unanimousl}^ appointed. The following is the roll of the General Assembly as completed by the clerks: [The roll here follows.] The Rev. Samuel Fislier, D. D. of the Presbytery of Newark, was nominated as moderator of the General Assembly, and no other person being put in nomination, he was chosen by a very large majority. The Rev. Dr. Beman thereupon an- nounced to Dr. Fisher that he was duly elected the moderator of the General As- sembly; and on leaving the chair, informed liim that he was to be governed in his office by the rules of the General Assembly hereafter to be adopted. The Rev. Erskine Mason, D. D. was then chosen stated clerk, and the Rev. E. W. Gilbert permanent clerk of the General Assembly. The following notice had been previously delivered to the Rev. Dr. Beman; " Resolution of the Trustees of the 7th Presbyterian Church, adopted May 7th, 1838. Resolved, Tliat the General Assembly of the Presbyterian Church, which is to convene in Philadelphia on the 17th inst. and which shall be organized under the direction of the moderator, and clerks, officiating during the meeting of the last Assembly, shall have the use of the Seventl\ Presbyterian Church during their ses- sions, to the exclusion of every other Assembly or Convention which may be organ- ized during the same period of time. (Signed) JAMES SCHOTT, President of the Board of Trustees." It was moved and seconded that the General Assembly now adjourn to meet forthwith in the lecture room of the First Presbyterian Church in this city. The motion to adjourn was carried unanimously. The moderator then audibly announced that the General Assembly was so ad- journed, and gave notice that any commissioners who had not presented their Commissions should do so at the First Presbyterian Church. The Assembly being again met at the lecture room of the First Presbyterian Church, Dr. Patton again offered his preamble and resolutions, as follows, which were unanimously adopted: [See page 258 as before.] Commissions were called for, and committed to the hands of the stated and permanent clerks. Adjourned to meet in this place at 4 o'clock, P. M. Concluded with prayer. Respondents' counsel here alluded to a reference made in open- ing their case, to certain principles established by the Form of Government, and to some facts exhibited by the minutes of the Assembly in different years, the documents exhibiting which were not fully read at the time; and the reading was now waived, with the understanding that they would be adverted to in the argument as the counsel should think proper. Judge Rogers remarked, that he considered the whole of the book containing the Form of Government, the minutes of the Assembly for the several years which had been adverted to bv counsel on both 261 sides, and the book called the Digest, as in evidence, and subject to the use of the counsel in their argument. Such parts of the documents at this time alluded to by the coun- sel for the respondents, as were subsequently adverted to in their arguments, and which do not appear on previous pages of this report, are here subjoined. Farm of Government, pp. 354-5. CHAPTER IX. — Op the CHtrncH Session. I. The church session consists of the pastor or pastors, and ruling' elders of a ])articular congregation. II. Of this judicatory, two elders, if there be as many in the con^egation, with the pastor, shall be necessary to constitute a quorum. III. The pastor of the congregation shall always be the moderator of the session^ except when, for prudential reasons, it may appear advisable that some other min- ister should be invited to preside; in which case the pastor may, with the concur- rence of the session, invite such other minister as they may see meet, belonging to the same presbytery, to preside in that case. The same expedient may be adopted in case of the sickness or absence of the pastor. * * * Pp. 364-5. CHAPTER XII. — Of the General Assembly. [For sections I. II. III. of this chapter, see back, page 30 ; and for section VIII. see page 44.] IV. The General Assembly shall receive and issue all appeals and references, which may be regularly brought before them from the inferior judicatories. They shall review the records of every synod, and approve or censure them: they shall give their advice and instruction in all cases submitted to them in conformity with the constitution of the church ; and thej' shall constitute the bond of union, peace, correspondence, and mutual confidence, among all our churches. V. To the General Assembly also belongs the power of deciding all controversies respecting doctrine and discipline; of reproving, warning, or bearing testimony against error in doctrine, or immorality in practice, in any church, presbytery, or synod ; of erecting new synods when it may be judged necessary; of superintend- ing the concerns of the whole church ; of corresponding with foreign churches, on such terms as may be agreed upon by the Assembly and the corresponding body ; of suppressing schismatical contentions and disputations ; and, in general, of recom- mending and attempting reformation of manners, and the promotion of charity, truth, and holiness, through all the churches under their care. VI. Before any overtures or regulations proposed by the Assembly to be esta- lished as constitutional rules, shall be obligatory on the churches, it shall be neces- sary to transmit them to all the presbyteries, and to receive the returns of at least a majority of them, in writing, approving thereof. VII. The General Assembly shall meet at least once in every year. On the day appointed for that purpose, the moderator of the last Assembly, if present, or in case of his absence, some other minister, shall open the meeting with a sermon, and preside until a new moderator be chosen. No commissioner shall have a right to deliberate or vote in the Assembly, until his name shall liave been enrolled by the clerk, and his commission examined and filed among the papers of the As- sembly. Pp. 366-8. CHAPTER XIII. — Of Electing and Oedaining Ruling Eldeus and Deacons. n. Eveiy congregation shall elect persons to the office of ruling elder, and to the office of deacon, or either of them, in the mode most approved and in use in that congregation. But in all cases the persons elected must be male members in full communion in the ciiurch in which tliey are to exercise their office. III. When any person shall have been elected to either of these offices, and shall have declared his willingness to accept tliereof, he shall be set apart in the follow- ing manner: IV. After sermon, the minister shall state, in a concise manner, the warrant and 262 nature of the office of ruling elder or deacon, together with the character proper to be sustained, and the duties to be fulfilled by the officer elect: having done this, he shall propose to the candidate, in the presence of the congregation, the follow- ing questions, viz : 1. Do you believe the Scriptures of the Old and New Testaments to be the word of God, the only infallible rule of faith and practice? 2. Do you sincerely receive and adopt the confession of faith of this church, as containing the system of doctrine taught in the Holy Scriptures? 3. Do you approve of the government and discipline of the Presbyterian Church in these United States? 4. Do you accept the office of ruling elder (or deacon, as the case may be,) in this congregation, and promise faithfully to perform all the duties thereof? 5. Do you promise to study the peace, unity and purity of the Church? * * * VI. The offices of ruling elder and deacon are both perpetual, and cannot be laid aside at pleasure. No person can be divested of either office but by deposition. Yet an elder or deacon may become, by age or infirmity, incapable of performing the duties of his office ^ or he may, though chargeable with neither heresy nor im- morality, become unacceptable, in his official character, to a majority of the con- gregation to which he belongs. In either of these cases, he may, as often happens- with respect to a minister, cease to be an acting elder or deacon. Pp. 386-7. CHAPTER XIX.— Of MerERATOKS. I. It is equally necessary in the judicatories of the church, as in other assem- blies, that there should be a moderator or president ; that the business may be con- ducted with order and despatch. II. The moderator is to be considered as possessing, by delegation from the whole body, all authority necessary for the preservation of order; for convening and adjourning the judicatory; and directing its operations according to the rules of the church. He is to propose to the judicatory every subject of deliberation that comes before them. He may propose what appears to him the most regular and speedy way of bringing any business to issue. He shall prevent the members from interrupting each other; and require them, in speaking, always to address the chair. He shall prevent a speaker from deviating from the subject, and from using personal reflections. He shall silence those who refuse to obey order. He shall prevent members who attempt to leave the j udicatory without leave obtained from him. He shall, at a proper season, when the deliberations are ended, put the ques- tion and call the votes. If the judicatory be equally divided, he shall possess the casting vote. If he be not willing to decide, he shall put the question a second time; and if the judicatory be again equally divided, and he decline to give his vote, the question shall be lost. In all questions he shall give a concise and clear state of the object of the vote; and the vote being taken, shall then declare how the question is decided. And he shall likewise be empowered, on any extraordinary emergency, to convene the judicatory, by his circular letter, before the ordinary time of meeting. III. The moderator of the presbytery shall be chosen from year to year, or at every meeting of the presbytery, as the presbytery may think best. The modera- tor of the synod, and of the General Assembly, shall be chosen at each meeting of those judicatories: and the moderator, or, in case of his absence, another member appointed for the purpose, shall open the next meeting with a sermon, and shall hold the chair till a new moderator be chosen. Minutes o/1826, pages 37-40. The committee to whom was recommitted the report on the propriety of making certain alterations in the existing rules which govern the proceedings of the Gene- ral Assembly, and, if necessary, alterations in the constitution of our Church, re- commended: * * ♦ * 7. That in the Form of Government, chap. xii. sect. 7, the words " publicly read" should be exchanged for the word " examined." In favour of this amendment, the committee stated, that probably much time, which is now occupied by the whole Assembly in having the commissions publicly read, might be saved, and stricter order be observed, by the adoption of rules of the following import: That imme- diately after the opening of the General Assembly and the constituting of the house, a comniittee of commissions be appointed, with instructions; and that the house ad- 263 journ till the usual hour in the afternoon. That the committee of commissions be instructed to examine the commissions, and to report to the Assembly immediately after its opening in the afternoon, on those commissions which are unobjectionable, and on those, if such there be, which are materially incorrect, or that are otherwise objectionable: That those whose commissions are unobjectionable, immediately take their seats as members, and proceed to business; and that the first act be the appointment of a committee of elections, to which shall be referred all the informal, or otherwise objectionable commissions, with instructions to report thereon as soou as practicable. * * * * It was also resolved, that so soon as the alteration proposed in the 7th item above enumerated, shall appear to have been constitutionally adopted by the presbyteries, the following rules of the Assembly shall be in force. [For these rules, see pp. 174-5 of this report.] The respondents' counsel offered the deposition of Rev. Eliphalet Nott, D. D., dated February 20, 1839. The counsel lor the relators objected to portions of the deposition, as relating to nfiatters respect- ing which testimony on their behalf had been peremptorily excluded by the Court, at the instance of the opposite counsel, which decision of the Court had been acquiesced in by the counsel for the relators. The Court read the deposition, and decided that the parts relating to occurrences at the organization were admissible, but that other portions were inadmissible. Mr. Huhhell. — Will your honour please to note an exception to this decision. We withdraw the offer of the part admitted, being unwilling to present that without the other. Minutes of 1827, p. 152. The committee to whom was referred the report of the committee on the returns of the presbyteries in relation to the proposed alterations and amendments of the constitution, that they might report what ought to be done in consequence of the state of these returns, made the following report, viz. That there are connected with the Assembly, eighty-eight presbyteries: forty-five, therefore, are necessary to make any alteration in the constitution of the Church. * * * In relation to No. 7, of the proposed amendments to the Form of Government, it appears that fifty-three presbyteries have voted in favour of the alteration, and thir- teen against it. Wherefore, resolved, that the proposed amendment, viz. That in the Form ol' Government, chap. xii. sect. 7, the words "publicly read," should be exchanged for the word " examined," be, and the same is hereby adopted as a part of the constitution of this church. Minutes of 1829, p. 384. Resolved, That the permanent and stated clerks be, and they hereby are appoint- ed a standing committee of commissions: and that the commissioners to future As- semblies hand their commissions to said committee, in the room in which the As- sembly shall hold its sessions, on the morning of the day on which the Assembly opens, previous to 11 o'clock; and further, that all commissions which may be pre- sented during the sessions of the Assembly, instead of being read in the house, shall be examined by said committee, and reported to the Assembly. Same Minutes, p. 518. The regulations of the Assembly, on the subject of statistical reports, are sub- joined. It is required — 1. That the forms of sessional and presbytcrial reports, sent down in the minutes, be strictly observed. Deviation from these frequently requires the st:ited clerk of the General Assembly to copy the whole report, before it can be sent to the press. 2. That in the sessional report, the pastor or session be required to insert in the column headed ".Missionary Funds," all sums of money collected, or procured to be collected by said pastor or session from the congregation under his and their care for any evangelical mission, whether foreign or domestic; and p.irticularly all sums collected for the Board of Missions under the care of the General Assembly, 264 for the American Home Missionary Society, and for the American Board of Com- missioners for Foreign Missions; that under the caption of " Commissioners' Fund," be returned all moneys collected for defraying the expenses of commissioners to the General Assembly, whether transmitted to the treasurer of the trustees of the General Assembly, or paid by the presbytery itself to its own commissioners; that under the head of " Theological Seminary Funds," be stated all funds collected for any theological seminarv under the care of the General Assembly, or under the care of any synod belonging to said Assembly; and that under the caption of " Education Funds," be returned all funds collected for promoting the charitable and religious education of persons in Sabbath schools; and especially all money collected for the education of poor and pious youth, in academies, colleges, or theological semina- ries, with a view to their becoming ministers of the gospel. Rev. Henry A. Boardman, re-called by defendants, said: I have heard the testimony of the witnesses this morning, in regard to the noise made by the Old School party. Their statements are alto- gether counter to my own recollection, and, as to myself, are en- tirely unfounded. To the best of my recollection, there was no stamping or scraping with the feet in my neighbourhood, or any other indecorous conduct. There may have been one or two calls to order, but the calls came chiefly from the moderator, and those in his vicinity. I heard nothing of the remarks of Mr. Gemmill, that this was prettv conduct for ministers of the gospel. Rev. Wm. W. Phillips, re-c&Wed by defendants, said: Mr. Board- man sat in the same pew with me, or one adjoining. I ain certam that he made no noise, and there was certainly nothing unbecommg in his manner. I recollect no scraping or stamping in our vicinity. There were calls to order, in which I joined. I recollect at some time during the proceedings of the New School party, I think it was when they were leaving the church, Mr. Boardman remarked to me, " How true it is, that whom God has determined to destroy, he first makes mad." I think he did not use the Latin words. Hon. Walter Lowrie, re-called bv the respondents, said : I did not observe the position of Mr. Boardman, at all. From his account of it I think I must have been in the pew adjoining his. I sat next the door of the pew. I heard no coughing in my neighbour- hood, no legislative coughing. There was no indecorum m my neighbourhood that I perceived, and no calls, excepting calls to order. , ^ , t • i Hugh Auckincloss, Esq., re-called by defendnnts. I neither saw nor heard any stamping, scraping or rubbing in that vicinity. All in that part of the house behaved with perfect propriety. Rev. John M. Krehs, re-called by defendants, at his own request, said : I omitted one point in giving my testimony. Dr. Mason has stated, that he heard the name of John Boynton from my lips, and was surprised at it, as he was not present. No commission with his name upon it was handed to me. It was not on my roll, and I never uttered it. In regard to Mr. Joshua Moore, I wish also to explain in my tes- timony.° I said, that the minute was inaccurate in regard to^the period when he presented his commission, and was enrolled. The fact in this case is, that an interval of some time occurred between the time of his first appearing in the Assembly and his actual pre- sentation of his commission. The testimony here closed, and the court adjourned. 265 Saturday, March IGtfi. The testimony on both sides having closed on the previous day, the Court announced at the opening this morning, that the case was ready for the arguments of counsel, if they wished to address the jury. According to previous arrangement among the counsel, Mr. Meredith was to open, and Mr. Wood to close for the relators; and Mr. Preston to open, and Mr. IngersoU to close for the respond- ents. The respective argunients are here subjoined. ARGUMENT OF WILLIAM M. MEREDITH, ESQ. Commenced Saturday Morning, March 16th, and closed Monday, March 18th. May it please your Honour, — Gentlemen of the Jury: This is an ac- tion brought in the name of the Commonwealth of Pennsylvania, at the relation of James Todd and others, against the respondents Ashbel Green and others, to try the titles of the respective par- ties. It is on many accounts important that you should obtain a correct understanding of the case in order that you may render a righteous decision. This decision you are bound to render, and I have no doubt will be disposed to do so. In arriving at your conclusions in this case, you are to be guided by the principles of common law and common sense. So clearly have the great principles of the common law been defined by the ablest jurists, that there will be little difficulty in exhibiting them to the satisfaction of the jury. I shall, I can assure you, make no points of law in relation to this case, but such as are absolutely necessary to a correct under- standing of the principles involved in it. The law, gentlemen, is perfectly clear in regard to the questions which you are to deter- mine. But on this subject it is the prerogative of the court to inform you. The controversy in relation to which you are to de- cide, is one which excites unusual interest in the community. The high character and standing of the parties to this suit invest it with an interest of no ordinary character. The fact that it involves questions connected with the religious rights, interests and feelings of a large denomination of Christians, naturally and necessarily increases the interest felt among the people on the subject. The intensity of the interest in this case, has been manifested by the large number of respectable and intelligent men, who have filled the room from day to day, for nearly two weeks, during the deve- lopment of the evidence. I could wish that such cases as this, involving controversy among religionists were less frequent than they are. Many such have oc- curred and doubtless others will occur, which will have to be de- cided by our courts of justice. This must be expected while the professors and ministers of religion are so imperfectly imbued with the spirit of the Saviour, and among them are found men obstinately bent on carrying out their own determinations, sacrificing in their accomplishment that charity, which is the glory of their religion. I wish you, however, while engaged in the consideration of this case, to recollect that this suit has been occasioned by the violence 23 266 of a party, which has unjustly accused the relators of having, by usurpation, attempted the exercise of a control in the church to which they are not entitled. The acts of excision, of which you have heard, during the development of the testimony, were the primary cause which led to the institution of this suit. Those acts of the party in the church, I need hardly tell you are unjust, oppressive and tyrannical. That you may understand the position of the relators in this case, I must remind you, and this I wish you not to forget, that we are not the party which undertakes to sit in judgment on our brethren and condemn without a trial. We are not the party claiming to be Presbyterians to the exclusion of others asserting the same claim. Those whom I here represent are Presbyterians, and claim to be such, but they do not deny that others are also Presbyterians. We set up no claim to possess ex- clusively the keys of the church. We are not the party, which at- tempts the confiscation of the property of another portion of the church, and claims for itself the exclusive enjoyment of the whole. But we desire to enjoy our rights, to stand as we have heretofore stood, on equality with those who have attempted to exercise an usurped arbitrary power over us. To the disgrace of Christians, a party has arisen in the Presbyterian Church, which has under- taken to exclude their brethren, without citation, without trial, and consequently, without conviction of heresy or any crime whatever. The question in regard to property, large as is the amount in- volved, is one to us of comparatively little consequence. I would not have made the allusion which I have to that subject, but to dis- abuse your minds of the prejudice which it has been unjustly at- tempted to excite against us. In the progress of the spirit of perse- cution and misrule, which in 1837 was consummated by the sun- dering of the Presbyterian Church, there has been much crimination and recrimination, with the rehearsal of which, however, I will not detain you. Of these odious measures, the acts of excision, as they have been called, I have no doubt that our friends on the other side are, by this time, heartily ashamed. Gentlemen, I do not ask of you a verdict in our favour unless you are fully satisfied that our rights have been trampled on, and that the property of the church has been unjustly siezed by the ruthless violence of a party. . The attempt has been made to persuade you, in the opening of the opposite counsel and by testimony which he at- tempted to introduce, that on the subject of property, the excinding party were willing to do justly and even liberally by us; that they were willing to divide equally with us. That you may understand their position in this respect, it is proper that your attention should be turned to the propositions made on that subject at the meeting of the General Assembly of 1837. The minutes of that Assembly contain a correspondence, which has been given in evidence, be- tween the two portions of the celebrated committee of ten, a com- mittee appointed on the motion of the leader of the Old School party, the Rev. Robert J. Breckinridge, of Baltimore, for the pur- pose of efl^ecting an amicable division of the Presbyterian Church. The correspondence alluded to, exhibits tl c propositions of the de- 267 - fendants in this case for a division of the church. It shows that they proposed, that the theological seminaries and other public property of the church, should be retained by the Old School party. True, they were willing that if any portion of the property could consistently with the will of the donors be given to any who were not Presbyterians, which name they denied to us, such portion they would equally divide with the New School. In other words, they would consent to our having a small fragment of that which was already in our possession, and to which our right was equally in- contestible with theirs. Coupled with this, was their proposition, claiming to retain to themselves exclusively and denying entirely to us, the succession of the Presbyterian Church. On such terms, and such only, would they consent to the amicable division, which themselves proposed. This circumstance alone, is sufficient to stamp with opprobrium their whole proceedings in this business. Their propositions in relation to the church property, and to the succession, were couched in language calculated to deceive the unwary; but the necessary consequence of acceding to these pro- positions, as you, gentlemen, will readily perceive, would have been at once to make us seceders from the church of our fathers, and voluntarily to exclude ourselves from all claim to the property of that church. About the property itself we care little. We would cheerfully relinquish all participation in its benefits, were that the only subject involved in the controversy. But we will not consent without a struggle to be unjustly branded as heretics, or seceders from the church to whose constitution and principles we claim to adhere, at least as closely as those who seek to exclude us. Extra- ordinary as it may seem, after what has been attempted to be shown on the other side, the proposition for a division of the church came from the Old School party. The proposition for a committee for this purpose came from them. They proposed the terms, as I have shown you, on which such a division might be made. But this is not all. They determined on effecting the division at all hazards. If they could not peaceably compass their object, they would do it by violence. Accordingly, as soon as it was ascertained that we would not truckle to their proposals for a separation, they introduced and urged to their accomplishment, the unlawful mea- sures for an expulsion. On an allegation, claiming to be founded only on mere rumour, they declared out of the pale of the church the Synods of the Western Reserve, Utica, Geneva, and Genessee. Thus without a trial, or a shadow of trial, was cut off from the Presbyterian Church, so large a portion of the members obnoxious to this party, as to secure, in their judgment, the perpetual prepon- derance of their power. We come into this court then, gentlemen, for a trial, because it has been denied us elsewhere. We have been driven here by the injustice, not of the Presbyterian Church, but of a party who have claimed to rule that church with a rod of iron; and who have endeavoured, without the appearance of law or right, to lay on us "heavy burdens which neither we nor our fathers were able to bear." I am thankful, and I congratulate the Court and jury, that we have not to wade through the mazes of theologi- 2H8 cal dispute; we have happily no points of doctrine or of faith to settle in this controversy. The matters in dispute, and on which you are to decide, are simply matters of law and of fact. The question at issue is, Are the respondents in this case entitled to hold the office of Trustees of the General Assembly of the Presbyterian Church in the United States of America 1 The general issue in this case is what you are to try. This issue is, Who are the Trustees of the General Assembly, according to the tenor of the act of in- corporation, passed by the Legislature, Marcii 28, 1799? The re- lators in this case claim to be legal trustees. There is no dispute that they were elected to this office by the body claiming to be the General Assembly of the Presbyterian Church, which held its ses- sions in May, 1838, in the First Presbyterian Church in this city. The secondary issue, therefore, comes directly under your con- sideration. This is, whether that body which elected these relators, was truly the General Assembly of the Presbyterian Church. If you are satisfied of this fact, it will of course be your duty to ren- der a verdict for the relators. The kind of incorporation granted by the legislature to the General Assembly, is one of frequent occurrence here and elsewhere. Some explanation of its character, however, may be necessary. The trustees of the General Assembly are the legal corporation ; but by the act of incorporation itself, they are under the control of a body not incorporated, and subject to be removed by that body, which is also authorized to appoint others in their stead. The body to whose control they are thus subjected becomes therefore what is termed the body at large of the corpora- tion, or body of electors; and in this capacity, the General Assem- bly of the Presbyterian Church is recognized in the charter of incorporation, giving to it the power to control the real corpora- tion. In this investigation, while you are happily relieved from the consideration of those spiritual matters, those doctrinal points and theological niceties, which belong to the courts of the church, it will nevertheless be necessary to examine the constitution, or form of government of the Presbyterian Church, which is in some re- spects different from most others. This form of government em- braces a succession of judicatories, as they are technically called, and bears a striking resemblance to the republican form of our civil government. By the constitution of this church, no member can be expelled without citation and trial, first before the inferior court which has cognizance of the case, and from this he has the privi- lege of appeal to the higher judicatories, from the church session to the presbytery, from the presbytery to the synod, and from the synod to the General Assembly. These judicatories, or courts of justice, as they may be called, have each their appropriate func- tions. The church session, composed of the pastor and ruling elders of a particular congregation, is the lowest court, and has charge of the discipline, according to the form of government, of the private members of that congregation or church. The next higher court, or judicatory of the church, is the presbytery, which is composed of all the ministers, (being at least three,) and as many ruling elders, as there are congregations, within a certain district. 269 The ministers sit in presbytery, not by delegation, but of their own right, by virtue of their ordination. The ruHng elders have their seats in presbytery as representatives of the congregations, each of which is entitled to be represented by one elder. The jury will bear particularly in mind this fact in relation to the ministers. The next higher court is the synod, which is composed in all respects like the presbytery, only extending over a larger district, and em- bracing, in fact, several presbyteries, at least three. In the language of the constitution, the synod is appropriately declared to be only a larger presbytery. The next and highest judicatory of this church is the General Assembly. This body is constituted by representa- tion from the presbyteries, without any reference to the synods. Each presbytery, by the terms of the constitution, has a right to be represented in the General Assembly by a certain number of mem- bers, according to a settled ratio, as the counties of this state are represented in the legislature, or the congressional districts in the Congress of the United States. This point you will see clearly established by those portions of the constitution which have been submitted to you in evidence. This point will claim the especial attention of the jury, that the General Assembly is composed exclu- sively of commissioners, who are the representatives of the presby- teries; and that each presbytery is entitled to its full proportionate representation in that body. The only question, in regard to the right of an individual to a seat in the General Assembly, is, whether he is a representative duly commissioned by a presbytery in con- nexion with the General Assembly. If then certain officers entrust- ed with the business of examining the credentials of members, or appointed to other duties connected with the organization of the Assembly, should assume the power of excluding representatives from the presbyteries duly commissioned, they would commit a high outrage upon the rights of those presbyteries ; and the ulti- mate exclusion of such commissioners, regularly appointed and presenting credentials, would necessarily vitiate such organization of the Assembly. But this suggestion is only by the way, and will hereafter claim a more careful consideration. It seemed necessary, thus briefly to review the structure of the judicatories of this church, that you might be in possession of the whole case; although, properly, the highest court, the General Assembly, is the only one with which we have to do. This body, as you see by the constitution, represents the whole church. It is the highest court of appeals, and within the limits prescribed by the constitution, has a general supervisory power over the concerns of the whole church. But within those limits it must keep itself, or, if in exceeding them, it violates the rights of any portion of the church, it of course subjects itself to the moral reprobation of the community; and, if such violation of rights involve the corporate privileges of any portion of its legiti- mate members or constituency, it necessarily subjects itself to the supervision of the courts erected by the state to adjudicate on vio- lations of the laws of the land, and on questions involving the cor- porate rights of individuals and communities or associations of 23* 270 individuals. A few words now may be necessary in regard to' the manner in which the General Assembly is constituted, and the spe- cific powers and duties of its officers and of the body itself. As to the first, it has been already sufficiently shown from the constitu- tion that the Assembly is constituted by delegation from the pres- byteries, each of which is entitled to its appropriate representation. This you will bear in mind throughout the whole of your investiga- tions, or you must necessarily fail of appreciating the real merits of the case committed to you. Its powers also are clearly defined in the portions of the constitution which have been read in evidence. You can hardly fail to observe that among them is not to be found the power of instituting original process against any portion of the church, and consummating that process in the exclusion of such portion from membership, or from being a constituent part of the church. As a supreme court of judicature it may consummate, ac- cording to the principles laid down in the constitution, all proceed- ings of adjudication "which are regularly brought before it," by appeal, complaint or reference from the inferior courts; and, in certain cases, on a review of proceedings in those courts it may censure them for what it deems irregular or wrong in their pro- ceedings. It may also, when the good of the church, in their judgment requires it, divide certain of those inferior judicatories, distributing their component parts among other judicatories. But nowhere can you find a shadow of foundation for the exercise of an original authority and jurisdiction by the General Assembly, consummated by itself, in the exclusion from the body of the church of either an individual member, or an inferior judicatory belonging to that church. This, I apprehend, you must see to be as plainly the fact as it is that the church has a constitution. But if the power of expulsion, in any form, were even conceded to be in the General Assembly, which we by no means admit, and which, probably, no Presbyterian, till 1837, ever dreamed of claim- ing, yet if it were even possessed by the Assembly, it must surely be exercised in accordance with the same principles which govern the proceedings in the courts below, the only principles on which tlie constitution of that church allows any man or body of men to be expelled from its connexion. It may therefore be desirable on this as well as on other accounts, that your attention should be directed to those principles, as they have been read to you and will be placed in your hands as evi- dence in this case. They are developed in the " Book of Disci- pline," as it is called, and are an admirable system, in perfect accordance not only with the principles of holy charity inculcated in the scriptures, but with the system of civil jurisprudence esta- blished under our republican government, and with those immutable principles of justice, which, while they demand the punishment of the guilty, throw around the accused the guards of innocence until he is proved to be guilty. They esiohWsh forms of process, clear and intelligible in their character, by which his trial shall proceed, and the proof of his guilt be elicited and established before he is con demned. They also prescribe the form and measure of punishment 271 for the several grades of offence, and the manner in which it shall be inflicted, when, after a fair and impartial trial, the guilt of the ac- cused is established by incontrovertible proof. You will also observe, gentlemen, that by the provisions of this book, process against either ruling elders or private members, (60,000 of whom were extirpated from the church by the acts of 1837, if those acts are of any valid force at all,) the discipline, I say, of these classes of members, is entrusted with the church session, and not one of them can be constitutionally reached by the General As- sembly, by any penal or disciplinary act, unless he comes before that body through a regular series of removals by appeal or other- wise, from the session to the presbytery, and so on up to the General Assembly. So also "process against ministers must commence in the presbytery to which they belong," to whom the discipline of this class of members is entrusted, and their case can only come be- fore the Assembly by a prescribed process of removals from the lower courts. Thus far in relation to process. Now, in relation to the offences imputed to the district of the church cut off by the acts of 1837, and on the ground of which that excision is attempted to be justified. I say the district of the church, for to no one of the sixty thousand and more individuals, ministers, elders, or communicants, thus unceremoniously ejected, is any offence imputed. But what are the offences in question. If they have a name in the book, they are " heresy and schism." " Gross disorders in doctrine and practice," say the excinding acts. Well, the church has provided in its constitution for the punishment of "heresy and schism." If a member, or a minister is a heretic, be- cause, for instance, he does not believe in the divine appointment of ruling elders, for that seems to be the greatest possible heresy, in the estimation of the Old School party, he may be tried by his ses- sion or his presbytery, and if it should so happen that their courts should be so heretical as not to consider the oflence a damnable heresy, and therefore not cut him off, the prosecutor can carry the case up in regular form to the General Assembly. But when an accidental majority in the General Assembly, or any other majority, large or small, take it into their head that " individual process is dif- ficult and tedious," and avowedly on this ground conclude to leap the barriers of the constitution, and at a stroke cut off churches, presbyteries and synods, it is no answer to those thus excinded, to say smooth things to them, to say as one of my learned friends did, in his opening for the other side, and as another has done (Mr. Preston,) on an incidental question, " Why really we don't accuse you of any oflence, we only say that you are heretical, and we use that word only in a technical sense ; you may be very good men, we have no evidence against you. When we thus declare that you are not Presbyterians and cut you ofl' entirely from the com- munion of the church, we do not impeach your moral character. We do not accuse you of any crime. We only put you on a level with the Episcopalians, the Roman Catholics, the Baptists, the Methodists, the Quakers, the Unitarians, the Jews, the Moham- medans and the Congregationalists, who mav be good men. But 272 they are not Presbyterians and neither are you. It would be in- decorous in us to say any thing derogatory to your character as men and citizens. Christian charity will not permit us to assail your characters. All we say, is, that you are apostates and here- tics. We have supported and sustained you when you were weak, and now you are guilty of parricide and sacrilegiously endeavouring to destroy your parent." Why these are very pliant gentlemen — eminently endowed with christian charity to be sure. Who can possibly doubt it, and that they have exercised it towards their brethren in the most ex- traordinary manner. In their most wonderful exercise of charity, they in effect say, " We do not accuse you of being drunkards, nor of having kept a disorderly house, the resort of drunkards. We do not accuse you of any immorality or profanity. We only say you are not Presbyterians. We mean nothing personal. We only mean it in the parliamentary sense. We do not say that you are bad men, that you are drunkards, liars, or guilty of certain other nameless crimes. But if you had been guilty of these offences, in the exercise of our sovereign volition and christian charity, we could have dispensed with all measures of excision." It was not necessary for them to say that any one of those who was thus cut off from church fellowship was a bad man. They merely say to them, " You are guilty of heresy." It is vain to say that that is no offence, no crime, when you visit it with the highest punishment of crime, known to this or any other church in our land. Heresy does constitute an offence against the church, a violation of her constitution and discipline. And every member who promul- gates heretical opinions is subject to trial and expulsion from the church. But this trial and expulsion must be in accordance with her constitution and established rules of discipline, as has been clearlv shown to you. It was necessary so far to examine this subject, in order to understand the new mode of punishing offences invented by the General Assembly of 1837. It is too serious a subject for amusement, or it would be ludicrous in the extreme, to observe the preposterous results to which this new mode of punish- in"- heresy in the infected district, has led the parly which perpe- trated the excluding acts of 1837 ; to see, for example, hundreds of individuals, ministers and laymen belonging to the Presbyterian church, who had been in fellowship and in good standing for a period of forty years, and who had contributed liberally to the funds of tlie church during that time, cut off from the church of their fathers, not only without citation and without trial, but also without the commission of any oflence or even the allegation of any offence on their part, but on the ground of a mere rumour, that some body, in the same district of the church, was guilty of offences. I am sorry, gentlemen, that it is necessary to the issue in this case to exhibit these strange proceedings of the Assembly of 1837, and to spread before you their arbitrary character and the injus- tice of their operation. But the necessity is imposed on me, be- cause, as has been fully proved to you, they were made the basis of an attempt in 1838 to organize an illegal and unconstitutional 273 Assembly, by the party which perpetrated these acts. To secure this organization in 1838, excluding the representatives of the pres- byteries within the obnoxious synods, the party in 1837 exacted of their officers a pledge, that in performing their functions connected with that organization, they would regard, not the constitution of the church, but the will of the majority in 1837. We may, perhaps, as well at this time as any other, advert to the powers and duties of those officers. The officers of the Gene- ral Assembly are a moderator to preside over its deliberations, and clerks to perform certain duties appropriate to their office, such as the preparation and preservation of the records of the Assembly, the reading of documents under consideration in the body, and the preparation of such as are to.be sent abroad after they have been adopted by the Assembly. In addition to these natural and appro- priate duties of their office, the moderator of the Assembly for one year, is authorized by the constitution to preside in the incipient measures for organizing the Assembly of the succeeding year. The terms of the constitution on this subject are, that the moderator of the previous year, " or some other minister, shall preside until a new moderator be chosen." By certain rules which have been gene- rally observed in the Assembly for a number of years, in case of the absence of the last moderator, his place is supplied by " the last moderator present;" though this rule, as it is not of imperative obligation, has not always been observed. By a regulation of the Assembly, there has also been devolved on the clerks a specific duty connected with the organization of the Assembly. This duty is to examine the commissions of the delegates from the several pres- byteries, to report to the house such as they find to be regular, that the delegates whose credentials they are may take their seats as members of the Assembly ; also to report to the house such com- missions as they find irregular or informal, that they may be sub- mitted to a committee of elections, for their decision respecting the right to a seat in the Assembly, of the members who bring those commissions. For this specific duty the clerks are styled a Com- mittee of Commissions. They are, however, the officers of the house, and by the terms of the constitution itself, they need not be members of the Assembly, and are liable to be removed at the pleasure of the house, either with or without a cause assigned. Such being the prescribed duties of the moderator and the clerks, and their respective relations to the body, it will be obvious to you, gentlemen, that they must have one rule, and only one, to regulate their actions in organizing the Assembly. That rule is the consti- tution of the church. Their first and only duty in this whole trans- action, is to see that all applicants for a seat, constitutionally enti- tled thereto, and none others, be admitted to the Assembly. I now come to a fact, gentlemen, to be found by you, namely, that for a series of years, certain presbyteries and synods have been in connexion with the General Assembly of the Presbyterian Church. By the testimony it has been shown to you that these bodies were constitutionally organized and connected with the As- sembly in the same manner w^th other judicatories of the church. 274 Twenty-three of these presbyteries were thus organized and con- nected with the General Assembly previous to the year 1821, and therefore, as has also been shown to you, participated in the adop- tion, in that year, of the present constitution of the church. From 1802 to 1837, according to their age respectivel3% these several presbyteries were in every appropriate form recognized by the General Assembly, and shown, by their records, to be constituent portions of the Presbyterian Church. Now, what is to establish the right of any presbytery to be re- presented in the General Assembly? Take, for example, the Pres- bytery of Brunswick, in the Synod of New Jersey. When its commissioners present themselves to the clerks of the Assembly, and demand to be enrolled as members, how are these clerks to decide whether they shall be admitted'? The first question is. Are their commissions regular? Do they show in an authentic form that these individuals, ministers and elders, were appointed by the Presbytery of Brunswick to represent them in the Assembly ? Does it appear by the records, or is it in any form within the knowledge of the clerks, that that presbytery was organized by the constitu- tional authority, or has been for a series of years recognized by the Assembly as a constituent portion of the Presbyterian Church? These questions being answered in the affirmative, dare these clerks refuse to enrol their names? Or if any defect appears in their credentials, can they, without a violation of their trust, do otherwise than report them to the house ? Again, when opportu- nity is afforded for the house satisfactorily to ascertain that these men were duly appointed by the Presbytery of New Brunswick to represent that body in the Assembly, dare the Assembly do other- wise than admit them as members? Could the Assembly do other- wise without sacrificing its own integjrily? Would not such refusal be, not only an outrage on the rights of these commissioners and the rights of their presbytery, but would it not also, according to the constitution of the church, authorize any fourteen or more of the members present to organize the General Assembly, admitting the commissioners from the Presbytery of Brunswick and from all other presbyteries of the church? What would you think, gentlemen of the jury, if the Congress of the United States should declare the Slate of Pennsylvania no longer a part of the confederacy, thrust our representatives from their halls, and, at the succeeding session, refuse to admit the dele- gation of this commonwealth, on the jj;round, forsooth, that the pre- vious Congress had declared Pennsylvania out of the Union? Will any man of common sense pretend that Congress has such power as this? Or, suppose that the legislature of this commonwealth should declare one of the counties no longer a part of the state, and on this ground refuse its representatives a seat, or that our city council should treat in a similar manner one of the wards of the city, would such arbitrary assumptions be tolerated by the people? Would they any where find an advocate in our land? Would any court, possessing competent jurisdiction, justify the measure? In these supposed cases, gentlemen, which, indeed, are hardly supposa- i 375 ble, you have, with one exception, a fair illustration of the cause which has driven my clients into this court. The exception is, that the General Assembly had, if possible, less a shadow of claim to the exercise of the prerogatives which it asserted in relation to the synods and presbyteries in question, than have the national and state legislatures and our city council to the exercise of such a power. What would be the consequence if the Senate and House of Representatives in Congress, should undertake to disfranchise one or more of the states of this Union, by resolving that they are no longer a portion of the confederacy? Would such an act be re- garded otherwise than an arbitrary assumption of power, and ut- terly null and void? Would not such assumption of unauthorized power, if carried out, overturn all our civil and religious institu- tions, and wholly subvert the constitutions of our governments? And might not the dominant party in Congress undertake to exclude the state of Pennsylvania, or any other state in this Union, from a representation in the counsels of the nation, with as much propriety and justice as characterized the dominant party in the General Assembly of the Presbyterian Church, when it resolved that the Synods of Utica, Geneva, Genessee, and the Western Reserve, and their presbyteries, were no longer in connexion with that body, or when, in 1838, they undertook to exclude the representation from those presbyteries ? Such an assumption on the part of the majority in Congress, would be analogous to that of the accidental majority in the General Assembly. To what would such high-handed as- sumptions lead, but to the utter subversion of all law, all order, and all right? If suffered to be carried into effect by a church judica- tory, they must lead to the entire destruction of the constitution, and the establishment of an odious ecclesiastical tyranny. The General Assembly of the Presbyterian Church is a limited organized body, and is constituted of representatives elected by the several presbyteries. It therefore has no power to exclude any of these representatives from a seat in the body; and the attempt to do so was an utter violation of law, order, and the constitution. As a lawyer, I deny that the General Assembly could be legally consti- tuted, unless every legally elected commissioner from the several presbyteries were permitted to take his seat. All the representa- tives legally chosen, have a right to take their seats in the first in- stance, and participate in the organization of the house, by the election of a speaker or moderator, and the other officers. A party in the General Assembly of the Presbyterian Church, be that party the majority or minority, has no right whatever to reject or exclude any delegate duly elected by the presbytery to which he belongs. In either case then, (whether in the Congress of the United States, or in the General Assembly of the Presbyterian Church) an arbitrary attempt to exclude or reject a representative, would be grossly illegal. A party which may by accident happen to be the majority, nay even the whole body collectively, has no legal right to deprive any representative duly elected by those who possess the constitutional right to elect him, from taking his seat, and participating in the organization of that body. Such a pro- 376 ceeding is a gross infraction of right, an unwarrantable and dan- gerous assumption of power, and in the case of the Presbyterian Church it is a direct violation of the constitution, which expressly declares, that " the General Assembly shall consist of a delegation from each presbytery." A presbytery may fail of a delegation by its own neglect to appoint, or by the failure of its delegates to at- tend, but if the appointment is made, and the delegate in attendance, he clearly cannot be excluded without a violation of the constitu- tion and of corporate rights. The jury will then remember, that for seventeen years, before 1821, when the present constitution of the church was adopted by those very presbyteries, as well as others, and from that time to 1837, you will remember that the presbyteries, whose commissioners were excluded from the Assembly of that year, and were refused seats in the Assembly of 1838, were admitted to have the same right as any other presbyteries, to a representation in the General As- sembly. They could then show as clear a title to be thus repre- sented, as the state of Rhode Island or that of South Carolina could show to a representation in the Congress of the United States. They were, and were admitted to be, as much a part of the Pres- byterian Church, as those states are part of the American Union. Gentlemen, you cannot fail to see — what indeed our opponents well know, and for that reason have sedulously endeavoured to avoid an examination of that subject — you cannot fail to see that the General Assembly of 1837 had no shadow of right to object to an equal participation with themselves, by the commissioners from these presbyteries, in the business of that body, much less to declare their connexion with the General Assembly of the Presbyterian Church totally and for ever dissolved. You will bear in mind, as lias been proved to you, that the alterations in the constitution and form of church government in 1821, were approved by the votes of these presbyteries. Not only were they received and acknowledged as brethren, as fellow-labourers in the church, but, as appears by examining the votes, the record of which has been read to you, the amended constitution would have been defeated, had it not been for the votes of those very presbyteries. On those very votes turned the adoption of that constitution. No man in his senses can doubt that these twenty-eight presbyteries were as fully entitled to a represen- tation in the "General Assembly," as the "old presbyteries" were; and as well might the representation from the old thirteen states of this Union undertake to exclude the representatives from Kentucky, Ohio, Illinois, or Michigan, from a seat in Congress, as for the rep- resentation from the older presbyteries to attempt the exclusion of the members from the new presbyteries. The two cases are paral- lel. In both, the old and the new have an equal right, and stand on equal ground. In both cases, the rights of the new constituencies have been fully recognized, and the old have acted with them as equal parts of the whole body. The human imagination cannot conceive any right whatever that these twenty-eight presbyteries did not possess in common with the other presbyteries, any right that 277 their representatives did not possess in common with the represen- tatives iVom the otiier presbyteries. How, then, it may be asked, could the party which had the pre- dominance in the Assembly of 1837, perpetrate the acts of excision, cutting off at a single stroke these large portions of the church, and refusing, at the organization of the Assembly of 1838, to admit their constitutional representation in that body? Why, it appears that there were some things, in the portions of the church thus excinded, which the party in question disliked, as there are some things in the politics of Rhode Island and of South Carolina which are otfensive to certain parties in the national Congress. This is substantially the amount of the explanation which can be given of these singular transactions. It was alleged that certain irregularities in doctrine and discipline existed in these portions of the church. The party, finding the power in their hands, by the majority which they pos- sessed in 1837, determined in some way to get rid of what was so offensive to them. Accordingly, they came to us with the very modest proposition, not, in the first place, that South Carolina and Rhode Island should be declared out of the confederacy, but that we should concur with them in peaceably dissolving the Union, or dividing the church: that, in substance, what they termed the New School party, which was understood to sympathize with the mem- bers in the obnoxious district, and many of them to reside there, should peaceably withdraw from the church, and organize a new body, leaving to the Old School the possession of the seminaries and funds of the church, except that they would equally divide with us such portion of the property, which had been given to the Presby- terian Churck for its exclusive use, as the will of the donors would permit to be given to some other church or body of men. When they found us not prepared to accede to these terms, to desert the church of our fathers, and leave in their hands exclusively the inhe- ritance both of its funds and its name, they resolved, not that South Carolina and Rhode Island, but that western New York and the northern part of Ohio, were no longer any part of the Union : in other words, that the Synods of Utica, Geneva, Genessee, and the Western Reserve, with all their constituent parts, presbyteries, churches, and communicants, were no longer any part of the Pres- byterian Church. Indeed, it is obvious that the party which assumed to exercise this power in 1837, and that in the most summary manner, without process, without trial, and without evidence, and to the broad extent of cutting off, at one fell swoop, four synods, twenty-eight presby- teries, five hundred ministers, five hundred and ninety-nine churches, and sixty thousand communicants, that this party, I say, did not sup- pose themselves to be warranted by the constitution in any such exercise of power, such a stretch of arbitrary sway as this. We were not permitted to go into that matter in the evidence, and there- fore the positive testimony is not before you. You will, however, see by the constitution itself, with which you are bound to suppose them to be acquainted, you will see by necessary implication from their knowledge of the provisions of that instrument, what we 24 278 wished to show you by positive testimony, that, regarding the exi- gences of their cause to require it, that party deemed it meet to ride over and trample in the dust the provisions of that instrument. They, no doubt, in the zeal which inspired them, deemed it right to do, what you, gentlemen, and the good sense of all the dispassionate and disinterested community, will tell them was wrong, a grievous wrong; to trample on the principles of what they had ever before professed to regard as the sacred provisions of a glorious constitu- tion, by exercising a power which did not belong to them as the General Assembly, and to exercise it in a manner which no body had a right to do. No judicatory of their church could do it ac- cording to their constitution, and no other body of men in ecclesi- astical or civil organizations could do it, in accordance with any principles of law or right known among men. You will see addi- tional evidence of this in what, had it proceeded from any other than a body of religious men, you would not hesitate to pronounce the lame sophistry and flimsy evasions of the answers which they adopted, to the manly protests which were promptly presented against the acts of their high-handed usurpation. From the same documents you will also be likely to gather the conviction of what, also, we are precluded by a rule of the court (to which, however, we cordially submit,) from showing you by positive testimony, namely, that the party in question felt compelled to perpetrate these acts, which, how^ever honestly intended by them " for the good of the church," we cannot but regard as acts of most out- rageous injustice, to perpetrate them at that time, to carry them through to their consummation by a very short and unceremonious process indeed, because, in their own estimation, their "time was short," if not then improved ; because the majority by which they were able to accomplish this object, was merely an accidental ma- jority at that meeting, and if they did not improve the opportunity, it might never return to them again. Such, gentlemen, I am per- suaded that you will be obliged to conclude, were the impulses under which they were hurried on to the exercise of an unlawful power, in an unlawful and desperate manner. Now, whether errors in doctrine or discipline did or did not exist in these portions of the church, we have no occasion to admit or deny. We claim, indeed, that neither in orthodoxy or Presby- terian order are we a whit behind them ; but this is a question not to be settled in the civil courts. If the errors imputed did exist, those who were guilty of them were subject to the regular and con- stitutional discipline of the church. Had this discipline been exer- cised, (for we have never, for a moment, refused submission to the regular discipline of the church ; we have always held ourselves subject to its exercise ;) had this discipline been exercised, and, in its regular execution, had those who constitute these portions of the church been excluded from its pale, neither they, nor those who in 1838 espoused their cause, would have found or sought a place here, at the bar of their country's justice. They would never have come to ask at your hands, gentlemen of the jury, a verdict to re- store to them their rights. But, as is clearly in evidence to you. 279 gentlemen, no such opportunity, no such trial was afforded them ; but without trial, process, or citation, or, in relation to the great mass of them, even the pretence of an accusation or imputation of wrong, they were unceremoniously cut off, in the unlawful manner which has been described. But it is claimed that the foundation and justification of these acts is laid in the repeal of a certain Plan of Union, by the abroga- tion of which it is said that these portions of the church necessarily became disconnected with the other portion. In order to under- stand correctly the true relation of this subject, it will be necessary to consider two distinct series of facts which have existed in the history of the Presbyterian Church, and which have been distinctly presented to you in evidence. From the very infancy of this church there has existed a prac- tice of associating with themselves brethren of other denominations, such as they have termed cognate churches ; that is, those who are nearly assimilated in their views of doctrine and important princi- ples of church government. I shall endeavour to lead you to dis- criminate between one class of associations of this character, and another, which it will be, I apprehend, the great object of the other party to confound. The distinction between them, if rightly appre- ciated by the jury, will put an end to the defendants' case. As early as 1792, the records of the Assembly show the patri- archs of the church zealously engaged in forming associations with other denominations. By patriarchs, I mean the real patriarchs, under whose guidance the church was carried safely forward, whose wisdom and sound discretion, as well as piety, were mani- fested in the measures which they proposed and executed. They were for union, and for extending the communion and fellowship of the church; unlike the juvenile ■patiiarchs who seem to have ob- tained the control in these latter days, and whose works are acts of disunion and excision. As early as the year 1792, a plan of union and correspondence was formed with the General Association of Connecticut; in 1794 with the Association of Massachusetts; in 1802, with that of Vermont; in 1808, with that of New Hampshire; and subse- quently with the Dutch Reformed and Associate Reformed churches, and some others. These plans of union became so nu- merous as to require a set of rules to regulate the correspondence which they involved. With at least the four Congregational As- sociations first named, the union formed was so intimate, as to admit the members interchanging the fraternal expressions of fel- lowship and confidence, not only to sit and deliberate, but also to vote in the bodies to which they were sent. Thus the real patri- archs of the church, extended wide the arms of their benevolent regard, and took other denominations into their embrace, for the purpose of extending the Redeemer's kingdom. From year to year, we find them pursuing this course, as late, at least, as 1821. Again, the General Assembly of the Presbyterian Church, proposed to the General Synod of the Associate Reformed church, a union, of a still more intimate character. The Plan of Union which was 280 unanimously adopted in the committee of conference between the two denominations, of which committee, we find that the venerable Dr. Green, the early projector of these plans of union, presided as chairman, was subsequently ratified by the Assembly and the Synod. In pursuance of this arrangement, the General Assembly received this Associate Church, with all its diflerences of sentiment and practice, into its own body. There were difierences in the Confession of Faith, as you have learned from the evidence sub- mitted to you, particularly on the subject of the powers of the civil magistrate, and in the article respecting baptism, differences in the form of government, in the basis of representation, the con- stitution of the General Assembly requiring at least three ministers to constitute a presbytery, entitled to representation in the General Assembly, and that of the Associate Church requiring only two, and to crown the whole, the ministers and elders of the Associate Church, received their confession of faith, only as being "for sub- stance the system of doctrine," taught in the scriptures. It is a singular fact, that this is the very highest offence, in the declared esti- mation of the excluding party of 1837 and 1838, which they ever dreamed of imputing to any, and this but to a portion, of those whom they have thus cut off, for this grievous heresy, and yet some seventeen years ago, they could amalgamate the whole As- sociate Church with their own body, with this, in their present estimation, most odious and abominable feature of deformity crowning all their other divergencies from the true standard of Presbyterian orthodoxy. Yes, this church was thus received, and with the express stipulation too, that they might retain all these distinctive peculiarities, and in addition to them all, retain also, on the principle, so odious at least to the juvenile patriarchate of the church at the present day, on the principle of "elective affinity," I believe is the phrase, retain their separate presbyterial organiza- tions. Now, as if the climax of absurdities and preposterous incon- sistencies of these Old School Presbyterians, as they boast them- selves to be, were to be placed above the reach of mortal appre- hension, the very men who came into the church under these cir- cumstances, under this plan of union, are in the front rank among those who are engaged in the very charitable office of excinding their brethren, who from some supposed and undefined coimexion with another plan of union, commit the grievous sin of preaching, (some of them,) to Congregational churches. These several plans of union have been read in full to the jury, [See pp. 77 to 84, and 156 to 158, of this report,] but in order to a full understanding of the point now submitted to your examination, it may be well for me again to advert to them. Now by the operation of the plans of union of the class which I have been considering, individuals were brought from other denominations, from associations of Con- gregationalists, into the judicatories of the Presbyterian Church, par- ticularly into the General Assembly, and there invested for the time, with all the privileges of members, while they retained in full their relation to their own denomination ; and if members of these Congregational bodies removed into the bounds of the Presbyterian 281 Church, and chose to transfer their relation, these plans of union provided for their being received to an equal standing with those who were ordained in the Presbyterian Church. The union with the Associate Reformed Church went even beyond this, and brought another denomination, not occasionally and individually, but permanently and in mass, into the bosom of the church, as con- stituent members. The very thing, you will remark, was done by these unions, and signally so by that with the Associate or Scotch Church, which was not dune, but which the whole strength of the counsel on the other side is to be employed in endeavouring to make you believe was done, by another plan of union, which it will now shortly be our business to consider, the plan of 1801, which was abrogated by the Assembly of 1837, because, forsooth, it was unconstitutional — and unconstitutional because it brought aliens into the church ! Wonderful precocity of vision which discovered this ! The Plan of Union of 1801 is of an entirely different character from those which we have been considering. It is different in its nature, and was adopted for different purposes. For the same ge- neral object indeed, it was professedly, and doubtless was really designed, namely, the object of advancing the interests of religion. Like the others also, it was proposed originally by the General As- sembly itself. By certain regulations embraced in the other plans, you will recollect, that the ministers of one of the associated bodies, going into the bounds of another, and bearing credentials of his good standing in the body from which he came, was to be received, on the strength of those credentials, under the patronage and into the fellowship of the body into whose bounds he came. Under the operation of one of these plans, you will recollect that a whole de- nomination, the Associate Church, was received, with all its pecu- liarities, by the General Assembly, into the bosom of the Presbyte- rian Church. Not so the Plan of Union of 1801. Your attention is requested to the features of this plan, as I shall now read its pro- visions. (See pp.77 and 78 of this report.) Now, gentlemen, what is this act of Union, or more properly, are these "regulations," for that is the proper title, that of Plan of Union being merely affixed to it by the compiler of the Digest, what are these " regulations, adopted by the General Assembly of the Presbyterian Church and the General Association of Connecticut, with a view to prevent alienation and promote union and harmony in those new settlements which are composed of inhabitants from these bodies?" The very title which I have now repeated, tells you what they are, a plan to promote union and harmony in the new settlements. Not to intro- duce members of a foreign body into the bosom of the Presbyterian Church. The provisions of the plan which have been repeatedly read in your hearing, are in perfect accordance with this title. They provide, that a Presbyterian minister may, in the new and scattered settlements of the country, without loosing his caste as a Presbyterian, or subjecting himself to discipline, preach to a Con- gregational church; nay, they direct him so to do, particularly if he is sent out as a missionary, and finds such a church destitute of the ministrations of the gospel. They provide also, that a Presby- 24* 282 terian congregation may, under similar circumstances, receive the labours of a Congregational minister, and that Presbyterians and Congregationalists, meeting in a community too few and too feeble to form separate congregations, may unite in one church, and that, in the isolated case of a mixed church of this character, a standing committee, appointed by that church, and exercising its discipline, though not ordained as elders, may, under certain circumstances, be represented in the presbytery. It admitted nobody to the Pres- byterian Church nor into the General Assembly, neither minister, church, nor private member. It merely prescribed terms on which the General Assembly would recommend to those who were already in the church, to associate, under peculiar circumstances, with their Congregational brethren in the new settlements. The utmost effect, therefore, of the repeal of this Plan of Union, or of these regulations to promote harmony, would be, that Presbyterian ministers must no longer thus associate with Congregational churches; that Pres- byterian churches must no longer receive the labours of Congrega- tional ministers, and that Presbyterian members must no longer associate with Congregationalists, in forming a mixed church. This was perfectly understood by the General Assembly, when in 1835, they expressed the opinion, that these regulations should no longer be in operation. They then kindly and christianly declared that the privilege should be reserved to those already thus associated of continuing together in harmony. It seems that the violent spirit of the juvenile patriarchs impelling to the rupture of all the bonds of peace and unity, had not then obtained the entire ascendancy in the councils of the General Assembly. We will now return to the General Assembly of 1837. By the opening of the other side, it is admitted, nay affirmed, that there came to the Assetnbly of that year, one body of men, peacefully adhering to the principles of their form of government and book of discipline, and another body determined that, at all events, the differences which had existed in the church, should be settled, not by the whole body, constituting the General Assembly, but with a fixed determination to exclude, in some form, such as did not agree with them. If they should find themselves in a minority, as they had every reason to expect, it was their determination to rupture the church and retire from it. But if, as unhappily proved to be the case, they should find themselves a majority of the house, they were determined to expel at least so many of their brethren as should secure to themselves a majority thereafter. This, gentle- men, you cannot fail to regard as an unlawful combination. If I have in any degree overrated the admissions of my learned friend, who opened on the other side, (which I have not intended to do,) I have certainly not so misstated them, as materially to vary the re- sult. At any rate, the fact is clearly spread out on the history of the transactions of that year, in their Convention and in the Assem- bly, that there was, of the Old School party, such an unlawful com- bination. I use the term in a worldly sense. In a legal sense, it was an uncandid, an unlawful combination. Whether it was un- christian, I do not assume to decide. 283 From that time to this, the same characteristics have marked the proceedings of the two parlies. On one side, open and unsuspect- ing, with no secrecy in their councils, their meetings for deUberation open to all of all parties, and actually attended throughout by some of the Old School. On the other side, secrecy and seclusion ; clo- seted behind bolts and bars, to concoct their measures, effectually to rid themselves in some way of so many of their New School brethren, as to secure to themselves the preponderance of power. The first act in the execution of this purpose, was the abrogation of the Plan of Union, or the regulations which I have last described to you, for promoting union and harmony. That this was a part of the plan for carrying out this fixed determination of theirs, I infer, not from any natural or necessary connexion between the abrogation of this plan and the accomplishment of their determina- tion, but because of the reasons assigned for the abrogation. One of these reasons was, that the Plan of Union was unconstitutional, which I defy any man to show. This was a regulation, not an ar- ticle of constitutional force. But if it were of that force, forty years acquiescence is enough, in all reason, to establish it; and the forma- tion and adoption of a new constitution in the mean time, by the very persons who are alleged to have come into the church through its operation, must leave but a faint reason indeed for its abroga- tion, on the ground of unconstitutionality. The next act, in the series carrying out their determination, im- mediately followed the report of final disagreement in the com- mittee, to the voluntary separation of the church, on the terms most graciously proposed by this party. This act was a resolution, that " by the operation of the abrogation of the Plan of Union of 1801, the Synod of the Western Reserve is, and is hereby declared to be no longer a part of the Presbyterian church in the United States of America." The syllogism, however perfect and wise in the appre- hension of those who adopted it, had not yet got into the heads of the victims. They therefore protested against the act. The next step was a resolution, that "in consequence of the abrogation of the Plan of Union of 1801, as utterly unconstitu- tional, and therefore null and void from the beginning, the Synods of Utica, Geneva and Genessee, be and are hereby declared to be out of the ecclesiastical connexion of the Presbyterian Church, and that they are not in form nor in fact an integral portion of this church. And yet, after all this, they come into this court and avow that it is all a mistake, this talk about excision; that we have not been put out of the church at all ; and that if we had waited a few minutes in 1838, we might have been admitted to our seats in the Assembly. Examine, gentlemen, the excluding acts, and see if it is not with singular effrontery, that we are now told that we have never been put out of the church. Not put out of the church, indeed ! and why ? Because, say they, we adopted a resolution re-admitting you, on your furnishing evi- dence that you " are purely Presbyterian in doctrine and order." Monstrous insult to the human understanding ! Not put out, be- cause you can come in again! not put out of the Presbyterian 284 church, because you can come hack into that church — and that too on the same terms that Jews, Mohammedans, or Pagans can come in ! No, gentlemen, we are not put out of the church, as I doubt not you will find in your verdict, but for a very different reason than that assigned. You will not say, that we are not out, because we are out and can come in, but that we are not out, because the exclud- ing acts which did all they could to put us out, and which, if sanctioned, do effectually put us out, were impotent to accomplish their object; that is, that those abominable acts were, by their unconstitutionality, as well as palpable injustice, null and void; and consequently that the proceedings of the same party for organizing an Assembly in 1838, based avowedly upon these unlawful acts of 1837, were on this account, as well as on account of their inherent injustice and unconstitutionality, unlawful proceedings, vitiating the organization which they proposed to form, and making both right and necessary our organization, which recognized the members thus unlawfully excluded, and all other commissioners constitutionally appointed to the Assembly. But the strangest argument of all adduced here, against the claims of the relators in this case, is that there never has been a Presbyterian General Assembly since 1801. I would not stop to notice this argument, although the gentlemen have proposed to lay such stress upon it, except to say, that the exception which they have made in favour of Dr. Green will not hold. According to the argument of the gentlemen, you will recollect, that the Rev. Doctor is left alone in his glory, as the only legitimate trustee of the General Assembly, because, forsooth, the adoption of the Plan of Union of 1801 destroyed the distinctive character of the Presbyterian Church, by the introduction of Congregationalism, and the Doctor is the only survivor of the trustees appointed previous to that time. But, gentlemen, I shall show that Dr. Green must go too ; for though this party treat with such disrespect the acts of that venerable man in proposing plans of union, (it appears that he is the father of that of 1801, as well as of the rest,) we are not wilhng to leave him " solitary and alone" in his old age. Such a course might indeed promote union and harmony; at least, it would undoubtedly con- duce to a unity of councils, greater than has recently obtained in the Presbyterian Church. But give the gentlemen their argument. The consequence is, that there has never been any General Assembly at all since 1801, and the donors may all take their donations back again. How far the Associate Reformed Church may take advan- tage of this argument, is not for me to say. They may wish their library back again, that now lies at Princeton. But the argument of the gentlemen is quite too much for their own purpose, in another and more important particular ; for by the records of the Assembly which have been read in evidence, it ap- pears that the voting of Congregationalists in the General Assembly, was introduced, not by the Plan of Union of 1801, but by that of 1704, five years previous to the appointment of Dr. Green. The argu- 285 ment, gentlemen, is not ours, but tlieirs. They are welcome to its eflects, for if valid at all, it effectually cuts off all the defendants. But we must not complain of the excinding acts, we are told, because we have recognized, have admitted their validity. How have we done this"? Why, forsooth, in 1838, we said that there were no vacancies in the Board of Trustees, whereas there was a vacancy in 1837 ascertained and supplied by an election, after the passage of the excinding acts, as is shown by the minutes of the Assembly of that year. Our answer to this may be, if indeed it require an answer, that we knew nothing of that transaction. That is, we were not bound to know it, and there is no evidence that we did. Because they appointed a trustee or trustees after the excision, it by no means follows that we knew the fact. We did not see their minutes, and certainly they held themselves under no obligation to read them to us after they had shown us the door. Besides, we cannot look with very great respect to those minutes as authority, since we have ascertained the fact that they contain some things and omit others, as in the case of the transactions respecting the pledge demanded of the clerks, not a trace of which is discernible on the minutes, and it was exceedingly fortunate that we discovered it at all. There is another argument advanced on the other side to which we must give a moment's attention. It is said, that if the excinding acts were unlawful and void, then the Assembly was destroyed, and could have no legitimate successor; so that the case of the relators must fail, as they could not have been appointed trustees by the General Assembly, that body having become extinct. But this, gentlemen, is a misunderstanding or perversion of the law of cor- porations, which you will not allow to deceive you. The court will doubtless instruct you, if it shall be deemed necessary, that an illegal act of a corporation does not of itself destroy that corporation. Before closing my notice of the proceedings of the Assembly of 1837, it is proper that I should here call your attention to another transaction connected with those proceedings. It has been clearly proved to you, gentlemen, though we should never have known the fact, if we had been dependent on the minutes of that body alone for our information. No, there were some at least, who had good sense enough to discern that there were some things which it would do no credit to their party to have spread out on the records of the Assembly. I allude to the pledge required of the clerks, that they would carry out the unlawful acts of 1837 in organizing the Assem- bly of 1838. ' I am sorry to detain you, but it is necessary for me to read here, the evidence by which this fact has been distinctly proved, as we are approaching the consideration of the acts in which this pledge was fulfilled. [For the evidence referred to, see pp. 99 to 104 of this report.] When a majority of them had come to the General Assembly with a determination to cast their brethren out of the church, they were in doubt as to the validity of what they purposed to attempt. They therefore first proposed the appointment of a committee to 286 divide the church. In that committee they made certain proposi- tions to the other party, the character of which has been exhibited to you; but the minority refused to consent to their taking advan- tage of them, and proposed to treat with them on equal terms. This was in turn refused by the majority, who would not be satis- fied with any thing less than a relinquishment, on the part of the minority, of the name and character of Presbyterians, and an ac- knowledgment on their part that they were apostates and heretics. Finding that the minority would not consent to this, they at once proceeded to exclude them from the church. The act itself evinces that they then abjured all dependence on legal or constitutional means, or they had not the benefit of " counsel learned in the law." They had failed in one attempt, and were determined to effect their designs by some process or other, some trick of legerdemain. I mean no personal disrespect to any, but they turned these gentle- men out of doors without any process of law or order, and without trial. Well, what next? They required a pledge from the clerks that they would keep them out of doors, the next year. They felt it so necessary to strengthen their usurped power by every devisa- ble means. Conscious, it would seem, of the illegality of the ex- cinding acts, they dared not to trust the clerks with the constitution in their hand, their only proper guide, to organize the next General Assembly. They therefore require of those oflficers a pledge, that in that organization they will contribute their mile to enforce the exclusion of their brethren. Now, as the determination to exclude these portions of the church was not previously announced, but concocted in secret conclave, so the account of this transaction was not printed with the other minutes. And why ? They now assign as a reason for this singular omission that the clerks signified their intention to exclude these gentlemen from their seats in 18.38 ; and therefore the resolution requiring a pledge that they would do so was withdrawn. But was there not another reason, that by concealing the fact of the pledge, the other party might be ignorant of their intentions? The effect of not printing that famous party pledge, not only was to have been that their design should be concealed, but also to enable them to complete the work of destruction before the other party were aware of the deep-laid plot. These acts, base as they are, were all predicated on the assump- tion that those on whom they were to operate, are not Presbyteri- ans, but Congregationalists, who came into the Presbyterian Church, forsooth, under the Plan of Union of 1801. Now without dwelling here on the fact, fully established, that the plan referred to neither did nor could admit Congregationalists to the Presbyterian Church; nor on the fact, also fully proved to you by the documents of the General Assembly, that those synods were constitutionally orga- nized by the Assembly, without any reference to that plan, their constituent parts being Presbyterian, and some of them having been in the church before the plan was formed ; and without detaining you by a reference to the testimony of Mr. Squier, who was fully examined by the other side respecting the synods in New York, 287 and other evidence adduced, that all the ministers composing the presbyteries of those synods, at the time of the excision, were Pres- byterian ministers : without dwelling on these things, 1 beg leave to refer to the character of the synods which were put out of the church in this ruthless manner, as that character is exhibited by the records of the Assembly. But first I will refer to the character of the Synod of Albany, from which the Synod of Geneva was sepa- rated by the General Assembly in 1812, and the Synod of Utica in 1829, which was similarly situated. The statistical tables published under the direction of the General Assembly, by its stated clerk, show from year to year, the number and names of the ministers and churches connected with each presbytery. Those tables are in evidence. The Synod of Albany, you will recollect, is not touched by the excinding acts, though the Presbytery of London- derry in that synod, with twenty-five ministers, has eight who are pastors of Congregational churches within its limits, the same num- ber who are pastors of Presbyterian churches, and nine who are not pastors of any church. The Presbytery of Newburyport, in the same synod, has sixteen ministers, and the statistical table of the Assembly of 1837, at the very time when the others were cut off, designated only two in that presbytery as pastors of Presbyterian churches. Yet these are sound in doctrine and order ! I suppose these ministers voted on the right side. If not, the right time had not come to excind them. However, be that as it may, they are good Presbyterians. None of them are excinded. The acts of excision did not touch the Synod of Albany, notwithstanding some of the presbyteries belonging to that synod are more closely con- nected with the Congregationalists than any of the excinded pres- byteries, the Presbytery of Otsego, or any other. It appears by the same statistical table, that the Presbytery of Oneida consists of forty-seven ministers, not a single one of whom is pastor of a Congregational church. The same remark applies to the Presbytery of Geneva, and so with the other presbyteries in- cluded in the synods which were formed out of the Synod of Al- bany, and yet that synod is untouched, and they are cut off. Oh, but say they, there were such, but those presbyteries did not men- tion it. To this I reply, that the record is the evidence, and that evidence, the statistical report of the General Assembly, fully sus- tains the position I have taken in relation to this matter. It would be strange indeed, if such connexions had been formed in accord- ance with the Plan of Union of 1801, and the presbyteries never name the fact in their report ; especially while the provisions of that Plan of Union were entirely unquestioned, and while the forming of such connexions was, moreover, recommended and encouraged by the General Assembly, as being meritorious and praiseworthy. No. Congregationalism was not the real cause of the excision. There was another, and of a different character, the lust of domi- nation. As I before stated, these gentlemen came to the General Assembly of 1837, determined that they would get a vote to secure to themselves, the Old School party, such a majority in future Ge- neral Assemblies, as would enable them to rule the whole Presbv- 288 terian Church ; and those synods were cut off for that purpose. The jury will say, whether it was not formally declared by the learned gentleman who opened the defendants' case, that their party never intended that the other party should be consulted in regard to the manner in which the differences in the church should be settled. [Mr. Hubbell said that he did not make any such admission, and explained what he said on that subject.] Mr. Meredith proceeded: I cheerfully accept the explanation, though I certainly so understood the gentleman, I am glad that it was not so stated by the counsel. But, how much better is it? They were determined that none should vote in the settlement of those differences, except such as they called Presbyterians ; that is, they choose to stigmatize the New School, as they called them, but whom we believe to be in fact the Old School, if that term is to de- note an adherence to the real principles of Presbyterianism, to the constitution and discipline of the church; but they choose to stig- matize the New School as not being Presbyterians, and then cut off enough of them to answer their purpose, to make it no longer "tedi- ous and troublesome" to govern the rest as they choose. This fact then is conclusively established, that they came with a fixed design to exclude from the General Assembly and from the Presbyterian church, those who had participated in forming the constitution of that church, and had assiduously laboured therein for a period of forty years. This suicidal act they performed; and then, afraid that the constitution would regain its supremacy in the organiza- tion of the Assembly of 1838, they required of the clerks a pledge, as you have seen, that they would disregard its sacred provisions, and conform to the excinding will and pleasure of the majority in 1837. Gentlemen of the jury : I have endeavoured to present to you without any exaggeration, the character of the excinding acts of the General Assembly of 1837, together with the preparation, by the pledge of the officers of the Assembly, for the subsequent con- summation of those acts, and concisely to exhibit the constitutional provisions of the Presbyterian Church which should have been scru- pulously regarded by that grave Assembly in all its proceedings, but which, by those acts, were violated in a manner the most astonishing and unprecedented. That those acts were utterly unconstitutional and void, and that they were the result of an unlawful combination of otje portion of the General Assembly, against the rights and privileges of another portion, must be perfectly apparent to you, gentlemen, as to every unprejudiced person conversant with the facts. It will doubtless be equally obvious to you, that this unconstitutional violation of rights, occurring in the body at large, or body of electors of the corporation — the trustees of the General Assembly, and involving the disfranchisement of a large body of those electors of the corpo- ration, the redress of the wrong is properly to be sought before the civil tribunals of the country. We now come to the consideration of those proceedings in 1838 which have been detailed in the testimony and which may be justly 289 regarded as the counterpart of the excinding acts of 1837, even the attempt of the moderator and clerks to exclude from their seats in the General Assembly of 1838, all the commissioners from the twenty-eight presbyteries within the bounds of the four excinded synods. It has already fully appeared that that Assembly had no power to put out any of the commissioners from these presbyteries, and consequently that officers of the body could not possibly possess any such power, for "No stream can higher than its fountain flow." No such power was conferred on them by the excinding acts of 1837, for those acts, as I have already shown you, were unlawful. They were unlawful and absolutely void. I have also showed you that they had no confidence in their case, that they did not rely on the validity of the acts of excision, but like the woman, the harlot who was willing that king Solomon should divide the living child, rather than the true mother should have it, the Old School party was willing to sacrifice the living child; rather than admit them to their just rights in the General Assembly, they were determined to blot the General Assembly itself out of existence. But as I said, the excinding acts were utterly null and void. The acts of the General Assembly of 1837 could not bind the General Assembly of 1838. Much less could a concealed pledge of the clerks and moderator of that Assembly clothe them with the autho- rity which they usurped. The General Assembly of 1837 could not give its officers any authority over the General Assembly of 1838. Their only legitimate authority was derived from the constitution. The mere fact of their appointment was all that devolved on the Assembly of the previous year, and by the constitution only could they, with a shadow of right or reason, be guided in executing the duties of their appointment. The General Assembly of 1837 was dissolved at the close of its session in that year, and the Gene- ral Assembly of 1838 was a new body, composed of delegates elected by the several presbyteries, and responsible to no former Assembly. To that body came two parties: one of them composed of those who represented the twenty-eight presbyteries within the bounds of the four excinded synods, and those who sympathized with them under the unrighteous wrong which they had suf- fered. The other party was composed of those who had a small majority of numerical strength in the General Assembly of 1837, and who were predetermined to exclude the other parly, in opposition to the authority of the constitution of the church and of the laws of the land ; in other words, to carry out the rebellion of 1837; a party resembling Samson only in his blindness. As the same spirit, so we find the same course of conduct cha- racterizing the respective parties as on approaching the meetinof of the previous year. The one party, determined to place themselves above every principle of the constitution, and every legitimate power of both the church and the state, came to the General Assembly of 1838, actuated by the same fixed determination to exclude all who stood in their way, as in 1837. "25 290 Accordingly, you find them meeting in secret conclave, with closed doors, in order the more effectually to conceal their plans t"rom the other party. On the other side, we find the New School party, with its characteristic frankness, open, disdaining concealment, making their intentions known to the Old School party, and to the whole church, by public notice, inserted in several religious news- papers of extensive circulation. Through this medium they gave a general invitation to all the delegates to the General Assembly, to attend a meeting for consultation, in relation to the affairs of the church, and the discharge of their duty in their peculiar circum- stances. At their meetings for consultation, some of the Old School men attended; enough at any rate, to keep an eye on them. And it would be unreasonable to suppose, that all that passed was not immediately communicated to their adversaries, who were then as- sembled together in secret conclave for the purpose of devising measures to ensure their exclusion from the church. But these matters belong to the preliminaries of what the respec- tive parties were to perform. I come now to other points on which you must find the facts of the case, the particulars of which have been detailed by the wit- nesses. Here permit me to I'emark that the witnesses on both sides are of great respectability. We are happily relieved from the painful necessity which some- times occurs of scrutinizing testimony with a view to its actual credibility. In the whole mass of testimony which has been elicited during the last two weeks, there is an entire agreement of all the witnesses, on both sides, as to most of the principal facts in the case; and such apparent discrepances in the testimony as exist, are of such a character as may be wholly attributable to the different positions occupied by the witnesses, or the circumstances with which they were surrounded at the time. Thus the witnesses on the one side testify that certain facts transpired, while many on the other side testify that they did not hear them. This only proves that the latter were located in a position less favourable for hearing than the former, or that other circumstances affected unfavourably their hearing, as was indicated by some of these witnesses. It is no proof that such event did not take place. Thus, whatever seeming contradiction exists in the testimony in this case, may be easily reconciled. Gentlemen, there are three points which we regard as conclusively established by this testimony. 1st. That there was such misconduct in the officers of the Assem- bly, in their proceedings for organizing that body, as, if allowed by the Assembly, would have fatally vitiated that organization, for which misconduct they were justly liable to removal. 2d. That they were properly and legitimately removed. 3d. That the General Assembly was then constitutionally orga- nized in connexion with the movements of Mr. Cleaveland, Dr. Beman, and others, and the election of Dr. Fisher as moderator, and Dr. Mason and Mr. Gilbert as clerks. These points being established to your satisfaction, the subsequent adjournment of the body thus organized to the First Church, was unquestionably an act to which they were perfectly competent, and 291 their election of the relators in this case as trustees is admitted. The necessary corollary, therefore, is, that the relators were ap- pointed by the lawful Assembly, and the case is ours. On the other hand what do the counsel oppose to these positions? Points of law, of order. You were out of time, they say ; your proceedings were imperfect, were out of order. They rest their whole case upon a mere point of order. But I proceed to the consideration of our position in regard to the conduct of the officers, and first of the clerks, as a committee of commissions. Their acting in this capacity, it will be remarked, was not sanctioned by the constitution, but they acted in that ca- pacity in accordance with a usage which had for some time obtained in the Assembly, and on that account they had been constituted a committee on commissions for convenience merely, in order that time might be saved to the General Assembly by the previous en- rolment of the commissioners. We have acquiesced, so far as their action was right, and in accordance with previous usage. So far, the common law will sustain them, and no farther. They had no power and no right to say, whether regular commissions should be entered on the roll. Usage required them to enrol all such without <;xception, and to report all commissions which were irregular to the house. They had no further discretion whatever. They had no right to reject any commission which was offered to them for enrolment. They admit that the commissions from the presbyteries belonging to the four excinded synods were presented to them, and that they promptly refused to receive them. Did they refuse to receive them on the ground of irregularity? No: but merely because of the excinding resolutions of 1837, and the pledge they had then given to their party. The only question which they asked was, whether those commissions came from within the excinded synods, and on being answered in the affirmative, they peremptorily refused to re- ceive them. And on what ground did they so refuse? Was it on the question of constitutional right in these members to a seat? Impossible! nor was there any such pretence. Up to 1837, when the excinding resolutions were passed, the presbyteries from which these minis- ters came formed a part of the Presbyterian Church. That they were acknowledged by the General Assembly as being in full com- munion therewith, appears by divers acts of said Assembly, to which we have already adverted, and it is not denied. The evidence is abundant and conclusive, and it would be burning daylight to detain the jury on that point. From 1802 up to 1837, we find the minis- ters belonging to the presbyteries within the infected district sitting and acting in the General Assembly, no objection being made by any one. During this period of thirty-six years, we find that the re- cords of these synods and presbyteries were regularly sent up to the General Assembly for examination, as provided for by the discipline of the Presbyterian Church. And we find further, that these records were approved by the General Assembly, except in one case, and that on a point relating to ruling elders, a point which an Episco- palian would not consider essential to salvation or to church order. But it appears that it is one of the requisitions of the Presbyterian 292 Church, and an essential reqiiisite in its order and government, that there shall be ruling elders ordained for life. Whether this is es- sential or not, is not what we are now to consider. What we are now considering, aixl what the records of the General Assembly show, is, that they were in every form recognised by the Assembly. Their contributions to the funds of the General Assembly were raised during that time, and received and applied in the same manner as contributions from other portions ol' the church. And yet it was proposed by this Old School party to their New School brethren in 1837, that they should retain exclusive possession of the name of the church, of the Theological Seminary at Princeton, and the Western Theological Seminary at Alleghany town, and the Missionary and Education funds. And they then very modestly propose that the other property belonging to the church shall be divided, so far us the icill of the donors ivill adniii ; when they well knew that this equivocal proposition, if assented to by the other party, would put it into their power to appropriate to themselves the whole funds of the church : and this, notwithstanding the churches within the " infected district," had contributed to the funds of this very Theological Seminary at Princeton, &c. It is the prac- tice of the General Assembly to direct the statistical reports from the several presbyteries to be printed annually: and to these statis- tical reports I refer, as the excluded synods and presbyteries are there fully recognised as having contributed to these funds. But to return to the clerks' duty. Now^ I ask you, what is to es- tablish the rightful claim of an individual presbytery, that these pres- byteries have not complied with? Their ministers have been or- dained in regular order, and the}^ have been uniformly recognised by the General Assembly, and have acted on perfect equality with others in that Assembly for many years. They have themselves adopted — yes, formed the very constitution of the church, in con- nexion with their brethren. What then is wanting to establish their right to a seat in the Assembly, which is furnished in the case of any other presbytery ? Plainly nothing ! absolutely nothing wathin the range of thought or reason. The clerks were then clearly guilty of misconduct in refusing to receive any commission which was tendered to them. Such a pro- cedure was without a precedent in the usages of the Presbyterian Church, and consequently the common law will not sustain them. Common law is common sense, and will sanction no such outrage. Whether the counsel will resort to some quibble of parliamentary law for their support, I cannot tell. If they do, they will be very likely to have no better success than at common law. The clerks had pledged themselves to exclude the delegates from the excluded synods, and they were determined to fulfil that pledge, regardless alike of parliamentary law and common law, as of the constitution of their own church. If they had supposed themselves, or had even been on any ground, warranted in refusing to enrol them as mem- bers of the Assembly, even in that case, the most they could do was to receive the commissions and report the facts to the house. They 293 were shut up to the one or the other course by the very express terms of their appointment as a committee of commissions. Of this, you will recollect, that by the testimony of Mr. Krebs, himself one of those clerks, he was perfectly aware, and argued the point with his colleague. Dr. M'Dowell, regarding that course, it seems, as the full extent to which even his pledge bound him. Mr. Krebs was desirous to receive these commissions, and leave it to the General Assembly to decide what was to be done with them: but the other having the seniority, persisted in the refusal; and Mr. Krebs, though he wished to receive them, and leave the responsi- bility of doing a wrong act with the Assembly itself, yet ultimately sanctioned and participated in the misconduct, though contrary to his own judgment. The clerks must have been very intent on their business indeed, as appears by their locking the door, that their attention to the business of making up the roll might be undivided. That those commissions were not authentic, or in regular form, was not alleged by the clerks, because they were acting in accordance with the pledge which they had given to 'the party in 1837; a pledge which I had not named, if they had not, in their determina- tion that it should be kept, violated their duty as officers of the General Assembly, and their trust as a committee on commissions. They were, then, guilty of gross misconduct. You will remember that the clerks were not themselves members of the General As- sembly. They acted as a committee of commissions in accord- ance with a recent usage, and as a mere matter of convenience, having been the clerks in 1837. They held their office during the pleasure of the body, and were liable at any time to be removed. I come now to the consideration of the conduct of another offi- cer, whose official duty and whose relations to these transactions have been already explained. The moderator exercised his au- thority as presiding officer in the General Assembly of 1838, (at its commencement,) not by the appointment of that body, but by virtue of his election to the office of moderator in the General As- sembly of 1837, and in accordance with former usage. Where, then, do you find Dr. Elliott? Does he come at the hour of eleven, gravely, and in accordance with former usage, to perform the simple and appropriate religious duties connected with opening the Assembly of 1838, and then meekly to " hold the chair" of the forming body, till the pleasure of his brethren is ex- pressed in regard to the individual whom they will have for his successor? Instead of this, you find him, at the hour of nine in the morning, busily engaged in marshaling a phalanx of troops in the different quarters of the house in which the Assembly is to con- vene; stationing a picket here and another there, flanking the posi- tion which he is to occupy, with picked and sturdy warriors, arranging a solid body of the main army on his right, his left, and in his front; with Dr. Harris, as surgeon-general, stationed in the midst of the south-western division, which seems to have been the most numerous, and where his services might be most needed, with his lint and bandages to staunch any wounds that might be 25* 294 received, or to minister cordials to those in that quarter, who, it seems were likely to be attacked with a violent cough, (not a legis- lative cough ; oh no ! Mr. Lowrie was there, an experienced hand, to see to that; besides, by the constitution, the Assembly has no legislative power, but,) a martial cough, I suppose, as they were in very warlike mood. Well, here you find Dr. Elliott, in the midst ot this hostile array. The moderator, at the head of an insurrectionary force, and the only question agitated, seems to have been, whether the rebels would prove strong enough to overpower the authorities, that is, the constitution, and those who adhered to it. In this strange condition, we find the moderator and his party throughout. The ostensible warlike preparations were, perhaps, in a measure intermitted, during the brief period of the public reli- gious services. But unless we suppose in them a greater power ot sudden abstraction than is common, w'e must suppose, that even while engaged in addressing the throne of grace in the solemn attitude of prayer, he and his party were devising plans for the exclusion of a portion of the commissioners from their seats in the General Assembly. I can not say that they slept on their arms as soldiers in the tented field, but I will say, that at that very time they had girded themselves with their mystical armour, and were prepared for battle. What is the evidence before you ? Why that Dr. Elliott was a pledged man. He, as well as the clerks, was pledged to use all the force of his official station in carrying out the design of a party. True, the pledge was not recorded and printed in the minutes of 1837, but the moderator and clerks had verbally pledged them- selves, and were acting under a pledge, to a party, and not in the discharge of their duty. Those in the south-west part of the church were the remnant of the mnjority of 1837, and the other seats in the vicinity of the moderator were occupied by their allies. How was it with the other party? Some of them occupied, as has been proved to you in evidence, in an open meeting for con- sultation on the state of the church ; others reaching the city, as Mr. Lathrop stated in his testimony, just in season to meet their duties in the Assembly, and all resorting to the house appointed for the convocation at about the usual hour. There they find ingress denied them through the usual doors of entrance for members of the Assembly, and are obliged to wander round to the other doors of the building. When at last they obtained admittance to the body of the church, they were obliged to take the lowest seats, the others, those nearest to the moderator, being previously occupied by the Old School party. The gross injustice and oppressive cha- racter of these proceedings on the part of the Old School, and the design which they indicated, are too apparent to need comment. They show that excessive caution and preparation, which indicate a feverish jealousy of the success of their illegal conspiracy against the rights of the others, which explains the conduct of the moderator and shows why he was so easily brought under the influence of violent excitement and loss of temper in the subsequent proceed- 295 ings. I do not wish to say any thing harsh or disrespectful of either of the gentlemen concerned in these transactions, but I think it proper to offer a remark or two in relation to the temper mani- fested by Dr. Elliott and others of his party on that memorable occasion. I assert (and the assertion accords with the testimony in the case) that Dr. Elliott did fall into a state of violent and un- pardonable excitement, and that in this way alone can it be ac- counted for, that a person usually governed, as I doubt not that he is, by the mild and courteous spirit of the gospel, should treat so harshly as he did, gentlemen and brethren pursuing a mild, peace- ful and orderly course for the maintenance of rights. His hurried and petulant refusal to receive the motions of Dr. Patton and Dr. Mason, when their language and manner is described by all the witnesses, on both sides, as altogether respectful and courteous; his refusals to put to the house their repeated, but respectful appeals from his decisions, and his impatient calls on the clerk to read the roll " if he had one ready," all indicate that Dr. Elliott had suffered for a time the violent agitation of passion to overcome the sway of the benign principles of the gospel. He was pursuing a wrong course. He was met in that course by mild and gentlemanly op- ponents, adhering firmly indeed to constitutional principles, and pursuing steadily and calmly the constitutional means for their maintenance. Nothing is more calculated to overcome the balance of temper, than for one conscious of pursuing a wrong course, to be put in the wrong by those whom his course is intended to injure, especially if the injured party maintains an equable temper and courteous con- duct. Such was Dr. Elliott's position, and so manifestly had Drs. Patton and Mason the advantage of him, so obviously was their cause, the cause of right, triumphing, even in their quiet submission to his unreasonable and unlawful decisions, that he seems, by the time that Mr. Squier rose, to have lost all command over himself, and to have met his mild demand of the rights of his presbytery, by the most appalling denunciation, one which, in a circle less refined and grave, is sometimes heard in the height of passion, from lips, and in terms accounted vulgar and profane. I shall not repeat the three short words, which, in such circles, express the sentiment referred to, but it is more to my purpose to notice the fact, thai Dr. Elliott, sitting then as the head of the highest tribunal of the Pres- byterian Church, replied to the application of Mr. Squier by a quo- tation of awful import, from the sentence of final leprobation, pro- nounced upon hypocrites and apostates, by the Great Judge of quick and dead. Taking into view all the circumstances of the case, it certainly was one of the most astonishing exhibitions of presumption and passion, and would seem to present a more fit occasion for the application of Mr. Boardman's heathen maxim, than that on which it was quoted by him. This strange language from both these gentlemen, however, is probably only a develop- ment of the violent passion which was manifested by others of the same party, in the scene of tumult which they created, in aid of Dr. Elliott's unlawful exercise of official authority, to prevent the con- 296 stitutlonal organization of the Assembly. They are such exempli- fications of the infirmity of human nature, as are likely to be made, wheii good men suffer their zeal for a particular object to betray them into wrong measures for its attainment. These ebullitions of passion appear to have characterized the measures of the party during these transactions. I must now call your attention to the several steps taken by the moderator, Dr. Elliott, under these circumstances, in connexion with the propositions brought forward by those who sought to restore the action of the church to its constitutional order. To establish the facts themselves I need not detain you ; for, as already remarked, they are in general not only unequivocally es- tablished by ample testimony, but by the accordant testimony of the witnesses on both sides. In considering the relation of these facts to the case of the parties, I desire the jury to bear in mind certain positions which have been already established by the high- est authority, in regard to the duiies of the moderator and clerks in organizing the General Assembly, and particularly the impera- tive obligation resting on them to make the constitution of the church their guide, and the necessity, in order to a constitutional organization, that all the presbyteries of the church should be al- lowed their proper representation. You will then recollect that at the close of the religious services, after the prayer at the opening of the Assembly, Dr. Patton addressed the moderator, proposing to submit to the house certain resolutions, [see page 85 of this report] the purport of which was to admit to their seats the commissioners from the presbyteries within the excinded synods. The moderator hastily refused to receive his motion and called on the clerks for the roll, denied Dr. Patton's earnest but respectful plea that as his motion related to the roll it might then be leceived ; alleged that the floor belonged to the clerk, though reminded by Dr. Patton that he first possessed it, and refused to put to the house the appeal of Dr. Patton from his decision as moderator. The clerks then read their roll of members, prepared according to their pledge, excluding the members from the excinded presby- teries. The moderator then declared that this selected portion of the commissioners would be considered members of the house, and said that if there were other members present, whose names had not been entered on the roll, then was the time to present them, in order that the roll might be completed. On this call it was, that Dr. Mason, another acknowledged member of the house, rose, ten- dered the commissions from the excinded districts and moved that they be added to the roll. His motion also the moderator declared to be out of order, and his appeal from the moderator's decision that officer also refused to entertain or to put to the house. But here the ingenuity of the counsel on the other side have raised a question whether the commissions tendered by Dr. Mason were of the description called for by the moderator. According to the testimony of our witnesses and the acknowledged practice in such cases, he called for such commissions as were not yet en- rolled. This had been usual, and he was understood to call for 297 such commissions as were usually called for by the moderator on similar occasions. But they say that he called for other commis- sions, and such as had not been presented to the clerks and rejected by them. It is well for you to understand why this distinction is made by them, now. It is a curious fact, that during the investigation of the facts of this case, all our witnesses testify that the call was made by the moderator, for commissions which had not been enrolled, and that fact is not contradicted by the witnesses on the other side, though some of them add one thing and some another to these words. A minute of these proceedings was afterwards prepared by the Old School party, which is in evidence before the jury. Of the com- mittee which prepared that minute Dr. Elliott was a member, and the language of that minute fully sustains our witnesses. The language of Dr. Elliott, according to that minute on this subject, was, "that if there were any commissioners present from the presbyteries belonging to the Presbyterian Church in the United States of America, whose names had not been enrolled, then was the time for presenting their commissions." There is no difficulty at all in this matter. The moderator called for commissions which had not been enrolled, at the same time announcing that if there were any such that was the time to present them. There was no irregularity in the call or in the annunciation, according to the tes- timony of our witnesses, or to the record of the Old School. It is a curious fact, also, that throwing out of view altogether the testimony of our witnesses, they, on the other side, give us three distinct versions of this matter. One is that of their record, which I have read to you, and which is explicit, that Dr. Elliott called for those " whose names had not been enrolled." Another is that of witnesses whom they introduced to show that Dr. Elliott said, those "whose commissions had not been presented to the clerks." The third is that of Dr. Elliott himself, who says that his call was for those "commissions w^hich had not been presented and enrolled." Dr. Mason then was in order, as meeting the call of the modera- tor, whether you take the language of that call from our witnesses, from Dr. Elliott himself, or from the deliberate and matured record, which Dr. Elliott himself, with Dr. Nott and others, prepared, and which the house adopted after careful and critical examination. So he was in order indeed, whether such call had been made by the moderator or not. The constitution of the church itself made it in order, by prescribing, in accordance indeed with all law and all usage in every deliberative body, and with the obvious dictates of common sense, that the receiving of commissions, or settling the right of members to their seats, should be the first thing attended to. But Dr. Elliott declared him out of order, and refused both to admit his motion and to put his appeal. In regard to the language employed by Dr. Elliott on this occasion also, a slight difference exists in the testimony, which would hardly seem worthy of notice, 298 but that an attempt is made on the other side to give it importance. Our witnesses understand Dr. Elliott simply as saying " You are out of order;" and their witnesses understand him to say "You are out of order at this time,'^ or, " You are out of order, Sir." Some of their witnesses giving one form of expression, and some of them the other. But Dr. Elliott himself, who of all men ought to know- best what were the words he used, tells you distinctly, "I then staled to him that he was out of order at this time, or now, using one or the other of these forms of expression." These are Dr. Elliott's own words, and though he differs from most of their witnesses, yet he is not certain what was the exact form of expression which he used. It is but reasonable to conclude, however, that his recollec- tion of the particular phraseology which he himself used, is quite as perfect as the recollection of the others, and yet when he says that he used "one or the other of these forms of expressions," he admits that he is not positively certain that he used either of them. Dr. Elliott's testimony goes very far towards explaining the whole mys- tery. It sutliciently proves that the Old School party were so ex- cited and confused at the time, that they have no distinct recollec- tion of what transpired, — and it is thus confirmatory of the testimo- ny of our witnesses. If, however, there is any discrepancy, it is among their witnesses, and not ours, for they all agree. The commissions tendered to the moderator by Dr. Mason had not been presented to the clerks and enrolled, for the clerks refused to either receive or enrol them when they were presented, and therefore they were precisely such as the moderator called for, and neither he nor they had any right to refuse them. Besides, how is it possible to suppose that Dr. Elliott discriminated in his call for commissions between those which had, and those which had not, been presented to the clerks, and refused 1 They had not reported that any had been so presented. They had no authority to refuse any, or dispose of any presented to them, in any other way than to report them to the house, either as regular, and therefore enrolled, or irregular, and therefore to go to the Committee of Elections, or be otherwise disposed of by the house. Nor had such an occur- rence ever before existed. How then could Dr. Elliott frame his call with reference to the exclusion from its import of such com- missions? Dr. Patton's resolutions, you will recollect, had not been read, or the subject of them announced to the house, only that "they related to the formation of the roll," not a word about com- missions presented to the clerks, or commissions from the ex- cinded synods. If, then, the other side will have it, that Dr. Elliott framed his call designedly, as some of their witnesses allege, to exclude these commissioners, they have no alternative but to admit that it proves, what they have so stoutly denied, that this was the carrying out, by the moderator and clerks, of the excinding acts of 1837, agreeably to their pledge, a fact, however, which is amply proved without this admission, and proved at every step of the whole proceedings. But again. Dr. Elliott does not at any time assign as a reason for rejecting those commissions that they were such as had been 299 presented to the clerks and refused, and therefore were not in order, but, they were from the excinded synods — he did not know them. The moderator then, instead of receiving these commissions, as it was his duty to do, inquired of Dr. Mason "where those commis- sions were from ;" and Dr. Mason replying that they were from presbyteries within the bounds of the Synods of Utica, Geneva, Genessee, and the Western Reserve, the moderator declared him out of order, and when he, in a very respectful manner, appealed from the decision, the moderator declared the appeal to be out of order, and refused to put it to the house. Did the moderator assign any reason why he declared Dr. Mason to be out of order? He did not. He is silent as to that. He did not say that he had called for commissions of a different kind. He did not assign even that as a reason for his conduct. But whether they were .called for or not, is not material to the issue of this case. They were in regular form, and were not reported by the clerks as being either irregular or disputed commissions, and Dr. Mason, or any other member of the General Assembly, had a right to present them to the house without any call having been made by the moderator. The call of the moderator for other commissions, though usual in such cases in the Assembly, was not essential, and might have been dispensed with. It is a question of privilege which, in all deliberative bodies, takes precedence of all others, and is always in order. Whenever such a question is introduced, (and a question of privilege may be raised by any member of the body and at any time) it puts a stop to all other proceedings until it is settled. The question of privilege must be determined before the house can proceed with its ordinary business, so that Dr. Mason, or any other member, had a right to be heard in presenting those commissions, even if it conflicted (which it did not in this case) with an ordinary rule of order, such as the standing and particular rules adopted by the Assembly for the trans- action of business. Those rules not being constitutional provisions, are subject to the will of the house; and no rule of order can be in- terposed to prevent the settlement of a question of privilege. I must illustrate this point. I am sorry, but so the other side have chosen, to decide this whole case on a mere point of order. They hang the whole cause on the construction of a rule of mere parlia- mentary order. Since so they will have it, we must meet the point which they make on that ground. I have already remarked, gentlemen, that the constitution re- quires, as does every principle of right, and of common sense, that the first business in organizing the Assembly should be the recep- tion of commissions or settling the right of com.missioners to a seat in the body. Any rule contradicting this would of course not be binding. On this ground then, the motion of Dr. Mason was in order. It was also in order as a question of privilege. The rights of persons claiming as members of the house were alleged to be invaded. Whether they were really so or not was immaterial to the order of the question of privilege. It was indeed the very thing to be settled by that question. That question Dr. Mason, an ac- knowledged member, raised in behalf of these commissioners, and, 300 according to all parliamentary law, there was no other question which could supersede this, nor any ground on which it could be set aside till it was settled. You will observe the distinction be- iv/een this and what are termed "privileged questions." These are questions, which according to the rules of the house may come in at a certain time, or in a certain order, or at the will of a mem- ber, as the case may be, superseding ordinary business which may be on hand at the time, or setting aside certain other questions v.'hich may be before the body at the time. They are the subject of rules adopted for convenience, facility or order in the transaction of business. But a "question of privilege" is a ques- tion of right, a question touching the personal rights, privileges or relations of the house or any member of the house, or the rights of constituents through their representatives. It is a just and equal law which makes it necessary to decide a question of privilege as soon as it is presented to the house, and be- fore any other business shall be proceeded in, and which thus puts it out of the powei of a m.ijority to subserve, by stratagem, the designs of a party, by keeping out of the house a part of the mem- bers duly elected by their constituents. Finding that the common law will not sustain them, the other party resolved to resort to a point of parliamentary law in their defence. But this case is lost to them if it is to be decided as they have put it, on a point of order. It must go against them on any principle of order, or of parliamentary law. They were acting in open violation of parliamentary law, as well as the constitution of their church and the law of the land. According both to the constitution of the Presbyterian Church, and to all parliamentary law, this was a question vital to the in- tegrity of the body, to its very existence as a lawful Assembly. Privileged questions and rules of order adopted for regulating the transaction of business, may be waived by the house without vio- lating its own integrity. The standing rules, as they are termed, of the Assembly, not being of constitutional force, and being in fact adopted by each Assembly for itself, though in general they ought to be observed, may yet be violated forty times in a day without in- validating the acts of the Assembly. But a question of privilege cannot be put aside for any consideration ; and the highest of all cjuestions of this character, is that which involves the right of a member to his seat, and the right of his constituents to be repre- sented. The election of the commissioners was an act of the presbyteries, and they had a just right to complain of the clerks for refusing to receive their representatives. The clerks neither reported them as being enrolled, nor yet as informal commissions. The presbyteries had also good right to complain of the moderator for endeavouring to exclude their representatives. Never before was such a double violation of law and order, such a gross infraction of the most sacred rights of members and constituents, perpetrated by the officers of any deliberative body, ecclesiastical or civil, amongst any peo- ple. History does not furnish a parallel case. 301 But here comes in that other small matter. It is said that the moderator qualified the declaration by saying " now," or " al this time." Whether he did so, is, you have seen, from the various ac- counts of their own witnesses, a matter of doubt. But what if he did? There is nothing very unusual in this mode of declaring a ques- tion out of order. There is nothing in it affecting the nature of the decision. The other side, however, tell you, that it was an intima- tion that if he would only wait some five minutes, his motion would be in order. Did Dr. Elliott mean to intimate any such thing? If he did, then he admitted that the motion was a legitimate motion, one which might properly be brought by a member before that body. Now, what was the motion? It was not a motion asking admis- sion into the church, under the acts of 1837, but against those acts. It was not an acknowledgment of the justice or validity of those acts of excision, by which they were declared to be no longer a portion of the Presbyterian Church. It was not a confession that they were guilty of heresy and apostacy, and a profession of sor- row and repentance, and asking forgiveness of these Old School men, with an humble petition that they would " take proper order thereon." But it was, according to Dr. Elliott's own testimony, a motion to complete the roll by adding thereto the names of the com- missioners from those excinded presbyteries, whose commissions had been refused by the clerks. Now, if Dr. Elliott said the motion is out of order now, but there is a time approaching when it will be in order, he admitted that it was a legitimate motion. And that it was a legitimate motion there can be no doubt, for the excinding acts of 1837 were utterly null and void, as much so as an act of Congress declaring the states of Pennsylvania, Ohio, and Ken- tucky, out of the Union, would be null and void. Well then if the motion was in order at anytime, it was in order at this time, when Dr. Mason moved it. Then was the very time, and the only proper time for " receiving commissions to com- plete the roll." One of the standing regulations of the Assembly as published in the " Digest," which is in evidence in this case, is that " the list of commissioners present being completed, a new moderator is chosen." I read from the Digest, page 17. Another of those regu- lations, on page 19 of the same book is, that "commissioners who do not produce their commissions at the opening of the Assembly, can be received only at the commencement of a session." So that if Dr. Mason had not made his motion precisely when he did, the opportunity would have been lost. Having admitted such, and such only, as the officers, under a party pledge, saw fit to admit, Dr. Elliott would have declared the roll to be completed, and they would have proceeded 1o the choice of a new moderator, and might have transacted other business, the most important of the Assembly, before the commencement of another session, when only, if ever, an opportunity would again occur for offering these com- missions. Thus might the constituent presbyteries be deprived of their most inestimable rights, and their commissioners be precluded 26 302 from the discharge of iheir most important duties. And you will remark, gentlemen, that if this course could with impunity be pur- sued in relation to these commissioners, it might equally in relation to any others. Thus the doctrine set up in defence of this pro- cedure, is shown to assert a more arbitrary power over a delibe- rative and representative body, than ever was claimed, or than would even be tolerated in the most absolute despotism on earth. Does any one believe that this is Presbyterianism — that such domi- nation of official tyranny is sanctioned by the constitution of that church, a church, which, in this land of equal laws, makes so loud claims, as you have heard from the learned counsel on the other side, to be the patron of liberty ! No, gentlemen. That was the time to make the motion which Dr. Mason made, and the mode- rator had no right to declare it out of order. Dr. Mason knew this, and he appealed from the decision of the chair. His appeal also was refused, and declared to be out of order. And under what pretence ? What reason did the nioderator assign, for declaring ihe motion and the appeal to be out of order? They cannot at- tempt to excuse Dr. Elliott's conduct in this case, as in that of Dr. Palton's motion and appeal, by saying that their was no house. The roll had now been read, and their picked company had been declared to be the house, at least far enough to proceed in completing the roll. Dr. Elliott says he had entertained a mo- tion for the appointment of a committee of elections. It was not, then, because there was " no house." The truth is, that neither Dr. Elliott nor the clerks, assigned any reason whatever for their con- duct. If that conduct had a single reason in its favour, which would bear the light, I doubt not, it would have been assigned. The refusal of the moderator was in violation of all law, parlia- mentary law as well as every other. His refusal to put to the house the appeal from his decision, was probably the first example of that kind of assumption of arbitrary power in a moderator of a deliberative body, which has occurred in the history of the whole civilized world. I defy any one to show, any where, a power in the moderator or presiding officer to refuse to put the house in possession of an appeal from his decision. There was no right or power in the majority to exclude those persons who were lawfully entitled to seats; and if, on any ground, there was a question whether they were so enti- tled, the only possible w^ay in which that question could be tried, was by bringing such a motion as that of Dr. Mason before the house, which we have seen was, for any such purpose as this, fully organized. This step of the moderator in refusing the appeal, may find one, and only one rule that I know of, for its justification, and that, much more fitting the circumstances of the Roman Emperor, whose rule it was, than the position of a moderator of a Presbyte- rian judicatory in the United States of America. "Sic volo, sic jubeo," is the rule by which a tyrant tramples on the rights of his people when they become his slaves. Denying the appeal in this case, was the tyranny of arbitrary despotism. It showed a consciousness, that carrying out the principles to which ihey were pledged, required the sacrifice of constitutional principles, 303 and on this ground, it accounts for the violent passion into which Dr. Elliott and his party were thrown. Our party were all mild and courteous in their proceedings. Dr. Elliott's own testimony shows this: so does that of other witnesses on that side, as well as our own. The testimony of their witnesses even exonerates our party from the charge of all indecorum and tu- mult, throughout the whole proceedings up to the time of our adjourn- ment, except the single sin that some of us voted " aye" louder than we need to have done in order to be heard, and one person so loud that " he might even have been heard tlie whole distance from one side of Washington Square to the other!" that is, some 50 or 60 rods, or across a 12 acre lot. But the mind of the moderator, in sym- pathy with his belligerent partisans, was undergoing a change. It was losing its equable temperament. It was the change which the consciousness of an attempted perpetration of wrong produces in the perpetrator of that wTong, when he sees, that those against whom it is attempted maintain a mild but firm deportment, and in a steady adherence to the right, are, by peaceful means, averting the injury intended for them. Such circumstances are greatly calcu- lated to excite, and hence is it accounted for that Dr. Elliott was so wrought up, that he could meet the courteous advances of Mr. Squier with that tremendous denunciation, which, had he completed the quotation, would have only more perfectly expressed the feelings which seemed to predominate on that occasion. Dr. Elliott was called a moderator. I leave it to you. gentlemen, to say, if he did not furnish a wonderful example of ini-moderation. Will any one deny that he was in a passion ? Look at the facts in the case of Mr. Squier. In a respectful manner he presents his com- mission, when the house was properly organized so far as related to the reception of commissions, though it could not properly transact other business. The moderator had called for commissions from com- missioners whose names had not been enrolled. But instead of re- ceiving his commission, the moderator asked him from what presby- tery he came. Mr. Squier replied, "From the Presbytery of Geneva." The moderator, not yet satisfied, queried if that presbytery belonged to the Synod of Geneva. And on Mr. Squier's informing him that the Presbytery of Geneva was within the bounds of the Synod of Geneva, he insultingly replied, " We do not know you!" A partial countenance had been given to Mr. Squier's demand by the moderator asking him from what presbytery he came, thereby signifying that if he came from the right place his request or demand should be complied with. But ascertaining that he was from the proscribed or infected district, he passionately exclaimed, " We do not know you''' He did not mean that he did not know the man, for he tells you that he had formerly been acquainted with Mr. Squier. When Dr. Elliott said "We do not know you," he did not allude to Mr. Squier personally, but he undoubtedly had a more extensive allusion. He meant to include all the proscribed, the whole five hundred and nine ministers and the sixty thousand members within the infected district, composing the four excinded synods. What then did the moderator mean bv exclaiminff " We 304 do not know you." What could he mean, unless he meant to apply to those whom they had declared to be excinded, cut off" from the communion of the church, that awful denunciation to which I have before alluded? Now why should the Rev. Dr. Elliott, presiding over the admis- sion of members to the General Assembly of the Presbyterian Church address such language to Mr. Squier and his friends? There can be no other reason assigned than that he and his party had forsaken the light, or that they had so far given way to feelings of excitement and passion, that the light in them had become dark- ness. Was ever such a course pursued by the presiding officer of any deliberative body, ecclesiastical or civil, against a person on the floor, for claiming his seat as a member of the house ? Show me, if you can, any precedent in book, bound or half bound, large or small, printed or in manuscript, in parliamentary law or usage, where the president or speaker has dared to address any one in such a harsh and unfeeling manner. The historical records of the world from its creation to the memorable year 1837 do not furnish such a pre- cedent. I do however recollect one case in point — and the only one, I believe, that the history of the world has yet furnished — of the presiding officer of a deliberative body attacking a member on the floor of the house, merely because he might take exception to the proposition submitted to him by the member. The only case in point of which I ever heard, transpired in the legislature of one of the south-western states of this confederacy, the new state of Ar- kansas. I am not certain but it occurred since, and that this case of Dr. Elliott's was its precedent. The speaker, in that case, how- ever, taking offence at something which was said by one of the members, which he deemed personally disrespectful to himself, got into a passion, whipped out his howie knife, rushed from the chair, attacked the offending member on the floor of the house, and mur- dered him on the spot. And then, I suppose, turned round and said, " I do hope we shall have order !" The moderator then had been guilty of misconduct which me- rited removal. He had assumed an attitude, which, if he were allowed to hold it, would not only prostrate the dignity and self- respect of the body over which he presided, but would defeat the constitutional organization of that body ; and if he had so chosen, by carrying out the same principle, he might have entirely defeated the appointment, at any time, of a moderator in his place. He had only to refuse to put such motions as were off'ensive to him, to de- clare them out of order, and refuse to put to the house appeals from his decision, (and he might do it in any other case as well as in these) and thus make himself not only dictator, but perpetual dicta- tor to the General Assembly. Was there no remedy for such a state of things ? There was a remedy and it is rather wonderful that it was forborne so long. He was liable at any time to be re- moved, or to have another appointed in his place. Those whose rights were thus outraged deferred action of this kind long enough. The moderator had refused to receive motion after motion, and 305 denied that most sacred right, so strongly and explicitly guarantied by the constitution to every member, the right of appeal to the house, from the decisions of its presiding officer, and finally told Mr. Squier that he did not know him, and he might go — I will not say where; but the language of the moderator was equally as vio- lent and offensive 'as if he had completed the quotation of the de- nunciatory sentence. He had only to go one step further to come fully up to the only similar exhibition which the world has witnessed in a presiding officer of a deliberative body; and that was to have attacked Mr. Squier, personally, with any weapon that he could lay his hand on. Immediately after this last outrage of the moderator, finding that all appeals to justice or magnanimity were entirely disregarded by their adversaries, and that they had nothing to expect from them but repeated acts of injustice, the friends of constitutional order deemed it necessary to exert a prerogative higher than submission to unlawful acts of usurpation. Accordingly, Mr. Cleaveland rose and commenced making a few preliminary remarks, explanatory of a motion which he was about to make and put to the house. But no sooner was it perceived that he alleged the misconduct of the moderator, as sufficient cause for his removal by the appoint- ment of another, than a scene of confusion occurred, which baffles description — which reminds one of the scene described by Burke as having taken place in the Irish house of commons, when Jack Fuller, the little man with the big wig, having insulted the speaker, was ordered to be arrested by the sergeant-at-arms, he started for the door, and a race commenced, helter skelter over the forms and benches, and overturning the desks which stood in their way, until he finally escaped from the hall, minus his cloak. Now came the occasion, which, it seems, had been anticipated as likely to result from the usurpations of the moderator, and to meet which the morning had been spent in marshaling the troops. Now was put in requisition the hammer of the moderator, the stentorian lungs of those who were to cry, in trumpet tones, "order! order!" the stamping of others with their feet, the scraping and shuffling of others, the rapping with canes, the cries of " shame ! shame !" and the peculiar corigh which put in requisition the talents of the sur- geon-general. Dr. Harris. All this ado was made to drown the voice of Mr. Cleaveland, or prevent themselves from hearing; and though not entirely success- ful, yet it was so far, that they are able to come here and testify, very truly, no doubt, that there was a great uproar and confusion. Unfortunately for them, the evidence is full and conclusive that they made the tumult themselves. Mr. Cleaveland, favoured with a full and clear voice, continued, till at length, finding their uproar vain to stay the course of right and equitable action, and being hushed by some of the more quiet spirits of their own party, the Old School members ceased their noise, and allowed Mr. Cleaveland to put his motion. This and the several successive motions were regularly put, seconded and carried, as was detailed to you in the testimony,. 26* 306 completing the organization of the Assembly of 1838, on the prin- ciples of the constitution of the church. You will remark here, that by the constitution, the offices of Dr. Elliott were not necessary to the organization of the Assembly. The constitution prescribes simply that " the moderator, or in case of his absence another member appointed for the purpose, shall open the next meeting with a sermon, and shall hold the chair till a new moderator be chosen." Form of Government, chapter 19, section 3d. This article relates to the moderators of presbyteries, synods and General Assemblies. In the article respecting the General Assembly, is a similar provision in these words, chapter 12, section 7. " The moderator of the last Assembly, if present, or in case of his absence, some other minister, shall open the meeting with a sermon, and preside till a new moderator be chosen." Now, ac- cording to the terms of the constitution, all that was necessary in regard to an officer to preside in organizing the Assembly, was, that a minister, being a member of the Assembly, appointed for the purpose, should so preside, or if the moderator of the last Assembly should be present, he might preside, though not a member of the Assembly for the current year. The object of so presiding, is obviously, and simply, to act as the organ for ascertaining the will of the forming body, till it has expressed that will, in the appointment of a member as its moderator. What, then, ac- cording to the constitution, would have occured if at the opening of the Assembly of 1838, Dr. Elliott had not been present? Why, the members then assembled would have, at the motion of some member, to designate, that is to appoint one of their own number, as is usual in other bodies, so assembling, to preside till the permanent moderator for that Assembly was elected. This is ac- cording to the constitution. True, according to a rule recommended by a previous Assembly, to their judicatories, the last moderator present would so preside. But that rule is not obligatory upon the Assembly, or any other judicatory, unless they choose lo adopt it. But if the rule were obligatory; suppose no individual present had previously been moderator of the Assembly, a case always liable to occur, then clearly the body of the commissioners are thrown back upon the constitution, and must designate the individual to preside till the new moderator be chosen. It is obvious, then, that the ser- vices of the previous moderator are not essential to the constitutional organization of the Assembly. The members had an undoubted right to call another member to the chair; the right to change their presiding officer being indisputably inherent in every representa- tive, deliberative body, who choose their own president or mode- rator. If they had said, in the first place, that Dr. Beman or any one else, should be moderator to the exclusion of Dr. Elliott, they had a perfect right to do so, as he was to preside only until another moderator should be chosen. Whenever that choice was expressed, his official duty ceased. But our opponents now pretend to say that he could not be put out until he consented to it! Absurd! Why, even if no misconduct had been alleged, or could be al- leged against the moderator, he was subject to be removed at any 307 lime. But, he had been guilty of misconduct, gross misconduct, and was therefore liable to be removed on that ground. The right to remove a presiding officer will not be doubted by any one conversant with parliamentary law. There is an instance in English history of a motion being made in the house of commons to remove the speaker. (I am not able to cite an instance in our own country. There may have been, but I do not recollect any at present.) In the year 1773, a motion was made in the house of com- mons, that the speaker be removed, which motion was received and put to the house, but it was not carried. The majority voted against it, but the right was acknowledged to exist, as fully as if the ques- tion had been decided in the affirmative, and if there had been a majority in favour of the motion he would undoubtedly have been removed, ft must be evident to all, that if a speaker, president, or other presiding officer of a legislative or deliberative body were guilty of misconduct in office; if he had exerted the whole of his influence in favour of a party ; if he showed his determination to carry out the designs of that party by assuming authority, which was unlaw- ful and unconstitutional ; if he did this in obedience to a pledge which he had previously given to that party, and if he were to re- fuse to receive a motion or put an appeal, and refuse to admit a member duly elected by his constituents to his seat in the house, there would be sufficient cause for his removal, and that house which would not promptly remove him from office, would be un- worthy of respect. The moderator did assume such despotic authority. He i/;a5 thus guilty of gross misconduct. His removal was necessary. The house had a right to remove him, and he was removed. That he was lawfully removed I will now proceed to show. The sense of the house can only be ascertained by its vote. In no other way can its intentions become known even to the house itself If you can show a lawful vote, it is the vole of the house, and the question is determined by a majority of those who actu- ally vote. In order for the vote to be lawful, none of the mem- bers must be excluded from the house or denied the privilege of voting; though, when a question is put, the members are not at liberty to sit still or make a noise in order to defeat a vote, under pretence that they did not vote, or did not hear. Such a course would lead to endless confusion in a deliberative bodv, and would prevent the transaction o{ business altogether, when- ever a faction should choose. The New School party, both before and after their adjourning to the First Presbyterian Church, excluded nobody. Every commis- sioner to the General Assembly of 1838 was at liberty to partici- pate in their proceedings. Their hearts and arms were open to receive them all, irrespective of party. The names of all the mem- bers were placed on their roll. A lawful question was lawfullv put by a recognized member of the house. In a case of this kind, the question must of necessity be put by a member, and any member has a right to put the question in such a case. It was distinctlv 308 and lawfully put, and determined in the affirmative, as were the succeeding questions, as you will recollect from the testimony, by members of the house, whose names had been enrolled and reported by the clerks, and who had been declared by Dr. Elliott to be men\- bers of the house. The same objections or excuses could not be made as in the case of the motion of Dr. Patton. According to Dr. Elliott's ow^n showing, there was now a house. Mr. Cleave- land stated his reasons for his motion, the necessity of changing the moderator at that time, and then moved that Dr. Beman take the chair. Now that was coming to the pinch of the matter. A mo- tion was now made, and the question was about to be put to the General Assembly of 1838, which would elicit a vote of that body, whether they would sanction the excluding acts of 1837. The choice of another moderator is not the only thing which it involved. It involved also the acts of excision of 1837, for on them were based the unlawful acts of Dr. Elliott and the clerks. The General As- sembly of 1838 being a new body, composed of delegates elected by the several presbyteries, and reflecting their will, had power to repeal the excinding resolutions of 1837, even if those resolutions had been valid. Any act of a former General Assembly might have been rescinded by the General Assembly of 1838, if found to be injurious in its operation and tendency. But the motion was to remove the moderator by appointing another presiding officer, and on the question being put to the house, it was determined in the affirmative by a majority of votes. The members had all an op- portunity to vote on the question, but there was a corner in the house where they were unwilling that the question should be put, and they not only refused to vote, but tried to interrupt the proceed- ings by making a noise of various kinds. I am sorry to say it, but I must. They acted in a riotous and disorderly manner. That the question on the motion of Mr. Cleaveland was put to the house, is admitted, and the only point of fact in relation to it which is dis- puted, is, whether there was a reversal of the question. On this point, however, there can be no difficulty. The fact is clearly proved by so large a number of witnesses, that there is no room for even the shadow of a doubt. True, they bring witnesses to testify that they did not hear the reversal. And what of that? Why did they not hear it? They contrived to make so much noise as to prevent themselves from hearing. There was, in that corner of the house occupied by the Old School party, a universal uproar and confusion — shuffling, stamping, scraping with the feet, coughing and hissing, the moderator rapping with his hammer, cries of order, and what other kinds of noise 1 do not know, but they prevented themselves from hearing the reversal of the question, by these un- seemly noises. Ah, but the coughing was '* not a legislative cough !" Those reverend divines were not expei'ienced in the art. Mr. Low- rie, who has had some experience in such matters, tells you that it was not a parliamentary cough. That is, I suppose, it was not so loud and boisterous as is sometimes heard in the British parliament, when it is determined to cough doicn a member. The reason was, thev w-ere inexperienced in the art of coughing. They had prac- 309 tised only since 9 o'clock that morning, and had not got their throats opened sufTiciently. But still they managed to cough as loud as they could, and if they did not come fully up to the standard of parliamentary coughing, still their coughing was loud enough to prevent themselves from voting, and that is the clinching in this case. Whilst they were coughing, the vote was going on under their eyes. They might have heard it, but they were determined not to hear. That they prevented themselves from hearing by the noise which they made, is amply confirmed by the testimony, as is the fact of the question being put to the house both in the affirmative and in the negative form. Numerous witnesses testify that they distinctly heard the reversal of the question. They distinctly heard the negative vote. They heard boti: the ayes and noes. Wit- nesses from every corner of the house, on the floor and in the gal- lery, distinctly heard the question put and reversed, and tell you that there was a negative vote as well as an affirmative one. In- deed, this south-western asthma seems to have been rather unfor- tunate in its time of attacking the Old School members, for their own witnesses show that the essential motions were heard by all who were willing to hear. One of their witnesses, who stated that he heard the motion of Mr. Cleaveland distinctly, was but partly in the house, beyond the south-western members, and more remote from Mr. Cleaveland than almost any one of them ; so that it ap- pears that it was heard at the remotest distance. We should not have known this fact, if it had not been for that straggling Episco- palian, [the only one there, it appears, and as an Episcopalian, I certainly should hope so,] Mr. Norris, who thrust his head in at the south-western door of the house. I don't know how they came to get that witness — for it appears that he only ventured to poke his head inside the door, whilst his body remained outside, thus securing to himself the means of a safe escape. I don't know what business he had there ; but whatever took him there, he is their witness, and it is from him that we learn the fact, that the mo- tion was distinctly heard even beyond the part of the house occu- pied by the Old School party. We learn from all the witnesses that Mr. Cleaveland's voice is very distinct and clear, and that he usually speaks very loudly. The moderator himself states that he heard the motion. The nega- tive vote also was heard in every part of the house. There was a general aye, and a few noes. Some of the witnesses heard no noes, but many of them tell you that they heard a few scattering noes. These are facts proved all round. It is in vain to dispute them. Those witnesses who did not hear any noes, nor hear the question reversed, do not contradict or disprove the testimony of those who did. They only testify that they did not hear them. For it is a well established principle of law, that a dozen witnesses declaring negatively that they did not see or hear a certain fact, will not in- validate the testimony of one who testifies affirmatively and posi- tively that he did see or hear it. Now what is it which is to save Dr. Elliott'? Why they say the right question was not put; it should have been a motion addressed 310 to Dr. Elliott himself for his removal. But who would have ad- dressed such a question as that to Dr. Elliott, after the manner in which he had treated Mr. Squier, for simply claiming his own seat? Beside, this motion was equivalent to that; it was a motion to re- move Dr. Elliott by putting another in his place, and it was ad- dressed to the house, the proper body to act under these circum- stances. This proceeding, you will observe, is exactly parallel to that in 1835. Dr. Ely, as a member of the Assembly (for as stated clerk he was not an officer of the house, but his duties occurred during the interim) put the question to the house to place Dr. M'Dowell in the chair instead of Dr. Beman. It was a good rule, it seems, in 1835, for putting Dr. Beman out of the chair, but a very bad one for putting him into it in 1838. It is needless to waste words on this subject, for plainly, by all rule, from the nature of the case, and according to former precedent, Mr. Cleaveland had a perfect right to put the question which he did. Dr. Beman, being thus chosen, took the chair ; in other words, he assumed the office of moderator. But why, they ask, did he take a station in the aisle? Why did he not occupy the little chair usually occupied by the moderator. I reply. Dr. Elliott still sat there, though he was divest- ed of his office. It is entirely unimportant where the moderator took his position. If Dr. Beman had waited until Dr. Elliott left the chair. Dr. Elliott might have been there yet; and it is impossible to tell what might have been the consequence, if he had been re- quired to give up his seat. It is fabled of Aristophanes, that he sat so long in one place as to become united to the seat. Whether Dr. Elliott would have done so, is more than we can tell. Dr. Beman then, could not have occupied any other portion than he did. These trivial circumstances are of no moment whatever. But why did they not call a former moderator to the chair 1 That question is already answered. I may here add, that it was entirely unneces- sary to do so : the constitution does not require it. The rule which suggests such a course was not binding, and if it had been, it did not apply to this case, that rule having reference, not to a moderator to be called to the chair after the process of organization had com- menced, but to one originally to take the chair at the opening of the meeting. The motion to choose another moderator was equivalent to a motion putting Dr. Elliott out from being moderator. When that motion was made, and the question put to the house by Mr. Cleave- land, it was carried by a large majority of votes. For, according to all law and usage, we can only know what the decision was by the vote, without respect to the reasons of individuals for voting or not voting, and those who remained silent and refused to vote, must be considered as having acquiesced in the decision. This is always so, and it would otherwise be impossible to transact business. If they did not know this, it was unfortunate for them. But it is not to be believed that they did not know it. That, however, does not change the nature of the case. It was not our fault that they did not vote. It was not the fault of the law. It was their own fault. Again it is objected — the question was not put to the house by Dr. 311 ' Elliott. To this we reply that it is the practice of the country. When a motion is made which is personal to the speaker, it is not put to the house by the speaker, but by the member making the motion, though a motion may be put by the clerk if the house order it. They have said that Mr. Cleaveland did not reverse the question. But we have shown, we have proved beyond a doubt, that he did reverse it ; although by parliamentary law there is not a necessity for reversing the question in such a case. But it was reversed. It is a well known principle of law and of common sense, that positive testimony must altogether outweigh that which is negative, for no man can positively know that a fact did not transpire. We have the testimony of no less than sixteen witnesses of dif- ferent parties in the church, who are positive that the question was reversed. One of them tells you that he was disappointed in the small number of noes, when the question was reversed. He was surprised that the Old School men did not vote down the proposi- tion. If this testimony be false, it is in the very worst sense false. True, one of the witnesses on the other side stated, that he would have heard the motion, if it had been reversed. How could he know that he would have heard it? He could not possibly know it. Another goes on to describe the confusion which prevented him from hearing. The most that they could say in truth was that they did not hear it. Not that it was not reversed. Of their witnesses, twenty-seven in number, who did not hear it, there were three classes. One class, like Dr. Elliott, and others, were occu- pied about other things, or themselv^es making so much noise that it was not strange that they should not hear. Another class heard things, some one thing and some another, which did not transpire, as the "motion to move down the aisle," and things which were im- possible under the circumstances. Still another class were deter- mined not to hear, as you have gathered from their testimony. It would not be worth while to dwell on this point, if the other side had not indicated a disposition to hang their whole case upon the single point whether Mr. Cleaveland said, " those Avho are op- posed will say no." But I am sure, gentlemen, that you can have no doubt on this point, when you consider the comparative weight of positive and negative tesj^imony, and the circumstances, according to the avowals of the Old School themselves, which were likely to prevent their hearing, and especially, when in connexion with this consideration, you reflect that the reversal of a question is a matter of such usual occurrence, as not likely to make an impression to be particularly remembered. But for particular circumstances, directing the attention of our witnesses to the fact, we should proba- bly not have been able, at all, to show that the question was re- versed, and so it would not be strange that others should not have remembered it. This position is perfectly philosophical, and an apt illustration of it is at hand. The clock on this very building is heard for miles, and yet probably not a man in that jury box would venture to say that he has this morning heard it strike the hours of 11 and 12. But it has so struck, at least the time is passed when 312 it should have done so, and it is not wont to fail. Perhaps not three individuals, in this crowd of hundreds, could say that he heard it. But let it, though in lower tones, strike in its less common form and sound the alarm of fire, every individual would at once catch the sound, and it would not be forgotten. I am not at all surprised that they did not hear Mr. Cleaveland, though his voice is unusually clear and strong, and he was dis- tinctly heard over every part of the house. The only wonder is that they heard any part of what he said, they were in such a state of disorder at the time. How could they hear in the midst of the noise and confusion which they made among themselves '? And if they did hear him, could it be expected that men under the influ- ence of excitement so great as that which then obtained among them, could remember so as to give a correct account of what transpired. The excitement must have run very high, or Dr. Miller, who was not a member of the Assembly, distinguished as that gentle- man is for a scrupulous regard to decorum, would not have Ibund himself waving his hand and crying order. It appears by his own account, that he wsls for some time unconscious of what he did, and was surprised to find himself in such a predicament.* For them now to set up the defence that they did not hear the (juestion put, or that it was not reversed, appears, in view of the testimony which has been submitted, very much like a forlorn hope. Some of the gentlemen called as witnesses by the respondents tell you that they would not have voted if they had heard the question. Enough was elicited from their own witnesses to show that they might all have heard and voted if they would. And are these gen- tlemen to get their case by their own refusal to vote, and the dis- order which they themselves produced? Obviously, if they get it at all, it must be by these means. I have shown you, gentlemen, that the whole conduct of the Old School party was arbitrary, dis- orderly and illegal from beginning to end. The moderator's refusing to receive a motion from a recognized member of the General As- sembly, and above all refusing to put an appeal from his decision, the refusal of the clerks to receive and enrol the commissions from a certain district which the party had determined to put out of the church, were not merely disorderly, but in direct violation of the law of the land and the constitution of the church. There was an unlawful combination, a conspiracy of these officers against the rights and privileges of their brethren. Now as to the vote, if there is any such thing as faith in hu- man testimony, it is fully proved that the question was put to the house, both affirmatively and negatively, and that the aflirmative * While the form containing the testimony of Dr. Miller was in press, the ste- nographer sent a note saying that he had discovered a slip containhig notes of a portion of the Doctor's testimony, which he had omitted to send with the other, in consequence of its being mislaid. It was then too late to insert it in its proper place, and it is here subjoined. Dr. Miller said — It was indeed a scene of great excitement, and I was surprised to find myself, though not a commissioner, unconsciously waving my hand, and ex- pT-eosing a wish for the restoration of order. 313 vote was much larger than the negative. In other words, that it was carried by a decided and lawful majority. True, many did not vote, but that circumstance did not and cannot change the re- sult. They practically consented to the decision by their silence, at the time, and must abide the consequences. The question was put in a voice sufficiently audible to be heard all over the house, and was heard in every corner of the house. No man called for a division of the house, as every member had a a right to do. The question then was legally carried. If they did not hear it reversed, we have shown the reason ; but the fact is it was reversed. The negative voices were distinctly heard, though a few scattering noes only were raised. They knew that they were the defeated party, and sat in mute amazement, finding that their plans, though woven with the ingenuity of the spider's web, had proved abortive; that they were completely caught in their own trap, and were grovelling at the bottom of the pit, which they, with so much pains, had digged for others. They need not lay the blame on the ladies in the gallery, for they made the noise themselves. Their acts show that they saw themselves defeated, and a perfect phrensy appears to have been produced among them by seeing that the straight forward course of truth was triumphant over their tortuous inventions. Under these cir- cumstances the spectre of Mr. Dufiield rose before their over-excited imaginations, and "the hair of their heads stood up." They could not discern or describe what manner of form it was, but it "shouted aye, so as to be heard across Washington Square!" The mere operation of taking a vote on the appointment of a new moderator, threw them into amazement, and their excited imaginations con- jured up phantoms in every bush, and spectres in every pew. They saw, or thought they saw, this spectre, which was every way dif- ferent in manners and appearance from Mr. Dufiield, flourishing his cane and striking with it on the seat. Who or what this spec- tre was, I leave for you to judge. But it could not have been Mr. Dufiield. By some similar disorder of the mind, doubtless, it must be accounted for, that a worthy minister should use toward his brethren such language, as one of their own witnesses, Dr. Phillips, testifies that the Rev. Mr. Boardman used on that occasion, " Whom the gods have determined to destroy, they first make mad." Mr. Boardman's imagination must have been touched by some magic wand, or he would hardly have adopted and applied in that strange manner this pagan maxim. On the other hand, Mr. Cleaveland and his friends, having no devious course to sustain, no unlawful and unconstitutional plans to efiect, came straight forward to the work. They distinctly an- nounce that a constitutional organization of the General Assembly catmot be effected without admitting to their seals all duly appoint- ed commissioners; that they were determined under legal advice to efiect that organization ; that all the commissioners had a right to vote, both the Old School party and the New School party; that their rights were equal. The commissioners from the twenty-eight presbyteries within the bounds of the four excinded synods, were 27 314 entitled to equal rights and privileges with those from other pres- byteries, whether they were located in Virginia, Pennsylvania, or any other state. The excinding resolutions of 1837 were uncon- stitutional, null and void, to all intents and purposes. They could have no effect whatever. Thus, stating explicitly what they mean to do, they are not dis- mayed by the cries of order, raised merely to drown their voices and prevent their being heard. They state their motions distinctly and audibly to the house, giving all an opportunity to understand them, and to act on them if they please. In this calm procedure, a new moderator and new clerks are elected, and then, being warned that none but those who adhere to the rebellious party may occupy that house, the body adjourned from the scene of confusion in Ranstead Court, to the place where the Assembly was accus- tomed to meet in earlier days, when all parties held sacred the prin- ciples of their constitution; taking care, however, in this adjournment, to inform all present, that there was nothing exclusive in their movements. This they did in the terms of the adjournment itself, and by proclamation at the church doors, as has been already de- tailed to you. Thus we did what we could to maintain inviolate the unity of the body vi^hich our brethren had attempted to sever. We employed the only means in our power, by which could be maintained, in a peaceable manner, the rights of all portions of the church, and the inviolability of the constitution. We had made them liberal offers for the amicable adjustment of all difficulties, but they would not hear. They were determined to exclude us from the church of our fathers. They would not be satisfied with any thing short of a confession on our part, that we were not Presbyte- rians, that we were heretics and apostates. If we would not ac- knowledge this, (and they knew that we never could, because the charge was utterly groundless,) they were determined to exclude us from the church. They were determined to put the knife to our throats: nothing short of our blood would satisfy them. We de- fended ourselves and the rights of our brethren, only with the force of truth and the simplicity of righteous and constitutional action. Of these we are not ashamed. We excluded no one ; excluded no one. We have ever acknowledged and do still acknowledge our erring brethren, as equally entitled with us to the rights and privileges of the church,. and to an equal place in its councils. And the effect of your verdict, gentlemen, if given to us, as I doubt not it must be, will not be to exclude the party of the Old School from the church, but only to say, according to the facts in the case, that we are still one church, who may either remain together in unity, or peaceably separate into two bodies on such equitable terms as all may agree to adopt. But they still ask, why was not Dr. Beman or Dr. Fisher put into the chair usually occupied by the moderator ? You have seen, gentlemen, that there was no necessity for this, no rule of order or discipline requiring it. Beside, with the temper which prevailed at the time among the Old School members, it is easy to see that such a course of proceeding would have been unwise and highly inex- 315 pedient. Would it not have led to a riot? Would not Dr. Hill's apprehensions of violence have been verified ? Undoubtedly such would have been the consequence of an attempt to put another moderator in the wooden chair which Dr. Elliott then occupied. In relation to that matter, I will only say in addition, that I know not why such a trivial objection as this, and Dr. Beman's not having the little wooden hammer in his hand should be raised, ex- cept they suppose that there was something mystical in the chair, like the nether garment of Mohammed, and that those mystical virtues were communicated to him that sat thereon. They do not ascribe any such mystical virtues to the chair which was occupied by Dr. M'Dowell, nor to the stool on which Mr. Krebs sat, though I know not but they may, after having adopted the pagan maxim, *' whom the gods are determined to destroy they first make mad." There were no such mystical virtues in chair, stool or mallet, and we are legally and constitutionally the " General Assembly of the Presbyterian church in the United States of America," whether we have such tools or not. Being then constitutionally organized, we made a legal adjournment, and in the regular progress of busi- ness, elected the individuals, who are now the relators in this case, as trustees of the General Assembly, according to the provisions of the act of incorporation received from the legislature of this common- wealth. This election was regularly conducted according to the standing regulations on that subject. All these things are fully shown to you, gentlemen, in the Testimony. It is also in evidence, that a majority of the Board of Trustees refused to admit these relators to their seats in that board, and that the persons in whose place the relators were elected, continued to exercise the office of trustees. On this account this suit is brought. Now if the Assembly which elected the relators is the legal General Assembly, it is beyond dis- pute that they were legally elected ; the case is then ours, and so will be your verdict. I have now examined the facts of the case in detail. Respecting the law in relation to it, it is the province of his honour the judge to instruct you. I regard the law in its application to this case as so plain, that I need say little respecting it. If, as I apprehend that he will, his honour shall instruct you that those who did not vote are to be accounted as acquiescing in the decision of the ma- jority of those who did vote, then, if you believe that Dr. Beman was elected moderator by a majority of those who actually voted on the question, and that point is fully proved, your verdict must be for the relators. No fact could be more fully established by human testimony, than the fact that a majority of the votes given on the occasion referred to were for Dr. Beman as moderator. And that fact being established, there is an end of the controversy. Those for whom I act desire to have their rights and to preserve the unity of the church, and nothing more. They do not wish to exclude others from the enjoyment of their rights and privileges, nor do they wish to be excluded themselves. And if your verdict shall be in their favour (and it cannot be otherwise) it will go far 316 towards restoring peace and harmony to the Presbyterian Church. Such a verdict will deprive no person of any right or privilege, but will secure the rights of all concerned. While it will declare the excinding resolutions of 1837 to be null and void, and put the seal of reprobation on such usurpations as those of the clerks and the moderator at the meeting of the General Assembly of 1838, it will exclude none of the members of the church, nor will it deprive any presbyterial delegate of either party from taking his seat in a future General Assembly. Such a verdict I confidently anticipate, and such a verdict will have a salutary tendency to heal the breach between these two parties. I leave the case with you, gentlemen, with the fullest confidence that you will render a righteous verdict. Allow me to say, that if, in the course of my remarks, I have used any expression which might seem to be personally disrespectful or offensive, I can only say that I did not intend it. I sincerely hope that the end of this controversy may be peace. Mr. Meredith having closed, at 1 o'clock, on Monday, March 18th, at a quarter past one William C. Preston, Esq., of South Carolina addressed the jury as follows. His argument occupied the re- mainder of Monday and the two succeeding days: With the permission of the Court, — Gentlemen of the Jury : It is a peculiar misfortune to myself to come to the argument of this im- portant case, labouring under severe indisposition. This indisposi- tion must be evident to you all. A few more hours of rest to recover from the debility under which I have been labouring for several days would have been very desirable. But as the patience of both the judge and the jury must be by this time in a great measure exhausted, I am admonished of the necessity of proceeding immediately to the argu- ment of the case, though, as must be obvious to you all, with very in- adequate physical strength. I consider my indisposition at the present juncture as being a peculiar misfortune, personally, to myself, but not at all to the cause of those whom I represent. For I am thankful that their cause does not require any great exertion on my part, in its defence. For, permit me to say, gentlemen, and I can assure you that I say it with all candour, that this cause requires very little exertion for its triumphant vindication, incredible as the assertion may appear to some of those who have listened to the able and eloquent argument of the counsel on the other side, during a period of nearly two days. Permit me, gentlemen, further to observe (and I make the observation candidly) that I do not feel the slightest apprehension, or doubt that in the result of this case your decision will establish these defendants in the full and free exercise of their just rights and privileges, and thus go far towards the restoration of peace and harmony to the Presbyterian Church. Entertaining no doubt that this will be the effect of the verdict which you will render after you shall have heard what the counsel for the defence shall lay before you in relation to this case, I will proceed immediately to its examination. It is to me a fortunate 317 circumstance, gentlemen, that the case is a plain one, as you will readily perceive when all the circumstances in relation to it shall have been fairly laid before you. I cannot otherwise than admire the zeal and ability which have been displayed by the counsel for the relators, which you, as well as myself, have witnessed during the progress of this cause — a zeal, which, circumstanced as I now am, I cannot attempt to emulate. The gentlemen have certainly manifested great ability and zeal in the course which they have adopted, not only in the opening speech of the learned counsel who first addressed you, but in the examination of the witnesses, and in the argument of the eloquent gentleman who immediately preceded me. But you will observe, gentlemen, that your attention for much the greater part of the time, has been occupied with subjects relating to the proceedings of the General Assembly of 1837. In the opening speech of Mr. Randall, that subject occupied full tw^o-thirds of the time. A large portion of the testimony, and much the greater portion of the argu- ment which you have heard from the learned and able gentleman who has just closed, had relation to these same proceedings. You will recollect, gentlemen, that nearly the whole of his exordium was taken up with the consideration of these proceedings of 1837. And I must do him the justice to say, that it was much the longest exordium, in proportion to the length of his argument, which I ever heard. I, however, will not follow him in the ingenious course which he has adopted. I shall proceed immediately to the dis- charge of my duty to my clients, adopting the plan which, in my opinion, is best adapted to the clear elucidation of the case. I think it better to build the house first, and add the portico afterwards, provided it shall then be found to be a necessary appendage to the building. For an exordium is not more necessary to the entrance of an argument, than a portico to the entrance of a house. Leaving therefore the exordium out of the question, it is possible that some portion of his two hours' argument of to-day, may demand from me a few words in reply, as he then referred for the first time to the merits of the case. As he devoted five hours to what he himself admitted were only preliminaries, it appears that, in his estimation, the preliminaries are to the merits of the case as five to two. I should consider myself entirely exonerated from uttering one word in reply to what has been said concerning the proceedings of the General Assembly of 1837, feeling, as I do, per- fectly satisfied that those proceedings have no relevancy to this case: but as they have thrown down the gauntlet, I will, after having disposed of the merits of the case, vindicate my clients from the imputations cast upon them, relative to their conduct in the Assembly of that year. Persuaded that you will have to adju- dicate this case on the evidence before you, relative to the pro- ceedings of the General Assembly of 1838, without any reference to what took place in that of 1837, I will reverse the order which my friend has pursued, in laying this case before the court and jury. I will commence with the argument, and not with the exor- dium. A skilful general will put his artillery before the light 27* 318 troops, and not behind them. But the efforts of the gentleman which have been displayed with such admirable ingenuity, remind me of the manoeuvre of some general of which I have read, who shielded himself from the attack of his opponents by operat- ing on the dust, which being blown in the faces of the enemy, pre- vented them from seeing him. I will not, however, waste my strength in operating on the cloud of dust which has been raised with so much ingenuity, and thrown directly in your faces with so much dexterity by the opposing counsel. I will leave it until the wind shall come from another quarter, when, I entertain no doubt, it will be blown entirely away. To come at once to the case; the counsel, as you must have observed, gentlemen, for the relators, have failed to lay down any distinct proposition, on which they hope to succeed, in establishing their claim. My responsibility as a member of the bar, requires that I should distinctly stale the point at issue in this case, the only point on which the opposite counsel can possibly rely; or his ingenuity would certainly have produced some other before you. The point on which your verdict is to be rendered is, that by law and parlia- mentary usage, the rules that had been previously adopted by the General Assembly, in accordance with its " constitution and form of government," being obligatory on the General Assembly of 1838, and binding on all the members of that Assembly, when voting on the subjects presented to their consideration, we, the Old School members, are to be considered as voting with them, the New School party. That is, we are to be considered as having so voted with them by intendment of the law! On this point, the whole case turns. They contend that we acquiesced in their pro- ceedings by our silence, by our refusal to vote against them. Gentlemen, it is the solemn conviction of my own mind, that this is the most important point in the whole case before you, and there- fore I state it to you methodically, though I consider it more as a question of law, than as a question of fact. I state it distinctly, as the hinge on which the whole controversy turns. The main point for your decision then is, whether, in the General Assembly of 1838, in putting the cjuestion as to the appointment of a new moderator, the silence of a portion of that Assembly is to be con- strued into an acquiescence, on their part, with those who voted in the affirmative, on the question then raised by Mr. Cieaveland. Did we, by our silence and refusal to vote at all on that question, which we considered to be entirely out of order, acquiesce in their disorderly proceedings? I will show you plainly that we did not so acquiesce, and then they surely will not claim a verdict at your hands. But, before a minute examination of the evidence in relation to this point, let us look at some circumstances which must neces- sarily claim your attention, respecting the attitude of the parties to the transactions which gave rise to this suit. One of these circum- stances, to which I will now call your attention, is this. They have not asserted that we are not the General Assembly of the Presby- 319 terian church ; they have not come here to impugn much less to vituperate us. To their credit be it said they have done neither. They have not said that we are not the General Assembly; and is not that an admission that we are that General Assembly? We are not standing here as a nonentity. We are not standing here for the General Assembly of 1837, which was dissolved when it closed its session, and became a nonentity. Nor are we standing here for any General Assembly of 1838, which was also resolved into its original elements. I stand here as the attor- ney of Princeton Seminary, and of every body else opposed to these relators. We act on the defensive. We come into this court as the trustees of the General Assembly of the Presbyterian churcli, having been elected in accordance with the provisions of the charter granted to that Assembly by the Legislature of Pennsyl- vania in the year 1799. The relators in this case are not properly in court. They have no rights to establish here. They have come here merely by an intendment of law, by a mere antiphrasis. They thus come into this court, claiming by a mere antiphrasis or intendment of law, to exercise control over the funds and property of the Presbyterian Church, which church is opposed to them. I must say, with no asperity of feeling towards these relators, that these principal charities, devised to the General Assembly of the Presbyterian church, are not to be seized on merely by an intend- ment of law, by which the defendants are to be considered as par- ticipating in what they did not intend to participate in. Justice will not sanction it. And yet the counsel for the relators put himself on it. He put himself on this ground, that by intendment of law, the defendants are to be considered as having sanctioned the whole proceedings of the New School party in Ranstead court, though it is a well known and admitted fact, that they opposed them by every legitimate means in their power. It is an atrocious and un- reasonable assum])tion, that a mere technicality of law shall super- sede the whole Presbyterian Church, by depriving the true trustees of the control over those noble beneficences, which have been de- vised to that church "for the advancement of religion, and the glory of God." And in such a case as this, I here give the gentle- men notice, that we shall avail ourselves of every means which the law allows us, to prevent such a supersedure. I ask you, gentle- men, for you have doubtless some acquaintance with legal pro- ceedings, whether you have ever seen such a spectacle in the courts of justice of Pennsylvania, as that now exhibited? I doubt very much, whether you or the learned judge who presides with so much dignity on that bench, ever heard of a case brought into court in this manner. The other side claim, not upon any principle of justice or right, but upon a mere technical construction of an intendment of law, in opposition to the known and admitted facts in the case. And I will say to the court and jury, that if the case of the relators be established by a mere technicality of law, it will be the first time that I have ever known such a triumph to be achieved. I know that there is a vulgar notion extant, that the law is mere trick, that it consists entirely of technicalities and unmeaning phrases, and that 320 it has but little, if any connexion with justice. But God forbid that I, an humble officer in the temple of justice, should give the least sanction to such an erroneous opinion, or that I should ever witness the triumph of a mere trick, a quibble, over the fundamental princi- ples of law and justice. No, it cannot be. The common law, that glorious fabric, which has been founded on experience and built up with so much labour and care by the skill and wisdom of centuries, which has drawn forth such high-wrought encomiums from the most eloquent states- men and orators, shall continue to impart to all, the benefits of the sacred principles of justice. Like the alluvial soil, deposited by some mighty river, to enrich the valley through which it passes, so may the common law continue, for ages and generations, the rich alluvion thrown up by the stream of time. An intendment of law, indeed ! What is it, but to infer that that has been done which we all know has not been done? Suppose one of you, gentlemen, infers that a paper was signed by another, because 3'ou have signed it in his presence and he did not object, as he had nothing to do with it, and knew nothing at all about it: and suppose that paper to be an obligation for the payment of mo- ney : will you go to a lawyer and say, I know" that he did not intend to sign that paper, that he did not know^ that such a paper was signed in his presence : but can not I go into the courts of law, and compel him to pay, by inferring that he did so intend? I know that you would not sanction such monstrous injustice. Well, suppose that either of these gentlemen had advertised these defendants of what they did intend. Suppose they had told them "you will be considered as having voted with us." Do you sup- pose, does any man suppose, that they would have given their assent? Would they have refused to vote on the questions if they had been apprised that advantage could be taken of their refusal by an intendment of law? They oppose them by all the means in their power, and shall they now be considered as voting with them, as having acquiesced in their proceedings, merely because they did not vote ? Shall we without a struggle yield to such a desperate attempt to lay hold of the whole property of the Presbyterian Church, and of the church itself, by an ejectment of the trustees now in power? The gist of the whole case is, they assume that the Old School party voted with the New School party, in the General Assembly of 1838. The whole case turns on that point. Did we vote with them ? We did not. This is admitted. But then they assume that we assented to their proceeding by refusing to vote. Did we so assent? Answer this question affirmatively if you can. If you cannot, in good conscience, give an affirmative answer to this question, then dismiss us, and the relators must be turned out of court. It is a maxim with myself, and however others may regard it, it is one to which, at the bar, I adhere, that " Show me the fact of a sound right in equity and justice, and I will find law to support that right:'' and I have not been disappointed in a single instance, by an adherence to this maxim, unless the present case shall prove an 321 exception. Now these relators know — they admit the facts to be against them ; and yet they think to stand on a mere technicaUty. But, as I will show you, they can't stand even on that. I trust that when the sharp edge of the law shall be applied, the same spirit which guards that law from infraction, will prevent its being per- verted to be a shield for injustice, and divest it of all other effect than the promotion of the general good. And if I did not rely on this spirit of the common law, I would go to a higher principle, even the eternal providence of God, and on that would I rely to prevent the perversion of these noble charities from their legitimate object. This, then, is one attitude in which these parties stand. Another, in which the relators stand before you, is that of a minority assum- ing the position and powers of the majority, a majority in every aspect, except the mere trick of technicality, in keeping our names on their roll ; and then stigmatizing us, not as heterodox in faith or doctrine, but as having acted with them, the really heterodox. It is with pain that I allude to this proceeding. Among the many things which are trying to the feelings in connexion with these transactions, this circumstance is the most so. To avoid the con- clusion that they are a minority, they contend that the Old School members are a part of them ; that when they went from Ranstead court, they went as the whole General Assembly, and took us with them ; and that when they afterwards met in the First Presbyterian Church on Washington Square, the whole of the General Assembly was congregated there, that is, they had our names on their roll. If this claim had been openly stated, its notorious contrariety to the truth would have shocked every body. But when this claim is brought forward insidiously, it becomes necessary to expose its ab- surdity by depicting it in its true colours. The counsel erred egre- giously when he gravely put the query, " Why did we not vote down the proceedings, if we were the majority as we claim to be ?" He erred egregiously, when he inferred that our refusal to vote is evidence that we were not the majority. Suppose we had voted with them, what would have been the consequence? If Dr. El- liott, Dr. M'Dowell, Mr. Krebs, Dr. Plumer, Mr. Breckinridge, and their associates, had participated in the proceedings of Dr. Patton, Dr. Mason, Mr. Squier, Mr. Cleaveland, Dr Beman, Dr. Fisher, and their associates, the measures of the New School party would have been 'defeated altogether. If, instead of a simultaneous burst of disapprobation from the Old School party, with cries of order, order! together with Dr. Elliott rapping with his hammer, we had let them proceed quietly, and then voted with them, we would have voted them out of the house; and that "in the shortest time, in the fewest words, and with the least interruption'' to the regular proceedings. Nay, further, if we had participated with them, we could have followed them into the street, or gone with them to Washington Square, and have voted them out of the house there also. Did they expect us to do so ? With what joyous exul- tation their kind hearts would have welcomed the defeated and sup- pliant majority. We could thus have followed them from one house 322 to another, and voted them out, until we had voted them out of the city of Philadelphia. We might have pursued the same course until we had voted them clear into the excinded synods. Such would have been the efiect, if we had acted with them. It is there- fore manifest that we did not vote with them. For if we had so voted, they could not have found a resting place short of the ex- cinded synods, if they could even there. But why pursue this course of beating round the compass. Let us come to the point at once. Did they intend that we were of them ? Does the law so intend ? Or did they intend to supplant us, and wrest from us the control of the whole of the charitable beneficences of the church, together with the Theological Seminary at Princeton? What else can we suppose, when we are told that we are not the Presbyterian Church by a mere intendment of law? That we are thus to be considered as having been personally pre- sent in their Assembly, when, if we had been there and voted w-ith them, we could have voted them out of the house ? But I will proceed to a third point in the argument of my learned friend. He inquires " who are they?" but, like some of his clients, he forgot to reverse the question, and ask " who are we?" I will endeavour to examine both inquiries. It was a position of my learned friend, though one in which he was entirely mistaken, that we are identified with them in their proceedings, because the ques- tion was put to the house by a member of that house in our pre- sence. He omitted to state that the question was not reversed. Mr. Cleaveland, in his haste and perturbation, forgot to reverse the question, and Dr. Beman also forgot to instruct Dr. Fisher that he must be governed in his conduct as moderator by the same rules that his predecessors had been. I know the learned counsel on the other side treated this as a very small matter; but I will presently show you that it is important. Why did Dr. Beman forget this im- portant duty, which is expressly required of him by the discipline of the church? I have put this query, and I will answer it. He did not know what the discipline of the church required, and Dr. Fisher did not know how many members constituted a quorum. They were ignorant of what the rules of order required, and yet you have been told that we, the Old School men, are "the juvenile pa- triarchs of the church." They, forsooth, are the older and more experienced, and we are the younger members. They are the se- niors, and we the juniors. Who are these juvenile patriarchs, with an account of whom the counsel amused you? Is that (pointing to Dr. Green) one of these young men? Is that the youth to whom he alluded? You may search the world over for such another youth, whose seared brow has borne the frost of more than seventy winters, as his " locks of silver grey disclose." Is that venerable man, who was engaged in political controversy before his religious influence was so extensively felt as it has since been, who shed his blood in the cause of American Liberty in the war of the revolu- tion, before he became the head of the Presbyterian Church — is he to be sneered at, and termed a youthful patriarch by those who have grown up under his auspices, and owe what little influence they 323 now possess to his fostering care? Or did the counsel allude to the venerable Dr. Alexander ? Who is he, and where is he, that has dared to raise a parricidal hand against the venerable institutions which he and such as he have reared ? I should like that you should look at either of these venerable men, whose gray hairs and bent bodies " proclaim their lengthened years," and ask yourselves if they are the juvenile patriarchs who would destroy the church of their fathers! And now, to reverse the question, who are they of the other side? Ah, who are they? Gentlemen, we have come to the conclusion that the New School church is the true one, because they have differed from Dr. Green and Dr. Alexander, these inexperienced juvenile patriarchs; and by these statistics of age, I judge that they must be the oldest. But has any one. Old School or New School, man, woman or child, said that we are not Presbyterians? Do they not concede that we are : that Drs. Green, Miller, Piumer, M'Dowell, and others, are up- to-the-hub, true-blue Presbyterians? But is their party Presbyterian? Can both be Presbyterians? Can they be Presbyterians whilst they acknowledge Congregational churches ? If you call in an unlettered Presbyterian, he may tell you that this is not an important matter, that it is a mere dispute about words. He may tell you, as one of the witnesses told you, that he was once a Congregationalist, then a Presbyterian, and then a Congregationalist. Why, it seemed that some of them have travelled about the country with an assortment of creeds in their pockets, to suit purchasers, and that they have found a ready mar- ket amongst those who could change their religion with as much facility as they could change their coats. A Presbyterian or Con- gregationalist coming from a section of country where Congrega- tionalists and Presbyterians were intermingled, attached himself to one or the other of these churches, as might suit his convenience. My learned friend depicted to you a lisping infant bowed in prayer at its mother's knee. I wish I could command the beautiful lan- guage in which he described the thrilling scene with that kneeling infant. But it happens that they among whom that scene occurred are Congregationalists, and the infant by its mother's side became contaminated by this Congregational heresy, which has been prey- ing on the very vitals of that body to which it has attached itself as an exotic. Congregationalists have thus been coming in amongst us insidiously for years, and when an attempt was made to purify the church by excluding the Congregationalists, this New School party was so deeply imbued with the Congregational heresy, that thev made common cause with them. They then are not Presbyterians, but Congregationalists. Who then are the Presbyterians? Did we exhibit any thing of this kind ? We certainly did not. We desired to check the growth of heresy, by admitting none to the commu- nion of the church who were not strictly Presbyterian in faith and practice. And if you decide against us, and by your verdict sav that we are not the Presbyterian Church, and that they are, you will give the whole property of the Presbyterian Church to Congre- gationalists and the associates and advocates of Congregationalists. 324 The next position in the case is this. They brought us here. The third Thursday in May, 1838, was a memorable day, a day never to be forgotten in the annals of the Presbyterian Church. And here we come to the git of the whole case. You are aware of what took place in Ranstead court on that day, when through the aisles, and from the portals of that church, swept a loose disorderly and disjointed mass of men. It was then that the black cloud, which had been for several years increasing, burst in all its fury. Then from that portentous cloud, falls a boll of lightning, aimed at the head oi that venerable man, (Dr. Green,) and we ask you, shall it be suffered to strike his silvered locks to the ground. The one ;ict by which they bring us before this court is, that desperate blow by which they have sought to strike Presbyterianism to the ground. An act which too plainly says, " we want the money, and we can't trust you with it." All this they propose to accomplish by a mere intendment of law. This is the issue, and the only issue before you. Gentlemen of the Jury, I have endeavoured, in the first place, to state to you the nature of the question at issue. I then reviewed some of the circumstances attending, and the relative position of the respective parties before you. I then called your attention to that portion of the argument of the gentleman who preceded me, on which the whole case rests. I showed you that the relators did not expect to succeed in establishing their claim, unless ihey can succeed by an intendment of law ; unless the General Assembly of 1838 be presumed to have acquiesced in the proceedings, by which the relators in this case have been enabled to come into this court. The question of legal intendment is a matter for the judge to decide. For if his honour instructs you that there are certain circumstan- ces in which a question must be settled by such intendment, then, if the circumstances of this case are of that character, the whole case turns on a point of order, and it is not for me to disparage the rules of parliamentary order. They are unquestionably of great importance, are necessary to the transaction of business, and cannot be departed from without danger. The ends of justice are best subserved by adhering to them. These rules are not, as the learned gentleman has said, of little importance. Indeed, it seems a little strange that he should speak lightly of them, when his whole case may turn on a point of order, and the very lightest of them. The plaintiffs in this case exhibited themselves in this light. They have placed their sole reliance on the construction of a rule of order; and this is it: (Rule 30,) "silent members, unless excu- sed from voting, must be considered as acquiescing with the ma- jority." Of so slight authority was this rule considered, that Dr. Beman, when he inducted Dr. Fisher into the office of moderator, gave him instructions to govern himself, not by this and the other rules which had been previously adopted by the General Assembly, but b\' the rules which should be subsequently adopted, that is, by an ex post facto law. This is on the principle, which our opponents sometimes find convenient, that these rules are not binding on any Assembly, until re-enacted by themselves. And yet it is only by one of these rules that they can come at all into this court. But I 325 am willing in this case to concede that this rule was in existence, and that if they have brought themselves within its application, you must give them a verdict. It then becomes necessary to consider under what circumstances silent members are to be held as acquiescing with the majority. I admit that if the question is fairly put in a deliberative body, and one portion of that body refuses to vote, they are to be considered as acquiescing in the will of the majority of those who did vote. I admit that this is an established rule of parliamentary law. But in this case, tvas the question put? That is, was it legally put? Was it put in accordance with the usages and requisitions appropriate to the case? Was it put in an audible voice and in proper terms, nnd was it reversed ? For unless all these circumstances were attended to inputting the question, it was not legally put. All the members must have an opportunity of hearing the question put, or they can- not be considered as having acquiesced in the decision because they did not vote. The learned gentleman stated in summing up his argument, that it had been proved that the question was put and reversed in a proper shape, and loud enough to be heard. But he omitted to state a most important principle of parliamentary law, that the question must be put b\'' a coiwpeteyit person. He avoided the mention of this most important principle. He evaded it, and that during the consideration of a case, the decision of which de- pends on a question of order! I state it as one of the most impor- tant questions submitted to you in this case ; was he who put the question, the proper person? For every question must be put by a competent person, and that person is the presiding officer, the pre- sident or speaker, and in this case it was the moderator. And not only this, but the question must be put at a proper time also. Re- collect that we are now discussing a question of order. Questions must be parliamentary in their character in all points, and pertinent to the business of the house, if they are to claim the attention of a deliberative body. If one party proposes questions which are in their very nature disorderly, the other party is not bound to notice them, or to give their sanction to disorder by voting on them either affirmatively or negatively. It does not fit the case, to say that we might have voted on the question if we were disposed, because they must show that they acted orderly in all points, to sustain their as- sumption that we acquiesced in their decision. I then repeat the inquiry, was Mr. Cleaveland's motion put ? To put a question requires a proper person. This rule implies an agreement, in the nature of a contract. The members place themselves on the ground of contracting parties, by agreeing to and adopting certain rules of order for their government. The presiding officer contracts to do certain acts, and to preserve order according to certain rules ; and the members, on their part, contract to abide by his decisions made in accordance with those rules, and that all decisions shall be in accordance with the will of the majority. One provision of this contract is, that all questions shall be properly put to the house, and by a proper person, and that when so put, those who abstain from voting shall be accounted to acquiesce in the decision of the ma- 28 326 jority. Could Cleaveland, then, have been the proper person to put any question in that Assembly, not that particular question merely, but any question whatever? Was he authorized to get up in that Assembly, setting aside all rules of order, and put a question to the house for its consideration. JSuch a procedure had not, I be- lieve, occurred in the history of the Presbyterian Church from her first organization, down to the meeting of the General Assembly in 1838. Such a thing as for a member on the floor to rise, make a motion, and then put that motion to the house, has not occurred from the date of the Wittenagemote down to the present time. Did any of you ever hear of any such thing having occurred in the pro- ceedings of Congress, or of the legislature of your own state, as for a private member to rise and put a question without even submit- ting it to the speaker? No such thing has ever occurred, and they have not produced a single sentence either of the rules of order of the Presbyterian Church or general parliamentary law, that will justify such a course. I make the broad assertion, and without fear of contradiction, that they cannot produce a single instance of that kind. There is not an instance to be found in the records of any deliberative body, even in a political caucus, a debating club, or a ward meeting. Even there, the question is always put by their own officers. Amidst the convulsing and turbulent scenes of the British parliament, and even of the French revolutionary tribunal, a mea- sure so revolutionary in its character is not to be found. IJeflect, gentlemen, what may be the consequences if such a course of pro- ceeding is sanctioned. A dozen of conspirators may thus defeat all business in bodies of this kind, or in an Assembly which is composed of half a dozen parties, any one may rise and get a half a dozen of his partisans around him and thus half a dozen cliques be formed, each desirous to carry its particular or favourite measure, and each proclaim itself the constitutional body. Must we acquiesce in such scenes of confusion as would entirely destroy deliberative and legislative bodies? Every deliberative body must have some mode to ascertain the judgment of its members, as it is impossible to transact business without order ; and the mode universally adopted by such bodies, is, that no question can be put to the body but by or through its presiding officer. And if you find an Assem- bly without any rules of order and without any head, what do you observe but a confused, disorderly, violent and lawless mob, where evcTy man acts according to the dictates of his own folly or ca- price? If a private member of his own mere motion rise up and seize the reins of government, he is an usurper. If he should suc- ceed in such a disorderly course it would be a revolution, and if he did not succeed it would be rebellion. The diflerence is simply in the result, and in either case, though it may be righteous, and done for good reason, and the participators in it be virtuous and good men, yet it is usurpation, and usurpation is not to be tried by rules of law in this court. It is a great mistake and a narrow view of the case for a party or faction to assume that a mere motion of a member in a deliberative body necessarily puts it in posses.sion of 327 the question. I might as well put a question to the spectators in this crowded room, and if they remain silent say to them, very well, gentlemen, " silence gives consent," and then go away and proclaim that the whole house is with me on that question. Or suppose I now claim of you a verdict for these defendants. Sup- pose I put the question to you, "gentlemen, have you decided in our favour?" and you remain silent, as no doubt you would, may I not say that you have acquiesced in what I demand, that you have already decided in favour of our claim? If I should do so, and go away and report that we have gained the great cause of the Pres- byterian Church, and in a day or two afterwards, when you should be called on in a very different manner, by his honour, from that bench, you should give the verdict the other way, would not my position be rather awkward? The reason is, that I am not the proper person to put the question to you, neither is this the proper lime to put it, nor are you in duty bound to respond to a question, if put by any other than the honourable judge of this court. Gen- tlemen, what is putting a question? Is it the proposing of a ques- tion by an unauthorized, or by an authorized individual? In a deliberative body when a member rises and says "I move that such a course of proceeding be adopted," he acts in accordance with an acknowledged right. But having made his motion, other rights in- tervene, to take up that motion and put it to the house. For this there is an express requisition of parliamentary law, noted in 2d Hatsell. I will read to your honour an authority which has been considered, ever since its publication, the very best on the subject, since all subsequent treatises have reference to it. He says, on page 105, " It was the ancient practice for the speaker to collect the sense of the house from the debate, and from thence to form a question on which to take the opinion of the house ; but this has been long discontinued: and at present the usual and almost uni- versal method is, for the member who moves a question to put it in writing, and deliver it to the speaker; who, when it has been seconded, proposes it to the house, and then the house are said to be in possession of the question." I have preferred to quote Hatsell, in his exposition of this funda- mental law, in his own words. He was followed by Jefferson, who, in his Manual, lays down the same principles. The counsel complained that we had presented these rules before in little books, but I trust that I have now produced one big enough to satisfy him. Every deliberative body places itself under the control of a responsible head, from whom alone it can receive questions proposed for its deliberation, and that head or presiding officer occupies a conspicuous position, like that occupied by his honour, the presiding judge of this court, so that he can see and hear all that passes in the house. His being thus placed is not a mere accidental circumstance, but a form of substantial conveni- ence in the transaction of business. Otherwise, interminable em- barrassment, riot and confusion would inevitably follow, and the transaction of business would be rendered impracticable. But we are not left to Hatsell or Jefferson alone to supply us with a rule on 328 this occasion. I will appeal directly to the rules of order of the General Assembly itself, which destroys at once the cause of our opponents. That very Assembly of 1838 adopted this rule, which I read from the Assembly's Digest, page 25, rule 6. "A motion made must be seconded, and afterwards repeated by the moderator, or read aloud, before it is debated; and every motion shall be re- duced to writing, if the moderator or any member require it." That it was necessary to conform to this rule they admit, for the gentlemen have asked every witness the question, "Was the motion seconded ?" though they seem to have forgotten one part of this rule, which is separated from the other only by a comma. Now I put it to you to say if the General Assembly of 1838 was put in possession of the question. The rule which I have just read requires that a motion when made must be put by the moderator. Was the question so put by the moderator? At what time, by an intendment of law, was he supposed to have put the question? The rule requires that the question must be put by the moderator, after it has been repeated or read aloud by him, and not before. The moderator, and the moderator only, has a right to put the question to the house, and he who usurps that authority is acting in a rebel- lious manner, and it was the right of the other members, nay it was their duty, to call him to order. Mr. Cleaveland, in usurping the place of the moderator, trampled on the rules of order and put himself without the pale of the law. What he did, therefore, was not obligatory on any member of the Assembly, nor could any one be bound to vote on a question put by him. Well, let me not be ansv\ered that a case of e^w^me neces- sity may occur, where the moderator will not put the question. I know of no right existing under any circumstances for a private member to rise and put a question. If he was competent thus to bind the members in this case, he might have usurped the power of the moderator altogether, and had in his hands nine-tenths of the whole power of the General Assembly. "Necessity is the tyrant's plea." It knows no law, and is bound by no principle. Shall he not on this plea of necessity usurp the office of the clerks, by accusing them of having refused to do their duty? Why did he not consti- tute himself clerk? Was not the case of the clerks a case of ne- cessity, which would have authorized him to seize the pens, himself complete the roll, and usurp every function of the Assembly as well as that of the moderator? If then the question was not legally pur, were we bound to vote? No. They had a right to frown down every attempt to take away their rights. They knew full well that if the moderator put a ques- tion, it was their duty to vote on that question, but if another per- son put a question to their injury, they were not bound to acknow- ledge his right so to do. If Mr. Cleaveland had put his question to the moderator, and the moderator had put it to the house, and the members had then been silent, they might, by an intendment of law, 329 t have been accounted to have acquiesced, because they would have understcod the question, and have known that it was put by the proper officer. Here is a regular system of government. But a private member gets up and proposes to take the government into his own hands, and every one who does not utter his dissent is considered as acqui- escing in his usurpation. By such an assumption it is an easy mat- ter to create a constructive majority in submission to the will of the usurper. By such an usurpation Caesar triumphed over the Roman senate, and substituted his own will for the laws of his country. Every tyrant that has trampled on the liberties of his country has succeeded by similar means. By such an usurpation of power did Oliver Cromwell enter the English parliament, pluck the speaker from his chair, and lake the government into his own hands. And by a similar process did that arch-usurper, Napoleon Bonaparte, ascend the imperial throne of France. He entered the council of five hundred, ascended the tribune, put questions by the list, and carried them, regardless of the will of the representatives elected by the people, by his train bands crying aye, aye, AYE ! It would be a waste of time to argue this position, that an official organ must put the question, or the house is not in possession of it; and that when the house is not in possession of the question, the members cannot vote. But then, the plea of necessity — and what are the pleas of necessity, that Cleaveland should state the ques- tion? I beg you, now, to remark that from his own statement, it does not appear that there was any necessity that he should occupy the position in which he placed himself. What does he do ? He rises with a paper in his hand, commencing with a formal "whereas." He reads and comments, but he submits no motion whatever to the moderator. He refuses to put the moderator in possession of his motion. He did not address the moderator by his title, *' Mr. Mo- derator," but turns away from him, and when he thus refuses to put the moderator in possession of his motion, he has no right to say that the moderator refused to put the question to the house. Had he then any personal grievance to complain of? Now if he had put his motion to the moderator, and the moderator had refused to put it to the house, then, however disorderly, I admit that he might have had some pretence for appealing to the Assembly. Had Mr. Cleaveland's seat been denied him, as was the case with Mr. Squier, there might have been some pretext or apology for such a strange proceeding; but as there had been no such denial on the part of the moderator, he had no excuse, not even the shadow of a pretext, for proceeding in a manner which said, in the eloquent language of the action, I choose to depose you, and appoint myself moderator pro hac vice. But Mr. Cleaveland could not justly complain of the mo- derator's conduct towards himself. He had suffered nothing. He had not given Dr. Elliott a chance to receive the motion. He did not present his motion to him. Dr. Elliott did not refuse to put the question, and no man has a right, either in law or equity, to say ihat he would have refused to put it to the house, if he had been re- quested so to do. I believe he would have received the motion, and 28* 330 put the question nimseif, on a motion for his own removal, and he would have submitted to the decision of the General Assembly, Such a motion vi^ould not have been considered personal to Dr. Elliott. By his putting the question himself, his feelings would have been spared. But if he refused to put the question, an appeal might have been made to the General Assembly. And it is to be pre- sumed that no presiding officer whatever would act in opposition to the will of the majority of the house. If he did, the power to remove him from office is vested in the house. Now, if it were necessary to remove the presiding officer, a motion to that effect must be put to the house through the presiding officer, and if he refuse to put the question, then through the next official dignitary of the house. If the motion had been submitted to the moderator, and he had put the question to the house, he might have been re- moved, as in the case of Dr. Beman in 1835. Then Dr. Elliott would have said, "If it is the wish of the house to turn me out, I submit to it." But Mr. Cleaveland chose, ex mero motu, to assume the functions and clothe himself with all the paraphernalia of the highest officer in the General Assembly, — and claims to exercise those powers in the face of the whole Assembly, notwithstanding a regularly elected and properly constituted officer then occupied the chair. And there were some half a dozen other persons on the floor of the house, who had been elected to the office in previous years, and therefore were the proper persons, instead of Mr. Cleave- land, if there was occasion for any other than Dr. Elliott to fill the place of moderator. Well, under these circumstances Mr. Cleave- land executed his purpose, organized an Assembly, and upon this organization the relators in this case rest their claim. If there had been a necessity for the removal of the moderator, what was the proper course for them to take? Why to say, Mr. Moderator, I move that the next preceding moderator present take your place. That was the motion in 1835. If they failed in this, or the next preceding moderator was not present, they must resort to the one still preceding him, and so on, ad infinitum. ; every individual who had filled that office being entitled to the precedence, over any one who had not filled it. When Mr. Cleaveland and those who acted with him undertook in this manner, in the face of the General Assembly, by indirection, to remove the moderator from his office, by declaring that they had elected another, for the double purpose of filling the office and of turning out the present incumbent, they aimed a deadly blow at his devoted head. They make a personal attack, and wound his feel- ings to the very utmost. They in eflect declare to him and to the world, that they place no confidence in him, and consequently they will not entrust him with the motion. They declare that he has forfeited his office by misconduct, and that half a dozen members on the floor of the house have a right to depose him at their sovereign will and pleasure. They in eflect declare that they have a right to take from him the insignia of office, to degrade him in the view of his fellow-men and in the face of the General Assem- bly, by thus declaring him to be unworthy of confidence. At every 331 step of these proceedings the rights of the General Assembly were invaded in the person of the moderator, as were also the rights of half a dozen others who had previously been moderators. Recol- lect, I now speak of Mr. Cleaveland. I say nothing now of Dr. Beman : I will refer to him at a proper time. A high-minded and honourable man will always prefer encountering the undisguised attacks of an open enemy, to the insidious designs of the dastardly and cowardly assassin, who stabs with the stiletto in the dark, or accomplishes his hateful purpose by indirection. It would be a latitudinarian doctrine, indeed, that would sanction such a course of proceeding, and nothing can be more dangerous to both civil and religious liberty, than latitudinarian and agrarian doctrines of construction. Such doctrines lead to disorder, to con- fusion, and to anarchy, which is the commencement of tyranny and despotism. If Mr. Cleaveland's object was to remove the modera- tor without "discourtesy" towards him, or aiming a stab at his feel- ings and reputation, his object would have been attained by simply rising in his place, and saying, "Mr. Moderator, I move that the next preceding moderator take your place." That was the motion in 1835, when Dr. Beman was removed from the chair by a vote of the General Assembly, and Dr. William M'Dowell was put in his place; and no doubt if a similar course had been taken by Mr. Cleaveland and his associates in 1838, Dr. Elliott would have acted on the occasion precisely as Dr. Beman did in 1835. He would have retired from the chair without a murmur. But they were not satisfied to proceed in this open and undisguised manner. They undertook the accomplishment of their purpose by indirection, and they thus violated the rule of order which was the law in relation to the case. The only power which they had, or possibly could have, was to put the next preceding moderator who was then pre- sent, in the chair: and we have proved that there were several persons present who had previously held that office in the General Assembly. But Mr. Cleaveland saw fit to rise and say, ' Whereas Dr. Elliott is not fit any longer to be moderator, he must be put out; but I am fit for moderator, and therefore I will assume the functions and office of moderator, and proceed to organize the Ge- neral Assembly, by making motions and putting questions to the house in relation to those motions.' I say, gentlemen, Mr. Cleave- land had no right to do this. The utmost extent of lawful power which he could possibly possess, was to move that the next preced- ing moderator present should take the moderator's chair and as- sume the functions of moderator. But instead of this, when he pro- ceeded to charge the moderator with misdemeanor in office, and, in language carrying all the imaginable presumption of a demagogue and dictator, to constitute himself the moderator, he was clearly rebelling against law and order. When he thus said, I will orga- nize this General Assembly, he could not reasonably expect that courtesy which he had denied to others. He did constitute himself the moderator. He did undertake to preside at the organization of the General Assembly. And it is on that fact that I rely in this de- fence, since on that our opponents rest their claim. I rely on the 332 presumption that Mr. Cleaveland was a moderator, and they must admit that he was de facto a moderator, or their argument, based on the presumption of the legality of his acts, totally fails. For if they sink Cleaveland to a mere imaginary connecting link, in the chain of their proceedings, their case cannot be sustained. The moderator was the connecting link, the conduit through which was to flow the power from the General Assembly of 1837 to the Gene- ral Assembly of 1838; and if this link should fail, that power could not issue, as a clear and limpid stream, from one Assembly to the other. Mr. Cleaveland, then, was a moderator, acting by a self- assumed power. They must admit that he was the connecting link through which the power flowed from one Assembly to another, or abandon their cause, which turns on the legality or illegality of his acts. It is necessary scrupulously to examine this point of order, to discover by what authority (if by any kind of authority) Mr. Cleaveland performed the functions of a moderator, because their case rests on it. Unless they had a coward for a moderator, he would not refuse to put a question relating to himself, and Dr. El- liott would not have refused to put the question to the house, if Mr. Cleaveland had entrusted him with it, in accordance with the rules of order and of parliamentary law. They admit that he might have put that very question, and I will go further, and say, he must have put it. But they say that Dr. Elliott was disqualified. And what is it to the purpose, even if he were disqualified ? Would that be a justification of Mr. Cleaveland's conduct? Certainly not. It would be a poor apology, indeed, as by no construction of parlia- mentary law could Mr. Cleaveland be the proper person to put the motion to the house. You, gentlemen, might now, I should think, tenture to decide this point without further illustration. I suppose you fully compe- tent to decide this plain common sense question, whether any per- son can, in his own time and merely of his own will, constitute himself presiding officer, and exercise all the functions and duties pertaining to the chair, beyond the control even of the house itself? But as I intended to enter into a full investigation of this subject, I will now proceed to an examination in another point of view ; for you, gentlemen, will find it necessary to enter with me into a full examination of the minuticB of parliamentary law, in order to arrive at an understanding of this part of our defence. It is the main point, the hinge on which the whole controversy between these two parties turns. Suppose then that the moderator were disqualified, that his power was annulled, or had been rendered nugatory, the question arises, who was the proper person to put the question to the house? It might perhaps have appeared awkward in Dr. Elliott to put the question in relation to his own removal, but the obligation of duty resting on him was rendered the more impera- tive by that circumstance. Instances of the kind have occurred, and may occur again. But, suppose Dr. Elliott had abdicated. Suppose the moderator was self-annihilated, functus officio, whose duty would it have been to put the question to the house? The clerk's, undoubtedly. 333 The clerk was the proper person to put the question in that case, and it could not legally be put by any other person or functionary. This is a point of order, which is clearly established by parliamen- tary law. The British parliamentary law is very clear on this point. For a period of two hundred years, at least, it has been the uniform practice for the clerk to put a question to the house, when, from any cause w^hatever, the speaker was disqualified, or when the question had a personal relation to the speaker himself Some may apprehend that there is little reason why such a rule should be universally adopted, yet the experience of ages has proved its utility, and so absolutely necessary has it been found in a legislative or deliberative body, to have some official organ by and through whom the questions presented to the house may be propounded, that the rule has been rendered imperative. In cases of this kind^ if the presiding officer refused, it would therefore become the duty of the clerk, as the next official dignitary in the house, to put the question. It is so laid down in Hatsell's Precedents of Parliamentary Law. But it is not only John Hatsell ; Mr. Jefferson and Mr. Sutherland in their manuals lay down the same rule. 2 Hatsell 158, G Gray 406-408, Jefferson's Manual 118, Sutherland's Manual 104. I read from this big book (Hatsell, vol. 2,) as the learned counsel appeared to manifest, as I thought, some antipathy to little books, such as Jefferson's and Sutherland's Manuals. The rule is substan- tially the same in all the authorities to which I have referred, there being only a slight variation in the phraseology. " When it becomes necessary to elect a speaker, and but one person is proposed for that office, it has not been usual in parlia- ment to put any question to the house; but, no objection being made, without the question being formally put, the members pro- posing him conduct him to the chair. But if there be objection or another person is proposed, the question on the nomination is put by the clerk; and so also are questions of adjournment." That is the rule, and it is a rule of law whicli was established in the English parliament more than two hundred years ago, and we received it from England, before we acted for ourselves independ- ently of the British crown. This rule was introduced into the co- lonial legislatures whilst we were mere appendages to the British empire, and this rule materially influences this important case which mainly turns on a point of order. The rule was adopted on the occasion of the speaker becoming contumacious and refusing to obey the direction of the house; when the house took up the subject and decided two things at the same time. The one was "that a member has not the right to put the question, even in his own case;" the other, ''that the clerk of the house should put the question whenever the speaker should be in- capacitated, whether his incapacity should arise from physical dis- ability or otherwise," thus making the decision a precedent to all future time. Both in Europe and in this country has it been acted on, so scrupulously, that a single instance of a departure from this rule cannot be cited. All our American legislative bodies have, ex necessitate rei, uniformly adopted this rule. In all of them the 334 clerk puts the question to the house when the speaker is not present. This rule of parliamentary law is fanniliar to my friend, Mr. Lowrie, who was examined before you. He has been in legislative bodies, and is familiar with their practices. He has been for several years secretary of the senate of the United States, and in his capacity of secretary, has frequently put questions to that body in the absence of the vice-president. A similar practice prevails in your own state, with the proceedings of whose legislature some of you, per- haps, may be more familiar than with the proceedings of parliament or even of congress. But snys the learned and very ingenious counsel, who in his ar- gument has fully sustained the high reputation which he has ac- quired as a member of the bar, by what right shall the clerk propound the question to the house ? Shall a mere inferior officer, the mere servant of the Assembly, who is not even a member of the body, and consequently is less than a member, exercise that power? Shall the clerk who is the mere hand, (I mean the writing hand,) which wields the pen of the body, exercise higher functions than a member of the Assembly can of right do? I would ask him, and I ask you, why may not the clerk exercise that right ? Is not the clerk as dignified a functionary as any pressed member on the floor of the house. Here the argument of my learned and very worthy friend fails entirely. His argument cannot be maintained. Does he intend to say that whilst the officer elected by the house is not a sufficiently dignified person to put the question to thehouse, yet, any member who may rise on the floor may possess all the dignity of office, and may propound what questions he pleases, whether they be in order or not? The argument of the counsel is, (if I under- stood him,) that though the clerk cannot put a question to the house, yet any one else may. Will he pretend to say that the clerk is not a personage sufficiently dignified to be allowed to put a question, when it is expressly provided by the rules of the church, that in case of a certain emergency, the clerk shall exercise the functions of the moderator? In every stage of the proceedings in this case, they have ruthlessly put their feet on the principles of their con- stitution. I have already shown you, that long established pre- cedents are directly against them. But I have something more forcible than precedent to oppose to their proceedings. I have the written law; for the rules laid down in the form of government of the Presbyterian Church, are law in this case; and in case of dif- ficulty it is provided by this law, that the clerk shall supersede the members, and perform the functions of the head of the judicatory. Under ihe head "of the presbytery," there is a special provision, that the stated clerk shall in some cases exercise the power of call- ing together the presbytery, and requiring the members thereof to convene in special meeting. Thus, this extraordinary power, the very highest power of the moderator, is conferred on the clerk in such cases. The rule to which I have referred is as follows : Form of Government, page 360, chapter 10, section 10. "The presbytery shall meet on its own adjournment; and when any emergency shall require a meeting sooner than the time to 335 which it stands adjourned, the moderator, or in case of his absence, death, or inabihty to act, the stated clerk, shall, with the concur- rence, or at the request of two ministers and two elders, the elders being of different congregations, call a special meeting. For this purpose he shall send a circular letter, specifying the particular business of the intended meeting, to every minister belonging to the presbytery, and to the session of every vacant congregation, in due time previous to the meeting ; which shall not be less than ten days. And nothing shall be transacted at such special meeting besides the particular business for which the judicatory has been thus con- vened." Now, mark, the reference to the two ministers and two elders does not relate to the clerk merely, but to both the moderator and the clerk alike. Both are referred to the same privy council. The power of the clerk becomes in this case exactly the same as that of the moderator. When the moderator is out of the way, the clerk supplies his place. He fills the vacuum, stepping fairly into the shoes of the moderator himself, and exercising his functions. According to the parhamentary law of England, from which country we de- rived most of the fundamental principles of our institutions and laws, and also in our own country, the clerk is the person to put the ques- tion in case of the absence, inability, or disqualification of the pre- siding officer. And I have shown you that the rules governing one of the judicatures of this very church, confer the dignity and powers of the moderator on the clerk, in a case of paramount importance. I do not suppose that we can be driven from this ground. I cer- tainly cannot think so from any thing which the learned counsel has said. We shall not, by his denunciation of the powers of the clerk; for the General Assembly itself, no longer ago than 1835, when the moderator was excused from putting the question from motives of delicacy, decided, as the parliament of England had done long before, that the clerk should put the question, though the moderator was present, and actually presiding in the General Assembly at the time. Here, then, from every source, we have the most conclusive and satisfactory proof, that in every deliberative and parliamentary as- sembly in the world, the practice in others being confirmed by strong analogy and direct rule in this church, together with the precedent of our highest church judicatory, that when a presiding otiicer, be he president, speaker, or moderator, is disqualified or shall refuse to put the question, or when he is absent, the clerk shall propound the question to the house. But I have not even yet completed the list of errors into which Mr. Cleaveland fell, while engaged in this single transaction. His errors, intentional or unintentional, are very numerous. In our view, every thing that he said, or did, went but to constitute an as- semblage of errors. When he constituted himself moderator, he placed himself in a most unfortunate predicament. Immediately on his rising with the formal " whereas," he had to encounter points of order, which strike him in every direction, like the picture of the man in the beginning of the almanac, wounded in every vul- 336 nerable part of his body, and pierced in all his vitals ! The motion that he made was out of order, and would of itself be sufficient for our purpose. What was that motion ? He rose and moved that Dr. Beman should be moderator, or take the chair. The exact words which he used cannot be ascertained with precision, as the witnesses do not precisely agree as to the words, though they are agreed as to the substance of the motion, and non tnifii tantas com'ponere lites. At least four fifths of the witnesses swear, that the words which Mr. Cleaveland used were, " I move that Dr. Beman take the chair," or " be called to the chair," and with that form of the testimony the whole of the res gestae certainly agree. The witnesses agree that Mr. Cleaveland said that it had become ne- cessary to organize the General Assembly of 1838 : (consequently to re-organize it, as that Assembly had already been partially or- ganized:) he therefore proceeded to another, a new and separate organization, by appointing a new moderator and clerks. The sub- stance, then, if not the form of his motion was, that Dr. Beman should take the chair until a new moderator should be chosen. Accordingly Dr. Beman had no sooner assumed the imaginary chair in the aisle, (for there was no real chair in that place,) than they proceeded to elect another new moderator? Dr. Beman then, was not a moderator, but a mere locum tenens. He was but the chairman of a preparatory meeting, a meeting preparatory to their new and separate organization. For, if, according to their logic, Dr. Beman was in reality a moderator, there must have been three different moderators for the General Assembly, and all within the short space of seven, or seven and a half minutes. Dr. Beman evi- dently was called up merely as sort of intermediary or internuncio, to effect a new organization, and he merely sat during an inter- regnum. If then the proposition or motion of Mr. Cleaveland was that Dr. Beman should take the chair, (and such is the testimony of a majority of the witnesses,) it was in itself disorderly, because, under any circumstances, such an officer as an intermediary chair- man, is entirely unknown to the General Assembly of the Presbyte- rian Church. No such officer for any of their judicatories is recog- nized by the constitution of the church. And for what purpose do they thus appoint an officer unknown to the General Assembly? Why, forsooth, for the pui'pose of presiding in the election of a moderator for their deliberations. The question then was a disor- derly question, and it was propounded in a disorderly manner. I come now to the consideration of another little circumstance in connexion with these singular and most extraordinary proceed- ings, the question in relation to the appointment of Dr. Fisher as moderator. This is a little thing I admit, but when a case depends on little things, it is necessary to mention them. Now, it is not material whether Mr. Cleaveland or Dr. Beman first put the question in relation to the appointment of a moderator. We have fairly placed the saddle on one of them, and they were both out of order in this particular. I wish you to pay careful at- tention to this point, for though it is a little circumstance, yet it has a material bearing on the cause. I have said that the question 337 was out of order; and now I ask, what question would have been in order.? But one question could have been in order at that time, even if their other proceedings had been orderly, and that was " Will the General Assennbly now proceed to the election of a nno- derator?" Now nnark ; this question was never proposed. And why? Because it would have been voted down instanter, if it had been put to the moderator, and by the moderator to the house. This question was never put, and consequently there could not possibly be any tremendous and overwhelming majority in favour of elect- ing a new moderator. They knew that if they had put a motion of that kind, we would have voted it down instanter. It was there- fore that our opponents shrunk from making such a motion. When they come here, endeavouring to seize our patrimonial inheritance by an intendment of law in this court, we think proper to show that if they had then made the only motion that could be legally made, we would have voted it down. But, whatever may have been Mr. Cleaveland's motion, whichever form of the disorder be fastened upon him, of this we are certain, that the question put by Dr. Be- man was, that Dr. Fisher be moderator. That motion was made whilst there was a moderator in the chair. They thus dispense with the orderly question, and supersede the presiding officer by indirection; thus relieving themselves from all the awkwardness which would have attended their position, had they proceeded regularly. It is very important that you should examine this point. They neglected the preliminary question, and Dr. Beman not occupying a proper position for a moderator, but in the imagi- nary chair, they proceed at once to the election of a new modera- tor! It is not known that there has ever before been an instance of the election of a presiding officer of this body being passed bv yeas and nays as a simple motion. A moderator is not chosen by a mere resolution, but on a nomination. But I will show you that two persons were in nomination, and that no question at all was ever taken on the nomination of one of them. A moderator had been previously nominated, and it was therefore a contest between these two, for the chair. As to Dr. Beman, I do not know but he had a question to read from printed minutes, as Mr. Cleaveland read from written notes; but no matter, our opponents gravely tell us that every other question was passed unanimously, while on this there were nays. They found it necessary to reverse this question, and yet the learned and very ingenious counsel himself told you that if but one person is put in nomination, it is not necessary to reverse it. He further informed you that when there is but one person nominated no vote at all is necessary, as if there is no ob- jection, all are to be considered as acquiescing in the choice. But if two persons are nominated, the sense of the house must be taken on each nomination separately by yeas and nays. Thus then, the real question is this : there were three persons. Dr. Elliott, Dr. Be- man, and Dr. Fisher, and one of these was to be chosen extraor- dinary moderator, who was to act in a new and unknown capacity. The learned counsel says that where there is but one person nomi- nated, he may be chosen without calling for the veas and nays. 29 338 Granted: but where two persons are nominated, it is the practice for the clerk to call the roll, when each member votes for A or for B, as he may prefer. But here are three persons to be voted for. What now is to be done, the learned counsel has not informed us. Whether they are to be amalgamated by animal magnetism, or by some process of electricity, as bits of paper when electrified are brouo-ht into juxta-position, or amalgamated into one mass. By a common rule of parliamentary law, the motion to appoint a modera- tor was a disorderly motion, and by their own admission, the vote on the question was disorderly. The roll of members should have been called, and the number of yeas and nays recorded as they might be given for A, B, or C. But the minutes which are the record in the case, do not show that any such vote was taken. They do not even allege that a vote was taken on either of the nominations by call- inf^he roll, and the question relative to Dr. Elliott was not put at all. But they contend that the vote on the question of appointing Dr. Beman, was taken by yeas and nays, and that some nays were heard on that question. They have not been able to produce any evidence that nays were heard on the other questions. Conse- quently there is no proof that either of those questions were by yeas and nays. Dr. Beman and Dr. Fisher were chosen modera- tors by resolution, if they were chosen at all. And it is incompe- tent to elect a moderator by resolution as I have already shown to vou : such an occurrence as the election of a moderator of the General Assembly of the Presbyterian church by acclamation, was never heard of before this. The record says, a motion was made, the question was put, and Dr. Fisher was chosen by a large majority. Thus was he inducted into office. But the question was not put on both sides, and it is proved by their own witnesses, that no question was put on the appointment of Mr. Cleaveland, and if Mr. Cleaveland were a moderator, the motion should have been put on himself But these motions and questions were all out of order, as I have endeavoured to show to you. Such motions were entirely unknown in the history of presbyterial proceedings. But there is another rule of order which must be taken into con- sideration here, and that is, that an individual rising in his place must address the moderator. He must submit his motion through the proper organ of communication between the individual mem- bers and the body. The presiding officer is that organ or conduit. But Mr. Cleaveland did not address the moderator. On the con- trary, he turned his face from him in an entirely different direction, and'towards those persons near to him and to whom he made his motion. He did not address the moderator at all, but he addressed the New School people, and to them he put the question. He did not even face the Assembly and address them, but he voluntarily got behind their backs in the rear of the whole body, and while in that position he constituted himself a moderator, and put the ques- tion on his own motion. Wei!, how was it with his successor ? Did Dr. Beman address the moderator when he put the question on the appointment or election of Dr. Fisher ? He did not. Did he as- sume a position where he could address the Assembly ? He did 339 not. He too was located in the rear of the Assembly. The locality of these men during these proceedings is somewhat important. Suppose, for instance, that two or three disorderly persons in the gallery, or in the lobby, or in some nook or corner of the house, should assume the province of making motions and putting ques- tions to the house, would such proceedings be in order? The proceedings of these gentlemen remind me of the story of a braggadocia sort of a fellow, who, having been called to account by the court for his impudence, boasted that he had shaken his fist at the judge and called him a despot and a tyrant. " Well, how did he take it?" inquired some one that heard him. "Oh, he said nothing, he bore it all," was his reply. But being forced at length to give an explanation, he confessed that he had his cloak on, and shook his fist under his cloak, and said the judge was a tyrant be- low his breath. All the proceedings of these New School gentle- men were had in the rear of the body of the Assembly. Instead of addressing the moderator as was their duty by the rules of order, they turned away from him and addressed themselves to their as- sociates. And they took a position where they could conveniently communicate with their own party, in the rear of the house. They exhibited a singular spectacle indeed. I will now go to another point of order still more important than any that I have yet mentioned. It is indeed a paramount point that I now make. The multiplicity of these points of order, and their rapid accumulation, shows clearly that when persons undertake an act of this kind, they necessa lily fall into gross irregularities, as was the case in regard to Cleaveland's proceeding. It is thus that some men hastily press on amidst tumult and disorder to the consum- mation of the most atrocious acts of violence. They cannot at- tempt to stand on these proceedings. I am now about to mention a point of order, which, if it be raised in a deliberative Assembly, prevails over every thing else, and completely rides over every other rule of order. Even if a member is on the floor in the midst of his speech, only let this point of order be raised, only let the speaker or a member even in the warmth of debate amidst the tor- rent and tempest of party conflict, pronounce that single word "order," it instantaneously arrests all proceedings. That talis- manic word stills the tempest of strife, and all business is thereby de facto laid on the table for the time being. And no other business can be proceeded with, until the question of order is determined. Now, when Mr. Cleaveland rose with, all that gallimatia of a "whereas," and so forth, and so forth, one half of which he read, whilst the other half was spoken, cries of " order," " order," instant- ly broke forth from every point of the compass, at least from every part of the house where they might have been expected to come from, and were reiterated by many members on the floor. But Mr. Cleaveland proceeded with his harangue in spite of this point of order, and regardless of the reiterated cries of "order" from the members; thus introducing the precedent for an anomaly in legis- lative practice, even that of the consideration of two questions si- multaneously. What in this case was the duty of the moderator? :j40 It was his imperative duty to call Mr. Cleaveland to order. It was his duty to preserve order in the Assembly, and to do this he must enforce the rules of order. But what was then the duty of those who are endeavouring to enforce their claims in this court, on a point of order, it was their duty, at the echo of that all control- ling and emphatic word, to stop all proceedings; to take their seats and await in silence the decision of the house on the point of order which they thus raised. The cry of "order," no matter from what quarter it came, was equally efficacious. It should have brought them to a solemn pause, in order that the question of order might be fairly tried. It instantly became the imperative duty of the mo- derator to insist on this point of order, at all hazards, and to invoke the assistance of every member in enforcing it. In accordance with parliamentary law, there is also a provision on this subject in the general rules for the judicatories of the church: (it is rule 28, in the Appendix to the Form of Government,) as follows: — " If any member shall act, in any respect, in a disorderly man- ner. It shall be the privilege of any member, and the duty of the moderator to call him to order." In defiance of the authority of the moderator, and in open viola- tion of the dignity of the house and of the rights of every member present, Mr. Cleaveland persisted. It is no matter whether the mo- derator was right or not. The Assembly itself was the only tribu- nal which could decide that question. Mr. Cleaveland had no right to decide it himself. It was no matter whether Mr. Cleaveland "was originally in order or not. The moment ihe moderator said " order," even if he were wrong, until the question was decided by the house, he must be sustained, and Mr. Cleaveland was therefore out of order, from that time forward. What ! are we to be told that the General Assembly has not power to protect itself from insult, that it is utterly powerless, that when we were crying "order, order," and the moderator, shocked and agitated with their lawless proceedings, was vainly endeavour- ing to arrest the torrent of disorder, which bore down all before it, are we to be told that we acquiesced in those disorderly proceed- ings, which were persevered in, in spite of our utmost efforts to arrest them? Are we to be insultingly told that by an intendment of law the universal cry of " order, order," which burst forth from us is to be received as the evidence of our acquiescence therein. No man who regarded the authority of the moderator, or the rights of the General Assembly, would vote on that question. If he had done so, he would have been a partaker in the disorderly and riot- ous proceedings of Mr. Cleaveland and his party. They did not vote, they could not. Now those very individuals who caused all the disorder on that occasion, are now endeavouring to force us by intendment of law to consider a question as having been legally and properly put which was never submitted to the moderator, but was put to a party in open defiance and contempt of his authority. It is not only enjoined on the moderator to enforce order under such circumstances, but on the members of the Assembly also. Now, the propriety of the call to order does not depend on the 341 fact that one is out of order, but that the moderator, or a member, believes him to be out of order. If either the moderator or another member consider him to be out of order, the question whether he is really out of order or not must be settled by the house. Thus if Mr. Cleaveland had risen in order, and the moderator, armed with the insignia of his office, called him to order, he was bound to sub- mit to the call until the point of order was settled. If he attempted to proceed he immediately became disorderly. All the confusion that followed resulted from this disorder of Mr. Cleaveland. The moderator did all in his power to restore order, by calling him to order and rapping with the small iiammer which had been put in his hand as the insignia of his office. But the calls to order were not confined to the moderator. Cries of "order, order," met his ear from every point of the compass. He was altogether out of order from beginning to end, and shall they now be permitted to say that we yielded our consent by intendment of law, when we were crying "order" all the time? We intended to vote that it was out of order, and ou7' intendment is as good as theirs. But there is yet another point of order which was violated by these New School gentlemen. It is in evidence that Dr. Beman, Dr. Patton, Dr. Fisher, Dr. Mason, Mr. Gilbert, together with a great many others were standing in the aisle, and on the seats and pews at the lime. Even the newly elected moderator of their party, who they say was undoubtedly in the chair, was at that time standing on his feet in the aisle, in a position more than forty feet from any chair whatever. At the same time it was that they pressed forward towards the scene of that most orderly, quiet and peaceable, and what if I say Christian-like organization. They burst forth from every direction, they rushed from the pews, and over the tops of the pews, pressing and crowding towards the scene of action, in the midst of the crowd which had congregated near the centre of the house. Now we have a rule that whenever three or more than three members are standing at the same time, the moderator shall require them to sit down, consequently, in such a case, they were ipso facto out of order, and must take their seats, excepting the person who might be speaking at the time, and those who refused to take their seats in obedience to the call of the mo- derator were guilty of a gross infraction of the rules of order, which of itself fully justified the Old School party in bursting forth in one universal shout of "order." I will now read the rule to which I have referred ; it is the twenty-seventh rule, Appendix to the Form of Government, page 454. "When more than three members of the judicatory shall be standing at the same time, the moderator shall require all to take their seats, the person only excepted who may be speaking." This being the rule of the General Assembly is the law in this case, and every member of that Assembly had a right to demand that it should be enforced. It may be objected that the moderator and the Old School party did not require them to take their seats- Ah ! but they did the same thing, though in another form of words. They uttered and reiterated the call to order. "Order," "order,'* 29* 342 was heard from every pari of the house. When that cry was first heard, it might have been asked with propriety, "who is out of order?" And the answer might have been, "there are more than three members standing." In this case there were not only three members, for the whole association of these New School men rushed together with one accord. At least a majority of them were standing at that m.oment, and the whole of them were out of order, and the moderator was bound to restore order or the busi- ness of the Assembly could not be legally proceeded with. My remarks in relation to order, have, so far, an application alike to all assemblies legally organized, of whatever profession, or in whatever capacity met, whether for religious or civil purposes, legislative or deliberative. But there is another and more impor- tant consideration involved in the present case, one of vast import- ance and deeply affecting the peace and welfare of society. In a civil or political assembly composed of mere men of the world, the obligation rests on all the members to observe the rules of order, an obligation arising no less from courtesy and politeness than from the necessity of having proper order in the transaction of business. On an assembly of grave divines, rest special and additional obli- gations. The clergy are considered as being by their ordination separated from the world, and commissioned to teach the doctrines of a holy religion, which peculiarly inculcate the principles of peace and order. They are, therefore, bound to set the example them- selves. Their business and habits of mind should lead them care- fully to scrutinize the maxims of propriety, to cultivate a spirit of meekness, forbearance, and proper regard to authority. It would be derogatory to the institutions of the church to suppose that they had not added something of a graver nature than the obligations which rest on other assemblies, or than are exacted from us, mere children of the world. Accordingly, we find that the twenty-fourth of the standing rules for the government of the judicatories of the Presbyterian Church, declared in these solemn and hortatory words : "It is indispensable that members of ecclesiastical judicatories maintain great gravity and dignity while judicially convened; that they attend closely in their speeches, to the subject under consider- ation, and avoid prolix and desultory harangues: and when they deviate from the subject, it is the privilege of any member, and the duty of the moderator, to call them to order." This rule is to be found in the appendix to the Form of Govern- ment, page 453. In addition, therefore, to every thing known in other assemblies, in an ecclesiastical assembly great gravity and dignity are required whilst the members are convened, whether judicially or otherwise. Did they at that time conform to this rule ? Did they give heed to its exhortation 1 Were their proceedings in the midst of such a scene of confusion characterized by that gravity which would add dignity to their acts and manifest the Christian forbearance becom- ing the professed ministers of God? If you had listened to the gentlemen who first testified in this court you might have sup- 343 posed so. But on the cross-examination, what appeared? Did it appear that they had quietly kept their seats, and yielded a ready obedience lo the lawfully constituted authorities of the General As sembly ? Did they give to the chair even the attention and courtesy which would have been anticipated in political or polemical as- semblies, influenced only by the exalted obligations of courtesy and politeness which belong to the character and standing of gentlemen, irrespective of the higher claims of Christian deportment? On the contrary, what do we see? A gentleman rose and stated that something had taken place which required that a new General As- sembly must be organized "at this time, and in this place," that they had been so advised by counsel learned in the law. In a hur- ried and broken voice, manifesting great agitation, he reads and recites, and not knowing exactly what he does, he interlards both his reading and his recitation with extemporaneous remarks, and as the confusion increases, with a trembling hand and a tremulous voice, in a tone scarcely audible, he adds, " not to appear discour- teous," "in the shortest time, and with the fewest words possible." But few even of his few words, only one now and then, are heard ; but he moved that Dr. Nathan S. S. Beman take the chair. Now I wish you to pay particular attention to the manner in which this motion was received by those New School men, who ought to have been bowed down under an awful sense of the responsibility resting on them, as men accustomed to exercise the functions of the sacer- dotal office. How was the question on Mr. Cleaveland's motion received by them ? How vf as it responded to ? Why, by a yell of "aye," so loud as to astound the whole Assembly, and drow^i the calls to order. Well then, in what manner did Dr. Beman go to the chair? Did he proceed to take his station in a grave and so- lemn manner? He rushes from the pew in which he had been sitting, retreats precipitately some distance down the aisle, takes his station in the midst of his party, turns his back to the Assembly, and acting as a chairman without a chair, a moderator without the; insignia of office, he proceeded to business without calling the As- sembly to order, or constituting with prayer, as their rules require that every General Assembly shall be constituted. Resolute as they were, they were not sufficiently hardened to assume the humble attitude of prayer, to crave the blessing of the God of peace and order, on their confused, hurried and riotous proceedings. Dr. Beman did not address the Divine Majesty, but he immediately proceeds to put question after question in rapid succession, which being seconded by some of the party, were responded to by thun- dering shouts of aye, aye, AYE, from those who were rushing from every part of the house, or huddled together in the aisle. Can any one suppose that that tremendous and thundering aye in the midst of such confusion was becoming the dignity of a grave and solemn assembly of divines? Only view them, pushing on to their strange destiny, dashing and foaming in their ungovernable fury from aisle to aisle, the confused noise reverberating with deafening sounds like distant thunder, until they at last rush through the open portals. Then, fearing that those who remained in mute astonish 344 merit at these unheard of proceedings, not knowing what was done, would be uncertain where they had gone, they send back a messenger to announce their departure. Thus from three cor- ners ot" the house, successively, was tiie vociferous proclamation iieard, that they had adjourned to Washington Square. Now I would ask you, gentlemen, if those New School members did main- tain great gravity and dignity whilst they were thus judicially en- gaged in the preliminaries of their new and separate organization? There is another circumstance connected with this matter which elicits a very curious inquiry in relation to this part of the case, and ihe consideration of which may assist you in determining whether ih(;se questions were put in such an orderly manner as to give an opportunity to all the members to vote. For even admitting that the questions were, inherently, proper questions, yet if we had not an opportunity to vote they cannot bind us by intendment of law. It will become particularly necessary to examine this circumstance, if the jury shall consider those questions lawful and orderly within themselves ; for order means, in parliamentary phrase, a regular question, properly proposed in the regular succession of business, and it does not mean anything else. If the time occupied by the proceedings was not sufficient for their completion, they could not have been had in an orderly manner. In order, then, to ascertain what was the space of timebetween the period when Mr. Cleave- land first gave utterance to his "whereas," and the period when the New School men in a body left the church in Ranstead court, it will be necessary for you, in the first place, to fix in your minds from recollection what was the evidence on this point, of course remembering that it was intended to be done in the shortest time possible ; and next inquire whether this time was sufficient for those multifarious transactions to have transpired decently and in order. The witnesses, I think, have generally put the time from four to seven minutes, and they all agree that the time was very short indeed. [Mr. Meredith. — The Episcopalian, the only one examined, said inenty to liventy-jive minutes.] Mr. Preston. — As to his testimony it is very uncertain. And I beg of you gentlemen to make up your own minds as to the time, and having done so, see what was done during that time. You will recollect that, in the first place, Mr. Cleaveland made a kind of speech or recitation which occupies ten or fifteen closely printed lines; he then made a motion that Dr. Beman take the chair, and put and reversed the question on that motion audibly and distinctly. Some of the witnesses, if I recollect aright, said deliberately. So much for Cleaveland, Then in regard to Dr. Beman's agency. Dr. Beman having marched backwards down the aisle and taken the imaginary chair, a motion was made for the appointment of temporary clerks, on which also, the question was deliberately put in the affirmative and in the negative. Then followed the nomina- tion of Dr. Fisher for the office of moderator, with the question thereon both put and reversed, and next the appointment of a stated 345 and permanent clerk, in a similar manner. Finally, came a motion for adjournment, also put and reversed. Thus then there were no less than fourteen questions (and I do not know but there might have been eighteen or twenty) put and reversed, and the vote taken audibly and distinctly on each in a period which is admitted to have been very short. Now I venture the assertion, that if so many propositions were acted on in the longest time suggested by any one of the witnesses, the historical records of the world do not furnish a case of similar despatch in business in any body governed by parliamentary rules. Why, gentlemen, it was the creation of a world, as regards the Presbyterian Church. The creation of the world which we inhabit occupied the wisdom and power of the Omnipotent Creator for six days, but here was one world destroyed, and another world created, and all occupied but from four to seven minutes. I well know, how wearisome these minute investigations must be to your honour, as well as exhausting to the patience of the jury, and nothing less than an imperative sense of duty could impel me to resort to the alternative of dissecting this case in this manner. It is necessary that I should claim your indulgence, for I apprehend that I am not going beyond what the exigencies of this cause de- mand. I will, therefore, endeavour still further to strengthen my- self as to the position that Mr. Cleaveland was out of order, from beginning to end, by showing that they could not have been other- wise than out of order, thai they did not intend to be in order, it being their purpose to organize a new and separate body, entirely distinct from the General Assembly of the Presbyterian Church, and they cannot now avail themselves of the advantage of an intend- ment of law, for maintaining the contrary. I will show that the gen- tlemen, in point of truth, have never considered themselves as acting in conjunction with the General Assembly, either then or since. 1 undertake to sustain the bold proposition that in their own secret hearts they never considered us as participating with them, nor regarded themselves in reality with us, but that they entirely segre- gated themselves from all connexion with us. I have entered mto the minutia of this investigation for the purpose of showing that it was utterly impossible that these gentlemen should consider them- selves as the rightful inheritors of the name and property of the Presbyterian Church. This, to some gentlemen, may seem bold language, but I expect to search the course of these men through and through, and to see their nerves tremble under the investigation. I now propose to aim a blow at the head of their case, which must put an end to its existence, I will show you that they did not con- sider themselves as any part or parcel of us or of the same Assem- bly with us ; and the first witness that I shall call in support of my position is Mr. Cleaveland himself What does he say? The paper which has been offered in evidence, being a part of the mi- nutes of their New School Assembly, is not the same that he read in Ranstead court. The original paper, which it is very desirable should meet the public eye, has been carefully concealed from pub- lic view, but this has been adopted as containing the substance of 346 the original, and I wish you to mark its language. [See page 260 of this report, at top.] Thus, these New School men have thought proper to give the substance only of that extraordinary paper. We can neither obtain the original nor an exact copy of it. Why was not a true copy of the original paper that was submitted to the General Assembly recorded on their minutes? Why the original cannot be found is a query that I should like to hear satisfactorily answered. But ac- cording to their statement, the language of their organ, Mr. Cleave- Innd, was, " As ice had been advised by counsel learned in the law." Who were the "ire" that had been thus advised? Had we, the Old School men? Did ice institute those extraordinary proceedings? Did Mr. Cleaveland mean to intimate that we, the Old School members, had been so advised ? He could not mean the Old School party, because he did not address himself to them. He did not mean the General Assembly itself, for he did not address the mode- rator, who was the presiding officer of the Assembly. It is there- fore evident that he used the word "we" as a designation of himself and his party; thus separating himself at once from those denominated Old School men, and whom they now wish to make a part of the " we" by intendment of law ! But to enter a little further into an examination of that remarka- ble paper. I find in it this language: "He trusted it would not be considered an act of discourtesy." Discourtesy — to whom ? Surely not to those who had appointed him to be their spokesman on that occasion; but to us of the Old School party. He meant to say, and in efl^ect did say, " I trust, gentlemen of the Old School, that it will not be considered discourteous to i/ou if we proceed to organize ourselves as the General Assembly of 1838." Is it not clear that thai was what they intended, even an organization of themselves separate from us? As to Mr. Cleaveland, he was the selected organ of a body of men to which we did not arid do not belong; and they appealed to the courtesy of the Old School party not to interrupt them. I will not so far implicate these JVew School gentlemen as to sup- pose that they were then deliberately setting a trap or pitfall in which to catch their brethren unawares, by a mere intendment of law. No, they did not at the time intend such treachery. But, supposing that we had so far acceded to their request as to agree to stand aside, as mere lookers on, in silence, while certain acts were performed, are they to be permitted to come into this court and say, "Gentlemen, you acceded to our proposition out of cour- tesy, and remained silent whilst we performed certain acts which we could not have performed elsewhere; and we have since found out that we can take advantage of you, and by a legal intendment we can construe your silence into an acquiescence with our acts?" Would you, gentlemen, by your verdict, sanction such a gross fraud? You cannot do it. Their questions were clearly put to themselves exclusively, and not to us. The preceding motions of Dr. Mason and others were propounded to us through the moderator, but Mr. Cleaveland's motion was not proposed to us at all. He did not ad- 347 dress the moderator. His motion was addressed to the New School party only, and not to the Old School men. He did not intend to address himself to us, nor was he so understood at the time. But let me again suppose a case. Suppose that paper of Mr. Cleaveland had not revealed their intentions. Sujjpose that there had been a previous understanding that the Old School men should remain silent spectators of the scene. Suppose that understanding to have been in consequence of a messenger sent by these New School gentlemen, for the purpose of entrapping us, with a request that we would be silent whilst they effected a separate organization of their party. And suppose that under such circumstances they should subsequently tell us that we had depended on a delusion, on a false security. What, gentleman, would that be, but the setting of a legal steel-trap? Such conduct is not practised by high-minded and honest men, or by honourable (christian gentlemen ; and I insist that no court of justice would sustain the fraud. Yet I really can- not perceive that this supposable case is stronger than the real one; that is, if our adversaries have really done what they now pretend. What are the facts in this case? Mr. Cleaveland rises in the rear of the Assembly, and says, " We desire to proceed to a matter of business, and as it is of very great importance to me and my friends that we should improve this present time, and act in this place, 1 hope that we shall be permitted to proceed without interruption — particularly as we mean nothing discourteous." He was aware that he was placing himself in a most extraordinary attitude, and he therefore urges the plea of necessity, at the same time begging that his conduct might not be considered discourteous. So forcibly was Mr. Cleaveland struck with the impropriety of his conduct, that he thought it right to apologize to the General Assembly for the interruption that he gave; and the words which he used, most certainly implied that he was asking permission to proceed with the contemplated matter of business. But that important word we shows 'conclusively tliat our oppo- nents did actually intend a separate and ex-parte organization. By that one word, in the manner and connexion in which it was used, the conclusion that they did not mean to include the Old School party, and did not address themselves to them, is completely clinched and riveted on these New School gentlemen. But I intend to leave no room for any dispute respecting the part they considered themselves as acting at that tifne. Out of their own mouths they shall be judged. By their own testimony you shall convict them. In a paper which was issued by the Assembly of this New School party, after their separate organization, there is a passage in which they give a solemn exposition of what they had done. It is in what is called the Pastoral Letter, which ihey ad- dressed to the whole of the Presbyterian churches in the United States of America, and which was no doubt intended as a full expo- sition of their proceedings to all the Presbyterian churches through- out Christendom. And I venture to say, that if you shall be satis- fied that they have really done what they say here, it is utterly impossible that your verdict should be in their favour. In this 348 Pastoral Letter they recognize the existence of two distinct parties in the Presbyterian church, and mention the differences which had arisen between them, which differences they lament. They next give a statement of the plans and propositions that had been made with a view to effect the restoration of peace. But, to the Pastoral Letter itself. [For this Letter, from which Mr. P. i^ade several quotations, see page 219 to 222 of this Report.] "We did" — "we" again: and who are the "we" that iiad taken "advice of counsel learned in the law?" Had ive of the Old School been so advised, before the session of the General Assembly of 1838? Had we the General Assembly, or we the Old School been apprised by learned counsel as to the effect of an intendment of law ? Had we, in a meeting for consultation and prayer, on the 15th day of May, 1838, sent a proposal to commissioners to the General Assembly which were met in another place. Was that meeting for consultation identical with the General Assembly of the Presbyterian church, or can we by any trick or intendment of law be identified with it, either as the whole or a part thereof? Strange, indeed! Well, " we did" all this, and then " it was resolved by the meeting," that is, we resolved, " that should a portion of the commissioners to the next General Assembly attempt to organize the Assembly, without admitting to their seats, &c., it will then be the duty of the commis- sioners present to organize the General Assembly of 1838, in all respects according to the constitution," and so on. Take notice, gentlemen, "the commissioners present" were "to organize the General Assembly of 1838," if a certain emergency should occur. Where were they present? In the General Assembly? No: that body had not yet convened ; but present in the " meeting for con- sultation." They were the "we" of the consultative meeting, the "we" who "acted under the advisement of counsel learned in the law." The New School party resolved, " that should a portion of the commissioners," that portion which were then in session " in another place," the Old School portion, attempt to do a certain thing, in any other way than that which met their approbation, then it would be the duty of " the commissioners present," thai is, the New School, "to organize the General Assembly of 1838." Thus this New School Assembly identify themselves with a previ- ously consulting body, who resolved that they would organize sepa- rately from the Old School commissioners, and then claim to be the General Assembly of the Presbyterian Church by an intendment of law. Such was the character of their resolution, as will clearly appear when it is dissected and exposed in its true colours. They go on to say, "By this answer all prospect of conciliation, or an amicable division of the church, being foreclosed, we," the same, the identical "we," "did, after mature consideration and fervent prayer, proceed, at a proper time and place, to organize, in a con- stitutional manner, the General Assembly of 1838." After this, will any man, learned or unlearned, pretend that we of the Old School acted with them, either by intendment of law or by any other intendment whatever; that we had previously consulted with ourselves, sent a messenger with a communication to ourselves, 349 returned an answer to ourselves; that we were both present and absent, there and "in another place" at the same tinrie: and that we " proceeded to organize " their Assembly, or assented to their organization? We did not regard the question on their separate organization as being put to us of the Old School party. They did not so regard or intend it, and we did not intend it so. We had not the opportunity to act with them. It was wholly an act of their own; an act relating to themselves only, and of course utterly null and void as regards us. Gentlemen of the Jury: I am aware of the tediousness of the minute investigations into which I am entering. I am aware, gen- tlemen, that your patience must be severely tried, but I feel that 1 am performing a most solemn duty. The case, as you are well aware, is one of very great importance, and, in consequence, I feel an additional obligation resting on me to endeavour to clear up every thing in relation to it. A faithful discharge of the obligations imposed on me, requires that I should omit nothing material to the issue; because I do not stand here as counsel for the defendants merely, but engaged in defence of the rights and privileges of the thousands and tens of thousands of Presbyterians densely scattered over the length and breadth of these United States. The aspira- tions now ascending from a thousand pulpits on our behalf, awake me to a full sense of the momentousness of this most important cause. I crave of you, therefore, not to suffer your patience to become entirely exhausted; and 1 trust, however feebly I may be able to go on to the termination of my argument, I shall not abuse your confidence, if you grant me the indulgence which I now ask. And may it please your Honour: I have nearly brought to a conclusion the examination of the several points of order which are involved in this case; and it appears to me that I have completely undermined the foundation of our opponents, and effectually demo- lished their superstructure. But, though I consider the monster as now completely prostrated, beaten to the ground, yet I will give this hydra one or two blows more, lest, perchance, there should be life left in it. Mr. Cleaveland was out of order. That fact is established, be- yond all controversy. For before he rose, a motion, as appears by the testimony, had been made to the Assembly through the mode- rator, for the appointment of a Committee of Elections. Now, any question raised whilst this was pending, unless it had relation to the subject matter of that motion, was disorderly. The fact that that motion had been made before Mr. Cleaveland rose, shows that it was then the pending question; and a subsequent question which is irrelevant to the purposes of another question which had been antecedently raised, is ipso facto out of order. I leave out of view at present the motions of the other gentlemen, together with the demand of Mr. Squier, and confine myself to the consideration of Mr. Cleaveland's proceedings. His motion was not connected with the pending question, nor was it germain to the determination of that question, either as an amendment or as an independent ques- tion. It was not a privileged question, for the appointment of a 30 350 moderator is not such. Besides, it was the standing order of the Assembly that the appointment of a Committee of Elections should be the first business, and there is a parliamentary rule that a sub- sisting order of the house must invariably, in all cases, take the precedence of all other business. So completely does the standing order of the day override and take precedence of every thing else in parliamentary bodies, that the moment the call is made for " the order of the day," all other business is suspended, and that question is immediately taken up. It is a privileged question which over- rides all other privileged questions, and any member may, against the consent of the house, force this question to be taken up. That such was the case with this question is rendered clear by a refe- rence to the minutes of the Assembly for 1826, page 40, where this rule is found : "The first act of the General Assembly, when thus ready for business, (that is immediately after the clerk has read the roll or report of the Committee of Commissions) shall be the appointment of a Committee of Elections, whose duty it shall be to examine all informal and unconstitutional commissions, and report on the same as soon as practicable." By this standing rule the first act of the Assembly, after the reading of the report of the Committee of Commissions, is the ap- pointment of a Committee of Elections. Now the execution of this rule was a matter of course. It was the duty of the moderator to enforce it, even if no motion to that effect had been made, and any member was privileged to call on the moderator for its en- forcement, and the rule was fundamental. A compliance with it was the first act which the General Assembly could orderly perform. Any person introducing any other business, therefore, was ipso facto out of order. In this case, the execution of this fundamental rule had been called for ; a motion had been made to that effect, when Mr. Cleaveland rose and made a motion in defiance of the established order of the General Assembly and of the motion for its execution; and not only this, but after he was informed by the moderator of the existence of this rule, he obstinately persisted in his course, though he knew that he was out of order. It is true, that the moderator did not enforce this rule of order, and why did he not enforce it? Dr. Elliott has told you, on his solemn oath, that he could not, because of the disorderly conduct of Mr. Cleaveland, and his pertinacious persistence in that disorderly conduct. He has distinctly informed you that he was called on to enforce it; but he found it impossible during those disorderly pro- ceedings. And he has told you further, that it was enforced soon, or immediately after Mr. Cleaveland and his disorderly associates had left the house. The rule to which I have adverted is of the most general and com- mon application of any rule of parliamentary law in existence. It applies equally to every deliberative body in the world. John Haiscll lays it down in these words, (I read from vol. ii., page 113.) "In- deed the doctrine of any one member having a right to insist upon any thing appears to be absurd ; for another member may insist 351 upon the contrary: and, therefore, in all cases whatever, the only- method of deciding whether any thing shall, or shall not be done, or how it shall be done, must be by moving a question to the house; that question to be seconded, and proposed from the chair, and the sense of the house taken upon it." This is the general doctrine of parliamentary law as laid down by Hatsell. The exception, which is to my present purpose, he gives in a note to the precept just read, as follows: — "The only exception to this is, when a member calls for the ex- ecution of a subsisting order of the house. Here the matter having been already resolved upon, and ordered by the house, any mem- ber has a right to insist that the speaker, or any other person, whose duty it is, shall carry that order into execution, and no debate or delay can be had upon it ; and this frequently happens in the case of admitting strangers into the gallery, the clearing the lol)by of footmen, telling the house when notice is taken that forty members are not present, &c. ; every member being entitled to have the orders and resolutions of the house carried into immediate execu- tion ; and in this case, the member does not properly make any motion, but only takes notice, that the orders of the house are dis- obeyed." It is useless to exhaust your patience by discussing this principle of parliamentary law. You see that Hatsell introduces it as an in- controvertible and established doctrine. However unreasonable the member may be in insisting on his right, " the matter having been already resolved upon, and ordered by the house," must be taken up when any member insists on it, and that without " debate or delay." If the house does not choose to conform to this rule, it can get clear of the difficulty in but one possible way; and that is, by re- pealing or suspending the order. And that can only be done by a deliberate and solemn vote of the house, two-thirds, or whatever established proportion, of the members voting in favour of such a repeal or suspension. Until it is repealed the rule is the law oi" the house, and any member may compel its execution. Thus, in illus- tration of this point; if the Senate of the United States, or any other parliamentary body, (the General Assembly of the Presbyterian Church, for instance) has decided that a particular question (the appointment of a Committee of Elections, or any other) shall be the order of the day at 12 o'clock on a particular day, when the ham- mer of the clock strikes the bell, announcing the hour of noon, the order of the day must be taken up, and all other business must be in- stantly suspended. A member in the midst of his speech, yea, even in the midst of a half uttered sentence, or word, is instantly arrested. The voice of that inanimate instrument is sufficient to arrest the tongue of the eloquent orator, and if he should fail to pause at the first reverberation of its sound, at that juncture, he would be called to order, and that instantly. However the house might prefer to listen to an interesting speech, unless the order is solemnly repealed, any one member may compel all the rest to a compliance with his wishes to proceed to the order of the day. This is the only alter- 352 native to avoid leaving imj)ortant business to be attended to or not, according to whim or caprice. By this fundamental rule of order then, no other business could be brought before the Assembly until the appointment of the (Committee of Elections was disposed of Even if other business could have been previously brought before the house, in an orderly manner, its suspension must instantly take place when that order was called for. It is, therefore, perfectly a matter of in- difierence, whether the call for the appointment of a Committee of Elections was made before or after the paper of these gentlemen was read, or ihe motiot-t of Mr. Cleaveland made, as that call was in order at any time; and not merely that, for it completely rode over all other questions, and put them out of order the moment it was made. It completely crushed every thing else, and more es- pecially Mr. Cleaveland's proposition. Pending the decision of this question, no man had a right to propose another question. Nay, even the moderator himself could not put another question to the house: even if another were proposed, the members of the house were not compelled to pay attention to it, or bound to vote for or against it. Yet during the pendency of the question on the appointment of a Committee of Elections, Mr. Cleaveland and his associates proposed at least half a dozen other questions, and, if we credit their asser- tions, they took the sense of the house on each one of them. The moderator swears that a motion for the appointment of a Commit- tee of Elections had been made, and he had a right to know that fact. There could not be an intendment of l;i\v in this case. I will maintain it, there can be no legal intenciiiitjiit without the question being in possession of the whole house, which Mr. Cleave- land's question, and those which followed, obviously could not ie, in this case. Even if the whole house had entertained those ques- tions and voted on them, it would have been of no avail. The moderator was opposed to them and their proceedings, and in the rightful discharge of his legitimate functions, was endeavouring to maintain the existing rules of the Assembly, and striving with all his might for the restoration of order. The moderator then would have been right, and the whole house wrong. I raise this point of order, and I put it on these three grounds, that it is sustained by a standing rule of the General Assembly, by the universal practice of parliamentary bodies, and by the high authority of old John Hat- sell, whom I have before quoted. I now dismiss Mr. Cleaveland, and proceed to show that all these gentlemen were out of order. This I propose to establish in such a manner as I think will effectually turn these gentlemen, all of them, out of court. The unauthorized, individual interference of Mr. Cleaveland, was in several particulars altogether disorderly. Unless greatly de- ceived, I have shown this to your full satisfaction. Now, he made his motion on the alleged ground that the constitutional officers of the General Assembly had refused to do their duty. The three gentlemen. Dr. Patton, Dr. Mason, and Mr. Squier, had each of them offered a resolution, prior to the complete organization of 353 the General Assembly, and because the moderator declared those resolutions to be out of order at that time, it is now alleged that the officers were removed for refusing to entertain those resolu- tions. Thus, according to their statement, they proceeded to organize the General Assembly because Dr. Elliott, the moderator, had declared that certain motions were out of order until the com- plete organization of the General Assembly should be effected. IVow, gentlemen, what do you think of their process of cornplelino- the organization of the Assembly, prior to the reception of those motions, and the passage of the questions consequent thereon 1 They say that they dissolved our Assembly because we refused to perform a certain thing which they deemed essential to the exist- ence of the General Assembly; and yet they themselves after- wards neglected to do that very act, the non-performance of which they so pointedly condemn in us. After they had chosen Dr. Be- man as chairman in the room of Dr. Elliott, they proceeded to elect a moderator and clerks, and then adjourned to another place, and there those resolutions were again presented, put and carried. They however fully completed the organization of their Assembly before the said resolutions were offered to it, much less passed. JVe could not organize the Assembly before receiving certain reso- lutions, and yet they could organize an Assembly before the recep- tion of the very same. Ah ! but we could not do it constitutionally because we had excluded or refused to admit certain persons; yet they could, and did organize themselves without admitting those very persons. They admitted them afterwards; and so might we have done, and there is no evidence that we would not. But if the refusal to admit those persons was the ground of their proceedings, why was Mr. Cleaveland selected to make the motion? Why did not Dr. Mason make the motion? If any one of them had any right to complain of the moderator or to make a motion for his removal, it was Dr. Mason, and not Mr. Cleaveland. If Dr. Mason were dissatisfied, he should have said, the moderator has refused to entertain my motion and appeal, and I move that he be deposed, or removed from office. Well, whatever was their real ground, they proceeded to the organization, and having de- clared their Assembly completely organized, they then adjourned to the Presbyterian church on Washington Square, and t/iei-e the reso- lution of Dr. Patton was again offered, and was adopted. I will now read their own version of their proceedings from the New School minutes. *' The moderator then audibly announced that the General Assembly was so adjourned, and gave notice, that any commissioners who had not presented their commissions should do so at the First Presbyterian church." They give us further information of what were their proceedings after they had re-assembled in the First church. They say: " The Assembly being again met at the lecture room of the First Presby- terian church, Dr. Patton again offered his preamble and resolu- tions as follows, which were unanimously adopted." And yet our moderator and clerks were turned out of office, and the General Assembly resolved into its original elements, and then 30* 354 by then) re-organize(J from those elements, because they had not received the said motions previous to the election of a moderator; the very same thing that v^^as done by these New School men im- mediately afterwards. They passed those resolutions for the first lime after their " being again met at the lecture room of the First Presbyterian church." And there, for the first time, are the com- missioners from the four excinded synods admitted to their seats. Though these gentlemen have so loudly complained of our modera- tor and clerks, for not admitting those delegates previously to the house being organized; yet so fully do they recognize the propri- ety of our course in that respect, that they act precisely in the same manner. For though those delegates from presbyteries with- in the bounds of the excinded synods, voted on the questions which were severally put by Mr. Cleaveland, Dr. Beman, and Dr. Fisher, yet after every one of those questions had been finally determined, the resolution was first adopted, that those delegates should be allowed to vote. This proceeding of these New School men reminds me of the story of the Satyr in some of the Arabian Tales, which blew hot and cold with the same breath. Every one must be struck with horror at the monstrosity. By adopting these resolutions of Dr. Patton's, they in eflect admit the validity of the proceedings of 1837, in so far at least that they precluded the admission of these members in 1838, till the Assembly should be fully organized. Thus these gentlemen sanctioned, by a "unanimous" vote of their house, all that we had proposed from the beginning. Yes, may it please your Honour, they censure our moderator depose him, and divest him of his official dignity ; and they turn out our clerks neck and heels, for the very act which, immediateh after, they fully sanction by their own unanimous vote. The last of Dr. Patton's series of resolutions requires the clerks, of course the new clerks of their newly organized Assembly, "to form the roll, by including therein the names of all commissioners from presbyteries belonging to the Presbyterian Church, not omit- ting the commissioners from the several presbyteries within the bounds of the Synods of Utica, Geneva, Genessee, and the Western Reserve." In virtue of this adoption of the resolution just read, those delegates came in, for the first time, after the extraordinary anomaly had been exhibited of their voting on the question of their own admittance. By their own admission they were out, and voted on that and other questions before they came in. Such were the shifts to which our opponents were driven, and such are the difficulties in which they have involved themselves. There is a tissue of blun- ders interwoven throughout the whole of their proceedings. Men always entangle themselves in difliculties when they attempt mea- sures of this kind, as the spider is sometimes entangled in his own "web, which he has interwoven with so much ingenuity and care for the purpose of entrapping the unwary fly. " A tangled web like that which spiders weave. Men form, when thus they practise to deceive." 355 Thus, then, these gentlemen have been caught in their own trap. They have violated their own rule. They have undernnined their own foundation. They have subverted their own principles. They turn out our officers for not doing what they would not give them an opportunity of doing in the only way in which, according to their ow^n acts, it could be done. I will now leave the consideration of those proceedings which were consequent on Mr. Cleaveland's motion with you, gentlemen of the jury, and proceed to another point in the cause. I will now take a more general and comprehensive view of the proceedings in organizing the General Assembly of 1838. I have not yet occupied as much of your time and attention as was consumed by my learn- ed friend with his exordium, and I will not take up much time in the consideration of the proceedings of 1837. I suppose, however, that in my effort to lay before you the facts only of this impor- tant case, I shall probably consume as much time with the sub- stance as he did with the shadow. The first remark which I will make in relation to the organization of 1838, is this: If the acts of 1837 were valid and legal, then, in any point of view, the organization in 1838 by the Old School party was in all respects a correct and constitutional organization of the General Assetnbly of the Presbyterian Church. And further, you may make those proceedings of 1837 as incorrect, unconstitutional and illegal as you please, and it will not affect the validity and consti- tutionality of our proceedings in the organization of the General Assembly of 1838. Those proceedings in 1838 were on their own ground correct and constitutional, and can be vindicated in a court of law, either with or without reference to the acts of the Assembly of 1837. The General Assembly of 1838 was de facto a new As- sembly, wholly independent not only of the General Assembly of 1837, but of all former General Assemblies. And the proceedings in 1838 were wholly independent of those in 1837. There is no necessary connexion whatever between the two, except as the Assembly in 1837 provides the elements to effect the organization of that in 1838; and the acts of the General Assembly of 1838 were substantially correct within themselves. Now it is not denied that by certain resolutions of the General Assembly of 1837, the names of the commissioners from four synods were stricken from the roll of members. They were stricken from the roll because it had been satisfactorily ascertained that they had not been elected by a proper constituency; and that Assembly at the same time, by a solemn act, decided that they should not be considered a part of the General Assembly of the Presbyterian Church in the United States of America. Here two questions naturally arise, and it is necessary that w'e should carefully distinguish between them. The first question is. Were the acts of exclusion legal and valid? The second is, If those acts were invalid, what then was the duty of the clerks, and of the moderator who presided over the General As- sembly at its organization in 1838? I propose now to examine both of these questions thus presented to you, commencing with the latter. 356 Supposing, then, that those acts of exclusion were invalid, uncon- stitutional, null and void, as our opponents assert; that the Assembly of lSo7 had no right to exclude the commissioners from those synods, nor to declare those bodies out of the connexion of the Presbyterian Church ; what then was the duty of the moderator and the clerks, who were the elements of the General Assembly, the only elements which had survived the dissolution of the Assem- bly of i837? Now an inquiry arises, Who and what is the mode- rator? He is the executive organ of the General Assembly. It is necessary to an understanding of this case that you should fully comprehend the exact nature of the moderator's office. In the book which contains " The Constitution and Form of Government of the Presbyterian Church," cap. 19th, his duties are prescribed and his authority defined as follows: I will read the rule. [See this Report, page 262.] You will perceive, gentlemen, that by this con- stitutional law of the General Assembly, the moderator is made the general depositary of the power inherent in the whole Assembly, for the purpose of executing the rules of order in effecting the organization of the body. He must therefore preside and preserve order, till the next moderator is chosen, being, as he is for this purpose, the organ of the house, and the only medium of communication between the individual members and the house itself. There is no discretion vested in him to judge of the propriety or impropriety of any law which may have been enacted, or of the constitutionality or uncon- stitutionality of any thing which may have been determined by the Assembly. And so it is with all executive officers. Their business is simply to execute the laws. An executive officer cannot say, "The law is unconstitutional: ergo, I will not carry it into execu- tion." Though it be in his private judgment unconstitutional, the law enacted by the competent authority is in full force, and cannot be repealed or nullified b}'- a mere executive officer. That must be left to the law-making power. Now, let us apply these well established principles to those who were the executive and presiding officers of the General Assembly at the organization of that body in 1838. Clearly they must do this in obedience to the requisitions of the existing laws of the General Assembly. On proceeding to the fulfilment of their trust, they find recorded in the minutes of a former year, an act of that body, unrepealed and in full force, requiring them to exclude per- sons of a certain description from the roll. What are they to do? The answer is plain. They are to execute the law. The only body that can repeal an existing law is that in which the legislative power is vested. And the judiciary is the only tribunal which is competent to declare a law unconstitutional. Admit then that the acts of the General Assembly of 1837 were unconstitutional and unjust, I would ask you, were the moderator and the clerks so to pronounce them ? What would we think of mere executive officers who should say, " We will do our duty in accordance with our own opinions of right and wrong; we will take the responsibility, and administer the laws as we understand the constitution?" I hold that they were bound to execute the order of the Assembly, even 357 though persuaded that it was unconstitutional. If that were the case, they took the only legitimate course. They expressly said, " We are bound by the law so long as it rennains unrepealed." And when it was urged on them that they should enrol the excluded commissioners, they inform those commissioners that their rights must be adjudged by the General Assembly, and that they had no discretion in the case. Had they acted otherwise, they must have perpetrated a most preposterous act, transcending their powers, and assuming that they could repeal a solemn act of the General As- sembly. That would have been "taking the responsibility" with a vengeance. The General Assembly only could repeal that act, and did repeal it, if the relators in this case are the General Assembly. If they are to be believed, they finally determined the question, with the full knowledge that the clerks could not so determine it. By a 5olemn and formal vote of the house, they repealed those very en- actments which they now say were so utterly unconstitutional, null and void, from the time of their enactment in 1837, that Mr. Krebs and Dr. M'Dowell should have disregarded them entirely, or that they should have repealed them on their own responsibility and by their own authority, independently of the General Assembly. But these executive officers acted at the commencement of the new Assembly merely by virtue of their appointment in the last Assem- bly. The General Assembly of 1838 was in some sort propagated- from them, as the germ which had been provided for its organiza- tion by the General Assembly of 1837. They were the connecting link between the old Assembly and the new. It has been stated to you that they were acting in obedience to pledges which had been exacted of them. Now, whether this allegation be true or false is not very material, as it is irrelevant to the case at issue. But it is not true in point of fact, nor is it true by legal intendment, because the clerks obviously did not intend to pledge themselves. The "whole difficulty here is in the manner of using many ambiguous words and phrases in the English language, by which men are oft- times enabled to " keep the word of promise to the ear," whilst they "break it to the hope." I deny that there was any pledge given. The clerks refused to give any pledge when it was exacted. Those officers, when the resolution was offered requiring a pledge of them, replied, "I will give no pledge, but I think it right to tell you what I consider to be my duty." If these were not the exact words, the declaration was the same in substance. Of their own accord, they declared what they would do; a very different thing from what the other side charge them with. Besides, no pledge ever was required of the clerks. The Assembly did not agree to Mr. Ewing's resolution. He offered that resolution of his own accord, and when he found that the clerks refused to give a pledge, (though they declared their intentions,) he withdrew it of his own accord. So, their rejection of those commissioners was not a con- sequence of Mr. Ewing's resolution, nor of a pledge from the clerks, but it was the result of their own conviction of dut\^ They acted voluntarily, and therefore independently of the General As- 358 sembly of 1837, except that they relied on the acts of that former Assembly as authority. Now, gentlemen, even admitting those acts of 1837 to be uncon- stitutional, they are the law, and an unconstitutional law must be executed or einforced whilst it is law. That unconstitutional law can be got clear of only by legislative or judicial authority. The clerks were bound by the law, and it was their indispensable duty to aid in carrying it into effect. It was competent for the General Assembly of 1838, to repeal the law which had been enacted by the General Assembly of 1837. The clerks, therefore, were right in referring the whole matter to the house for its decision. They could not have been right, had they acted otherwise than they did. They only fulfilled their duly in accordance with the law, as I have adduced sufficient authority to show. It was the duty of the clerks first to decide whether a commissioner is entitled to his seat in the Assembly, and in this case they decided by saying, "We will not admit the party to the roll." Who then shall admit them? Why, the house; because the house, and the house only, has power to admit them, by a repeal of the law. And what is the house? Is it every body who may chance to be within the walls of the build- ing? The house undoubtedly is composed of those persons whose right to seats was not contested. The inquiry then arises, when .can the house admit one who is disputed? Can it do so before or after its organization? It is self-evident that the organization must be completed before the delegates can compose a house capable of transacting business. In the present case, the clerks having rejected certain persons who claimed to be commissioners duly elected, it became necessary to inquire how those commissioners came there. To make this inquiry, the rules of order provide for a Committee of Elections to be appointed by those commissioners whom the clerks had admitted. This proceeding is made absolute by a stand- ing rule of the body. The reasons which influenced the judgment of the clerks in their decision are not open to inquiry. With those reasons we cannot meddle unless you make a civil court to enter- tain an appeal from the decision of an ecclesiastical tribunal in re- lation to a matter which is unquestionably within the jurisdiction of such ecclesiastical body. May God in his wisdom forbid that this, or any other civil court, should ever maintain so monstrous a doc- trine. No matter whether the decision was right or wrong, it is not a question for this court to determine. A civil court cannot have jurisdiction in the case. Otherwise you produce the anoma- lous and monstrous result of amalgamating the church and state, and put it in the power of the civil magistrate to decide questions of conscience; a monstrous result indeed, and one to which none of us would be willing to submit. Until, then, the question of the disputed commissions was referred to the Committee of Elections, and they had reported, the direct question on the admission of those members cotdd not be brought before the house. That was the way to brmg the question before the house. That course was open to these gentlemen. Or they could then have moved the repeal of the acts of 1837. This course was open to them, and they knew 359 it. They knew too, that if the General Assembly of 1838 should de- cide against them, if that body should by a solemn vote determine to abide by the decision of the General Assembly of 1837, then the very questions which they are now so very desirous to present might have been raised. Why then did they not pursue this course? The reason is evident. If they had done this, they would have ma- nifested their submission to the law, and afforded an opportunity for the question to be fairly met and decided by those commission- ers who had been admitted because their seats were undisputed. But this was the last thing which they intended to do. How ab- surd is any other course, is obvious from the fact that it would involve the anomaly of individuals voting on the question of their own admission to a seat. But as to the time when this proceeding might have occurred, though it is not materia], yet I will put myself on this ground also. Before the report of the Committee of Elections the Assembly was but in an inchoate state of organization, and existed in this state by virtue of the acts of a previous Assembly; and during the process of its organization, the officers of that previous Assembly perform their respective duties as officers in the present Assembly, for the purposes of organization merely. In the first place the General Assembly is constituted with prayer by the moderator of the preceding Assembly, and being thus consti- tuted proceeds to the business of forming the roll of its members, by which the Assembly is organized, and until the organization is completed, there is no house for the transaction of ordinary busi- ness. There was no house by which any name could be added to the roll reported by the clerks. I put the question to you, could they be added whilst the house was not yet organized? I know that you will agree with me that they could not. But these gentle- men were too impatient. They made their motions whilst the Assembly was in its inchoate or incipient state, whilst there was in fact no house. Who were to vote on the question? Who were the Assembly? Do they mean to assert that the Assembly was that mixed crowd which thronged every avenue of the church in Ranstead court, from the floor to the galleries, the men, women and children who listened to the sermon and constituting prayer of the moderator, or even all who might pretend to be members ? Such an assumption is an absurdity. That body was, at that time, com- posed of those members only who had produced undisputed creden- tials, and all of this description must have been admitted to their seats before the organization could be completed, or the Assembly could perform one valid act, except such as had immediate con- nexion with the organization itself. The number of such undis- puted commissioners is not material, provided they amount to four- teen, nor is it a material point whether they composed the majority or the minority of those claiming seats, they, and they only, were the persons to whom a question could be legally put. As to the ascertainment of who are entitled to their seats, the rule decides how it shall be done. In the lirst place, all the commissioners were required to present their commissions to the clerks, who, as a 360 Committee on Commissions, were to examine tiiem, to decide as to their validity, and report the roll to the Assembly. In the second place, disputed and informal commissions were to be referred to the Committee of Elections. The moderator then proceeds to the organization, by throwing off the exuviae, or those whose creden- tials were irregular or disputed, and declaring those reported by the clerks to be members of the house. Now, in connexion with this organization of the Assembly, there is another circumstance which deserves a passing notice. It is this. Dr. EUiott was not our moderator. Suppose, then, that he did wrong ; his wrong is not to be imputed to us. We did not even appoint him. He was not our moderator. Our opponents say that the conduct of the moderator vitiated the organization of the Gene- ral Assembly of 1838, and therefore authorized them to do what they did. They cannot substantiate this allegation unless they can make it appear that the moderator had control of the Assembly, or was the Assembly itself. Dr. Elliott was in fact the moderator not of 1838 but of 1837, and was to continue in office only to preside at the organization of the General Assembly of 1838. They were continued in office by the rule merely during the process of organi- zation in 1838. The Assembly then were not responsible for the acts of the moderator, unless they had sustained those acts by a solemn vote of the body, which they did not, as it has been clearly proved that no question was put to the house. An appeal was indeed taken from the decision of the moderator, that a motion was out of order at that time, and the appeal was declared to be also out of order, but no question had been put to the house. Now how does it appear that the house sustained that decision of the modera- tor? In no way whatever. They assumed that position for the purpose of turning him out. But at the same time they are driven to the necessity for another purpose, of maintaining the contrary. Both propositions, though they are contradictory to each other, they must maintain, or they cannot sustain their cause. Their course in regard to this matter is any thing but a straight-forward course. In such an endless labyrinth of difficulties, do those who depend on cunning usually involve themselves. But we did not sustiain the moderator of his acts, for no oppor- tunity was afforded us of acting on the matter in anywise. We could not pass those resolutions which were offered by them until the General Assembly was organized. And they are not to infer that we would not have passed them after the organization. If they had waited and given us an opportunity, we might then have pass- ed them ; and if we had refused, they might then have had some shadow of ground for this allegation against us. But we did not sustain the moderator, and we are not bound by his proceedings. We think that he did right. But thinking so will not implicate us without an overt act. " Ah ! but," say the learned gentlemen on the other side, "you acquiesced in the moderator's refusal to put the ques- tions on the appeals to the house." They thus attempt to implicate us by that eternal intendment of law. But when the moderator decided that the appeal was out of order, was any appeal taken from that 361 decision? Certainly not. There was no appeal from the dc-ision of the moderator on that question. The house did noi decide the question, for he did not put the appeal to the house. Mr. Cleave- !and did not venture to say to the house, "Gentlemen, the modera- tor has refused to do his duty: he has refused to put an appeal to the house; therefore, /put it to you: Will you sustain him in this decision ?" In not daring to do this, the only leijitimate thino" to be proceed on the presumption that the facts are otherwise than ihev really are; and, pro hac vice, in order to try them for not being mem- bers of the church, you must consider them to be members. In order to prove that they are not Presbyterians, you m;ist ac- knowledge that they are Presbyterians. If I have not placed this matter right, it must be because the gentlemen have not been able to give me their assistance. But the General Assembly is a quasi corporation, and as such, had not power, by the Plan of Union, or otherwise, to admit Congregationalists into the Presbyterian Churcii, as that would be a violation of the act of incorporation. We come, now, to the position suggested in the course of an argument on the admission of certain testimony in this case, that, from the tenor of the act of incorporation, the introduction of anv admixture, other than Presbyterianism, is against the integrity of the incorporation. The act of incorporation does not recognize, or admit of mixed synods and presbyteries being in connexion with the General Assembly, but it is confined in its operation to the Presbyterian church, a church which is governed by ministers and ruling elders. The " Act of the Pennsylvania Legislature, incorpo- rating the Trustees of the Ministers and Elders of the Presbyterian Church in the United States of America," we contend, was granted to the Presbyterian Church, to a church composed of Presbyterians only, and without any intermixture of Congregationalists, or anv other sect. It was not granted to a General Assembly, cotnpose'd in the whole, or in part, of committee men, or their representatives. The words, '• ministers and elders," are repeated in that act over and over again, and the language of the said act was intended to conform to the fact. Now what comes of your modern Congrega- tional Presbyterians, or Presbyterian Congregationalists? Your committee men, and their representatives? They may hold up the Plan of Union as long as they please, but if the Plan of Union ad- mitted any one else than Presbyterians into the General Assembly, it was unconstitutional, and consequently a violation of the charter of incorporation, and the corporation might have been proceeded against by a writ of quo vmrranto. Suppose, for instance, the Gene- ral Assembly of the Presbyterian Church should agree to a Plan of Union with all other sects and denominations, bringing, under the broad wing of her charter of incorporation, one and all Christian pro- fessions. Could they hold property, or other privileges, under the charter? Did the legislature of Pennsylvania grant, or intend to grant that act of incorporation to all the religious sects and deno- 34 398 minations in the whole of Christendom? Or was that charter given to Presbyterians only? It completely separates them from all the other sects. That charter was granted to none but ministers and elders. It was exclusively confined to them, and he who intro- duces any others to the enjoyment of its privileges, violates both the letter and the spirit of the charter. I do not, however, say that a mistake, merely, involved such serious consequences as the utter forfeiture of the charter. A position on this subject, to which I al- luded in an earlier stage of these proceedings, was ratiier the sug- gestion of one of my colleagues, than my own, and to whatever consideration it may be entitled, I do not, in the present aspect of the case, deem it necessary to press it here. I do not, therefore, at present wish to be understood as saying, that because the General Assembly passed an unconstitutional act in 1801, thai the proceed- ings of all the General Assemblies which have been held subse- quently to that time, have been utterly nugator}' and void. They were, perhaps. General Assent blies de facto, though not de jure. The Congress of the United States, a few years since, refused to renew or continue the charter of the Bank of the United States, and the renewal of its charter, as many of you well know, was defeated principally through the agency of those who opposed it, on account of the real or supposed unconstitutionality of the act of incorpora- tion. Yet no person ever yet pretended, that all the acts of the corporation, all the transactions of that bank were nugatory and void. Or, to bring to your notice a still stronger instance, there was a set of acts passed by the American Congress, about forty years ago, termed the Alien and Sedition Laws, and the commu- nity, generally, appears to have settled down in the belief that those laws were unconstitutional. Yet no one ever dreamed of regard- ing them as null and void, whilst they were in existence. All acts done in execution of them, were considered to be valid. The power to repeal those laws was nowhere to be found but in Con- gress, and the power to declare them unconstitutional, and conse- quently void, existed nowhere but in the supreme judiciary of the United States. They had their day — and now, on all sides, the Alien and Sedition Laws are viewed as having been unconstitu- tional ; yet two men, at least, were imprisoned and fined for viola- tions of those very laws. For though there is no man in either house of Congress, who would advocate the re-enactment of those obnoxious laws, yet so long as they existed, they were the law of the land, and acquiesced in, as such, by the people. Now, gentlemen, I have a few words to say in relation to the acts of the corporation, or quasi corporation if you prefer the term. As regards the acts of the corporation, so far as they involved the admission to the rights and privileges of the corporation, of any other than ministers and elders of the Presbyterian Church, those acts were absolutely null and void to all intents and purposes. Because the General Assembly does not possess the power as a quasi corpo- rate body to transfer its corporate privileges to another. They cannot divest themselves and impart to others the franchise which the legislature granted to them. At the moment that should be 399 attempted, the corporate powers of the General Assembly would revert to the legislature by forfeiture. The General Assembly would thus cease to be that General Assembly for which the act of incorporation provides. The legislature granted the franchise of the corporation to us as Presbyterians, and not to Congregational- ists and committee-men. It would therefore be a violation of the trust reposed in the General Assembly, to admit Congregationalists or deacons to the enjoyment of the corporate privileges of that body. The legislature contemplated " ministers and elders" only, and not even all ministers and elders, but ministers and elders of the Presbyterian Church and not any others. If, therefore, any church or congregation not belonging to the Presbyterian con-, nexion or communion, should designate its officers as pastors or ministers and elders, those officers could not be admitted to a par- ticipation of the benefits and franchises of the corporation, because though they would be known by the general appellation of " minis- ters and elders," they would not be " ministers and elders of the Presbyterian Church." If the legislature had intended to confer those corporate privileges on deacons, the name of deacons would have been introduced into the charter of incorporation. If, there- fore, any of these should be admitted to partake of the benefits of the corporate franchise, the act of admitting them would be not only wrong in itself, but in derogation of the charter of incorpora- tion. It would, by admitting officers or others of a different cha- racter from those contemplated in the act of incorporation, have vitiated the corporate power of the General Assembly. The act, then, by which such members were admitted, was wrong in itself, as the admission of Congregationalists under any pretext was a vio- lation of the act of incorporation. I do not say that the Plan of Union was wrong in itself. That may be controverted. But I do say that the General Assembly had a right to repeal it, whether it were right or wrong in itself, because it was only an act of the General Assembly. The repeal of the Plan can be justified by the General Assembly without admitting that it originally did wrong. Whether it was right or wrong, the General Assembly could repeal it at any time. And whenever it was repealed, the whole fabric which had been reared on it, must of necessity fall to the ground, and there must be a re-organization. [One of the opposite counsel here inquired, " Do you mean to say that such a re-organization took place in 1837?"] Mr. Preston resumed, "I did not specify any time." [The court inquired if the General Association of Connecticut had ever consented to the repeal. And was answered that an over- ture requesting their consent had been sent to that association, by the General Assembly of 1835, but no answer had ever been re- turned.] The only point of view in which the constitutionality of the Plan of Union can be at all supposed, is its being established for tempo- rary purposes, and that it was intended to operate only among those in the new settlements, amongst the wild inhabitants of a measura- bly uncultivated wilderness, and not to admit any except Presbyte- 400 rians to exercise power and influence in the church. It was an acC of the General Assembly; and as such, if it were an act of legis- lation and intended to be permanent, and to interfere with the es- tablished Presbyterian organization in any of the church judicato- ries, it was evidently unconstitutional, as altogether transcending the powers of the Assembly; and if not, though its unconstitution- ality could not be urged, yet if a wrong construction produced such an interference with established principles, it was such an abuse as the General Assembly had a right to rectify. The power was in the church, and consequently in the highest church judicatory, the General Assembly, which possessed within itself the legislative ju- dicial and executive powers. Such a power — the power to repeal a former act, is absolutely necessary to the existence of a delibera- tive body. Or if it were to be regarded as a treaty, with a foreign power, then the General Assembly is endowed with the treaty- making power, even that high power which is over all law and paramount to all other powers of government, that high power which nothing less than the supreme tribunal can exercise. This supreme power includes the power of excinding every thing at pleasure. The point of view, however, in which I regard the Plan of Union, is, that it was declaratory of what should be admitted in the intercourse between Presbyterians and Congregationalisls in the new settlements, and that whilst its operation was confined to the purposes for which it was originally intended, it did not interfere with the established order of the Presbyterian Church. But when, according to their construction of it, it did interfere, the highest ecclesiastical tribunal, the supreme judicatory of the church, had a right to repeal it. My proposition is that the act was not so intend- ed to be construed, because such a construction is contrary to the fundamental principles of the Presbyterian Church, and also to the act of incorporation, and that such construction did admit improper persons into the church there can be no doubt entertained ; we had therefore the right to repeal it. But an idea has been intimated, that these presbyteries and synods, or the congregations entering into their structure, had, under this act, acquired certain rights. That the act is in the na- ture of a contract or treaty involving the creation of vested rights, and that it could not therefore be repealed by the Assembly. Well, if the Plan of Union were in the nature of a treaty or contract, de- pending on circumstances existing at the time the contract was made, which circumstances afterwards ceased to exist, or were so far changed as to invalidate the said treaty or contract, we had a right to repeal it: and the consequence of the repeal was, as before stated, that every thing which was depending on it fell to the ground with the repeal of the plan. This is the fact, unless, as intimated, certain inalienaf)le rights had accrued from the instrument, being in the nature of a contract, and a quid pro quo having passed be- tween the parties, those rights being in the nature of vested rights, which of course are unalienable. They contend ihat the Phm of Union of 1801 was a contract of this kind, and that they inherited the vested right to enjoy all the privileges of the corporators. Let 401 / us examine this point for a moment. In the first place, we contend that the act did not authorize that of which we complain; and they must show that there are rights of the respective parties which accrued to them in and by virtue of the compact entered into be- tween Presbyterians and Congregationalists in 1801, and they must further show that by virtue of that act those presbj'teries and synods were established, and that the .rights of the two parties, whatever they were or are, accrued to them in virtue thereof. But was the Plan of Union a compact or agreement, or any thing like a contract between the two parties, from which vested rights could accrue? There is and was no compact between these pres- byteries and synods, and the General Assembly. The Assembly has an appellate jurisdiction from them, but each of these judicato- ries is dependent on the fundamental laws of the church, and though strong connecting links bind them together, yet there is nothing like an obligatory contract between them. We have courts of law, of appellate jurisdiction. But can you perceive any con- tract between them, and the lower courts? Your Honour has not entered into a contract with any of the inferior courts of the state over which this court may have appel- late jurisdiction. On the other hand, the court in Bank may review the decision of this court sitting at J\lsi Prius, but there is no con- tract between the two. The inferior courts of law are in their organization independent of this court, though they are dependent as regards its appellate jurisdiction. These several courts derive their existence and their prescribed powers from the legislature in accordance with the constitution, but there is no contract between the several courts and the body which formed them. They are entirely independent even of the legislative tribunal, and of each other, except as regards an appellate jurisdiction. So the presby- teries and synods are independent of the General Assembly, except- ing so far only as the General Assembly is an appellate ecclesiasti- cal court. As in the one case, the inferior courts, so in the other, the presbyteries and synods have no vested rights, because their being in submission to each other is not by compact. They all pro- ceed on the fundamental principles of the laws and the constitution, and not by contract. But it may be said, that having introduced these men into the Presbyterian Church, the General Assembly has no right to turn them out. But this is not so, they came in by a mistake, and we only say to them, " Gentlemen, you were admitted by mistake; if you please, a mutual mistake between us and you, and that mistake must be rectified as easily as possible. But you shall not be hurt. We will put you to no trouble about it. You shall not lose your standing in the church on that account. But you must, in consequence of this mistake, re-organize your church judicatories. Your title must be renewed and recorded afresh." Having clearly the right to repeal the Plan of Union, we did repeal it, and when it was repealed, the four synods, together with their constituent presbyteries and churches which had been introduced in contravention of the constitution, and which depended on that plan for their support, of necessity fell to the ground, or at least fell 34* 402 off from us. But it was the part of wisdom in the General Assem- bly to devise a plan, and accordingly that body did so ; a wise and prudent plan, by'which the sciUtered fragmentary portions of those lour synods might be collecied together again, and by which they may yet become resuscitated and re-organized. But I contend that, independently of any considerations relative to the Plan of Union, the General Assembly had the inherent power, for its own reasons, to dissolve any synod and any presbytery in. its connexion. The General Assembly may strike from existence, destroy, annihilate any synod or presbytery without assigning any reason for the exercise of that power. It would be a work of su- pererogation to enter into an investigation of the motives which influenced the members of that body in their decision. We con- tend that the General Assembly possesses this essential power, a power which is wholly discretionary, and for the exercise of which neither the Assembly nor the members are responsible, except to their own discretion. In the course of the argument on the other side it has been contended that the power of the General Assembly over the inferior judicatories of the church, extends only to the trial of cases which are brought before it by appeal ; in other words, that its powers are not legislative, but judicial only. So far from that, the powers of the General Assembly are strikingly analogous to the DOwers of the Senate of the United States, which exercises legisla- tive, executive, and judicial functions, and is also the depository of the treaty-making power. It has been supposed that all these pow- ers of government can never wisely co-exist in the same tribunaK But they are co existent in the Senate of the Un ed Siates, and wisely or unwisely, I'll show, and that most conclusively, that they do co-?xist here, and that the General Assembly has also constitu- tional powers superadded. It has not indeed exclusive power to alter or amend the constitution of the church. Neither is that pow- er vested in the synods or in the presbyteries exclusively. The General Assembly suggests or proposes changes in the constitution, and submits them to the presbyteries which decide in relation to the proposed alterations or amendments by the constitutional ma- jority. In accordance with the principles of constitutional law, neither of these bodies can alter the constitution of the church, but altera- tions are effected by the joint action of all of them united. The power of proposing alterations in the constitution of the church be- longs to the General Assembly, by the constitutional law of the Presbyterian Church, and that power is not a judicial one, surely. The General Assembly is not then merely a simple judicatory, a mere court of justice. A judicatory can expound the law. It can- not alter nor propose alterations to the fundamental law, which is the constitution. But the General Assembly can propose amend- ments to the fundamental law, passing on them in the first instance, and then transmitting them to the presbyteries for their concur- rence ; the presbyteries having no power of making alterations unless proposed to them by the Assetnbly: so that in this instance the two bodies exercise co-ordinate power. The power thus vested 403 in the General Assembly depends on the fundamental principles and laws of Presbyterianism : I will not, in this instance, say, on the Bible, for the Bible is silent as regards this matter. Now, though Presbyterians believe that all the rules and regulations of their church are in conformity to the Bible, yet we admit, as regards many things, we must be allowed to appeal to the fundamental law of the church, in relation to ecclesiastical affairs where the Bible is 'silent. In this respect, as well as in the generality of her constitutional rules and provisions, the constitution of the Presbyterian Church bears so very striking an analogy to the constitution of our General Government, as to lead us to believe that they have been framed on the same model. The authority of the General Assembly of the Presbyterian Church to propose alterations in the constitution, to the constituent presbyteries, is analogous to the power vested in the Congress to propose amendments to the Constitution of the United States, to the several states. The principal difference between them is, the assent of two-thirds of the presbyteries is required in the one instance, and the consent of three-fourths of the states in the other. Thus the presbyteries bear a relation to the General Assembly, similar to that of the several states of this Union to the United States. Indeed there is a striking similarity throughout. Certainly it is a very curious, a most singular and happy coincidence, that the constitution of the Presbyterian Church, purporting as it does to be of divine ordination, should bear such a close and striking resemblance to the political constitution of our common country. This perhaps may be regarded as an earnest of the perpetuity of our beloved national Union. We fondly regard our federal consti- tution as the purest specimen of republican government that the world ever saw, and on the same pure principles of republicanism as its basis, we find established the constitution of this republican church. The two, without any stretch of the imagination, may be supposed to be framed after the same model. And although a crisis in the affairs of the church has arrived, which has spread disunion and strife to her utmost bounds, and the state appears to be nearly arrived at a similar crisis, yet may we not confidently hope that both these noble and much revered institutions will be able to abide the shock, triumph over their enemies, and go on to the very end of time, spreading their influence and dispensing their blessings simul- taneously to all future generations'? This is not the first time that schismatic dissensions have dis- tracted the Presbyterian Church. Before this, the bush has been on fire; but it has never yet been consumed. And I suppose that this New School party will not be able to consummate its entire de- struction. It is impossible, if what we believe is true, that the Presbyterian Church is a divine institution, and founded on divine ordination. And if otherwise, yet the analogy between the funda- mental principles of the Presbyterian Church and those of our fede- ral and state governments, would, I should suppose, cause republi- cans to hope that this church may yet become renovated, that arising with renewed strength she may go forth conquering and to conquer to the latest ages. The church has in itself a recuperative 404 power, and can never become extinct. Not that the Presbyterian church will absorb or swallow up all other sects and denominations. I wish no such thing, but believe and hope that others, as well as Presbyterians, will be preserved and flourish, as I desire the preser- vation of liberty. Sectarianism, or the division of Christians into different sects and parlies, purifies the church, as the agitation of parties has a tendency to purify the political atmosphere. And, no doubt, whilst republican liberty shall be preserved in this country, each denomination and sect will be secure in the enjoyment of its own rights and privileges, and in the free expression of opinions. I claim this for the Presbyterians. I claim it for all churches, and for every individual, whether he is a member of any church or not. Whilst each sect pursues its own proper course, they will go on without harm or interference with the civil power. Though acci- dental jars may for a time disturb the community or religious soci- eties, yet they all may go on prospering and to prosper. Now let us inquire respecting the legislative powers of the Gene- ral Assembly, or the power of passing laws for the government of the Presbyterian Church. That the Assembly has this power, or possesses a legislative character, in distinction from a character purely judicial, is shown with singular clearness by the curious fact, that though all the ecclesiastical courts of the Presbyterian Church are styled judicatories, yet the 39th rule for regulating their pro- ceedings, prescribes that in their "judicial capacity" they shall be conducted in a particular way. When any one of them "is about to sit in a judicial capacity," a particular form must be observed, as is always the case in the senate of the United States when that body acts in a judicial capacity, laying aside, for the time, its legislative character, to exercise its functions as a court of justice. The 39th rule, referred to, is as follows : — " Whenever a judicatory is about to sit in a judicial capacity, it shall be the duty of the moderator, solemnly to announce from the chair, that the body is about to pass to the consideration of the busi- ness assigned for trial, and to enjoin on the members to recollect and regard their high character, as judges of a court of Jesus Christ, and the solemn duty in which they are about to act." The mode of proceeding, here prescribed, is different from the ordinary mode of proceeding when engaged in a legislative capa- city. What could be stronger than the evidence here furnished, that the General Assembly possesses legislative as well as judicial power. But there is a distinction, which it is necessary to carry- along with us, between a limited government with delegated powers, and a delegated government with limited powers. The federal government of the United States is a government of limited powers specifically delegated by the states which formed the confederacy. The state governments, on the other hand, possess- ing all the attributes of sovereignty, are limited only by express • provisions of their constitutions, except so far only as certain stipu- lated powers are delegated to the General Government for the •common good. Thus, then, if a certain power is claimed to be vested in the Federal Government, you must show the express grant of that power in the constitution. For if you are not able to find 405 such a grant there, the power claimed is not vested in that govern- ment, and Congress cannot exercise such a power without an open violation of the constitution. On the contrary, when we come to examine into the powers of the state governments, (as those of Pennsylvania and South Caro- lina, for instance,) the case is exactly reversed. Unless the power claimed to be exercised by a state legislature, is expressly prohibit- ed by her constitution, the right to exercise that power is undoubted, as one of the necessary powers of government. In the one case, the power is a gift or grant affirmatively made. In the other, it is an originally existing power. It is merely a power which has not been prohibited or restricted. The legislatures of the several states possess, and may exercise all the powers of government not ex- pressly denied to them. Congress, on the other hand, cannot exer- cise any power, except by an express grant. The powers of all the functionaries of the federal government, are defined by affirma- tive grants. The powers of the state governments are undefined. If, then, the government of the Presbyterian Church is like either of these^ it may be very easily determined whether the General As- sembly constitutionally possessed the power which it exercised in 1837. If the General Assembly is like Congress, a body of dele- gated powers, we must show the grant of this particular and speci- fic power. If it is like the state legislatures, a body of restricted powers, they must show the restriction in the case. It so hap- pens, however, that the constitution of the Presbyterian Church is not exactly like either of these, nor can it be judged by either of these rules. It contains a grant of general powers, expressed in very general terms, and, taken as a whole, approximates much more to the constitutions of the state governments, than to the fe- deral constitution. To illustrate this. The federal constitution provides, that the general government shall have certain definite powers, which are each particularly specified in this form — "Con- gress shall have power," &c., to do such and such things, while the language used in the constitutions of the state governments is, that they shall have " all legislative power," &c., ex vi termini. So, to the General Assembly, there is not, in the first place, a dele- gation of specific powers, but a general declaration that all power belongs to it. Thus, in the Form of Government, chap. 12, sect. 1st, it is styled " the highest judicatory," that is, governing power " of the Pres- byterian Church." "It shall represent all the churches of the de- nomination;" possessing, therefore, all the power of all the inferior judicatories. Whatever powers any of these judicatories exercises in its particular sphere, and over its own members, the General Assembly shall exercise over the whole Presbyterian Church. I wanted to prove this to you out of their own book, and the clause horn which I have quoted, is a sweeping delegation of all the pow- ers of the whole Presbyterian Church, whether legislative, judicial, or executive powers. There are no restrictions here, such as are placed on the other judicatories of the church. In fact, this sweep- ing grant of power is not restricted, except only by the Holy Scrip- 406 tures, and by the decisions of a majority of the inferior judicatories. The whole power over all that concerns the whole Presbyterian Church, is carried up and vested in the General Assembly, in the boldest and fullest terms imaginable. It is a delegation of all the power possessed by those who formed the constitution of the Pres- byterian Church. It is much broader, and far more extensive than is possessed by any of our legislatures. Should the people of Penn- sylvania delegate and transfer all their power, of every description, to the state legislature, then, and then only, would the authority of that body be commensurate with the powers of the General As- sembly of the Presbyterian Church. They have given to that body more power than is given to any legislative body in the world. Unquestionably, it was the intention of the constituency of the Presbyterian Church, to give to the General Assembly, (in the same manner as the people have conferred certain powers on the legisla- tures,) the whole power of the church, throughout its whole extent, which the synods, presbyteries and church sessions exercise within their respective limits. Now, as there was a broad declaration, vesting all the powers of the church, in the first instance, in the General Assembly, we could not desire any thing more. But, besides this, there is a specific de- legation of powers, fully adequate to our purpose. In the fourth section of the same 12th chapter of the Form of Government, re- lating to appeals, &c., there is an express grant of a specific power, to " review the records of every synod, and approve or censure them." The General Assembly, then, may take those records, and examine them. They may do whatever they please, by approving or censuring them, whether the synods send them up or not. Such a power is necessary to carry into effect that which is expressly granted; because, otherwise, the clause granting a specified power, would be barren and nugatory. "They shall give their advice and instruction in all cases submitted to them, in conformity with the constitution of the church." What if those whom they thus advise or instruct, should refuse to take their advice, and disobey their in- structions? Have they not power to carry into effect their injunc- tions? Are its instructions merely hortatory? If so, it presents the anomaly of a government incapable of carrying into effect its own decrees. Such a construction would make the constitution nothing more than a mass of undigested rules, which none would be bound to obey. " They shall constitute the bond of union, peace, corres- pondence and mutual confidence among all our churches." Now, suppose that "the bond of union, peace and correspondence should be broken, how are they to restore it in its original strength? Have they not power to heal the wound? The power to preserve the peace of the whole church is given to the General Assembly, and will any one pretend to say that they have not the power to heal the breach of union occasioned by a recusant member, by forcing him to submission? Besides, " to the General Assembly also be- longs the power of deciding in all controversies respecting doctrine and discipline." All disputes and controversies are to be deter- mined by this body in the last resort. And here it appears, that 407 when such disputes and controversies respect doctrine and disci- phne, the Assenfibly is to decide in the first resort. Whether they affect presbyteries or synods, the Genera! Assembly is the tribunal of ultimate resort, and has full power to settle all such disputes and controversies, conclusively and finally. This power of the General Assembly is very broad. As regards doctrine, it is perhaps not ap- propriate to the issue of the present case, though it is not contrary to it; but as it regards the discipline of the church, it is fully to our purpose. What? Shall it be said that this power and authority of the General Assembly extends only to controversies between indi- viduals, and cannot be exercised in the cases of presbyteries and synods? The great, the leading, the primary object of the disci- pline, is the regulation of the inferior judicatories of the church. And yet our opponents have contended, that the Assembly cannot enforce the discipline against them. Let us read further. " To the Genei^al Assembly belongs the power of reproving, warning, or hearing testimony against error in doctrine, or immorality in prac- tice." Is this intended of individuals only, in personam, and not in rem? Here is the ansv/er — "in any church, presbyter}^ or synod." Here, then, we have it at last, express power over the presbyte- ries, synods, and churches, even the express power to regulate doc- trine and discipline. And how is this power to be exercised, but by such censures and remonstrances as they may deem to be suited to the case; and, if these censures and remonstrances be disre- garded, by exercising a higher authority in the dissolution of ofl^end- ing presbyteries or synods into their original elements, with a view to re-organize, and form them anew ? Accordingly, the Discipline of the Church thus concludes the definition of the powers of the General Assembly, as far as I have occasion to refer to them, "of erecting new synods, when it may be judged necessary; of superintending the concerns of the whole church; of corresponding with foreign churches, on such terms as maybe agreed upon by the Assembly and the corresponding body; of suppressing schismatical contentions and disputations; and, in general of recommending and attempting reformation of manners, and the promotion of charily, truth, and holiness, through all the churches under their care." These, then, are some of their powers. The manner of proceed- ing in the exercise of those powers is not pointed out by the con- stitutional provisions. It is their own matter. In carrying these powers into eflfect, the General Assembly will proceed according to its own judgment. The General Assembly has full power to dissolve, new-arrange, and re-model all of these judicatories within its jurisdiction. And they may exercise it according to their own discretion, or caprice, if you please. They are under no restraint as to the manner of its exercise, and that is all that we wish to es- tablish: for your Honour will not permit any question to be raised here, in this court, in relation to the manner in which an admitted power has been exercised. Having shown these powers to be in the General Assembly, I assert that they have always exercised them at their pleasure. They have continually engaged in acts of 408 legislation on various subjects, as well as exercised judicial powers, in cases of appeals from the inferior judicatories. That the Gene- ral Assembly is not merely judicial in its functions, is clearly shown by the fact that a Committee of Overtures is appointed at the com- mencement of each session. The appointment of this committee, (if we had no other evidence,) conclusively proves the exercise by the Assembly of other functions than those purely executive and judicial. These gentlemen think hard of their ejectment and excision in 1837; but I think that I have fully shown ample authority in the Assembly to do what it did. These judicatories may be considered as under the supervision of the General Assembly, in a manner somewhat analogous to the territories of the United States which are under the supervision of Congress. Congress is the sole judge when and under what circumstances a territory shall be admitted into the Union, and no state can be admitted without the consent of Congress. If objections are raised, no matter how unreosonable those objections may be, they must be disposed of before the new state can be admitted. This question was settled in a case which is no doubt familiar to you, gentlemen. I allude to the case of Mis- souri in 1821. The people of the territory of Missouri had held a convention, formed a state constitution, and the legislature of the newly organized state elected two persons as senators, who were not allowed to take their seats in the Senate of the United States during that session, because Congress had not yet received the new state as an integral part of the Union. Missouri claimed admission, and their present senator, who has since rendered himself so con- spicuous by predicting that within a limited time "gold would flow up the Mississippi against wind and tide," then signalized himself by protesting against the power of Congress to refuse to admit Mis- souri when she made application; but that gentleman walked about the lobby of the Senate chamber, and the rotunda of the capitol, during one whole session of Congress. I am not now about to enter into the merits of the Missouri question, as it has been quaint- ly termed. It is not my purpose to inquire into the relevanc}' of the abolition and anti-abolition arguments then advanced by distin- guished statesmen. My purpose is simply to show that the power of Congress is wholly discretionary, as to the admission of new states into the Union. The senators from Missouri could not take their seats until Congress was satisfied, and the constitution does not limit Congress as to time. The power of Congress in the case is wholly discretionary. So the power of the General Assembly over the presbyteries being discretionary, like that of Congress over the territories, there is no question as to the power of the General Assembly to refuse to admit the delegates from a presbytery until the General Assembly shall be satisfied of their right to admission. May it please your Honour, — I have contented myself with glanc- ing very cursorily at several of the topics last mentioned, princi- pally because I had previously occupied so large a portion of your attention, and partly because, as I conceive, they have no relevancy to the case before you; though at the request of my clients I have 409 presented them to your Honour and to the jury, I now leave them. They may receive further examination, perhaps, from the learned and able counsel who will follow me on behalf of the defendants, and who will supply any defects there may be in my argument. The great question, which you, gentlemen, are shortly to decide, is, whether these relators, or rather the party whom they represent, are what they claim to be, exclusively the General Assembly of the Presbyterian Church. And I hope, that in a review of what I have already said, and of what may hereafter be advanced, you will arrive at the conclusion that these relators have not established their claims. I do not think that the General Assembly of 1837 did wrong. If it did, that wrong was inflicted on the four excinded synods only, and not more than one half of these gentlemen who assert that they formed the constitutional General Assembly, have any cause to complain. The rights of the other half to their seats were acknowledged by us at the commencement of the General Assembly of 1838; and they did sit with us at that time. The rights of the fifty-four commissioners who were excluded, consti- tute the case before you, if viewed in reference to the acts of 1837. They, only, are the rights which these relators seek to establish by this most extraordinary proceeding. They say that we acted un- justly; but if it were so, is this the only way to obtain redress? Must they annihilate us in order to reinstate themselves? If wrong was committed, the wrong was in exclusion, and the remedy would have been in admission. Why, then, did they not return in the manner prescribed by the General Assembly, and ask leave to take their seats amongst us in the General Assembly of 1838, composed of delegates which had come fresh from the people? Such a pro- position was not submitted to us. They would not give us a chance to review the proceedings of the Assembly of 1837. If a wrong had been done them, that wrong could have been remedied by re- voking the acts of which they complain. Or if they did not choose to do this, why did they not appeal to the laws of the land to effect the same purpose? Why do they seek to destroy us, and obliterate our very name ? Must they destroy us that they may have their rights ? Must they disfranchise us and take from us what they ad- mit belongs exclusively to us? Must they usurp our seats, lord it over us, and exercise uncontrolled power over the charitable funds of the church, — dispensing the same in what manner they please? Why did they not submit their claims to that Assembly, which con- tained none of those who were members of the General Assembly of 1837, except such as had been sent back by the people after the whole subject was submitted to them. Such an appeal was never made to us, and they cannot say that it would have been decided against them if it had been made. Or if they were afraid to trust the General Assembly of 1838, if they apprehended that the mem- bers of that Assembly would prove unjust to them, why not apply for a mandamus, when, if they were unjustly deprived of their seats in the General Assembly, that Assembly would have been compelled to open their doors and admit them ? No : that was not enough. They did not proceed on these principles to obtain redress. They 35 410 would not content themselves merely with recovering what ihey alleged was unjustly wrested from them. Their motto is Aut CcBsar, Aut KulluSi They thus usurp the judgment-seat of the great I AM, and claiming to be All in All, they undertake to blot out our very existence; They do not desire merely to obtain and occupy their old placesj but they are determined to seize on the whole of the funds of the church, and to propose terms to us. Thus the minori- ty say to the majority, " We will drag you to onr feet. We will subdue you, and humble you to our purpose.'' We must be hum- bled, subdued, must come as supplicants for their bounty. They were not willing to abide the trifling delay that would have been required by a formal application to the General Assembly of 1838, after it had become fully organized. This delay, it is true, might have been a misfortune in their case; but, gentlemen, delays in the administration of justice are often the price which we are obliged to pay for the enjoyment of liberty. It may be said that the " unalienable rights of life, liberty, and the pursuit of ha])piness are inherent in every man," but we often find, that for a time, at least, the law will not permit every one to exercise those rights. But no such excuse is for them. If they were unlawfully cut off in 1837, were unconstitutionally disfranchised, the laws of the land would restore them to their seats. But they were not content to be a part of the General Assembly and of the Presbyterian Church. They were determined to be the whole General Assem- bly, and place the whole church under their entire control. If it was not the money that they wanted, — if they did not mean to strike down men who were obnoxious to them, and take the money, there was another course by which they might have tried the ques- tion of rights. I do not pretend to advise them, but to show that there was no necessity for their pursuing this most extraordinary course of proceeding. Their clerks might have brought an action against ours to recover the books and papers pertaining to the re* cords of the General Assembly of the Presbyterian Church. If an action of trover had been instituted for these papers by their clerks, in that way the whole matter would have been brought up. Thus the question might have been peacefully decided, whether they were a part, or, if they please, the whole of the Presbyterian Church. This question could have been reached by an action of trover, and the institution of such an action would have shown that they were not disposed to strike to the ground that venerable gentleman, (pointing at Dr. A. Green,) and seize upon the purse of the church. But, instead of this, they attack directly our persons, our property, and our characters. This claim to be the whole church is in assump- tion, made in a spirit of usurpation, which I trust the jury, which is well chosen, being composed of intelligent men of different religious denominations, will signally chastise. Well, gentlemen, it is for you to say whether they are what they have chosen to claim, the whole Presbyterian Church, and we no part or parcel thereof. On your verdict the claims of each party depends. By your verdict these questions must be answered, and the interesting problem be solved. If you decide that we are 411 not the Presbyterian Church, and thus give the whole of the funds, together with the name and character of the Presbyterian Church, and the privileges of the corporation also, to a body of men who were not contemplated by the " Act of Incorporation," we will sub- mit, even should this, so unexpected to us, be the result, that we are to part whh our patrimonial inheritance. It is for you to decide whether we shall go mourning on our way, or whether we shall again rejoice in hope. If you bring in a verdict for them, we will regard the money as dross; wholly unworthy of our notice. We will respect your verdict, but we shall not be cast down. In the bosoms of the fathers of the church there swells the spirit of philan- thropy and Christian fortitude which will still sustain them. In the days of old they have rallied around the standard of their faith, in impenetrable array : so now, with the numerous company of young men who will feel it to bean honour to fall at their sides and perish in support of the principles of their church, they will again rally, though for a transient period they may present the appearance of a broken band. Those who have planted and watered the church, those whose prayers have ascended to the throne of grace, and pre- vailed with the omnipotent King of heaven, who has dispensed rich blessings on their labours, though that which their hearts have so fondly cherished, that which they hold dearer than life, be taken from them by the finesse, the legal artifices and intendments of their adversaries, will still find comfort in the midst of their sore affliction, in those rich promises to the church, which they be- lieved will assuredly be fulfilled. But I do not expect such a result. I confidently look for your verdict in our favour, and I will tell you the consequences. If your verdict is with us, the Old School party, being sustained by the bright example and Christian precepts of those who have gone before them, will be strengthened by your verdict, and encou- raged to persevere in those noble enterprises which they have un- dertaken. And, in a short time, those, who, like the wild prodigal, have gone forth to seek their fortunes elsewhere, becoming im- poverished by your verdict, will return to their spiritual home, — the church of their fathers, when we will kill for them the fat- ted calf, and, rejoicing in the restoration of unity in the church, we will spread the banquet of peace and of everlasting love. Should this result, as I confidently hope that it will, be the consequence of your verdict, all the difficulties will be removed, the true flock will be again congregated within its venerable fold, and you will have the happiness to see, in the whole Presbyterian Church, the resto- ration of peace and harmony, every one enjoying the shade of his vine, none of them being afraid. You will also witness perfect harmony established, as before, between Presbyterians and Congre- gationalists. Each moving in his appropriate sphere, may shed the blessings of gospel light around them, as the planetary orbs, mov- ing in that majestic and harmonious order which was established by the wisdom and power of the Creator. Such a verdict might cause the people of a small section of this country, to bow their tieads in sorroWf yet many ten thousand tongues would send forth 412 a shout of joy and thanksgiving. From the mountains in the inte- rior, and all the borders of your own state, from your sister,. New Jersey ; indeed, from this point, throughout the great South and West, to the banks of the Mississippi, would swell one general ju- bilee of jov and praise, one loud burst of joy and gratitude to the jury, mingled with thanksgiving and prayers of grateful adoration to Almighty God, for this renewed evidence of his superintending care and divine regard for his church and people. I have now discharged, so far as I have been able, the duties of the very responsible situation which I have occupied in this court. I had not intended to trespass so long on your patience, (and per- haps I have trespassed too long,) but I have been impelled by the conviction that it was my duty to devote to the subject connected with this controversy, the whole of my strength, both of mind and body. I humbly ask your pardon, for having detained you so long. The only apology I can ofl'er is, that 1 could do no less, according to my impressions of duty. I thank you, gentlemen of the jury, I thank you for your attention. And may it please your Honour : I may, perhaps, have marred the sympathy of this case, by the unconnected manner in which I have presented tlie several points for consideration. I thank the Court for the indulgence extended to me, while I have had the pri- vilege of appearing as an advocate for the defendants — a privilege which has been so freely and cordially granted to me, a stranger, and to which I should not otherwise have been entitled, than by the courtesy of the bar. ARGUMENT OF JOSEPH R. INGERSOLL. ESQ. Occupying- two days — the 21st and 22d of May, 1839. May it please j'our Honour — Gentlemen of the Jury: I shall dispense with the usual formality in opening what I have to lay before you in relation to this very important cause. Permit me to remark, that the learned and eloquent gentleman who has preceded me, has laid hold of every thing belonging to the case with such an unsparing grasp — he has reaped the harvest field with such an avaricious hand, that he seems to have left very little for me to do. I shall, however, proceed to discharge the duty which has been imposed on me, applying myself to the patient task of gathering what maybe considered as but the gleamings of the vintage, a task increased, in this case, both in ditficulty and respoi^ibiiity, by the fact that he has done the work so well. No one bat myself has any occasion for regret, however, on this account. And allow me to say, that I should feel myself deficient in duty to the cause, if I did not here return my cordial thanks to my distin- guished colleague, for the example which he has furnished through- out the whole period of his attention to this case, of fair and gen- tlemanly deportment, marked by that urbanity of manner, that high-minded and honourable bearing, which has drawn a tribute of admiration from all who have been present, even from the first mon:ient that he took his seat within this bar^ and which cannot 413 fail to contribute to the true administration of justice; whilst his learning, his talents, and his eloquence have compleieiy captivated us. The opposite counsel themselves must acknowledsje this. They do acknowledge it, though they may be unvi^illing to admit the force of his argument. They cannot have failed to feel the force of his well-directed blows, any more than to admire the peculiarly impressive manner in which he has shapen his words, with consum- mate skill and judgment, to meet every point in the whole case. So large a portion of his address has been taken up with explaining the principles of parliamentary law, and applying those principles to the fact elicited by the examination of the witnesses, that there is little left for me to do on that subject. I trust that my brethren of the bar are all prepared to join me in this cordial acknowledg- ment, and to welcome this distinguished citizen of a sister state to our cit}'. He is indeed one of us, for though he is now a citizen of South Carolina, he is a native of Philadelphia. Though his parents were Virginians, he was born in this city during the sojourn of his parents here, whilst his honoured father was attending to his official duties as a member of Congress from Virginia. We all, he may be assured, hail him a welcome visiter to the city of his nativity, and I trust that an extended intercourse between the citizens of these sister republics, which are bound together by common ties, will be highly salutary to us all. As I said, my distinguished friend and colleague has reaped the field with such an avaricious hand, that he has left for me but the humble task of collecting in the gleanings of the harvest. My task is the more onerous. The responsibility resting on me is greatly enhanced by the circumstance of its having fallen to my lot to follow in this argument one of so deservedly great celebrity as an orator and a statesman. I trust, however, that I shall not vainly hope to gain your attention to the additional remarks which I apprehend it to be my duty to make in relation to the case before you. The circumstances are such as require your individed atten- tion to ihe arguments of the counsel, as this is required by your oaths, and is for you the only honourable and fair course to pursue. The task is certainly more humble to those who follow in the argument, under such circumstances as I am now placed in, yet such must often fall to the lot of those who are engaged iu securing the ends of justice. It becomes my duty, gentlemen, in the remarks which I have to submit, to set out with presenting to you a statement of the dif- ference between the parties. I do not mean the personal differences, if there are any such ; not w hose feelings are right or wrong, or whose motives are purest, but the visible points of difference as they radiate from the law, and are exhibited by the evidence which has been elicited during this suit. These circumstances, to be satis- factorily investigated, must be deliberately compared with each other, and this deliberate investigation and comparison of all the facts and circumstances is due to the parties, and to the importance of the cause itself The visible points in the case are those facts arjid circumstances which must influence yoijir decision. It is these 35* 414 facts to which you are required to pay particular attention on each side of the question. It is admitted by the counsel on both sides, as it evidently may well be, that the facts of the case must rule your decision under the law. I trust, then, that it will not be diffi cult for you to arrive at a correct conclusion in the premises as you carefully weigh and attentively investigate these facts. You will not suffer the tedious character of this investigation to distract your attention. The close attention which you, gentlemen of the jury, have paid from the commencement, to the whole case,, warrants the conclusion that you will not suffer your patience to become exhausted, while its exercise is necessary to the attainment of a correct result. There are certain facts and circumstances which have transpired at different periods from the very com- mencement of the difficulties between these two parties, or rather between those who are the active representatives of the two parties in the Presbyterian Church, and those individuals who have been actively engaged in this unpleasant and painful controversy, which show what were the designs of the respective parties, though one half perhaps has not been expressed in words. With regard to these important trusts, the Church funds, which are now involved in this controversy, the difference between the two parties was very little in the Assembly of 1837, as appears by tiie correspon- dence of their representatives in the celebrated committee of ten. The naked question now is, as to who are the legal trustees of the General Assembly of the Presbyterian Church. Although at first view this might appear to be a very simple question, yet, while it is the very question which is to decide the whole case at issue, in order to answer this, you are not required to try the titles of the trustees merely, but you are required to try the titles of two bodies, claiming to be the General Assembly itself, it being a self evident proposition, that the legal trustees of the church have been chosen by the legal Assembly. On a cTose analysis of this question, it may appear that these plain- tiffs are such only, because they desire to possess the golden keys. In the course of our investigations the inquiry arises, whether the plaintiffs in this suit had equal power in the church with the other party ; and I have made a miscalculation, if the examination of that question does not put our opponents down at once. To this cir- cumstance I desire particularly to direct your attention. It is aa essential part of our defence to show that they had not equal power ; and that, therefore, their acts cannot bind us. The minority cannot bind the majority. It is impossible, on any principle of jus- tice or of law. Every thing in relation to this case must bend to some points of this kind, which I am now about to exhibit to you, and to which it is necessary for you to give a close attention in order to an understanding of the merits of the case in controversy. In taking up those points which have a bearing on this case, I see no difficulty, except in selecting those which are most material to the issue. It may be necessary, in the first place, to ascertain the true nature of the question* and in order to do this you must refer to the situation and comparative strength of these parties m the 415 General Assembly of 1837. For the case of the plaintiffs is based on the allegation of injustice having been done them by certain proceedings of the General Assembly of 1837; and every simple proposition that was made in that Assembly has been supposed to be connected with this controversy. By the fact, then, that every one of those propositions was carried against the New School, it is conclusively evident that the Old School were a decided majority in that Assembly. But there was an essential difference (call it by what name you please,) between the decisions of the General Assembly of 1837, and what those proceedings are alleged to have been. But if it were shown that actual injustice were done to those parties, would that help their casein this suit? If, as I think has been fully shown, the Old School, being the majority, had the power to do what they did, we cannot, in this court, inquire into the right of their doing. We are led then directly to the main position of the opposite party. The plaintiffs allege that the pro- ceedings of 1837, excluding the four synods, were null and void. I would ask my learned friend, is not this the very question for investigation, and which it is necessary for us to reach in argument, so far as the Assembly of 1837 is concerned? They assert the affirmative of this proposition, and we assert the negative. You may see, then, that the point of difference between us in relation to this subject is very simple, and one which you will easily bear in mind ; and I shall pursue no point farther than is necessary to a fair view of the whole case, and will only here remind you, that they do virtually abandon their ground on this subject, by founding their claims in this suit on the assumption that they are the legitimate successors of that very Assembly of 1837. It was then but a mere abstraction, which, if analysed, dwindles to a mere mathematical point, which they say thus separated the soul from the body of the church. But the plaintiffs must go a step further. It will not do for them to rest their case on the affirmative of this proposition, even if it were established. If the acts of 1837 were null and void, that would not invalidate the title of these defendants; they are still trustees of the church. Can these men, who were declared to be out of ecclesiastical connexion by the General Assembly itself, (for the decision of the majority made it the act of the Assembly,) can they displace the trustees who were previously appointed? They see this difficulty, and this requires of them the producing of other facts. They are bound to go a large step further to show that they have supplanted the trustees. And when they have made out that proposition, I would remind them that they are to make out another. To prove that they have in fact succeeded them and have the better title, they have to show that they have done it in order, that they have done it regularly. They must never shrink from an investigation, whether their provi- sional Assembly was intrinsically and extrinsically the legal Assem- bly of the Presbyterian Church. They, therefore, propose to satisfy you that they affected a lawful change in the General Assembly, possessing themselves of its powers, and that carrying them away with them, they exercised them in another place ; that on the 17th 416 day of May, 1838, in Ranstead court, they effected an entire revo- lution in the Presbyterian Church, by choosing a lawful chairman, and that the General Assembly itself submitted, by an intendment of law, to all which was then done: that the whole body assented to each of their propositions and motions. Now, we deny this pro- position, and it is my purpose to show, that no involuntary change of this kind was affected by their voluntary secession; because it would be unreasonable to suppose that such a change could be effected without the knowledge of the parties concerned. Without the consent of the General Assembly itself, by a direct vote, it was impossible to affect the least change. I cannot doubt that this question must be so decided by yourselves; and if the defendants can make out this proposition to your entire satisfaction, you are bound to give them your verdict: their case will then be made out. But the plaintiffs must substantiate both their propositions, in order to have any ground on which to stand in court. If the As- sembly of 1837 were ever so much in fault, if it were even anni- hilated, yet the defendants have not advanced a step. The trus- tees remain by previous appointment. If they should prove that the decisions of 1837 were wrong, and that the four synods were still apart of the Assembly, and that the commissioners from their presbyteries ought to have been received, still they have a burthen greater than Atlas himself could bear, to show that, in 1838, they effected a lawful organization of the General Assembly of the Presbyterian Church. If what has been stated relative to the General Assembly of 1837 be stricken from the testimony, the relators could not ad- vance a single step towards gaining what they are now contend- ing for, even by an intendment of law. They could have no hopes of obtaining a decree of ouster, based on the proceedings in 1838, separate and apart from those of 1837. But it will not do to rest on what is not material to the issue. You will, however, recollect, gentlemen, that the New School party voted in 1837 on the question relative to the passage of the excinding resolutions. The question is not material whether they then voted atffrmatively or negatively, as the fact that they did vote was, of itself, a virtual acknow- ledgment that the General Assembly had the constitutional power to pass those resolutions. It does not appear that they voted afterwards except on the appointment of trustees of the General Assembly ; but that is quite sufficient to show that they considered that the General Assembly was still in existence. Their vote on that question was an acknowledgment, on their part, that the As- sembly had not dissolved itself by any of its former acts. Though they then voted against any change of the trustees, yet now, for- sooth, they must all be struck out of official existence, even that venerable patriarch of the Presbyterian Church who has been so often adverted to during the progress of this trial, Dr. Green. They, therefore, acknowledge that the General Assembly continued a le- gitimate existence, or, on the other hand, if they make it null and void, after they had declared those four synods to be no part of the Presbyterian Church, they then make void their own proceed- 417 ings had on the 17th of May, 1838, in Ranstead court, in the city of Philadelphia ; in which proceedings they exhibited themselves under circumstances so unenviable, that the defendants do not wish to emulate them, in this particular ai least. And yet they claim to be that very General Assembly which they then attempted to destroy root and branch. Each of the several circumstances connected with this cause may be small in itself, yet when the whole of these circumstances are connected together, they make in the aggregate a compound of considerable magnitude. It makes but little difference where we strike this chain of circumstances, which is intertwined throughout the whole case. Any one of them will do. To strike at any one of them will answer our purpose, for «♦ whichever link you strike " Tenth or ten thousandth breaks the chain alike." The relators and their counsel have taken the liberty to lay the whole stress of their claim and argument in support of that claim on an intendment of agreeing to their propositions, and the defend- ants have taken the liberty of placing their defence on an intend- ment of not agreeing to these propositions. With these intendments are connected the only important facts in the case at issue. The question arises, how are we to get at the exact state of facts in this case? I will first confine myself to those connected with the General Assembly of 1837, as being first in order of time, if not first in im- portance. These are first in order of that assemblage of facts and circumstances, which form the broad base on which we stand in our defence; and these must be considered in order to ascertain the legality of the proceedings of that body. I shall endeavour as I proceed, to distinguish, amidst the multiplicity and variety of the surrounding circumstances, which bear on the case now before you, andv which are explanatory of the principles of the Presbyte- rian Church, and the power of the General Assembly over the in- ferior judicatories and the individual members of the Church. We are then to look at the circumstances attending, and persons composing that Assembly. In the first place, that body comprised the wisdom and piety of the Presbyterian Church; and in the next place its members were selected by their constituents with special reference to the difficulties which then existed in the Church. You will be good enough to recollect that the General Assembly was complained of for exercising the wisdom and power of which that body was, by the constitution, made the depository for the whole Presbyterian Church. The constitution making the General Assembly the depository of the concentrated wisdom and power of the whole church, was framed by their best and wisest men, and all who have adopted it as their constitution, have made the Gene- ral Assembly the depository of their rights as Presbyterians. Do you suppose that such men as composed the Assembly of 1837, were wilHng to prostitute and abuse the powers thus confer- red on them? Every church has some sort of a General Assembly in which resides the power of forming disciplinary rules and regi*» 418 lations for the government of the whole of the subordinate churches in connexion therewith. There is, therefore, nothing peculiar in the power claimed for the General Assembly. So it has been ever since the times of the primitive church in the days of the apostles, when, on a memorable occasion, the whole assembly of the apostles and elders were gathered in the city of Jerusalem, to decide the dispute which had arisen in the city of Antioch, between the Jew- ish and the Gentile proselytes to the Christian faith. Every church has its courts of final appeal, or infallible hierarchy. The forms of Church government have been varied in almost endless degrees, from the simplicity of the Quaker to the gorgeous and splendid imagery of that church of which the Roman pontiff is the acknowledged sovereign and spiritual head; but in them all they have some tribunal whose decisions are final. And what is the difference as to name or form, if, as they believe, God applies himself to guide them in the right course, so that their ultimate decisions are infallible, as the Roman Catholic is persuaded that the sovereign pontifical head is influenced to the right course by an in- ternal sense. Their councils have so decided, because they deemed it to be absolutely necessary that the appellate tribunal of last resort in the church should possess the attribute of infallibility of judg- ment concerning matters of conscience. But before this attribute of infallibility was conferred on the pointifT, the councils were con- sidered as spiritual directors, whose decisions was binding on all the members of the church, and which they were bound to obey in all good conscience. The attribute of infallibility was for a time supposed by some to lie in a state council, as the Council of Trent, or the Council of Constantinople, which was summoned and held by the authority of the emperor. These state councils were considered as the dernier resort, in controversial matters. Martin Luther appealed to them, when in- volved in serious disputes with the pope, and the whole of the mat- ters in controversy were referred to the arbitrament of the council convened at Worms, by the Emperor of Germany. And John Cal- vin, who is considered as the founder of Presbylerianism, also ap- pealed to such councils, and advised the reference of subjects of dispute to their arbitrament and decision. If they were not consi- dered as being infallible, no confidence could be placed in their de- cisions, as being sanctioned and approved of God. If the Presby- terian Church vests infallibility anywhere, it certainly is in its Gene- ral Assembly. Every church has agreed to the establishment of a body of this kind ; and to their decisions, in relation to doctrines and discipline, all the members of the church, and all the inferior judicatories of the church, are bound to submit. And shall we for a moment suppose, that less authority is vested in the General As- sembly of the Presbyterian Church, than in a council of divines, called together by the civil authority, or less power than is pos- sessed by a Baptist Association, a Methodist Conference, or an Episcopal Convention? It cannot be. The universal practice has been, to regard with reverence the decisions of such bodies, com- posed, as they are, of men who have devoted their lives to endea- vours for the conversion of unbelievers to the Christian faith, and 410 the edification of the church. So the force of the decisions of these general councils, by whatever name they may be called, is acknow- ledged by their respective churches. We are all familiar with these facts. We all know that the decisions of all such bodies are final, as regards the questions submitted to them. Their decisions are the law of all the churches over which their respective juris- diction extends. I need scarcely remind you, that none of these councils has jurisdiction in reference to what concerns their neigh- bours. If the members of other churches do wrong, they must leave the correction of that wrong to the proper judicatories of the church to which the disorderly members belong. One church cannot interfere with another. It is by the consent of all concern- ed, agreeing to the constitution of their respective churches, that this power of final decision is vested in the highest ecclesiastical court of each denomination. The decision of every council, to which parties refer a matter for adjudication, is binding, though it be a mere informal reference to a neighbour. How much more, then, the decision of these church judicatories, to which the mem- bers have committed their rights and powers in so solemn a man- ner, and bound themselv^esto submit by so many sacred obligations. The decisions of the General Assembly, or any other of these general councils, is as binding on all the churches and congregations within its jurisdiction, in spiritual affairs, as the decision of a state tribunal in civil affairs. All are bound to submit to such decisions ; though the situation of the several churches in this republican land, is very different from that of an established church, which is closely connected with the state. In such a church, the Episcopal Church of England, for example, the king, or head of tlie state, is the acknowledged head of the church. There, the British parliament has assumed the right to try a minister for an infraction of his duties as a minister of the established church, and may even pass sentence of suspension, debarring him from the privilege of exer- cising the clerical functions: as indeed was actually done, in at least one case on record. But the disseverance of civil from ec- clesiastical jurisdiction, puts more power in the possession of the churches in this country, in relation to spiritual matters, the state being constantly debarred from interfering wath spiritual affairs, as fully as the church is prohibited from intermeddling with civil affairs. Happily for us, the connexion between church and state, which in the old world has been for ages considered as being es- sential to the very existence of civil government, has no place in our country. Here, the church occupies its own ground ; and both it and the civil government prosper, without an improper interfer- ence with each other. Each is sufficiently powerful in its own sphere, to maintain and enjoy its own rights, without the one en- croaching upon the prerogatives of the other. We understand as little of the reasons for the differences of opinion amongst Chris- tians, as we do of the sublime doctrines of the Christian religion, some of which are admitted to be mysterious, by the members of the different sects themselves. The thunders of the Vatican are not now felt throughout all Christendom. If uttered at all, a murmur- 420 ing sound, like distant thunder, is the most that can be heard in this country. The effect is not felt. The members of the Roman Catholic Church are bound by their decrees ; but none others are. So in regard to Qvery religious de- nomination ; the power of the church, within its legitimate pro- vince, is felt by all, and will be felt by all, whilst she acts as a nur- sing tender mother towards her children. We have indeed all witnessed the effect of this power, whether exercised as the tender mother's blessing, or as the withering of the father's curse. De- pend upon it, the influence of the church is in its strictest sense the very essence of power. Their influence extends through all the re- lations of society, and is felt in the governments which have been instituted among men. To this none of us will object, whilst that influence is exerted independently, and without any interference with the civil government, though it is no less powerful than the still small voice which arrested the prophet's attention when he stood at the entrance of Horeb's cave. How then is this influence exerted? Having no aid from the civil power in execution of their decrees, and having within their own power no civil disabilities or penalties to inflict, how are these church judicatories able to give eflect to their councils? What im- parts such strength to this bond of air? It is neither more nor less than the power of conscience. Talk to the profligate and profane man, who disregards the obligations of morality and contemns vir- ous principles, about the decisions of these ecclesiastical councils, and they are of no influence with him. He treats them with per- fect contempt. But lead him under the influence of religious con- siderations, bring him to appreciate his obligations, give his con- science to the church, and then the decisions of thai church hind him, and he renders a ready acquiescence. It is thus the potency of conscience that gives eflect to the decisions of ecclesiastical courts. The churches have jurisdiction over spiritual concerns. The decrees of their councils, in their legitimate sphere of operation, are binding, and from their judgment there is no appeal to the secular courts, as there is in another country, from which we have received many of our maxims of common and parliamentary law. The civil courts have nothing to do with the affairs of the church, except to protect all the members as citizens ; and, certainly, they have the same right to protection, as other citizens have. This cannot, and will not be denied. There are one or two authorities which I will read, and, if they do not sustain me, I will not, like my learned friend, threaten to throw my books into the fire ; be- cause, I presume that you would rather rest on law, than on the mere assertions of the council. I will show you what is the law in Europe, and particularly in England, from which country we have derived the first principles of our jurisprudence. There the govern- ment does not interfere, and even in Asia, the sovereign will does not interfere with the decrees of the church. When we come down, in the page of history, to our own Pennsylvania, we find that the very foundations of government were laid in this state, while it was an 421 infant colony, on the principle of freedom of opinion, and liberty of conscience. The principle of noninterference with the rights of conscience, the illustrious founder of Pennsylvania, the great and wise William Penn, made the basis of all law, when he proclaimed to ail who should settle in the colony of Pennsylvania, that no man .should be molested, nor deprived of his civil rights, on account of f)is opinions in relation to religion and matters of conscience. Vattell, also, the universal authority on the law of nations, maintains Ihat the rights of conscience are sacred, and the decrees of the church should not be interfered with bv the civil power. (Vattell, B. I. ch. 12, sect. VV3. Now, applying these principles, what have you and I to do with the exclusion from the communion table, of Presbyterians? What with any decisions of the General Assembly ? Absolutely nothing ! We contend that we have, as the highest judicatory of the Presby- terian Church, all the powers that were guarantied to the Roman Catholic Church, by the law's of England, before the reformation; except so far as they are modified by the constitution ol" the (Jnitcd Slates, these powers being, in this case, of course, limited to our own. members. The power of the church may, being properly exerted, become like the light of the sun, which extends throughout the world, dis- I)ensing its blessings everywhere. This power necessarily in- cludes that, of dismissing from the communion all who refused to obey the decisions of the Presbyterian Church, as expressed by the (jleneral Assembly, which has full power to determine all questions in relation to the mysteries of religion, as connected with their or- der. Much has been said as to the power which the civil courts have over ecclesiastical decisions. On that subject, we may refer to Judge Duncan (7 Sergeant and Rawle, page 557) where the po- sition is distinctly laid down, that each church having its platform, that platform is its own, and their decisions are binding. So that wc can only look at the facts whether Presbyterians, &c. have kept to their own jurisdiction. "It is the part of a good Christian t(» submit to the decisions of the church." A little further forward the same expressions are used by the Chief Justice of Pennsylvania, I am thus bringing to your minds what the law is in relation to the j)resent case. Another authority is the decision of the Supreme Court of New York (9 Wendell, page 400, Field vs. Field) : " So long as the conditions (of their association) are complied with, the courts have no right to interfere." Thus, they all declare that the courts of law are incompetent to interfere with the decisions of the ecclesiastical courts. Had the General Assembly undertaken to inflict fines or imprisonment for noncompliance with its mandates, or to take the property of individuals on account of their refusal, and for the purpose of compelling them to a submission to the de- crees of the church; the civil courts could then interfere, and they ought of right to interfere. For unlimited as are the rights and powers of the church in regard to ecclesiastical matters, the power of inflicting fines and imprisonment, or any other penalty, except merely ecclesiastical censure and exclusion from the church, does 36 422 not belong to them. Such powers belong to the civil government, which is constitutionally prohibited from inquiring into the opinions of the citizens with regard to religion. Should the church there- fore undertake to interfere with the civil power of the state, it would overstep its proper bounds. But happily the constitution of our country wisely prohibits both the church and the state from transcending their proper bounds, and thus encroaching on the rights of each other. Happily, the civil power is restrained from interfering with the actual and positive rights of the church, as well as the church from interfering with civil rights. The General Assembly is an ecclesiastical assembly, and it is granted that by the constitution it has no temporal power. It has no power to inflict penalties of a temporal character in order to compel any to conform to its requisitions. But when they have agreed on any thing in relation to spiritual matters, however con- trary it may be to human laws, the civil courts cannot interpose, unless such decisions of the church are an infringement on the civil power. So far indeed, it is not difficult to get over what at first view may appear to be a contradiction. No church establishment can exercise or assume, in this country, the civil jurisdiction, which belongs to the state, and which the state alone can exercise; and the state, on the other hand, can in no case interfere with religious establishijnents, while they confine themselves to the spiritual ati'airs of their own church. It is the right of each church to make its own disciplinary regulations, to prescribe what shall be required of its members, spiritually and morally ; and with these church regu- lations the civil power ought not to interfere. But should such church establishments undertake to exercise a temporal power, they would then be obnoxious to the charge of interference with the powers of the civil government, which is not to be permitted. The church has a right to make rules or laws for its own govern- ment, and every member is morally bound to submit thereto, be- cause he has chosen to become a member of that church with the knowledge of what her faith and practice was, and it is impossible for the state to interfere with these legitimate concerns of any church. Such an interference by a temporal or civil power would be a departure from the first principles of our republican govern- ment. In support of this position we have the high authority of the present Chief Justice of Pennsylvania, Judge Gibson. (5 Watts, 48.) Members of the church have nothing to do, but voluntarily to de- part, if they will not submit to the rules, regulations and decisions of the church. They may go whenever they please, for no church can compel them to remain in its communion against iheir wills. The church cannot extend its penal inflictions beyond excommuni- cation from church fellowship. This is the ultimatum of its power. And though it is presumed that every man qhooses to belong to some church, yet there is no compulsion, and he may not belong to any if he does not choose so to do. But most good citizens will choose to belong to some church, in order that they may enjoy the advantages of joining in the social and public worship of Almighty God. Every one is at liberty to belong to what church he pleases. 423 And if he belong to any church, he must contribute to the support of that church whilst he is a member thereof, and is morally bound to comply with its disciplinary regulations and decisions. Or if he belong to none, and consequently in religious matters is perfectly free from the constraint of any, he is not the less bound lo render homage to God according to the dictates of his conscience, though, unless he be a member of the church, he cannot be entitled to its privileges, and must forego the advantages arising from the admin- istration of the sacraments and the communion of the church. But there is no legal obligation resting on the citizen to enter any church at all, or to remain within its pale any longer than he chooses. Over those who do belong to the church, however, her power is supreme, her decisions binding, final, and without appeal to the civil tribunals, in relation to all matters of spiritual concernment. So long as the church adheres to her own principles, no civil court can invalidate her determinations. So far we have no disagree- ment. We all rejoice in this wise arrangement in relation to these' matters in our country. The members of the church are such on the principle of voluntary association ; and when the powers of any church are exercised in accordance with the principles on which they have thus voluntarily associated, the civil courts, the judicial tribunals of the state, cannot interfere with them. To this effect we have a decision 5th Watts 4.3, that " when the church power is exercised according to the appropriate jurisdiction of the church, the courts of law cannot touch them. There has perhaps been a decision in Massachusetts of a different character. But, such is the law of Pennsylvania, and of every other state of the American Union excepting Massachusetts, where, as was the case till recent- ly in Connecticut, the law requires that every man shall contribute to the support of some church, even if he does not attend worship in any. This laiv was among the early enactments of the pilgrim fathers of New Enorland. Whether it is a wise regulation in the existing state of society, I will not now undertake to determine. I leave that to the good people of the Bay State. Well, gentlemen, we proceed to inquire what sort of power had the General Assembly? What but ecclesiastical legislative power? It was not strictly legislative nor judicial, like civil power; but, for church purposes, it was both. We maintain that there is no power in church or state which can compel any man to enter the church. But we assert that the whole power of the Presbyterian Church was vested in this really powerful General Assembly. Had it not legislative powers? It certainly had, over all the churches of the Presbyterian communion. And whence indeed came the idea which has been so much dwelt on by the opposite party, that the General Assembly had no legislative power? Whence, except that the term judiciary or judicatory is applied to it and to all the subordinate bodies of the Presbyterian Church. I see nothing but the mere sound of the name, on which to build this presumption. But this is surely insufficient. Judicatory, say they, means court, and not legislature. Well, the very word court is itself applicable to a legislative body. The term court originally means ad off, as 424 the yard of a country house is cut off or enclosed from the adjoin- ing premises, and called a court. So we speak of certain peculiar sections of the city, as, for instance, Ranstead court. If from their sessions being held in such places, it came to pass that certain legislatures ol state are denominated courts, then there would seem a peculiar fitness in the coincidence that these proceedings of the General Assembly, which are styled acts of legislative power, oc- curred in the church in Ranstead court. But however that may be, certain it is that they speak of their legislature in England as of the high court of Parliament, and the high court of Massachusetts is its legislature; and I might probably cite oiher examples o^ the same kind. But by whatever term we designate the powers of the General Assembly, its jurisdiction was strictly ecclesiastical, and not tempo- ral, because the power of temporal or civil legislation is vested in the legislature of the state; and as the judicial power is vested in the courts of law, so the ecclesiastical power of the church resides in the judicatories of the church. The General Assembly cannot send out decrees for temporal effect, for such a decree of the church would not be binding on any civil officer. Nor could it be further binding on any person, than to command and compel offenders to depart from the church. So far the decrees of the church are binding, and these are the circumstances under which I said that we undoubtedly had jurisdiction, and with which the civil courts cannot interfere. The whole power of the Presbyterian Church is concentrated in the Genera! Assenibly. Notwithstand- ing, that supreme judicatory of the church has entrusted the exer- cise of this power, in many cases, to tlie inferiur church judicatories, the synods, presbyteries and church sessions, yet, as the General Assembly exercises an appellate jurisdiction over all these inferior judicatories, and is the tribunal of dernier resort, the whole power of those judicatories concentrates in the General ^ssembly as the primeval fountain of ecclesiastical power. It exercises the same power over the decisions of the inferior judicatories that the Su- preme Court in this stale exercises over the decisions of the inferior courts. And you cannot arraign the supreme court, on an accusa- tion of abusing its power by reviewing the proceedings of the infe- rior court; whilst it would undoubtedly be an abuse of power should the inferior refuse to allow an appeal to be taken from their judgment. I think there can be no doubt of the correctness of the principles which I have laid down. We have also the authority of Blackstone in support of our claim. Blackstone says that such power is ex[)ressly acknowledged to belong: to the church by act of Parliament. I said that in reference to itself the church has power. I do not mean that it can exercise the civil power of the state, as when the ministers of the church sat in the Scottish Parliament in Holyrood House. It cannot be contended that the power claimed for this church is anomalous; as the only difference which I see between the power of the church in this and in other countries, is, that there the church exercises temporal as well as spiritual juris- diction, and here spiritual jurisdiction only. But the power which 425 we claim exists in the church every where. It is universal, and means every thing. It is common law, because it is thus univer- sally adopted by the common sense of all mankind. We all feel its influence, whether we are willing to acknowledge it or not. Sir Matthew Hale, who was one of the best, most upright and enlight- ened judges that the world ever produced, adds the weight of his authority to those to which I have already referred, in support of the view that I have taken. The great principles of the common law place the power in the General Assembly, over the synods and presbyteries of its own creation, that the legislature has plnced in the supreme court over the several inferior courts. The supreme court is the highest judicial tribunal of the state, and in like manner the General Assembly is the highest judicatory of the Presbyterian Church; and so it must ever be in every church in this country: it must have a tribunal from which there is no appeal. The words have been rung in our ears again and again, that the conduct of the General Assembly of 1837 was unjust and arbitrary. But that of itself is no reason why the civil courts should interfere. I admit that the civil power may of right and ought to interfere to suppress all outrages and infractions of the civil law. But suppose that these two parties in the church had gone on debating, fighting, tearing and devouring each other, we present the question to you: Could the civil courts exercise a power over them whilst they confined themselves to the ecclesiastical concerns of the church? Again we present to you the manner in which the judicatories of the Presbyterian Church exercise the judicial power with which they are clothed. The forms of proceeding are very different from those used in the transaction of common business. When those judicatories are acting in the exercise of judicial powers, the form of proceeding is one which is very uncommon in this country, and, of course, different from their own forms of proceeding in other cases. I will not read the rule which requires the observance of this particular form, as it was fully presented to you by my col- league. But the rule requires that the Assembly should appoint a judicial committee; and as in Congress, to that judicial committee the examination and preparation for trial of appeals and other judi- cial business is always referred. And always, when the General Assembly resolves itself into a judicial attitude, by taking up judi- cial business, a special appeal is made to the Throne of Grace, and the blessing of the divine power on their proceedings is solemnly invoked. The whole proceeding is more solemn than is usual in other cases. I have not my book to refer to; it has been taken away by accident; but a case is reported in 1832, which exhibits this solemn form of proceeding, when, in a case of judicial trial be- fore the Assembly, it was scrupulously observed. As I said, the mode of proceeding in such cases is altogether different from that pursued in the transaction of the ordinary business of these bodies. Another example is furnished in the case of Dr. Riley, in the Gene- ral Assembly of 1837, as appears by their minutes, page 429. The moderator reminded the members of their high character as a court of Jesus Christ, and the solemn duty in which they were 36* 426 about to act. You may take up any one of the minutes of the General Assemblies wliich have been held since the first institution of that body in 17S9, and you will find, in every case of judicial trials, that the mode of proceeding is similar. I took up this, by mere accident, as the first copy of the minutes which fell under my eye here on the table, and tins case immediately presented itself. As I said, similar cases occur in then) all. And not only is this the mode of proceeding in the General Assembly, but in all the judica- tories of the church, from the highest to the lowest of them. Others of the judicatories fall indeed far short of the omnipotence of par- liament, which is vested in ihc General Assembly, yet there is jus- lice in carrying through this principle in tfiern all. Another paper of this character has accidenially come into my hands. 1 refer to page 132 of the minutes of 1832, where a similar record occurs. Indeed, we may take up any of these minutes at a venture, and find the same thing. Thus you see, gentlemen, that the form of pro- ceeding is not the form used in legislative proceedings in the Gene- ral Assembly; but the principle is not confined to that assembly, but may be viewed as extending to all similar bodies all over the world. It is not confined to Presbyterians. xAgain, in these minutes of 1832. we find examples of business, which we may consider as legislative. Here are overtures Nos. 1, 2, 3, &c., all of them relating to business not judicial. All these are in their character legislative acts. In page 325 of the same minutes there is still more to the same purport. Here is also a re- solution recommending a season of fasting and prayer, and inviting other denominations to participate. Here are also petitions, which of course are addressed to the Assembly as a legislative, and not as a judicial court. But the Assembly also originates business, and acts on it, itself; something certainly very unlike a court of justice. These diti'erent forms proceed from a principle in the constitution of parliamentary bodies, and it is by these forms that the ends of jus- tice are reached, and the appropriate ordinances enacted, and though in the Presbyterian Church it is not exactly as in some others, they pass their ordinances as they are applied for, but they cannot extend their power in the enactment of laws, without the desire of the con- stituent judicatories. I will now take up the Confession of Faith, which contains the Laws of Government of the Presbyterian Church, some of which have been already adverted to. Confession of Faith, chapter 31, section 1 and 2. " For the better government and further edification of the church, there ought to be such assemblies as are commonly called synods or councils : and it belongeth to the overseers and other rulers of the particular churches, by virtue of their office, and the power which Christ hath given them for edification, and not for destruction, to appoint such assemblies ; and to convene together in them, as often as they shall judge it expedient for the good of the church." II. " It belongeth to synods and councils, ministerially, to deter- mine controversies of faith and cases of conscience ; to set down 427 rules and directions for the better ordering of the public worship of God, and government of his chuich ; to receive complaints in cases of mal-administration, and authoritatively to determine the same: which decrees and determinations, if consonant to the word of God, are to be received with reverence and submission, not only for their agreement with the word, but also for tlie power whereby they are made, as being an ordinance of God, appointed thereunto in his word." Now it would be difficult to embrace in half a dozen words any thing more comprehensive or explicit than this, "to set down rules and directions for the better ordering of the worship of God, and government of his church." Not being much of a theologian, I, at least, could not suggest more in a few words than is liere stated of a quasi legislative character. There is the highest authority of the Presbyterian Church, using the same words as are used to express legislative powers by the British Parliament. So in page 363 of the same book; in the 12th Chapter of the Form of Government, the General Assembly is described as the highest judicature of the Presbyterian Church, as purely representative in its character, com- posed by delegation, &c. And does not this language indicate to every reader the character of a legislative body? In the 5th sec- tion of this 12th chapter, also, it is said: "To the General Assembly also belongs the power of decid- ing in all controversies respecting doctrine and discipline; of re- proving, warning, or bearing testimony against error in doctrine, or immorality in practice, in any church, presbytery, or synod; of erecting new synods when it may be judged necessary ; of super- intending the concerns of the whole church; of corresponding with foreign churches, on such terms as may be agreed upon by the Assembly and the corresponding body; of suppressing schismalicai contentions and disputations ; and, in general, of recommending and attempting reformation of manners, and the promotion of charity, truth, and holiness, through all the churches under their care." Again, in the 4th section of the same chapter: "The General Assembly shall receive and issue all appeals and references, which may be regularly brought before them from the inferior judicatories. They shall review the records of every synod, and approve or censure them : they shall give their advice and instruction in all cases submitted to them in conformity with the constitution of the church ; and they shall constitute the bond of union, peace, correspondence, and mutual confidence, among all our churches." Now I have fully established what I proposed, viz. that the Gene- ral Assembly possesses, strictly speaking, neither legislative nor judicial powers, but ecclesiastically both. The articles of the Form of Government are, throughout, indicative of the power of the General Assembly, in accordance with my position, and that so much legislative power should be given to the Assembly, is perfect- ly natural. But whether it were so or not, here is our authority. I now speak of the terms used in the Confession of Faith of the Presbyterian Church ; and they are sufficient for our purpose. 428 Though the language applies to other bodies in a limited degree, yet in this highest tribunal of the church the power is unlimited, as to the administration of the discipline of the church. So much for the powers and character of the General Assembly. Well, what were the proceedings of that body in 1837, which are so much complained of I In form they are merely a series of reso- lutions standing upon the minutes. They were, in substance and form too, a mere discontinuance of "a regulation," for such was the Plan of Union of 1801. The Assembly had the power to bring those regulations to a termination by a suspension of that plan, which was as subject to abrogation as any other regulation. It was the terminating of an agreement, which they might as well terminate as an agreement to ring a bell, or do any other thing. It was terminating an illegal agreement, an agreement with a heterogeneous body, which could not be assimilated to the General Assembly. It is a general principle with all deliberative bodies, that they have a right to terminate the existence of their own ses- sions, and of all legislative bodies, that they can repeal their own acts. It would be outrageous indeed if they could not. Every de- liberative body has the power and the right to sit on its own ad- journment, and to make its sessions of what length the members please. The principle is universal, extending through all delibera- tive bodies. It prevails in the Congress of the United Slates, as well as in the General Assembly of the Presbyterian Church. The power to decide when was the right time to terminate its session, or to repeal a former act, was certainly inherent in the church, and was vested by general consent in the General Assem- bly. The Presbyterian Church had been assiduously engaged for many years in extending blessings to Congregationalists in the new settlements. And thus the Congregationalists had grown up, and grown strong under the superintending care of the General Assem- bly. And had not the General Assembly power to determine when the connexion between them should cease? It would be absurd to say that they had not. It would be outrageous to say that they could not say to these Congregationalists, " we have done what you needed, you are now strong enough to help yourselves." They had a right to dissolve the connexion, without assigning any reason for declining to continue what had been abused. It was only opening the window, as " my uncle Toby" did to the poor fly, saying, " there is space enough in the wide world for us both." The proceeding of the General Assembly of 1837, speaking in a somewhat different sense, was a proceeding in conformity to the precepts of the gospel of peace. It was founded on principle, and designed to terminate strife. They acted wisely in thus adopting the language of the great patriarch Abraham to his nephew Lot, *' the land is not able to bear us both, but let there be no strife between us, for we are brethren; is not the whole land before you? Therefore separate yourselves from us, either to the right hand or to the left; if you will take the right hand, we will go to the left; or, if you prefer taking the left hand, then we will depart to the right." The proposals of the General Assembly were similar both in the 429 letter and in the spirit of them ; and as they refused, there was a necessity for removing or disowning the recreant synods, in order to end the strife. It was then a disowning in part, and in part re- modelling them, regidating them, as they had a perfect right to do, for it would he inconsistent to say that the General Assembly had not the power of regulating the four synods, when they had a right to regulate the internal afl'airs of the whole Presbyterian Church, and every part and parcel thereof. The Plan of Union of 1801 did great injustice to the Presbyte- rian Church. Though it was intended for good, yet it did mischief instead of good, bringing in Congregationalism and heresy into the church. But, the vi'hole power of the Presbyterian Church being concentrated in the General Assembly, they had power to organize a General Assembly of a similar nature, as the one to which the act of incorporation was granted by the legislature; and that was a purely Presbyterian General Assetnbly; holding to the Calvinistic creed without any intermixture of Congregationalism, Swedenbor- gianism, or any other ism or heresy. The Presbyterian Church still infiexibly adheres to the Westminster Confession of Faith whicli their ancestors brought over with them to our land, and their Form of Church government is founded on the same model of republican- ism as our republican government. It is in strict conformity v^ith the law of Pennsylvania, which has been read and will be read, again. The General Assembly has power to dissolve and re-orga- nize both the synods and the presbyteries at pleasure; and the four synods of Utica, Geneva, Genessee, and the Western Reserve, de- pend upon it, were mere eleemosynary institutions, which grew up under that system of universal charity, which permits the ministers of the Presbyterian Church to preach the doctrines of the church to all persons, and which spirit has characterized the Presbyterian Church since her first institution; as is manifested in her zeal for the propagation of the doctrines of the gospel, by sending out mis- sionaries at great expense to labour without any reward, except the satisfaction of well-doing. The very origin of the organization of this respectable body ap- pears to have proceeded from the same spirit. It was, because con- ceived "to be most conducive to the interests of religion, that the synod," (of New York and Philadelphia,) then the highest judica- tory of the Presbyterian Church, was, in 1780, "divided into four synods;" as we learn from the Digest, page 37. Here again I would have you notice, gentlemen, that synods pre ceded the General Assembly. The preliminary proceedings for procuring the charter of the General Assembly show that the object of that charter was to provide for the safe keeping and disposal of certain charitable funds entrusted to the General Assembly. The corporation is of a peculiar character, in this, that the trustees are not of the essence of the body for whose benefit the incorporation ■was obtained. That is the General Assembly, or the ministers and elders of the Presbyterian (church. The General Assembly is composed of the ministers and elders, who, by the act of incorporation, have the appointment of those 430 trustees. So that the General Assembly is in the strictest sense the corporation, yet as the legal corporation is styled " The Trustees of the Ministers and Elders of the Presbyterian Church in the United States of America," and as the act of incorporation itself placed the trustees under their control, the General Assembly may be called (as it has been) a quasi corporation ; and this quasi corporation has more power than the corporation itself. The power vested is in reality in the General Assembly. The trustees are the mere hinge on which the corporate power which the law gives the General Assembly turns. This General Assembly was originally composed of synods, and, but for its relation to law, by the incorporation of these trustees, might return to synods again. As the Assembly was originally constituted, by one synod dividing itself into four, and the representatives of the presbyteries com- posing those four synods meeting in General Assembly, so, but for its legal relations by the charter, the Assembly might, if it should see fit, again be merged in the synods embraced in its communion. True! [in reply to a suggestion from the court,] presbyteries were in their existence antecedent to the synods, and the General Assembly, under the constitution of the church, is composed directly of a delegation from the presbyteries, and not from synods — but, in the account given of the division of the Synod of New York and Philadelphia into four synods, for the purpose of erecting the Gene- ral Assembly it is said, (Digest, page 38,) "that out of the body of these synods a General Assembly shall be constituted," by every presbytery deputing commissioners, &c. Moreover, the General Assembly has the power of changing the ratio of representation of presbyteries in the Assembly, and of changing the proportionate representation of different portions of the church, by dissolving presbyteries and annexing their members to others, either in the same or in different synods. Thus the ratio of representation has been changed from six to twenty-four, showing that the right existed in the General Assembly to alter the representation from time to time as they shall see fit. I am told that the alteration of the ratio of representation has been made by the presbyteries themselves, it being done by amend- ments to the constitution. Well, be it so. But the thing is in the control of the General Assembly, as they can affect, as I have said, the proportional representation by the dissolution of presbyteries and synods. Thus, the very basis of representation in the General Assembly, as it is now organized, consists of a delegation from presbyteries belonging to synods. The minutes of 1834 show, that the Presby- tery of the Chesapeake was then dissolved by the General Assem- bly. In 183.5, the Synod of Delaware was dissolved; thus showing the power of the General Assembly to dissolve presbyteries and synods, and establishing it beyond doubt. The presbyteries that remained in connexion with the General Assembly, were thus affected by the dissolution of other presbyteries, and the General Assembly by dissolving some of the presbyteries, and attaching their constituent churches to other presbyteries, might change the 431 representation at any time. I do not mean to say that they could do this contrary to the established laws of the Presbyterian Church ; but I mean to say, that in accordance with those established rules, they could and did, in 1834, and at other times, dissolve presby- teries and synods, and attach their fragmentary portions to others. And if the General Assembly possessed this power in 1834, it cer- tainly did in 1837. But the proceedings of the General Assembly of 1837, surround- ed as that body was by peculiar circumstances, may be referred to in another ])oint of view. That they had a right to pursue the course which they did, is proven by reference to the proceedings in the case of the Third Presbytery of Philadelpiiia. To this I WQuld call your particular attention, and you will be good enough to recollect, that not a word was said in Ranstead court, in 1838, of these being acts of usurpation; an evidence that they were not viewed as such. Instead of that, they confined their complaints to the proceedings in the case of the four synods, and undertook to consider the act declaring them to be dissolved, as null and void. They did not consider a similar act, relating to the Third Presby- tery of Philadelphia, null and void. And they did not, even in 1837, pretend that the General Assembly had not power to dissolve that presbytery, but their only question was as to timely notice having been given, which, I have already shown you, could not avail them in the least in this Court, as the fact of their jurisdiction shields their acts from investigation. That the General Assembly was transcending its power, was not suggested, in 1837. It was not, then, even supposed by any, not even by these New School gentle- men themselves. In 1838, when these gentlemen rose in their places, and denounced the proceedings of the General Assembly of 1837, they said nothing about the dissolution of the Third Pres- bytery of Philadelphia. They were silent as to the question of power in 1837, as appears by the Protest of the minority, a New School paper, which was presented to the General Assembly of that year, and which abounded with protestations against the dis- solution of that presbytery, but altogether irrelevant to the question of power. That protest is recorded in the minutes of 1837, p. 487. By the minutes of the Assembly, you may perceive that the his- tory of the Third Presbytery of Philadelphia, is a history of its dissolution and resuscitation, and from the beginning to the end of the controversy in relation to that presbytery, the unlimited power of the General Assembly was admitted and claimed by the mem- bers of that presbytery, in opposition to the Synod of Philadelphia. They did not once raise the objection that the power of the General Assembly was limited. The objection that they raised was, that those proceedings conflicted with the sevenal previous decisions of the General Assembly. The power of the General Assembly over the inferior judicatories, was not questioned by these New School men, during the whole course of the proceedings in relation to the Third Presbytery of Philadelphia ; on the contrary, it was acknow- ledged to the fullest extent. And the General Assembly dissolved the Synod of the Western Reserve, and the other synods, by the 432 same authority thai they exercised in dissolving the Presbytery of the Chesapeake, the Synod of Delaware, and the Third Presbytery of Philadelphia, Yet, there was no usurped authority in the case of those bodies. Why, then, should there be in the cases of the lour synods'? Add to this Dr. Patton's resolution, strengthening this position. It speaks of presbyteries us deprived of this right to be represented in the General Assembly, alludes particularly to those of the tour synods, but says not a word about the Third Presbytery ot Philadelphia, in the case of that presbytery, the General Assem- bly overlooked the synod, and went directly to the presbytery. But there is no difference in principle. The exercise of power was ti:e same as in 'the other cases. Dr. Mason also confined himself to the presbyteries of those synods. He distinctly mentioned the presbyteries when he made his motion. Thus we have an acknow- ledgment on the part of Dr. Mason, that the act dissolving the synods, extended to and bound the presbyteries. He also thereby admitted the propriety of the proceeding by which the Third Pres- bytery was dissolved ; else, why liad not Dr. Mason, when he rose, one commission from the Third Presbytery of Philadelphia. It is perfectly consistent to conclude, that there was the same power to dissolve the four synods, that there was to dissolve the Third Presbytery of Philadelphia, and the omission of Dr. Mason to present the commissions from that presbytery, is therefore the admission of ihe power and right, vested in the General Assembly, to dissolve those synods. It is a plain admission, as any in the world. They have chosen to apply to themselves a law which is all-sufficient for our purpose. So long ago, at least, as 1831 and 1835, we find the cases before referred to, of the dissolution, by the General Assembly, of synods and presbyteries. I refer to them again to satisfy you that here were precedents, which are the true interpretation of law, the same in principle, as the case they have raised. They acquiesced in these, and what is still more to the point, without referring to those proceedings in any terms. I return now to the consideration of the Plan of Union, to show that it involved neither legislative action nor any thing in the na- ture of a contract. It was not even properly called a "Plan of Union." It is a mere set of regulations, adopted by the General Assembly and the General Association of Connecticut; and I ask, speaking as a lawyer, where is there any appearance of a con- tract? What IS \he consideration? Where are the parties to the contract? Where the equality of the parties? If there is a contract to prevent the Assembly from dissolving these synods, produce it, and let us see it! They produce "the Plan of Union between Pres- byterians and Congregationa lists in the New" Settlements." But that is not a contract. The General Association of Connecticut has nothing to do with it. They may tell you that it was some kind of agreement or plan formed between A and B; but, I ask, where is the contract? There was none, because there is no con- sideration, and no penalty for a violation or neglect to fulfil the agreement, in any sense expressed, from beginning to end ; and if it were in the form of a contract, it would be void, for the General 433 Assembly of course has no power to make such a contract. I will rend for the enlightenment of your minds on this point, from '• The Encyclopedia of Religious Knowledge ;" a work written by a New England Congregationalist, and which may be referred to by all as authority. You must bear in mind that they are not Presbyterians but Congregationalists. Presbyterianism does not extend in that direction beyond the Synod of Albanv. In the South, the Calvinists are generally Presbyterians. In New Enc^- land, and in the western and northern sections of the stale of New York, and in the northern portion of Ohio, known by the name of the Western Reserve, they are generally Congregationalists ; and, as we see by this authority, the Congregational Associations are limited as to their powers; as are also another class of ecclesiasti- cal bodies, termed Consociations. These Congregational Assem- blies are " Associations of Ministers" only, having no power of making laws, and only extending a mere advisory counsel to the Congregational churches. Those churches are not bound by any decision of either the Association or Consociation. Here, under tlie title "Connecticut," we also read, that " in 1791," a mistake of ten years, " a plan was adopted between the General Assembly of the Presbyterian Church, and the General Association of Connecti- cut, by which Presbyterians and Congregationalists, in the New Settlements, were entirely amalgamated ;" and further, that "four Hundred of these Union churches have been planted by Congrega- tionalists of Connecticut alone." "Pierced through the very vitals," indeed we seem to be by this Plan of Union, as my learned friend said on another subject in ap- plication to the opposite party. Here it has been shown by this book, that those Congregational churches, which have been estab- lished under their construction of the " Plan of Union," have now grown up io four hundred in number. When they have thus be- come great, and even the majority in some of the synods and presbyteries, even greater than the stock into which they were grafted, are we to be told that " the Plan of Union" in the New Settlements must be continued to them, and that we have no power to terminate it? On the one side it may be urged, that it is produc- tive of benefit to them, but on the other side may we not urge its injurious effects on us? Congregationalists cannot, with propriety, be represented in the presbyteries; for if they can do this, they may shortly abstract the whole power of the Presbyterian Church, in violation of the charter of incorporation. They never had power to enter into any contract at all; and yet they claim to enter on our premises, and seize our property by virtue of what they had not power to make : as though it were for that very purpose of seizing the property of the Presbyterian Church that they entered it. I am showing, that the " PJan of Union," the abrogation of which is complained of, was not a law or a contract. It wants the validity, the formality, and the legality of a contract. Even a con- tract with the sexton for opening the church (the place of worship) in the morning and evening, is made in the proper form, and it would be singular indeed that a contract for opening the door to 37 434 the communion and privilege of the whole Preshyterian denomina- tion should be without form. It is a safe regulntion which requires all contracts to be made in proper form, and they can have no force of law without. I hold in my hand what they will not be disposed to deny. Again, on page 5 of this book — Mr. Wood. I would respectfully suggest, whether this is con- sistent with the practice of this Court. If the opposite counsel is allowed to go on in this manner, reading and comnienting on what is not in evidence, and from books which may have been got up, as has been intimated, for the express purpose of prejudicing this case, I have something to say in relation to what I offered in evidence; and to which they objected. Your Honour will recollect, that there is nothing in evidence as to the Third Presbytery of Phila- delphia. Mr. Ingersoll. The Third Presbytery of Philadelphia was refer- red to by Mr. Meredith. Mr. Wood. We offered the minutes of those very proceedings in relation to the Third Presbytery, to show the manner in which the dissolution of that presbytery was effected; but they objected, and the testimony was ruled out l)y the (^ourt, and I think it would be exceedingly unfair to permit them now to put their own con- struction on it; unless it is distinctly understood that I am to be allowed the same liberty. From an unwillingness to interrupt, we have sat by and listened to a mass of matter entirely irrelevant to the case, and extended comments on statements in books not in evi- dence, and of the correctness of which statements there is not a shadow of proof, as well as to a long argument on the case of the Third Presbytery of Philadelphia. Judge Rogers. The course complained of is irregular and im- proper, as has been a great deal of what has been introduced into this case; but when the opposite counsel was sitting by and did not interfere, it was a matter of great delicacy in a case of this peculiar character for the Court to interpose. Objection being now made, the counsel must return to the consideration of what is in evidence in the case. Mr. Ingersoll. Still I may argue that the case of the Third Pres- bytery of Philadelphia is analogous to those which were included in the motions of Drs. Patton and Mason in the General Assembly of 18.38. But I am not particular about it, if exception be taken. What I am now about to bring to your notice, the acts of 1837, I suppose will not be excepted to, unless because it is so long since it was given in evidence that my learned friends may have for- gotten it. I have something to say of the proceedings of the Gene- ral Assembly of 1837 different from the mere abstraction which I first proposed. I allude to the various proceedings in relation to the four synods. The dissolution of those four synods was effected by a decided majority of the members of the General Assembly of 1837. The first of those excinding resolutions, as they have been called, was the act of the Assembly declaring that the Synod of the Western Reserve no longer continues to be a part of the Presby- terian Church. By a subsequent proceeding of a similar character 435 the other three synods were declared to be no longer a part of the Presbyteriatj ('hurch. The Western Reserve is a term of peculiar import, and may need some explunalion. The nait)e "Western Reserve," has been applied to a large tract of country lying on Lake Erie and contprising seven cout)ties in the norlli-eastern part of Ohio; the right of soil in which tract was reserved to the state of Connecticut. Thus the epithet, New Connecticut or the Western Reserve, came to be applied to it by the first settlers, who were mostly emigrants from Connecticut. The other three excinded synods lie in the western part of the state of New York. Tl:e Synod of the Western Reserve was erected from the Synod of Pittsburgh in 1825, as the Synod of Pittsburgh was erected from the Synod of Virginia in 180.i. But I desire now to call your at- tention to the state of the parties existing at the time when the pro- position was introduced by the Old School party into the General Assembly of 1837. The New School party then agreed with the Old School men that a division of the church was necessary to further the advancement of the Redeemer's kingdom. But the proposition was defeated by the New School party. Judge Jessup, who afterwards proposed a citation of the synods which were complained of, the very man who afterwards proposed this measure, together with his friends of the New School, opposed it when the Old School party introduced the proposition and were willing to agree to it. So inconsistent were these New Schf)()l men, as you will perceive by the manner in which all these things were done. The several measures were delibeately debated and considered, and, as, when in legislative proceedings those who are fond of speaking have exhausted the subject, the house must resort to something to put an end to what would otherwise be interminable, a moiion was made for the pre- vious qupstion, which put an end to the debate and brought, the house immediately to action on the proposition before it. The pro- ceedings in relation to the I'lan of Union took place in the General Assembly on the 19th and '20th of May 1837. These proceedings have been submitted to you, and you see that they were perfectly refjular. Now, if I have not shown you by positive testimony, that the reasons alleged for the abroj^ation of this plan are true, 1 have them here in the resolution itself. The authority of that Assembly of 1837 is ample testimony to the truth of those reasons, unless tliey are disproved. The biu'den, therefore, lies on them. And why have they not, from May 1837 to this day, adduced one particle of evidence that those reasons were not true, that the disorders did not exist, or that the General Association of Connecticut had authority to make contracts? The answer is, they could not do il. Their objections to the repeal of tlie Plan of Union were inconsistent, and shall they cause all the funds of the church to fall into their hands merely by taking advantage of their unsuspecting brethren? The General Association of ('onnecticut had no power to enter into a contract with the General Assembly of the I'resltyterian ("hm'ch. They had no power to regulate the churches and C(mgregations in Connecticut. Tl»e extent of their power was advisory merely. And if they had entered into such a contract with the General As- 436 sembly it would have been unconstitutional, null and void. The learned counsel (Mr. Wood) rose in the midst of my argument on this subject and objected to my proceeding, alleging that it was not in evidence. 1 was taken by surprise, but the burthen of the day is on them, and it is not for us to sustain tiiem if they are determined to destroy themselves. I care not whether it comes from books or not, so that it is argument. If they do not undertake to meet it, they admit the impossibility of meeting it. The Plan of Union having been abrogated, the next business in the series of these transactions taken up by the Assembly, was the subject of citation, the very thing which was not carried into effect on account of their stubbornness. You may ask, why was it pro- posed to bring up those presbyteries by citation? Dr. Elliott, and others of his friends, were on the side of citation ; and Mr. Cleave- land, Dr. Beman, and their associates, opposed it with all the force of a powerful minority vote. You will perceive that the previous question, here or elsewhere, is resorted to, to put an end to inter- minable debate; a very harmless and usual course, but always re- garded as being oppressive, by the minority. The debate had continued until a late hour of the evening, and there had been ample time allowed. Amongst the "yeas" on that question, we find the names of Alexander Junkin, Cornelius C. Cuyler, and others; and, on the other hand, Mr. Gilbert and others of the New- School party. The question was carried by a small majority, in- dicating, perhaps it might be supposed, that the majority were soon to become the minority; and the minority entered their protests against what they now claim to be i/ie only right way, the very thing which ought to have been done instead of excision. But when it was found that the New School opposed the proposition for regular proceedings, what was the only alternative? It is found in the proposition of Mr. Breckinridge, of which notice was im- mediately given, and which was formally introduced the next morning, and a committee appointed to effect an amicable division. Mr. Preston reminds us, that at a certain stage there was no dif- ference between them on the propriety of this measure. Yes ! Those scenes of scandal should have been avoided, and might have been avoided. The parties would have been happy, if they had agreed to a proposition for a division. After that, all things with regard to the property could have been arranged. Not as Solomon proposed, to divide the living child. The Old School party were willing to divide the property with them, but they would not divide their allegiance to the Presbyterian Church, and the division did not take place, because they determined to remain the Presbyterian Church. The New School being willing before, now refused, unless u-e would divide our allegiance to the Presbyterian Church. That you may the better judge of this matter, the fact should be stated that they acknowledged that a division of the Church had become necessary. The Theological Seminary and funds at Princeton, they acknowledged belonged to the Old School party, and they dis- puted about nothing, nothing but a name. It was a measure in 437 which they were all agreed, that division was necessary, that it must take place. What divided thenn was, that the Old School insisted that they would all iidhere to Presl)yleiianisni, ih;itlliey would "remain" the General Asserrihly; while ilie JNcvv School contended, that the funds should be " transferred^' to the Old School as a body to be constituted, as well as lhem^elves. They insisted on remaining a part of the Presbyterian ('hurch, and unless the Old School party could thus compromise their princi[)les they would not agree. The Old School party could not be brought to think with the puet, " For modes of faitli let graceless zealots fight, His cant be wrong- whose lite is in the right," But they rather chose to contend earnestly for the faith, which they believe was once delivered to the saints. The maxiin of the poet was wrong; radically wrong. So Presbyterians believe, and of course a compromise could not be effected on that ground. That this maxim was wrong, we think will sliortly be manifested in the life and conduct of him who adopts it Where Mr. Meredith got his supposition that we refused to agree to an amicable compromise, I know not. It is they insisted on having one-half the living child, thouo-h at the expense of depriving it of life. We insist on beinir the Presbyterian (Jhurch. We sav, take the property if you will, only leave us the church and the principles, which we revere. Only leave us the succession to the Presbyterian Church, the church of our fathers, and we are satis- fied. That is the point, which, in our estimation, is worth more than all the money in the world. On this question of faiih, they se- parated and disiigreed. The one party wished to remain as it was. The other would not give up to it. Both agreed as to what men of the world would say was all that whs worth contending about, and they differ as to the succession. What did the New School care for the seminary at Princeton? What for the boards of missions, and of education? Nothinfr! No, nothing but the name; and that they speak of as "immaterial," a mere "trifling" consideration. The separation of the committee resulted from the fact that the Old School adhered to Presbyterianism in doctrine and practice, and the New School did not. In regard to the necessity of divi- sion, proposition No. 1, of the mnjority, is very strong, but not so strong as No. 1 of the minority, on the same subject. They add, that the measure is necessary " to advance the glory of the Re- deemer's kingdom." The proposition was made, which was fair and reasonable, and they objected to it, notwithstanding it had been unanimously agreed that a division of the church was neces- sary and proper. The minority refused to agree to any proposi- tion that would acknowledge us the majority, as the successors of the fathers in the Presbyterian Church. There is a seeming inconsistency between the final report of the minority, and their subordinate report, called No. 1. This says, that long experience had proved that the body was too large, and 37* 438 that they believed that the glory of the Redeemer's kingdom would be advanced by a separation. They did not doubt it: and yet in their final report to the Assembly, they say that they had not deemed a division necessary, but had been induced to yield that point, because the other party were so strenuous for it. And, hav- ing thus yielded, the only point of dilference between them and the other portion of the committee, they say, was "v^'hether the preli- minary arrangements should be sent down to the presbyteries, or ad(»pted now." But mark the points in which they actually differ from the majority. 'I'hey appear to ditier only as to the shape which the agreement should assume. They propose a sli<;bt differ- ence in the phraseology, they do not say in the substance; and yet that slight difference was so very material, thnt they have contend- ed for it to the last. Can you reconcile it ? They have now turned over a strange page, and deprecated a separation. They are the most accommodating gentlemen in the world ! There is an obvious and marked difference between what they proposed then, and what thev claim now. I do not wish to be understood as casting re- proach on these gentlemen; far from it. But they now wish to make it appear that they were willing to remain, unwilling to di- vide the church, and that, as reluctant as they were, we were de- termined to cut the church asunder. The only material part of the discrepancy between the two proposals, was that the Old School party wished to adopt the preliminaries immediately, and the New School party, with a very little delay; and that the Old School party were determined to retain the name and character of the Presbyterian Church, whilst the New School party were deter- mined'that they should not. The Old School adhered, with perti- nacity, to the succession of St. Peter. The New School consider this a trifling circumstance. To this the Old School reply, by simply referrmg to the preceding papers, as containing their final answer. No. 4, of the minority, then proposes to unite in a report, that the two parts of the committee are agreed on the general principle on which a division should be effected, and request the Assembly to decide whether it should be consummated now, or re- ferred to* the presbyteries. To this, the committee of the majority reply, that they consider it a waiver of the whole subject. They had no objection to take a new name themselves, and they strenu- ously insisted that the Old School party should take a new name also. Now. in regard to the proposition which Mr. Meredith so much ridicules, what is the difference between the proposition of the two parties'? They were willing that the Old School party should have the Princeton Theological Seminary, and the funds. The Old School party proposed that they should remain with the body retainin? the name of the General Assembly of the Presby- terian Church in the United States of America. The slight altera- tion proposed in the phraseology, by the New School party, was, that they should be transferred to the body to be called by that name. They were willing that the Old School party should hold the Princeton seminary and the funds, to the end of time, if we would compromise our principles. Of the propositions, No. 5, of 4vi9 the majority, closes the correspondence, as it was evidently useless to continue it any longer, since, if a definite conclusion had been come to by the General Assembly, neither parly would have con- sidered themselves bound by it; but each would pursue its own course. Thus, though in appenr.ince the difference in the phraseo- logy is but little, yet they differed essentially us to the modus ope- randi of the plan of separation proposed. This negotiation having thus proved abortive, by the stubbor- ness of the New School party, and their refusal to accede to the liberal and generous proposition of the Old School, the latter were forced to adopt some other measure; and, the plan for citation ap- pearing inefiectual, even if it iiad not been virtually suspended bv the large minority against it, a resolution was immediately intro- duced, and received the sanction of the majority, declaring that the Synod of the Western Reserve was no longer a part of the Presby- terian Church in the United States of America. It was well ob- served, that as we had tried every other remedy, and the New School would not take it, we must therefore resort to severe mea- sures. The abrogation of the Plan of Union was deemed essential to the prosperity of the church, and the Synod of the Western Re- serve, which came in under that Plan of Union, was dissolved, as a necessary consequence of the abrogation of the plan itself. But the resolution was followed by protest upon protest. Now, is the authority of the General Assembly declarative? Here is their declaration. Is it controlling over synods? They have here legitimately exercised it. A resolution of a similar cha- racter, respecting the synods of Western New York, but more at large, with a modification extending to the Western Reserve, was subsequently introduced by Mr. Breckinridge, and, after various obstacles from the New Soho(jl party, was carried. This was the first measure which prevailed by a large majority, 130 to 80. I now wish you to give your attention, for a single moment, to the resolution ottered by Judge Jessup, which was introduced by the minority, when the proposition of Mr. Breckinridge had nearly reached its final result. The majority, composed of the Old School party, desired the separation on amicable terms. The minority would not accede. They were driven from every measure whicli they desired to pursue for the preservation of harmony and peace. The New School party raised objections to every proposition ihat could be devised, and now, on the eve of the passage of these reso- lutions, Mr. Jessup proposes to substitute a resolution to cite these synods to the bar of the next Assembly. They refused our propo- si-ion, though it was the same in substance, though that extended 10 all inferior judicatories, wherever situated, and this included only the three synods; because they were the very ones of which com- plaint had been made. But the previous question cut ofl' all the proposed amendments, and brought the original proposition directly^ before the house, and so Mr. Jessup's substitute was lost. I will here read these excinding resolutions, as they are termed, which were then adopted. [See previous pages 56 and 57, resolu- tions numbered 1, 2, 3, 4.] 440 Now, gentlemen, you would think that there was extreme chur- lishness on the part of those who would not thus come in and participate with the Presbyterian Church in the trnnsaction of its business. They refused to be put in order, and in consequence thereof were put our, and then they refused to be put back ag:iin. Those who were so wilhng to brenk off, when the division was un- der consideration, will not consent to break up those synods as now constituted. They will not obey the mandate of the General As- sembly; but they were before determined to contend about a name merely. They are now deternuned to contend about something else. And so this compound or New School party are outrageous in their denunciations of ttie General Assembly, for having cut off the four synods, dissolved then in consetjuence of the abrogation of the "Plan of Union." They were not cut off, were not dissolved, nor excluded. No, nothing! only they were \u\(\ to come in as Presbyterians. Where is the hardness of this transaction dissolv- ing the synods, if it is dissolving them? but it is not; it is only disowning the Congregalionalists in those synods. Every Presby- terian mny come in under the very provisions of these resolutions. Every church and every presbytery belonging to those synods could have enjoyed the whole of their rights and privileges to the full extent, by complying with a simple and reasonable requisition. The Presbyterian churches within those bounds, were not affected by the resolutions. It is therefore manifest, that they nre not of the Presbyterian Church at all, or they would have willingly complied with Presbyterian order. Many of them were Congregational churches, which were presided over by Presbyterian ministers, and these Congregational churches could not be represented in the General Asseml)ly, either directly or indirectly, af"ter the abroga- tion of the "Plan of Union," if even tliey had the shadow of a claim under that " l*lan." When there is only one of the twevtyfour minister.* l)elonging to one presbytery who is a pastor of a Pres- byterian church, it is an evidence that Congregationalism has taken deep root. The injury, the injustice, was manifest, and from it they could not escape in any other way than by adopting just such a resolution as they did. You may call those resolutions by what name you please; but disownment it is not, unless you say that we disowned them precisely as we did the Synods of the Chesapeake and Delaware. The General Assembly disowned nothing but what ■was not Presbyteri.in. They only dissolved those four synods, be- cause their constituent parts were Congregationalists, who had come amongst the Presbyterians, where they had no right to come. Such as were really Presbyterians, were not affected by it, as the door was never closed against them. The resolution merely at- tached them to some presbytery, which was regularly formed. But, said they, "that is not the thing we wish. The name is exactly the thing. Give up your name, and we are satisfied." It was more than churlish in these men. It is the indulgence of churlish- ness which works infinite mischief. But why, they ask, was not the Synod of Albany dissolved or excluded, when one of the pres- byleries belonging to it, was as deeply imbued with the heresy 441 of Congregationalism as some of the presbyteries belonging to the four excinded synods. I answer : because it was not then deemed necessary, as the Synod of Albany had a number of Presbyterian presbyteries belonging to it, and it might be presumed that there was yet sufficient strength in that synod to remedy the evil com- plained of. The General Assembly certainly had the power to dissolve the Synod of Albany, the Presbytery of Montrose, or any other synod or presbytery, or to change their boundaries, as they are all bounded by geographical lines, and generally formed of churches which are contiguous. They are not always bounded by the geographical lines of the states. For instance, the Presbytery of Montrose, in Susquehanna county, Pennsylvania, belongs to the Synod of New Jersey. Whether any part of that synod is in the state of New York, I do not know. But I need not take up much of your lime in the examination of this part of the subject, as there was not a man, or church, or presbytery, which was truly Presby- terian in doctrine and order, interfered with by the resolutions which have been so liberally anathematised. If any were inter- fered with, they were Congregationalists, and not Presbyterians. They were Congregationalists, and would not submit to the decrees of the Presbyterian General Assembly. That is what produced the wrong results. That is the meaning of their protests, and nothing else; and such it must appear in a court of justice. On the great question of priority, or power, there is no difficulty where parties are disposed to do right. The congregations are parts of the synods, and as such fell with them. I find in the minutes of the Assembly for 1837, that the important reasons for the protest presented to the General Assembly against the resolu- tion relative to the Synod of the Western Reserve, were the modus operandi. Information was drawn out from the members, cate- chetically, &c. Perhaps we shall understand this by and by. At present, I only observe that the three cardinal measures of the Old School party were the abrogation of the "Plan of Union," the reso- lution declaring the Synod of the Western Reserve no longer a part of the Presbyterian Church, and a similar resolution relative to the Synods of Utica, Geneva, and Genessee. Now, if they did not wish to drive us to these measures, why did they oppose an amicable sepa- ration? Why did they not bring themselves to agree to the mea- sure, when it was proposed by the majority? They, the minority, would not; and we found that it was useless to pursue the subject further. Can a Christian assembly meet together in harmony, where there are two parties, and they are each determined to bear rule over the whole church ? Can they not act more advantageously apart? Let me illustrate this. The colonizationists and abolitionists both have the same object in view, the amelioration of the condition of the negro race, and the ultimate emancipation of every slave: and yet they cannot agree with each other, because they differ as to the means to effect the objects they both have sincerely at heart. Both these societies are labouring assiduously, and at great expense, to promote the ex- tinction of what they both consider the greatest curse which has 442 ever fallen on any part of our beloved country. Yet, as they dif- fer widely as to the nnenns to be employed to effect that momentous object, they are the very antipodes of each other in their action. Thus, whenever the colonizationists and abolitionists come in con- tact, there is any thing but harmony and peace. Each contends earn- estly in support of his favourite plan, and assails the other with language more violent and abusive than they apply to their common opponents. And these two parties can no more come together in har- mony and peace in the Presbyterian Church, than colonizationists and abolitionists in one society. The self-will of the leaders of the two parties, or an actual difference in opinion, will for ever keep them apart. They cannot harmonise together, and it would be cruelty to force them into contact with each other. It is enough to estab- lish this, which is shown on these very minutes. There are " im- portant differences in doctrine." The New School party differs from us on points of theology. They will not give up the name of Presbyterians. Not they : and yet they acknowledge that there is a difference between them and the Old School party on points of theology. I must confess that I do not understand them, and will not attempt an investigation of them. They now say, that those points of diff^erence in theology are not essential. The Old School men say that they are. No matter which is right, they cant agree together, and they must part. Every church in its turn has been subject to such intestine convulsions, and could not be tempered down to an agreement between the parties. Agreement has gene- rally been found to be impossible where theological disputes have arisen. Amongst the early reformers, Luther and Calvin never could agree in any thing except a zealous opposition to the Church of Rome. Such has been the case, and probably will be, until the promised millennium, when Christ shnll reign in the brightness of his glory for a thousand years. The Old School party believe that they are on the right ground, and that the others have gone off" and left them. They had better keep apart. There is between them, a wide and irreconcilable difference in doctrinal principles. There is also another difference; namely, in the Form of Govern- ment of these churches. I would not say with my colleague, who opened our case, that the Presbyterian government is an aristocra- cy. I would raiher call it a representative democracy, while the Congregational government is vested in each congregation as an independent church, and is a pure democracy. Now, how can these two, so different in principle and practice, be united without strife and confusion? They are now disintegrated, and peace and harmony loay be restored if they are not again connected. Sixty thousand Congregationalists cannot come into the Presbyterian Church without endangering the stability of the church itself. They cannot come in without invading the sanctuary, as the devils in pandemonium waged war against heaven itself. But as the de- mons there suffered a defeat and an overthrow, so here it might be expected to be tfie case. But, with this difference in feelings, what would be the strife between these two parties if they should come together again? What would the New School parly do in 443 the church which they have resisted, and are now resisting by an appeal to the arm of Hesh? Can the fleshly arm of the civil power cliMnge them into true Presbyterians? As well might we expect the Ethiopian to change the colour of his skin or the leopard his spots. It is not by appeals to law, that they can prove their desire for the restoration of peace and harmony. The manner in which these suits have been commenced, must be considered. The first step towards appealing to the law was taken on the 7th day of June, 1837. See also their notice served on the trustees. Yes, be- fore that Assembly was dissolved, their language, in etiect, was, " we are going out from you ; we are not satisfied with the jurisdic- tion of the spiritual court;" and these measures were introductory to a series of judicial process, which I would immediately present to you, but pause for the sake of doing away an impression, if it has been made on your minds, (and it has been industriously endeavour- ed,) that these proceedings were mere amicable suits. There is no such thing. And I here proclaim that the Old School have had no part in bringing these suits, but have deprecated them in every ibrm. They have brought suits against us in divers ways, and with great industry; and however we may be willing to abide the issue of them, it would be unjust to our party to suppose that we desire litigation. The Old School party have come here, because thev have brou";ht us here. We had nothing at all to do with it. This should be borne in mind, that the ]\ew School party have forced us into this court, as they had before forced us to record the unhappy differences in the church. It may, however, be permitted for a trial of their faith, as the faith of the disciples of our Lord was severely tried by adversities which came upon them. There is nothing in the principles of the Old School which can be consider- ed as the elements of law suits. But let parties like these consider what must be the consequence of each one endeavouring to bring as many law suits as possible for the annoyance of the other party. Where would it end? There is something odious to us in the con- templation of these suits. They have brought suit upon suit, as though they intended to place a great gulf of unfathomable depth between us and them. Judge Brown has brought no less than five suits. (I intend to tell the truth.) Not one suit merely, but when dissected, it amounts to no less than five. He puts himself in the fiont of the battle. Thus Judge Brown, Mr. Squier, and Mr. Hay have commenced no less than fifteen suits against different mem- bers of the Old School party. The trial of one of these suits would answer, if they only wished to obtain the decision of a mere ab- stract question, of a matter of law and fact. But this principal suit is worse than all the rest, and the worst that could possibly be adopted, and that is to be decided by yourselves, gentlemen. You are to decide whether this outrageous blow, aimed at the head of the venerable father of the Presbyterian Church, (Dr. A. Green,) shall be successful. Like political demagogues, claiming seats in the national or state councils without the shadow of right, and merely by a quibble of law ; so in the church, persons may claim to have been elected trustees without even the shadow of right in 444 justice and equity; and all for the purpose of casting reproach on the Presbyterian Church. But you will rebuke them. There n^iay be Christians in name and in principle on the other side, but they are not Presbyterians. They have adopted force, and my friends on the other side never would have brought forward the grave charges they have done, without consultation with their clients. These New School men have shown a disposition to produce all these evils. In their consultation they said that they had now pass- ed the Rubicon, as Csesar said when he passed the little stream v^hich flows through the environs of Rome, and by which I suppose they meant that they crossed the boundary and got out of the Pres- iiyterian Church. They have passed it, and they know it. Recon- ciliation between these two parties is impossible. Their separation is for ages. Their enmity is as lasting as their lives. The end thereof neither they nor their children shall see. In all respects the controversy has been bitter; and they have used towards each ether hard words, the very warmest epithets that could be adopted. Wounds deep and grievous have been the consequence; which ages cannot heal. This has been done against the wish, and contrary to the best advice of a large majority of Presbyterians, and special- ly of those men who are the defendants in this cause. I shall not go back to former times lest I shall be accused of injustice. There was and is a majority of the Old School party. No doubt of it. In Pennsylvania they are to the New School men as thirty-three to three. If there are hundreds in favour of their measures, there are thousands opposed. Where they have thousands the Old School party have tens of thousands. Whilst they claim sixty thousand, we have hundreds of thousands of worshippers. Now to another point. It is a fundamental principle of Presby- terianism, that the majority must govern. So it is distinctly laid down in a note to chapter 12 of the Form of Government. The majority were desirous to effect an amicable adjustment of all their difficulties; but the New School party would not agree to the pro- position. They suflfered a mere shadow of a shadow to turn the scale. They objected to what could not have produced any prac- tical results. And let them succeed if they can in this system of practical vexation; it will avail them nothing, for ultimately the majority must prevail. I must come to the fact. They must be defeated. So the courts of law have decided. I refer to your own reports, the Pennsylvania Reports, in 7 Sergeant & Rawie, page 534, the decision in the case of St. Mary's church in this city, to show that the majority must govern in such cases. The majority must govern. The protests of the New School show that they were the minority, and to say that the minority shall govern, would, in this country, be every thing that is odious. They must come to it. The majority must govern. The decisions referred to in 7 Sergeant & Rawle and 9th Wen- dell, extend to every part of the whole case. The voice of the ma- jority is omnipotent and binding, however that voice may be ascer- tained, whether by the silent process of the Quaker, or the formal vote of other ecclesiastical bodies. Even if the New School could 445 gain this case, ihcir triumphs must be short lived, and they would soon all be sorry and ashamed. In every thing of those most ex- traordinary proceedings in Ranstead court, they were wrong. Even their own friends acknowledged that they were wrong. The clerk evades the question, but Dr. Hill tells you that their response was an indecent and indecorous Aye, To avoid the scandal, the clerk gathers and records the proceedings in such manner as to give a decent appearance to their minutes. Some advantages were gained by suppressing what did not suit their purpose. Their minutes must be regarded as being ex parte, and therefore should be received with some allowance. On the other hand this conside- ration must be self-evident, that we have nothing to gain by con- cealment. The Presbyterian Church has never been charged with limiting its power. On the other Iiand a very serious charge was preferred against that church, some years ago, when Dr. Ely, and perhaps some other gentlemen, were accused of exerting a kind of homogeneous influence, in order to extend the power of the church by effecting a connexion between church and state. Much \^as then said of the danger the community was in from the iniluetice of a powerful sect. As it is wholly irrelevant to m}' argument, I shall not now undertake to inquire into the truth or falsity of these charges. What 1 have now to advance, as necessary to my argu- ment, is that amongst all the charges that have been made against the Presbyterian Church, they have never before been charged with limiting or attempting to conceal their power, as they are now ac- cused of doing. But it is somewhat difficult to meet vague charges in such a multitude of shapes and hues, as they sometimes assume. The best wa}^ perhaps is to treat all charges which are not provea- ble as slanders. The Presbyterian Church has no doubt wished to extend her influence by propagating the gospel, and their zeal in this respect is proverbial. That they should wish to engraft their principles on the stock of the wild vine, by a conversion of the heathen and others to Presbyterianism, is perfectly natural ; and that the churches which they have planted and nursed with so much care, should yield a ready obedience, is altogether reasona- ble. But the church is without civil power, and does not claim to exercise it. Nor have they ever exercised their power for the pur- pose attributed to them. The church certainly can exercise the legitimate power conferred on it by its charter. On this subject there need be no controversy. The propositions which were made by the Old School party did not interfere with any of the great in- terests of the minority. This abrogation of the Plan of Union, in order to justify the cla- mour which has been raised against it, must be shown either to have been the violation of a contract, or to have affected the rights of property acquired under it. Was the plan, then, a contract? I have asked, where are the parties? but I cannot find them. From its language it was merely a regulation or series of regulations, approved by the Assembly, but no contract, having no consideration which is essential to the nature of a contract. It was merely a re- gulation for a charitable purpose, like the sending of missionaries 38 446 to Rangoon, Ceylon, or any where else. There was nothing in the nnanner of a contract. The Plan of Union was not in the form of a contract, and did not contain ihe essential requisites of a contract. The General Assembly had no power to enter into a contract to admit Congregationalists into the Presbyterian Church. Neither party supposed that such would be the etiisct of the Plan of Union. The General Association of Connecticut had no power to enter into a contract at all. It is Congregationalists only who are supposed to be affected by the abrogation of that plan. But the New School party have taken part with the Congregationalists. They are the advocates of retaining their connexion with the Congregationalists. They will not consent that they shall be excluded from them. Each party was at liberty. It was perfectly in the power of each (the Pres- byterians and Congregationalists) to terminate the Plan of Union at any time, and without injustice to either. The power was mutual, and either could terminate it at pleasure. The question need not be raised whether the power extended to both Presbyterians and Congregationalists. It is admitted that it did. Those Congregational churches could not exercise any power in the Presbyterian Church without the consent of said church. The state of Pennsylvania is a government within another government, that of the United States; and the legitimate powers and functions of each being defined by the constitution, neither can exercise the powers of the other. If the state of Pennsylvania should declare war against a foreign go- vernment, or raise troops within the jurisdiction of a foreign go- vernment, it would be treason, and punishable as such by the laws of the United States. If any portion of the citizens refuse to obey the laws of the United States, such refusal is war against the govern- ment. So when a portion of the Presbyterian Church refused to obey the laws of the church, as decreed by the General Assembly, it was treason. The General Assembly had the authority to govern the whole church under the constitution. If I make a false assump- tion the other party can correct me. I refer for support of my po- sition to " Vattell's Law of Nations," page 95. The Plan of Union was, however, gentlemen, a mere temporary arrangement for the new settlements on the western frontier, those who were not yet ready to enter into the Presbyterian Church, and it could be terminated at any time when the necessity which ori- ginated it had passed. But what I wish to turn your attention to, is a point on which there will be little difficulty in obtaining a full understanding. Mr. Meredith did not commit himself on this point. The Plan of Union was not entered into in a constitutional manner, because neither the General Assembly, nor the General Association of Connecticut had any power to enter into such an arrangement. Mr. Meredith did not enter into an investigation of this point. He took it for granted that they had the power. But strike this out, and the whole will manifestly appear to be irregular and void. The land marks should not be overlooked, or we may often, without consideration, defend an act of usurpation. If, indeed, the plan had been constitutionally enacted, and rights acquired under it, those rights must be regarded. 447 During the protectorate of Oliver Cromwell, the election of mem- bers of parliament passed into a mere shadow. During that most daring usurpation, every thing was organized according to the will of the nominally republican head of the English nation, who was a monarch in every thing but the name. Yet, during that usurpation, the enlightened and independent judge, Sir Matthew Hale, did not fail to administer the laws with an impartial and strict regard to justice, and there was perfect security for the citizen and his pro- perty, though under an usurped government. And after the king was' restored, in justice to others, every contract which the govern- ment, under the usurper, had made, was fulfilled. The nation re- mained the nation still. So the French king, who succeeded that arch usurper Napoleon Bonaparte, redeemed the credit of the nation, by fulfilHng all contracts which had been entered into by the usurper, as head of the French empire. Such must always be the case with a body which continues in existence; as the nation was not dissolved by the usurpation. But the General Assembly of the Presbyterian Church exists only during its sessions in each year. It is totally dissolved when it closes its session; and a new General Assembly is summoned to meet the next year. Consequently, the acts of a Presbyterian General Assembly are, and would be, void, when they undertake to bind a future General Assembly, and so far as they are at variance with the law of the land, or the principles of Presby- terianism. The Presbyterian Church has been remarkable for the zeal with which they have adhered to their strict form of church government. Now it must be evident that if committee-men are admitted into the church sessions or presbyteries, the Presbyterian order of government would be so far overturned. It would make no difference from what church they came, so as they were not Presbyterians. The Presbyterian Church ordains elders for life, and these only, together with the ministers, can enter into the church sessions, and other judicatories of the church. Cqmmittee- men cannot consistently sit in the General Assembly, nor can they be represented there. All the ministers and one lay member from each session compose the presbytery, and the presbytery alone can send an 'elder as a lay delegate to the General Assembly. The elders, as well as the ministers, are ordained for life, and retain their stations unless they are removed by the authority of the church. But this plan introduced a representation not Presbyterian. The other party have alluded to the inequality of the clerical and lay constituency of the Presbytery of Newburyport. I refer to it only to say that it is a matter with which the courts have nothing to do. It was a matter exclusively for the General Assembly, and they have attended to it. The Presbyterian Church has ever professed and maintained the doctrine of Divine decrees, which was promul- gated by John Calvin, and for refusing to acknowledge which Michael Servetus was driven from Geneva. That the Plan of Union pro- vided for the support of this doctrine does not appear. But there is something of more importance with which we have to do. That is, the inconsistency of the Plan of Union with the act of incorporation. That act incorporates as trustees, ministers and 448 elders, and it extends no further than to Presbyterians. If it incor- porates any thing else, I am not able to perceive it. This plan in- troduced comnaittee-rnen. The corporation is to be elected by the General Assembly, and to be directed by them, so that in fact th6 General Assembly is, after all, the essence of the corporation, and not the trustees, they being but the name of the corporation, all the actual power of which is in the General Assembly, though the trus- tees are in law the real corporation. The books distinguish cases of this kind. The " ministers and elders" then are essential to the existence of the corporation, because, as they elect the trustees, the corporation would be vacated unless vacancies were supplied by the General Assembly, in the manner provided for in the act of in- corporation, that is, by ministers and elders regularly constituting the General Assembly. It would be a violation of that act to admit Congregationalists to the enjoyment of the corporate privileges, or the election of trustees, as much as if dii^erent sects under diflerent church governments should be permitted to enjoy those rights and privileges in common with the Presbyterians. Now, had the As- sembly chosen to associate in their body Mussulmen and Hindoos, would it not be a violation of the charter? And if a subsequent General Assembly did not interfere to correct the irregularity, would not the charier be forfeited? They must admit that if the Plan of Union introduces any thing into the Presbyterian Church that is not strictly Presbyterian, it is null and void. The court must consider it an encroachment on original rights which were inherent in the Presbyterian Church a century ago Something was said by the counsel about fundamental right ; and divers laws were referred to. But what the supreme court has set aside as unconstitutional, or what the legislature has repealed, confers no right at all. If the construction of the Plan of Union, by which those C'ongregational- ists within the bounds of the four synods came in be correct, then any othej's may come in, in the same manner, and connect them- selves with the Presbyterian Church. But let us look for a moment at the condition and character of the churches which came in under the Plan of Union. The oppo- site counsel would persuade you that they were all Presbyterian. Mr. Squier tells you in his testimony that some of them were in ah initiate state. But it seems that according to the wishes of those gentlemen, they may be initiate forever! Such a state of things is not provided for in the constitution, even if a young church could not comply with the order in full. And it appears that these initiate churches are permitted to exercise a controlling influence over Presbyterianism in some of these synods. Now, a word in regard to the argument from acquiescence, which lias been urged on the other side. On this subject the autho- rity of Dallas is full and conclusive, that no length of acquiescence in an unconstitutional act can make it valid. He lays down the position, in accordance, indeed, with all our notions on these sub- jects, that "the legislature must conform to the constitution, or its acts are void." And again, that " the constitution remains stable and permanent, amid all conflicts of parties;" and that it is the 449 "duty of the courts to stand by the constitution" in every emer- gency. I refer to this to show that the Plan of Union being uncon- stitutional, no length of acquiescence could give it force or prevent its being repealed. Beside, the nature of the case prevents the argu- ment having any appropriate place here. Acquiescence, indeed, in matters of conscience ! It is impossible. Though acts committed in ignorance may be innocently done, yet when the error is disco- vered, the act is void. To this effect are the decisions of the courts in cases of marriage, when a previous husband is subsequently ascertained to be alive; and of administration of an estate, when there is an executor ascertained to have been appointed by will. On this subject of acquiescence, also, his honour has led the way in a signal case, deciding that where property is given or devised for any particular purpose, the will of the donor must be carried into effect, however long an acquiescence in a contrary course may have been yielded. In the case of the Franklin Square in this city, which was devised by William Penn to the city of Philadelphia for a specific object, that of a public square, and part of which had been occupied as a burial place by the German congregation, for up- wards of a hundi'ed years. But as their occupation thereof was ascertained to be contrary to the will of the donor, they could not retain possession. Though their occupancy originated in an inno- cent misapprehension of their right, and their possession had been acquiesced in for so long a period, the case was not altered. This principle is frequently acted on by nations as well as individuals. It is older than the Declaration of Independence. It was acknow- ledged when King John subscribed that famous document called Magna Charta. It existed even in the days of Egbert. It is the common law of England and America. Recently in the city of New York, property to the value of millions of dollars was reco- vered on this ground. I might produce many proofs of the cor- rectness of my argument on this point. The decree of Chancellor Pennington, of New Jersey, in the case of the Society of Friends, may be adduced as one. I allude to that decision so far as it re- lated to the property immediately in dispute, which was decreed to the Orthodox party, which had commenced the suit. I do not refer to the advice which he gave to the parties to settle all controver- sies amicably ; which was regarded as being favourable to the other party. I merely refer to his decision as regarded the property which was the immediate cause of that suit. The decision in the case of Duncan against the Ninth Presbyterian Church in Philadel- phia, turned on the construction of a will which Mary Duncan had given. The case of the Duane-street Presbyterian Church in New York turned on the same principle. The will of the donors is an important point in the question now^ before you. The will of the donors was, that the properly should belong to the General Assembly of the Presbyterian Church, and the ordination of elders is an essential article in the government of that church. Our country has recently been filled with apprehen- sion of a war with Great Britain respecting our north-eastern boun- dary. We had acquiesced in a state of things which left a large 38* 450 territory in the possession of England for many years; yet now. when we understand our right, we claim it at every point. Of the same snored character are constitutional principles and constitu- tional rights, and however long acquiescence may have been given to their violation, when the wrong is discovered, it must be cor- recAed. The Plan of Union then must be invalid, as it interferes with these rights. And it will be strange indeed if you by your verdict do not restrain these New School men from interfering with the charities and charitable funds of the church. At least we think that it is specially necessary that the common law relative thereto should be enforced, so as to prevent such an interference. But is there any allegation of a violation of rights of property, by these acts of 1837? the only question which could properly have been brought to the jury. There is no such thing. The evi- dence of the contributions from these synods, was admitted only to show the acquiescence of the Assembly in their connexion. 1 am corrected; it was to show the recognition of the presbyteries in those bounds, by the Assembly, as a part of the church. Well, it was not as a claim of property, for the settlement of an account. Therefore, all questions in regard to property, will be rightly ad- justed by our victory in this suit. They have not a particle oi claim to the property. None of their funds have gone into the cof- fers of the General Assembly: they have cost us far more than we have received from them. They were recognised, or their anomar lous relation acquiesced in, it is true. It was always a bad ar- langement, and it was particularly so in 1837; therefore we ab- rogated it. They had, then, no claim on the score of property. Nor, above all, was there any ground for the pretence, that the acts of 1837 were a condemnation without a hearing. There was no trial, nor condemnation. The Assembly had no jurisdiction to try or condemn them. These Congregational churches did not belong to us, and all that we did by those acts, was to say so; to abrogate the plan, and declare the churches not to be connected with us. We are not willing that the jury should be under a wrong impres- sion in relation to ecclesiastical law. It is not as has been stated. The resolution of 1837, in relation to the Western Reserve synod, was not a resolution of condemnation and disownment, but it was a declaration resulting from the abrogation of" the Plan of Union.^' That Plan of Union was never sent down to the presbyteries, and, of course, was unconstitutional. When the resolution in relation to the Western Reserve synod was adopted, it had been fairly proved that no plan of separation could be devised, which the New School party would agree to. But if that resolution, and the one relative to the other three synods, were wrong, that was not a justification of these New School men, as two wrongs never made a right. They protested, throughout, against being made the subject of re- buke, and yet they now insist that citation and trial would have been the proper course of proceeding. How inconsistent ! Do they complain of us because we had the majority? They cannot com- plain that they had not the same opportunity of voting that we had. That they should be ministers and elders was a necessary qualifi- 451 cation for voting in the General Assembly. If they are not minis- ters and elders, they cannot rightfully be represented, nor vote in the General Assembly. But the union of the Associate Reformed Church with the General Assembly, is alluded to in glowing terms by the opposite counsel, and they say that that church only re- ceived the standard of the church in substance. They make all to turn on the one little word " in substance." But those words, as used by the Associate Church, do not refer to the C'onfession of Faith, nor to the acknowledgment of it, as these New School claim the privilege of using it. On page 44 of the constitution of the Associate Church, you will see that they receive it as " in sub- stance," the only form of government given by the great Head of the church. They fully receive the Westminster ('onfession of Faith, and that is the great polar star of Presbyterians. They who do not receive the whole of it, are not Presbyterians. A small alteration was made in their constitution in 1799, but none took place afterwards, and these New School gentlemen cannot prove that they are Presbyterians on this ground. On the contrary, it appears by the minutes of 1801, that they were Congregationalists who were thus brought into the church. Well, our opponents show you the presbytery of Newburyport, for the purpose of exhibiting a long list of ministers and licentiates preaching to Congregational Churches; and that presbytery in the Synod of Albany was retained, while the Synod of the Western Reserve, and others having no such churches, were cut off. A word of explanation may be necessary in relation to this, as Mr. Meredith placed so great stress on it, and endeavoured to make you believe that it was similarly circum- stanced with the Synod of the Western Reserve, or far worse than that. But the General Assembly ascertained that the Western Reserve synod contained the larger body of Congregational churches, while those alluded to in the Synod of Albany, did not belong to the presbytery, and the other presbyteries in that synod contained none. Those Congregational churches were not represented in the General Assembly, while in the synod of the Western Reserve they were, although they were not reported as Congregational churches. Why, says my friend, may not a Presbyterian minister preach to Congregationalists, when he may preach to heathen without cen- sure? But that is quite a different thing from Congregationalists being represented in the General Assembly, a matter which must be regarded as receiving no sanction from that body. Though they were willing to put on the list all ministers who had a right to belong to a presbytery, there should not be one of the Congrega- tional churches represented in the Assembly. The argument of my friend, respecting the excision of Presbyte- rian ministers, merely because of their removing into the bounds of the excinded presbyteries, is equally delusive, as they would not be cut off, if they had not become connected with those presbyteries. Nearly the whole of some presbyteries were composed of mixed churches, or Congregationalists. I do not allude to this for any other purpose than as a collateral circumstance. They have ex- 452 claimed against the General Assembly, because it disowned the Western Reserve synod, which admitted Congregationalists, be- cause the General Assembly does not admit CongregationaHsts at all. I do not know how they could admit a presbytery to be re- presented, which is composed of one-half Presbyterians, and one- half CongregationaHsts. For if they can do this, they can admit a presbytery to be represented, one-half of which are Christians, or no Christians. Confusion must be the consequence of all such un- natural mixtures and amalgamations. There is no single congre- gation in the Western Reserve synod, which is purely Presbyterian in doctrine and order, and yet, in 1837 — [Mr. fVood objected. He said, such was not at all the fact, nor was there any such thing in evidence.] With all respect for the opposite counsel, and for you, gentle- men, I must insist on what my duty to my clients requires of me. I do not know what point this case may turn on, and therefore I wish to lay all the points before the jury, as they occur to me. I wish to show, that in 1837, the resolutions which were adopted merely for the purpose of preventing their thus introducing Con- gregationalists, has been improperly termed an excision. Certainly, an inquiry in relation to that of which the New School party com- plain, will not be deemed irrelevant, as it is material to a correct decision. I know of no exception to the remark which I made, ex- cept the congregation of Middlesex. But I will refer to page 125 of the minutes of 1837, as they have been given in evidence, with a view of showing, that though there were belonging to the synod of the Western Reserve one hundred and thirty-nine churches, there are only twenty-five that are purely Presbyterian. But as it is objected to, I will not mind it. It is a matter of no consequence. The case will not turn on it. The General Assembly decided the question as they had a right to decide it, when they determined that the synod of the Western Reserve should no longer be consi- dered a part of the Presbyterian Church. The resolution after- wards passed, relative to the other three synods, was nearly of a similar character. I shall not enter into an examination of the particulars. We have then shown you, gentlemen, that the abrogation was within the power of the General Assembly, and that in consequence of it, those synods were properly declared to be out of the Presby- terian Church. But if I have failed in this, the other side have yet to show the validity of their organization in 1838. The latter ques- tion is held to depend, in a great measure, on the former; therefore, was it necessary to review every thing that was done by the Gene- ral Assembly in 1837? I wish you, gentlemen, to recollect that the validity of the proceedings of the General Assembly of 1837 was acknowledged in 1838. Both parties treated those proceedings as valid. Now the relators in this case come here claiming to be the legitimate trustees. They acknowledge the validity of the election of trustees in 1837, though they were elected by the General As- sembly of 1837, after the passage of the acts of excision, as they have been termed. 453 In approaching this part of my argument I should be extremely glad to avail myself, if my friend Meredith had furnished it, of & glossary for his text. There was need of this, as he interlarded so much classical lore in his argument; and there is no man better ac- quainted with the classics than he is. But besides this, he seems to have come into court with his Ovid faculty for turning every thing to suit his purpose, and converting, as is necessary for his case; every thing into its contrary. He makes every thing on their part orderly and beautiful, and on ours, outrageous and scandalous. It is my duty, however, to turn aside from the most agreeable picture •which he has drawn of his New 8chool friends, and bring you bacfe to the actual facts in the case. At no distant day you will have to decide the question, whether the charitable funds of the Presbyte- rian Church, which have been accumulating for fifty years, shall be given to this New School party, or whether they shall remain where the will of the donors intended that they should: whether that venerable gentleman, (Dr. A. Green,) shall be ousted from the office of trustee, which he has held for fifty years; whether it has been reserved to a time like this to countenance such scandalous proceedings, to take from him what he holds dearer than life itself, the name and character of the church of his fathers. Shall the friends of anarchy and arbitrary power be permitted to turn them out, and hold them up to the world as having become apostates and tyrants ? There has no event taken place of late years, in this land, which displays the innate depravity of man in so striking a manner, as the scenes enacted in Ranstead court on the 17th of May, 1838. There were beheld two bodies, each claiming to be the true church, and each denouncing the other as false. It is our duty to find out which of these bodies was the true General Assembly of 1838, after their separation from each other. We set out on the broad basis, that the moderator and clerks were in the proper discharge of their duty; and it being anticipated that there would be interruption to the regular proceedings by these New School men, a crowd was drav^'n together out of curiosity. There was, then, a moment when Dr. Elliott and the clerks were in their proper place, they were duly there. Here, then, is an argu- ment of which they cannot deprive us, though they are bound to do so, in order to have any ground to stand on. When Mr. Meredith assigns to m}'^ clients the situation of conspirators, there is not a doubt that he has described the position of the other party. At the close of the minutes of the Assembly of 1837, you read what seem- ed the dissolution of the Assembly. There has been some little question, but it is not material in regard to the exact nature of this closing act. According to it, however, the Assembly separated in peace, and the new body came together at the proper time. It cer- tainly was not an adjournment. We contend that it was a disso- lution. Yet not strictly and entirely a dissolution, not an annihila- tion, because the officers held over. Strictly speaking, the inodera- tOr of the General Assembly of 1837 was the germ of the General Assembly of 1838. There was remaining just enough of vitality to secure a regular organization in the new Assembh^ As in the 454 House of Representatives of the United States Congress, the clerk calls the new House to order, and may be said to preside until a speaker is elected and the new House organized. The long and short of the matter is, in the Presbyterian Church, a germinating principle w^as preserved from the old Assembly, which was the con- necting link between the old and the new, and that germ was the moderator and the clerks. If they had not standing rules to go by, the newly elected Assembly might be thrown into confusion. The new General Assembly was duly summoned and convened. The presbyteries thereof were, according to the standing rule of order, directed, at the close of the Assembly of 1837, to elect commission- ers to another General Assembly to be held the next year. The synods are overlooked, and the delegates come direct from the presbyteries. All things were thus prepared, for a formal, and as we hoped, for a harmonious organization. Nothing had occurred ■with us, as with the other party, of consultation with " counsel learned in the law." Nor had we formed plans for any unnatural commixture of others with Presbyterians. Well, when the dele- gates meet, the moderator constitutes the new Assembly, by a so- lemn appeal to the throne of grace. The germinating property ''emains in the moderator and the clerks of the old Assembly; and it was an outrageous interruption of the proceedings, to interfere "with the moderator and clerks whilst they were engaged in the dis- charge of their duty, in the incipient stage of the organization. But the New School party had held a council previous to the meet- ing of the General Assembly of 1838. There were more than a hundred convened in that council, but the result of their proceed- ings reminds me of the remark of the former vice-president of the United States, Aaron Burr, — that " in the multitude of counsellors there is sometimes confusion." Ten to one but you will find it so in all caucuses. The scene exhibited in the Seventh Presbyterian Church was contrary to both law and gospel. Their counsellors led them into confusion. The appointing of the trustees was in legal form, we admit, provided the New School Assembly shall be adjudged to be the true legal General Assembly of the Presbyterian Church. That, therefore, is the important point for you to deter- mine. Our province is to show you that they were not legally or- ganized as a General Assembly. The rule of order requires, that in case the moderator should fail to execute the duties of his office, the next preceding moderator should take the chair. To call an- other member to the chair, under any pretext whatever, was a vio- lation of order. As there were several present, who had been moderators since Dr. Beman was, it was peculiarly disorderly to place him in the chair. This rule should have been regarded, for such persons as were present who had been moderators, must have had the preference, according to the rule, over every other member. But we must examine the several points particularly. What now should have been done in this stage of the proceedings? All was plainly pre- scribed, and the practice uniform. I will recite the opening minutes of the Assembly of 1837, as an example, in conformity with the 455 prescribed forms. [See previous page 47.] All others are like this, and show that questioned commissioners must be referred to the committee of elections. So they did in 1832, and on other occasions; so their rules required, and so, indeed, from the nature of the case they must do, as a parliamentary body, independently of any rules or practice on the subject, if they had not such rules. But the minutes always show this [)ractice. A trifling variation is only found in the 'uinutes of 1835, from those which I have now presented, and that case has been explained. It was hut a trifle. Dr. Hill's testimony shows, if there were otherwise any doubt on the subject, the uniform practice to refer to a committee of elec- tions. So all general principles show the same thing. Every de- liberative body must decide on the right of persons to sit as members, and for this purpose a committee of elections is appoint- ed. And this must be before the house is organized. You must also bear in mind, that the first business of the General Assembly is to hear read the report of the committee on commis- sions. Dr. Hill has given you a succinct account how the practice of referring the commissions to the clerks of the former Assembly originated. Every General Assembly had power to make laws to bind themselves and future General Assemblies, until they are re- pealed. By the rule which had been adopted, the clerks were to examine all commissions which should be presented to them. All commissioners were required to present their commissions to them, as a committee on commissions; and it was their duty to enter all regular commissions on the roll, and report them to the house, which was done in this case. Now, suppose that a member happens to have left his commis- sion at home, as was the case of Mr. Bayard of Princeton, should ihe house be thereby diverted from the practical purposes of its creation? The effect would be disastrous in the extreme. It is therefore required, that such cases, together with all informal or defective commissions, shall come under the supervision of the committee of elections. Those whose commissions are rejected, must appeal to this committee. The old manuscript minutes which have been read by the other side, are apparently brought forward from a misapprehension of our opinion in regard to the time when the committee of elections should be appointed. But on that subject we agree to all which Dr. Hill has said. The time, however, for this appointment, is im- mediately after the clerks have read their report as a committee of commissions- Even if all but fourteen commissioners were rejected by the clerks, there could be no great danger in awaiting the decision of the committee of elections; a&, when those rejected commissioners should afterwards take their «eats, which they would be permitted to do if they were entitled, the proceedings of the Assembly, pre- viously had, could be revised, and if necessary, reversed. So that the very worst that can be alleged is, that there would be a short delay by awaiting the regular action of the committee of elec- tions. The numerous bodv, the house, could and would have de- 456 cided the case, when it should have come up in regular form by the report of the committee of elections. Then, and not till then, could the subject be properly presented to the house for legitimate action. Even Dr. Hill himself admits it to be a possible case, that there may not be more than fourteen undisputed commissioners present, and that in such a case those fourteen could legally pro- ceed to the transaction of business. The law in the case is abso- lute; and such a provision was absolutely necessary. At this point, therefore, the most important in the case, we say, that the appointment of the committee of elections was prevented, at the proper time, only by the interruption of the New School niembers. On the other side there was no opposition. Dr. Elliott was perfectly acquainted with his duty. In entering on an exami- nation of those proceedings in 1838, I do not mean to repeat the arguments of the learned counsel who preceded me on the same side. My learned friend on the other side, avoided a full investigation of one point connected with these proceedings during his argument, though he so liberally strewed the flowers of his rhetoric around him. The fact to which I now call your attention particularly, is the arrangements which had been entered into for the purpose of defeating the measures of the General Assembly. Now these pro- ceedings were all prepared before-hand. I shall principally confine myself to what is proved by the acknowledgment of the New School party. That they had entered into such an arrangement by the advice of counsel learned in the law, has been rung in your ears by every witness. The bugbear of a lawyer was continually held up to our view. What did they want with advice of counsel, in a religious assembly, if they had not been plotting to deprive us of our rights? In every stage of this business, the moderator, who constituted the General Assembly with prayer, was infinitely better acquainted therewith than the counsel could possibly be. Dr. Elliott was better acquainted with his religious duties than all the legal counsel in the land. And yet they expressly stated, that they they were acting by " the advice of counsel learned in the law." Then, in regard to the time when the several motions were made ; Dr. Patton. was very desirous to offer his resolutions at that time. They particu- larly marked the time when they were to act. Dr. Mason also was very desirous to have the names of the rejected commissioners added to the roll al that time, and the same consideration apper- tained to what was spoken afterwards by Mr. Cleaveland, who had been advised by counsel that that was the time. Their plan of pro- ceeding is thus shown to have been preconcerted, or at least pre- meditated. Dr. Hill told them, I suppose in caucus, that they were wrong. I do not complain of caucuses. Every body has caucuses, if they please; but this, if not a conspiracy on the part of the New School men, yet this premeditated plan for defeating the Assembly was radically wrong. So much so, that Dr. William Hill, a wit- ness called by themselves, condemned it entirely. Dr. Hill informs you that he told them beforehand, that such a course of proceeding 457 would be wrong, and that he opposed it during their preliminary itrieeting. All must see, that in the measures of these two parties, there was far more manoeuvring on the part of the New School men, than there was on our part. Those measures were the result of a con- sultation, and when a case like this depends on circumstances, each one of which is small in itself, while the whole, collectively, are important to the issue, it is necessary that they all should be laid before you. You will then bear these little things in mind. What Di\ Hill stated was, that the measure was wrong, and can they then come into this Court and charge us with a conspiracy to defraud them of their rights, when the conspiracy was altogether their own. Dr. Hill tells you that he was afraid violence would have been the consequence of these proceedings, and under this impression he was greatly excited. It is, therefore, not likely that he could give as clear an account of events like these, as he could have done under different circumstances. He heard the " ayes," however, and pronounces them "indecently and offensively loud." He goes further, and tells you that he was surprised tliat there were no more " yioes," and he added very significantly, that " if they did vote on the question at all, he had thought that there would be a thundering no" In a very candid manner he adds, that he sup- posed that " they had not been well trained," or " well drilled," whichever was the expression. Now I understand where Mr. Meredith got his military notion. The Old School party had not been well drilled. It is surprising that there should have been just enough noes to show that they were not unanimous, and were not "well drilled." But the Nevv School party were well drilled. They had their men as well drilled as the French general, or as Julius Caesar, who, it is said, knew every man in his army. It was shown by the fcvv straggling and scattering noes, that the Old School party were not well drilled. But Mr. Meredith metamor- phoses these unsuspecting Christian ministers into a warlike army. Yet it appears that the other party, by the advice of their " counsel learned in the law," were carrying into effect their plan by taking advantage of their unsuspecting brethren. They were determined to organize a new Assembly, " at that time and in that place;" and in such a manner as would put the whole of the property of the Pres- byterian Church at their disposal. Yet they were surprised to find that Dr. Elliott and his friends did not conquer them by voting them down ! Were they guilty of great indiscretion in not voting, when they did not suspect what was intended by their adversaries'? The Old" School men were in fact the unsuspecting party, and yet they say that all the disorder was on the part of the Old School, after their own interruption of the regular proceedings of the General Assembly. VVell, the New School were not endowed with pre- science. They were surprised too. They never expected that Dr. Elliott would refuse to put the question, which they wanted to have decided against them, and on the ground of such decision they in- tended to base the organization of their new Assembly. But they were grievously disappointed. By the arrangement previously 39 458 agreed to by them, Dr. Pat ton was to rise at the very time he did, and then Dr. Mason was to rise at another stage of the proceed- ings; and they did not know that they had not the majority, as Dr. Hill tells you. They had previously agreed to interrupt the pro- ceedings of a deliberative assembly, in the manner which was pre- sented to you, the other day, by the witnesses. The paper which Dr. Patton held in his hand indicated the course they were to pur- sue. But what course Dr. Elliott would take they did not know ; and when he declared the appeal to be out of order, they were taken all aback : but as they were pre-determined to break up the Assembly, they struck out a new course, altogether new to the mass of the New School party. Dr. Patton can't get his question put, and Dr. Mason sits down in utter disappointment; and recol- lect that he and Mr. Cleaveland were in a pew together. Mr. Cleaveland did not then rise in his order, because, as is quite plain, they were altogether disconcerted by the refusal of Dr. Elliott to put the motion of Dr. Mason. Like the individual who would sacrifice himself, rather than suffer others to escape his ven- geance, they proceed to throw the whole body into confusion. Another of these gentlemen applied himself to the task. Mr. Squier comes to their help, though his help was merely nominal, something like the help of young lawyers, more for their own advantage than their clients. Up jumps Mr. Squier and demands his seat. But, poor Squier! he was all wrong. He had no right there at all, and he started altogether in the wrong place to help his friends, and was compelled to sit down in utter consternation, when Dr. Elliott said to him, " We do not know you, sir." Really, every one of these men acted in a manner which showed that they were dis- concerted indeed. But Mr. Cleaveland at length arose with a paper in his hand. Where is that paper? Where is Mr. Cleaveland himself? and where is Dr. Beman, the next prominent actor in the tragedy? Where are their depositions? and why were they not read in evi- dence? How do you know that their depositions were taken? Dr. Patton said he had seen them in the possession of the counsel. Yes, they had actually taken their depositions, and yet they have not presented them to you. They are the men who must know whether the questions which were put by themselves were reversed or not. If they were reversed they must know it better than others could. Why then not let them speak for themselves? Dr. Patton told you that their depositions had been taken, or my colleague would not have been at liberty to comment on the circumstances of their not being produced. The question was asked Dr. Patton, in the course of his cross-examination, if he had read the deposi- tions of Dr. Beman and Mr. Cleaveland, and he told you that he had read them. Other gentlemen have been called on to detail these circumstances. But certainly there must be some reason for suppressing those depositions. It is strange, indeed, if every one of the witnesses produced by them both saw and heard the motions reversed and the negative votes thereon, if these men knew nothing about it; and yet we are left to infer this. Else why are they with- 459 held when you had a right to expect them ? They would have been the very best testimony in the case, according to the uni- versal law of evidence. Mr. Cleaveland is the very man who put that most important question which is the hinge on which this whole controversy turns, and Dr. Beman is the very man who put that other very important question, the nomination of Dr. Fisher. But they are somewhere else. The one is in Detroit, and the other is gone to Europe. Testimony has been produced which renders this unquestionable. Dr. Beman has taken an early voyage to Europe on account of his health, and Mr. Cleaveland is in Michigan. When they knew that Dr. Beman was going abroad they took his deposi- tion, and they might have taken it if he had been going to China, for there is no part of the globe to which justice will not reach. Why did they not let us see that paper? The Old School party would like that you should see that paper. Because, if Mr. Cleaveland had been examined, he could have told all about those things, in which he took such a conspicuous and active part. No doubt but those depositions would have been produced, if they had not apprehended that they would be to their own injury. When people are going to do wrong, they are not able to see the conse- quences of the wrong they contemplate, and are frequently caught in the net which they have spread for others ; according to an old and very expressive stanza, in the Version of Psalms bound up in an ancient edition of the Bible, sometimes called the Bishop's Bible, printed in 1608, " He digs a ditcli and delves it deepe, in hope to hurt his brother^ But he shall fall into the pit, that he dig'd up for other. "Thus wrong returneth to the hurt, of him in whom it bred, And all the mischiefe that he wrought, shall fall upon his head." Dr. Elliott, as I have said, was not in the secret; and yet he dis- arranged and spoiled their plan of operations. He brought the broad principles of the law to bear on them by calling out for com- missions which had not been presented to the clerks, and by saying to them, "you are in the wrong place." On this point another gentleman has enlightened us considerably. I allude to Dr. Mason, and with great propriety I can vouch for him as my witness. He states that when Dr. Elliott had made the call for other commis- sions, that they listened to the call; that he responded to the call, and that Dr. Elliott replied, "You are out of order at this time, sir." I wish you to pay particular attention to this one thing. He says, that the call was neither more nor less, than for those who " had not had opportunity to present their commissions to the clerks," now to present them. Thus, notwithstanding Dr. Mason was act- ing a part somewhat similar to that of Francis Wronghead (in the play) amongst the country members of the house of commons, yet he was not sufficiently drilled for the occasion. The moderator 460 states the matter as Dr. Mason did, with scarcely an immaterial variation. Mr. Hubbell reminds me that Dr. EIHolt stated precisely the same thing. But we have it from Dr. Mason, an honourable and conscientious man of their own party. They would not have called him as a witness, if they had known that his testimony would be against them. But there was at least one man who understood the call of Dr. Elliott, and instantly acted in obedience to that call, and that was Mr. Joshua Moore, of Huntingdon, who rose, and this ex- plains the whole mystery. He rose and walked to the clerks' table, and explained to them that he discovered that he had left his com- mission at his lodgings. But he rose for the purpose of complying with the call of the moderator, as it was the right of every member to have his commission reviewed by the clerks, previously to his name being entered on the roll. But Dr. Mason interposed between the rights of the members (Mr. Moo/e, particularly) and the mode- rator. Two of the rules of order are worthy of particular notice in relation to this matter. [See the 4th and 5th rules, on previous page, 174.] As to what I propose, these two rules will render it simple and plain that the appointment of the Committee of Elections could not be dispensed with, as the first business in the regular course of pro- ceedings. The New School party, though they were the minority,, had a right to vote for, or even to demand the appointment of that committee; but Mr. Squier had no right to make any demand ■whatever, because his name had not been enrolled, and therefore he was not a member of the house, and had no right to speak there. It may be that you all will now understand by what authority Mr. Squier comes alone. I can't do any individual injustice or wrongs But there is no alternative but this: if Mr. Squier was entitled to demand his seat in that manner, any other person was. And if such a course were to be persevered in by the commissioners from all the presbyteries represented in the General Assembly, it would involve the Assembly in insurmountable difficulties. In Congress there is no such practice. There, one who is absolutely entitled to his seat would not be allowed to demand it as Mr. Squier did. The first business is always the appointtnent of a committee, to whom the subject is referred ; which committee must report immediately^ or as soon as practicable after examining into the claim of the indi- vidual. Though, when no objection is made, such person will take his seat in the first instance, as a matter of course. But still the question is open to investigation in all cases of contested elec- tions, because every man has a right to present his claim to be there; and the same principle is incorporated with all deliberative bodies. In Congress, one-half the session has sometimes elapsed before the question has been determined, uhich of two persons is entitled to his seat; and, in some cases, the house, not being able to determine the question, have referred the whole matter to the people, to decide by a new election. You recollect that this was done in the case of Moore and Letcher, of Kentucky, a few years since, and also in a case from North Carolina ; and more recently in the case of the contested election from the state of Mississippi, be- 461 tween Messrs. Prentiss and Ward on the one side, and Messrs. Claiborne and his colleague on the other. Congress have sent the question back to the people in nine cases out often. We therefore should suppose that that was the best rule of action in such cases. But whilst the matter is under discussion, the members who have an undisputed right, vote on every question relative to the subject. The circumstance of the committee not reporting immediately is nothing. Such committee is always appointed as the very first business. The law on your table requires that the name of a mem- ber must be enrolled; in other words, that his right to a seat must be undisputed, before he can take his seat as a member of the house. This is a universal principle of order. Any departure from the rule is a violation of law. By what means shall Congress know a man to be entitled to his seat, previously to his being sworn in as a member of the house 1 Thus the proceedings of the New School party were revolutionary. Dr. Mason trampled on the rights of Mr. Joshua Moore, when he presented commissions which had been presented to the clerks. Nothing had arisen to justify the act. He was called to order because he was out of order at that time, and he took his seat. There was nothing to justify this disorder. Dr. Mason acquiesced in the second call to order, when he appealed from the decision of the moderator, as Dr. Patton had done in the first. The moderator was merely an officer of the house, and as such was bound to enforce the rules of order as far as it was in his power so to do. It was decided in the reign of Charles II. that before the speaker was elected, there was no house, and so it has been understood both in Europe and America since that time. Until a new moderator was chosen, a motion on ordinary business could not be put to the house. Yet Dr. Mason insisted on making his motion a question of privilege. But he found that he had not yet got out of his hornbook, that he had not yet learned his ABC in the process of parliamentary proceedings: and being thus in- structed better by Dr. Elliott, he took his seat. Mr. Squier next played his part; for they were determined to turn the moderator out of doors and take his seat. There is a case recorded in Eng- lish history which is the curiverse of this, for they had an Elliott there as well as here; but with this difierence, that there, when the determination was to put the speaker. Sir John Elliott, out of his chair, Mr. Converse and his friends kept him in. Here Mr. Elliott occupied the chair, and Mr. Converse and his friends were endea- vouring to put him out. For they had a Converse here as well as there, but on the opposite side of the question, " the very ip-sissime,''* &c. The case I refer to is the case of the King versus John Elliott. This scene was exactly like that in Ranstead court, excepting the difference between the keeping the speaker in the chair and the turning him out ; and they were different in the penalty. Now, will our New School friends escape the penalty of their misdeeds'? Mf. Cleaveland should undergo a similar penalty. There is the san^e reason why he should suffer the penalty in this case as there was that Mr. Elliott should in the other. If Mr. Cleaveland and Dr. Beman had been subjected to the same penalty, there might be 39* 462 some good reason wliy they are not here. Weii, Dr. Elliott re- plied to Mr. Squier, "We don't know you, sir," and much ado has been made about this. I want to know what Dr. Elliott could have said more appropriate. If any thing, it would have been, " Take your seat, sir." Mr. Meredith treated this matter in a very jocose strain, when he metamorphosed a very simple intimation into an awful denunciation, which he did by leaving out the word "sir." For Dr. Elliott did not say to Mr. Squier, "We do not know you;" but, " We do not know you, sir." The expression shows that Dr. Elliott was treating him with the utmost respect. If he had intend- ed otherwise, he certainly would not have added the word "sir." When Mr. Meredith invented this high-wrought hyperbole, he re- minded me of the necessity of speaking plain English in this coun- try, even if he has to practise on the maxim " to talk English to every man, French to every woman, German to every animal, and Dutch — to whom it may pertain." But now to the gleaning whicli I proposed when I began. I have a word to say in relation to Mr. Cleaveland in this connexion. Mr. Cleaveland, when he rose, did not address the moderator by his title. He did not say "Mr. Moderator." The very first duty of a member making a motion is to address the moderator by his title; and any man who should violate such an important rule in the Senate of the United States, or in the House of Representatives, would be called to order instantly. The speaker will not listen to any man who refuses respectfully to address him by his official title, " Mr. Speaker." I cannot speak too strongly on this point. No man can have the floor except he thus addresses the presiding officer- When the presiding officer designates the individual who shall occupy the floor, as is frequently necessary when two or more members rise at the same time, he designates him who is entitled to the floor, in the same respectful manner, as " the gentleman from Pennsylvania," or " the gentleman from Virginia." But Mr. Cleave- land did not face the moderator of that Assembly, neither did he address him. And recollect, that is what would have entitled him to the floor, and nothing else would or could. I do not now allude to the others. Mr. Cleaveland struck the severing blow. If il had not been for his conduct, we should not now have been engaged as ■we are in this court. He v^'as out of order. He never was on the floor, any more than a member who is brought to the bar of the house bv the sergeant-at-arms may be said to be on the floor, whei> thus arraigned for contempt of the house. He was out of order, and any member had a right to make a motion to censure or expel him. But at that time the whole power was vested in Dr. Elliott as moderator, as fully as the power of a court of chancery is vested in the chancellor. I might, in support of this position, refer to the proceedings of every legislative and judicial body. Again, Mr. Cleaveland introduced the matter before the Assembly was fully organized, and he turned his face from the moderator. He and his party then went to a different pari of the house. He proposed an impracticable question. It was utterly impracticable. Dr. Elliott then filled the chair, being in the place usually occupied by the 463 presiding officer. Now, whatever difficulties may occur, there can't be two presiding officers in the same Assembly at one and the same time, or, in proposing a question, the member proposing it would not know which to address. Whilst, therefore, Dr. Elliott had the chair, the question proposed by Mr. Cleaveland, "that Dr. Beman take the chair," was not only out of order, but wholly im- practicable. Take the chair? Why, " Is the chair empty' Is the king dead"' If Dr. Beman were a moderator, there were of course two presid- ing officers in the same Assembly at the same time; a liiing impos- sible. In no government can two heads exist at the same time. The chair must be first deserted, or become vacant, before it can be filled. Dr. Beman could not have occupied it unless he had done as the king did, when he usurped the speaker's chair, and propounded such questions as suited him to the House of Commons. But in that case of usurpation, the members of the house refused to answer, declaring that ihey could only speak to the king through their speaker. And from the time of that usurpation, in the year of our Lord 1647, down to 1838, the world never witnessed a similar spectacle. No principle of parliamentary law can be more fully and permanently established than this, that it is impossible that two individuals can fill the chair at ihe same time. It was impossible that Dr. Beman could get in until Dr. Elliott was got out. Here is an important link out of their chain. For it is fairly and fully proved that Dr. Elliott remained in the chair. He must first have left the chair, and then Dr. Beman must have taken it by order of the house, before he could act as moderator. Otherwise, between Mr. Cleaveland and Mr. Moore and his friends, the moderator might be put into a dilemma indeed, and one as well as the other might turn him out for not attending to his claims. But if Mr.. Cleaveland was presiding for the purpose of putting in a new mode- rator, he was the president of a preliminary meeting. But by rule twenty-fourth, in the Assembly's Digest, there was no moderator at all if Dr. Elliott was not, for they must give notice beforehand of their intention to proceed to the election of a moderator, or said election would not be legal. But what is of peculiar importance is, that there follows, gentlemen, a long string of rules, occupying three pages, every word and every letter of which must be read to every new moderator, before he takes his office. These were not read to Dr. Beman nor to Dr. Fisher. Who ever heard of such a mode- rator? To neither of them was the charge contained in these rules communicated. Dr. Fisher says, "Dr. Beman told me (just as I was going out of the house) that I was to he governed by the old rules." But Dr. Fisher was so ignorant of what the rules re- quired, that he did not know that fourteen members made a quorum. Why did he not know? Because he was not familiar with them. Was it not infracting the law to omit reading the rules to him, when, by his own confession, he did not know them? The law requires that they should be read to him, line upon line. Dr. Fisher is called a moderator after Dr. Beman, and yet not a word of the 464 rules, by which the moderator was to be governed, was ever read to him. He was to govern himself " by rules to be afterwards adopt- ed." There is a series of links necessary to make the chain of cir- cumstances; and if they cannot show them all, the whole chain is broken. They were in every thing wrong, unless they were right in every thing. Whoever doubts this in point of fact, should recol- lect that every link in the chain must be perfect, or the chain itself is imperfect. That is not a mere negative — it is an affirmative. There is another matter. The reversal of the question was not a mere negative. Mr. Lowrie has been acquainted with legislative proceedings for twenty-seven years, during which time he has been closely connected with legislative bodies. During eleven years of this time he was clerk of the senate of Pennsylvania, and for six years he was secretary of the Senate of the United States, and he says the questions were not reversed, because there was not suffi- cient time for a reversal. Several of the New School witnesses state that it was reversed. But Mr. Lowrie has more experience in such matters than all of them, and he says it was not, that there was not time. Now these two contradictions are not perjury, but they most likely explain the whole mystery. As if it was done, the reversal was so nearly in the same breath as the direct question, that it was, therefore, not a legal reversal of the question. The matter is still further explained by the intermingling of the " Ayes" and "Noes." One of the witnesses says that Mr. Cleaveland said, " in favour say, ' aye,' opposed say ' no.' " This might be done all in a breath. Mr. Lowrie expressly says there was not time for a reversal of the question. Mr. Meredith delivered you a lecture on the efibct of familiar sounds, but it will not apply in this case. For all the members of the church were familiar wiih the tones of the human voice; and as to the clock, he may try it for a week if he chooses, and the sound of that instrument will not be noticed, whilst the attention is wholly engrossed with the more familiar sounds of the human voice, and the imagination excited by a deep interest m the subject, which the tongue of the orator is presenting in most glowing language. But it cannot be supposed that more than one half of the members of the General Assembly of 1838 were so well pleased with the short speech and proceedings of Mr. Cleaveland, as to have their whole attention abstracted from every thing else of M'hat was passing around them. And even here, though the sound of the clock is quite familiar to us all, yet it would be quick- ly perceived if it should strike thirteen strokes at the hour of mid- night. Depend on the fact, thai no two persons could have certain- ly told exactly how that question of reversal was, except Mr. Cleaveland and Dr. Beman- We do not know with certainty that those questions were either put or reversed. They were the men that could have told us. If they had been here, or if their deposi- tions had been read in this court, we would have been in no danger of being led astray on this point. We can have no doubt, whether the question was reversed or not, that there was no opportunity afforded for debate. There was not time. Mr. Lowrie tells you there was not time. Others sav there was. But when a witness, 465 so well acquainted with the order of deliberative assemblies, as Mr. Lowrie, says there was not time, there certainly is reason to doubt there having been sufficient time. There is at least a doubt in the case. And where there is a doubt, or where there was no oppor- tunity given to vote, those who remained silent are not to be bound by an intendment of law. They say that in 1837 the previous ques- tion was called too soon. But in 1838 the question on their mo- tions was taken instantly, not only without debate, but without the for- mality of the previous question. It was not asked, "Are you ready for the question?" as is usual when the members of the house indicate by their silence or otherwise, whether they are ready or not. If they thus signify that they are ready, the question is then put. But it would be folly to deny that the Assembly had a right to debate the subject-matter of the motion previous to the question being put,. It was a gross violation of the rights of every deliberative body. If it is not a right inherent in deliberative bodies, then deliberative bodies must cease to exist. After all, gentlemen, the question for you to try is not whether there was a reversal of the question, in Doint of fact, but whether those who were to vote knew it. Did all these men, who would have voted in the negative, hear the rever- sal? That is the question. All these men tell you that they did rot. But the majority were not as well trained as the New School party were. Every man of them called " aye" at the very top of their voices. But if the question were reversed the Old School party did not hear it, and of course could not vote in the negative. There was no opportunity given them to vote at all. It may have been heard close by. The facts are given by that venerable old man. Dr. Hill, who was near enough to hear. He could put his hand on Mr. Cleaveland's shoulder, and he tells you that it was re- versed, and there were noes, and he was surprised that they did not vole it down. He thought they had not been well-trained. The question was put to themselves, and the other party did not hear it. One reason for not putting the question to the house in such a manner that the Old School party could hear it was, they did not ■wish them to vote understandingly on it. I have stated this in order to arrive at a subsequent point in their proceedings, though I am driven to satiety with the review of such manoeuvring, or I might have multiplied those circumstances to an interminable extent, which throw this matter in the shape of a doubt, and which put the other question in its true light, that there was no opportunity to vote. Of that there is no doubt. I can't bring the circumstances ■which show this fact too plainly before you. In regard to Dr. M'Dowell not being called as a witness, when it is said that he was where he must have known all about it, it is enough to say that he was not a member. Every man of the Old School party, who was a member, says that he did not know that Dr. Fisher was appoint- ed moderator. And how is it that those proceedings took place without their knowledge? They learned it by accident, but knew it not by any observation. I admit that if an individual should stop his ears with cotton, or slumber on his post, it would be his own fault if he did not hear. But that was not the case here. Who h , 466 responsible for the noise 1 If you are satisfied that there was noise on both sides, you will decide in favour of the Old School party. Who was the prinium mobile that caused it? Why, it was said, by the ring-leaders of a riot which occurred in Philadelphia sonnc months since, when a lawless mob set the incendiary torch to one of the noblest edifices in the city, an edifice which had recently been dedicated to liberty and free discussion, that the mob had " moved in an orderly manner," in the nefarious business of burning and destroying the property of others, and that the owners of the properly had provoked them to the commission of the act. If there ■were such provocation here, though it did not excuse the one, it did not justify the other. One principal charge as an act of disorder or irregularity on the part of the Old School party, is their repeat- ed calls to order. This charge is not confined to one member, but extends to the Old School party generally. We have also heard of coughing, stamping with the feet and other noises, and we are di- rectly charged with having made these strange noises, to prevent ourselves from hearing. But those gentlemen in the immediate neighbourhood did not hear it. I will not charge the making of the noise on the New School party, but I deny that the Old School party made all the noise. As to the irregularity, on the part of Mr. Board man, and Dr. Miller running across the house, I deny it alto- gether. These things are charged on particular members by the New School party. But there was not an act of the Old School party that tended to disorder ; not one. Can we say so of the other side? Let me select a single instance, that of the very respectable Mr. Duffield. A young gentleman, Mr. Hamilton, told you that he had seen him striking on the seat with a cane. It is not necessary to repeat the whole relation, but he saw that certain thing. Now if Mr. Hamilton had been questioned, as he was recalled for that purpose, he perhaps could have explained this matter, but he was not called on. Instead of that another gentleman was called, who stated that during the time that Mr. Duffield staid at his house he did not carry a cane. There is no difficulty at all in the matter. Mr. Duffield could easily have borrowed or seized a cane for the purpose of the revolution. Sufficient has been elicited to show that amongst the New School men there was disorder in every possible shape and form. They meant to dissolve the Assembly, and their proceeding was revolutionary. They, with the assistance of Mr. Cleaveland, Dr. Beman, and Dr. Fisher, organized a new Assem- bly. Their proceedings were revolutionary, and from the necessity of the case they were guilty of all the disorder. Mr. Duffield voted, though he had no right to do so. Whether or not his was that most vociferous "aye," the sound whereof would have reached across Washington Square; that " indecent" "aye," as Dr. Hill calls it, he was at any rate disorderly in voting, as well as rapping with a cane; and yet we are charged with having acted disorderly by these re- spectable men. The only question as to Mr. Hamilton's testimony is, can it be relied on ? and that it may, is rendered certain when the counsel on the other side did not impeach his veracity. Though Mr. Randall intimated something like a threat that he would ques- 467 lion him; I suppose that, on reflection, he thought best to leave the matter where it was. Yes, (on receiving a suggestion from Mr. Plumer,) Mr. Duffield's presence in the Assembly is confirmed, there is no doubt of it. Yes, and there were a great number stand- ing on the seats, in the pews, and moving up and down the aisle, at the invitation of the ring-leaders of that particular Assembly which was constituted there. I doubt whether any Assembly ever was so disorderly as this ecclesiastical body, and it would appear from Mosheim and other historians, that ecclesiastical bodies are very prone to' disorder. There is another important point to which I must call your spe- cial attention. According to a rule agreed to by the General As- sembly of 1829, the committee to review the commissions which should be presented to them, was to consist of the regular clerks. Now the Assembly was initiate, ft was in transition. Who was to perform this oflice? Dr. Mason and Mr. Gilbert were the clerks of the pseudo Assembly. Did they inspect the commissions, or did those commissions undergo an actual inspection? Dr. Mason tells you that he had never done it before their adjournment to the First Church. They did not examine them after they went to Washing- ton Square, and therefore the preliminary examination never took place in the world. Here was a trampling on all law and order. And yet this august Assembly, claiming to be the highest judicato- ry of the Presbyterian Church, professed to be governed by this very rule. But they prescribed for themselves what course they would pursue, whether according to the rule or not. It was indeed a most singular and humiliating spectacle which was presented to the world. Their anger towards their brethren turns on their own heads. When they described the stamping with the feet, the clap- ping with the hands, and the hissing, they were not aware that nothing that was done amidst such confusion could be considered as being obligatory on us. When silent members are understood as acquiescing on the principle that " silence gives consent," they must hear and know what is proposed. That is both law and order; but when every thing is in disorder and confusion, it is quite another thing. The house of prayer is converted into a den of thieves, is desecrated by indecent yells of " Aye, Aye, Aye !" It is necessary to preserve order in all deliberative assemblies; and for this purpose in all religious, as well as civil assemblies, a presiding officer is chosen, whose duty it is to preserve order; and questions of business are decided by ayes and noes, the majority determining the question in the affirmative, or in the negative. The only excep- tion to this general rule is to be found in the society of Friends, which transacts its business in a manner essentially different from all others. It is not analogous to any other. In their yearly, quar- terly, and monthly meetings, for the transaction of the business of their church, they have no presiding officer; as they acknowledge no head but Christ Jesus, whom they believe to be in the midst of them, and it is under the guidance of his spirit that they profess to act Their church government is not a representative democracy as that of the Presbyterian Church ; but it is a pure democracy, 468 every member of the church having an equal right to be present and to be heard in propria persona. Each one has equal privilege to make propositions to the meeting, and the business of the clerk, who is regarded as a public servant, is to form a minute of the transaction, which, when approved by the whole body, is placed on their records. They never decide by a majority merely, but by the unity or general consent, and thus conduct their business in a spirit of brotherly condescension and submission to each other, and in a most harmonious manner. By this course of proceeding the unbecoming and indecent yell of "Aye," or the boisterous and vociferous " No" is never heard amongst them, as in other delibera- tive bodies. I have already referred to the authority of cases reported in Wendell & Watts, in support of my position, that silence cannot be construed into an assent to the measures proposed, unless there is an opportunity given to vote against those measures, or if mem- bers are prevented from hearing, or voting by force or fraud. All law and order would be otherwise completely overturned. What is done on similar occasions in other bodies? Business is suspended till the galleries are cleared. Courts suspend their investigations till order is restored, &c. In our courts of justice, or in legislative bodies, if a drunken man should enter the house, and commence one of those vociferations peculiar to the votaries of Bacchus, all proceedings must be immediately suspended until the cause of the disorder should be removed; and any question proposed during the interim, could not be legally acted on ; nor could the silence of members, or their refusal to vote, under such circumstances, be construed into an acquiescence on their part. Because such mo- tions would be put in violation of the rules of order, and the mem- bers acting in such disorderly manner would be subject to punish- ment, by the body, for contempt. Such measures either destroy or suspend the administration of justice. The Old School party cannot be accountable, when they were prevented by the prevailing noise and confusion in the house at the time. The New School party prevented the ordinary proceedings from being effected, and at the same time rendered their own pro- ceedings ineffectual by the noise they made. And this was a so- lemn, grave, deliberative, religious body. Can these outrages, so tumultuous, disorderly and rebellious, result in supplanting us and placing them in power as the General Assembly? It is impossible that any thing can be done effectually in such a state of things. No ! they mistook their remedy. But why did they not try the issue in some other way than by a suit at nisi prius in this court. Why did they not proceed against the moderator and the clerks by a mandamus, if it is not the property which they want? They might have consummated their whole scheme, except the seizing of the property and funds of the church, in another manner, and have obtained their seats on fair and equitable terms. But let them not expect to triumph in their present course. Let them not ex- pect to obtain the verdict of this intelligent jury ! No, if your verdict shall be so, if the plaintiffs fail in this suit, they can form artother Assembly in 1839 as they did in 1838, and without a repe- 469 tition of those disorders which occurred in Ranstead court, and they can carry it on for ages and generations without interruption from these defendants. They can become incorporated by an act of the legislature, securing to them all such corporate rights and privileges as they may reasonably desire. They would just stand where Mr. Meredith says they wish to stand, in the full exercise and enjoyment of their own rights, without interfering with the rights of others. But on the other hand, if your verdict should be against these de- fendants, if you throw them out of the Presbyterian Church, they are out for ever. For us there is no hope. "The iron" will have "'entered into our souls," we must remain on the outside of the sanctuary, mourning like the Israelites, when their enemies had -carried them captive. We will go away like Rachael and weep, we will sit down by the rivers of Babylon and weep, when we re- member Zion. We will be obliged to hang our harps upon the wil- lows in the midst thereof, whilst "they that have wasted us require of us mirth, saying unto us, sing us one of the songs of Zion." ARGUMENT OF GEORGE WOOD, ESO- At the opening of the Court on Saturday, the 23d of March, (Mr. Ingersoll having concluded on the previous evening,) Mr. Wood commenced his argument, which was closed on the follow- ing Monday. Mr. Wood bowed respectfully to the Court, and addressed the jury as follows: — Gentlemen of the Jury, — After having floated for several days in the upper regions of the air, following the counsel on the other side in their flights of fancy, you may find it difficult and some- what painful to come down to the earth again. I assure you, iiowever, gentlemen, that you must come down, if you go along with me ; for I propose to continue there. I am not used to being perpetually on the wing, and can only ask your attention to a plain statement of facts and argument, condensed as much as the nature of this complicated case will admit of. Your patience must be nearly exhausted, and my indisposition renders it difficult for me to proceed. Much, gentlemen, has been said on points which have nothing to do with the case; and much testimony has been introduced which ought to have been dispensed with. You have observed that the Old School party claim to be the majority. They have certainly examined the majority of witnesses. We might have called hun- dreds. We could have gone on without end. But we were anxious to save time, and therefore, as you perceived, we abstained even from cross-examining their witnesses, that no waste of time might be made in this cause which we could possibly avoid. Much has been said to you by the opposite counsel, concerning the absence of Dr. Beman and Mr. Cleaveland, and our omittinfy to read their depositions. True, their testimony was not laid before you. Neither was Dr. Nott's deposition read on the other side. The reason is obvious. They were taken before it could be known 40 470 what points would arise in tJie cause, and they did, in fact, relate pritjcipally to points which have not proved to be material. This, doubtless, was the reason why ihey did not read Dr. Noll's deposi- tion. They offered it, but the judge refused to allow a great part of it to be read, because it was irrelative to the case, and they de- clined to read the rest. So of ours. Their depositions related to matters which have turned out to be irrelative. Dr. Beman is in Europe, and Mr. Cleaveland is in the far west, if they had been here, on the stand as Dr. M'Dowell was, it might justly have been inferred, from our not examining them upon the organization, as we infer from Dr. M'Dowell having been kept back on that subject, that there was a renson for suppressing the testimony. You have also been told, gentlemen, that our opponents have not sought litigation, and resorted to the courts of law. This is true of them, as of all other wrong-doers. The law and the courts are no favourites of theirs. It is the injured who are forced to go to law and seek for redress. Much also has been said of the fact, that my clients had the advice of counsel. Is that strange? Is it extraor- dinary, that after two or three hundred thousand members of con- gregations had been cut off without notice, resort should be had to those gentlemen whose business it is to advise as to the means of redress. Whence could they seek aid, but from the civil tribunals of the country, after being violently shut out from the ecclesiastical judicatories? There is nothing in these suggestions, gentlemen, which ought to prejudice your minds against my clients. Let us, then, come to the real issue in this case. Was the Ge- neral Assembly of 1838, that elected these trustees, the General As- sembly recognized and contemplated by the charter of 1799 1 Who are the trustees, is the actual issue. The election of our trustees is not disputed ; and we are brought back to the collateral question, which of these two Assemblies of 1838, is the true General Assem- bly of the Presbyterian Church? The counsel who last addressed you on the other side, stated that he considered the General Assembly to be, in reality, the corpora- tion. In this, I think he went tf)0 far. The trustees are the corpo- ration, under the act of '99. They form, however, a trust corpo- ration, created for the General Assembly, and to act as their agents, or trustees. The General Assembly are the cestui que trusts; and, though not a corporation, yet they partake largely of the corporate cnaracter, under this charter. They cannot, it is true, in a strictly common law court, sue or be sued; but their trustees, under the act of Pennsylvania, hold property for them in a collective capa- city, or, in other words, in a corporate capacity, having succession, and altogether different from a partnership of individuals. In this, their corporate and representative capacity, they are, under the charter, to receive from their trustees their funds, and to dispense them. In their collective, or corporate capacity, they are to feed or supply the corporation with its membership. They are to elect the trustees. They are a body corporate, in their organization and modes of proceeding, and for all the purposes of judicial and legis- lative action, and of administrative proceedings, to the extent of 471 their powers in these departments. What is the inference to be drawn from this? They are subject to that judicial control, and to those wholesome regulations which the court of king's bench, in England, and the supreme court of this state exercises and enf()rces over ihe subordinate institutions of the country. I admit that a common law court has no direct jurisdiction, by way of appeal or review, over the action of a mere ecclesiastical judicatory ; but it has a right to inquire, and will inquire into the conduct and organi- zation of a collective body, whether ecclesiastical or otherwise, in- timately connected by the charter with a corporation, so far as may be necessary to settle a question of property or civil rights, and more especially of the right of membership in such corporation. The court will take care that such bodies do not violate any of those fundamental rules of policy or justice, which ought to be ob- served by all bodies, in the transaction of their affairs. There is another point of view in which this subject may be con- sidered. The General Assembly is subject to the law of public trusts, or charitable uses, as it is more generally termed, which was early introduced into Pennsylvania, as appears from the case of Wit- man and Lex, decided in this court, and in the case of Sarah Zanes* will, in the United States circuit court for this district. Under this law, this ecclesiastical institution would be subject to the jurisdic- tion of the chancery of England, in respect to property, by direct review and control, and the powers of that court in this state, must, to a certain extent, devolve upon this court. Under the law of public trusts, voluntary institutions established for the promotion of piety and charity, are recognized as acting in a corporate capacity, and their rights are protected through the attorney general. In the case of Moggridge vs. Thackwell, in 7 Vezey's Reports, seve- ral of these voluntary societies were selected as managers of the charity. In order to find out the true legitimate character of this ecclesi- astical asseiTibly and its subordinate institutions, as recognized and contemplated by the legislature of Pennsylvania, in creating this corporation, it will be necessary to look at the composition of this General Assembly at the time the act was passed. These gentle- men tell us, it was, and ought to be a pure, unadulterated Presby- terian Church, of no mongrel character, not to be polluted by an in- termixture with Congregationalism. Now, when the charter was granted by the legislature, this Presbyterian body was in the closest connexion with Congregationalists. By referring to page 296 of the Asseinbly's Digest, it appears thai several years prior to this act of incorporation, a proposition was made by the General As- sembly, and received and adopted by the .Association of Connecti- cut, that delegates from the one body to the other, should deliberate and vote as members. What, then, was the character of the Ge- neral Assembly in 1799, when this act of incorporation was passed ? It was then in perfect accordance with its doctrines and discipline, or, if you please, with its ordinances of divine right, not merely to correspond with Congregationalists, but to allow them to sit and vote in this very General Assembly, the highest body known to 472 their church. It remained for the pure of 1837 to discover that such alhances were mongrel and bat-like, and not to be tolerated. Our inquiry now is, to ascertain what may be the composition of this General Assembly, in voting for trustees under this charter; and, surely I need not stop to say, that its character and its usage at the time the act of incorporation passed, must settle this question. I am clearly warranted, then, in saying that it does not destroy the Presbyterian character of this body, or affect the corporation, to make alliances with Congregationalists, and even to allow them to vote in the judicatories of the church. The counsel, (Mr. Inger- soll,) has stated to you, that in England a union once existed be- tween these two religious sects. He might have gone further, and told you that such a union existed at the very time that Presbyte- rianism was introduced from thence into this country. It must be borne in mind, that it was introduced here from England, and not from Scotland. I think, then, I am warranted in saying, that con- nexions of this kind are consonant to the principles and spirit of Presbyterianism. And, gentlemen, this enlightened and liberal tole- ration should be admired, not declaimed against. It is in perfect keeping with the genius of all our American institutions. The opposite counsel have, at every turn of their argument, given us oyer and view of the worthy and reverend Dr. Green, not to en- lighten your judgments, but to excite your sympathies. No one can feel more respect for him than I do, but I should indulge in a mawkish and crocodile sensibility, were I to lament his being strip- ped of an office which yields no emolument, and under circum- stances which every one knows cannot affect his character. It would be kindness, and not injury to him, to relieve him, in his old age, fronfi the care of the temporalities of the church, which might better be under the control of younger men. The General Assembly, or body purporting to be such, which elected these trustees in May, 1838, was first organized. If it was well organized, it must prevail, and no subsequent organization can be good. On the contrary, it was the duty of all to come in and join it, or else there might be as many Assemblies sitting at the same time, as there were quorums. There cannot, certainly, be two true and valid General Assemblies, silting at the same lime. Petty irregularities in the process of organization, will not vitiate. Gentlemen, in all controversies of this sort, it is important to find out how far the parties differ, and where they agree. Both parties concur in saying that the General Assembly of 1838, was going on in the process of organization, up to the time of the motion of Mr. Cleaveland. There are irregularities alleged on both sides, but on different grounds. We say that their organization was defective and unlawful, and we were attempting to cure those defects. They say that our attempts were irregular. They charge us with pro- ducing and organizing a secession. We deny it, and allege that we only displaced officers who refused to do their duty, as is often done in every assembly, and that we then proceeded on in the regu- lar organization of the General Assembly. This brings me to con- 473 sider the character of Mr. Cleaveland's motion, and the causes which !ed to it. There was, gentlemen, a dehberate attempt to form an unlawful General Assembly of the Presbyterian Church, concocted by the moderator and clerks, and a clique of the Old School delegates, commencing in 1837, and continuing up to the time of Mr. Cleave- land's motion. On these attempts, and the proceedings connected with them, we found our right to remove these officers. I must be allowed to claim your attention to the details of this plan. Let us go back, then, to 1837, to the excinding acts, first in importance, as they are first in time. These are what the gentlemen say have nothing to do with the case: "mere portico-work," they called them. Cutting off" six hundred ministers, fifty thousand communi- cants, and more than two hundred thousand members of congrega- tions, without accusation, or notice, or trial, is mere portico-work, is it? What, then, is the temple which they have put behind this portico? Their petty points of order ! ! Whether the moderator stood, or had a chair, was in a pew, or in the aisle, with a hammer in his hand, or without one. Whether a motion was made on this side of the house, or that side of the house. These are the great and interesting topics which ought to occupy our time and agitate the breasts of the court and jury; while cutting off" all, old and young, in large districts of country, is portico-work ! I now propose to show, that these excinding acts of 1837, did not, in law and justice, exclude any one from the church ; that they are void and of no effect; that there was an attempt to carry out these acts in the organization of 1838, and to perpetuate the exclu- sion which they purport to decree ; that such an attempt was fraudulent and unlawful, and void; that no lawful Assembly could have been organized in conformity with it; that it ought to have been resisted by all fair means, and that the means resorted to, were perfectly lawful and proper. These excinding resolutions, gentlemen, I need not read again. Their intended effect was to cut off" a large part of the state of New York, and a large portion of the state of Ohio. Now what is this charier of incorporation? Is it confined, in its benefits, to Penn- sylvania? Does it extend only "from Pennsylvania to the Missis- sippi?" No: it is a charter for the Presbyterian Church of the United States of America. It is an expansive charter for the whole Union, as broad and expansive as our whole country. And how were these people to be cut off"? At one blow ! No trial, no summons, no opportunity to be heard ! The commission- ers to the Assembly came together with no such powers; yet they attempted to cut off", at one fell swoop, all their brethren who re- sided in the infected district. What would be the efl^ect of this, if it should prevail? To banish Presbyterianism from those large por- tions of countr^^ Look at the map. See what a region has been declared to be infected, tabooed ground. In New York, it is more than three hundred miles in length, and of the width of all the northern part of the state. In Ohio, it is a large territory. It is, in all, equal to some four or five of the smaller states of our Union. 40* 474 Every man in these regions was, by these acts, deprived of all his rights under this charier. These immense districts were made, so far as Presbyterianism was concerned, a desert, without an oasis to dehght the eye; for all the purposes of Presbyterianism, dreary, and waste, and void. But let us look, gentlemen, at the qualifications which are alleged to mitigate the severity of these resolutions. " 2. That the solicitude of this Assembly on the whole subject, and its urgency for the immediate decision of it, are greatly in- creased by reason of the gross disorders which are ascertained to have prevailed in those synods, (as well as that of the Western Re- serve, against which a declarative resolution, similar to the first of these, has been passed during our present sessions,) it being made clear to us, that even the Plan of Union itself was never consist- ently carried into eflect by those professing to act under it." They say in this resolution, that the plan itself was never con- sistently carried into effect. Why not, then, rectify its irregulari- ties? Or, if they must cut off, why not confine it to the mixed churches, or Congregational churches alleged to be formed under the plan? Why cut off the whole church in those districts? The resolutions do not even tell us what these irregularities were, though they say the disorders were ascertained. How were they ascertained? By trial, or notice? Had the accused a chance to meet the charges and disprove them? No. They tell us also, in the third resolution, that these resolutions are not to affect the minis- terial standing, or pastoral relations of the ministers. Gentlemen, is not this mockery? What is meant by ministerial standing? And what is pastoral relation? Is it not a standing in all these judica- tories? the highest, as well as the lowest? Does it not include the right of trial and complaint? Of ecclesiastical justice? Of secu- rit\' under the charter? And are they not cut off from all these? You are, however, told that Pennsylvania was not cut off! I cannot believe that this remark was intended to enlist your preju- dices and excite sectional jealousy. It would be unworthy of the high standing of the honourable gentleman; and you will not be willing to proclaim to the world, that you decide this cause upon such considerations. You, too, will see, if you carry out these ex- cinding resolutions, that your turn will come next. Philadelphia, or all Eastern Pennsylvania, may be the next victim. The Old School party have some grounds of dissension reinaining among them, still. Dr. Green himself may be excluded next, unless the honourable gentleman, who seems determined that nobody shall have the worthy Doctor, should take him under his immediate care. He may bear him away in his bosom, from the newly infected dis- trict to South Carolina, where, if he cannot have the right to ex- cind, they must at least allow him the privilege of nullifying. But we are told that these resolutions provide a mode for true Presbyterians to get back again into the church. " 4. That inasmuch as there are reported to be several churches and ministers, if not one or two presbyteries, now in connexion with 475 one or more of said synods, which are strictly Presbyterian in doc- trine and order, be it, therefore, further resolved, that all such churclies and niinisiers as wish to unite with us, are hereby direct- ed to apply for admission into those presbyteries belonging to our connexion which are most convenient to their respective locations; and that any such presbytery as aforesaid, being strictly Presbyte- rian in docirine and order, and now in connexion with either of said synods, as may desire to unite with us, are hereby directed to make application, with a full statement of their cases, to the next General Assembly, which will take proper order thereon." That is to say, any one that chooses, may apply to an adjoining presbytery, of course f)ui of the infected region, as all the presby- teries therein are cut off. This scheme was evidently devised, in order that no man, thus cut oft*, should get back into the Presbyte- rian Church, without the permission of the General Assembly. No commissioners from the excinded districts, were to be enrolled and. admitted in the usual way, into the General Assembly. Thus the matter would be entirely under the control of the Old School party. The excinded are out of the church. If they will get back, they must come like strangers, to " unite with us." Look at the same minutes of 1837, and see how they were to be kept out. " The report of the committee on the right of presbyteries to exa- mine ministers applying for admission, which was adopted this morning, was reconsidered, amended, and adopted as follows, viz. "That the constitutional right of every presbytery to examine all seeking connexion with them, was settled by the Assembly of 1835, (see minutes of 1835, p. 27.) And this Assembly now render it im- perative on presbyteries to examine all who make application for admission into their bodies, at least on experimental religion, di- dactic and polemic theology, and church government." They make it imperative on the presbyteries to examine all who would apply for admission on experimental religion and theology. Take the case of Dr. Richards. I take his case, because I have long known his high standing in the church. He has lived in the enjoyment of all the religious rites of this church, till the decline of life. Then he is tabooed, cut off", because he is in the ill-fated dis- trict; and, to be restored to his religious privileges, he must travel three hundred miles, get out of that district, apply to a presbytery, and be examined on experimental religion and theology. Men as good as Dr. Green, or any of them, must 'travel, beg for admission, and be examined on experimental religion by those who have thus cut them off". And these excinded presbyteries, can they send com- missioners to the General Assembly, in the usual way? Oh no. They must apply to presbyteries out of the district, and through them, to the General Assembly; where their cases will be consider- ed, after the Assembly shall he organized without them; when the same men who cut them off", must pass on their cases. As judicial acts, these resolutions will not bear examination for a moment, as I trust, I shall satisfy you. I shall not only use, for this purpose, the law of the land, but shall refer to their own books, 476 to rules and principles established in this church, before these men began their career. Look at their Digest, page 323. " Sect. 5. No person to be condemned without due notice of tlie accusation against him. " It was resolved, as the sen.se ol' this house, that no man or body of men, agreeably to the constitution of this church, ought to be con- demned or censured, without having notice of the accusation against him or them, and notice given for trial. Vol. I. p. 77. 1793." This, gentlemen, is not only Presbyterian law, but it is justice, and it conformeth to the law of the land. The true doctrine is laid down in "Angel and Ames, on Corporations," page 244. " In none of the above cases, wherein it is considered that there is just and sufficient cause for amotion, can the party be expelled, unless he has been duly notified to appear. And where a corpora- tion strikes oft* one of its members, without giving previous notice, and affording an opportunity to be heard, a mandamus to restore him will be granted. J. H., a member of the Pennsylvania Bene- ficial institution, having been expelled from the society, and having applied to the Supreme court for a mandamus to restore him, the officers of the corporation made a return, showing cause why the said J. H. should not be restored to the rights of a member. It appeared by the return, that, by the articles of incorporation, each member was to pay fifty cents in specie, a monthly contribution, and that should any member neglect to pay his contribution for three months, he was to be expelled. J. H., it was stated, was three months in arrear, as was reported by a committee appointed for the purpose of making inquiry on that subject, whereupon he, to- gether with others who were found to be in the like situation, were struck off the roll, as having forfeited their rights of membership in the society. There was no vote of expulsion, because in the opinion of the officers who made the return to the mandamus, the nonpayment of contributions for three months, was, i-pso facto, a forfeiture of membership. But the Court were clear, that there "must be some act of the society, declaring the expulsion; and that this could not be done without a vote of expulsion, after notice to the member supposed to be in default. For it was possible, that the member might either prove, that he was not in arrears, or give such reason for his default as the society might think sufficient. And the notice must be served upon the accused a reasonable time before the amotion ; and when an amotion is shown, the notice must be particularly averred, and positively; if it be under a recital, as licet summunitus fuit, it is insufficient." There was no notice, no trial or specific action whatever, and these mere delegates expelled, not only members of the Assembly, but all the churches, all the people of that sect, all the judicatories in a tract of country three hundred miles in length in New York, and an extensive portion of Ohio. # We are told that it is the practice to dissolve synods and other inferior judicatories as occasion may require. They do so, and 477 there is authority in the book for it; but when they dissolve a judi- catory, they attach the parts of which it is composed to another, and no member is thereby put oui of the church. How different this from excision, from cutting them off, declaring them out of the church, and depriving them of ail their religious privileges. Why, look at the cases cited on the other side. The Synod of Delaware was dissolved in 1835, but its presbyteries were at the same time attached to other synods. So of the Synod of the Chesapeake in 1834. No one was disowned or cut off. It was a mere change of the local connexion. The Synod of Chesapeake was dissolved, and its presbyteries attached to other synods. In these cases merely the judicatory was dissolved. The word synod is used in a double sense. In these excinding resolutions, the entire district, and all the members hving in the district over which the jurisdiction of the synod extends, are cut off from all connexion with the church ; and if any of them wish readmission, they must apply anew as strangers, and go out of the infected and condemned district for the purpose. They are declared to be " out of the ecclesiastical con- nexion of the Presbyterian Church" &c. How frivolous and un- founded and false is it to attempt to justify these excinding resolu- tions, by resorting to the practice of dissolving a church judicatory. It can only impose upon a superficial intellect. We are told, however, that these excinding resolutions were legislative measures, and that these proceedings are justified as legislative acts. They tell us, in the first place, that these legisla- tive proceedings were justified by the abrogation of the Plan of Union ; under which, as they say, the districts composing these synods grew up; and, secondly, they were authorized by the legis- lative power of the body, independently of the abrogation of that plan. Let us, in the first place, look at this Plan of Union, which is charged as being so infectious as to require the purging away of every thing connected with it. It was nothing more nor less than an alliance with Congregationalism to promote union and harmony, not a whit closer or stronger than the plan of 1799, to which I have already called your attention. That union allowed the dele- gates from the allied bodies, not only to sit and deliberate, but to vote as members, and was in full force vihen this act of incorporation passed. The Plan of Union originated in a proposition of the Gene- ral Assembly. These alliances have been approved of by Dr. Green himself; and not only by him, but by all the great men of the church in those days. Dr. Latta, Dr. Alexander, Dr. M'Knight, and others; and at the head of the list, let me name Dr. John Witherspoon, a man never to be forgotten while our nation stands. He was much more than a mere closet metaphysician ; he was a statesman, a divine, a patriot, and in every aspect a practical man, of enlarged and liberal views. Through the whole period of our Revolution, he had seen the advantages of union and harmony, and had always promoted them. As a statesman, he saw that union was indipensible to our institutions; as a statesman and a Christian, he saw and felt that these plans of union among religious sects 478 would be, in the hands of the pious and the good, a power, like the lever of Archimedes, to raise up a moral and religious world. But we are told that this Plan of Union brings Congregationalists into the body of the Presbyterian Church. Let us look at it, and see to what extent this charge is true. " Reg'ulations adopted by the General Assembly of the Presbyterian Church in America, and by tlie General Association of the state of Connecticut, (provided said Association agree to them,) with a view to prevent alienation and promote union and harmony, in those new settlements which are composed of inliabitants from these bodies. " 1st. It is Strictly enjoined on all their missionaries to the new settlements, to endeavour, by all proper means, to promote mutual forbearance and accommodation, between those inhabitants of the new settlements, who hold the Presbyterian and those who hold the Congregational form of church government. "2d. If, in the new settlements, any church of the Congrega- tional order shall settle a minister of the Presbyterian order, that church may, if they choose, still conduct their discipline according to Congregational principles, settling their difficulties among them- selves, or by a council mutually agreed upon for that purpose: but if any difficulty shall exist between the minister and the church, or any member of it, it shall be referred to the presliytery to which the minister shall belong, provided both parties agree to it; if not, to a council consisting of an equal number of Presbyterians and Congregationalists, agreed upon by both parties." You see, gentlemen, that these two provisions do not bring a single Congregational minister into the body of the Presbyterian Church. The Congregational minister does not enter into any Presbyterian judicatory. He may be stationed in one of their con- gregations. This was always so : it is done every day in the Pres- byterian Church. They now send their missionaries, where? To the pagan and infidel; to the heathen to convert them; and they do not wait for elders. They cannot find them there ready-made; they must convert them first. And have they got to this pass of religious spite and intolerance, that while they allow their ministers to preach to the heathen and the infidel, they will not permit them to address Congregationalists, of the same faith with themselves, under a plan formed by the great patriarchs of their church? There is only one other feature of this plan to be noticed, and that is, the provision as to mixed churches. The diffiirence between this article and the others, is the difference between tvveedle-dum and tweedle-dee, to any one of enlarged and liberal views, out of the closet of metaphysics. " 4th. If any congregation consist partly of those who hold the Congregational form of discipline, and partly of those who hold the Presbyterian form; we recommend to both parties, that this be no obstruction to their uniting in one church and settling a minis- ter: and that in this case, the church choose n standing committee from the communicants of said church, whose business it shall be, to call to account every member of the church, who shall conduct 479 himself inconsistently with the laws of Christianity, and to give judgment on such conduct: and if the person condemned by their judgment be a Presbyterian, he shall have liberty to appeal to the presbytery; if a Congregationalist, he shall have liberty to appeal to the body of the male communicants of the church: in the former case the determination of the presbytery shall be final, unless the church consent to a lurther appeal to the synod, or to the General Assembly ; and in the latter case, if the party con- demned shall wish for a trial by a mutual council, the cause shall be referred to such council; and provided the said standing committee of any church, shall depute one of themselves to attend the presbytery, he may have the same right to sit and act in the presbytery, as a ruling elder of the Presbyterian Church." The only shadow of pretence for the accusaiion of its intro- ducing Congregationalists into the church, is in the provision that a committee-man may sit and act in the presbytery ; and can it be seriously pretended that this is a warrant for destroying and cutting off this large branch of the church? Suppose committee-men (Con- gregationatists) should come into the presbytery in this way. Is it not of the same character with the Union existing in '99, at the date of the charter, by which Congregationalists from the Associa- tion of Connecticut sal and voted in the General Assembly itself? Why, gentlemen, they have become wise too late. Men were as wise in 1799 and 1801, when this plan was adopted, as they are now. Dr. Green was as wise, and much more liberal then, when he approved this plan, than now, when he condemns it. This wis- dom has come upon them too suddenly. It is discovered only thirty-six years after the plan has been in full operation. It darts upon them like lightning, like the flashes of wit and genius which have burst from their learned counsel. If the introduction of a Congre- gational committee-man had become all at once a serious objec- tion, might they not, in a more Christian-like manner, have obviated the difficulty, than to engage in this work of revolutionary desola- tion? They had only to declare, that the delegate to presbytery from a mixed church, should be a Presbyterian, an ordained elder, and the whole difficulty would have vanished. But this was a mere pretence to veil over their covert designs. But, say they, the Plan was void, because it was not sent down to the presbyteries. This is an admission that the legislative powers of the General Assembly requires to be bolstered up by the sanc- tion of those inferior judicatories; an admission which I did not expect. The answer to it is this : after a usage of thirty-six years, and an acquiescence and co-operation by all the presbyteries during all that long period, the objection cannot be tolerated in the law. The sanction of the presbyteries by such long usage, becomes a presumption of law. There is another circumstance of vast importance connected with this matter. In 1821 a new constitution was formed, and these very excinded presbyteries assisted in framing that constitution, and did as much towards it as Dr. Green's presbytery in Philadel- phia. All then stood on the same platform, and now, by a part of 480 them, another part equally well entitled, are deprived of all its benefits. I ask you if you are prepared to say that these excinded presbyteries, thus joining in the frame-work of this constitution, are to have no part or lot in it; are to be cut off without mercy and without a warning. They say this Plan of Union is repugnant to the charter which incorporates the trustees for the benefit oi' a Presbyterian Church, and that it cannot be Presb5Uerian if such an alliance exists. I should like to have either of the learned gentlemen put his finger upon any point of time, when such alliances did not exist. This is a singular discovery in the march of intellect, which seems to have moved rapidly with the Old School party for a short time past. I shall not stop to inquire whether they had a right to abrogate the Plan of Union: I think they had, and have always tiiought so. I never considered it a contract. But surely such an abrogation should be made on great advisement, and all acquired rights ought 10 be preserved. Suppose the case of a pastor settled for life with a congregation, under this plan ; shall they be allowed to break up such a contract? Aliens are, by statute, in many of the states, and I presume in this, allowed, under certain qualifications, to purchase real estate. Would a repeal of the law impair or destroy the rights formed or acquired while the law was in force? All that could or ousht to be done on abrogating the plan, should be to prohibit other connexions of the kind from being formed in future. But, instead of sustaining acquired rights, this Old School party have destroyed them by wholesale. The only reservation is in favour of certain Simon Pure presbyteries. The General Assembly can readmit them, taking order thereon. This is very significant. They would admit such as suited their oivn views, and keep out all the rest. Could there be more monstrous injustice ! The gentlemen, however, undertake to palliate all these proceed- ings, by the conduct of the New School party of 1837; conduct declared to be outrageous, because, when it was proposed to cite these judicatories and try them, thus giving them a chance to be heard, that party voted against it. But look at the reasons why they voted against it. " 1, Resolved, that the proper steps be now taken, to cite to the bar of the next Assembly, such inferior judicatories as are charged by common fame with irregularities. "2, That a special committee be now appointed to ascertain what inferior judicatories are thus charged by common fame, pre- pare charges and specifications against them, and to digest a suit- able plan of procedure in the matter; and that said committee be requested to report as soon as practicable. " 3. That, as citations on the foregoing plan is the commence- ment of a process involving the right of membership in the Assem- bly; therefore, resolved, that agreeably to a principle laid down, chap. V- sec. 9th, of the ' Form of Government,' the members of said judicatories be excluded from a seat in the next Assembly, un- til their case shall be decided." 481 They were all to be excluded from their seats in the Assembly until "ill should be tried. It was plain to see that all were to be sacrificed. They had a clear right when a judicatory was on trial to exclude its members from voting, but not to exclude other members whose judicatories represented by them were not on trial. This was gross injustice. They had an occasional majority that year, and they were determined to perpetuate it. There was no charge, no spe- cification ; all was left vague and uncertain, floating on the breath of common fame. Notwithstanding the opposition of the New School, they carried their point. But the New School opposed the measure, and therefore, instead of being tried and heard, they should be condemned at once, and cut off by a summary resolu- tion. But we are also told, that the New School party opposed the division of the church, and therel'ore the Old School were justified in cutting them oft' at once. You will see their reasons for the opposition on page 431 of the minutes of 1837. " The subscribers had believed that no such imperious necessity for a division of the church existed, as some of their brethren sup- posed, and that the consequences of division would be greatly to be deprecated. Such necessity, however, being urged by many of our brethren, v/e have been induced to yield to their wishes, and to ad- mit the expediency of a division, provided the same could be ac- complished in an amicable, equitable, and proper manner." " From these papers it will be seen, that the only question of any importance upon which the committee diflfered, was that proposed to be submitted to the decision of the Assembly, as preliminary to any action upon the details of either plan. Therefore, believing that the members of this Assembly have neither a constitutional nor moral right to adopt a plan for a division of the Church, in relation to which they are entirely uninstructed by the presbyteries; be- lieving that the course proposed by their brethren of the committee to be entirely inefficacious, and calculated to introduce confusion and discord into the whole church, and instead of mitigating, to en- hnnce the evils which it proposes to remove; and regarding the plan proposed by themselves, with the modifications thereof as be- fore stated, as presenting in general the only safe, certain and con- stitutional mode of division, the subscribers do respectfully present the same to the Assembly for their adoption or rejection." The New School party finally yielded to a division, for the sake of peace. They believed that their differences were slight, and that there was no need for a division ; but they yielded because their bre- thren thought otherwise. There was really no difl^erence between them, except in metaphysical subtleties, which lie behind religion, and have nothing to do with practical piety or the affairs of life. Gentlemen, I should not have alluded to this matter, if it had not been dwelt upon with much stress on the other side, and in a way cal- culated to excite prejudice. Why did not the New School concur in the particular propositions for a division? Because the Old School insisted upon retaining the name and the succession, and. 41 482 upon the division being nnade at once without sending it down to the presbyteries for their concurrence. The concurrence of the presbyteries was indispensable. What then would have been the consequence of such a division? It would have been unlawful and not binding on the presbyteries. If these propositions had been ac- ceded to by the New School, the presbyteries would have left them and treated them as seceders. The counsel pressed this matter as though they really believed the terms offered were fair. But the New School party would have been stripped of every thing had they fallen into this arrangement. These two features of their pro- position will condemn it with all honest men. Perhaps it was not so designed, but it was clearly a trap, and the minority of every presbytery adhering to the Old School, they retaining the name and the succession, would have been entitled to all the property. But there was no alternative left. Divide as we prescribe to you, or we will abandon our judicial proceedings and cut you off' by reso- lution. They held the knife to the neck, with their casual majority. The idea is put forth in these excinding resolutions, and has been insisted upon by counsel, that these synods had their origin in the Plan of Union, and, therefore, they naturally fell when that union was abrogated. Hence these resolutions rather assume the appear- ance of declaratory proceedings than positive enactments. The proposition is vague and indefinite; and when analyzed and applied to the evidence, will be found wholly senseless. What do they mean when they say these synods had their origin in the Plan of Union? Do they mean to say that all the presbyteries and all the congregations in those excinded districts are of a mixed or congre- gational character, and were formed under that plan? If they do, it is altogether untrue. Mr. Squier, a respectable witness from that quarter, and fully conversant with the subject, tells you that in every presbytery there were the requisite number of clergymen and con- gregations of the pure Presbyterian form throughout the entire ex- cinded districts. This evidence is uncontradicted. If by the abro- gation of the plan, the mongrel churches, as they are called, had fallen to the ground, the presbyteries, sessions and synods would have stood as firm and as strong on blue-skin Presbyterian ground, as the Presbytery of Philadelphia. Why then did not the General Assembly take order for the presbyteries to purge themselves of the mixed churches as they did in reference to the districtembraced in the Synod of New Jersey ? It did not suit their purpose, and would not carry out their covert designs to cut oflT, that they might secure and perpetuate the majority to themselves. Their argument, if argument it may be called, proves too much. Suppose the union with Con- necticut, which existed in 1799 when the charter was granted, had been abolished a few years afterwards, and some one had seriously pretended that such an abrogation actually destroyed the Assembly and the charter, because the charter had its root in such an alliance, what would we think of the argument? The complete analogy between the two cases must be seen at once. If, then, the excision cannot be justified as a judicial act, nor as a consequence of abrogating the Plan of Union, can it be main- 463 tained as an independent legislative enactment? I will admit, for the sake of argument, that this General Assembly possesses legisla- tive power. If so, what becomes of the notion that they are not acting in a quasi corporate capacity? The legislative power of all subordinate institutions, is very different from the power of any sovereign legislature. It is circumscribed within reasonable limits. Look at the control which the court of king's bench, in England, and the supreme courts in this country, hold over the by-laws of subordinate corporations. How often do they declare them void, because in principle they are unreasonable, oppressive, or unjust? The power here claimed, is by by-laws, or resolution, called legis- lation, to cut off and banish from all right of membership a large portion of the community. This is not legislation. It is not em- braced within strictly legislative power. It is a high sovereign act of political revolutionary power — a power denied to nations by jurists, Puffendorf, B. 8, c. 5, s. 9., and reprobated in its exercise by all historians. Wherever it has been exercised and has prevailed, it was owing to the want of a supreme controlling power. If a government should cut off a province and send it adrift from the family of nations, resistance would follow if there was sufficient power to resist. Civil war would kindle its fires. The god of bat- tles would preside over the scene and award the victory. And who is it, claims to exercise this kind of power? A subordinate institu- tion, religious too ! existing under the law, and upheld by the law. A representative body too, responsible to its constituents, and at- tempting to cut off those very constituents or a large portion of them. For their own views of their powers see their Digest, p. 29. " 1. That no delegated body has a right to transfer its powers, or any part thereof, unless express provision is in its constitution. " 2. That this Assembly is a delegated body and no such provi- sion is in its constitution." There is no provision for excinding in their constitution. These are correct views, and were taken before they had become so deeply imbued with the spirit of despotic authority. Why, gentle- men, if this extraordinary doctrine is to prevail, what is to be the end of it ? If the Assembly of 1837 can cut off districts of 3 or 400 miles long, the Assembly of 1840 may cut off Pennsylvania. If this Christian General Assembly may do this, every civil, political, and ecclesiastical institution in the country may do the same. If our courts and juries sanction such proceedings there will be no peace. There are to be found in all bodies, differences of opinion, and more or less party excitement; and once establish the rule, that an occa- sional majority may perpetuate its power by cutting off the mino- rity in large districts, and tumult and violence will follow without bounds. What man, possessing in his bosom one spark of that spirit of freedom which animates the whole social system of this country, would join himself to an institution that claims such tre- mendous power? Gentlemen, this power to deprive of rights, to disfranchise, is in its nature and essence, a judicial and not a legislative power. It can never be legitimately exercised without trial and notice of the 484 charges, and an opportunity for defence. The gentlemen will find no instance in all their law books (jn corporate powers, where dis- franchisement is treated as an act of legislation. (See Angel & Ames, pp. 244, 245, as before recited.) Assembly's Digest, p. 323, "no man or body of men, agreeably to the constitution of this church, ought to be condemned or censured, without having notice of the accusation against him or them, and notice given for trial." It is punishment, and can only be inflicted for offences of a nature fairly warranting that species of punishment. Thus, if disfranchise- ment is attached as a penalty to an ordinary by-law, for an offence not warranting that species of punishment, it is void. In Pennsyl- vania, sir, you have declared a by-law void which disfranchised ior an offence not warranting disfranchisement. But we are told, genilemen, there was no hardship or punishment in this excision. They who are thus cut oft', can form new rclations. Is it no hardship to deprive these people of their rights under this charter? To deprive them of their relationship to this long esta- blished and time-honoured institution ? To cast upon them the stigma of being turned out of their church ? If there be any thing which is hardship and punishment to a pious man, who is devoted to his religion, it is to be cut off" from the institutions of his church. When the captive Jews hung their harps on the willows by the rivers of Babylon, they lamented the loss of their home and their country, but they wept when they remembered their Zion. They mourned for the loss of their religious privileges, of those institu- tions and associations which bound them to the God of their fathers, to the God of Abraham, of Isaac, and of Jacob. Gentlemen, in a moment of party excitement, in the phrenzy of power, this Old School party have inflicted upon their brethren the deepest punishment which can be inflicted upon persons of their views and character. They call it legislation! So are acts of attainder, passed by the British parliament, called legislation. But what makes them so? The omnipotence of sovereign power. It is doing violence to the nature of things. It remained for the Ge- neral Assembly of this Church to attempt, in this country, to act out the worst proceedings of the British Parliament, in the worst periods of English history, by stripping large masses of men of all their rights of membership, and then calling this forfeiture an act of legislation. But we are told that the ecclesiastical power is entirely indepen- dent of the civil power. That ihese acts of excision, however vio- lent and improper, having been passed by the highest body in the church, must prevail, and that they cannot be reviewed in the civil courts. I admit the independence of ecclesiastical tribunals upon the civil power as to all mere ecclesiastical purposes; the civil courts will not review their proceedings, on appeal. But when these ecclesiastical institutions acquire property, when they acquire corporate rights and privileges, either directly or indirectly, through trustees, this property and these rights are held under the law, and must be protected by the law. Every member of such an ecclesi- astical institution has a right to resort to courts of justice for pro- 485 tection, in respect to his property and his privileges. If the eccle- siastical tribunals keep within their jurisdiction, and act never so indiscreetly or erroneously, their proceedings will be deemed valid ; but if they transcend their powers, or violate any of those great fuU' damental -principles of law or justice, which are deemed sacred under the common law, they will be arrested. And it is immaterial whether they have done so in the pretended exercise of judicial le- gislative or administrative power. Such a control has constantly been exercised by the common law courts. Look at all that class of cases where the civil courts have re- viewed the conduct and opinions of parties in a church, each charg- ing the other with holding erroneous doctrines in reference to the fundamental tenets of their church : in all those cases courts have passed upon these differences to settle a question of property or civil rights. 3 Mer. R., 367, 419; 2 Bligh's R., 529; 2 Jac. & Walker, 427; 20 Pickering, 172; 9 Kendall, ; 7 Halstcd 206; 4 Halsted 390. These were not judicial questions in the church. A striking illustration of the principle for which I am con- tending will be found in the exercise of the visitatorial power over eleemosynary corporations. There is no principle better settled than that this power of visitation is entirely independent of the civil power. But suppose the visiter transcends his power, exercises a jurisdiction not given to him by the founder, or in his proceedings, violates any of the great cardinal principles of justice, attempting to decide without hearing or notice, or to act in a case in which he himself is concerned in interest, his proceedings will be reviewed and arrested by the civil tribunals of the country. 2 Term R. 338 ; 1 W. Bl. R., 22 ; 1 Term R. 650 ; 2 Lord Raymond, 1347, 1348. In this case, I do not hesitate to say that this General Assembly of 1837 stepped entirely beyond their powers, in attempt- ing to pass these excinding resolutions. That the power thus to disfranchise is in its nature judicial and not legislative, and that this representative body, not sovereign but subordinate, in attempting thus, by a legislative act of attainder, to strip a large mass of its constituency of all their rights of membership, have violated the great cardinal rules of justice, and their whole proceedings ought to be treated as absolutely void in law, in reference to the civil rights of those members, under this charter of incorporation. Equally unfounded is the pretence of their right to exclude our members from the Assembly of 1838, on the ground that every As- sembly has the right to judge of the qualifications of its own mem- bers. Congress has this power. It is given to them by the consti- tution, absolutely and without appeal. They are therefore the sole judges, and the courts cannot collaterally review their decisions. But the case is entirely different with these subordinate bodies. They are, it is true, independent of one another, but not of courts of justice. If the Assembly of '37 attempted to control the Assem- bly or*38, by converting the moderator and clerks info dictators, the attempt was unlawful. If the Assembly of 1838, either in obe- dience to such mandates or from any other cause, should attempt 41* 486 to exclude from their seats those who are lawfully entitled to them, the courts of law will tell iheni their proceedings are void. [Mr. Ingersoll here interposed to correct what he considered a misapprehension on the part of Mr. Wood, in stating the effect of the fourth resolution of excision in relation to the return of the ex- cinded members to the church. Individual members were not to apply to the General Assembly, but to presbyteries, and the presby- teries were to apply to the General Assembly, not to state the cases of those individuals, but upon their own application to be admit- ted. Mr. Wood, in explanation, read the resolution in connexion with the resolutions requiring examination in experimental religion. He also read the clause of the constitution which declares a pres- bytery to be bounded by territorial limits, and contended that the effect was to send them (the said individuals) out of the excinded district, because there was no presbytery there to apply to, all being cut off; but it would be idle for them to apply to a presbytery within whose bounds they did not reside, because, by the constitu- tion, presbyteries could have no members except within a certain district: they must therefore apply to the General Assembly. This must be the case v/ith both presbyteries and individuals. They, of course, while thus excluded, could not come in and participate in the organization. They could not come in at all, except on the terms of being examined on experimental religion. The presbyte- ries could not send commissioners to the Assembly, because they were not presbyteries. They could not go to the Committee on Commissions, they could only wait till the Assembly was fully organized ; when they could be allowed, perhaps, to show, on their knees, that they had been examined in experimental religion, on doctrine and discipline, and then they might be let in or not, at the pleasure of the Assembly.] Gentlemen, I was remarking on the difference between these subordinate institutions and sovereign bodies, such as legislatures, in deciding questions of membership. These subordinate bodies must do right. From necessity they must decide upon all questions of defect or irregularity in the commissions. But if the General Assembly should attempt to sever their own body, to exclude a portion of its members against law, they are thereby attempting to form an unlawful Assembly; and all reasonable and proper efforts should be made to resist such an attempt. It is proper that there should be a control over such attempts in these inferior institutions, lodged in the higher courts of judicature. If they were to judge with impunity upon the qualifications of their members, and such decisions should be final, gross injustice would be done, and the rights of membership would be often violated. Why, gentlemen, I might refer you to the Parliament of Great Britain, to the House of Commons, which is a sovereign body, and has the right to judge of the election and qualification of its own members in the last re- sort, and does not allow the courts at Westminster to touch the question. Did that body give general satisfaction in its decisions? No. It was found necessary to establish a committee of elections drawn by ballot, to avoid party predominances. Mr. Fox, on an 487 interesting occasion, where his right to a seat was involved, remark- ed hat he did not expect favour, nor did he know that he should receive bare justice from that house. He was called to order. He repeated the remark that it might be taken down, and in support oi ils truth, referred to the establishment of that very committee. What reliance could be placed upon the purity and correctness of decision in these subordinate institutions, if divested of all responsi- bility to judicial power, so far as property and right are concerned? Let this very case lurnish an answer. Every Assembly so constituted as not to give every member who has a right to a seat an opportunity to attend the Assembly, is unlawful; and of course, an attempt to exclude those who have a right, is an attempt to create an unlawful Assembly. Angel and Ames on Corporations, 275, 276, 277 ; 6 Viner's Abridgment, 269, sec. 11. This is not confined to municipal corporations, but ex- tends also to those which are private in their nature. Stow vs. Wise, 7 Connecticut Reports, 219. Even an order to summon is not sufficient. Wilcox on Municipal Corporations, 445. I think, then, gentlemen, I have established beyond doubt the principle I have laid down, that every attempt to form an Assem- bly without giving every member an opportunity to sit and vote, is an attempt to create an unlawful Assembly. This doctrine is clearly established by their own books. In their minutes of 1826, page 40, we have the following regulation : " That the Committee of Commissions be instructed to examine the commissions, and to report to the Assembly on those commis- sions which are unobjectionable, and on those, if such there be, which are materially incorrect, or that are otherwise objectionable. That those whose commissions are unobjectionable, immediately take their seats as members, and proceed to business; and that the first act be the appointment of a Committee of Elections, to which shall be referred all the informal, or otherwise objectionable com- missions, with instructions to report thereon as soon as practica- ble." Now this, gentlemen, is acting out the principle which I have stated, that in case of informal commissions, the Assembly of course must judge of their validity. But every member having a regular commission must be reported by the clerks. These excinding acts were wrong, grossly wrong; like the case of a city council at- tempting to cut off some of the wards. They were void in law, and commissioners from presbyteries thus cut off, in coming up to a subsequent Assembly, should and must be admitted. Their com- missions were all regular and formal. This is admitted. They were all regularly appointed. What then should keep them out? The proceeding of 1837: the excision, as it is called. It might better have been called " a deed without a name." No lawful Gene- ral Assembly could be constituted without allowing every member with a regular commission to sit. Every man of them had a full right to a seat. Not a commission was informal, not an election contested. By the rule of 1826, they should have been enrolled, 488 and the Assembly of 1838, constituted without allowing them their seats, was an unlawful Assembly. This is the law of the land ; it is carrying out the principles which 1 have just adverted to, and is in perfect accordance with the doctrines of their own books. It will be borne in mind that I do not claim any right of inter- ference with these ecclesiastical bodies by the temporal courts, far- ther than is necessary to protect property and civil rights. If these ecclesiastical institutions come under the protection of the law and acquire property, they must not be allowed to sport wantonly with the rights of their members. I shall now proceed to show, gentlemen, that there was a con- certed plan to prevent any organization of the General Assembly of 1838 which should admit commissioners from the excinded dis- tricts. This plan was commenced in 1837, and was to be carried out through the instrumentality of the moderator and clerks. They knew very well that each of these Assemblies is independent of the others. One Assembly may repeal the acts of another, but it can- not destroy the body. The institution of the General Assembly is permanent, though composed successively of diflerent bodies, no one of which could destroy the institution itself. In the Assembly of 1837, a plan was contrived which they supposed would provide the only mode by which the members from the excinded districts could get back into the church. They adopted a course of reason- ing by which they satisfied themselves that, as ecclesiastics, they were beyond and above the law ; yet they seem to have had some misgivings upon the subject. They bring up their trustees to the sticking point of carrying out their plans of excision, which they were so desirous to perpetuate, by passing a resolution to indemnify them, if legal proceedings should be commenced against them for carrying out their measures. They knew the moderator and clerks were efficient officers, and hence they pledged them to carry out their plans. They first introduced into the Assembly of 1837 a resolution to that effect. This was withdrawn after these clerks had given to them their understanding of their duty, which was to carry out all their measures. This, in my opinion, amounts to a pledge ; and it was undoubtedly so felt and understood at the time. After, and in consequence of this avowal, the resolution disappeared. The clerks left all this off the minutes, for which they afterwards, in the Old School Assembly of 1838, got a rap on the knuckles. Why did it not appear on the minutes ? There is no reason except that they were ashamed of it. Dr. M'Dowell, the clerk, said the views of 1837 were not his views. He could not receive the commissions, though he did not approve of the excinding resolution. I am not surprised that he left it off the minutes. No doubt, in the language of one of our classic writers, he would willingly have dropped a tear upon it and blotted it out for ever. I have now done with the conduct of the Assembly of 1837. I have shown their proceedings to be void, and that they endeavour- ed to infuse their action into the subsequent Assembly. I now come down to the transactions of 1838. In the first place, gentlemen, we find, in 1838, the Old School 489 cnmtnissioners met apart in secret convention, concocting their plans, based upon ihe acts of 1837. Then the clerks refuse to re- ceive or enrol any commissioners from the excinded regions. In the next place, the moderator, Dr. Elliott, refuses to entertain or put to the house any motion, the object of which is to bring in these excluded commissioners and have them put upon the roll. The con- vention, on the other side, did not purport to be, and was not, in fact, an ex parte or New School convention. All were invited to attend it, and some of the Old School party actually did attend. They passed in that convention these resolutions: "Resolved, That while we regard with deep sorrow the existing difficulties in our beloved church, we would fondly hope that there are no insurmountable obstacles in the way of averting the calami- ties of a violent dismemberment, and of securing such an organiza- tion as may avoid collisions, and secure the blessings of a perpetuated harmonious action. "Resolved, That we are ready to co-operate in any efforts for pacification, which are constitutional, and which shall recognize the regular standing and secure the rights of the entire church, includ- ing those portions which the acts of the last General Assembly were intended to exclude. " Resolved, That a committee of three be now appointed, respect- fully to communicate the foregoing resolutions to those commission- ers now in session in this city, who are at present inclined to sus- tain the acts of the last General Assembly, and inquire whether they will open a friendly conference for the purpose of ascertaining if some constitutional terms of pacification may not be agreed upon. This was sent to the Old School convention, and an answer was received, that they cannot for a moment consider the excluding acts of 1837 as unconstitutional, and that they have provided a fair and easy mode for the excluded to get back into the church. Now, gentlemen, here is full and complete evidence that the Old School party were determined to organize an Assembly on the principles of the exclusion of 1837. They deny the proposition of the conven- tion, and say to them, — We mean to exclude all except those who have applied to other presbyteries, and been examined on experi- mental religion. In short, gentlemen, they meant to exclude the excinded from the General Assembly, unless their special regulation for re-admission were complied with, and which put the terms of re-admission completely in their power. The excluded must come back, not as members, but admitting that they are shut out, they must come asking for re-admission and for relief. There was a de- liberate plan formed to exclude them entirely, until after the or- ganization, and to organize the Assembly without them. This was the design of those Old School delegates, who took their seats in the church at nine in the morning, to be ready for the meeting of the Assembly at eleven, and of the clerks, who required the door to be shut. This was the deep-laid plan. Hence they clustered around the moderator and clerks in that part of the church, in a 490 manner never known before. The design was to exclude from par- ticipation in the organization of the house, all but their own clique, and to organize an ex parte, exclusive, unlawful Assembly. I come now to the clerks. Their duty is fully pointed out in the rules: "That the committee of commissions be instructed to examine the commissions, and to report to the Assembly on those commis- sions which are unobjectionable, and on those, if such there be, which are materially incorrect, or that are otherwise objection- able." They were bound to put all the regular commissions on the roll, and to " report to the Assembly those that were incorrect or other- wise objectionable." Did they do it? No. They refused to ex- amine the commissions from the districts cut off by these unlawful and void excinding acts, even to touch them. Now, if these acts of exclusion of 1837 were void, they ought to have been disregard- ed by the clerks. A void judgment of a court of record will not justify a sheriff in acting under it. And are we to be told that a mere clerk shall carry out a resolution originated in fraud, upon the rights of others, and stripping of all their rights in the church 50,000 communicants, without giving them even a chance to be heard. Let us look next at the moderator. He too was ready to carry out these views. The first motion made in the Assembly, was that of Dr. Patton. Its object was to get these commissioners placed upon the roll. The moderator decides him to be out of order. He appeals, and the appeal is declared to be out of order. It is imma- terial whether the moderator used the expression, out of order, or out of order at this time. It conveys, either way, the same idea. It was part of the plan to exclude the members from the excinded district, effect the organization without them, and through their majority, thus secured, perpetuate the excinding resolutions. Next in order comes the motion of Dr. Mason. He produces the com- missions rejected by the clerks. His motion is decided to be out of order, and no appeal from the decision of this dictator, to the house, is allowed. Then Mr. Squier, a commissioner from a pres- bytery within the excinded district, holds his commission in his hand, free from all irregularity, and demands to be enrolled and to be allowed to take his seat; but he too, is refused. He had been with his commission to the clerks, who had refused to receive it. The Old School minutes of that year state that Joshua Moore, at the same time, came into the Assembly, presented his commission, ■which was received, and his name immediately, and without any motion or resolution, enrolled by the clerks. Why was this differ- ence shown in the two cases, between Mr. Moore and Mr. Squier? Because the moderator was carrying out the acts of 1837. He was carrying out the plan. What say the minutes in respect to the interrogatories put by the moderator? Where are you from ? From the Presbytery of Geneva. Is that in the Synod of Geneva? It is. Then we don't know you. You were cutoff 491 in 1837. You can't come in unless you have been examined in ex- perimental religion. Come after we are organized and present your case, and we will take order thereon. Suppose the clerk had left off some of the Old School commis- sioners, would they have been told by the moderator, we do not know you? And what is their excuse for not receiving those com- missions? They say they had called for those only which had not been presented to the clerks. Dr. Elliott's own testimony sets this right. He tells you that he called for commissions which were in connexion with the General Assembly. If these fifty commissioners had been Old School men, would he have rejected them ? No body believes it. And he would have done right in receiving them. The clerks had grossly violated their duty in not reporting all. Cannot the General Assembly cor- rect the error of their clerk? If not, then he might have excluded all but fourteen to form a quorum, and there could be no remedy. Shall the moderator, in the plenitude of his power, say this is not the time? When is the time? They were on the eve of completing their organization. When would be the time if not then? Shall they wait till after the committee of elections has reported upon their cases? Why this committee is not appointed till after the organization, and then they are to pass upon those commissions only that are informal — not regular or constitutional. Now it is seri- ously contended that the clerks are clothed with all this power. The moderator did not intend to let them go to the committee of elections. Dr. Mason sought to bring these commissions before the house and he took the last point of time when he could do it. If the moderator intended to prevent it, as he unquestionably did, he took the time best fitted for his purpose. He refuses to entertain the motion, refuses to put the appeal. He knew they could get to the committee of elections only through the house; that was the only way ; and he was determined to prevent their coming upon the table of the house. But, gentlemen, there is some dispute as to the words of the moderator at this time. Let us look at the Old School minutes, their own minutes of 1838. They are referred to by Dr. Elliott, who says they are true as far as they go. They say he asked if these commissioners belonged to the Assembly at the close of the session of 1837. Now if he wished to know whether these commissions had been to the clerk, this question was non- sense. If he wished to carry out the illegal acts and reject the commissions it was a pertinent question. The moderator decla- red Dr. Mason out of order. He called for commissions from pres- byteries in connexion with the General Assembly at the close of its session in 1837. He puts out all these and calls for others. Does not this show as plain as day, that the object of the moderator was the same as the Old School convention, to keep out these commis- sioners? To keep them from the committee of elections even, (for that was the only door to that committee) unless they should come in afterwards and show that they had been examined on experi- mental religion. And the reply to Mr. Squier was to the same effect. He did not know Mr. Squier as a commissioner. He knew 492 him personally. He knew that Geneva was always in their con- nexion before. He knew Mr. Squier was entitled to his seat, ex- cept that he was cut off in 1837, and he meant to say to him, you can't come in unless you are examined on experimental re- ligion. Now, gentlemen, let me ask you on what possible ground the moderator refused to put the appeal to the house ? By their rules the house was sutficient for this business. Now, Dr. Mason's only object was to show that the clerks had refused to do their duty. It was the first business after they were ready for business. If he had waited longer the house would have been organized. The Old School convention the day before had said they did not belong to the Assembly. The object of the moderator was plainly to pre- A 3nt them from coming in. If there is any principle which is clear, it is that the moderator must allow an appeal from his decision. It is laid down over and over again in the book, no matter whether the rules are in force or not. If they are, then they give an appeal. If they are not, then, by the very nature of the case, there must be an inherent right of appeal, unless the moder;itor be a dictator. Now, gentlenien, I have shown you that the clerk refused to enrol these commissioners according to their own rules. The moderator refused to put motions — refused to put appeals from his own deci- sion in violation of the established order of the Assembly. They thus were all guilty of gross violations of duty. It remains now to show that these violations of duty justify their removal. [On the opening of the court, on Monday morning, Mr. Wood ex- amined the construction of the excinding resolution, as to the pres- oyteries strictly Presbyterian in doctrine and in order getting back into the church. (See the resolution, which he read. No. 4, at the top of page 57 of this report.) This seems to imply that the pres- byteries may come to the General Assembly. They cannot how- ever, according to these excinding acts come by and through their commissioners, for the right to appoint commissioners could only ex- ist while they are in connexion with the Assembly. Besides they cut off the synods, and this disarranges the whole Presbyterian plan. Suppose commissioners from these presbyteries should come and be admitted, there would be no synods to which they were amenable — the gradation of judicatories is destroyed. Now these synods are, as is alleged on the other side, of divine right. Then ad- mitting these commissions from presbyteries belonging to no synod would violate the divine injunction according to their view of it. But, gentlemen, they are not of divine right by the Confession of Faith. They are only agreeable to scripture. The great thing is, they must come as '\i out of us, not belonging to us, and come " fo unite with us" on examination on experimental religion.] Gentlemen, I have shown to you that the act of 1837, was uncon- stitutional and void. That the Old School delegates and the mode- rator and clerks determined to carry out in 1838 these illegal acts. TAeiV Assembly of 1838 acted on that principle of exclusion. They 493 excluded the commissioners from the excinded districts to the end. They began wrong and they continued wrong, and lh;U Assembly was born rickety and lived so. In 1838, after having organized on the exclusive plan, they passed an act (reads "3d section of act I." of Old School Assembly of 1838,) declaring that no one should be considered as belonging to the Church unless he was will- ing to adhere to llieAr Assembly, on the basis of the proceedings of 1837 and 1838; and that the minority of every subordinate judicatory so adhering should be the true presbytery. Thus they not only organized on the principle of exclusion, but they carried it out to its fullest extent to the very end, (vid. statistics) making the minority the true stock. In their statistical table they exclude us. Why then should we have waited till after their organization? Only to have given them the opportunity to perpetuate their action. Why do they tell us they would have received us back again, and have killed the fatted calf? Yes they would have killed the fatted ealf for their own festival of triumph, and the exclusives alone would have eaten of the banquet. Why did they refer to the prodigal son, to that passage of scripture as remarkable for the beauty and sim- plicity of conception as for the fine moral it conveys? Is there any parallel? Had that son been driven out from his home and cut off without a hearing? And Missouri too, had she been thus driven out and excluded from the Union? They might better take the case of l^oland, the land of Kosciusko, where despots divided the country, and drove out, without warning, a large portion of the people. The gentlemen on the other side are entirely wrong in supposing that we meant to make a new organization. This was not so. We only meant to continue the organization already beg;un, on those legal principles which the others were violating. We turned out the otficers for cause. If these officers had been taken sick, and others had been appointed, it clearly would not have been a new organization, but only a mere change of officers and continuance of the old organization. The learned counsel also said that, having knocked down Mr. Cleaveland, he should give him a few more blows. This would be ongallant in a gentleman of his bearing. I will vindicate the gen- tleman against himself. He has not knocked Mr. Cleaveland down, a'>r kicked him after he was down. Had the Assembly power to remove its officers? If an officer refuses to do his duty, he may be removed. This is in the nature of all bodies. It is and must be an inherent power, or else he is dictator. Jefferson's Manual slates that a speaker n^ay be removed. See also Angel and Ames, 247: Ministerial officers may be removed at pleasure without no- tice. And so in the constitution: he is moderator "till ano- ther be chosen." This implies right to remove. A removal of such an officer does not disfranchise. Not so an officer who is of the essence of the corporation, as a mayor, an alderman, an integral part of the body. The case in 9th Wendell, 402, shows the power of amotion. It is there explicitly laid down that they ought to have removed the clerk. Was there cause to 42 494 « remove these officers? This was no petty irregularity, no hasty sally of temper, that might happen to any man, no trivial omission of duty. It is a case of wrong, deep and deadly. No one has ever heard of such a case. This excinding process was a new machine to cut off, at one stroke, at one drop of the axe, two hundred thou- sand. It is isolated. It stands alone in its own gloomy grandeur. I say with pride as an American, that our civil, political and eccle- siastical history, does not furnish any thing like it. Refusing to put a motion on an appeal! They say there was no house; that the moderator and clerks are every thing; that they make the house; and that only when organized the house is ready to act. Gentle- men of the jury, you are men of business ; you have all been often concerned in organizations. How do they organize bodies? The members come together, mutually exhibit their vouchers, and sit together and act in a process of organization. So here, the Assem- bly, in its incipient stage, is formed and constituted by prayer. They have ransacked the minutes, and find it is always so. The General Assembly then exists, not fully organized, but as a body in process of organization. The (tlerks report to whom? The Com- mittee of Commissions are acting as a committee of the house. There is no house! They report to the house. There is no house! According to this notion, all is in a state of chaos until moulded and organized by the old moderator and clerks! Why, if sheep scat- tered through a country were to be formed into a flock, they might not be able to get on without a shepherd ; but a body of rational men need no such shepherd to collect them together. They use the moderator and clerks as conveniences. Suppose there were no moderator there, or the moderator and clerks should be taken sick, could they never organize? Suppose the clerk should refuse to enrol more than ten, so that no quorum could be formed, could no- thing be done? There is no house, and all must pocket their com- missions and go home ! I lay down this proposition, that the mutual coming together of the members, with the knowledge among them- selves of their respective claims to membership, derived from a mutual exhibition of their vouchers or otherwise, constitutes a pre- liminary Assembly sufficient for the purpose of appointing, remov- ing, and re-appointing officers, of establishing or changing the time and place of meeting, receiving motions, adopting resolutions, and doing all necessary and proper acts incident to the process of com- plete organization. The regulation that the officers of a preceding body shall oflliciate till others are chosen, does not divest the body thus organizing of the same power over them as it would have over officers chosen by itself It is a mere rule of convenience, to dis- pen.se with the trouble of choosing officers in the first instance. The usual course in organizing bodies is to appoint a chairman. Some member rises and moves that A. B. take the chair, and C. D. he clerk, and a committee be appointed to examine the testimonials of the members. That was just the case here. The only difference wa€, that the old moderator and clerks by rule perform these ser- -viccs. And by the same rule, this old moderator is only to preside til! another is chosen; and it was never dreamed before that the 495 body, in the process of organization, was completely under their control. If they will not do their duty, or if they are absent, the body appoints others. This occurs in thousands of instances every year in this country, which has in it nnore of these various associa- tions than any other in the world. Now, it is true, gentlemen, the old moderator and clerks entered upon their duty, but they refused to do their duty, and a refusal to go on and complete the organiza- tion, upon principles of law, and according to the settled rules of the house, is surely equivalent to being sick or absent. The clerks, by the rule in the minutes of 1826, page 40, are bound to put all on the roll. They did not: they refused to enrol regular and consti- tutional commissioners, and violated the rule and the principle of law. The moderator refused to do his duty. Efforts were made to compel the clerks to do their duty, and the moderator refuses to put motions to the house, refuses to put appeals, makes himself a dictator, and obstructs every effort to make a constitutional organ- ization. Is not this a refusal to do his duty ? It is more : it is con- cert, collusive contrivance to carry out a plan, of which the Old School conventions of 1837 and 1838, the excinding acts of 1837, the pledge of the clerks, and this concert in 1838, were parts. Fraud vitiates everything: no principle is better settled. It de- stroys all proceedings. Even the decisions of courts, the title to pro- perty, fines, recoveries, the strongest assurances in the laws, crum- ble to pieces if infected with fraud. Now, gentlem.en, I do not intend to impeach motives. The moderator was under excitement: he supposed it was right to cut off his brethren by hundreds of thousands; but in law, under the laws of Pennsylvania, this is a fraud. Suppose a man becomes embarrassed and fails, and makes an assignment, but keeps back a part of his property for himself and his family. He does it conscientiously, perhaps, but it is wrong; it is in law fraudulent. So this was a fraudulent conspiracy, not only to destroy our rights, but to continue and sustain the principle of exclusion. The next ground of objection to our proceedings is, that Mr. Cleaveland was called to order, and that a call to order arrests all proceedings. Can it be, gentlemen, that these gentlemen, who have come from Congress to instruct us in parliamentary rules, are right? Can the moderator thus preserve his power and make himself dic- tator? The rule that business stops on a call to order, is good for usual practical purposes. But is it true that when a chairman re- fuses to do all his duty, and a motion is made to remove him, if he raps with his hammer and cries order, he is safe, and the business of the meeting cannot be done? But there is another view of this matter. The motion to put these commissions on the roll was a privileged question. It must be so from the nature of the case, in- asmuch as it related to the formation of the house, and of course it took precedence of all other questions. They say that there was an easy way to get these commissions on the roll; that is, through the committee of elections. Now let us advert again to the rule on that subject: 496 / "That the committee of commissions be instructed to examine the commissions, and to report to the Assembly on those commis- sions which are unobjectionable, and on those, if such there be, which are materially incorrect, or that are otherwise objectionable- That those whose commissions are unobjectionable, immediately take their seats as members, and proceed to business; and that the first act be the appointment of a committee of elections, to whicii shall be referred all the informal, or otherwise objectionable com- missions, with instructions to report thereon." All commissions, formal and informal, must be reported upon by the clerks, the regular ones enrolled, and the informal and defec- tive ones only go to the committee of elections. Now. the clerks had not put on all the regular commissions, as required by the rule. The house was not ready for business; the next business was not to appoint a committee of elections, but to complete the roll of regular commissions: and the effort of Patton, Mason and Squier was directed solely to getting upon the roll the regular commissions left off by the clerk; and this must be done before there can be a house fully organized to appoint a committee of elections. They say, on the other side, the motion for a committee of elections was before Mr. Cleaveland's motion. This is not so. They are mis- taken. It was pending Mr. Cleaveland's motion. Their minutes, proved by the moderator to be correct, say, that while Mr. Cleave- iand was speaking, Mr. Moore was enrolled ; and afterwards, it was moved to appoint a committee of elections. Now, observe, gentlemen, here were about sixty commissioners, whose commissions were regular, and not put on the roll. Dr.. Patton tries to get them on, is refused, and his appeal is refused- Dr. Mason tries, is refused, ^and his appeal is denied; and Mr. Cleaveland rises. There was no motion previously pending, as they say. Now. according to the principles of the other side, the house could not correct the grossest error of the clerks. It has no control over these officers. This was carrying out their plan with a veVigeance. It was for ever excluding every man from the excinded region. A more ad- mirable plan for a casual majority, arrogant and overbearing, to perpetuate power, was never contrived. Gentlemen, I must request your patience while I follow these gentlemen through the positions they have taken. Another objection is, that Cleaveland's object was to have a por- tion organize the Assembly, excluding the Old School members, that " We," means the New School, not the General Assembly, have consulted counsel. Why, gentlemen, if there be a fact in this case proved beyond dispute, it is tliat their object was to secure' a general organization, embracing all, as they stood in the begin- ning of 1837, while the other side sought a partial organization. Look at the conventions and the notes interchanged between them. The New School say they wish all to come in. The Old School say, No, you must exclude the excinded. Look at our Pastoral Letter. What is the meaning of " we," as there used? It means 497 the General Assembly. Look at our statistical tables, and you find that we means the whole churck. New JSchool and Old, in opposition to a clique who have determined to tear off a large limb of the church. Look at our convention. " We," means «//. The adver- tisement calls for all. It opens the doors for the whole church, in- vites consultations and asks for the prayers of all to preserve unity and peace, declares that party-conventions are to be deprecated, invites all the delegates to meet. Some of the Old School did come, and if others did not, it was their own fault. So too, Mr. Cleaveland by "We," means the house, the Assembly, all, not a part, but the whole. The next objection is, that the old moderator and clerks were not expressly displaced; that is, they did not say that Dr. Elliott was displaced. Gentlemen, Mr. Cleaveland's object was evidently to do as little violence to the feelings of Dr. Elliott as possible. When he rose, he faced the moderator, but turned gradually round facing the whole house, for the motion was of such a nature as not to be made to the moderator; and he stated that he wished to be as little dis- courteous as possible. Gentlemen, the doctrine is distinctly laid down by every writer on corporations (vid. Wilcox, 246,) that the power to amove may be used simply by appointing another; and the lan- guage of their constitution is to the same eflect. He is only to pre- side, says that constitution, till another be chosen. Is it now right, gentlemen, to defeat all the object designed, which was to bring all the parts of the church together, Dr. Green and Dr. Barnes and all, as they were before that excision took place, because the dis- placing of the old officers was not formally mentioned? But we are told that Mr. Cleaveland stated that he should pro- ceed with as much expedition as possible. Well, gentlemen, is that wrong? Look at the circumstances. Every thing must be judged of by its circumstances. The trustees of the church had ordered that no proceedings should be had in the church except under the old moderator and clerks, manifestly forming a part of the great plan of the Old Schqol clique to perpetunle the exclusion through the instrumentality of these officers. Mr. Cleaveland then might have said, " We cannot use this church unless we do as the old mo- derator and clerks choose; let us go into the street." The case of Field V. Field, in 9 Wendell, furnished by the other side, proves this. They cited this case because there the exclusives had with them the clerk and here they had the moderator: they knew, that in rely- ing upon little circumstances like this, instead of great principles, only serves to lead us astray. But, gentlemen, we must look to principle. What is the principle of that case? Why, that if part are about to organize an exclusive, partial, and unlawful Assembly, those who wish to organize lawfully, if otherwise prevented, may take to the open air and organize there. In that case there was an attempt to exclude a part. Here there was an attempt to exclude a part. There the party who remained in the church had a legal right to the church. Here there was a right to the church in the exclusives also, or in those leagued with them, which is the same thing. They had a right, gentlemen, to go out of the building into 42* 498 that Ranstead court, or to the nearest convenient place, and organize there. But they did not go, they siaid under ail their embarrass- ments, and made the effort to secure the co-operation of the whole church, exclusives and all. But we are asked, why did not Dr. Fisher take the chair? Dr. Fisher says he feared a riot. Look at the circumstances ; their de- termination to carry on their unlawful organization. Dr. Elliott plainly did not intend to allow them to do any thing. As soon as he heard the first word about coun seUearned in the law, his hammer began to operate. Suppose Dr. Fisher had tried to take the chair. The resolution obtained from the trustees, to secure Dr. Elliott in his seat, furnished ample evidence that he did not mean to give it up. Dr. Fisher says, they were afraid of the trustees, and therefore they proceeded with as much expedition as possible, and this too after the resolutions were sent to the Old School convention, explaining the principle upon which they were to act, that all must be admitted. Now, suppose in the case in 9 Wendell they had addressed the othei; party and remained in the house, instead of organizing in the open air, surely it would have done as well as to go out of the church. They say, however, that we went to the rear of the As- sembly, a position unfavourable for hearing. But, gentlemen, keep in view the circumstances. Was not this necessary? We could no' go front for the noise, the cries of hear, order, and for the mo- derator's hammer. The same principles as would justify going outside of the house to organize, would surely sustain an organiza- tion made inside of the house, in the rear. The Old School could have heard if they had been so disposed. The next objection is, that it was very unlawful not to take the last previous moderator in lieu of Dr. Elliott. Others were present. This does not apply to the case. The rule is to take the last mode- rator, and if he is 7wt there, then the next behind him. But he was there, refusing to do his duty, going wrong, The constitution gives the y)ower to choose, and the person to be chosen is not li- mited to any class. They might choose another. That power is inherent in all bodies; to appoint another when the moderator re- fuses to do his duty. But suppose they should have ta.ken the last moderator present. Dr. Witherspoon, and did not. what would have been the eflect? Why the house dispenses with its own rule, it did so in 1835. and it did not vitiate. When Dr. Beman left the chair they did not go back, but took up the business where it had been left by him. Removing a moderator is not a revolutionary act, but an act in the course of business, rendered necessary by the conduct of that officer. The next point on the other side is, that the majority was against removing the moderator. That we rely upon an intendment of law, is the burden of their song from beginning to end. How shall we ascertain the majority, gentlemen ? By putting it to vote, of course. This was done, and it they would not vote, we could not make them. In Angel & Ames, 67, it is laid down that a majority of those voting prevails, even if the majority protest against going into a vote. This venerable institution, while under the dominion of common sense. 499 have established rules of their own, singularly conformable to the principles of law in all their course, as I have already remarked. Such was their wisdom before passion had obscured their judgment. Their .SOth rule, found at page 455 of the book called the Confession of Faith, is explicit in regard lo silent members, that they "must be considered as acquiescing."' But, gentlemen, this talk about "majority must be intended only to excite prejudice. A majority cannot force an illegal organization upon the minority. The case of Field V. Field, in 9 Wendell, was referred to by the other side, to show that a majority may force any thing through. Is this the principle of that case? By no means. There, the majority tried to prevent the minority froin makino- a lawful organization in the house, which was the usual place of meeting. The minority withdrew, went outside, and there organ- ized under a tree, and what say the supreme court of New York? Why, that the minority was the lawful Assembly. It was in that case objected, that the minority could not organize a lawful As- sembly because a minority could not form a quorum; but ti)e court said this common law principle, that a majority of the whole is ne- cessary to form a quorum, does not apply, because the majority prin- ciple does not apply in that religious society. The constitutional rule of the General Assembly is, that fourteen fnay form a quorum. The case of Field v. Field iully establishes the principle that a minority may withdraw and organize a lawful assembly, when a party, though a majority, are attempting illegally and erroneously to organize an unlawful assembly. This doctrine of majorities is much too little understood. When acting in the ordinary course of duty and within the pale of their authority, they are to prevail. In our country majorities have no right to do wrong. Suppose the case of three ship-owners, can a majority excind the other and take the whole ship to themselves? Yes, this is the principle contended for on the other side, and it is about the amount of the excinding acts. All must have an opportunity to vote as I read to you the other day, especially in delegated bodies, where a man does not act for himself alone. But, gentlemen, don't let us stop here. I want to know how they found out they had the majority to sustain, in 1838, this principle of excision, this ecclesiastical guillotine, which cuts off without mercy. - Have we not shown you that even their own party could not all be brought up to the sticking point. Look at Mr. Phelps's testimony. He says, from careful examination, thev would have stood on the question of sustaining these excinding acts 13t) to 140, and this is uncontradicted. They rely, on the other side, upon the majority staying with their Assembly; but this only shows that they sympathized with the Old School, but not that thev approved of the excinding principle, or would have sustained the moderator and clerks in carrying it out, if the moderator had put the question to the house. If there was to be a separate organiza- tion they chose to go with the Old School. What says Dr. M'Dowell. Why he thought, as clerk that he was bound to do as he did. He was pledged to it. But how would he have voted in the house? What was his language in committee? What was his private opinion? So of others. There is not the least particle 500 of evidence to contradict Mr. Phelps. The truth is, that having got a maiority in 1837 they are so proud of it, that they can't use any other word in describing themselves, nor any word but minority for the other party. Their own pastoral letter of 1837 shows that parties were about equally balanced. In that letter they say, "What are called the Old School and New School parties are already separated in fact; in almost every part of our country where those parties exist, they have less iTiinisterial or Christian communion with one another than either of those parties have with Christians of other denominations ; and they are so equally balanced in point of power, that for years past it has been uncertain, until the General Assembly was fully organized, which of those parties would predominate in that body." Yet they now claim to be a clear tnajority. Suppose they are, on what principle can they claim to trample on the minority? Another objection is, that Mr. Cleaveland should have addressed the chair. This is a most extraordinary position. The moderator determines to keep every thing from the house, a member rises to displace him for that cause, and the motion must be made to this very moderator! It is too glaringly erroneous to admit of serious argument. Why in all cases affecting the moderator or presiding officer, personally, the miction is put by some one else. Why, if under the circumstances of the case, the moderator refusing every thing, thumping with his hammer, crying out order, &c., Mr. Cleaveland had put that motion to the moderator, the next motion of his friends should have been to send him to a mad house. In the minutes of 1835, page 7, on the question of removing the mode- rator, the question was put, not by the moderator, but by Dr. Ely. There is a case in the Digest, page 332, in which the moderator being interested in a question before the Assembly, withdrew, and Dr. M'Knight took the chair, without, as far as appears, any ques- tion being put. In the case cited from Gray, the house directed the clerk to put a motion. The motion that the clerk put, must have been made and put by a member. In this case, the moderator clearly would not have put it; it is ridiculous to suppose he would. Nor would the clerks have put the question. They were combined with the moderator, and like him, it would have been absurd to ask them, to put the question, when the very next motion was to remove the clerks themselves. The motion was personal to the clerks as well as to the moderator. A member must put it. It was the only proper course. Really, gentlemen, it seems to me unnecessary to answer all these objections, but I must do it to satisfy my clients, and you must excuse me. The next objection is, that the motion was not to appoint a mo- derator, but that Dr. Beman take the chair. Now, four-fifths of the witnesses say, that the motion was to appoint the moderator. The constitution, however, says, "take the chair;" and in common sense, there is no difference. The force and substance of the mo- tion is, to put another in the place of the moderator. I come, now, to the next objection. The New School did not do what they wanted the other side to do. After choosing a mode- 501 rator and clerks, they did not repeat ihe same motions which they had previously made. Now the object of the New School was to secure an entire organization of all the members; to get all on the roll. Mason and Gilbert, as soon as they were chosen, did add these excinded members to the roll. They checked from Krebs* roll, and then added the others. They put them together; they considered it the roll in their hands, and it was the roll. There was, therefore, no need of a motion to compel the clerks to do what they were willing to do, and actually did. There was no motion to put Joshua Moore on the roll, yet Krebs put him on. So Mason and Gilbert put these on without a motion. We have thus their own practice to confirm ours. But they say we cannot consider it a roll, unless the commissions are in the hands of the clerks. This is idle, gentlemen. Why, displacing the clerks is not a reorganization. It is only a continuance of the old organization. They took up the business where the old clerks left it. Can it be seriously contended, that the house cannot go on against a refractory clerk, unless by main strength they take him by the shoulders, and force the papers from him 1 Can he thus destroy the body? The next objection is, that these motions are entirely out of or- der. This is a grand doctrine for the Old School members! There is some question as to what Dr. Elliott called for; they allege that he only said, " the next business was to appoint a committee of elec- tions ;" that is to say, no motion can be made to compel the clerks to do their duty. Nothing can be permitted to be done, the object of which is to prevent an organization without the excinded members. Every thing must be in our power. They must wait till we take order thereon ; let them come on their knees, be exa- mined on experimental religion, doctrine and church government. The whole was based on these excluding acts; and are we to be told at this time of day, in this land of law, that such acts are valid and operative? Were these commissions irregular? No. I ask every honest man, as well as religious men, if they were to be ex- cluded by those acts? By the rule of the Assembly, the committee could not be appointed till the roll was completed. It is the next business after the house is thus ready for business; that is, after all are on the roll. This attempt to violate all right, must give the house the right to displace these officers, in the view of all sane men. Let us have the converse of the proposition. Let us sup- pose that our bull had gored their ox. Suppose sixty Old School commissioners like Joshua Moore, had presented themselves to New School clerks, who refuse to put them on the roll, and go on and organize partially, by which means they get a preponderance, meaning to carry their measures, and allow them to get in only as the New School clerks please. They present themselves, and say to the moderator, that the clerks had refused to put them on the roll. Would the moderator have said, "the next business is to ap- point a committee of elections?" No, gentlemen. He would say, the clerks have not reported all; he would read the rule, that the clerks shall report all that are regular, and till all are thus reported, 502 the house is not ready for the business of appointing a com- mittee of elections. But there is another objection. It is said the house did nothing wrong, if the clerks and moderator did. Why, gentlemen, we don't pretend that the house did any thing wrong. It was the moderator and clerks, and for their wrong the house displaced them. If any did not choose to vote, it is no matter. And, gentlemen, we go much further than that. Suppose the majority had voted down the propositions, then the minority, being a quorum, would have a right to organize on the true principles, at the nearest convenient spot, admitting all the members. To say a delegated body has power, by a majority, to bind and manacle the minority hand and foot, is against all law. To organize an unlawful assembly, is a matter of great importance. It may become an assembly de facto. Its acts might be binding till questioned on direct review. The minority, however, must organize on the principle of admitting all; and, in this case, if they had chosen to come to Washington Square, to vote us down, they had a right to do it, on questions of business, but not to exclude. But they never did so. It has not been shown that there was a majority to do this. They never got the assent of a majority, in 1838, to the acts of 1837. They dared not put the motions to the house. They determined to force them through, against the majority. The next objection, gentlemen, is, that the question was not re- versed. And here the gentlemen lay much stress on the not read- ing of Cleaveland and Beman's depositions. These depositions could be read on the other side, and, depend upon it, if they con- tained evidence that the questions were not reversed, or any other evidence in favour of the defendants, they would have read them. As I before said, there was the same reason for not reading them, as for not reading Dr. Nott's, on the other side. They say, too, that Mr. Cleaveland must know what he said. But, according to their own account, he was so agitated as not to be more likely to re- member than others. He did not read the paper; he spoke partly extempore, and the substance is on the minutes. There are too many witnesses who say the question was re- versed, to leave a shadow of doubt. There were also negative votes from that quarter of the house. Dr. Elliott says he heard some noes. It must have been reversed. Dr. Hill, too, whose tes- timony on this point must prevail, says he heard noes, and he gives the reason for his remembering it. He thought the Old School would not vote on it; if they did, they would vote it down. The testimony on this point is distinct and abundant. There can be no doubt. Witness after witness says he heard the question put, and heard noes; but there was a majority of ayes. When a number of witnesses say they did hear, others saying they did not hear do not contradict it. It is a rule of evidence, that the affirmative testi- mony prevails. Suppose a man walking up Chestnut street with an umbrella in his hand. Some persons say they saw the umbrella, and give reasons for remembering it; others say they did not see it; can there be any doubt whether we should believe that the man had an umbrella? 503 Another objection is, that we should have waited till they had organized, and then applied to be received ; and the first counsel on the other side, said they would have received us, and killed the fatted calf and feasted together. In the heat of his commendable zeal, and with the eloquence which we cannot but admire, he persuades himself, and thinks to persuade you, that if you give him a verdict, still they will lei us in and kill the fatted calf for us. This, too, after the acts of 1837; the pledging of the clerks; their conduct in 1838, even lo their statistics; after all this, if we could believe that they would let us in, our credulity miaht call forth the exclamation of the Roman orator — o "Oh judgment ! thou art fled to brutish beasts. And men have lost their reason." It is also objected, that there were two moderators in noniinn- tion, and there ought to have been a call of the roll, and a division. Dr. Elliot in nomination ! No. There was no question but whether he should be displaced. There was no other nomination than Be- man, and on their own principles, the question need not be re- versed. But they say there was no time for debate. Well, did any body want to debate ? Ah ! but Mr. Cleaveland prevented it, by saying he would proceed in the shortest possible time, &c. This, gentlemen, was only an apology to Dr. Elliott. It was saying that there was nothing personal to him, but if any had interfered, they could have debated. No one offered to debate. No one rose to debate. Has any one of all this long list of Old School witnesses said he wanted to debate? Not one. If any one wished to debate, he should have arisen for that purpose, and an opportunity would have been given. They further object, that when Dr. Fisher was appointed, the rules were not read to him. Now, gentlemen, you vi'ill recollect that the witnesses said that Dr. Beman did announce to Dr. Fisher his election, and did declare that he was to be governed by the rules to be adopted. You will attend to one circumstance. It was not formerly the practice to re-adopt the rules. They were consi- dered permanent rules. Then it was proper to read the rules to the house, through the moderator. As soon, however, as they act- ed upon the idea that they were not the rules till they were adopted, it ceased to be proper to read them. This old parliamentary prac- tice, that the rules were not binding till they are re-adopted, was in- troduced on Mr. Breckinridge's suggestion. A change in the prac- tice of reading should, of course, follow. It would be nonsense to read the rules which are not rules. But, gentlemen, these small matters are of no importance whatever. It is idle to waste your time on frivolous points like these. What difference does it make, whether a man rise or sit, in making a motion, or whether there be a little noise, or not. If the motion is fairly passed, such mat- ters do not vitiate. The next, and the last objection is, that the motion was not put to the house in so loud and distinct a voice that members could vote understandingly 504 Was the motion distinct and audible? There are a host of wit- nesses whosay it was loud. Mr. Patton, Mr. Gilbert, Mr. Norris, the Episcopalian, (by the way, I wonder how they came to find him !) was near the door in a crowd, in the very nucleus of the Old School men, and one of their own witnesses; he said it was very loud. No one denies it. If we bring witnesses from every part of the iiouse, who say they heard it, it must have been audible. Now, Mr. Gilbert, in the south-east corner, among the Old School, heard it. Mr. Elmes, in the soutli-west, heard every thing, till his atten- tion was called to the Old School disturbance. Mr. Grimell heard it all, clearly; he was near the Old School, who were whispering. He was the one who turned to them and said, "that was pretty conduct for ministers." He is unimpeached; the fact that Dr. l^hillips and others did not notice it, does not invalidate his testi- mony. Mr. Norris, in the south-west door, heard; Mr. Dingey, in the gallery, heard all, till the appointment of Fisher, and then he was coming down stairs, and did not hear for that reason. Now, these witnesses who did hear, fully establish the fact that the motion was audible. Why did not the Old School brethren hear? Because of the noise on their part of the house. The moderator's hammer. Cries of "shame!" "order!" "What disgraceful proceedings!" "Can nothing be done to prevent it?" "I have done all I can." (/oughing, scraping, &c. It was very natural that they should not hear. Dr. Phillips only says he did not hear. He found himself saying, in an under tone, "order!" "order!" "Can we not have order?" They must have been agitated themselves, and could not observe it. They also went on and transacted business. Their own minutes (page 8) say of the time vv'hile Mr. Cleaveland was speaking : " Dur- ing which, the Rev. Joshua Moore, from the Presbytery of Hunt- ingdon, presented a commission, which being examined by the Committee of Commissions, Mr. Moore was enrolled, and took his seat. " It was then moved to appoint a Committee of Elections to which the informal commissions might be referred." And this mo- tion Dr. Elliott, in his testimony, says, that he, as moderator, enter- tained. Here was the reception of a member, and a proposition for a com- mittee of elections, during thet imeof Mr. Cleaveland's proceedings. Not only did the commissioners to the Assembly make disturb- ance, but Dr. Miller also, a man of great mildness and politeness of manners and respectability of character, went out of himself, and though not a member, cried out, " What a disgraceful proceeding." Mr. Breckinridge was twice on the floor, and you find one of them, Mr. Boardman, vising with the Pagan maxim in his mouth, " Whom God wishes to destroy, he first makes mad." He so far forgot the propriety of his character and situation, as to apply this to his bre- thren. Now all this was done, to prevent what? A perfectly paci- fic proceeding, the whole object of which was to eflect a legal and constitutional organization of the General Assembly. While they are explaining their object, apologising for their course to Chris- tian brethren, and trying to bring in 50,000 communicants, 200,000 505 members of congregations, and 500 ministers, they are toid by a brother, *'your God wishes to destroy you; he has made you mad." And this is said to his brethren I They had worshipped together and sat together for years, but because they stand on constitutional ground, for the rights of their brethren and of the church, they are thus denounced. Another reason for not hearing was, they did not wish to hear. " There are none so bUnd as those who do not wish to see." So none are so deaf as those who do not wisli to hear. Mr, Breckinridge, Wilson and others say they did not try to hear. No man has said he wanted to vote and could not. If you lake the testimony of the witnesses, you will have no difficulty in asceriain- ing why the Old School did not hear and others did hear, — there is no need of impeaching character or credit. There was a strong sympathy with the one side or the other. The Old School having the opinion which ihey had, that it was all wrong and disorderly, attended to the nioderator, and of course did net hear the others. They, on the other hand, who believed it was all regular, they wanted to hear, and they did hear. There is no reason to believe the New School parly were disorderly, they only voted a hearty and emphatic aye, and rose. Take their own wit- ness, Professor M'Lean, of the Old School. He says, there was iiot more disorder than was necessary for such a proceeding. The disorder, he says, consisted in its being against the calls to order of the moderator, that is, it was, in his opinioii, out of order. But suppose there was some disorder, what could they do? Their only course was to go back to the middle of the church a few steps. They could not go forward. The conduct of the moderator and «"lerks prevented it, the resolution of the trustees prevented it. If in the case in New York they might go into the street, they might surely go back a few feet. You must think, gentlemen, from the evidence, that they did all they could to do right, and preserve order and prevent disturbance. Suppose some could not hear. Why nine-tenths of the business of the House of Representatives is done when a part of the members cannot hear from conversation or other causes, and if necessary the question is repeated. If, instead of trying to put down the movement, they had said they wished to hear, the question would have been repeated. It is too late now to say they did not hear. But, gentlemen, in bringing this subject to a close, there is one remark made on the other side, to which I will call your attention. They say there are other suits, suits against individuals which ought to have been tried first. If there be such suits, gentlemen, let indi- viduals attend to their own business. We have nothing to do with them. We say that here we go for the whole church. We say and contend that all are entitled. The other side say part are out of the Presbyterian Church. That question could be easily tried in such a case as this. We make that issue, and if we had taken an individual suit, they would have said, why not bring a q^io icarranto and try the general question. Trover will not lie. A mandamus will not lie, it is impracticable. A member one year, is not a mem- ber the next. The sessions are short. There could be no trial. 43 506 We do not bring this suit against Dr. A. Green, who has been so •often alkided to on the other side. If we succeed, all are in the church, — Old School as well as New, Dr. Green and all. We seek to exclude no one ; Dr. Green will be as before, in the en- joyment of all his ecclesiastical rights. It takes from him a mere temporal office, which would be belter in the hands of a layman. Gentlemen, I wish to see it decided, whether men can be thus cut off and stripped of their rights. In Pennsylvania, I think, there can be no hesitation as to the decision, judging from the current of de- cisions heretofore. And I trust there is firmness enough in her courts and juries, to pass with strict impartiality upon the rights of the parties in this cause. Mr. Wood having concluded his argument at an early hour on Monday the 25th of March ; request was made to the Court, on be- half of one of the jurors, that on account of sudden and distressing sickness in his fatnily, the jury might be discharged till to-morrow, before receiving the charge of the court. Judge Rogers said that he was ready to address the jury; but that in view of the consideration named, the indulgence could be granted with the consent of the parties. The indulgence was granted, and the Court adjourned. CHARGE OF THE COURT. Tuesday, March 26. At the opening of the Court this morning, the Hon. Molten C. Rogers addressed the jury as follows : Gentlemen of the Jury, — In the course of the remarks which 1 shall make to you in relation to the cause now to be submitted to you, I shall endeavour to present all the points having a bearing on the case. I shall omit all mere collateral points which have been introduced by counsel on either side. My anxiety is to obtain your unbiased opinion on ihe facts in the case, on which it is your province alone to determine. My remarks will be full and decided on those points, on which I consider it my duty to expound to you the law applicable to the case. If in any views of the law, I err, there will be no difficulty in having that error corrected before a higher tribunal. Your closest attention is now desired to the points in this deeply interesting case. Before the year 1758, the Presbyterian churches in this country were under the care of two separate synods and their respective presbyteries; the Synod of New York and the Synod of Philadel- phia. In the' year 1758 these synods were united, and were called "the Synod of New York and Philadelphia." This continued until the year 1788, when the General Assembly was formed. The synod was then divided into four synods ; the Synod of New York and 507 New Jersey, Philadelphia, Virginia, and the Carolinas ; of these four synods the General Assembly was constituted. In 1803, the Synod of Albany was erected. This synod has been from time to time sub-divided, and the Synods of Genessee, Geneva and Utica have been formed. The Synod of Pittsburgh has been also erected, out of which the Synod of the Western Reserve has been formed. These constitute the four excinded synods, viz : the Synods of Genessee, Geneva, Utica and the Western Reserve. The General Assembly was constituted by every presbytery, at their last stated meeting preceding the meeting of the General As- sembly, deputing to the General Assembly commissioners in certain specific proportions. The Westminster Confession of Faith is part of the constitution of the Church. The constitution could not be altered, unless two- thirds of the presbyteries, under the care of the General Assembly, propose alterations or amendments, and such alterations or amend- ments were agreed to by the General Assembly. The form of government was amended in 1821. The General Assembly now consists of an equal delegation of bishops and elders from each presbytery in certain proportions. The judicatories of the church consist of the session, of the pres- byteries, of synods, and the General Assembly. The church-session consists of the pastor, or pastors, and ruling elders of a particular congregation. A presbytery, of all the minis- ters and one ruling elder from each congregation within a certain district. A synod is a convention of bishops and elders, including, at least, three presbyteries. And the General Assembly of an equal delegation of bishops and elders, from each presbytery, in the fol- lowing proportions, viz: each presbytery consisting of not more than 24 ministers, sends one minister and one elder; and each presbytery, consisting of more than 24 ministers, sends two minis- ters and two elders; and in the like proportion for every 24 minis- ters in any presbytery. The delegates so appointed, are styled Commissioners to the General Assembly. The General Assembly is the highest judicatory of the Presby- terian Church. It represents, in one body, all the particular churches of this denomination of Christians. In relation to this body, the most important undoubtedly are the various presbyteries; for, as was before said, the General Assembly consists of an equal delegation of bishops and elders from each of the presbyteries. If the presbyteries are destroyed, the General Assembly falls, as a matter of course, as there would no longer be any constituent bodies in existence, from which delegates could be sent to the General Assembly. The presbyteries are essential features in the form of government in another particular, for before any overtures or regulations, pro- posed by the General Assembly to be established as constitutional rules, can be obligatory on the churches, it is necessary to transmit them to all the presbyteries, and to receive the returns of at least a majority of them in writing, approving thereof. 508 A synod, as has been before observed, is a convention of bishops and elders v^'ithin a district, including at least three presbyteries. The synods have a supervisory power over presbyteries, but unlike presbyteries, as such they are not essential to the existence of the Genernl Assembly. If every synod in the United States were ex- cinded and destroyed, still the General Assembly would remain as the hijjhest tribunal in the church. In this particular there is a vital difference between presbyteries and synods. The only connexion between the General Assembly and the synods is, that the former has a supervisory power over the latter. Having thus given you an account of such parts of the form of church government as may, in some aspects of the cause, be mate- rial, I shall now coll your attention to the matter in issue. This pr'oceeding is what is called a " Quo Warranto.''* It is issued by the Commonwealth, at the suggestion of James Todd and others, against Ashbel Green and others, to show by what authority they claim to exercise the office of Trustees of the General Assembly of the Presbyterian Church in the United States of America. I must here remark, that it is not only an appropriate, but the best method of trying the issue in this cause. It is admitted, that until the 24th of May, 1838, the respondents were the rightful trustees ; but it is contended by the relators, that on that day, the 24th of May, 1838, in pursuance of the act of in- corporation, the General Assembly of the Presbyterian Church changed one-third of the trustees, by the election of the relators in the place and stead of the respondents. On the 28th of March, 1799, the Legislature of Pennsylvania de- clared Ashbel Green and 17 others, (naming them,) a body politic and corporate, by the name and style of Trustees of the General Assembly of the Presbyterian Church in the United States of America. The sixth section provides that the corporation shall not, at any time, consist of moi-e than 18 persons; whereof, the General As- sembly may, at their discretion, as often as they shall hold their sessions in the state of Pennsylvania, change one-third in such man- ner as to the General Assembly may seem proper. It was the intention of the Legislature, by the act of incorpora- tion, to provide for the election of competent persons, who, as an incorporated body, might, with more ease and in a better manner, manage the temporal affairs of the church. It is only in this aspect that we have cognizance of the case. In this country, for the mutual advantage of church and state, we have wisely separated the ecclesiastical from the civil power. The court has as little inclination as authority to interfere with the church and its government, farther than may be necessary for its protection and security. It is only as it bears upon the corpora- tion, which is the creature of the civil power, that we have any right to determine the validity, or to construe the acts and resolu- tions, of the General Assembly. Although neither the members of the General Assembly, as such, nor the General Assembly itself, are individually or aggregately members of the corporation, yet the Assembly has power, from 509 time to time, as they may deem proper, to change the trustees, and to give special instructions for their government. They stand in the relation of electors, and have been properly denominated in the argument, quasi corporate. The trustees only are the corpora- tion by the express words of the act of the Assembly. Unhappily, differences have arisen in the church, (the nature of which it is not necessary for us to inquire into,) which have caused a division of its members into two parties, called and known as the Old and New School. These appellations we may adopt for the sake of designating the respective parties, the existence of which will have an important bearing on some of the questions involved in this important cause. It gives a key to conduct which it would be otherwise difficult to explain. The division continued to increase in strength and virulence until the session of 1837, when certain decisive measures, which will be hereafter stated, were taken by the General Assembly, which at this time was under the control of members, who sympathise, (as the phrase is,) with the principles of the Old School. At an early period, the Presbyterian Church, at their own sug- gestion, formed unions with cognate churches, that is, with churches whose faith, principles and practice, assimilated with their own, and between whom there was thought to be no essential difference in doctrine. On this principle a Plan of Union and correspondence was adopted by the Assembly in 1792, with the General Association of Con- necticut, with Vermont in 1S03, with that of New Hampshire in 1810, with Massachusetts in 1811, with the Northern Associate Presbytery in 1802, and with the Reformed Dutch Church, and the Associate Reform Church in 1798. These conventions, as is stated, originated in measures adopted by the General Assembly in 1790 and 1791. The delegates from each of the associated churches not only sat and deliberated with each other, but also acted and voted by virtue of the express terms of the union. In further pursuance of the settled policy of the church to extend its sphere of usefulness, in the year 1801, a Plan of Union between the Presbyterians and Congregationalisls was formed. The plan, which was devised by the fathers of the church to prevent alienation and to promote harmony, was observed by the General Assembly without question by them, until the year 1835, a period of thirty-four years. At that time it was resolved by the General Assembly, that they deemed it no longer desirable that churches should be formed in their Presbyterian connexion, agreeably to the plan adopted by the Assembly and the General Association of Connecticut, in 1801. They, therefore, resolved that their brethren of the General Asso- ciation of Connecticut be, and they hereby are, respectfully re- quested to consent that the said plan shall be, from and after the next meeting of that Association, declared to be annulled. And afso resolved, that the annulling of said plan shall not in any wise 43* 510 interfere with the existence and lawful association of churches which have been already formed on this plan. To this resolution no reasonable objection can be made, and if the matter had been permitted to rest here, we should not have been troubled with this controversy. It had not then occurred to the Assembly that the Plan of Union was unconstitutional. The resolutions are predicated on the belief that the agreement or com- pact was constitutional. They request that the Association of ^Connecticut would consent to rescind it. It does not seem to have been thought that this could be done without their consent. And moreover, the resolution expressly saves the rights of existing churches which had been formed on that plan, I must be permitted to regret, for the sake of peace and harmony, that this business was not suffered to rest on the basis of resolutions which breathe the spirit of peace and good feeling. But unfortu- nately the General Assembly, in 1837, which was then under an- other influence, took a diflierent view of the question. "As the 'Plan of Union,' adopted for the new settlements, in 1801, was originally an unconstitutional act on the part of that Assembly — these important standing rules having never been sub- mitted to the presbyteries — and as they were totally destitute of authority as proceeding from the General Association of Connecti- cut, which is invested with no j)ower to legislate in such cases, and especially to enact laws to regulate churches not within her limits; and as much confusion and irregularity have arisen from this un- natural and unconstitutional system of union, therefore it is resolv- ed, that the Act of the Assembly of 1801, entitled a ' Plan of Union/ be, and the same is hereby abrogated." See Digest, pp.297 — 299. The resolution declares the Plan of Union to be unconstitutionah 1st, because those important standing rules, as they call them, were not submitted to the presbyteries; and secondly, because the Gene- ral Association of Connecticut was invested with no power to legis- late in such cases, and especially to enact laws to regulate churches not within their limits. The Court is not satisfied with the force of these reasons, and does not think the agreement, or Plan of Union, comes within the words or spirit of that clause in the constitution which provides, that be- fore any overture or regulations shall be proposed by the General Assembly to be established as constitutional rules shall be obliga- tory on the churches, it shall be necessary to transmit them to all the presbyteries, and to receive the returns of at least a majority of them approving thereof. Nor is it, in the opinion of the court, in conflict with the constitution before its amendment in 1821, which provides that no alteration shall be made in the constitution unless two-thirds of the presbyteries under the care of the General Assembly propose alterations or amendments, and such alterations or amendments are agreed to by the Assembly. It was a regulation made by competent parties, and not intended by either as a constitutional rule; nor was it obligatory on any of the Presbyterian Churches within their connexion. Those who were competent to make it, were competent to dissolve it without 511 the assent of the presbyteries, as such, which could not be done, were it a constitutional rule, within the meaning of the constitution. Whether one party may dissolve it, without the consent of the other, it might be unnecessary to decide. My opinion is that they can. The Plan of Union is intended to prevent alienation, and to promote union and harmony in the new settlements. Jt is not a union of the Presbyterian Church with a Congrega- tional Church, or churches, but it purports to be, and is, a Plan of Union between individual members of the Presbyterian and Con- gregational churches, in that portion of the country which wiis then denominated the New Settlements. It is advisory and recon)- mendatory in its character — has nothing obligatory about it. A Congregational church, as such, is not by force of the agreement incorporated with the Presbyterian Church. It has no necessary connexion with it; for it is only when the congregation consists partly of those who hold the Congregational form of discipline, and partly of those who hold the Presbyterian form, and there is an appeal to the presbytery, (as there may be in certain cases,) that the Standing Committee of the Congregational church, consisting partly of Presbyterians and partly of Congregationalists, may, or shall attend the presbytery, and may have the same right to sit and act in the presbytery as a ruling elder. And whatever may have been occasionally the instances to the contrary, this I conceive to be the obvic)US construction of the regulation. That part of the agreement was intended as a safeguard, or protection of the rights of all the parties to be ajETected by it, without any design to confer upon the Standing Committee all the rights of a ruling elder. I view it as a matter of discipline, and not of doctrine, the effect of which is to exempt those members of the different communions, who adopted it, from the censures of the church to which they belong, and particularly the clerical portion of them. The Court is also of the opinion, that after an acquiescence of nearly forty years, and particularly after the adoption by the pres- byteries of the amended constitution of 1821, the Plan of Union is not now open to objection. The plan has been recognized by the presbyteries at various times, and in different manners, under the old and amended constitution. It has been acted on by thern and the General Assembly in repeated instances, and is equally as obliga- tory as if it had received the express sanction of the presbyteries in all the forms known to the constitution. That acquiescence gives right, is a principle which we must admit. The constitutionality of the purchase and admission of Louisiana as a member of the Union, was doubted by some of the wisest heads and purest hearts in the country; but he would be a very bold man, indeed, who would now deny that state, and Missis- sippi, Arkansas, and Missouri, to be members of the confederation. In the memorable struggle for the admission of Missouri into the Union, this objection was never taken. Nor am I satisfied with the second reason, that the General Association of Connecticut was invested with no power to legislate in such cases, and especially to enact laws to regulate churches not 512 ■within their limits. Although the General Assembly had the right to annul the Plan of Union without the assent of the General Asso- ciation of Connecticut, yet I must be permitted to say, that after having acted on the plan, and reai)ed all the advantages of it, it is rather discourteous, to say the least of it, to attempt to abrogate it without the consent of the other party. Ahhough the Association may be an advisory body, yet it does not appear that any difficulty has been started by them, or by the churches under their control. All parties acquiesced in it for thirty-six years, and it would be too late for either now to object to its validity. Nor is there any thing in the idea that they have no power to regulate churches not within their limits. This is a matter of consent, and there is nothing to prevent churches in one state from submitting themselves to the ecclesiastical government of churches located in another state. The Presbyterian Church has furnished us with repeated examples of this kind. So far from believing the Plan of Union to be unconstitutional, I concur fully with one of the counsel, that, confined within its legiti- mate limits, it is an agreement or regulation, which the General Assembly not only had power to make, but that it is one which is well calculated to promote the best interests of religion. If, as is stated, the standing committee of Congregational churches have claimed and exercised the same rights as ruling elders in pres- byteries, and in the General Assembly itself, it is an abuse which may be corrected by the proper tribunals; but surely that is no argument, or one of but little weight, to show that the Plan of Union is unconstitutional and void. Although, in the opinion of the Court, the Assembly have the right to repeal the Plan of Union without the consent of the Gene- ral Association of Connecticut, yet it was unjust to repeal it, with- out saving the rights of existing ministers and churches. But this is a matter, the propriety of which they must determine. But whether the Plan of Union be constitutional or not, is only material so far as it is made the basis of some subsequent resolu- tions, to which your attention will now be directed. At the same session, and after failure of an attempt at compro- mise, the character of which has been the subject of much com- ment, the General Assembly "resolved, that by the abrogation of the Plan of Union of 1801, the Synod of the Western Reserve is, and is hereby declared to be, no longer a part of the Presbyterian Church.'"' " Resolved, That in consequence of the abrogation by this Gene- ral Assembly of the Plan of Union of 1801, between it and the Ge- neral Association of Connecticut, as utterly unconstitutional, and therefore null and void from the beginning, the Synods ofUtica, Geneva, and Genessee, which were formed and attached to this body, under and in execution of said Plan of Union, be, and are hereby declared to be, out of the connexion of the Presbyterian Church in the United States of America, and that they are not, in form or in fact, an integral portion of said church." 513 These resolutions refer only in name to the four synods, and if we were called on for the construction alone, it nnight be well doubted whether they were intended, or could be made to include, the presbyteries within their limits, the constituents or electoral bodies of the General Assembly itself. I should be inclined, for the purpose of protecting their rights from a resolution so penal in its character, to say that they were not included, either in the spirit or the words of the resolution. But this construction we are pre- vented from giving by their declarative resolution. It is there in effect said, that it is the purpose of the General Assembly to de- stroy the relations of all said synods and all their constituent parts to the General Assembly and to the Presbyterian Church in the United States. In the fourth resolution it is declared, that any pres- bytery within the four synods, being strictly Presbyterian in doc- trine and order, who may desire to be united with them, are hereby directed to make application, with a full statement of their case, to the next General Assembly, which will take proper order thereon. There is no mistaking the character of these resolutions. It is an immediate dissolution of all connexion between the four synods and all their constituent parts, and the General Assembly. They are destructive of the rights of electors of the General Assembly. The connexion might be renewed, it is true, by each of the presby- teries making application to the next General Assembly, but they are at liberty to accept or refuse them, provided they, the General Assembly, deem them strictly Presl)yterian in doctrine and order. As they had the right to admit them, they had the right, also, to refuse them, unless, in their opinion, they were strictly Presbyterian in doctrine and order. By these resolutions, the commissioners, who had acted with the General Assembly up to that time, were deprived of their seats. At the same time, four synods, with twenty-eight presbyteries, were cut off from all connexion with the Presbyterian Church. The Genera! Assembly resolved, that because the Plan of 1801 was unconstitutional, those synods and their constituent parts are no longer integral parts of the Presbyterian Church. You will observe, that I have already said the Plan of Union is constitutional. That reason therefore fails. They have resolved that it is not only unconstitutional, but that it is null and void from the beginning. Instead of a prospective, they have given their reso- lutions a retrospective effect, the injustice of which is most manifest. But admitting that the Plan of Union is unconstitutional, null and void, from the beginning, I cannot perceive what justification that furnishes for the excinding resolutions. The infusion of Congrega- tionalists with the presbyteries, or the General Assembly itself, does not invalidate the acts of the General Assembly. They had a right, notwithstanding the charter, which recognizes elders and ministers as composing the Presbyterian Church, to perform the functions committed to them by the constitution. And among them to esta- blish and divide synods, to create presbyteries, as in their judgment the exigencies of the church might demand. Accordingly, we find that the four synods, and all the presbyte- 514 ries attached to them, have been formed since the year 1801. The Assembly creates the synods, and the synods the presbyteries. Sometimes the Assembly creates the presbyteries — a course pur- sued with some of the presbyteries which have been excinded. They have been established since, but this is no evidence that the four excinded synods were formed and attached to the General As- sembly under, and in execution of, the Plan of Union. The com- pact, as has been before observed, was intended for a different pur- pose, and imposed on the Presbyterian Church no obligation to admit churches formed on the plan, as members. It was a volun- tary act, and not the necessary result of the agreement; nor does it appear that the presbyteries were formed and incorporated with the church on any other terms or conditions than other presbyte- ries, who were in regular course taken into the Presbyterian con- nexion. Rut, gentlemen, when resolutions of so unusual a character, so condemnatory, and so destructive of the rights of electors, the con- stituents of the Assembly itself, are passed, we have a right to require that the substantial forms of justice be observed. But so far from this, the General Assembly, in the plenitude of its power, has undertaken to exclude from all their rights and privileges twenty-eight presbyteries, who are its constituents, without notice, and without even the form of trial. By the resolutions, the com- missioners, who had acted as members of the General Assembly for two weeks, were at once deprived of their seats. Four synods, twenty-eight presbyteries, five hundred and nine ministers, five hundred and ninety-nine churches, and sixty thousand communi- cants, were at once disfranchised and deprived of their privileges in this church. This proceeding is not only contrary to the eternal principles of justice, the principles of the common law, but it is at variance with the constitution of the church. This is not in the nature of a legislative, but it is a. judicial pro- ceeding to all intents and purposes. It is idle to deny that the pres- byteries within the infected districts, as they are called, were treated as enemies and oflTenders against the rules, regulations, and doc- trines of the church. If there is any thing that a man values, it is his religious rights. And of this opinion were the General Assembly themselves; for, only a few days before, they came to the following resolutions : " Resolved, 1. That the proper steps be now taken to cite to the bar of the next Assembly, such inferior judicatories as are charged by common fame with irregularities. "2. That a special committee be now appointed to ascertain "what inferior judicatories are thus charged by common fame, pre- pare charges and specifications against them, and to digest a suita- ble plan of procedure in the matter, and that said committee be requested to report as soon as practicable." Nothing further appears to have been done in this matter in the General Assembly, for, after failure of the attempt at compromise, 515 they appear to have discovered a much more expeditious, if not a more agreeable method of eflecting their object. ■I have said that excinding the presbyteries without notice, and without trial, was not only contrary to the common law, but it was contrary to the constitution of the church. And it is only necessary to open the book of discipline to see how very careful the fathers of the church have been to secure to the accused a full, fair and im- partial trial. Notice is given to the parties concerned, at least ten days before the meeting of the judicatory. The accused are informed of the names of all the witnesses to be adduced against them. When the charges are exhibited, the time, places and circumstances are stated, if, by possibility, they can be ascertained; citations are is- sued, signed by the moderator or clerk, by order, and in the name of the judicatory. Judicatories are enjoined to ascertain, before proceeding t' trial, that their citations have been duly served. And, to secure a fair and impartial trial, the witnesses are to be examined in the presence of the accused, who is permitted to ask any question tending to his own exculpation. The judgment, when rendered, is regularly en- tered on the records of the judicatory. If these proceedings, before judgment, are requisite in the case of the meanest member of the church, (the omission of which, by any of the inferior judicatories, would call down on the offenders the severest censure of the General Assembly,) it is inconceivable that similar precautions are not necessary to protect the rights of presbyteries, which consist of many individuals, from the injustice, violence, and party spirit of the General Assembly itself. Constitu- tions are intended to protect the weak, the minority, from the injustice of the majority. The majority, for the most part, are able to protect themselves. It is the minority that need protection, and for this purpose it is necessary to encircle them with at least all ihe forms of justice. This, as has been before observed, is a judicial act; and if a regular trial had been had, and judgment rendered, the sentence would have been conclusive. We should not have attempted to examine the justice of the proceeding; but inasmuch as there have been no citations, and no trial, I instruct you, that the resolutions of the General Assembly excinding the four Synods of Utica, Geneva, Genessee, and the Western Reserve, are unconstitutional, null and void. The judgments of all courts, whether ecclesiastical or civil, whe- ther of inferior or superior judicatories, are absolutely void when rendered without citations, and without trial, and without the oppor- tunity of a hearing. But admitting this to be in the nature of a legislative proceeding, still it is void ; for I deny the right of any legislature to deprive an elector of his right to vote, either with or without trial. This is a power which can only be exercised by a judicial tribu- nal, who act under the sanction of an oath, who examine witnesses 516 on oath, and who conform to all the rules of evidence established by the usages of the law. If the Legislature of Pennsylvania should dare, by resolution or otherwise, to deprive one of you, gentlemen, of your right as an elector, it would be the duty of the Court to declare such an act null and void. I am unable to distinguish the difference between the two cases. Whether the General Assembly are the proper tribunal, in the first instance, for the trial of offences, or whether the presbyteries are amenable to their judicatories, in this or any other mode, it is unnecessary to decide; as the Court are clearly of the opinion, that it they have the right, it must be exercised with the same rules and regulations which are applicable to the inferior judicatories. Personal process in each case may be " tedious, agitating and trou- blesome in the highest degree ;" but it is obviously not impossible. jMor does it strike me as impossible to devise a plan under the con- stitution to correct heresy and schism, without resort to personal process in each case. But if it were so, this is an excuse, but it is no justification of the excinding resolutions. Offenders, according to the rules of the church, may be brought before a judicatory by common fame. But I perceive no power given to convict on common fame. You will remark, gentlemen, that the presbyteries, by the consti- tution of the church, are the electors of the General Assembly. Their right of representation has been taken away without trial, without the examination (as far as we know) of a single witness. Whether these presbyteries have Congregational churches in their connexion, is not now material. It is possible that had a trial been had, that point, which is deemed so important, might have been dis- proved. At any rate, it would seem a singular reason for dissolv- incr a whole presbytery, that one church was contaminated with false and heretical doctrines, or doctrines not strictly Presbyterian ; that a whole presbytery should be ejected, because a single church was governed without the benefit of ruling elders. It would be a reason, perhaps a good one, for cutting off that church from the Presbyterian connexion, but none for casting out the whole presby- tery. * And this, gentlemen, would be particularly severe on the members and congregations, when the fact was known at the time the presbytery was created that such connexion did exist. If, however, after having condemned this (as it is called) unnatu- ral connexion, the presbyteries should obstinately continue to adhere to it, then they would justly expose themselves to the severest cen- sures of the church. But whether there is any mode known to the constitution, by which a presbytery can be deprived of the right of representation on the floor of the General Assembly, is a point which is not necessary to the case, and which I shall not undertake to decide. J have been requested by the respondents' counsel to instruct you, that the introduction of lay delegates from Congregational es- tablishments into the judicatories of the Presbyterian Church, was a violation of the fundamental principle of Presbyterianism, and a 517 conlradiclion of the Act of the Legislature of Pennsylvania, incor- porating the Trustees of the church: that any act permitting such introduction would therefore have been void, although submitted to the presbyteries. As an abstract question on this point, I give an affirmative answer, although, gentlemen, I am unable to see the bearing it has on the matter at issue in this cause. You have already seen that the Court is of the opinion, that the excinding resolutions are unconstitutional, null and void ; yet this did not of itself dissolve the General Assembly. The General As- sembly was dissolved only at the termination of its sessions. You will perceive in the course of the remarks which I shall have to make to you, that the acts of this Assembly will have an important influence on the proceedings of the Assembly of 1838. The General Assembly of the Presbyterian Church is entitled to decide upon the right claimed by any one to a seat in that body, but unlike legislative bodies, their decision is the subject of revision. Ecclesiastical judicatories are subject to the control of the law. I also instruct you, that a jMandamus would not reach the case, for before the remedy could be applied, the General Assembly would be dissolved, and it would be impossible to foresee whether the next Assembly would persist in their illegal and unconstitutional course of conduct. You will recollect that the commissioners are elected a short time before the meeting of the General Assembly, and that that body, which sits but a feu weeks for the transaction of business, is dissolved, and a new General Assembly is called at the termination of the sessions. Having thus disposed of the proceeding of the General Assembly of 1837, we will now direct our attention to the acts of 1838. It will perhaps conduce to a proper understanding of the somewhat extraordinary proceedings which then took place, to advert to the practice of the General Assembly in times of less excitement and interest than existed on that occasion. After the business of the Assembly is finished, the General As- sembly is dissolved, and another General Assembly is directed to be chosen in the same manner, to meet at a time and place desig- nated by the Assembly. The moderator, or in case of his absence, another member ap- pointed for the purpose, opens the next meeting with a sermon ; he is directed to hold the chair till a new moderator be chosen. As til is is for the purpose of organization, it is not necessary that he be a member, nor is it necessary that the clerks should be mem- l)ers, who are requested to attend for the same purpose. ^y the practice of the Assembly, in pursuance of a regulation for that purpose, the staled and permanent clerks are a standing com- mittee on commissions. To them are submitted the commissions of members; they decide on them in the first place, and if unex- ceptionable in form or substance, they are enrolled as members of the house : if exceptionable, they report them as such in a sepa- rate list. The moderator, after divine service, opens the session with prayer. He takes his seat as moderator, and proceeds to or- ganize the house. The first business in order is the report of the 44 518 clerks, who are ihe Committee on Commissions, who make a report stating on the roll those who are members, and designating either in the roll, or in a separate list, those whose commissions have been examined and found defective either in form or in substance. The next business in order is to appoint a committee on elections from the list of members who have been enrolled. To that committee are referred the commissions of such persons as may claim seats, whose commissions have been examined and rejected. It is usual to appoint the committee on elections on the morning of the first day of the session, and they, unless in cases of difficulty, report to the house in the afternoon, and the house decides upon the propriety of the report. It would seem also to be the practice, that when a commissioner has omitted to hand in his commission to the clerks, before the meeting of the Assembly, he may do so in the As- sembly, and the Committee of Commissions may add his name to the roll of members. After the house is organized, they proceed to the choice of a moderator, and stated and permanent clerks, to preside over their deliberations, and to keep their records during their session. You will observe that I am speaking of the rules of practice in the sessions of 1837 and 1S38. As the church increased in numbers, and, I may add without giving offence, after the spirit of contention increased also in the same or a greater ratio, the simplicity of the ancient practice gradu- ally changed. The changes have been stated with great clearness by one of our venerable fathers, but as we have to do with existing rather than ancient rules, it is not necessary for me to notice them. The jury will recollect that the Court has decided that the ex- cinding resolutions of the General Assembly of 1837, were uncon- stitutional, null and void. It results from this opinion, that the commissioners from the presbyteries within the bounds of these synods, had the same right to seats in the General Assembly as the members from other pres- byteries within the jurisdiction of the Assembly, and were liable to be dealt with by them in the same manner as commissioners from other presbyteries. It was under these circumstances they presented themselves, with commissions in proper form, to Mr. Krebs and Dr. M'Dowell, the clerks of the former Assembly. They not only rejected their com- missions, but refused to put their names on the roll at all. I shall not now stop to inquire whether these gentlemen were, or were not, pledged to the course they thought proper to pursue, nor into the question whether they were the judges of the constitution- ality of an act of a former Assembly, as I am clearly of the opinion, and I so instruct you, that they grossly erred in refusing to place their names on the list of rejected applicants. They were the ccm- rr>ittee on commissions to whom such questions are in the first place reierred. It was their duty to decide on the propriety of the appli- cation and to refer the decision to the further action of the House, 519 by adding their names to the roll of members whose commissions had been examined and rejected. They cannot consider commissions, in other respects regular, as alien and outlawed, merely because they proceeded from pres- byteries that had been unconstitutionally put out of the pale of the church without citation and without trial. It is, therefore, the opinion of the Court, that in this there was a palpable violation of the rights of the proscribed commissioners. And this, gentlemen, was the second error committed, and which led to the scene of disorder which ensued, so little creditable to a Christian Assemoly. After the moderator, Dr. Elliott, had taken the chair. Dr. Patton addressed the chair, and stated that he had certain resolutions to offer. The moderator decided that he was out of order, that the first business was the report of the clerks, who, you will recollect, "were the committee on commissions. Dr. Patton stated that his motion or resolution had reference to the formation of the roll, that it was his intention to make his motion and have the question taken without debate. The moderator said the clerks were proceeding with their report. Dr. Patton reminded the moderator that he had the floor before the clerks. The mode- rator still decided he was out of order, whereupon Dr. Patton re- spectfully appealed from the decision of the chair. The moderator decided that the appeal was out of order, and stated as a reason for the decision, that there was no House to which ihe appeal could be taken. The Court is of the opinion that the decision of the moderator was correct, for the reason given by him. It is a rule of the As- sembly that no persons shall be permitted to vote unless they are enrolled, and until the report of the committee on commissions it cannot be judicially known who are members of the house, and as such, privileged to take part in the organization. If, however, there ■was a majority for it, arising from the absence of the moderator or the refusal of the clerks to report the roll, there would be no diffi- culty in organizing the Assembly. The decision of the moderator was correct, if the reason assigned w^as the true reason. After this disposition of Dr. Patton's motion, the clerks made a report, omitting, improperly, as has been before stated, the names of the commissioners from the excinded presbyteries, and the mo- derator announced to those who had not presented their commis- sions, that now was the time to present them, and have themselves enrolled. Some of the witnesses say that the moderator announced that, if there were any names omitted, this was the time to present their commissions. The one side say that this was a distinct inti- mation from the moderator himself, that now was the time to pre- sent the commissions of the commissioners from the excinded pres- byteries. The other say it included those only who had not presented their commissions to the clerks. That the only course to be pursued as to those who had presented their commissions and had their claim to be enrolled, refused, was to have their case referred to the com- 520 mittee on elections, on whose report only it would come properly before the Assembly. However the fact may be, and this of course you will decide, at this time Dr. Mason, a member whose seat was uncontested, and who had been reported by the clerks to the house as a member, moved that the names of the commissioners from the excinded sy- nods should be added to the roll. He had the commissions in his hand, and at the time of the motion, stated that they were the com- missions of commissioners, which had been rejected by the clerks. The moderator inquired from what presbyteries those commissioners came. Dr. Mason replied, they came I'rom the Synods of Utica, Geneva, Genesee and the Western Reserve. The moderator de- clared Dr. Mason out of order, or said that he was out of order at that time. Tiie witnesses differ as to the precise expression, but whatever may have been the reason assigned, they all concur that the moderator declared Dr. Mason out of order. Dr. Mason said, that with great respect for the chair, he must appeal from the deci- sion. The appeal was seconded. The moderator refused to put the appeal, declaring the appeal to be out of order. In this stage of the cause it is unnecessary to decide whether the original motion was or was not out of order. I shall put this part of the case on the refusal of the moderator to put the question on the appeal. The question is not whether an appeal may not be out of order, but it is whether this appeal was out of order. If the moderator had put the question on the appeal, it is possible the house might have decided that the original motion was out of order. They might have thought that the matter was properly referable to the committee of elections — that it was a privileged question; or the Assembly might by possibility have taken a different view of the question. And whatever they might have thought and decided, would have been conclusive. But by refusing to put the question, the moderator took all the power to himself over this question. No reason was given by the moderator. It rested simply upon his loill. In the opinion of the Court, it was a dereliction of duty — a usurpation of authority, which called for the censure of the house. He could not then aU lege, as he had done on a former occasion, that there was no house to which the appeal could be taken. At that time, you will recol- lect, that the clerks had made their report, and it was then ascer- tained what members had a right to vote. Had the question on the appeal been allov^'ed, it could then have been ascertained whether a motion had been made for the appoint- ment of the committee on elections. As if is, it is doubtfid whether the motion was made before or after the motion made by Dr. Mason. And here, let me remark, thai I look upon the refusal of the clerks to put the names of the commissioners on the roll, and this refusal of the moderator to put the question on an appeal to the house, as most unfortunate. If the excitement did not then commence, yet it, with the uproar and confusion which ensued, from this time greatly increased. Af- ter the refusal of the moderator to allow an appeal, the Rev. Miles 521 P. Squier arose and said, that he had presented his commission to the clerks, which they had refused to receive. The moderator asked from what presbytery he came. He said from tlie Presby- tery of Geneva. The moderator asked if it was within the bounds of the Synod of Geneva. He said it was. The moderator then replied, we do not know you. The precise meaning and import of these words has been the subject of comment. It will be for you to give them such weight as you think them entitled to, in another part of this cause. And here, let me remark, that the witness had not a right, (what- ever injustice he may have suffered,) either to speak or vote on any question before the house. He had not been reported as a member by the clerks; and the rules of the General Assembly required, that before a member speak or vote, he must be enrolled. To this time the witnesses substantially agree in their statement. There was but little noise, and but little confusion. Every person saw, and every person heard, all the transactions in the Assembly. And here, gentlemen, it will be your solemn duty, respectfully, but firmly, to decide upon the conduct of the moderator. Was he performing his duty as the presiding officer of the house in its organization? or was he carrying out the unconstitutional and void proceedings of the General Assembly of 1837, which cut off from the body of the Presbyterian Church, 4 synods, 28 presbyte- ries, 509 ministers, and near 60,000 communicants, without citation and without trial? I put the question to you because it is the opinion of the Court, that the General Assembly has a right to depose their moderator, upon sufficient cause. This power is necessary for the protection of the house, other- wise the moderator, instead of being the servant would be the master of the house. There is nothing in the constitution of the church that restricts or impairs the right. It applies to all moderators, whether moderators for the session, or moderators for organization. The right is, perhaps, less ques- tionable in the latter, than in the former case. He is a ministerial as well as a judicial officer. Nor do I think that they are restrained in their choice to a mode- rator of a former year, who may be present. That rule applies only to ordinary cases, when the moderator of the last year is not in at- tendance, or is unable, from some physical reason, to discharge the duties of the office. It does not apply to the peculiar and extraor- dinary circumstances of this case. The deposition of a moderator, and the election of another in his place, it appears, is not without precedent in the history of the church. There is one thing certain, that the deposition of a moderator, and the election of another, if in other respects regular, will not of itself vitiate the organization. After Mr. Squier had taken his seat, upon the emphatic declaration of the moderator, " we do not know you," Mr. Clcaveiand arose. Mr. Cleaveland held in his hand a paper, from which he read, at 44* 522 the same time accompanying it with remarks not on the paper. It is not distinctly in evidence what he did say, but in substance it was perhaps ihis : That as the commissioners to the General Assembly of 1838, from a large number of presbyteries, had been refused their seats, and as we have been advised by counsel learned in the law, that a constitutional organization of the Assembly must be secured at this time and in this place, he trusted it would not be considered as an act of discourtesy, but merely a matter of necessity, if we now pro- ceed to organize the General Assembly of 1838, in the fewest words, the shortest time, and with the least interruption practicable. Mr. Cleaveland then moved that Dr. Beman, of the Presbytery of Troy, be moderator, or, as some of the witnesses say, that he take the chair. The motion being seconded, the question was put by Mr. Cleaveland, and was carried, as the witnesses for the relators say, by a large majority, and by this they mean that a large majo- rity of voices voted in the alHrmative. The question w-as reversed, and, as the same witnesses say, there were some voices coming from the south-west corner of the church, who voted in the negative. This is denied by the respondents. Dr. Beman, who was sitting in a pew, the locality of which has been described to you, stepped into the aisle and called the house to order. A motion was then made that Dr. Mason and Mr. Gilbert be appointed clerks. There being no others put in nomination, the question was put by the moderator. Dr. Beman, in the affirmative and negative, and there was a majority of voices in their favour. Dr. Beman then stated, that the next business in order was the election of a moderator. A member nominated Dr. Fisher, and no other person being in nonnination, the question was put affirmatively and negatively, and Dr. Fisher was elected by a large majority of voices. There were no negative votes on this nomination; several of the witnesses say he was unanimously elected. Dr. Beman then announced the election of Dr. Fisher as mode- rator, and said, he should govern himself by the rules which might be hereafter adopted. Dr. Fisher stepped into the aisle, moved towards the north end of the church, and called for business; and Dr. Mason and Mr. Gilbert were chosen clerks, no others being put in nomination. Dr. Beman stated that some difficulties had been made by the trustees about the occupation of the church in which they were then sitting. To avoid difficulty, a motion was made to adjourn to meet forthwith at the lecture-room in the First Presbyterian Church. The question was taken on the motion, and was decided in the af- firmative, there being no votes in the negative. The result of this vote was announced by Dr. Fisher, who then stated, that if there were any commissioners who had not presented their commissions, they might then and there attend for that purpose. The members of the house then repaired to the lecture-room of the First Presby- terian Church, proceeded with their business, and on the 24th of May, 1838, elected the relators trustees, in the place and stead of the respondents. 523 This is the relators' case, and here I will direct your attention to some of the points which have been raised by the respondents' counsel. The respondents contend, that Mr. Clcaveland had no right to put the question. They object, also, to the time and manner of putting tlie question. Under one or other of these points I will en- deavour to include the question which has been raised, and which has been argued with such force and with such a variety of illus- trations. Had Mr. Cleaveland a right to put this question? It must be con- ceded, that unless he was authorized to take the sense of the house, the members were not bound to vote upon it. In ordinary cases, it is usual for a member who moves a question, to put it in writing, and deliver it to the speaker, who, when it has been seconded, pro- poses it to the house, and the house are then said to be in posses- sion of the question. But this, the relatois say, is not an ordinary question, but one of a peculiar nature. They allege, that the mo- derator had shown gross partiality and injustice in the chair; that he was engaged in a plan or scheme to carry out the unconstitu- tional and void acts of 1837, which deprived certain commissioners of their seats; that this authorized the house to displace him, and to elect another to discharge the duties which he failed or was un- willing to perform. If this were so, of which you are the judges, Mr. Cleaveland had a right to take the sense of the house on the propriety of the moderator's conduct. It would be worse than useless to require him to put the question on his own deposition, for this the house were authorized to believe he would refuse to per- form, as he had failed in the performance of his duty before. The law compels no person to do a vain or nugatory thing. The law maxim is, '' Lex neminem cogit ad vana, seu impossihilia." Nor, gentlemen, was it necessary that it should be taken by clerks, if they, as well as the moderator, were engaged in the same plan, to deprive members of seals to which they were justly and constitu- tionally entitled. It is the opinion of the Court, that a member, although not an officer, is entitled to put a question to the house in such circumstances. The motion which Mr. C'leaveland made, after explaining his ob- ject, was either that Dr. Beman be moderator, or that Dr. Beman be called lo the chair. It is of no consequence in which form the motion was made. They are substantially the same. The motion amounted to this: that Dr. Elliott, who occupied the chair, should be deposed, and that Dr. Beman should be elected chairman and moderator in his stead. It was a pertinent question, easily under- stood, and not calculated to mislead the dullest member of the Assembly. It was in proper form and in proper time : for, gentle- men, it was not necessary to precede it by a motion that the house should now pr(»ceed to the choice of a moderator. All these requi- sites are substantially comprised in the motion which was made. There was nothing in the question, or in the manner of putting it, which was disorderly, or which should have led to disorder. Mr Cleaveland put the question to the house, which, under certain cir- 524 cumstances, of which I have already said you are the judges, he had a right to do. In the course of his remarks, he turned himself partly round from the moderator; but this, so far as any point of law is involved, is of no sort of consequence. It is also contended by the respondents, that the claim of members to seats, according to the standing order of the house, was referable to the committee on elections, and further, that the house cannot enter into business until the organization is complete. The latter point the Court an- swers in the negative. There is no doubt the house may elect a moderator, although the seats of some of the members are contest- ed. In general, they would prefer to await the report of the com- mittee on elections; but this would be a matter of discretion. The right to seats would be as well, if not better decided, after the house was organized by the election of a moderator, as when it was in its inchoate or incipient state. Such an objection would not vitiate the organization, whatever cause there might be on the part of those who had been deprived of seats, to complain of the precipitation of the Assembly in proceeding to business, particularly if done with a view of preventing them from partaking in the business. In deciding on the first point, and others which have been raised by the respondents, it is necessary to advert to the nature of the questions themselves. Dr. Mason moved that the names of certain members who had been unconstitutionally and unjustly deprived of seats in the As- sembly, should be added to the roll. The motion of Mr. Cleave- land, and the subsequent resolutions or motions, were the conse- quences of the decision of the moderator, that Dr. Mason's motion was out of order, and the refusal of the moderator to allow an ap- peal to the house. The right of members was unjustly invaded, and from this moment it became a question of privilege, which over- rides all other questions whatever. A question of privilege is always in order, to which, privileged questions, such as the appointment of a committee of elections, must give way. The cry, therefore, of " order," from the moderator, or from any member whatever, under such circumstances, would be disorderly. Two inconsistent rights cannot exist at the same time, and it is obvious that if a member, or the moderator, may put a stop to a proceeding which involves in it the conduct of the moderator himself in the discharge of his high functions, and a question of privilege, by the cry of order, it would be an easy and effectual mode of destroying the rights of members in any deliberative assembly. It is usual, when it is in- tended to prevent a member from proceeding with a motion, to rise to order, and a requisition is then made by the moderator that the member take his seat. It is the opinion of the Court, that Dr. Ma- son had the right to make his motion before the appointment of the committee on elections. Indeed, I know of no other mode of get- ting this question before the committee on elections, except by bringing it before the house, who might either decide it themselves, or, if they thought proper, refer it to that committee, in whose re- port it would again come before the house. In this point, I wish you distinctly to understand, that it is the opinion of the Court, and 525 that I so instruct you, that if you beHeve that the conduct of the moderator and clerks was the result of a preconcerted plan with a portion of the members to carry out the unconstitutional and void acts of 1837, which deprived the members from certain presbyteries of seats in the Assembly, then, in this particular, the requisitions of the law have been substantially complied with. That the fact that Mr. Cleaveland put the question, instead of the moderator, the cries of order when this was in progress, the omis- sion of some of the formula usually observed when there is no contest and no excitement, such as standing in the aisle, instead of taking the chair occupied by the moderator, not using the usual insignia of office, putting the question in an unusual place, and the short time consumed in the organization of the house, and three or more members standing at the same time, will not vitiate the organ- ization, if you should be of the opinion that this became necessary from the illegal and improper conduct of the adverse party. It is a singular point, gentlemen, that this part of the respondents' case rests upon standing rules which were not then in existence. You will recollect, that each Assembly adopted its own rules; in- deed, both the relators and respondents have appealed to these rules. I will remark, that the roll of members reported by Mr. Krebs and Dr. M'Dowell was the roll of the house. As such, it was virtually in the possession of the clerks afterwards chosen, provided they were regularly and duly elected. It is the opinion of the Court that the existence of a house competent to perform all the functions of a General Assembly, does not depend on the observance or nonob- servance of the standing order of the house. You, however, must take this opinion with the qualification that you believe that the house had been substantially organized for the transaction of bu- siness; that you should believe that the deviation from the ac- customed course was the necessary result of a preconcerted plan unconstitutionally to exclude the members from the ex- cinded presbyteries from their seats in the Assembly. And here, gentlemen, let me request your particular attention to the point in issue. The relators say that they are trustees regularly appointed by the General Assembly of the Presbyterian Church. In other words, they affirm that the house which assembled in the lec- ture-room of the First Presbyterian Church was the General As- sembly of the Presbyterian Church. This is an affirmative propo- sition, which the relators are bound to support. The question is not which is the General Assembly, but whether they are the General Assembly, and as such had a right to elect the relators trustees. This allegation the relators must sustain to your satisfaction, otherwise your verdict must be in favour of the respondents. The respondents strenuously deny that the portion of brethren who assembled in the First Presbyterian Church are the General Assembly. On this point, both parties, the relators and respondents, have put themselves upon the country; and you, gentlemen, are that country. Let me now briefly call your attention to the relators' case. The 526 ffloderator, Dr. Elliott, proceeded to organize the house. The clerks, Mr. Krebs and Dr. M'Dowell, reported to the house the roll of members, omitting those who were not entitled to seats. Dr. Pat- ton offered a resolution on the formation of the roll. This motion was declared by the moderator to be out of order; also his appeal was declared to be out of order. Dr. Mason then moved that the names of the members from the presbyteries within the excinded synods should be added to the roll. This motion was declared by the moderator to be out of order. An appeal from that decision was demanded, which was also declared to be out of order. On motion of Mr. Cleaveland, the former moderator was deposed for sufficient cause, and Dr. Beman was elected moderator, and Mr. Gilbert and Dr. Mason were elected clerks. After organiza- tion. Dr. Fisher was elected moderator, and Mr. Gilbert and Dr. Mason elected clerks for the Assembly. The Assembly being thus organized by the appointment of officers, adjourned to meet forthwith at the lecture-room of the First Presbyte- rian Church, and accordingly met in pursuance of the adjourn- ment, and on the 24th of May, 18.38, in due form, elected the relators trustees. This, gentlemen, is a summary of the plaintiffs' case; and if the facts are as stated, your verdict should be render- ed in favour of the relators. The respondents deny that the portion of brethren who assembled in the First Presbyterian Church, are the General Assembly. Their objection, in addition to the points which have been alrea- dy stated, is, that there was not a full and free expression of the opinion of the house. They allege that the various motions for the appointment of moderator and clerks, and for the adjournment, were not carried by a majority of the house. It is hardly necessary to observe that spectators had no right to Tote, nor had members not enrolled by the clerks, although entitled to seats, a right to vote. But notwithstanding this, it is the opinion of the Court, that if, after deducting those who voted and were not entitled to vote, there was a clear majority in favour of several motions, this irregularity, or, if you please, something worse, would not vitiate the organization. The presuinption is, that none but qualified persons voted ; but there is proof that some voted who were not enrolled, yet this of itself will not destroy the relators' right of action. You, gentlemen, will, in the first place, inquire whether there was a majority of affirmative voices of members entitled to a vote. If there was not, there is an end of the question, and your verdict must be in favour of the respondents. But if there was a majority, you will further inquire whether the question on the several motions was reversed. If they were not reversed, your verdict must be in favour of the respondents; for in that case it is very clear the members had no opportunity of showing their dissent to several motions or proposi- tions which were submitted to them. 527 These, gentlemen, are questions of fact for your decision. I will content myself with referring to the evidence and the arguments of the counsel, and at the same time observing to you that it is your duty to reconcile the testimony of your case, and with one other observation, that affirmative testimony is more to be relied on than negative testimony. And here, gentlemen, I wish you distinctly to understand, that it is the majority of those who were entitled to vote, and who actually voted, that is to be counted on the various questions which were submitted to the house. I wish you also to understand, that it is the majority of members that had been enrolled, that must determine this question. When there is a quorum of members present, the moderator can only notice those who actually vote, and not those who do not choose to exercise their privilege of voting. " When- ever," says Lord Mansfield, "electors are present, and don't vote at all, they virtually acquiesce in the decision of those who do." And with this principle, agrees one of the rules of the General Assembly itself, which must be familiar to every member. " Members (30th rule,) ought not, without weighty reasons, to de- cline voting, as this practice might leave the decision of very in- teresting questions to a small proportion of the judicatory. Silent members, unless excused from voting, must be considered as ac- quiescing with the majority." This is not only the doctrine of the common law, of the written law, as you have seen, but it is the doctrine of common sense; for without the benefit of this rule, it would be almost impossible, cer- tainly very inconvenient, to transact business in a large delibera- tive assembly. Of this rule, gentlemen, we have had very lately a most memo- rable instance. The fundamental principles of your government have been altered; a new constitution has been established by a plurality of votes; forty thousand electors, who deposited their votes for one or other of the candidates for governor, did not cast them at all on that most interesting and important of all questions. But notwithstanding this, the amended constitution has been proclaimed by your executive, and recognized by your legislature and by the people, as the supreme law of the land. This, gentlemen, has been stigmatized as a technical rule of law, a fiction and intendment in law. It is sufficient for us, gentlemen, that it is a rule of law. We must not be wiser than the law ; for if we attempt this, we endanger every thing we hold dear; our life, our liberty, our property. Nor, gentlemen, can we know anything of any fancied equity as contradistinguished from the law. The law is the equity of the case, and it must be so considered under the most awful responsibility, by this court and this jury. In my opinion, a court and jury can never be better employed than when they are vindicating the safe and salutary principles of the common law. But the respondents further object that the design of the New School brethren was not to organize a General Assembly according to the forms prescribed by the constitution, but that they intended, 528 and it was so understood by them, to effect an ex parte organiza- tion, with a view to a peaceable separation of the church. If this was the intention, and was so understood at the time, the house which assembled in the First Presbyterian Church, cannot be re- cognized as the General Assembly, competent to appoint trustees under the charter. Having chosen voluntarily to leave the church, they can no longer be permitted to participate in its advantages and privileges. If a member, or a number of individuals, choose to abandon their church, they must at the same time be content to re- lincjuish all its benefits. But this is a question of fact, which you must decide. In this part of the case, the burthen of proof is thrown on the respondents. They must satisfy you that such was the intention of the New- School party, in organizing the house, and adjourning to the First Presbyterian Church. But granting that the motion of Mr. Cleave- land was in order, that Drs. Beman and Fisher, and the clerks had a majority of votes, that the intention was to organize the General Assembly, and that they did not intend an ex parte organization, the respondents say that such was the precipitation and haste of these proceedings, their extraordinary and novel character, the noise, tu- mult and confusion, that they and the other members of the house had no opportunity of hearing and voting, if they had wished to do so, and that therefore this is an attempt at organization, which is null and void. It is very certain, that it'individual members of a deliberative as- sembly, by trick and artifice, by surprise, noise, tumuli and confu- sion, carry such a question as this, it ought not, it cannot be re- garded. The members must have an opportunity to debate, to vote if they desire it, and for this reason it is, the negative question must be put, and that the several questions must be reversed. It will be for you to say, whether the members had this opportu- nity. To this part of the case, I request your particular attention. If you believe that the several motions were made and reversed, that they were carried by a majority of affirmative voices, what- ever may be your opinion of the relative strength of the two parties in the Assembly, your verdict must be for the relators. I hold it to be a most clear proposition, that silent members acquiesce in the decision of the majority. It is of no sort of consequence for what reason they were silent; whether from a previous determination, or otherwise. The efl'ect is the same, provided they had an oppor- tunity of hearing and voting on the question. It is not necessary that all should hear or vote. If persons who are members of an assembly, by surprise, by noise, or violence, carry such a question, such a vote cannot be con- sidered as the deliberate sense of the assembly; but when members are aware of the nature of the proceedings, and choose to treat them with contempt, or to interrupt the business themselves, by stamping, noise, talking, cries of order, or shame! shame! or re- questing silence with a view to interruption, or attending to other business, when they ought to be attending to this, they cannot be permitted afterwards to allege that they had no opportunity to vote. 529 They cannot take advantage of their own wrong, or their own folly. ]n such a case, their silence, or, if you choose, noise, shall be view- ed as an acquiescence in the vote of the majority. But when mem- bers are prevented from hearing and understanding the question by the noise and confusion, or by the indecent haste with which the business is conducted, the organization is not such as can give it any legal validity. It is of no consequence whether the members are prevented from voting understandingly on the question by the persons engaged in conducting the business, or by the spectators. But when it comes from the members of the other party, they shall not be permitted to object, when they themselves are the causes of the difficulty. If the facts be so, they (the members of the Old School,) did not hear, because they would not hear; they did not vote, because they would not vote. They caused the disorder, and let them reap the bitter fruits of their injustice. The court, and you, gentlemen of the jury, have nothing to do with consequences, with fancied majorities and minorities, but with majorities legally ascertained. We are placed at this bar under an awful responsibility to do jus- tice, without regard to the numerical strength of the contending parties. If you, gentlemen, believe that the questions were not reversed, that they were not carried, that the members of the Assembly had not an opportunity of hearing and voting upon them, your verdict should be in favour of the respondents. But if, on the other hand, you believe they intended to organize the Assembly; that the ques- tions were severally put; that the noise, tumult and confusion which prevailed in the Assembly, were the result of a preconcerted plan, or combination, or conspiracy between the clerks, the mode- rator, and the members of the Old School party, to au«;tain the un- constitutional and void resolutions of 1837, which deprived mem- bers of seats to which they were justly entitled, your verdict should be in favour of the relators. And here I do not wish to be understood as having expressed, or even intimated an opinion as to the facts of the case. The facts are for you, the law is for the Court. And now, gentlemen, I entreat you, as you shall ansicer to God at the great day, that you discard from your minds all partiality, if any you have, fear, favour and affection; that you decide this in- teresting cause according to the evidence, and that you remember that the law is part of your evidence. The Court, and you, gentle- men, are placed at this bar under an awful responsibility to do JUSTICE. VKRDICT. The jury, after a short absence, returned into Court and rendered their verdict, which, as read to them, and ordered to be recorded, is, "THAT THEY FIND THE DEFENDANTS GUILTY." Some question was made by counsel for the defendants, in regard to the form of the verdict, when it was announced from the bench, that the Chief Justice had prescribed this as the technical form of 45 530 the verdict, (under the issue in this case,) if the jury should find that the relators were the trustees of General Assembly; that is, that the Assembly which held its sittings in the First Presbyterian Church, was the true " General Assembly of the Presbyterian Church in the United States of America," under the charter. SUPREME COURT IN BANK. On the 29th of March, 1839, F. tV. Huhbell, Esq., for the defend- ants, moved the Court for a rule on the plaintiffs, to show cause why a new trial should not be granted. The rule was granted, and the 17lh of April assigned for hearing the argument. The following papers were filed by the counsel for the defendants. I. Specification of Points on which the Defendants intend to rely, in support of the Motion for a JVew Trial. 1. His honour, the judge, erred in refusing to permit the defend- ants' counsel to cross-examine the plaintiffs' witnesses, touching a plan of action concerted between these witnesses and others, pre- vious to the 17th of May, 1838, for the government, &c., of their conduct, in or on the occasion of the organization of the General Assembly of the Presbyterian Church, for the year 1838. 2. In refusing to permit the defendants to give evidence of the existence of the concert, mentioned in the first point, and to explain the nature and character thereof. 3. In not charging the jury upon certain points submitted to him in writing, by the defendants' counsel; which points so submitted, are hereto annexed. 4. In refusing to permit the defendants to give evidence that the churches of the synods, which were disowned in 1837, had not con- tributed to the funds under the control of the General Assembly. 5. In not permitting the defendants to prove the existence of Con- gregational or mixed churches, within the bounds of the disowned synods, and in connexion with those synods. 6. In not permitting the defendants to prove: — That many churches and ministers had complied with the terms by which the disowning resolutions, or acts, were qualified: that they had ap- plied to the presbyteries most convenient to their respective locali- ties, and had been admitted into them. 7. In permitting the plaintiffs' concluding counsel, to read pas- sages from the minutes of the Old School General Assembly of 1888; which had not been given in evidence, particularly as the plaintiffs had objected to the defendants reading the whole of these minutes in evidence, and this objection had been sustained by the Court. 531 8. In rejecting the deposition of Dr. Eliphalet Nott, except such pan merely as narrated the transactions that took place at the or- ganization of the General Assembly of 1838. 9. In charging the jury, that the acts of the General Assembly of the Presbyterian Church, of the year 1837, by which the synods of the Western Reserve, Genessee, Geneva and Utica, and their com- ponent parts, were disowned or declared to be no longer in eccle- siastical connexion with the Presbyterian Church, were unconstitu- tional and void. 10. In charging the jury, that the Plan of Union (so called,) of 1801, was constitutional. 11. In charging the jury, that the two reasons assigned by the General Assembly of 1837, declaring that Plan of Union to be un- constitutional, were not sufficient reasons; these reasons were as follows, viz : 1st. Because they were important standing rules, and adopted without being submitted to the presbyteries. 2dly. Because the General Association of Connecticut was invested with no power to legislate in such cases, and especially to enact laws to regulate churches not within their limits. 12. In charging the jury that said agreement or Plan of Union, did not come within the words or spirit of that clause of the constitu- tion of the Presbyterian Church, which provides: "that before any overture or regulation proposed by the General Assembly to be es- tablished as constitutional rules, shall be obligatory on the churches, it shall be necessary to transmit them to all the presbyteries, and to receive the returns of at least a majority of them in writing, ap- proving thereof." Nor was it (his honour charged the jury,) in conflict with the constitution, before its amendment in 1821, which provides, " that no alteration shall be made in the constitution, un- less two-thirds of the presbyteries under the care of the General Assembly, agree to alterations or amendments proposed by the Ge- neral Assembly." 13. In charging the jury, " That the Plan of Union" wa,s a regu- lation made by competent parties, and not intended by either as constitutional rules ; nor, was it obligatory on any of the Presbyte- rian churches in their connexion- 14. In charging the jury, " That that part of the agreement, (Plan of Union,) which provides that the standing committee of the churches, consisting partly of Presbyterians, and partly of Congre- gationalists, may or shall attend the presbytery, and may have the same right to sit and act in the presbytery, as a ruling elder, was intended as a safeguard to the rights of all the parties to be af- fected by it." 15. In charging the jury, that "I view it" (Plan of Union,) " as a matter of discipline, and not of doctrine; the effect of which is to exempt those members of the different communions who adopted it, from the censures of the church to which they belonged; and particularly the clerical portion of them." 16. In not permitting the defendants to prove that there were, at the time of the disowning acts, numbers of Congregational churches, 532 and churches on the mixed plan, within the bounds of those synods so disowned ; and that these churches were represented in the presbyteries connposing these synods, by unordained, lay delegates. 17. In not permitting the defendants to prove, that at the date of the disowning acts, there were, within the bounds of the disowned synods, numerous churches on the mixed and Congregational plan; formed under the Act of Union of 1801, and connected, by means of that act, with the Presbyterian Church. 18. In charging the jury, " That after an acquiescence of near forty years, and, particularly, after the adoption by the presbyte- ries, of the amended constitution of 1821, the Plan of Union is not now open to objections. The plan has been recognized by the presbyteries at various times, and in ditlerent manners, under their old and amended constitution. It has been acted upon by them and the General Assembly, in repeated instances; and is equally as obligatory as if it had received the express sanction of the presby- teries, in all forms known to the constitution." 19. In taking from the jury the question of acquiescence by the presbyteries, in the Plan of Union of 1801. The facts of recogni- tion, or forbearance, which enter into the idea of acquiescence, were facts for the jury. To support the position of acquiescence, it was necessary that the presbyteries which were declared to have acquiesced, should have had full knowledge, or the means of know- ledge, that there were churches and presbyteries formed on the Plan of Union, and claiming rights under the Plan of Union. The existence of such knowledge, or means of knowledge, is a fact for the determination of the jury. 20. In charging the jury, that the " Plan of Union" did not pro- vide that the delegates from standing committees from mixed churches under the Plan of Union to the presbyteries, should exer- cise the same rights as ruling elders in those presbyteries. 21. In charging the jury tlat it was unjust in the General As- sembly to repeal the Plan of Union, without saving the rights of ex- isting ministers and churches. 22. In charging the jury that there had been acquiescence in the rights claimed under the Plan of Union for thirty-six years; there being no proof that any of the churches formed upon that plan, had existed thirty-six years. 23. In charging the jury in regard to the fourth resolution; which provides the method by which churches, ministers, and presbyte- ries, within the disowned synods, who are strictly Presbyterian in doctrine and order, may continue their connexion with the General Assembly and the Presbyterian Church; inasmuch as he represents, that it only provides for presbyteries, and om.its the provisions in favour of churches and ministers. 24. In charging the jury that the resolutions of 1837, disowning the four synods, were in the nature of judicial proceedings, and that the presbyteries within the four synods, were treated as crimi- nals and offenders against the rules, regulations, and doctrines of the church. 25. In charging the jury in regard to the resolutions of 1837, 533 *' That the proper steps be now taken to cite to the bar of the next Assembly, such inferior judicatories as are charged, by common fame, with irregularities," &c. ; ihat nothing further appears to have been done in this matter in the General Assembly. 26. In charging the jury that the proceedings of the General As- sembly of 1837, in regard to the four synods, were not, nor was any part of them, conclusive in this collateral inquiry. 27. In charging the jury that to effect the objects proposed by the disowning resolutions of 1837, it was necessary that citations should have issued to the presbyteries within the bounds of these synods; and that all other judicial process prescribed in the book of dis- cipline, should have been resorted to. 28. In charging the jury, that the disowning of these synods was depriving electors of their right to vote; and in declaring that it was not distinguishable from an attempt by the legislature of Penn- sylvania, by resolution, or otherwise, to deprive one of the jurors of his right as an elector. 29. In charging the jury, that " The presbyteries, by the consti- tution of the church, are the electors of the General Assembly; their right has been taken away without trial, and, so far as we know, without the examination of a single witness." 30. In charging the jury, that it is now immaterial whether the presbyteries in the disowned synods have Congregational churches in their connexion or not; and that it was possible, if a trial had been had, that fact might have been disproved; "at any rate, it would be a singular reason for ejecting a whole presbytery, because a single church was governed without the benefit of ruling elders." 31. In charging the jury, that although he was of opinion that the introduction of lay delegates from Congregational Establish- ments, into the judicatories of the Presbyterian Church, was a vio- lation of the fundamental principles of Presbyterianism, and in con- tradiction of the act of the legislature of Pennsylvania incorporating the trustees of the church; and that any act permitting such intro- duction would be void, although submitted to the presbyteries; yet he was unable to see the bearing of this proposition on the matter in issue in this cause. 32. In charging the jury, that although the General Assembly is entitled to decide on the right claimed by any one to a seat in that body ; yet that, unlike legislative bodies, their decision is the subject of revision; and that ecclesiastical judicatories are subject to the control of the law. 33. In charging the jury, that a mandamus would not reach this case; for, before the remedy could be applied, the General Assem- bly would be dissolved, and it would be impossible to foresee whe- ther the next Assembly would persist in their illegal and unconsti- tutional course of conduct. 34. In permitting evidence to be given on the issue joined in this case, of the proceedings, actings and doings of the General Assem- bly of the year 1837. 35. In charging the jury, " That the committee of commissions grossly erred in refusing to put the names of the commissioners 45* 534 from the four synods, on the list of rejected applications. It was their duty to decide on the propriety of the apphcation, and to refer the decision to the further action of the house, by adding their names to the roll of members whose commissions had been examined and rejected." " It is, therefore, the opinion of the Court, that in this there was a palpable violation of the rights of the proscribed com- missioners." 36. In referring it to the jury to decide, whether the proper course of those whose commissions had been rejected by the com- mittee of commissions, was to have the same referred to the com- mittee of elections or not. 37. In charging the jury, " that Dr. Elliott's declining to put Dr. Mason's appeal, was a dereliction of duty — a usurpation of author- ity, which called for the censure of the house; that he could not then allege, that there was no house to which the appeal could be taken. At that time, the clerks had made their report, and it was ascertained what members had a right to vote." 38. In repeatedly staling to the jury, "that 60,000 communi- cants had been cut off from the body of the Presbyterian Church," ihere not being any evidence to that effect, 39. In committing to the jury, to find, whether Dr. Elliott "was performing his duty as the presiding officer of the house, or was he carrying out the unconstitutional and void proceedings of the Gene- ral Assembly of 1837." 40. In charging the jury, "that there is nothing in the constitu- tion of the church, which restrains or impairs the right of the house, to depose their moderator for sufficient cause ; whether he be mode- rator for the session or for the organization." 41. In charging the jury, "that the house was not restricted in their choice of a moderator, to a moderator of a former year who may be present; that rule applies only to ordinary cases, when the moderator of the last year is not in attendance, or is unable, from some physical reason, to discharge the duties of the office. It does not apply to the peculiar and extraordinary circumstances of this case." 42. In charging the jury, " that Mr. Cleaveland had a right to make the motion, that Dr. Beman take the chair — that said ques- tion need not, under the circumstances of the case, be put by the clerks, or one of them — that the question amounted to this, viz. that Dr. Elliott, who occupied the chair, should be deposed, and that Dr. Beman should be elected in his stead — that it was a pertinent ques- tion, easily understood and not calculated to mislead tiie dullest member of the Assembly. It was in a proper form and in a proper time: for, gentlemen, it was not necessary, to precede it by a mo- tion, that the house should now proceed to the choice of a modera- tor. All things requisite are substantially comprised in the motion which was made." 43. In charging the jury, "that the refusal (f the moderator to put the appeal was a breach of privilege, in which not only Dr. Mason, but the whole house was interested: they might have pro- 535 ceeded against him for a breach of privilege, or they might depose him on the ground of partiality and injustice." 44. In charging the jury, " there was nothing in the question or in the manner of putting it which was disorderly, or which ought to have led to disorder." 45. In charging the jury, that "the motion of Mr. Cleaveland, and the subsequent resolutions or motions, were the consequence of the decision ot" the moderator that Dr. Mason's motion was out of order, and refusal of the moderator to allow an appeal to the house. The right of members was unjustly invaded, and from this moment it became a question of privilege, which overrides all questions whatever. A question of privilege is alv^^ays in order, to which, privilege questions such as the appointment of a committee of elec- tions, must give way. The cry, therefore, of "order" from the moderator or from any member whatever, under such circumstan- ces, would be disorderly." 46. In charging the jury, that " Dr. Mason had the right to make his motion before the appointment of the committee of elections. Indeed, I know of no other mode of getting this question before the committee of elections, except by bringing it before the house, who might either decide it themselves, or, if they thought proper, refer it to that committee, on whose report it would again come before the house." 47. In charging the jury, " that the fact that Mr. Cleaveland put the question, instead of the moderator; the cries of "order" when this was in progress, the omission of some of the formalities usually observed when there is no contest, and no excitement; such as standing in the aisle, instead of taking the chair occupied by the moderator; not using the usual insignia of office, &c. ; putting the question from an unusual place; and the short space of time which was consumed in the organization of the house; and three or more members standing at the same time; would not vitiate the organi- zation, if you should be of opinion, tliat this became necessary, from the illegal and improper conduct of the adverse party." 48. In charging the jury, "that this part of the respondents' case rests upon standing rules that were not then in existence. You will recollect that each Assembly adopts its own rules." 49. In charging the jury, " that the roll of members reported by Mr. Krebs and Dr. M'Dowell, was the roll of the house. As such, it was virtually in the possession of the clerks afterwards chosen, provided they were regularly and duly elected." 50. In charging the jury, "that the existence of a house compe- tent to perform all the functions of the General Assembly, does not depend on the observance or non-observance, of the standing orders of the house. You must take this opinion with qualifications," &c. 51. In charging the jury, in application to this case, "that affir- mative testimony is more to be relied on, than negative testimony." 52. In charging the jury that the proceedings of the General As- sembly of 1837, had any bearing or operation on the General As- sembly of 1888, or that any design, by any portion of the members of the Assembly of 1838, to carry into effect the acts of the Assem- 536 bly of 1837, could have any effect upon the organization of 1838, or confer any rights upon any person whatever to violate or set aside rules of order. 53. The verdict of the jury is not a proper finding upon the point in issue between the parties. 54. The respondents having pleaded severally, to the information or suggestion filed in this case, and having different defences to the same, the verdict is erroneously given against them jointly. 55. The verdict of the jury is against lavv^ and the evidence. 56. His Honour, the judge, erred in not putting the position of the defendants, in regard to the design of the " New School party," fully to the jury. The defendants contended, among other things, that the " New School party" designed to form an organization, in despite of and against the will of the majority, however expressed ; and that Mr. Cleaveland's motion was not addressed to them, and had they voted negatively on the same, their votes would not have been re- garded. 57. In charging the jury that the real state of the parties as to majority or minority, was in no respect to be regarded, that the majority was only to be known by the vote. (Signed,) F. W. HUBBELL, for Defendants. March 29, 1839. II. Additional Specifications of Points, on which the Defendants will rely on the motion for a new trial. The resolutions adopted by the General Assembly of 1837, were within its jurisdiction, as an ecclesiastical tribunal, and were duly passed; and they are not subject to the control or decision of the courts of justice. The language of the moderator in the preliminary Assembly of 1837, in addressing the I'ev. Mr. Squiers, was not precisely or even substantially the language quoted by the judge. The judge erred in omitting to give due effect (in the proceedings of 1838,) to the fact, that the members did not understand, and could not hear ihe propositions, which are said to have been submitted to them ; and in pronouncing the call to order, by individuals of the Old School party, itself out of order. , The evidence was clear, positive and unquestionable, that no op- portunity was given to the members who attended in 1838, to debate the propositions that are said to have been introduced; yet the judge withdrew the attention of the jury from the true point, which was, that there being no opportunity for debate, whether the proceedings were thereby vitiated. The judge omitted to charge, that in a scene of tumult and dis- order, such as was admitted on all sides to exist, there was neces- sarily suspension of effectual measures, and that any thing which occurred at such a juncture was without operation or effect. The judge charged, that if the organization of the New School party was intended to be ex parte, with a view to a separation, the General Assembly so organized, could not be recognized, &c.; yet he refused to permit evidence to be given by the defendants of the 537 Circumstances that attended that organization, and of the intention of the New School party, as manifested by their preliminary acts and declarations. The judge erred in declaring, that if the members had an oppor- tunity of hearing and voting, the majority of those entitled to vote, and who actually voted, is to be counted; and that it is of no sort of consequence, for what reason the silent members are silent. Whereas, the silence may have proceeded from an inability to know what were the measures proposed, and that inability produced by the precipitancy and disorder of the New School party: and the omission to vote might have proceeded from the calls to " order" on the part of a presiding officer yet occupying the chair. The burthen of proof rested on the party objecting to the resolu- tions of 1837, to show the invalidity of these resolutions; every fair presumption being in their favour; yet no proof whatever was given of the facts alleged in the protest of the New School party, as suf- ficient to impair the resolutions. (Signed,) F. W. HUBBELL, for Defendants. III. Points upon which the Judge was asked to charge the Jury. His honour, the Judge, is respectfully requested to charge the jury on the following points: That the act of the General Assembly of the Presbyterian Church for the year 1837, abrogating the Plan of Union of 1801, was con- stitutional and valid. That the act of that Assembly declaring the Synod of the Western Reserve not to be a portion of the Presbyterian Church, was within the constitutional powers of the General Assembly, and, therefore, conclusive; and not capable of being impeached in this collateral inquiry. That the act of that Assembly declaring the Synods of Utica, Genessee and Geneva, and their constituent parts, to be out of the ecclesiastical connexion of the Presbyterian Church of the United States of America, and that they are not, in form or fact, an inte- gral portion of the said church, was within the constitutional powers of the General Assembly, and, therefore, conclusive; and not capa- ble of being impeached in this collateral proceeding. That the General Assembly of the Presbyterian Church is entitled to decide upon the right claimed by anyone to a seat in that body, or in other words, on any claim of membership. That the General Assembly of 1801, being a representative or delegated body, and a party to the arrangement, called "the Plan of Union" of 1801, any of the succeeding General Assemblies, who are affected in the exercise of their power by that arrangement, are entitled to declare that arrangement void, and so treat it, whenever it bears upon any of the acts or doings of these General Assem- blies; provided the General Assembly of ISOI exceeded the au- thority delegated to it, by entering into that arrangement. And this, independently of the question, whether the General Assembly's powers be judicial or legislative. 538 That the General Assembly having the power to determine on the right or claim of membership, whenever the right of membership is claimed under the " Plan of Union" the General Assembly has a right to treat that "Plan of Union" as void, and to refuse seats to, or to deprive all such persons of their seats who claim under that " Plan of Union." When the constituent, viz., a presbytery, is composed in part of materials furnished by the " Plan of Union," or of other unconstitu- tional materials, or in other words, when it is composed partly of unordained lay delegates from Congregational churches, then the General Assembly, as incidental to the power of judging of the qualifications of those claiming membership, is entitled to require such presbyteries to expurge these unconstitutional materials. That the introduction of unordained lay delegates from Congre- gational Establishments into the judicatories of the Presbyterian Church, was a violation of the fundamental principles of Presbyte- rianism; and in contravention of the act of the legislature of Penn- sylvania, incorporating the trustees of this church; that any act permitting such introduction, would therefore have been void, although submitted to the presbyteries. That the "Plan of Union" contemplated but a temporary aid to the churches formed under it, and guarantied to them no continued connexion with the Presbyterian Church, unless they adopted its discipline and form of government. There is, therefore, no breach of faith, in refusing to such churches a further continuance of con- nexion. That the body which held its sessions in the First Presbyterian Church, in the spring of 1838, have by their own acts acknowledged the continued existence of the General Assembly of 1837, up to its formal dissolution. These acts of acknowledgment, are, 1st. By organizing at the time and place fixed by the decree of that body, on the last day of its session. 2dly. By recognising the validity of an election of trustees by that body, after the Synod of the Western Reserve had been disowned. That the acts of the General Assembly of 1837, being powerless to render void the organization of 1838, are foreign to the issue now trying; except so far as the defendants might have invoked their aid, to explain or justify the acts of the committee of commission- ers in forming the roll of 1838. The General Assembly of 1838, did not reject the delegates or commissioners from the four disowned synods; and did not, in any wise, recognize or adopt these disowning acts of the General As- sembly of 1837. The committee of commissions for the year 1836, possessed the power, under the standing rules of 1826, to determine on the con- stitutionality of the commissions presented to them; and to refuse to put them on the roll for that reason. That, in the exercise of this power, they are only amenable to the General Assembly; and the propriety of their decisions can only be reviewed by that body. That, by the standing rules of the General Assembly, (vide Rules 539 of 1826,) the commissions which were rejected by the committee of commissions, must be referred to a committee of elections. That, by the same standing rules, the first business of the General Assembly, after the Assembly is constituted with prayer, is, to hear the report of the committee of commissions on the roll. That no commissioner has a right to vote, or otherwise partici- pate in the business of the house, until his name is so reported. That until such report is made, there is no house to transact any business, or to entertain any motions or appeals. That the motion of Dr. Patton being made before the committee of commissions had reported, was out of order, irregular, and nuga- tory; as was likewise his appeal, there being no house to entertain the motion or the appeal. That the proclamation or call of the moderator, for any other commissions which had not been presented to the committee of commissions, was part of the process of forming the roll; and the report of that committee cannot be considered as made, until all commissioners had the opportunity afforded by that proclamation, of presenting their commissions to this committee. That Dr. Erskine Mason's motion was out of order. 1st. Because an interruption of this proclamation; not being re- sponsive to it, as the commissions, which he offered, had been pre- sented to the committee of commissions. 2dly. Because the report on the roll was not complete, until those called by the proclamation of the moderator had the opportunity of being enrolled. 3dly. Because the first business of the house, after the report of the committee of commissions, is, by the standing rules of 1826, to appoint a committee of elections. His, Dr. Mason's appeal, was nugatory, until the moderator's proclamation had been answered to, and time had been given for that purpose: for until then, the roll was not completed. Had the appeal been put to the house, Joshua Moore, and it might have been, others who had undisputed commissions, and which they were in the act of presenting, would have been excluded from voting on that appeal. If the refusal to put Dr. Mason's appeal was wrong, it was a breach of that member's privilege; and the remedy was, by a pro- ceeding against the moderator, on a charge of breach of privilege. That the motion of Mr. Cleaveland can, in no sense, be considered such proceeding; for in addition to its want of form, the charge made was the refusal to admit the commissioners from the disown- ed Synods; and not the refusing to put the appeal. If the modera- tor erred in declining to put the question submitted to him by Dr. Mason; it was a breach of privilege on the part of the moderator, and authorized proceedings against him as in other cases of breach of privilege; but did not authorize Dr. Mason, or any other mem- ber, to assume or exercise the functions of the moderator, in doing that which he had declined to do, and that Mr. Cleavelatid's con- duct was a usurpation of those functions, it belonging to the moder- lor alone to put motions. Mr. Squier's motion, or application, was 540 properly treated by the moderator, as his name not having been enrolled, he had no stahis, or right upon the floor of the house; he should have procured an enrolled member to make the motion for him. Mr. Cleaveland's motion was nugatory, void, and a mere dis- order, which neither the Assembly, nor any member thereof, was bound to notice; and being a mere disorder, it could be the founda- tion of no subsequent, regular action, and that for many reasons, viz : 1st. Because there was no error, crime, or misconduct in the Assembly, or its officers, to justify it. 2dly. It professed to proceed on the false position, that certain members had been refused their seats. 3dlv. It was not put by the proper officers : i. e., if not by the moderator, by the clerk. 4lhly. It was made and persisted in under or after a call to order. Sthlv. It was designed and intended, and professed to be a revo- lutionary motion, organizing a secession. Gthly. It was unintelligible, from its indirection. The purpose is now said to be, to rem.ove Dr. Elliott, for a misdemeanor in office ; but the motion made, was to put Dr. Beman in the chair, which did not express tfie true purport of the proceeding ; and was, therefore, deceptious and misleading. 7thly. It was sudden, unexpected and unusual, and gave the members no opportunity of understanding its meaning, purpose or effect. 8thly. It having been put from an unusual place, and not by an officer of the house, it is incumbent upon those who rely upon the rule, that silence is an affirmative vote, to show that every member present had a full opportunity of hearing. 9thly. It was put and persisted in, after and during a motion to appoint a committee of elections, which by a standing order or rule of the Assembly, was to be the^rs^ business of the house after the report of the committee of commissions on the roll. lOthly. The preface by which it was introduced, professed to ad- dress itto a portion of the commissioners of the General Assembly, and professed to be an interruption of proceedings then regularly jirogressing. If it were really intended to be addressed to the whole house, then its terms were deceptive and fraudulent, and cannot affect those who did not vote upon the same. llthly. The question not being reversed, or if reversed, done so suddenly and precipitately, and so immediately followed by another motion, as to give the dissentients no opportunity to vote, the vote upon it can in nowise be considered the act of the General As- sembly. 12thly. It being proved that the dissentients had a large majority, it is incumbent on the party seeking to bind them by the vote upon the question, to show that it was put by the proper person, at a pro- per time, in a proper form, and in distinct, plain, undeceptive and intelligible shape. 541 13lh]y. The rules of order prescribe that the question made by a member be repeated by the moderator before it is put, in order to give the members an opportunity of understanding it. In this case, the moderator did not repeat the question, nor was there any thin^ equivalent to it, as the motion was stated but once, and the question immediately put upon the motion. The organization under Drs. Beman and Fisher, was subject to the same infirmity as that from which they dissented, for the reso- lutions re-admitting the disowned synods was not passed until they had elected their permnnent moderator and clerks. If the refusal of Dr. Elliott to put a motion or an appeal, autho- rize the member aggrieved to put a motion to the house, such irre- gularity must be proportionate to the exigency, i. e., the member aggrieved could himself put that motion, (and no other,) to the house, which had been so refused. The moderator of the Assembly of 1837, was constitutionally the moderator of 1838, until the moderator for ihat year was elected ; and was incapable of being removed until the moderator of the year 1838 was elected. In case the moderator of 1837 was incay»able for any reason of presiding at the organization of 1838, then, by the standing rules of the Assembly, the last preceding moderator present is to preside; and as at the time Dr. Beman was put in the chair there were two more recent moderators present, they, by said standing rules, were entitled to the chair, in preference to Dr. Beman. That the Plan of Union was always subject to be revoked at the will of the General Assembly; either from the nature and charac- ter of the agreement, or from the fact that there was no reciproci- ty; the General Association of Connecticut being invested with no power to legislate in such cases, and especially to enact laws to regulate churches not within her limits, (vide minutes of 1837, page 421.) That said Plan of Union, by introducing unordained lay delegates from Congregational churches, into the presbyteries, which are the constituent bodies, violated fundamental provisions of the constitu- tion of the Presbyterian Church, in those articles of the constitution which provide that the churches shall be governed by ruling elders, and shall be represented in the presbyteries by ruling elders. That this alteration of fundamental articles of the constitution, transcended the powers of the General Assembly, and could only be rendered valid, if at all, by the approval of a majority of the presbyteries. That as no direct approval of this measure, viz. Plan of Union, was ever given by the presbyteries, the same never having been transmitted to them for their approbation, in order to supply this defect by long acquiescence, it must be proved that the acquiescing presbyteries had full and entire knowledge of the exercise of rights under this Plan of Union. That, if the jury believe that a majority of the presbyteries were in regions of country where churches were not formed on the Plan of Union, and the statistical reports from the presbyteries of those 46 542 regions where churches were formed on that Plan, disguised these churches under the denomination of Presbyterian churches; then their continuance for any number of years, is no proof of the acqui- escence of a majority of the presbyteries. In the inquiry touching the constitutionahty of these acts of As- sembly of 1837, disowning the four synods, it is to be taken as proved that the churches composing those synods were Congrega- tional ; the defendants having offered to prove that fact, and the Court having rejected that testimony. (Signed,) F. W. HUBBELL, /or Defendants. Wednesday, April 17, 1839. At the opening of the Court this morning, Mr. Hubhell and Mr. Sergeant appeared i'or the respondents, in support of the rule; and Mr. Meredith and Mr. Randall for the relators, to show cause against it. Chief Justice Gibson, and Justices Rogers, Kennedy, and Huston, on the bench. ARGUMENT OF F. W. HUBBELL, ESa Occupying Wednesday and Thursday, the 17tii and 18th of April. The subject which we are about to submit to your honours, is so extensive and various, so full of business and matter, that it would be treacherous to our cause, and trifling with your attention, to at- tempt any preface or exordium; vie will, therefore, endeavour, in this particular, humbly to imitate the great masters of epic song, and enter at once in medias res. As your honours have perused the printed statement of the case, you are familiar with the facts from which this controversy takes its rise. The most general divisions under which this subject can be intelligibly considered are, first, the complainants' gravamen, or cause of complaint; second, the means adopted by them to rectify this supposed grievance and to vindicate those rights which they allege to have been violated. As his honour who presided at the trial charged on the whole subject broadly against us, this motion for a new trial involves the whole contro- versy; and we propose to show under the first of these divisions, that our adversaries have suffered no injustice, that their alleged grievances are altogether supposititious; and under the second, that the ex forensic remedy, to which they resorted, was abortive, un- constitutional, revolutionary, and an outrage upon the rights of their opponents. The supposed grievance which is the cause of our adversaries' complaint, is the acts of the General Assembly of 1837, popularly called the excinding acts, and the preliminary act called the abro- gation of the Plan of Union. You have perused these acts in the printed statements which are in your hands. By those acts, four synods, viz., the Western Reserve, Utica, Genessee, Geneva and their constituent parts, heretofore integral portions of the organiza- tion of the Presbyterian Church, were declared to be out of eccle- 543 siastical connexion with that body, and the material of which they were composed, viz., churches and clergy, were provided with other means of adhesion to the great Presbyterian system. In order to justify these acts we shall show that there was a dis- ease in this body politic, which required immediate eradication, and that the measures of salutary vigour, which were used, were the only ones adequate to the exigency, and that they were in strict consonance to the constitution of this church. You are aware that there is a body of worshippers within the bosom of this church, chiefly emigrants from New England or their descendants, called, from their form of church government, Con- gregationalists, that there is a general assimilation in their doctrines and tenets to the Presbyterian faith, both professing Calvinism,^ though the Congregationalists subscribe no written Confession of Faith and receive the Calvinistic standards merely for substance of doctrine. The radical difTerence between these two sects are to be found in their forms of church government, and as each church professes its own form to be of divine or apostolical origin, and, therefore, in its great distinctive features, not capable of being law- fully changed or altered, it follows that in fact these differences of form are differences of faith. The great body of Presbyterians likewise believe that the healthy discipline of these forms is necessary to a perseverance in their stand- ards of doctrine and that if relaxed, all manner of heresy is let in. An insidious attempt to intermingle these two systems, or rather an attempt to tumble Presbyteriani^m from its pedestal and to place Congregationalism in its s'tead. with all its errors and looseness of doctrine, (the natural result of its want of written standards) is the cause of these convulsions in the church. The very acts of 1837 which we are now considering, are the throws of the Presbyterian Church to relieve itself from the heterogeneous principle of Congre- gationalism which has been surreptitiously introduced into its system. Presbyterians are not themselves without censure in regard to this attempted amalgamation; the fathers of this church, in 1801, with short sighted benevolence consented to a partial and strictly limited union, both the use and abuse of which has led to the necessity of those acts which we are now examining. This partial union, to which I refer, you will find in the printed evidence before you, and is called a Plan of Union between Presbyterians and Congregation- alists in the new settlements. This unconstitutional and ill advised plan gave to Congregationalists their first foot-hold in our system, of which they have not hesitated to avail themselves. It was in- tended as a temporary provision for weak churches on the frontiers, too weak to organize as separate denominations for social worship, but capable by conjunction of forming congregations. This plan of ephemeral union which should long since have disappeared with the supposed necessity to which it owed its origin, has laid the broad foundation of permanent churches, presbyteries, and synods, governed as regards themselves, and only submitting to Congrega- tional forms, but exercising presbyterial domination over the rest of the church. In the Synod of the Western Reserve it is in evidence 544 there are 139 churches, and that of these 109 are Congregational, and in the other three excinded synods (as we offered to prove on the trial) two-thirds of the churches are Congregational. His honour excluded this evidence, and therefore, for the purposes of this argu- ment the exclusion is equivalent to the proof. But whatever nnay be the inconveniences of this incursion of Congregationalists unless we can show that it is not compatible with the constitution of this church, we shall inveigh against it in vain. The Presbyterian Church has a written constitution, and its government in any of its departments can only exercise the powers conferred upon it by that constitution. We will now proceed to show that there are funda- mental provisions in that constitution at utter variance with Congre- gationalism, and that any act of the government of this church en- grafting Congregationalism upon the s}stem must be void. Many of the provisions of this constitution are essential, that is, as has been said before, they are deemed of scriptural origin, and not to be changed by man; others are alterable, and a provision is made for such alterations by the constitution itself. " Before any overtures or regulations proposed by the Assembly to be established as constitutional rules shall be obligatory on the churches, it shall be necessary to transmit them to ail the presby- teries, and to receive the return of at least a majority of them in writing, approving thereof." Form of Government, cap. xii. sect. 6. Now let us inquire what principal constitutional provisions this unnatural conjunction with Congregationalism violated. Whether the provisions so violated were alterable, and if alterable whether they were altered constitutionally, that is, by the method which I have just cited frotn the constitution. And here let me observe, that these remarks will be confined to the Plan of Union of 1801, the only alliance attempted to be justified. If congregationalists have obtained admission into our system by any other means, it is mere usurpation, without any pretence of legal justification. That such usurpations have been frequent and extensive we are well aware, and that small part of the Congregationalism with which our system is infected, can claim the protection (poor as that is,) of the Plan of Union. The more important provisions of our consti- tution which have been violated by the Plan of Union are these. The government of the Presbyterian Church is committed to ruling elders set apart by ordination, and who hold their offices for life. The church members at large exercise none of the functions of government, except in the original election of these elders. Consti- tution, cap. iii., sect. 2 — cap. v.. cop. xiii. Another important and vital provision of the constitution is its system of subordination and appeals. The primary council of judi- cature and government is the church session, composed of the ru- ling elders and pastor of a particular conijregation. Next above this is the presbytery, composed of ruling elders and ministers, dele- gated from a number of churches, or rather of church sessions, within certain local bounds. This body entertains appeals from the church sessions, and elects delegates to the highest judica- tory; which delegates must be ruling elders and ministers. The 545 council next above the presbytery is the synod, composed of nninis- ters and delegated ruling elders from the churches within larger local bounds than the presbyteries. This body entertains appeals from the presbyteries. Lastly, the great oecumenical Assembly which is composed of delegated ruling elders and ministers from all the Presbyterian churches in the United States. This august body, besides, like the inferior judicatories having other extensive powers, is the court of last resort, and finally determines appeals which have ascended successively from the session to the presby- tery and from the presbytery to the synod. The government by ruling elders, and this right of appeal by which any individual member of the church may have his case or his grievance submitted to the representation of the whole church, is in our faith scriptural, apostolical, divine, and therefore unaltera- ble. See constitution ubi supra and cap. xii. in notes. Congrega- tionalism knows no ruling elders; their government is exercised by the church members themselves, in a form simply democratic. It knows no subordination of judicatures or appeals, each church is independent and for itself governs its members, and adjudicates their complaints. They are, it is true, united into associations, but these associations exercise only an advisory jurisdiction. We are now ready to compare the Plan of Union with these con- stitutional tests. It is on this Plan of Union that our adversaries at- tempt to justify the introduction of Congregationalism into the Presbyterian system. If we demonstrate the unconstitutionality of this, they are left without an argument. The parts of that plan essential" to this argument are these: that a Congregational church may settle a Presbyterian pastor, (and it regulates the mode of deter- mining disputes between them, but deprives this clergyman of the appeal to the presbytery to which he belongs, unless by the consent of his congregation;) and that a Presbyterian congregation may settle a Congregational pastor. It provides also for the erection of mixed congregaiions partly Presbyterian and partly Congrega- tional, and substitutes for the church sessions, composed of ruling elders, a standing committee from the communicants of the church, and from the decision of this body it gives an appeal, if the party aggrieved be a Presbyterian, to the presbytery within whose local bounds the church may be situated, if a Congregationalist to the body of male communicants of the church, but deprives the Presby- terian of his ulterior appeal to the synod and General Assembly. It further contains this provision, " and provided the said standing committee of any church shall depute one of themselves to attend the presbytery, he may have the same right to sit and act in the presbytery as a ruling elder of the Presbyterian Church." Cutting off any Presbyterian from the right of appeal to the synod and General Assembly, is unquestionably a violation of the constitution. What an incongruity is this in any civilized system; here is one member of the Presbyterian Church entitled to the judgment of the whole church, when under accusation, but here is his brother in equal good standing, whose doom is finally pro- nounced by perhaps a prejudiced local presbytery! ! 46* 546 But the most flagrant violation of tlie constitution is that provi- sion, the words of which I have just cited, which adinits unordained lay delegates to sit and act in the presbyteries with the same rights as ruhng elders of the Presbyterian Church. In this provision is to be found the fountain of all the calamities which ensued. It is con- fined by the act of union to the mixed churches having standing committees, but under the latitude which it has established, Con- gregational churches, without any intermixture of Presbyterianism, have sent unordained lay delegates to the presbyteries, and have called the whole body of male communicants, to whom by the Con- gregational system the government of the church is committedj. their standing committee, (see Mr. Squier's testimony omitted by accident from the printed evidence,* but to be found in the counsel's notes,) and under pretence of this and other provisions of the Plan of Union, one of the excinded synods denied, by a public act, that ruling elders were necessary to a Presbyterian Church. (See printed evidence, page 11.) Under pretence of this provision they have not only filled the presbyteries in the region of the excinded synods with lay delegates, but have openly claimed a right to seat tliem in the General Assembly itself, and have prevailed, (see printed evidence, page 46,) although they more frequently gained admission to that body by disguising themselves as ruling elders. (See Mr. Bissel's case, printed evidence, page 4u.) P'or years this subject has been agitated and discussed, and the ndvocates for the rights of Congre- gational churches to send their lay delegation to the judicatories of this Presbyterian Church, have alvvnys founded its defence on this particular provision of the Plan of Union, without which they have no pretence for their intrusion. In the Synod of the Western Re- serve there are one hundred and nine Congregational churches without ruling elders, and yet they are all represented in the pres- byteries by unordained delegates, by men w^ho are not pledged to our written Confession of Faith; and yet these presbyteries elect the delegates to the General Assembly. How is it possible for the General Assembly to enforce conformity to our standards, when its constituency is composed of men who do not admit these standards? Experience conformed to what might have been anticipated, atid when Mr. Barnes was prosecuted for deviation from the Presbyte- rian standards, he was acquitted, in a great measure, by the votes of delegates from that constituency which does not subscribe to these standards. As we said before, this disturbance of the harmo- ny of our system must be justified, if at all, upon the Plan of Union. The constitution is peremptory in its provisions, and those who set these provisions at defiance, have always pointed to the act of union, as a justification of their departure. If Congregationalism is not subject to expulsion from our system, it is because it has come in under the Plan of Union. Congregationalists themselves would scarcely desire the connexion unless it gave them a share in the ** The parenthetical notes found in this argument were inserted by the counsel. Not being willing to niter them, in his absence, it is necessary here to say, that the printed evidence referred to, is that submitted to the Court in a pamphlet, pre- pared by the counsel; to tlie pages of which pamphlet the figures in these paren- theses refer. The evidence itself is in its proper place and order in this report. 547 government of the church, and therefore they consider the pro- vision of that act which enables them to send lay delegates to the presbyteries, [he most important feature in that plan. By this every individual Congregationalist was enabled to join in the government of the Presbyterian Church, but yet was himself exempt from its discipline; for if those whom he aided in governing through his de- legates, attempted to enforce the discipline of that church against him, he could only be tried by his fellow communicants, who, like himself, were not pledged to the standards of faith, and from their decision there is no appeal to the higher tribunals of the church. It remained for their own professional advocates in this cause to take away from their Congregational clients the only justification to which they have appealed for nearly forty years. The learned counsel has argued, and the learned judge has adopted this argu- ment, that the provision of the Plan of Union which we are discus- sing, does not authorize the sending of unordained lay delegates to the presbyteries generally ; that is, to participate in the generid du- ties of the presbytery, but that it is confined to judicial cases of ap- peal from the standing committees, and that when that judicial pro- ceeding is terminated, the lay delegate must retire. In this argu- ment v/e might well acquiesce, and then the presbyteries of the Western Reserve, filled with lay delegates in the proportion of one hundred and nine to thirty, and in the presbyteries of the other ex- cinded synods in scarcely a less proportion, are clear, unqualified unjustifiable usurpations of the rights of Presbyterians. But we will save our adversaries from themselves, and show that they have the justification of this provision in the Plan of Union, so far as an un- constitutional provision can justify them. His Honour, the judge who presided at the trial, distinctly admits, that upon our construc- tion of this clause of the Plan of Union, it is clearly unconstitutional and void, and in endeavouring to show that the act of union did not contain such an unconstitutional provision, he forgot that he left our adversaries without any justification at all. The language of this clause is too explicit, it seems to me, to permit one moment's hesitation. It is true that the previous parts of the section pertain to trials by the standing committee, and appeals from that commit- tee, and there might be some show of argument from thence to con- fine the clause in question to the subject of the context, had not the framers of this act, as if anticipating such a construction, and deter- mined to exclude it, declared not only that the standing committee should have the power of sending delegates to the presbytery, but expressly defined the commission of such delegates, which is "the same right to sit and act in the presbyteries as a ruling elder of the Presbyterian Church," not to sit merely on the appeal, but in the presbytery, not merely as a judge of the appeal, but as a ruling elder, not merely judicially to determine, but to sit and act. This attempted construction of our adversaries is rendered still more un- tenable when we consider that it gives the right of sitting in the appellate tribunal to try appeals of a member of the court appealed from, that is, it gives him the right of sitting in judgment upon his own decisions; an absurdity always forbidden by the policy of this 548 church, and now by its constitution, and also abhorred by the com- mon sense of mankind, and ihe universal practice of civilized na- tions. See constitution Book 2d, Chap, vii.. Sec. 3. — " Members of ju- dicatories appealed from, cannot be allowed to vote in the superior judicatories on any question connected with the appeal." See also Assembly's Digest, page 332. In which it appears that as early as the year 1792 the General Assembly authoritatively settled the im- propriety of a member of the body appealed from sitting on the trials of that appeal. I have assumed the high ground that this Plan of Union conflict- ed with the unalterable parts of the constitution of this church, and I have laid before you at large some reasons for the position. Others may be added of equal cogency, one of which I will advert to suc- cinctly. The act of the legislature of Pennsylvania incorporating, "the trustees of the ministers and elders, constituting the General Assembly of the Presbyterian Church:" any innovation by which the Presbyterian Church loses the distinctive character of Presbyterian- ism, conflicts with the charter, and such revolutionized church would be unable, legally, to perform the functions assigned to it by that charter. But assuming (for the sake of the argument only) that the portion of the constitution confiding the government of the church to ruling elders, and giving the right of appeal from the presbyteries to the synods, &c., may be altered, this alteration must be efl'ected in a constitutional manner, that is, by the written ap- proval of a majority of the presbyteries. The Plan of Union did not receive the sanction of a constitutional majority of the presbyteries, nor of any of them, in fact, for it was not submitted to them, it was passed by the sole authority of the General Assembly; it was there- fore void' from the beginning, and those who claim rights under it rely on an unconstitutional title. It has been argued with great vehemence, and the argument has received the sanction of his Honour who presided at the trial, that long acquiescence by the presbyteries in the existence of this Plan of Union, is equivalent to a confirmation. Acquiescence may be equivalent to positive appro- bation, but then it must be proved that he who is supposed to have acquiesced, was fully informed upon the subject upon which he is supposed to have given his mute or passive vote. Our adversaries are not guilty of the absurdity of contending that, the permitting an unconstitutional act to lie dormant upon the statute book in harm- less inanity for any number of years, should be construed into ac- quiescence; but it is the long acquiescence in things done and insti- tutions established under the Plan of Union, that they contend is equivalent to a constitutional vote in their favour. There are some parts of the Plan of Union entirely unexception- able when measured by the constitution of this church. Whether that provision, which enables a congregational pastor to preside over a Presbyterian flock, be so, it is unnecessary to determine, for there are not, nor has there been, any such existence. Congrega- tional pastors have uniformly, when they come into our fold, con- formed to our discipline and become Presbyterians, paying thereby 549 a tacit homage to the superiority of our institutions in securing the rights of the clergy. But there is another provision of that Plan of Union which has been called into extensive exercise, which is the enabling Presbyte- rian ministers to preside over Congregational churches. This provi- sion in no wise conflicts with our constitution. We may send our clergy as missionaries to the heathen ! (not meaning by this expres- sion any disrespect to the respectable denomination of Congrega- tionalist's.) Every church has, or should have, its propaga?ida. The minister so situated suffers some diminution of Presbyterian rights, but that is voluntary and temporary, to be resumed again ■when he leaves his Congregational charge. Such an arrangement is not obnoxious to constitutional censure, because it does not give such Congregational church any place in our system by represen- tation or otherwise. Such church employs a Presbyterian pastor, and that is all ; it has no voice in our tribunals. Such Congregation- alists neither act upon us nor reciprocally do we act upon them. But it is in the provision for mixed churches contained in this Plan of Union, that we find the several collisions with our constitution that 1 have been pointing out. Now to the bearing of these remarks upon the point ot acqui- escence, permitting the preaching of Presbyterian pastors to Con- gregational churches, cannot be considered as acquiescence in the change of the constitution by the Plan of Union, for that was toler- able and proper, independent of the Plan of Union, and does not conflict with or require alteration in any of its provisions. It is only then in regard to the mixed churches with standing committees, or purely Congregational churches, which, treating or considering their whole body of male communicants as a standing committee, have sent delegates to the judicatories of our church, and have wound their parasitic tendrils round the goodly trunk of Presbyterianism, that the question of acquiescence arises. As to the last of these, viz: the pure Congregational churches sending dele- gates, it is a mere abuse ; it has no sanction in any act of the church, constitutional or unconstitutional. There was, as regards these members, no subject for acquiescence; no proposition submitted to which the presbyteries could answer; no colour of right which by time and neglect of opposition might be deemed to be approved; no invitation, which, after many years it would be inequitable to revoke on constitutional grounds. Unless therefore our adversaries can show that there is an act of limitation, they must be content to give up the ground of acquiescence in regard to this class of Congrega- tional churches. Knowledge of the slate of the church is only im- parted to the General Assembly, and disseminated by that body to the various constituent parts of the church by the presbyierial re- ports, which reports ought and profess to inform the General Assem- bly of the number of Presbyterian pastors who preside over Con- gregational churches, and of the number of Presbyterian and mixed churches in each presbytery. They profess to give the name of each church within the bounds of the presbyteries, and whether they be Presbyterian or Congregational. But these reports from the 550 presbyteries in the excinded synods iiave ever been illusory. Al- though there are one hundred and nine Congregational churches in the synod of the Western Reserve, yet they have been represented for years in the presbyterial reports as Presbyterian churches; and although Congregational churches abound in the other three synods, yet no trace of them appears in their presbyterial reports. Mr. Squier designated in his testimony certain churches within these bounds as Congregational, and yet, by reference to these presbyte- rial reports, we find those churches called Presbyterian. If these misrepresentations were intended to deceive, they are not reconci- lable with good morals, but whether intended to deceive or not, they effectually put to rest the argument of acquiescence. If the church has made no effort heretofore to expel these intruders, it is because they appeared on the records not to be intruders but Presbyterians. Another argument has been much elaborated by our adversaries. They say that the constitution has been repeatedly amended since the adoption of the Plan of Union, that particularly in the year 1821, it underwent almost an entire revision ; and they find in this some evidence of the approbation hy the presbyteries of that plan. I am unable to discover such evidence. Certain amendments, and in the year 1821 very extensive ones, but having no allusion whatever to the Plan of Union, are submitted to the presbyteries and approved by them. The provisions in the constitution as it stood in 1801, were sufficiently obvious in their opposition to the Plan of Union. Scarcely any amendment could have made them more so. Had therefore these alterations emanated from the presbyteries, the omission to aim one directly at the Plan of Union, could scarcely have been construed as an approval of that plan. We have now, I believe, I'eviewed all that has been argued in justification of these unnatural espousals. A more determined effort has been made by our adversaries, to condemn the means to which we resorted in 1837, to rectify this evil, whose encroachments had then become intolerable. Let our adversaries deny it as much as they please for the pur- pose of this judicial contest, they cannot suppress the fact that there is a great schism in this church upon doctrinal tenets and funda- mental points of religion. One of the learned counsel has designa- ted it as a mere logomachy or war of words. He pays but a poor compliment to his clients, if this doctrinal controversy, in which they have embarked and persisted even to the rending of the church, is a mere war of words. These differences of religious sentiment may be comprehensively described as on the one part a strict ad- herence to the written standards of the faith, and on the other part a loose Neological and latitudinarian construction of them. The great object of the institution of the body politic of the Presbyterian Church is to preserve theological uniformity. It has adopted its standards to prevent the vagaries of speculation, and it has adopted its discipline to enforce conformity to those standards. The con- struction and interpretation of these standards are entrusted to its tribunals, and the decision of its highest judicatories, in the inter- pretation of its creed, makes the condemned opinion heresy. To 551 this issue was the theological controversy, which had for so many years distracted the church, about to be brought in 1837, and upon its determination the defeated party must either have seceded I'rom the church or ceased to teach and profess the condemned opinions. Common justice required that in this domestic quarrel there should be no foreign intruders. That in the debate and strife concerning the construction of the standards, those should have no voice who entirely denied their obHgation. It was then that attention was more intensely called to that imposthume, which had so long aggrieved the body politic, and the crisis emphatically demanded its eradication. We maintain, notwithstanding the clamours of our adversaries, notwithstanding their vehement appeals to popular feelings, that the remedy to which we resorted was the best, whether considered hu- manly, divinely, politically, or constitutionally. Before, however, these measures were enforced, all that a Christian spirit could prompt amicably to adjust the difierence, was submitted by us to our adversaries. We met them in conference, and it was solemnly agreed that a separation was necessary. An equitable division of the temporahties was profiered by our party and accepted by our ad- versaries. There appeared for a time every prospect that, like Lot and Abraham, the one party would have taken the right hand and the other the left, in peace, until our adversaries made one unrea- sonable demand, in which we could not have acquiesced without dishonour and without disturbing the ashes of our fathers! We were the decided majority ; we represented the old seats of Pres- byterianism; in our ranks were to be found its venerable patriarchs; we, therefore, claimed to have the succession to continue the church which had heretofore existed, and to keep alive its sacred fires. Our adversaries, on the contrary, insisted upon its destruction, that we should join in pulling down the venerable fabric, and that each party should erect for itself a new temple from the ruins of the old. The learned counsel on the trial discovered in our propositions, some sinister and esoteric meaning that perhaps served the purpose of popular etiect with the jury. Our adversaries themselves, I believe, have never imputed to us any want of sincerity in these negotia- tions, and if they have, their imputations are without proof. These negotiations having failed, and it being conceded in the negotiations themselves that there was a difference of theological opinions which was incompatible with union, the struggle commenced to determine which was to be held as the orthodox opinions of this church. And as a preliminary in this struggle those recuperative and purifying measures were resorted to which have expelled these heterogeneous materials that impeded the true order of the system. Will any one deny, who is unaffected with party prejudice, that Congregationalism had no proper place in this system, and that it ought by some means to have been removed 1 I believe not one. There is then but one question remains, Were the measures by which its expulsion was effected constitutional? This question is a very narrow one, were we to confine it strictly to the mere ques- tion of law. We have been discursive, perhaps tediously so, in order 552 to show the justice of our acts, when we might have confined our- selves simply to their legality. Strictly, this court can only inquire whether the acts of excision were within the powers confided by the constitution to the General Assembly; and if that be determined affirmatively, this court cannot rejudge its justice, cannot inquire inio the corpus delicte, the nature or evidence of the delinquency which caused the exercise of these powers. This is a familiar principle in this court, enforced and newly illustrated at every ses- sion. If voluntary associations constitute their own tribunals, they must abide by the decisions of these tribunals, however partial or erroneous. The only aid that the malcontents can ask from the ordinary tribunals of the country, is to confine the special trjbunals to the exercise of the powers committed to them. As to the mode of the exercise, the wisdom or justice of their decisions, they are in- dependent and without visitation or appeal. The first or preliminary act to which the General Assembly re- sorted to purify the church, was the act of abrogating the Plan of Union, or in other words declaring it to have been unconstitutional and void from the beginning. The right to abolish this Plan of Union for all future time seems to be conceded by the opposite ar- gument; but they object to the retrospective efiect of that act of abrogation. This act of abrogation is a mere nameless abstraction, without practical consequences; the acts of excision are those which have been carried into operation, and which are the real grounds of this controversy. The acts of excision, so called, we say, will appear to be mere acts of dissolution, when resolved into these simple elements; and all that is urged against their legality will be found to be inapplica- ble, when they are denuded of certain unessential accompaniments which were unskilfully attached to them. The power of the Ge- neral Assembly to dissolve synods has never been questioned. It is not expressly given by the constitution, but is a necessary implication from the power to create them, an implication as ne- cessary as that by which, in our own political constitution, we at- tach the power of removing to the power of appointing. Among the enumerated powers of the General Assembly in sect. 5, cap. 12, of the Form of Government, we find the powers of " erecting new synods when it may be judged necessary," and the exercise of the constructive and subordinate powers has almost always accompa- nied the exercise of that power, which is express and principal, for two synods originally embraced the whole territories of these United States, and consequently the creation of every new synod involved the partial dissolution of the old. The synods have express power to create or erect presbyteries, but no express power to dissolve ihem, but only to unite and divide them. Yet the power of disso- lution has been exercised by them without question since the insti- tution of the church, and this although they have not the higher and almost unlimited power conferred on the General Assembly by the words " of superintending the concerns of the whole church." ]n the Form of Government, cap. 5, sect. 12, see the act of 1834, Minutes of the General Assembly, dissolving the Synod of the Che- S53 sapeake, 1 have said that these acts of 1837 have been called ex- cinding acts, disowning acts, and acts of expulsion; although in the heat of party they may have been moulded with these repulsive ieatures, yet, when calmly considered, without passion or prejudice, they will be seen to be essentially no more than the exercise of the undoubted, the familiar, the conceded power of dissolution. Excision must operate on the ultimate materials of the church, on its elemental subdivisions, either territorially, that is by excluding a territory with the Presbyterian materials within its bounds, from the domain of the church, or by retaining the territory and exclud- ing such materials; any thing short of this is dissolution, the essence of which is elementary resolution. Now these acts declare the synods in question to be no longer in ecclesiastical connexion with the Presbyterian Church, and in the third of the exegetical resolutions, appended to these acts, it seems to be asserted that these acts extend also to their constituent parts, but in the fourth of these resolutions all churches, ministers and presbyteries which are strictly Presbyterian in doctrine and order, that is, all the Presbyterian materials within those synods are pro- vided for and in efiect retained. In other words, all such churches and ministers are directed to apply for admission to those presby- teries which are most convenient to their respective locations; and such presbyteries as are strictly Presbyterian in doctrine and order, are directed to apply to the (Tcneral Assembly. Our adversaries, I am aware, have much to urge against this construction, in the phraseology of the resolution, and in its prac- tical effects; the language of the fourth resolution, it is contended, imports that these Presbyterian materials have been removed from the church, for it uses the phrase "if they wish to unite with us," which imports that they have by these acts been excinded. We answer to this, that we are not inquiring what the General Assem- bly thought they had done, nor even what they intended to do, but simply what they did, and when we find that all Presbyterian churches, ministers and even presbyteries within those bounds were, so far from being expelled from the church, only in effect given the means of retiring at their option or continuing at their option, we aver that it was a dissolution and not an excision. Let it also be observed that the word unite, when construed by reference to the subject of which it is predicated, is a strong cor- roboration of our argument; dissolution is the solution of union; by the dissolution of the synod, the ligament of union between the particular churches and the general church is dissolved, but not the obligation of the latter to lurnish new means of union; which would be the case, were it an expulsion or an excision. But our adversaries endeavour to point out some practical inconveniences, and assert that these resolutions put it in the power of the pres- byteries to which they, the churches and ministers, are directed to apply, and (in case a presbytery is the applicant) of the General Assembly to reject them. None have been as yet rejected, and when they have been that will be the first act of injustice. A mere possibihty of injustice can be no sufficient reason for condemning 47 554 these acts and dismembering the church. As to these arguments from inconvenience, it may be said that so great a reform as the expulsion of these intruding Congregationalists could not be effected without these very inconveniences which are the subject of com- plaint. A synod is dissolved because it is deeply infected with Congregationalism, which cannot be otherwise eradicated ; the Presbyterian materials, which are thus reduced to a fragmentary state, must be culled with caution, lest some portion of the Congre- gational materials be heedlessly picked up and confounded with them. As this fourth resolution provides for such presbyteries as are strictly Presbyterian in doctrine and order, it is scarcely necessary to consider the power of the General Assembly to dissolve presby- teries, for here were none dissolved, they were invited to a reunion in their undisturbed integrity. It is true, this invitation is confined to those presbyteries which are strictly Presbyterian in doctrine and order; but these. were all that were entitled to receive such invita- tion. A presbytery that is not Presbyterian, is a palpable fraud, un- deserving notice, except for reprehension; Presbyterian in doctrine, that is, not Arminian, not Pelagian, not Socinian. Will our adver- saries object to the terms of this invitation? It is true we have taxed them with Arminianism and Pelagianism, but they have not justi- fied but denied the charge. Presbyterian in order, that is, composed of ruling elders, and not of lay delegates, thus, it is true, excluding Congregationalists, but that we meant to do, and by our right, so to do, we abide. But they must be strictly Presbyterian in doctrine and order; our standards know no difference as to doctrine between a strict Presbyterian and a presbyterian. The contest between the theological parties has been, what is strict Presbyterianism? They contend that we are deluded by our adhesion to the letter and that they construe according to the spirit of the standards: but, never- theless, they contend that they are as strictly Presbyterian as we. Whatever, therefore, may have been the design of the framers of this resolution, they have not committed themselves by using lan- oruage which our adversaries will admit is descriptive of them. As to the term strictness of order, it indicates, no doubt, such presby- teries as permit no lay delegates; those presbyteries whose general structure is Presbyterian could easily have accommodated themselves to this invitation (and were bound so to do) by expelling any lay delegates they may have entertained. Had however the acts of 1837 dissolved the presbyteries as well as the synods, our adversaries could scarcely complain, for in the year 1832, the party of our adversaries, then dominant in the Gene- ral Assembly, created a presbytery, and cited and relied on prece- dents in the' years 1794, 1802, 1805, and 1826. If that body pos- sesses the power to erect, it consequently possesses the power to dissolve, as I have demonstrated in regard to the erection and dis- solution of synods. Your honours will have observed, that in this argument I have contended that these were acts of dissolution only so far as Presby- terians were concerned : in regard to Congregationalists, they were no doubt measures of expulsion. That these Congregationalists 555 were deservedly obnoxious to expulsion, I believe that I have fully demonstrated. That a great majority of them were in the church without any pretence of right, and that they had kept their station there by disguising their true character, I think T also have demon- strated. The few, if any, who justified under the Plan of Union, I think I have demonstrated, had built their foundation upon uncon- stitutional grounds: as regards these, the General Assembly exer- cised a constitutional power, and swept away those whose best plea was the sanctity of venerable error. Our adversaries have varied their modes of attack, and have endeavoured to show the impropriety of what we have done, by showing how much better it might have been done otherwise. They say that these synods could only properly be condemned by regu- lar trial according to the forms of the constitution. On this pro- position they have rung a thousand changes. The position is plau- sible and popular. Five hundred and ninety-nine churches, and fifty thousand communicants, say they, have been condemned un- heard, without an opportunity of defence ! And they invoke popu- lar vengeance on the authors of this outrage. Upon this high tri- bunal the civium ardor prava juhentium will have no efl^ect, and we will proceed calmly to demonstrate the folly of this charge. We should, say they, have tried these synods and proceeded to judg- ment by the regular methods pointed out by the constitution. This, we say, is absurd. Try an incorporeal existence — a mere ens rationis! The constitution contemplates no such proceeding ; its whole system of judicature is aimed at natural persons capable of punishment. Suppose a synod is condemned, punishment cannot be inflicted; it is more incorporeal and impassive than the viewless air. It is capable of being dissolved, it is discerpible, and may suffer disintegration of its component parts ; but this is not punish- ment. It may be a good measure of prevention to destroy it, but it is in no sense penal. The constitution contemplates process against the inferior judicatories of one kind only, and that is in the nature of a mandamus, not to punish, but to direct it in the path of its duty. See Book of Discipline, cap. vii., sec. 1, sec. 6. But, again, why should we proceed judicially, when no offence or crime has been charged upon the synods? They were erected for convenience, and might be dissolved for convenience. Certain intruders had found shelter behind them, and it became necessary to pull them down in order to drive away these intruders. They were infected with Congregationalism: this was no crime, but a disease, which required, not punishment, but a remedy. If our adversaries mean (and their meaning is not very clear on this point) that the process should be directed against individual Congregationalists who had intruded into our system, we answer that the plan of process was intended for Presbyterians, and not for intruders from other denominations — for denizens, and not for aliens. Besides, such Congregationalist might set our process at defiance, for it runs not into Congregational churches; he can only be tried by his own congregation, and from their decision there is no appeal. Those who really came in under the Plan of Uuion, if 556 charged with Congregationalism as a crime, might plead that plan in justification, though, from its unconstitutionality, it would be no bar to any proceeding for their removal. Much labour has been expended on either side, in proving or disproving that the General Assembly possesses legislative powers. If it were important, it would be easy to show that, within a certain scope, it does possess those powers. The power to dissolve synods is rather an administrative power, if we were compelled to give it a name. I am willing to put the abrogation of the Plan of Union on a more simple ground. The General Assembly was a party to the arrangement, and having dis- covered it to be unconstitutional, declares itself not bound by it. The same as an individual who has entered into an illegal compact, and afterwards discovers its illegality, might declare himself not bound by it. The illegality of the compact is that which discharges him, and not his declaration, which is but a promulgation of his rights. The act of abrogation and the acts of excision were in them- selves mere abstractions, not capable of being noticed judicially. It was not until some action took place under them that bore upon individual or associate rights, that they could assume the form of an injury cognizable by public justice. The first proceeding in pursuance of these acts was the striking from the roll of the Gene- ral Assembly the names of the commissioners from these synods, and refusing to count their votes. What was this but tlie judgment of the General Assembly upon the quali^cation of its members; a power always entrusted to representative bodies, and not denied by the constitution to this. In the exercise of this high function, we claim for the General Assembly exemption from the visitation of the ordinary tribunals. Your honours, having ascertained the exist- ence of the power, cannot control or review its exercise. We have now finished the first, and come to the second of the great divisions into which we assorted our subject, to wit, the means resorted to by our adversaries to rectify their supposed grievances. In the year 1837, after the act had been passed touching the Synod of the Western Reserve, which was prior to that concerning the other three synods, and after the names of the members of that synod had been struck from the roll, an election was had to fill cer- tain vacancies which existed in the Board of Trustees; but as the members from this synod were not allowed to vote, they protested that the election was void. They and the members from the other three synods, after they were excluded, also gave notice to the Board of Trustees not to obey the drafts or orders of that General Assembly, as it became by dismemberment a legal inexistence. Had they persisted in this course, the question of the validity of these acts would have been brought before your honours by this proceeding; but they afterwards seemed to consider such position untenable, for, by repeated acts of great solemnity, they admitted the General Assembly of 1837 to have a legal existence up to the hour of its adjournment, and thereby, as we think, and will show in the sequel, have excluded, from this judicial inquiry at least, any 557 question as to the validity of these acts. For their pseudo Assembly in 1838, in electing their trustees, who are the relators in this pro- ceeding, solemnly pronounced that there was no vacancy in the Board of Trustees, which declaration would have been untrue, had the election of 1837, to which I have referred, been void. Besides this, the last act of the Assembly of 1837 was to fix the time and place where the Assembly of 1838 should meet; and this act was the basis upon which the pseudo Assembly was built, and the occu- pation of that time and place was declared by them to be necessary and essential to their legal existence. This was another distinct recognition of the undismembered existence of the General Assem- bly olf 1837. The General Assembly is not perennial, but terminates its exist- ence with its session, and a new Assembly is called for the suc- ceeding year, which is not a continuation, but the successor of the preceding Assembly. See Form of Gov., cap. xii., sec. 8. When, therefore, the General Assembly of 1837 adjourned, by the confes- sion of our adversaries it adjourned in its undiminished legal inte- grity; and the Assembly of 1838 was called into existence to run its career unaifected by the acts of its predecessor. This view I think is important, for from it can be demonstrated that this inquiry ought to have been confined to the question of organization in the year 1838, and that the examination into the constitutionality of the acts of 1837, was entirely extrinsic to the issue. We have it in evidence from the Pastoral Letter of the New School Assembly, although his honour excluded more direct proof of the fact, that the New School party met in caucus previous to the time fixed for the meeting of the General Assembly of 1838, to devise measures which should annul the acts of 1837. The sum of their deliberations and designs are embodied in the resolution, " that should a portion of the commissioners to the General Assembly at- tempt to organize the Assembly without admitting to their seats commissioners from all the presbyteries recognized in the organiza- tion of 1837, it will then be the duty of the commissioners present to organize the General Assembly of 1838, in all respects accord- ing to the constitution, and to transact all other necessary business consequent upon such organization." This resolution is a key to the subsequent conduct of that party, and enables us to understand it in its true light, although our adver- saries have since thought proper to place other interpretations upon it. They say, "that should a portion of the commissioners attempt to organize without admitting," &c. This portion was the Old School party, who had at the preceding General Assembly of 1837 been a decided majority, and afterwards proved to be so in that of 1838; and that they would be so, this caucus most shrewdly sus- pected. Then this resolution declares, that should the Old School party, being the majority, attempt to organize without admitting to their seats, &c. all the commissioners — that is, should they attempt to exclude the commissioners from the four synods — " it will then 47* 558 be the duty of the commissioners present to organize in all respects according to the constitution." It icill be their duty to organize! In otiier words, that they will organize according to their views of the constitution! Who will organize according to the constitution? The commissioners present other than the evil-disposed portion. And that portion, as we have shown, were the Old School party, and the majority. It therefore follows that these sticklers for the constitution were the New School party and the minority ; and the whole import of this resolution, though obscurely worded, is, that should the Old School party, who were the majority, attempt to carry out the acts of 1837, by excluding the commissioners from the four synods, the New School party, who were the minority, would make another organization, admitting those commissioners, and claim to be the constitutional Assembly! One of the members of this caucus commented on the boldness of this plan by exclaim- ing, "We have passed the Rubicon." In order to understand the subsequent doings of the malecontent party, it is necessary that I should call your attention to some of the rules of order. "No commissioner shall have a right to deliberate or vote in the Assembly, until his name shall have been enrolled by the clerk, and his commission examined and filed among the papers by the As- sembly."— For-m of Government, cap. xii., sect. 7. Standing rules of order adopted in the year 1820. See minutes of General Assembly of that year. I. Immediately after the Assembly is constituted with prayer, the moderator shall appoint a committee of commissions. II. The commissions shall then be called for, and delivered to the committee of commissions. III. After the delivery of the commissions the Assembly shall have a recess, until such an hour in the afternoon as will afford suf- ficient time to the committee to examine the commissions. IV. The committee of commissions shall in the afternoon report the names of all whose commissions shall appear to be regular and constitutional, and the persons whose names shall be then reported, shall immediately take their seats and proceed to business. V. The first act of the Assembly when thus ready for business, shall be the appointment of a committee of elections, whose duty it shall be to examine all informal and unconstitutional commissions, and report on the same as soon as practicable. In 1829, (see minutes of that year,) it was resolved '-that the permanent and stated clerks should be the standing committee ot commissions, and that the commissioners should hand their com- missions to said committee in the room in which the Assembly shall hold its sessions, on the morning of the day on which the Assembly opens, previous to 11 o'clock. In pursuance of these rules of organization, Messrs. Krebs and M'Doweil, the permanent and stated clerks, stationed themselves in the church in Ranstead court, previous to the hour of the meeting of the General Assembly of 1838, on the day fixed for its assembling 659 by the last resolution of the previous Assembly. The commissions were presented to them, and they rejected those from the excinded synods and refused to put them on the roll. They considered them- selves bound by the authority of the preceding Assembly, as the opinion of the highest judicature on the constitutionality of these commissions. The committee of commissions is the primary tribu- nal to determine on the constitutionality of the commissions pre- sented. They had before them the decision of the prior Assembly, that these synods were built upon the Plan of Union, and as that Plan of Union had been abrogated the synod built upon it had fall- en to the ground. To have disregarded this decision, would have been the height of arrogance. I do not think they were bound by the acts of 1837 as instructions, but as precedents, but it would seem that these commissioners thought otherwise. See printed evidence, (Mr. Krebs' statement, pp. 101, 102 of this report.) It was said that this committee were pledged to carry out those acts? But upon inquiry we find that a motion was made in the Assembly of 1837 to exact a pledge, but was afterwards withdrawn. It was withdrawn because the committee expressed so strong an opinion of their duty, that a pledge was deemed unnecessary, and yet there is a wide difference between an opinion, however strong, and a pledge. The one may be changed, it may yield to proof or conviction ; the other is an inflexible obligation upon the conscience. If this committee was in error, as to the power of the General Assembly of 1837 over them at the inceptive organization of 1838, or if they decided wrong upon any other principle in re- jecting the commissions from the four synods, they being but an inferior and primary tribunal, their decision could be reviewed by the General Assembly, and that body has deputed this power of re- view to the committee of elections, who, says the fifth of the standing rules which I have cited, are to examine such commissions as have been rejected by the committee of commissions. These standing rules direct the committee of commissions to put all constitutional and formal commissions on the roll, but prescribe no other duties, as to the informal and unconstitutional commissions, than to reject them. It is true a practice has arisen of reporting these commissions so rejected in a separate roll, a practice, which arose, no doubt, when all commissions were presented to the house, and referred to the committee, in which case, by parliamentary practice, there must be a report of the committee upon them in order to restore them to the house for its future action. This was a reason which ceased, when, under the new system, the commissions were no longer re- ferred to the committee, but originally presented to them before the meeting of the Assembly. Such as they rejected having never been before the house, parliamentary order interposed no obstacle to their being presented to the Assembly by a member, and referred by the Assembly to the committee of elections. The stated and permanent clerks, it would seem, debated between themselves, in this exigency, which was the better course, and concluded by adopt- ing the latter as more consonant to the language of the rules. If 560 their determination arose from any other reason, certainly it was sustainable on this. I have spent more time on this point than the consequences to which it leads seem to warrant, but as his honour who presided at the trial has made it a corner-stone in the temple, I could not well pass it without comment. Our adversaries came to this Assembly of 1838, with the design to organize a minority Assembly, if the majority should reject the commissioners from the four synods. Owing to their unskilfulness and their entire unac- quaintance with the rules of order, their mine exploded prematurely, that is, before the commissioners from these synods had been re- jected by the majority. They, now, having discovered their error, endeavour to give a new aspect to their proceedings, and contend that the officers of the Assembly wilfully committed various faults, and that their (our adversaries) proceedings were of a punitory character. As regards the clerks they could not say that they committed any crime in rejecting the commissioners from the four synods, because jurisdiction of that subject belonged to them, and therefore they sought the proof of crime in the omission of the clerks, to put them on the roll of irregular commissions. They next endeavoured to fix crimes upon the moderator. After the Assembly had been opened with prayer, but before the roll had been reported, Dr. Patton rose with certain written resolutions in his hand, which we have since learned pertained to enrolling of the commissioners from the four synods, and offered to move these resolutions, but was told by the moderator in substance that his mo- tion was premature, for until the roll was reported there was no house to which a motion could be put. In this reason he acquiesced and sat down, and the propriety of the moderator's decision seems admitted in this argument, and was conceded by his honour the judge, in his charge to the jury. The roll was then reported and ihe moderator made a call, in the nature of a proclamation, for all those who had not had an opportunityof presenting their commissions to the committee of commissions to come forward and do so. This is a practice which has prevailed ever since the rule was enacted directing the commissions to be presented to the clerks before the meeting of the Assembly, and was intended for the benefit of those who, having come in since, had not had an opportunity or those who, from inadvertence or ignorance of the practice, had neglected to present their commissions to the clerks. It was to give such persons an opportunity, I say, before the roll, which was the only evidence of a title to vote, was pronounced complete, and to have the house ascertained, that this call was made. Neither in its terms nor its spirit was it intended for those who had been rejected by the clerks, for their commissions were to be passed through the ordeal of the committee of elections. Dr. Mason, however, thought fit to construe it to be an invitation for him to present the rejected commissions. He was told by the mo- derator that he was out of order at that time; he appealed to the house, he was told by the moderator that his appeal was out of order at that tune. The roll was not then completed ; the last finish was being put to it; at least one commissioner was at that moment 561 availing himself of the moderator's proclamation. Until the roll was completed, there was no organic body that could entertain an appeal, nor until then could the presiding officer know whom to admit to vote on the appeal. Dr. Mason informs us in his testi- mony that his appeal was made to the promiscuous throng there assembled, claiming to be commissioners. His motion was an in- terruption of business then having possession of the inorganic body: I mean the call for further commissions of a particular class. It was an interruption of the standing order of business, which directs that the first act of the Assembly, after the roll is reported, shall be the appointment of a committee of elections; the most important step as regards the rights of members, and on no pretence to be disturbed in its precedence, for the rights of many commissioners may be held in suspense until the tribunal is constituted which is to try their rights. It must be conceded that an appeal may be out of order, and if so, who is to be the judge of that, in the first instance, but the presiding officer? And yet it is upon this rejection of Dr. Mason's appeal that our adversaries now base their whole argu- ment, and in which they seek the justification of their ulterior pro- ceedings. The moderator, say they, committed a breach of privi- lege in rejecting the appeal, and thereby became liable to removal. I shall not notice the motion of Mr. Squier further than to say, that it was declared by the judge, in his charge, to have been properly rejected ; but we will proceed to Mr. Cleaveland's motion. The crime, say our adversaries, was committed on Dr. Mason : Mr. Cleaveland inflicted the punishment. Is this a just representation of what they did, of what they intended to do, and of what they de- clared to be the purpose of their proceedings? Mr. Cleaveland read a written preamble, obviously prepared before he came there, and thereupon he moved, without addressing his motion to the moderator, himself putting the motion, that Dr. Beman take the chair ; and this was followed by a series of motions, put in the same irregular way, to appoint a permanent moderator and clerks, and to adjourn to another place. While all this was proceeding, the moderator, who continued in possession of the chair, was endea- vouring to stop these breaches of decorum by cries of order; and the majority of the house either sat still, awaiting the subsidence of the tumult, or joined in the moderator's cry of order. It was only the minority, Mr. Cleaveland's partisans, the malecontents of the New School party, who responded to these motions, and that in loud, tumultuous cries. After Mr. Cleaveland and his party had retired, or, as they affect to call it, adjourned, the majority re- mained, and quietly proceeded to the transaction of business. It is claimed for Mr. Cleaveland's proceeding, and those which ensued and were based upon it, that it was a regular process of organiza- tion, commencing by deposing the moderator and clerks for misde- meanours in office, and in the appointing of substitutes. The votes on these motions were unanimous, or nearly so, say they, for the silence of the Old School party is to be accounted as an affirmative vote, under the following rule : 562 " Silent members, unless excused from voting, must be considered as acquiescing with the majority." Rules for Judicatories, sec. 30. Mr. Cleaveland, say they, addressed his motion to the house, be- cause the moderator had forfeited his office by the breach of Dr. Mason's privilege in refusing to put his appeal. The object of the motion v^^as to remove the offending officer ; to put the motion himself, say they, for his own removal, would have been absurd, and the most convenient form for removing an incumbent, is to elect a successor. It is on this succession of sophisms, that our ad- versaries rely. To deduce acquiescence from our silence, it must be shown that the proposition was submitted to us in an intelligible form, and that we had reason to believe that our assent or dissent was sought. We have proved that our adversaries had published that they were coming to organize a minority assembly. If a portion, that is, our party, should reject, their party would organize an Assem- bly which would receive. We being the majority, it is obvious that their intention was not to count our votes, else they could not have organized, for they would have been voted down at every step. We put this question to one of their witnesses, " what was your de- sio^n, in case our party had voted on Mr. Cleaveland's motion? "His honour excluded the question, otherwise a few words from the wit- nesses in reply, must have settled this case. He must have answer- ed, in consistency with the caucus resolution, we would have disre- garded your vote. Our party, then, understood there was to be an interruption which they would not be permitted to silence by a ne- gative vote. Was there any thing in the preamble to Mr. Cleave- land's motion to undeceive them? It was in these words: "That, as the commissioners to the General Assembly for 1838, from a large number of presbyteries, had been refused their seats; and as we had been advised by counsel learned in the law, that a consti- tutional organization of the Assembly must be secured at this time, and in this place, he trusted it would not be considered an act of discourtesy, but merely as a matter of necessity, if we now proceed to organize the General Assembly of 1838, in the fewest words, the shortest time, and with the least interruption practicable. He therefore moved that Dr. Beman, of Troy, be moderator, to preside till a new moderator be chosen." At least, such is represented to have been the substance of the paper in the New School minutes for 1838. Its first statement is, that a large number of commis- sioners had been refused their seats, the caucus resolution antici- pated such an event. The event, however, was not the casus datus of the caucus resolution, for the refusal of seats was not by any portion of the commissioners, but by the clerks, whose act was not confirmed by any portion of the commissioners; and if the testi- mony of the relators' own witness, Mr. Phelps, is to be credited, had the question been brought before the commissioners, the deci- sion of the clerks would not have been confirmed. But this paper further proceeds to state: "And as we have been advised by coun- sel learned in the law." Who were we? Certainly not the Old School party, or the majority, but the New School party, the parti- 563 sans of Mr. Cleaveland. They had consulted counsel, as it is in evidence, and had been advised as this paper states. Mr. Cleave- land further reads, "he trusted it would not be considered an act of discourtesy, &c., if ice now proceed to organize." We again ! What we? the sanne who had consulted counsel, that is, the New School party. " If we proceed to organize with the least interrup- tion." To whom is this interruption for which he apologizes ? If this was the act of the whole body of commissioners, it was no inter- ruption! Our adversaries cannot gravely deny, that their caucus resolved to organize a minority Assembly in a certain exigency, and that Mr. Cleaveland's motion was an attempt to carry out that resolution; and that however strong a negative vote had been given on his motion by our party, he would have disregarded it, his motion having been addressed solely to his own partisans. Because that exigency had not arisen, nor the state of facts on which the advice of counsel learned in the law, was predicated, they now disingenuously, we think, endeavour to give it another aspect. As our party understood the proceeding, as they did; as their language plainly purported, it was an interrufAlon in which we had no part. It is not, therefore, fair to contend that we assented to it by our si- lence. Their caucus resolution was published, declaring their in- tentions. Their preface to their motion declares, in effect, its pur- pose to be, to carry out that resolution ; and if there were concealed, under all this, another meaning and purpose, it is plain that we have been entrapped. Independently of the positive purpose evinced by the language of Mr. Cleaveland, irreconcilable with their present pretensions, was there any collateral intimation given by him, from which a mind, even not prepossessed by the declarations of the caucus, could have collected a design to punish the moderator for a breach of privilege, by removing him ? Mr. Cleaveland treated the moderator with contempt, as a nullity; but he said not one word about punishment, nor degradation by removal, nor of the violation of Dr. Mason's rights. This fierce avenger, in the most lady-like terms, soft as the breathings of zephyr, apologized for the interruption ! He expressly excludes the interpretation that his mo- tion was to remove the moderator, for an act of oppression upon Dr. Mason, by telling us ihat the reason of his motion was, that a number of commissioners had been refused their seats, and that the object of it was to organize the General Assembly. We have scarcely patience to comment on these absurdities. If the rights of Dr. Mason had been invaded, the utmost extent to which it would have authorized irregularity, would have been to bring his complaint before the house, in plain, intelligible terms ; to have submitted some proposition bearing directly upon his grievance, and any question that rose upon it, should have been put to the house, (assuming our adversaries' doctrine, that the moderator's implica- tion in the question incapacitated him from performing that func- tion,) by one of the clerks. Such has been the almost immemo- rial parliamentary practice, both trans-Atlantic and cis-Atlantic. 2d Hatsell, 113, 211, 212; 6th Gray, 406, 448; Sutherland, 71, 72; Jefferson, 104. Nay, it is the established order of this very body. 564 See an instance in 1835, in the minutes of that jear. When a member rises from his seat, and usurps the office of moderator, no member can know whether it be a mere disorder, or an irregular rity, justified by necessity; it is the subject of opinion, and there may be diflerences of opinion ; and no man should lose his vote, from an erroneous opinion. But if the question be put by an un- doubted, although inferior functionary, then it is a sufficient caution to every man, that he should vote. But, say our prolific adversa- ries, the clerks were implicated in the crime intended to be punish- ed, and would not have performed the duty. Did you try them? For the honour of our race, both ancient and modern story abounds with instances in which inclination has been sacrificed to duty. Had it been proposed to the clerks, though unsuccessfully, it would have aroused the attention of the members to the true state of the question. But should we concede all the preliminaries necessary to justify Mr. Cleaveland's proceeding, it would be easy to show that the motion itself was a violation of the established rules of or- der. This constitution has an expedient for almost every exigency, and it provides, particularly, for the actual, and, as we conceive, constructive absence of the moderator, caused by his incapacity. In such case, the next preceding moderator must take the chair. There were three moderators present, when Mr. Cleaveland made his motion, who had held the office more re(;ently than Dr. Beman, (General Rules, II.) In chapter xix. sect. 11. of the Form of Government, it is said to be the duty of the moderator " to propose to the judicatory every subject of deliberation that comes before them ;" " he shall give a concise and clear statement of the object of the vote ;" he " shall, in proper season, when the deliberations are ended, put the question and call the votes." The reverend gentleman, Mr. Cleaveland, by a single frisk, overleaped all these well-devised constitutional rules of government. He proposed to the judicatory, not the subject of deliberation, for it would be mockery to call it so, but the subject of action. He put the question and called the votes. But although he thus usurped the office and power of moderator, he forgot his duties, for he did not wait for the "proper season," nor until "the deliberations were ended." He gave no person an opportunity to deliberate, that is, to debate the question, nor even to ask of the mover the meaning or purport of his motion. He read the paper, as it is in evidence, with the trepidation of one who knew he was violating propriety, order, and decorum, and put the question in so hurried a manner, as to forget altogether to reverse it, or if he re- versed it, he did so before the affirmative voting was ended. The whole process from his indecorous interruption to the tumultuous and vociferous adjournment, occupied from three to five minutes. In this brief space the comprehensive genius of these gentlemen de- posed one moderator and elected two others; deposed the stated and permanent clerks, and elected two others, set aside every rule and order of government, and substituted their anarchical principles of necessity. Nature has kindly endowed them with this rapidity of intellect; their new and revolutionary theology has sharpened I 565 their natural faculties; but they must allow the dull followers of the faith of their fathers the time for deliberation guarantied by the constitution. They beside had the advantage of us: they came pre- pared; each had his part assigned, and knew his exits and his en- trances; but we read their conduct only by the feeble light of their own declarations and professions. They told us, from their caucus, that they intended to organize a minority Assembly, and we believed them. Mr. Cleaveland told us the same, and, as if to give us a pledge that he had no sinister meaning, his words were written flown. An entire disregard of the ofBcers of the house and the rules of proceeding, treating them alike as nonentities, assured us that their proceeding was revolutionary. And as there was no allu- sion, in all their proceeding, to the misconduct of the moderator, to breaches of privilege and designs to punish, we must be pardoned our want of super-human sagacity in not finding out all this. And we deprecate the mad injustice which would make our silence, un- der such circumstances, a voting away of our dearest rights. Our adversaries will not assert that we designed that our silence should be counted affirmatively. We have claimed to be the majority. All the relators' witnesses who were questioned on the subject, admit, distinctly, that we were the majority. Allowing them the members from the four synods, we, it is in testimony, outnumbered them by twenty or thirty. But our adversaries, if they are upheld by this court, will have taught us the practical paradox, that, by ecclesiastical dexterity, the mi- nority may be more numerous than the majority. There are some other constitutional views which demonstrate the untenable character of our adversaries proceeding. The modera- tor of the preceding Assembly is required by the constitution to organize that which succeeds, and it is manifest, upon a careful perusal of the provisions of the constitution on this subject, that he is independent of the inorganic body which he is thus moulding into form. After he has completed the process, he is removed by the election of a successor. Deliberative bodies have the power of removing the officers whom they have created, but not those who derive their power from the constitution, independent of the body over whom they preside. The Assembly of 1838 could elect their own officers, but not the officers of the Assembly of 1837, to whom is confided, by the constitution, the power to organize. Those officers were the seminal principle, upon the preservation of which depended the reproduction of a General Assembly in the year 18S8. It is also most apparent that this constitution has deliberately re- i'used to the members the power of appeal from the moderator's decisions on questions of order. The present constitution is entirely silent on that subject; and to show that it is excluded, ex industria, I will refer to the constitution as it existed before the amendments of 1821, and you will find, in the Form of Government, a chapter entitled " Privilege," in which the power of appeal is given, edition of 1806. It was stricken out in amending the constitution. Such a right cannot be implied, it must be express. See JeflTer son's Manual, Sutherland's edition, page 116. A right of appeal is provided for 48 566 by the 9th of certain rules of order, adopted by the General Assem- bly, but this is no part of the constitution, and, as I have shown, un- authorized by that instrument. If I have succeeded in demon- strating this position, I have taken away from our adversaries their great reliance in argument, — the breach of Dr. Mason's privilege in refusing his appeal. Having thus elaborated these principles, I will proceed to take up the exceptions to the Judge's charge, one by one, and show that they are sustained. (Here Mr. H. went through the exceptions at large, see pp. 530 to 542 of this report.) Such, may it please your Honours, are the grounds upon which we claim a new trial. That is the form of our application, but if you concur in any of the great principles on which I have defended the acts of 1837, or condemned the New School organization of 1838, your decision (although, in form, the grant of a new trial,) will be in fact a final determination on the claim of the relators. If you uphold the acts of 1837, there will be peace in these two sec- lions of the Christian church. If your decision is confined to a mere condemnation of the New School organization of 1838, there will be new agitations, and, no doubt, further belligerent measures, as much a reproach to decency and religion, as those which you shall have condemned. Our adversaries say that their design is union, and that they are endeavouring, by force, to throw around us the arms of their fraternal affection. In this they cannot be sin- cere ; they know that your sentence of reunion in regard to ingre- dients that are immiscible, could not be carried into operation, and that such a sentence would compel us to abandon to them all the offerings which our pious fathers have placed on the altar of reli- gion. Confirm this necessary separation, and each party will ulti- mately go on its way rejoicing; for our adversaries, after the first pains of defeat have subsided, will recognize this Court as a means, in the hands of Providence, to arrest their further progress in the paths of error. Mr. Hubbell having closed his argument on Friday, occupying three days instead of two, as stated by mistake on page 542, the Court adjourned to Monday morning. ARGUMENT OF WILLIAM M. MEREDITH, ESa. Occupying Monday and the morning of Tuesday, the 22d and 23d of April. Mr. Meredith said : It has been stated by the learned counsel for the defendants, that the property under the control of the General Assembly amounts to one hundred and seventy thousand dollars, or thereabouts; and he seems to consider that this circumstance gives an importance to this cause which it might not otherwise have. I beg leave to differ from him. If the property at stake here were of the most trifling value, the importance of this cause would not be diminished. Considerations of property are of slight importance in comparison with rights such as those of which the relators here seek the restoration. They, and many of those whom they repre- sent, by the lawless acts of the party to which the defendants are 567 attached, have been excluded from the enjoyment of all their eccle- siastical, and some of their most valued civil personal rights, as well as from all share in controlling the management and appropri- ation of the funds in question, in which it cannot be denied that they have an interest. The relators do not desire to exclude their adver- saries from the full enjoyment of all their rights of person and pro- perty. We have excommunicated nobody. We wish to lake away the property of nobody. We merely desire to be left in the peace- able and unmolested enjoyment of the rights which we hold in common with all the other members of the Presbyterian Church. This case is in two respects quite unprecedented; first in the ex- traordinary number of the exceptions which have been taken to the law as laid down by the learned Judge who sat at Nisi Prius; and secondly, in the fact that in the argument on these exceptions, not a single authority has been produced from any elementary work or book of reports. One or two citations from Hatsell, Jefferson, and Gray's Debates, are all with which we have been favoured. It is obvious, therefore, that our learned opponents have found no sup- port in the common law, in the law of the land, for the principles which they are asking a court, bound to administer that law, to apply in the decision on a civil right created and existing under it. By the charter of the corporation here in question, the General Assembly of the Piesbyterian Church is authorized at discretion to change one-third of the members of the corporation. The General Assembly itself is not incorporated. The relators allege that the General Assembly of 1838 did lawfully elect them in place of the defendants, and thereby amoved the defendants from their office and franchise as trustees. On this fact issue is taken. It is not denied that the relators were elected, and the defen- dants thereby amoved, in due form, by the vote of a body claim- ing to be the General Assembly, and sitting at the Presbyterian church on Washington square. But the defendants allege that the body in question was not the General Assembly, but that the true General Assembly was another body, sitting at the Tabernacle in Ranslead court. It may be well to state once for all, that the Court is to decide in this case on the civil rights of the parties under the charter of in- corporation granted by the commonwealth. We have nothing to do with questions of theology. The rights of electing members of the corporation and controlling the application of its funds, are in the strictest sense civil rights, and are entitled to the protection of the laws of the land. You cannot refuse to determine the question of the election of the relators. That determination depends on the qualifications of the body of electors; and as that body is not itself incorporated, and cannot be made a party, the identity of the body itself, as well as the rights of individual electors, are legitimate subjects of inquiry in trying the rights of the elected. (Symmers m. Regem, Cowp. 489. Townsend's case, T. Raym. 69.) It is necessary to understand the general frame of the church government, so far as it concerns the General Assembly, to which 568 certain powers are given by the charter. The General Assen^bly has the right of electing members of the corporation, but is itself a delegated and temporary body, sitting annually, and composed of representatives from the several presbyteries connected with the church. The presbyteries again are respectively com[)osed of all the ministers, and a delegation of elders from the respective church sessions within certain territorial limits. The church session con- sists of the pastor of the particular church, and the elders elected by the members of the same, and holding their offices for life. A synod is composed of all the ministers, and a delegation of elders from the respective church sessions, within certain territorial limits, embracing the territory of at least three presbyteries. The presbyteries, but not the synods, are represented in the General Assembly, which is, indeed, composed of a delegation from the seve- ral presbyteries. The lowest judicatory is the church session ; from its decision an appeal lies to the presbytery; from tlie presbytery to the synod; and from the synod to the General Assembly, which is the highest judicatory of the church. The case of the relators may be thus stated : 1. That there were in 1837, twenty-eight presbyteries (composing the four synods of Utica, Geneva, Genessee, and the Western Re- serve,) to which were attached sixty thousand communicants and six hundred ministers of the church. That these presbyteries form- ed part of the church, and were entitled to be represented in the General Assembly. 2. That the General Assembly of 1837 attempted to disfranchise these presbyteries, and all the ministers and members of the church within their bounds, and excluded their representatives from the Assembly, by the passage of resolutions which were wholly null and void. 3. That the moderator and clerks of the Assembly of 1837, at the opening of the Assembly of 1838, attempted to carry out these resolutions, and in this and other respects were guilty of official misconduct. 4. That the moderator and clerks were therefore lawfully and regularly removed, and others appointed in their places, by votes of the body duly taken. On the other hand, the defendants allege: 1. That the presbyteries in question were never regularly attach- ed to the church, but came in under an act of the General Assem- bly, called the Plan of Union, passed in 1801, which act they say was unconstitutional. 2. That the act of union was lawfully abrogated by the Assembly of 1837, and that, by virtue of thai abrogation, the twenty-eight presbyteries were out of the church. 3. That the moderator and clerks of 1837 were not guilty of mis- conduct in the proceedings at the meeting of the Assembly of 1838. 4. That the moderator and clerks were not removed by votes of the Assembly of 1838. 569 1. It was fully proved at the trial, that the twenty-eight presby- teries which were excinded, were regularly attached to the Presby- terian Church. We showed this, J. By the acts of the General Assembly erecting these presbyteries, at various periods from the year 1802 downward. The new presbyteries were in all cases formed by dividing presbyteries already existing. 2. The twenty-eight presbyteries were, from the times of their respective organizations, regularly represented in the General As- sembly, and contributed to the funds of the church. 3. When the new constitution of the church was adopted in 1821, all these presbyteries (except a few not then erected) voted on the question of adopting it. As to the twenty-eight excinded presbyteries and their consti- tuent parts, we showed that they were in exactly the same situa- tion as any other members of the church ; and that even if the act of union of 1801 had provided for admitting persons not Presbyte- rians into the church, the bodies in question did not come in under any such provision. But in fact the act of union made no such provision. That act provided that Presbyterian ministers might become pastors of Con- gregational churches, and that Presbyterian congregations might call Congregational ministers as pastors, without incurring the cen- sure of the Presbyterian Church. It further provided that, in cer- tain cases of appeal, a delegation from the standing committee of a mixed church, composed in part of Presbyterians and in part of Congregationalists, might sit in the presbytery. There was never a mode in which any individual could come into the Presbyterian Church under the act of union. The Assembly of 1837 abrogated that act of union, declaring it unconstitutional. Whether it were so or not, is a question which does not concern us so much as Dr. Green and the other fathers of the church, who passed it. Whether it were just, by a sudden abro- gation, to destroy the connexions which had for many years existed between Presbyterians and Congregationalists under it, is a ques- tion which the majority of the Assembly of 1837 probably consi- dered and resolved to their own satisfaction. But when they pro- ceeded to declare that by virtue of that abrogation, twenty-eight presbyteries, including sixty thousand members and GOO ministers of the church, were out of her communion, they exceeded their own powers and trampled on our rights. It has been faintly argued on the other side, that the resolutions of 1837 did not profess to exclude us from the church, because they provided that all who were strictly Presbyterian in doctrine and order, might apply to adjoining presbyteries, and be admitted to connexion with them. So might a person who had been a heathen, a Mussulman, a Jew, a Brahmin, or even a Congregationalist. To allege that these resolutions did not purport to exclude us entirely from the church, is a proposition too glaringly unfounded to require confutation. The allegation shows nothing but the con- sojousness of wrong. 48* 570 - We say that these resolutions, so far as they proposed so to ex- clude us, were null and void. The powers of the General Assembly are to be ascertained by reference to, 1st, the constitution and form of government of the Presbyterian Church; 2d, the law of the land. 1. By the constitution of the church, the General Assembly is the highest judicatory, but its powers are not unlimited. No mem- ber or body of the church can be censured or excluded without an ofience charged, notice, and the opportunity of a hearing and fair trial. (Mr. M. here cited several passages from the Form of Go- vernment, particularly cap. iv., v., and xii. ; and from the Digest, particularly sec. 5, on page 323, given on pages 37 to 40 and 15fi of this report.) Now, the twenty-eight excinded presbyteries were charged with the offences of Congregationalism and gross disorders, or they were not. If they were, they were entitled to notice and a hearing, which it is not pretended they had. If they were not, then all excuse for the proceedings of the Assembly of 1837 is abandoned. It is in vain for our opponents to say that judicatories cannot be cited and tried. If they cannot, their members can be. But it would be tedious, 'tis said, to try them individually; nay, even to select among the several presbyteries those which were perfectly sound in the faith, (and it is acknowledged there were some,) was too laborious a duty for these fathers of the church, the Assembly of 1837. What shepherds are these, who, on a suspicion that there are goats in the flock, drive the whole body of sheep out of the fold, because the task of discrimination is irksome! Do they expect to be thus judged ? But in point of fact, judicatories may, by the usages of the church, be cited and tried; nay, this very Assembly of 1837 had instituted proceedings to cite and try these very judicatories, which, with alJ their members, they afterwards ejected without trial. We have their own formal and solemn acts in direct contradiction to the arguments here used on their behalf. It is true they afterwards abandoned the judicial proceeding by citation, and resorted to ano- ther, in imitation of their respectable predecessors, who dropped the impeachment against Lord Stafford, and brought in a bill of attainder; but the reason was in both cases virtually the same, not that an impeachment would not lie, but that the defendants were likely to be acquitted. The General Assembly of 1837 had no warrant then for their pro- ceedings in the constitution and form of government of the church. They violated all law and all precedent. If the excluding resolutions be tested by the principles of the common law, the result is the same. Our law knows of no dis- franchisement, unless for sufficient legal cause and after a fair trial. (Baggs' Case, 11 Rep. 99. Comm. vs. St. Patrick's Society, 2 Binn. 448. Comm. vs. Guard's Poor, 6 S. and R. 469.) In Symmers vs. Regem, (Cowp. 489) the common council had undertaken to disfranchise for defect of qualification, nineteen of their own body, who held under an election had ten years before. At a 571 corporation election subsequently held, the Mayor rejected the votes of the persons thus excinded. Lord Mansfield, speaking of the ar- gument in support of the rejection of the votes of these persons says, (p. 502,) "The next ground is that they had been disfranchised; that the disfranchisement was still in force, and their restoration not till after the election. As to this objection, a great deal depends upon the use of the word disfranchisement; otherwise it creates a confusion. But on looking into it, this is no disfranchisement, nor is there a pretence for calling it so; but it is doing that which the common council had not the semblance of a right to do; taking upon themseles to judge of the validity of an election ten years be- fore, and to declare it nw// and void for want of a qualification at that time. The word " disfranchisement," signifies taking a fran- chise from a man for some reasonable cause ; which they do not do, but only say they never were common council men. What authori- ty have the common council to do that? None. It could be done only by information in the nature of a quo ivarranto. But suppose it had been a disfranchisement, how does it appear to the court that the common council have a right to disfranchise? It is inci- dent to the corporation at large to disfranchise, but not to a select body. It does not follow that the select body who has a right to elect, has from thence a right to disfranchise. But the fact is, it is no disfranchisement at all." By the constitution of the church, and the law of the land, the ex- cinding resolutions were absolutely null and void. The answer w^hich is attempted to all this, that the resolutions were not judicial acts, amounts to nothing. Though passed by a body, purporting to be a judicatory, they were not in form or in substance judicial, and that is exactly what we complain of. They professed to do without notice, trial, or judgment, that which by law could not be done without all these. As corporate acts they would be therefore void. As acts of a body so connected with a corporation, as to make the rights of its members the legitimate subject of judicial consideration, they are equally void. No man, I think, will deny that when, as in this case, the title of the corporators depends on the acts of a body like the General Assembly, the court will apply to these acts by analogy the same rules which would be applied to the acts of a corporate body, founded as these rules are in justice and common sense, and supported as they are here by the provisions of the con- stitution of the General Assembly itself, and the form of government of the church. It has been said, that by the constitution, the General Assembly has express power to erect presbyteries, and may therefore dissolve them ; since the same power which can create, can also destroy. That is universally true of none but the Almighty povi^er. Lord Mansfield's opinion, above quoted, is a sufficient answer to the pro- position as applied to such a body as the General Assembly. Be- sides, if they could dissolve presbyteries at pleasure, they did not dissolve these, but ejected all their ministers and members from the church, which is a very different thing. There is another view of this subject, which has been hinted at, 572 and which I will proceed to consider. It looks to a justification of the excinding resolutions, as a high act of legislation, necessary for the preservation of the church in its purity, and therefore above all ordinary rules and limitations. We are so prone in this country to political metaphysics, that I can scarcely wonder that even in this case we are invited to discuss them. Supposing the Assembly to have been a body with general legislative powers unlimited, except where express limitations are imposed, (instead of being a mere judicatory with limited and enu- merated powers,) I deny that they would, even in that case, have any right to exclude a presbytery and its members by a legislative act. The Assembly is a body composed of the delegates of the presby- teries. The presbyteries were organized bodies before the Gene- ral Assembly came into existence, and it was originally established by the act of these presbyteries. By the constitution, as adopted by the presbyteries, it is provided that no constitutional rule shall be adopted by the General Assembly without the formal consent of the majority of the presbyteries first obtained, and the constitution secures to each presbytery a representation as such in the General Assembly. When a portion of the territory forming one presbytery is divided by the General Assembly in the prescribed mode, and the two parts erected into distinct presbyteries, each retains in its new organization all the rights which had previously appertained to the old presbytery, and each stands on exactly the same footing as if it had had a separate existence when the constitution was formed and had become a party to it. In fact, almost all the excinded presbyte- ries were already formed, and voted on the constitution of 1821. It is further to be observed that a General Assembly is not essential to a Presbyterian Church. Such a church may be composed of a single presbytery, and be a true, genuine Presbyterian Church. For many years there were two Presbyterian churches in this country, consisting of the two disconnected presbyteries of Philadelphia and New York, by whose subsequent union the present Presbyterian Church was formed. It is to be remarked, also, that the efl^ects and consequences of the excinding resolutions, if valid in the sense contended for by the defendants, are manifold, viz: 1. That the ex- cinded presbyteries lose their right to participate in the exercise of the corporate franchise, and their interest in the common property. The right of electing members of the corporation is a corporate franchise, though the body to which it is granted be not a corporate body. The non-excinded presbyteries, on this hypothesis, retain to themselves the exclusive possession and enjoyment of this franchise and of the common property. 2. That the excinded presbyteries and their constituent parts cease to be members of the Presbyterian Church, and all property given to or held by them, or any of their constituent parts, as members of, or for the use of the Presbyterian Church, is diverted from them and subjected to the exclusive controul of the non-excinded presbyteries. The question is. Are the excinding resolutions valid as legislative acts of the General Assembly? We contend that they are not. That neither the General Assem- 573 bly, nor a majority of the presbyteries themselves, could exclude a single presbytery on the footing contended for on the other side. By the constitution of the church, the General Assembly is pro- hibited from adopting any new constitutional rule, without having first obtained the consent of a majority of the presbyteries thereto. It is on this ground that the defendants maintain the invalidity of the Plan of Union of 1801. Grant, for the sake of the argument, the truth of all they have said on this subject. But by the same con- stitution, the presbyteries are the sole judges of the propriety of ad- mitting members into the church, and the Assembly has full authori- ty to erect new presbyteries. It cannot, therefore, with any show of reason be said that the acts of the Assembly for dividing old pres- byteries and erecting their several parts into new and distinct ones, "were invalid or unconstitutional. In the authority to erect new presbyteries, is necessarily included the right of deciding on the qualifications of the parties, and the decision of the General Assem- bly on that subject is final and conclusive, as far as concerns the validity of the establishment of the new presbyteries. Suppose, therefore, that these presbyteries were composed of Congrega- tionalists, they would still be lawfully constituted presbyteries, and would retain their rights as such until they should be excluded b}-- a judicial sentence. Is or is not a legislative act, excluding certain presbyteries from all participation in the Assembly, the adoption of a new constitutional rule? The constitution provides that a// the presbyteries shall be represented in the Assembly, and a provision that one or more of them shall not be so represented is not only a new pro- vision, but is wholly inconsistent with the terms of the constitution. Again : Grant the Assembly to possess indefinite legislative powers ; grant that they may destroy their own contracts, tear asunder pas- toral relations existing for thirty-five years under their sanction, stigmatize the fathers of their chur'ch as the authors of "an unna- tural and unconstitutional Plan of Union," or do any thing else which passion or prejudice may cloak under the name of self-pre- servation, there is still one thing which even in this hypothesis they cannot do. As a delegated body, they cannot destroy their own constituencies; they cannot abrogate the contract under which they sit, and from which alone they derive whatever of authority they possess. To say that, even as regards themselves, they have no right to do this, is merely to say that the right of self-preservation must run mad before it can include that of self-destruction. When I agree, that a man or body of men may, in case of necessity, do almost any thing to preserve their lives, I must except suicide. But I go further than denying their right, I say they cannot do it. They may refuse to perform their own duties as delegates, but they can- not destroy the compact made between the presbyteries, and to which the presbyteries are the only parties. Notwithstanding their attempt the compact remains in full force and vigour. The attempt itself is an effort to revolutionize, and not to admi- nister, the government of the church. In a civil government it would be revolution or rebellion, as thereafter might be. But the right of revolution or rebellion is too valuable to be granted away to a private corporation. 574 If the majority of the electors of trustees of the General Assembly of the Presbyterian Church, could, by a revolutionary measure, de- prive the minority of their interest in the joint property to the amount of one hundred and seventy thousand dollars, we might have boards of directors appropriating the corporate funds to themselves under declarations of independence, and stockholders taking away their fellow stockholders' shares of the dividends, by voting themselves in a state of permanent insurrection. Unfortunately for the defend- ants, corporations are not states. In political revolutions, the parties trust in their own arms and appeal to the judgment of heaven ; but in corporation contests, they must trust in mesne process, and appeal to the laws of the land. Political necessity is a phrase sometimes used to excuse a dishonest act perpetrated by bodies which are beyond control; but corporations and individuals are not beyond control, and courts of justice are expressly instituted to restrain them from coups d'etat. Could the common council of a city, where the respective wards send members to that body, exclude certain of the wards from the city, and deprive their representatives of their seats in the council? The attempt would be wholly absurd, and any resolution for effect- ing it would be absolutely null and void. At the next election the excinded wards would elect their members as usual, and these members would have precisely the same right to take their seats in council as those from any other part of the city. Yet, absurd as such an attempt would be on the part of a city council, it seems precisely analogous to the course pursued by the General Assembly, and here gravely defended as just, lawful and meritorious. If congress should pass an act, excluding a state from the union and her representatives from congress, or declaring the minority to be the state and that the representatives of the minority should sit in congress, such an act would be merely void of all legitimate effect. The citizens of the excinded state would still rightfully hold their elections and the members elected by the majority would be entitled to sit in congress. The government may be dissolved, and a new one established ; but, short of that, none of these things can be done without the consent of the parties to be affected, or an act of some wholly superior legislative power. It would be of no importance, in what manner the excinded state had originally come into the Union, whether rightfully or wrongfully, for acquiescence makes right. Should congress declare the state of Louisiana, for instance, to be no longer a member of the Union, because the act for her ad- mission was unconstitutional, the declaratory act would be merely void. Should any of the states successfully adhere to the act of congress, they would be seceders from the Union, and those states which should refuse to adhe^re to such an act, and whose represen- tatives should continue to sit with those of Louisiana, would be the rightful successors of the present government of the United States, as Rehoboam's kingdom continued to be the true kingdom of David, though ten tribes out of the twelve had seceded. On every ground, therefore, I repeat that the excinding resolutions of 1837, were merely null and void. 575 The presbyteries themselves could not exclude one of their num- ber. The two presbyteries of Philadelphia and New York, were at one time united in a synod, and afterwards separated, in conse- quence of party divisions sonnewhat similar to those which now prevail. When these presbyteries united in a synod, they formed one government, just as the church now does, or was designed to do, under the General Assembly. Could one of these presbyteries, or its representatives in the synod, have excluded the other, retain- ed the name of the synod and the common property, and taken the property, held by the other for the Presbyterian Church '( Such an act of robbery and fraud was never contemplated by the venerable men who controlled rhe parties in the church at the time of the first separation. When the two presbyteries found that they could not agree in union, they agreed to separate; dissolved the government which they had formed into its original elements, and, instead of one synod, there were again two presbyteries, neither of them pretend- ing to be the exclusive successors of the former synod. Why could not so just and righteous an example have been fol- lowed now 1 It is true, the common property is now of greater amount, and offers a larger prize to ambition or cupidity. The temptation to err is thus increased, and therein lies the whole dif- ference between the two cases. If the Old School presbyteries could no longer meet their brethren in harmony, they might leave them, and form a new organization of their own; but, having done so, they cannot claim to be still the same body. The charter was granted to trustees to be elected by the General Assembly as it was then, composed of members from all the presbyteries. A part of the presbyteries cannot break down the existing government of the church, establish a new one, including part only of the whole, and still claim to enjoy the privileges, which, by the charter, were granted to the whole. We next come to consider the conduct of the clerks and mode- rator of 1837, at the opening of the Assembly of 1838. The clerks, it should be recollected, hold their offices during pleasure. Each Assembly elects its own moderator, and it is provided that the mo- derator of one Assembly shall, (if present,) open the next, and pre- side until a new moderator be chosen. First, of the clerks. In order to avoid the waste of time and confusion which attended the verification of all the commissions of members in presence of the whole body, a rule has been adopted in modern times, by which the clerks are constituted a committee of commissions, whose practice it is to examine all the commissions which may be presented to them, before the meeting of the Assem- bly; to report as received those commissions of whose authenticity and regularity they are satisfied; and to report, for the judgment of the Assembly itself, those which appear to be irregular, uncon- stitutional, or not authentic. The latter class are referred to a committee of elections, whose appointment is the first business in order. We allege, that the clerks were guilty of misconduct, in refusing to receive the commissions of the excinded presbyteries. It was 676 their duty, we contend, to receive and report them as regular to the Assembly. They refused even to examine them, grounding their refusal on the excinding resolutions of the Assembly of 1837. It is in vain that our opponents attempt to deny in argument, that the clerks, in their refusal, were carrying out the resolutions of 1837. The reply which they made to the application to receive the commissions, \\'as too explicit to leave any doubt on this mat- ter; and those gentlemen themselves have never alleged any other reason for their conduct, and would doubtless resent the imputation ol" having been governed by any other motive, as strongly as they resented, in 1837, the anticipation that they might possibly act otherwise. H, therefore, we are correct in saying that the resolu- tions of '37 were null and void, and that the rejection of the votes •of the persons excluded by them would vitiate an election, (Cowp. 489,) it follows, that the clerks, acting as a committee of elections, violated their duty in rejecting our commissions. But, at all events, taking their own ground, it was their duty to report to the Assem- bly these comtnissions, as having been rejected, so as to leave the question of their reception to the Assembly itself. One of the clerks has very frankly stated that he thought then, and still thinks, they ought to have done so, but was overruled by his elder and more experienced colleague. They thus made themselves parties to the combination which had been formed to prevent the question of the validity of the excinding resolutions from being presented, in its le- gitimate order, to the Assembly of 1838. The moderator of the Assembly of 1837, was another party to that combination. In the x\ssembly of 1838, his main effort seems to have been, to use his opportunities as moderator, to obstruct the lawful organization of the body, and to force it to organize in con- formity with the illegal acts of '37. I pass over his rejection of Mr. Patton's motion and appeal, for the reason he gave was per- haps a sufficient one, that the house was not yet formed. But, after the clerks had reported the roll, and the moderator had declared the house to be formed, he persisted in the same course. When he had called for the presentation of commissions, (I shall not stop to discuss the conflicting evidence as to the precise phrase which he used,) and Mr. Squiers presented his own, the moderator refused to hear him, only after ascertaining that he came from one of the ex- cluded presbyteries, thus showing, that the grounds of his refusal were the excinding resolutions. It has been said, here, that this re- fusal was right, because Mr. Squiers had not been admitted as a member, and therefore could not make a motion. The excuse may pass, and yet it is to be observed, that, by the universal usage of this Assembly, and the practice of this moderator himself, (as evinced in the case of Joshua Moore,) the persons claiming seats always presented their own commissions, and were received to do so, without a motion by any sitting member. Dr. Mason then made his motion, accompanied by the presenta- tion of the commissions: this motion, which was duly presented, was also rejected by the moderator. Dr. Mason appealed from his decision, and the moderator refused to put the appeal. 577 The motion of Dr. Mason is said to have been out of order for several reasons. 1. Because the moderator had called for commissions which had not been presented to the clerks, and these had been presented to them and rejected. The weight of the evidence is, that tlie mode- rator did not so limit his call for commissions, but I think it very immaterial whether it were so or not. The clerks having withheld from the house the fact that these commissions had been presented to them, the moderator could have no otficial knowledge of that fact. It is the undoubted right of the house to have all its members, and to determine on their qualifications. By the usages of the As- sembly, the persons claiming seats were divided into three classes, — those who were reported by the clerks as having constitutional and regular commissions, those who were reported as not having such conj missions, and those who were not reported by the clerks at all. It is true, it was the duty of the clerks to report on all the commissions presented to them, but here they had refused to per- form that duty. There were but two courses to be pursued. One was, to compel the clerks to complete their report by insjrting the omitted names; and this course the moderator decided to be out of order when he refused to receive Dr. Patton's motion. The other course was to consider those commissions as belonging to the class not reported on, and allow them to be presented with the others of that class to the house. The moderator, in effect, could have no right by limiting his call to postpone the claim of one mem- ber to that of another. When the house was formed, all the members, whose claims were not already before it, had an equal right to pre- sent themselves. The wrongful act of the clerks could not affect this riojht, nor could the wroncpful act of the moderator. He could, as presiding officer, make no arbitrary distinctions : he could not say that he would receive commissions from those claimants only who wore whiskers, or motions from those members who wore wigs. It is said that the moderator did not pronounce Dr. Mason's mo- tion to be out of order absolutely, but only out of order "at this time." I again say that the weight of evidence appears to me to be against his use of the phrase "at this time." The question is of no importance that I can perceive, except that the use of the phrase "at this time," would be an admission that the motion was orderly in itself if made at a proper time. But this motion was made at a proper time. There was no inter- ference with Joshua Moore's presentation of his commission, for it was found that he did not come forward with it till aftei wards. Nor was there any violation of the rule that the first business shall be the appointment of a Committee of Elections. It never was the usage of the Assembly to appoint that committee until after all the persons present claiming seats had presented their commissions. The mo- derator himself had called for commissions to be presented. The rule for the appointment of a Committee of Elections was itself not binding on the Assembly of 1838 as a rule, for they had not adopt- ed or acted on it. And if it had been binding as a rule, it was one 49 678 which concerned the order of business merely, and naust o;ive way to a question of privilege, such as the reception of a member. This is perfectly clear, whether as a question of corporation law or of parliamentary law. In Austin vs. Osborn, (Com. 24.3,) the corporation of Hythe being assembled, admitted a freeman, then proceeded to continue and swear in certain otiicers of the corporation, and that being done, were proceeding to the election of a mayor. The mayor had laid down his mace, and the freemen had been summoned in the usual manner, by the blowing of a horn, to the election of a mayor; when certain persons presented themselves and claimed to be admitted as freemen. They were refused admission on grounds similar to those taken here. They were not in order " at this time." Other business was actually in progress, viz. the election of a mayor. The rejected claiina'nts then tendered their votes at the election of mayor, and were again refused, because they had not been admitted as freemen. The Court of King's Bench held that as these persons were in fact entitled to be admitted, the refusal of the mayor to admit them, (not- withstanding the time at which they offered themselves,) was a tor- tious refusal, and that being so, they should not be injured by it, and that their votes at the subsequent election ought to have been re- ceived. The parliamentary law is equally well settled. " Although a question is moved, seconded, and proposed from the chair, if any matter of privilege arises, either out of the question itself, upon any quarrel between members, or any other cause, this will super- sede the consideration of the original question, and must be first disposed of." (2 Hatsell 113-14.) And again, — " When a mem- ber appears to take the oaths, wiihin the limited time, all other busi- ness is immediately to cease, and not to be resumed till he has been sworn and has subscribed the roll." (2 Hatsell 88.) These authorities are irrefragable. If the law were otherwise, a member who happened not to be included in the first roll of the Assembly might be kept out of his seat altogether, if the moderator chose to* keep him out, by a judicious succession of other business. The reception of a member is not provided for in the order of business of any deliberative body that I know of. The reason is, that it is always in order and should not be limited to a particular stage in the business of the day ; but by these new principles of parliamentary law, which the defendants set up, I am not sure that it would ever be in order. But suppose Dr. Mason's motion to have been out of order "at the time," how would that affect the case? He still had the right of taking the decision of the house on the question, whether he was in order. The moderator refused to put his appeal. How is this to be justified ? By denying the right of appeal from a deci- sion of the chair! Then the moderator of one Assembly has the absolute control over the next. I agree that such a moderator l)as all the powers of a presiding officer. I consider him, in regard to the extent of his powers, precisely as if he had been elected by the 579 Assembly of 1838 itself. But I deny that he has a power indepen- dent of the conirol of the body over which he presides. He is not an officer forming an integral part of a corporation: he is like the speaker of a legislntive assembly, or the chairman of any delibera- tive body, and as such, is always, as Mr. Waller said, "m potestate senatns." (4 Cobb. 905.) His decisions on questions of order may be reversed by the house on appeal. He is the mere mouth-piece of the house: in fact, his decisions are of no force, as his own opi- nions; they derive their vigour only from the presumption that he has declared the sense of the house on the particular question : tliey stand as the judgment of the house, unless a member questions that they are so, and demands that the judgment of the house, be ex- pressly pronounced. There is a great misunderstanding of this matter. The decisions of a moderator or speaker have been spoken of as if he constituted a tribunal, from whose decree an appeal is to be taken. It is not so. There is no tribunal but the house itself. The foreman of a jury pronounces the verdict, and it is presumed to be the verdict of the jury; but if either party questions that pre- sumption, the whole jury are called on to express their opinions. In the case of a jury, it is called polling the jury, in the case of a speaker, it is called appealing to the house, but in substance the two cases are alike. The appeal must be taken immediately of course, otherwise the verdict or decision stands as the judgment of the jury or the house. Here Dr. Mason did appeal at once, and his appeal was duly second- ed. Why did the moderator refuse to put it? This question is not to !)c answered by •:~:\\\r\j^ that the decision appealed from was in fact correct. That is of no importance whatever. it is said that an appeal may be made too late, after the house has proceeded with other business. This is very true, but it is not pretended that Dr. Mason's appeal was made too late, and therefore 1 cannot perceive what bearing the suggestion has on the case. But our adversaries are driven to take the broad ground, that no apjieal can be taken from the decisions of the moderator, that what he chooses to decide must stand as absolutely conclusive. I admire their intrepidity. The minute criticism which, in support of this position, has been made on the provisions of the present constitution, as compared with the former constitution of the church, I shall not pause to ex- amine. It may be that the right of appeal is not expressly secured in the constitution of 1821. The right exists nevertheless. It re- sults from the very nature of the Assembly, as a deliberative body. Like the right of debating, it requires no ex))ress provision. But it is expressly provided for in the rules adopted by the Gene- ral Assembly for their own government, and recommended by them to inferior judicatories. The minutes of the Assembly show its existence as a matter of usage. If our adversaries refilv that the rules and usages of former Assemblies are not binding upon their successors, I have no objections to admit that such is the case. But the question here is, whether a power has been given to the moderator entirely beyond the control of the Assembly itself. If it 580 has been given, then a rule or usage to the contrary would be un- lawful. Now our opponents do not pretend that the rules or usages spoken of, were unlawful. They admit, therefore, that the Assenn- bly may control the decisions of the moderator if they choose, and by that admission they give up their argument, for in that case the moderator's power is not independent. In fact the idea that the presiding officer of a dehberative assembly is the absolute master of the body, seems so wholl}' preposterous, that I am at a loss to know how to consider it gravely. The constitution of the United iStates provides that the vice-president shall be president of the senate, but I do not recollect that it stipulates that an appeal shall lie from his decision on questions of order. But as such appeals have been always practised, and no man has yet been found to question their legality, I think I will leave this part of the case on the precedent afforded by the rules and usages of that body. The moderator, then, was guilty of misconduct in refusing to put Dr. Mason's appeal to the house, if in no other respect. In his whole career, indeed, he was violating the duties of his office and obstructing the course of business which he was appointed to carry on. We next allege, that the moderator and clerks were respectively, by votes of the house, removed from their offices, and others ap- pointed to fill them, and tliat the Assembly adjourned its session from Ranstead's court to Washington square. It is not necessary to go over all the motions and votes on this occasion, for all depend on the same principles for their validity. I will follow the example set on the other side, and confine my re- marks to the motion made by Mr. Cleavcland for tho appointment of Dr. Beman as moderator. If that motion were lawfully made, put, and carried, the case is with us. That Dr. Beman was in fact elected moderator by the votes of a majoritv of the members present and voting, was a much contested part of the case before the jury, and has been found in our favour hy the mrdicL Many witnesses were examined on both sides in regard to it, and as the learned judge, who tried the cause, left it fairly to the jury on the evidence, and has expressed no dissatisfaction with their find- ing, we may be spared the pains of a very critical examination of the testimony. I shall briefly notice the evidence in connexion with the questions of law connected with this part of the case. Mr. Cleaveland's motion I am to contend was lawfully niade, put, and carried. 1. It was lawfu ly made. It was made by Mr. Cleaveland and seconded by another gentleman, both the mover and seconder being actually silting members of the Assembly, enrolled, and received as such, and whose right, neither the moderator, clerks, nor any one else, then, or at any time, denied or questioned. The motion was in proper form, being in effect to remove the moderator and put another in his place. It was not, as has been contended, in- sidious or ambiguous. It would have been sufficiently explicit un- der any circumstances, for as the Assembly could not have two 581 moderators at the same time, if tiie motion, "that Dr. Beman be moderator," were carried, the necessary effect would be to remove the former incumbent. Rut the form of the motion was pecuharly appropriate, as Dr. EIHott's tenure of the chair was, by the consti- tution, to continue only " until another moderator should be chosen." j\o instance can be produced from the minutes of the Assembly, in which the motion to choose a moderator was accompanied by a clause expressly removing the old one. The motion was in itself a lawful motion. As the moderator was to continue only until another should be chosen, it seems odd that it should be urged by the defendants, that a motion could not be inade to choose another. The clause in the constitution which provided the tenure of his office, put him, in effect, in the same position as a moderator chosen by the Assembly of 1838, that is, he held the chair during the plea- sure of the house. The speaker is the mere servant of the house, and though it is not usual to remove him capriciously or without reasonable cause, yet the house is the sole judge of the sufficiency of the cause alleged, and may remove without cause if they see fit to do so. But here there was ample cause, if the misconduct of a presiding officer be such. The moderator, instead of promoting the transac- tion of business in a constitutional and orderly way, was disturbing it by all means, however unlawful and irregular, and at last his re- fusal to put Dr. Mason's appeal, showed that he was resolved to dis- regard all rules, precedents, and even the decencies of parliamen- tary proceedings, and surrender himself wholly to the guidance of his own passions and prejudices, and those of the other members of the unlawful combination to which he had attached himself. Am I asked to prove, that in such a state of things, the house could re- move the moderator? It is to prove that the house could transact any business. The legitimate result of the principles propounded on the other side, is, that if a moderator refused to permit any ques- tion to be put or any member to speak, or if he persisted in deciding questions against a clear majority, and I'efused to allow the ayes and nays to be called, that the house, even if unanimous, could not re- move him, but must remain in a state of paralysis, until his heart should be changed. But this is not, nor ever was the law. They have appealed on the other side to parhamentary law and pre- cedents. There never was a time when the house of commons had not a right to remove their speaker in case of inability or mis- conduct. In 1391), Sir John Cheney, speaker, declaring that by a sudden disease he w^as unable to serve, the commons chose Sir John Dore- ward in his room. (2 Hats. 201.). In 1413, William Staunton, speaker,, being taken suddenly ill, the cominons again chose Sir John Doreward. (Id. 202.) In 1436, Sir John Tirrel, speaker, being disabled from attending by sickness, William Boerly, Esq., was elected in his room. (Id. 202.) In 1454, Thomas Thorpe, Esq., speaker, being detained a prisoner 49* 582 in execution, by the overbearing power of the Duke of York, the commons elected a new speaker in his room. (Id. 202.) in 1672, Mr. Speaker being ill, and desiring leave to retire, an- other speaker is chosen in his room. (Id. 203.) In 1673, Mr. Seymour being speaker, Sir Thomas Littleton al- leged reasons why he ought not to be speaker, (the reasons not founded on alleged misconduct in the chair) and moved for a speaker pro tempore. A long debate ensued, in a house in which the speaker's friends were in the majority, but no man, in the course of the debate, doubted or questioned the right of the mem- ber to make the motion, or of the house to pass upon it, and they finally got rid of it by the previous question. (4 Cobb- 589-591.) Here is ample nuthority for the position which we maintain, if, indeed, any authority were necessary to establish a doctrine so reasonable in itself, and so essential to the existence of a delibera- tive body. It is a mistake to suppose that Dr. Mason alone could make the motion, as he was the member whose appeal the moderator had re- fused. Every member of a parliamentary body knows that the whole body is injured by the misconduct of a member or officer, and that the light of moving on the subject is not confined to the party immediately connected with the transaction complained of. Indeed, from motives of delicacy, it is usual for some other member to propose a vote of censure or removal, in order that no colour of personal motive may be given to the proceedings of the house. In contests with the chair especially, the member directly involved may be ignorant of the rules of order, or too feeble in temper, or too inexperienced, to protect himself, and he is entitled to the pro- tection of other members who may be more highly gifted, and who, in ])rotecting the rights of tlie party assailed, are at the same time guarding their own, and vindicating those of the whole body. There seems to be not the slightest ground for the proposition ad- vanced on the other side, that if the moderator of the last year were removed, the next oldest moderator present should take his place. The constitution provides for but one moderator of a former year, (not as a germmatingroot, not as a primary formation and substratum ior secondary deposit or alluvial increment — not as trap, stilbite, ser- pentine or puddingstone, nor as any other thing connected with any of the natural sciences,) but as a person whom it is convenient to place temporarily in the chair, till the Assembly shall choose a pre- siding officer for itself. It does not provide for a train of old mo- derators to pass in endless array across the chair, like the proces- sion of the Pre- Adamites in "The Caliph Vathek." 2. Mr. Cleavelaiid's motion was lawfully put. It was put to the house, and not to a part of the house only. This fact has been found by the jury. On the trial many speculations were hazarded on the word "We," which it appeared Mr. Cleaveland had used in his preliminary remarks. The word "We" is used in various senses. In its royal and editorial sense it designates the respective individual monarchs to whom the government of the country or the press is confided. In its parliamentary sense, it means the whole assembly 583 in which it is used. And as Mr. Cleaveland was addressing a de- liberative body of which he was a member, we thought and think it very obvious that he used the word in its parHamenlary meaning. The question was lawfully put by a member. The moderator would not put it: he endeavoured to prevent its being put at all, for the moment the motion was made, he and his t'riends began to be noisy, and continued so during great part of the subsequent pro- ceedings. Besides, as the question concerned the moderator per- sonally, it should have been, at all events, put by some other person according to our usages; and on high parliamentary authority (Sir Thomas Littleton, 4 Cobb., 889.) it may be said that the moderator should even have retired from the house. The clerks were disqualified from putting the question as much as the moderator himself, for the course they had pursued showed that they were participes with him. Besides, while a presiding of- ficer is actually in the chair, the clerk can receive no direction Irom the house, but through him. {2 Hatsell, 257.) But apart from these reasons, peculiar to this case, I contend that it is a mistake to suppose that the clerk, as such, has any preroga- tive in this matter. Even in England he has none such, although there might be the shadow of a reason given for his possessing it there. The speaker of the house of commons must be approved by the king, and the clerk is appointed by the king. (2 Hatsell, 237; 4 Cobb. 1002.) The house forms part of one of the king's courts, and it might with some plausibility be urged there, as connected with the royal prerogative, that if the speaker approved by the king could not act, the next recourse should be to the clerk appointed by him. It is indeed usual for the clerk to put the question of adjournment when the speaker is absent, (2 Hatsell, 211-12,) and the question on the election of speaker, when it is put to a question, (2 Hats. 207;) but in these cases it is entered on the journals that the clerk puts the question "by order of the house;" and if that order were to be put to the question, none but a member could possibly put it. The entry of "ordered" merely on the journal, shows that the thing passed by common consent. If there be a debate, it is entered "ordered^on the question." (Sir Thos. Meres. 4. Cobb, 929.) In 1678-9, a debate occurring on the election of speaker, Mr. Sacheve- rell moves " that the clerk may put the question for adjourning the house till to-morrow." (4 Cobb. 1094.) From these authorities it appears that when the clerk puts a question, it is by order of the house, by common consent, and not by virtue of any privilege of his office. This consent is presumed to be given if no objection be made; and any member may there- fore put the question by like common consent, as was done here by Mr. Cleaveland, nobody objecting to his s'o doing. The notion that the clerk has a privilege superior to that of a member, is, I believe, new, and I am sure unfounded. But I will show a precedent which is conclusive. In the year 1628, Sir John Elliott moved a remonstrance on the subject of tonnage and pound- age, "which, being refused to be read by the speaker (Finch) and 584 clerk, was restored to him again, and by him read, in these words tbllowing," &c. This was again ofiercd to be put to the question, but the speaker said "lie was conmianded otherwise by the king." To this Mr. tSelden answered, " JMr. Speaker, if you will not put the question, which we command }ou, we n)ust sit still; and so we shall never be able to do any thing," &c. The speaker replied, *• he had an express command from the king, so soon as he had de- livered his message to rise." And thereupon he rose and left the chair; but was drawn to it again by Mr, Hollis, Mr. Valentine, and other members. Mr. Hollis swore, " God's wounds, he should sit still till it pleased them to rise." Mr. Selden again urged the speaker to proceed, which he still refused, "with extremity of weeping and supplicatory oration." In the mean time, "since nei- ther advice nor threats could prevail, Mr. Hollis was required to read certain articles as the protestation of the house, the effect of which articles is as followeth, viz." &c. "These being read and al- lowed of, the house rose up, after they had sitten down about two hours." (2 Cobb, 488 — 491.) So that on the speaker's refusal, the question was put by Mr. Hollis, a member, and not by the clerks. Mr. Hollis was afterwards questioned before the privy council, not for usurping the office of speaker by putting the question on the articles, but "for placing himself above divers of the privy council- lors, by the chaii." (2 Cobb, 504.) On the meeting of the next parliament in 1(540, the speaker was severely censured for his con- duct by a vote of the house. (2 Cobb, 552.) And in his impeach- ment (art. 2) in 1642, his refusal to put the question was set forth as one of the high crimes and misdemeanors, a conviction of which he escaped only by flying the realm. (2 Cobb. 694.) If it be said that these precedents occurred in turbulent times, and are therefore unsafe guides, I reply that the parliament of 1628 is universally acknowledged to have been one of the best, wisest and most judicious parliaments that have sat in England; and I think no precedent can be called unsafe, in establishing which such a man as Mr. Sulden, to say nothing of others, actively parti- cipated. Even the parliament of 1642, whatever else may be said of it, was a good Piesbyterian parliament, till the Independents ad- ministered Colonel Pride's purge to it; and it would scarcely be- come those who hold to the letter of the Confession of Faith adopt- ed by the Assembly of Divines at Westminster, to treat with entire disregard the contemporaneous doctrines propounded by their fel- low-labourers in St. Stephen's Chapel. So much for the parliamentary law on this question. The prin- ciples of the comm(jn law are equally clear. Even where the charter required the presence of the mayor at a corporate meeting, (the mayor being an integral part of the corporation, and not tlie mere officer of the assembly,) if the mayor improperly declares the assembly dissolved, and goes away, the members of the body who remain may finish, in his absence, the business which has been commenced, but not proceed to new business. This goes far be- yond the mere putting a question which the presiding officer has refused to put. Here the business was commenced when Mr. 585 Cleaveland made his motion, and might therefore have been gone on vviih, even if the moderator had been such an officer as a mayor, and had left the Assembly. (Barnnd. 386-6. 6 Vin. 269.) The common law carefully guards against the undue increase of the powers of presiding officers, and therefore a by-law giving a cast- ing vote to the senior bailiff is void. Such a privilege can be con- ferred only by express terms in the charter. (Rex vs. Ginever, 6 T. R. 735.) We know of but one precedent in the proceedings of the General Assembly itself, and that was in 1835, when Dr. Beman first took the chair, and after holding it for a day or two, was removed, and another person put in his place. The question on Dr. Roman's leaving the chair was put by Dr. Ely, who was a member, and also stated clerk. So far, therefore, as regards the not putting such a question by the incumbent of the chair, the precedent is clearly with us; and it seems to be with us throughout, as I apprehend Dr. Ely put the question in his character as a member, and not as a clerk; for the permanent clerk is the officer of the house by whom the proceedings are minuted and recorded. The duties of the stated clerk are different, and occur between the close of one Assembly and the opening of another; and he does not stand to the house in the same relation as the clerk of the house of cotnmons and other parliamentary bodies. He is more like a secretary of state. Jf Dr. Beman and his friends, on the motion for putting another in his place being made, in 1835, had commenced making all sorts of un- seemly and disorderly noises, rapping with hammers, stamping with feet, coughing and exclaiming, the most material difference between the two cases would be removed. If the question was properly put by a member, it was lawfully put in other respects. That it was audibly put, actually heard and understood, and that it was reversed, these are questions of fact, which the jury have found in our favour upon irresistible evidence, which I shall not weary the Court with recapitulating. That the moderator and his knot of friends, who were engaged during the proceeding in making unseemly noises, should not have a clear re- collection on the subject, is by no means extraordinary. But we proved by clouds of witnesses all that was material to the validity of the proceeding, and a great part of it was substantiated by the witnesses for the defendants themselves. 3. We maintain that the question was lawfully carried. R was carried by a majority of the members present and votlvg. On the other side, it is contended that it could not be carried, unless by the votes of an actual majority of the members present. We insist that those members who did not vote are not to be counted, and that, as a quorum was present and voted, and a majority of those who voted, voted for the motion, it was carried. To support our position, we again refer with confidence to the rules and usages of this particular body, to the general parliament- ary law, and to the common law. Among the rules of the General Assembly, is one which strongly recommends that all the members of a judicatory should vote, 586 urging on thenfi as a motive for so doing, that otherwise, inaportant measures may be decided by a small proportion of the members present. The universal usage, in conformity with this suggestion, of all the judicatories of the Presbyterian Church, was amply proved on the trial by uncontradicted testimony. The parliamentary law is equally clear; indeed, so clear, that, until the trial of this cause, I cannot find that any question was ever made of it. Who ever heard a question taken by sound in a deliberative body, and does not know that most frequently not one- half of the members actually vote. Even on a division, it often happens that a considerable portion of the members do not rise on either side; nay, they do not always all vote when the ayes and noes are called. Yet in all these cases the question is determined by the majority of the votes actually given, without any regard to the non-voting members; it being necessary, however, in all cases where the ayes and noes are called, that a quorum should actually vnte; and in case of a division, that at least a m;ijority of a quorum should vote in the affirmative to carry the question: though even the requisition that a quorum should vote, has not been observed in the judicatories of this church. But the rule of the common law on this subject, (which, after all, is the only authority on a corporaticm questinn,) is most incontro- vertilily established. If a quorum of members be actually present, and an election l)e lawfully proposed, although the mnjority of the members present actually protest against holding the election at all, and refuse to vote under that protest, their protest and refusal are unavailing, and the candidate having a majority of the voting mi- nority, is duly elected. (Rex. vs. Foxcrofi : Oldknow vs. Wain- wright, 2 Burr. 1017, 1020.) The majority can prevent it only by voting for another candidate. So if the majority vote for an un- (jualified person, the candidate of the minority is duly elected. (Clandgi vs. Evelyn, 5. B. and A. 86.) The same point was deci- ded in Rex. vs. Parry (14 East, .'^(•l, vid. 550 in vol) and in Rex. vs. Hawkins (10 East. 214.) These authorities are full and abundant <>n the question, and go beyond the principle which we are called upon here to maintain. The rule as thus laid down is founded on the strongest principles of reason. Business could not be carried on in a public body, if a portion of the members, by refusing to perform their duties, could stop all proceedings; and it would be still worse if the disorderly conduct of a part could vitiate the proceeding of the remainder. ]n either case a premium would be offered on misconduct, by giving an advantage to those who were guilty of it. The principle which we contend for as sufficient for the necessities of our case, is, that if a quoruiu be present and acting, those who, though present, refuse to act, and commit disorders with the view of disturbing the body, are in law considered as if they were absent. I have thus attempted to display the main and essential features of this case, and shall not undertake to comment on the numerous minor points which have been made by the defendants. In some of them the charge of the court appears to be misunder- 587 stood, and in oil)ers, the decision ot^ the judge on questions of e\i- dence. For instance, I do not. understand the learned judge to have charged, that there was any acquiescence of the presbyteries in the sitting ot Congregational members in the Assembly under the guise of Presbyterians. Nor did we contend that there was any such ac- quiescence, nor was there any evidence that any such peisons ever sat. In the year 1801, and for many years prior and subsequent, there wee Congregational members received and sitting avowedlv as such in the Assembly, under and by virtue of the previouslv existing plan of intercourse with the association of Connecticut and other Congregational bodies. But the acquiescence which the judge charged upon, was an acquiescence of the presbyteries in the Plan of Union of 1801, of which ihcy all had full knowledge, and in which they certainly did acquiesce for more than thirty years. Nor is it accurate to say that the judge left to the jury a question of law on the conduct of the moderator. He left to the jury the question whether Dr. Elliott's conduct was governed by an intention on his part to carry out the resolutions of 1837; and this was a question of fact. He charged the jury that if that were his motive, then his acts were unlawful, and that was a question of law. I need not vindicate the observations of the judge on the com- parative strength of affirmative and negative testimony, for they re- quire no vindication. Indeed the defendants admitted them to be correct in the general, but supposed that there was some peculiari- ty in the present case, which rendered them inapplicable to it. The subject of inquiry being whether Mr. Cleaveland's motion was audibly made and put, and the question reversed on it, we produced many witnesses who actually heard all this, and who occupied posi- tions in all the most remote quarters of the church. Most of the defendants' witnesses themselves heard quite enough to give them a clear apprehension of the character of the proceeding which was going forward. The defendants, however, produced some wimesses who did not hear the motion or question. Under ordinary circumstances it would have been difficult to account for the fact that so many gen- tlemen of more than common intelligence should have failed to hear the announcement of a question in a body of which they were mem- bers. The peculiarity of the case lay here, that we were able fullv to account for and explain this fact, by showing that they and their friends were filling their ears at the time with the music of stamp- ings, hammer-rappings, and noisy exclamations. Instead of laying down, as he did, the ordinary rule of comparison between affirma- tive and negative testimony, the judge would have been justified in telling the jury that, under such circumstances, the superiority of affirmative testimony was very greatly enhanced. In relation to the points on which the respondents' counsel re- quested his honour to charge the jury, I do not know that I have any occasion to remark, furtlier than I have already done in llie coiu'se of my observations. Tiie suggestion that we have recognized the acts of the Assembly 588 of '37 subsequent to the excision, and are thereby barred from questioning the legality of the excinding resolutions, and the re- maining objections to the charge and the admission and rejection of evidence, as well as the exceptions to the form of the verdict, I shall say nothing upon, leaving them with entire confidence to the determination of the Court without argument. The charge of the learned judge will survive all the assaults which may be made upon it, and will be looked up to in future time, as a lucid and masterly exposition of the important principles involved in this case. One misunderstanding I beg to correct. It is stated that the judge refused to permit the defendants to prove that the excinded presbyteries had not contributed to the funds of the church. As part of our evidence of actual, recognized membership, we had proved the acceptance, through a series of years, of our contribu- tions, by the General Assembly. The defendants ofiered to prove, not, as is supposed in the exceptions, that we had not contributed, but that our contributions were small in amount. This ofler it was that the judge rejected, and properly, for the question was of our having been adinitted to contribute to the funds of the church as members, and not of our poverty or wealth. The legal effect of our contributions does not depend at all upon their amount, and we have the highest authority for believing that there may be as much merit in every sense in the gift of a mite as of a talent. If the de- fendants had offered to prove that we had not contributed at all, that would have been certainly admissible, and we should not have objected to it. The offer made by the defendants to prove that there were, in the excinded presbyteries, churches which were in part Congrega- tional, was very extraordinary, and was rightly rejected. A person or body who is connected with the Presbyterian Church becom- ing Congregational in doctrine and order, is guilty of an eccle- siastical offence, for which he can be tried and punished by the judicatories of the church alone. Their judgment on such a ques- tion is final and conclusive, provided only that the alleged offenders have had notice of the charge, and an opportunity of being heard on a fair trial. But civil tribunals have no jurisdiction in cases of heresy; and melancholy will be the prospects of religious freedom, when such questions shall be allowed, directly or indirectly, to be brought before our courts. Lejgally considered, these are in the hght of corporate offences: they are triable in the corporate courts alone, and on the principles of corporate law. The public tribunals of the country can inquire no further than into the fact whether notice and a hearing were accorded to the parly before those courts. If they were not, then the judgment is a nullity; if they were, it is conclusive: but in neither case can you meddle with the question of the truth of the charge. In the remarks which it has been my duty to submit to the court on this occasion, I have endeavoured to avoid unkindness and irri- tating comments. Entertaining as I do (although a member of another church) a high respect for the adherents of both the par- ties which divide the Presbyterian Church, I still cannot avoid 989 speaking of the course pursued by the Old School, as one of unpa- ralleled harshness, violence and injustice, evincing the blind domi- nation of passion and party feeling, and an entire disregard of the rights of their brethren, and almost of the common charities of life. We look to the benign influence of the laws to compose these differences. Our doors remain open to the party which has shut theirs against us; and when your decision shall be pronounced, it is to be hoped that it will be such as may tend to restore the unity of the Presbyterian Church, and promote in future the Christian graces of peace and good will, which are so desirable for improve- ment and example. However much, as a man, I regret the unhappy dissensions and heats which have finally rendered this proceeding unavoidable, I must rejoice, as a lawyer, that out of much evil, some good has flowed, and that we have, in the charge of the learned judge who tried the cause, so clear and rational an exposition of the rights of the parlies, and of the principles of law by which they are to be ascertained and secured, as to justify the hope that, when sanction- ed by the decision of the Court, all parties hereafter will have the ability and the inclination to avoid trespassing on the privileges of their brethren, and bringing discredit on the church, by rendering necessary an appeal by the injured parties to the civil tribunals, for protection against the aggressions of those who have knelt at the same altar as themselves. Instead of selecting a text for the opening of the Assembly (as the moderator of 1837 did at the opening in '38) which, under the circumstances, appeared like the language of exultation and triumph over the sixty thousand excinded members of the church, I would hope that the reverend gentleman to whose lot it may fall to per- form that service in 1839, may take some such passage as this: ^^ Whatsoever things are true, whatsoever things are honest, what- soever things are just, whatsoever things are pure, whatsoever things are lovely, whatsoever things are of good report; if there be any virtue, and if there be any praise, think on these things." Mr. Meredith closed his argument at one o'clock on Tuesday. A BRIEF SKETCH OF THE ARGUMENT OF JOSIAH RANDALL, ESQ. Occupying^ a part of Tuesday, the 23d, and the morning of Wednesday, the 24th of April. Mr. Randall stated that the motion for a new trial involved two questions: - I. The validity of the excinding resolutions. 2. The organization of the General Assembly in 1838. The first was an important question, involving the civil and reli- gious rights of a large portion of the community, and property to an amount that could not even be ascertained. The second question was auxiliary to the first, subordinate in its character, and limited in its consequences and results. 50 590 The excinding resolutions had been variously described by the defendants' counsel. The learned counsel, (^ir. Hubbell,) who opened the case to the jury, had termed ihenri '■'• detrudivg" a term most appropriiile, designaimg the thrusting out by force. During the pre.^-enl argument, the delendanis' counsel had adopted the term '^ disownivg," equally graphic and poieniial in its significaiion. All these terms spread the same idea, an abrupt and iorcible depriva- tion of religious rights and privileges. It was necessary to define the constituent character of a pres- bytery. It had no direct connexion with churches. A reference to the Assembly's Digest containing the resolutions forming presbyte- ries, will show that the ministers within certain bounds uere con- stituted a presbytery. Three ministers, withoui a single church, may keep a presbytery alive, but a presbytery with one hundred churches, without three ministers, would become extinct. A refer- ence to the Presbytery of Newburyport will show that it continues to exist with but two churches, and is regularly represented on the floor of the General Assembly. The ratio of representation of presbyteries in the General Assembly is according to the number of ministers, who are represented without regard to the fact whe- ther they are pastors (jf a church or not. These excinding resolutions had never been adopted by a majori- ty of the Presbyterian Church. On the passage of the resolution ex- cluding the Synod of the Western Reserve there were 65 members absent, and had they all been present and voted, as the commissioners from these presbyteries had done theretofore, the resolution would have been negatived. It was still more striking, that a greater number of commissioners were absent from the excluded synods than the rriajoiity lor the passage of the resolution. Mr. Kandall then exhibited to the Court the returns of the presby- teries of New York, before the constitution of the General Assembly, showing, that of the twenty-one churches in that state, in 1789, eleven, v;ith their members, elders and communicants, are now cut off. That these churches were the source from which the great Pres- byterian family had sprung, and had been in good standing be- fore any gentleman who had voted for the excinding resolutions, was a member of the church. That the Plan of Union between the Genera] Association of Con- necticut, and the General Assembly of the Presbyterian Church in the United States of America, was constitutional. It had existed previous to the revolution, had been sus[>ended during the war, and again, at the invitation of the General Assembly, proposed immedi- ately on the passage of the law incorporating that body. Similar arrangements had been proposed, or entered into by the General Assembly, with the Associations of Vermont, JVlassachusetls, New Hajnpshire, the Dutch Reformed Church and the Associate Re- formed Church. That the objection that the Plan of Union should be sent down to the presbyteries for approval, was of no avail. The provision in the constitution, which requires amendments to be sent down to the presbyteries, relates to general reguluiions, and not to the admission 591 of an individual, or a body of individuals into the church. That the practice of the General Asseinbly had been uniform on this subject, in iill instances. Resolutions, admiliing delegates from correspond- ing bodies lo sit and vote, had been adopted and repealed, without sending them down to the f)resbyteries. The regulations, admit- ting ordained ministers and elders from other Protestant churches, without reordination, had been adopted in tlie same manner, al- though the General Assembly had, for a series of years theretofore, refused such admission. That a c<^»nsiderable portion of the pre- sent church, now held their seats by the same tenure under the union, with the Associate Reformed Church, including the mode- rator of 183G, (Dr. Phillips,) and the gentleman who officiated as chairman of the committees appointed on this subject, by the Gene- ral Assembly of 1837, (Dr. Juiikin.) That Dr. Green had declared that the legality of the union with the Associate Reformed Church, had never been denied. That, at all events, an acquiescence of thirty-six years, removed all such objections; that the amended constitution of 1821, had incorporated all these materials as a part of the church; that every presbytery in the church, had recognized the Plan of Union, and that subsequent ratification amounted to previous assent. That the character of this plan had been totally misunderstood. It related to the "frontier settlements," generally, and not the west- ern part of New York, and the Western Reserve of Ohio. That so far t'rom its authorizing the admission of any Presbyterian minis- ter into the church, it could not operate upon, nor affect him, till he had become previously, l)y ordination, a regular Presbyterian mi- iii-sier in good standing. Tiiat it had been proved, and was not de- nied, that the whole five hundred and seventeen ministers were re- gularly ordained ministers, exclusive from, and independent of the Plan of Union. It has been said that these synods have been the product of the Plan of Union; that they had their root in it. This was one of those vague, indefinite assertions, that it was difficult to understand. The Plan of Union did not authorize the introduction or ordination of any minister or elder. It did not operate upon a juinister, until he had been regularly ordained as a Presbyterian minister. If it were intended by this argument to say, that of the five hundred and seventeen Presbyterian ministers excluded, any one of them became such, by the Plan of Union, it was contradicted by the instrument itself, by its character, and by the testimony of every witness who had been examined on the subject. This argu- ment is one of those general assertions, in their nature intangible, and which, when accurately examined, means nothing; or, what is worse than nothing, is loosely calculated to convey an idea negatived by the whole mass of testimony, oral and documentary. That if the plan had been found inconvenient, or was believed to be uncon- stitutional, the proper mode was to repeal it; and then, if any Pres- byterian minister should violate the rules of the General Assembly, by continuing pastor of a Congregationiil or mixed church, he would become obnoxious to censure and excommunication from the church, accordirjg to its forms of judicature. 592 That as it now stood, the General Assembly had, in 1801, "en- joined and recommended" Presbyterian niinisters to preach to Con- gregational and mixed churches; and in 1837, without notice, had excluded ministers for obeying the injunctions and recommenda- tions of the General Assembly. That the excinding resolutions were contrary to all law, human and divine, and were utterly unconstitutional and void. It excluded live hundred and seventeen ministers, the elders of five hundred and ninety-nine churches, and sixty thousand communicants, without accusation, notice or trial. It was founded on no principle; the present Synod of Albany had been left untouched, while its off- spring, the three Synods of Geneva, Genessee, and Utica, had been cut oti'. The Synod of the Western Reserve had been first created out of the Pittsburgh synod, and the Synod of Michigan has been subsequently created out of the Synod of the Western Reserve, and while the intermediate Synod of the Western Reserve had been cut off, the Synods of Pittsburgh and Michigan have remained untouch- ed. It was a local desecration of the ground; expulsion from the church depended on the domicil of the member, in 1837, and had Dr. Green at that time lived in the western part of the state of New York, or in the Western Reserve of Ohio, he would have been excluded among the rest. It excluded all indiscriminately, whether they have been connected with the Plan of Union or not. That the General Assembly of 1837, have admitted that whole presbyteries and churches, within the prescribed and infected dis- tricts, were regular and in good standing ; and provided also a mode for their re-admission into the church. Th;it the alleged exclusion for a day, a month, a year, or for life, were equally a violation of the right of the excinded individuals or bodies. That this mode of re-ingress into the church was illusory, as the excinded individuals could obtain re-admission only by examination in the same manner as if they had never been connected with the church. That the opening counsel had not denied the right of the court to inquire into the form of proceedings of the General Assembly, and that the case cited by the concluding counsel of Mr. Hindman was conclu- sive in favour of the power of the court; as the Supreme Court of Delaware there refused the mandamus, because the relator had confined his application for restitution to the presbytery as an ecclesiastical body, and not to the presbytery as an incorporated body, and the court there said that they would have entertained jurisdiction, if the application had been for restoration to the incor- porated presbytery. That the case referred to in Mr. Hindman's case of The Com- monwealth of Pennsyhania vs. Richards and others, decided in 1790, by the Supreme Court of Pennsylvania, on a mandamus to restore Mr. Marshall as minister of the Scots' Presbyterian Church in Spruce street, was conclusive and unanswerable in favour of the right. That if this power were not conceded, there would be no remedy or relief from ecclesiastical tyranny and injustice, no mat- ter how unjust or irregular it might be. That the act of the clerks in excluding the commissioners from 593 the roll, and refusing to re])ortthem to the assembly, and the subse- quent conduct of the moderator in refusing to put the motions made to rectify the misbehaviour of the clerks, were overt acts of a con- spiracy to carry out the unconstitutional acts of 1837; and that the refusal of the moderator to put the appeal of Dr. Mason to the As- sembly, was a breach of privilege which authorized any member of the Assembly to move for his dismission from office. That Mr. Cleaveland's motion was substantially a proceeding to remove Dr. Elliott from office for this breach of privilege. That questions of privilege override all the ordinary rules of order. That Mr. Cleaveland's motion was perfectly intelligible, and suf- ficiently loud to be heard by all. That every member had, there- fore, an opportunity to vote, and if, under such circumstances, they were silent, they must be presumed to have acquiesced. That, according to parliamentary rules, when the commissions of the commissioners of the General Asseinbly of 1838, were com- mitted to the Committee of Commissions, they could only be restored to the x'\ssembly for the Assembly's action, by the report of that committee. That, therefore, the conduct of the clerks composing the committee of commissions, in refusing to report the commis- sions from the four synods on either of their lists, was a gross vio- lation of duty. That the remedy to which the relators had resorted, viz. : this proceeding oi quo warranto, was both legal and proper. That the moderator could not, without absurdity, put the ques- tion lor his own removal; nor did that duty, under such circum- stances, devolve upon the clerks. They were parlicipes criminis, and would not have put the motion if they had been required. That the precedents of motions put by clerks were, where they were spe- cially authorized by the house to put the questions. That every deliberative body which elects its own chairman, has the right to depose him for misconduct. That the moderator of the preceding Assembly, presiding over the organization of the suc- ceeding Assembly, is by no means exempt from this power. He is designated to the office ft»r the sake of convenience, but those for whose convenience he holds the office, are his masters and he their servant. ARGUMENT OF JOHN SERGEANT, ESa. Occupying part of W'ednesday, April 24th, and the whole of Thursday and Friday. Mr. Randall having concluded, at 1 o'clock Mr. Sergeant ad- dressed the court. He said: — It seems to be the opinion of one of the learned counsel on the other side that these panics might very readily make peace and come together again. That attempt had been made, but failed. The exhibition which has been presenied in the trial, and the argument before this court, ought to make us very cautious in acting, with a view to bring the parties together again. 1 understand (and that will be the main ground' of my argument) 50* 594 that the object and end of this great judicatory of the Presbyterian Church, as well as all the subordinate ones, is purely spiritual and moral. We have no right to interfere wiih that in vxhich a man's own conscience is concerned. No human tribunal has any right to interfere with it. It is a manifest violation of that right to talk of forcing people into spiritual connexion. I hold the attempt itself to be unconstitutional, inconsistent with spiritual liberty, and as striking at the foundation of one of the grent principles of liberty amono- this people, and that is, that a man's spiritual and moral con- cerns are not to be interfered with by any temporal tribunal what- ever. These parties never came together except by consent. They never could come together in this world but by consent. As to the idea of forcing one community of men to sit down to the same spiritual table with another whom they think unworthy, you must first be prepared to search the hearts and consciences of both, be- fore vou could tell what the consequence was to be. I take it, therefore, that the prediction which has just been made cannot be correct. I go for freedom, and am opposed to force, no matter from whence it comes. It may be seen, after all, whether we have suffered in our name, reputation, and character; whether we are not the real champions of spiritual liberty. I believe that we are. I believe, at the same time, that the eifort here made, by the mi- nority of that General Assembly, is, through the instrumentality of civil coercion, to deprive the party which I represent of their liberty, and to force them to associate with those whom they do not choose to associate with. The idea, it will be seen, is repul- sive, and no doubt it would be, in its application, a most dangerous power. I will undertake to say that it would be a most dangerous power for a civil tribunal to take upon itself, to say who was wrong and who right in a matter of conscience. The courts have already enough to do, without being called upon to enter upon new sources of inquiry, touching matters of conscience, and with which civil tribunals have heretofore had nothing to do. We have been warned not to hold out threats. We have held out no threats. We have given no intimation of that sort ; but that litigation will follow the decision; that every church, every single congregation, every presbytery, every synod will be called upon to decide for itself, is as certain, plain and pal[)able as any ihinur can be : nay, every individual. The minority of the Gene- ral Assembly of 1838 have done a great deal, if they really have been able to accomplish what his honour. Judge Rodgers, at the time he delivered his charge, seemed to think they had done. If it were not loo serious a matter to make a joke of, although it would be a much more innocent joke than they have made at our expense, I would say, that the occurrence in Ranstead court, by which a mi- nority manoeuvred a majority out of doors, was the greatest pr;icti- cal hoax that I ever heard of. A great deal has been done calcu- lated to produce disturbance, discord and confusion throughout the church, by failing to observe that excellent admonition, which ought never to be lost sight of, to let spiritual bodies settle spiritual ques- 5m tions. I will endeavour to show the court, before I conclude, that the attempt here making is, to strip the General Assembly of this power, to take it into the hands of the ministers of the civil law; to take it into their hands in a manner which leads to the disgrace and disparagement of the law itself, as far as disgrace and disparage- ment can be brought upon it by such eftbrts. Where is the man who had been spared on this occasion? The spirit manifested on this trial is the same, which, by the first act of the Assembly on Washington square, cut off the venerable Dr. Green, the patriarch of his church. Neither age, nor services, nor character, nor ought else, could shield the true members of the Presbyterian Church from the asperity and violent denunciations of those on the other side. Look at the intimation by one of the counsel for the relators, that Dr. Elliott had been furnished with the text from which he preached on opening the General Assembly of 1838, by the prompt- ings of a spirit of partisanship. The learned counsel had gone so far as to look into the conscience and heart of that moderator, and to charge him with having, in the performance of a solemn service, and in the presence of his Maker, used the text he did as the shout of victory. My clients do not need, from me, a vindication of their conduct and temper; the very opposite, as they are, of the feeling and tem- per displayed on the other side, in the progress of this cause. I maintain, that we are the champions of civil liberty and the rights of conscience. And, however we may suffer in that cause, finally, if it is the right cause, as I believe it to be, it must and will prevail; and if this case is rightly decided, we shall come back to the plain principles of the constitution and the law of this commonwealth, which leaves these things to be adjusted, not by a civil tribunal, but a spiritual, even by Him to whom we are all accountable. But now, the question presented to this Court is, whether the defendants are not entitled to have a new trial? The cause is one involving ques- tions of great magnitude and importance; none greater can ever arise, than they are. It is my intet)tio!) to say nothing personally disparaging of any man connected with the New School party, nor to say one word which should be calculated needlessly to wound his feelings. I entertain great respect, too, for the learned judge who presided at the trial in the court below, and am sure that he found not less arduous than novel and intricate, the duties which he had then to perform. In a case so complex and abstruse as this, great allowance must be made for a judge who should fall into error. And, if the learned judge who tried this case had seen, on reflection since, that he had committed any error, he will, doubtless, be glad of the opportunity afforded him now, of correcting it. But if he sees no reason to alter his mind, why, then, he will adhere to his former opinion, but not simply because it was his opinion. I must be allowed to say, that when this case went to the jury, and even before it did, it went with a most manifest prejudice against these defendants. As to how that was effected I shall have an op- portunity to speak hereafter. I maintain this great principle, that 596 the whole investigation in the manner in which it has been conducted, the whole decision, as far as it has gone, is a manifest viulaiion of our constitution. I mean the constitution of the church ; and a vio- lation of spiritual liberty, and the rights of conscience. I now ask whether this court is a fit court to entertain an appeal from the General Assembly of tlie Presbyterian Church? 1 speak of the embarrassment, the difficulty, and the almost impossibility of com- ing to any conclusion on an appeal like this. Take, for example, the resolutions of 1837. Now, if this court is to be appealed to, from that General Assem.bly, then it is to take the place, for a mo- ment, of the General Assembly, and is to decide whether, under the same circumstances, it would, or would not, have pursued the same course as that body did. And, in order to show your honours that you would not have pursued the same course, what has been said, what has been attempted, on the other side? Why, the very first blow was made at the intentions and motives of the respondents, and they were charged with having been actuated by a proud lust of power, and being desirous to engross to themselves all the funds of the church. Indeed, every thing that is bad and disgraceful has been attributed to them. The most foul and scandalous abuse has been heaped upon them. There was gross injustice in the outset of this cause; and with regard to that, I mean to be perfectly expli- cit. His honour, judge Rodgers, had fallen into an error, which probably arose from the press and hurry on the occasion of the trial, circumstances which will have their influence upon a judge as well as on others. The learned judge would find that a certain act of their body was an act they had a right to do, although he went on to characterize it as unjust. No doubt that in the course of the discussion injustice had been attributed to it, and perhaps most unjustly. His honour was led not to look at the lawfulness of the act that was done merely, but at the question whether it was just or unjust. I mean to contend, without hesitation or reserve, that where their acts are not unlawful, no one has a right to inquire into the motives that actuated them, or into the justice or injustice of the act they had done. They were there to do justice according to their own views, and not according to the views of any one else. They were placed there to do justice without accountability to any tribunal, so far as they were lawfully entrusted with power. The very principle of the organization of the church being to deal only with spiritual matters, it was not to be effected by any man's thoughts, words, or actions. I appeal to your honours to say whether it was fair that the New School party should inquire into the motives of Dr. Elliott and the clerks. It was right only to judge them by their acts. An act, which otherwise would be rightful, was made to depend upon the motives with which it was done. Now that was an unfair way of proceeding. The relators are alone to blame for having introduced the subject of this controversy to a civil tribunal. Whatever inflammation may hereafter be produced, whatever scandal may be brought on religion, if it were in the power of man to scandalize it, it certainly is not imputable to the 1 597 respondents. The relators only are responsible for it. And, if they have I. ad a ahort victory once, it is possible that they may yet see, as tliey advance in life, as their shadows lengthen and the dis- tance before them is contracted, occasion to mourn that they ever separated themselves from the good inen with whom they were as- sociated, by any course of events in this world. The example which has been set by these men will, pcradventure, be followed hereafter, by those who are the younger and more active spirits, to cut off their leaders, as has been attempted to be done on this occa- sion. This case will furnish them with a precedent for their con- duct. Nor is this all. The church indeed is " on a rock," but, this spirit once introduced into the church, who can exorcise it? I have already said that I am not afraid of any man being able to ac- complish the destruction of the church, for I believe it to be founded on a rock. But what man can allay this spirit when once it has been brought in ? No man : there it will remain and riot in the destruction of peace and goodness. If the youth now by injustice cut off the fathers and props of the church, it will not be strange, if before they are as old as Dr. Green, others visit the same award to them. But now our business is to show that this verdict ought not to stand. Indeed it seems hardly necessary after the admirable opening of my colleague, (to which indeed the closing counsel on the other side has paid a well-merited compliment,) to occupy time farther on this subject. But it may be due to the opposite counsel to notice some of their arguments, and perhaps I may be able to throw out some sugges- tions in addition to those of my worthy and able colleague. In reply to the arguments in support of this verdict, 1 will exam- ine the ground on which it must stand, if it stand at all. In the charge of his honour, judge Rodgers, the excinding acts of 1837 are regarded as unconstitutional and void. Well, if they were so, it was of no consequence. The case ought then to be considered only with reference to the proceedings of 1838. But his honour, like the counsel, had made those acts of 1837 to characterize the conduct of the moderator and clerks, as being a violation of duty, authorizing the proceeding of Cleaveland and others. The excinding acts of 1837, were, therefore, the basis of the whole of the proceedings. Now, I contend that the General Assembly of 1838 would not have been justified, even if so dispo- sed, in removing the moderator and clerks, for, they being appointed by the General Assembly of 1837 to perform certain duties, to organize the body of 1S3S, they consequently were not their chosen officers, and not subject to their control. There was no power vested in the preparatory meeting to remove officers not of their own appointment. There can be no doubt that in the whole of these proceedings, the great principle that the majority must govern was disregarded by the minority, and hence the former were driven out of doors. While Dr. Elliott was in the chair, there could be no other moderator. And, the first question which your 598 honours have to decide is, whether that gentleman was the presi- ding officer. Now, if Dt. Elliott was the moderator, am I to be considered as voting on the question of electing another moderator, when I did not vote at all, and when, too, 1 sat with my back to the man proposed to be elected? That proceeding was inconsistent with every rule of order, was calculated to mislead, to blind, to take away the hearing, to prevent every man in that Assembly irom knowing what he was to do. I contend that members were not bound to notice, or to vote upon any question, unless it were put by the legally constituted and authorized presiding officer of the General Assembly. No one could tell wliether that " Aye," that triumphant "Aye" which was given amidst so much disorder, pro- ceeded from those on/y who had a right to vote. Judge Rodgers had said tliat none but those who were enrolled had a right to vote. Now, if the question had been put by the moderator, he would have suffered none to vote but those who were enrolled. The question, however, was put by another. And, whether they were members or not who voted, did not matter much, as the act was entirely wrong. Besides, there was a large assemblage of persons present as spectators, many of whom might, and perhaps did, join in tlie "thundering loud Aye," as it had Fjeen called. In my opinion, the principle point in the whole case hinges upon the question of order. It is of considerable importance, then, that it should be first ascertained whether the moderator strictly per- formed his duty. Before proceeding to an examination of the acts of 1837, I wish to make a single remark further in connexion with this topic, which may, from its importance, be more particularly noticed hereafter. The General Assembly of the Presbyterian Church, at the time the disturbance took place, was in actual ses- sion, de facto and de jure. It was stated by his honour, judge Rod- gers, in his charge, and it was admitted in argument on the other side, that the resolutions of 1837, whether right or wrong, did not dissolve the AsseiTibly. Now, at the period when the disturbance took place, the body was partially constituted, and the moderator competent to conduct the organization to completion. I trust then that your honours will certainly see, that it lies with the opposite side to show, liow the Old School party, or rather the moderator and clerks, ceased to be in possession, either de jure or de facto. I declare that I think no man could doubt, that the body who re- mained in Ranstead court, was the rightful and legal body. Icon- tend that the rule of order in every deliberative Assembly, how- ever informal it may be, is, that every eye and ear should be di- rected to the chair. No member has a right to turn his back upon the presiding officer, nor can any man be regarded as voting who does so. With regard to the acts of the General Assemblv of 1S37, it is a (]uestion hereafter to be decided, whether they can be at all connected with what look place in 1838. But I shall contend that they could not be connected, whether right or wrong. I assume, and have a right to assume it, that the Assembly of 1837, in passing the resolutions which they did, were really sincere, honest, and 509 thnt they meant them in good faith as they declared them to be, for the good of the church. And, I do most solemnly protest against the right of any body on earth, 1 care not who it is, to in- terfere with their acts so adopted. I will presently read to your honours, that part of the constitution of Pennsylvania, which 1 con- ceive to have a bearing on this case. It is of infinite importance. We have lost this case before the jury, and if we are to lose it final- ly, we are to lose it, in a great measure, in consequence of the im- plication to us of insincerity, want of truth, and bad motives, in the introduction and adopton of the resolutions of 1837. Every license has been taken with the evidence, assumptions contrary to the truth have been drawn from it, as to the character of the General As- sembly. I will submit it to your honours, as a clear position, that every judicatory of this church, from a session up to the General Assembly, is entitled to be believed as to its motives, in whatever it does in reference to its spiritual and moral discipline. If it can not be believed to be prompted by pure motives, then it is not a church in any sense in which those belonging to it are supposed to consti- tute it: they are a set of hypocrites and sinners of the very worst description. But even if this were so, so long as they do not violate the laws of the country, you can not interfere with them. But, be- fore proceeding farther, I wish to have this question settled. To whom does it belong to say that these acts are, or are not, for the good of the church? Supposing a certain end to be desirable, to whom does it belong to decide as to how that end can be reached? Now, presuming the first question to be decided, who, I ask, is to solve the second. The civil tribunal says, it is to be reached by process. The church says. No; we have no charge to make against our brethren with whom we have been in unity. We do not mean to dismiss our brethren from the church with any mark of condemnation upon them. We do not mean to try them, or im- peach their motives or conduct. All that we mean to say is, that they do not live, as we think, according to the proper forms of the church, and that disorders have arisen from it. We wish to sepa- rate from them, and the act involves nothing but separation. Now, I would ask again, not whether this was the wisest, or the best mode of proceeding, but who was to judge whether it was or not? Did it belong to the church, or to a civil tribunal, to insist upon it that, contrary to their judgments, contrary to their own views of what is best to advance religion in general and the protection of their own church, they must do so and so? If, in fact, any body could interfere with the church, they had better dissolve themselves as a church at once. If they could not exercise their w/fo/e judg- ment, it was in vain to endeavour to exercise any judgment at all. I insist that they had a right to manage their church according to the dictates of their conscience, and no man or tribunal, was justi- fied in interfering with them. I will endeavour to maintain that no civil tribunal could rightly take cognizance of this question. I do not mean to anticipate the question whether this court could take cognizance of the election of trustees. I will come to that question by and by. But I will say of the question growing out of the acts of 600 1837, that no civil tribunal could take cognizance of them ; that they belong exclusively to the judicatories ot" the church. I know that in taking this position I have to encounter the harsh denunciations which have been lavished by the other side. I have to encounter the inquiries, " Why did you not take process? Why did you not give thenn a hearing?" I know too that I have to encounter sonne- thing more ft)rmidable in the opinion of judge Rodgers on this point. To that I am bound to give the more special attention. I have ex- amined it very carefully, and with all the respect, and that is cer- tainly not a little, which is due to its distinguished author. I do not know that I had ever bestowed so much deliberation on any single question, as I have done on this, with a view to see its bear- ings in every particular, and to avoid every false track. 1 will now proceed to place before your honours, the grounds upon which I rest, and the conclusion to which I have come. The charge says that the excinding resolutions are unconstitutional and void, but adds, that that did not dissolve the Assembly. In regard to the abrogation of the Plan of Union, the charge is in our favour; for the judge says that the Assembly had a right to abrogate it. We have therefore, his honour's opinion in favour of abrogating the act of union of 1801. I am glad to have it. Well, here was thtj hinge, on which the whole matter turned ; for, it hav- ing been supposed that the abrogation was wrong, the argument had been drawn that, consequently, all the acts which followed in 1837, and all that took place in 1838, consequent upon them, must be wrong. It is necessary to consider the nature of the thing done, viz: whether it was purely ecclesiastical and moral, or whether it was civil in its character and consequences. The views entertain- ed by the Assembly on this subject appear to be both unexceptiona- ble and incontrovertible. Let us look at their language in the series of resolutions on this very subject. Now, we contend that the relation between the Congregational and Presbyterian Churches was voluntary. It was voluntary throughout, from beginning to end, up to the time when the excinding acts were passed. Such is the tenor of the resolutions to which I refer. "In regard to the relation existing between the Presbyterian and Congregational Churches, the committee recommend the adoption of the following resolutions: 1. " That between these two branches of the American Church, there ought, in the judgment of this Assembly, to be maintained sen- timents of mutual respect and esteem, and for that purpose no rea- sonable efforts should be omitted to preserve a perfectly good un- derstanding between these branches of the Church of Christ. 2. "That it is expedient to continue the plan of friendly inter- course, between this Church and the Congregational Churches of New England, as it now exists." It must be understood, and we have no right to suppose other- ways, that every word of this is honestly said, from the heart, and certainly there is nothing harsh or disparaging to Congregational- 601 ists. All we say on that subject is, that Congregationalism is in- compatible with Presbyterianism, that the two cannot live together, and that it is calculated to produce disorder, when introduced among us, as in the famous case of Mr. Bis^^ell from Rochester, who found his way into the General Assembly, although neither a com- mittee-man, nor an elder. In view of such circuioslances, among others, we adopted the following, the third in the series of reso- lutions. 3. "But as the 'Plan of Union' adopted for the new settlements in 1801, was originally an unconstitutional act on the part of that Assembly — these important standing rules having never been sub- mitted to the presbyteries — and as they were totally destitute of authority as proceeding from the Genernl Association of Connecti- cut, which is invested with no power to legislate in such cases, and especially to enact laws to regulate churches not within her limits; and as much confusion and irregularity have arisen from this un- natural and unconstitutional system of union, therefore, it is resolv- ed, that the Act of the Assembly of 1801, entitled a 'Plan of Union,' be, and the same is hereby abrogated." Now, they do not say, as seems to be taken for granted, that there was a designed violation of the constitution in adopting the plan at first, but they say that the making of these standinii; rules was wrong, that they ought not to have been adopted, that that act was destitute of authority, and led to confusion and disorder. Now, that these grounds for the abrogation existed, no man can doubt. And this being the fact, I must think that no man can doubt that the General Assembly had a right to abrogate the Plan of Union. What objection could there be. I contend that it could be done at any time by the wish of a majority, the association being purely of a religious character. It was also clearly expedient and right to abrogate it, in consequence of the disorders which it had introduced. They say it had introduced such disorders, and we are bound to believe them. Now, this being an adjudication to which they had a right, it being their proper province, what tribu- nal on earth has any right to sit in judgment over it, to pronounce it right or wrong, just or unjust 1 But a question is raised here whether this Plan of Union, or agreement, were not in some sort of the constitution of a compact; as though, in bodies purely spiritual, there could be any thing in the nature of a consideration, which is essential to a contract. The idea is absurd. These bodies could form no contract. Then a question is made whether these excindiiig acts, as they are called, are judicial or legislative; still it really seems to me, that all such questions are idle. I shall call these acts administra- tive. I think they are merely such, for they are designed to carry into effect the resolution abrogating the Plan of Union. I will here recite these excluding resolutions. [See pages 56 and 57 of this re- port, resolutions numbered 1, 2, 3, 4.] " It heiiig made clear to us," says the second resolution, " it being made clear to us.'' To whom 51 602 should it be made clear that they had ground of action ? To your honours 1 Suppose that I were to tell you that they were Baptists, or Con- gregaiionalists, or Roaian Catholics, or Jews: your honours would say that that was a question which you had no right to inquire into, that you had no right to condemn them for any alleged disorder in the church, that you were not the representatives of the Presbyterian Church, or any other tribunal, or sect. The constitution of Penn- sylvania says, that "every man shall worship God in his own way, that no human authority can, in any case whatever, control or in- terfere with the rights of conscience." I assert that the second resolution must be taken to be true. It /lad been made clear to them, whose business it was to inquire into these spiritual matters, and their declaration of that fict is all that we need to know, in order to bar the action of any civil court in the premises; we can- not touch them for this. What judicial tribunal in this country, would dare thus to erect themselves into an ecclesiastical tribunal, and especially into the judicatory of a particular church? But, if these acts might thus be investigated by the civil courts, what is their character? The third of these resolutions expressly declares, that they have "no intention to interfere with the duties or relations of private christians," &c. " but only to declare and de- termine according to the truth and necessity of the case, the rela- tion of these synods," &c. Now this was clearly what they had a right to do by the constitution of the church. And then in regard to "saving the rijihts of ministers. &c." of which so much has been said, the 4th resolution makes am[)le provision for that, by directing " those who are strictly Presbyterian in doctrine and order," how they may enjoy their privileges and rights. In saying that the General Assembly " will take proper order thereon," they bind them- selves, or declare that they will receive those who are strictly Presbyterian. Now, as to the question whether they had a right to do this, we must consider the nature of the acts, and the nature of the body performing those acts. As to the nature of the body, it is "the high- est judicature of the Presbyterian Church." What is a church? That is, what is a Christian church, accord- ing to the definition of the Presbyterian Church itself, for that is our guide in this controversy. It is a community of professing christians associated for the express purpose of maintaining doc- trine, discipline, and government, according to the apostolic stand- ard. Every church professes to be framed after the pattern of the first Christian church. I know there is a cry by some against doc- trine, that it is all bigotry, &c. But this church esteem it neces- sary. »So in regard to discipline, there is an t)utcry against it, as tyranny: but discipline is, at any rate, essential to a Presliytcrian Church, according to their book. And this discipline is, by their constitution, to be administered by ordained men. I do not say that this is the best system in the world. I think it is good, and at any rate it is Presbyterian. I need not vindicate the General Assembly for having excluded the four synods. They had a right to do so, 603 and they have done it in order to preserve sound doctrine in the church. Discipline and ijjovernment are absolutely necessary to the church, although 1 know that there are sonne men who do not regard them in that light, who think nothing of discipline and go- vernment. According to their constitution, (see Form of Government, Chap- ter 2, Section 4,) a church is a body " voluntarialy associated togeiher, for divine worship and godly living, agreeably to the holy scriptures; and sxihmitt'nig to a certain form ngregational mi- nisters; and mixed congregations were allowed to settle a Presby- terian or a Congregational minister at their election, but under a plan of governn)ent and discipline adapted to the circinnstances. Surely this was not intended to outlast the inability of the respec- tive sects to provide separately for themselves, or to perpetuate the innovations on Presbyterial government which it was calculated to produce. It was obviously a missionary arrangement from the first; and they who built up presbyteries and synods on the basis of if, had no reason to expect that their structures would survive it, or that Congregaticmalists might, by force of it, gain a foothold in the Presbyterian ('hurch, despite of Presbyterial discipline. They embraced it with all its defeasible properties plainly put before them; and the power which constituted it, might fairly repeal it, and dissolve the bodies that had grown out of it, whenever the o-ood of the church should seem to require it. Could the synods, however, be dissolved by a legislative act? I know not how they could have been legitimately dissolved, by any other. The Assembly is a homogeneous body, uniting in itself, without separation of parts, the legislative, executive and judicial functions of the government; and its acts are referable to the one or the other of them, according to the capacity in which it .^at when they were [)erformed. Now, had the excluded synods been cut off by a judicial sentence, without hearing or notice, the act would have been contr?iry to the cardinal principles of natural justice, and consequently void. But, though it was at first resolved to proceed 624 judicially, the measure was abandoned ; probably because it came to be perceived that the synods had committed no offence. A glance at the Plan of Union, is enough to convince us that the disorder had come in with the sanction of the Assembly itself. The first article directed missionaries, (the word is significant,) to the new settlements, to promote a good understanding betwixt the kindred sects. The second and third permitted a Presbyterian congregation to settle a Congregational minister, or a Presbyterian minister to be settled by a Congregational church! but these pro- vided for no recognition of the people in charge as a part of the Vresbyterian body ; at least they gave them no representation in its government. But the fourth allowed a mixed congregation to settle a minister of either denomination ; and it committed the go- vernment of it to a standing committee, but with a right to appeal to the body of male communicants, if the appellant were a Congre- gationalist, or to the presbytery, if he were a Presbyterian. Now it is evident the Assembly designed that every such congregation should belong to a presbytery, as an integrant part of it; for if its -minister were a Congregationalist, in no way connected with the Presbyterian Church, it would be impossible to refer the appellate jurisdiction to any presbytery in particular. This alone would show, that it was designed to place such a congregation in ecclesi- astical connexion with the presbytery of the district; but this is not all. It was expressly provided, in conclusion, that if the " said standing committee of any church, shall depute one of themselves to attend the presbytery, he may have the same right to sit and act in the presbytery as a ruling elder of the Presbyterian Church." For what purpose, if the congregation were not in Presbyterial fel- lowship? It is said that this jus representationis was predicated of the ap- peal precedently mentioned ; and that the exercise of it was to be restrained to the trial of it. The words, however, were predicated without restriction; and an implied limitation of their meaning, would impute to the Assembly the injustice of allowing a party to sit in his own cause, by introducing into the composition of the ap- pellate court, a part of the subordinate one. That such an impli- cation would be inconsistent with the temper displayed by the As- sembly on other occasions, is proved by the order which it took as early as 1791, in the case of an appeal from the sentence of the Synod of Philadelphia, whose members it prevented from voting on the question, (Assembly's Digest, p. 332,) as well as by its general provision, that " members of a judicatory may not vote in the supe- rior judicatory on a question of approving or disapproving their re- cords." (Id. page 333.) The principle has since become a rule of the constitution, as ap- pears by the Book of Discipline, Chap. vii. sect. 3, paragraph 12. As the representatives of those anomalous congregations, therefore, could not sit in judgment on their own controversies, it is pretty clear that it was intended they should be represented generally, else they would not be represented at all in the councils of the church, by those who might not be Presbyterians; and that to eflisct it, the 625 principle of Presbyterial ordination was to be relaxed, as regards both the ministry and eldership; and it is equally clear, that had the synods been cited to answer for the consequent relaxation as an offence, they might have triumphantly appeared at the bar of the Assembly with the Plan of Union in their hand. That body, however, resorted to the only constitutional remedy in its power; it fell back, so to speak, on its legislative jurisdiction, in the exercise of which, the synods were competently represented, and heard by their commissioners. Now the apparent injustice of the measure arises from the con- templation of it as a judicial sentence pronounced against parties •who were neither cited nor heard ; which it evidently was not. Even as a legislative act, it may have been a hard one, though certainly constitutional, and strictly just. It was impossible to era- dicate the disorder by any thing less than a dissolution of those bodies with whose existence its roots were so intertwined as to be inseparable from it, leaving their elements to form new and less heterogeneous combinations. Though deprived of presbyterial or- ganization, the Presbyterian parts were not excluded from the church, provision being made for them, by allowing them to attach themselves to the nearest presbytery. It is said there is not sufficient evidence to establish the fact that the excinded synods had actually been constituted on the Plan of Union, in order to have given the Assembly even legislative juris- diction. The testimony of the Rev. Mr. Squier, however, shows that in some of the three which were within the state of New York, congregations were sometimes constituted without elders ; and the Synod of the Western Reserve, when charged with delin- quency on that head, instead of denying the fact, promptly pointed to the Plan of Union for its justification. But what matters it whether the fact were actually what the Assembly supposed it to be ? If that body proceeded in good faith, the validity of its enact- ment cannot depend on the justness of its conclusion. We have, as already remarked, no authority to rejudge its judgments on their merits ; and this principle was asserted with conclusive force by the presiding judge who tried the cause. Upon an objection made to an inquiry into the composition of the Presbytery of Medina, it was ruled that " with the reasons for the proceedings of 1837, (the act of excision,) we have nothing to do. We are to determine only what was done : the reasons of those who did it are imma- terial. If the acts complained of were within the jurisdiction of the Assembly, their decision must be final, though they decided wrong." This was predicated of judicial jurisdiction, but the principle is ne- cessarily as applicable to jurisdiction for purposes of legislation. I cite the passage, however, to show that after a successful resistance to the introduction of evidence of the fact, it lies not with the rela- tors to allege the want of it. If then the synods in question were constitutionally dissolved, the presbyteries of which they had been composed, were, at least, fi)r purposes of representation, dissolved along with them ; for no ptes- bvterv can be in connexion with the General Assembly, unless it 53 626 be at the same time subordinate to a synod also in connexion with it, because an appeal from its judgment can reach the tribunal of the last resort only through that channel. It is immaterial that the presbyteries are the electors; a synod is a part of the machinery which isindispensable to the existenceof every branch of the church. It appears, therefore, that the commissioners frrjm the excinded synods, were not entitled to seats in the Assembly, and that their names were properly excluded from the roll. The inquiry might be rested here ; for if there were no colour of right in them, there was no colour of right in the adversary pro- ceedings which were founded on their exclusion. But even if their title were clear, the refusal of an appeal from the decision of the moderator, would be no ground for the degradation of the officer at the call of a minority: nor could it impose on the majority an- obligation to vote on a question put unofficially, and out of the usual course; To all questions put by the established organ, it is the duty of every member to respond, or be counted with the greater num- ber, because he is supposed to have assented beforehand to the result of the process pre-established to ascertain the general will ; but the rule of implied assent is certainly inapplicable to a measure which, when justifinble even by extreme necessity, is essentially revolutionary, and based on no pre-established process of ascer- tainment whatever. To apply it to an extreme case of inorganic action, as was done here, might work the degradation of any presiding officer in our legislative halls, by ihe motion and actual vote of a single member. sustained by the constructive votes of all the rest; and though such an enterprise may never be attempted, it shows the danger of re- sorting to a conventiomi! rule, when the body rs to be resolved into its original eletiients, and its rules and conventions to be superseded, by the very motion. For this reason, the choice of a moderator to supplant the officer in the chair, even if he were removeable at the pleasure of the commissioners, would seem to have been unconstitutional. But he was not removeable by ihem, because he had not derived his office from them; nor was he answerable to them for the use of his power. He was not their moderator. He was the mechanical instrument of ilieir organization ; and till that was accomplished, thioy v»ere subject to his rule — not he to theirs. They were chosen by the authority of iiis mandate, and with the power of self-organi- zation, only in the event of his absence at the opening of the session. Corporally present but refusing to perform his function, he might be deemed constructively absent, for constitutional purposes, insomuch that the commissioners might proceed to the choice of a substitute without him ; but not if he had entered on the performance of his task ; and tlie reason is that the decision of such questions as were prematurely pressed here, is proper for the decision of the body when preprred for organic action, which it cannot be before it is fully const'tu ed and under the presidency of its own moderator, the moderator of the preceding session he\ng functus officio. There can be no occasion for its action sooner; for though the commissioners 627 are necessarily called upon to vote for their moderator, their action is not organic, but individual. Doctor Mason's motion and ap- peal, though the clerks had reported the roll, were premature; for though it is declared in the twelfth chapter of the Form of Government, that no commissioner shall deliberate or vote before his name shall have been enrolled, it follows not that the capacity, consummated by enrolment was expected to be exercised during any part of the process of organization, but the choice of a mode- rator; and moreover, the provision may have been intended for the case of a commissioner appearing for the firsi time, when the house ■was constituted. Many instances may doubtless be found among the minutes, r-.f motions entertained previously, for our public bodies, whether le- gislative or judicial, secular or ecclesiastical, are loo prone to forget the golden precept — " Let all things be done decently and in order.'' But these are merely instances of irregularity which have passed, sub silentio, and which cannot change a rule of positive enactment. It seems then that an appeal from the decision of the moderator did not lie; and that he incurred no penalty by the disallowance of it. The title of the excluded commissioners could be determined only by the action of the house, which could not be had before its or- ganization was complete; and in the mean time he was bound, as the executive instrument of the preceding Assembly, to put its or- dinance into execution: for to the actual Assemibly, and not to the moderator of the preceding one, it belonged to repeal it. It would be decisive, however, that the motion, as it was pro- posed, purported not to be in fact a question of degradation for the disallowance of an appeal, but one of new and indejiendent organi- zation. It was, ostensibly as well as actually, a measure of tran- scendental power, whose purpose was to treat the orcinance of the preceding Assembly as a nullity, and its moderator as a nonentity. It had been prepared for the event avowedly before the meeting. The witnesses concur that it was propounded as a measure of ori- ginal organization transcending the customary order; and not as a recourse to the ultima ratio for a specific violation of it. The ground of the motion, as it was opened by the mover, was not the disallov^-ance of an appeal, which alone could afibrd a pretext of forfeiture, but the fact of exclusion. To affect silent members with an implication of assent, however, the ground of the motion and nature of the question must be so explicitly put before them as U* prevent misconception or mistake; and the remarks that heraldei! the question in this instance, pointed at, not a removal of the pre- siding incumbent, but a separate organization to be accomplished with the least practicable interruption of the business in hand; and if they indicated any thing else, they were deceptive. The mea- sure was proposed not as that of the body, but as the measure of a party ; and the cause assigned for not having proposed it elsewhere, was that individuals of the party had been instructed by counsel that the purpose of it could not be legally accomplished in any other place. No witness speaks of a motion to degrade: and the rapidity of the process by which the choice of a substitute, not a 628 successor, was affected, left no space for reflection or debate. Now before the passive commissioners could be affected by acquiescence implied from their silence, it ought to have appeared that they were apprised of what was going on ; but it appears that even an atten- tive ear-witness was unable to understand what was done. The whole scene was one of unprecedented haste, insomuch that it is still a matter of doubt how the questions were put. Now, though these facts were fairly put to the jury, it is impossible not to see, that the verdict is, in this respect, manifestly against the current of the evidence. Other corroborative views have been suggested; but it is difficult to compress a decision of the leading points in this case into the old fashioned limits of a judicial opinion. The preceding observations, however, are deemed enough to show the grounds on which we hold that the Assembly which met in tfie First Presbyterian Church was not the legitimate successor of the Assembly of 1837; and that the defendants are not guilty of the usurpation with which they are charged. The rule for a new trial must be made absolute. Judge Rogers then said — "After the patient and impartial in- vestigation, by me, of this cause, at Nisi Prius, and in bank, I have nothing at this time to add, except that my opinion remains un- changed on all the points ruled at the trial. This explanation is deemed requisite in justice to myself, and because it has become necessary (in a case, in some respects, without precedent, and pre- senting some extraordinary features) to prevent misapprehension, and misrepresentation. THE END. 1 i r''> -' , ■Si i ■^•M m''^ j; ' ^f^:'.- ;r i i.^^' > A^.