wmmmmmmm "m 3.2.^.'o5^ Srom f^e &i6rart of (profeBBor ^amuef (giiffer in (gtemorg of 3ub^e ^amuef (gliffer QSrecftintib^e g^resenfeb fig ^amuef (gttffer Qgrecftinrib^e feong fo f ^e Eifirari? of gprinceton C^eofogicaf ^etninarj R E P O R T PRESBYTERIAN CHURCH CASE THE COMMONWEALTH OF PENNSYLVANIA, At the suggestion of JAMES TODD AND OTHERS, VS. ASHBEL GREEN AND OTHERS. V BY SAMUEL MILLER, Jr. A MBMBER OF THE PHILADELPHIA BAl PHILADELPHIA: WILLIAM S. MART I EN. SOUTH-EAST CORNER SEVENTH AND GEORGE STREETS. 1839. Entered according to the Act of Congress, in the year 1839, By SAMUEL MILLER, Jr., In the Clerk's Office of the District Court for the Eastern District of Pennsylvania. PREFACE. A FEW words will suffice to explain the general character of the fol- lowing work. The reporter was requested to undertake the preparation of it, and hopes that he has done some service to the cause of truth, and justice, and religion, in perpetuating a full record of the case. A strict impartiality, the highest recommendation to such a work, he has carefully- endeavoured to maintain; and he thinks that a candid examination will satisfy every reader, that the idea of its being a party publication, an idea to which the supposed bias of his private opinions and feelings may give rise, is entirely erroneous. A verbatim report of the Vv^hole argument, both that upon the trial at Nisi Prius, and that on the motion for a new trial, before the Court in bank, Avould have swelled the book to an ungainly size: it could not con- veniently have been compressed into the compass of a single volume. Selection and condensation were therefore absolutely necessary, but the principles which here governed the reporter in this part of his labour should be fully explained, that all responsibility may rest where it pro- perly belongs. First, however, he would say a few words in regard to the other parts of the volume. Judge Rogers' charge to the jury, with the exception of the introductory paragraph, which was not written, and the final opinion of the Court, have been taken from the original manuscripts, and great care has been exercised to insure their accuracy. The parol testimony is given without curtailment, in the precise language of the witnesses and the counsel, so far as that could be preserved. It is re- ported, for the most part, in the usual method — not by way of dialogue, as much of it was given in, which would unnecessarily have swelled the work, but by connecting together the questions and answers, as if the v^^itnesses had spoken continuously. In some cases, where the nature of the dialogue seemed to require, it has been given at length.* The docu- mentary evidence has been copied in full, excepting where mere refer- ences, for reasons elsewhere explained, have been thought sufficient. The * This matter may be more fully explained by an example. See, at the bottom of page 109, post, the first two questions and answers of the dialogue between Mr. Sergeant and Mr. Adair. That part of the testimony, if reported as a great deal of the rest is, would appear thus: — " Mr. Adair. I think an appeal may, under some circumstances, be out of order. I have no experience as to whose business it is to declare it out of order." Much of the evidence, however, given on the examinations in chief, was given in a nar- rative form, without questions being put. The reader can generally distinguish between the two cases. 4 PREFACE. testimony, the charge, and the opinion of the Court, were the parts which it seemed most important to preserve entire. In preparing the different arguments, which are given at length, the reporter has received much aid from several of the learned counsel; and he would take this opportunity of tendering to them his grateful acknow- ledgments for the kindness with which they have afforded him every assistance in their power. This part of the work will be found to contain a full and correct exhibition of the argument, somewhat condensed. The phraseology of each speaker has been in a great measure preserved: the recollection of a mere listener would probably detect few verbal depar- tures from the original. Still it is proper to say, what has already been intimated — that a verbatim report was not intended; and that the precise language of the counsel is not always given. The report is, in each case, from two-thirds to three-fourths in length, of the argument as actually de- livered. It was originally proposed to give merely a synopsis of the arguments on the motion for a new trial. To have reported them also at length would have carried the work far beyond all reasonable limits; and, besides, each one of the counsel who spoke on both occasions, necessarily went over nearly the same ground in each case. It also seemed advisable to furnish the reader with a synopsis of the argument, after the same had been exhibited at length. Various reasons, however, induced a change of plan so far as regarded Mr. Sergeant's speech. A report of this was taken for the purpose of separate publication; but after it was taken, several con- siderations appeared to justify its being incorporated with the present work. Mr. Sergeant had not addressed the jury at all, and some of the positions whichhetook were entirely new. Accordingly his argumentin full has been inserted. One speech, therefore, of each of the counsel, with the exception of Messrs. Randall and Hubbell, whose openings, only, are so given, is reported at length; and of the other speeches a mere synopsis is exhibited. The length of each opening and argument was about as follows: Trial. Mr. RandaWs opening Mr. HubbeWs " Mr. Meredith'' s argument Mr. Prestoji^s " Mr, Ingersoll's " Mr. Wood's Motion for a New Trial. Mr. HubbeWs argument 14 Mr. Meredith's \ , , Mr. RandaWs 5 ^ Mr. Sergeant's \0h H hours. 4^ ii 8 a 10^ a Thus much in explanation of the character of the work. We propose now to give a brief account of the proceedings in the case preliminary to the trial at Nisi Prius. PREFACE. 5 Immediately after the events of the 7th of May, 1838, which resulted in the organization of two distinct Assemblies, the Rev. Mr. Squier, Judge Brown, and the Rev. Mr. Hay commenced the suits, which were given in evidence from the docket, on the trial. Post, p. 201. They were prosecuted no farther than the service of the summonses, and the entry of appearances for the defendants. On the 31st of May, while the Supreme Court for the Middle District of Pennsylvania, was sitting at Harrisburg, Chief Justice Gibson, with the concurrence of the whole court, allowed on special cause shown, the writ of quo warranto, which com- menced proceedings in the case here reported, and the writ was issued on the 2d of June. On the 30th (the last Monday) of July, the case was brought before Judge Kennedy on a motion for a rule to show cause why the writ should not be set aside. The following report of the argument and decision then made is copied from the United States Gazette. « Mr. Kane (with whom were Chauncey and Bradford) moved the Court for a rule to show cause, why the writ in this case, should not be set aside, as having been obtained improvidently, inasmuch, 1st. As it is made returnable in vacation: 2d. As the suggestion filed is insufficient. And for an order that the rules entered by the relators (rules to plead) be in the mean time suspended. " Mr. Kane proceeded to examine the diflferent Acts of Assembly, and the authorities on his first ground; and argued that the suggestion did not state that the relators were elected in the place of the defendants. " Mr. Meredith, on the part of the Relators, replied to Mr. Kane, showing that the writ in this case had been granted by Chief Justice Gib- son, while sitting at Harrisburgh, with the approbation of the whole court — that a writ of Quo Warranto had issued in the same form in the case of the Ninth Presbyterian Church — that the law and the practice under it sanctioned this mode of proceeding — that even if it had been irregular, objection was waved by the appearance of the defendants, and could not now avail them. On the second ground Mr. Meredith replied, that the suggestion was in the usual form — that the title of the relators was stated only to show their interest in the subject-matter, and that though the fact were otherwise, it might be assumed for the purposes of this argument, that the relators were not elected in the place of the defendants. <'Mr. Randall (on the same side) commenced by stating that they had no right to inquire into the motives of those who made this motion, but its practical effect was delay: if successful it would only postpone the issuing of the writ till next December. He had indulged the hope that both parties would unite in a prompt and speedy termination of the unhappy controversy. All such expectation he now abandoned. " Mr. Randall was then proceeding to cite authorities, when he was stopped by the court, who directed the other side to proceed. " Mr. Bradford then addressed the court on all the grounds, and to the suggestion of delay, replied, that the defendants were ready to meet the case, but would insist on its being conducted in a legal manner; if the proceedings were irregular, they ought not to wave any advantage it might afford them; that there was great justice in the science of special plead- ing, and if they could, they would in this case invoke its aid. " The case was continued until a late hour in the day, when the court refused the motion on all the grounds taken by the defendants. 6 PREFACE. " Mr. Kane then stated that the rule to plead would expire on the next day, (the 31st July) and successively asked the court to enlarge the rule till the 2d Monday in December, and the 1st Monday in September next, both of which motions were also refused by the court, in the order in which they were made." The counsel for the defendants then filed pleas; and issue was joined between the parties on the 7th of November. The case was now put by the counsel for the relators, at the head of the trial list, for the second period of the July term of Nisi Prius for 1838, as a commonwealth cause, and therefore entitled to priority. But Judge Sergeant, who sat during that period, which commenced on Monday, November 26th, decided that it was not such a cause as could claim precedence, reading in support of his opinion Rule thirty-ninth of the Supreme Court, *•' If the Common- wealth is not interested in the event of a suit, such cause shall not be entitled to a priority in the trial to other actions, although the name of the Commonwealth may be used as a party thereto." On Saturday, December 29th, 1838, on motion of Josiah Randall, Esquire, the Court fixed the first day of the second period of the ensuing Nisi Prius, for the trial of the case by a special jury. Monday, March 4th, 1839, was the day so appointed. CONTENTS. Trial. FAGZ Introduction, - - ' - - - - 9 Mr. Randall's Opening, . _ - - - 12 Testimony for the Relators, - - - - 20 Mr. Hubbell's Opening, ----- 129 Testimony for the Respondents, - - - - 155 Rebutting Testimony FOR THE Relators, - - - 211 Testimony for the Respondents, - - - - 221 Mr. Meredith's Argument, - - - - 225 Mr. Preston's « - - ' - - - 276 Mr. Ingersoll's « - - - - - 339 Mr. Wood's " - - - - - 397 Judge Rogers' Charge to the Jury, - - - 461 Verdict, - . - - - - - 482 Motion for a New Trial. Reasons for a New Trial, . . . - 453 Mr. Hubbell's Argument, . - - - 495 Mr. Meredith's " ----- 502 Mr. Randall's " . - - . . 505 Mr. Sergeant's « ----- 509 Mr. Randall's " . - - - - 586 Opinion of the Court, by Gibson, C. J. - - - 587 ERRATA. Page 38 line A5 for 'Forms of Government Ve«fl? 'Book of Discipline.' « 142 " 3 " decision " election. « 145 " 38 « absent « respond. PRESBYTERIAN CHURCH CASE. INTRODUCTION. We propose to give as a preliminary to our report, a short account of the peculiar kind of action instituted by the plaintiffs in this case. Ques- tions are frequently asked in regard to it; and nothing conduces so much to the satisfactory understanding of a subject, as a clear explanation of all prelusive difficulties. In fact, some such introduction as we here offer, is necessary to a clear comprehension of terms to be afterwards employed. The writ of Quo Warranto is by no means a common one in the practice either of Pennsylvania, or the other states of the Union; and, therefore, in respect to it, mere general readers are not usually possessed of even that scanty knowledge, which they frequently have acquired in respect to legal subjects of more ordinary exemplification. This writ, in its original, as a remedy provided by the common-law of England, was the commencement of a criminal proceeding. It was issued on behalf of the king, to determine the right of an individual, or body corporate, to an office, franchise, or liberty, granted, or supposed to have been granted by the crown; in other words, to inquire, quo warranto, by ivhat autho- rity, such privilege was exercised, and to punish its abuse or usurpation. This proceeding, being found on several accounts inconvenient, fell into disuse, and the method of prosecuting by information, in nature of a quo warranto, filed by the attorney-general, took its place, as a speedier and more advantageous process. Originally, no private person could institute, in his own behalf, the pro- ceeding either by quo warranto, or by information ; but the statute 9 Ann, c. 20., authorized the court to grant the latter form of action, as a civil remedy, in certain cases, the name of the king, however, being still employed, and the real plaintiffs appearing on the record only as inform- ers, or, in technical language, relators. The Constitution of Pennsylvania provides, that " No person shall, for any indictable offence, be proceeded against criminally by information, except in cases arising in the land or naval forces, &c.," which clause has been construed to take away the remedy of information, or, as it is usu- ally called, the original name being given to the substituted form, oi quo warranto, as a criminal proceeding in ordinary cases. The Supreme Court, however, supporting a practice of which there had been several precedents, since the adoption of the constitution of 1799, from which the clause just quoted from that of 1838, was copied, had established its right, to issue a quo ivarranto, as a civil remedy, before an Act of Assembly, which passed so lately as June, 1836, and is still in force, expressly granted the power to that court, and, in certain cases, to the several Courts of Cdtomon Pleas. The act referred to, however, while in 2 JO PRESBYTERIAN CHURCH CASE. its effect, but declaratory as to the right in general, enlarges that right, and prescribes, at some length,, the manner of proceeding. The writ of quo warranto, as a private remedy, issues by leave of the court, or of a judge thereof, on information or suggestion verified by affidavit. It is in every respect a mere civil process, though the name of the Commonwealth has, in our practice, taken the formal place of that of the king. The wrongs which it may be employed to redress, are diver- sified. Some of these are enumerated in the act just referred to ; but for our present purpose it suffices to say, that it is a proper and convenient method of proceeding, to determine the right of a body corporate to exer-. cise its franchise, or of any person or persons to hold their seats as mem- bers of such a body. As already intimated, though on the record in this species of action, the Commonwealth appears as a nominal party, prosecuting ex relatione — at the suggestion of certain persons, yet the relators are, in every respect, the only true plaintiffs. They apply for the issuing of the writ, they con- duct the proceeding, and the judgment is usually for their benefit. Any number of persons, either as relators or defendants, may be joined in a single writ, if it appears to the court or judge granting the same, that their several rights may be thus properly determined. A quo luarranto is in the form of a summons, commanding the parties therein named, to appear and show by what authority such party exer- cises the liberty and franchise described in the writ. The previous sug- gestion must set forth the facts of the case circumstantially. The defend- ant thus summoned, appears and pleads or demurs to this suggestion filed, and by the regular course of pleading, an issue either of law or of fact is joined. If the former, the cause is set down for argument before the court; if the latter, it goes to a jury; and in either case, the matter is determined in the usual way. As the Supreme Court sits at Nisi Prius, that is, for the decision of questions of fact by a jury, for the City and County of Philadelphia only, when, in the course of proceedings on a quo warranto in that Court, a fact arises proper to be tried in another county, an issue is directed to the Common Pleas of such county, to be there determined. Where, as in the present case, the issue joined by the parties is an issue of fact, the jury having found a verdict, judgment may be entered for the successful party after four days, unless within that time a motion is made either in arrest of judgment, for some error whicli vitiates the proceed- ings, appearing on the face of the recoi'd, or for a new trial, where from circumstances not appearing on the record, it seems that justice has not been done. These motions are argued before the court in bank — that is, before all the judges sitting in a body to determine questions of law; and, in the present case, are the only remedies for the unsuccessful party, since the Supreme Court of Pennsylvania is the highest tribunal in the State — the last resort. Where judgment is given in a Court of Common Pleas, it may be reviewed upon a writ of error, Issuing out of the Supreme Court, in the exercise of its appellate jurisdiction. The judgment thus entered, if in favour of the plaintiff, is that the defendant be ousted and excluded; and the successful litigant in every case recovers his costs of suit. It is manifest that such a judgment does not, in form, determine the right of any other party than the defendant, though it may do so in fact. INTRODUCTION. 1 [ If the due election of certain new members of a body corporate, in the place of as many old members, determine the office of the latter, and, the parties taking issue on the fact of such new election, the verdict is for the plaintiff, the judgment must, in effect, give a right of entry on the one hand, while it pronounces an ouster on the other. Until judgment is finally rendered, the last resort having been tried, the defendant continues in the exercise of the disputed right, unless the court to which a writ of error is brought, sees fit, on sufficient cause shown, to award execution, notwithstanding such writ. In the above concise view, we have confined ourselves chiefly to those aspects of the subject, which have seemed impoi'tant to a clear understand-, ing of the case here reported, to which, without further introduction, we now proceed. ■Quo Warranto, ^c. SUPREME COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. DECEMBER TERM Nisi PriuS SECOND PERIOD. Before Hon. Molton C. Rogers, and a Special Jury. The Commonwealth, at the suggestion of James Todd, John R. Neff, F. A. Raybold, George W. M'Clelland, William Darling, and Thomas Fleming, vs. Ashbel Green, William Latta, Thomas Brad- ford, Solomon Allen, and Cornelius C. Cuy- ler. MONDAY MORNING, March 4,1839—10 o'clock. Counsel for the Relators, George Wood, Esq., of New York city, and William M. Meredith, and Josiah Randall, EsqWs. of Philadelphia. Counsel for the Defendants, William C. Preston, Esq. of South Car- olina, and John Sergeant, Joseph R. Ingersoll, and F. W. Hubbell, Esq'rs., of Philadelphia. Of the forty-eight jurors summoned, the lists being struck, several indi- viduals excused, and several challenged, but eleven men were impanelled. One more being requisite to complete the jury, after some delay, the sheriff was ordered to summon, and return the next morning twelve additional men, from whom a juror might be selected. Court adjourned. TUESDAY MORNING, March 5—10 o'clock. MR. Randall's opening. The sheriff having, as ordered, made return of twelve men, to supply the deficiency in the former panel, one was selected from the number, by the parties alternately striking from the list, until but that one was left. The jury being now complete, each juror was either sworn or affirmed. The following were the names of the jurymen impanelled. Charles Wagner, Isaac Jeanes, John Burk, James Simpson, W. S. Greiner, C. Barrington, L. Quandale, Miller N. Everly, S. Baker, George Mecke, R. C, Dickinson, E. R. Myers. Mr. Randall, for the relators, then opened the case as follows : Mai/ it please your Honour — Gentlemen of the Jury : — Though this action is brought in the name of the Commonwealth of Pennsylvania, it is not to be considered in the light of a criminal proceeding. Nor does MR. RANDALL'S OPENING. J3 it involve any question as to the moral character of the defendants. The suit, though, nominally, a|^prosecution by the Commonwealth, is only a method which the law has prescribed, for determining the private rights of individuals. The object of the writ of Quo Warrcaito in this case is, to try whether certain persons, viz. Dr. Ashbel Green, Rev, William Latta, Thomas Bradford, Esq., Solomon Allen, Esq. and Dr. Cornelius C. Cuyler were on the 24th day of jNlay, 1S3S, trustees, in a body incor- porated b}' 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 part of tlie history of the Presbyterian Church. The first Presbytery formed in the United States was the Presbytery 'of Philadelphia. In the 3-ear 1758, there existed two Synods, the Synod of New York and the Synod of Philadelphia. In that year they united, forming an ecclesiastical body, called the Sj^nod of New York and Phila- delphia. This organization continued until the year 17SS, when, in the place of this general Synod, was instituted what was termed the General Assembly of the Presbyterian 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, 17S9. On the 2Sth 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 Assembly 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 ei-'^teen mem- bers ; whereof, the said General Assembly may, at their discretion, us Oiten as they shall hold their sessions in the State of Pennsylvania, change oir^-ih.rci, in such manner as to the General Assembly shall seem proper: And the r..\-pji-ation aforesaid shall have power and authority, to manag-e and dispose ;f a!i moneys, goods, chattels, lands, tenements, and hereditaments, and other eslats wuatsoever comniitleJ to their care and trust, by the said General Assembly ; but in cases where special instructions for the management and disposal thereof, shall be civen by the said General Assembly in wri- ting, under the hand of their clerk, it shall be the duty oi" the said corporation, to act according to such instructions : Provided, said instri'Ctions shall not be repugnant to the constitution and laws of the United States, or to the constitution and laws of this Com- monwealth, or to the provisions, and restrictions in this act contained." The lowest court or judicatory known to the Presbyterian Church is the Session. This primar)^ ecclesiastical body consists of the pastor, or pastors, and the ruling elders of a particular congregation, such elders being chosen from among the male members of the church, and holding their office for life. The next higher court is the Frssbytery, which consists of all the ministers, and one ruling elder froFxi each congregation, within a certain district, at least three ministers, hov/ever, with as many elders as may be present, being necessary to constitute the body. The next superior judicatory is the Synod, which includes a number of Pres- byteries, at least three, and like the latter 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 repre- sentative body, consisting of ministers and elders delegated from the various Presbyteries ; the representation of each being in proportion to the number of ministers belonging to it, each being entitled to send at least two delegates, iwie a minister and the other an elder, and beyond this number, one minister and one elder for every twenty-four constituent 14 PRESBYTERIAN CHURCH CASE. ministers. You will observe, then, that 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 immediate representatives of the Presbyteries. In the year 1S03, 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 a!id Geneva, the latter com- prising within its bounds the Presbyteries of T)nondaga, Cayuga and Ge- neva. 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, \yere con- stituted a new Synod, called the Synod of Utica. We have thus traced the formation of the Synods of Utica, Geneva, Genessee and Western Reserve — the four Synods to which, in the pro- gress of this cause, your attention will be particularly directed. The Presbyteries constituting these Synods, continued to act under the Gene- ral Assembly for many years, always recognised as parts of the Presby- terian Church. They were represented in the General Assembl}^, the of- ficers of that body being sometimes chosen from their members, and funds being collected among them, and poured 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 Gene- ral Assembly, and the terms Old and New-school began to be applied to them respectively; which terms we shall employ for the purpose of des- cription, without, however, intending to admit, that those whom we re- present have in any respect departed from the original Presbyterian faith. For years these two parties continued nearly equal. In ISSl, '32, '33 and '34, 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 majority. 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 at this meet- ing all the preliminary arrangements were made 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 Assembly, 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 these terms, the purpose of cutting off from the church a sufficient portion of their opponents to place themselves in a decided majority, was held out as a punishment to be inflicted on the New-school, should they not consent to the proposed separation. The latter wei'o willing to entertain the proposition, and to enter into a negotiation on the subject; and the terms which they offered MR. KANDALL'S OPENING. 25 were, 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 Gene- ral Assembly. Their partizans were told plainly by the gentleman who was their masterspirit in all these movements, that unless they improved the opportunit}" then oflered, it might never again occur — that thereafter they would be left in a minority. Accordingly, tliey proceeded to the work of destruction, 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 more than five hundred ministers, five hundred and ninety-nine churches, and al)out sixty thousand communi- cants. In several cases, reverend fathers of the Churcli, who had reached the patriarchal limit of three score and ten, were excluded; and this by a body, of which many of the chief actors had been but a few years in the Church. Dark as are the pages of ecclesiastical history, it has in it no pa- rallel to these proceedings. The practical operation of these exscinding resolutions is the local dese- cration of a whole region of country, about two thirds of the state of New York, and a portion of the state of Oliio. It was purely local, or geogra- phical, and had the reverend gentleman now before us (Dr. Green,) re- moved, before 1837, to any part of this expatriated country, he would have been cut off among the rest. Perhaps there is no part of the Presbyterian form of church govern- ment more wisely and carefully guarded, than that which provides for cutting off or expelling a member. For every such case a plan of pro- ceeding is circumstantially prescribed. There must always be an accusa- tion 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 Discipline 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 o^ '■'^ 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 '■^Process against a Bishop or Minister j'^ to show how precise and strict were the rules on this point. We shall here give merely an abstract of their most important parts. They provide for two modes in which an offence may be brought before a judicatory — by an individual appearing as accuser ; or by com- mon 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 off until the meeting of the judicator}^ next succeeding that at which the accusation is preferred; that the charge shall be made with all possible certainty as to time, place and circumstances; and that the trial shall be fair and impartial, the wit- nesses being examined in the presence of the accused, who is permitted to question them; and prescribes the manner and degree of punishment to be inflicted, whether admonition, rebuke, or exclusion. Process against IQ PRESBYTERIAN CHURCH CASE. a Gospel minister is required always to be entered before the Presbytery of which he is a member.] These are tbe provisions of the Book of Discipline; and how different were the proceedings in the case before us ? Here there was no accuser, no accusation. Notice was not given to the parties thus discipliwed. In fact, the first news carried to the great mass of Presbyterians who inhabit the proscribed districts — the first information on the subject which readied their ears was, that they had been cut off, excluded from the communion of their church. Even the names of the individuals who moved and seconded one of the exscinding resolutions are not recorded in the pub- lished 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 Assembly of the Presbyterian Church, and the General Association of the State of Con- necticut; a plan by which as they contend, Congregationalists have been received into the Presbyterian communion, and under the aid of which, they allege the four exscinded Synods to have been formed. But we vshall show you that this was only a plan of fellowship, of the same kind as those formed with the General Associations of New Hampshire, Ver- mont, and Massachusetts, the Associated Reformed and Dutch Reformed Churches, both before and after the plan of union of ISOl, and that not a single elder, minister, church, or Presbytery has been, or could be admit- ted under its operation. The Plan of Union authorized a Presbyterian minister 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 arbitrament. But it could in no manner effect 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 minis- ters were settled over Congregational churches; that number has been, and is, yearly diminishing, and in the three exscinded Synods of New York, is now almost extinct. Thus, gentlemen, you will perceive, that the General Assembly in ISOl, 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 proceed 'to exscind every minister, communicant, or church, that respec- tively may live or be located within the bounds of the Synod where a Presbyterian minister has, in obedience to their own authority, preached to a Congregational church. We shall further exhibit, gentlemen, the unjust effect of the exscinding acts. The Synods have local bounds. Under the practical operation, therefore, of these resolutions, it becomes a crime for a Presbyterian to live within the ])roscribed 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 re- ceived his ordination within the bounds of one of those Synods, but who had removed to some other district, before the excision, remains in good standing, another, ordained by a body still acknowledged as strictl}'^ Pres- byterian, has by entering the infected region, after the excision, lost the right of fellowship. And the General Assembly of 1S37 did not, with MR. RANDALL'S OPENING. 17 any consistency, carry out its plan of operation, into every case to which it was legitimately applicable. At one fell swoop these four Synods were excluded, while other bodies, equally obnoxious to the charges brought against them, were tiot touched, and still remain in full communion. The Synods of South Carolina and Georgia should have been exscinded, if the Old-school party had wished to be consistent and impartial. The Synods of Pittsburg and New Jersey equally deserved the same fate. And the parent Synod of Albany was suffered to escape, when obnoxious to the very charges under which its offspring was cut off. The case of the Sy- nod of the Western Reserve is still more extraordinary. It was erected out of the Pittsburg Synod, and, in the first instance, included what is now the Synod of Michigan. In the course of time the Synod of Michigan was ci-eated, and while the Synod of the Western Reserve was cut off, those of Pittsburg and Michigan were left untouched. 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 alleg- ed to have been formed under its operation had never been parts of the Presbyterian Church. Yet the same consequences were not visited on other Synods, standing in precisely the same situation. If any circumstance was wanting to render this proceeding more unjust, it was that the Gene- ral 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 com.plete; but it was necessary 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 con, tinue in office from year to year, during the pleasure of the Assembly, as a Committee of Commissions, to examine the commissions of the mem- bers, and report at the opening of the session, those duly elected. They are in this matter, but ministerial or executive officers, bound to act ac- cording 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 Assembly, might refuse to acknowledge the legality of the resolutions of that year, excluding a part of the constituency of the Assembly, and might receive the commissions of delegates coming from within the bounds of the exscinded Synods. A pledge was therefore required from these clerks, that they would carry out the illegal acts of 1837, 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 Pres- byteries in the United States, including those coming from the four ex- scinded Synods, met as usual, in this city. The latter, with the resty 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 com- missions; and they accordingly refused. Next, all the commissioners met together in the Seventh Presbyterian 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 openin'g-of this Assembly, and preside during its organiza- 3 18 PRESBYTERIAN CHURCH CASE. tion, until the election of a new Moderator. After the customary reli- gious services, he accordingly took the chair. When the body was about to be organized, Dr. Patton, 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, a-nd 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 exscinded 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 been then 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. McDowell 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 with great respect, exercising the illimitable power of determining 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 Assembly. Accordingly, at this period the Rev. John P. Cleaveland, a commissioner from the Presbytery of Detroit, rose, and stating the diffi- culty that had occurred, and the necessity that a constitutional organiza- tion should be then and there effijcted, moved that Dr. Beman, of the iPresbytery of Troy, should be temporary Moderator, and put the ques- tion to the commissioners present. The motion was almost unanimously carried, there being, however, a few votes in the negative. The Assem- bly was then constituted, and Dr. Fisher being chosen Moderator, and Dr. E. Mason and the Rev. E. W. Gilbert, clerks, adjourned to the first Presby- terian church of this city, where it sat in the regular discharge of its ordi- nary duties for nearly two weeks. We shall contend that the original excision of the four Western Synods was void and unlawful, and without precedent; that the Rev. Dr. Elliott had, in attempting to carry into effect, in the organization of the Assenj- bly of 1S3S, the illegal acts of the Assembly of 1837, forfeited his right to the Moderator'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 unconstitutional authority. The General Assembly was organized as I have described, and held its session in the First Presbyterian Church, and in the course of its proceed- MR. RANDALL'S OPENING. 19 ings, did, on the twenty-fourth of May, 1838, according to the provisions of the section of their charter of incorporation, elect six trustees, viz: James Todd, Frederick A. Raybold, George W. McClelland, William Dar- ling, Thomas Fleming, and John R. Nefl", 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 removed from their places by such election — whether they have a right to exercise the offices which they continue to hold and exercise. '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, every individual within the bounds of the four exscinded Synods. We come into court reluctantly, and our effort is, not to take away the rights of others, but to preserve our own inviolate. 20 TESTIMONY FOR THE RELATORS. Mr. Randall, having concluded, proceeded to read the pleadings in the case, of which the following is an abstract: The suggestion, verified by the affidavit of oiie of the relators, Frede- rick A. Raybold, Esquire, on which the writ was issued, sets forth that the defendants have exercised, since the twenty-fourth day of May, 1S38, and do still exercise the franchises and privileges of trustees of the Gen- eral Assembly, without lawful authority, since on the day mentioned, the relators were duly elected to that office ; and prays that the said defen- dants may be made to answer, by what warrant they .claim their places. To this Ashbel Green pleads his appointment under the original act of in- corporation, 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 William 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 the process, and takes no part in the pleadings. Before proceeding to the evidence, it should be mentioned, that a writ- ten agreement between the parties had provided, that the printed copies of all original documents, which were competent testimony, might be given in evidence, without producing such originals. The documents from which, under this agreement, the most copious extracts were read, were the published Minutes of the General Assembly, "The Assembly's Digest," and " The Constitution of the Presbyterian Church," containing " The Confession of Faith, the Catechisms, and the Directory for the Worship of God : together with the Flan of Government and Discipline, as amended and ratified by the General Assembly, at their session in May 1821;" references to all which will be understood after this explanation. Mr. Randall first offered in evidence the Charter of Incorporation, granted to the Presbyterian Church, by the legislature of Pennsylvania. (Assem. Digest, p. \Q2. J " An Act for incorporatiing the Trustees of the Ministers and Elders, constituting the General Assembly of the Presbyterian Church in the United States of America. " Whereas tlie ministers and eiders forming tlie General Assembly of tlie Presbyte- rian Clmrcli of the United States of America, consisting of citizens of the State of Penn- sylvania, and of others of the United States of America aforesaid, have by their petition represented, that by donations, bequests or otherwise, of charitably disposed persons, the/ are possessed of monies 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 otiier causes, the said ministers and elders find it extremely ditTicult, to manage the said funds in the way best calcula- ted to answer the intention of the donors: Therefore, ♦' Sec. 1. Be it enacted by tlie Senate and House of Representatives of the Com- TESTIMONY FOR THE RELATORS. 21 mon wealth of Pennsylvania, in General Assembly met, and it is hereby enacted by the authority of the same, That John Rogers, Alexander McWhorter, Samuel Stanhope Smith, Ashbel Green, William M. Tennant, Patrick Allison, Nathan Irvm, Joseph Clark, Andrew Hunter, Jared IngersoU, Robert Ralston, Jonathan R. Smith, Andrew Bayard, Elias Boudinofr, John Nelson, Ebenezer Hazard, David Jackson, and Robert Smith, merchant, and their successors duly elected and appointed in manner as is here- inafter 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 General 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, all and all manner of lands, tenements, rents, annuities, franchises, and other hereditaments, "which at any lime or times heretofore have been granted, bargained, sold, enfeoffed, re- leased, devised,. or otherwise conveyed, to the said ministers and elders of the General Assembly of the Presbyterian Church of the United States, or any other person or per- sons, to their use, or in trust for them ; and the same lands, tenements, rents, annuities, liberties, franchises, and other hereditaments, are hereby vested and established in the said corporation, and their successors for ever, according to the original use and intent for which such devises, gifts and grants were respectively made ; and the said corpora- tion and their successors, are hereby declared to be seized and possessed of such estate and estates therein, as in and by the respective grants, bargains, sales, enfeoffments, ■ releases, devises, and other conveyances thereof, is, or are declared limited and express- ed; also, that the said corporation and their successors, at all times hereafter, shall be capable and able to purchase, have, receive, take, hold, and enjoy, in fee simple, or of lesser estate or estates, any lands, tenements, rents, annuities, franchises and other here- ditaments, by the gift, grant, bargain, sale, alienation, enfeoffment, release, confirmation or devise, of any person or persons, bodies politic and corporate, capable and able to make the same: And further, that the said ministers and elders, under the corporate name aforesaid, and their successors, may take and receive any sum or sums of money, and any portion of goods and chatties, that have been given to the said ministers and el- ders, or that hereafter shall be given, sold, leased, or bequeathed, to the said corporation, by any person or persons, bodies politic or corporate, that is able or capable to make a gift, sale, bequest, or other disposal of the same; such money, goods, or chatties, to be laid out and disposed of, for the use and benefit of the aforesaid corporation, agreeably to the intention of the donors, and according to the objects, articles, and condition of thisi act. » Sect. 2. And be it further enacted by the authority aforesaid. That no misnomer of the said corporation and their successors, shall defeat or annul, any gift, grant, devise or bequest, to or from the said corporation, provided the intent of the party or parties shall sufficiently appear upon the face of the gift, will, grant, or other writing, whereby any estate or interest, was intended to pass to or from the said corporation. " Sect. 3. And be it further enacted by the authority aforesaid. That the said corpo- ration and their successors, shall have full power and authority, to make, have, and use, one common seal, with such devise and inscription as they shall think fit and proper; and the same to break, alter, and renew, at their pleasure. " Sect. 4. And be it further enacted by the authority aforesaid, That the said corpora- tion and their successors, by the name, style, and title aforesaid, shall be able and capa- ble in law, to sue and be sued, plead and be impleaded, in any court, or before any judge or justice, in all and all manner of suits, complaints, pleas, matters, and demands, of whatsoever nature, kind, and form they may be; and all and every matter and thing to do, in as full and effectual a manner, as any other person, bodies politic or corporate, within this commonwealth, may or can do. " Sect. .5. And be it further enacted by the authority aforesaid. That the said corpo- ration and their successors, shall be, and hereby are authorised and empowered, to make, ordain, and establish, bye laws and ordinances, and do every thing incident and needful for the support and due government of the said corporation, and managing the funds and revenues thereof; Provided, the said bye laws be not repugnant to the constitution and laws of the United States, to the constitution and laws of this commonwealth, or to this "Sect. 6. And be it further enacted by the authority aforesaid, That the said corpo- ration shall not, at any time, consist of more than eighteen persons: whereof the said General Assembly may, i^J. their discretion, as often as they shall hold their sessions in 22 PRESBYTERIAN CHURCH CASE. the slate of Pennsylvania, change one third, in such manner as to the said General As- sembly shall seem proper : And the corporation aforesaid, shall have power and authority, to manage and dispose of all monies, goods, chattels, lands, tenements, and heredita- ments, and other estate whatsoever, committed to their care and trust, by the saidGene-- ral 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 instructions; Provided, Ihe sa'\6 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 restrictions in this act contained. " Sect. 7. And be it further enacted by the authority aforesaid. That six members of this corporation, whereof the president, or in his absence the vice-president, to be one, shall be a sufficient number to transact the business thereof, and to make bye-laws, rules, and regulations ; Provided, that previous to any meeting of the board or corporation, for such purposes, not appointed by adjournment, ten days notice shall be previously given thereof, in at least one of the newspapers printed in the city of Philadelphia : And the said corporation shall and may, as often as they shall see proper, and according to the rules by them to be prescribed, choose out of their number, a president and vice- president, and shall have authority to appoint a treasurer, and such other officers and servants, as shall by them, the said corporation, be deemed necessary ; to which officers the said corporation may assign such a compensation for their services, and such duties to be performed by them, to continue in office for such a time, and to be succeeded by others, in such way and manner as the said corporation shall direct. "Sect. 8. And be it further enacted by the authority aforesaid, That all questions before the said corporation, shall be decided by a plurality of votes, whereof each mem- ber present shall have one, except the president, or vice-president, when acting as pre- eident, who shall have only the casting voice and vote, in case of an equality in the votes of the other members. " Sect. 9. And be it further enacted by the authority aforesaid, That the said corpo- ration shall keep reorular and fair entries of their proceedings, and a just account of their receipts and disbursements, in a book or books to be provided for that purpose ; and their treasurer shall, once in a year, exhibit to the General Assembly of the Presbyterian Church in the United States of America, an exact state of the accounts of the corpo- ration. "Sect. 10. And be it further enacted by the authority aforesaid, That the said cor- poration may take, receive, purchase, possess, and enjoy, messuages, houses, lands, tene- ments, rents, annuities and other hereditaments, real and personal estate of any amount, not exceeding ten thousand dollars a year in value, but the said limitations not to be con- sidered as including the annual collections, and voluntary contributions, made in the churches under the care of the said General Assembly. Cadwalader Evans, Jr. Speaker of the House of Representatives. Robert Hare, Speaker of the Senate. Thomas Miffj-in, Governor of the Commonwealth of Pennsylvania. Approved, ) March 28, 1799.'* \ Next was offered the Act of the General Assembly itself f^ss. Dig. p. 198.^ prescribing the mode of making choice of Trustees. " 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 Legislature con- stituting the charter of incorporation. After maturely discussing this subject, the As- sembly 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 determined 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 on. 3. When the day of election arrives, the As- sembly shall ascertain what vacancies in the number of the eighteen Trustees incorpo- rated, have taken place by death pr otherwise; and shall first proceed to choose otheir members in their places. When this is accomplished, they shall proceed to the triai TESTIMONY FOR THE RELATORS. 23 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 chano'e, in the followinor manner: viz. Thelist of the Trustees shall betaken, and a vote be had for a person to fill the place of him who is first on the list. In votings for a person to fill said place, the vote may be Civen either for the person whn has before filled it, or for any other person ; if the ma- jority of votes shall be given foi the person who has before filled it, he shall continue in office ; if the majority of votes shall be given for another person, this person is a trustee, duly chosen in place of the formei'. In the same form the Assembly shall proceed with the list, till they have either changed one-third of the trustees, (always including in the third those who have been elected by the sitting Assembly to supply the places that be- come vacant by death or otherwise,) or by going through the list, shall determine that too further alterations shall be made." — Vol. i. p. 252. The next evidence offered was " The Constitution of the Presbyterian Church in the United States of America ; containing the Confession of 'Faith, the Catechisms, and the Directory for the Worship of God ; to- gether with the Plan of Government and Discipline, as amended and ra- tified bv the General Assembly, at their session in May, !821." Minutes 1821, p. 5. "The Presbyteries were called tipon to report their several de- cisions on the revised form of government and forms of process, sent down by the last As=emblj% and their reports being read, were committed to Dr. McDowell and Mr. Chester to ascertain precisely the opinions of the sevefal Presbyteries on the subject, and report their decision to this Assembly. ********** "The Committee appointpd to ascertain the decisions of the several Presbyteries on the subject of the revised form of government, and forms of proce-ss, and the amend- ments 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 bya majority of the wholenumber of Presbyteries; that the smallest num- ber 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 Presbyteries is ratified, and becomes a part of the Constitution.'* Before the time when this constitution was thus approved by the Pres- byteries, the Synod of Geneva had been formed; and, at that period, comprised the Presbyteries of Geneva, Onondaga, Cayuga, Bath, Ontario, Niagara, Genessee, and Rochester. The Presbyteries of Oneida, St. Lawrence, and Otsego, now belonging to the Synod of Utica, were then parts of the Synod of Albany ; and the Presbyteries of Grand River and Portage, now parts of the Synod of Western Reserve, at that time belong- ed to the Synod of Pittsburgh. Therefore of the twenty-eight Presby- teries at present contained in the exscinded Synods, there w^xq fourteen in existence at the period when this amended constitution was adopted, to all which, that constitution was of course sent down for their approval. (See Minutes. ) The follov/ing sections of the form of Govcrnnient were next offered : " Cha'p. X. {Of the Presbytery.) Sect. 2. A Presbytery consists of all the ministers and one ruling elder from each congregation within a certain district. " Sect. 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 competent to proceed to business. " Chap. XL {Of the Synod.) Sect. 1. As a Presbytery is a convention of the bishops and elders vvithip a certain district; so a Synod is a convetition of the bishops 24 PRESBYTERIAN CHURCH CASE. and elders within a larger district, includingf at least three Presbyteries. The ratio of the representation of elders in the Synod, is the same as in the Presbytery. " Sect: 2. Any seven ministers, uelonging to the Synod, who shall ronvene at the time and place of meeting, with as many elders as may be present, shall be a quorum to transact Synodical business; provided not more than three of the said ministers belong to.one Presbytpry. '■'Chap. XII. (Of the General Assembly.) Sect. 1. The General Assembly is the highest 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 GeneraIt Assembly of the Presbyterian Church in the United States of America. " Sect. 2. The General Assembly shall consist of an equal delegation of bishops and eiders from each Presbytery, in the following proportion : viz. each Presbytery consisting of not more than nine ministers, shall send one minister and one elder; each Presbytery consisting of more than nine ministers, and not more than eighteen, shall send two ministers and two elders; and in the like proportion for every nine ministers in any Presbytery. And these delegates so appointed shall be styled, Commissioners of the General Assembly.''^ Mill. 1833, p. 486. This last section altered, with the approval of a majority of the Presbyteries, in the year 1833, so as to read thus:— " I'he G<^neral Assembly shall consist of an equal delegation of bishops and elders from each Presbytery, in the following proportion, viz. each Presbytery consisting of not more than twenty-four ministers, shall send one minister and one elder; and each Pres- bytery consisting of more than twenty-four ministers, shall send two ministers and two elders, and in like proportion for every twenty-four ministers in every Presbytery; and these delegates so appointed shall be styled, " Commissioners to the General Assembly.^ " Sect. 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." Mr. Randall next read extracts from the minutes of the Assembly, showing the time and manner of the creation of the four Synods of Gene- va, Genessee, Western Reserve, and Utica. Min. 1803, p. 17. " Resolved, that the Presbyteries of Albany, Oneida and Colum- bia, be, and they hereby are, constituted and formed into a Synod ; to be known by the name of the Synod of Albany." Min. 1812. p. 23. "The Synod of Albany having made application, that the said Synod should be divided in the following manner :" viz. (The Presbyteries of London- derry, Columbia, Albany and Oneida, forming the Eastern Division, under the name of the Synod of Albany.) "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 Geneva;"" the Assembly " Resolved, That the Synod of Albany be divided as above ; and it hereby is accord- ingly divided." Min. 1821, p. 10. "The Synod of Geneva requested that said Synod be divided in the following manner, and their request was granted, viz : " That the Presbyteries of Niagara, Genessee, Rochester, and Ontario, be erected into a Synod to be known by the name of the Synod of Genessee, c^-c." Min. 1825, p. 263. On application made to erect a new Synod, &c. the Assembly " 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 be designated by the name of Synod of the Wester7i Reserve." Min, 1829, p. 373. On application of the Synod of Albany, the Assembly " Resolved, That agreeably to the request of the Synod, the Presbyteries of Ogdens- burgh, Watertown, Oswego, Oneida, and Otsego, are hereby constituted a New Synod, to be called the Sijnod of Ulica." The testimony next offered, consisted of extracts from the minutes, showing the frequent recognition of these Synods, and of the Presbyte- ries composing them, by the General Assembly; their having contributed to the church funds, &c. As the fact of o^ecognition was not contested by the defendants, and as most of the passages cited to prove it, and the TESTIMONY FOR THE RELATORS. 25 other points here connected with it, were of the same general nature, in many cases, mere references are given. Min. 1801, pp. 4, 5. — " The delegates appointed by the last Assembly to attend the General Association of the State of Connecticut, made their report, which was read as follows, viz. "The delesrates from the General Assembly to the General Association of Connecti- cut, report, that they have attended according to appointment through the whole course of the sessions of the General Association. That besides the business peculiar to the churches of Connecticut, the General Association appointed a committee to confer with a committee that may be appointed by the General Assembly, on measures which may promote union among the inhabitants of the new settlements and the missionaries to those settlements, as appears by the inclosed paper. The General Association also voted that inslructions be given by the trustees of the Missionary Society, to their mis- sionaries, to avoid every thing that may interrupt peace in the new settlements, among fhose that are attached to the Presbyterian and Congregational forms of government. " Your delegates further report, that they were received and treated with exceeding great cordiality and Christian friendship, and that the Association expressed high satis- faction with the connexion subsisting between themselves and the General Assembly of • the Presbyterian Church, and believed that it would have a happy tendency to promote the interest of the Redeemer's kingdom. (Signed,) Jonathan Edwards, Asa Hillyer, Jonathan Freman." Id. p. 18. — "The Rev. Peter Fish, of the Presbytery of Albany, was appointed a missionary for six months, in the county of Oneida and its vicinity." Min. 1803, p. 16. — " The Assembly called on the Presbyteries, which are required to make annual collections for missionary purposes, to report how far they have complied with the orders of the General Assembly on this subject. It appeared in consequence, that the Presbyteries of Oneida, Albany, Columbia, &c., have substantially done their duty, in reference to this collection." Min. 1804, p. 69. — " List of churches belonging to the Synod of Albany, &c., which have contributed to the contingent fund of the General Assembly, from June 1st, 1803, to May 21st, 1804. (The fund expended in the course of the year, for missionary, and other purposes; so called to distinguish it from the permanent fund, the principle of which is kept entire.) "Presbytery of OneicZa, $28 77^ " Columbia, - - - - - 12 01^ Albany, 16 25 &c." Min. 1805, p. 96. — " The committee to whom were referred the reports of the Pres- byteries on the Amendments of the Constitution, reported, that the Presbytery of Onei- da has approved all the proposed amendments." Id. pp. 107, 8. — " Payments into the Contingent Fund. "Presbytery of Oneida, ..... 31 33 &c." Min. 1807, p. 173. — Oneida contributes to contingent and missionary funds $24. Min. 1808, pp. 188, 9, 197. Min. 1809, p. 220. Id. p. 227. — View of churches under the care of the Assembly. Presbytery of Oneida, 7 Ministers, 13 Congregations. " Geneva, 14 " 12 " Id. pp. 230, 252. Min. 1810, pp. 278, 288.— Contributions to Education, Missionary, &c. funds. Min. 1811, p. 353. — Statement of Contributions. "Presbytery of Oneida,^ - - - * - $96 50 Geneva, - - - . - 28 81 Onondaga, - - - - - 35 00 Cayuga, ..... 22 57." Min. 1812, p. 30. Min. 1813, pp. 30, 85. Id. p. 101. — Acknowledgment of monies received from the Synod of Geneva for the Theological Seminary at Princeton. Min. 1814, pp. 108, 9, TU, 154, 6. 4 26 PRESBYTERIAN CHURCH CASE. Id. p. 221. — Contributions to Theological Seminary. "Received of Rev. Jabez Chadwick, the donation of Col. John Lincklaen of Gaze- novia, - - - - - - $ 100. " Received of Rev. Alexander Monteith, - - - 70." Min. 181.5, ]i. 2.50. — Contributions. Presbytery of Cayuga, - - - • $ 30 00 Utica, - - - - - 819 90." Id. p. 267. Mill. 1816, pp. 318, 367. Min. 1817, p. 59. Id. p. 9.—" The committee appointed to prepare a minute, stating the attention which the Presbyteries appear to have paid to the resolutions of the Assembly, in relation to the selection of youni:r men for the gospel ministry, and providing funds for their educa- tion, reported ; and their report being read, was adopted, and is as follows, viz. "Tiiat from the voles of the As>embly, it appeared the Presbyteries of Onondaga, Geneva, Oneida, Cayuga, Columbia, * * *, Grand River, * * ^ had fully attended to the recommendations of the Assembly on the subject." Min. 1818, p. 27. — " The following persons were appointed a Board of Missions, for the ensuing year, viz. " Of the Synod of Geneva, Rev. D. Higgins. " Albany, Rev. Jas. Coe, D. D. &c." Id. pp. 59, 61, 2, 3. Id. p. 84. — " Theological Seminary— Contingent fund. " 28, Of Rev. W. Hanford, per Rev. Jos. Treat, collected in Grand River Presby- tery, ------ ^S»71 38. Min. 1819, p. 158.—" The Presbyteries were called upon to report on the subject of the overture sent down by the last General Assembly, proposing an alteration in the Constitution, in the following words: " 1. Resolved, That it be recommended to the Presbyteries to alter the ratio of re- presentation, by substituting Chapter XL Section 2, the word nine for the word six, and the word eighteen in place of the word twelve. " 2. That the Presbyteries be required to send up to the next General Assembly their respective decisions on the question submitted to their consideration in the above resolution. . . . " Reports on this subject from the following Presbyteries were received in writing, declaring their concurrence in the proposed amendments, viz. Niagara, Ontario, Onon- daga, Cayuga, Geneva, Bath, &,c., * * Portage, Grand River, &c. Whereupon the General Assembly did, and hereby do declare, that the above mentioned amendment of the Constitution has been duly and constitutionally made." Min. 1820, pp. 306, 345, 6, 7, 8, 358, 9. Min. 1821,;;. 11.— A committee of three appointed in each Synod, to superintend the printing of the Confession of Faith, and Constitution of the Church. " Of the Synod of Genesee. I " Of the Synod of Geneva. ■ Rev. Ebenezer Fitch, D. D., | Rev. Henry Axtell, Rev. Comfort Williams, I Rev. Henry Dwight, Rev. Calvin Colton." | Rev. Derick C. Lansing." Id. p. 16.—" It being the order of the day, the Assembly proceeded to consider the appeal of Mr. Jabez Spicer, from the decision of the Synod of Geneva, by which Mr. Spicer had been deposed from the Gospel ministry. The documents on the subject were read and the parties were heard. After a considerable discussion, the following resolution was adopted, viz. " Resolved, That the appeal of Mr. Spicer be sustained, on the ground that the sen- tence pronounced upon him was disproportioned to his crime; it not appearing substan- tiated that he was ffuilty of more than a sinsfle act of prevarication : while, therefore, the Assembly express their entire disapprobation of the conduct of Mr. Spicer, as un- becomintr a Christian, and Christian minister, they reverse the sentence of deposition passed upon him by the Presbytery, and direct that after suitable admonitions and ac- knowledcrments, he be restored to the ministerial office." Id pp. 31, 2, 39, 41.— Contributions of Presbyteries within the exscinded Synods to the Education funds, Theological Seminary, &c. Min. 1822, pp. 12, 45, 50, 56, .59. Min. 1823, pp. 124, 135, 139, 145, 170, 1, 2. TESTIMONY FOR THE RELATORS. 27 Min. 1823, p. 159. — " 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 Northumberland, Grand River, &c. The Presbyteries which have reported, are the following, viz. "1. Genesee, which has one young man under its care, and has expended last year 19 dollars. "2. Rochester, which supports three beneficaries. "3. Geneva, which has two youths under its care, and co-operates with the Western Education Society. "4. Bath, which has 0716 beneficiary, raised last year 24 dollars, 34 cents, and ex- pended 25 dollars. " 5. Oneida, which has ?iine beneficiarie.s. ' "6. Onondaga, which aids_^i;c young men in board and clothing, &c." Miji. 1824, p. 202. — "The committee appointed to examine the records of the Synod of Gene5ep, rf ported, and the book was approved to page 47." Id. p. 203. — The boundary liqe between the Synod of Albany and the Synod of Geneva altered. Id. pp. 235, 242. Min, 1826, p. 262. — "The committee to whom was referred the overture from the Presbytery of Genesee, made a report, which being read and amended, was adopted, and is as follows, viz. " Resolved, That the Presbytery is the competent court to try these two elders, and that it is their duty to cite the offending persons before them, and proceed to issue the case." Id. pp. 274, 301, 335—360 Min. 1826. pp. 11, 15, 21, 59, 63, 4, 5, 6, 7, 88, 9, 90. Min. 1827, pp. 120, 1, 177, 8, 9, 180, 1, 2, 3. Id. p. 147. — Rev. Henry Axtell, and Mr. Horace Hill, of Auburn, belonging to one of the exscinded Synods, elected members of the Board of Education. Min. 1828, pp. 236, 7, 280, 1. 2, &c. Min. 1829, pp. 371, 2, 381, 2, 3. Min. 1830, pp. 30, 65, 6, 103, 4, 5. Min. 1831, p. 175. Id. p. 184. — "The committees appointed to examine the records of the Synods of Albany, * * *, Geneva, Western Reserve, Genesee, * * *, reported respectively, and the records were approved." Id. pp. 219, 220, 1, 2, 3, 261, 2, 3. — Funds contributed for mipsionary purposes, &c., by the Presbyteries within the four Synods. Min. 1832, pp. 324, 367—418. Min. 1833, pp. 469, 470, 1, 485. Id. p. 489, 90. — " 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 nf 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 nf the Western Reserve to the General Assembly of the Pres- byterian Church in the United States of America, in relation to the direction of 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. 8th, 1832, the following resolution was adopted, viz. "Resolved, That in reference to the point named by the Assembly, as having been charged by common rumor 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 1888, it is believed that a difference of practice prevailed in our Presbyteries, in the reception of members from correspond- ing churches; (as has been common in other Presbyteries in different parts of the coun- try,) without any formal profession of adopting the Confession of Faith of the Presbyte- rian church. But since the passage of that resolution by the Assembly, the Synod believe that no such practice has obtained in any of our Presbyteries, In regard to the allegation respecting pcrjwis licensed and ordained by our Presbyteries, without receiv- 28 PRESBYTERIAN CHURCH CASE. ing and adopting the Confession of Faith, the Synod have no knowledge orbelief of the prevalence of any such practice 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 eldership essential to the e.xistence 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 there 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 spirit of which, the Synod believe, that none of our Presbyteries have departed. " However, with regard to the charge of the 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 connected with our Presbyte- ries, than during any three or four years previously. By order of the Synod of the Western Reserve, Attest, WILLIAM HANFORD, Stated Clerk. " The report of the committee to examine the records of the Synod of the Western Reserve, which was laid on the table, was taken up, and adopted, and is as fbllows, 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 Presbyterian Church. In the opin- ion of the committee the Synod advanced a sentiment, that contravenes the principles recognised in our Form of Government, Chap. IL Sect. 4. Chap. III. Sect. 5. Chap. V. Chap. IX. Sects. 1, 2." Min. 1833, pp. 517—568. Min. 18-34, pp. 1—6, 13, 17. Id. p. 22. " The Assembly took up Overture No. 11, viz. A petition from the Synod of the Western Reserve to erect the Presbyteries of Detroit, Monroe, and St. Joseph, in the said Synod, into a new Synod, to be called the Synod of Michigan." Id. pp. 28, 30, 38, 40, 1, 82—139. Min. 1835, pp. 17, 18, 19, 30, 32. Min. 1836, pp. 263, 276. Min. 18.37, pp. 527—544, 572—576. Monies contributed by the Presbyteries of the four Synods. The next testimony, Chapter IV. of Form of Discipline. " OF ACTUAL PROCESS. " 1. When all other means of removing an offisnce 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 judicatory: either by an individual or individuals, who appear as accusers, and undertake to substan- tiate the charge ; or by common fame. "3. In the former case, process must be pursued in the name of the accuser or accu- eers. 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, censori- ousness, 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 person who is known to indulge a malignant spirit towards the accused ; wiio 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 meetings, unless by consent of parties, than to give the accused a copy of each charire, with the names of the witnesses to support it; and to cite ail concerntrd to appear at the next meeiing of the judicatory, to have the matter fully heard and decided. Notice shall be given to the parties concerned, at least ten days previously lo 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 witnesses as the accused shall nominate, to appear on his behalf. TESTIMONY FOR THE RELATORS. 29 •7. Although it is required that the accused be informed of the names of all the wit- ses 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 sioiilar notice to the judicatory of all the witnesses intended to be adduced by him for his exculpation. " 8, In exhibiting charges, the times, places, and circumstances should, if possible, 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 confess guilt, to endeavour to bring him to repentance, than to proceed immediately to citation. , " 10. VViien an accused person, or a witness, refuses to obey the citation, he shall be cited a second lime: and if he still continue to refuse, he shall be excluded from the communion of the church, for his contumacy, until he repent. . "11,, Allhouoh, on the first citation, the person cited shall declare in writing, or otherwise, his fixed determination not to obey it; this declaration shall, in no case, induce 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 after- wards alter his mind. " 12. The time which must elapse between the first 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 allotted for his appearance in the subsequent citation, is left to the discretion of the judicatory; provided, always, however, that it be not less than is quite sufficient for a seasonable and convenient compliance with the citation. "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 judicatory, besides censuring liim for his contumacy, will, after assigning some person to manage his defence, proceed to take the testimony in his case, as if he were present. "14. Judicatories befere 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 pre- sence 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 exculpation. " 16. The judgment shall be regularly entered on the records of the judicatory: and the parties 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 referring, 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 before 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 oflTence be of small importance, and such as it shall appear most for edification not to publish, the sentence may pass only in the judicatory. "20. Such gross offenders as will not be reclaimed by the private or public admoni- tions of the church, are to be cut off from its communion, agreeably to our Lord's direc- tion, Mat. 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 pro- cess in any of our ecclesiastical courts. But if any accused person feel unable to repre- sent 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 member 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. * 30 PRESBYTERIAN CHURCH CASE. "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 which had an influence on the judgment of the court. And nothing but what is contained in the record, may be taken into consideration in reviewing the proceedings in a superior court." Chapter V. " OF PROCESS AGAINST A BISHOP OR MINISTER. " 1. As the honour and success 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 ajrainst him, by any judicatory, on sliurht grounds. " 2. Process agamsc a Gospel minister shall always be entered before the Presbytery of which he is a member. And the same candour, caution, and general method, substi- tuting only the Presbytery for the session, are to be observed in investigating charges against him, as are prescribed in the case of private members. . "3. If it be found that the facts with which a minister stands charged, happened without the bound.s of his own Presbytery, that Presbytery shall send notice to the Pres- bytery within whose bounds they did happen: and desire them either (if witliin conve- nient 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. Nevertheless, 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 hap- pened, 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 commission 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 person' or persons, undertake to make nut the charge: or unless common fame so loudly pro- claims 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, thoir soundness in the faith, and holy conversation; and as it is the duty of all Christians to be very cautious in talnng up an ill report of any man, but especial- ly of a minister of the Gospel ; therefore, if any man knows a minister to be guilty of a private, censurable fault, ho should warn him in private. But if the guilty person per- sist in his fault, or it becomes public, he who knows it, should apply to some other bishop of the Presbytery for his advice in the case. " 7. The prosecutor nf 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 ministry, in pro- portion to the malignity or rashness that shall appear in the prosecution. "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 parties,) than giving the minister a fuU ropy of the charfjes, with the names of the witnesses an- nexed : and citing all parties, and their witnesses, to appear and be heard at the next meeting : which 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 discretionary 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 ho shall be called upon to say whether he is guilty or not. If he confess, and the matter be base and flagitious; such as druiikeimess, uncleanness, or crimes of a higher nature, however penitent he may appear, to the satisfaction of all, the Presbytery must, without delay, suspend him from the exercise of his office, or depose him from the ministry ; and, if TESTIMONY FOR THE RELATORS. 3j the way be clear for the purpose, appoint him a due lime to confess publicly before the congregation offended, and to profess his penitence. " 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 cita- tion, 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 sup- ported, the Presbytery must, nevertheless, censure him ; and admonish, suspend, or de- pose him, according to the nature of the offence. "13. Heresy and schism may be of such a nature as to infer deposition; but errors ought to be carefully considered ; whether they strike at the vitals of religion, and are industriously spread; or, whether they arise trom the weakness of the human under- standing, and are not likely to do much injury. " 14. A minister under process for heresy or schism, should be treated with Christian and brotjierly tenderness. Frequent conferences ought to be held with him, and proper admonitions administered. For some more dangerous errors, however, suspension may become necessary. " 15. If the Presbytery find, on trial, that the matter complained of, amounts to 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^n 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." Next, Form of Government, Chapter XII. "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 con- stitution of the Church; and they shall constitute the bond of union, peace correspon- dence, and mutual confidence, among all our churches. " V. To the General Assembly also belongs the power of deciding in 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 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 corresponding body; of suppressing schismatical contentions and disputations ; and, in general of recommending and attempting reforma- tion of manners, and the promotion of charity, tiuth, and holiness, through all the churches under. their care. " VI. 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 trans- mit them to all the Presbyteries, and to receive the returns of at least a majority of them, in writing, approving thereof" Min. 1822, 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 members of the Presbyterian Church in the United States, having had the same under serious con- sideration, submitted the following report, which was adopted, viz : " The General Assembly can never hesitate, on any proper occasion, to recommend 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 con- troversies, respecting doctrine and principle ; of reproving, warning, or bearing testi- mony, against error in doctrine in any Church, Presbytery, or Synod ; or of suppressing' schismatical contentions an* disputations, all such matters ought to he brought before 32 PRESBYTERIAN CPIURCH CASE. 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 wheli the object appears to be, to brine: those decisions to bear on particular individuals, not judicially before the Assembly. Neither does it ap- pear, that the Constitution of the Church, intended that any person or persons, should have the priviiecfe of presentinnr for decision, remonstrances respecting points of doe- trine, on the conduct of individuals, not brougiit up from the superior judicatories, by appeal, reference, or complaint; and this especially, when such remonstrances contain no evidence whatsoever, of the facts alleged, but mere statements, of the truth or just- ness 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 committed be discharged from the further consideration of this remonstrance ; and the, committee were accordingly discharged." Court adjourned. WEDNESDAY MORNING, March 6th— 10 o'clock. Mr. Randall offered in evidence portions of a statistical table, (Mln. 1837, p. 521,) to prove that in Presbyteries still in connexion with the General Assembly, there were numerous ministers who were pastors of Congregational Churches. He showed that in the Presbyteries of Lon- donderry and Newburyport, belonging to the Synod of Albany, out of for- ty-one ministers reported as composing those Presbyteries, there were six- teen pastors of Congregational, and only fourteen of Presbyterian Churches, {pp. 522 — 3.) He then offered other parts of the table to show that there were no such cases reported in any of the Presbyteries of the exscinded Synods. Next he referred to the table, beginning with the Presbytery of St. Lawrence, {p. 527,) to show the amount of contributions to the Church funds, collected within those Synods, in the year ending with the date of the reports of 1837. Some of the extracts were as follows : "Presbytery of St. Lawrence, $9.53 33 VVatertown, - - 976 32 Oswego, 662 07 Otsego, 1525 01 Geneva, - 7729 95 Cayuga, ....--.. 3251 00 Rochester, 15,750 50." Mr. Randall next offered to read from the same minutes, (1837, jtr. 520,) to show what ecclesiastical bodies were recognised as in connexion with the Church, at the opening of the Assembly of 1837. Mr. Hubbell. We object to the evidence proposed, may it please your Honor. The admission of tliis testimony would involve us in other questions than those raised by the pleadings. The proceedings of the Assembly of 1837 have no bearing upon this case : why does the other party wish to introduce them here? What is their purpose ? Is it to prove that that Assembly dismembered and destroyed itself? If any thing less than this, what effect can the proceedings of 1837 have upon those of 1838? The pleadings, however, preclude the admission of evi- dence for such a purpose. The Assembly of 1838 derjved its existence from the adjournment in 1837. The very appointment of these trustees, the relators in this suit, is an acknowledgment of the fact, that the As- sembly of 1837 did not perform any act of dismemberment. It was said, in the opening of the opposite party, that the officers of the Assein- bly of 1838 had rejected from the roll of that body certain individuals claiming seats, and that this was the true ground of the controversy. TESTIMONY FOR THE RELATORS. 33 That a certain gentleman rose, and proposed the deposition of those offi- cers, for their misconduct; and that, by an almost unanimous vole, they were deposed. Their object, then, is to prove, that the officers of the Assembly of 1838 Committed some error; that they defeated the consti- tutional organization of the Assembly, by their refusal to admit the claimants referred to. If so, if such a rejection can be proved, and it can also be shown that this rejection defeated the organization of the As- sembly, the plaintiffs have made out that part of their case. But why should they go into our case? We deny that the Assembly ever made .any such rejection ; that they ever committed themselves on the subject. But even if they did, why should our opponents go into the proceedings of the Assembly of 1837 to find a reason, either good or bad, for such rejection ? If there are any such reasons, it is our business to exhibit them. They have no right to meddle with them — to come into our camp. Let us justify ourselves. The Assembly of 1S38, as regards the qualification of its members, was entirely independent of that of 1837. It may have been composed of members entirely different, though coming from the same constituent bodies. The two Assemblies had not even the same Moderator; for the old Moderator continues in office merely to constitute the new body. Here are certain individuals, then, who present themselves to the Permanent and Stated Clerks of the Assembly of 1838, whose business it is to judge of the validity of commissions, and they are rejected. An attempt is made to introduce the matter to the consideration of the house. The Moderator declares the motion for that purpose out of order, and an appeal being taken from his decision, he declares the appeal also out of order. Now they may contend, that by this act, the house either was dismembered, or, on appeal to it, unanimously removed its officers for their misconduct. Well, if there was a unanimous removal, why should the plaintiffs go back to the proceedings of 1837: why should they anticipate our de- fence? Perhaps we may say that our opponents have violated some rule of the Assembly. If this be our defence they certainly have no right to anticipate us in the development of it. Suppose it true, that the Assem- bly of 1837 did \;ommit injustice: what effect can this have upon the proceedings of 1838, when, as they contend, the error has been cleared away? " Ah! but you won't admit this," say they-; " therefore we will go into evidence to show the injustice of the acts of 1837." Well, sup- pose they abandon this ground, and contend that no regular process was commenced under the Assembly of 1838; that, from the rejection of certain commissioners by the clerks, every thing done was void and of no effect: still, is it for them to say, that the Assembly of 1837 committed an, error? If we attempt to show a justification for our Moderator and clerks, must we do it in the way which they point out? We, indeed, intend to prove our Moderator and clerks in the right ; and that they, taking offence at the primary and inferior tribunal, never presented their case regularly for rejection. The plaintiffs have taken the ground, that an error of the clerks made them the true General Assembly, and dismembered and destroyed our body. But they want to go farther than this, and show a bad motive, which, they say, must have actuated our party. 5 34 PRESBYTERIAN CHURCH CASE. Judge Rogers. This evidence seems to me to be exactly of the same kind with that already admitted. Mr. Huhhe.ll. For the purpose for which the other testimony was re- ceived, we have no objection that this should be admitted. We conceived it to be the right and duty of our opponents to build up an Assembly. But how is this to be done? By showing that these bodies have been admiLted as parts of the Presbyterian Church? This is conceded. Whether admitted constitutionally, or not, is another thing. But they cannot be allowed to show that the proceedings of 1837 are a poor reason for those of 1838 ; that our defence is a poor defence. Let us be masters of our own defence. Mr. -Ingersoll. I should like to know for what purpose Mr. Randall offers the evidence. It may be that he has two objects. If offered to prove the admission of these Synods, it is proper, or, at least, only irrele- vant. If to prove their rejection, it is inadmissible. Judge Rogers. What is the object of the testimony, Mr. Randall ? Mr. Randall. May it please your Honor, our object is to show the state of the General Assembly in 1837; that these Synods were then in good standing, and incorporated as a part of the Presbyterian Church, under the Constitution of 1831. Then to follow this up, by showing an act of dismemberment, begun by the clerks of the Assembly, and carried out by the Moderator, which defeated the organization, and made it void and nugatory, whereby- we became the true General Assembly But we cannot prove more than one link at a time. The links are independent of each other, except as to order. Judge Rogers. Mr. Hubbell, you may go on. Mr. Hubbell. May it please your Honor, we do not pretend that the act of the clerks was a mistake. Our opponents cannot, then, bring evi- dence to prove that it was not a mistake — that it was the result of de- liberate design. If they prove that certain commissions were presented to the clerks, and by them refused ; that then a resolution in regard to them was offered, and, this resolution being declared out of order, an ap- peal was taken from the Moderator's decision, but that the Moderator refused to put the appeal — if all this be shown, they have laid the basis of their superstructure. They must not anticipate our defence to the al- legation. If the acts of 1837 dismembered the General Assembly, then our trustees, appointed before that time, are entitled to their places. This supposition would defeat the issue chosen by the other party. They ad- mit, therefore, that those elected trustees in 1837, even after the acts complained of, were lawfully elected. If, on the other hand, no dismem- berment is alleged, what can be the effect of the testimony offered? The Assembly of 1838 was an entirely independent body, having full power to judge of the qualifications of its own members. The rejection complained of was not influenced by the proceedings of 1837, except as they furnish us a reason — an excuse, if we choose to avail ourselves of it, for the purpose of defence. The other party themselves contend, that the proceedings of the Assembly of 1338 should not have been influ- enced by those of 1837. They say, that the latter were void, except as merely advisory or recommendatory, and that therefore the rejection of commissioners in 1838 was bad. We will, ourselves, show the reason TESTIMONY FOR THE RELATORS. 35 of this rejection, and will not allow our case to be mangled and dis- torted. Judge Rogers. I do not like to decide, at this stage of the proceed- ings, whether the testimony offered involves the merits of the case or not. It may be admitted now, and the point be decided hereafter. Mr. Ingersoll. I should like to say half a dozen words in explana- tion, even if the testimony be admitted. If it go to prove the same points as that offered yesterday it is merely irrelevant. If the other point, which I have mentioned, it will produce serious evil, by raising a false, a prejudicial, and a dangerous issue. There were two courses for the New-school party to take. They might have issued a mandamus, and thus have established their rights, if unjustly deprived of them. TJiey did not choose, however, to try that remedy, but met in Ranstead Court, determined on a bolder measure. Here they did not proceed regu- larly, but, having reached a particular point, seceded. The question now before us is, did they secede properly? Under this quo warranto^ the remedy selected, they must show their title. Again, they say that we did things irregularly in the Assembly of 1837, and therefore ask the as- sistance of the Court to oust us. But the Assembly of 1837 was entirely dissolved. Look at the provision on this subject, in the Form of Gov- ernment, Chap. 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 Assem- bly, 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 dissolve 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 pro- nounce on those present the apostolic benediction." The Assembly then of 1837 was dissolved and extinguished. It was not an adjournment, nor yet a curia advisare vult, as in the practice of the Supreme Court. Therefore, as to that Assembly, there was an end of every thing. Now, if any members had been unjustly excluded from the Assembly of 1837, they should have applied for re-admission in 1838. But, instead of this, they chose to secede ; and here, they must prove, not that the proceedings of 1837 were void, but that their secession was proper. We say, that they were not excluded from the General Assem- bly of 1838: they never sought admission. That Assembly never had an opportunity to decide on their case. Judge Rogers. It is one link in the testimony. AVe must have the proceedings of 1837, to explain those of 1838. Mr. Randall, then read the testimony offered. Min. \SSl,p. 520. " SYNODS AND PRESBYTERIES, •'The followinof summary account of Synods and Prebyteries together with the sta- tistical 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 Ulica, Ge- neva and Genesee, [see Minutes, page 444,] and the Third Presbytery of Philadelphia was dissolved, [see Minuteirpage 472.] The Assembly directed the Slated Clerk, hav- 36 PRESBYTERIAN CHURCH CASE. ing inserted a note to this effect, to publish the statistics of these judicatories for the past year, [see Minutes, page 494.] " The General Assembly of 18:37. at the commencennent of their sessions, had under their care twenty-three iSynods, connprising one hundred and thirty-Jive Presbyteries, yJ2. **1<*^. ***** *** "2. The Synod of UTICA, containing the five Presbyteries of St. Lawrence, VVa- tertown, Oswego, Oneida, and Otsego. " 3. Tlie Synod of GENEVA, containing the nine Presbyteries of Geneva, Chenango, Onondaga, Cayuga, Tioira, Cortland, Bath, Delaware and Chemung. • "4. The Synod of GENESEE, containing the .siar Presbyteries of Genesee, Onta- rio, Rochester, Niagara, Buffalo and Angelica. ****»****'***** " 9. The Synod of the Western Reserve, containing the eight Presbyteries, of Grand River, Portage, Huron, Trumbull, Cleveland, Maumee, Loram and Medina." As explanatory of the table from which the above was extracted, Mr. JRa}idail read the following: Min. 1837, p. 494. "In answer to a request of the Stated Clerk, for direction in making out the General Statistical Table, for the current yea-r, 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 here- after those statistics shall not appear in the general table published by the General As- sembly." The next evidence offered was a list of the Presbyteries within the ex- scinded Synods, with the dates of their formation, from which it appear- ed, that there were in those Synods twenty eight Presbyteries, with^i;e hundred and nine ministers, Jive hundred and ninety-nine churches, zxvd fifty thousand, four hundred and eighty-nine communicants. Jfr. I?an6/a// remarked — There is another case which may properly be mentioned here, somewhat isolated in character, but nevertheless form- ing a link in the chain of testimony, heretofore kept out of view. I allude to the case of the Third Presbytery of Philadelphia, containing thirty-three ministers, thirty-two churches, and four thousand eight hundred and fifty communicants, which, at the same meeting of the As- sembly— that of 1837 — was dissolved, but without the usual provision at- taching the ministers and churches, of which it was composed, to other Presbyteries, they being left to apply for admission to other bodies, and run the risk of being told, on stich appplication, " We don't knovv you." And this excision, as in the other cases, was wholly without trial, proof, or even accusation. The Rev. Mr. Eliakim Phelps being called to prove the correctness of this statistical list, the proof was waved by the counsel for the defendants, who agreed to admit the list without proof, subject, however, to correction, if found erroneous i:i any particular. Mr. Randall. We will now recur to the proceedings of the Assem- bly of 1837, beginning with its organization. Min. 1837, f. 411. "The General Asembly of the Presbyterian Church in the United States of A'^nerica, met agreeably to appointment, in the Central Presbyterian Church, in the city of Philadelphia, on Thursday, the 18th day of May, 1837, at 11 o'clock, A. M. ; and was opened with a sermon by the Rev. John Wilherspoon, D. D., the Mode- rator of the last Assembly, &-c. " The Standing Committee of Commissions reported that the following persons pre- sent have been duly appointed Commissioners to this General Assembly, viz." Then follows a list of members, from which it appears, that every one TESTIMONY FOR THE RELATORS. 37 * of the Presbyteries in the four Synods of Utica, Geneva, Genesee and Western Reserve, were represented, their ddegates amounting, in all, to the number oi fifty-one, of whom thirty-five were ministers, and sixteen elders. These voted in the choice of Moderator, and, up to a certain pe- riod, took a part in all the proceedings of the Assembly. On page 419, is the minute of the first of that series of acts which re- sulted in the excision of these Synods. " Monday Morning, May 22d. — The Aissembly met, &c. "The committee to whom Overture No. I, viz. 'The Memorial and Testimony of the Convention,' had been referred, made a report, in part ; and their report w^as read and accepted. " It was moved to^adopt so much of the report as relates to doctrinal errors, whereupon a motion was made to amend the report by adding to the specification of errors, certain Others, when, after some debate, it was " Resolved, That the whole subject be postponed, and made the order of the day for to-morrow. ♦' Resolved, That that part of the report which refers to the Plan of Union between Presbyterians and Congreofationalists in the new settlements, adopted in 1801, be made the order of the day for this afternoon. " Afternoon, <^c. — The Assembly proceeded to the order of the day, viz : that part of the report of the Committee on Overture No. 1, which relates to the ' Plan of Union' adopted in 1801. " The report was read, and adopted, in part, as follows, viz: "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 sentiments of mutual respect and esteem, and, for that purpose, no reasonable efforts should be omitted to preserve a perfectly good understanding between these branches of the Church of Christ. "2. That it is expedient to continue the plan of friendly intercourse, between this Church and the Congregational Churches of New England, as it now exists." " A third resolution, to abrogate the ' Plan of Union,' was discussed for some time. " Adjourned till 9 o'clock to-morrow morning. " Tuesday morning. May 23d, dSj-c. — The orders of the day, viz: that part of the re- port of the Committee on Overture No. 1, which relates to doctrinal errors, was post- poned, with a view of resuming the unfinished business of yesterday, viz: that part of the report of the same committee, which recommends the abrogation of the 'Plan of Union.' " The third resolution on this subject was taken up, and discussed for a considerable time. " Adjourned till this afternoon at half-past 3 o'clock. " Afternoon, (Sfc. — The Assembly resumed the unfinished business of this morning, viz : that part of the report of the Committee on Overture No. 1, which recommends the abrogation- of the ' Plan of Union.' The resolution was discussed for some time, when the previous question was demanded, and decided in the affirmative, by yeas and nays, as follows, viz: " 'Shall the main question be now putl' " Then follow the yeas, 129; and the nays, 123. " The resolution was then adopted, by yeas and nays, as follows, viz: "3. But as the ' Plan of Union,' adopted for the new settlements in 1801, was ori- ginally an unconstitutional act on the part of that Assembly — these important standing rules having never been submitted to the Presbyteries — and as they were totally desti- tute of authority, as proceeding from the General Association of Connecticut, which is invested with no power to legislate in such cases, and especially to enact laws to regu- late churches not within her limits; and as much confusion and irregularity have arisen from this unnatural and unconstitutional system of union, therefore, it is " Resolved, That the act of the Assembly of 1801, entitled a ' Plan of Union,' be, arid the same is hereby, abrogated.' " See Digest, pp. 297-299. Then follow the yens, 143 ; and the 7iays, 110. 38 PRESBYTERIAN CHURCH CASE. " Wednesday afternoon, May 24<7i. — The Committee on Overture No. 1, viz : ' The testimony and memorial of the Convention,' made a further report, ' respecting so much of the memorial as relates to the to'eration of gross errors in doctrine, or disorders in practice, by inferior judicatories.' The report was read, and accepted. The report was ihen re-committed, and the committee was instructed to make a full report on the memorial as soon as convenient. " The Assembly proceeded to the orders of the day, postponed from yesterday, viz: that part of the report of the Committee on the Memorial which relates to doctrinal errors; when, the motion to amend the report by adding to the specification of errors certain otl)er3, was discussed for some time. It was then moved that the amendment be inderinitely postponed ; and, after some debate, the Assembly adjourned till to-morrow morning at nine o'clock. " Thursday morning, May 25th. — A motion was made that the Assembly now take up so much of the report of the Committee on the Memorial, as relates to the tolera- tion of disorders in practice, and errors in doctrine, by inferior judicatories. Adjourned till this afternoon at half-past 3 o'clock. *' Afternoon. — The House resumed the unfinished business of this morning, viz : the motion to take up that part of the report of the Committee on the Memorial which re- lates to the toleration of disorders' in practice, and errors in doctrine, by inferior judica- tories. The motion was carried. And resolutions, to cite to the bar of the next As- sembly such inferior judicatories as shall appear to be charged, by common fame, with irregiilarities, were offered, and debated a considerable time. " Friday morning, May 26th. — The Assembly resumed the unfinished business of yesterday, viz: the resolutions to cite to the bar of the next Assembly such inferior judicatories as shall appear to be charged, by common fame, with the toleration of gross errors in doctrine, and disorders in practice ; and, after debate, the Assembly adjourned till the afternoon. '■^Afternoon. — The Assembly resumed the unfinished business of the morning, viz: the resolutions to cite to the bar of the next Assembly such inferior judicatories as may be charged, by common fame, with the toleration of gross errors in doctrine, and dis- orders in practice; and, after debate, the previous question was demanded, and decided in the affirmative, by yeas and najs, as follows, viz: " ' Shall the main question be now put'!' " Then follow the yeas, 141; and the nays, 108. "The resolutions were then adopted, by yeas and nays, as follows, viz; "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 irregu- larities. "2. That a special committee be now appointed, to ascertain what inferior judicato- ries are thus charged by common fame, prepare charges and specifications against them, and to digest a suitable plan of procedure in the matter; and that s^id committee be requested to report as soon as practicable. •' 3. That, as citations on the foregoing plan is the commencement of a process in- volving the right of membership in the Assembly; therefore. Resolved, That agreeably to a principle laid down, Chap. V. Sect. Otli, of the ' Form of Government,' the mem- bers of said judicatories be excluded from a seat in the next Assembly until their case shall be decided." Then follow the yeas, 128 ; and the nays, 122 ; non-liqiiet, 1. " Resolved, That the committee to be appointed under the foregoing resolutions, con- sist of five members. " Mr. Hay, for himself and others, gave notice of a protest against the foregoing reso- lutions. " Mr. Cleaveland, for himself and others, gave notice of a protest against the reso- lutions, adopted on Thursday last, abrogating the 'Plan of Union.' "Mr. Breckinridge gave notice that he would, to-morrow morning, offer a resolution to appoint a committee, to consist of equal numbers from the majority and minority on the vote to cite inferior judicatories, to inquire into the expediency of a voluntary divi- sion of the Presbyterian Church. " Saturday morning. May 21th. — Agreeably to notice, given last evening, Mr. Breckinridge moved that a committee of ten members, of whom an equal number shall TESTIMONY FOR THE RELATORS. 39 be from the majority and minority of the vote on the resolutions to cite inferior judica- tories, be appointed on the state of the Church. "Dr. Junkin and Mr. Evving, on the part of the majority, and Messrs. A. Campbell and Jesup, on the part of the minority, were appointed to nominate each five members of the committee on the' foregoing resolutions. " Dr. Junkin and Mr. Campbell, from the committees to nominate the Committee of Ten on the State of the Church, respectfully reported the following- nomination, viz; Mr. Breckinridge, Dr. Alexander, Dr. Cuyler, Dr. VVitherspoon, and Mr. Ewmg, on the part of the°majority ; and Dr. McAuley, Dr. Beman, Dr. Peters, Mr. Dickinson, and Mr. Jesup, on the part of the mmority. The report was adopted ; and the com- mittee was directed to meet in the house at the rising of the Assembly this morning, and afterwards on their own adjournments. " On motion, the Assembly engaged m prayer on behalf of this committee, and of the subject referred. to them. " Tuesday morning, May Z^th. — The Committee on the State of the Church re- jlorted, by their chairman, Dr. Alexander, that they had not been able to agree, and asked to be discharged. "Both portions of the committee then made separate reports, accompanied by various papers; which reports and papers were ordered to be entered upon the Minutes of the Assembly, and are as follows, viz : 'report of the committee of the majority. " The Committee of the Majority, from the United Committee on the State of the Church, beg leave to report: "That having been unable to agree with the Minority's Committee on any plan for the imm^'diate and voluntary separation of the New and Old-school parties in the Pres- byterian Church, they lay before the General Atsen.bly the papers which passed be- tween the committees, and wiiich contain all the important proceedmgs of both bodies. ''• These papers are marked 1 to -5 of the majority, and 1 to 4 of the minority. A care- ful examination of them will show that the twocsimmiltees were agreed in the following matters, namely : "1. The propriety of a voluntary separation of the parties in our church; and their separate organization. " 2. As to the corporate funds, the names to be held by each denomination, the Re- cords of the Church, and its Boards and Institutions. " It will further appear, that the committees were entirely unable to agree, on the fol- lowing points, namely: "1. As to the propriety of entering at once, by the Assembly, upon the division, or the sending down of the question to the Presbyteries. " 2. As to the power of the Assembly to take effectual initiative steps, as proposed by the majority; or the necessity 'of obtaining a change in the constitution of the Church. " 3. As to the breaking up of the succession of this General Assembly, so that neither of the new Assemblies proposed, to be considered this proper body continued ; or that the body which should retain the name and institutions of the General Assembly of the Presbyterian Church in the United States of America, should be held in fact and law, to be the true successors o( this body. While the Committee of the Majority were perfectly disposed to do all that the utmost liberality could demand, and to use in all cases such expressions as should be wholly unexceptionable; yet it appeared to us in- dispensable to take our final stand on these grounds. "For, first, we are convinced that if any thing tending towards a voluntary separation is done, it is absolutely necessary to do it effectually, and at once. ^^ Secondly. As neither party professes any desire to alter any constitutional rule whatever, it seems to us not only needless, but absurd, to send down an overture to the Presbyteries on this subject. We believe moreover that full power exists in the As- sembly, either by consent of parties, or in the way of discipline, to settle this, and all such cases; and that its speedy settlement is greatly to be desired. " Thirdly, In regard to the succession of the General Assembly, this committee could not, in present circumstances, consent to any thing that should even imply the final dissolution of the Presbyterian church, as now organized in this country ; which idea, it will be observed, 1r at the basis of the plan of the minority; insomuch that even 40 PRESBYTERIAN CHURCH CASE. the body retaining the name and institutions should not be considered the successor of this body. " Finally. It will be observed fr-^m our fifth paper, as compared with the fourth pa- per of the Minority's Commiltee, that the final shape which their proposal assumed, was such, that it was impossible for the majority of the house to carry out its views and wishes, let the vote be as it might. For if the house should vote for the plan of the Committee of the Majority, the other committee would not consider itself, or its friends, bound thereby : and voluntary division would therefore be impossible, in that case. But if the house should vote for the minority's plan, then— the foregoing insuperable objec- tions to that plan being supposed to be surmounted — still the whole case would be put off, perhaps indefinitely. "A. Alexander, C. C. Cuyler, J. Witherspoon, N. Ewing, R. J. Breckinridge." REPORT OF THE COMMITTEE OF THE MINORITY. "The subscribers, appointed members of the Committee of Ten on the State of the Church, respectfully ask leave to report, as follows: " It being understood that one object of the appointment of said committee was to con- sider the expediency of a voluntary division of the Presbyterian Church, and to devise a plan for the same, they, in connexion with the other members of the committee, have had the subject under deliberation. "The subscribers had believed that no such imperious necessity for a division of the church existed, as some of their brethren supposed, and that the consequences of divi- sion would be greatly to be deprecated. Such necessity, however, being urged by many of our brethren, we have been induced to yield to their wishes, and to admit the expe- diency of a division, provided the same could be accomplished in an amicable, equitable, and proper manner. We have accordingly submitted the following propositions to our brethren on the other part of the same committee, who at the same time submitted to us their proposition, which is annexed to this report. ♦' [Here read the Proposition marked Minority No. 1, and Majority No. 1.] "Being informed by the other members of the committee, that they had concluded not to discuss in committee the propositions which should be submitted, and that all pro- positions on both sides were to be in writing, and to be answered in writing, the follow- ing papers passed between the two parts of the committee: Here read, No. 2, Minority paper. 2, Majority " 3, Majority " 3, Minority " 4, Majority " 4, Minority " 5, Majority " "From these papers it will be seen, that the only question of any importance upon which the commiltee differed, was that proposed to be submitted to the decision of the Assembly, as preliminary to any action upon the details of either plan. Therefore, be- lieving 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 un- instructed by the Presbyteries; believing 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 enhance the evils which it proposes to remove; and regarding the plan proposed by themselves, with the modifi- cations thereof as before stated, as presenting in general the only safe, certain and con- stitutional mode of division, the subscribers do respectfully present the same to the As- sembly for their adoption or rejection. "Thomas M'Auley, N. S. S. Beman, Absalom Peters, B. Dickinson, William Jesup." " No. 1, OF THE MAJORITY. " The portion of the committee which represents the majority, submit for considera- tion: " 1. That the peace and prosperity of the Presbyterian Church in the United States, require a separation of the portions called respectively the Old and New-school parties, and represented by the majority and minority in the present Assembly. TESTIMONY FOR THE RELATORS, 41 "2. T^hat the portion of the church represented by the majority in the present Gene- ral Assembly, ought to retain the name and the corporate property of the General Assembly of the Presbyterian Church in the United States of America. *'3. That the two parties ought to form separate denominations, under separate or- ganizations; that to effect this with the least delay, the commissioners in the present General Assembly shall elect which body they will adhere to, and this election shall decide the position of their Presbyteries respectively for the present; that every Pres- bytery may reverse the decision of its present commissioners, and unite \yith the oppo- site body by the permission of that body properly expressed; that minorities of Presby- teries, if large enough, or if net, then in connexion with the neighboring minorities, may form new Presbyteries, or attach themselves to existing Presbyteries in union with either body, as shall be agreed on ; that Synods ought to take order and make election on the general principles already stated ; and minorities of Synods should follow out the rule suggested for minorities of Presbyteries, as far as they are applicable. " No. 1, OF THE MINORITY. " Whereas, the experience of many years has proved that this body is too large to answer the purposes contemplated by the constitution, and there appears to be insuper- able obstacles in the way of reducing the representation: " And whereas, 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: " Now, it is believed, a division of this body into two separate bodies, which shall act independently of each other, will be of vital importance to the best interests of the Re- deemer's kingdom. "Therefore, Resolved, That the following rules be sent down to the Presbyteries for their adoption or rejection as constitutional rules, to wit: "1. The General Assembly of the Presbyterian Church in the United Slates of America shall be, and, it is hereby divided into two bodies: the one thereof to be called the General Assembly of the Presbyterian Church in the United Stales of America, and the other, the General Assembly of the American Presbyterian Church. "2. That the Confession of Faith and form of government of the Presbyterian Church of the United States of America, as it nnw exists, shall continue to be the Conlession of Faith and form of government of both bodies, until it shall be constitutionally changed and altered by either, in the manner prescribed therein. "3. That in sending up their commissioners to the next General Assembly, each Presbytery, after having, in making out their commissions, followed the form now pre- scribed, shall add thereto as follows : " That in case a majority of the Presbyteries shall have voted to adopt the plan for organizing two General Assemblies, we direct our said commissioners to attend the meeting of the General Assembly of the ' Presbyterian Church of the United States of America,' or the 'American Presbyterian Church,' as the case may be." And after the opening of the next General Assembly, and before proceeding to other business than the usual preliminary organization, the said Assembly shall ascertain what is the vote of the Presbyteries, and in case a majority of said Pres- byteries shall have adopted these rules, then the two General Assemblies shall be con- stituted and organized in the manner now pointed out in the form of government, by the election of their respective moderators, stated clerks, and other officers. "4. The several Presbyteries shall be deemed and taken to belong to that Assenibly with which they shall direct their commissioners to meet, as stated in the preceding rule. And each General Assembly shall, at their first meeting, as aforesaid, organize the Presbyteries belonging to each into Synods. And in case any Presbytery shall fail to decide as aforesaid at that time, they may attach themselves within one year there- after to the Assembly they shall prefer. " 5. Churches and members of churches, as well as Presbyteries, shall be at full liber- ty to decide to which of said Assemblies they will be attached, and in case the majority of male members in any church shall decide to belong to a Presbytery connected with the Assembly to which their Presbytery is not attached, they shall certify the same to the Stated Clerk of the Presbytery which they wish to leave and the one with which they wish to unite, and they shall, ipso facto, be attached to such Presbytery. "6. It shall be the duty, of Presbyteries, at their first meeting after the adoption of these rules, or within one*year thereafter, to grant certificates of dismission to such 6 42 TRESBYTERIAN CIIUKCH CASE. ministers, licentiates, and students, as may wish to unite with a Presbytery attached to the other General Assembly. " 7. It shall be the duty of churcfh sessions to grant letters of dismission to such of their members, being in regular standing, as may apply for the same within one year after the organization of said Assemblies under these rules, for the purpose of uniting with any church attached to a Presbytery under the care of the other General Assem- bly; and if such session refuse to dismiss, it shall be lawful for such members to unite with such other church in the same manner as if a certificate were given. " 8. The Boards of Education and Missions shall continue their organizations as here- tofore, until the next meeting of the Assembly ; and in case the rules for the division of the Assembly be adopted, those Boards shall be, and hereby are transferred to the Gene- ral Assembly of the Presbyterian Church in the United States of America, if that As- sembly at its first meeting shall adopt the Boards as their organizations; and the seats of any ministers or elders in those Boards, not belonging to that General Assembly, shall be deemed to be vacant. " 9. The records of the Assembly shall remain in the hands of the present Stated Clerk, for the mutual use and benefit of both General Assemblies, until, by such an arrangement as they may adopt, they shall appoint some other person to take charge of the same. And either Assembly, at their own expense, may cause such extracts and copies to be mdde thereof, as they may desire and direct, " 10. The Princeton Seminary funds to be transferred to the Board of Trustees of the seminary, if it can be so done legally and without forfeiting the trusts upon which the grants were made; and if it cannot be done legally, and according to the intention of the donors, then to remain with the present Board of Trustees until legislative autho- rity be given for such transfer. The supervision of said seminary, in the same manner in which it is now exercised by the General Assembly, to be transferred to and vested in the General Assembly of the Presbyterian Church in the United States to be consti- tuted. The other funds of the church to be divided equally between the two Assem- blies. " Pass a resolution suspending the operation of the controverted votes until after the next Assembly. •' No. 2, OF THE MINORITY. "The Committee of the Minority, &c., make the following objections to the proposi- tion of the majority : " 1. To any recognition of the terms, " Old and New-schools," or " majority and mi- nority," of the present Assembly, in any action upon the subject of division, the mino- rity expect the division in every respect to be equal ; no other would be satisfactory. "2. Insisting upon an equal division, we are willing that that portion of the church which shall choose to retain the present Boards, shall have the present name of the As- sembly. The corporate property which is susceptible of division to be divided, as the only fair and just course. " 3. We object to the power of the commissioners to make any division at this time, and as individuals we cannot assume the responsibility. " No. 2, OF THE MAJORITY. " The Committee of the Majority, having considered the paper submitted by that of the minority, observe : " 1. That they suppose the propriety and neccfsity of a division of the church may be considered as agreed on by both committees; but we think it not expedient to attempt giving reasons in a preamble ; the preamble is therefore not agreed to. " 2. So much of No. 1, of the plan of the Committee of the Minority, as relates to the proposed names of the new General Assemblies, is agreed to. " 3. Nos. 1 to 8, inclusive, except as above, are not agreed to, but our proposition. No. 3, in our first paper, is insisted on. But we agree to the proposal in regard to single churches, individual ministers, licentiates, students, and private members. "4. In lieu of No. 9, we propose that the present Stated Clerk be directed to make- out a complete copy of all our records, at the joint expense of both the new bodies, and after causing the copy to be examined and certified, deliver it to the wrttten order of the Moderator and Stated Clerk of the General Assembly of the American Presbyterian* Church, TESTIMONY FOR THE RELATORS. 43 " 5, We agree, in substance, to the proposal in No. 10, and offer the following as the form in which the proposition shall stand ; that the corporate funds and property of the church, so far as they appertain to the Tlieological Seminary at Princeton, or relate to the Professors' support, or the education of beneficiaries there, shall remain the property of the body retaining the name of the General Assembly of the Presbyterian Church in the United States of America ; that all other funds shall be equally divided between the new bodies, so far as it can be done in conformity with the intentions of the donors; and that all liabilities of the present Assembly shall be discharged in equal portions by them ; that all questions relating to the future adjustment of this whole subject upon the principle now agreed on, shall be settled by committees appointed by the new Assem- blies at their first meeting respectively ; and if these committees cannot agree, then ,each committee shall select one arbitrator, and these two, a third, which arbitrators shall have full power to settle finally the whole case in all its parts; and that no person shall be appointed an arbitrator, who is a member of either church; it being distinctly un- derstood that whatever difficulties may arise in the construction of trusts, and all other q'uestioris of power, as well as right, legal and equitable, shall be finally decided by the committees, so as in all cases to prevent an appeal by either party to the legal tribunals of the country. " No. 3, OF THE MINORITY. " 1. We accede to the proposition to have no preamble. " 2. We accede to the proposition No. 4, modifying our proposition No. 9, in relation to the records and copies of the records. The copy to be made within one year after the division. " 3. We assent to the modification of No. 10, by No. 5 of the propositions submitted, with a trifling alteration in the phraseology, striking out the words, " shall remain the property of the body retaining the name of the General Assembly of the Presbyterian Church in the United States of America," and inserting the words, "shall be transferred and belong to the General Assembly of the Presbyterian Church of the United States of America, hereby constituted." "4. We cannot assent to any division by the present commissioners of the Assembly, as it would in no wise be obligatory on any of the judicatories of the church, or any members of the churches. The only effect would be a disorderly dissolution of the pre- sent Assembly, and be of no binding force or effect upon any member who did not assent to it. " 5. We propose a resolution to be appended to the Rules, and which we believe, if adopted by the committee, would pass with great unanimity, urging in strong terms the adoption of the Rules by the Presbyteries; and the members of the minority side of the committee pledge themselves to use their influence to procure the adoption of the same by the Presbyteries. " No. 3, OF THE MAJORITY. " The Committee of the Majority, in relation to paper No. 2, observe : " 1. That the terms ' Old and New-3chool, majority and minority,' are meant as des- criptive, and some description being necessary, we see neither impropriety nor unsuita- bleness in them. " 2. Our previous paper No. 2, having, as we suppose, substantially acceded to the proposal of the minority in relation to the funds in their first paper, we deem any further statement on that subject unnecessary. " 3. That we see no difficulty in the way of settling the matter at present, subject to the revision of the Presbyteries, as provided in our first paper, under the third head ; and as " no constitutional rules " are proposed in the way of altering any principles of our system, we see no constitutional obstacle to the execution of the proposal already made. We therefore adhere to that plan nsour final proposal. But if the commissioners of any Presbytery should refuse to elect, or be equally divided, then the Presbytery which they represent shall make such election at its first meeting after the adjournment of the pre- sent General Assembly. " No. 4, OF THE MAJORITY. " The Committee of the Majority, &c., in reply to paper No. 3, of the Minority's Com- mittee, simply refer to theft«wn preceding papers, as containing tlieir final propositions. 44 PRESBYTERIAN CHURCH CASE, " No. 4, OF THE MINORITY. " The Commillee of the Minority, in reply to paper No. 3, of the majority, observe: "That they will unite in a report' to the Assembly, stating that the committee have agreed that it is expedient that a division of the Church be effected, and, in general, upon the principles upon which it is to be carried out, but they differ as to the manner of effecting it. "On the one hand, it is asked that a division be made by the present Assembly, at their present meeting; and on the other hand, that the plan of division, with the subse- quent arrangement and organization, shall be submitted to the Presbyteries for their adoption or rejection. " They will unite in asking the General Assembly to decide the above points previous to reporting the details, and in case the Assembly decide in favor of immediate division, then the paper No. 1, of the majority, with the modifications agreed on, be taken as the basis of the report in detail, " If the Assembly decide to send to the Presbyteries, then No. 1, of the minority's papers, with the modifications agreed on, shall be the basis of the report in detail. " The Committee of the Minority cannot agree to any otiier propositions than those already submitted, until the above be settled by the Assembly. " If the above proposition be not agreed to, or be modified and then agreed to, they desire that each side may make a report to the Assembly lo-morrow morning. "No. 5, OF THE MAJORITY. " The Committee of the Majority, &c., in answer to No. 4, &c,, reply, that understand- ing from the verbal explanations of the Committee of the Minority, that the said com- mittee would not consider either side bound by the vote of the Assembly, if it were against their views and wishes respectively on the point proposed to be submitted to its decision in said paper, to carry out in good faith a scheme which, in that case, could not be approved by them; and under such circumstances a roZimto-y separation being mani- festly impossible, this committee consider No. 4 of the minority as virtually a waver of the whole subject. If nothing further remains to be proposed, they submit that the pa- pers be laid before the Assembly, and that the united Committee be dissolved. "The Committee on the State of the Church was discharged. " It was moved that the further consideration of the reports be indefinitely postponed; and, after debate, " It was moved that this whole subject be laid on the table for the present. The mo- tion was adopted, by yeas and nays, as follows, viz, yeas 138, nays 137." Mr. Randall. Thus the proceedings instituted to effect an amicable separation, were at a stand. The attempt at pacification had proved abortive. "A resolution was offered that the Synod of the Western Reserve is not a part of the Presbyterian Church." This resolution was debated on Tuesday afternoon, Wednesday morning. May 31st, and Wednesday afternoon. " Thursday morning, June \sl. — The Assembly postponed the orders of the day, and resumed tiie unfinished business of yesterday, viz., the motion' to postpone the further consideration of the resolution declaring the Synod of the Western Reserve not to be a part of the Presbyterian Church. And after debate, the previous question was demand- ed, and decided in the affirmative, by yeas and nays, as follows, viz. "Shall the main question be now put?" Then follow the yeas, 130, and the nays, 102. Non liquet, 1. " So the motion to postpone was cut off. And then the original resolution was adopt- ed, by yeas and nays, as follows, viz. Resolved, 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. Then follows the yeas, 132, and the nays, 105. " Thursday afternoon. — " A motion was made that those members who were out of the house when the last vote of this morning was taken, bo allowed to have their names entered among the yeas and naye ; after debate, this motion was laid on the table. TESTIMONY FOR THE RELATORS. 45 •« The Assembly proceeded to the order of the day, viz. the election of Trustees of the General Assembly. " A motion was made that this election be by ballot, and decided in the affirmative, by yeas 68, nays 6. " Before the vote wasannounced, a motion was made directing the clerk to call the names of members of the Western Reserve Synod, which motion the Moderator decided to be out of order ; an appeal was taken from the Moderator, and the house sustained his decision. " Mr. Jessup presented a written demand that the members of the Western Reserve Synod be admitted to vote, in the election now in progress, and protesting against the rejection of their votes. " The paper was laid on the table. ' " Friday morning, June 2d— A. protest against the resolutions of the Assembly abro- gating the "Plan ot Union" of 1801, was introduced and accepted; and it was referred to Dr. Junkin, Dr. Green, and Mr. Anderson— to be answered. • " Saturday morning, June 3(/.— Mr. Jessup offered a paper, purporting to be a pro- test from the commissioners, members of the Western Reserve Synod, against the re- Bolution of this Assembly, declaring, that that Synod is not a part of the Presbyterian Church. The protest vv/as received, read, and committed to Messrs. Plumer, JEwing, and Woodhull — to be answered. " Dr. Beman introduced a protest, signed by himself and others, against the resolutions of this Assembly respecting the citation of such inferior judicatories as may be charged by common fame with irregularities, and against the resolution of this Assembly de- claring the Synod of the Western Reserve not to be a part of the Presbyterian Church. The protest was read, accepted, and committed to Messrs. Breckinridge, Annan, and C, S. Todd — to be answered. "Resolutions were offered by Mr. Breckinridge respecting the connexion of the Synods of Utica, Geneva, and Genesee, with the Presbyterian Church of the United States. A division of the question was called for by Mr. Jessup ; and, after debate, it was moved by Mr. Jessup to postpone the resolutions, with a view of introducing the following substitute, viz. " Whereas, it has been alleged, that the Synods of Geneva, Genesee, and Utica, of the Presbyterian Church in the United States of America, have been guilty of impor- tant delinquency and grossly unconstitutional proceedings, and a resolution predicated on this allegation to exclude the said Synods from the said Presbyterian Church, has been offered in this Assembly ; and, whereas, no specified act of the said Synod has been made the ground of proceeding against that body, nor any specific members of that body have been designated as the delinquents; and, whereas, these charges are denied by the commissioners representing those bodies on this floor, and an inquiry into the whole matter is demanded ; and, whereas, a majority of the members of the Synods have 'had no previous notice of these proceedings, nor of the existence of any charge against them, individually or collectively, nor any opportunity of defending themselves against the charges so brought against them : " Therefore, Resolved, That the Synods of Utica, Geneva, and Genesee, be, and hereby are cited to appear on the third Thursday of May next, at Philadelphia, before the next General Assembly of the Presbyterian Church in the United States of Ame- rica, to show what they have done, or failed to do, in the case in question, and, if neces- Bary, generally to answer any charges that may or can be alleged against them, to the end that the whole matter may be examined into, deliberated upon, and judged of, according to the Constitution and Discipline of the Presbyterian Church in the United States of America. " Monday morning, June ^Ih. — The Assembly resumed the unfinished business of Saturday, viz. the motion to postpone the resolution offered by Mr. Breckinridge, respecting the connexion of the Synods of Utica, Geneva, and Genesee, with the Pres- byterian Church, for the purpose of introducing a resolution to cite those Synods to the bar of the next Assem.bly. '■'■Monday afternoon. — The Assembly resumed the unfinished business of this morn- ing, viz. the motion to postpone the resolutions respecting the Synods of Utica, Geneva, and Genesee ; and, after debate, the previous question was demanded, and decided in the affirmative ; and the motion to postpone being cut off by the previous question, the resolutions were divided, and the first was adopted, by yeas and nays, as follows, viz. 46 PRESBYTERIAN CHURCH CASE. '• Be it resolved, by the General Assembly of the Presbyterian Church in the United States of America, " 1. 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 unconstitu- tional, and therefore null and void from the beginning-, the Synods of Utica, Geneva, and Genesee, 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 ecclesiastical con- nexion of the Presbyterian Church of the United States of America, and that they are not in form or in fact an integral portion of said church." Then follow yeas 115, nays 88. Non liquet, 1. " The second, third, and fourth resolutions were then adopted, by yeas and nays, as follows, viz. " 2. That the solicitude of this Assembly on the whole subject, and its urgency for the immediate decision of it, are greatly increased by reason of the gross disorders which are ascertained to have prevailed in those Synods, (as well as that of the Western Reserve, against which a declarative resolution, similar to the first of these, has been passed during our present session,) it being made clear to us, that even the Plan of Union itself was never consistently carried into effect by those professing to act under it. " 3. That the General Assembly has no intention, by these resolutions, or by that passed in the case of the Synod of the Western Reserve, to affect in any way the minis- terial 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 Christians 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. "4. 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 doctrine and order, be it, therefore, further 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 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 said synods, as may desire to unite with us, are hereby directed to make application, with a full state- ment of their cases, to the next General Assembly, which will take proper order thereon." Then follow yeas 113, nays 60. "Some disturbance having been made among the Spectators, Mr. Breckinridge moved that the Assembly will hereafter sit with closed doors. The motion was laid on the table. " Tuesday morning, June 6th. — The following resolutions were offered by Dr. Alexander, viz. " Resolved, That the following be added to the Rules of the General Assembly : " 1. That no commissioner from a newly formed Presbytery shall be permitted to take his seat, nor shall such commissioner be reported by the Committee on Commis- sions, until the Presbytery shall have been duly reported by the Synod, and recognised as such by the Assembly ; and that the same rule apply when the name of any Presby- tery has been changed. "2. When it shall appear to the satisfaction of the General Assembly, that any new Presbytery has been formed for the purpose of unduly increasing the representation, the General Assembly will, by a vote of the majority, refuse to receive the delegates of Presbyteries so formed, and may direct the Synod to which such Presbytery belongs, to reunite it to the Presbytery or Presbyteries to which the members were before attached. " After debate, it was moved to lay the resolutions on the table. The motion was decided, by yeas and nays, as follows, viz. Then follow yeas 44, nays 115. " So the motion to lay on the table was lost. After further debate the resolutions were carried. TESTIMONY FOR THE RELATORS. 47 " Tuesday afternoon. — A protest, signed by the commissioners from the Synods of Genesee, Geneva, and Utica, against the resolutions of this Assembly declaring those Synods to be out of the Presbyterian Church, was received, read, and referred to Dr. Witherspoon, Mr. Murray, and Dr. Simpson — to be answered. " Mr. Breckinridge offered the following resolutions, viz. " Be it resolved, by the General Assembly of the Presbyterian Church in the United States of America, " 1. That the Presbyteries of Wilmington and the Third Presbytery of Philadelphia, be, and hereby are dissolved. " 2. The territory embraced in these Presbyteries is annexed to those to which it respec- tively appertained before their creation. Their stated clerks are directed to deposite ■all their records and other papers in the hands of the stated clerk of the Synod of Phila- delphia, on or before the first day of the sessions of that Synod, at its first meeting after the Assembly adjourns. . " 3. The candidates and foreign missionaries of the Presbytery of Wilmington, are hereby attached to the Presbytery of New Castle; and those of the Third Presbytery of Philadelphia, to the First Presbytery of Philadelphia. " 4. The ministers, churches, and licentiates in the two Presbyteries hereby dissolved, are directed to apply without delay to the Presbyteries to which they most naturally belong for admission into them ; and upon application so made, by any duly organized . Presbyterian Church, it shall be received ; hot as great, long continued, and increasing common fame charges errors and irregularities in doctrine and order on both these Presbyteries, it is hereby ordered, that all Presbyteries to which any of the ministers or licentiates now belonging to either of them shall apply for admission, shall strictly examine them, touching their soundness in the faith, and other matters, as shall seem good to the Presbyteries to which application for admission may be made. " 5. If either of the aforesaid Presbyteries, or any church, minister, licentiate, mis- sionary, or candidate, shall fail or refuse to comply with the terms of these resolutions, according to their true intent, said Presbytery, church, or person, as the case may be, is hereby declared to be thenceforward, de facto, out of the communion of the Presbyterian Church in the United States of America, and no longer an intregal portion thereof. "6. These resolutions shall be in force from and after the final adjournment of the present sessions of the General Assembly. " After debate, Mr. Lowrie moved to amend these resolutions, by striking out all after the word 'received,' in the 4th resolution, and also the whole of the 5th and 6th resolutions; and, after debate, it was moved to commit this whole subject to a special committee ; and, after further debate, the Assembly adjourned till 9 o'clock to-morrow morning. " Wednesday morning, June 1th, — Mr. Breckinridge offered the following preamble and resolutions, viz : " Whereas, it has come to the knowledge of this General Assembly, that the persons who were appointed commissioners to this body from the Presbyteries attached to the Synod of the Western Reserve, have served a notice upon the Treasurer of the Trus- tees of the General Assembly, ' not to regard any orders drawn, nor any resolutions passed by this Assembly, since the passage of the act which declared said Synod of the Western Reserve to be no longer in the connexion of the body represented in this General Assembly ;' and whereas, said notice is, no doubt, to be considered as the com- mencement of a series of judicial investigations, growing out of the proceedings of the Assembly, in reforming the Church, during its present sessions; now, therefore, " Be it resolved, by the General Assembly of the Presbyterian Church in the United States of America, 1. That this Assembly expects of its trustees full compliance with all its acts, as in past times; and relies, confidently, on their continued fidelity to the Church in the discharge of all the important duties devolving on them. " 2. That the Presbyterian Church is morally responsible, and will fully and cheer- fully meet that responsibility, to sustain their trustees in all their acts, in consequence of any resolution passed, or order given in virtue of such resolution, of the present or any other General Assembly ; and to hold said trustees harmless, by reason of any loss or damage they may personally sustain thereby. "3. That this Assembly, in virtue of the powers vested in it by the act incorporating its trustees, do hereby, in writing, direct their trustees to continue to pay as heretofore, and to have no manner of respect to the notice mentioned above, nor to any similar no- 48 PRESBYTERIAN CHURCH CASE. tice that may come to their knowledge. And these resolutions, duly signed and cer- tified, shall be delivered to them on the part of this Assembly. "Mr. Breckinridge read the notice referred to in the resolutions; and, after debate, the resolutions were adopted. " Wednesday afternoon, June 7lh,—0n motion of Mr. Breckinridge, the Assembly took up the unfinished business of yesterday, viz: the motion to amend the resolutions respecting the connexion of the Third PresbyLery of Philadelphia, and the Presbytery of Wilmington, with the Presbyterian Church. And, "On motion of Mr. Breckinrids^e, the resolutions were amended, by striking out every thing relating to the Presbytery of Wilmington. "The motion offered yesterday, by Mr. Lowrie, to amend the resolutions, by striking out all after the word ' received,' in the 4th resolution, and the whole of the 5th resolu- tion, was then renewed, and adopted. " And, after debate, " It was moved to lay this whole subject on the table. The motion was decided in the negative, by yeas and nays, as follows, viz :" Then follow ?/ea,s, 59 ; nays,l\. ISi on liquet, 3. " So the house refused to lay the resolutions on the table. • " The previous question was then demanded, and, having been decided in the af- firmative, " The resolutions, as amended, were agreed to, by yeas and nays, as follows, viz : " Be it resolved, by the General Assembly of the Presbyterian Church in the United States of America, 1. That the Third Presbytery of Philadelphia be, and hereby is, dissolved. " 2. The territory embraced in this Presbytery is re-annexed to those to which it respectively appertained before its creation. Its Stated Clerk is directed to deposite all records and other papers in the hands of the Stated Clerk of the Synod of Phila- delphia, on, or before, the first day of the sessions of that Synod, at its first meeting after this Assembly adjourns. " 3. The candidates and foreign missionaries of the Third Presbytery of Philadel- phia are hereby attached to the Presbytery of Philadelphia. "4. The ministers, churches, and licentiates, in the Presbytery hereby dissolved, are directed to apply, without delay, to the Presbyteries to which they most naturally belong, for admission into them ; and, upon application being so made by any duly or- ganized Presbyterian Church, it shall be received. " 5. These resolutions shall be in force from and after the final adjournment of the present sessions of the General Assembly." Here follow yeas, 75 ; nays, 60. [During and after these proceedings, the minutes of 1837, exhibit vari- ous protests against the measures of excision, as they are termed, each followed by an answer, prepared by a committee appointed for the pur- pose. These papers were offered as testimony, and part of them having been read, it was agreed that, to avoid unnecessary delay, the whole of the Minutes of 1837 should be considered as in evidence, without further reading, and open to each party for purposes of argument. They are too voluminous to be given here, but the parts of them particularly relied or commented on by the counsel for either party, will appear in the argu- ment.] Next was offered the "Plan of Union." {Ass. Dig. p. 297. Min. 1801,/?. 6.) " Sec. 5. — A plan of union between Presbyterians and Congregationalists in the new settlements, adopted in 1801. "The report of the committee appointed to consider and digest a plan of government for the churches in the new settlements, was taken up and considered ; and after mature deliberation on the same, approved, as follows: " Regulations adopted by the General Assembly of the Presbyterian Church in Ame- TESTIMONY FOR THE RELATORS. 49 rica, and by the General Association of the State of Connecticut, (provided said Asso- ciation agree to them,) with a view to prevent alienation and promote union and iiar- mony, in those new settlements which are composed of inhabitants from these bodies. " 1st. It is strictly enjoined on ail their missionaries to the new settlements, to endea- vour, by ail 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 Congregational 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 Presbytery 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, ag/eed upon by both parties. "3d. If a Presbyterian Church shall settle a minister of Congregational principles, that church may still conduct their discipline according to Presbyterian principles; excepting that if a difficulty arise between him and his church, or any member of it, the cause shall be tried by the Association, to which the said minister shall belong, provided both parties agree to it; otherwise by a council, one half Congregationalists and the other half Presbyterians, mutually agreed on by the parties. " 4th. 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 com- municants of said church, whose business it shall be, to call to account every member of the church, who shall conduct 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 Congrega- tionalist, 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 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 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. "■On motion, Resolved, That an attested copy of the above plan be made by the Stated Clerk, and put into the hands of the delegates of this Assembly to the General Associa- tion, to be by them laid before that body for their consideration ; and that if it Bhoul(J be approved by them, it go into immediate operation." — Vol. I. p. 261, 262. " Sec. 7. — An order for printing the plan in 1806. " Resolved, That the Committee of Missions, cause a number of copies of this plan to be printed, and delivered to the Missionaries who may be sent by the Assembly among the people concerned." — Vol. II. p. 192. Mr. Bandall next offered in evidence, " The Plan of Union and Cor- respondence with the Convention of Vermont, proposed by the Assem- bly, in 1803, and ratified by the convention." {Sss. Dig. p. 300.) A proposal from the General Association of New Hampshire, for a plan of union between it and the General Assembly, accepted in 1810. {Jiss. Dig. p. 303.) A Proposal of the same kind from the General Association of Massa- chusetts, accepted in 1811. {Ass. Dig. p. 305.) " The Plan of Correspondence with the Presbytery of Albany, and the Northern Associate Presbytery, approved by the Assembly in 1802."' {Ass. Dig. p. 309.) And the Plans of Correspondence between the Reformed Dutch Church and the Associate Reformed Church, and the General Assembly, proposed in 1798, and 1819. {As£. Dig. p. 311.) 7 50 PRESBYTERIAN CHURCH CASE. [These various plans we do not here insert. It will be sufficient to say merely that the leading feature of those entered into with the Con- gregational Associations of Vermont, New Hampshire, and Massachu- setts, is the mutual appointment of delegates, to sit in the respective bodies, with power to take a part in the proceedings thereof. The other plans propose the communion of particular churches ; the friendly inter- change of ministerial services ; and a correspondence between Church judicatories, by mutual delegation.] Mr. Randall. I shall now proceed to examine the Rev. Dr. William Patton, of New York. This is going out of the regular order of testi- mony; but Dr. Patton is obliged to leave the city, and therefore requests to be examined now. [Before proceeding to the evidence of Dr. Patton, it will be well to give the reader some idea of the localities to which that evidence will introduce him. The Seventh Presbyterian Church in the city of Philadelphia — the Tabernacle, as it is usually called — is situated in the interior of a closely built square, and is approached by an alley named Ranstead Court, which, running west from Fourth Street, terminates at a gate in the south- east corner of the church yard. The house stands north and south; and at these two ends is directly abutted by adjoining structures, so that there is no communication between a narrow strip of pavement, which skirts the eastern side of the building, forming a right angle with Ranstead Court, and a larger piece of ground on the western side, which is used as a grave-yard, but through the building itself, at each end of which is a small vestibule, separated by partition from the body of the house, being little more than a passage from this grave-yard to the eastern pavement. From the northern vestibule three large doors open into the church, upon as many aisles running north and south, and extending its whole length. There are two double blocks of pews between the middle and side aisles, and east and west of the latter, are ranges of single pews along the wall. From the southern vestibule, or session-room, two small doors open into the church, one on each side of the pulpit, between which and the front of the pews, is an open space, or area, in which, during the meetings of the Assembly, many of the members usually sit. There are also two doors into the church, one on the east, and the other on the west side, so situated that a straight line drawn between them would fall about fifteen feet in front of the pulpit, and the short passages from these doors open into the side aisles before mentioned. The galleries of the church, to which one stair-case opening on the outside, near the east door of the northern vestibule, and another from the vestibule itself, ascend, and which may also be entered at the other end of the church, by the pulpit stairs, extend round the whole building; but the portions of them adjoining the pulpit, being separated from the rest by partition, are usually unoccu- pied during the session of the Assembly. In the north end of the gallery is an organ.] Dr. William Patton, sworn. I was a commissioner from the Third Presbytery of New York, to the General Assembly of 1838. I attended in the church in Ranstead Court, on the third Thursday of May, at the hour designated for the opening of the Assembly. Immediately after the introductory exercises and sermon, by the previous Moderator, Dr. El- liott, he gave notice that after the prayer which he would offer, the Gen- TESTIMONY FOR THE RELATORS. 5J[ €ral Assembly would be constituted. Immediately on the closing of that prayer, I rose and addressed the Moderator, calling him by his official title, and stated to him that I wished to offer certain resolutions, a copy of which resolutions I hold in my hand. The copy in the printed minutes is a correct one. I rose asking permission to read them. The Moderator declared them out of order, as the first business was the formation of the roll. I stated to the Moderator that the resolutions had reference to that very business, that I was desirous to present them, and would do so with- out comment or remark. The Moderator declaring me out of order, I took an appeal from his ^decision. The Moderator declared that appeal to be out of order. I then took my seat. Mr. Randall. Please to read the resolutions contained in the paper which you hold in your hand. Mr. Hubbell. I object to the reading of them. May it please your Honour, this paper was not read to the Assembly, and therefore, though the fact of its having been offered is a part of the res gestae, the contents of it are not. We did not know, at that time, what were the contents of the paper, and non constat, but that if we had known we should have acted differently. If at any subsequent stage of the proceedings, it was read to us, then when we come to the witness's testimony in regard to that fact, perhaps there will be no objection to the contents being made known to the court and jury. Judge Rogers overruled the objection, and allowed the paper to be read, which was accordingly done by Dr. Patton, as follows: " Whereas the General Assembly of 1837 adopted certain resolutions intended to de- prive certain Presbyteries of the right to be represented in the General Assembly ; — and whereas, the more fully to accomplish their purpose, the said Assembly 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 General Assembly of 1838, omit to in- sert therein the names of Commissioners from said Presbyteries ; — and whereas the said Clerks, having been requested by Commissioners from the said Presbyteries to re- ceive 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 ;— There- fore, " 1. Resolved, That such attempts on the part of the General Assembly of 1837 and their Clerks, to direct and control the organization of the General Assembly of 1838, are unconstitutional, and in derogation of its just rights as the general representative judicatory of the whole Presbyterian Church in the United States of America. "2. Resolved, That the General Assembly cannot be legally constituted except by admitting to seats and to equality of powers, in the first instance, all Commissioners, who present the usual evidences of their appointment; and that it is the duty of the Clerks, and they are hereby directed, to form the Roll of the General Assembly of 1838, by including therein the names of all Commissioners from Presbyteries belonging to the said Presbyterian Church, not omitting the Commissioners from the several Pres- byteries within the bounds of the Synods of Utica, Geneva, Genesee, and the Western Reserve; and in all things to form the said Roll according to the known practice and established usage of previous General Assemblies." After the reading of the paper had commenced Mr. Hubbell objected that it was not an original. Dr. Patton testified that the original had been given to Dr. Erskine Mason, and the opposite counsel offering to call Dr. Mason to account for it, the objection was waved. Dr. Patton. These are the resolutions which I offered at the time. My appeal was seconded. The Moderator declared the appeal out of 52 PRESBYTERIAN CHURCH CASE. order, and directed the clerks to proceed with the reporting of the rolL Thereupon Mr. Krebs, the Permanent Clerk, rose and proceeded, omit- ting the names of Commissioners from the exscinded Synods. At the close of that report the Moderator announced that if there were any com- missioners whose names had not been reported, then was the time for them to present their commissions. Immediately the Rev. Dr. Mason, a com- missioner also from the Third Presbytery of New York, rose, and first stating the fact, that the names of the commissioners from within the bounds of the exscinded Synods had not been entered on the roll, then moved, that their names should be added to it, at the same time holding foi'th as a tender the commissions, saying here they were, and stating that they had been rejected by the clerks. The Moderator declared that mo- tion to be out of order. Dr. Mason then said, that, with great respect for the chair, he must appeal from his decision. This appeal was seconded. The Moderator refused to put the appeal, declaring it to be out of order. Dr. Mason then took his seat. There was an inquiry made by the Mode- rator, from what Presbytery these commissions came. Dr. Mason re- plied that they came from the Synods named in his resolution — Utica, Geneva, Genesee, and Western Reserve. After Dr. Mason had answered where they came from, the Moderator declared they were out of order. I do not remember that any thing more was said at that time. Immediately after Dr. Mason took his seat, the Rev. Miles P. Squier, from the Presbytery of Geneva, rose, and said that he had presented his commission to the clerks, and they had refused to receive it, and that he now rose to claim his seat upon that floor, or words to that effect. The Moderator asked him from what Presbytery he came. He said from the Presbytery of Geneva. The Moderator then asked him if that Presbytery was within the bounds of the Synod of Geneva. Mr. Squier answered that it was. The Moderator then said, " We do not know you," where- upon Mr. Squier took his seat. Immediately after that, the Rev. John P. Cleaveland, a commissioner from the Presbytery of Detroit, rose, and, after a few introductory remarks, moved that the Rev. Dr. N. S. S. Beman, of the Presbytery of Troy, be Moderator. That motion was seconded and put by Mr. Cleveland, and was carried by a large majority, very few voting in the negative. Dr. Beman then called the attention of the house to business, and Dr. Mason and Mr. E. W. Gilbert, were nominated as Clerks, and were elected. No other nomination for clerks was made. Dr. Beman stated that the next business would be the election of the Modera- tor, and the Rev. Samuel Fisher, D. D. of the Presbytery of Newark was nominated, and no other person was put in nomination but Dr. Fisher. The vote was then taken and Dr. Fisher was declared to be duly elected. My own recollection is that the vote was unanimous; there were no nega- tives. It was taken viva voce. Dr. Beman then addressed Dr. Fisher, stating to him that he was duly elected Moderator of the General Assem- bly, and that he should govern himself by the rules that should be adopted by the house. It is usual for the General Assembly to adopt rules for its own government. Dr. Fisher then took the place occupied by Dr. Beman, and called for business, when Dr. Mason and Mr. Gilbert were chosen clerks. No others were nominated. They were nominated together, and voted for together. A motion was then made to adjourn to meet in the lecture-room of llie First Presbyterian Ciuircli. It was put and car- TESTIMONY FOR THE RELATORS. 53 ried unanimously; that is, there were no votes in the negative. It was put viva voce, as all the motions were put. Dr. Fisher then announced, that the Assembly had adjourned to meet forthwith in the lecture-room of the First Presbyterian Church, and that if any commissioners had not handed in their commissions to the clerks, they should do so immediately at that place. We went to the First Presbyterian Church, arid attended to the business of the Assembly in a very affectionate and brotherly manner. Immediately on our assembling at the First Church, I renewed my offer of the resolutions before offered, and they were unanimously adopted by the Assembly, as containing their views. A Committee of Commissions was then appointed, to whom informal commissions were referred, and several commissions were presented and received, after the adjourment to the First Church. Court adjourned. THURSDAY MORNING, March 7th— 10 o'clock. Dr. Paiton, (in coniimtation.) The motions for the Moderator were made and put in an audible voice, to be heard throughout the house. Dr. Elliott occupied a chair immediately in front of the pulpit, and Dr. Beman, when he officiated as temporary Moderator, took his place in the middle aisle, about one third or one half of the way down the aisle, north of the pulpit. There were some voices in the negative, on some of the motions. These negatives, as nearly as I could judge from the sound, came from the south-west portion of the church. That was the part of the house where the Old-school sat: they occupied that portion, and also a portion on the left and front of the pulpit — that is the south-east part of the house. During the time that I occupied the floor, in endeavouring to get the reading of the resolutions I wished to offer, there were frequent cries of "Order! Order!" proceeding from gentlemen in the general neighborhood of the Moderator. When Dr. Mason was on the floor, similar cries of "Order !" were repeated, from the same quarter of the house, and were more continued than when I was on the floor. Shortly after Mr. Cleaveland rose, the calls to order were much more vociferous, and were accompanied with frequent coughing, scraping of the feet on the floor, and some very emphatic hisses, also proceeding from the same quarter of the house, with the obvious intention, as appeared to me, of preventing the progress of business. After the notice of adjournment was given by Dr. Fisher, there was considerable noise in the galleries of the church. This noise consisted of clapping, expressive of approbation, intermingled with some hisses, making the light and shadow of the pic- ture. These are the material points, in regard to which my memory serves me. Spectators only, I presume were in the gallery. There were no members there to my knowledge. It is not usual for members to sit in the galleries. A mixed company of ladies and gentlemen was there. I think ample opportunity was given to every commissioner to vote upon the motions put by the Moderator. After our adjournment from the church in Ranstead Court, the body in the First Presbyterian Church, was in session about two weeks. Every day the full roll of all who had reported commissions, at any stage of the organization, was called. The roll embraced all the commissioners, as well those whose seats had, as those whose seats had rrot been disputed. That body went into the elec- tion of new trustees. 54 PRESBYTERIAN CHURCH CASE. On suggestion of Mr. Hubhell, the election of such trustees being a recorded proceeding, the examination on this subject was waved. Cross-examined by Mr. Hubbell. I cannot say with absolute cer- tainty who seconded Dr. Mason's motion. My own impression is that it was Dr. Dickinson, Professor in Lane Seminary. I gather this from general familiarity with the tones of his voice, and from his sitting in that part of the house. I myself seconded Dr. Mason's appeal. Our roll was called very soon after we retired to the First Presbyterian Church. We called it for the purpose of having it complete. I cannot answer with ac- curacy how many responded to that call, as I kept no account at the time. I should say rising one hundred; or say in the general neighborhood of a hundred and seventeen, or from that to a hundred and twenty. This number included those whose right was disputed. The exscinded I un- derstand by the disputed. This was the first time of the calling of the roll after Mr. Cleaveland's motion. We do not recognise that there was any new organization. I was sitting in the same pew with Mr. Cleaveland when he made his motion. His face was turned toward Dr. Elliott, when he made the remarks preliminary to his motion, and in the same direction when he made the motion. When he put the question, his face was turned the same way. He did not, at any time during his remarks or his motion, turn either his back or side toward the Moderator. I have no recollec- tion that there was any gathering or crowding* of persons round him, during either his remarks, or the making of his motion. He did not call the Moderator by name, but looking toward him, addressed his remarks and put his motion to the house, a large portion of which was between himself and the Moderator. These remarks stated, that a number of the Commissioners to the Assembly of 1S38 had been refused their seats, and that learned counsel had informed us, that the constitutional organization of the General Assembly of 183S could not be effected, or secured, except at that time and place. He then made a remark something of this kind, that in view of this position, he hoped it would not be considered discour- teous, to proceed with the organization of the Assembly, and offered his resolution, and put it to the house, as has been already detailed. Dr. Beman, when called to the chair, took a place in the middle aisle, not far from Mr. Cleaveland. My impression is that he had been before seated in the same pew with Mr. Cleaveland, or in a contiguous one. He had no chair in the aisle — he stood up. Dr. Fisher, when chosen Modera- tor, took the same place, and also stood up. Drs. Beman and Fisher, when they occupied this place, both looked toward the pulpit. I should think it probable there were other persons, besides members, on the floor, for the church was well filled. No measures were taken to prevent these from voting, or to ascertain that they did not vote: nothing of this kind was suspected. While Dr. Beman and Dr. Fisher held the place men- tioned. Dr. Elliott remained in the chair where he had been before, now shorn of his office. Mr. Hubbell. Did Dr. Elliott admit that he had been shorn of his office. Dr. Patton. I presume not. I believe he continued to sit where he had before, until we had adjourned to the First Presbyterian Church. Dr. Elliott called me to order as already stated. He also called Dr. Mason TESTIMONY FOR THE RELATORS. 55 to order, and Mr. Cleaveland, frequently using the little hammer that is put into the moderator's hand. I do not know that this hammer is a badge of office; it is not always used. In some Assemblies where I have been, the Moderator has used his cane — I do not mean to strike the members. I do not know to whom this hammer belongs, unless it is the property of the General Assembly. Dr. Beman had no hammer, nor did he use a cane. I did not hear Dr. Beman call Dr. Elliott to order. Dr. Elliott had ceased calling to order, and had ceased rapping with the mallet, before Dr. Beman's election. That part of the Assembly, called the Old-school party, I am not able to say, took any part in the proceedings after Dr. Beman took the chair, except by their silence. The cries of order, and the coughing and hissing ceased after Mr. Cleaveland had got through with his preliminary remarks. Mr. Hubbell. What part of the house was occupied by the New-school members ? Dr. Patton. The house had been occupied nearly to the hour of reli- gious service, by a convention of what are termed Old-school men, sitting with closed doors, and admitting no body to their counsels, but those who would sustain their proceedings. Mr. Hubbell interrupted the witness, and objected to his speaking of matters of which he could not possibly have any direct knowledge. Mr. Randall. The witness is at liberty to say whether this fact came within "his own knowledge or not. Mr. Hubbdl repeated his question. Dr. Patton. The New-school party were located on such seats as they found vacant when they entered, which were at a considerable distance from the pulpit. A portion of them were around and behind Mr. Cleave- land, in the north part of the church, and in that general neighbourhood. I did know, at the time accurately, how many persons the entire roll called after the adjournment contained. I cannot state now exactly. There were not, that I know of, two persons' names on that roll, who did not arrive in the city until after our adjournment. Neither Dr. Beman nor Dr. Fisher demanded possession of the chair, or of the hammer, from Dr. Elliott. I have seen the depositions of Dr. Beman and Mr. Cleaveland, since this visit to the city. I have read them — this I mean by saying I have seen them. Our proceedings were the result of a con- certed plan, and not the suggestion of the moment. There was previous consultation as to the manner in which an ex parte organization of the Assembly might be prevented, and a constitutional one secured. This arrangement was not made in consequence of our knowing that we should be in a minority in that Assembly, nor from an apprehension that we would be. It was to maintain the Constitution inviolate. We had no knowledge whether we should be in the minority or majority, and could have had none until all the commissions were received. I think there was a small majority on what was called the Old-school side; but this we knew as matter of history, and not of prophecy. I think I have already answered whether it might have been matter of anticipation. The meeting of consultation, to arrange this proceeding, was held in the lecture room of the First Presbyterian Church. It commenced its session on the Monday evening preceding the meeting of the Assembl}^, on an invitation to all the commissioneBS to attend a meeting for consultation. I do not 56 PRESBYTERIAN CHURCH CASE. know how many attended. The clerks of the meeting are present and can say how many. The invitation was given through the pubHe news- papers. I have a copy of it here, as it was published. Dr. Patton produced a printed paper, in the form of a circular, from which he read the following. " Important Document. — We request the attention of Ministers and Elders, to the fol- lowing notice: " Commissioners to the General Assembly o/1838. — A Meeting for Consultation. " Whereas, the state of the Presbyterian body at present is such as to demand the consultations and prayers of all its Ministers and ChurChes, in order to preserve its unity and peace ; and whereas the measures adopted at the last Assembly, excluding certain Synods and the Third Presbytery of Philadelphia, and providing for the organization of the Assembly of 1838, give reason to apprehend unhappy collisions at the opening of that Assembly, as well as subsequently; and whereas all party conventions in the Church, except for the defence of rights which have been assailed, are greatly to be deprecated, it is therefore proposed and recommended, that all the delegates to the Assembly of 1838, meet at 8 o'clock, on the evening of Monday the 14th of May, in the First Presbyterian Church of Philadelphia, for the purpose of interchanging views, and of devising such measures as the present exigencies of the Church may require, "Rev. Thomas McAuley, D. D., James Richards, D. D., Luther Halsev, D. D., Jo- siah Hopkins, E. W. Gilhort, John L. Grant, Lvman Beecher, D. D., Calvin E. Stow, Thomas J. Biggs, Baxter Dickinson, Sylvester Eaton, Samuel C. Aikin, Samuel Hanson Cox, D. D., T. S. Spencer, Samuel Fisher, D. D., N. S. S. Beman, D. D., Daniel Dana, D. D., George E. Pierce, Wm Patton, D. D., E.Xheever, J. P. Cleaveland. " (fc5^ N. B. Editors of religious papers are requested to copy the above." ' [We give the notice as inserted in the Philadelphia Observer, and as afterwards read to the jury. Dr. Patton's copy was without the names, and contained only the body of the notice.] This copy has no date, but it took the date of the newspapers in which it was published. It was signed by some twenty clergymen, from differ* ent parts of the country, and was published in all the religious newspa- pers we could get it into. It was published in newspapers in this State, in New York State, and I think in Maryland ; and had as wide a circu- lation as could be given to it. Some who remained in the body organized under Dr. Plumer, attended that meeting. Of these, I recollect the Rev. Dr. Church, and the Rev. Wm. Bradford. I do not remember any others. I believe there were some others, but I cannot identify them at this mo- ment. The circular was signed by a number of gentlemen — about twenty I think. Dr. Dana, and Dr. Bemam signed it. The newspapers will show who the rest were. I think Dr. Fisher signed it. Dr. Skinner's name was there, and also the name of Rev. Luther Halsey, formerly pro- fessor in the Western or Alleghany Town Seminary. He was not profes- sor at that time. He was then located at Auburn in the State of New York. I do not recollect that Messrs. Church and Bradford signed it. I do not recollect that any of those who signed this paper sat in the Assem- bly under Dr. Plumer. There were some diversity of opinion in the de- bates, as to the best mode of securing the object; but no diversity as ta the importance of forming a constitutional Assembly. There was a reso- lution offered — the minutes will show precisely what it is — and there was opposition to it, and considerable debate, which opposition, however, nearly disappeared before the end of the debate. There were various classical figures used, and among others it was said, by an eloquent gen- tleman present, that this measure was passing the Rubicon. TESTIMONY FOR THE RELATORS. 57 Re-examined by Mr. Randall. Dr. Beman, I presume, is now in England. He left this country in the month of January ; I had the hap- piness of seeing him safe on board the vessel in which he sailed. Mr. Cleaveland lives, I think, in Marshall, in Michigan. Their depositions were handed tome to be read by yourself — (Mr. Randall.) No such thing as a stick or hammer is recognised in our Constitution. The Con- stitution is in itself strong enough. I and my friends, when we went into the house in Ranstead Court occupied the nearest vacant seats. We found those nearest the pulpit occupied by the Old-school party. I do not know from personal observation that there had been a private meeting of that party in the morning, or that they sat with closed doors; but I have no moral doubt that they were so sitting. I have been a minister of the Presbyterian Church about sixteen or seventeen years, and was forty years old last August It was the Rev. Jared Waterbury who spoke of our measures being the passage of the Rubicon. He after- wards acted with the Constitutional Assembly. The doors of the First Presbyterian Church were at all times open, and all the Commissioners to the General Assembly had an opportunity to take seats there. Yesterday I said I had handed my resolutions to the Stated Clerk, This was a mistake: I handed them to the Permanent Clerk. Judge William Jesup — sivorn. I was a commissioner to the General Assembly of 1837, attended that body, and took an active part m its pro- ceedings. I came from the Presbytery of Montrose, belonging to the Synod of New Jersey. So far as I know, this Presbytery has always been in that Synod. I was one of the members of the committee ap- pointed, on motion of Mr. Breckinridge, to devise measures for the sep- aration of the Church. Mr. Breckinridge was also a member of that committee. It met several times ; the two portions of which it was com- posed meeting sometimes separately, and sometimes together. Mr. Randall. Do you recollect whether any thing was said by any member of that committee, at the time when it was about to separate, in regard to the consequence of the refusal of the New-school members to accede to the terms proposed? Mr. Hubbell. May it please your Honor, we object to the question. The proceedings of that committee were reduced to writing : the record has been produced, and speaks for itself. The various and conflicting propositions made by the opposite parties are all in writing, as well as the action of the house thereupon. The conversations of the different mem- bers of the committee converged in these records, and were ended by them, and, besides, are entirely foreign to this controversy. Indeed, the whole subject is a foreign one. The proceedings of the Assembly of 1837 were admitted, so far merely as they related to the acts of excision; but the other party saw fit to read the account of these efforts at compro- mise, and to this we did not object. It was matter of record, and, at most, immaterial and irrelevant. This is an attempt to go out of the record, and substitute for it the loose and idle conversations of individuals, of which we know nothing. They were ex-parte conversations, and no result followed them. The parties to this suit had nothing to do with them. Certain individuals, claiming to be trustees of the General Assem- bly, and asserting the right to oust those who now hold the office, seek to effect their purpose^ giving in evidence conversations, not with the 8 58 PRESBYTERIAN CHURCH CASE. trustees themselves, but between Judge Jesup and Mr. Breckinridge, These can have no more bearing on the case than any street conversa- tions. Mr. Randall. We think this an important link in the chain of proof, and that a decision adverse to the admission of the evidence would be unfavorable to the cause of justice. Your Honor must connect the whole testimony — Judge Rogers. You had better present the question in writing, as it is an important one. Mr. Randall. I will put it in writing, and, to prevent delay, now offer in evidence " The Philadelphia Observer" of March 29th, 1838, in which the notice of the consultation meeting, before mentioned by Dr. Patton, is to be found. [This notice — the same as given above — was then read.] Dr. Patton. Some of the persons whose names are appended to this notice are of the Old-school party — for example, the- Rev. T. S. Spencer. Mr. Hubbell asked for the piece of paper, which had been torn off^ from the top of that copy of the notice from which Dr. Pattoii had first read. Mr Randall produced it, and proposed to read it in evidence. It was, he said, a circular intended to accompany the notice. After looking at it, Mr. Hubbell waved his demand, and the paper was rejected. Mr. Randall then -presented, in writing, the question which he pro- posed putting to Judge Jesup. His object was to prove, that, in the course of the negociations of the joint committee appointed by the Gene- ral Assembly, as a part of the res gestx, Mr. Breckinridge declared, that if the New-school party did not accept the propositions of the Old-school, he would, the next day, in the General Assembly, move to exscind a suffi- cient number of Synods from the General Assembly to secure, thereafter, in that body, the predominance of the Old-school ; and that the other four ministers of this part of the joint committee assented to his declaration. Copies of the question having been given to the Court, and the opposite counsel. Mr. Randall, in defence of it remarked. Your Honour perceives from a perusal of that paper, that it relates to a declaration made in the meeting of the committee referred to. It is objected, that what we seek to prove is the mere act of an individual. But we want to show that there was a total discrepancy between the course pursued by the Old-school party, and the real object which they had in view. The ex-parte declaration of Mr. Waterbury was admitted, and was gone into at some length; and he was a gentleman not present during the proceedings of the Assembly of 1837, and no party to them. Now, we seek to show the acts and de- clarations of a gentleman who moved for the appointment of this commit- tee— who was the mouth piece, and — I say it without disrespect — the master-spirit of the Old-school. We wish to show a concerted plan, a conspiracy, to exclude certain Synods from all future participation in the rights and privileges of the Presbyterian Church. This is the leading fea- ture of the case. These Synods were cut off without trial, or even notice. The great principle that none shall be condemned without a hearing was violated. I do not wish to state what are the contents of that paper, in the hearing of the jury, but my allusions to it will be un- TESTIMONY FOR THE RELATORS. 59 derstood by those who have it before them. This is not only a part of the res gestse, but the very pivot — the corner stone of the whole investi- gation. On this declaration depends, for its character, the exclusion of the four Synods. A" motion was made to appoint a committee to agree upon terms of amicable division. That committee met, as the agents of the General Assembly. They reported, and their report was received. Then came the act of exclusion, or, as one of the counsel has said, not inappropriately, of detrusion. We now propose to show that after this abortive attempt at pacification, after the members of that committee had returned to the body, a menace was distinctly offered, and that the deed threatened Was afterwards consummated. This witness, holding in his hand the book, appealed to it, and asked for an accusation, and for trial. His appeal was met by a call for the previous question. The words of Omniscience to Adam were, "Where art thou? What hast thou done?" Even he would not pass sentence upon poor, fallible man, without a hear- ing. But these reverend fathers of the Church, born and bred in its com- munion, have been detruded, unheard. This is the very gravamen of •the charge. No lawyer, at least, can misunderstand me, when I say, that the exclusion of these trustees, whom we claim to have superseded by our appointments, was not intended to fix any stain upon their christian character. Their amotion was with a view merely to try the rights of the respective parties. The high character of the man whose name has been put at the head of the newly appointed trustees, is a sufficient guar- antee of the purity of our intentions. We wish only to try whether sixty thousand communicants, five hundred and ninety-nine churches, and five hundred ministers, can be detruded, without trial, or even the knowledge of any accusation. This is the ground of the present offer. I consider it the most interesting, and vital part of our inquiry. With these views I submit the question, hoping that your Honour will allow all the facts of the case to be developed. Mr. Wood. The question is, whether the evidence offered is material to the issue; but a court will not nicely scan the nature of such evidence, and decide upon it, at this stage of the proceedings, but will rather admit it, and leave it to the jury. I will show how this testimony applies to the case. We proceeded to organize the General Assembly of 1838, and must prove that that Assembly appointed new trustees. In the course of the organization, some unusual proceedings occurred. A Moderator and two clerks were removed, and others elected in their places. All this was done in the Assembly, and to prove that we were right in doing it is essential to our cause. We now want to show why we did it. Our reason was this: that there were several commissioners sent to the Assembly of 1838, from certain Presbyteries belonging to the Presbyterian Church, which prior to this time, year after year, had been recognised as branches of that church — the rights of v/hich had never been disputed. That these com- missioners presented their commissions to the proper officers, the clerks, but were rejected; not on account of any real or pretended informality in the documents, not in a case of contested election, but in obedience to an illegal mandate of the Assembly of 1837. That we demanded that the names of the commissioners thus rejected should be inserted upon the roll; that motion after motion was made for the purpose, which the Mo- derator refused to put iQ. the house, and pronounced out of order; and that, (50 PRESBYTERIAN CHURCH CASE. on one occasion, he said to a person who tendered to him a commission, which had been rejected by the clerks, ''We do not know you." Fur- ther, that the Moderator refused to put to the house an appeal from liis decision. After these repeated acts of rejection and refusal, it was that the members appointed a new Moderator, and new clerks. Their right to do so, is not to be decided at this stage of the investigation. The act was certainly within the power of the Assembly at that time; and we assign as the cause of our proceeding, a deliberate, preconcerted plan, on the part of a portion of the Assemblies of 1S37 and 1838, to exclude the commissioners from the exscinded Synods. In 1837, resolutions were passed, cutting ofi' these Synods frOm the Church. What then is our object ? To show a determined purpose, a conspiracy of the Old-school, carried out by their clerks and Moderator, to support the measures of ex- cision, by excluding certain individuals. How can we prove this ? It is idle to say that these commissioners would have been admitted if they had applied at another time. Can any one believe that it was not the fixed intention of the Old-School to exclude them for ever? The pledge ex- acted from the clerks demonstrates this: that clinches the nail. Well, to prove a preconcerted plan, we offer to show that, in a committee of the General Assembly, a threat was proclaimed, which was afterwards acted upon in that body; that it was declared by a member of the Old-school portion of the committee, that unless the other portion consented to divide the church at once, without consultation, the Old-school party in the As- sembly, would secure their future preponderance, by cutting off" a portion of their opponents. Is not this evidence material ? It goes to show the reason of the subsequent acts of excision — a deliberate design, a precon- certed plan. These we offer to prove by declarations made at the time — the declarations not of a mere cypher, a dough-faced man, but of the head, the ])rime mover, the Cor3^ph8eus of the party. We offer to prove that he held out a distinct menace, that unless the terms which he proposed were accepted, the next act of the Assembly would be the total exclusion of certain members. Now, if it is proper to prove this at all, in what way are we to prove it, but by evidence, like that offered, of remarks made at the time, in the course of action, in the committee room, and in the house? There is no other way. It is said that all the conversations in that committee merged in the different resolutions and proposals made by the two portions of it. This is not so. These documents do not show at all the design of those who passed the exscinding acts. Our object is to prove a fraudulent design. I say this without intending any disrespect to these gentlemen: they no doubt thought that they were doing what was perfectly right. But if their measures were illegal and unjust, in the eye of the law they were fraudulent. How, I say, arc we to prove all this, but by contemporaneous declarations? There is no other method. The exscinding resolutions present only the naked fact of the excision. But it is said, that the Gene- ral Assembly of 1837 had nothing to do with thaUof 1S3S; that if the clerks made out a defective roll, the Assembly would have completed it. No, never! and this is the very thing we wish to demonstrate — to demon- strate, by showing a design, a pre-determined plan. Such a design and plan, I repeat it, can be proved, in this case, only by the declarations of those who were most active in counselling and carrying out the measure. TESTIMONY FOR THE RELATORS. Ql Mr. Breckinridge, a leading man among the Old-school, makes certain declarations in a committee of the house; these declarations are acqui- esced in by his party, who verify them by subsequent acts, passed with the design of securing a majority. Is your Honour prepared to say, that evidence of such a design is not material, to show that we were right in removing the Moderator and clerks, who in pursuance of the measures of excision, had refused seats to commissioners regularly appointed ? Ate the exscinding resolutions valid? No member of the bar will say so. Even the counsel for our opponents will not say so; and they strive to keep them in the dark. But these acts must be dragged forth into the light of day. The design with which they were passed has an important bearing on the case; and it can be proved only by such declarations. If so, the' Court will admit the testimony. Mr. Preston. If I understand the proposition, it is to give in evidence, certain declarations made by Mr. Breckinridge, a member of the com- mittee alluded to, as showing the design with which certain acts of the General Assembly were performed. We object to the admission of such testimony, on the ground that an individual declaration is entirely incom- petent to the proof of the feelings and designs which actuated such an Assembly as that the proceedings of which are under consideration. It is offered as explanatory of the acts of a recognised public body. The declarations of a single man, declarations, too, made, not in the course of debate, not upon the floor of the house, but in a subsidiary meeting of cer- tain members of that house — these are brought forward to explain public and recorded acts of a judicial Assembly. If the design of those acts does not appear upon their face, the testimony offered must either contradict the record, or be consistent with it. Here then is the dilemma. If con- sistent, why attempt to confirm that which is already certain, to bolster up what is now fully supported ? If contradictory, shall the mere decla- ration of an individual overthrow the testimony which the solemn record bears of the transaction ? Shall secondary evidence destroy that which is primary? Who ever heard of the proceedings of a great public body being expounded or explained by private declarations? To state a case exactly in point: if your Honour were sitting in judgment upon an act of the Legislature of Pennsylvania, you would not allow your decision, as to the validity of that act, or the power of the body that had passed it, to be influenced by declarations made even upon the floor of the legislative hall, much less by declarations uttered in a committee-room. So far from acknowledging the declaration of a single man as conclusive, the concur- rence of ail the individual members of the body, in views not appearing on the face of the record, would not govern your decision. I venture to assert — using here a word drawn from a theological source, as proper in a theological controversy — I venture to assert that the exegetical history of a public body has never been introduced to explain the acts of that body. If so we should call on every individual member, in order to determine whether the motives and designs which actuated the whole were fair or fraudulent. But we have another serious objection to the testimony offered, depend- ing on more important considerations. Let us look into the circum- stances of the case, and we shall find more general grounds for its rejec- 62 PRESBYTERIAN CHURCH CASE. tion. Here I may say, that in your Honour's decision of yesterday, respecting the admission of the Minutes of the General Assembly of 1837, as evidence, I acquiesce. So far as that record is connected with the exclusion of the Synods, it is competent evidence; but no farther. To the proof of other acts, or to show a fraudulent design in those en- gaged in the proceedings referred to, it is clearly incompetent. No issue is presented admitting of such testimony. In the pleadings a single fact is asserted and denied — the fact that certain men, the relators in this suit, were duly elected Trustees of the General Assembly of the Presbyterian Church in the United States. This fact we deny, and here is the sole is- sue in the case. It is incumbent, therefore, on the relators to prove the regular organization, the Constitutional authority, the paramount power of the Assembly to which they owe their election. That power, that authority, we contest: here is the naked issue. If they prove theirs the only true General Assembly, there is an end of our cause. It is an entire mistake — the fact taken for granted by our opponents — that we are en- deavouring to set up an opposition General Assembly. We, tender no such issue. We do not assert that the Old-School Assembly of 1838 was the Constitutional Assembly: our cause rests on broader grounds. We are content with a mere general negation of the facts alleged on the other side. No matter how irregular, or unconstitutional, how false or fraudu- lent, have been all the proceedings not merely of the Assembly of 1837, and of the incipient organization of 1838, but of every General Assembly from the year 1800 to the present time: this does not advance their proof in the smallest degree. We are anxious to keep ever in view the real, the naked issue. We are not setting up one Assembly and our oppo- nents another. We are not contending for the affirmative of one issue, of which they have the negative; and for the negative of another of which they have the affirmative. When we come into Court, we come as defendants, with all the privileges of defendants. Should they prove our proceedings foul, false, and fraudulent, how would this establish their claim to hold office under a righteous power ? They propose, under the authority of their Assembly, to detrude — I employ a word before intro- duced— to detrude from the Board of Trustees of the Presbyterian Church, a reverend and venerable gentleman, who sits near me— Dr. Green, who holds his office by virtue of the original appointment of the Legislature, independently of the Assembly of 1837, or of 1838, or any other General Assembly. There is no imputation of irregularity in his appointment. He is above all such imputation — untouched by it. We then are not called upon to do any thing — to prove any thing. It is for our opponents to strike down this venerable gentleman by a paramount power. Why tlien should we go into an investigation of the proceed- ings of the Assembly of 1837? Not one of those whom they attempt to eject from their office holds under that impugned Assembly. All of them can refer to an antecedent date as the time of their appointment, though he to whom I have just alluded is, I believe, the only relic of the original company. They all claim under General Assemblies on which no shadow of imputation rests. The proceedings of the Assembly of 1837 therefore cannot affect either of the issues which the case presents. What are the facts of this case — those which are conceded on all sides? TESTIMONY l'X)R THE RELATORS. 63 Each General, Assembly at the close of its session, closes its existence, is dissolved, vanishes in thin air. The earth hath bubbles as the ocean hath, And these are of them. But is there nothing at all left? No prolific root from which another Assembly may spring? No germ of a future existence? No nucleus from and around which a succeeding body may grow up? Yes, there is such a prolific root, such a germ, a nucleus still ])reserved for a new or- ganization. This nucleus is the surviving power of the Moderator, who presides at the opening of the new Assembly, and of the clei'ks who as- sist in its formation. In the year 1S37 such an Assembly was dissolved. In 1838 another was organized; but who met for this purpose? The elements of which that Assembly was to be composed. And why did they meet? In pursuance of an act of the preceding General Assembly, under the auspices of the Moderator, whose authority still survived, and in the presence of the clerks. In other words, there were materials around which a new organization was to be efiected. Thus far all of us are agreed. The validity of the proceedings which I have detailed, even our opponents, "by the advice of counsel learned in the law," admit. All that was done, up to this stage of the proceed- ings, was done regularly. Now came the accepted time — now the pe- riod when a new state of things was to rise into existence. Still Dr. Mason turned towards the Moderator, still addressed the Moderator — the Moderator not yet " shorn of his ofiice." But the acts of refusing to put the motion ofiered, and to put the appeal, were derogatory from his power, and by them was he thus shorn. The elements of the incipi- ent organization were thrown upon the amplitude of their original pow- ers. Up to the date of this occurrence, of the act by which it is said that that Moderator and those clerks forfeited their ofiice, we are all agreed — all upon the same road. How then does the testimony ofiered apply ? Suppose the Moderator, in organizing the new Assembly, failed in his duty, committed a fundamental error, and that it became necessary to remove him; suppose, too, that his intention was evil, corrupt, fraudu- lent. If the act done was illegal, the most conclusive evidence of right motives cannot protect it from condemnation : if legal, the proof of wrong motives, of the most fraudulent design, cannot invalidate it, or render the proceedings of the other party any the less violent, disorderly, and revolutionary. Then, no matter what motives actuated us — what was our concerted plan or purpose. I therefore do not here offer to vindicate any declaration or any me- nace. However violent or improper our opponents may consider that which they have offered to prove, we might, with safety, as regards the issue of this cause, admit the charge. But I make no such admission. We could exhibit a complete vindication, though we object to its being introduced here. Not only could I vindicate the declarations uttered by Mr. Breckinridge — I could vindicate them in a Christian and Presbyte- rian spirit. What I object to is the waste which the introduction of such testimony would produce — the waste of words, the waste of time, and, 64 PRESBYTERIAN CHURCH CASE. worst of all, the waste of temper, in the investigation of collateral issues ; not that we shrink from the attempt to vindicate our words. Allow me, before closing, to illustrate a position that we take in this controversy. Our friends on the other side may as well be advised of it, and I throw it out now. We contend, that no regularly organized Gene- ral Assembly has been convened since the year 1800. In 1799, the act incorporating the Trustees of the General Assembly of the Presbyterian Church was passed. And whom did it incorporate.'' The very title of the instrument tells us whom. It is called " An Act for Incorporating the Trustees of the Ministers and Elders constituting the General As- sembly of the Presbyterian Church in the United States of America.'* Now, are not these words — " the General Assembly of the Presbyterian Church in the United States," potential? Was not the act designed to incorporate their trustees, and only theirs? Well, in the year ISOl, the Assembly entered into articles of agreement with certain Congregational Churches, by which, Congregationalists were allowed to be represented in that body. Was not this an avoidance of the trust created by the charter? Was that charter granted" to a mixed body of Presbyterians and Congregationalists ? Suppose Baptists, Episcopalians, Methodists, and Catholics, had been introduced, would they have formed the Assem- bly contemplated by the act of incorporation ? Or put a still stronger case. Suppose the persons thus admitted to our fellowship and commu- nion, by their numbers,- their dexterity, and " the advice of counsel learned in the law," had ousted us entirely, proclaimed themselves the true General Assembly, and appointed counsel to come into this court, and support their rights : would your Honor say that these composed the body to whom that charter was given ? It seems to me, that the introduction of improper members into this body corporate, or rather quasi corporate, may have vitiated every Assembly. The act contemplated none but Presbyterians — thorough-paced, true-blue Presbyterians. Our opponents, may it please your Honour, must show a paramount authority. Therefore, if the acts of all previous Assemblies were proved null and void, their object would be defeated. Besides, we object to an exegetical exposition of the proceedings of 1S37: it must pro\te fallacious. Judge Rogers. The proceedings of the Assembly of 1837, have a manifest bearing on the issue in this case; but I cannot perceive how the acts or declarations of individual rilembers of that body can properly be admitted to explain, or in any way affect those proceedings. I must there- fore exclude the testimony. Mr. Randall. Judge Jesup, will you be good enough to state all that you know in regard to the pledge exacted, by the Assembly of 1837, from its officers, that they would carry out the exscinding resolutions, in or- ganizing the Assembly of 1838. Mr. Hubbell objected to the question. The best evidence of the pro- ceedings of the Assembly was its own minutes. On such a subject, parol evidence was inadmissible. His objection was not to the facts themselves, but to the mode in which it was proposed to prove them. Mr. Randall. In many cases the minutes are the best evidence of the proceedings of the Assembly; but are we bound to prove by the min- utes, what cannot appear on them? I propose to show, that after the ex- TESTIMONY FOR THE RELATORS. 65 scinding resolutions of 1837, the Moderator and clerks of the Assembly- were called upon to give a pledge, that they would act in accordance with those resolutions, in organizing the Assembly of 1S3S. That a motion was made to that effect; but that while it was pending, the officers gave the pledge required, and then the motion was withdrawn. That afterwards, these proceedings were put upon the minutes by the clerk, but, by some gen- tlemen sympathising with the Old-school party, were withheld from pub- lication. We are not bound by the minutes. What is a minute? The mere narrative of the clerk — an officer not under oath. If a minute be inaccurate or defective, are we bound by it? Is a minute infallit)le? Judge Rogers. Perhaps these proceedings are recorded. Is the re- cord here ? 'Mr. Randall. We have summoned Dr. McDowell, the Stated Clerk, by a subpcena duces tecum, directing him to produce the original min- utes. [Dr. McDowell being called for, it was found that he was not in court.] Mr. Randall. I hand to your Honour, the Old-school minutes of 1838. There, on page 15, is a record which will explain what I desire to prove by the testimony of the witness. [The following is the part thus referred to by Mr. Randall. We copy it for the reader, though it was not laid before the jury.] "The committee appointed to examine into a supposed discrepancy between the print- ed and manuscript Minutes of the General Assembly of 1837, made a report, which was read, accepted, amended, and adopted, and is as follows, viz. "The committee have collated the orijrinal records as they were made by the Per- manent Clerk, approved of by the Assembly, and put into the hands of the Committee of Revision, with ihe printed minutes, and find the following omission in the latter, viz. "A resolution offered by Mr. Ewing, to appoint a committee to confer with the offi- cers of the Assembly, who compose tlie Committee of Commissions, to procure from them a pledge to carry out the action of the Assembly in their official character to its full accomplishment; which resolution was subsequently withdrawn, upon satisfactory statements before the Assembly, on the part of said officers, of their intention to do as the Assembly should direct them, which were also omitted in the printed Minutes. "Your committee impute no blame to the committee appointed by the Assembly to revise and prepare the minutes for publication, on account of this omission, although they are of opinion that it would have been better to have published the entire record. To prevent future mistakes in this matter, your committee would recommend to the Assembly the adoption of the following resolution, viz. " Resolved, That the records of the Assembly be published in all respects substanti- ally as they are approved by that body, when submitted by the Permanent Clerk, and that in no case shall any erasure be made in the manuscript records, except by the ex- press order of the Assembly itself. " Your committee would further recommend that the minutes be read and carefully corrected at the opening of each session of the Assembly, and that no subsequent re- vision or alteration be permitted, except by vote of the Assembly. Also, that the Sta- ted Clerk be directed to record, on the transcribed minutes at their proper place, on interleaved blank pages, the whole of the omitted minutes alluded to in this report." Mr. Randall, in continuation. That is the point in regard to which we desire to give testimony. Suppose that a resolution was offered and subsequently withdrawn: cannot we prove the contents of that resolution in any way but by the minutes — minutes prepared by officers not acting under the sanction of an oath. Minutes are not evidence at all, but for the sake of convenience. If I can prove by a witness, who gives his tes- timony under oath, what were the contents of Mr. Ewing's resolution, shall I not be permittecVto do so? The printed minutes have, by agree- 9 55 PRESBYTERIAN CHURCH CASE. ment, been given in evidence instead of the originals, in order to save Dr. McDowell the trouble of testifying; but they certainly are not conclu- sive. If the minutes stated that a resolution was withdrawn, would I not be at liberty to prove that it was not withdrawn, or that it was put to the house at another period, and carried? A memorandum of the proceedings of the Assembly, made by any body else, might just as well be relied on, as the memorandum of the clerk. Judge Rogers. First give in evidence the record, which you suppose incorrect, as it stands, and afterwards you may correct it. Mr. Randall said, that Dr. McDowell 'should be present the next morning, with the original minutes. Court adjourned. FRIDAY MORNING, March 8th.— 10 o'clock. Mr. Randall. I now propose to call Dr. John McDowell, Stated Clerk of the General Assembly, who has been sumhioned, by a subpoena duces tecum, to produce that part of the original minutes of the Assem- bly of 1837, referred to yesterday, which relates to the pledges given by the clerks, that they would carry out the decisions of that Assembly, in regard to the exscinded Synods. Dr. McDoivell being called, produced certain papers as the original minutes required. On the face of the papers appeared many oblitera- tions, and interlineations, and several parts were crossed or cancelled with the pen. Mr. Randall. I offer to read the whole of these papers in evidence. Mr. Ingersoll. We have no objection to their being read, but to their being read as the minutes of Ihe Assembly, when in fact they are not so. These are only the rough minutes prepared by the clerk, to be presented to the house, for approval, or correction. Mr. Randall. The witness was served with a subpoena duces tecum, and he produces these papers. Papers thus presented may always be read without inquiry, and without the attestation of the person producing them. We have offered to prove the facts in question by parol testimony. This offer was refused: it was said that the minutes, as the best evidence in the case, must be produced. Here they are: I offer them in evidence, and propose to read the whole, as well the parts erased, and crossed by the pen, as the rest. Mr. Randall, then read an extract from the papers, noting various erasures of words and sentences, as he proceeded. " Tuesday morning June 6lh. — Mr. Ewing offered the followinij resolution, viz: " Resolved, That a committee be appointed to confer with the officers of this Assem- bly, who compose the Committee of Commissions, and to obtain and communicate to this body, their explicit promise or refusal, to carry out, in all its parts, the reform entered upon during our present sessions, by the full and exact performance on their part, as ministerial officers of this body, of all the duties either expressly directed, or necessarily implied, by the action of the Assembly, for the purification of the Church ; and which are required in g-iving entire efficacy to its acts, in all their parts, and especially in completing the roll of the next and subsequent Assemblies. " After debate, adjourned till this afternoon at 3^ o'clock. " Concluded with Prayer." " Tuesday afternoon, 3^ o'clock. — The Assembly met and was opened with prayer- The mrnutesof the last session were read. TESTIMONY FOR THE RELATORS. 67 *'The Assembly took up the unfinished business of this morning, viz: the resolution respecting the duty of the Committee of Commissions. "The Stated Clerk asked and obtained permission to make a statement, in relation to his duty as a member of the Committee of Commissions. "The Permanent Clerkobtained the same permission. Then Mr. Evving had leave to withdraw his resolution." Mr. Randall. The marks on these papers are of two kinds, erasures and crosses. They are the rough minutes made up hy the clerk. The original of Mr, Swing's motion is not here ; what I have read is but a copy. I will ask Dr. McDowell what has become of that original. Mr. Ingersoll. We object to the witness being called upon. Mr. Randall. We have a perfect right to examine a witness produc- irtg papers, in obedience to a subpoena duces tecum, in regard to the character of such papers. Judge Rogers. The witness may be examined. Dr. McDowell. I have never had in my possession the original reso- lution offered by Mr. Ewing. Rev. John M Krebs, the Permanent Clerk of the Assembly, in answer to an inquiry respecting the paper which he had read, stating his views of duty as a clerk, in relation to the exscinding acts, said that the original of that paper was not in his possession; that he had sent it to the printer; but could furnish an exact copy. Mr. Randall. The original is necessary. Mr. Ingersoll. We have made no objection to any paper. Mr. Randall then produced "The Philadelphia Observer," of De- cember 14th, 1837, containing a copy of a paper purporting to be that read by Mr. Krebs. Mr. Krebs. I have no doubt that it is perfectly correct. I sent the orignal copy to " The Presbyterian." Mr. Randall then read the paper, as follows: "The undersigned, Permanent Clerk of the General Assembly, begs leave to state to the Assembly, that he has no other reluctance to answer the question proposed by the resolution offered this morning by Mr. Ewing, than that arising from the fear of the probability, strengthened by the course of debate on this resolution, that his readiness to reply, and the subject matter of his reply, in connexion with the phraseology of the resolution, may be misunderstood and misrepresented where there is no opportunity for explanation. But in respect to the precise object of the question iiself, as it specifically applies to the duties of the Permanent and Stated Clerks, as defined in their appoint- ment as a Committee of Commissions, he has no hesitation in saying, that he fully recognises the authority of the General Assembly to instruct its officers, and to ascertain that they understand their duties as ministerial officers of this body, both in relation to the present Assembly and to future Assemblies, of which they continue to be officers, until they shall have been formally removed. "He considers it a dangerous principle to confide such discretionary power to the Committee of Commissions, in respect to the action of this or of any subsequent General Assembly, as it was argued this morning that this committee possessed. Five years ago, the undersigned first had the honour to sit in this house as a commissioner from the Presbytery of New York, and three limes recorded his vote adverse to the resolutions passed by the Assembly of 1832, creating the then Second Presbytery of Philadelphia, on the ground that the Assembly had no constitutional right to form that Presbytery. Yet on the principle assumed this morning in this discussion, the undersigned, if he had been a member of the Committee of Commissions in the year 1833, miglit have exclu- ded the commissioners from that Presbytery from seats in the General Assembly, in the exercise of the discretion jmpliedly attributed to the committee, of judging and acting on their private views of tliv constitutionality of the act of the Assembly, erecting that gg PRESBYTERIAN CHURCH CASE. Presbytery. He believes, that after the will of the Assembly is expressed, the com- mittee have no discretion in the case, and have no right (as for himself he has no desire) lo assume so high a responsibility, when acting as a mere executive officer. The con- Blitutionality of the business, which is the subject matter of commands intrusted to him to execute, is not a question for him, but for the Assembly to decide; and can be a question for him only as an individual member of this house, when occupying a seat in it as a commissioner. He considers himself, therefore, simply as an agent — a ministe- rial officer of the Assembly to record their proceedings, and to do such other things, (including the duty of a member of the Committee of Commissions,) as have been spe- cified in the acts of this and of preceding Assemblies, creating and defining the duties of his office. This opinion he has expressed in private to members of both parties in the house. "He understands it therefore to be his duty, as a member of the Committee of Com missions, and especially in view of the rules adopted this morning, on the motion of Dr. Alexander, (and he will act on that understanding, unless otherwise expressly di- rected by the Assembly,) to enrol only such commissioners to the next Assembly as shall come from Presbyteries, now, or at the close of this Assembly, recognised to be com- ponent and integral parts of the Presbyterian Church; and that, to the Assembly so constituted, when duly organized for the transaction of business, it will be his duty to report the names of persons claiming to be commissioners from Presbyteries that may be formed during the intervening year, or from Presbyteries belonging to the Synods which have been declared by the Assembly to be out of the Presbyterian Church, should such persons present commissions to the committee. " JOHN M. KREBS. " Philadelphia, June 6lh, 1837." Mr. Randall. I suppose there will be no objection to this paper's be- ing cut out, that it may go to the jury. Mr. Ingersoll. Excision is a very dangerous type. We now propose to call the clerks, to show what the papers, which have been read as minutes, really are. Mr. Randall objected, that this was not the proper time for such tes- timony, but afterwards waved the objection, and asked Dr. McDowell to explain the matter. Dr. McDowell. The paper was not drawn up by me ; it is in the hand-writing of Mr. Krebs. Rev. John M. Krebs — sworn, vnth the iiplifted hand. I will read the minute as I prepared it, and offered it to the meeting of the Assem- bly, in the afternoon, to be passed upon by that body. [Here Mr. Krebs read what is above given.] The words which I have read are the words read to the Assembly to be approved. The custom of the clerk is, to turn his face toward the members of the house, and read the minute which he has prepared. This was approved as a correct minute, without a word of dissent. These minutes are made up during the debate, and, when I am not satisfied with any expression, I make erasures and interlineations, so as to have a fair record to read at the opening of the next session of the Assembly. This is my process of making up the record, and erasures of the character mentioned are very frequent. Sometimes erasures are made by order of the Assembly. Mr. Hubbell. There are, on these papers, marks of two kinds — era- sures and marks of cancellation. Mr. Krebs. I do not know by whom the cancellation was made, ex- cept from rumor. It was not done by me, or by the General Assembly, or by their order. The witness being about to give evidence of what was done in regard TESTIMONY FOR THE RELATORS. Qg to this cancelled minute, by the Assembly of 1838; Mr. Randall ob- jected to his going into that matter. Mr. Krebs. The paper that I read was never directed to be put upon the minutes. [Here -Mr. Randall waving his objection, the witness re- curred to the former subject.] The General Assembly of 1838 ordered that the parts cancellated should be recorded on the transcript of the minutes. Mr. Randall objected to the witness proceeding farther, saying that he had never meant to cast any imputation upon the clerks. Mr. Huhhell. We want to prove this cancellation an unauthorized act. And that it was on' account of it that the original minute did not go into the printed copies, or appear on the formal transcript. In 1838, by order of the Assembly, it was restored. Judge Rogers. We will take it as a part of the minutes of 1837. Mr. Krebs, examined by Mr. Ingersoll. The paper that I read was a simple statement of my views. I asked leave to insert it in the minutes, but no motion was made to that effect, and I did not feel at liberty to in- sert it without. I afterwards published it myself. It did not belong to the Assembly. Examined by Mr. Randall. I do not knov/ where the original pa- per is. I gave it to Mr. Engles, editor of the Presbyterian, with a request that he should publish it. I read this paper by permission, before Mr. Ewing had withdrawn his resolution. First I made a statement of about ten minutes, and then read the paper. I cannot tell where the original copy of Mr. Ewing's resolution is. The copy on the minutes is a correct one. Such papers are always destroyed, as soon as a copy has been taken. Dr. McDowell sworn — examined by Mr. Hubbell. That you may understand the marks of cancellation which appear on these papers, I would refer you to page 498 of the Minutes of 1837, where mention is made of the appointment of a committee to revise the minutes. "The Stated Clerk, with Dr. Cuyler and Mr. Grant were appointed a commiltee to revise the Minutes, and prepare them for publication." These minutes, on the rising of the General Assembly, were put into my hands, either as Stated Clerk, or as Chairman of the Committee. The committee met in my study for several days, and made various altera- tions, striking out the parts which you see marked with a cross. The obliterations had been made before. That this matter may be under- stood, I should say that it is customary for the whole minutes to be read over to the Assembly, at the close of its sessions; but occasionally they are in haste, and have several times appointed a committee to make the corrections. It was under such powers that we acted in 1837. We thought, that as Mr. Ewing's motion had been withdrawn, it ought not to be made a m.atter of record. Mr. Grant, one of the members of the committee, differed from us in opinion, in regard to this point. The pledge given by Mr. Krebs, I never have had; it never came to me in any form. The Minutes of 1837 were printed, I think, about the first of August : as soon as the revision was completed, they were sent to press. Examined by Mr. Wood. The statements made by the Clerks formed no part of thejyiinutes. We left out every thing, as if the trans- 70 PRESBYTERIAN CHURCH CASE. action had never happened. The remarks made do not now appear, but the fact that they were made does. These crosses were made by the committee. The obliterations I know nothing of. Examined by Mr. Huhhell. The statement which I made was never put on the minutes. The statement of neither of the Clerks was filed. Mine was not in writing. I can give the substance of it, if proper. Judge Jesup — in continuation. My recollection is that the matter was as it has been stated. In the forenoon Mr. Ewing offered his reso- lution; and, in the afternoon, Dr. McDowell and Mr. Krebs made their statements. Dr. McDowell made a statement of his views of his duty as a clerk, of which, though I cannot repeat the whole, a part is impressed upon my memory. After Mr. Ewing's resolution had been discussed for some time, the Assembly adjourned to the afternoon. In the afternoon Dr. McDowell asked leave to make a statement; and said, that he did not feel willing to give a pledge, as such, to the Assembly; but would state his views. That he did not think he could properly- exercise any discre- tion in the matter. That he was only a ministerial officer, and, as such, would carry out the views of the Assembly, and that he should feel him- self bound so to do, as long as he retained the office, whatever might be his opinion as a private individual. It is impressed upon my mind that he added, that if he found himself so situated that he could not consist- ently with his principles carry out the views of the General Assembly; he would resign; but I am not clear that he said so. This is all I recollect. When Mr. Ewing rose and withdrew his resolution, it was said either by him or some other person, that the explanations were satisfactory; and leave being asked to withdraw the motion, it was granted by a vote taken. No cross-examination. Rev. Miles P. Squier — sworn. I was a commissioner to the General Assembly of 1838, from the Presbytery of Geneva, which is within the bounds of the Synod of Geneva. The commissions of the commissioners from the exscinded Synods to the Assembly of 1838, were handed to my- self and Judge Brown, of Ohio, on Thursday morning, and were by us tendered to the clerks. Dr. McDowell, and Mr. Krebs. Dr. McDowell in the name of the committee replied, " We are not permitted by the in- structions of the Assembly to receive these commissions ; we cannot do it. Were I to exercise my own judgment I might do very differently, but I am bound by the instructions of the Assembly." Mr. Randall, handing a bundle of papers to the witness. Are these the commissions which you and Judge Brown presented to the clerks ? Mr. Squier. I have no doubt these are they. There were about fifty of them. (After looking over them) There can be no manner of doubt that these are the commissions. They were stated to be commissions from Presbyteries within the four exscinded Synods. No objection was made to their form. They were not received, examined, or opened by the clerks. I desired the gentlemen present to take notice of the refusal. This interview took place in the committee room of the Seventh Presbyterian Church, between nine and ten o'clock in the morning, the place and time, at which it had been advertised, that the clerks would be in waiting to re- ceive commissions. Cross-examined by Mr. Hubbell. I had no objection to say to Dr. Elliott, that the Presbytery of Geneva was under the jurisdiction of the TESTIMONY FOR THE RELATORS. 71 Synod of Geneva, but because Presbyteries, as regards the General As- sembly, are not under the jurisdiction of Synods, It would, therefore, have been irrelevant to say so. I came from the Presbytery of Geneva. I had been preaching the winter of that year in the congregation of Junius, within the boundsof that Presbytery, as a stated supply, as it is termed on the minutes. I was a minister belonging to the Presbyterian Church. The churches in that Presbytery, without exception, or, at least, as I think, not more than one, were governed by ruling elders. That one ex- ception, if there were any, must have been the congregation of Mid-^ dlesex. By Mr. Ingersoll. With regard to my own Presbytery, it is as I have stated. About the other Presbyteries in the Synod I cannot speak with certainty. I know of none that are strictly Congregational churches; I do not know that all have sessions. If there be any churches in that country, within the bounds of the Synod and beyond, which have not sessions, they have, by vote, put themselves under the care of some Pres- bytery. I believe the elders in all those churches are for life; I do not know that all have elders chosen for life; but all that I know have. I know of none which have committee-men. I presume there are some where all questions are submitted to the male members of the church; I have parol evidence that there are such in that region. In the Presbytery to which I belong, all have sessions except one, and for five or six years past, my attention has been chiefly confined to that Presbytery. Several years ago, I belonged to the Presbytery of Bufi'alo: there were then some churches connected with that Presbytery, that had not appointed ruling elders. I am unable to say how many. This Presbytery now belongs to the Synod of Genesee. They were the fewer in number, and the smaller churches, I should say. Churches, when first formed in a new country, are very small, and have few male members; hardly enough for the for- mation of an eldership; and in some instances the appointment of elders was delayed. In the mean time such a church was represented in the Presbytery. I have no knowledge of changes, subsequent to the time of which I speak, in the Presbytery of Buffalo. It was frequently the case that these churches afterwards chose ruling elders. I now reside one hundred miles from them, and therefore do not know much about them. Mr. Ingersoll. Here is page 534 of the Minutes of 1837, containing the reports of the Presbyteries of Onondaga and Cayuga. Please to say what churches there designated have, and which have not, ruling elders regularly ordained. Mr. Squier. I do not know whether all these have elders; all of them that I know have. I know of none which have not. I am not as much acquainted with the churches of Onondaga, as with those of Cayuga. I do not know the number of churches in Onondaga, but it is rather large. I am acquainted in Auburn, and both churches there have ruling elders. By a rather large number of churches I mean about twenty. I am unac- quainted, of my own personal knowledge, with the fact how many churches there are in the Presbytery of Onondaga, which have ruling elders. I have not travelled much in Onondaga. The seventeen coun- ties in which I travelled, as Agent for the Home Missionary Society, did not embrace that Presbytery; they did embrace all west of it. Some of the Presbyteries have*been formed since that time. In 1816, when I 72 PRESBYTERIAN CHURCH CASE, settled in BufFalo, Geneva was the only Presbytery in those seventeen counties. During my agency, the following Presbyteries were formed: Out of Geneva, in 1817, were formed Ontario, Niagara and Bath; and in 1819, the Presbyteries of Rochester and Genesee were created. All of these were formed by the Synod of Geneva. The geographical limits of the Presbyteries were at first large, but were afterwards cut shorter for convenience. At a later period the Presbytery of Tioga was created, and by the same Synod of Geneva. This was in a subsequent year. Also ■the Presbytery of Angelica, by the same Synod. At a later period, in 1821, the Synod of Genesee was formed by tlie General Assembly, con- taining, I think, the Presbyteries of Ontario, Rochester, Niagara, and Genesee. At a subsequent time, the Presbytery of Niagara was divided by the Synod of Genesee: the part north of Tonne wanta Creek, took the name of Niagara, the other that of Buffalo, and the latter retained the papers. The Presbytery of Chemung was subsequently formed by the Synod of Geneva. I cannot now think of any more. ' I do not know that any church was ever represented in the Presbytery of Ontario, by a per- son not either a minister or a ruling elder. I know nothing about it, one way or the other. I do know persons, who, when I was a member of the Presbytery of Niagara, fifteen years ago, were members of that Presby- tery from churches that had not yet organized sessions. To the best of my recollection, there were but a small number, of such churches, and these from among the smaller and newer ones. Each church belonging to a Presbytery, has one representative. I judge there were churches in these Presbyteries, which, in the feature of not having sessions, were Congregational. I know there is one church which has the reputation of belonging to Bath Presbytery, which has no ruling elders — the church of Prattsburg. I do not know that this church was ever represented in Presbytery. I do not know of any such in the Presbytery of Rochester. I am acquainted with all the principal churches in Rochester, but not with all. To the best of my knowledge, those churches, which have not yet formed elderships, elect one from the male members, to represent them in Presbytery. I have never been present at any such election. By Mr. Hiihbell. I know of no church formed wholly, or partly, on the accomodation plan. There are, I should think, between thirty and forty churches in the Presbytery of Buffalo. At the time I was ac- quainted with it, seventeen or eighteen years ago, there were some churches in that incipient state which I have described. The common language in Presbytery was, " While you are too young to form elder- ships, let the male members govern the church." I cannot say, that all the churches which were thus initiated, fifteen years ago, have now be- come consummate. The churches of Angelica, I have always under- stood, had sessions ; I know of none in that Presbytery that have not. I do not know, however, that all have. I am not sufficiently acquainted with all the churches in Rochester to know about them. I do not know that all in Genesee have ruling elders ; but I know of none that have not. When I belonged, a number of years ago, to the Presbytery of Niagara, I had reason to suppose there were some churches that had not sessions in that Presbytery. I know of none such in Rochester. Re-examined by Mr. Randall. The representation from the Presby- tery of Watertown. {Minutes 1837, /;. 528, referred to,) is always ac- ■m TESTIMONY FOR THE RELATORS. 73 cording to the number of ministers, and, so far as I know, always has been so. A minister without a charge, as, for example, the president of a college, always counis one in Presbytery. The right to a seat com- mences with his ordination. I know of no individual, of the whole number of five hundred and nine ministers, within the bounds of the four exscinded Synods, who is not a regularly ordained Presbyterian clergyman. All were such ; but I must be understood as meaning, that we received clergymen from the Dutch Reformed Church, and from the Associations of New England, without re-ordination ; the terms of cor- respondence did not require that they should be re-ordained. In all the Presbyteries with which I am acquainted, there are a suiFicient number of Presbyterian churches to constitute the Presbyteries. Striking out those churches not strictly Presbyterian, there would have remained a sufficient number, regularly organized, to send commissioners to the General Assembly, of 1837. Mr. Randall. We will here interrupt the witness, to offer these com- missions of the delegates from the exscinded Synods to the General As- sembly of 1838. The commissions were then given in evidence. Mr. Squier, in continuation — examined by Mr. Randall. I was present at the organization of the Assembly of 1838. After tendering the commissions to the clerks, I presented them for keeping to a gentle- man named Mr. Nixon. I introduced him to Dr. Mason, and then went into the house. 1 found the house previously occupied, very densely, at the south end, a large proportion of the gentlemen in that part of it being of the Old-school party. The sermon was preached as usual, and at its close the Moderator, Dr. Elliott, announced that after prayer he would proceed to constitute the Assembly. This prayer being finished, he took his place below, in front of tlie pulpit, and made a prayer, at the close of which Dr. Patton rose, saying that he held in his hand certain resolutions which he wished to offer. Dr. Elliott said, that was not the time to hear them; that the next business was the formation of the roll, or something to that effect. Dr. Patton replied that his resolutions had regard to that very subject. Dr. Elliott stated, that they could not be received, as the roll was the next thing in the order of business ; and I think mentioned, that the clerks were ready to make their report. Dr. Patton informed him, that he had the floor before the clerks. The Moderator told him he was out of order. Dr. Patton appealed from his decision, and his appeal was seconded, to the best of my recollection. The Moderator refused to put the appeal to the house, saying to Dr. Patton that he was out of or- der. Dr. Patton then took his seat, and the clerks made their report. As soon as they had reported, the Moderator said, if there were any more commissions, then was the time to have them presented. Dr. Erskine Mason then arose, and addressed the JNIoderator, saying that he held in his hand the commissions of certain commissioners from the Presbyteries within the bounds of the Synods of Utica, Geneva, Genesee, and Western Reserve, which had been refused by the clerks; that he now tendered them, (holding them up to view,) for the purpose of completing the roll. The Moderator inquired of him if those Presbyteries were within these four Synods. He answered they were. The Moderator replied that they could not be received, oi*"in words to that effect. Dr. Mason then ap- 10 74 PRESBYTERIAN CHURCH CASE. pealed from the decision of the Moderator to the house, and his appeal was seconded. The Moderator refused to put the appeal, declaring him out of order. I then rose, and mentioned to the Moderator, that my com- mission had been tendered to the clerks, and had been refused; and I now- demanded my seat, and that my name should be enrolled among the mem- bers. The Moderator asked what Presbytery I represented. I replied the Presbytery of Geneva. The Moderator asked if that Presbytery be- longed to the Synod of Geneva. I answered that it was within the bounds of the Synod of Geneva. He replied, " We do not know you," Mr. Cleaveland of Detroit then rose, and said in substance, that we had been advised, that a constitutional Assembly must be organized at that time and place, by the admission of all to their seats, and as it was evident that this could not be done under these officers, or as it was impossible to go on, and constitute or organize the Assembly under them, he moved that Dr. Beman take the chair, which motion was seconded, and put by Mr. Cleaveland. Dr. Beman rose immediately after the question had been put and carried, by what I should think a nearly unanimous vote. He was sitting near the front of the slip. A motion was then made and se- conded, and put by Dr. Beman, that Dr. Erskine Mason and Mr. Gilbert be clerks, and Dr. Beman then called for nominations for a Moderator of the Assembly. Whereupon Dr. Fisher was nominated, and the nomina- tion being seconded, and none other made, the question was put viva voce, by calling the ayes and nays. Dr. Beman then announced to Dr. Fisher, that he was regularly constituted Moderator of the General Assembly, and should be governed by the rules of that body thereafter to be made. The Rev. Dr. Mason was then nominated as Stated Clerk, and Mr. Gil- bert as Permanent Clerk, and the question was put by Dr. Fisher and carried. Some paper was then read or referred to, the purport of which I did not understand, and on the back of this, a motion was made to ad- journ to the First Presbyterian Church. The paper was on the subject of the occupation of the house. 1 cannot state by whom it was read, but to the best of my recollection, it was by Dr. Beman. The body then re- tired to the lecture-room of the First Presbyterian Church, the Moderator announcing that if there were any other commissions, which had not yet been presented, they would be received there. After getting to the lec- ture-room of the First Church, the business went on as usual. The motions in the Seventh Church, were I think, all made in an audi- ble voice, and all seconded; and the question on each was put by the chair. An opportunity was given to vote in the negative, it being, to the best of my recollection, in each instance put, and a competent time being allowed to vote. So far as I could perceive, the business had the attention of the whole house. The house was very still, especially at the time when I was on the floor. Every member had an opportunity of voting on these resolutions. There was a call to order, by the Moderator, of Dr. Patton, who, when last called to order, took his seat. There were, if I recollect, some cries of order when he and Dr. Mason were on the floor. There was no interruption when I had the floor, but more when Mr. Cleaveland was on it, from Dr. Elliott and those sitting in that por- tion of the house. The noise and interruption came from the part of the house which was filled when we went in, by those who acted on the Old- school side. I cannot say that they were all Old-school men, but many I TESTIMONY FOR THE RELATORS. 75 knew to be so. I did not enter the house till eleven o'clock; then it was occupied by a dense mass, nearly one third of the way from the pulpit. There was a universal rumour, that a meeting for consultation had been held in the church previously to this time. I have been a commissioner since the year 1817, about every four years. I have never before seen such a collection of persons at that hour. I entered the house previously to the commencement of the preparatory exercises. The members did not change their places afterwards. The Assembly is always opened with a sermon by the old Moderator, who presides until a new one is chosen. The practice, to the best of my recollection, formerly was, to I'ead the commissions before all the members. The late practice, for con- venience, has. been, to commit them to the Stated and Permanent Clerks. My recollection is not distinct as to the subject of discussing the right to seats — whether it is done before, or after the choice of a Moderator. No cross-examination. Dr. William Hill — sworn. I belong at present to the Presbytery of the District of Columbia, although my residence, for some months past, has been at Winchester, Virginia. I have been a member of the Presby- terian Church since 1787. I have repeatedly been a commissioner to the General Assembly; once soon after the Assembly was organized, and since, I cannot recollect how often, but more frequently than any other person from the state of Virginia. I have filled the office of Moderator. It was the custom, at the time of my first acquaintance with the Assem- bly, for the commissions to be brought into the house, and read there. The Constitution says merely that they shall be read, but as to the points where, when, and before whom, this shall be done, it is silent. The cus- tom, for a number of years was, for commissioners, as soon as the sermon was done, to present themselves at the clerks' table, and their commis- sions were read one after another, as fast as possible, and their names put on the roll. All the doubtful commissions were laid aside, to be acted upon at a subsequent period. Where nothing doubtful appeared, the names were put upon the roll immediately. If I recollect aright, the doubtful commissions were at first discussed before the house; but this was found too tedious, and a Committee of Elections or Commissions was appointed, to examine them and make report as soon as possible. Some- times persons appeared without their commissions, which perhaps had been lost, or had miscarried. These cases were referred to the same committee to be reported upon. I believe the common practice was, to defer acting on these doubtful commissions, until after the Moderator was chosen. Those members about whom there was no dispute were per- mitted to vote for Moderator. When the Assembly, in process of time, became so large that reading the commissions, in extenso, consumed a great while, this was dispensed with, and the names merely of each com- missioner, and of the Presbytery from which he came, were announced. If any commission was doubtful, or was called in question, it was always laid aside for subsequent consideration. This continued the practice, until thirteen years ago, when the custom arose of referring all the commissions to the clerks, in order to facilitate business; and they having previously examined them, reported the roll to the house. The Constitution says nothing on the subject. Business progressed in this way comfortably and harmoniously, until these, times of excitement came. Then this plan was I ^Q PRESBYTERIAN CHURCH CASE. , found to operate unfavourabl)^, and a desire was manifested to revert to the old custom, especially when, in 1837, pledges were exacted from the clerks. It was my intention, last spring, to move the Assembly to return to the old order, as less objectionable, and less liable to abuse. I Was a member of the Assembly of 1835, which met in Pittsburgh. It was a pretty tedious process to get into our gear on that occasion, and I believe near two days were spent before the choice of a Moderator. The Moderator of the last year was not present. The Constitution says that the last Moderator present shall preside until a new one shall be chosen. The Moderator had written to Dr. Miller, requesting him to preach the sermon, and preside in his place. After the sermon, there was an objec- tion to Dr. Miller's taking the chair, and Dr. Beman presided a consi- derable time; but an objection being again made, the office devolved on Dr. William A. McDowell, I believe by a vote of the house, but I am not certain whether by a vote, or by consent. Dr. Beman occupied the chair some time before his right was called in question. I think I recollect repeated instances, in former years, under the previous order, of disputed rights to seats being determined before the choice of a new Moderator. Cross-examined by Mr. Hubbell. On the occasion mentioned. Dr. Beman's right was disputed because he was not the last Moderator pre- sent. Dr. McDowell, the last one present, was in very feeble health, and it was to accommodate his feelings that Dr. Beman was put into the chair. The universal rule is, that the last Moderator present is entitled ta the chair. I do not know whether Dr. Beman put the question on the sub- ject of his removal: L think he did, but am not certain. If I recollect Dr. Beman took no part in the discussions of the house. He left the chair, in obedience to its order, as soon as the decision had been made. Re-examined by Mr. Randall. I think the objection on which the moot point arose was, that Dr. McDowell was not a commissioner to that Assembly. By Mr. Ingersoll. It is not necessary to be a commissioner to preach the sermon. On this occasion Dr. Miller preached it. Mr. Randall next offered various extracts from the minutes. Min. 1823, pp. Ill, 112, 113, " "^he General Assembly of the Presbyterian Church in the United States of America, met, agreeably to appointment, in the Seventh Pres- byterian church in the city of Philadelphia, May 15th, 1823, at 11 o'clock, A. M., and was opened by thy Rev. Obadiah Jennings, the Moderator of the last Assembly, with a sermon, &c. * * * * * * . *. " After prayer the commissions were read, and it appeared that the following minis- ters and elders v/ere duly appointed, and attended as commissioners to this Assem- bly, viz." [Here follows the roll of the Assembly.] "The Rev. John McFarland of the Presbytery of Ebenezer, Dr. Cyrus Baldwin, ruling elder from the Presbytery of Onondaga, and Mr. Samuel Blood, ruling elder from the Presbytery of Carlisle, appeared in the Assembly without commissions; but suffi- cient testimony was given that they had been chosen commissioners to this Assembly, and they were received as members and took their seats accordingly. "The Assembly proceeded to elect a Moderator and Temporary Clerk; and the Rev. John Chester, D. D. was chosen Moderator, and the Rev. Robert Cathcart, D. D. was chosen Temporary Clerk. Min. 1824, pp. 193—5. Min. 1825, pp. 249—251. Min. 1829, pp. 363—6. Min. 1831, pp. 155-8. " The General Assembly of the Presbyterian Church in the United Stales of America, met, &,c. TESTIMONY FOR THE RELATORS. "The Standing ComnniUee of Commissions reported, that the following persons present have been duly appointed commissioners to this General Assembly, viz:" [Then follows the roll, as before.] "The committee further reported, four commissions from the Presbytery of New- Brunswick, two from Watertovvn, one from New Castle, and one from Northumber- land, as wanting the date of the year of the appointment; also, one commission from New Castle, and one from Rochester, as wanting the signature of the Moderator ; and a commission from Grand River, for a member of the Standing Committee, instead of a ruling elder. The committee also reported, that the Rev. John McCrea, of the Pres- bytery of Cleveland, had informed them that he had lost his commission. "Mr. Jacob Green, Mr. Patton, and Mr. A. Piatt, were appointed a Committee of Elections, and the informal commissions were referred to them. "The Assembly had a recess until four o'clock this afternoon. , " Thursday^ four o'clock, P. M. — After recess the Assembly met. " The Committee of Elections reported, that they had received satisfactory evidence of the regular appointment as commissioners of the persons whose commissions had been referred to them. With respect to the case of the Standing Committee-man from Grand River Presbytery, they decline expressing any opinion as to the constitutional question of the right of such to a seat in the Assembly. "The Assembly proceeded to consider the case of the persons denominated ' Standing Committee,' in the commission; and, after considerable discussion, it was resolved that the member be received, and enrolled among the list of members. "The Assembly proceeded to the election of a Moderator, when the Rev. Nathan SJ "S. Beman, D. D., was elected." Min. 1833, pp. 469-73. [The passages here simply referred to are of the same nature with those quoted, going to show that it is customary, in the Assembly, to try doubtful or disputed rights of membership, before the choice of a new Moderator. ] Court adjourned. SATURDAY MORNING, March 9th— 10 o'clock. Mr. Randall. I have examined Dr. Patton and Mr. Squier out of the regular order of the testimony, but shall endeavor to be more methodical hereafter. The last evidence offered yesterday was in regard to the prac- tice of deciding the right to disputed seats before the election of the new Moderator. I now give some farther extracts from the minutes, relating to the same point. Min. 1826, p. 6. " Mr. Josiah Bissell, from the Presbytery of Rochester, appeared in the Assembly, and produced a commission, as an elder from that Presbytery. A member of that Presbytery informed the Assembly that Mr. Bissell had not been set apart as an elder ; but that he was appointed, as was supposed by the Presbytery, in conformity with the conventional agreement, between the General Assembly and the General Association of Connecticut. After some discussion, the Assembly adjourned till nine o'clock to-morrow morning. " May 19rent Presbyteries of the Associate Reformed Church, shall either retain their separate organization, or shall be amalgamated with those of the General Assem- bly, at their own choice. In the former case, they shall have as full powers and privi- leges as any other Presbyteries in the united body, and shall attach themselves to the Synods most convenient. " 2. The Theological Seminary at Princeton, under the care of the General Assembly, and the Theological Seminary of the Associate Reformed Church shall be conEolidated. TESTIMONY FOR THE RELATORS. 127 " 3. Whereas monies to the amount of between nine and ten thousand dollars, which were given to the General Synod of the Associate Reformed Church, and of which the interest or product only was to be applied to the support of a Theological Seminary, were necessarily used in the current expenses tiiereof: which monies so expended were assumed by the Synod as its own debt, at an interest of seven per cent; the united body agree to make a joint effort to repay the same, and will apply the interest accruing thereon to the maintenance of a Professorship of Biblical Literature, in the Seminti- ry at Princeton, analogous to that which now exists in the Associate Reformed Church, and until such professorship shall be established, the said interest or product shall be used for the general purposes of the Seminary. " 4. The Theological Library and Funds belonging to the Associate Reformed Church, _ shall be transferred and belong to the Seminary at Princeton. "These articles having been approved, were ordered to be transcribed and signed, and a copy of them transmitted to the General Assembly of the Presbyterian Church, and the General Synod of the Associate Reformed Church, respectively. " The meeting was closed with prayer by the Rev. Ebenezer Dickey. " All which is respectfully submitted. " Ashbel Green, Samuel Blatchford, John McDowell, Henry Southard, Benjamin Strong, J. M. Mason, Ebenezer Dickey, John Lind, William Wilson, Joseph Gushing. " The foregoing report having been read, and duly considered, was unanimously adopted. " Ordered, that the committee of conference on this subject, wait on the Synod of the Associate Reformed Church, and inform them of the adoption of the articles of union on the part of this General Assembly. Min. 1822, p. 11. — "The following communication from the General Synod of the Associate Reformed Church, was received and read, viz. " Resolved, That this Synod approve and hereby do ratify the Plan of Union between the General Assembly of the Presbyterian Church and the Associate Reformed Church, proposed by commissioners from said Churches. "Extract from the minutes of the General Synod of the Associate Reformed Church ofPhiladelphia, 21st May, 1822. James Laurie, Moderator, J. Arbuckle, Clerk. "Resolved, That a copy of the above resolution, authenticated by the Moderator and clerk, be immediately sent to the General Assembly of the Presbyterian Church, and that the Rev. Ebenezer Dickey and Dr. Robert Patterson be a committee to wait upon the Assembly with said resolution. J. ARBUCKLE, Clerk. "The );ommittee from the Synod of the Associate Reformed Church appeared in the Assembly, and the resolution was read, " Whereupon, Resolved, That the Assembly receive this communication with great pleasure; and the Rev. Jonas Coe, D. D., the Rev. Thomas M'Auley, L. L. D., the Rev. William Gray, of the Presbytery of New York, and Mr. Divie Bethune were ap- pointed a committee to wait upon said Synod; and, inasmuch as the different Presby- teries under the care of the Synod, cannot appoint delegates to attend the present Gene- ral 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 mem- bers of said Synod, to attend this Assembly on to-morrow, at 4 o'clock, P. M., that we may, unitedly, return thanks to Almighty God, for the consummation of this union." Dr. Erskine Mason — re-called. I have never known a single in- stance of the re-ordination of ministers received from other denomina- tions into the Presbyterian Church. My father was admitted into that Church under the union of 1821, but he was never re-ordained. There are instances in the Presbytery of New York, of clergymen who have come from the mother country, in regard to whom the same rule was ob- served. Cross-examined by Mr, Hubbell. The Second Presbytery of New* York never required'^he Confession of Faith to be subscribed. They 128 PRESBYTERIAN CHURCH CASE. themselves don't use it. The book of the Associate Reformed Church is the one under which they act. The form of government of that Church differs from the Presbyterian form, in several important respects. The Confession of Faith of both Churches is the same: it is the Westminster Confession. I was formerly a member of the Second Presbytery of New York. The Associate Reformed Church is Presbyterian in its form of government: it has elders and church sessions. Foreign ministers apply- ing for admission into the Third Presbytery of New York, are subjected to examination and a year's probation. I am speaking now of those who come from across the Atlantic. That is the Presbytery to which I now belong. We require, in the Third Presbytery, an acknowledgment of the Confession of Faith. Re-examined by Mr. Randall. The Westminster Confession of Faith, in the part that relates to civil magistrates, was altered by both the Associate Reformed and the Presbyterian Churches. Mr. Randall. In the course of the trial of the case of Duncan against the Ninth Presbyterian Church, one of the gentlemen who are the respon- dents here. Dr. Green, gave evidence in regard to some of the questions now agitated. When Mr. Ingersoll, who was one of the counsel engaged in that case, has his notes here, I shall take an opportunity of referring to them. With this exception, we here close our case. 129 TUESDAY AFTERNOON— 4 o'clock. MR. hubbell's opening. Mr. Hubbell opened the case for the Respondents, as follows : May it please the Court— Gentlemen of the Jury—-Yo\i have been engaged nearly a week, 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 preju- dicial 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 obliterate 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 legality 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 inquiry. First, The Acts of the General Assembly of 1837, called by our adversa- ries, affectedly and ex industria " The acts of excision," but which, according to a fairer nomenclature should be called "declarations of dis- connection 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 Assembly in 183S, 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 cer- tain acts of the General Assembly of 1837, and assuming the infirmity of those acts, to deduce from thence the invalidity of this exclusion in 1838. This distinction must be carefully observed, as I shall presently demon- strate to you, that the Relators are compelled, by the necessity of their own case, to admit, that notwithstanding those acts of alleged dismember- ment passed by the General Assembly of 1337, that Assembly retained its constitutional, unimpaired existence, up to the last moment 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 183S. They apparently admit that 17 J 30 PRESBYTERIAN CHURCH CASE. the Assembly of 183S, like that of 1837, might have existed or lived, without the vivifying presence of those delegates. They merely contend that the exclusion was unlawful, and seek in its unlawfulness a justifica- tion for certain ulterior operations, which they now declare to have been a removal of the oflending 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 as- sert, refused to allow the Assembly to correct the misconduct 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 dis- orderly 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 resolves itself into this one narrow, and truly absurd position, viz. " That the majority, when they meant ^ No^ and declared their meaning in every possible mode, but the use of that monosyllable, m.ust be con- strued to have meant ' Yes.' " As we conceive, all the other evidence, 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 exists at all, is not confined to the exigency of their miscon- duct, but may be exercised at the pleasure of the Assembly, with or without reason, " slat 2^ro 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 re- moval ? They may perhaps mean to say, " These officers committed a wrong, and a majority of the members upheld them, it was therefore licensable for the minority to practice this legerdemain, although it is manifest it could only have succeeded by surprise, misconception, and error.'" If the members from the disov/ned Synods have been injured, (which we deny) surely there was some method, by which they and their fa- vourers might have brought this question of their right to seats in the As- sembly, before the tribunals of the country, without the indecorous pro- ceedings 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 endeavoured 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 discursive 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 logomachy, or war of words, as the counsel for the relators has asserted, but a wide variance in MR. HUBBELL'S OPENING. 23 j tenets. Tenets so dissimilar, that like liquids of different gravity and consistency, they cannot be commingled. 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 doctrine. 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 w^rong. Our doctrines are taught at the Seminary of Princeton, in all their pu- rity. That Institution has, from its origin, been the principal seat of or- thodoxy. There it is taught ^vith 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 ema- nated 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 pro- portions, and knew no infancy, or youth. Our adversaries, on the con- trary, maintain that theology is an advancing, improvable science. That the old formularies of the Christian faith are too antiquated for this en- lightened 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 adversaries on the contrary maintain that the sin of Adam is not imputed to his posterity, and made their sin, but, that by Adam's fall, it is made absolutely certain and necessary (in some incomprehensible manner) that each and all his posterity ivill 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 mo- tives. 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 satisfaction of the violated law; a tribute to Divine justice, by which a righteous God was propitiated. That Christ became our substitute, and underwent death for us. That the merits of Christ, his obedience, in the fulfilment of the law by his volun- tary death, is imputed to our race through faith; that is to the believers of our race, in the same tnanner that the sin of Adam was imputed to us. PRESBYTERIAN CHURCH CASE. .^.i ine other hand, our adversaries deny the doctrine of imputation, and contend, that he was always a placable God, and ready to bestow pardon as soon as govermental justice would permit. They deny that his law re- quired an infinite victim, or that Christ yielded himself as such a victim, or bore the penalty of the law. They maintain thatjustification is merely pardon, and the condition, faith. Another great topic of difference is the subject of regeneration or con- version, 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 corfcur 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 regeneration, and that the process is gradual. Such, gentlemen, are the summa vestiga, 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 should be 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 pas- sions, and bid them be tranquil for ever! Such, gentlemen, was the state of the parties, and such the distractions of this Church, when the session of 1S37 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 de- cided 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 majority 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 permit- ted to be taught in an institution expressly formed to preserve uniformity of creed. This Church having adopted a standard of faith or a system of holy truths, it admits no double construction 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. Sect. 5. " To the General As- sembly belongs the power of deciding in all controversies respecting doc- trine 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 associations; of which they may, at their pleasure, make what are heresies when compared with our standards^ the orthodoxal canons. This decision of the General Assem- MR. HUBBELL^S OPENING. J33 bly, is the decision of the majority of that Assembly, and hence it re- sults, (however harsh it may seem,) that the construction which the ma- jority put upon the standards is orthodoxy, and that of the minority is heresy. This power is necessary to, and inherent in every Church es- tablishment, 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 individual 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 mal-contents have no alternative but submission or se- cession. • 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 contem- plated by itself) of homogeneous materials, and capable of forming a peace- ful Church. That nothing might be left undone which Christian charity seemed to require, upon a proposition emanating from a member of our party, a com- mittee 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 insuie the pur- poses contemplated by the Constitution," 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 opmiofi, are found to exist," and that "a division will be of vital importance to the best interests of the Redeemer's kingdom" — I cite their language. Minutes of 1837, page 432 — yet they imposed one condition, to which no true lover of the Church could sub- mit: 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 adhered 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 the much abused transactions of 1837, by a studied misnomer, called, the acts of excision, viz. the resolution of the Assembly of that 3'ear, declaring the Synods of the Western Reserve, Utica, Geneva, and Genesee, 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 afflicted the church, but which, being filmed over and disguised, had, hitherto, escaped de- tection. I mean New England Congregationalism, which had insidiously undermined the Presbyterian constitution, and was the fatal source of all these errors in doctrine which afflicted our Church. The New-school pa»ty is emphatically a New England party, it being J 34 PRESBYTERIAN CHURCH CASE. composed, in a great measure, of New Englanders, or their descendants. New England Calvinism, is not Presbyterianism; they are Congrega- tionalists or Independents, and are the lineal or collateral descendants of the English Independents, who under the guidance of Cromwell, drove out Presbyterianism, after Presbyterianism had driven out Episcopacy. Our New England brethren are proverbially shrewd, acute, indefatigable, and ambitious,and are seldom introduced into our institutions without becoming masters 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 projects 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 yearlSOl, which admits Congregationalists, upon certain terms, which I shall pre- sently describe, into the bosom of this Presbyterian institution. The essence of Presbyterianism is a government b}^ ruling elders, and the profession of Calvinistic doctnnes. A Church which is deficient 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 govern- ment. The primary government 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 min- ister 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 con- gregation, and is only amenable to his Presbytery. The Congregational system has no church-session composed of ruling elders, elected and or- dained for life. It wants this essential, and, as we believe-, apostolical feature of Presbyterianism. The government of the Congregational churches, is vested in the whole of the male members of each church. They elect their own ministers and depose them at will. They have no Confession of Faith. Each church is independent of all others, or only connected in associations for mutual advice. In the Presbyterian Church there is, on the contrary, a regular system of connexion and subordina- tion. Above the church-session, and controlling it by appeals and other- wise, is the Presbytery, which has ecclesiastical rule over a territory con- taining several churches. All the ministers, and a representative 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 arc judicatories supe- rior 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 appellate judicatory. Here, gentlemen, let me pause, and request you to observe the effect of MR. HUBBELL'S OPENING. J35 this constitution of things. The delegates to the General Assembly are elected by the Presbyteries, and the delegates who compose the Presby- teries, must be ruling elders from the churches. Of course, it results, that if there be any -thing vitious and unconstitutional in the primary de- legation, 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 laymen, instead of ordained elders to the Presbyteries, these Presbyteries are vitiously constituted, and the dele- gates from such Presbyteries, to the General Assembly, are elected by a , false and unconstitutional constituency. On the apex of tliis 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 Con- gregational form of discipline, and partly of those who hold the Presby- terian 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 comm.unicants, whose business it shall be, to call to account every member of the church who shall conduct himself inconsistently v/ith 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 Pres- bytery; if a Congregationalist,he shall be at liberty to appeal to the body of male communicants of the church: in the former case, the determina- tion of the Presbytery shall be final, unless the church consent to a further appeal to the Synod, or to the General Assembly; and in thellatter case, if the party condemned shall wish for a trial, by a mutual council, the cause shall be referred to such council. And provided, the said stand- ing 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 Presbyter}', as a ruling elder of the Presbyterian Church." Jisseiii. Dig. p. 298. This Plan of Union was adopted at the solicitation of the Association of Connecticut, and it was intended as a temporary provision, to foster the formation of churches on the frontier, "with a view to prevent alienation, and to proniote union and harmony, in those new settlements, which are composed of inhabitants from these bodies." Jlssem. Dig. p. 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 congregations of com- municants 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 unordained lay delegates to the Presby- teries. It takes away from Presbyterians the right of appeal from the decisions of the Presbyteries. It introduces into the body of the Church persons who are not subject to the tribunals of the Church. If the Pres- byterian form of government in its essential features, be of divine origin, (which is the faith of our Church,) then these alterations in its essential 13G PRESBYTERIAN CIUJRCH CASE. structure, would under any circumstances, be without warrant or founda- tion, but considered simply as human institutions, the alterations 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 Presbyteries, and to receive the returns of at least a majority of them in writing, approving thereof.'^ For7n of Gov. Chap. XIL Sect. 6. They will be void too in the consideration of this civil tribunal, as con- flicting with the act of the Legislature of Pennsylvania, incorporating the " Trustees of the General Assembly of the Presbyterian 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 Congre- gational churches, without any intermixture of Presbyterianism, owing to the laxity produced by the Plan of Union, sent their unordained lay de- legates to the Presbyteries, and they were admitted. When controversy called attention to this subject, it was ascertained, 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 hundred and thirty-nine, purely Congregational or mixed. And in the Synods of Utica, Geneva, and Genesee, two fifths of the churches were Congregational or mixed. Here was this vast body of Congregationalists, although denying our standards, rejecting and scoffing at our form of government, and in no wise subject to our discipline, or to our tribunals, yet participating in our counsels, vot- ing upon our questions of faith or doctrine, and actually inflicting upon us the discipline of a code, whose authority upon themselves they utterly denied. They were themselves conscious of the absurdity of their claims, and of our submission to them, and therefore, in the statistical reports which they made to the Assembly, disguised themselves under the name of Presbyterian churches. In the great struggle which was anticipated between the parties thus divided, it was the determination of those whom I represent, that none but Presbyterians shoukl participate, and in this determination 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 question 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 Assem- bly, abrogating the Plan of Union, as unconstitutional and void from its origin, and certain acts disowning the Synods of the Western Reserve, Utica, Genesee and Geneva. Our adversaries have thought fit to represent these acts as tyrannical, because (as they assert) they disfranchised five hundred ministers, five hundred and ninety-nine churches, and sixty thousand communicants. This statement has been so often repeated, and so many changes have been MR. HUBBELL'S OPENmG. I37 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 communicant has been disfranchised by these acts. Our adversaries have also thought fit to represent these act& as a con- demnation without hearing of five hundred ministers, five hundred and ninety-nine churches, and sixty thousand communicants, this is also untrue. These acts were simply requisitions made by the General Assembly, 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 off. So far from dis- franchising 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 nonconformity, the measure would result in the exclusion of but two hundred and sixty-nine churches, or thereabout, that being the esti- mated number of Congregational churches in the bounds of these Synods. The residue of the 599 churches being Presbyterian, were in no substan- tial 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 simpl}^ required of them, to leave one Pres- bytery and go to another most convenient to themselves. As regards the 60,000 communicants, 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 benefits of communion . As regards them, those denounced acts merely require them not to continue to worship in churches, which would not adopt our disci- pline 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 Genesee, which were formed and attached to the body under, and in execution of this Plan of Union be, and are hereby declared to be out of the ecclesiastical connexion of the Pres- byterian Church in the United States of America, and that they are not in form or in fact an intregal 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 mi- nisters, if not one or two Presbyteries, now in connexion with one or more of said Synods, which are strictly Presbyterian in doctrine and or- der, be it therefore furtlier resolved, that all such churches and ministers IS 138 PRESBYTERIAN CHURCH CASE. as wish to unite with us, are hereby directed to apply for admission into those Presbyteries belongino; to our connexion, which are most conve- nient to their respective locations; and that any such Presbytery as afore- said, bein«strictly Presbyterian in doctrine and order, and now in con- nexion 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 mi- nister is injured, unless it be an injury, which entitles him to turn his parricidal Jiand against his Church, that the General Assembly has remo ved his connexion from one Presbytery to another, and that other of his own selection. No Presbyterian church is injured, unless it be an inju- ry to detach them from one Presbytery and annex them to another. I have not heard from our adversaries, how these removals 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 hardship, when the ministers themselves select the Pres- byteries to which they will apply. As regards the Presbyteries in these Synods, which are strictly Presbyterian in doctrine and order, a kindly provision is made for them. But were it otherwise, it would be a mat- ter of indifference, for when the churches and ministers are provided for, all that equity and justice require is fulfilled ; the Presbyteries are mere- ly 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 elec- toral colleges, sending delegates to represent, not their own rights, but those of their constituents. Thus I have demonstrated, that, by these acts, no essential part of the Presbyterian Church was exscinded, except at their own election and by their own obstinacy. These acts do not compel the Presbyteries, churches, and ministers, to continue their con- nexion with us, but merely by requiring from them an act of adhesion, put it in the power of the malcontents, to retire and voluntarily relin- quish the connexion with us. With the same view, the disowning acts contain the following provisions. " That the General Assembly has no intention, by these resolutions, to affect 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 Christians in their re- spective congregations ; but only to declare and determine according to the truth and necessity of the case, and by virtue of the full authority ex- isting 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 de- claration 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, Presbyteries, and churches, and MR. HUBBELL'S OPENING. , 139 expurge them of Congregationalism, and thus reduce them to a fragmen- tary 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 Synods, Presbyteries, and churches. And here let me observe, that we are in the habit of calling our Church the Presbyterian 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 conformed 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 w^e have tyrannized over them. The other untrue representation, with which our adversaries have en- deavoured to excite passion and prejudice against us, is, that we have condemned five hundred and ninety-nine churches, five hundred and nine ministers, and sixty thousand communicants without a trial, or an op- portunity of defence. I have just demonstrated that it is only the Con- gregational portion of these five hundred and ninety-nine churches, and sixty thousand communicants which has been affected by these acts. This action of the General Assembly to expurgate Congregationalism, bears no resemblance to a condemnation, and it would have been im- possible to have subjected the obnoxious churches to a trial. Try them! for what? For being Congregational in their order? That certainly is no crime. Try them! they do not acknowledge your jurisdiction, they participate in governing you by sending their lay delegates into your ju- dicatories, but they are not subject to your tribunals. The only tribunal to which they are subject by the Plan of Union is their own congrega- tion! 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 be- long. I3ut perhaps the Presbyteries must be tried for admitting Con- gregational delegates. Until the Plan of Union was abrogated, this was no offence, the Presbyteries were, by the existing laws, bound to receive these delegates. It is only then by continuing to admit such delegates, after the abrogation of that Plan, that they would become obnoxious to censure; in other words, the abrogation of the Plan of Union made it necessary for tlic Presbyteries to purify themselves of Congregationalism, and this is substantially the whole effect 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 Assembly has unquestionably the power to create Presbyteries and Sy- nods: 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 repeated- ly exercised without question. If the General Assembly has power for the convenience of tlie^Church, to erect Presbyteries and Synods, she has 140 PRESBYTERIAN CHURCH CASE. necessarily the power to dissolve or destroy them, when the like conve- nience requires it. Had the General Assembly dissolved those Synods and Presbyteries, and declared 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 hearino-. How does our proceeding differ from this. I have shown that we have substantially united all the Presbyterian churches and ministers to the adjacent Presfoyteries, we have, however, excluded the Congrega- tionalists; 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 ar- rangement, may refuse on the ground of its invalidity and unsoundness. This is substantially what the General Assembly has .done. 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 arrangement, 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, deliberative 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 vitious 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 approval of the Presbyteries by their long acquiescence. An unconstitutional statute re- maining 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 churches have grown up insidiously and in disguise, and until re- cently were unknown to the great majority of the Presbyteries. Un- der such circumstances there can be no acquiescence. Had these churches represented themselves in the statistical reports which they presented yearly to the General Assembh^, as Congregational, we should have yearly acquiesced ; but when in these reports 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 Presbyteri- an 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 institu- MR. HUBBELL'S OPENING. J 41 tion ; the action or acquiescence of the Presbyteries may change the con- stitutional rules, 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 As- sembly 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 accounted with things that were and are not. For by the Constitution of this Church, the General As- there was no house to appeal to. Then he took his seat ; and the clerk proceeded to report the roll, as far as it had been com- pleted. Dr. Mason said, that he held in his hand the commissions of cer- tain commissioners, which he wished added to the roll. The Moderator asked him, if he had presented them to the clerks ; and whether they came from Presbyteries in connexion with the Presbyterian Church at , the close of the sessions of the Assembly of 1837. Dr. Mason replied, that they were from Presbyteries within the bounds of the Synods of Uti- ca, Geneva, Genesee, and the Western Reserve. The Moderator told ^im, that, at that time, his motion was out of order. Dr. Mason said, that, with all respect, he must appeal from this decision. The Moderator told him, he was out of order. Mr. Squier then addressed the Moderator. He said, that his commission had been tendered to the clerks,' and refused; and that he now presented it there, and claimed his seat, as a member of the Assembly. The Moderator inquired from what Presbytery he came. He answered, from the Presbytery of Geneva. The Moderator replied, " We do not know you, sir." Mr. Cleaveland then rose, and commenced reading a paper. The contents I could not hear, more than the words, " having taken advice of counsel learned in the law." I heard him say also, that it was necessary to organize the Assembly in the shortest time possible. I could not hear all. There were incessant calls to order, from the Moderator and others; and, although I had determined to be still, I found myself saying, in an under tone, "I hope we shall have order." Some of the brethren extended their hands, and said, "Hush! Hush!" I could see Mr. Cleaveland from where I stood ; and I heard him say, "I move that Dr. Bem.an take the chair." I then heard a vote of, "Aye!" very loud, and one shrieking voice above the rest. 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 either of the questions, and no negative votes. I did not hear the motion for the appointment of Dr. Fisher as Moderator. I did not know, until the next day, that he had been appointed Moderator, but supposed that Dr. Beman was presid- ing. I think I did hear the motion to adjourn. I heard no prayer. I may be mistaken in regard to the motion for adjournment, for a proclama- tion of the adjournment was made at the different doors. I don't know who made this proclamation. The whole of these movements were very rapid. I cannot well judge how long a time they consumed, but should say, that it was not more than five minutes, from the time Mr. Cleave- land rose, until they were out of the house. It may have been longer, but every thing was done as rapidly as possible. There was much confu- sion in the house. From the time when the motion was made, that Dr. Beman should take the chair, there were a number of persons standing, and there was a rush into the aisle. Most of these remained standing. My impression was, that I heard some aj'es from the gallery. The place that I occupied, was, I think, one stej) above the floor. I was obliged to stand, it being painful for me to sit. It was on this account, that I chose that situation, which IjDccupied during most of the time that the Genera! 168 PRESBYTERIAN CHURCH CASE, Assembly was in session. Those who retired from the house, went out in a crowded manner, very rapidly; and there was a great press, whether by members of the body, or other persons, I cannot say. There was a great dust round the doors while they were going out, and afterwards. There was a rising in the gallery, and great interest manifested. There may have been a noise there; indeed, there must have been, from the per- sons who occupied it rising from their seats, coming forward and looking over. I suppose, the Old-school party occupied the seats around where I was. We had occupied the building from nine o'clock in the morning, for prayer and consultation, and remained in the seats which we had then taken, uatil 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 different individuals among them, as well as from the Moderator. Cross-examined by Mr. Meredith. — I was ordained by the Associate Reformed Presbytery of New York, in April 1818. . I came into connex- ion with the General Assembly by the Union of 1822, but still remained in that Presbytery, the organization of which was not changed. I was installed as Pastor of the First Presbyterian Church in the city of New York, in 1826. I was not re-ordained, on entering into connexion with the General Assembly. The Associate Reformed Church was a Presby- terian Church — We thought it as much so, as the General Assembly itself. It had the same Confession of Faith, and the same Catechisms, with the Presbyterian Church. One condition of the union, and of our Presby- tery's coming into it, was, that we should retain our distinct organization as a Presbytery. The Forms of Government of the two Churches were the same in substance, though a little different in phraseology ; but the Westminster Confession of Faith and Catechisms are the standards of both. 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 Gene- ral Assembly. There is a directory in the book of the Associate Re- formed Church. I did not continue to use this directory. I have used the directory of the General Assembly since I was installed. I have not changed my doctrinal views at all, but continue to refer to the same Con- fession of Faith, and Catechisms, because they are the same in both deno- minations. Mr. Meredith, (handing to the witness the book of the Associate Re- formed Church.) Look if you please, if that is the act of adoption of the Confession of Faith, by the Associate Reformed Church. Dr. Phillips. There was subsequently, I think, an alteration in that part which relates to the civil magistrates. I think this is not the Con- fession now used ; but the doctrines are the same : indeed the Confession is the same, with the difference mentioned. I am not prepared to an- swer whether this is the act of adoption. The Confession was subse- quently changed in the particular which I have noticed : perhaps there was another act of adoption at that time. Mr. Stacy G. Potts — sworn. I reside in Trenton, New Jersey. I happened to be in Philadelphia, on the day of the opening of the Assem- bly, in May, 1S38. I attended at the church in Ranstead Court. Hav- ing arrived that morning, 1 went directly from the steamboat to the church, about half past ten o'clock. My seat was in one of the small TESTIMONY FOR THE RESPONDENTS. yQQ pews toward Fourth-street. I entered, I think, at the east door, went a little beyond the centre of the church, and sat down at some distance from the Moderator's chair. Until the close of the religious exercises, every thing was quiet; and then the Moderator took his place on the desk below the pulpit, and proceeded to organize the Assembly. At this time, a gentleman, whom I did not know, rose and made some state- ment; but I did not hear what he said, for, at that moment, the people around rose, and there was a little confusion and noise about me. This pas- sed over, the gentleman sat down, and I saw the clerk, as I supposed, and heard him call over the roll of the Assembly. Immediately after he had called it, there was another interruption. Some one, whom I did not know, rose, and the noise commenced again. From that time, the confusion around me increased, persons went out into the aisle, and press ed near the place where these proceedings were going on. I was unable, sitting in the pew, to see any thing, and finding that the scene was one of interest, rose up, but just then the persons around began to get upon the seats of the pews, and still entirely intercepted my view. I made .no further effort to see, but remained standing in my place. The first thing that I distinctly understood, was a vote of aye, very loud, and ap- parently coming from many parts of the house. Some about me said "Aye!" very loudly. I thought some voices from the galleries, which I supposed were female voices, mingled with the rest. My attention was drawn to the galleries, because I had noticed that ladies exclusively sat there. They were quiet when I looked up, but manifested a visible interest in the proceeding, and there was a slight movement of their hands. I did not know at the moment wdiat this " Aye!" was for. It was impossible to hear, where I stood, a syllable spoken in ordinary lan- guage. I did not know one person in the vicinity of the place where I stood, and cannot say that any one who was not a member of the Assem- bly voted, aye. Two or three votes of this kind were all that I distinct- ly heard. There were two or three ayes at short intervals, but I heard no question proposed the whole time. I think that, on one occasion, I heard a few scattering noes — whether on the first, or one of the subse- quent votes, I cannot tell. The scene took place, I think, in about the centre of the church. I was ii> one of the wall pews, a little further towards Market street. The ends of those pews are against the wall. The next scene which attracted my attention, was a general movement towards the doors, and in a very short time a mass of persons had gone out. Immediately, a person presented himself at one of the doors, and made proclamation, tiiat the General Assembly had adjourned. He then proceed- ed to the second door, and there made the same proclamation. I think I saw the person at one of the doors. At the third door also the same procla- mation was made, and the person who made it not doing it the first time to his satisfaction, being a little hoarse, cleared his throat and repeated it very loudly. I heard no motion made in regard to adjournment. Cross-examined. I am a member of an Old-school church in Tren- ton. Court adjourned. 22 170 PRESBYTERIAN CHURCH CASE. WEDNESDAY AFTERNOON— 4 o'clock. Br. William Harris — sivoryi. I attended in the church on Ranstead Court, on the ^. 7th of May, 1S3S, as a spectator. I stood in the west aisle, near the south-west corner of the church, and was immediately in front of Dr. PhilHps, 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 the roll, but the clerk did not begin immedi- ately, and a gentleman rose, saying that he had a resolution to offer. He premised his remarks by "Mr. Moderator." I was not personally ac- quainted with the gentleman, but learned from a by-stander, that it was Dr. Patton. The Moderator said, "Sir, you are out of order at present.'^ The gentleman said, '•! appeal from your jadgment, 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 answered, I think, that they were from the Synods of Utica, Geneva, Genesee, 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 declared the appeal also out of order. A third person, who, I learned, was Mr. Squier, then rose. He said he had a commission to offer from the Presbytery of Ge- neva, which had been rejected by the clerks. The Moderator asked him, whether that Presbytery was in the Synod of Geneva. Mr. Squier an- swered that it was. The Moderator replied, " Sir, we do not know you." Afterwards a fourth gentleman arose, whom I knew to be Mr. Cleaveland: I had seen him the year before in the General Assembly. He was in a diagonal direction from me, and so far distant, that I could not hear 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 to read. 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 general " Aye!" in the part of the house where Mr. Cleaveland was. After that I 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 ques- tion, or any other, reversed. I did not hear any negative votes. It was a confused, tumultuous scene. The tumult arose from the cries of "Aye!" in an unusually loud voice, from persons standing on the seats, and from the whole Assembly being in disorder. Nearly all the Old-school mem- bers were sitting in their seats: there were a few standing 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. TESTIMONY FOR THE RESPONDENTS, ^71 Cross-examined by Mr. Randall. I am an elder in the Tenth Pres- byterian Church, in this city — Mr. Boardman's church. Rev. Dr. Satniiel B. Wilson — sworn, ivilh the uplifted hand. I at- tended the Assembly of 1838, as a commissioner. I was in the church of Ranstead Court, on the day, and at the time, of the organization of the Assembly. I sat on the front range of seats, on the west side of the mid- dle aisle. Sitting, as I was, with my face towards the Moderator, Mr. Cleaveland was behind me, and I did not see him. I heard a gentleman, whom I afterwards understood to be Mr. Cleaveland, either speaking or reading. When he commenced, I could hear, pretty distinctly, some of his first words. Very soon the Moderator called him to order. He per- severed ; and the call to order was repeated, perhaps more than once. A Hiember, who sat near me, rose, and also called him to order. That pro- duced a confusion, and prevented me from hearing distinctly, and in con- tinuity, all that was uttered by Mr. Cleaveland. It is, perhaps, proper that 1 should explain, now, another reason why I did not hear. At times, after the calls to order, Mr. Cleaveland having persevered, there was a con- siderable commotion in that part of the house where he stood. Some were standing on the floor, and some higher; altogether, they made a good deal of noise. I do not think I can state any distinct proposition made by Mr. Cleaveland. There was a kind of confused statement, but I am not able to say that any thing distinct and definite, so far as I heard, was brought before my mind. It appeared, however, from what followed, that something or other was proposed, for I heard a distinct vote — a num- ber of unusually loud ayes, besides the one particularl}^ alluded to by others. I heard no reversal of the question; and do not remember any voice saying, " No !" I cannot say, that I endeavoured to hear Mr, Cleave • land, though, if I had, I am confident I could not have heard. Mr Hubbell. Why did you not vote? Mr. Meredith. We object to the question. The witness's reasons for not voting are of no importance. Mr. Hubbell. On what grounds do you object? I should like to ar- gue the point. Judge Rogers. Let us hear the grounds of your objection, Mr. Mere- dith. Mr. Meredith. The question asks for the witness's motives in a par- ticular case, which I suppose are not evidence. Judge Rogers. If the object is to show the fact that the witness did not hear, the question is competent. Mr. Hubbell. I asked the witness whether he had voted. He said *'No." I now ask him why he did not vote. The point in dispute is, whether we voted or not. They say, that being silent, we must be con- sidered as acquiescing, as voting in the affirmative. Now it is certainly- competent for us to bring up every one of the Old-school party, to show that they did not intend to acquiesce; to exclude this conclusion of our opponents. We desire to prove that these individuals did not intend either to vote affirmatively, or to cast away their votes; that the reason of their silence was, that they considered the whole proceeding irregular and abnormal. Mr. Ingersoll. There may have been a moral or physical inability to vote — some circumstances that prevented the witness's voting. This, 172 PRESBYTERIAN CHURCH CASE. perhaps, is the true issue. If there was either a bodily or mental inca- pacity, or if he refrained from voting because the question was not heard, he cannot be supposed to have assented to the proceedini^. Again, a member who does not vote is sometimes recorded as a non liquet. We wish to ascertain whether this witness is to be treated as a non liquet. We ask for the reason of his not voting. It may be that it was owing to some sort of incapacity. Mr. Randall. If the witness be questioned merely as to his ability, or as to any obstruction of his hearing, we make no objection. Judge Rogers. You may ask, whether tJie witness's not voting was because no opportunity was given, or because he did not wish to vote. Mr. Preston. I should be happy to understand the full extent of your Honour's decision. The main point on which our opponents rely, is the intendment of law, that persons who are silent vote in a particular way. This intendment must prevail, unless we show the contrary, by demonstrating the exact state of the facts. Judge Rogers. I do not think that that intendment of law can be re- butted. If a motion be put and there are ten ayes, and but one no, it is carried. Mr. Preston. Perhaps the parties can show that the motion was not put either in fact or in law. Judge Rogers. I do not think that is the question here. Mr. Ingersoll. I will put the inquiry in this form: Were you pre- vented by any circumstance from voting? Dr. Wilson. I 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 mo- tion made — not by the chair, but by some person out of the chair — he would have voted ? Mr. Meredith. We object to the question as presenting an entirely suppositious case. Judge Rogers. You must confine the inquir}'' to what was actually done. Examination continued. My back was towards Mr. Cleaveland, when I first heard him speak, but I naturally turned, while he was speak- ing, to get a view of him, and hear what was said. When I turned, I think he had a paper in his hand. I thought he did not hold it very firmly, and, partly from his agitation, and partly from 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 sav that I heard any thing more, distinctly, the confusion was so great. I can say only, that there was some kind of voting, but I don't know upon what questions: as to this, I was entirely in the dark. I didn't know that Dr. Fisher had been 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 by Mr. Meredith. — I am a minister, and was a mem- TESTIMONY FOR THE RESPONDENTS. I73 ber of the Assembly of 183vS. I am considered as one of the Old-school party. Rev. Dr. Samuel Miller — sworn, ivilh the uplifted hand. — I was present at the organization of the Assembly of 1838, but was not a com- missioner. I sat 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, and held 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 a great deal of difficulty in proceeding. The contents of the paper, so far as I heard them, were, that they had been advised by counsel learned in the law, that at that time and place, they must organize a new body, and that they should proceed, in as few words, and as short a time, with as little discourtesy as possible, to do so; and he offered a resolution, inviting Dr. Beman to take the chair. That is the amount of what I heard. Then there was a great deal of tumult and disorder, and calls to order. What Mr. Cleaveland said appeared to be by no means distinctly uttered. With the exception of a few calls to order, all the tumult was in that part of the house, where Mr. Cleaveland was. I heard no vocal utterance in the other part, excepting the calls to order. The nays were not called for on either of Mr. Cleaveland's mo- tions. After moving, v\'ithout reversing the question, that Dr. Beman should take the chair, he made, I think, a similar motion, also without re- versing it, that Dr. Mason and Mr. Gilbert should be clerks. After these resolutions had passed — that is, after the ayes, which came principally from that part of the house, had been called for. Dr. Beman immediately stepped out into the aisle, went down the aisle, and appeared to place himself in the situation of a presiding officer. The whole body of those engaged in these proceedings moved down the aisle, near the door oppo- site to the pulpit. I afterwards beared a confused murmur, but no dis- tinct articulate sound: what words were spoken, or with what result, after Dr. Beman took the chair, I am wholly unable to testify, from my own knowledge. It is not easy to define, exactly, the limits of the space oc- cupied by the Old-school party; but the great body of them, occupied the part where I stood, the corresponding part, on the right side of the Mode- rator, and the front pews. I think I was standing in the midst of that body. I heard no vote from this part of the house. So far as I could see and hear, not a single Old-school man, in the whole house, voted. I heard no negative votes on any of the motions. When the vote " Aye!" was given, there was a character about it, that convinced me, that a num- ber in the gallery had voted. There were sharp, shrill cries, which I could not believe came from considerate, dignified, and serious men. I took for granted that they came from the gallery, and from the boys about. This however, was my own inference. There was certainly a character about the ayes, which I had been altogether unaccustomed to. It is diffi- cult to make an estimate of the length of tim.e between Mr. Cleaveland's rising, and the adjournment of those who left the house, the whole affair was so thrilling; but I suppose it was not more than five or six minutes. I did not know that Dr. Fisher was Moderator until the next day. I was not at all sensible of that part of the operation. Examined by Mr. Preston. I cannot say with confidence, how often the Assembly has been held in that church; I should think ten or fifteen 174 PRESBYTERIAN CHURCH CASE. times; 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 considered the proper man to be called upon, to get a chair for any individual that needed one, and he always did it. Cross-examined by Mr. Meredith. I have no pastoral charge, but am a professor in the Theological Seminary at Princeton. I remained the whole time in the same place. I do not recollect crossing over to speak to the Moderator, and am persuaded that I did not. I am entirely confi- dent, that I did not pass hastily to the Moderator, and ask him not to per- mit them to be organized: no such thing occurred. Dr. Wilson — re-called. 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 very words. Cross-examined by Mr. Randall. As soon as the Committee of Commissions had made their report, the Moderator stated, that if any commissioners had not had an opportunity of presenting their commis- sions, now was the time to present them. It was immediately before Dr. Mason rose, that he had made this announcement. He had called for commissions that had not been presented, but Dr. Mason, in his explana- tion, said, that those he offered had been rejected by the Committee of Commissions. The kin-d which he offered was not that which was called for. By Mr. Meredith. The Moderator called for commissions that had not been presented. I will not be positive that he did not say, those that had not been enrolled. I believe, that by this, the same thing would have been understood. I cannot be sure, but I think his words were, those that had not been presented to the clerks, or to the Committee of Commissions. I was not a member of the committee to prepare a minute of these trans- actions. I presume that I approved of the minute, but I have no distinct recollection of its phraseology. Rev. Isaac V. Brown — sworn, with the uplifted hand. I am a cler- gyman of the Presbyterian Church. I was not a commissioner to the General Assembly of 1S3S, but I attended at its organization- I was on the north-east side of the house, in the rear of Mr. Cleaveland, and within about five feet of that gentleman, as nearly as I could estimate. There was one pew between his and mine. Dr. Beecher was at the end of the pew between us, and Mr. Cleaveland sat next in front of him, about half-a-dozen pews from the Moderator. Mr. Cleaveland rose with a paper in his hand. At his first rising, his face was towards the Moderator, and his back to me. I did not hear him say, "Mr. Moderator." When he had commenced reading, he turned a little round from the chair, as if addressing the persons to his right, and thus gave me an opportunity to see the hand-writing of the paper, and to hear, distinctly, what he uttered. I can recollect, perfectly, the main topics of his discourse, and nearly in their order. He commenced by declaring, we are about to form a new body; he expressed an apology for the interruption, and wished not to be considered discourteous, as they would do it "in the fewest words, and the shortest time possible." These are his own words. He declared, that what they were about to do, was in pursuance of the advice of counsel TESTIMONY FOR THE RESPONDENTS. I75 eminent, or learned, or both — one or the other form of expression he cer- tainly used. He stated, that their choosing that time and place, was in order to obtain certain legal advantages. These were his words as he uttered them, and that is about the substance of what I recollect. Then immediately, and hastily, he moved that Dr. Beman should take the chair, and instantly put the question. There was no reversal of the ques- tion: I am very confident I heard nothing like it. There was not time, between the first and second motion, to admit of it. When he moved that Dr. Beman should take the chair, there was a very vociferous response of "Aye!" in certain parts of the house. I think there were voices from the gallery, and voices that clearly manifested, that they did not belong to members of the General Assembly. They were shrill and •squeaking, more like female voices, and came 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. In the rear, there was a very promiscuous assembly, of all sexes, and all ages. There were, however, a few gentlemen, occu- pying the seats immediately in my rear, whose faces I did not know. I heard no negative voices at all. After this a motion was made for the appointment of clerks. I heard the name of Mr. 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 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 v^^as, to produce 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 previous operations, of about twenty-five feet. I endeavoured particularly to ascertain the distance, and, without success, what they were doing. I rose up, and got on the seat, to discover if possible, what the seceding 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 out- skirts, and near the east door — a notice, that the body which had recently been 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 in regard 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 pre- sent. I reside at Lawrenceville, in New Jersey. I am estimated a mem- ber of the Old-school party. Rev. Nathan G. White — sivorn, ivith the uplifted hand. I was a delegate to the General Assembly of 1S3S. I am a clergyman settled in M'Connelsburgh, in Carlisle Presbytery, of which I am a member. I attended at the organization of the General Assembly, on the 17th of May. I was in the eastern part of the church, about four pews from the Mod^ator, on the eastern side of the middle aisle, and J76 PRESBYTERIAN CHURCH CASE. was next the door of the pew openin<2; into that aisle, Mr. Cleaveland was two pews behind me. He rose with a paper in his hand, and after stating something, read, or appeared to read, what was in the paper. I supposed him to have uttered about one sentence, before I heard what he was saying: about a moment, of time had elapsed. He then stated, "as we have been advised by counsel learned in the law, that a proper and constitutional General Assembly, cannot 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 " discourteous," and '' short time;" but at that moment there was considerable noise. I thought that, perhaps he did not read all that was on the paper, because, although he spoke words loud enough for me to hear, they were not continuously uttered, so as to form a sentence. At this time, he was turning his face away towards the middle aisle, and therefore away from me. He then made a motion that Dr. Beman should take the chair, and just as he made it, a number of persons near and around him arose, and, immediately, I heard a very loud " Aye!" I did not hear the motion for Dr. Beman to take the chair reversed. I heard no negative votes on it. 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. When I say it was not, I mean, I heard no reversal. Then, for a moment or so, there was a low murmuring of voices, after which I heard again, a very loud " Aye!" Soon after this, those persons who were standing in the aisle, and on the seats of the pews, and even on the backs of the pews, as some of them were, com- menced moving towards the door and out of the house, in a very hurried manner. When, as I suppose, about one third or one half of these had gone out, I heard a loud cry at the door, announcing, that the General Assembly of the Presbyterian Church had adjourned, to meet in the First Presbyterian Church, on Washington Square. This was repeated 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 the north-western direc- tion from me. I had now turned round, with my face toward Mr. Cleave- land. 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 make a motion; that is, he held certain papers in his hand, and said he wished to offer a resolution. Dr. Elliott said, that he was out of order, because 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 to be taken without debate. The Moderator decided that he was out of order. Then Dr. Patton said that he must appeal from the decision. The Moderator 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 Mr. Krebs reported his roll. As soon as he had done with the report, the Moderator stated, that if there were any commissioners from churches within our bounds, who had not vet had an opportunity of presenting their commissions to the TESTIMONY FOR THE RESPONDENTS. 177 clerks, now was the time to present them. Then Dr. Mason of New York arose, saying that he held certain commissions. He had a bundle of papers in his hand, which he held out, and he said, they had been re- fused 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 commissioners were from. Dr. Mason answered, that they were from the four Synods — naming them — of Utica, Geneva, Genesee, and the Western Reserve. The Moderator replied, you are out of order at this time, as the call was made for com- missions of a different character. Cross examined by Mr. Meredith. I am attached to what is deno- minated the Old-school party. . Mr.. Samuel P. Wilson — sworn. lama theological student in the Princeton Seminary. I belong to the Old-school party, if worthy of that honour. I attended at the organization of the Assembly of 1838, as a spectator. I had a companion with me — Mr. Twitchell. He is from the same place with myself. When I first went into the church, I pass- ed through the recess into the grave-yard, and entering by the side door, took my seat on the side aisle, near the door. After a few mo- ments, I thought that I could see better from the gallery, on the left hand of the pulpit : I went into that part of the gallery, and seated myself there. My companion and I went up the steps together, or, at any rate, we sat together. I remember the motion made by Mr. Cleaveland. After Dr. Ma.son had taken his seat, Mr. Cleaveland rose, holding in his hand a paper, and, with his face towards the Moderator, commenced reading, as I supposed, from the paper: he certainly looked at the paper. During the reading he changed his position, so that his side was towards the Mo- derator, and his face nearly towards me. At the conclusion of the paper he moved that Dr. Beman should take the chair. I did not hear the mo- tion seconded, but took it for granted it was seconded, 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 vvas, 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 impression was very strong, but I will say, merely, I did not hear it. The nextAhing that I heard, after the gentle- man, (whom I subsequently learned was Mr. Cleaveland,) had put that motion, was a motion, that Dr. Mason, and some one else should be clerks. He put this motion, I thought at the time, and I 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 as it was propounded at first. I heard the response of "Aye!" but no reversal and not any noes. There was no change in Mr. Cleaveland's position 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 gentle- man next me informed me 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 1 don't know : I could see his lips move, but could not hear what he was saying. There was considerable confusion by this time in the house. The confusion at first arose from the noise ; but after 23 178 PRESBYTERIAN CHURCH CASE. Dr. Beman took his position, it was rather a buzz, and a confusion of voices, than any loud, clamorqus noise. The next thing I was aware of, was a general motion of those persons engaged in these proceedings, and of a number of the spectators, towards the north door. After the great mass of them had reached the door, and passed through it, 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 — 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. When the Moderator called for the reading of the roll by the clerk, Dr. Patton rose. 1 cannot tell which rose first, he or the clerk, who was under me. He said, that he had certain resolutions, touching the roll, which he wished to offer. The Moderator 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 with- out debate. The Moderator said, he was out of order. He appealed to the house. The Moderator told him the appeal was out of order. Dr. Patton then sat down, and the clerk proceeded with his roll and finished it. The Moderator stated, that those whose names had been read by the clerks were to be considered as members of the Assembly; also, that if there were any other persons, who had not yet presented their commis- sions to the clerks, now was the time to present them. Upon that, a gen- tleman, whom 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 stated, 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 replied, that they were from Presbyte- ries within the bounds of the Synods of Geneva, Genesee, Utica, and the Western Reserve. The Moderator then declared that they could not be received, and were out of order. Dr. Mason said, that, with re- spect for the Chair, he must appeal. The Moderator told him, the appeal was out of order. Dr. Mason then said, "I tender these commissions, and demand 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. At this time, the Mo- derator repeated his call for commissions; and, at that moment, Mr. Squier, as I was told it was, rose and stated, that he had a commission from the Presbytery of Geneva, which he had presented to the clerks, and which they had rejected or refused. He demanded a seat on that 'floor, and that his name should be put on the roll. Cross-examined hy Mr. Meredith. This was a period of vacation at the seminary, and quite a number of the students were in the city. Some of the professors were here, but not a majority of them, I think. Mr. Walter Lowrie — sworn, with the uplifted hand. I attended at the organization of the Assembly of 1838. I was in the seat immediately adjoining the door leading into the grave-yard, on the left of the pulpit, looking from it. I was in the south-west corner of the church, in a wall pew — a pew running along the wall. After the General Assembly had TESTIMONY FOR THE RESPONDENTS. 179 been opened with prayer, it was announced by the Moderator, that the first business was the report of the Committee on Commissions; and he called for the report. Dr. Patton arose, saying, that he had a motion to submit: he did not state what the motion was, but he held a paper in his hand, which, I presume, contained the motion. The Moderator told him, he was out of order; that the first business was the report on the roll. Dr. Patton said that his resolution had relation to the roll. The Mode- rator replied, that the first business was the hearing of the roll; that he was out of order at that time. Dr. Patton said, he must, respectfully, ap- peal from that decision to the house. The Moderator said, 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, and the Moderator di- rected the clerks to proceed. Mr. Krebs then read a considerable time, until he ceased reading. After this, the Moderator announced, that if there were any commissioners present, who had not handed their com- missions to the clerks, now they would have an opportunity of doing so. A gentleman, whom I afterwards understood to be Dr. Mason, rose, at, or "about that time, and stated that he held a number of commissions from certain Presbyteries, perhaps naming them as Presbyteries in the four Synods of Utica, Geneva, Genesee, and the Western Reserve; that they had been pesented to the clerks, but not received; and that he now tendered them to the chair. The Moderator said that he was not in or- der 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, respect- fully, take an appeal from this decision. The Moderator 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, wfis the Rev. Mr. Squier, saying, that he had presented his commis- sion to the clerks, and that they had refused it. Whether he rose before, or after Dr. Mason, I cannot tell. He tendered the commission, and claimed a seat as a member of that house, from the Presbytery of Genesee. The Moderator asked him, if that Presbytery belonged to the Synod of Genesee. He said, that it did. The Moderator replied, " Sir, we do not know you." It was the Synod of Geneva, not Genesee. I confound the two words frequently, because I do not know the locality of the two Synods, except from indistinct recollection. I 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 any appearance of disorder. Thus, I l|ad a full view of Mr. Cleaveland. He had a paper in his hand, and, apparently, he commenced by reading. I heard but about three or four lines of the paper The first, I did not hear; but I distinguished these words: "We have been advised by coun- sel 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 proceed 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 could hear nothing more, dis- tinctly, partly on account of the noise, partly from his hurried enuncia- tion—he was in a great hurry at first, and the calls to order seemed tCK 180 PRESBYTERIAN CHURCH CASE, 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 that neighbourhood and behind him, with a very emphatic " Aye!" He said, " I move that Dr. Beman take the chair." The question was then propounded: " Those in the affirma- tive will say, aye." I did not hear the reverse of that question ; and I would say, and say distinctly, that the reverse was not put. It might have been put, in a lower tone of voice, and I have not heard it from my position. But the proceedings which immediately followed did not leave time for it to be put, even in a whisper. The want of time is sufficient proof; else I would not swear to a negative. 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 for eleven years I was Secretary of the latter 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 ; and 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 — for others were put ; but what they were, or who put them, I did not hear. I thought, that the one who put them had moved nearer the door, but persons rose between, and shut him out from my view. I heard no ne- gative responses ; and all the votes I did hear were around Mr. Cleave- land. I don't know what testimony has been before given ; I have just come into the court-room to day. During the time these questions were passing, a member arose, 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, with which I stayed, that Dr. Beman had been chosen Moderator. They said, the next day, that it was Dr. Fisher. I told them, that then any man might be mistaken, for I was looking on, and had seen nothing of 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 mem- bers, and took any seat I found vacant. Cross-examined by Mr. Wood. I was not a member of the Assembly that year ; but I was the year before. I hold the office of Corresponding Secretary of the Board of Foreign Missions, of the Presbyterian Church. Be-examined by Mr. Ingersoll. I was elected, by the Board, to that place, in the fall of 1837, the time when the Board commenced its exist- ence. TESTIMONY FOR THE RESPONDENTS. J 81 By Mr. Preston. I was elected, before I resigned my place in the Senate, Corresponding Secretary of the Western Foreign Missionary So- ciety. That was transferred to the General Assembly in 1837. THURSDAY MORNING, March 14th— 10 o'clock. Br. Phillips — re-called. I was Moderator of the Assembly in 1835. Dr. Witherspoon was a member of the Assembly of 1838, and was pre- sent, I believe. He had been Moderator in 1836. , Mr. Jerome Twitchell — sworn, with the uplifted hand. I am a theological student at Princeton. I went there from the Miami Univer- sity, of Oxford, in Ohio. I am a member of the Second Presbyterian Church, in Cincinnati, under Dr. Beecher. I attended at the organization of the Assembly in 1838. I came into the building, and, in the first place, took a seat on the right hand side of the aisle, entering by the door from the grave-yard. I found several vacant seats. This was near eleven o'clock, and Dr. Elliott was then in the pulpit. I was there before the sermon had commenced. After I had taken this first seat, seeing several ladies standing, I moved farther back. Soon after, I saw a gentleman standing. I beckoned to him to take my seat, and walking forward, went up into the gallery. Mr, Samuel Wilson was with me. I saw the Moderator come down from the pulpit, and open the Assembly with prayer; after which he stated, that the next business was the reading of the roll by the clerks. Upon this Dr. Patton rose, to offer some resolu- tions which were in his hand. The Moderator decided that he was out of order. Dr. Patton said, that he wished to read them, and have them passed upon without remark. The Moderator told him, that the next business was the reading of the roll. Dr. Patton replied, that his resolu- tion had reference to the roll. The Moderator pronounced him out of order. He appealed. The Moderator said, his appeal was out of order, as the house was not yet organized. Then Dr. Patton sat down. After- wards an individual, whom, as I learned, was Dr. Mason, arose, with a bundle of papers in his hand. Before this, however, a declaration had been made by the Moderator, that if there were any more commissions, which had not been presented, now was the time for them to be handed in. Dr. Mason then rose, and said that the commissions, which he held, had been presented to the clerks, and that they had refused to enrol the names; and he moved, that the roll should be completed, by the addition of these names. The Moderator asked, whether these commissions were from Presbyteries in connexion with the General Assembly, at the close of its session in 1837. Dr. Mason answered, that they were from Pres- byteries, within the bounds of the Synods of Utica, Geneva, Genesee, and the Western Reserve. The Moderator said, " We cannot receive them at this time." After this Dr. Mason took his seat. A gentleman then rose, on the opposite side of the aisle, whose name I have since learned. He said that he had presented his commission to the clerks, and that they had refused it; that he now demanded his seat in the General Assembly. He said that he was from the Presbytery of Geneva. The Moderator asked him, if that Presbytery was within the bounds of the Synod of Geneva. He answered, that it was. The Moderator said, " We do not know you, Sir;" upon that he took his seat. Mr. Cleaveland then rose, 182 PRESBYTERIAN CHURCH CASE. holding a paper in his hand, from which he appeared to read. The first part I heard with tolerable distinctness: the last part, not at all. The first part was, " Whereas certain individuals have been excluded from their rights as Presbyterians, their commissions having been refused by the clerks, and we have been advised by counsel learned in the law, that, at this time, and this only, can a constitutional organization of the Assembly take place, I hope that " Then the noise prevented me from hearing, but he used a word seeming like " discourteous." Next, I heard a name, something like B., and I supposed it was Dr. Beecher, who was sitting at the side of Mr. Cleaveland. Then, the nexti.hing that I distinctly heard, was a very loud vote on the affirmative of some question, which I did not hear. The next thing I saw, for I could not hear — except that I heard several calls to order, and some one saying, " I hope we shall have order," with the Moderator's distinct response, that the confusion would soon be over — that he had called order, and tried to preserve order, and that he hoped the members would keep their seats — the next thing I saw, was several individuals going into the aisle, from the pews in which the three gentlemen had arisen, and the surrounding ones. In several parts of the house there were individuals standing up, and there was a rustling of dresses, and a noise occasioned by persons rising, in the gallery. Most of those in the gallery rose. These, whom I have mentioned, having gone into the aisle, I heard in close succession, after they had gone part of the way up the aisle, several affirmative responses, apparently to questions which I did not hear. Soon, a great part of the audience in the gallery, and on the floor below — ladies and others — I could not then distinguish the members on the floor — left the house. At this time there was a general clapping, and some hissing, which I supposed to proceed from the audience, rather than the actors in the scene. After most had left the church, Mr. Edward Beecher came back to the door, and proclaimed, in an audible voice, that the General Assembly of the Presbyterian Church would meet forthwith, in the First Presbyterian Church. The same pro- clamation was repeated at the side-door of the house, by an individual whom I could not distinctly see, and did not recognise. I heard no nega- tive votes, and I heard no question reversed. I cannot affirm that I heard any votes in the gallery, because they rose in a body, and. I cannot say from what part of the house they came. I cannot say how long the whole of these proceedings occupied: it was a moment of deep excitement. The time was very short. I did not then know of Dr. Fisher being appointed Moderator of the body. No cross-examination. Rev. Varnum Noyes — sworn, with the uplifted hand. I am a cler- gyman of the Presbyterian Church. I was not a delegate to the Assembly of 183S. I reside on the Western Reserve, in the state of Ohio. I now belong to the Presbytery of Worcester. In 1837 I belonged to the Presbytery of Medina, and previously to the Presbytery of Cleveland. The Presbytery of Medina is within the bounds of the Synod of the Western Reserve. I am not very intimate with any other Presbytery, but have some acquaintance with that of Portage, which, as well as Cleve- land, is also within the bounds of the Synod of the Western Reserve. Mr. Hubbell. How is the Presbytery of Medina constituted as re- gards Congregationalists and Presbyterians? TESTIMONY FOR THE RESPONDENTS. J83 Mr. Meredith. The witness will please to wait one moment. What is this testimony intended to prove? Mr. Hubbell. We propose to show that in the three Presbyteries which Mr. Noyes has mentioned, a great majority of the churches are Congregational; and to follow up this by similar testimony, in regard to other Presbyteries within the bounds of the disowned Synods. Mr. Meredith. We have no indisposition to go into this inquiry, if your Honour thinks it material; but we desire to ascertain the exact ex- tent to which we shall be permitted to go. It appears to me that so far as re- ,gards the exscinding resolutions, we stand here upon a question as to our rights as Presbyterians. Suppose there was not a single true Presbyterian within the bounds of the four Synods; not a man among them, from the mi- nister down to the humblest worshipper, without some flaw; what remedy was within the power of the General Assembly, other than the trial and ex- pulsion of the delinquents? If a trial had been given, it would have been conclusive of this question. If, instead of exscinding this great body of people, claiming to be Presbyterians, without trial, they had been tried for some offence, convicted, aud expelled, such expulsion would have been final. They would not be at liberty now to prove that it was all a mistake; that they were as good Presbyterians as t;hose who had con- demned them. It would not be competent to them to show, that the evi- dence brought against them had been falsely coloured, in its passage, through the medium of party feeling. If, on the other hand, the General Assembly has thought fit to cut them off without trial, without any alle- gation of error in doctrine, or of irregularity in practice, but merely on the ground that they came into the Church in an unconstitutional man- ner, that they have never really belonged to it, that body must stand by its own act. It is not competent to them to prove now, that those whom they have attempted to exclude are Congregationalists; to try them for a corporate offence before this court, which is not the corporate tribunal. Proof of their delinquency cannot be admitted, after judgment has been already passed upon them. The only questions now before the court, in regard to these acts of excision is, whether by the " Plan of Union " of 1801, the Presbyterian Church did, or did not, admit Congregationalists into her fellowship; and, if she did, whether the General Assembly was or was not competent to exclude, on this account, a large body of un- doubted Presbyterians. I do not expect to hear any argument advanced to show that the General Assembly had a right thus to act. It is not for the counsel on the opposite side to attempt now to bolster up an unconstitutional proceeding, by proof of the existence of these Congregational churches. The examination of witnesses has, we think, proceeded far enough; still we are quite ready to go into this investigation at any expense of time, though we have thought fit to ask the question, whether the testimony is relative to the point in issue. Mr. Ingersoll. Your Honour will do us the justice to affirm the posi- tion, that this was the very course of proof which we attempted to eschew in an early stage of the trial; but that we were compelled to follow in the track marked out by the plaintiffs' counsel. They led the way into the inquiry respecting the acts of the Assembly of 1837, with a view to show the illegality of those acts. We thought such an inquiry foreign to the subject; but the point ^as decided against us. The relevancy of the pro- 184 PRESBYTERIAN CHURCH CASE. ceedings of 1S37 was affirmed by the court. We, however, acquiesced cheerfully in the decision. We presumed, indeed, that these proceedings w-ere held up to view merely for effect, and this is evident from our learned friend's argument. He speaks of a condemnation without trial and with- out notice, the common rights of an accused party. On this point we take issue: it is the very thing that we deny: there was no such condem- nation. We maintain that, according to the true construction of the charter granted by the legislature of Pennsylvania, and of the whole form and system of government of the Presbyterian Church, the " Plan of Union" of ISOl was unconstitutional, and either voidable or void — at all events a mere temporary expedient. The General Assembly may ori- ginally have spread its wings over a vast circle, extending widely its protection and patronage; but it did not contemplate the perpetuity of such a system. When it became unnecessary this protection was with- drawn. We say then, that the plan was not only unconstitutional, but also temporary, and that as a temporary plan it might be abrogated. But all this pertains to our defence, and we now propose to establish it. We wish to present evidence of facts, which we contend are a sufficient justi- fication for our proceedings, which have been erroneously condemned as being in the nature of criminal process. We ask leave to show the pro- priety of our acts — to show 'that there existed in the body of the four disowned Synods, sets of individuals who were not Presbyterians. These individuals, however, were not to be condemned on this account. Per- haps they were even to be lauded. They were but pursuing their own path to salvation. The lamp for my feet is not the lamp for every man's feet. Perhaps, I say, these men were to be applauded. They were not in fact condemned, but merely disunited from us. I put a case: Suppose it were discovered that by the " Plan of Union " of 1801, worshippers at Mecca or Constantinople had been admitted into the Church: would it not be competent for us to show the fact of their admission, in order to prove the unconstitutionality of the ''Plan?" We offer this testimony then as a justification of our acts. We believe that the true merits of this case are resolvable into the proceedings not of 1837, but of 1838; and that the proof of their irregularity will be a bar to all polemical topics. Yet at this moment we cannot foresee, but that this testimony may prove important. Our opponents, too, have gone into the breach, and we must follow them. Our object is, first, to meet the as- sertion that our proceedings were in the nature of condemnatory process; and secondly, to give our reasons for them. Judge Rogers. I admitted the proceedings of the Assembly of 1837, in explanation of those of 1838. I then did not, and still do not under- stand, how we could do without them. I then thought that the proceed- ings of 1837 vv^ere necessary to the defendant's 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 within the jurisdiction of the Assembly, their decision must be final; even though they decided wrong- fully. I do not think any church ought to wish the civil power to inter- fere in such matters. Rev. Fi'ancis McFarland — sworn, with the uplifted hand. The General Assembly has three Boards : the Board of Education, the Board TESTIMONY FOR THE RESPONDENTS. Jg^ of Missions, as it is called, for domestic missions, and the Board of Fo- reign Missioris. The Assembly has no connection with the Home Mis- sionary Society. Some years ago, they recommended that society to the patronage of their churches. The Assembly has no connection with what is styled, I think, the Central Education Society. I am Corresponding Secretary of the Board of Education, attached to the General Assembly. I have some of the books of that Board with me. _ Our register contains the names of the young men assisted by the Board, and our ledger, the sums paid to all these young men. Judge Rogers. What has this to do with the case? Mr. Hubbell. Mr. Randall, the other day, read from the reports of the Presbyteries, to the General Assembly, statements of their contributions io certain charities. We desire to show, that those reports were made, in obedience to a resolution of the Assembly, requiring the Presbyteries to report their contributions, not only to tlie Boards of the Church, but to all charitable societies; and that, in those reports, the sums appropriated to the difterent objects, are not distinguished; and we are prepared to show, that, in those years, when, from the extracts read, the Presbyteries re- ferred 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 the recognition of those Presbyteries by the General As- sembly. In this view of the case, it is entirely immaterial, whether only one dollar, or ten thousand dollars were contributed. Mr. Randall. They were oflered to show a right vested in the ex- scinded bodies. Mr. Hubbell. Then I was mistaken as to the intention of the counsel. I supposed the evidence was given to raise an equity in favour of the dis-- owned Synods. Mr. Randall. We have nothing to do with equity; or, rather, the law will be the equity of the case. Mr. Hubbell. We can produce evidence that these bodies have never contributed anything to the Theological Seminary fund, or to the Foreign Missionary fund. Mr. Randall. I have already proved by the record that they have. Mr. Hubbell. Your Honor sees, that it is intended to insist on this point in argument, and yet we are excluded from rebutting the testimony given. Mr. Wood. We do not intend to insist upon it, further tl^an as it re- gards the recognition of the four Synods. Mr. Thomas Evans — sworn, ivith the uplifted hand. I attended the Assembly of 1838, in the church in Ranstead Court, at its organiza- tion. I occupied a part of one of the front pews, in the west gallery, and the south-west part of that gallery. I saw Mr. Cleaveland rise, and he had in his hand a paper, which he proposed reading. I was told by a gentleman near me, that it was Mr. Cleaveland. I was a stranger in the city, having for twelve years past resided in one of the Southern States. The Moderator called him to order. With his face towards me he continued to read, but turned gradually until he faced a little north-west of where I sat. I did not understand the contents of the paper. I could not hear his reading distinctly. 1 heard his voice, but could not understand what 24 186 PRESBYTERIAN CHURCH CASE. he said. I was in the front seat of the gallery, and nearer to the pulpit, than to the other end of the churcli. Mr. Cleaveland was almost oppo- site to me, perhaps a little to the north-east from where I sat. I am con- fident that I did not hear what lie read. I mean to say, I did not under- stand what he read: I heard his voice. The noise and confusion at that time, prevented me from understanding. I heard him, after reading the paper, propose, that Dr. Beman should act as temporary Moderator of the Assembly. He wished all those who were in favour of the motion, to signify it by saying, aye. There was then a loud vote in the affirmative, and Dr. Beman stepped out into the aisle. T+ie question was not revers- ed. I took particular notice of this at the time; for, from out-of-door reports, I had supposed, that the motion would be voted down. I remem- ber stating to a gentleman, after the Assembly had adjourned, that the question had not been reversed. I feel entire confidence that it was not reversed. Dr. Beman then stepped out into the aisle: I think that he and Mr. Cleaveland had been silting in the same pew. I think Dr. Be- man sat by the door. They were certainly in the same immediate neigh- bourhood, if not in the same pew. Dr. Fisher was then nominated, by somebody, as Moderator of the Assembly, of 1838; this nomination was seconded by some person, I do not know by whom, the motion was put, and a loud vote in the affirmative given. Then a motion was made, that those in favour of these proceedings, should retire, or adjourn, to the rear of the house. Accordingly, a great many persons moved off towards the north end of the house, and formed in the middle aisle, about halfway, I should suppose, from the pulpit. I am unable to state, what was done after this, until it was said, by a number of persons, that the General As- sembly had adjourned to the First Presbyterian Church — Mr. Barnes's church. There was considerable confusion and noise, which prevented me from hearing. I heard a good deal of noise, and saw several persons applauding, and clapping their hands, in some of the pews on the middle aisle. I do not like to tell their names, for fear of giving offence. One of them was a gentleman of high respectability, who lives in Philadel- phia. I had been only a few weeks in Philadelphia. When the vote in the affirmative was given, on the motion that Dr. Beman should take the chair, I heard some noes, simultaneously, with the ayes. A young gentle- man, who was sitting close by me, voted, "No!" and there were other votes from the galleries. 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 remained silent. Those around me appeared to. While the body was retiring, there was, I recollect dis- tinctly, great applause. I keep a hat store in this city, and attend the Tenth Presbyterian Church — Mr. Boardman's. I am a communicant of that church. I think I had then handed in my certificate, from the First Presbyterian Church of Augusta, Georgia, of vvhich I had been a member before that time. Cross-examined by Mr. Randall.— I think my papers had been handed in, and that I was admitted. Mr. Boardman's church belongs to the Old-school party, and to the Second Presbytery of Philadelphia. I profess to be a Presbyterian. I think I have sympathized with the Old- school, believing myself nearest the truth, in my sympathies with them. I have been influenced by nobody, in these sympathies. TESTIMONY FOR THE RESPONDENTS. jg-y Rev. Henry ./?. Boardman — sivorn, tvith the uplifted hand. I am the pastor of the Tenth Presbyterian Church in this city. I was not a delegate to the General Assembly of 1S3S. I attended at the opening of the Assembly in that year: my ])osition was in the south-west corner of the ciiurch, under the gallery, in front of the Moderator, in either the front pew, or the one lining the wall. Those seats are elevated one step above the floor of the church. Mr. Cleaveland rose with a paper in his hand, and with his face toward the Moderator. He had been sitting in the spot pointed out by each of the witnesses. He made some remark, the purport of which I do not remember. He was not called to order immediately b)'- the Moderator, and began to read. Here and there I understood a clause, but can now remember only the words, " counsel Jearne.d in the law." As he read, his eyes were intently fixed upon the paper. He seemed very much agitated; his countenance was flushed, and his frame and voice trembled. As he read he turned gradually, till he faced the western wall of the church. The Moderator repeatedly called him to order, and rapped with his hammer. Other members around me, called to order, and used various expressions. Some said this was shameful disorder, and others, "Let him go on." As he proceeded, the people in his neighborhood, in the body of the house, began to rise. He then moved, that Dr. Beman should be Moderator. I think he used that expression, or one equivalent to it. He called for the ayes, saying that those in favour would say aye; and there was a very loud "Aye!" He did not reverse the question. Either Mr. Cleaveland, or some one else then made another motion, which I did not hear, and Mr. Cleaveland, as I recollect, put this also, calling for the ayes, but not reversing the ques- tion. I speak with some confidence of these questions not being reversed, for I spoke of it at the time, and then supposed that it arose from Mr. Cleaveland's embarrassment. There was great confusion, and many stood up, some on the seats, and even on the backs of the pews. There was a movement then, in the middle aisle, toward the northern door, and the subsequent proceedings were completely shut out from my view. I heard nothing but a hum or buzz, excepting now and then a loud, tumul- tuous "Aye!" One voice, in particular, sounded high above the rest. I did not hear one of the questions put, and was utterly at a loss to know what they were. I did not know of Dr. Fisher's being Moderator, until the close of that morning's session, or until the next morning, and I denied it, when I first heard it stated. After several of these responses of " Aye!" had been made, there was a movement of this mass in the body of the house, toward the north door, and I took it, that the actors in the scene had receded. There was, at length, another movement toward that and the east door, and somebody cried out, in a very high and shrill voice, that the General Assembly had adjourned to Mr. Barnes' church, which excited a smile. Presently this was proclaimed again near the east door; whether the same person had gone round, and repeated the proclamation, I don't know. The house was filled with spectators during this scene, and was very crowded. A number of these left the house, with the retiring body; but I think the greater part remained. None of the Old- school party, to my knowledge, voted on any of these questions. I think, on the first, there were a few noes simultaneously with the ayes, but it was not reversed. These noes did not come from the part of the house 188 PRESBYTERIAN CHURCH CASE. where the Old-school party sat. They seemed to come from the same vicinity with the ayes, but perhaps may have come from the gallery. No cross-exa7nination. ' Mr. Hugh Jluchincloss — sworn, with the uplifted hand. I attended at the organizationof the Assembly in 1838. I wasacommissioner from the Presbytery of New York. I sat in the south-west corner of the church, un- der the gallery. I am not a clergyman, but a ruling elder. Dr. Mason had scarcely taken his seat, when Mr. Cleaveland rose. I did not hear him address the Moderator, but he commenced immediately reading a paper. What the paper contained, I did not distinctly hear. I then heard him put the question, upon the nomination of a certain gentleman for Mode- rator. Whether the gentleman was Dr. Beman, or Dr. Beecher, I did not know at the time. The question being put, there were a number of irregular votes in the affirmative. I did not hear any negatives, and am sure that the reverse of the question was not put. Another motion was made, that Dr. Mason and Mr. Gilbert should be clerks, and this was put in the affirmative, but not in the negative. There was considerable noise around the place were this scene was acting, and in the galleries. Distinct voices from the gallery responded "Aye!" and there was clapping of hands. After this, a number rushed to the door, and went olit in a disor- derly manner, and cried out, that they had adjourned to meet in the First Presbyterian Church — Mr. Barnes'. I should judge, that all these pro- ceedings did not occupy more than five or six minutes, at most. The answer of the Moderator to Dr. Mason's motion, when he presented the commissions, was, that he was out of order at that time. I did not hear Dr. Fisher appointed Moderator, nor did I know until the following morning that he had been. I did not vote on any of these questions. Cross-examined by Mr. Randall. I belong to the Duane-street Church, in New York. We don't rank under the banner of any party, but under the Presbyterian banner — the banner of the cross. We cer- tainly are an Old-school church. This term was given by the New- school party, in the General Assembly of 1831. I was very proud to be ranked among the Old-school. I don't know the individual who first used the term. It came from the neighbourhood of my respected friend here, (pointing at Dr. Absalom Peters.) Mr. Hubbell o^creAihe Assem. Dig. p. 118. — An article from the Plan of Union between the original Synods of New York and Philadel- phia: "That when any matter is determined by a major vote, every member shall either actively concur with, nr i)assively 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 attemptinof 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 Presbyterian Government." — Page 3. Mr. William Wilson — sworn. I was a delegate to the General As- sembly of 1838, from the Presbytery of New Brunswick. I attended at the opening of the Assembly. My situation was about the sixth or seventh pew, I think, from the front, on the west side of the middle aisle. I am a ruling elder. Mr. Cleaveland was close by where I sat. He had a paper in his hand, which he wished to read, and he stated that he meant no dis- TESTIMONY FOR THE RESPONDENTS. Jgg courtesy, but that "we," — I did not understand who "we" were — "have been advised by learned counsel, that this is the true place in which we must organize." I sat at the door of the pew, next the aisle. While he was attempting to read, he was called to order by the Moderator; and several other persons, in different parts of the house, in the vicinity of the Moderator, called him to order. I heard also one or more voices dis- tinctly urging him, in a low but exceedingly earnest tone, to go on. In the course of the proceeding, he moved, that Dr. Beman be appointed to take the chair; which motion, I believe, was seconded by somebody in the same quarter. When he put the question, I heard an indefinite num- ber of ayes ring through the whole church, very loudly. Some of them seemed to come from the gallery, from the manner in which the sound .filled the house. The calls to order, still, in some measure continued. The Moderator used his mallet, and expressed himself in some woi'ds that I did not exactly hear, and finally sat down. Dr. Beman, who was sitting at the door of the pew in which Mr. Cleaveland sat, came out of the pew. The question was not reversed. I did not hear it reversed, and was so close, that, if it had been, I should have heard it. Then there was a move- ment farther back into the house — back from the Moderator's chair, and several pews back of where I sat. I was then between this movement and the Moderator's seat. What took place, after they were out of my vicin- ity, I did not hear. I heard noises, confused sounds, and very loud ayes, but I kept my seat during the whole time. I heard no nays on any of the votes taken at that time. I did not vote. It appeared to me, from where I sat, that the sound got nearer the northern door, and finally, a great body of persons moved out. Then I heard it proclaimed, in or near the church, that the General Assembly would meet in the First Presbyterian Church, on Washington Square. I knew nothing of the appointment of Dr. Fisher as Moderator, till I heard it by common fame, or rumour. The whole operation occupied but a very few moments — I should say, not more than five minutes elapsed, from the time Mr. Cleaveland began to read. His manner was hurried, and the whole proceeding was conducted in a hurried way. A gentlemen to my left, in the same pew with Mr. Cleaveland, whom I did not know till afterwards, made a motion. Mr. Cleaveland was in a pew immediately opposite to me, to the east, across the aisle. This gentleman arose, after the Moderator, according to his announcement, had opened' the meeting with prayer and stated that the first business was for the clerks to report a roll, and attempted to present a paper which he held in his hand. The Moderator declared him to be out of order at that time. The gentleman appealed from the decision of the Moderator. The Moderator stated, that, for the same reasons that the motion was out of order, the appeal was out of order, or out of order at that time. I understood him to say that it was for the same reasons. There was another gentleman, in the same pew, who, after the roll had been reported, offered, as I understood, some papers, which shared the same fate, as those offered by the first gentleman. These proceedings were not conducted in an orderly manner. The first two gentlemen's pro- ceedings I considered all orderly. I am not a judge of order, but I mean to say they were quiet. The other proceedings were tumultuous and ^noisy — so much so, as to make it painful to some present, to hear and see 190 PRESBYTERIAN CHURCH CASE. the transaction. There was considerable noise, and clapping of hands, and something like cheering, just as the body moved off to the north door, and were about leaving.' At the same time, a number moved off towards the door from the gallery. No cross examinatio7i. Mr. Hubbell offered an extract from the " Pastoral Letter," Jlppen- dix to Minutes, {New-school,) 1S3S,/?. 663, and the court decided, on the suggestion of the counsel for the relators, that if a part of the docu- ment was read, the whole must be considered in evidence. ^'■Pastoral Letter to the Churches under the care^of the General Assembly, Beloved in the Lord — It is well known ag a matter o f hisiory, that the Presbyterian Church in our nation commenced in the union of pious natives and foreigners of Con- gregational 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 expulsion of one Synod by another, and a separation of seventeen years. The terms of re-union were, a subscription of the Confession. of Faith, "as containing the system of doctrine taught in the Holy Scriptures," noi withstanding any such "scru- ples 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 opprobions 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 prosperity augmented, though from some circumstances the administration of her policy was continued without envy, in the hands of the immigrant Presbyterian portion of the Church. When the tide of population began to roll westward, and the territories of our Church were fast filling up with pious emigrants from the East, a proposal was made by the General Assembly of our Church to the Association of Conneclinnt, to permit the union in the same church of Presbyterians and Congregatioiialists in the new t^etthinpnts, for the greater facility of supporting and extendmgthe institutions of religion. This union, so congenial with the spirit of the Gospel, exerted for a long time an auspicious influ- ence, in the extension of Presbyterian churches from the Hudson to the JMississippi. But at length, in the mysterious providence of God, it came to pass that the very causes of our prosperity became the occasions of disaster. For, in tiie rapid multiplica- tion 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 doctrine and policy created no alarm while the helm of pow(>r was supposed to be safe, the prospect of its passing to other liands 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 that body; and soon after, the system of ecclesiastical organization commenced for the administration of the charities of the Church, with increasing unfriendliness to voluntary associations, till the one was established, and the others were disclaimed and opposed. During the progress of these movements, the slight shades of doctrinal dif?^rence, al- ways 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 lenjrth, of ecclesiastical trials for heresy; while doctrines and mea- sures unknown to the Confession were selerted as tests of orthodoxy. "As the results of these efforts to change the terms of subscription and union, the Gen- eral Assembly of 1837, "convinced that a separation of the parties was the only cure," and, "that a separation by personal process was impossible, or if possible, tedious, agi- tating and troublesome in the highest degree," proceeded without charges, citation, wit- nesses, or a judicial triil, to separate four Synods and one Presbytery from the Presby- terian Church. In these circumstances, apprised by counsel of the unconstitutionality of the disfranchising act, and advised of a constitutional mode of organization, we did, TESTIMONY FOR THE RESPONDENTS. 191 in a meeting for consultation and prayer, on the 15th day of May, 1838, send the follow- ing proposal tola large number of commissioners to the Assembly met in another place, viz: " 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 calamities of a violent dismemberment, 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 cooperate in any efforts for pacification, which are constitutional, and which shall rt cognise the regular standing and secure the righls of the entire Church, including those portions which the acts of the last General Assembly were intended to exclude. , " Resolved, That a. committee of three be now appointed, respectfully to communicate the foregoing resolutions to those commissioners now in session in this city, who are at present inclined to sustain the acts of the last General Assembly, and inquire whether they will open a friendly conference for the purpose of ascertaining if some constitu- tional terms of pacification may not be agreed 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 attempt to organize the Assembly, without admitting to their seats commissioners from all the Presbyteries recognised in the organization of the General Assembly of 1837, it will then be the duty of the commissioners present to organize the General Assembly of 1838, in all respects according to the Constitution, and to transact all other necessary business consequent upon such organization." To our communication we received the following answer : " The committee on the communication from 'the meeting of commissioners,' now in session in theleciure room of the First Church, presented the following preamble and resolutions, which were adopted : viz. " Whereas the resolutions of ' the meeting,' while they profess a readiness ' to co-ope- rate in any efforts for pacification which are constitutional,' manifestly proceed upon the erroneous supposition that the acts of the last General Assembly, declaring the four Synods of the Western Reserve, Utica, Geneva, and Genesee, out of the ecclesiastical connection of our Church, were 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 meet- ing,' however intended, as founded on a basis which is wholly inadmissible, and as cal- culated only to disturb that peace of our Church, which a calm and firm adherence to those constitutional, just, and necessary acts of the last General Assembly, can alone, by the blessing of Divine Providence, establish and secure. " Resolved, That in the judgment of the convention, the resolution of the last General 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 con- nection 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 connection 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 ' General Assembly, which will take order thereon,' furnishes a fair and easy mode of proceeding, by which all such ministers, churches, and Presbyteries, within the said Synods, as are really de- sirous to be ' recognised' as in regular standing with us, and as proper parts of our ' en- tire Church,' may obtain their object without trouble and without delay." By this answer, all prospect of conciliation or an amicable division being foreclosed, we did, after mature consideration and fervent prayer, proceed, at a proper time and place, to organize, in a constitutional manner, the General Assembly of 1838 ; which, beine accomplished on our part, without violence or tumult, the Assembly adjourned to the First Presbyterian Church. During the session of the Assembly, on Wednesday, May 24th, the following resolu- tion was passed, viz ; " Resolved, That this body is willing to agree to any reasonable measures, tending 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 tliat pur- pose. "» 192 PRESBYTERIAN CHURCH CASE. Besides these overtures for peace, influential members of the Assembly held personal 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 excision 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 legisla- tive, judicial, and executive power, and dispensing the discipline, the honors, and the copious revenues of the Church, the elements of an eaclesiastical organization, which, with less pretension in the beginnini', 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 Church, which we had solemnly engaged to defend — to expose large amounts of property to diversion from 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 concordant churches with their pastors — to surrender the rights of conscience, and free inquiry, and charitable enter- prise, to an organization never recognised by Heaven as their keeper, or clpthed 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 violence, which already so powerfully agitate the nation. We love and honour the Confession of Faith of the Presbyterian Church as containing more well-defined fundamental truth, with less defect, than appertains to any other human formula of doctrine, and as calculated to hold, in intelligent concord, a greater number of sanctified minds than any which could now be formed; and we disclaim all design, past, present, or future, to change it. But it is not the Bible, nor a substitute for the Bible, nor a stereotyped page, to be merely committed to memory, by unreflecting, confiding minds, without energy of thought, and a prayerful, faithful searching of the Scriptures. It is itself an illustrious monument 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 anticipate from their measures, but good intentions do not change the nature or avert the mis- chiefs of erroneous principles and injurious actions. It is a matter of history, 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 v/ith us in thanksgiving to God, for the harmony, and kind feeling and decision which have pervaded our deliberations and action, and for those wide-spread and exuberant effusions of the Spirit 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 welldoing, and not be seized with any sudden amazement, through manifold temptations and trials of your faith and patience, and that 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 pros- perity. We exhort that fervent charity be maintained among you, and a spirit of prayer for the continued presence and power of the Holy Spirit, and devotedness to those labours which God especi;illy employs fi)r the promotion of revivals of religion, the great end of all means, and the comprehension of all spiritual good. But while these thinss are faithfully done, we pray you that other duties of impe- rious obligation and urgent necessity be not neglected; particularly that your charity for Home and Foreign missions, and the education of a holy ministry, and lor all our long-cherished voluntary associations, be not suffered to decline, but rather to flow on with augmented power, and fiiith, and prayer. That especial care be taken to send and sustain a full representation of the Church, as a mean of mutual communication of knowledge, the culture of confidence, and the production of wise counsels. TESTIMONY FOR THE RESPONDENTS. 193 And now, brethren, we commend you to Him who is 'able to keep yoii from falling, and to present you faultless before the presence of his glory with exceeding- joy,' pray- ing '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 ; strengthened with all might according to his glorious power, unto all patience and long-suffering with joyful- ness.' 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, c&mforZ yenir hearts, and establish you in every good word and work. SAMUEL FISHER, Moderator, ERSKINE MASON, Stated Clerk. Philadelphia, May 25lh, 1838." Mr. Hubhell commenced reading from the Minutes of 1837, p. 468. • Mr. Randall. For what purpose is this testimony offered? Mr. Hubbell. To show that there did exist a dispute between the Old and New Schools in regard to doctrine and tenets. First I will^read the report of a committee, which was adopted by the Assembly, and then a protest against the adoption of it. Judge Rogers. What has all this to do with the case? Mr. Hubbell. I thought that I had explained that in my opening. Judge Rogers. It has nothing to do with the case. Mr. Hubbell. Well, I merely thought proper to offer it. In my opening I referred to various rules of order: I suppose they will be con- sidered in evidence without a second reading. Mr. Meredith. The whole book of Church order is in evidence; but I do not consider Jefferson's Manual as testimony. Mr. Hubbell. No, it is merely an authority. Judge Rogers. I don't think we have any thing to do with differen- ces of doctrine between these two parties. No doubt there are differen- ces. Next was offered Jissem. Dig. p. 17. " Sect. 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 to announce to this house, that you are duly elected to the office of Moderator in this General Assembly. For your direction in of- fice, 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 in the records of this Assem- bly; which I doubt not will be carefully observed by both, in conducting 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 Modera- tor, 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 Assembly for the glory of his name, and for the edification and comfort of the Presbyterian Church in the United States, — I resign my place and office as Moderator.— 1791. Vol. I. p. 30." Id. p. 16. " Sect. 1. Immediately after public worship, on the day appointed for the meeting of the Assembly, the Moderator takes the chair; and having called the com- missioners to order, offers prayer to Almighty God, for his direction and blessing. " Sect. 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 iy)on by the Assembly, until the commissions delivered to the 25 194 PRESBYTERIAN CHURCH CASE. clerk shall have been publicly read, according to the express letter of the Constitution. — 1791. Vol. I. p. 26. " Sect. 3. The list of the commisdoners present being completed, a new Moderator is chosen." Mr. HiibbelL The date of this publication is 1820. This was the rule before the alteration to which the witnesses have testified. Id. p. 24. " Sect. 9. General Rules for regulating the proceedings of the Assem- bly, which are read by the Moderator before he resigns his seat to his successor. (Here follow the Rules, which need not be inserted. It is enough to say that they occupy three pages of the Assem,bly's Digest. Rev. Williani S. Plumer — sworn. I was a delegate to the General Assembly of the Presbyterian Church in 1838, from the Presbytery of East Hanover in Virginia. This Presbytery includes the chief part of the tide-water district of Virginia. The part north of the Rappahannock, however, is not included, except two counties on the Eastern Shore. I reside in Richmond. I attended at the organization of the Assembly in 1838, and was at the house from an early hour in the morning, perhaps from nine o'clock. I know, that all the doors of the church, at'which the congregation usually enter, were open from ten o'clock, and I think they were not closed that morning. I was seated in the open area in front of the pews. This drawing (a ground plan of the Seventh Presbyterian Church put into his hand) is not exact. Originally the two front pews had circular parts in front; now these circular parts have been taken away, and the pews are oblong. I was seated in the open area, with a table, to the left of the Moderator as he sat. Around me were seated. Dr. Wither- spoon, not very far oif; Dr. Phillips, perhaps ten or twelve feet in another direction, and others. When Dr. Miller, before the organization of the Assembly, came in, I gave him my chair, and reclined against my small table. Dr. William Harris was not far from me. Mr. Robert J. Breck- inridge was not many feet off, but I do not now recollect his relative posi- tion. Mr. Krebs was not very far from me: he sat at the side of the clerk's table. Dr. Samuel B. Wilson was in the position that he described the other day, a little to my left. Rev. James C. Wilson was also not far from that place, in either the front or rear. When, in the usual manner, the Moderator had descended to organize the Assembly, he took the chair, and stated, that the first business was the report upon the roll made out by the Committee of Commissions. The clerk about that time, or before, was in a standing posture. He did not instantly commence reading, he had his papers however. Before he commenced, Dr. Patton rose, and said that he had certain resolutions, which he wished to offer at this stage of the proceedings. The Moderator said he was out of order, as the first business was the report of the clerks. Dr. Patton replied that his resolu- tions related to that very subject. The Moderator still said, that he was out of order, as the house was not organized, or something conveying that idea. Dr. Patton took an appeal, which the Moderator pronounced out of order, and he then resumed his seat. The Moderator called upon the clerk to proceed with the roll, which he did, and as I supposed, completed it. Shortly after the committee had made their report, Dr. Mason, who sat in a pew which was entered from the middle aisle, six or seven pews from the front, rose, and said that he moved, or wished to move — First, however, I should mention, that as soon as the report of the committee TESTIMONY FOR THE RESPOxNDENTS. 195 had been read, the Moderator announced, that, if there were any commis- sioners present, who had not presented their commissions to the clerks, or to the Standing Committee of Commissions, and had them enrolled, should now present-them. It was immediately after this, that Dr. Mason arose. He said, that he had certain commissions which had been refused by the clerks, and he moved, either that the names of the commis- sioners should be placed on the roll, or that their commissions should be examined, and they enrolled. The Moderator replied, that they could not now be received, or, you, or they, are out of order at the present time. At this moment Dr. Mason seemed greatly embarrassed, which, how- ever, he did not show, otherwise than by the tremulousness of his voice: •what he uttered was not incoherent. Very politely, he said, that, with great respect for the Chair, he must appeal from the decision. The Mode- rator told him he was out of order. He then sat down, and made a re- inark to some one in the pew; but I am not certain I heard, and there- fore shall not state it. I have since heard it reported, and do not know whether I have gathered it from what I then heard, or from the report since, and on that account shall not testify. Dr. Mason stated, when he first arose, that the commissions which he held had been presented to the clerks and refused. His idea was to get them upon the roll. As soon as he had sat down, Mr. Squier arose, and said that he had a commission from the Presbytery of Geneva, that it had been refused by the clerks, or the Committee of Commissions, and that he now demanded that his name should be put on the roll. The Moderator asked hini, whether the Pres- bytery of Geneva belonged — belonged was his word — to the Synod of Geneva. Mr. Squier replied, that it was within the bounds of that Sy- nod. The Moderator, waving his hand, said, "We do not know you." At this period, I was reclining against the table, with my head about five feet from the floor. I noticed a little consultation, and my attention being turned in that direction, heard a member opposite to me, move the ap- pointment of a Committee of Elections, I do not know that this motion was seconded: my impression is that it was. I do not know who made it, but I did know at that time. Before the Chair had announced the motion, the interruption began. I saw a little stir, and observed Dr. Beecher, and Dr. Taylor, who was a delegate to the Assembl}^ from the General Association of Connecticut, seated together, I believe in the pew behind Mr. Cleaveland. They were moving their hands, and making gestures with their heads, and I thought I heard the words, " Go on! go on!" I am certain that they were making gestures, but am not positive that I heard the words. The gestures could not be mistaken. Mr. Cleaveland arose, with his face towards the Moderator, but did not ad- dress him, or any other person or persons. He began with the word "Whereas," in his usually loud and distinct tone- As he read, he turn- ed his face toward the opposite side of the main aisle, his tones became lower, and, toward the conclusion, I could not hear what he said. I could distinguish the words, "a constitutional organization must be ob- tained at this time and place," and " in accordance with the advice of gentlemen learned in the law." I heard his apology — he hoped it would not be considered discourteous; and I thought that, in connection with these words, I heard^ the words, " least interruption and shortest time 196 PRESBYTERIAN CHURCH CASE. possible." All this was from Mr. Cleaveland's paper. At the conclu- sion of the paper, I heard his voice — as I supposed, for now it had lost its natural vigour and clearness, and had become tremulous and agitated — saying, " I nominate Dr. B." — I thought at the time it was Beman — or, "I move that Dr. Beman" — to what he nominated him I did not hear. I may state here, that I had a distinct idea lodged in my memory, that Dr. Beecher's name had been used, at some time after Dr. Beman's nomi- nation, but to what I did not hear. Whether I mistook it for Fisher or Beman I cannot say. After the nomination of Dr. Beman, I heard nothing, until what would have been an affirmative vote, which, for loud- ness, I have never heard equalled on the hustings of a Virginia Court. I am certain that it might have been heard across Washington Square, at any quiet period of the twenty-four hours — that is, from one side of the Square to the other. I am not certain who this stentor was; but I thought it was a small gentleman mounted on the back of the pew — upon the lit- tle 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. Court adjourned. THURSDAY AFTERNOON— 4 o'clock. Mr. Plumer — examination continued. This morning I closed my account of the circumstances that attended the first vote, after Mr. Cleave- land took the floor. So far, I have told all that 1 saw, but I do not sup- pose that I saw all; for there was a dense mass of people standing up — a good many of them on the seats of the pews. I heard no more nomina- tions from this time, and even as to the nomination 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, away from the Moderator. The persons who had been acting in this scene removed to a considerable distance — possibly twenty feet. I heard nothing afterwards, until a gentleman, whom I took to be Presi- dent 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 very loudly proclaimed,, that the General Assembly had adjourned to meet forthwith in Mr. Barnes' church. There were two other annunciations of the same thing, by, I think, some person of a different voice — next, at the east door, at the north end of the house, and lastly, at the door near- est the pulpit, on the Moderator's right, and the east side of the house. There were clapping and hissing in the gallery. I do not know whether any persons in the gallery voted or not. No person in my vicinity voted, in either the affirmative or negative, on any question. I could not, if I had wished to do so, have voted intelligently. I did not hear any rever- sal of Mr. Cleaveland's motion; I firmly believe it was not reversed, and certainly it was not, so that I could hear; and the next "Aye?" came so soon, that it confirmed my impression, for no time was allowed for put- ting both the negative and another motion. Of course any answer, in regard to the time which these proceedings occupied, must be exceeding- ly vague. My impression that day, when some persons were conversing TESTIMONY FOR THE RESPONDENTS. I97 on the subject, was, that it did not exceed five minutes. I took no note of time by my watch, nor did I think about time, but of what was going on. I now know Mr. Joshua Moore. He sat in the General Assembly which held its meetings in the Seventh Presbyterian Church. After the Moderator had called for commissions, I saw Mr. Moore come to the clerks' seat, but what he said or did I don't kno\Y. I first learned that Dr. Fisher had been appointed Moderator, some time after the proclama- tion of adjournment had been made; whether that day or the next, I don't remember. Cross-examined by Mr. Randall. I was elected Moderator of the Assembly in the church in Ranstead Court, that year. I became ac- quainted with Mr. Cleaveland, some years ago in Boston, Massachusetts. . He is ordinarily a very prompt man. I think Mr. Cleaveland could put a question as quickly as any other man, with an equally stout voice, when not embarrassed. 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 soon as I have done. The book requires, that the ques- tion 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," a paper established in August, 1837; and that I have taken an active part in the discussion of the Assembly's proceedings of that year. It was for this purpose, among others, that the journal was established. Rev. Dr. David Elliott — sivorn, with the uplifted hand. I was the Moderator of the Assembly of 1837, who presided at the opening of the Assembly in 1838. Immediately after the religious exercises had closed, on the morning that the body was convened, I announced from the pulpit, that, as soon as the benediction had been pronounced, I would take the chair below the pulpit, and proceed to organize the Assembly. Accord- ingly I did so, and having offered a prayer, immediately after taking the chair, I then called upon the clerks to report the roll, if they had formed one. Before that call was complied with by the clerks, Dr. Patton, arose, and remarked, in substance — I do not pretend to repeat his very words — that he wished, now, to offer certain resolutions that he held in his hand, and that they should be passed upon by the house. I replied, that he was out of order, as the first business was the report of the clerks upon the roll. Dr. Patton replied, that his resolutions related to the formation of the roll, and would take but little time, or something to that effect. I reminded him, that he was out of order, that the first business was the report upon the roll, and that the clerk was on the floor. By this time Mr. Krebs had arisen, or, if up before, was standing on the left of the table, and I directed him to proceed. Dr. Patton took his seat. Mr. Krebs then proceeded to read the roll, and at the close, stated that there were also in his hands some informal commissions, which he now pre- sented to the Moderator; and he laid them on the desk, immediately in front of where I sat. Then I announced, that the persons whose names had been thus reported, were to be considered members of the house, and added, continuously, that if any other commissioners were present, from Presbyteries in connexion with the Presbyterian Church, who were not enrolled, and had iiot had an opportunity of presenting their commis- 198 PRESBYTERIA>f CHURCH CASE. sions, they would now have an opportunity of doing so, and of being enrolled. At this time, I believe it was, that a gentleman arose, whom I did not then know, but, afterwards, learned to he the Rev. Dr. Mason. He stated, that he held in his hand certain commissions — he had a bundle of papers in his hand — commissions that had been tendered to the clerks, or to the Committee of Commissions, and had been refused; and that, he desired now to present them, for the purpose of completing the roll. I asked him, where they were from, or whether they were from Presbyteries in connexion with the Presbyterian Church at the close of the session of the Assembly of 1837 — I am not certain which form of speech I used, but one or the other of the two. He replied, that they were from Presby- teries within the bounds of, or belonging to, the Synods of Utica, Geneva, Genesee, and Western Reserve. I informed him, that he was out of order at this time, or now — using one or the other of these forms of speech. Dr. Mason observed, that, with great respect for the chair, he must beg leave to appeal from that decision. I remarked, that the appeal, also, was out of order at that time. Dr. Mason then, as I recollect, sat down. Immediately after this, a gentleman rose, whom I did not recog- nise, though I had had some acquaintance with him several years before: I afterwards heard that it was Mr. Squier. He stated, that he had a commission from the Presbytery of Geneva; that he had tendered it to the clerks, or to the Committee of Commissions; that it had been refused; and that he now demanded his seat in the Assembly. I asked him, if that Presbytery was within the bounds of the Synod of Geneva. He answered, that it was. I replied, "We do not know you. Sir." He made, in reply, some remark, the purport of which I do not distinctly remember, and sat down, or, at any rate, did not further press the matter. To the best of my recollection, I then repeated the call for the same kind of commissions, and in the same form. Before the last words of the repeated call were out of my mouth, the Rev. Mr. Cleaveland rose, with a paper in his hand, and commenced either reading or speaking, I can't say which; but he had a paper before him, which he held in both hands, and towards which he looked. Whether he made some prefatory remarks, or began to read, I do not know. He was frequently called tc order. Several persons, around me, called him to order, in the tone usual in the Assembly. Mr, Cleaveland, however, continued to read; and 1 would say, at this time, that, during the whole of his reading, and until after the nomination of Dr. Beman, and the vote taken on that, 1 called " Order!" at short intervals. I did so, because I believed it to be my official duty. 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 — the appointment of a Commit- tee of Elections, to whom the informal commissions might be referred. This motion was entertained by me, as an officer of the Assembly, and I announced it. While this was doing, Mr. Cleaveland was reading, but this diverted my attention from him, and for that reason, I did not 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 reflections, as I thought. , on Jj \ TESTIMONY FOR THE RESPONDENTS. jgg the chair, he said something al\out their being advised b_y counsel learned in the law, and securing a constitutional organization ; but these things were not in juxtaposition. Then at the close, I heard the phrases " not discourteous," " fewest words and shortest time possible," or something to that effect. He next moved, that Dr. Beman should take the chair, or be Moderator, I don't know which. Immediately he put the question — *' Those in favour of the motion will please to say, aye," or words to the same effect. There was a ver}^ loud response : I regarded some of the voices 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 recol- lection of a few noes, simultaneous with the ayes, either from the gallery, or some other quarter of the house. I can't say from what quarter they came, but they were simultaneous with the ayes, and in answer to the affirmative of the question. Upon this vote of aye, I saw Dr. Beman inove out of the pew, the location of which has been already described, six or eight peu's from where I sat, into the centre aisle. As he passed .into the aisle, a number of persons from both sides of the same aisle pass- ed into it, simultaneously with him. They fell into his rear, and turned off in an opposite du'ection from me; and the mass closed up, so that in a very short time my view was obstructed. What then passed I do not know. They seemed to advance the distance of a few pevvs. At this time, there was a simultaneous rising of all the persons in the north part of the house, and there was great excitement in that quarter. From about the place that Dr. Beman left, the great mass were on their feet. There were a number standing on the seats of the pews, and in my judg- ment at the time, some 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 continued to cry order during this period. Some gentleman said, " Is it not possible to have order?" or " Can we not have order?" I said, that I had done all I could to preserve order, and hoped that the disorder would be of short duration. At this time I supposed, that as Dr. Beman, and those with him, had passed to the north of the house, we might proceed with the organization of the Assembly, and I was about to put the question on the motion to appoint a Commit- tee of Elections. But some one said, "• We can't hear ; we had better stop till the' noise is over." I said '' Yes," and formally announced to the house, that we would suspend our business till the noise should sub- side ; that it was evident that the members could not hear at present. The suggestion came from the neighbourhood of the west door. Nearly the whole of this time I had been on my feet, but after this announce- ment I sat down. I then heard several successive responses of " Aye!" apparently made to questions put, but I heard no question and no nomi- nation, except that already stated, the nomination of Dr. Beman. While I was thus seated, all the members around the chair, for a consi- derable distance in front, were quiet in their seats. After some little time the actors in the 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 of the church, somebody announced^^at one of the doors, that the General Assembly of 200 PRESBYTERIAN CHURCH CASE. the Presbyterian Church had adjourned to meet, forthwith, in the First Presbyterian Church. After a little, the same announcement was made at another door, and I think also at a third, in the neighbourhood of the chair. I cannot tell what time these proceedings occupied. If I might make a calculation, I should say, from four to six minutes, but cannot pro- fess to speak with any certainty. I did not look at my watch, and state this merely as 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, though not much, hissing from the galleries. Most of the sounds seemed to be in approbation. After they had-left the house, we proceeded to the appointment of a Committee of Elections, and to the other business of the house. I did not hear Mr. Cleaveland's motion reversed. I re- collect, that about the time at which Mr. Squier sat down, the clerks having closed their report, and the announcement in regard to other com- missioners having been made, there was a commissioner, or a person claiming to be such, who stated, that he came from some Presbytery, the name of which I have forgotton, and that he had a commission, for which he seemed to be searching in his pockets; but he did not find it, and said, that he must have left it at his lodgings. I told him, that when he had it the Committee of Commissions would attend to the matter. 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 subse- quently took his seat. No cross-examination. Dr. Elliott. 1 ought perhaps, to make a statement which may have some bearing upon the case, in regard to a subsequent transaction. After the appointment of a Committee of Elections, and 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 said, that they did not think this a matter of an}^ impor- tance. Mr. Huhbell next offered to read from the Supreme Court Docket, July term, 1838, the entries of suits brought by Miles P. Squier, Henry Brown, and Philip C. Hay^ against the Moderator and clerks of the Old- school Assembly, &c., to show the feeling of the plaintiffs in these suits, one of whom, Mx. Squier, had been examined as a witness for the rela- tors. Judge Rogers. It is hardly worth while to offer testimony to prove feeling. They all have feeling. I don't see that this has any thing to do with the case. Mr. Huhbell. We are perfectly willing to acquiesce in your Honour's decision, but it was necessary to make the offer, in order to have the ad- vantage of it hereafter. Dr. Elliott — being, at his own request., allowed to explain the mat- ter alhided to, at the close of his testimony. It is my impression, that there were a few other items in that transaction, besides those mentioned on the record. A committee to form the minute was appointed, as is usual. TESTIMONY FOR THE RESPONDENTS. 201 Afterwards,. 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 suggested a number of particulars ; but Dr. Nott replied, that it was not irnportant that every particular should be mentioned, but that a general sketch, if true, was all that was necessa- ry. I acquiesced, though I thought that several of my suggestions should have been attended to. I proposed to say, that the noise had been disre- putable, 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 in giving evidence, I have related additional particulars. The counsel for the relators here withdrew their objection to the read- ing of the entries from the docket, offered by Mr. Hubbell. In the course of some remarks made by the counsel, in regard to this point, Judge Bo- get's remarked, that he had made no note of an exception to his judgment, overruling this testimony. Mr. Ingersoll said, that he thought it had been the practice in that court, to note every decision as excepted to, with- out a formal exception being taken, and that it was owing to this under- standing, that his colleagues and himself had omitted to request the court to note any exceptions. Judge Rogers. This is not th.e practice. It is frequentl}^ asked in bank, if exception was taken at the time. (After some further remarks from the counsel.) 1 do not think that there will be the slightest diffi- culty after this explanation. The entries from the docket were then read, as follows : Supreme Court, July Term, 1S38. b. e. J. Randall, Meredith, Bradford, d. Kane. d. b. e. 25th July, 183S. F. W. Hubhell. J. Randall, Meredilh, Bradford, d. b. e. Kane, d. b. e. 27th July, 16 F. W. Huhbell. Miles P. Squier, 56 vs. David Elliott, John McDowell, John M. Kreb?, William S. Plumer, and Robert J. Bieckinrido-e. 57 Henry Brown, vs. Same Defendant C Summons in case — oxit May 31, 1838. " Summoned." Summons in casp — exit. May 31, 1838. " Sum.moned." J. Randall, Philip C. Hay, f Summons in case — Meredith, 58 vs. I exit May 31, 183S. Bradford, d. b. G. Same Defendants. I " Summoned." Kane, d, b. e. i 9Jih July, .1838. | F. W, Huhbell. ^ [ Mr. Hubbell. We now offer to introduce a series of witnesses, to show, that several clergymen, within the bounds of the four disowned Synods, have, according to the provisions of the act of 1837, applied to neighbouring Presbyteries, and have been admitted into them. Perhaps this testimony falls wiihin your Honour's previous exclusion. 26 202 PRESBYTERIAN CHURCH CASE. Judge Rogers. I do not sec the pertinency of it. It cannot alter the character of the original acts. Mr. Hubbell. Will your Honour then please to note an exception. The witnesses offered, are Mr. Varnum Noyes, Mr. John V. Hughes, Mr. Edwin Bronson, and Mr. William Henry Snyder. Mr. Boardman — re-called. After the Moderator's call for commis- sions, the Rev. Joshua Moore went up to the clerks' table, 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. Cleave- land was on the floor, I am not positive which. I think it was after Dr. Mason had taken his seat, though as to this, I cannot speak positively. No cross-examination. Rev. Robert J. Breckinridge — sworn, with the uplifted hand. I was a commissioner to the General Assembly of 1838. I did not hear any of the questions, said to have been proposed by Mr. Cleaveland, Dr. Beman, or Dr. Fisher. I perhaps ought to say, that I should not have voted, if I had heard them. I was present the whole time, from the rising of Dr. Fatten till the adjournment. I was in the house before the meeting, nearly all the morning. I have heard various statements made, in regard to the length of time that elapsed from Mr. Cleaveland's rising, until the adjournment. I can say, only, that it was a very short, and very confused space of time. I should have said, 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 I do not know who have been sworn. I cannot, therefore, an- swer, whether all of the members of the Assembly of 1838, who are pre- sent, have been examined. Dr. Alexander W. Mitchell, was a member, and I think I heard him say, that he had not been sworn. I heard a part of Mr. Cleaveland's paper. My position was that which one or two gentlemen have described. I was at some distance from Mr. Cleaveland. I heard the first few sentences that he uttered, but nothing distinctly, af- ter he moved that Dr. Beman should take the chair. I recollect that Pro- fessor Maclean was a commissioner, and he has not been sworn. I did not hear Mr. Cleaveland put any question upon the nomination of Dr. Beman, and if I had been disposed, I could not have voted intelligently upon any motion, but the first. 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 nolliing, except the vote of aye. To the liest of niy recollection, I heard no negative vote on any question. M}' own state of mind, perhaps, influenced my perceptions. Cross-examined by Mr. Randall. I, perhaps, did not give so much attention to tiie proceeding, as I would have done, if I had viewed them in a different light. Dr. Jllexande.r TV. Mitchell — sruorn. I was a commissioner to the General Assembly of 1838. I took my position nearly opposite the east door, in the west side of the east aisle. Mr. Cleaveland was in a pew opening on the east side of the middle aisle, in the rear of the one on a line with that in which I sal; my seat was, therefore, one pew in advance of the line of his. I was about half way up my pew, and he about 1 wo- Ihirds of the way up his. Ho rose, and cither made some observations, or TESTIMONY FOR THE RESPONDENTS. 203 read from a paper. At this moment my attention was diverted to a gen- tleman in the pew before me. When I turned again, Mr. Cleaveland's back was towards me. The circumstance which diverted my attention was, that a gentleman, in the pew immediately in front of me was stand- ing up on the seat. I asked him if he was a member; he said he was. Shall I go on? — (An objection being made to his proceeding to state what had passed between himself and the gentleman on the seat.) After this distraction I turned, and Mr. Cleaveland's back was towards me. When he finished, he was facing the north-west part of the house. He moved that Dr. Beman should take the chair or be Moderator — I don't know which. When he had made the motion, there was a loud response of " Aye!" The gentleman on the seat in front of me answered in a very 'loud voice. He was not the little man. I don't believe that the negative 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 motion. I did not consider myself as taking any part in the proceedings. I regarded it as a disorder. I did not consider any thing before the house at that time. The Modera- tor cried " Order!" and a great many in the pew with me called to or- der. I did not myself 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 before seen, and Dr. Mason, of whom I had no knowledge until that day. I did not hear the question reversed: I do not believe it was reversed; for, if it had been, I should have heard it, as I was contiguous 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 deliberative assemblies: it was more like the yell of an Indian, than of a white man. At that time Dr. Beman moved out into the aisle, and there was a rising, all around, of the persons in that quarter of the house. I cannot say that I know much of what occurred after he got into the aisle, for there were so many persons standing up around, that I could not see, and I sat down. I heard the ayes called two or three times. I remember that, as they were going out, somebody — not the man on the seat in front of me — announced that the General Assembly would meet, forthwith, in the lecture-room of the First Presbyterian Church. This was repeated two or three times, at the different doors — the last time, at the east door of the house, by a gentleman who is present. It was either that afternoon, or the next morning, that I first heard of Dr. Fisher's ap- pointment. The whole transaction occupied but a very short space of time: I can't say how long, but I suppose about five minutes — not more. There was a confused noise in both galleries and in the northern part of the church. No cross-examination. Mr. ^ilexander Symington — sivorn, with the uplifted hand. I was a member of the Assembly of 1838 — a lay delegate. I attended at the organization of that Assembly, and sat in a pew on the west side of the western aisle, nearer the pulpit than the middle of the house, and nearly opposite to the pew occupied by Mr. Cleaveland and Dr. Beman. I saw and heard Mr, Cleaveland read a paper ; that is, I heard a good many words, but I did not ipliarge my memory with them. I heard distinctly 204 PRESBYTERIAN CHURCH CASE. the phrase, "counsel learned, in the law." T heard a motion to appoint Dr. Beman, Moderator, and a vote in the affirmative on that motion. I did not hear the question reversed. I am unable to say whether there were any negative votes. If there were, I have forgotten the circumstance. I did not vote on that question, or on any one put by Mr. Cleaveland, or subsequently by Dr. Beman or Dr. Fisher. I did not hear .the motion to appoint Dr. Fisher at all^ nor did I know of his appointment, until after the morning sessian, or perhaps that day, though i think I did some time that day. No crofts-exaynination. Mr. [Villiam Hamilton — sworn. I attended at the organization of the General Assembly of 1S3S. I did not know Mr. Cleaveland, but 1 heard a gentleman, who I was afterwards told was he, read a paper. I h^ard him make a motion, or read, or say something. He was looking, on a paper which he held in his hand. I was on the east side of the church, in a pew a little to the north of the east door. I could not hear" what he read or said. There were a great number of gentlemen in my vicinity, byt one only, that I knew. Mr. Cleaveland after reading a portion of the paper, turned partly round from the Moderator, and the gentlemen in his vici!.>>ty rising, I could not, after that, see him distinctly. I heard a very loud vote of aye. There were several ayes close by me, in the pew where I was sitting, and several in the pew before me. The person that I knew voted aye. That gentlemen was the Rev. Mr. Duffield. At the time he said "Aye!" his face was partly towards Mr. Cleaveland, so that I could see the side of it. He was sitting in the pev/ before me. After the ayes were over, another person who had sat beside Mr. Duffield, got up on the seat before me. Mr. DuflBeld had a cane in his hand, and he knocked it down on the seat, and said, "That was done according to law, as slick as could be." He said this three times, looking at me, and those around me, and seeming very much pleased. In a few moments, Mr. Duffield, and the others in my vicinity, left tlieir seats, and went north, but I still re- mained sitting. In the mean time, the crowd Jn the middle aisle moved tovi?ard the north and east doors. I heard then a loud ' 'aye!" and a great part of those who had moved towards the doors, passed out into the lobby. A gentleman was standing at the door, and cried out with a loud voice, that the General Assembly of the Presijyterian Church had adjourned to meet; forthwith, in Mr. Barnes' church. Another person announced the same thijiig at the- other doors, first at the north-west, and then at the north-east door, re- peating the same words. Afterwards, a person made his appearance im- mediately before me, in the east door, and proclaimed that Ibe General Assembly had adjourned to meet in Mr. Barnes' church. It was the Rev. Mr. Phelps. Cross-cxamiJied by Mr. Bandall. I was not a commissioner to the Assembly. The gentleman of whom I speak was the Rev. Mr. George Duffield. I had seen him in the Assembly of 1837: whether he was a member or not I don't know. I think I saw him in the Assembly, sit- ting amongst the members, but I can't say that I saw him taking any part in the proceedings. I have seen him perhaps four or five times, but have never spoken to him. I know that he is not in this city — that is, that he has no pastoral charge here. I don't recollect whether he carried TESTIMONY FOR THE RESPONDENTS. 205 a cane when, I saw him before. I remember distinctly, that at the time of which I have spoken, he had a cane, and that he knocked with it several times. Mr. Joseph B.' Mitchell — sivo7m, ivith the uplifted hand. lam Cashier of the Mechanics' Bank in this city. I attended the church in Ranstead Court at the organization of the Assembly of 1S38. I sat in a pew nearly opposite the soutli-east door, but afterwards removed, and stood in the aisle opposite the pew, for the whole time, except a few mo- ments when I walked round to the clerks' desk. I should say that I was ten or twelve feet from Mr. Cleaveland. If I recollect, he was near the dividing line of the eastern block of pews, three or four pews back of mine. I saw him with a paper in his hand, and he appeared to be read- ying it', but I did not hear its contents. I heard a word occasionally, and understood Mr. Cleaveland's object, but can't give any account of it. At first his face was towards the Moderator and his side towards me. I think that afterwards he turned: from the rising of persons between and the confusion, I lost sight of him, and have no recollection of seeing him at the conclusion of his paper. I think I heard something which seemed to be a motion, in which Dr. Beman's name was involved, but I don't know by whom it was made. I thought that it was for him to be Moderator, or to take the chair — I think to be Moderator. I did not hear the words perfectly. Very soon after this motion, I heard a number of voices cry- ing, "aye!" in a very loud tone. The noise in the house increased. I did not hear the question reversed — certainly there were no negative votes in the part of the church which I occupied: I heard no negative votes at all. Of what followed I can give no definite account. I sup- pose that motions were put, for I heard loud votes of "aye!" but I did not know what had taken place till next day. I think it was on the suc- ceeding day, that I first learned that Dr. Fisher had been appointed Mode- rator. I hitve a brother who is a clergyman in Virginia — Jacob Mitchell. I was not a member of the Assembly. My brother has not been in the city, I think, for a few years. Cross-examined by Mr. Randall The last of my brother's official acts was with the New-school. When I last saw him, he sympathized with the New-school, and was said to be the author of a protest, in the Synod of Virginia, against the proceedings of the other party. I don't like party names, but I am ranked on the Old-school side. Rev. S. Beach Jones — sworn, with the uplifted hand. I attended the organization of the Assembly in 183S, in the church in Ranstead Court. I was a delegate from the Presbytery of Mississippi. I was seated in the fourth or fiftli pew from the front, on the west side of the middle aisle— I should think, about ten or twelve feet from Mr. Cleave- land. I think Mr. Cleaveland, and the gentleman associated with him, were in about the seventh pew, on the east side of the aisle, in a diagonal direction from me. I heard him read a paper, but, though so near, could not hear, distinctly, its contents. I heard him make a motion, however, that Dr. Beman should be either Moderator or Chairman — one of the two, but I cannot say, certainly, which. A rather tumultuous cry of " aye! aye!" succeeded that motion. I heard no reversal of the question, al- though I sat at such a short distance. I heard no reversal, and, I think, no nays : certainly tli^ere were none in my region, and I was sitting in 206 PRESBYTERIAN CHURCH CASE. the body of the house. He then, I think, made a motion, relative to the appointment of clerks. I am not certain, now, that I heard the names of the clerks at the time: I presume that I did, but should not like to affirm it. Immediately subsequent to this, I think, was the removal of the body of persons, who seemed to be surrounding Mr. Cleaveland, to the lower, or north part of the house. The leaders, or those who seemed to be the leaders, appeared to be congregated in the aisle, where they seemed to form a sort of nucleus, but of this I cannot speak with certainty. I heard nothing distinctly after this, excepting ayes; and then, some person an- nouncing, that the General Assembly of the Presbyterian Church had ad- journed to meet, I think he said, in the church on Washington Square; which announcement was repeated by some person, or persons, at the east door of the house. It was a scene of such confusion and tumult, I did not measure the time so accurately, as I should have done, under ordinary circumstances. It was of very short duration — only a few minutes elapsed. I cannot say, with confidence, when it was, that I first heard of t)r. Fisher's appointment. It was either that afternoon, on my return to the Assembly, or next day — certainly not, as I think, until the after- noon. It was my impression, that Dr. iJeman had been Moderator. I did not vote. I had no opportunity to vote upon the side that, of course, i should have voted upon, if I had voted at all. Cross-examined by Mr. Randall. I am still connected with the Presbytery of Mississippi, unless my dismission from that Presbytery was granted at its last meeting, as I requested. I am now the pastor elect of a church in Bridgeton, New Jersey, which belongs to the Presbytery of Philadelphia. I presume that my dismission is now on Its way to thia place. Mr. Samuel Jlgnew — sworn, tuith the uplifted hand, I was not a commissioner to the General Assembly of 1838, but I attended its orga- nization. My position was near the south-west door. I saw Mr. Cleave- land rise, with a paper in his hand, and he proceeded to read amid a great deal of confusion. I did not hear what he said; the confusion was so great as to render it impossible for me to hear. I heard him make a motion, and the purport of it was, that Dr. Beman should take the chair, or preside, or be Moderator, I don't exactly know which. I heard him call for the affirmative votes, but I heard no reversal of the question, and my impression is, that it was not reversed; and the succeeding motion was so immediate, that I think there was not time to have reversed it. The next thing I heard, was what seemed to be another motion, but I cannot say what it was, the confusion was so great. A great many per- sons were standing in the church, and the confusion prevented both my seeing and hearing. After this, a number of motions were put; that is, I heard loud cries of "aye!" and therefore presumed that motions had been put, but cannot tell what they were. I heard no motion made to put Dr. Fisher in the chair, and I did not know, that he occupied that position until the following day. I remember the proclamation of an adjournment to the session-room of the First Presbyterian Church. I should say, that the whole process, from the time that Mr. Cleaveland rose, until the proclamation of the adjournment, occupied from live to ten minutes. I heard some votes from the gallery. TESTIMONY FOR THE RESPONDENTS. 207 Cross-exnmhied by Mt\ Randall. I am a member of Dr. McDowell's church in this city — the Central Church. il/r. Edward C. No7Tis — sworn. I attended the organization of the General Assembly of the Presbyterian Church, in the year 1838. I was standing in the door near the pulpit, on the graveyard — the south-west door, I saw Mr. Cleaveland rise with a paper in his hand. He appeared as if he were reading from the paper. He read in a very loud voice, and I could hear what he said, but do not now remember what it was. After he had finished the paper, as I presumed, he laid it aside, and moved that Dr. Beman should take the chair, I think I heard a very loud affirmative vote from the galleries, as well as from the lower part of the church, I did not hear the question reversed, and do not now recollect that I heard , any negative votes. The next thing I heard, was some persons nominated for clerks, but by whom, I did not know. The next thing that I heard distinctly, was the motion, that the General Assembly should adjourn to the First Presbyterian Church, on Washington Square. Then those col- lected in the rear of the house, I don't know how many, arose and went out. Somebody, in a loud voice, announced, that the General Assembly of the Presbyterian Church — in the United States of America, I think he added — had adjourned to meet in the First Presbyterian Church. I should say, that the whole proceeding did not occupy more than twenty minutes — probably not that long. Cross-examined by Mr. Randall. I was standing part of the time between the door and the stove, and part, between the stove and the backs of the pews. I was among the furthest back of those inside of the house: there were some outside. Those motions, which I heard, were made in a very loud voice. I was not a member of the Assembly. I am a member of the Episcopal Church, and feel no interest in the affairs of the Presby- terian Church. I went to the house in Ranstead Court, at that time, from mere curiosity. Rev John Maclean — sworn. I was a commissioner to the General Assembly of 1838. I did not hear Mr. Cleaveland's motion distinctly, but thought it was to this effect — that Dr. B. — I supposed Dr. Beecher, .should take the chair — I don't recollect whether he used the words " take the chair" or not, but it was something to that purpose. This is all I heard of what Mr. Cleaveland said. I heard very distinctly the response, "Aye!" There was no reversal of the question, and no negative votes. I did not vote upon the question: I had no opportunity, and could not, if I had felt so disposed, I am perfectly willing to say, what I would have done, if I Aac^ heard. I am in doubt, whether I heard the motion, in regard to Dr. Mason and Mr. Gilbert, but I certainly heard nothing subse- quent to that, I did nto know that Dr. Fisher had been appointed Moderator, till the next day, and, not until the afternoon, or the next morning, that Dr. Beman had been called to the chair. I supposed it was Dr. Beecher. Cross-examined by Mr. Randall. I was a member of the Assembly of 1838, and took part in the debate, whether the words, " disorder," " tu- mult," and '•' violence," ought to be used in the minute. 1 objected to the word "violence," for the reason, that some persons might understand by it, that there had been personal violence, something approaching to an assault and battery. Further, I opposed it, because I thought we ought to state the simple facts, without characterizing them. 208 PRESBYTERIAN CHURCH CASE. Mr. Randall. Did you not say, in the course of that debate, that you thought there had been no more disorder, than might naturally have been expected under such circumstances? Prof. Maclean. 1 used words of somewliat analogous import. I said it was true there Iiad been violence, in the sense intended, but no violence, in the sense in which the word might be understood. And I made a re- mark to this effect: that there had been as little disturbance made by the members of the New-school party, as had been possible, in that state of things. The word was not retained, by the casting vote of the speaker: my impression, is that I was in a very small minority. My object was, to have a simple narrative of what had occurred, without any comment; for I had a respect for the motives of my brethren of the New-school. I thought, that the tumult could not be charged on them, though they were the occasion of it. Re-examined by Mr. IngersolL There were loud exclamations of '^ aye!" in response to m.otions which I supposed were put, and there was great excitement. My remark was, that in that condition of things, the disturbance had not been greater, than was natural under the circum- stances. I thought the proceeding disorderl}^ : I have never thought it otherwise. My object was, to defend the motives of my brethren. To- wards the conclusion of the scene, there was clapping and some hissing. By Air. Randall. I did not know any of the individuals who clapped or hissed, but suj)posed .the clapping was in approbation, and the hissing in disapprobation. Mr. Randall. Would not the friends of the measure be most disposed to show approbation, and the opponents of it disapprobation ? Prof. Maclean. As an abstract proposition, I may say they would. By Mr. Ilubbell. I am not aware that there was any disorder among the Old-school. By Mr. Randall. I think some of the commissioners were disorderly, but I saw no clapping or hissing from any member of the Assembly. There was certalnl}?^ disorder. I supposed it was a mere ex-par le organ- ization. The voices of the New-school, in voting, were raised altogether above the pitch necessar}' to their being heard. The voice naturally rises in loudness with excitement. By Mr. Preston. I am almost confident, thatJNIr. Dufilcld was not a member of the Assembly. Mr. Randall He was not: the record shows that. Mr. Charles F. fVorrell — sworn, ivith the uplifted, hand. I was present at the organization of the General Assembly of 1S3S, as a spec- tator. I was in the house and seated, by nine o'clock in the morning, as near as I remember. I heard Mr. Cleaveland's motion. My seat was in the east gallery, in the front pew, the first after those that ascend from the pulpit. Mr. Cleaveland rose with a paper in his hand, having first consulted with a iew persons in his own and the adjoining pews. He commenced reading — that is, he looked on the ])aper and I supposed he was reading. After reading a few words, he turned his face towards the west part of the church. I could have heard most of the words that he uttered, but my attention being distracted by the confusion that was in the house, I cannot tell exactly what he said. His preamble was very similar, 1 think, to the preamble of Dr. Patton. During the reading, he TESTIMONY FOR THE RESPONDENTS. 209 turned round, till the side of his face was towards me and his back almost towards Dr. Elliott. He appeared very much agitated. His last words were those already so often proved — that counsel learned in the law had informed them, that it was necessary that morning, to organize themselves, and that they would do it in the fewest words and the shortest time pos- sible. He was then facing the north-west corner of the house. He moved that Dr. Beman should take the chair, and, in the same breath, put the motion. By this time all the persons in the part of the house north of Mr. Cleaveland had arisen, and some were standing on the seats, and some on the tops of the pews. With one accord, there was a general yell of "Aye!" and there was one aye louder than the rest. That one, so far as I could discover, came from Dr. Beecher of Cincinnati — the old gentleman. The side of his face was towards me, and so far as I could tell, it was Dr. Beecher. There was considerable clapping and some hissing. Some votes came from the galleries on both sides of the house. The motion was not reversed. Mr. Cleaveland then moved, that Mr. Gilbert and Dr. Mason should be temporary clerks, which motion was immediately put without any negative. Dr. Beman then requested that they 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, so that he could not go very far and stopped. He then called for motions, and some person, I don't know who, moved, that Dr. Fisher should be appointed Moderator. This motion was put, but not reversed. I heard then Mr. Gilbertand Dr. Mason nominated for clerks, and that motion, also, was put without any reversal that I heard. It was then moved that they should adjourn to the First Presbyterian Church: the motion was put, but I heard no negative. There were some noes at the same time, or nearly at the same time with the ayes, in an under tone. Then it was announced, that the General Assembly of the Presbyterian Church in the United States of America, had adjourned to meet in the lecture-room of the First Presbyterian Church, and the whole body, with about one third of the audience passed, out at the north door as rapidly as possible. When they were nearly all gone, Mr. Edward Beecher proclaimed, that the General Assembly of the Presbyterian Church in the United States of America, had adjourned to meet in the First Presbyterian Church, and requested all the delegates to attend. Some person made the same proclamation at the east door, but I could not see who he was ; during which the appointment of a Committee of Commissions, which had been moved some time before, was under con- sideration, and Mr, Breckinridge had the floor. Cross-examined by Mr. Randall. I was merely a spectator. Prince- ton, New Jersey, is my present place of residence: before, I have lived in Lancaster county, in this state. I am a student in the Princeton Theo- logical Seminary. Dr. Beecher, at the time he made the loud cry of " Aye!" was standing on the seat, or partly on the seat and partly on the back, or on the back, of the same pew in which Mr, Cleaveland had been sitting, or of one near it, I was almost right over his head. I have never lived in the same town with Dr. Beecher, but I had seen him and heard him make several short speeches in the Convention, at the First Presby- terian Church. Still, I do not say certainly he was the man. I had never seen him before that visk to Philadelphia, and have not seen him since. 27 210 PRESBYTERIAN CHURCH CASE. I feel confident that it was Dr. Beecher, but might possibly be mistaken. I am as confident of its being-he as I could be, after having before seen him only a few times, and then seeing but the side of his face. 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, or between fifty and sixty, or perhaps above sixty. Dr. Beecher's manner is rather mild and persuasive. Court adjourned. FRIDAY MORNING, March 15th— 10 o'clock. Dr. McDowell — re-called. We received, in the Committee of Com- missions, and enrolled as unexceptionable, two hundred and twelve names, and we reported seven more to go to the Committee of Elections, viz: From the Presbytery of Montrose, the Rev. Adam Millar; from the Pres- bytery of Bedford, the Rev. Robert G. Thomson; and from the Presby- tery of Richmond, a Mr. Elliott — these all being without their commis- sions. From the Presbytery of New Castle, General Cunningham, a ruling elder, whose commission wanted the signature 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, Mr. David R. Preston, minister, and Mr. Thomas Beard, elder. We reported two hundred and twelve on the roll, and these seven, to go to the Committee of Elections, whenever one should be appointed — in all, two hundred and nineteen. I can tell how it was in regard to Mr. Moore. When the Moderator asked, that com- missions not yet presented should be brought forward, immediately, or soon after, Mr. Moore came, and laid his commission on the clerks' table; it was examined by the Committee of Commissions, after the retiring body had withdrawn, and the confusion had subsided, and reported by them. I am confident, that he presented the commission that morning, and his name is on the minute, as one of those called and recorded pre- sent in the afternoon. The roll was called in the afternoon, and there were one hundred and fifty-four that answered to their names. These included six of the seven, whose commissions had gone to the Committee of Elections. That committee was appointed in the morning, immedi- ately after the body of the New-school had retired. Sixty-eight persons did not answer to their names. Of these, two, Messrs. White and Ma- gruder, of Charleston Union Presbytery, 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 these, thus marked absent, Mr. Scott rose, and being permitted to give his reasons for not answering, I believe withdrew and went home. That left but sixty-two. I do not know, of my own knowledge, that Mr. Scott went home. Of the one hundred and fifty-four, who answered to their names, Messrs. Rankin and Crothers, from the far West, rose, expressed a wish to be considered as not acting with that body, and withdrew. At the close of the session of our Assem- bly, the roll was called to mark those who were absent without leave; and we found fifty-seven so absent, all of them being of the number of sixty-eight recorded absent before. There were four commissioners, who TESTIMONY FOR THE RESPONDENTS. 211 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 of those who acted with that Assembly, one hundred and sixty -one. I was not a member of the Assembly. Examined by Mr. Preston. Dr. Witherspoon was present at the opening of the Assembly. He was the Moderator immediately preceding Dr. Elliott. Dr. Phillips immediately preceded Dr. Witherspoon. I sup- pose that Dr. Wm. A. McDowell was present, though he was not a member. He had been Moderator in 1833. There were other persons present who had been Moderators. Dr. Green had been, and the wit- ness. Dr. Beman was moderator in 1831. I was appointed Stated Clerk, in the year 1836, after Dr. Ely had resigned the place. Before that, I held the office of Permanent Clerk, or scribe of the Assembly, from 1825, to 1836. In 1837 I held both offices, and was alone on the Committee of Commissions. Cross-examined by Mr. Randall. 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, (handing to the witness the JMinutes (Old-school) of 1838, page 47.) Please to count again the list of absentees, and tell us how many there are. Dr. McDowell, (after counting) I find the number was sixty-five. I must have made a mistake in counting before. Mr. Hubbell. Had Dr. Hoge been Moderator since Dr. Beman? Dr. McDowell. I am not able immediately to say. Prof. Maclean — permission having been giveji to him, to explain his testimony. I have been informed, that my testimony might be mis- understood. I was asked a question of this import: whether I had not said, that there was as little disorder as possible under such circumstances. I answered in the affirmative, but did not mean that it should he inferred, that there was little or no disorder. I meant only, that, considering the business in which they were engaged, they made as little disturbance as could be expected. Part of the disorder which I referred to, was made by Mr. Cleaveland. He read a disorderly paper, and did not obey the Moderator, when he called him 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 unable t!0 hear the questions put. and did not vote. Here the Respondents closed. REBUTTING TESTIMONY FOR THE RELATORS. Dr. Hill — re-called. I think there was sufficient time given for the vote on Mr. Cleaveland's motion for the appointment of Dr. Beman as Moderator, and I think the question was reversed. I think I may say it ivas reversed, and I will give my reasons for saying so. When Mr. Cleaveland was about t^ put that question, in my estimation, it was the 212 PRESBYTERIAN CHURCH CASE. most critical and interesting moment in the whole proceeding, because it was the incipient step in the organization. This awakened all my atten- tion. I may state here, that I had opposed the separate organization. Mr. Randall. We cannot go into the previous meeting. Dr. Hill. I had determined, beforehand, to take no part, and was op- posed to the proceeding, from the very first. I voted on none of the questions, and identified myself with neither party. I occupied neutral ground. I expected that a riot would ensue. My feelings were wound up to a very high pitch of excitement, which made me peculiarly atten- tive at this crisis. When Mr. Cleaveland made the motion, that Dr. Be- man should take the chair, he put the ffirmative — " 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 which were very indecorously and offensively loud, but I know not from whom they came in a single instance. They appeared to come from back of me, but I did not turn round: I kept my face toward Dr. Elliott. Afterwards there fell in a few scattering ayes. Mr. Cleaveland, as, from the first, he had intended to do all in the shortest time possible, reversed the question very quickly: I dont know, that all the scattering ayes had ceased, when he reversed it. I heard a few scattering noes, only from the direction of the Old-school — a few from the south-west, and some from immediately in front of me. I was astonished at this, because I expected a thundering " No!" as they claimed to be the majority. As there were so few nega- tives, I was surprised that there had been any. I thought they were, at least, not well trained. For these reasons my attention was particularly called to the proceedings at that crisis. I think 1 cannot 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 the utmost decorum. He is, I believe, at present in Cin- cinnati, not here on the ground. He is very much of a gentleman in his deportment, so far as I am acquainted with him. My location was such, that I could not be deceived in regard to him, for I sat right 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 niistaken in the case. Cross-examined hy Mr. Preston. I was surprised at hearing any noes, and disappointed. I had expected that the noes would be of another cha- racter, and was agreeably disappointed. I had anticipated these events, and had feared, that a great riot would take place. 1 really cannot say, from personal knowledge, whether the Old-school had a majority. I know they claim to have had a majority, and I rather suppose it was the fact. Mr. James R. Gemmell— -sworn. I attended at the church in Ran- stead Court, on the day of the organization of the Assembly of 1S3S. I was near the south-west door, leaning on a pew, just under the gallery, not far from the Moderator. I remember Mr. Cleaveland's rising, and his stating that he wished to offer a resolution. There were a parcel of Old- REBUTTING TESTIMONY FOR THE RELATORS. 213 school brethren at my right. In the pew on which I was leaning, there was a great noise, and scraping and coughing. I said to them, that that was pretty conduct for ministers; that they might as well hear what the gentleman had to say. One of them answered, yes, that they might as well. I don't remember Lhat there was any coughing; but there was a great scraping of the feet, and stamping, in the pew on which I was lean- ing. Mr. Boardman was there, and Mr. James Latta. I was called here, to give evidence very unexpectedly. Cross-examined by Mr. Huhhell. I turned and said, this was pretty conduct for clergymen; that they might hear what the gentleman had to read, though he was not a member. I am not a member of any church. I attend the First Presbyterian Church — Mr. Barnes's. . By Mr. Preston. I knew but few of those near me. Mr. Boardman was two or three pews off, and so was Mr. William, or James, Latta. Mr. Finney, of New Castle Presbytery, was the nearest to me that I knew. My face was towards the Moderator, and I heard scraping among these gentlemen. Mr. Finney, I say, was the nearest: the others were not so near. I addressed those nearest to me, of whom, as I said, Mr. Finney was one. Mr. Boardman was a pew or two off. I knew those near me to be ministers. My observation 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 were near enough to hear it. There was a tumult through the house. I was in the midst of the Old-school party. I can't saw that I knew more than a few individuals who sat near me. I under- stood 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, as Mr. Latta. I think all near me were Old-school: as well as I could recognise them they were; but I am not positive about those whose names 1 did not know. There did not seem to be as much noise near Mr. Cleaveland, as there was about me. I should not call it a riot: there was scraping and coughing. 1 was twenty or thirty feet from Mr. Cleaveland, and the noise, generally, was in that part where I sat. By Mr. IngersolL I don't know whether the aisles of the church, or the pews, were carpeted. I rather think there is a brick pavement. By Mr. Preston. I went to the church just before Dr. Elliott closed his sermon, and entered from the grave-yard. My going to that quarter of the house was purely accidental; indeed, it was accidental that I went at all. I had some business up Market-street, and I merely stopped in as I was passing. Mr. Randall. The Minutes show that Mr. Latta was a member of the Assembly, in both 1837 and '38. Mr. Elihu D. Tarr — affirmed. My profession is the same as your own, (Mr. Randall's) — I am a member of the bar. I attended the organi- zation of the Assembly of 1838. My location was three or four pews behind Mr. Cleaveland. I heard him put his motion, distinctly, and heard the ayes. I heard the question reversed, as I know, because I dis- tinctly heard a few noes, rather to the north-west, and was surprised that the noes did not overwhelm the ayes. It had been intimated, as it was afterwards found, that the Old-school had a majority, and 1 was surprised that they did not vote the resolution down. It was from the south-west part of the house that^he noes came. Did I say before the north-west? 214 PRESBYTERIAN CHURCH CASE. As I stood looking at the pulpit, they came from my front, and my right hand. Cross-examined by Mr. Preston. I am now a memher of Mr. Rood's church. Previously, I belonged to Mr. Winchester's, then to Mr, Board- man's, and now to Mr. Rood's. I heard the noes distinctly. I have at- tended the legislature of this State. There were probably from three to half-a-dozen noes. I heard the question put in regard to the clerks, and if my recollection serves me, there were more noes on that 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 put. I heard the motion made in regard to Di*. Fisher, but don't recollect whe- ther there were any noes on that vote. I can't say whether there were any or not. I was surrounded by the New-school party, and was very near Mr. Cleaveland. Mr. Rood, my impression is, belongs to the Third Presbytery of Philadelphia, but I cannot say certainly. When I removed to the Northern Liberties, I went to his church, without asking whether he was New, or Old-school. I am decidedly in favour of the conduct and transactions of the New-school part}^, and opposed to those of the Old-school; but it is due to myself, and to the jury, to say, that I did not make up my mind on this subject, until after the proceedings of 1838. Mr. James TV. Paul — sworn. I am a member of the bar. I belong to Mr. Barnes' church — the First Presbyterian Church. I attended the church in Ranstead Court, at the organization of the Assembly of 1838, and stood in the gallery, in front of the organ. I heard, distinctly, Mr. Cleaveland's motion, the vote on it in the atlirmative, and my impression is, tliat also in the negative. I think I heard some noes distinctly, a short time after the ayes. I can't be certain, but this is my impression, and I will give a reason why I think my impression correct. Knowing that Dr. Beman was I heard from eight to ten negative voices, and 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 can- not be mistaken. There was considerable confusion when Mr. Cleave- land 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 as still as it possibly could be. 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 am a clergyman, and preach ■in thc' First Presbyterian Church of Fairmount. Previously, I have preach- ed in the First Presbyterian Church at Manayunk. These churches be- long to the Third Presbytery. I entirely sympathize with the New-school. Cross-examined by il/r. Preston. I heard the reversal of the ques- tion, as distinctly as the affirmative, but it was more rapid. I think it was distinct enough for every one in the house to have heard it, if dispos- ed to hear, as I was. An individual might have made so much noise, that he could not hear. It was put when the house was the quietest. I was about the middle of the aisle. Br. Benian came out of the pew di- rectly by my side: I could have laid my hand upon his shoulder. He put the question, on the appointment of clerks, while standing directly by me. I was not a iTiember of the Assembly, and did not vote. I am connected with Mr. McClelland, one of the relators in this case : he is my father-in-law. I stated this to Mr. Randall. He told me it was no objection. I was licensed by a Congregational Association, but ordained by the Presbytery. I was born in New England, and received my Theological education at New Haven. I continued in my position near Dr. Beman, until the close of the proceedings, and went away from the church among those who acted with him. I recollect some noise on the announcement of one or two of the motions, and a good deal, when Dr. Fisher announced the adjournment. Then there was considerable clap- ping and some hissing. I mentioned to Mr. Gilbert my relationship to Mr. McClelland, and he said that he would tell Mr. Randall. Rev. Daniel W. Lathrop — sworn. I attended the Assembly of 1838, as a commissioner from Lorain Presbytery, in the Synod of the Western Reserve, one of the exscinded Synods. I came as a minister. I heard Mr. Cleaveland make his remarks, and heard the substance of 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. He stated the question in an audi- ble voice, louder than usual. He put both the affirmative, and the negative, and there were some negative votes; one of them my own. I don't recollect any others in my neighbourhood. I was on the east aisle. Some two or three of the noes were in front of me, and the rest were in the south-west part of the house. My recollec- tion of the noise that I heard is, that it consisted principally of cries of order, from the south and south-west parts of the house, with some from the south-east. They came, chiefly, from near the Moderator, and from west of hgn. I heard no noise, or confusion, in the vici- 28 219 PRESBYTERIAN CHURCH CASE. nity of Mr. Cleaveland. With the exception of himself, and the others who proposed questions, all were silent, until he called for the ayes: then there was a distinct and loud i-esponse. There was no other noise in that vicinit}'' than the one alluded to. There was one aye louder than the rest. The reason why I know there was a reversal of the question, is, that I voted in the negative. I recollect the reasons I had for so doing. I saw the gentleman, from whom I supposed the loud aye came: he was an elder from the Presbytery of Montrose. Foster was his name. It was not Dr. Beecher. Cross-examined by Mr. Preston, I voted in the negative, on the first question. I did not also vote in the affirmative. Mr. Preston. You have spoken of your reasons for voting in the ne- gative: what were those reasons? Mr. Randall. Is that a proper question — what the motives of the witness were? Judge Rogers. The fact that the witness did vote is evidence, but his reasons for voting in a particular way are not. Mr. Hubhell. Your Honour will please to note an exception to this decision. Mr. Preston. With submission to your Honour's opinion, I would suggest that we do not now ask for general reasons: the object of the question is to discover whether there was not a preconcerted plan that some of the New-school should vote in the negative. The counsel for the relators withdrew their objection. Mr. Lathrop. I arrived in the city, at ten o'clock, on the evening previous to the opening of the Assembly, and had no opportunity for consultation with either party, or any school, except with two or three persons, whom I fell in with 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 the peculiar character of those services, and I was deeply pondering, and was very much affected by them. This continued, until my attention was arrested by the subsequent proceedings. When Mr. Cleaveland rose, and moved the appointment of a Moderator, this did not strike me as the course I should like to pursue. That was the simple, and only, reason for voting as I did — in the negative. I believe I voted aye on all the subsequent questions, excepting the first nomination of clerks — as to this, I am not positive. My commission had been rejected by Dr. McDowell. I think, that on my way, or as I was going out of the committee-room, I gave it into the hands of a gentleman, who had been similarly treated — I think it was Mr. S(juier. I am not certain that I had not the commission at the time. 1 have no stronger assurance, in regard to this point, than in regard 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 on no other standing committee. I don't recollect whether I was on any other com- mittee. I think I was not on the committee to revise the minutes. I think I was a member of the committee to form a Pastoral Letter. I have no recollection of being on a committee to prepare a minute of the REBUTTING TESTIMONY FOR THE RELATORS. 219 organization of the Assembly. My impression is, that there was such a committee. My recollection is not distinct in regard to this point, but such is my impression. I can't tell how often I have sat in the Asse.mbly ; I think about eight times. One session I sat as a committee-man — the session of 1820. I came to that Assembly, of which Dr. John McDowell was chosen Moderator, from the Presbytery of Hartford, Synod of Western Reserve, then, now, and ever, a good, thorough Old-school Presbytery. My com- mission was questioned, and discussed a long while; and the previous Mo- derator, seeing that the discussion was likely to occupy considerable time, asked me, if 1 would not wave my right to have the question decided before a new Moderator had been chosen, and I did so. Afterwards, my seat was given to me. I was, first, a member of a Congregational church •in Norwich, Connecticut, where I was born, that being the only church in the parish. I was licensed and ordained by the Rev. John McDowell, and his associates, in a Presbytery of New Jersey. Afterwards, I be- longed to the Synod of Pittsburg, in which I remained until detached from it, in 1S37. I have sent reports of the progress of this trial to the editor of the New York Journal of Commerce, and have seen two of them published. The reports in that paper are from my hand. I am a friend of the editor's. Mr. Randall. In the case of Duncan, against the Ninth Presbyterian Church, Dr. Green, one of the Respondents in this case, was examined, and I propose, now, to read his testimony. It has been intimated, that an objection will be made. I offer it as the confessions of a party. The counsel for the respondents objected. Mr. Randall. I withdraw the offer. The next evidence — Minutes (Old-school) of 1838 — the minute of the organization of the Assembly. "The General Assembly of the Preshyt'^rian Church, in the United Stales of Ame- rica, met agreeably to appointment, in the Seventli Prf.ebytprian Church, in the city of Philadelphia, on 'I'hursday, the 17lh day of May. A. D. 1838, at 11 o'clock, A. M. ; and was opened with a sermon by ihp Rev. David JEUiott, D. D., the Moderator of the last Assembly, from Isaiah 60. 1. 'Arise, shine, (or thy light is come, and the glory of the Lord is risfn upon thee.' " After the sermon, the Moderator gave notice that as soon as the benediction was pronouDCfd, he would take the chair, and proceed to the organization of the Assembly. The benedi( tinn bemg pronounced, the Moderator took the chair, and having opened the meeting wiih p ayer, 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 leave to offer crtain resoUiiions which he held in his hand. " The Moderator declared the request at that time to be out of order, as the first busi- ness 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 slated that the resolu- tions related to the formation of the roll, and began to read the same; but being called to Older, took his seat. "The Permanent Clerk, from the Standing Committee of Commissionp, reported that the following persons, present, have been duly appointed, and are enrolled as Conimii- Bioners to the General Assembly, and laid their commissions on the table, viz." (Here follows the roll.) "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 Montrose; and Mr. James Elliott, a ruling elder of the Presbytery of Richland, have Plated to the committee that they were appointed by their respective Presbyteries, but have not their commissions; that the cqyimission of Mr. John W. Cunningham, a ruling elder from the Presbytery of New Castle, wants the signature of the Moderator; and that the 220 PRESBYTERIAN CHURCH CASE. 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 tlie Pres- bytery of Greenbrier, which commissions were accou)panied with an attested extract from the minutes of the Synod of Virginia, certifying that said Presbytery was regu- larly constituted by the Synod of Virginia, October 10th, 1837. " The. documents referred to in the foregoing report of the informal cases, were kid 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 commifsions had been examined, and wliose 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 belonging to the Pres- byterian 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 adding the names of certain commissioners, who, he said, had offered 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 session of last year I Dr. Ma- son replied that they were from Presbyteries belonging to the Synods of Utica, Geneva, Genesee, and the Western Reserve. The Moderator then stated that themotion 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 right to his seat. ' The Moderator inquired if the Presbytery of Geneva was within the bounds of the Synod of Geneva. Mr. Squier replied that it was. The Mo- derator said: "Then we do not know you, sir," and declared the application out of order. Mr. Cleaveland then rose and began to read a paper, the purport of which was not heard, when the 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, fr )m the Presbytery of Huntingdon, presented a com- mission, which being examined by the Committee of Commissions, Mr. Moore was en- rolled, and took his seat, "It was then moved to appoint a Committee of Elections to which the informal com- missions might be referred. But the reading by Mr. Cleaveland still continuing, the Moderator, having in vain again called to order, "took his seat, and the residue of the Assembly remaining silent, the 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. Culbertson, J. L. R. Davies, and Hugh Campbell, as a Committee of Elections. " The Rev. William S. Plumer was unanimously elected Moderator ; and the Rev. Elias 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 Assembly, and recommended that they be severally admitted to seats, viz: Rev. Robert G. Thompson, of the Presbytery of Bedford;' Mr. James Elliott, ruling elder of the Presbytery of Rich- land; Mr. John W. Cunningham, ruling elder of the Presbytery of New Castle; the Rev. Ephraim P. Bradford, and Rev. David R. Preston, and Mr. Thomas Beard, ruling elder, from the Presbytery of Greenbrier; they further reported that the Rev. Adam Millar, of the Presbytery 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. Thomp- son, 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." TESTIMONY FOR THE RESPONDENiS. 221 Mr. Bandall. We offer, also, the whole of the statistical table append- ed to the same Minutes, but without reading, as it occupies forty or fifty- pages. The last evidence. offered, was certain extracts from the unpublished manuscript minutes of some of the earlier Assemblies, going to prove the same point on which similar evidence had before been extracted from the printed minutes — that it had been customary, in the Assembly, to deter- mine contested rights of membership, previously to the choice of a Mode- rator. Merely the references are given, Fol I.p.2G.— P^ol JI.pp. 104, 30S.— Vol. HI. p. 378. — Fb/. IV. pp. 19S, 253. Here the testimony fortlie Relators closed. TESTIMONY FOR THE RESPONDENTS. Mr. Hubhell. We offer the whole of the New-school Minutes as evi- dence against the Relators. Mr. Meredith. We desire to know the particular parts which are re- lied on, and for what purpose. Mr. Hnhhell. Every part. Mr. Meredith. We object to the offer of the whole. Mr. Hubhell. These minutes contain repeated contradictions of the testimony of the witnesses on the other side. Mr. Meredith. Will the counsel be good enough to point them out? Mr. HubbelL To do that I must make a speech upon the subject. You have the advantage of the conclusion. Mr. Meredith. We make no objection to these minutes, if offered to contradict our witnesses, in matters brought out on the examination in chief; but as contradictory of their evidence on cross-examination, as to collateral matters, they are inadmissable. Mr. liubbell. I offer in evidence, according to our agreement, the whole of the Minutes of the body that met, in 1838, in the First Presby- terian Church: We see contradictions of the testimony offered on the part of the Relators, in every line. A part of these minutes has already been given on the other side — that relating to the election of trustees; and we have given a part of the Pastoral Letter. Now we desire to offer the rest. Mr. Meredith. The thing would be simplified if my learned friend would give us an example of the contradictions which he alludes to. - Judge Rogers. Hereafter, I shall admit what is evidence, and what is not 1 shall reject. Mr. Meredith. We are very glad of our minutes' being read, but not to contradict our witnesses, as to collateral facts brought out on cross-ex- amination. Judge Rogers. You both seem to be of the same opinion. Mr. Meredith. I now understand it then for the first time. I under- stand, that the testimony is offered to contradict our evidence, and not statements as to collateral facts. But I have not yet heard such a declara- tion from the opposite party. 222 PRESBYTERIAN CHURCH CASE. Mr, Huhbell. There may be some difference of opinion as to what facts are collateral. Mr. Meredith. That your Honour must decide. Mr. Huhbell. In whatever your Honour decides we shall acquiesce. Judge Rogers. Gentlemen, I can't see how you differ. I hate these sweepings of the case. Mr. Huhbell. As the opposite counsel have exacted an explanation from us, we ask the same from them. Mr. Meredith. We stated at the time the offer was made, what parts we gave in evidence — the minute of the organization, and the statistical table at the end. These are all to which we shall refer. (The Pastoral Letter from these Minutes has been already given. We here insert the minute of the organization.) Minutes {New-school) 1838, p, 635 el seq. "The General Assembly of the Presbyterian Church in the United States of America met, aorreeably to appointment, in the Seventh Presbyterian Church, in the city of Philadelpliia, 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 tlie 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 tlie 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 open, ed the meeting with prayer. " The Rev. William Patton, D. D., from the Third Presbytery of New York, then rose, and asked leave to offer the following preamble and resolutions." (Then follow the resolutions before inserted — Ante p. 51.) "The Moderator declared him to be out of order, and refused to allow them to be read. Dr. Patton then staled 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 reportof the clerks upon the roll. Dr. Patton then appealed from the decision of the chair. The appeal was seconded, and the Moderator declared the ap leal to be out of order, and refused to put it, and directed the clerk to make his report upon the roll. Dr. Paiton then declared to the Moderator that the papi-'r he wished read had relation to forming 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. Paiton 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 fullows:" (Then comes the roll.) " The reading of the report being finished, the Moderator announced that if there were commissioners from any Presbyteries of the Presbyterian Church who had not been enrolled, then was the proper time to make application to have their names put upon the roll. "Thereupon the Rev. Erskine Mason, D. D., from the Third Presbytery of New York, rose and offtired the following resolution: " ' Resolved, 'J'hat the roll be now completed by adding the names of all the commis- sioners now present from the several Presbyteries within the bounds of the Synods of Uiica, Geneva, Genesee, and the Western Reserve.' " And staled 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, Genesee, and the Western Reserve. The TESTIMONY FOR THE RESPONDENTS. 223 Moderator then stated that they could not be received. Dr. Mason then formally ten- dered the commissions of commissioners from — " (Next come the names of the Presbyteries within the four disowned Synods, with the commissioners from each.) " And demanded that tliey be put upon the roll. The resolution was second'ed. The Moderator declared it out of order. Dr. Mason then said, that with the gfreatest respect for the chair, he must appeal from that decision. The appeal was seconded. The Mo- derator declared the appeal out of order, and refused to put it. " The Rev. Miles P. Squier, from the Presbytery of Geneva, then rose and addressed the chair, statinj^ that he had a commission from tho Presbytery of Geneva, which he had presented to the clerks, who refused to receive it, and he demandpd his right to his seat and required his name to be enrolled. The Moderator asked him if the Pres- bytery of Geneva was within the Synod of Geneva. Mr. Squier replied that it was within the bounds of the Synod of Geneva. The Moderator then said, ' We do not know yon,' 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 nrganizaiion of the Gene- ral Assembly of 1838, till its own officers should be appointed, thus impeding the con- stitutional progress of business, the Rev. John P. Cleaveland, of tlie Presbytery of De- troit, rose and stated in substance as follows: — that as the Commissioners to the Gene- ral Assembly for 18.38, 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 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 as a matter of necessity, if we now proceed to organize the General Assembly for 1838, in the fewest words, the shortest time, and with the least interruption practicable. He therefore moved that Dr. Beman, from the Presbytery of Troy, be Moderator to preside till a new Modera- tor be chosen. The motion was seconded by the Rev. Baxter Dickinson from the Pres- bytery of Cincinnati, 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 the Rev. E. W. Gilbert, from the Presbytery of Wil- migton, be clerks pro tempore; and no other persons being put in nomination, they were unanimously appointed. "The followmg is the roll of the General Assembly as completed by the clerks :" (Then comes the whole roll.) "The Rev. Samuel Fisher, 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 announced to Dr. Fisher that he was duly elected Moderator of the General Assembly; and on leav- ing the chair, mformed him that he was to be governed in his office by the rules of the General Assembly hereafter to he 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 : "'Resolutionof the Trustees of the 7th Presbyterian Church, adopted May 7th, 1838. *^* Resolved, That the General Assembly of the Presbyterian Church, which is to convene in Philadelphia on the 17lh inst. and which shall be organized under the di- rection of the Moderator, and clerks, officiating during the meeting of the last Assem- bly, shall have the use of the Seventh Presbyterian church during tferr sessions, to the exclusion of every other Assembly or Convention which may be organized during the same period of time. (Signed) JAMES SCHOTT, President of the Bo-ird of Trustees.' "It was moved and seconded that the General Assembly now adjourn to meet forth- with 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 Commis- sions should do 80 at the First Presbyterian church. "The Assembly being again met at the Lecture Room of the First Presbyterian church, Dr. Patton again Offered hie preamble and resolutions, as follows, which were unanimously adopted :" 224 PRESBYTERIAN CHURCH CASE. (The same as before inserted — Ante, p. 51.) " Commissions were called for, and committed to tiie hands of the Stated and Perma- nent Clerks. " Adjourned to meet in this place at 4 o'clock, P. M. " Concluded with prayer." The deposition of Rev. Eliphalet Nott, dated February 26th, 1839, was then offered. The counsel for the relators objecting to certain parts of it, the Court, after readinc; the deposition, decided that the portion relat- ing to the occurrences at the time of the organization were admissible, but that the other portions were not. Mr. HiibbcU, requested his Honour to note an exception, and withdrew the offer, declining to present the deposition in a mutilated form. Mr. JBoardman — re-called. I have heard the testimony of the several witnesses examined this morning, in regard to the noise made by the Old- school party. Their statements are altogether counter to my own strong impression of the case, and as to myself, are entirely 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 Mo- derator and those in his vicinity. I heard nothing of the remarks of Mr. Gemmell, that this was pretty conduct for ministers of the Gospel, &c. No 'cross-examination. Dr. Phillips — re-called. Mr. Boardman Sat in the same pew with me, or in an adjoining one. I am positive that he made no noise, and that there was nothing unbecoming in his manner. There was no scrap- ing or stamping in our vicinity. There were calls to order, in which I joined. I recollect that at some time during the proceedings of the New- school party, Mr. Boardman remarked to me, "How true it is, that whom God has determined to destroy, he first makes mad." He did not use the Latin words, " Quern Deus vult,&Lc." but the translation. No cross-eocarnination. Mr. Lowrie— re-called. I did not observe Mr. Board man's position at all. From what he says, I think I must have been in the pew adjoin- ing his. I sat next the door of the pew. I heard no coughing in my neighbourhood: certainly there was no legislative coughing. There was no stamping or scraping in that part of the house, and no calls, excepting calls to order. No cross-examination. Mr. Auchincloss — re-called. I was close by Mr. Boardman, and nei- ther saw or heard any stamping, scraping, or rubbing in that vicinity. No cross-examination. Mr. Krebs — re-called. In giving my testimony, I omitted one point. Dr. Mason 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 ever handed to me; his name was never on my roll, and I never uttered it. I wish also to explain one thing in my testimony, in regard to Mr. Joshua Moore. I said, that the minute was incorrect, as to the precise point of time when he presented his commission, and was enrolled. The fact is, that there was an interval between his first appearance, and his pre- senting his commission, which he sent after to his lodgings. Here the testimon}' closed. 225 MR. MEREDITH'S ARGUMENT. SATURDAY MORNING, March 16th— 10 o'clock. liefore addressing the jury, I beg leave to request, that your Honour ^vIU take upon your notes a few references to points on which my col- league intends to insist. I shall not myself dwell upon any authorities, in the course of my argument, Jingell and Jimes on Corporations, 247, 8, 252, 275, 8, 219, 277, 244, 5. I am very glad, gentlemen of the jury, that in discharging my duty to the relators in this suit, I stand in a court of the State of Pennsylvania: 1 am glad on your account, as well as on that of others. In this State, the law of corporations, governed as it is by the principles of common sense, is so well settled, so clearly determined, that it is not necessary to go into a length- ened exposition of it, or to cite numerous authorities. The question which you are to decide is solely a question of fact: the law applicable to the facts is perfectly plain and simple. The controversy in which we are engaged, is, however, one of a very peculiar nature — peculiar as re- gards the interests involved, the number of the parties concerned, and the depth of feeling which it has excited. I wish I could sa}' it was an unexampled controversy: unfortunately there have been but too many instances of the same kind. Parties have but too often divided religious corporations, and been obliged to refer their differences to the decision of courts of law. There is one thing which I beg you to observe in the outset: it will serve as a key to the whole case. The plaintiffs in this suit do not come into court, as a party desiring to deprive another of any of its rights or privileges. We have not thought to exclude any portion of our brethren, without trial, much less without accusation, from our ecclesiastical con- nexion. We do not claim to be the Presbyterian Church, in contradis- tinction to any other body claiming that title. We do not contend for a power like that exercised by our brethren of the opposite party — the power of deciding by our single ipse dixit, by a judgment given ex ca- thedra, who are, and who are not, Presbyterians; and this without leav- ing any chance of redress to the party thus judged, if wronged by the decision. I need scarcely add, that we, at all events, do not arrogate to ourselves the right of seizing and confiscating the properly of others at our will. We merely stand in the defence of our own rights — our own rights of property, and, what is still more important, our Christian privileges, and our Christian communion. I speak thus of property, not that it is that for which we are here contending, but because the opposite party have chosen so to represent the case in this respect, as to prejudice your minds, and throw a false colouring over the controversy. A few words, therefore, in regard to this matter will conduce to a right under- 29 226 PRESBYTERIAN CHURCH CASE. You have heard It stated, that it is not the design of our opponents to affect, in the least, our rights of property, but that they are willing to share with us the funds of the Church. Here are the terms of compro- mise which are offered to us. " We," say our brethren on the other side, "We will take Princeton Seminary, and we, the Old-school will be the rightful successors in our corporate privileges; while you, the New- school, are to be considered as seceders." Then comes the clause provi- ding for this equal and just division of property: "All other funds shall be equally divided between the two bodies, so far as it can be done in eonformity with the intention of the donors?" But the whole property was given by the donors to the Presbyterian Church in the United States, , and to it alone. The moment, then, that you find any property suscep- tible of division, this very circumstance shows that it does not belong to the Church, but to some body else. Deny that the New-school brethren are Presbyterians — deny them the right of succession, and they are a body to whom no one of the donors ever intended a cent to be appro- priated. The necessary consequence is, that under cover of this fair, just, and liberal offer, our opponents would retain every particle of the pro- perty in question. But we care very little about property, and, therefore, in our opening, laid very little stress upon this point. For charity's sake we might be willing to relinquish all our interest in the funds of the Church, nor even interpose a plea for the humbler worshippers who have raised their lowly temples for the service of God within the bounds of those four Synods. We care not much, even if they all should suffer under the operation of the plan proposed by our opponents; even if they should be ejected by strangers from the houses w4iere their fathers have worshipped. To all this, though with aching hearts, we might agree: all would be of less consequence than the destruction of harmony and peace. We care not for Church funds, and for the sake of peace will sacrifice them; but we cannot, even for peace's sake, abandon our communion. On the side of our opponents, however, you see the question of property brought forward, as that of primary importance; and, at the same time, they seem conscious that some explanation on this point was necessary. This cause is brought before you from the necessity of the case: it does not involve, as it has been said to do, any question in regard to theologi- cal docirines, but merely a question of law. Driven by what we call harsh treatment and unjustifiable violence — by the course of proceedings jpursued by our opponents, either to relinquish our rights, or appeal to the laws of our country for succour, we attempted in 1838, a legal organization of the General Assembly; but now we find those, who were really sece- diers from the Presbyterian Church, persisting in their unlawful endea- vours to deprive us of our dearest privileges. The simple question which you have to answer, in deciding upon this case, is, whether certain persons, the Relators in the suit, have been duly elected to fill the office of Trustees of the General Assembly. These Trustees were incorporated by an act of the legislature of Pennsylvania, in the year 1799, and are therefore amenable to the general law of corpo- rations. Such is the formal issue presented by the pleadings, and there- fore we were entitled to object to the course taken by the opposite counsel in their defence. But we have always desired, that the general features .of the whole case should be developed, and that the investigation should MR. MEREDITH'S ARGUMENT. 227 not be closely confined by mere technical rules. The determination of the formal issue depends, altogether, upon the decision of another question — a secondary issue, viz; which of two bodies that met in 1838, each claiming the title, was, in fact, the true General Assembly of the Presby- terian Church. You will recollect, that the members of the corporation — the trustees — are elected by the Assembly, according to the provisions of the act of 1799, which gives that judicatory the power of changing one- third of the whole number of trustees every year. Now a body claiming to be the General Assembly, has elected the Relators in this suit, to the .office of trustees, and, in so doing, has removed certain other persons, the defendants before you. You will hear no objection made to the power of the General Assembly to make such a change. If we Were the true Assembly, no objection can be made to our having thus acted: we have changed only one-third of the number of corporators, electing that many new trustees, thereby, of course, removing an equal number from their offices. This, I say then, is a secondary issue — not a collateral one. Was the body that met in the First Presbyterian Church, in May, 1838, the true General Assembly ? Now I need not tell you, that, for the settlement of all such questions, the law provides, and the tribunals of justice are ever open. The adjust- ment of every claim and dispute, touching such public franchises, or grow- ing out of charters of incorporation, must of necessity be conformable to the general laws which govern corporations. The corporation now the subject of your cognizance, is not of an un- common species; but, at the same time, is not of the most ordinary kind. It is a corporation composed of the trustees alone, but without the power of keeping up its own succession ; the filling of all vacancies, and all changes in its composition being left to the General Aasembly, which is, therefore, though not a corporate body, quasi corporate, being similar to the corpo- rations of municipal towns. The members of the Assembly constitute the electoral body. Now, in order to understand the powers and organiza- tion of this Assembly, it will be necessary to look into the Constitution of the Presbyterian Church. Those parts of the Constitution which relate to this subject, I shall therefore briefly explain, detaining you here but for a few moments, as I intend to perform the tasjt allotted to me "in the short- est time, in the fewest words, and with the least interruption possible," hoping to give no offence. Unless you fully understand the nature of this Constitution, you can never fairly determine the matter in dispute, or com- prehend the relative positions of the parties. The Constitution, gentlemen, contains among other things, the Confes- sion of Faith of the Presbyterian Church; but with that, fortunately, we have nothing to do. I trust we should all be disposed to treat questions involving the consideration of that part of the volume, in a spirit some- what different from that, which may not be unbecoming in the present case. Here, I say, we have nothing to do with the larger and more important part of the Constitution — that we shall not touch. The Form of Church Government is the only portion to which your attention need be directed; and this differs, in some respects, from the forms of most other Churches. Presbyterian government is lodged in a succession of judicatories — so they are expressly and technically styled. These are courts of justice, andjio proper legislative powers are delegated to any of 228 PRESBYTERIAN CHURCH CASE, them; though I do not mean to say, that no act of discipline can be law- fully performed by them, unless in a strictly judicial manner: I do not deny them the ordinary rights of bodies corporate, or quasi corporate. As to the faith, the holy mysteries of religion, and the discipline of the Church, they are essentially defined in the book itself, and no power to pass them by, or alter them, has been given to any of these Judicatories, or to all of them combined. Their general powers are thus prescribed: "These Assemblies ought not to possess any civil jurisdiction, nor to inflict any civil penalties. Their power is wholly moral, or spiritual, and that only ministerial and declarative. They possess the right of requiring obedience to the laws of Christ, and of excluding the disobedient and dis- orderly from the privileges of the church. To give efficiency, however, to this necessary and scriptural authority, they possess the powers requi- site for obtaining evidence and inflicting censure: they can call before them any offender against the order and government of the church; they can require members, of their own society, to appear and give testimony in the cause; but the highest punishment to which their authority ex- tends, is to exclude the contumacious and impenitent from the congrega- tion of believers." These courts or judicatories are of different classes. The series com- mences with the churcli-session, composed of elders chosen for life, and holding an inferior ministerial station. Next comes the Presbytery, con- sisting of all the ministers, there being at least three, and elders, one from each congregation, within a certain district. Every minister in the dis- trict, and attached to the Presbytery, has a seat in his own right, and does not sit by a delegated authority. The elders, or laymen, as they are sometimes inaccurately styled, for they are regularly ordained officers, on the contrary, sit merely as representatives, each church having a bench of elders, and delegating one of them to represent it in Presbytery. In the session, or primary court, the elders have seats in their-own right. They form a tribunal in every particular church, chosen it is true by the people, who may, therefore, be styled in one sense, electors, but ordained for life. They sit together in the body, the minister presiding. In the Presbytery all the ministers sit in their own right, the elders by right of representation. The Synod, to which appeals lie from the Presbyteries, is composed of representatives from those bodies. The General Assem- bly, however, which our present inquiries principally concern, passes over the Synods in its organization, its members not sitting by right of repre- sentation from those judicatories, but being elected by the various Pres- byteries. Therefore the General Assembly, as to the cognizance of ap- peals, is the next higher court to the Synod, but as to its constitution, has no reference to the Synods; but each JPresbytery has a right of represen- tation therein, by a certain ascertained number of delegates, proportioned to its size. All this may be made as plain as A, B, C, by comparing the Presbyterian system of government to the civil polity of this State. The Presbyteries are like the several counties of Pennsylvania, each of which has the right of representation in the legislature. The Synods are similar to our judicial districts, composed of three or more counties, with the right of appeal to the Supreme Court. These counties have an indefeasi- ble right to be represented; and such is the right of the Presbyteries to send delegates to the General Assembly. MR. MEREDITH'S ARGUMENT. 229 " The General Assembly is the highest 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 PrESBTTERIAN ChURCH IN THE UnITED StATES OF AMERICA." " The General Assembly shall consist of an equal delegation of Bishops and Elders from each Presbytery, in the following proportion, &c." The powers of this Assembly are prescribed in the Constitution. It is as I have explained, composed of representatives from all the Presbyte- ries. When, therefore, the right of an individual to sit in this body, for the purpose of voting in the election of trustees, is called in question, we need ask, only, is the Presbytery from which he comes in connection with the Presbyterian Church; and has he been duly elected? Both these inquiries being answered in the affirmative, his right is undoubted. The General Assembly has certain officers, to assist in the conduct of its business. These officers are of different kinds. The first and highest is nam.ed the Moderator, being the presiding officer; and no doubt this title originated in the nature of his duties, which were to moderate the Assembly — to heal up wounds inflicted in the excitement of debate, to cool the heats produced by sudden collisions, and to suppress disorder. " It is equally necessary," says the Constitution, " in the judicatories of the church, as in other assemblies, that there should be a moderator or president; that the business may be conducted with order and des- patch." Then it goes on to enumerate his powers, which are those of an ordi- nary speaker; after which follows the regulation, that, " 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 moderator 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." These are the constitutional provisions, in regard to the office of Mo- derator. Then the other officers, the clerks, which are also absolutely necessary to every organized body, are provided for. The next chapter commences thus: " Every judicatory shall choose a clerk, to record their transactions, whose continuance shall be during pleasure." The clerks, therefore, hold their offices, as it is expressly provided, du- ring the pleasure of the judicatory; consequently they may be removed at any time. To be chosen by the body to record its proceedings, it is not necessary that a person should be a member. If this be disputed, we can show that the point was at one time raised in the Assembly, and a formal decision given, that membership was not necessary. I suppose Dr. McDowell was not a member of the Assembly of 1838. We now turn to another part of the Constitution, the rules which govern the General Assembly when organized. Having briefly described the Presbyterian form of government, as to tiie organic structure of the several judicatories in the Church, trat;ing them down to their origin, in the ordi- nation of bishops andjruliiig elders, we come to the action of the Assem- 230 PRESBYTERIAN CHURCH CASE. bly, which is regulated by permanent and unchanging rules. Those to which I now direct your attention are found under the head of "actual Process." — Book of Discipline, Chap. IV. Mr, Meredith here read a large part of this chapter. We refer the reader to page 28 of our report. After reading sect. S, he observed, Some " counsel learned in the law" must have drawn up these rules — > some one familiar with the law relating to indictments for crime. Here^ you see, a provision is made for the proof of an alibi — the only prudent defence, as old Mr. Weller thought, in any case. If we could prove an alibi here, it would be of essential service. We could demonstrate that we were members of the Assembly, if we could only show that we lived out of the infected district. This then is the sort of action in regard to offences, which is within the power of the Assembly. The form of criminal process is in every parti- cular regulated by the fundamental provisions of the Constitution itself. In a subsequent part the nature of the offences for which this disciplinary process is prescribed, is explained: Chap. V, Sect. 13. "Heresy and schism may be of such a natureas to infer 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 uuderstanding, and are not likely to do much in- "A minister under process for heresy or schism, should be treated with christian and brotherly tenderness. Frequent conferences ought to be held with him, and proper admonitions administered. For some more dangerous errors, however, suspension may become necessary. "If the Presbytery find, on trial, that the matter complained of, amounts to 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." These rules provide for the case of heresy and schism — for any viola- tion of the doctrine or of the discipline of the Church. I, if a Presbyte- rian, which I am not, would be pronounced a heretic in a moment. Al- though I am happy to believe that there is no material difference between this sect and that to which I belong, that they both agree in all that is es- sential to Christianity, I do not believe in the peculiar doctrines of Presby- terianism, and therefore, if professing to belong to that Church, might be justly censured as a heretic. I do not believe in the divine institution of an order of Church officers called ruling-elders, chosen and ordained for life — I am an Episcopalian. If a Presbyterian, I should be a heretic, because I differ from the standards of that sect in a matter of faith. Discipline is established merely for convenience, and relates to matters which are non- essential; and he who who offends against rules of discipline is a schis- matic— attempts a neologism. But he who departs from the faith of the Church, the essence of which is believed to be of divine institution, is guilty of heresy. It is no answer, therefore, to say to a man, who belongs to the Presbyterian Church; who has adopted its Confession of Faith; who has lived forty years in its communion; who has subscribed to its funds, and participated in all its trials and conflicts — it is a poor answer to such a man, or to a hundred thousand of such men, to say, "You are very good men; you may be Christians, for aught we know, but you arc not MR. MEREDITH'S ARGUMENT. 23 X Presbyterians. We don't charge you with any offence — no offence at all — you are guilty of none; hut you hold false doctrine. You may be good Episcopalians, or good Catholics; or, as one of my learned friends has suggested, if not Christians at all, you may be very good Turks ; you may be exactly suited to the longitude of Constantinople; but here you are interlopers. We do not, however, accuse you of any thing Infamous: we do not even call you fanatics — we wish to be perfectly polite. We only hold you to be parasites; and we say that you form a nucleus around which fanatics always gather; still you are very worthy, very polite men: — You exhibit every virtue in your intercourse with your neighbours; you are honest, industrious, and sober; but somehow or other your house is the resort of all the drunkards in the ward. Pray, gen- .tlemen, don't get into a heat; we mean nothing personal by this; it is all said in a parliamentary sense." I say, and so says the Constitution, that these are offences — offences for which a criminal process, and criminal punishment are provided. If a man in connexion with the Presbyterian Church, refuses to conform to its doctrines and order, or violates its rules of discipline, he is an offender; and it is not necessary, that he should be also a bad man, to make him guilty of an indictable offence. I have read to you passages from the Constitution, which show, that the punishment of heresy and schism are expressly provided for. It clearly points out a mode in which those guilty of these ecclesiastical crimes may be brought to trial, and censured or expelled. I have thus endeavoured to give you a full understanding of the consti- tution and nature of the respective judicatories of the Presbyterian Church, as necessary to the comprehension of the mode of proceeding, which is clearly provided, for the punishment of heresy and schism; and to your arriving at a satisfactory result, in regard to the matters which are to be found by you, under the instructions of the court. We have shown to you, by the evidence produced on the part of the Relators, that, from 1S02, until after the commencement of the session of the Assembly of 1837, not all of them, indeed, during the whole of that interval, but having been formed, at different periods, and every one in full existence at the time last mentioned, there were among others, four particular Synods, contain- ing twenty-eight Presbyteries, represented in the General Assembly. These bodies, in 1S37, embraced five hundred and ninety-nine churches, five hundred and nine ministers, and near sixty thousand" communicants. 1 mention the number of communicants merely, not taking into account the much larger mass of humbler worshippers, who had not ventured to join the spiritual communion of the Church, but who, nevertheless were entitled to a representation. I do not mean that these worshippers were en- titled to a direct representation; but they were certainly entitled to be- come members, unless found faulty in the initiative examination, and were thus capable of acquiring the right, while, in the meantime, they were worshippers, according to the faith of their Church, and the customs of their forefathers. Of these Presbyteries only I take notice, for fear of embarrassing you, by larger arithmetical calculations. I do not include the Third Presbytery of Philadelphia, which contains some of the most an- cient churches in the city, among others the first one in which a Presby- terian ever worshipped God in this place, and also the next to this, in point of age — the case of that Presbytery, that you may suffer less em- 232 PRESBYTERIAN CHURCH CASE. barrassment, I do not introduce, except to say that it was dissolved by the Assembly of 1S3S. We shall direct your attention only to the four Sy- nods above mentioned, thirteen of which were formed before the year 1821, a fact which may prove to be important. Now, I say, that from the minutes, the best evidende of which the case admits, evidence which is undenied, it has been conclusively proved, that from 1802 to 1837, these Presbyteries, all according to their respective ages, had been in every possible way, recognised as a part of the Presby- terian Church. What? is not the proof as strong as any testimony could make it? It would be burning daylight to attempt further to substantiate the fact. First, their commissioners sitting, acting, and voting, year by year, in the General Assembly. Secondly, the record of these bodies re- gularly sent up to that judicatory for examination, and in almost every in- stance approved. In the Synod of the Western Reserve, on one occasion, a sentiment had been expressed, in regard to a point which we would not have considered of any vital importance — that the institution of ruling- elders was not essential to salvation, or to Presbyterian cliurch order. To that the Assembly did not agree; but with this exception, I believe the record was approved. They were recognised in that way; and in the next place, by the receipt of their contributions, poured into the common trea- sury during this period. They were recognised by the appointment of several of their members, at different times, to various offices in the Church. The next fact proving their recognition, is their being mentioned in the statistical tables, digested from the reports of the Presbyteries, which the Assembly has directed to be put every year upon the minutes; in which tables they are mentioned uniformly, no distinction being made between them and other judicatories, which are still acknowledged to be strictly Presbyterian. Now what is to establish the rights of any man breathing, who comes as a delegate, from a body claiming the privilege of represen- tation, if we have not in the present case established the right of these judicatories? Their commissioners being received by the Assembly, and they making their report to that body, sitting, debating, and acting in it. Any other Presbyteries — the First of Philadelphia, or the Presbytery of New Brunswick, might be challenged to give more conclusive evidence than we have given, of their belonging to the Church. Just as well might the Assembly undertake to exclude any Presbytery, or church in Penn- sylvania, as these. The Assembly is a body of limited powers. It has been said that it has the right of Judging of the election of its own members. This, as a law- yer, I deny: it has no such power, unless it proceeds by the process of a formal trial. Suppose, that after one of its sessions is half over, because some particular motion is not carried, you report that a certain Presbytery is not a constituent part of the Church, and that its commissioners have no right to sit. What can they show to prove their right, but that the re- presentatives from that Presbytery have always been received and ac- knowledged; that it was even a party to the adoption of the Constitution? What more could they show? But all this we have shown. In 1821, thir- teen of these Presbyteries had already been admitted, one in 1802, and the others subsequently. For seventeen or eighteen years, therefore, they had been component parts of the Church. In 1821, the Asseml)ly proposed certain amendments and alterations of the Constitution, and these, MR. MEREDITH'S ARGUMENT. 233 as was necessary, were sent down to all the Presbyteries to be passed upon by them. The thirteen Presbyteries mentioned, passed upon that constitution, and it was adopted by their votes, joined to the votes of the others. It would bq burning daylight to detain you on this point. The human imagination cannot invent proof more conclusive than that which we have given here. These Presb_) series send commissioners, who sit and act in the Assembly; their records are examined and approved; they join in the formation of the Constitution of the Church; and, now, in lti37, their delegates are actually sitting. Recollect, therefore, that, at the open- ing of the Assembl}' of 1837, there was competent evidence of the right 'of those Presbyteries to be represented. This right had never to that hour been doubted — I beg pardon: I mean to say no man had openly doubted it; th<'\t no notice had been given of any such doubt. At the opening of the Assembly of 1837, and for some time afterwards, they were treated as undisputed members of the Church. I have said that it is in evidence, that thirteen of these Presbyteries joined in the adoption of the present Constitution. Their rights, then, were as the rights of the thirteen Old States, u'hich had united in forming the constitution of this country; and as well might Rhode Island, or South Carolina be turned out of the confederation, because we did not like their votes; as well might we deny that they ever had been members, as dis- pute the right of these Presbyteries. I admit that if false doctrines, or a laxity of discipline had been discovered; if heresy or schism, had been found to exist; if any member of a Presbytery had acted in violation of the established rulesof order and discipline, he might have been subjected to an ecclesiastical trial, to censure, and even to expulsion. But there is a wide difference between a liability to exclusion by the sentence of a regular tri bunal, after trial, and to the mere arbitrary fulminations of such a body as the General Assembly. This point is so clear, that I pass on. No im- partial man can doubt, that these Presbyteries were as much entitled to their accustomed representation, as any one of the thirteen original states to theirs in Congress. So stood the Presbyteries embraced within these four Synods, regularly received and recognised, and their commissioners acting with the Assem- bly, at and after the commencement of its sessions in 1837. Now having brought them thus far, it is necessary that I should go back to the history of another series, or of two other distinct series, of events. From the earliest period of the existence of this Church, as appears from the express terms of several written acts of the General Assembly — acts which, for the honour of religion, I hope were passed for the purposes expressed upon their face, and not for those which have here been opened to you by the opposite counsel — from the earliest times to which our evi- dence goes back; from the very infancy of the Church, it has been its practice to associate itself in different ways with brethren of other kindred persuasions. Now it is necessary, that I should present to you a brief outline of these associations — of their nature, character, and extent, in or- der that you may understand the relation which was borne to these cog- nate churches. Then I shall endeavour to distinguish between the asso- ciations to which I refer, and another matter, which has been confused with them, and which it has been the main effort of our opponents to re- 30 234 PRESBYTERIAN CHURCH CASE. present as the same thing — the same as to its purposes, and the end to be accomplished. You will, I trust, see the difference. The terms of all but one of these associations " plans of union and cor- respondence " as these are called, may be found in the Assembly's Di- gest. They were the acts of the elder patriarchs of the Church; and for your satisfaction, I shall refer to them, that you may compare them with the acts of those, whom for distinction's sake, I shall call the juvenile pa- triarchs— those who have in these latter days taken the Church under their particular charge. The first plan of union was that formed in 1792. I am happy to say, while speaking of the patriarchs who formed these various plans, that one of them still survives; and that every act of this kind had the advan- tage of his concurrence, and his wisdom. I refer to Dr. Green. In 1792 a " plan of union and correspondence with the General Association of Connecticut" was adopted by the Assembly. — Assem. Dig. p. 292. " The Minutes of the Convention of the Committees of the General Assembly of the Presbyterian Church in the United States, and of the Oeneral Association of the State of Connecticut, were taken into conside- ration, an extract of which is as follows:" A note to this paragraph states that the convention spoken of " origi- nated in measures adopted by the General Assembly in 1790 and 1791, for affecting this union of intercourse." So you see that the Assembly invited their Congregational brethren to associate with them. "' Considering the importance of union and harmony, in the Christian church, and the duty incumbent on all its pastors and members to assist each other, in promoting, as far as possible, the general interest of the Redeemer's kingdom; and considering further, that Divine Providence appears to be now opening the door for pursuing these valuable objects, with a happy prospect of success; " ' This convention are of opinion, that it will be conducive to these im- portant purposes — ' " These important purposes are those which I ascribe to the respected men who entered into the negociations. We shall in a little while, show the purposes, which are ascribed to them by the other party. " ' That a Stmiding Committee of Correspondence, be appointed in each body, whose duty it shall be, by frequent letters, to communicate to each other, whatever may be mutually useful to the churches under their care, and to the general interest of the Redeemer's kingdom. " ' That each body should from time to time appoint a committee con- sisting of three members, who shall have a right to sit in the other's general meeting, and make such communications as shall be directed by their respective constituents, and deliberate on such matters as shall come before the body; but shall have no right to vote. '"That effectual measures be mutually taken to prevent injuries to the respective churches, from irregular and unauthorized preachers.' " Then follow the measures proposed for this purpose. " ' and also that every preacher travelling, and recommended as above, and submit- ting to the stated rules of the respective churches, shall be received as an authorised preacher of the gospel, and cheerfully taken under the patron- age of the Presbytery, or Association, within whose limits he shall find tmployment as a preacher.' **».»*#** MR. MEREDITH'S ARGUMENT, 235 " Upon mature deliberation, the Assembly unanimously and cordially- approved of the said plan, and to carry the same into effect, appointed— the Rev. Dr. John Rogers, Dr. John Witherspoon, and Dr. Ashbel Green" — names which must ever stand high in the history of this Church— " to be a committee of correspondence, agreeably to the said plan: and it is moreover agreed, that this Assembly will send delegates, to sit and consult with the General Association of Connecticut, and receive their delegates to sit in this Assembly, agreeably to another article of the plan, as soon as due information shall be received, that it is adopted on the part of the General Association of Connecticut." Then follows the appointment of " a standing committee to certify the good qualifications of the preachers travelling to officiate in the bounds of the Association of the State of Connecticut;" and the ratification of the plan by that body. In 1794 an alteration in the plan was proposed by the Assembly. " On motion, ordered, that the delegates appointed from the General Assembly to the General Association of Connecticut propose to the As- sociation, as an amendment to the articles of intercourse agreed upon be- tween the aforesaid bodies, that the delegates from these bodies, respec- tively, shall have a right, not only to sit and deliberate, but also to vote in all questions which shall be determined by either of them: — And to communicate the result of their proposal to the next General Assembly." This amendment was agreed to by the Association, as its scribe, Jona- than Edwards, certifies. The next plan of intercourse entered into by the Assembly, was that with the Convention of Vermont, proposed by the former, in 1803. Jlssem. Dig. p. 300. The terms of this plan were: " I. Each body shall send one or two delegates, to meet and sit with the other, at the stated sessions of each body respectively. "II. The delegate or delegates from each respectively shall have the privilege of joining in the discussions and deliberations of the body, as freely and fully, as their own members. " III. That the union and intercourse may be full and complete be- tween the said bodies, the delegate, or delegates from each respectively, shall not only sit and deliberate, but also act and vote." This plan was ratified by the Convention, and adopted by the General Assembly. Subsequently, I believe, the right of voting was taken away from the delegates for whose appointment it provides. That was done in these latter times by the juvenile patriarchs. With the General Association of New Hampshire a similar union was formed in 1810. Assem. Dig. p. 303. The proposal in this instance seems to have come from the Association. The plan was formed on the same principles as that with the General Association of Connecticut, and the commissioners appointed to make the proposal to the Assembly, being invited to sit as members of that body, " accordingly took their seats." The provision in regard to the delegates voting, was subsequently altered, the right to vote being taken away. With the General Association of Massachusetts a like union was esta-- tablished in 1811. Assem. Dig. p. 305. The proposal came from that body and was accepted by the Assembly. This plan conferred the right of voting^n the respective delegates, a provision which, in 236 PRESBYTERIAN CHURCH CASE. this case also, was subsequently abandoned. The next thing in the Di- gest is the mode of electing such delegates, adopted by the Assembly in 1796. Page 307. In 1802, the Presbytery of Albany communicated to the Assembly the terms of a plan of friendly correspondence between that Presbytery, and a body known as the Northern Associate Presbytery, agreed upon by a joint committee. The terms were, " 1. That there shall be occasional communion between the members of the particular churches, subordinate to these Presbyteries respectively. " 2. That there be a friendly interchange of "services among the minis- ters: and, " 3. That each Presbytery, while in session, may invite members oc- casionally present from the other, to sit as corresponding members: ******** **** "The Assembly after due examination and deliberation, expressed their approbation of the said plan of correspondence." — tdssem. Dig. p, 309. An association with the Reformed Dutch, and Associate Reformed Churches also was proposed in 1798. In that year "committees from the three churches met in convention, and agreed that the plan of inter- course, having for its basis the preservation of the several ecclesiastical judicatories concerned in a state entirely separate and independent; should embrace "I. The communion of particular churches; "II. A friendly interchange of ministerial services; and, " III. A correspondence of the several judicatories, of the conferring churches. "This plan was unanimously approved by the General Assembly; but it was not accepted by the judicatories of the other churches." — */issem. Dig. p. 311. It appears then that down to the year 1811, beginning with the plan of union with the General Association of Connecticut, adopted in 1792, there were no less than six of these agreements entered into between the As- sembly and other cognate bodies, by which the ordinations of each were mutually recognised, ministers allowed to make friendly interchanges of service, and the travelling ministers of one denomination received by all the others. The Assembly, in most instances, sought this intercourse, and was the first to propose the mutual appointment of delegates, with powers to sit and vote in each other's judicatories. Such was the close and inti- mate nature of the union which that body saw fit to maintain with kin- dred associations, and which was not regarded as any violation of Presby- terian doctrine or discipline, until were introduced these neologisms, the inventions of latter days. Down to this period, the patriarchs of the Church sought every means of enlarging her communion, for the purpose which is set forth in the book from which I have justread — the extension of the Redeemer's kingdom, overlooking all minor and unimportant ditfer- rences of religious opinion, and tlie Assembly itself seeking the union, it being the more numerous body, and, in order to have some share of con- trol in the other associations, seeking the right of sitting and voting in them, by delegation, and giving the same right in return to all of them, except the Associate Reformed and Dutch Reformed Churches, which MR. MEREDITH'S ARGUMENT. 237 had never a right to vote. This policy was observed from a very early period down to lSll,and may be traced to a much later time. We could show several acts in confirmation of this, but, for fear of wearyino; your patience shall refer to only one; and that dates as lately as the year 1821, when some of the senior members of the band of juvenile patriarchs must have begun to break through the shell. Not satisfied with plans of mere correspondence and association — the informal admission of cognate bo- dies to their fellowship, they brought a whole Church into direct and full communion with them, taking away every shadow of distinction .between the two, without dreaming of any limit to their power in this respect. In 1821, the General Assembly made a proposition to the General Synod of the Associate Reformed Church, that the two Churches should be united. This was acceded to by the Synod, and the coalition was actually consummated. Mr. Meredith here read the whole of the extracts from the minutes of 1821, p. 9; and 1822, p. 11; which are given at length, a7ite p. 126. As he did not comment upon them while reading, we merely refer to that page. Now, as to the other associate bodies, with which the General Assem- bly entered into plans of intercourse, we have no precise evidence as to their faith or discipline. As to the Associate Reformed Church, howe- ver, we have the testimony of its own Constitution. I have looked over this volume cursorily, but as I have not got it here, must state from memory, the differences between it and the Presbyterian Constitution, which I have observed. The terms of union saved to each of the respec- tive bodies the right of preserving its own Presbytei'ial organization and form of government. The differences which I shall notice are, I admit, slight and immaterial; still they will throw some light on the course and policy of the Assembly towards cognate bodies. The first difference, however, is very material, if we believe that the subject of it, as an article of faith, is essential to salvation — it is in the part relating to civil magis- trates. In the Confession of Faith of the Presbyterian Church, there is a slight departure, in this respect, from the Westminster Confession of Faith, in order to accommodate it to the circumstances of this country. "Civil magistrates may not assume to themselves the administration of the word and sacraments; or the power of the keys of the kingdom of heaven; or, in the least, interfere in matters of faith. Yet, as nursing fathers, it is the duty of civil magistrates to protect the church of our common Lord, without giving the preference to any denomination of Christians above the rest in such a manner, that all ecclesiastical persons whatever, shall enjoy the full, free, and unquestioned liberty of discharg- ing every part of their sacred functions, without violence or danger. And, as Jesus Christ hath appointed a regular government and discipline in his Church, no law of any commonwealth, should interfere with, let, or hinder the due exercise thereof, among the voluntary members oi any denomination of Christians, according to their own profession and belief. It is the duty of civil magistrates to protect the person and good name of all their people, in such an effectual manner as that no person be suffered, either upon pretence of religion or infidelity, to offer any indignity, vio- lence, abuse, or injury to any other person whatsoever; and to take 238 PRESBYTERIAN CHURCH CASE. • order, that all religious and ecclesiastical assemblies be held without molestation or disturbance."— Co;?/ of Faith, Chap. XXIIL Sect. 3. Now there is a variation from this in the book of the Associate Reformed Church. I do not look upon it, however, as a material diffe- rence. There is another in the Form of Government which is more ma- terial—in that part establishing the basis of representation. There may- be other discrepances; but these two are the only ones which I shall ven- ture to state now from memor)-. By the Presbyterian Constitution, a Presbytery must be composed of not less than three ministers, with as many elders as there may be within particular bounds. "Any three ministers and as many elders as may be present belonging to a Presbytery, being met at the time and place appointed, shall be a quorum competent to proceed to business." — Form of Gov. Chap. X. Sect. 7. Of course, under this rule, no Presbytery can exist in a district which does not contain at least three ministers. In the Associate Reformed Church however, no particular number of ministers, as necessary to the existence of a Presbytery, is specified, and two are sufficient. Conse- quently, as each Presbytery of that denomination, was after the union, entitled to at least one delegate in the Assembly, in the same manner as each Presbytery before belonging to the Assembly, two ministers of the Associate Reformed Church might have the same representation in that judicatory, as three Presbyterian ministers. These two differences may not be very material, but still they are differences. I may mention a third variation, if indeed it be a variation. Supposing the system of doctrines the same in both Churches, the terms of subscrip- tion are different. I notice that the Associate Reformed Church requires — I have not the book before me — that the Confession of Faith should be received only for substance of doctrine. But one of the main accusations made by our opponents against the members of the exscinded Synods, is, that they profess to have accepted the Presbyterian Confession only for substance. It seems to be a most fortunate — I will not say providential — circumstance — certainly it is a peculiar advantage to the cause of justice, in this case, that whenever the opposite party have attacked and slurred either the principles or practice of my clients, we find them directly cen- suring the most formal and solemn acts of the General Assembly itself. Now suppose that this is a matter of vital importance; and that the As- sembly formed associations with various bodies, bona fide, for the pur- poses which are set forth in the Digest, considering them as holding the essential doctrines of the Christian faith, and for the sake of peace and union, overlooking differences in non-essential points. 1 trust, gentlemen, that no man will prevail, in an attempt to convince you, that the Assem- bly acted with a purpose different from that avowed; to lead you to sup- pose, that from 1792, to 1S21, while making professions of this kind, that body was really and truly adopting these measures for temporary pur- poposes, thinking to make the brethren of kindred Churches their dupes, and to cast them off, whenever strong enough to do without their assistance. Then in all such cases; or take for example the instance of the Associate Reformed Church — in that instance the Assembly has admitted to its communion, persons who, on the face of their confession of faith, acknowledged more error, than all that we are charged with. Indeed no • MR. MEREDITH'S ARGUMENT. 339 <&ffence was formally alleged against us. Proselytes have been made from Jews, Turks, and Infidels, who, on showing their belief in the essential doctrines of Christianity have been permitted to join the Presbyterian communion. But here, five hundred ministers, formall)^ admitted into the Ohurch, having subscribed its Confession of Faith and Form of Govern- ment, and amenable to the Church courts, if they have in any respect failed of their duty, on a mere suggestion, by a simple resolution, no reasons be- ing given, are suddenly exscinded. They are not excluded, but told, " You have never belonged to us. The property which you have sub- scribed will be given up to you, if the will of the donors permit." Then in the next breath, " You have no right to it: you must leave the Church. We consider you as seceders. You are respectable men, moral men, very good men: we find no fault with you, any more than we do with the Turks." If such is the policy of the Presbyterian Church, I should be unwilling for it to be publicly believed. They have taken into their com- munion their Associate Reformed brethren, who adopt the Westminster Confession of Faith only for substance. These are the words in the book of that Church. These brethren profess nothing, except that they agree with the Presbyterians in the substance of their doctrines; yet are they admitted. Well then, on the principle that all these unions were tempo- rary, the General Assembly may say, 'the Presbytery of Londonderry — you have re- ported eight Presbyterian ministers, pastors of Congregational churches, being near one-third of twenty-five, the whole number of ministers; while there are but twelve Presbyterian churches, in the same district. Yet all these ministers are good Presbyterians. Next comes the Pi-esby- tery of Newburyport, belonging to the same Synod. Here there are six- teen ministers reported; and of these, also, eight are pastors of Congrega- tional churches, two are professors, and there is but one solitary pastor of a Presbyterian church — yes, there are two. This Presbytery, however, is perfectly sound in doctrine and discipline, though at the same time we hear Congregationalists denounced as little better than Turks and Infidels. These Presbyteries, parhaps, voted on the right side: their time had not yet come: they were still strictly Presbyterian. Now let us turn to some of the Presbyteries exscinded. Take for ex- ample the Presbytery of Otsego — or the Presbytery of Oneida, which is larger. This Presbytery has forty-seven ministers, and there is not one pastor of a Congregational church amongst them — not a single one. The Presbytery of Otsego has nine ministers, and to this the same remark ap- plies as that made in regard to the Presbytery of Oneida. Take the Pres- bytery of Geneva. This has thirty-seven ministers, and to it also the same remark applies from beginning to end. Several ministers are re- ported as without charge, and several as being what are called " stated sup- plies" of particular churches. This was the Presbytery which Dr. Elliott did not know. Now I exhibit these statistics, in the first place, to show the practical operation of the act of 1801; and, secondly, to demonstrate as a fact, or as an inference from a fact, which you are to find if necessary; MR. MEREDITH'S ARGUMENT. 25& that although the plan of 1801, and the cry of irregularity and disorder, were made the excuse for the exscinding acts, they were not, in point of fact, the cause of the excision, since other Synods, which, as you have seen, were doubly obnoxious to the charges made against the four that were excluded, were not touched. The cause assigned was unreal: the real cause was that which has been opened to you by the counsel on the other side: that the Old-school party came to that Assembly determined to get a vote satisfactory to themselves, and, if necessary, to put out of doors enough to secure a majority. I ask you to find that this was the irue cause. The jury will determine whether it was not formally opened to them by the opposite counsel. Mr. Hubbell. You have mistaken my meaning altogether. ■ Mr: Meredith. I should be glad to find out that I had. Gentlemen, you must determine, whether it was or was not formally opened to you, that the Old-school party went to the Assembly of 1837 determined, in the first place, to have a final settlement of certain questions of doctrine-, and, secondly, that these questions should be decided by the votes of none but Presbyterians; and whether this determination was not carried out by the exclusion of these gentlemen. Now, since it was alleged that they were not Presbyterians; and since the questions referred to were set- tled agreeably to the wishes of the Old-school, by their exclusion, because they would not agree in certain views, I ask you, gentlemen, to say that the facts are as I have stated. You must decide whether I am correct. I now come to the meeting of the Assembly of 1838; and this is the vi- tal part of the inquiry: all that I have said, hitherto, has been but pre- liminary to it. Judge Rogers. This is a good resting place. We had better adjourn till Monday. Mr. Meredith. On Monday then, gentlemen, I will proceed. I am ashamed of having occupied your attention so long, but shall endeavour^ as I promised, " to do all in the shortest time possible.'" MONDAY MORNING, March 18th.— 10 o'clock. May it please your Honour — Gentlemen of the Jury: — On Saturday I endeavoured to show the invalidity of the exscinding acts of 1837. That the General Assembly, while it had the power to admit Presbyteries and Synods,'*had no power to expel them. That, therefore, the resolu- tions of 1837, not being judicial acts, were unlawful as regarded the Assembly of that year, and null and void as regarded all subsequent Assemblies. That the assertion, that for thirty or forty years there has been no real General Assembly, that that body has not had any existence in fact, taken in its only real sense, condemns the defendants according to the judgment of Solomon; showing that when they find that they cannot succeed, they are willing to sacrifice the true General Assembly, rather than that their opponents should recover their rights. That as to the Assembly of 1837, the acts of excision were unlawful, and as to all subse- quent Assemblies, they had no semblance of existence. That it was as if the common councils of the city should cut off four of the wards, and turn their representatives out of the council hall; in which case the act would be absolutely n«ll and void, and the election for councils in those 256 PRESBYTERIAN CHURCH CASE. wards would the next year go on as usual — as if the excision had never taken place. Thus we stood f?.t the commencement of the session of the Assembl}^ in 1838, to which body two distinct parties came up. On one side the representatives of the twenty-eight Presbyteries which the Old- school had pretended to exscind, and those v/ho sympathized with them, conscious that great injustice had been done their brethren: on the other side the remnant of the accidental majority of 1837, who, in violation of the Constitution and laws of their Church, which they had pledged them- selves to maintain, had rebelled and mutinied, and like Sampson, in blindness as well as strength, were endeavouring to shake down the pil- lars of the temple. The latter came in 1838, determined to carry out their rebellion. They were resolved to destroy every thing like a lawful organization of that body, and with an ungoverned license to place the whole Presbyterian Church at the mercy of a mere numerical majority;- to throw off all legitimate ecclesiastical rule. Thus constituted, that body assembled, and we find, taking into consideration the' conduct of the two parties, that they bore the same marks as in 1S37, and came with widely different spirits. The New-school came without any previous combina- tion, and assembled in a meeting for consultation, to which, by public advertisement, all of both parties had been invited, to devise means for the fulfilment of their legitimate duties. This consultation meeting was openly attended by members of the Old-school — at least by enough of them to keep a watchful eye upon the proceedings, and communicate all that was done to their friends. The opposite party, those setting up to exclude a large portion of their brethren, came with plans which were not communicated to the other side, and met together in secret conclave. I don't care whether the fact that they did so meet is in evidence or not. Certainly they did one of two things; they either held a secret conclave, or they went to the house in Ranstead Court and took their seats at nine o'clock, to the exclusion of all those who differed in opinion from them- selves. These are, however, but introductory matters, on which I am sorry to have detained you so long, but which are important as exhibiting the spirit of the two parties. You must now turn your attention to the testimony of the witnesses in this case, from which you are to find facts most important to the issue. Undoubtedly the witnesses on both sides are gentlemen of great respect- ability, and though their evidence is, to appearance, contradictory, after sifting carefully the whole, there being twenty odd witnesses on each side, I am not able to find any necessity for weighing those of either party in the scales of credibility. On the main facts of the case they are all agreed. This assertion may appear strange to you; but I pledge myself to make you see, that, notwsthstanding the apparent discrepancy, there is no fact in regard to which it will be necessary for you to judge of the credibility of a single witness. Our case is, that those whom we represent lawfully organized the General Assembly of 1838, in the church in Ranstead Court. We say that the officers bequeathed to that Assembly by its predecessor, the Assembly of 1837, decided wrongfully in repeated instances; and that this misconduct — whether it was wilful or not, is another question, one which is entirely foreign to ihis cause; but it would have been still more unjust if wilful — was a sufficient reason for their removal. That after MR. MEREDITH'S ARGUMENT. g57 their misconduct, a motion was made in a lawful manner, that they should be removed; that this motion was lawfully put to the house and carried; and that thereby these officers were removed. This being once demon- strated, it flows frorts it directly as a corollary, that the Assembly, which, under the new officers, by whose appointment the old were deposed, held its sessions in the First Presbyterian Church, was the true General Assem- bly, and the relators were duly elected trustees. Here, at the outset, we meet several points of law. Our opponents contend that the removal of these officers was in itself illegal ; that the -time of removing them was improper, and the manner irregular and dis- orderly. On each branch of their argument we shall dwell; and since they are not satisfied with one code of laws, we will take three — the com- Inon law, the regulations and usages of the Assembly itself, even if they are contrary to the principles of the common law, and the usages of par- liamentary order. On the provisions of this latter code, I must however speak with great diffidence, as I am confronted by opponents of so much more parliamentary experience than I can boast. I say tliat, in the first place, we allege the misconduct of the officers of the Assembly. The clerks were mere ministerial officers, and not neces- sarily members of the body; in this case indeed, they were not in fact members. These clerks are, by usage — a usage growing, in the first place, out of a regulation of the Assembly, and harmless in itself — a Standing Committee of Commissions. In this capacity they sit, before the meeting of the Assembly, to receive the commissions of the members, to decide wliether they are prima facie regular, and if so, to enrol the the names of the commissioners. To them, the commissioners from the four exscinded Synods, as they are called, presented their commissions, which, however, they refused to receive. Now, I call your attention to the fact, that there is no pretence that these commissions, or any of them, were defective in point of form; but the commissioners were distinctly told, that the Assembly of 1837 had put the Presbyteries from which they came, out of the Church, and that the clerks were therefore precluded from receiv- ing them. Bear in mind, that from the first step of the clerks, down to the last act of the Old-school in 1838, including "The Three Acts," which have been mentioned by one of the witnesses, thei-e was at no period any doubt expressed as to the authenticity of these commissions, their being regularly signed by the proper officers, or their being in every respect in the ordinary form. This point will be very material in the remaining part of the case. The difficulty made to their reception by the officers did not arise from informality; but these officers had entered into a com- bination to disregard them entirely, though perfectly formal, and to exclude them, on the ground that they did not come from a proper con- stituency. The question was not in regard to their authenticity, but whether by some nicety in proceedings the Assembly had not the power to exclude a ])ortion of its own electors. The commissions were not even examined, to see whetlier they were formal. This tlien was tl)e question, and of the acts done you must judge by reference to it. These commis- sions were presented to the clerks, sitting in the session-room of the church on purpose to receive commissions, and the matter had their undi- vided attention: they even locked the door, that their minds might be unabstracted. The ctimmissioners from the four Synods, requested that 33 258 PRESBYTERIAN CHURCH CASE. their names should be put upon the roll, but their request was refused. The committee did not say " Your commissions are not authentic." No; they refused them for a defect in their constituency. They were acting under the proceedings of 1837, which they had given a solemn pledge to sustain and carry out in all their parts. And if faith be pledged even to the devil the pledge must be redeemed. It is plain that these clerks vio- lated their duty as officers, unless they stake their conduct upon the lega- lity of the exscinding resolutions of 1837. Another misconduct of one of the clerks led to all the subsequent con- fusion and disorder, by whomsoever made. If is the duty of the clerks, although they are to put upon the roll of the house only those whose commissions are in due form and are duly authenticated, to receive all others which may be presented, and report them to the Assembly accord- ing to the circumstances. But these they would neither put upon the roll, nor report on the list of doubtful commissions, so that they might. come before the body for its judgment. Were they wrong in this? We have the opinion of one of these gentlemen themselves, that they were. The record shows no pledge that they would not report the commissions to the house. Mr. Krebs tells us that he was desirous to receive and report them, according to the facts of the case, and thus to give the Assembly an opportunity of acting upon them. The other member of the commit- tee, not indeed being a majority of it, for there were only two, but the superior in point of years, was not willing to adopt this course. Mr. Krebs seems to have been the most active member of the committee, and why Dr. McDowell objected, he has not explained, though examined once or twice. When, then, we say that the clerks were guilty of repeated acts of misconduct, our opinion is supported by that of Mr. Krebs. Indeed it was obvious that his proposition was most reasonable. Here were mere ministerial officers, deciding on the rights of members to their seats, nay, on the rights of the constituency of the Church, without giving the chance of an appeal from their decision, but leaving the exscinded Presbyteries to bring their case before the Assembly in the best way they could. They were endeavouring to make their decision, on the subject of the admission or re-admission of these men, conclusive and final. Who were these clerks ? Not members of the Assembly — never so of necessity, and, in fact, not so in 1837. The tenure of their office, which they held during pleasure only, as you have seen from the express language of the Constitution, made them at all times liable to be turned out of office, by a vote of the Assembly. So much for the course which they adopted and pursued. Next we come to the most vital part of the inquiry, the conduct of the higher officer, the Moderator of the Assembly of 1837. In the first place we find him coming in at the commencement of the divine services, not as usual, untrammelled and unpledged; not simply to perform his duty, the principal part of whichis the conducting of divine service; but from nine o'clock in the morning — perhaps they had slept all night upon their arms — he with the other champions of the Old-school occupied the house, a compactly formed and regular phalanx. The troops were stationed in different parts of the building. The Moderator with his picked cohort occupied the centre, he with the mysterious hammer in his hand. Then MR. MEREDITH'S ARGUMENT. 259 the different corps were disposed about the south-west portion of the house, at the different points of action. Some of them, it seems were afflicted, though not with a legislative cough, with a very troublesome asthma, and therefore it was. I presume, that the attendance of the surgeon of the forces was found requisite; for how else Dr. Harris had crept into the place which he has told you that he occupied, I cannot imagine, as he was not a member of the Assembly. They may be compared to the knights hospitallers of ancient times — a most gallant band indeed ! Now, I say, first, that any person casting his eye upon the Moderator, might ,have seen that he was pledged and trammelled; that he had his forces ar- rayed for open rebellion against the sovereignty of the Assembly of 1S3S. The high places were all occupied, and pickets had been stationed behind, which were to be called in when the final prayer should be concluded. The Moderator was acting not merely in the regular discharge of his duty; but he was at the head — the leader — of an insurrectionary force; and whether the rebels v/ere too strong for the loyal subjects is the only ques- tion which you have to determine. On the other hand you see the opposite party, though they came not as a party, but as their forefathers had been accustomed to come to the house of religious worship — you see them wandering round to the farthest doors of the church, and taking the lower seats which had been left vacant. Many of them came in directly from the country, as one of them has him- self told you, without having had any previous consultation. They all expected an orderly and harmonious meeting of the Assembly, and drop- ping in, each one as he arrived, they sat down as they entered in the hum- blest places. All this serves as a clue to the explanation ofthe Moderator's behaviour. His misconduct was occasioned by violent excitement and loss of temper: this I am authorized to say from the evidence. It is impossible that in calm moments he could have acted thus. I assert then, and shall clearly show, that Dr. Elliott laboured under great and unpardonable excitement — unpardonable except as it arose from the infirmity of his nature. The first motion was that made by Dr. Patton. It seems by the testimony given on the other side, though none of our witnesses chanced to hear it, that a prior step in the proceeding was a call from Dr. Elliott for the clerk to report the roll. Our witnesses did not hear this call, for very obvious reasons, and Dr. Patton took the floor. He desired to make a motion in reference to the formation of the roll, but was denied the privilege. He appealed from the decision of the Moderator, and his right to make an ap- peal was also denied by Dr. Elliott, who gave as a reason for his decision, that there had been no roll reported, and that consequently there was no house to which any one could offer a motion or appeal. Dr. Patton then, without the least violence, or the smallest demonstration of warmth or excitement took his seat. The report of the clerks was then read by Mr. Krebs, and was found to include the names of commissioners from every Presbytery belonging to the Church, excepting those from the third Pres- bytery of Philadelphia, and from the twent3^-eight Presbyteries belonging to the four exscinded Synods. Dr. Elliott then declared, that those per- sons whose names were contained in this select list were to be considered members of the Assembly. The house then, such as it was, was at that time organized, and organijjpd according to the Moderator's own liking. Dr. 260 PRESBYTERIAN CHURCH CASE. Elliott then made a call for other commissioners of a certain kind to be presented. Some difficulty has been raised in regard to the precise words and meaning of this call, and it would be well if the matter could be un- derstood. It is a curious fact that on the question of the particular words used, in this one act, performed at a time when there was no noise or con- fusion, there are no less than three distinct and varying accounts coming from the other side. The minute of the Old-school, a paper prepared with great care — for the preparation of it was confided to a committee spe- cially appointed for the purpose, of which committee, too, Dr. Elliott was himself a member — this minute, written after 'a full consultation with the clerks, formally reported to the Assembly, and, as we are told, unani- mously adopted, though neither the appointment of the committee, nor its report, ap{)ears upon tlie face of the record, testifies that the call was in these words: '< 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 commis- sioners present from the Presbyteries belonging to the Presbyterian Church in the United States of America, lohose names had not been enrolled, then loas the time for presenting their commissio?is." This is the formal record made, not by the clerks, in the hurry and confusion of the proceeding, but by a formal committee appointed for that special purpose, of which Dr. Elliott himself was one. This committee, too, consulted with the clerks, and then adopted what I have read as the solemn record. This says, he " added, that if there were any commis- sioners 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." Next there are twelve or fifteen witnesses, on the part of those who adopted this minute, all of whom themselves voted upon its adoption, who say, first, that Dr. Elliott called for commissions which had not been presented to the clerks; and next, that Dr. Mason, when he rose, said that those which he tendered had been presented to the clerks and by them rejected. This is the second account of the matter. Now taking their own minute as correct, there can be no difficulty or dispute that this was the very time for Dr. Mason to ofier the commissions which he held. According to that, the call was for commissions of regular commissioners, who had not been enrolled, and the commissioners from the four exscinded Synods had none of them been enrolled. These two contrarient statements are, then, from the same sources ; and I do not know who is better qualified, to decide between them than Dr. Elliott himself, whose testimony you have heard: it furnishes the third account of this matter. This agrees not in terms exactly, but in spirit, with the first account; with the second, in neither its terms or its spirit. Where there is such a contradiction as to his own words, he is certainly the best arbiter of the dispute. "1 called," says Dr. Elliott. — "I called for commissions which had not been presented to the clerks and enrolled." Now those which Dr. Mason tendered, had not been presented and enrolled. So according to the tes- timony of both the Old-school minute and Dr. Elliott himself. Dr. Ma- son's offer was directly in answer to the Moderator's call. I take in this MR. MEREDITH'S ARGUMENT. 261 case testimony selected by the other side. When Dr. Patton rose and offered certain resokitions in regard to these very commissions, he was told that was not the right time — not the right time; that the formation of the roll was the next thing in order; the clerks must first make their report. Well, the report of the clerks is read and received; and then Dr. Elliott announces, that now is the right time to do what before was out of order. So my clients understood his call. They thought he meant to say, "Now the moment has come: you were too hasty before. Now all such commissions as have not been enrolled, as have not been , included in the report of the committee, may be presented." Upon that hint Dr. Mason rose and spoke. He was plainly in order; for the call of the Moderator had made him so. And unless you throw out the testi- «ionyof Dr. Elliott, who certainly is to be presumed, until the contrary is shown, to know best what he himself said, and the testimony of the formal record — the minute carefully prepared immediately after the trans- action, by a committee appointed for the purpose — unless you discard this testimony for the loose suggestions of persons, who, many of them, were not at all aware of the real import of the call, you must believe that the Moderator explicitly called for commissions which had not been enrolled, from Presbyteries entitled to be represented in the Assembly. But apart from the testimony, and whether he called for such commis- sions or not, a matter which is perhaps of very little importance, by the laws of the land, and universal parliamentary law and practice, the motion of Dr. Mason, even if the Moderator made no call at all, was strictly in order — was offered just at the proper time. In Parliament, before the house is organized, no question as to disputed rights of membership can be tried. These were not disputed commissions; but even if they had been, at any period, after the report of the clerks, and the declaration of the Moderator that the house was now organized, the members would have had a perfect right, according to the strictest parliamentary law, and the law of the land, to claim their seats. Dr. Mason's resolution had no- thing to do with technical rules of order; nor was it to be considered in the light of a privileged question. Various rules of order have been intro- duced, but such rules are not essential, and they may be violated by anjf house five times in an hour, with perfect impunity. But first, by all the laws and usages of the Assembly itself, Dr. Mason had a right to present the motion which he did present. This indeed is but a statement of the doctrine of all law — of the clearest principles of common sense, and com- mon justice. I should be very sorry that such a question as the present should be decided upon a mere point of order. I have examined carefully the regulations of this Assembly — this quasi corporation — and I find among them no rule violating the law of the land. Secondly, Dr. Mason was in order according to general parliamentary rules, though these and parliamentary law are totally distinct. The first are, it is true, essential to the due transaction of business; they are rules of convenience; but they may be violated forty times a day, and there will be no destruction of the rights of individuals. For instance, it is a law of every parliamentary body, that the first business shall be the formation of the roll, in order to ascertain who are entitled to seats; a question not to be decided by min- isterial ofiicers, except temporarily, until the body itself can determine the matter. This is^iot a mere parliamentary rule: it is a law absolutely 2Q2 PRESBYTERIAN CHURCH CASE. essential to the very existence of a body of this kind. If a rule were made constituting a standing committee of the body, a court to decide the rights of members to their seats, authorized to try these matters by hearsay testimony, and providing that the admission of such claimants should be the last business transacted, it would be null and void — a direct violation of the privileges of all the members of the body corporate. The regula- tion, then, before mentioned is essential to every organized Assembly, and it is founded on parliamentary law, which is the law of the land. As for the other code it is of little importance here. This one is sufficient, and no matter what were the rules of the Assembly of 1S38, or the preceding Assembly; or whether the latter continued in force until the former were enacted: we are bound in this case simply by the laws of the land. Sup- pose a rule of order prescribes that the old Moderator shall address the new in a certain set form of words: the omission of these words will not invalidate the election of the new Moderator. Or suppose a rule directs to give the Moderator a cane: this is a non-essential matter, and might be disregarded, without any injury, or the violation of any man's rights. But when you come to the great provisions of parliamentary law you find them imperative. This law cannot be violated without exposing individual or corporate rights to injury. I do not know what the unbound and half- bound authorities — the little books of parliamentary order which have been produced here — may decide upon this point, but what I have laid down must be of the essence of every law. The right of a member of any parliamentary body to his seat is a ques- tion of privilege — a very different thing from a privileged question. A privileged question is one which is entitled, whenever it arises, to a certain prescribed place in the course of proceedings; and the rule giving it precedence may be departed from without injury to the rights of a sin- o-le individual. Privileged questions are, however, to be distinguished from the order of business, which is the mere general arrangement of the whole business that occupies a body — the distribution of it in a regular succession or series. The order of business is governed by the standing rules of Parliament. In our legislative bodies the regulations in regard to the time of transacting each particular species of business, giving each a place in the series, concern merely the order of business. Thus in the Legislature of this State, the first thing is the reading of the journals; se- cond, comes the presentment of petitions, according to the direction of the Constitution; third, original resolutions; fourth, reports of commit- tees; fifth, bills on third reading; and so on of other matters. A privi- leged question is one which does not necessarily belong to the established order of proceedings, but whenever it arises is entitled to take a certain place in the course of business. Such are questions on amendments of bills or resolutions; on commitment; on postponement; the previous question; or that which takes precedence of all these, a question on ad- journment. Then come thirdly, questions of privilege, distinguished 'from both the order of business and privileged questions. If the atten- tion of a deliberative body is called to a question of privilege, this must take the place of any other business in which the body may at the time be engaged. If a member rises in his place, and proposes a question of privilege, every thing else is dropped, and the member's privilege must immediately be taken into consideration. Such is notoriously the case; MR. MEREDITH'S ARGUMENT. 623 yet perhaps no house has a written rule to this effect. Indeed from the very nature of things, a question of privilege supersedes, for the time, every written rule respecting the details of business. All of you, gentlemen, have had some experience in these matters; or you have learned something in regard to them, either from the records of other times, or from some manual of parliamentary practice — some " Or- der made easy.'"' Show me the case in any parliamentary body, in any deliberative assembly whatever, in which a member has risen and pre- sented a question of privilege, and the presiding officer having declared him out of order, his decision has been sustained. When a bill is before a house on its third reading, any one who comes in, or rises in his place, is entitled to be instantly heard on a question of privilege, and the reading of the bill, with every other business, must be suspended, till that question is decided upon. Well, the most important question of privilege that could be raised, that which goes to the very root of a body's existence, is a question in regard to the claim of a seat. Then the complaint which was to be made of the misconduct of the clerks involved a question of privilege of the most important kind. The clerks had violated their duty, and had attempted to mutilate the body; to exclude a part of the commissioners to the Assembly, Avhom they did not like, and whose names they refused to report to the house. This complaint immeiliately raised a question of privilege of the highest nature ; and Dr. Mason had an unalienable right to be heard, according to the law of the Assembly, the universal parliamentary law, and the law of the land : and most 'of all, when his application was made at the very time selected by the Modera- tor, and in obedience to his direct call for the commissions. Here it will be well to mark some other matters of smaller importance, but still serving to elucidate the case. What was the meaning of the Moderator's reply to Dr. Mason, supposing that the words used were those which some of the witnesses for the defendants have sworn to, but which seemed to have escaped the hearing of ours — that he was out of order at that time, or that he was not now in order ? Dr. Elliott himself declares that this was the form of speech which he used, and I do not mean to endeavour to contradict him. He certainly may be supposed best able to give an accurate account of what he himself said. Suppose lie did say, " You are out of order at this time." He certainly then meant to say, "There is a time when you will be in order" — in five minutes, perhaps, or an hour. What was this motion which the Moderator thus declared out of order at that time.-* It was not a motion made according to the provisions of the Act of 1837 — a motion craving admission for the excluded members, on proof of their repentance, and their having cor- rected the errors charged upon them . It was a motion to complete the roll by adding to it the names of those commissioners whose commissions had been presented to the clerks, and unjustly rejected by them. If Dr. Elliott and his friends of the Old-school party, decided that a time ap- proached when this motion would be in order, it was the strongest proof in the world that they thought it a legitimate motion. Now it could be legitimate only on the supposition that the proceedings of 1837 were void; else it would have been out of order at any rate, and at every time, just as would have been a motion for the admission of a member for Con- stantinople. The ev^ent corollary from this is, that Dr. Elliott knew he 264 PRESBYTERIAN CHURCH CASE. was acting wrongfully. He knew, that if the motion was in order at any time it was at this. He knew, that the exscinding resolutions were void; and that he was lending himself to carry out the unconstitutional and unjust purposes of the majority of 1837. This is a conclusion, the legiti- macy of which cannot be denied. If you give any force at all to these words of the Moderator, it is an absolutely necessary conclusion. Now at this very time as I have shown, Dr. Elliott did actually call for the commissions of the rejected commissioners. I have shown then clearly, that Dr. Mason's motion was strictly in order; that such commissions as he presented, might have been presented at all times. This was the first day of the session of the Assembly, and it is the duty of the officers of that body, and of the house itself, to admit a member presenting himself at any period of its session. The question, moreover, in regard to the right of membership is a privileged question and always in order. Fur- ther, Dr. Elliott himself called virtually for the commissions which had been presented to the clerks and rejected. Dr. Mason appealed from the Moderator's decision; but the right of appeal also was refused. By what code will our opponents pretend to justify this refusal ? They cannot say that no house was yet in existence. The house was at this time organized, or at least partly organized. Those members whose names had been enrolled had been declared entitled to seats: they were the house. There could be no pretence that the body of men, whose commissions had been approved, were not an assembly sufficiently organized for business, since immediately after the New- school had left the house, or even before, if the statements of some of the witnesses are correct, a motion was actually made, put, and carried, for the appointment of a Committee of Elections. Show me the rule which gives the presiding officer of such a body the right to determine any question finally, and refuse to put an appeal from his decision. Where is the rule which provides, stet pro raiione voluntas? This would do very well for a Roman Emperor. Indeed, one gentleman has compared Dr. Elliott to a Roman dictator, his sic volo, sic jubeo being set up for a supreme law. But I say, show me a single case in which the speaker of a house has ever before refused to put the question on an appeal from his decision. The power of declaring a decision of a presiding officer law, is a power belonging to the house exclusively. But here we see it usurped by the officer himself, pretending to be the sole judge of the validity of his own decision. You can see here the very same lust for power begin- ning with the clerks, and creeping up from the lower to the higher offi- cers. First, the clerks assume the right of giving a final judgment on the claims of certain members; and then we find the Moderator usurping the same power, by a higher authority. But, if tlie rejected commissioners were really entitled to their seats, notwitlistanding the decision of the Moderator and clerks, they were still in the right. It is a mistake to suppose that even the house itself has the power to determine finally the claims of commissioners. They may decide whether a commission is properly authenticated, but their judg- ment, if it goes farther than this, is subject to review and correction. There '^as no power in the majority of the Assembly of either 1837 or 1838, to determine finally the rights of any member's constituency. Speaking in a jjarliamentary sense, I say that an appeal is, under all MR. MEREDITH'S ARGUMENT. 265 circumstances, required to be put. What was to prevent the question being propounded on Dr. Mason's appeal ? It was out of order at that time, said the Moderator. But suppose the original resolution had been altogether and confessedly out of order — suppose it offered an amend- ment, while the previous question was pending, and the Moderator had pronounced it out of order: could not an appeal be taken from his deci- sion? Was the Moderator to be the sole judge? His refusal showed plainly his purpose to assist in carrying out the void proceedings of 1837: it showed that he, like the clerks, had been pledged to a certain course of conduct; that like them, he did not consider the Presbyteries from which these commissioners came, as belonging to the Church at all; but that they had been entirely and lawfully excluded by the exscinding •resolutions of 1837. Thus far the proceedings had been all quiet and peaceable. Dr. Patton had not shown, in any thiug, the least irritation or warmth of feeling: Dr. Mason's conduct was entirely respectful. Several of the witnesses brought forward on the other side have spoken of his extreme civility. In the mean time, however, there was a change evidently taking place in the Moderator's feelings. Nothing is so apt to make a man lose his temper as his being put.evidently in the wrong. Nothing is so hard to be borne, as that persons whom we wish to consider as engaged in a disorderly pro- ceeding, should succeed while behaving in the civilest manner possible, without our having the power to resist, in putting us entirely in the wrong. We can show the effect in this case produced upon the mind of Dr. Elliott, from his behaviour in the next scene of the drama. Thus far he had had no excuse for losing his temper: he had issued his orders to the right and to the left, and they had been obeyed. The next scene was that in which Mr. Squier made his claim to a seat and tendered his commission. We shall show by his conduct to him, what the Moderator's feelings were by this time. Mr. Squier rises and presents his commission — not the com- missions of all the rejected delegates — but merely his own, as he himself declares. He presents it as a commission which has been before offered to the clerks and refused; and he claims a seat on that floor. The ques- tion, from whence he came, was asked by the Moderator. He answered, from the Presbytery of Geneva, and that that Presbytery was within the bounds of the Synod of Geneva. Then Dr. Elliott replied, "We do not know you." He did not mean that he vv'as not acquainted with Mr. Squier; for he tells us, that, in point of fact, he had a slight personal ac- quaintance with him. He did not mean that he had no knowledge of the man. But his words uttered as they were, by a divine to a divine, had a most significant import. You all remember that they are a part of that dreadful denunciation, which shall be pronounced at the last day, upon those who shall stand on the left hand, the goats, consigning them to eternal woe. He might as well have continued, " Depart ye cursed into everlast- ing fire." This would have added nothing to the strength and dreadful character of the expression. He might as well have said at once, go to a place which must never be mentioned to ears polite. And why should he direct him to go to that place: why should he utter such a terrible denun- ciation? His words show plainly the violent excitement under which he laboured, though he was able to keep his countenance from betraying the emotion struggling in his bosom. Theife can be no other reason given, 34 266 PRESBYTERIAN CHURCH CASE, than that a cloud of human passion had risen in his breast, and oversha- dowed, and obscured the diviner light which usually shone into it from above. Dr. Mason took an appeal with the utmost decency and civility. There is certainly no book of authority which shows, that a similar appli- cation was ever before so received. In the British House of Commons a son of Edmund Burke once committed a most grievous breach of order, by marching into the house and depositing some papers on the clerk's ta- ble. The serjeant-at-arms endeavoured to arrest him, and a regular chase commenced under and over the tables, and over the benches; but young Burke finally escaped, after having done as much mischief as a bull in a china shop. Yet we do not hear of the speaker's telling him to go to that nameless place. When Vice President Burr was suffering so intensely from Randolph's torturing invective, and lacerating sarcasm, he permitted no expression of this kind to escape him. Show me the case, before this one, in which a civil application of that kind, has been met by such an awful denunciation as was uttered by Dr. Elliott. I certainly know of none. One such, indeed, has happened recently, since the proceedings in the Seventh Church in 1838; and perhaps in this case, the precedent fur- nished by Dr. Elliott was followed. The Speaker of the Arkansas Legis- lature, improving the example, left the chair, and buried a bowie knife in the heart of one of the members who had offended him; and sent him un- ceremoniously to that place to which Dr. Elliott merely directed Mr. Squier to go. Perhaps, after this exploit, he said, " I hope we shall have order." Could there have been a greater violation of order than that of which Dr. Elliott nimself was thus guilty? Not only were Dr. Mason's motion and appeal refused, but he uttered this tremendous denunciation, which was quite as well understood as if he had used the more common and vul- gar phrase. What stronger reason could there have been for his deposi- tion? On the other side it is said, that all this was no matter; that he might have been as immoderate as he pleased himself, and yet the house have had no right to turn him out. Now, in the first place, observe, gen- tlemen, that Dr. Elliott was not the Speaker of that house, nor was he in- dependent of it, and entirely irresponsible for his conduct. He was the person whom the rules of the Assembly said should preside in the body, if present, after preaching the sermon at the commencement; but only until another Moderator should be chosen. In other words, he was — not what my learned friend, by a figure of speech has called, though not very accurately, the germinating root of the New Assembly; for then we should have the anomaly of the plant growing and flourishing without any root, or in the absence of it; since the moment the former rears its head above the soil the latter perishes — he was a mere accident to the Assem- bly of 1838; and if that Assembly had thought fit that Dr. Beman should preach the sermon, and preside during the organization, he might have done so without difficulty or irregularity, a majority concurring in the choice. The rule provides that the old Moderator shall preside until a new one be chosen: does this mean that another shall not be chosen until he shall agree? The old Moderator is but the leaf of the old year still hanging on the bough, but ready at any moment to be pushed off by the fresh foliage. He is a mere accident to the new Assembly. He has no legitimate powers, but is placed in the chair merely to preserve order. MR. MEREDITH'S ARGUMENT. 267 He is subject, by the express tenure of his office, to be removed, because he is to preside merely until a new Moderator is appointed. But, besides, Dr. Elliott had been guilty of gross misconduct, and that was the reason of his being removed at that precise time, though, as I have shown, he was liable to removal at any time. That every house has a right to remove its Speaker, at its own pleasure, will not, I presume, be doubted. There have been frequent instances in the history of the English Parliament of the removal of Speakers, or of attempts to remove them. The last oc- curred in the year 1673, when an endeavour was made to depose SirEd- 'Ward Seymour, and the question was put upon his deposition, but was not agreed to. This being the state of the case, and it being obvious that the Moderator was applying all the force of his mind, and the force of much hiore than his legitimate authority, to obstructing and hindering, instead of facilitating the transaction of business; and that so long as he presided, the organization of the house could not be lawfully effected, it became ne- cessary to remove him. It is a well settled principle of parliamentary law, that nothing shall be allowed to contravene the evident will of the house, regularly ascertained by a formal vote. If a lawful vote be taken on any subject, for all the purposes of the body's own government, at least, that, which the majority of those who vote sanction, is obligatory upon all the members. This is the case as regards every question law- fully put and lawfully carried by the actual vote of the house, and there can be no injustice in the rule. Members cannot be permitted to sit still, without voting, when a question is proposed, or to make a noise when they ought to be attending to the question, and then to determine for themselves the will of the house, from some other evidence than the ac- tual votes cast. This would put the business of every Assembly into con- stant and inextrjcable confusion. In the present case there was no injus- tice done to any man by our proceedings : The body that met in the First Presbyterian Church excluded no one. The whole roll of the Assembly, including the names of all the commissioners both Old-school and New, both those who left the church in Ranstcad Court, and those who re- mained, was called every morning. Our doors and our hearts were con- tinually open to receive back those who had seceded from us. We ex- cluded none: indeed we had no right to exclude any body. We attempt- ed no such thing. Was Mr, Cleaveland's question properly put : did it properly come be- fore the house? I have already, I think, shown conclusively that it was a lawful question. Now let us see whether it was not, as to the mere manner, lawfully put and lawfully carried. Mr. Cleaveland was a recog- nised member of the house, as were also Dr. Patton and Dr, Mason. All these gentlemen had been recognised as members by Dr, Elliott himself, for their names were upon the roll reported by the clerks, Mr, Cleave- land, upon the final act of the Moderator, by which Mr, Squier had been annihilated, commenced a very civil statement of the difficulty in which the house had been placed by the misconduct of its officers; but used no harsh expression, applied no reproachful epithets to his brethren, and made no remarks upon the madness of any of them. He merely stated, that, as it was obvious that the regular and lawful organization of the As- sembly could not proceed under the present Moderator, and clerks, as they had been advised by^eounsel learned in the law that it must be organized 268 PRESBYTERIAN CHURCH CASE, at that time and place, therefore he proposed a change of officers, and that Dr. Beman should be Moderator. Now here came the pinch: was the Assembly prepared by a fair vote, to sanction the proceedings of the As- sembly of 1S37, and the conduct of the Moderator and clerks, who were evidently lending themselves to carry out those proceedings? I am hap- py to say, that the majority of the house, judged of by the actual vote, were not prepared to give their countenance to such proceedings and such conduct. It was honourable to both their heads and hearts, that they did refuse to give them their sanction. The same feeling, however, did not prevail with all the members; and I am very sorry to perceive that the malecontents were disposed to cast a slur on our profession. It seems that as soon the words, /' counsel learned in the law" were uttered, a tremendous uproar broke out instantaneously from the south-west corner of the house, where the Old-school members were packed. I do not, however, pretend to conjecture, whether these reverend gentlemen meant to express their contempt for our profession, or theirdetermination not to be subject to the law itself. I cannot tell. But certainly at those words the uproar commenced. The hammer of the Moderator and his tongue led the way, and at that unpropitious moment the members of the Old- school were seized with a universal and most afflictive asthma. It has been said that there was no legislative coughing; that if any coughed, it must have been from disease. Well, if there was any epidemic disease, perhaps it had been engendered at an earlier period of the proceedings, at the time when Dr. Elliott and Mr. Squier were engaged, by the chok- ing fumes of imaginary brimstone. Mr. Lowrie heard no legislative cough. Mr. Lowrie, however, has been accustomed to legislative cough- ing from more practiced hands — from the members of the House of Re- presentatives at Washington. There was not here such a deluge of asth- matic sounds as that which overwhelmed Mr. Flood in the British House of Commons; who said, when he was put down by the simultaneous coughing of full two hundred members, that gentleman might cough in that house as much as their infirmity required; but that if on the street the most afflicted of them dared but to wheeze in his hearing, he should call him to account. These reverend gentlemen were practising that day probably for the first time ; and they were as yet a very awkward squad, though they had been preparing themselves ever since nine o'clock that morning, in the presence of the surgeon-general of the forces, who was there doubtless to explain the mechanism and most advantageous use of each part of the organs of the throat. I think however, that from the testimony, it appears to have been very fair for a first effiart, and shows that they would soon have rivalled the most veteran legislative asthmatics. Certainly they succeeded by their coughs, in preventing themselves from voting on Mr. Cleaveland's motion. Never was a disease more unfortunate and unseasonable. Dr. Patton and Dr. Mason had been declared out of time, but this was certainly much more out of time. While the Old-school were struggling in the agony of their pulmonary complaint, Mr. Cleaveland's motion was put and carried, settling the question where, for the future, these afflicted gentlemen should be permitted to cough. From Dr. Elliott, Mr. Plumer, a gentleman who sat in the south-west corner of the house, and from the Episcopalian— the only representative of that denomination examined, MR. MEREDITH'S ARGUMENT. 269 you have learned that there were ten or a dozen distinct noes coming from the south-western portion of the Assembly; and this fact clearly demonstrates two things — first, that the question put was distinctly and audibly stated, the object being clearly made known; and secondly, that it was put to the whole Assembly, and that so the Old-school members understood it to be put. The motion made was that Dr. Beman should be Moderator, or should take the chair: the present case does not de- pend upon the question, which are the exact terms that he employed; and it is conclusively established that the question was put distinctly, and ■so that it could be heard by all, who were not making a noise on purpose to prevent themselves from hearing. The other witnesses of the Old- school party say that there was a general "aye!" but that there were ftot any noes. I cannot tell why they did not hear the noes: possibly they were at the time busily occupied in coughing. The greater num- ber of the gentlemen examined certainly concur in the statement, that there were a few scattering noes. These facts I collect from the witnesses all round. There can be no question that Mr. Cleaveland's motion, proposing to try the sense of the house upon the conduct of the Moderator and clerks, was a perfectly lawful motion: else must the Moderator have continued to preside until he saw fit to allow a new Moderator to be chosen. Nor can it be doubted that the question was intelligible, and was put audibly. But, say our opponents, in the first place, it was not lawfully put: Mr. Cleaveland had no authority to put it himself. Why, gentlemen, if he had waited till Dr. Elliott would put it, he would have been waiting there yet. He did not wish, and I am sure I should not have liked, to pro- pound such a motion to Dr. Elliott. If his language to Mr. Squier was so terrible, what must have been his language to one, who should have dared to propose that he should have given up his seat to another. If there was any mystical force in that little hammer, I think the man hardy enough to make such a motion would have felt it. Luckily, however, it falls into this case, that Mr. Cleaveland's proceeding was supported by precedent — we are not without a direct authority for our measures. This we derive from the Assembly of 1835. At the commencement of its sessions, Dr. Beman took the chair, and presided for some little time; but it became necessary to make a motion to put him out of office. This motion was to the same effect as that made by Mr Cleaveland, though re- ceived by both Dr. Beman and his friends, in a temper very different from that manifested by Dr. Elliott and the Old-school party in 1838. The minutes of 1835 are not at hand: I will refer to them hereafter. When that motion was made, it was put, not by Dr. Beman, but by a third person, a simple member of the body. Indeed it is the universal custom of all deliberative bodies in this country, and of this very Assem- bly, that when a motion, touching personally the Speaker himself, is made, it be not put by the Speaker, but by some member. Mr. Hubbell. In 1835 the question in regard to Dr. Beman was put by the Stated Clerk, Dr. Ely. Mr. Meredith. I was not aware that Dr. Ely was the Stated Clerk ; but you will see that he was a member also ; and it was in his capacity of member that he put the question. But suppose he put it as clerk : why that makes my argument still stronger. A clerk is certainly inferior 270 PRESBYTERIAN CHURCH CASE. to a member. Will )'ou let a footman do what his master cannot do ? It is, at least, a little extraordinary that a proceeding which was perfectly- proper when Dr. Beman was to be put out of the chair, should be en- tirely improper when he was to be put in the chair ; that because he was to be put in, it was not lawful for the motion to be made until Dr. Elliott chose to entertain it, which I presume would have been never at all. He would have held the chair as long as he thought proper. Well then, the question was lawfully put by Mr. Cleaveland, and it was put audibly. I cannot say whether he had taken advice of " counsel learned in the law" during the previous year; but if he had, certainly that was no fault. I apprehend that it is no offence against the divine law, for men to seek such information as will enable them to keep within the rules of human law, and to preserve their own rights. The question then was put, and that by a person who had a right to put it. Moreover it was carried: there can be no doubt of this, regard being had to those only who actually voted. But it is said that the question was not re- versed. Now, in the first place, it is the undoubted parliamentary law — it has been so considered in the British House of Commons for at least one thousand years — that where there is but one candidate nominated for any office, the reverse of the question need never be put. If there be but one, he is immediately led to the chair. True, it is said that here two persons were in nomination : one nominated by Mr. Cleaveland, the other already in the chair, and entitled to hold it until the question had been put upon his removal. Why, if it had been necessary that such a ques- tion should be put, and that Dr. Elliott should himself put it, before he could be removed from his place, he would have sat there so long, that like the man in the farce of Aristophanes, on attempting to rise, he would have left his sitting part behind. You can hardly say that Dr. Elliott had been nominated. But let us throw away parliamentary rules or usages, and admit that Dr. Elliott could be deprived, only by a vote of the house — not of his hammer, not of his three-legged stool, but of his office. Was not the question reversed ? This is the point to which at last our opponents are driven ; and if from the testimony we can show that it was reversed, your verdict must be for the relators. The very existence, then, of the whole Presbyterian Church depends on this one little question: was the negative put on Mr. Cleaveland's motion .-* Did he say, " Those of the contrary opinion will please to say, no?" Now from twenty to thirty witnesses in all have been examined on our side in regard to this matter, and every one declares that the question was reversed, and many of them give their reasons for remembering that it was. They heard the reversal distinctly, and, most of them, votes in the negative, and their testimony puts the matter beyond the reach of doubt. All the other witnesses — I shall not trouble you with an examination of each one's testimony — all the others swear that they did not hear the question reversed, though most of them heard the motion and understood its pur- port. With different classes of these witnesses different causes operated to prevent hearing. One gentleman who could most probably have decided this point, Dr. McDowell, was not examined in regard to it, though called upon the stand. I have made a rough list of the witnesses who have testified as to this matter, and find, that against about fifteen on our side, who swear that the question was reversed, there are about three- MR. MEREDITH'S ARGUMENT. 271 and-twenty of the Old-school, who swear that they did not hear any reversal. Now, of these latter there are several classes. Some, like Dr. Elliott, were calling to order, and were, besides, too much excited to hear distinctly. Others had their attention distracted, partly by the busi- ness that some of the Old-school were pretending to transact, and partly by the noise and confusion. Some who expected to hear the reversal, as a matter of course, but who did not intend to vote upon the question, per- haps paid little attention to the proceeding. Another class, who were doubtless looking for absurd motions, thought that Mr. Cleaveland pro- j)osed a new body, turning the words "new Moderator" into "new body," by the help of a little imagination. Others seem to have been engaged in their own private disputes, or were remonstrating with those who got up on the seats of the pews. But in regard to this testimony, it is enough to mention one plain principle of the common law and of com- mon sense. There are sixteen witnesses of the most respectable charac- ter, who were located in distant parts of the house, and swear positively that they heard the reversal. Certainly our witnesses are fairly in for it on this question. Any one who says, when asked if the negative was put, that he knows it was, if it was not put, must have wilfully forsworn himself. On the other side there is an equal or a greater number; but they say only, that they did not hear any reversal. One or two of them — I believe they were not ministers — have ventured to declare that they know the negative was not put, for that they must have heard it if it had been. Their error may be accounted for by reference to the confusion that prevailed. Now it is a general rule of evidence, that if one respecta- ble witness swears positively that he saw or heard a particular thing, his account is to be taken in preference to those of five hundred others, who can testify merely that they did not see or hear it. In the former ease you are to judge, not of the probability of the thing's existence, but merely of the witness's good faith. Where there is no doubt of a person's cre- dibility, there can be none of a positive fact to which he directly swears. But in the next place, we should consider what this thing was which escaped the senses of so many persons. Was it a very extraordinary thing, one not before heard of, like the stamping and scraping, and cough- ing to which several persons have testified, or the words " counsel learned in the law," which I believe were heard by every witness? Far from it: it was a regular and ordinary matter, which every person must have expected to take place. Our attention is engaged and fixed upon an object, on one of two principles: either that we desire to apply ourselves, and to learn something, or that the nature of the object itself is remarkable. If a proceeding be a very common one; and we think that it is in the hands of persons capable of conducting it regularly, we are very apt not to attend to its details. If any of you belong to a club or debating soci- ety, and were now asked whether you heard the question reversed, on any particular motion made at its last meeting, most of you could perhaps hardly swear to the reversal, though it had been reversed. Expressions that have become common, which are always expected, as a matter of course, to occur at a particular time and place, lose their effect. So well is this matter understood by the members of the Presbyterian Church, that they repudiate all written forms of prayer; certainly not supposing that extemporaneous pj:ayers can be better than written ones; but having 272 PRESBYTERIAN CHURCH CASE. observed that tlie power of attention is in a measure lost, after a thing has become habitual, and is expected always to follow in a certain order. The clock above us, gentlemen, has struck eleven since you have been sitting here this morning — I wish it had not yet struck — yet very few of you, sitting in that jury box, have noted the sound. Perhaps some who do not reside in Philadelphia may have heard it. The reason is that they do not hear every day and every hour the tone of that tremendous bell, that echoes through the county for miles around. Those who are accustomed to the sound ringing in their ears from hour to hour seldom notice it. Why, if it was a strange thing to them, they could not sleep at night. Now the practice of reversing questions was so familiar to all present, was regarded as so much a matter of course — for most of these individuals had been in other Assemblies, and had attended the meetings of Synods and Presbyteries — that they confidently expected a reversal, and therefore did not listen particularly. We have shown circumstances enabling our witnesses to recollect positively in regard to this matter. Hovi^ many of you, gentlemen, who heard the crier open the court this morning, can now swear to the fact? How many of you can go back over all the time that we have been engaged in this cause, and declare on oath that you have heard him open the court every day. Very few of you perhaps could say that you did hear it: I hope none of you would swear that the thing did not happen. I wonder, indeed, that any of the gentlemen of the Old-school heard any thing at all; for they were not endeavouring to hear. They soughs to bolster up their own disorderly proceedings, by treating those of the opposite party as a disorder. At last, as a forlorn hope, they may have determined not to hear. During a part of the time, indeed, something else was going on in the part of the house occupied by Mr. Krebs, Dr. Elliott, and their friends; and there was great excitement and much noise. I hope that this noise did not come from the New-school: I do not believe that they were guilty of such a parricidal, or rather suicidal, offence. It was not they that were troubled with such on asthma, as to make the attendance of a medical ruling elder necessary. They did not subject themselves to rebuke for indecorous conduct — behaviour unbe- coming ministers of the Gospel. But it is not enough. to say there was a great deal of racket in the church — though, first, it appears that there was so much that the motion was not heard; and then so little, that all could hear that the question was not reversed — not enough to say that ladies were rising up, that there was a clapping of hands and a rustling of silk dresses. The stentorian voice of Mr. Cleaveland could hardly be drowned by the noises which were vibrating through the hall, or by the slight rustling of heretical petticoats in the galleries — for it seems that the ladies are on our side. I feel rather proud of their favour, though they are not subject to any tribunal, and suffer no appeal from their deci- sion, in which respect they are rigid Congregationalists. One of the Old-school witnesses, a gentleman from Princeton, says can- didly, that these noises came most likely from those whose interest it was to make them — those who did not desire that the questions should be heard. All the witnesses on that side were asked, " Was the ques- tion reversed?" The universal answer was, " I did not hear it reversed." But we have the direct and positive testimony of witnesses on the other MR. MEREDITH'S ARGUMENT. S73 side who did hear it. And several of them have told us of circumstances that particularly fixed their attention, and impressed their memory. They were very anxious as to the result of the vote : they feared that the ques- tion would be voted down. They therefore listened with great solicitude to the reversal, and were exceedingly gratified to hear no more negatives. Mr. Lathrop voted himself in the negative — a fact which, while it proves conclusively the reversal of the question, shows the want of concert among the members of the New-school. He says the rest of the noes came from the south-west portion of the house. Those who made the noise then, and prevented themselves from hearing, are plainly responsi- ble for that noise. I ask that your Honour should charge this jury, as a point of law, that if the Old-school created the disturbance, they must suf- fer by it; and that in such case, it being proved that the proposition was put, it will avail them nothing to show that they did not hear the ques- tion, or the reversal. I said that I would not cite any authorities in the course of my argu- ment, but a case in point occurs to me — the case of Rex vs. Foxcroft^ more usually called Oldknow vs. Wainwright, found in 2 Burrowes, 1017. That was a case where a majority of the electors had not only re- fused to vote, but had made a formal, written protest against the election. They could not say however that the question had not been lawfully put, and Lord Mansfield decided that they should have voted against the can- didate; that in that way only could they oppose the election. Do you believe that any one of these gentlemen can say in candor, that he intended to vote; that if he had heard the reverse put he would have voted no? Dr. Wilson, I think it was, who told us very frankly, and without reflection, that he was sure he could not have heard even if he had endeavoured to hear. They did not try to hear; they did not intend to take any part in the proceedings ; it was their plan not to vote. They had determined to regard the whole of the measures of the New-school as a disorder, as entirely void in law. Therefore though they might have heard Mr. Cleaveland's motion, and might have heard the question re- versed, they preferred not to hear; and Dr. Elliott went so far as to enter- tain a motion made while Mr. Cleaveland's was pending, and just as he was slipping oflf of his chair. This reminds me of the prayer of the car- penter, who when rolling ofi'of the roof, began very appropriately to say, "Now I lay me down to sleep." No wonder they could not hear: I only wonder that they heard so much as they did. The most of them have told us that they heard dis- tinctly Mr. Cleaveland's motion, and the vote in the affirmative. Of the whole Old-school party, the three who were placed in the position most advantageous for hearing, were Dr. Elliott, Mr. Krebs, and Dr. McDow- ell. Mr, Krebs was the most active of the three, being the junior of the others, but his attention was occupied with the roll, the motion for the ap- pointment of a Committee of Elections, and the application of a member, Mr. Moore, to have his commission examined. I see that this was the case from the Minutes, and their testimony does not vary from Mr. Krebs's own statement. But why was not Dr. McDowell examined, in regard to this point, when he occupied such a commanding position, and was here on the stand several times? I am sure I do not know why; but I should be very glad to Jtnow whether he was. as deaf as the rest. 35 274 PRESBYTERIAN CHURCH CASE. You can judge only by the actual vote, whether the question was law- fully carried ; and if any confidence is to be placed in human testimony; if there is faith in those whose sacred character we have all been taught to venerate, you must believe that a large majority voted in the affirma- tive. But mark, there was no division called for. The Old-school party chose to consider the whole proceeding a disorder and a rebellion. They wished to put the Assembly itself at the feet of the Moderator of the preceding year. Where was there one who called for a division — the only orderly method of testing the majority, when there exists a doubt of the manner in which a question has been decided ? No man objected at the time. Even if the question was not reversed, all the members of the Old-school, excepting those who were making a noise, assented by their silence : they acquiesced, and suffered the motion to be carried. But, further, in point of fact, the question was reversed. They, the de- feated party, heard it reversed, and uttered a few scattering noes. They knew that they were the defeated party, and were silent : they sat, as one of the witnesses has told you, in mute amazement. But as soon as the New-school had gone off with a proclamation of the adjournment, they began to recover the use of their senses, and to cast about for some means of relief. They begin to ask, '' Didn't some ladies in the gallery vote? Didn't some of the commissioners from the exscinded Presby- teries vote?" Suppose they did vote : I do not care. If a majority of those entitled to vote, iind who actually voted, voted in the affirmative, the motion was lawfully carried : a few ayes or noes from persons not members could not invalidate the whole proceeding. The}^ were the de- feated party, and felt that they were; but affecting to believe that they were really triumphant, they made use of such charitable expressions as that given in evidence : " Whom God wishes to destroy, he first makes mad." Their acts show that they felt themselves defeated. They immediately began to look about for circumstances that would excuse their not voting, and invalidate the vote of their opponents, like the Sabines, who, when all human means had failed, imagined that they saw Castor and Pollux coming to their assistance. Dr. Beecher, they were told, had uttered an aye which might have been heard across Washington Square ; and Mr. Duffield who was not accustomed to carry a cane, had struck his cane upon the seat, and exclaimed, "That was done according to law, as slick as could be." These things are better calculated to excite laughter than to increase our respect for those who gravely urge them. They were all phantoms of the imagination— mere apparitions. None of you, gentlemen, can for a moment believe in such spectres. It was a time of great ex- citement, and it is not wonderful that the senses of some should have been deceived ; that one person should have fancied that Mr. Duffield carried a cane, which he had never carried before, and has not carried since; and that he used language which certainly never came from his lips. These things show that our opponents are conscious of defeat. We, gentlemen, have not entered into any devious paths. The direct- ness and simplicity of all our movements differed entirely from the quirks and quibbles of our opponents about points of order. They say, " We called you to order; the Moderator of the last year is the germinating root of the new Assembly, and presides sui juris in its organization. You can't form a house without his assistance; of this perhaps you have MR. MEREDITH'S ARGUMENT. 275 not been advised by your learned counsel. You must observe the old law which provides that each Moderator shall read a certain set of rules to his successor, on declaring him elected," and so forth. But we were not skilled in parliamentary manoeuvres. With directness of purpose, and in the simplicity of our hearts, we went forward — we are not ashamed to say it — we went forward to effect a legal organization. This directness of proceeding, this very want of skill, as awkwardness sometimes foils the most expert swordsman, was perhaps the cause of our success. Powerless and defenceless as to all human means, we were sustained and borne on- vvard by that power which is usually manifested in the hour of man's most deplorable weakness. Gentleman, I have now gone through with the remarks which I have ■thought it proper to make in this case. It is not necessary that I should further try your patience by stopping to consider the various minor points which it presents. There is nothing at all in the mystical hammer, about which so much has been said. The old officers, I have shown you, were lawfully displaced; an adjournment was lawfully voted; we proceeded to the First Church, and all the commissioners were invited to attend; our doors were always open, and every one that chose remained a member of the General Assembly. We proceeded in a legal manner to the election of trustees, and those trustees are the relators. I hope — sincerely hope, that the end of this proceeding will be peace: such is the fervent desire and prayer of my clients. They wish that the two portions of the General Assembly, now separated, may again come together — that union, harmony, and love may again prevail. That losing sight of all sinister objects, and no more breathing the spirit of discord and war, as brethren we may be joined together in heavenly communion. That none may hereafter come up to the Assemblies of the Church, with any mental reservation, any secret design to expel a portion of their fel- lows; that each may be greeted with the kiss of peace, and the Christian salutation, " Is it well with thee my brother?" If unfortunately I have been bitten by the angrier part of the spirit of this controversy, and have spoken a single word harshly or unkindly, those who know me must know, that it has not been an intentional offence. 276 MR. PRESTON'S ARGUMENT. May it please your Honour — Gentlemen of the Jury: — It is a per- sonal misfortune to me, that I come to the performance of my part in this case, exhausted by forty-eight hours of severe indisposition, and labour- ing under great debility. I would beg the indulgence of the court and jury, did I not feel that, if I have any strength remaining, I should ex- pend that, before trespassing further upon your patience, which must al- ready be well nigh exhausted, I regret this as a personal misfortune, merely, not as likely to affect, much less to endanger the cause of my clients; for I may say, with all candour, that after having heard every- thing which has hitherto been urged by our opponents, I feel convinced, that the complete vindication of those whom we represent will require from us but a very little expenditure of either zeal or talent. Unques- tionably, the whole of this proceeding has been conducted, on the part of our learned friends on the opposite side, with signal ability. We all must have been both entertained and instructed by the luminous and able opening of the honourable gentleman, to whom on Saturday, and to- day, we have listened. But, notwithstanding the ability and learning which he has brought to the aid of his cause, and nowithstanding the ac- cidental increase of my own incapacity, I do not feel a whit daunted: I am still unshaken in my confidence, that your verdict will be in favour of the defendants, and will restore to the Presbyterian Church that peace, which, without such a verdict, it is vain to expect. The learned counsel have, perhaps, in nothing else, so clearly, illustrat- ed their ability and zeal, as in the general course which they have pur- sued in the opening of their case, the development of their testimony, and the disposition of their argument. They have devoted the greatest length of time to the proceedings of the Assembly of 1837: upon these they have dwelt with the greatest stress and urgency. In. the opening of the case to the jury, these occupied two-thirds, and in the exhibition of testimony, three-fourths of the time; and of the learned gentleman's ar- gument, from four to five hours — the whole of Saturday — were devoted to this part of the case, and to the remaining portion he has given but the two hours, which he has consumed this morning. Yet by his own decla- ration, forced from him by the necessity of the case, just as he was con- cluding his argument on Saturday, he admitted, that as yet he had been occupied with preliminaries alone, promising that to-day he would come to the merits of the subject. According, then to his own calculation, the preliminaries of the case are to its real merits, as five to two. While en- tertained, amused, and instructed, by perhaps the longest exordium that ever adorned an argument, we looked with great anxiety to the impor- tance and extent of what was to follow. But we have found the whole speech little more than a preliminary — that on which the counsel has chiefly relied is something anterior to the case. The structure that he has reared is all portico: in vain we look for the substantial fabric. Feeling MR. PRESTON'S ARGUMENT. 377 that it is not my duty to imitate the learned gentleman, I shall not con- sume your time in a long exordium, or by distant approaches to the sub- ject. To-day, I shall direct your attention to nothing but its real merits. And if now I were about to discuss it for the first time, I should feel ex- onerated from saying a single word in reply to the voluminous argument, which has been founded on the proceedings of the Assembly of 1837, feeling confident, that they could have no bearing upon your decision in regard to the merits of the case. But others having thought differently, at an earlier stage of this cause we picked up the gauntlet thrown down by our opponents, and promised to vindicate those proceedings. We shall, therefore, advert to them hereafter, though not until we have disposed of the more important matters, on which, as we still believe, the final adju- dication of the court and jury must depend — the proceedings of 1838. I will take up the subject where the honourable gentleman left off, defer- ring to my peroration all that has furnished matter for his protracted ex- ordium. His plan of proceeding has reminded me of some able general, who after heaping up piles of dust which the wind drove directly in the enemy's face, commenced his attack under cover of the cloud. But I think that the dust has by this time been blown away, and that we shall be able to examine clearly the true merits of the case. It must be apparent, gentlemen, to you all, that the counsel for the re- lators have entirely failed to designate, in any part of this proceeding, in the whole of their voluminous testimony and argument, a single distinct point, on which, if established, they can rest their case, unless it be em- braced in a proposition which I shall here state to you, and which it is very important you should bear in mind. They have not been able to advance any other distinct proposition, or certainly they would have done it. In- deed the learned gentleman who has preceded me was forced to acknow- ledge, that this was their only ground, and, with submission to the Court, I take upon myself the responsibility of telling you, that it is the true point on which the whole case depends. It is all that you are called to try: the issue is joined upon it, and on it must you decide by your ver- dict. This, may it please your Honour, is the proposition — the only one advanced by the opposite counsel: that by intendment of law and the rules of parliamentary order, the party whom we represent voted with the other party, or, by silence, acquiesced in their proceedings. Here is the whole case: every thing else that has been urged is but auxiliary and ancillary to this. There has been a waste of all the testimony that does not sup- port this point. Wit, argument, and eloquence have failed to illustrate any other proposition on which they can pretend to claim a verdict, than that by intendment of law the Old-school voted with the New. It is for no mere forensic parade that I tell you, that I have not been able to ascer- tain what the learned counsel would be at, if it be not this. And I would say emphatically, that this is a question more of law than of fact ; that you are called upon to decide, in the exercise of your function as jurors, mat- ters of fact, indeed, but these mixed up with most important principles of jurisprudence. You are to determine, whether in the Assembly of 1838, our silence was, by intendment of law and of parliamentary rules, an ac- quiescence in the revolutionary proceedings of the New-school party; for if it was not, they cannot ask a verdict at your hands. To establish this sole proposition is both^the beginning and end of their case. 278 PRESBYTERIAN CHURCH CASE. Before I proceed to examine minutely the different points of law and fact upon which this proposition depends, I would endeavour to present a gen- eral view of the attitude in which the respective parties to this proceeding stand before the court and jury. It will be of great consequence, I think, that you should carry along with you a clear understanding of their rela- tive position. In the course of the remarks which I have before made, I endeavoured to illustrate the attitude of these parties for purposes and with results, which I shall not again detail at large; but even in regard to the points thus presented, it seems necessary that I sholild yet say a word. These Relators have not asserted, that our Assembly of 183S was not the true General Assembly : if they had, we should have demurred to their sug- gestion. It is not their business to impugn and to vituperate our proceed- ings. We are a mere nonentity, and do not, from the necessity of the case— e.r officio — stand up for the acts of the Assembly of 1837 or 1838. It is a fundamental error, to suppose that we are bound to vindicate either. Our duty is merely to contend that the relators have not been legally ap- pointed, that they have no rights to establish in this court. I may be considered as attorney for the Princeton Seminary: we say that that insti- tution shall not be used and managed by the relators; that they have no just claim to it, and that we choose to retain possession of its funds. We deny that theirs was the true General Assembly. The first general ground which we take, and I say it with no asperity of feeling, is, that the management of those sacred charities, which the pious people of the Presbyterian Church have confided to our hands, shall not be seized upon, and forced from us by men claiming authority, against the evidence of the clearest facts, by a mere intendment of law. The learned couasel have distinctly placed their claim upon that ground, for they freely admit that in 1838, a decided majority of the representatives of the Church met in the body that held its sessions in the house in Ran- stead Court. They say that because we sat mute, though we refused to give countenance to the proceedings of the New-school party, regarding them as a disorder and an outrage, we surrendered our rights to them; and they now come into court, and seek to establish, by the verdict of a jury, in spite of the notorious fact, under cover of a mere technicality of law, that they have superseded us. They ask you to make the minority, those who took advantage of their brethren by a legal artifice, trustees of the beneficence of the whole Presbyterian Church. In the outset we tell these gentlemen, that we shall avail ourselves of every means which the law puts within our power, in a contest with men who rest their whole claim upon an intendment of law, and assert in direct contradiction of all the evidence of facts, that the majority of the General Assembly of 1838 agreed to measures, which they never agreed to — measures which they have always denounced in the bitterness of their hearts. Doubtless, gen- tlemen of the jury, every one of you has been somewhat conversant with legal proceedings, but I venture to say, that you have never before seen any litigant come into court, and boldly declare, " I claim a verdict against the notorious facts of the case, against the clearly expressed intention of the parties to the transaction upon which the jury is to decide. By a trick I have supplanted my opponents. I know that they understood the transaction in one way, but, by a quibble, I can make you understand it MR. PRESTON'S ARGUMENT. 279 in another way." I venture to say in advance, that, if the relators in this suit are successful; if the court and jury establish their suppositious case; if by a mere legal technicality they triumph, it will be the first time that I have known such a triumph. I am aware of the existence of a vulgar notion, that the law is full of tricks, and technicalities, and sly meanings, and adroit artifices. I beg, gentlemen, that you will not, for a moment, think thus of the common law. God forbid, that I, an humble officer in the temple of the law, should ever behold a sheer artifice, a trick, a quib- ble, prevail over justice. But this is altogether a mistaken conception. The common law is a fabric built by the skill of ages — a system of wis- dom moulded by the experience of centuries. It has grown with the wants of society, and rests upon the sacred principles of justice. From time to time it has been amended and improved. It is a rich alluvion washed up by a thousand fertilizing streams. Such being the character ot this glorious system, will you narrow it down to a miserable technicality, and fritter away the eternal principles of right to mere quibbles, and legal intendments? It cannot, it must not be! Suppose I were dealing with my neighbour, and should give him a paper to sign; that he should say "I understand the instrument thus," and upon my acquiescence in his view of the matter should subscribe his name. And suppose I should then go to a lawyer and say to him, " I know that my neighbour understood this paper according to the intent that appears upon its face; but cannot I con- vince a court and jury, that by intendment of law it must bear another construction, a construction which will deprive him of the very rights which he imagined the instrument was framed to secure?" Would not every honest man reject such a proposal with scorn and indignation ? Oi-, to put another case, if any one of the gentlemen engaged in the transac- tions, on the character of which you are called to decide, had come to us and said, " Gentlemen, we are informed by counsel learned in the law, that if we put this question to the whole Assembly, and you are silent, you will be considered as acting with us, as acquiescing in our proceed- ings"— would they have got our vote? They do not pretend that they would. Yet, as the testimony shows, keeping their intention private, without putting us upon our guard, they proposed the question, and we remaining silent, they have gone away and declared that the whole Assembly voted; that those agreed to the measure, whom they know to have been in direct opposition to it. Is this fair: is it equitable? Shall we resign to such men the complete control of these funds of charity, or agree, without a desperate struggle, to suri-ender the rights, which they would wrest from us by an intendment of law? No! It is our sacred duty as trustees to resist, to the very uttermost, every such attempt. The whole of the relators' case depends upon the proposition that the Old- school voted with the New. Did they thus vote: did a majority of the Assembly of 1S3S acquiesce in the proceedings of the New-school? Did we assent to their measures? Did we assist in the organization of their Assembly? Unless these questions can be answered in the affirmative, I say, with submission to your Honour, that the relators are out of court, that they cannot ask this jury for a verdict. Will any thing authorize a conclusion in spite of the clear testimony of facts? There is a maxim, to which in my practice I have always ad- hered with pride and ^lid comfort, and which I believe is in accordance 280 PRESBYTERIAN CHURCH CASE. with the dictates of sound reason: that law may be found for whatever a spirit of equity sanctions. JVfever yet have I failed in the application of this doctrine, unless in the present case. Tell me what is right, and fit, and according to eternal justice, and I will find law for it. But here our opponents say, " The facts are clearly against us; in equity we are not en- titled to the charitable funds of which we claim the control; yet can we find law that will set aside the principles of justice; some nice technicality that will support our claim." But they cannot succeed even on this ground. There is something in the benign spirit of ihe common law that will protect it from such abuse and degradation. I cannot suppose that any legal technicality or fiction can be productive of aught but the com- mon good. But I do not rely merely upon the common law of the land, when these pious charities are at stake. There are profound and holy questions of religious right which are beyond the spirit of human laws. I invoke the sanctions of that eternal law of heaven, by which right and justice shall in the end triumphantly prevail, however they may be tor- tured and disfigured by human tribunals. Such, then, is one view of the attitude in which the respective parties to this proceeding stand. There is another, gentlemen, which is hardly less important. Here we have a minority — a clear and, an avowed mi- nority, claiming to exercise the rights of a majority. I say that our opponents avow themselves to be the minority; yet there is a reservation in this acknowledgment, and I must say that it is with pain I mention it. There have been many unpleasant things in the history of this trans- action, but to me, the most unpleasant is the means by which these mis- taken gentlemen attempt to shield themselves from the imputation of being a revolted minority. They say that the Old-school are to be con- sidered as a part of their body, that their list included all. That when they went away from the church in Ranstead Court, it was the departure of the whole Assembly. In the first place they assert, that by intend- ment of law, we are to be considered as voting with them, as acquiescing in their violent measures; and then, that by another intendment of law, we, who continued our session in Ranstead Court, were a part of the body that assembled in the First Presbyterian Church. So notorious is the contrary, that if this were stated as the naked fact, every body would be shocked at the perversion of truth. And when, by a mere pretext, a mockery, they seek to support their assertion, we must be permitted to say to the counsel learned in the law, whose authority they invoke, you have mistaken the law most egregiously. What! we went with them? Suppose we had gone, in accordance with their invitation, and their hol- low protestations of brotherly kindness: suppose we had marched in solid column into the church on Washington Square — what would have been their position? Did they intend that we should go with them? Did they expect us to go, and vote them down? How their kind hearts would have dilated with joy, if we, the defeated and suppliant majority had taken our seats among them, and voted them out of the Assembly. Would this have been what they expected and wished? Why immediately they would have resumed their march. As soon as Dr. Elliott had, by our votes, regained possession of the chair, they would again have organized themselves, " in the fewest words, in the shortest time, and with the least interruption possible," and would have retired to the next Presbyterian MR. PRESTON'S ARGUMENT. 281 church. Following their advice, and accepting their kind invitation, it would have been our duty to follow them immediately to this second church; else they would have begun to be the General Assembly, and to regret, most profoundly, the absence of their brethren. Well, we follow them to the next, the same scene is re-enacted, and so on until they are driven out of the town — perhaps to some place within the bounds of the exscinded Synods, to find a locality for the organization of the true and constitutional Assembly. This must have been the result, had we pro- ceeded in the course urged upon us by our opponents. We could have established our rights only by the subversion of theirs. Did they intend that we should be of them? Perhaps this was an intendment of law. Could they have constituted their Assembly, could they have proceeded one inch, had we been present? Their intention undoubtedly, notoriously, was to split us off, to separate us from them. It is a mockery, an offen- sive mockery, to tell us, that we, the majority of the General Assembly, were with them, when they know, that if we had been there, we should have defeated their purpose, and subverted all their machinations. There, gentlemen, is another thing, that I beg you will carry along with you. I proceed to a third point — to still another position taken by my learned friend. He asks who we are, and who are they. In this part of his ar- gument he has answered the first question, but like some of his friends has forgotten to reverse it. I make the same inquiries, and shall attempt to answer both. Who are the members of this Old-school party? "Ju- venile patriarchs" we are told; hot-headed young men who are striving to sieze the reins, like a youth of old, who drove another chariot athwart the sky. But which are these young heads? Is that reverend gentleman (Dr. Green) one of the "juvenile patriarchs," who have been thought fit subjects of merriment and derision? His sword was fleshed in our polit- ical wars, before he passed from the ranks of the Revolutionary army, to the head of the Presbyterian Church. God forbid, that he has been spared, only to weep now over the tomb of all he has most loved and cherished! Or is the Rev. Dr. Alexander the rash, impetuous youth, who would lay a parricidal hand upon the institutions of the Church ? Is it that hand, trembling with age, that has aimed the deadly stroke? Around you, in every direction, you behold grey heads and bent bodies; and these are the "juvenile patriarchs," the unholy band, that would de- stroy the Church of their fathers! Who are they upon the other side? Men of whom the largest portion, as I trust, after a serious contemplation of the several vexed questions that have divided the Church, have come to the conclusion that the New- school are right. I hope and trust that they are candid and conscientious in their differences from us. But are there no youths among them! If the statistics of their ages were taken, would not we be their elders ? If their faith be measured by the Presbyterian standard, must we yield to them in orthodoxy? Has any body or sect, any man, woman, or child, ever denied that the cause we advocate is Presbyterianism — thorough- going, true-blue Presbyterianism? Has any one pretended to doubt whether Dr. Green, and Dr. Alexander, and Dr. Miller are Presbyterians? None, even in the heat of theological controversy, or when labouring under the exacerbations of party strife, have ever asserted the contrary. And what are our oppoifBnts? Some of them have sat as committee-men 36 282 PRESBYTERIAN CHURCH CASE. in the judicatories of our Church; some of them have sat in Congrega- tional churches. They have I'.ot deemed this a matter of serious impor- tance. The difference between the two sects they regard as trifling and frivolous, and now they are Presbyterians, now Congregationalists, and again Presbyterians. Some of them have travelled over the country with an assortment of faiths in their pockets. Here is a sample for Congrega- tionalists; here another for Presbyterians. We are not contending about money: Pll show you that we are not. We go for the doctrines, the faith of the Presbyterian Church. My learned friend has spoken of an infant prayer lisped at the mother's knee — I wish I could remember the beautiful language in which he depicted that kneeling infant. But they of whom he speaks, they who have received these early lessons, are Con- gregationalists, and their only language is that which they have been taught in infancy. By such training, the propensities of their nature have been fixed, and with the burden of that lisping prayer still upon their lips, they come to seize upon our faith and sacred charities. Have we any thing of this kind among us? We are Presbyterians, whatever they may claim, or are proved to be. If this case is decided against us, it will be decided against the Presbyterian Church. But what is the purpose of our opponents? Remember, gentlemen, that on the third Thursday of May, 1838, a disorderly, loose, disjointed mass of men swept from the portals of that church in Ranstead Court, and that, to us, the next indication of their doings, was the bolt of light- ning aimed at the head of the venerable man before you. They talk of caring naught for money; they talk of reverence for age, and call us the "juvenile patriarchs." Yet their only efficient act is the blow by which they would have stricken down that aged and trusty servant of the Church; an act which says in language too plain to be mistaken, "We want the money; we are not willing to intrust you with these funds." This is their fraternal feeling, their meek forbearance, their Christian kindness. And their object is to be accomplished, this reverend father is to be excluded from his seat, and the funds of the Church to be given over into their hands, against, and in spite of the evidence of facts, by an intendment of law! Court adjourned. TUESDAY MORNING, March 19th.— 10 o'clock. May it please your Honour — Gentlemen of the Jury: — I yesterday stated to you, in the first place^ my notion of the real question on which you are to decide; and then, as my duty seemed to require, attempted to illustrate the true attitude of the respective parties to this suit, in order to remove all prejudice from your minds, and that you might carry along with you, a clear understanding of their relative positions. I submitted to your Honour, that the real and sole question on which tlie case turns, that which must be the essence of the finding of this jury, is, whether by intendment of law, the majority of the Assembly of 1838 are to be pre- sumed to have acquiesced in the proceedings of the minority. This question of legal intendment, gentlemen, is for the Court. Whether there are facts to authorize such an intendment is for your decision. If instruct- MR. PRESTON'S ARGUMENT. 283 ed, that under certain circumstances, that intendment will arise, it will be your duty to determine whether those circumstances actually exist in the present case. The first question is merely a question of order, and turns exclusively on parliamentary rules — rules not even of the dignity of par- liamentary law, strictly so called, but of the nature only of regulations of parliamentary order, made to facilitate business. Now, it is not for me to disparage parliamentary rules of order; certainly they are of great propriety. Prescribed forms are necessary to the due execution of any business, and cannot be deviated from without danger. Justice is best secured by a strict adherence to these forms. Therefore, I cannot concur with my learned friend, in considering them of an unimportant and trifling character, whether prescribed by the General Assembly, or any other parliamentary body. He has been pleased to speak in a light man- ner of their influence and power; to ridicule them as contained in un- bound, or but half-bound books. And this, when his whole case may depend upon the very slightest, the most unimportant of them; when, but for one of these rules it would be impossible for the plaintiffs to come in- to this court. Not only do they claim under rules of order; the very least of them is the foundation, the corner stone of their proceeding. Here it is: {Appendix to Constitution^ R. 30.) " Members ought not, without weighty reasons, to decline voting, as this practice might leave the decision of very interesting questions to a small proportion of the judicatory. Silent members, unless excused from voting, must he considered as acquiescing with the majority.'^ This is the rule on which the relators' case hangs — a rule in some sort unauthorized, though adopted by the General Assembly, for the regula- tion of its own conduct. And not only does it appear in an unauthorized shape, but, as we are told, must according to the practice of the General Assembly, be adopted at each meeting, before it becomes obligatory. In the very case before us, this very rule was considered of so slight an authority, that Dr. Beman, when Dr. Fisher had, as it is said, been elected Moderator, instructed him only, that his future conduct should be go- verned by the rules to be subsequently adopted; that is by an ex post facto law. This code, according to the declaration of our opponents, is not binding upon any Assembly, until first re-enacted by that body. In other words, each Assembly is to be organized, according to fundamental rules, which rules, however, do not exist until the Assembly re-enacts them after its complete organization; and which, therefore, when re- enacted, must be retro-active. Such is the opinion of the learned counsel in regard to these regulations of order, though on one of them, as I have said, their whole cause depends. Of course I shall not complain of this. Indeed the thing will correct itself. All bodies regularly organized must be organized according to rule. And I am willing now, to presume, that, in the present case, the rule just read, did exist, previously to its re-enact- ment by the Assembly of 1838; and, if, by virtue of it, our opponents can make out their case, you must find a verdict for them. Now, gentlemen, have they brought themselves under the law? I think I can show that they are not within its provisions; that they cannot claim by it. It is conceded on all hands that we did not vote; that we did not intend to vote; that, if we had voted, it would have been against the reso- lutions, and to contradict any intendment of law. But, say the learned 284 PRESBYTERIAN CHURCH CASE. gentlemen, " silent members must be considered as acquiescing with the majority." Under what circumstances can this acquiescence be presumed to take place? Only where a question is actually put. If a question be put in a legal manner, to a legally organized Assembly, and a portion of the body refuse to vote, they are considered as acquiescing with the majority. Although of this, on its mere enunciation, there seems to be no doubt, though it appears like a very simple proposition, yet, in fact, it is most complex, depending on a great many elements of very nice consideration, and in themselves conflicting. It has been stated in the summing up of this case, that there was a question proposed, that it was put in the affir- mative, that it was reversed, and this in a proper form, that it was put loudly enough to be heard, and that it is no matter whether it was actually heard or not. The learned counsel has omitted the most important and striking particular. Not only must the question be put, and reversed, but it must be put by a competent person. This item he has omitted. Of all the requisite elements he has cautiously avoided that which is the most essential. We are now engaged, it must be remembered, upon a point of order. The rights of the respective parties to this proceeding depend upon your construction of a rule of order. And, in the begin- ning, I tell you that one of the most important elements in your inquiry, is, whether the question was put by the proper person. In regard also to all the other elements you must decide: not only whether the question was put by a proper person, but whether in the proper manner, and at the proper time — whether it was in order at that time. It is of the utmost consequence that the proceeding should have been orderly, and according to parliamentary rules. If it was disorderly, we were not bound to vote upon it. If in its commencement it was disorderly, our rights are not affected: the rule does not oblige us to take part in a disorderly proceed- ing. It is only when a question is in order, that all who are entitled to vote, and do not dissent, are considered as acquiescing. If the vote is upon a question not properly put into the possession of the house, no one can be bound by it. The act is disorderly, and none but an orderly act can be binding upon any one. I ask then, was Mr. Cleaveland's motion put? And, first, to put a question requires a competent person. Under this rule there is an agree- ment in the nature of a contract — a contract that whenever a question is put by a person having authority to put it, and is voted upon, all the members shall be bound by that vote. Had Cleaveland a right to put the question which it is said he put, according to parliamentary rules? I am not now speaking of the nature of the question itself. Could any ques- tion be put by an individual member, so that the vote upon it should be obligatory? Was Mr. Cleaveland authorized to rise, and, superseding all forms and rules, to put the house in possession of any question, by a vote on which they would be bound? I believe that in the whole history of this General Assembly, or of the British Parliament, from which all our laws on this subject have been derived — and they embody the col- lected wisdom of ages, beginning even with the date of the Wittenage- mote — or in the history of the Congress of the United States, or any legislature in all the twenty-six individual States, a single instance cannot be found of a question's being put by a private member of the body. I MR. PRESTON'S ARGUMENT. 285 will not presume to say positively, from my narrow acquaintance with the history of these different assemblies, that no such instance has ever occurred: certainly I have never heard of one. I believe farther, dis- embarrassing myself of the contemplation of such high and stately as- semblies as the British Parliament, and the Congress of the United States, that the experience of every one will bear me out in the assertion, that no debating club, or ward meeting was ever put in possession of such a question, but by its own constituted officer. The proceedings then of the New-school party were at least novel, and most strange, if amid all ,the scenes of contention and violence, which marked the earlier stages of the British Parliament, and the whole progress of the French Revo- lution, so revolutionary a measure is not to be found. It is not for me to insist upon the dangerous consequences of such a disorder, in a large and tumultuous assembly, amid the storm, the lempest excited by the conflict of parties, each conspiring to take advantage of the other. How great would be the confusion, in even a small body, if it were divided by half- a-dozen parties, of different feelings and sentiments, forming half-a-dozen cliques, and each proclaiming itself the constitutional majority! How monstrous might be the issue of an attempt in a Jarger assembly, thus to supersede the regular organization. For every body like the General Assembly has always a certain degree of organization: officers as the foundation of its structure, with rules and orders of binding authority. There must be always both a government, and those governed. Where all are equal, a house cannot be organized so as to be capable of business, and the acts of each member can be binding only on himself It would be monstrous, even if there were no express parliamentary rule to govern in the case, for an unauthorized person, ex mej^n mohi, to seize the reins, and attempt to direct the proceedings of a deliberative assembly, according to his ovvn wishes. If such an act be a revolution, and not a rebellion, it can be so only by virtue of success. And a revolution in the very na- ture of things resolves the body revolutionized into its original elements, and involves usurpation of authority. Although it may be righteous, and the actors in it virtuous men, still it is a usurpation, and is not to be tried by rules of court — is not to be decided on by you gentlemen, or by his Honour on this bench. It is a great mistake, and indicates a very narrow view of the subject, if any one for a single moment supposes, that the mere suggestion of a question is putting the house in possession of it. Any person might arise in the midst of an assembly, and propose a question to the whole of the promiscuous crowd which not unfrequently is collected in legislative halls; but would a vote upon it bind any one, or conclude his rights? Suppose all were called upon to answer, but many, regarding the act as disorderly and riotous, should, from a sense of decorum, remain silent; would they be considered as acquiescing in the vote? Or would the in- dividual putting the question be justified to go abroad and proclaim that the majority of the whole house had assented to his proposition? If I should quit addressing you under his Honour's direction, and should say, " Gentlemen of the jury, I suppose your verdict is with me. Are not your minds made up upon this question? Remember that silence gives consent" — could your silence be taken as consent? Suppose you were silent, and I should go forth, and announce that we had gained the great I 286 PRESBYTERIAN CHURCH CASE. Presbyterian cause, but, a day or two after, you should give a different verdict, would not my position be exceedingly awkward? But why? Why are you not called upon to answer when I address such a question to you? Because, although I am an officer of the court, I am not author- ized to demand or receive your verdict. But if his Honour asks you, "Gentlemen, have you agreed upon your verdict?" you are bound to an- swer him, because he is exercising a proper authority. What is putting a house in possession of a question? Is the mere un- authorized act of an individual sufficient? When a member has made any proposition, saying, " I move you. Sir, so 'and so," is the proposition then in the possession of the body? Unquestionably not. Other powers and rights intervene: there must be an intermediation between himself and the other members. Upon this point there is an express rule. It is found in 2 HatselPs Parliamentary Precedents, 105. I venture to quote from this book, may it please your Honour, as the highest authority on the subject. The author has written with the pre- cision of a lawyer, and as a man of long experience. Though the princi- ples which he lays down are not in the form of rules, they are so wise, that all succeeding books of order have referred to this book of John Hatsell's. He says: " 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 universal 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 from Hatsell his own words, but they are followed by Jefferson in his Manual. The member who makes a motion must rise, and address the presiding officer, and that officer being thus in possession of the question, puts it in the possession of the house. Well, gentlemen, I trust that you perceive, by this time, that rules of order are of essential import. The counsel have been pleased to treat them lightly, because they were contained in little books: I hope, that at last, I have found one big enough for them. (Mr. Preston held up to view, 2 Hatsell, a volume in quarto.) I beg that you will attend to the import of these rules, as illustrated by the present case. Every regularly organized Assembly must have an organ through whom questions may be presented to the body, that every member may understand them dis- tinctly, hearing them propounded by a responsible person. Hence it is, that the presiding officer of every body, has a conspicuous place assigned him, from which he can see and hear whatever is said or done in the house, and where he may be heard and seen by all the members. Thus his Honour, while presiding in this court, does not take a promiscuous stand among the spectators, where he cannot be seen or heard; nor is it merely a matter of form, but of substance, that he is seated upon that bench, from which he can superintend and direct the proceedings. The convenient administration of justice requires, that he should occupy such a position. Otherwise, there would be interminable confusion; none would know who was acting or what was done: there would be a per- petual riot and tumult, almost equal to that which took place in the church MR. PRESTON'S ARGUMENT. 287 in Ranstead Place. It is not, however, from Hatsell, or from Jefferson, alone, that I derive this rule of order. I can appeal to a more direct au- thority, which cleaves down at a single blow, the cause of our opponents. If they themselves are out of order, when they seek to bind us by a rule of order, they are not capable of so binding us. I call your attention to the proceedings of the General Assembly itself, in regard to this matter. That body has established rules of order for its own government; and that these rules are obligatory, our opponents themselves, do of necessity assume. What form does the Assembly require to be observed, in order "to put the house in possession of a question? That very Assembly of 1S3S, established this rule. Append, to Const. R. 11. " A motion made must be seconded, and afterwards repeated by the Moderator, or read aloud, before it is debated; and every motion shall be reduced to writing, if the Moderator or any member require it." The obligatory nature of this regulation, as I have said, our opponents acknowledge. You have heard the learned counsel ask each of the wit- nesses, "Was the question seconded?" Why was this? They found it necessary to admit the obligation of that part of the rule, which, however, is separated from the remaining provisions by a mere comma. I put it to you then, gentlemen, was the General Assembly of 1838 put in possession of Mr. Cleaveland's motion, according to the rules of order which I have just read ? Was the motion " seconded, and afterwards re- peated by the Moderator or read aloud ?" If not, what obligation was there upon the gentlemen sitting in that house to give it their attention? When were they bound to vote ? When, by intendment of law, must they have been considered to have acquiesced ? When a motion had been made, seconded, and repeated by the Moderator. Then, and not till then. He who usurps the right of proposing a question to the house, tramples upon the constituted authority of the Moderator. He is disorderly and rebellious, and deserves chastisement. In attempting then to put the question on a mere motion of his own, and by virtue of his rights as a private member of the Assembly, Mr. Cleaveland trampled on every rule of order, and put himself without the pale of law. Whatever he, or those who acted with him, did, was not obligatory upon the other members, and they were not called to give it their attention. Let not the learned counsel answer, that this was an extraordinary case, a case unprovided for; that there was an extreme necessity that the question should be put, and that the Moderator would not have put it. Even if it had been such a case, no member had a right to rise and assume the reins, though they had been tossed down by him who held them — to make himself the presiding officer of the house. If this may be done in one instance, it may be done in any other. If Mr. Cleaveland was authorised to usurp the office of the Moderator in a case of necessity, judged of by himself alone, what power is not constantly liable to usurpation? Where will you put a stop to the thing? Necessity has always been the tyrant's plea, to justify the greatest enormities. When you have usurped the power of the Moderator, you have nine- tenths of the whole power that regulates the Assembly in your hands. And what is to prevent a similar usurpation of the power of the clerks? If they refuse to do what in your estimation is their duty, why may you not, in like manner,mssume their functions? Mr. Cleaveland, it is said, 288 PRESBYTERIAN CHURCH CASE. took upon himself the office of Moderator, because Dr. Elliot had acted in derogation from his duty. Well, the clerks, as it is alleged, had been guilty of a similar offence. Why did he not take the place of the Stated and Permanent Clerks, also? The making of the roll is not more impor- tant, than the observance of the mode provided for putting the house in possession of a question. Distinguish, if you can, between such an usur- pation of the office of Moderator, and an usurpation of the clerks' place, with every other function exercised in the Assembly. To put the matter in a still more striking point of view: suppose the clerks, merely, had vio- lated their duty, but that the Moderator had been willing to put the ques- tion insisted on: why was not Mr. Cleaveland authorized to march up to the clerks' table, seize a pen, and on the tyrant's plea of necessity, himself complete the roll.'* This case is not one whit stronger than that before us. He might have proceeded in the latter way with the same propriety with which he began at the highest office — the head of the Assembly. If, however, he was entirely unauthorized to put any question, having put one, were the other commissioners bound to vote upon it, or must their silence be construed an acquiescence? We take for granted that the Assembly knew its rights. They knew full well that Mr. Cleaveland - had no right to act as Moderator; full well that they must look to another source for authority. They knew full well that if the Moderator pro- pounded a question they remained silent at their peril; but that if any body else propounded one the peril was his, and a vote was wholly void and inoperative. If Mr. Cleaveland had addressed his motion to the Moderator, and the Moderator had put it to the house, they would not have hesitated to give it all their attention, and however disorderly it might have been, if any had kept silence, after it had been thus put by the legitimate authority, by intendment of law they might have been consi- dered to have given their assent. Here is an established government, an organized series of institutions; a single individual usurps the chief exe- cutive direction of the whole, and every one who does' not utter his dis- sent is declared to have submitted to the usurpation. Nothing can be more dangerous than such a latitudinarian doctrine. All tyranny com- mences with it. Julius Cassar overturned the liberties of his country by the assent of a constructive majority. Augustus ruled under a like sanc- tion; and every tyrant has done the same. This was the very means by which Napoleon rose to sovereignty, while so many of the powers of Europe were prostrated at his feet. He ruled by constructive majorities. He put the question of his supremacy to the people in every Prefecture throughout the kingdom, and though he obtained a majority of all who voted, they were but a third or fourth part of the nation. In the first place he had not a real majority; and besides, the people were intimidated by his train-bands, who made the air resound with their huzzas, and were ready to enforce all his orders. What are Mr. Cleaveland's pleas for this most extraordinary proceed- ing? I beg, gentlemen, that you will remark his own statements — the category in which he places himself. He rises, with a paper in his hand, beginning with a formal "Whereas." He reads, comments, and recites, but offers no motion to the Moderator. Here is a question of order which is to be decided. The Moderator is not in possession of his mo- tion: he refuses to put iiim in possession of it. It is in proof that he does MR. PRESTON'S ARGUMENT. 289 not say "Mn Moderator," but turns away from Dr. Elliott. He does not say, " I move you, or I move the house" — nothing like it. Without a pretence of having any personal grievance of which to complain, and without any reference to the decision that the former motion was out of order, merely on the ground that the Moderator has acted tyrannically, he assumes the right to interfere in the organization of the Assembly, and to make a motion which does not purport to be made to the Moderator. If he had been refused his seat, as had Mr. Squier, he might have had some pretext for such a proceeding, but as there had been no such refusal, •his language was, " I choose to appoint m.yself Moderator pro hac vice'' Besides, he did not try whether Dr. Elliott would put the question on his motion, and he is not entitled to presume that he would not have done it. I believe he would, if the motion had been properly presented. Mr. Cleaveland, then, had suffered nothing of which he could com- plain; he had given the Moderator no chance to violate any of his rights; not a hair of his head had been touched. But voluntarily, ex mero motu, he clothes himself with the power of the highest office in the Assembly, and claims to exercise it in the face of Dr. Elliott, the regularly consti- tuted officer, and of half-a-dozen other persons on the floor, who were better entitled to the place than himself I beg that you will remark who was next entitled to it, according to the rules of the Assembly; for you will find that every step of Mr. Cleaveland's proceeding, was disorderly. Besides Dr. Elliott, there were half-a-dozen persons present, who had pre- viously been Moderators, and their rights, as well as his, were trampled on. Mr. Cleaveland should have moved that the Moderator next prece- ding Dr. Elliott, the Moderator of 1836, should take the chair. That was the only orderly motion that could be made. If the next preceding Moderator was present, he was the only person that could lawfully pre- side, or that was capable of putting a question; and if he was absent, the Moderator next preceding him, should have been called upon, and so on ad infinitum, all that had ever held that office being entitled to precede Mr. Cleaveland. Remember, I am not now speaking of Dr. Beman: I shall come to him by and by. Mr. Cleaveland rose, and in effect, said, " Gentlemen, Dr. Elliott is no longer fit to be Moderator: I am fit, and therefore shall assume that office, put questions to the house, and proceed to organize the Assembly." He did proceed to organize an Assembly, and upon this organization our opponents rest their claim. You may now, I think, venture to decide this point — whether any indi- vidual can, of his own mere volition, create himself a presiding officer, beyond the power of control, and exercise all the duties of the chair. This whole case rests upon the question whether Mr. Cleaveland was author- ized to constitute himself Moderator. It might perhaps have been awk- ward for Dr. Elliott, to propound a motion for his own removal, but the duty was therefore the more obligatory. If he was not fit to put the question, who was? By what rule is the speaker of a body disqualified to put such a question? But suppose he had abdicated the chair, was functus officio, \N^s self-annihilated: whose duty would it then have been to propose questions to the house ? The English parliamentary law on this point is quite clear; it has been well settled for the last two hundred years. If the speaker does not take the chair, or refuses to put a question, it becomes the duty oRhe clerk to put it. So necessary has it been found 37 290 PRESBYTERIAN CHURCH CASE. to have an official organ, by whom questions may be propounded, that, although some may think there is little reason for the rule, yet the expe- rience of ages has decided that the duty, in such cases, devolves upon the clerk. This rule is to be found in 2 Hatsell, 15S, where all the prece- dents are collated; in 6 Grey, 406, 408; and in Sutherland's Ma- nual, 104. "When but one person is proposed, (for the office of speaker,) and no objection made, it has not been usual in parliament to put any question to the house; but without a question, the members proposing him conduct him to the chair. But if there be objection, or another proposed, a ques- tion is put by the clerk. As are also questions of adjournment."* This rule was established in the British Parliament more than two hundred years ago, and we, before we acted for ourselves, received it from England. In accordance with the English practice, and ex necessitate rei, all of our parliamentary bodies have uniformly adopted it. In every State Legislature, and in both Houses of Congress, the clerk puts the question whenever the speaker is not present. My friend, Mr. Lowrie, who was examined here, and who told you that he had been for a number of years clerk of the United States Senate, has often put questions to that body to be decided upon. This is also the practice in your own State. But what right, say our opponents — what right has an inferior offiper of the Assembly, the mere hand — the writing hand — the pen of the body, to exercise the high functions which not even a member can be allowed to exercise ? And why may he not have the right ? Is it that the clerk's office is not of sufficient dignity ? Is it that a duty which may be per- formed by any body else is too important for the clerk ? Here my learned friend's argument fails entirely. I have already shown that long esta- blished precedents are against it; but I have something more than prece- dent to oppose. The clerk's office not high enough for him to be allowed to put a question, when it is expressly provided by the laws of the Church, that he shall, in a certain emergency, supply the place of the Moderator! In the Form of Government, under the head of the Presbytery you will find the highest power of the Moderator — the power of calling together the Presbytery in special meeting, conferred in some cases upon the Stated Clerk. Experience has shown that when the Moderator is out of the way, the clerk is the most proper person to perform his duties; and so this in- ferior officer, the mere hand, finger, or pen of the judicatory may exercise the high prerogative of calling together the members of the body, as if he, were the Moderator, The rule is as follows: — Form of Government, Chap. X. Sec. 8. "The Presbytery shall meet on its own adjournment; and when any emergency shall require a meeting sooner than the time to which it stands adjourned, the Moderator, or in case of his absence, death, or in- ability to act, the Stated Clerk shall, with the concurrence or at the re- quest of two ministers and two elders, the elders being of different con- gregations, call a special meeting. For this purpose he shall send a cir- cular letter, &c," Now mark, the words, " with the concurrence or at the request of two ministers and two elders," do not apply to the clerk alone, but also to "The rule as here given, is quoted from Sutherland. MR. PRESTON'S ARGUMENT. 291 the Moderator: both in this case, are to consult with the same privy council. The clerk is to stand exactly in the shoes of the Moderator. If a presiding officer refuse to put a question, by general parliamentary law, the clerk is the person to take his place; and here by the rules govern- ing one of the judicatories of this very Church, the power and dignity of the Moderator are given to the clerk, in a case of far greater importance. The learned gentleman has chosen to denounce the authority of the clerk, yet by the General Assembly itself, in the year 1S35, where the delicacy of the Moderator prevented his putting a question, it was decided, as long before it had been in the British Parliament, that the clerk should put it, although the Moderator was present and presiding at the time. From all quarters then we have brought the most satisfactory proof, that in every parliamentary assembly, strong analogy being confirmed by direct rule and precedent in the case of our highest Church judicatory, when the Moderator refuses to put a question, or is absent, or labours under any disability, the question shall be propounded by the clerk. I have not even yet completed the enumeration of the disorders into which Mr. Cleaveland fell, in this single transaction. In our view, every thing that he did was disorderly. He had placed himself in a most un- fortunate predicament. Immediately, upon his rising, points of order strike him, like the man in the picture of the signs in the almanac, in all his vitals. The question that he put was disorderly, and this of itself would be enough for our purpose. He rose and moved that Dr. Beman should take the chair, or be Moderator — the witnesses are not agreed upon the precise words of the motion, and non niihi tantas componere lites. Several of the friends of the other party who have been examined, have sworn that he was called to the chair, and with this testimony the rest of the res gestae certainly concur. Mr. Cleaveland said that it was necessary to organize the Assembly — of course to re-organize it, as it had already been partially organized — he moved that Dr. Beman should take the chair, until a new Moderator should be elected, and immediately pro- ceeded to the election of this new Moderator. Dr. Beman was, then, a mere locum tenens. He was but chairman of the preparatory meeting, or else you have three different Moderators of the Assembly, all in about the space of six or seven minutes. Dr. Beman evidently was not a Mode- rator or Speaker: he sat merely during an interregnum. He was but a chairman — a sort of intermediation. If, then, the proposition was that he should take the chair, it was in itself, a disorderly proposition, one un- der any circumstances disorderly, because entirely unknown to the house. Such an ofiicer, as a chairman, I say, is unknown to the General Assembly. The question put by Dr. Beman was, shall Dr. Fisher be Moderator. Now it is perfectly immaterial whether he or Mr. Cleaveland first made a motion for the appointment of a Moderator. One of them must bear the saddle, and one or other of them, if not both, I shall show to have been out of order in this particular. It is necessary that you should pay careful attention for a little while to this point. What question would have been in order? The only orderly one that could be proposed was, '' Shall the Assembly now proceed to the election of a Moderator.''" This was never put: the house never had a chance to vote upon it, and of course there could be jjo tremendous majority in favour of the measure. 292 PRESBYTERIAN CHURCH CASE. Our opponents shrunk from such a motion. If it had been put, we would have voted. When they came to seize our inheritance by an in- tendment of law, we should have voted them down. But the proposition made by Mr. Cleaveland was that Dr. Beman should be Moderator, or if, as we contend, he called him merely to the chair, at least the motion put by Dr. Beman was, that Dr. Fisher should be Moderator. They dispense with the orderly question, and get rid of the old presiding officer, in a way that relieves all the awkardness of the regular proceed- ing. This is an important point, that they go immediately, without any preliminary step, into the election of a new Moderator. It has never be- fore been known, in the history of this body, that a Moderator should be passed upon as a motion simply by yeas and nays. He is appointed, not on a mere resolution, but on a nomination. Now we show that there were two persons in nomination, and that no question at all was put on one of them. A presiding officer had been nominated before, and it was not a question of courtesy, but a conflict between these two men for the chair. Our opponents now state, that on every other motion the vote was unanimous, but that on this there were some nays, feeling that it was not proper that the question should have been taken without reversal. And yet the learned counsel has himself told you, that if thefe is but one nomination, no vote at all is necessary, that all are to be considered as acquiescing; but that if there are two nominations, the yeas and nays must be called, the question being put on both. Here were Dr. Elliott, and Dr. Beman or Dr. Fisher, both to be voted upon. If there had been but one it is granted, that he might have been chosen without calling the yeas and nays; but where there are two, they must be called for both A and B. But does the record say that the questions were put by calling the yeas and nays: does it declare that the question was put at all in regard to Dr. Elliott? If Dr. Beman or Dr. Fisher was elected by a simple re- solution, such a thing was never before heard of in the Assembly. The motion was out of order: it was a motion entirely unknown in Presbyte- rial proceedings. Another rule of order to be taken into consideration here is, that a per- son rising to make a motion must address the Moderator — must submit his motion to the Assembly through the established organ. The presiding officer of a body is the conduit pipe, through which every communication between an individual member and the body must pass. But Mr. Cleave- land did not address the Moderator; indeed when he made his motion his face was turned away from the chair, towards the gentlemen who were near him, and to them he put the question. He not only did not put it through the presiding officer, but he put it standing in the rear of the As- sembly. He voluntarily got behind the whole body, and while in this position, constituting himself the Moderator, propounded his resolution. And how was it with the succeeding motions ? Did Dr. Beman address the Moderator? He too did not address even the members, for he stood in their rear. The locality of the proceedings is a matter of some conse- quence. Suppose these disorderly speakers had put the questions which they proposed in some corner of the house, or in the lobby, would that have been in order ? 1 remember to have heard of a bragging fellow, who, having been called to order by the court, boasted that he had shaken his fist at the judge, and called him a tyrant. But, inquired somebody. MR. PRESTON'S ARGUMENT. 293 " How did he take it ?" " Oh, he said nothing," was the reply. But being forced to explain, he acknowledged that he had shaken his fist under his cloak, and called the judge a tyrant below his breath. All the pro- ceedings of these men were conducted in the rear of the Assembly, be- hind the great body of the members; and they all turned away from the Moderator to address themselves to the New-school party. A rare spec- tacle indeed! I proceed to make still another point of order, and a point of paramount importance. The accumulation of these points shows clearly, that when- ever persons attempt to do a violent act, and press on with haste and tu- mult to its consummation, they necessarily fall into gross irregularity. Now, our opponents cannot pretend to stand under the rule which I am about to mention. If this point of order be made in any Assembly, it prevails and rides over every thing else, and at once resolves the house into a committee of the whole, to determine it. Even in the torrent and tempest of party conflict, though a speaker be upon the floor, the single word " Order!" from the presiding officer, or any member, at once arrests the proceedings. The speech is interrupted, until the question of order has been decided upon. When Mr. Cleaveland rose, with all that gala- matias of a " whereas," and so on, cries of order instantly burst forth from the very point from which they might have been expected, and were fre- quently reiterated. But in spite of this point of order, he proceeded. What was, in this case, the duty of those, who claim what they are con- tending for, under a rule of order ? On the first echo of that all control- ling, that emphatic word, they should have stopped, and awaited in silence the decision of the matter, or taken their seats. It was not necessary to thisj that the Moderator should cry order: the cry was equally efficacious from whatever quarter it proceeded. It instantly became the express and solemn duty of the presiding officer, to insist on the point of order thus raised. It was his duty to stay the proceedings at all hazards, and to in- voke the aid of every member present. Whatever business was before the house was instantly superseded, and there should have been a solemn pause to try the question of order. Now, in the teeth of the authority of the Moderator, in open violation of the rights of every member of the Assembly, and trampling under foot this most essential rule, Mr. Cleave- land prosecuted his disorderly proceeding. For all the purposes of this argument, it is no matter whether he was really in order, or not. From the instant the Moderator called "Order!" though perhaps he may have been wrong, until the question was finally decided, Mr. Cleaveland was out of order. What? Are we told that we could not in any way pro- tect ourselves; that we were utterly powerless; that when we were crying "Order!" and the Moderator shocked and agitated as he was, was also calling " Order!" and vainly endeavouring to stay the torrent, the pro- ceeding being pushed forward in spite of all our efforts, we are now, by intendment of law, bound by it, considered to have yielded our acqui- escence ? Why, by the mere cry of " Order!" Mr. Cleaveland was put out of order, and no member of the Assembly, who had the least regard for the rights of the Assembly, could have ventured to vote upon the reso- lution. Had he done so, he would have been partaking in a riot. There were cries of order from every side, and yet, by intendment of law, tlie question is to be considered as legally put! I read a provision on this 294 PRESBYTERIAN CHURCH CASE. subject, from the General Rules for Judicatories. — Append, to Const. R. 28. " If any member act in any respect, in a disorderly manner, it shall be the privilege of any member, and the duty of the Moderator, to call him to order." Now, the privilege of the member, and the duty of the Moderator, do not depend upon the question, whether the person called to order is really in order or not. The propriety of the call does not rest on the fact of his being out of order, but upon the Moderator or member's considering him so. Whoever thinks another out of order, has a right to call him to order, and to have the point immediately decided. Now, when Mr. Cleaveland rose, he was thus called to order. The Moderator called him to order, and with his hammer, as one of the insignia of his otiice, rapped upon the desk before him. The members, on all sides, in the exercise of their privilege and duty, cried "Order!" In the midst of these repeated calls, in derogation of the authority of the Moderator, in violation of the rights of the individual members, in contempt of all decency, Mr. Cleave- land proceeded to put the question, on his own responsibility. And was the resolution still carried by intendment of law? Did we yield our consent? There was another point of order made necessary by the general call to order. It is in evidence, gentlemen, that Dr. Beman, Dr. Fisher, Dr. Mason, and Mr. Gilbert, with many others of the New-school part)'-, were standing. Even the new Moderator, although he is said to have been unquestionably in the chair, was standing up in the aisle, at least forty feet from any chair. From every quarter, persons rushed forward to- wards the scene of this most quiet, and Christian-like organization. They burst from the pews, crowded over the tops of the pews, and all stood in the midst of the house. Now, there is a rule, that whenever more than three members are standing, they are ipso facto out of order. The Old- school party might, therefore, have sent forth a universal cry of "Order!" and those who stood to the end, notwithstanding these cries, were perpe- trating a gross disorder. I will read the rule to which I have referred. Append, to Const. R. 27. "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 law of the Assembly, every member has a right to call for its enforcement; and whenever, in any body, there is a cry of " Or- der!" the proper question is, " Who is out of order?" Then it might be answered that more than three members are standing, as in this case, where not only more than three, but the whole association of the New- school, or, at least, a majority of them, were standing, and rushing to- gether; and the Moderator would be bound to restore order, before any other business was attended to. But there is a graver, a more deeply important consideration which this case involves. Heretofore my remarks have applied equally to all as- semblies of gentlemen, of whatever profession the}^ may be. In a mere civil assembly, composed of politicians and men of the world, there are no special obligations resting on the members, but those arising from the rules of politeness, and from the regulations necessary for the transaction MR. PRESTON'S ARGUMENT. 295 of business. But the clergy are, by their ordination, set apart from the world, and are bound, above all others, to regard the holy doctrines of peace and order. The business of their lives, and the habit of their minds lead them to examine carefully into the rules of propriety, to cultivate a spirit of deference to authority, and of meek forbearance. The institu- tions of the Church would be incomplete, if her ministers were distin- guished from others only by the outward forms of these institutions. But more has been exacted from the ministers of religion, than from the mere children of the world. There is a standing rule of order for the regula- tion of all the judicatories of the Church, which is in these solemn and hortatory words: — Append, to Const. R. 24. " It is indispensable, that members of ecclesiastical judicatories main- tain grieat gravity and dignity while judicially convened; that they attend closely in their speeches, to the subject under consideration, 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." In addition to every thing exacted from the members of mere temporal assemblies, great gravity and dignity of behaviour are here enjoined. Have they conformed in the present case to this crowning exhortation? Were these proceedings characterized by the gravity, the dignity, the Christian forbearance, becoming ministers of God ? Did they quietly keep their seats, and obey the orders of the constituted authorities ? This would have been expected from even an assembly of politicians. Yet on them would have rested only the high obligations of gentlemanly charac- ter: the rules of Christian conduct are of a still higher import. A gen- tleman rises and declares that a certain proceeding must be had in that place; that a re-organization is necessary. In a hurried and broken voice, he partly reads and partly recites, interlarding both the reading and reci- tation with extemporaneous remarks; and then, his hand trembling, and in an agitated tone, " in the shortest space of time, and the fewest words possible," even of these few words but one here and there being caught by most of the auditors, he moves that Dr. Beman take the chair. How is this proposition received by that grave and respectable assembly of men, bowed down under a sense of their solemn responsibility, and sacred functions? It is answered by a shriek, a yell of "Aye!" which drowns every call to order, and stuns the ear. Does Dr. Beman then proceed gravely to take the chair ? He rushes from the pew into the aisle, re- treats down the aisle, takes his stand in the midst of his party, and a chairman without a chair, a Moderator with no insignia of office, he pro- ceeds to business, without even a single call to order. The Assembly thus organized is not constituted by prayer. Who indeed was there among them all, hardy enough to address the God of peace, and ask his blessing on that hurried and boisterous proceeding ? No, by these grave and orderly gentlemen, question upon question is put and seconded, being succeeded by volley after volley of "Aye!" "Aye!" "Aye!" shouted forth by men rushing from every part of the house, huddling together in confusion, and hurrying onward to their strange destiny. See them dashing and foaming through the open portals, and when they have passed by, fearing least those who remain behind in mute astonishment, do not 296 PRESBYTERIAN CHURCH CASE. know that they have gone, sendhig back a vociferous messenger to an- nounce their departure. And did these gentlemen "maintain great gravity and dignity while judicially convened ?" The space of time which these proceedings occupied is a matter of curious inquiry, and the consideration of it may assist us to determine, whether, supposing the questions orderly in themselves, we had an op- portunity to vote, or could be bound by intendment of law. Order, in parliamentary language, is regular succession in business, and nothing else. To decide, then, whether certain proceedings were in order, it is necessary to inquire, whether the time which they occupied was sufficient for them to be perfected. Now what was the space of time which elapsed between Mr. Cleaveland's rising, and the departure of the New-school body from the church in Ranstead Court? First fix this in your minds, from your recollection of the evidence, remembering that it was intended, that all should be done in the shortest time possible'; and then you will inquire whether the time so fixed was long enough for every thing said to have been done, to be done decently, and in order. I think the time was from four to seven minutes. Mi\ Meredith. The only Episcopalian examined, said twenty mi- nutes. Mr. Preston. His testimony is very doubtful; but, gentlemen, you must make your own conclusion in regard to the matter, and then, having ascertained the time, see what was done. In the first place, Mr. Cleave- land made a sort of speech, or recitation: you have here ten or fifteen lines of confused remarks. Then he made the motion that Dr. Beman should take the chair, put the question upon it audibly and distinctly — some, I believe, say with deliberation — first in the affirmative, and then in the negative. Then a motion was made, for the appointment of tempo- rary clerks, on which also the question was put and reversed. Then a nomination for Moderator, with the question on Dr. Fisher put and re- versed; and the same in the choice of clerks. Last of all came the mo- tion for adjournment, the question on which was also put and reversed. In all then, from fifteen to twenty different propositions were put to the Assembly, were put audibly and distinctly, as is alleged, in the time limited, whatever that may be. Now, I venture to say, that if so many propositions were put in any time suggested by any one of the witnesses, no parliamentary body has ever before proceeded with such extraordinary despatch. What the New-school party did, if we are to credit their as- sertions, was this: They dissolved one body, and completely organized another, all in due form; and translated every vestige of power from one to the other — the whole in from four to seven minutes. It was the crea- tion of a world as regards the Presbyterian Church. The creation of our world was with Omnipotence a work of six days; but here a world was annihilated, as well as a world created; and both the creation and annihi- lation occupied but from four to seven minutes! I know, may it please your Honour, how wearisome are these minute investigations. Nothing but the exactions of duty would compel me thus to exhaust your time, and as I fear I may be doing, your patience, by such inquiries. But I see where the case presses upon our opponents, MR. PRESTON'S ARGUMENT. 297 and must therefore endeavour still farther to strengthen the position, that their proceedings were out of order. I think that I am not going be- yond the exigency of the cause. I have proved thern out of order by a mass of collateral evidence, but shall now endeavour to demonstrate, that they could not have been otherwise than out of order; that they them- selves did not otherwise intend; that they were acting apart from us, as a separate body, and it cannot now avail them any thing to assert the con- trary. I will show that in truth, these gentlemen never, either then or since, considered themselves as acting in conjunction with us. I will show, and defy them to contradict the proof, that they were entirely segregated from us. After this investigation, it will be impossible for them, I think, to pretend to be the inheritors of the property and name of the Presbyterian Church. I know that this will strike some of you, gentlemen, as very bold language, but you will find that the point will go through and through their case. I propose to give it a blow upon the head, and expect to see it tremble throughout the whole nervous system. I say that the New-school party did not consider themselves as part and parcel of the same body with us. The first witness which I shall examine on this subject is Mr. Cleave- land. What says he? The paper which is found on the New-school Minutes is not the same that he read, wliich it is very desirable should be given to the public eye; but it has been expressly adopted by the New- sehool party, as containing the substance of the original. This is its lan- guage: "That as the Commissioners to the General Assembly for 1S3S, 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 constitutional or- ganization 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 as a matter of necessity, if we now proceed to organize the General As- sembly for 1838, in the fewest words, the shortest time, and with the least interruption practicable. He therefore moved, &c." They have thought proper to give us the substance only of this re- markable paper: we have in vain made efforts to get at the original, or an exact copy. " As we had been advised by counsel," says Mr. Cleaveland. Who had been advised ? The General Assembly of which by intend- ment of law we formed a part ? Had ive the Old-school been advised ? Did ive institute the proceedings ? Did Mr. Cleaveland mean that we had been advised ? It is evident that this was not his meaning; that he did not consider us a part of those whom he addressed. But let us look at the remaining portion of the paper. " He trusted it would not be con- sidered as an act of discourtesy." Discourtesy ? To wiiom ? Surely not to his own party — those who had advised and prompted the measure; but to us, the members of the Old-school. His language was, " I hope that you, gentlemen of the Old-school party, will not consider us discour- teous to you, if we now proceed to organize the General Assembly of 1838." Can any thing be more clear than that they intended a select or- ganization of a set of men to whom we did not belong ? Was there not in these words a plain declaration, that they were about to form a separate organization; and an appeal to our courtesy, that we would not interrupt 38 298 PRESBYTERIAN CHURCH CASE. them ? Let us suppose, that without informing the Old-school of their real design, they had requested permission to use the house for the pur- pose of organizing themselves, and permission having been accorded, had taken advantage of this courtesy, to deprive us of our rights by a legal intendment: of what gross fraud would they have been guilty! No, this had not at that time entered their heads: they did not deliberately set a trap, a pit-fall, in which their brethren were to be caught by legal intend- ment. Suppose that we had acquiesced, being requested to stand silent, while they performed a certain act; and that they now came into court, and said " Gentlemen we deluded you. You- agreed to remain silent, and this can be construed into an acquiescence. We can make it appear that, by intendment of law, the vote was put to you, and you assented to our act.^' Would you give them your verdict ? Why, if we had voted upon their resolutions, after permission had been asked and given, for them to . have the use of the house, they would have complained of us as disorderly and riotous: they would have said, that, after promising not to interrupt their proceedings, we had assailed them and voted them down; that we would not allow them to take advantage of the only chance that they had of engrafting themselves on the Assembly of 1837, as they had been ad- vised to do by counsel learned in the law. The preceding motions were proposed to us through our Moderator, but Mr. Cleaveland's was never proposed to us in any manner. Let me suppose still another case: — Suppose that his paper had not on its face exhibited his intention; and that in order to entrap us, the other party had sent a messenger, who had informed us that they intended to make a separate organization, and begged that we would remain silent; that, on this understanding, we had complied with the request. And suppose they should now say, "We have deluded you: you rested on a false security." Why, gentlemen, this would have been setting a legal steel-trap. Such is not the conduct of honest, honourable, Christian gentlemen. No court would sustain so monstrous a fraud. Yet I cannot see that that case is stronger than the one before us, if our opponents really did what they now pretend. Mr. Cleaveland gets up in the rear of the Old-school party, and says that this time and place are of very great importance to him and his friends; that he hopes we will not con- sider it discourteous, if he should proceed with a small matter of business; he trusts we will not interrupt him. He thought it necessary to make a formal apology to us; and his words certainly implied the asking of per- mission to do what he contemplated: it was a matter of necessity, and he begged that it might not be considered discourteous. This word, " we" clinches upon our opponents the conclusion that they intended a separate organization. I will leave no dispute respecting the manner in which they considered themselves as acting. Out of their own mouths shall you convict them. Here is a Pastoral Letter, in which tlie Assembly of the New-school addressed all the Presbyterian Churches of Christendom, with a solemn exposition of what they had done. I venture to say, be- fore I commence reading it, that if you find them really to have done what they here say they have, it is utterly impossible that you should give them a verdict. In this Pastoral Letter, they first advert to the diffi- culties that had sprung up in the Church, and lament over them. They MR. PRESTON'S ARGUMENT. 399 recognise the existence of two distinct parties, and the differences that had arisen betwen them. They then state the efforts that they had made to restore harmony, union, and peace, to these two divisions of the Church. " As the result of these efforts," say they, " to change the terms of sub- scription and union, the General Assembly of 1837, " convinced that the separation of the parties was the only cure," and " that a separation by personal process was impossible, or, if possible, tedious, agitating, and troublesome in the highest degree," proceeded without charges, citation, witnesses, or a judicial trial, to separate four Synods and one Presbytery from the Presbyterian Church. In these circumstances, apprised by counsel of the unconstitutionality of the disfranchising act, and advised of a constitutional mode of organization, we did — " " fVe did?" Who are •' we?" Who had been " apprised by counsel?" We, the Old-school? Had we, by intendment of law, taken advice of counsel? It was the New-school that had been so advised. " We," certainly cannot mean the whole General Assembly, for at the time here spoken of, the body was not in existence. " We did, in a meeting for consultation and prayer, oa ■the 15th day of May, 1S3S, send the following proposal to a large num- ber of commissioners to the Assembly, met in another place " Were they acting as the Assembly, before the Assembly met in Ranstead Court? This meeting for consultation was not identical with the Assem- bly. We cannot by any trick be made a part of it. " We," the whole body of the commissioners, could not have sent a " proposal to a large number of commissioners to the Assembly met in another place." Well, " we did" this, and then, " it was resolved by the meeting," that is, " we" resolved, " That should a portion of the commissioners to the next Gene- ral Assembly attempt to organize the Assembly, without admitting to their seats commissioners from all the Presbyteries recognised in the or- ganization of the General Assembly of 1837, in all respects according to the constitution, &c." The commissioners present were to do this. Present where? Not in the Assembly, but in the consultative meeting. "We," who had met for prayer and consultation — "we," who had been advised by counsel — " we," the New-school, resolved, " That should a portion of the commissioners to the next General Assembly " What portion? those who were present? No, but those who were meeting, "in another place" — the Old-school — that should they attempt a certain thing, it will be our duty — " the duty of the commissioners present" — "to or- ganize the General Assembly of 1838." Such was their resolution be- fore the meeting of the Assembly, and a little farther on they say, "By this answer, all prospect of conciliation, or an amicable division being foreclosed, we" — the same " we" — " did after mature deliberation and fervent prayer, proceed, at a proper time and place, to organize, in a con- stitutional manner, the Assembly of 1838." Yet after all, ive acted with them by intendment of law; ive sent a communication to ourselves, and returned ourselves an answer; and ive proceeded to organize the Assem- bly. Have I not proved, gentlemen, that they were not part or parcel of us; that they never intended that we should act with them, or gave us a chance so to do? If their's is a perfect organization, it must be for some reason which they did not at the time contemplate. (Here the jury were allowed a recess of ten minutes.) I am aware how yev^ tedious and exhausting this inquiry is becoming, 300 PRESBYTERIAN CHURCH CASE. but I feel that I am performing a solemn duty. The case is one of very great consequence, and exacts from us a careful discharge of our obliga- tions. I must therefore endeavour to omit nothing — to clear up every thing. I stand here to defend, not merely the immediate parties to this suit, but thousands of Presbyterians scattered thickly over the whole broad territory of the United States. The prayers of a thousand pulpits bear this cause as their burden up to the throne of grace. I crave there- fore, however exhausted you may feel, your patient attention, and your indulgence. I have now nearly done with the consideration of the points of order involved in this case, and it seems to me, that I have effectually demolished the proceeding of our opponents. However, though the monster is beaten down to the ground, it will be well to give him one or two more blows. Mr. Cleaveland was out of order, from the fact, that previously to his rising, a call had been made upon the Moderator to enforce a standing rule of the Assembly, that the first business of the bod}^ should be the ap- pointment of a Committee of Elections. It appears from the, testimony, that a motion had been made for the appointment of that committee be- fore Mr. Cleaveland rose. Now if such a motion was actually pending before the body, any other question raised while it was pending, was dis- orderly, unless it had no relation to the subject matter of the former. The appointment of a Moderator is not a privileged question, nor was it at all german to the proposition which was before the house, as being an amendment, or otherwise. Besides, in all parliamentary bodies the stand- ing orders which they have established must invariably precede and over- ride every other business. And a formal vote that such an order shall be obeyed is not necessary, but the call of a single member is sufficient to compel its enforcement; and his call must of necessity prevail against any other proposition whatever. These are what are called privileged ques- tions, or subsisting orders of the house. Now the General Assembly has such a subsisting order to this effect: — Min. \S^Q,p. 40. " The first act of the Assembly, when thus ready for business" (i. e. immediately after the report of the clerks, or 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 re- port on the same as soon as practicable." This was a subsisting rule of the house, and its enforcement might be called for by any member, no matter whom; and even if no call had been made, it was the duty of the Moderator to enforce it. The execution of the rule was the first orderly act which the Assembly could perform, and was a matter of course — a privileged proceeding of fundamental impor- tance. Any other business, which might have been allowed a priority, would have been ipso facto out of order, even though the attention of the house had not been called to its subsisting rule. Any member, I have said, may make the point of order, and insist upon its being first disposed of Now, in this case, not only after the execution of the established re- gulation had been called for, did Mr. Cleaveland make a motion in de- fiance of the regulation, but after being called to order, and informed of the existence of the rule, persisted in his purpose. The Moderator, Dr. Elliott, has, on his oath, informed you that he could not enforce this standing order, because of Mr. Cleaveland's persistence. He says dis- MR. PRESTON'S ARGUMENT. 3qj tinctly, that he was called upon to enforce it, but was prevented from doing so. And further, that it was enforced, as soon as Mr. Cleaveland with his friends had retired from the house. Now, the rule in regard to stand- ing orders, which I have laid down, is, in its application, the commonest in the world. Hatsell gives it in these words: — 2 Hatsell, 11.3. " Indeed the doctrine of any one Member having a right 1o insist upon any thing appears to be absurd; for another Member may insist 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." • Then, in a note to this passage, we find the following — " The only ex- ception to this is, when a member calls for the execution of a subsisting order of the House. Here the matter having been already resolved upon, and ordered by the House, any member has a right to insist that the Speaker, or any other person, whose duty it is, shall carry that order in- to execution, and no debate or delay can be had upon it; and this fre- quently happens in the cases of admitting strangers into the gallery — the clearing the lobby 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 ex- ecution; and in this case, the member does not properly make any tuo- tion, but only takes notice that the orders of the House are disobeyed." You see then that for the enforcement of a law of the house any mem- ber may call. And how can the house get clear of the difficulty, if it does not choose to conform to such a rule? Only by repealing it, by a vote of a majority, or two thirds, according as the regulations may re- quire. So long as the rule subsists, any member may call for and compel its execution. To give a case in point: if the General Assembly, or any parliamentary body, should decide that the order of the day at twelve o'clock, should be the appointment of a Committee of Elections, the sound of the clock striking the hour of noon must arrest all business — even a member in the middle of his speech. Or, if the tongue of the inanimate instrument should fail to make him pause, he would instantly be called to order. And even if the house should prefer to listen still longer to the speech, any one member might compel all the rest to at- tend to the order of the day, unless the rule should be suspended by a solemn vote. The experience of parliamentary bodies has shown that it is better always to decide such matters beforehand, and not leave them to the caprice of the moment. Therefore the call for the execution of the standing rule of the Assembly, in regard to the appointment of a Com- mittee of Elections, was in order, and no other business could come be- fore it: it crushed every thing else, and especially the proposition of Mr. Cleaveland. While it was pending, no man, not even the Moderator himself, had a right to propose any other question. And if another had been proposed, the members would not have been obliged to give it their attention, and would not be bound by a vote upon it: they could not be in possession of one, while another was before them. You cannot take the sense of a house on more than one question at a time. Yet during the time a question oiyi Commitee of Elections was pending, Mr. Cleave- 302 PRESBYTERIAN CHURCH CASE. land and his friends proposed half-a-dozen others, and now say that they took the sense of the Assembly upon them all. Well, if the members had voted — every one of thei'n — the Moderator being opposed to the pro- ceeding, and endeavouring to enforce the subsisting rules of the house, I maintain that the decision of the Moderator would have been right, and the whole house besides in the wrong. I make this point of order, on the ground of the standing rule of the Assembly, and the authority of Hatsell. So far as Mr. Cleaveland's motion is concerned, I here dismiss the question of order. I have greatly deceived myself, if I have not demon- strated, that, in many particulars it was disorderly, and that his proceed- ing must be considered as the mere interference of an unauthorized indi- vidual. I now propose to make a point of order applicable to both Cleave- land and his colleagues. If I can establish this point the relators must be turned out of court. Mr. Cleaveland made his motion, on the ground that the constitutional officers of the Assembly 4iad refused to do their duty. Dr. Patton, Dr. Mason, and Mr. Squier, had all offered, resolutions previously to the full organization of the Assembly, and for refusing to entertain these resolutions they say the officers were removed. They proceeded to organize the Assembly, because Dr. Elliott had declared certain motions out of order, until the organization had been completed. What do you think, gentlemen, of their completing the organization of their Assembly before passing the motions? They dissolved our body, because we would not perform a certain act, which they said was essential to our existence; yet they themselves afterwards neglect its performance. After choosing Dr. Beman chairman, or temporary Moderator in the place of Dr. Elliott, they proceed to elect their officers, and to organize the body, and then adjourn. Not until after all this had been done, were Dr. Patton's resolutions introduced and passed upon. fVe cannot organize an Assembly, because we have excluded certain resolutions or certain per- sons; but they can organize themselves before admitting these same per- sons or resolutions. They declare their Assembly organized; then it is moved that they adjourn, and the motion is carried. " The Moderator then," says the New-school Minute, "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 Presbyte- rian Church." "The Assembly being again met at the lecture room of the First Pres- byterian Church, Dr. Patton again offered his preamble and resolutions, as follows, which were unanimously adopted." Remember that it was for a refusal to admit these resolutions, that our Moderator and clerks were turned out of office, and the Assembly re- organized out of its original elements. Remember too, that the delegates from the four exscinded Synods, the rejection of whom was complained of, all actually voted on the several questions put by Mr. Cleaveland, Dr. Beman, and Dr. Fisher, and that after every one of these questions had been finally determined a resolution was passed that they should be al- lowed to vote! First, our opponents affirm, that the Assembly cannot he organized until certain names are added to the roll, and on this account repudiate our organization; then they organize themselves, proceed to business, and afterwards add these names by vote. Is not this blowing MR. PRESTON'S ARGUMENT. 3Q3 hot and cold with the same breath ? Every one must start back from the monstrosity of such a proceeding. These men, after completing their or- ganization, passed upon a resolution proposing the admission of the dele- gates from the four Synods — the very thing which we ourselves, from the beginning, had proposed to do: we had never refused to do it. Yes, may it please your Honour, they censure the Moderator of our Assembly, divest him of his dignity, turn out our clerks, neck and heels, and then, by their own vote, show that the commissioners, because of whose rejection by the Moderator and clerks, they proceeded thus, were not entitled to their seats until an act of the whole Assembly had admit- ted them. By the last of Dr. Patton's resolutions, the clerks — the new clerks — are directed " to form the roll of the General Assembly of 1838, by including therein the names of all commissioners from Presbyteries belonging to the Presbyterian Church, not omitting the commissioners from the several Presbyteries within the bounds of the Synods of Utica, Geneva, Genesee, and the Western Reserve." In virtue of this act of adoption, came in these rejected members, a chance to pass such an act not having been given to us; and, wonderful anomaly! all of them voted on the question of their own admission! Such are the difficulties to which our opponents are driven. Oh ! what a tangled web we weave, When first we practice to deceive ! They have been caught in their own trap — have subverted their own principles. I leave Mr. Cleaveland to you, gentlemen of the jury. I now take up the whole of the proceedings of the organization in 1838. I have not as yet consumed so long a time as my learned friend did in his exordium; the substance of our argument, however, will proba- bly occupy as much space as the preliminaries of the other side. The first remark which I make upon the organization of the Assembly, on the 17th of May, in the church of Ranstead Court, is this: If the im- pugned proceedings of 1837 were valid, and can be vindicated, then, in any and every point of view, the Old-school organization of 1838 v/as correct and constitutional. Farther, supposing the acts of 1837 as un- constitutional as you please, still our organization in 183S, either with or without those acts, was substantially correct, and can be vindicated in a court of law. By the resolutions of the Assembly of 1837, the commis- sioners from four Synods were stricken from the roll, for want of a pro- per constituency. By a solemn act of that body, they were decided and declared to be no part or parcel of it. Here two questions arise, and let me distinguish between them. First, was the original act of exclusion invalid? Next, supposing it so, what was the duty of the Moderator and clerks, who presided over the organization of the Assembly of 1838? Both these questions I shall examine, beginning with the last. What was the duty of those elements of the Assembly of 1837, which still subsisted in 1838? What were these elements? The Moderator and clerks, who were the only surviving relics of the former body. Who is the Moderator? An executive officer of the Assembly. It is necessary that you should understand exactly the nature of his office. His duties are prescribed in the ^rm of Government, Chap. XIX. 304 PRESBYTERIAN CHURCH CASE. " 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 ma}'' 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 judicatory without leave obtained from him. He shall at a proper season, when the de- liberations are ended, put the question and call the votes. If the judica- tory 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 judi- catory 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 statement of the object of the vote; and the vote being taken, he shall de- clare how the question is decided. And he shall likewise be empowered on any extraordinary emergency, to convene the judicatory, by his cir- cular letter, before the ordinary time of meeting. " 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 Moderator of the Synod, and of the General Assembly, shall be cho- sen 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 Modera- tor be chosen." You perceive from this the general nature of the powers deposited in the hands of the Moderator. He is to execute and enforce the laws of the Assembly, and is the only channel of communication between indi- vidual members and the house. Ex officio he has neither legislative or judicial powers. He is not entitled to judge of the propriety of any thing determined upon by the Assembly, nor of its constitutionality; but must enforce whatever the house orders: as to him, any law of the body, of whatsoever character it may be, is obligatory. All executive officers are of the same nature: it is not their business to judge of the legality of measures which by a competent authority they are called upon to exe- cute. Such an officer cannot say, " I believe this law is unconstitutional, and therefore shall not carry it into effiact." — Here the officers of 1S37, in proceeding according to the requisitions of their office, to organize the Assembly of 1S3S, on looking into the minutes of the former year, find there an act of the body, an act unrepealed, commanding them to exclude certain persons from the roll. It is their business to execute this law: they must leave it to others — to the legislative or judicial power — to re- peal it, or declare it void and inoperative. For an executive officer to judge of the constitutionality of an act is a gross violation of power; it is erecting an appellate tribunal utterly unknown to the law. Admit that the act of 1837 was unjust, were the Moderator and clerks compe- tent so to pronounce it? They and it were emanations from the same source. Would they not have transcended their powers, and acted dis- MR. PRESTON'S ARGUMENT. 305 orderly, if they had said, " We will perform our duty, according to our own understanding of the law and Constitution?" I hold that they would have been bound to execute the order, though persuaded that it was unconstitutional-, and to refer all complaints to the body itself, by which alone the order could be repealed. Did they do so? They stated explicitly, that they were bound by the law so long as it remained unre- pealed, and, when urged to insert the names of the excluded commission- ers in the roll, answered, that the rights of those commissioners must be ad- judged by the General Assembly. To require them to do otherwise was to xequire them to assume the responsibility of repealing a solemn act of the Assembly. They referred the whole matter to the decision of the only competent tribunal, that which alone could, and which, if the relators are to be believed, finally did, determine the question, knowing that the clerks could not. They repealed, by a solemn and formal vote of the body, the very enactments which they say were so utterly void, that Mr. Krebs should have disregarded them. But these executive officers were officers of the new body, in virtue of the powers of the old Assembly. Their duties in the new house de- pended entirely upon what had been done in the old. The Assembly of 1837 propagated that of 1838, by providing the means of its organi- zation. Pledges, it is said, had been exacted from the clerks. Now, this is immaterial whether true or false; but it is, besides, not true. It is not so either in fact, or by legal intendment. The difficulty here is in the manner of using the English language, the words being susceptible of two meanings. Our opponent say, that pledges were exacted and given: we, that they were exacted, but refused. These officers replied, " We will give no such pledge; but we will take occasion to say v/hat we con- sider to be our duty." This was altogether a different thing from that charged by the other side. Ex mero motu they declared what they in- tended to do. The rejection therefore of the commissioners was the result, not of Mr. Swing's resolution, proposing the exaction of a pledge, but of their own conclusion that it was their duty to carry into effect the disowning acts of 1S37. They were entirely independent of the Assembly of 1837, excepting as it was an authority on which they relied. Now, gentlemen, admitting the unconstitutionality of the law, liow clear is it, that a mere executive officer, entrusted with its execution, must consider it a solemn act of a competent legislative or judicial authority? The clerks referred the question to the house for decision, and they were right in so referring it. According to the rules whicli have been read, the clerks first decide whether each commissioner is entitled to his seat, and in this case they decided that certain commissioners were not. The executive tribunal adjudges that these cannot be admitted to the roll: who then, can admit them ? The house, and the house only. At what period ? Before the organization is complete? The clerks having rejected them, it became necessary that the question should come before the Assembly, and by a standing rule of that body, the matter must be referred to a Committee of Elections, appointed by the house, that is, by those mem- bers whose seats were undisputed, who had been admitted by the clerks. The clerks having made their report, the first business in order, is the ap- pointment of this co!©mittee, to which are sent all doubtful and disputed 39 306 PRESBYTERIAN CHURCH CASE. cases. The clerks had a right to decide, when the question was within their jurisdiction; they must decide according to their own judgment, and the reasons of their decision are not open to investigation. God forbid, that this or any other civil court should entertain an appeal from an eccle- siastical body, in regard to a matter confessedly within the powers of the latter! Once establish that the clerks had the jurisdiction, and with their reasons you cannot meddle. Else you make the civil courts appelate tri- bunals from the ecclesiastical — a most anomalous result, to which none of us is prepared to submit. Whether the clerks did right or wrong, is not to be decided here. Their judgment was absolute, until the matter had been referred to the Committee of Elections, they had reported, and on such report the question had been proposed to the Assembly. Then, and not till then, could the subject come before that body. This course was open to the gentlemen on the other side; they knew that in this way they could bring the matter before the house; and if, by a solemn decision, the house had decided to abide by the acts of 1S37; if the subject had been fairly met, and the commissioners had still been excluded, theu the very question which they now desire to present, would have arisen. When might this proceeding have taken place ? Not until the roll had been completed. If the mode and manner which I have explained be conceded to us, then the question of time is immaterial. Still I put the case upon that ground also. The proper time for the Assembly to act upon the rejected commissions was after the report of the Committee of Elections: before this the organization was but inchoate. The Assembly sits during the process of its organization by the act, and under the offi- cers of the preceding Assembly. First, it is constituted with prayer, and then proceeds to the business of forming its roll. When is it prepared for all other business? The constitution of the body is a peculiar pro- cess, and not identical with its organization. The case is this: the Moderator offers a prayer, and then in the usual form declares the As- sembly constituted: afterwards he proceeds to organize the house; and until this was effected there was no house by which any name could be added to the roll. But these gentlemen did not wait for the complete or- ganization of the body. Who were the Assembly at the time of their application ? All the men, women, and children, in whose presence the constituting prayer had been offered? This is absurd. All who pre- tended to be members ? No, certainly not. Those whom the clerks had rejected in the initiatory proceeding formed no part of the body. It was composed of the members whose rights were undisputed, and all such that were present must have been admitted to their seats before the organiza- tion could be complete, or the house could perform any valid act. If but fourteen commissioners with regular commissions were present, they, ex necessitate rei, constituted the house, for all the purposes of its prelimi- nary legislative existence. They were the only persons to whom a ques- tion could be put. If then, the application of the rejected commissioners was made to all those present who claimed a right to seats, it was made to some who were not entitled to vote upon it. Such claims must be de- termined by the undisputed members. How monstrous, that on a ques- tion in regard to the validity of a commission, the commissioner himself who demands a place should give his vote! There is another fact which should here be noticed. The proceedings MR. PRESTON'S ARGUMENT. 397 of the Moderator are supposed to have vitiated the organization of 183S, to such an extent, that our opponents were entitled to do what they did. B^t the Moderator is not the house. Dr. Elliott, indeed, was but the Moderator of the Assembly of 1837, continued in office by that body to preside in the inchoate organization of 183S. The house then were not responsible for his acts, and should not have been punished for them, un- less they sustained him; and that they did has not been proved. Was any question put to the house? An appeal was taken from the decision of the Moderator, that a motion was out of order at that time, and the ap- peal was declared out of order. Now are we to take for granted that the house sustained him in his decision? The opposite party must contend that we did; or else why did they consider the organization of the As- sembly, so far as it had gone, entirely void, and proceed themselves to re-organize it from its original elements? But at the same time it is ne- cessar}^ to another part of their case, to maintain that we did not acquiesce in the Moderator's judgment. For one set of purposes they must establish one ground, and for another set, a ground entirely opposite. Both pro- positions they must demonstrate. In what endless mazes does cunning usually involve itself! Let me explain this matter more fully. They say that the Moderator acted badly, and that they turned him out of office on account of his mis- conduct. Then as they left us behind, and disregarded our partial orga- nization, they must assume that we had sustained him in wrong doing. We had no opportunity given us of acting at all in the matter. But, say the gentlemen on the other side, you acquiesced in his refusal to put the appeal. What question is before a house when an appeal is taken? The question whether the decision of the presiding officer shall be sustained. Was this proposed to the house? Did Mr. Cleaveland venture to say, "Gentlemen, the Moderator has refused to do his duty; therefore, I put it to you, will you sustain him?" In this there might have been some appearance of wild justice. But he did not put any such question, and therefore we could not have acquiesced in the Moderator's misconduct. He was, besides, not our Moderator: why should we be responsible for him? A dispute arose between him and a member, and the latter was checkmated; but how did the house, or how could it, interfere? There cannot be any acquiescence in this case by legal intendment. The ques- tion which I have mentioned was the only one that could have been put, even if, ex necessitate rei, any body else than the presiding officer could have put it. But farther, this was not a case in which a person was jus- tified to take the law into his own hands; it was not a case unprovided for by parliamentary rules. The refusal of the speaker of a parliamentary body, to put the question on an appeal, if he is wrong, is a breach of the member's privilege; and a question of privilege immediately rises and supersedes every thing else. The member may say, "I stand upon a question of privilege; I move that the speaker be impeached; that the serjeant-at-arms take him into custody, and we proceed to try him; and that the clerk be put in his place." He may be deposed first, and after- wards, if the body is authorized to inflict such penalties, may be fined and imprisoned. But when was it ever heard of, that the refusal of an execu- tive officer to perform his duties, endowed the person aggrieved with ex- ecutive powers? If a^sheriff refuse to execute the process of the court, 308 PRESBYTERIAN CHURCH CASE. are you therefore at liberty to execute it yourself ? If tlie President of the United States refuse to fulfil the requirements of his office, do you thereby become President of the United States? Or because the speaker of a house is recreant to his trust, does that endow you with the qualifica- tions of a speaker? He may be prosecuted and degraded, and then you may bring the question, which he had refused to put, before the house. This was decided two centuries ago in the British Parliament. 2 Hat- sell. 175, 6. 5 Grey, 133. Sutherland's Man. 95. Thus the law provides a remedy for the misconduct of a presiding officer, without a revolution^ without force and violence — ultima ratio regum. All the proceedings of the speaker are subject to the supervision of the house, but cannot be brought before the body, until he has first been impeached, I now propose to call your attention to the circumstances that show each part of the proceedings of the New-school party to have been out of order, and not capable of binding any body. I appeal to the testimony of their own minutes. First Dr. Patton made a motion; and you perceive, gentlemen, that all these things were done upon advisement. The drama had been written out, the various characters cast — each was in his place, and anxiously seeking a hole into which he might thrust himself. " 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 Third Presbytery of New York, then rose and aslced leave to oifer the following preamble and reso- lutions." The benediction had scarcely fallen from the lips of the Mode- rator, before the farce commenced, by Dr. Patton's presenting his pream- ble and resolutions. To whom, or to what, did he present them, and for what purpose? Certainly, at that time, before the roll had been reported by the clerks, there was no house in existence, unless it consisted of all present — the men, women, and children collected in the church. To this mixed multitude then the Rev. William Patton, D. D. addressed his preamble and resolutions. " The Moderator declared him to be out of order, and refused to allow them to be read." He said that the first bu- siness— that which superseded every thing else — was the report of the clerks; that all this rigmarole of Dr. Patton's was out of order, was pre- mature, as there was no house to put any question to. Dr. Patton appealed from the decision. 1 am inclined to think, that the refusal of the Mode- rator was unexpected, and disarranged their plan of operation. Dr. Patton and his friends knew full well that if the resolutions offered had been put, the decision would have been against them, and to meet that state of things, they had shaped their course. The Moderator declared the appeal also out of order, " and refused to put it, and directed the clerk to make his report upon the roll. Dr. Patton then declared to the Moderator, that the paper he wished read had relation to forming 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. Yet by law the clerk was the person first entitled to the floor, and the next business after his report, was the ap- pointment of a Committee of Elections. Dr. Patton was endeavouring to trample upon all law and order; to embarrass the process of organiza- tion; to force the Assembly to vote upon a disorderly resolution. He was in direct opposition to the rules, and being reminded of this, was MR. PRESTON'S ARGUMENT. 3Q9 instantly struck dumb, and took his seat; so obvious was it that the clerk's report upon the roll was absolutely necessary to the very existence of an Assembly. There was an end of Dr. Patton. Dr. Mason's part came next. " Thereupon the Rev. Erksine Mason, D. D. from the Third Presbytery of New York, rose and offered the fol- lowing; resolution: •' Resolved, That the roll be now completed by adding the names of all commissioners now present from the several Presbyteries within the bounds of the Synods of Utica, Geneva, Genesee, and the Western Re- serve." Was this a response to the previous call of the Moderator, in whatever sense you may understand that call ? If it was a call for commissions not presented, then it is clear that Dr. Mason's motion was not a response. If for commissions that had not been enrolled, still it was evident that it conteinplated cases of an entirely different kind from those embraced in that motion. The call, no matter in what words made, was clearly for commissions to be presented to the clerks, and by them, if regular, en- rolled; while Dr. Patton offered a formal resolution, that certain commis- sioners who had already been rejected by the clerks, should be added to the roll — a resolution entirely unprecedented and disorderly. The Mo- derator called for business which the executive officers were to transact: Dr. Mason's application was to the legislative power — it was no response to the call. These executive officers — the clerks — were to receive all commissions presented in obedience to it, and on presentation they were to be enrolled or rejected by them. If rejected, they were to go to the Committee of Elections. Knowing all this, Dr. Mason, nevertheless, ap- pealed directly to the house; not to that committee — not to the tribunal established by the Assembly. Superseding the Committee of Elections, he applied primarily to the house itself. He was clearly out of order. The object of the Moderator was to form the roll, in order to ascertain who were entitled to vote: the object of this proceeding to supersede the decision already given, and bestow a vote upon all who chose to claim the right of membership. It was an appeal by the rejected commissioners to themselves. Dr. Mason proposed that the gentlemen of the four Synods, should sit in judgment on their own case — should vote upon the question whether they had a right to vote. He did not move for the repeal of the standing regulation of the house, in regard to the Committee of Elections. It may be that two-thirds were necessary to carry a motion for the repeal of that regulation, while he de- sired to take away the decision on the disputed seats from the committee, by a naked vote of the Assembly. I now direct your attention to Mr. Squier, who also played a conspi- cuous part in the drama. " The Rev. Miles P. Squier, from the Presby- tery of Geneva, then rose, and addressed the chair, stating that he had a commission from the Presbytery of Geneva, &c." We can despatch him in very short order. Mr. Squier was one of the rejected commissioners, and without any pretext of membership whatever, or any prima facie claim to a seat, presumed to submit a motion to the Assembly. I might, with as much propriety, do the same in any body under heaven. The only tribunal before which his case had come, had decided that he was not entitled to a seat. »Yet he undertook to make a speech and a motion — 310 PRESBYTERIAN CHURCH CASE. a most unprecedented undertaking, for one, who, so far from being known as a member, was most notoriously not so! It bespeaks the disorderly nature of the whole proceeding. The thing was absolutely ludicrous and absurd. There was not a woman or child in the whole assemblage, that had not just as good a right to deliver a speech as had Mr. Squier. He was disposed to make a very early display of his abilities as a speaker. He was out of order by his own showing. He knew, not only that he was not a member, but that until the Committee of Elections had decided him to be such, he had no right to open his mouth. Besides, there was as yet no Assembly to whom he could put a" motion. To whom did he offer his resolution ? The roll was not yet complete. He offered it, then, to all present, himself among the rest. It was a solecism in terms, and a confusion of ideas, for him to make such a motion, not being a recog- nised member. Another matter occurs to me, in connexion with this proceeding of Mr, Squier's. He declared that his commission had been presented to the clerks, and rejected; and in the same breath showed, that a General Assembly had decided that he was not a member. In the face then of both executive and legislative decisions, he claimed to be a member, en- titled to make a motion. The Moderator said to him," We do not know you, sir." Could any reply have been more simple and appropriate? " The Assembly does not know or recognise you: you are not a member, by your own showing." No answer could have been more correct. "We do not know you," included every thing that suited the case. Yet the learned counsel has thought it his duty, on account of this simple declaration, to cast an imputation upon Dr. Elliott, which you must think strange — which you cannot but know to be inappropriate and gratuitous. He has allowed himself to accuse that reverend gentleman of pretending to hurl terrible anathemas at the head of Mr. Squier, and decide upon his eternal destiny. To assert, that his heart boiled over with malevolent passions; that he presumed to usurp the province of our last Great Judge, and in the bitter malignancy of his spirit, to send a fellow creature to eternal damnaiion. Is it not pushing the thing a little too far, to impute to him a denunciation of so awful a character? He had no such inten- tion: the imputation is groundless. He did not allude to the anathema of that awful text. The supposition that in the excitement of feeling — the boiling tempest of passion, he uttered words, intended to bear so dreadful an import, betrays the morbid imagination of our opponents. They are ready to suppose every thing diabolical in our conduct — I will not say by reflection from their own bosoms, but from the excited condi- tion of their fancies. Is it not a high proof of an excited and morbid imagination, that they can ascribe to Dr. Elliott this damnatory denunci- ation ? He repels the imputation with pious scorn and horror! But it is of a piece with other things; with the picture which they have drawn of the Old-school party, sitting in solemn conclave, tremulously expecting the approach of an adversary; with their taking advice of lawyers, and under legal direction concocting their minutes, as if fearing all sorts of strange occurrences. In the heat of their distempered minds, they see in every man a lawyer, and in every word a quirk or quibble. Intending to spread a snare themselves, they walk very cautiously, lest they should be first entrapped. Well, this feeling they have imparted to the learned MR. PRESTON'S ARGUMENT. 311 counsel, in giving him instructions: that it originated in his own mind, is not to be conceived. Dr. Mason has manifested the same wild and creative imagination. He tells us that he copied' his roll from that read by Mr. Krebs, and from the newspapers. "How did you do this? "Wh}^, Idid it." "Did you see Mr. Krebs' list?" "No." "Did you see the commissions?" " No — I will tell you how I did it. I heard Mr. Krebs read over the roll, and I wrote down some of the names." " Well, did you make out the whole of your roll from his reading?" "I only corrected it." "-Where did you get your original list?" "I got that from the news- papers, and as Mr. Krebs read, I corrected it, putting in or striking out names as was necessary." Here was a most violent effort of the imagi- nation. ' He had also a roll which Mr. Krebs had not: and this was on a separate paper. That he got from some other source; and these were the rolls which he held in his hand, when he acted as clerk, standing in the aisle, like Dr. Beman, the chairman, who stood up in his imaginary chair. "Had you any paper, pens, or ink?" "No, but for all that I was a clerk." " Well, how did you make up your roll out of the two lists ?" "Why I considered the two as one, and so considered the roll formed." The New-school roll then was formed by an act of consideration, an effort of the imagination; may it please your Honour, by an intendment of law. I don't object, however, to the gentleman's having any thing, or all things in his imagination, even as he had the pen, ink, and paper. Mr. Gilbert, too, discovers a most potent fancy. He is an ardent party man, and extremely zealous in this controversy. Well, he comes to the church in Ranstead Court, and essays to pass through the session-room. As, labouring under terrible excitement, he passes by the place where the clerks are sitting, instantly he begins to amagine that they have some mysterious purpose, are engaged in some diabolical machinations. They have pens, ink, and paper, and hold frequent consultations. " What a horrible conspiracy is here! Let me only catch a word, and I'll blow them all up." Hear the awful sounds! Dr. McDowell says to Mr. Krebs, "Lock that door!" What an awful conspiracy! Bars, and bolts, and dungeons, crowd upon his imagination. " Lock that door!" The w^ords have left an indelible impression upon his mind: they are always present to him waking and sleeping. He is called into this court, and they burst from his quivering lips — " I heard him say, ' Lock that door!' " What infernal images must be ever running riot through his brain — what Hydras, and Gorgons, and chimeras dire! when to such an act as the locking of that door, he could attribute enough importance to have conned over the words — learned them by rote, in order to cast them into our teeth. What frightful fancies would have possessed his mind, if Dr. McDowell had leaned over the table, a:-:d whis- pered, "Brother Krebs, will you lend me your knife?" In horror he had fled from the house. He would not have been seen again in that Assem- bly. I doubt not that by this time his amagi nation would have been so fearfully excited, that he would have expected to see a bowie knife, at least nineteen inches long! Gentlemen, there are other points on which I deem it necessary to say a few words. I woukl^leave them to the learned counsel who is to fol- 312 PRESBYTERIAN CHURCH CASE. low, if I did not feel that the duty I have assumed requires something more at my hands. If you will grant me farther indulgence, I will touch upon the remaining points to-morrow morning. Court adjourned. WEDNESDAY MORNING, March 20th— 10 o'clock. May itvlease your Honour — Gentlemen of the Jury — I take it that, in every organized assembly, however constituted, independently of its own special rules, and of general parliamentary law, there are always certain causes existing externally, which from the general nature of things, must operate as strongly as any actual regulations. In other words, there are circumstances, which, independently of all rules, from their own na- ture, control a body, though no reference may be had to their existence. In examining, then, into the acts of any organized .body, with a view to determine whether they have been according to law, it is essential to inquire, whether, at the crisis contemplated, there did not exist circum- stances rendering it impossible to establish any plan of action. Where there is a moral or physical disability, this fact alone is sufficient to reduce the body to a state of dissolution, and of incapacity to arrive at any valid result. To illustrate this position: a man may by the laws of God and of his country do thus and thus, supposing his organization, physical, moral, and intellectual, complete. But if circumstances exist, without, to prevent the exercise of his accustomed powers, the same thing cannot be predicated of him. If he receive a blow upon the head, which renders him senseless, it is obvious that nothing can be predicated of him as an organized being. So there may be circumstances atfecting an assembl}'" of men, which prevent all regular organic action, and produce either temporary incapacity or dissolution. Well, in this case, what aspect did the Assembly of 1S3S present, considered as an organized iiouse — a cor- porate body, if you will permit the expression: what was its condition? Under the direction of the testimony, I tell you, gentlemen, that at the time of these proceedings, it was rendered physically incapable of corpo- rate action; that it had received a blow upon its sensorium, which had deprived it of its senses. Once admit that the members of the Assembly were physically incapacitated for regular action, and you divest them of all accountability to law; they cannot be held bound by any legal intend- ment. Unquestionably the body would have been dissolved by the irrup- tion of a foreign body, violently separating its members, and by force taking possession of the place of meeting. Unquestionably, on the 18th Brumaire, when the troops of Napoleon entered the hall of the Legisla- tive Council, silenced the members, and at the point of the bayonet drove them from the house, the Assembly was dissolved. The members were overawed, subjected to duress; it was impossible to speak, and speaking was necessary to legislative action; impossible to hear, which was abso- lutely necessary. A deliberative body could not perform its functions in the midst of a cannonade, or while a drum was beating in their hall. By the existence of any portion of these circumstances, all attempts to proceed with business would be fruitless, and any thing done invalid. The body would be dissolved, or at least stunned and lifeless. MR. PRESTON'S ARGUMENT. 3^3 Now, it is proved, that in the present case, the Assembly was physi- cally incapable of judging of any matter brought before it; and, there- fore, I say it was released from all obligation, and cannot be bound by any intendment of law. Am I asked, where is the proof of this? With assiduity we have collected a large number of those who were present in the Assembly, as members of that body, and all these gentlemen have told you that they did not hear the question on which the whole case turns; that it was impossible to hear it, by reason of the noise made by the New-school, aggravated, if you please, by the noise of the Old-school. Take it for granted that both parties were guilty of indecent violence; and that the disturbance created by the two combined prevented the question from being heard. It makes no difference whether one or all, a portion, or the whole body make the noise. If the whole Assembly par- ticipated, if the whole was in such disorder, that it was impossible to act, for the moment it was dissolved; and ipso facto, every thing done was void. Daring this time of outrage and disorder, the body was in such a state that it was impossible for business to be properly perfected. If the whole body or a large portion of it, did not hear what was proposed, this released them from all liability on account of it. If in consequence of uproar and riot it was impossible for all to hear, the proceedings were as void, as if conducted in the remotest part of the gallery, or by persons speaking below their breath. The fact that we heard must first be proved, before we can be bound. We have anxiously and industriously collected witnesses, and asked them all distinctly, "Did you hear these questions put?" "No." "Did you hear them reversed?" "No." " Did you know what was done?" "No, I did not until the next morn- ing." Not a single one of them has sworn that he heard these questions. Now, we have examined from twenty to thirty who were members of the Assembly — as many of the Old-school party as we could get, and we made proclamation for more of them. Are we asked to call up persons of the other party and examine them? We are not bound to do so. The question is whether lue heard. We are the persons to be made lia- ble; and when all of us have been called upon, and have sworn, that there was such an uproar it was impossible for the Assembly to act; that we did not know what was done until the next day, excepting that the other party had adjourned, and even this, not until it was proclaimed by a public crier, the question is conclusively settled. Here was the inter- position of a physical fact which made it impossible for us to participate in any proceeding. Will your Honour say, that notwithstanding this, the question being put, we were bound to hear, although it was by their own act that we were prevented from hearing? It is contended on the other side that there is an extraordinary dis- crepancy in this part of the evidence, between our witnesses and theirs. All ours swear that they could not hear, and all theirs, excepting one or two, that they could, and even could hear distinctly. Now one positive witness, is worth a thousand negative, says the learned counsel. This principle is correct, but here is misapplied. Either that we did, or did not hear, is a positive fact. Can any body but myself answer, whether I did or did not? All the persons examined have been competent wit- nesses, and there are, I think, about thirty of ours against twenty of theirs. There is an apparent, I will not deny ihat there is a real contra- 40 314 PRESBYTERIAN CHURCH CASE. diction; for one party swears that all the motions were made, and the questions put and reversed, audibly, and distinctly; the other that they did not hear them. Now, perhaps the former mean, that they were made and put audibly, to a person whose ear was in close contact with the speakers, not audibly to all who were in the house. But, however that may be, the exigency was that they should be audible to us; we swear that they were not, and no one can swear to the contrary. We prove this by positive witnesses, and by witnesses who have not been, and can- not be contradicted. The other side may swear until doomsday, and they cannot disprove such testimony. The learned counsel has referred you to metaphysical principles, to strengthen his argument on this head. He has told us that the ear does not mark sounds, to which it is accustomed; that these were too familiar to strike forcibly at the moment. The sounds which echoed through that church were wonted and familiar! This scene so orderly, these transactions so exactly in the common routine of business, as not to arouse the attention! My learned friend would have you believe that it was all some twice-told tale. Why, it was the most extraordinary scene that perhaps those walls had ever witnessed. Every person in the house was aroused, and in an extraordinary state of excitement. It was impos- sible that any one should not listen with anxiety to each sound that is- sued from that tumultuous body. My friend told you, that during his speech, you had not perhaps once marked the striking of the clock above us. There was a much better reason for that, than that the sound had grown familiar. Even a stranger would scarce have taken any note of time, though speaking with an tongue of iron. Mr. Meredith prevented us from hearing just as his clients had done before; else we should have heard. But there is a way In which perhaps the apparent discrepancy may be reconciled, consistently with the utmost respect for the integrity of the witnesses on both sides; and I am anxious to avail myself of every pos- sible means of doing this. It may be that the gentlemen of the New- school had heard what was intended, and were all on the alert. The plan of proceeding had been arranged beforehand, and knowing just what was to happen, they caught the shghtest intonations of voice. Or, per- sons possessed of imaginations much less active than some of those gen- tlemen have manifested, from expecting that certain things would take place, may have taken for granted that they did take place, and now fan- cy that they heard them. The wish, too, is father to the belief, while the imagination cheats the memory. Another mode of reconcilement suggests itself, and perhaps this goes to the root of the difficulty. Here were two separate bodies, or separate portions of the Assembly. The New-school party were entirely in our rear, and those by whom the dif- ferent questions were put stood in the midst of that party, and addressed themselves to them. But nothing is more natural than that the tone of voice should be accommodated to the distance of those whom we ad- dress— that it should be pitched to meet their ears. When I turn from you, gentlemen, to address the judge, my voice instantly falls; instinc- tively it obeys the dictate of the eye; and again it rises when I say, « Gentlemen of the jury." Nature, and not design, thus pitches my tone, so that it may be heard by those to whom I speak. By reference MR. PRESTON'S ARGUMENT. 315 to this principle alone we may reconcile the discrepancy, supposing that the New-school heard because they were near; and that the Old-school, being more remote, heard nothing. Who then was in fault? If vve par- ticipated in the noise and riot, so far we were guilly; but never before have calls to order been considered riotous; and where a party who is called to order persists, notwithstanding the call, if there were a univer- sal and overwhelming cry of "Order!" all woukl be in order but the one who disobeyed the cry. The mere raising of the point of order would make him disorderly. It is thus, alone, that I can reconcile the testimony of the witnesses. Charity forbids us, if we can in any way get clear of the difficulty, to impute a want of candour or of truth, or even to acknowledge a belief of its existence to our own minds. I say then, that we were physically in- capable of organic action, and therefore cannot be bound by intendment of law. We are.no more bound than if each of us had been stunned, had been struck with sudden deafness. No man totally incapacitated for any sort of action, by the privation of all his senses and powers, can be con- strued to have assented to what he could not oppose. To what was said in regard to the examination of Dr. McDowell, I may be permitted to reply in a few vvotds. We have been taunted be- cause we did not put the question, whether he heard the different mo- tions that are said to have been made. We did put the question to Dr. Elliott, and he, from his situation, was certainly of all the most likely to have heard. But my learned friend taunts us, emphatically, with shrink- ing from the examination of Dr. McDowell on this point. Why did we not ask him? You would infer from the manner of this taunt, that it was pregnant with meaning; that we knew that, had we asked, the an- swer would not have been satisfactory to us. Well, we present Dr. McDowell here, make him our witness, i)lace him on the stand. Here he is: as to credibility and competency the other side are not responsible for him; and if his evidence is against them, they may deny and dis- prove what he says. We return the question: why did not they examine him? We were not bound to bring out their case: we are here to de- velope our own. Thus we may retort upon our opponents; but, gentle- men, I will tell you the reason, and the only reason, why we did not ex- amine Dr. McDowell and all the rest, in regard to every point in the case. We saw that his Honour the judge was weary, that you all were exhausted by listening to such a mass of testimony, and we refrained for fear of overlaying the case. We felt that the only fact important to this part of the cause was, whether those who were members of the Assem- bly, those whose silence is to be construed an acquiescence, heard the questions put. But tlie witness was presented to our friends for cross- examination, and depend upon it, if they had thought to get any thing from him favourable to their cause, they would have promptly asked the question. Is the case of Dr. McDowell the only one of the kind, which my learned friend has been able to discover? We called all the witnesses present — every one that we could lay our hands upon. We made procla- mation for others to come forward; and unquestionably, all the main ac- tors in the scene, of our party, have been examined: we should have considered it unfair if they had not. But who have been produced on the 315 ' PRESBYTERIAN CHURCH CASE. other side? Where is the arch-anarch; where the leaders, the generals of their forces; where the standard bearers and trumpeters? Europe has one; Ohio another: these were the generals, and the only ones who are competent to explain fully the occurrences of that day. We have brought forward all — rank and file; even the surgeon-general has not been omit- ted: where are their superior officers? They have sedulously adduced proof to show, that these men are at a distance. Why are they not here, when the welfare of the Church requires their presence? Why are not Dr. Beman and Mr. Cleaveland here to answer for themselves? It is their own conduct that is passing in review.- Why was not the paper read by Mr. Cleaveland, the chief subject of animadversion, produced? Or if these men are unavoidably absent, why are not their depositions in court? You will be surprised, gentlemen, to hear that they are; that they have been all along in the hands of the counsel. Why have they not been read? Perhaps, we might not have adverted to these most ex- traordinary, and significant circumstances, but for the taunt of my learned friend. But we ask emphatically and triumphantly, why were not the depositions of the main actors in all their proceedings read, when they had been taken, and were here in court, in the hands of the counsel? Dr. Beman was the very Coryphaeus of the choir, and Mr. Cleaveland held the next most elevated position. Their depositions were taken, in nicely phrased documents, and the opposite counsel have them here in their pockets. They were the leaders of the forces. At the sound of their voices calling to the contest, the host rallied. Every thing that they proposed was answered by a shout from their zealous followers. Their testimony would be a panorama of the transaction. Still they are absent; and the very paper on the construction of which the whole case may turn, is not produced. The contradictions in the testimony may, of themselves, furnish reasons for a very important conclusion. They show that during the scenes which the witnesses describe, there must unquestionably have been great confusion, since such intelligent, honest, Christian gentlemen did not all see things in the same way. Both parties, too, have sworn that there was great noise and disturbance, although difiering as to the source whence they proceeded. The testimony of both, however, goes to establish the fact that there was so mucli tumult and confusion, that no regular and or- derly business could be effected. There is not only a great discrepancy between the opposing witnesses, but, what is still more remarkable, all the New-school witnesses contra- dict the deliberate and solemn declaration of the whole Assembly that met in the First Presbyterian Church. That body has made a statement of the facts connected with the organization, in their minutes. Now, many of the witnesses who have sworn to the fact of the different ques- tions being reversed, say that they heard negative as well as affirmative votes — many are confident that they heard both. Several of them knew that the question was reversed, only from the fact of having distinguished these negatives. And, indeed, one of the New-school men, Mr. Lathrop, swears that he himself voted in the negative. Such are the statements of those who are brought forward to prove that the reverse was put. But these same gentlemen, or many of them, being members of the body in the First Church, have given us as their original understanding of the MR. PRESTON'S ARGUMENT. ^{7 matter, each by his vote upon the solemn record, a very different account. This record declares that two of the motions were carried unanimously. Within a few iiours after the occurrences of the organization, these gen- tlemen sat down, coolly and deliberately, being now relieved from the excitement and anxiety of revolution, and declared that each question previous to that on the nomination of Dr. Fisher had been carried without a dissenting voice. Now, is it not a most extraordinary spectacle, to see near twenty of the very same gentlemen come forward and swear that there were negatives to each of these, after the whole body, of which they ,were a part, have solemnly asserted that there was no dissenter? What confusion, what excitement of the imagination must we suppose there to have been, when there is this extraordinary variance between the testi- mony, not merely of different men, but of the same individuals at different times and places! The minute to which I have referred says, "and no other person being nominated, the Rev. Dr. Beman was unanimously ap- pointed such Moderator;" and again, "no other persons being put in nomination, they" (the Rev. Dr. Mason and Mr. Gilbert) " were unani- mously appointed;" and again, " The motion to adjourn was carried unani- mously." Indeed the only exception to this complete unanimity is in the case of Dr. Fisher, who is said to have been " chosen by a very large majority." Perhaps here the objection will be started, that according to the standing rules of the Assembly, where there is but one nomination, the question may be put without reversal, and therefore the vote was tech- nically unanimous; that the minute does not mean unanimous in fact, but by intendment of law unanimous. Thus they may reconcile the dis- crepancy. I am willing to take this excuse. Well then, the minute, when it speaks of Dr. Beman, gives, not the fact, but the intendment of law; but in regard to Dr. Fisher it gives, not the intendment, but the fact; for it is said that the latter was elected by a large majority! In conclusion of this part of the subject, gentlemen, I make a re- mark, in which his Honour will bear me out: that up to the moment when the New-school party seceded from the General Assembly of 1838, that Assembly had done nothing of which they could com- plain, or of which they have complained. What they complain of is, that the officers of the Assembly of 1837 endeavoured to defer, for a short period, the decision in regard to the rights of certain commission- ers: they bring no charge against the house which was first constituted with prayer, and afterwards partially organized, before their proceedings commenced. On the adjournment in 1837, the Assembly was dissolved, melted into thin air: the elements of which it had been formed still ex- isted, but as a body it was forever extinct. In 1838, met another As- sembly of equal powers, and, though of instructed powers in relation to the four Synods, fully capable of undoing whatever the former body had done. Now there was no application made to the Assembly of 1838, to admit the representatives from those Synods to the seats which they claimed, and no one complains of any part of the proceedings of that Assembly. I should be glad to know then, by what power, or for what cause, the rights of one hundred and fifty commissioners — the majority of the house, were trampled upon, their business being cast into confusion, and their organization blown to the winds, on account of the misconduct of the clerks and Moderator. By what were our proceedings invalidated? 318 PRESBYTERIAN CHURCH CASE. How were we bound to answer for the Assembly of 1S37; and what ope- ration had the acts of that body upon us? If either it or its officers had oftended, was it proper that their sin should be imputed to us? This is imputation with a vengeance — the offence of one corporate body imputed to another! Suppose they complain of the acts of 1837 as unconstitu- tional and void, we are not bound to vindicate those acts. If in the heat of excitement they choose to vilify and blacken even with demoniacal virulence, the Assembly of 1837, we are not affected. They cannot stain the reputation of the legitimate successors of that body. They talk of the acts of excision as tyrannical and cruel, as a despotic blow. But why have they exscinded us— the majority? Why have they driven us from the General Assembly? Why do they seek to take possession of the funds of the Church? If on them has been inflicted a despotic blow, have not they dealt another? Because they were for a time unjustly de- prived of control over any part of the funds, do they now claim to con- trol every thing, even the Princeton Seminary, which never belonged to them, which they have never supposed to belong to them? I know they say that, by intendment of law, we excluded ourselves. They call us a limb torn off from the trunk — a limb only four or five times as big as the body! This limb, bleeding and torn, lies in the dust; while the body, but one-fourth or one-fifth as large, lives and flourishes! They say, we might have come into their Assembly, whenever we chose; that their doors and their arms were open to us. This is only adding insult to in- jury: it is a mere mockery. They know that we, the majority, would have killed them by going in. VVhat? by intendment of law we were present, when if present in fact, we should utterly have annihilated their Assembly! Away with all such vain pretexts, such shallow artifices! They were entirely separated from the majority: they had exscinded, not merely four Synods, but the whole of us, at one fell swoop. We, the majority, complained of no grievance. The members of the four Synods alone had been aggrieved, if any body; even the others, that sympathized with them, had suffered nothing at all. Well, now, we may retort upon our opponents, that our Assembly was open to all of them. Those who had not been excluded, but who went off voluntarily, might, of course, have come back whenever they pleased. And, as to the gentlemen be- longing to the four Synods, they could have returned to us as easily as we could to them. We had provided a mode for their return, as they say, they also had for ours. Says the learned counsel, in the spirit of hu- mility, "It would have degraded us to seek admission into your body, after being told that we did not belong to it: we meek and humble Chris- tians are too proud to approach you in the way which you have chosen to point out." Is this the religion of the meek and lowly Jesus? They are too proud to bow their stately necks to the requirements of the Church! Their manhood forbids it. What? Call on them to come as suppliants? No, they must reign supreme. They will not stoop, or abase their haughty diadem. But we may degrade ourselves. We, the majority, must follow the vagrant minority, and, as suppliants, beg for ad- mission. They will not regard the terms which we propose, but we must accommodate ourselves to theirs. The gentlemen on the other side, talk of union and harmony, and la- ment that these two portions of the Church cannot be brought together MR. PRESTON'S ARGUMENT. 319 again. This is impossible. See the state of feeling which exists. You have at least a faint emanation from it here, where the parties stand on a temporal arena, like gladiators, toe to toe, and point to point. They pro- pose union and harmony, while they are seeking either to compel us to join them, against our will, or to strip us of every thing which we con- sider dear and sacred. Why hold out such a delusive proposition? Why attempt to deceive, by crying, peace! peace! when there is no peace? They know full well that we can never be of them, unless dragged in in fragmentary portions, No, Never can true reconcilement grow, Where wounds of deadly hate have pierced so deep. . What would probably be the effect of a verdict establishing the mi- nority as, what they claim to be by intendment of law, the whole General Assembly? We appeal to the candour of these gentlemen; what would you do with the money, after you had got it? What with the Princeton Seminary, snatched by a trick from our hands? How would you manage it? How would you manage the Seminary at Pittsburg; and how the affairs of the whole Church in Pennsylvania, the South, and in all the length and breadth of the United States? I will tell you how: the present case shows it clearly. They have turned out Dr. Green first, and every venerable pillar of the Church would soon be prostrated. They would not rest until every office, and every post of lionour, was filled with New- school men. What have they to do with Princeton Seminary? Did they establish it; or do they support it? Is it sustained by the gentlemen from the four disowned Synods, or by the New-school? It is, as they themselves acknowledge, an Old-school institution. The very ground on which that Seminary stands was the donation of the venerable man whose name they first struck off from the list of Trustees — Dr. Green. The object of the relators now is, to take this away from him., and to be- stow it upon the representatives of the Synod of the Western Reserve, and of the other Synods in the interior of New York state. I correct myself: I am informed that Dr. Green gave only one-half of the Seminary lot. Suppose they gain possession: why, when the excitement of the contest is over, when coolly they can look upon the past and the future, they must find that your verdict has given them that to which they had no just title; that they ought not to have undertaken the management of these charities. They have Auburn Seminary: we do not wish to exer- cise any control over that, even could we do so. Their funds we do not desire to touch. To their own consciences and before God let them an- swer— Dare you, by a mere intendment of law, seize upon our inheri- tance? Gentlemen of the jury, I have now shown you what our opponents claim to have done in 1838, and what they actually did. From this view of the subject every one must regard the disposal of the Church funds ac- cording to the exigency of your verdict, should you concur with the re- lators, as establishing their entire and exclusive control over them, with- out restoring peace to the Church; as the utter disfranchisement of the Old-school. If their claim to the funds of the Princeton Seminary, sup- ported by the allegation of imaginary wrongs, be sustained, the moral sense of every one must revolt from the decree: they have themselves 320 PRESBYTERIAN CHURCH CASE. acknowledged that they had no title to those funds. What was their feeling in 1837? This carries us at once to the proceedings of the re- viled Assembly of 1837. What did each party then propose? In that Assembly the Old-school had a majority, and a joint committee, chosen from both parties, the representatives of each in the committee, forming separate bodies, negotiated formally in regard to the terms of an amica- ble division of the Church. The Old-school, I say, had a decided majori- ty, and from them came the proposition for the appointment of this com- mittee, or rather this diplomatic college; for it was composed of five from each of the two opposed parties. The Old-school commissioners com- menced the negotiation thus: — Ante. p. 40. " The portion of the committee which represent the majority, submit for consideration: '' 1. That the peace and prosperity of the Presbyterian Church in the United States, require a separation of the portions called, respectively the Old and New-school parties, &c." This was the first solemn proposition made by the committee of the majority, to the committee of the minority. And what was the language of the others? Did they say, as now, that if all the funds were given to them, it would restore peace? Their first paper runs thus: "Whereas the experience of many years has proved that this body is too large to answer the purposes contemplated in the Constitution, and there appear to be insuperable obstacles in the way of reducing the re- presentation: " And whereas, in the extension of the Church over so great a territo- ry, embracing such a variety of people, difference of view in relation to important points of Church policy and action, as well as theological opin- ion, are found to exist. "Now, it is believed, a division of this body into two separate bodies which shall act independently of each other, will be of vital importance to the best interests of the Redeemer's kingdom." " Difference of view in relation to important points of Church policy and action, as well as theological opinion, are found to ex- ist.'^ Such was the language of the New-school, before the exacerba- tions of this melancholy contest had so embittered their spirits. Then they say, " Noiv, it is believed, a division ivill be of vital importance to the best interests of the Redeemer'' s kingdom.^'' Yet here they tell us, that a separation would be unnatural: that the two parties must be kept together by compulsion; that we must be bound hand and foot, manacled, and delivered over by the law to them, as the only means of preventing this division, which is of " vital importance to the Redeem- er's kingdom." On this view of the necessity of the case, at that time, they go on to propose — I am speaking the language of the Minutes — that, " The General Assembly of the Presbyterian Church in the United States of America, shall be divided into two bodies." This is their proposition founded on the foregoing acknowledgment, that division was necessary, on account of the wide differences that had grown up in the Church, in relation to its policy and action, and even as regarded its faith. Farther, they admit the power of the General Assem- bly to act in this matter, with the proviso, however, that the final deci- MR. PRESTON'S ARGUMENT. 321 sion of the question shall be referred to the Presbyteries. Then, in offering terms of divisionj they make ten distinct specifications, the last of which runs thus: " 10. The Princeton Seminary funds to be transferred to the Board of Trustees of the Seminary, if it can be so done legally and without forfeit- ing the trusts upon which the grants were made; and if it cannot be done legally and according to the intention of the donors, then to remain with the present Board of Trustees until legislative authority be given for such transfer. The supervision of said Seminary, in the same manner in which it is now exercised by the General Assembly, to be transferred to and vested in the General Assembly of the Presbyterian Church in the United States" (the Old-school Assembly) " to be constituted. The other funds of the Church to be divided equally between the two Assemblies." They offer then to transfer the whole Seminary fund to these very gentlemen whom I now represent; but when we merely accede to the proposition, merely repeat their own words, we are accused of a fraudu- lent intention. It is said that under cover of a liberal offer, we wish to retain every vestige of the property. Yet, I repeat it, in the proposition thus characterized, we use their own terms, and unless they intended fraud, how can these terms become fraudulent in our mouths? If there be any covert fraud they alone are responsible for it — it is theirs, not ours. "The other funds of the Church to be equally divided between the two Assemblies" — of course, they mean, if the intention of the donors will permit. If this be not their meaning, they show even more astute- ness than my learned friend would ascribe to us, when we repeat the words by them put into our mouths. They propose that half of the other funds shall be transferred to them, whatever the intention of the donors may have been — that they shall have half at any rate; and then a chance of getting the rest, by reference to the will of the donors! In their second paper, which immediately follows that from which I have read, the committee of the minority object to the use of certain terms employed by the others, and insist upon an equal division of the funds. Then comes No. 2, of the majority. First, they agree to accept several propositions of the minority, with different modifications, and in regard to the division of the property speak thus: "5. We agree, in substance to the proposal in No. 10, and offer the following as the form in which the proposition shall stand: that the cor- porate funds and property of the Church, so far as they appertain to the Theological Seminary at Princeton, or relate to the professors' support or to the education of beneficiaries there, shall remain the property of the body retaining the name of the General Assembly of the Presbyterian Church in the United States of America; that all other funds shall be equally divided between the new bodies, so far as it can be done in con- formity with the intentions of the donors; and that all liabilities of the present Assembly shall be discharged in equal portions by them; that all questions relating to the future adjustment of this whole subject upon the principle now agreed on, shall be settled by committees appointed by the new Assemblies at their first meeting respectively; and if these com- mittees cannot agree, then each committee shall select one arbitrator, and these two, a third, which arbitrators shall have full power to settle finally the whole case in all its parts; and that no person shall be appointed an 41 322 PRESBYTERIAN CHURCH CASE. arbitrator, who is a member of either Church; it being distinctly under- stood that whatever difficulties may arise in the construction of trusts, and all other questions of power, as well as right, legal and equitable, shall be finally decided by the committees, so as in all cases to prevent an appeal by either party to the legal tribunals of the country." This is the offer of the Old-school, and they use almost the very terms put into their mouths by the other party. But the proposition for the appointment of committees to adjust the matter, and of arbitrators, with *e case of a pastor and his congregation. But certainly if there is not infused into the agreement a contract, either ex- press or implied, that the relation is to exist for life, he has a right to leave you, and you to exclude him: I do not know, where you will find a reciprocal relation of this sort which is not dissoluble at the pleasure of either party, if no wrong be done thereby to third persons. Here the duration of the agreement, or so-called contract, was entirely vague, and indefinite — no term was fixed. Shall I enter upon a broader sphere of illustration, and one more be- coming the present subject? Take the case which has been proposed, of the state of Pennsylvania. Suppose that she should declare herself the ally of a foreign power at war with this country, and opposed to all in- tercourse with the other states. This would indeed be treasonable in the individual citizens, but an actual separation might be effected. The state of the honourable gentleman who preceded me, South Carolina, once threatened a separation from the Union. Might she not in an evil hour have carried the alleged plan into execution? Mr. Meredith has asked you whether the Common Councils of this city could cut off four of the wards? Does he not know that two of them were actually cut off, and now belong to the county. His illustration, however, was inappli- cable in one respect: he supposed that the city councils should make the attempt, when they have no authority whatever over the subject, and their action in such a case would be like that of an inferior judicatory — a Presbytery. But when the Assembly of Pennsylvania said, that for a parti- cular purpose two wards should segregate themselves, and be attached to the county, they were obliged to accjuiesce, though they complained of the act of excision. The only question then was, as it is the only ques- tion now, where was the [)Ower to exscind vested? It must be vested MR. INGERSOLL'S ARGUMENT. 357 somewhere; and with whatever branch of the government it may be lodged, by that may it be exercised. I know of no law which may not be repealed. For an authority on this point I refer your honour to 4 Cokeys Rep. 43. And especially is this the case when the party pro- tected by the law has violated it; when that party has voluntarily thrown off its protection. Vattel says— Law of Nat. B. I. Ch. XVI. § 197 — " The law is the same with respect to the two contracting parties: if the protected does not fulfil his engagements with fidelity, the protector is discharged from his; he may afterwards refuse the protection, and de- clare the treaty broken in case the situation of his affairs renders such a step most to his advantage." The "Plan of Union," however, as I have before remarked was but temporary, intended only for the new settlements, a semi-barbarous fron- tier, which was not yet ready to receive the discipline and doctrine of the Presbyterian Church. This exigency passed away, and the " Plan" should have passed away with it. But it was unconstitutional and void from the commencement. It contravened the fundamental law and the principles of the charter, HoharVs Rep. 87. On this point I cheerfully meet our opponents. It is going much too far, to say, that if this act was void, every thing done by the Assembly since 1801, must have been also ii'regular and void. Usurpation of power does not always invalidate acts done under the reign of such usurpation. If the sheriff wrongfully returns certain persons as duly elected members of Congress, they take their seats, and hold them until it is suggested that their commissions are invalid, when a committee reports upon their case, and the house decides. Yet all the acts of Congress passed in the mean time are not void. I will recur to the illustration afforded by the case of a government. All the governmental acts performed during the Protectorship of Cromwell, were acknowledged as legally valid, after his usurpation had passed away like a shadow. Some government was absolutely necessary, and his was the government de facto; therefore on the restoration, its acts were not all declared nugatory. One of the best men in England — Sir Matthew Hale — was the first to sit upon the bench under the Protectorate. Shall we now doubt whether his judicial acts were valid? Almost the whole eastern world was revolutionized by the arch-usurper Napoleon. But after all the shadowy sovereignties, offspring of usurpation, which he established, had faded away, the restored governments held themselves re- sponsible for all the wrongs committed by the usurper, and have done justice to the sufferers. Millions upon millions have been paid by France, Spain, and Naples, as an indemnity for those wrongs: they have redeemed them all. This doctrine in regard to the acts of a de facto government is perfectly well understood. Tiie " Plan of Union" I say then was unconstitutional — that is, con- trary to the Constitution of the Presbyterian Church — and opposed to the law of Pennsylvania. It was totally inconsistent with the essential principles of the system of Presbyterianism. It admitted into the Church materials radically distinct from those of which it was originally consti- tuted. Let us not confound this "Plan of Union" with occasional and temporary unions of a different kind — unions not extending to a partici- pation in the powers of government. The history of the Presbyterian Church is not wanting in instances of this latter sort of connexion. I 3g8 PRESBYTERIAN CHURCH CASE. find that in the first century after the Reformation, Presbyterians united with Episcopal Churches. Congregations of them were placed under the protection of the most orthodox Bishops. Synods composed of Presbyte- rians invited and received the co-operation of English divines deputed by the Church of England. Presbyterian ministers were actually instituted to English benefices without being Episcopally ordained. Bishop Heber thought that he might consistently with his principles commune with a Patriarch of the Greek Church. On the wreck of the unhappy Pulaski, when all were awaiting, in dreadful suspense, the moment that should end their lives, all, doubtless, united in a cordial aspiration to their common God. These were moments of emergency? But the " Plan of Union" was a diflerent thing. It was a plain violation of the fundamental princi- ples of Presbyterianism, The Constitution expressly provides that every church shall have a bench of ruling elders appointed for life, and forming with the pastor, what is called a church-session. The General Assembly, according to the same authority, is to be composed of ministers and elders and none else. But by the " Plan of Union" were admitted into the Assembly representatives of a totally foreign constituency, who were neither minis- ters nor elders. That is, Congregationalistshave been represented in that body by committee-men. And not only so, but as all the Presbyterian ministers belonging to a Presbytery, whether pastors or not, are entitled to representation, and as Presbyterian churches alone are so entitled, Presbyterian ministers being allowed to preach to Congregational churches, the due proportion between ministers and elders is destroyed: there may be twenty-four ministers without a single elder in a Pres- bytery: all the ministers may be either without charge, or be preach- ing to Congregational churches. Under the operation of this plan a Presbytery may be formed not embracing a single Presbyterian church, the ministers all representing colleges or churches of a different denomi- nation. Thus in the Presbytery of Newburyport, the statistics of which were read to you the other day, you remember there were only two Presbyterian churches, while there were eight pastors of Congregational churches. Of course the representative character of that Presbytery is nearly destroyed. Let us look at this " Plan of Union," not relying entirely upon the mere title, and compare it with our charter of incorporation. Here Mr. Ingersoll read the Plan. — Vide ante, p. 48. Now compare this with the charter. The latter is styled " An Act for incorporating the Trustees of the Ministers and Elders, constituting the General Assembly of the Presbyterian Church, in the tjnited States of America." The franchise extends no farther than to the ministers and elders; but the Union of 1801, incorporated Congregationalists and com- mittee-men with them. The same thing appears in the preamble of the act and in every part of it. " Whereas the ministers and elders forming the General Assembly of the Presbyterian Church of the United States of America, consisting of citizens of the State of Pennsylvania, and of others of the United States of America aforesaid, have by their petition represented, that by donations, bequests, or otherwise, of charitably disposed persons, they are possessed of monies for benevolent and pious purposes, and the said ministers and MR. INGERSOLL'S ARGUMENT. 359 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 man- age the said funds, in the way best calculated to answer the intention of the donors: Therefore, Be it enacted, &c." And such is the phraseology used throughout the act, as appears especially from section sixth, the most important part of it. Mr. Ingersoll here read section sixth. — Vid. ante, ;o. 21. The minis- ters and elders represented in the Assembly, choose the trustees and in- struct them how to act in every important particular. An union therefore with the constituency of that bod}^, of persons who are neither ministers or elders, is a palpable violation of the act of the legislature. It is as great _a violation of it, to admit Congregationalists, as to admit individuals of a sect totally difierent from Presbyterians in doctrine and worship. Bap- tists and Episcopalians might as well be suffered to partake of the bene- fits of the franchise, as Congregationalists. If they had chosen to admit an association of Mussulmen, would they not violate the charter ? In the case already cited from 7 Serg. <§■ Raiule, Chief Justice Tilghman took especial care to vindicate the integrity of the Roman Catholic system, to pronounce unlawful any thing tending to sap the foundations of that par- ticular Church, any attempt to divert the bounty of its founders; watch- ing jealously the rights of the original parties, and declaring all acts de- structive of them, by the introduction into the Church of heterogeneous materials, entirely void. Some doubts have been expressed, whether any of the churches within the bounds of the four Synods, came in under the "Plan of Union." I shall not trouble you with a lengthened exposition on this point. The evidence of the fact is already before you, and I shall merely advert to it in a cursory manner. You recollect that the resolution by which the " Plan" was abrogated, denies the authority of the Connecticut Association to enter into such an agreement. The following is the language of one of the protests entered by the members of the New-school against this measure: Here Mr. Ingersoll read a section of the protest referred to. — Vid. ante, p. 157. And with this testimony, that given by Mr. Squier exactly corres- ponds. He told us that there were churches in the region embraced by the four Synods, in a sort of initiative stage, which he described, that had not yet formed elderships; as if a small church might not just as well have ruling elders as a larger one. In the answer to this protest, the fol- lowing language is used: " The other remark is, that the Plan of Union itself doss not prescribe the terms of admission into the communion of the Presbyterian Church. It prescribes the manner in which Congregationalists may remain out of this Church, and yet exercise a controlling and governing influence over its ecclesiastical judicatories." It formed an unprecedented, ill-digested and uncomfortable system. We are told that it is only while the congregations are in an initiative state that they do not conform to the Presbyterian government and ap- point elders. But how long is this initiative stage to continue? They 47 370 PRESBYTERIAN CHURCH CASE. seem never to get beyond it: it is likely to last until the end of time ; and until they choose to consider their initiation consummate and act upon it accordingly, though still Congregationalists, they may exercise a controlling influence over the judicatories of our Church. But passing lightly over the ground of the constitutionality of the " Plan," — on it they do not lay very great stress — -our opponents endea- vour to escape to a more popular ground. They say that if the union of 1801, were originally illegal, it has since been legalized by the acquiesc- ence of all parties concerned during a space of thirty-six years. We are told that both the old patriarchs and the young have acquiesced in its provisions. I think I have shown that it was unconstitutional. Let us now see whether any length of acquiescence could make it good. A constitution is the fundamental law which legislation and acquiescence combined cannot subvert. The true doctrine on this point I will lay down in the language of a celebrated judge of this court, to be found in the case of Vanfiorne vs. Dorrance, 2 Dallas^ Rep. 308. "What is a Constitution? It is the form of government, delineated by the mighty hand of the people, in which certain first principles of funda- mental laws are established. The Constitution is certain and fixed; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the Legislature, and can be revoked or altered only by the authority that made it. The life-giving principle and the death-doing stroke must proceed from the same hand. What are Legislatures? Creatures of the Constitution; they owe their existence to the Constitution: they derive their powers from the Constitution: It is their commission; and therefore all their acts must be conformable to it, or else they will be void. The Constitution is the work or will of the people themselves, in their original, sovereign, and unlimited capacity. Law is the work or will of the Legislature in their derivative and subor- dinate capacity. The one is the work of the creator, and the other of the creature. The Constitution fixes limits to the exercise of legislative authority, and prescribes the orbit within which it must move. In short, gentlemen, the Constitution is the sun of the political system, around which all legislative, executive, and judicial bodies must revolve. What- ever may be the case in other countries, yet in this there can be no doubt, that every act of the Legislature, repugnant to the Constitution, is abso- lutely void." Tlien on the next page he remarks, " The Constitution of a State is stable and permanent, not to be worked upon by the temper of the times, nor to rise and fall with the tide of events: notwithstanding the compe- tition of opposing interests, and the violence of contending parties, it remains firm and immoveable, as a mountain against the strife of storms, or a rock in the ocean amidst the raging of the waves. I take it to be a clear position; that if a legislative act oppugns a constitutional principle, the former must give way, and be rejected on the score of repugnance. I hold it to be a position equally clear and sound, that, in such case, it will be the duty of the court to adhere to the Constitution, and to declare the act null and void. The Constitution is the basis of legislative au- thority; it lies at the foundation of all law, and is a rule and commission by which both legislators and judges arc to proceed. It is an important MR. INGERSOLL'S ARGUMENT. 37 1 principle, which in the discussion of questions of the present kind, ought never to be lost sight of, that the judiciary in this country is not a subor- dinate, but co-ordinate, branch of the government." Standing then on substantial ground, and borne out by the language of this distinguished and eloquent judge, I assert that no length of time, no acquiescence, can make valid an act originally unconstitutional. Long as it may continue in existence, it is still void, and no one can be compelled to comply with its provisions. If therefore it be decided— and I believe the gentlemen of the New-school concede this point — that the " Plan of Union" was at the beginning illegal and void, it is impossible that it should now be otherwise than illegal. What effect can mere acquies- cence have in regard to matters of conscience, or of faith? Where per- sons have ignorantly contracted an incestuous marriage, though they arc guilty of no crime, the marriage is null, and was so from the beginning. Where a man has illegally married a second wife, while his first was liv- ing, the contract is utterly void, except in cases for which the law has especially provided; and though he may have lived half a century with her, it is still as utterly void as at the first. It is impossible that any length of acquiescence can do away with the rules of conscience, or con- travene the fundamental laws of the land. Acquiescence in such a case can make no impression. It is no more than waves dashing against a rock, or wolves baying at the moon. It is a well established rule of the common law that a bad custom must be abolished, and that no lapse of time can make good what is originally bad. Quod ah initio non valet, tractu temporis non convalescit. In a case reported in 8 Cranch's Rep. 1, Chief Justice Marshall decided that letters of administration granted when an executor was present and capable of acting, were utter- ly void, and that no length of time could make them any thing else than void. Our own courts have established the same doctrine, and your honour has led the way. You are all familiar with the history of that beautiful square in this city, a part of which for a hundred years had seemingly belonged to a German congregation, who held it under a regu- lar title, having paid for it and obtained a warrant and patent. It was nevertheless decided that their title was contrary to the fundamental law which estabHshed the city, and therefore invalid. I could mention many similar cases. Who can for a moment suppose that any lapse of time, any length of acquiescence, can give sanctity to error, or confirma- tion to wrong? This nation is thought to stand on the verge of war, from its just deter- mination to disregard an alleged acquiescence of half a century in the as- serted boundary line of its North Eastern Commonwealth. We began our political existence, by breaking the fetters of a long course of submissive ac- quiescence in oppressions and tyrannical proceedings, an enumeration of which swells the Declaration of Independence. Every change of govern- ment, every advancement of freedom, every improvement in the condition of a people, proceeds from the exercise of the right to put an end to long continued acquiescence in abuses until they have become too burthensome to be borne. With the change of times and circumstances, the '* Plan of Union," if ever beneficial and proper, has become unnecessary. Those for whose 372 PRESBYTERIAN CHURCH CASE. assistance and protection it was formed no longer call for aid. Chief Justice Tilghman, in the case which I have already referred to more than once, comments on this very subject, remarking that laws which suit the exigencies of one period, are not suited to another; that therefore every law is liable to alteration. For the same opinion I would also refer to Har grave's Law Tracts, 269. With the vicissitudes of human exis- tence, all human enactments must undergo continual change; especially those that regard expediencies only. Constitutional law on the other hand is permanent. It is irreversible unless by the same sovereign power that first called it into operation. The resolutions of 1837 can be said to violate rights of property with as little reason as they can be called the violation of a contract. Evi- dence of contributions in the four Synods has been admitted, but only for a special purpose. When we attempted to give counteracting testimony, it was ruled out, his Honour deciding, what the learned counsel them- selves admitted, that their evidence went to show merely the recognition of these Synods by the General Assembly. This is not a question about property. Our opponents do not sue for any particular fund. We should have been delighted to enter into an account with them; but our proof on this point, offered to meet a supposed contingency, was considered in- applicable and rejected — rejected, as we think, very properly. We main- tain that all ideas of property are foreign to the present suit; that there is no question of property before you for decision. We assert, however, that if the account between us were balanced, it would appear conclu- sively, that they had been great gainers by the connexion, in a pecuniary point of view. But such details have been rejected by the court; and you, gentlemen, must recollect, that the evidence given by our opponents upon this point, is to have no weight, farther than as it may go to prove the recognition of the four Synods. Suppose they have been thus recog- nised, and we do not deny that they have been, what does that prove? Their admission in the first place was illegal, and we have shown that even acquiescence could not make it good. So far from our having de- frauded them of their rights, they have requited our benevolence only by acts of ingratitude. Under our protection they have gathered strength, which has been constantly exercised in opposition to our interests. It was absolutely necessary to put an end to the connexion, yet the final measures taken to effect that purpose were adopted reluctantly, and only after every other expedient had failed. No question as to property can affect the issue before you. If we have taken any portion of their money, and it has not been restored, and if we promised to retain it only so long as they might be members of the Church, they have a perfect right to call upon us for it. We do not wish to disown them, and retain their funds: there can be no just pretence that we do. No right of property has been violated. We have always professed a readiness to give up every cent which in the strictest spirit of equity we can owe them. But, gentlemen, you must remember that no question of property is involved in the present issue. Least of all have we condemned these men without a hearing. The Assembly of 1837, in the first place passed a mere abstract resolution, and this was followed simply by a declaration of its consequences. The act MR. INGERSOLL'S ARGUMENT. 373 of abrogation was a mere abstract proceeding, and not at all a personal one: the ^^Plan" was abrogated in the same way that it had been en- acted. One reason given for this act was, that the " Plan" had not been sent down to the Presbyteries for their sanction. Now if there is any force in the objection that the Assembly itself had a right to create this plan, certainly it had an equal right to destroy it. I say that the first resolution complained of was a mere abstract measure, and that the others were not acts of positive legislation, but only declarative of the consequences of the former. The Assembly did not try any body, but merely declared that the plan of 1801, however good in theory was bad in practice, unconstitutional, and therefore void from the beginning. Then ensued as a corollary from this proposition, the declaration, that in consequence and by virtue of the abrogation, first, the Synod of the "Western Reserve, and, then, the Synods of Utica, Geneva, and Genesee, were no longer component parts of the Presbyterian Church. This was a mere consequence of the abrogation. There could be no such thing as a trial. The Asseml)]y had no jurisdiction in the case. That body has no power to try Congregationalists, or to punish them for being such. It is begging the whole question to talk of a trial. If they were good Pres- byterians there was nothing to try them for: if they were Congregation- alists we had no jurisdiction over them. In fact a trial, if it could have been had, would have been supererogatory. Why should we try them? Let them merely come to us and assert their innocence, and all difficulty ceases. Let them only come and say that they are Presbyterians, and they shall be restored to our communion if they are separated from it. To talk of a trial is to insist upon their having been charged with crime, when none was alleged against them. It is said that the Assembly has formed alliances with other sects equally incongruous. If so, the sooner they are dissolved the better. But two wrongs can never make a right, either in evidence or argument. If we have incorporated with us any but Presbyterians, the union was improper, and let us get rid of them as quickly as possible. Indeed we have already gotten rid of some such associations, if indeed the connexion to which I refer is to be considered analogous to those alluded to by our opponents, and this by an act of the very Assembly that passed the dis- owing acts. By that Assembly it was, " Resolved, That while we desire that no body of Christian men of other denominations should be prevented from choosing their own plans of doing good — and while we claim no right to complain should they exceed us in energy and zeal — we believe, that facts too familiar to need refutation here, warrant us in affirming, that the organization and opera- tions of the so called American Home Missionary Society, and Ameri- can Education Society, and its branches, of whatever name, are exceed- ingly injurious to the peace and purity of the Presbyterian Church. We recommend, accordingly, that they should cease to operate within any of our churches. Minutes, 1837,/?. 442. The power of the General Assembly to pass such a resolution will not I presume be doubted; but its connexion with the Congregational Church was of a different kind, and was harder to be gotten rid of. We find, however, that a formal protest was entered against this, by the same in- 374 PRESBYTERIAN CHURCH CASE. dividuals who protested against the other resohitions. They tell us that we have formed numerous unions as obnoxious to the charge of uncon- stitutionality as that of 1801, and yet when we attempt to abrogate them, uniformly protest against the measure. Though all unconstitutional, they are to stand supported by one another. How was it with the other plans of union formed by the Assembly? Why they were changed and abrogated at its own pleasure. At one time the delegates were allowed to vote: at another the privilege of voting was taken away. But the union with the Associate Reformed Church in 1822 has been held up to view in a particular manner, and Mr. Meredith has dwelt em- phatically on one little phrase which he finds in the constitution of that Church — the words " in substance," occurring in the act of adoption of its form of government, passed b}^ the Synod in 1799, as if the identification were of a limited character. The Synod approved of this form absolutely " as being, in substance, the only form of government which the Lord Jesus has prescribed to his church'' — a very different thing from an in- dividual's adopting or subscribing it in a qualified sense. You find moreover that this comprehensive reference to a divine origin is employed onlj'- as to government, and not in regard to doctrine. In the same year, 1799, on the 31st of May, the Associate Reformed Synod adopted the Westminster Confession of Faith and Catechisms, by the following act, in good faith and without reserve. " The Westminster Confession of Faith, with the Catechisms, Larger and Shorter, having been formerly received by this Synod, with a reser- vation for future discussion of the doctrine respecting the power of the civil magistrate in matters of religion; and the said doctrine being now modified in a manner more agreeable to the word of God, to the nature of the Christian Church, and to the principles of civil society, the Synod do explicitly receive the aforesaid Confession and Catechisms, with the doctrine concerning the civil magistrate, as now stated in the twentieth, twenty-third, and thirty-first chapters of the Confession, as the system of doctrine which is built upon the foundation of the apostles and prophets, Jesus Christ himself being the chief corner stone. And the Synod do hereby declare, that the aforesaid Confession and Catechisms, as herein re- ceived, contain the true and genuine doctrine of the Associate Reform- EB Church; and that no tenet contrary thereto, or to any part thereof, shall be countenanced in this Church." Const, of Assoc. Ref. Church, {Su'orfPs Edit. New York, 1799,) 7?. 8. In the first place, then, the qualification of the approval of the form of government is a very difierent thing from what the counsel seemed to suppose. In the second place, there is no such qualifying phrase in the act adopting the Confession and Catechisms, which some of our New-school brethren receive " for sub- stance" only; And, thirdly, in the interrogatories addressed to ministers and other church-officers, at the time of their ordination, there are no qualifying words. You see that the Westminister Confession of Faith is the great polar star of the Associate Reformed, as it is also of the Presby- terian Church: they both receive the whole, entire, as the system of doctrine taught in the Bible. Butaf the Synod had at that time adopted this Confession " for substance" only, the adoption was a very old affair. It took place in 1799; and the union with the Presbyterian Church was MR. INGERSOLL'S ARGUMENT. 375 not formed till many years after. At the latter period the books of both sects were the same, and it was required to assent to both without quali- fication. But let me explain this matter of the union with the Associate Re- formed Church still farther. Here Mr. Ingersoll read an extract from the Minutes, containing the articles of agreement between the two churches. — Vid. ante. pp. 126-7. Such was this plan of union, intended completely to amalgamate the two Churches, as being both strictly Presbyterian, the distinct organiza- tion of each, however, still being preserved. All the property of the Associate Reformed Church was transferred to the General Assembly; but late decrees have decided, that those who did not come in under this contract were not affected by it. By a judgment of the Chancellor of New Jersey, the library mentioned in the articles which I have read, has been lately restored to the Associate Reformed Synod. Appendix to Min. {Old-school) 1838,/?. GO. Reference has been made to the case of Duncan vs. The Ninth Presbyterian Church. This was a case, where the Associate Reformed Church claimed a Presbyterian house of worship, and it turned upon the construction of the will of a certain Mrs. Margaret Duncan, by whom the property had been bequeathed. Many of the members of the Associate Reformed Church have never joined the Presbyterians, and it has been decided that their rights could not be affected by the agreement. As to those who have united with us, they are firmly and proudly Presbyterians; but they had no right to carry away with them the funds belonging to all. I have before me, now, the " Formula of Questions for Ministers at their Ordination,''^ prescribed in the Associate-Reformed Constitution. Nothing can be more explicit. *' Do you receive the doctrine of this church, contained in the Confes- sion and Catechisms, as founded on the word of God, and as the expres- sion of your own faith? And do you resolve to adhere thereto, in oppo- sition to all Deistical, Popish, Arian, Socinian, Arminian, Neonomian, and Sectarian errors, and all other opinions which are contrary to sound doctrine and the power of Godliness? " Do you approve the form of Presbyterial Church Government, and the Directories for worship, received by this church, as agreeable to, and founded on, the word of God? And do you resolve to maintain and ob- serve them accordingly?" — p. 502. Passing by the charge that we have admitted other foreign materials, besides Congregationalists, into the composition of our Church, I will occupy your attention for a moment, with a few words of explanation in regard to this statistical table which I hold in my hand, and which has already been adverted to by the opposite counsel. The statistics of the Presbytery of Newburyport belonging to the Synod of Albany, have been read to show that there was a long list of licentiates candidly re- ported as connected with Congregational churches, and then the statistics of certain Presbyteries within the Synod of the Western Reserve, or some one of the four disowned Synods, to show that there no such cases were reported: yet says the argument, the General Assembly did not exscind the Synod of Albany: it still continues in good standing. We may answer this objection in various ways. There are but two churches 376 PRESBYTERIAN CHURCH CASE. of a Presbyterian character in the Presbytery of Newburyport, while a long list of ministers who preach to Congregational churches is exhibited. There is no reason why our ministers should not preach to Congregation- alists. They may preach to the heathen, as St. Paul did to the Gentiles. This does not interfere with their Christian duties, or vitiate the repre- sentation of the Church in the Assembly. The Presbyterian minister may wade through blood and slaughter to carry the Gospel to those who have it not, or he may preach from the canopied pulpit of a church establish- ment, and, at most, he is to be considered in the light merely of a minis- ter without any charge. This connexion may have received no sanction; it may perhaps indicate merely what he considers right. Not a single one of the Congregational churches enumerated on this list is, or can be, represented in Presbytery, or in the General Assembly. In the second column you will find the list of churches which are represented, and there but two names are given — only two, and those are Presbyterian churches — they have ruling elders. The rest — eight or ten — are not represented at all. Now let us turn to the other Synods — here is the Synod of the Western Reserve. Is there not more error in that than in the Synod of Albany? We are not bound to show that there is. Though there is the clearest proof of the existence of a Congregational church at Middle- sex, while this is one of the churches returned by its Presbytery as Pres- byterian. Mr. Squier told you that it was Congregational; yet nothing at all of this appears in the report. I mention the circumstance, how- ever, without intending to dwell upon it, for his Honour has made a de- cision excluding such testimony. I have alluded to the matter only be- cause my learned friend has pushed it upon us, notwithstanding his Honour's judgment. If the General Assembly had the power to pass the resolutions of 1837, you have nothing to do with their reasons for the act — good as we believe them to be. The only question before you is whether the Assembly had the power: if it had, it is no matter, so far as the present suit is concerned, whether it was exercised with good reason, or from sheer caprice. Still when the opposite counsel choose to go aside from the real matter in dispute, and introduce an entirely foreign matter — the Synod of Albany — to your consideration, we answer them as I do now. Recollect, gentlemen, that a Presbyterian minister may either have a charge, or have none, and he still retains his right to a seat in the Presbytery, unless, indeed, he enters into ecclesiastical connex- ion with some other sect. He may preach to any church, live without or within the bounds of the Presbytery, sojourn any where, live any where, and still not lose his Presbyterial standing. It is with him as with a citi- zen of a particular country, who is considered a resident there until he fixes his domicil elsewhere. He is at perfect liberty to traverse land or water, and until he takes up his permanent abode in some new home, his original domicil, the place of his birth, still remains his residence. So it is with these ministers. Each belongs to some Presbytery, and his con- nexion with it continues until he is dismissed to another, whether he has any charge or not, whether he lives within or without its bounds. The fact, therefore, of his preaching to a Congregational church cannot afiect his Presbyterial standing, or interfere with the proper constitution of the General Assembly. If you will turn to page 452 of the Minutes of 1837, you will find it MR. INGERSOLL'S ARGUMENT. 377 stated, that according to the acknowledgment of the commissioners from the Synod of the Western Reserve, of the one hundred and thirty-nine churches composing that Synod, there were but twenty-five Presbyterian churches. Mr. Wood. I would beg leave to ask whether this is evidence. Mr. Hubbell. It was read in evidence by Mr. Randall. Judge Rogers. I understand that it was given in evidence; but it is undoubtedly immaterial. Mr. Wood. I thought your Honour had overruled all testimony upon that point. Judge Rogers. The case certainly does not depend upon these facts. Mr. Inger^oll. I am bound in courtesy to pay some deference to the opinion of my learned friend on the other side. I do not myself think the evidence material, but it has been forced upon us, and we were per- fectly willing to meet our opponents on this ground. This testimony, which is said to have been given by the commissioners from the Synod of the Western Reserve themselves — and they do not deny the allega- tion— was, I suppose, a part of that elicited from them by the catechetical course of inquiry of which they complain in the protest, to which the paper referred to for this fact was an answer. And the testimony is, in part, confirmed by Mr. Squier. He told us that the church of Middlesex was a mixed or Congregational church. Mr. Wood. That was another Middlesex; not the one in the Synod of the Western Reserve. Mr. Ingersoll. That is possible — no doubt it is the fact if you say so. But still I contend for the statement read by Mr. Randall himself in evi- dence: that of one hundred and thirty-nine churches within the Synod of the Western Reserve, there are but twenty-five Presbyterian; while here in this statistical table, as Mr. Meredith has said, all of them, without ex- ception, are returned as Presbyterian ! But I admit that the cause does not turn upon this point. Such matters could be determined only by the General Assembly itself, and all have agreed to abide by its decision in regard to them. His Honour has said that this testimony has nothing to do with the case; that it is no matter whether the Assembly decided right or wrong, if it had a right to decide the point at all. Yet I have thought it necessary to say what I have said in regard to it, to avoid the effect of a collateral argument unnecessarily drawn into the case. Re- member, gentlemen, that if the act was within the jurisdiction of the As- sembly, you cannot inquire whether the power was duly exercised. Then, as we have shown, that the act abrogating the " Plan of Union" was within the jurisdiction of the Assembly, and that the cessation of the Synod of the Western Reserve and of the three others, lo be parts of the Church, was a mere consequence of the abrogation, and followed from it, as a matter of course, the claim of the relators to be trustees cannot have a particle of foundation; they cannot lawfully demand their seats. But suppose that the act of abrogation was wrong. Say that our antagonists have proved the Assembly of 1837 to have been in error; that it had no power to abrogate the " Plan," nor to declare the consequences of the abrogation : they have not yet proved one-half of what is necessary to their case: their task is not half completed. The relators still would not be the rightful trustees, though we had failed to show that the proceed- 48 378 PRESBYTERIAN CHURCH CASE. ings of 1837 were good. For the sake of the argument, I might concede that those proceedings were utterly null and void. Then they must show that their proceedings in 1838 were perfectly justifiable, and their elec- tion of trustees valid. Undoubtedly this is the most essential part of the case, though not the part requiring the greatest length of argument. The question is, whether Judge Todd and the other relators were elected to the office of trustees by a proper General Assembly. They do not pre- tend to have been chosen in 1837, nor in 1838, until a portion of the Assembly, separated from the rest, and holding its sessions in the church on Washington Square, there elected them, ijntil they have shown that this proceeding was right, and the election regular, the chief burden of the case still rests on their shoulders. In approaching this part of the argument, I could wish that I were pos- sessed of a glossary or key to the phrases that have been used by the plaintiff's counsel. He seems to have argued this branch of his case with his Ovid in his hand, and influenced alike by the humour and the powers of metamorphosis of the Roman poet, he has turned almost every thing into the contrary of what it is, and what he has not so treated, he has turned into a joke. Ministers and elders, in solemn and devout assem- bly, have been represented as piquet guards in martial array — churches have become castles — black coats are turned into red coats — pacific doc- tors are made knights templars or hospitallers; and thread bare parsons are converted into grim visaged warriors, and mounted on barbed steeds, to fright the souls of fearful adversaries. While my learned friend him- self, like the gallant hero of La Mancha, couches his lance, and fiercely attacks the windmills, which have become giants, in his excited imagina- tion. Above all, he discovers a phrase of the mildest and most inoffen- sive character, addressed by the chair proper to a speaker improper, and he begrimes it into a denunciation the most bitter and awful that the fancy can conceive. It is almost impossible to find the case, so lost is it in the imagery of my learned friend ; but I will endeavour to disengage it, and present to you its bare facts and merits. Until a very recent day, there had been no dispute about the guardian- ship of the Church funds. For fifty years, all had been content that the venerable gentleman, who has been so frequently mentioned, should have a share of the control over them: all had been united in placing the most unreserved confidence in his integrity, piety, and good judgment. It was left for our opponents, in times of turbulence and strife, to quarrel with him, as they had with every act and every individual of the friends of order; to take the funds out of the hands of the fathers of the Church; to turn out from their places its sages, and degrade them, as totally unfit for office. Could any good come out of such proceedings? Of all the scandals which of late years the Church has known, none is to be com- pared to that which had its origin in the scenes of the 17th of May, 1838. We have seen two Christian assemblies sitting at the same moment, each claiming to be exclusively the General Assembly, each denouncing the pretensions of the other, asserting itself to be in the right, and its oppo- nent in the wrong, and mingling secular disputes with their religious exercises. Your business is to determine which of these was the genuine body, and I am happy that we all agree in considering this as the essential (question in the cause. MR. INGERSOLL'S ARGUMENT. 379 When the Assembly of 1S38 first met, Dr. Elliott was certainly the rightful Moderator, and Mr, Krebs and Dr. McDowell the rightful clerks. These gentlemen, with the rest of the Old-school brethren, are supposed, indeed, to have conspired to usurp the best places, the poets' corner, be- cause they went to the house in due season. Mr. Preston and myself could hardly get into the court room, this morning, but we have not yet thought of charging any of the auditors previously assembled with the guilt of conspirators. There was a moment certainly, on that third Thurs- day of May, when we were all, without doubt, in our right places. This was at the outset of the proceedings. That, the argument of our oppo- nents must admit. We were, at one period of its session, a part of the genuine body — there can be no doubt of it: we had all been duly sum- moned twelve months before, according to the requirement of the Con- stitution, and attended upon that solemn call. " 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 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 dissolve 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 pre- sent the apostolic benediction. — Form of Gov. Chap. XII. Sect. 8. The members of the Assembly of 1837 went in peace. Some little question has been suggested as to the effect of the termination of the one body upon the assembling of the second, though I do not consider this a material point. The termination is not an adjournment but resembles rather a dissolution, though not for all purposes. The Moderator of the last Assembly, acting under its authority, always takes the chair at the opening of the new session. The former, by anticipation, gives life to the latter. A like thing may be seen in the succession of our national assem- blies. Each House of Representatives is dissolved at the end of its short or second session; yet another house is called into existence; a vital, ger- minating principle is left to vivify the new body; rules are established for its organization, to avoid the disorder incident to a chaotic assembly, governed by no laws. The commissioners to the Assembly of 1838, after being duly summoned, duly appeared, with authentic vouchers from their respective Presbyteries, These are the component parts as regards the Assembly. In its formation the Synods are entirely overlooked, though as church councils they are an intermediation between the Gene- ral Assembly and the Presbyteries. These commissioners came duly selected and authorized; they assembled at the appointed time and place; and as the constitution requires, their meeting was opened by the appro- priate religious exercises, and admonitions, and by a solemn address to the throne of grace. These preparative steps having been completed, there ought to have succeeded — it was hoped that there would succeed — a harmonious organization. Thus far all had gone on smoothly: the body convened in the Seventh Church, was the true General Assembly, at least until the reorganization to which our opponents resorted upon the advice of counsel learned in the law — as Dr. Fisher tells us, by the ad- vice of many different counsel. They seemed to have believed that in 3gO PRESBYTERIAN CHURCH CASE. the variety as well as the multitude of counsel there was safety. Like Medea they put into the enchanted kettle a mixture of different ingre- dients— clerical and lay. They advised with others and acted for them- selves. A great mistake: they had better have trusted either to the law or the Gospel alone, and not have attempted to unite the two. This effort to mingle things so incongruous produced a ripple in the current of proceedings, and threw all into confusion. The late Chief Justice Tilgh- man once mentioned the not inappropriate circumstance of a gentleman, who desirous of having professional assistance in preparing his will, and yet reluctant to reveal his intentions to any one, inquired as to the law and then undertook to apply it for himself. The consequence was that the substance was spoiled, and the form left imperfect: the object which he intended to accomplish was defeated. We have now reached the dividing line between the two organizations. I have brought the proceedings down to the point, when the sermon hav- ing been delivered, and the constituting prayer offered, the Assembly was ready for business. What was the first business to be done? The rules of the Assembly are clear upon this point, and you will find the proper order of proceedings exemplified, if you will take up any of the minutes of previous years. Here are the minutes of 1637, the first that I have happened to lay my hands upon. " After public worship, the Assembly was constituted with prayer, in the Lecture Room of the Central Church, and had a recess until four o'clock. ♦^ At four o'clock the Assembly met. " The Standing Committee of Commissions reported that the follow- ing persons present have been duly appointed commissioners to this General Assembly, viz." Then follow the names of the commissioners. " The committee further reported that Mr. David B. Ayres, a ruling elder from the Presbytery of Illinois, had appeared, without a commis- sion; and that the Rev. Bliss Burnap, of the Presbytery of Champlain, and Mr. Henry Brown, a ruling elder from the Presbytery of Lorain, had presented commissions, without the signature of the Moderator. " These cases were referred to Mr. Cleaveland, Mr. Murray, and Mr. Ewing, as a Committee of Elections.^' Here are the minutes of 1832. " After public worship, the Assembly was constituted with prayer; and then had a recess until four o'clock, P. M. " At four o'clock, P. M., the Assembly met. " The Standing Committee of Commissions reported, that the follow- ing persons present, have been duly appointed commissioners to this General Assembly." Then follow the names as before. "The committee further reported, that Mr. Samuel Bayard, a ruling elder from the Presbytery of New Brunswick, has informed them, that he was appointed a commissioner, but had not his commission with him; and, also, that Mr. William Maxwell, a ruling elder from the Presbytery of East Hanover, has informed them, that he was appointed a commis- sioner, but had not received his commission. " Dr. Alexander, Dr. Hill, and Mr. Bliss, tuere appointed a Com- mittee of Elections, and these cases were referred to them.'' MR. INGERSOLL'S ARGUMENT. 33 j I don't care what General Assembly you refer to, the opening minute will be found the same. Our own good sense, independently of the tes- timony of fact, will tell us that such must be the course of proceeding. Such it has been in the organization of every Assembly — every one lite- rally, excepting that of 1835, and there the process was substantially the same. Dr. Miller had been written to by the Moderator of the last year, who was prevented from attending, and he preached the sermon. Then Dr. Beman took the chair, but afterwards another was put in his place, and the business proceeded as if the difficulty had never arisen. Still the Minutes of 1835 show that the appointment of a Committee of Elections preceded all other business. It must be so in every Assembly. They show, that, after things had been restored to their natural state by Dr. McDowell's taking the chair, in the place of Dr. Beman, " the Rev. "Eliakim Phelps, J. M. Krebs, and Mr. Charles Starr, were appointed a Committee of Elections, and the cases of the commissioners above re- ported were referred to them." Dr. Hill's testimony was perfectly con- sistent with this. He said that formerly the commissions were all read in the Assembly; but that the body became too large for this to be done without great consum.ption of time, and that therefore a Committee of Commissions had always of late years been appointed, who met on the morning of the Assembly's coming together, or on the day before, and in cases where there was no doubt reported the commissions as regular; but that all doubtful commissions were laid aside for subsequent examina- tion and consideration. In 1829 the rule was adopted which refers all the commissions, in the first place, to the clerks. They, however, have no absolute authority in cases of doubt: the rule orders that all doubtful cases be referred to a select committee. How could the matter be other- wise ordered? If the appointment of this committee were not the first business, what infinite wrong might be done. The clerks may be capri- cious in their rejection, though we shall show that there was no caprice in their conduct in 1838. The proper time then for the examination of doubtful cases, is before any other business is transacted: then the claim- . ants who have been rejected by the clerks have a right to be heard: the decision of the matter cannot be postponed. The appointment of a Com- mittee of Elections must precede every thing. Common sense, the ne- cessity and propriety of the case, independently of all rules and of estab- lished usage, must so determine. The clerks compose the preliminary committee — the Committee of Commissions; and some undisputed members of the house compose the Committee of Elections. If the former reject any commissioner, an ap- peal lies to the latter. What was the condition of Mr. Samuel Bayard in 1832, who, as appears from the minute I read a moment ago, had left his commission at home by mistake? The clerks say to him, "We can't help that: we have no choice. A rule is prescribed for us, and we must obey. We are obliged to refuse your application, but we refer you to the house." Suppose Mr. Bayard respectfully informs them, that he is very anxious to be admitted immediately; still the clerks dare not over- look the rule: if they could do so, they might as partizans, commit great injustice. He must come before the house, through the report of the Committee of Elections. If the clerks report but fourteen members — the number which the Constitution requires for the transaction of busi- 382 PRESBYTERIAN CHURCH CASE. ness, which Dr. Fisher, the Moderator of the New-school Assembly did not happen to know — if the clerks report but fourteen, these are sufficient to appoint the Committee of Elections. There is at present no danger that a majority will not be convened; but when the number requisite for a quorum was fixed at fourteen, the body was much smaller than now. If only fourteen of the commissioners are reported as having regular com- missions, and there are ten times fourteen who are not reported, or whose commissions are reported doubtful, the latter can have access to their seats only through the Committee of Elections, specially appointed for the very purpose of taking their cases into consideration. We have come then to the most important stage of the organization of the Assembly of 1838 — the period when the regular and ordinary course of proceeding was interrupted by the measures of the New-school party. Dr. Elliott was perfectly acquainted with the law and practice^ but the interference of these gentlemen prevented for a time his putting the law in execution, and on their heads must rest the blame. I shall not here repeat what has been so well said by my much abler colleague. I shall not attempt to follow him in a path which he has so profusely strown with flowers. The interference of which I speak, is certainly to be laid to the charge of the New-school party: this they readily acknowledge. In- deed, the plan had been carefully arranged before-hand — not only before the meeting, but a long time before. It had its origin in the "advice of counsel learned in the law" — words which rung in the ear of every wit- ness, and through the witnesses have rung in ours. They began to con- sult with counsel before they left their homes. They had done better, had they relied upon the dictates of their own consciences. Dr. Patton laid great stress on his being particularly desirous that his motion should be acted upon at that time. It was important that he should be allowed to make it just then; that it should be wedged in between the parts of a single act. He said twice, that he was particularly anxious that the mea- sure should be considered at that precise period — he urged the Moderator to entertain his resolutions immediately. That was the opportune mo- ment— the moment, which, as Mr. Cleaveland afterwards explained, had been selected under the advice of counsel learned in the law. The whole proceeding of the New-school was premeditated. For this, I would mere- ly appeal to Dr. Hill as authority. Though not a neutral, he says that during the preliminarj'- discussions on the subject, he had unequivocally condemned the measures then proposed and afterwards carried out. I suppose this was when they met, as they say, in open convocation. There was no harm in a preliminary meeting. The members of every body are accustomed to meet in private caucus. Where all concur, all assemble together: where there are two or more parties, each party holds its own meeting of arrangement. I cannot see any great harm in this. These gentlemen had all, as it seems, been consulting lawyers in regard to the measures proper to be adopted, and in the preliminary meeting for con- sultation, each came forward and laid the fruits of his inquiry upon the altar. But, however that may be, Dr. Hill says that he opposed the mea- sure. And why was this? He feared just what we complain of — a great scandal, a riot! Exactly what happened, Dr. Hill tells us he anticipated. They come now into court, and charge us with noise and riot, when they came to that house prepared to perpetrate an act, which one of their own MR. INGERSOLL'S ARGUMENT. 353 party declares, threatened and was calculated to produce it all. Dr. Hill expected a riot, and therefore was greatly excited: he feared that the pro- ceeding might bring disgrace upon the Church. He was so excited, that he listened most eagerly to catch every sound; and says that the burst of ayes was indecently "and offensively loud. He goes further, and says that he was surprised, that, as the Old-school did not vote down the measure, there were any noes at all, adding, very significantly, that at least they did not seem to be very well trained, or drilled — perhaps drilled was the word: it certainly suits Mr. Meredith's picture of the Old-school party drawn up in military array. There were, it seems, a parcel of noes — -just enough to contradict the assertion made upon the New-school Minutes, that the vote was unanimous, and to show that we at least had not been prepared by any great degree of drilling. A further elucidation of this matter is given by Dr. Fisher, who was the Moderator of the Assembly that met in the church on Washington Square. He says that the gentle- men of the Old-school appeared to be in a state of utter astonishment — as if they did not know what was going on. It is said that there is no man so brave, but that he may be alarmed by a sudden and unaccustomed danger. The Old-school sat still in mute astonishment; and those few individuals who cried "No!" were not well drilled! Yet Mr. Meredith styles his friends the '''unsuspecting brethren!" They had come together with their brief prepared, and with learned counsel at their elbows; they had carefully arranged a course of proceedings; yet they are quite unsus- pecting; they are taken by surprise, and entirely disconcerted! In their preliminary meeting, they determine to organize the Assembly in their own way, at that particular time and place; but, to their utter surprise, they find that Dr. Elliott don't concur in their views. These " unsus- pecting brethren" are brought at last to the confession, that they came determined to break up the Assembly at all events. We are told that Dr. Elliott refused to do his duty; that Dr. Patton had a right to rise, and make a motion; that his motion was not received, nor his appeal regarded; that Dr. Mason in like manner had a right to do what he did; and then Mr. Cleaveland to rise, pronouncing the conduct of the Moderator wrong, propose a new organization, and finally walk off surrounded by his New-school friends. But they certainly never antici- pated Dr. Elliott's decision. All that they say became necessary must have become so accidentally; for Dr. Elliott, who produced the actual crisis, was not in the secret. They now rest their proceedings upon the refusal of the Moderator to put an appeal — a thing that Dr. Fisher, and several of the witnesses have told you was entirely unprecedented, and could not have been anticipated. Yet their determination had clearly been formed; the paper which Mr. Cleaveland read had been carefully prepared, and they plainly had come determined to break up our Assem- bly at all hazards. Their proceedings were altogether independent of the refusal of Dr. Elliott to put an appeal. This was a mere afterthought. They were entirely disconcerted by this refusal, as we shall see in a sin- gle moment. Dr. Patton, the person appointed to deal the first blow, when told that his appeal is out of order, sits down without a word — is put out and yields. Dr. Mason, the next actor in the drama, in like manner sits down utterly disappointed, and unprepared for the emer- gency. Mr. Cleaveland does not rise immediately. These three were in 384 PRESBYTERIAN CHURCH CASE. a pew together, united in one purpose closely and firmly as fate. No doubt it had been fixed beforehand that they should rise in order; but Dr. Elliott's refusal had disconcerted their plans: they had wished and expected the Assembly to decide against the commissioners from the dis- owned Synods: no such decision being made by the Assembly, there was no colour for withdrawing. Mr. Cleaveland then does not rise immedi- ately upon the discomfiture of Dr. Mason. A man on the outside of the ranks, where nobody was at hand to pull him down if he was wrong, next arose. This was poor Mr. Squier. Like the donkey in the fable, who had seen the lap-dog fawning upon his master, he thought he had a right to get up too. His Honour will tell you he had no right; and Dr. ElUott told him the same and nothing more, when he said, " we don't know you, sir." Mr. Squier rises, however, at the wrong time, and spoils the whole proceeding. Next rises Mr. Cleaveland and reads his paper. Mr. Cleaveland and Dr. Beman, the most prominent actors in the scene, are not here. Even their depositions which were taken have not been read. How do we know the fact that these depositions have been taken; that they have been from the first in the hands of the counsel, and yet not communicated to the jury? These were the only men that could have settled conclu- sively all dispute about the reversal of the question; they alone know certainly whether they were or were not reversed. They can say posi- tively, "we did," or " we did not, reverse the questions." The other witnesses can only tell us that they did, or did not, hear the reversal. Yet these men are not produced; and their depositions, though here in court, are not exhibited. How, I ask, do we know this? why Dr. Fatten told us so. Otherwise we would not have been at liberty to mention the fact. Dr. Patton was asked by my colleague, Mr. Hubbell, " Have you read the depositions of Dr. Beman and Mr. Cleveland?" Dr. Patton is evidently a non-committal man, and he answered, " I have seen them." "But seeing is not reading. Have you read them?" " Yes, I have read them." You know then, gentlemen, that these depositions have been taken, and that what the other witnesses could know but imperfectly, Dr. Beman and Mr. Cleaveland could have settled conclusively. Here were their depositions in the hands of the opposite counsel, or circulating among their clients. Dr. Patton read them, and so I suppose did all the New-school witnesses; yet by the New-school party they are withheld, though you certainly had a right to see them. The other side had no right to keep these back, and substitute the evidence of other witnesses. It is a well established maxim of the law, that the best evidence of which the case admits must be given. What was the best evidence here? Plainly the evidence of the men who themselves did the things in ques- tion. Why was not this ofiered in the shape of the depositions taken? The opposite counsel have tried to get out of tlie diificulty, by asking witnesses where these persons are. Certain it is that they are not here to pass through the crucible of a cross-examination. It appears only that one has gone on a sea voyage, quite recently; and that the other, Mr. Cleveland, is at Detroit; though it has not been said — the counsel well knew it was not so — that their testimony was therefore inaccessible. Nothing is more common than to take the depositions of witnesses that are going abroad; and we send even to China to take them there, and to MR. INGERSOLL'S ARGUMENT. 385 almost every part of the globe. You know, however, that in this case de- positions were actually taken — that they have been from the first in the possession of the opposite party. Mr. Cleaveland read a paper too, upon the language of whiqh the whole case may eventually turn.; but this paper we have not yet seen. As to some of the phrases which it contained all are agreed; as to others the witnesses differ; the whole, nobody has been able to communicate. If Mr. Cleaveland had been examined we should know certainly whether the paper could or could not be produced. But the withholding of this testimony must redound to their own mischief. "While going to do a wrong, they fall into the very pit prepared for others. May I here be allowed to apply the language of Sternhold and Hopkins, in one of their psalms? "He digs a ditch, and delves it deep, In hope to hurt his brother; But he shall fall into the pit. That he digged up for other. "Thus wrong returneth to the hurt Of him in whom it bred; And all the mischief that he wrought, Shall fall upon his head." The first measure of importance that took place was the call made by the Moderator. For what? It is said there were some differences in the statements of the different witnesses. These were not material. But there is a gentleman able to enlighten us, and his testimony, I be- lieve, was given with propriety and candour. That gentleman was Dr. Mason. Our opponents themselves raised this point, and vouched Dr. Mason as a witness. What sort of commissions had the Moderator called for, when those which had been already presented to the clerks and rejected, were offered in professed answer to the call? Dr. Mason certiiinly knows best how he understood the call, to which his offer is said to have been a response, and his understanding of it shall be taken. He says that the Moderator stated, that if there were any commissioners in the house whose commissions had not been presented., now was the time to present them. That this was the object of the call cannot be doubted, when it is considered that the commissions to be presented in accordance with it were to be referred to the Committee of Commissions, and not to the Committee of Elections, unless after the former had re- ported unfavorably upon them. It was intended for gentlemen coming in after the session had commenced. You recollect that one such was examined as a witness for the other side. He arrived at the last moment, and not knowing the plans of the New-school really voted, no, on the first question put by Mr. Cleaveland. Like Sir Francis Wronghead, who doubted that he had cried, no, when he ought to have cried, aye. He was a country member and had not been properly drilled. There were others dropping in in like manner, and the Moderator's call was intended for such — those who had not had an opportunity of presenting their commissions to the clerks. I am perfectly content to take Dr. Mason's testimony. Mr. Hubbell reminds me that Mr. Meredith was mistaken as to Dr. Elliott's testimony upon this point. Dr. Elliott agrees with Dr. Mason in regard to the language of his call: there is no 49 386 PRESBYTERIAN CHURCH CASE. material difference between the two witnesses. But we have from Dr. Mason a candid acknowledgment that he did not consider his offer a response to the call of the Moderator; that he understood that call to be for commissions which had not yet been presented. There is another thing which it is necessary that you should recollect. It seems that there was at least one individual the Rev. Mr. Moore, who came forward, upon the call of the Moderator, to present his commis- sion, which he had not before had an opportunity to present. I re- fer you for an explanation of this matter to the testimony of Dr. Elliott and Mr. Krebs. It seems that Mr. Moore came in at a late hour, and upon the call's being made, rose ^ and walked forward to the clerks' table, but he found that his commission had in his haste been left behind. He went back to his lodgings for it, and actually presented it at a subsequent stage of the proceedings. He rose to re- spond to Dr. Elliott's call, and he certainly had a right by virtue of the rules of the Assembly, to demand that his name should be en- rolled at that moment, and before any other measure -was adopted. But at the same moment Dr. Mason rises and interposes his offer and resolu- tion. (Here the jury were allowed a recess often minutes.) I hold in my hand the rules adopted in 1826, to which Dr. Hill in his testimony referred. Mr. Ingersoll read the rules. — Vid. ante. p. 156. The appointment of this Committee of Elections was the thing in or- der. It was prevented by the proceedings of the New-school, which assumed the principle that all the commissioners present had a right to vote, in the first instance, whether their commissions had been examined by the clerks or not. Now suppose two persons came to the Assembly both claiming the same seat. There are a principal and alternate named in each commission: suppose that in some case, these two, travelling by different roads had arrived in Philadelphia, and on the usual question being put to them, each should claim a place. Of course the matter must be referred to a committee — the Committee of Elections. This is the case in every deliberative assembly. And the committee though it may be immediately appointed cannot always immediately report: for obvious reasons considerable time is sometimes consumed in the examination of the case. In Congress, frequently, half a session passes while the right to a seat is under dispute, and in the mean time the individual holding the formal commission, keeps the place to the exclusion of his antagonist, though the latter may eventually prove himself entitled to it. The cir- cumstance of the committee's not being able to report immediately, though it may be a great inconvenience and hardship to the rightful claimant, certainly will not justify his rising upon the floor and demanding his seat, or seizing upon it before the committee has decided. Always, since the adoption of the rules which I have read, until the year 1838, the appoint- ment of a Committee of Elections has been the very first business after the doubtful commissions have been reported by the clerks and laid upon the table: there never before had been an attempt made to set aside the established order. While Mr. Moore was thus walking forward to present his commis sion, another gentleman rose and offered a bundle of commissions, which MR. INGERSOLL'S ARGUMENT. 3§7 he knew perfectly well were not of the kind for which the Moderator had called; for he has sworn that he understood that call to be for com- missions that had not yet been presented. Dr. Mason rises, and presents certain commissions. He knew very well that he and his coadjutors were engaged in an attempt at revolution: they meant to violate the es- tablished order. He deliberately trampled on the rights of every com- missioner in the house, who had not had an opportunity of presenting his commission to the clerks. All the witnesses who have testified as to this point, agree, that there was at least one such — Mr. Moore — and that is sufficient for our argument. Dr. Mason himself says the Moderator call- ed for one sort of commissions, and that he immediately rose and pre- sented a hat full of another sort. Then he clearly violated his duty, un- less his duty was to make a revolution. He was called to order, and told that his motion was out of time. When a man is on the floor, and another rises saying, " I rise to order," instantly the former must take his seat, and await the decision of the question of order. Nothing will justify a disregard of this rule; in enforcing it the Moderator is a mere organ of the house: it is not his law but the law of the house. When king Charles I. in the course of those proceedings which at length brought his head to the block, entered the House of Commons and took the Speaker's chair, all the members sat dumb; and when he asked, "Is'nt there a quorum present?" "May it please your majesty," replied the Speaker, " 1 have no eyes or ears until I take the Speaker's place." The Moderator had no choice: he was bound to enforce the law pre- scribed by the house, of which he was the mere servant — the eyes, the ears, and the hands. Dr. Mason appealed from his decision, that appeal also was declared out of order; he then acquiesced, and instead of raising a question of privilege, took his seat. He had got through the ABC of his instructions, and could go no farther, an unexpected difficulty having risen. Thus two of the confederates had been disposed of. Mr. Squier came next, and then the proceedings by which our opponents say Dr. Elliott was turned out of office. There is a curious case, reported in Croke Charles, 181, which happens only to be the converse of the present. It was the case of an information against Sir John Elliot, Denzell Hollis, and Benjamin Valentine, not for attempting to put the speaker out of the chair, but for conspiring to keep him in the chair. Professor Maclean will be amused with the latin of the reporter, which is something like that of one of the witnesses who could not recollect the " very ipsissima words" of Dr. Elliott. "AN INFORMATION was exhibited against the defendants by THE Attornet General, reciting, 'That a Parliament was summoned to be held at Westminster, decimo septimo Martii, tei'tio Caroli regis ibid, inchoat. and that Sir John Elliot was duly elected, and returned knight for the county of Cornwall, and the other two bur- gesses of parliament for other places, and Sii^ John Finch chosen speak- er; that Sir John Elliot, ' macA/nan-s et intendens, omnibus viis et modis seminare et excitare, discord, evil will, murmurings, and sedi- tions as well versus regem, magnates, prselatos,proceres, et justiciarios suos, quam inter magnates, proceres, et justiciarios, et reliquos sub- ditos regis, et totaliter deprivare et avertere regimen et gubernation- em regni Angliae tayn in domino rege quam in consiliariis et min- 388 PRESBYTERIAN CHURCH CASE. istris suis cujuscunque generis, et introducere tumultum et confu- sionem in all estates and parts, et ad intentionem that all the king's subjects should withdraw their, affections from the king, the twenty-third of February, anno quarto Caroli, in the parliament and hearing of the Commons, falsa, malitiose, et seditiose, used these words, ' The king's privy council, his judges, and his counsel learned, have conspired together to trample under their feet the liberties of the subjects of this realm and the liberties of this house.' And afterward, upon the second of March, anno quarto aforesaid, the king appointed the parliament to be adjourned until the tenth of March next following, and so signified his pleasure to the house of commons; and Ihat the three defendants, the said second day of March, 4 Car. 1, malitiose agreed, and amongst themselves conspired to disturb and distract the commons, that they should not adjourn themselves according to the king's pleasure before signified; and that the said Sir John Elliot, according to the conspira- cy and agreement aforesaid, had maliciously, i7i propositum et inten- tionem prsedict. in the house of commons aforesaid, spoken these false, malicious, pernicious, and seditious words precedent, &c.; and that the said Benzell Mollis, according to the agreement and conspiracy afore- said between him and the other defendants, then and there falso, mali- tiose, et seditiose, uttered hxc falsa, malitiosa, et scandalosa verba prsecedentia, Sfc; and that the said Denzell Hollis and Benjamin Valentine, secundum, agreamentum et conspirationem prsedict. et ad intentionem, et propositum prsedict. uttered these words upon the second day of March after the signifying the King's pleasure to adjourn; and the said Sir John Finch the speaker endeavouring to get out of the chair according to the king's command, they vi et armis, manu forti et illicito, assaulted, evil intreated, and forcibly detained him in the chair; and afterwards, he being out of the chair, they assaulted him in the house and evil intreated him, et violenter manu forti et illicito drew him to the chair and thrust him into it, whereupon there was great tumult and commotion in the house, to the great terror of the commons there assem- bled, against their allegiance, m maximum contemptum, and to the disherison of the king, his crown and dignity: for which, &c." This was something like the course pursued in the church in Ranstead Court, except, as I have said, that the conspirators attempted to keep Sir John Finch in the chair, instead of putting him out. The consequences too were a little different. While the New-school men got off without suf- fering any penalty, hear what became of Sir John Elliot and his friends. " Afterwards divers rules being given them to plead, and they refusing judgment was given against them, viz: against Sir John Elliot, that he should be committed to the Tower, and should pay two thousand pounds fine, and upon his enlargement should find sureties for his good behaviour and against Hollis that he should pay a thousand marks, and should be imprisoned and find sureties, &c.; and against Valentine, that he should pay five hundred pounds fine, be imprisoned, and find sureties." Now, if Dr. Beman and Mr. Cleaveland had suffered such punish- ment, that would be some reason for their not being here to testify; though it would hardly account for the absence of their depositions. A word, and but a word, in regard to another matter; for I shall not repeat what my colleague has already so ably said. I want to know, MR. INGERSOLL'S ARGUMENT. 3g9 gentlemen, what language could have been more kind, decent and for- bearing, then the language of the Moderator to Mr. Squier, He did not tell him to sit down, or to begone from the place to which he had no shadow of a claim. He says simply "We do not know you, sir" — evi- dently meaning, " You are not a recognised member." He did not mean to utter that terrible denunciation imputed to him by Mr. Mere- dith, The addition of the word "sir," to which most of the witnesses swear, removes all difficulty in interpreting the language. Mr. Meredith endeavours to make a goat of Mr. Squier, but certainly, Dr. Elliott, with all his courtesy, would not in addressing a goat, have treated him so en- tirely like a gentleman. These gentlemen come like shadows, so depart. You see that I am only gleaning: the harvest has been already reaped. Next came Mr. Cleave'land's turn, and he was guilty of a flagrant violation of order in not addressing the Moderator. That rule every body understands: if he had been a mere novice in the parliamentary school, he must have been aware that on rising he should address himself to the presiding officer. In the House of Representatives, in each state legislature, in almost all parliamentary bodies, this rule prevails. The speaker of any of them will not listen to a member or give him the floor, if he does not preface his remarks by " Mr, Speaker," I will read the rule of the Assembly upon this subject, " Every member when speaking shall address himself to the modera- tor, and shall treat his fellow members, and especially the moderator with decorum and respect," Jjppend. to Const. R. 21, Now, Mr, Cleaveland did not obey this law: all the witnesses concur upon that point. Dr. Fisher, especially, gives distinct testimony that he did not address the Moderator; who therefore was bound to pay no at- tention to him: he never had the floor; he never made a motion at all. What the others did, he did not: he don't pretend that he did it. The act of Mr. Cleaveland was the great act of the drama: he struck the first decisive blow; and if that was improperly directed, nothing at all was accomplished. If the initiatory proceeding was out of order, the whole was of the same character. If Mr. Cleaveland did not address the Mod- erator— and that he did not mean to address him is evident; for though he at first looked towards him, he soon turned his face away to the west side of the house — he no more had the floor than a boy who had been sent to carry a glass of water to a member, or than the serjeant-at-arms when proceeding to make an arrest. There is one well known exception to the general rule. In the British House of Lords, a speaker on rising addresses his assembled peers, and not the Lord Chancellor who presides. In almost every other deliberative body the presiding officer is addressed. But farther, it is in evidence that Mr. Cleaveland said, that it was no matter in what part of the hou.se the organization should take place. They had been advised by counsel that it must take place then and there — they acknowledge the necessity, and yet practically disregard it. The next position which I take is, that the question proposed by Mr. Cleaveland was an impracticable question. He not only had not the floor, or the right to put any question at all, but that which he did put was utterly impracticable. I do not intend now to discuss the position of the chair — whether that was in the middle or at the head of the aisle — or 390 PRESBYTERIAN CHURCH CASE. whether it was moved that Dr. Beman should be Moderator, or that he should take the chair. But there is certainly no doubt that there cannot be two presiding officers in- the same Assembly at the same moment. When it is moved that Dr. Beman shall take the chair, while Dr. Elliott, whose removal is contemplated, is still in it, the natural question is that of king Richard, " Is the chair empty?" " Is the throne deserted?" " Is the king dead?" You may first degrade a monarch, and then seize his sceptre. Cromwell did not usurp the sovereign power, until Charles I. had been brought to the block. Usurpation followed the dethronement of Louis XVI. It is impossible that two persons should occupy the same place at the same moment. There cannot be two Presidents of the Uni- ted States in office at once. Two stars hold not their motion in one sphere. Mr. Cleaveland could not attain any practical result at a single leap: he must proceed by certain regular steps. In the first place, the old Moderator was to be removed. This having been done, the chair would have been empty, and a motion to put Dr. Beman in it in order, though the question could have been put only by the clerk. The motion made, therefore, was perfectly impracticable and premature. But they proceed to induct the new Moderator into office without the necessary preliminaries which the rules prescribe. This point I shall al- lude to in very general terms: it is of great importance that it should not be altogether overlooked. Whenever a new Moderator is chosen, no matter under what circumstances, the former Moderator must instruct him in his duty of submission to the rules of the Assembly, without this, he is no Moderator at all. "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 in the records of this Assembly; which I doubt not will be carefully observed by both, in conducting the business that may come before you." Assem. Dig. p. 17. Then comes a long string of rules, occupying three pages in the Digest, every page, line, and letter of which are to be read to every new Mode- rator. Then the former Moderator is to say, "Now, having read these rules, according to order, for)'Our instruction as Moderator, and for the direction of all the members, in the manage- ment of business — praying that Almighty God may direct and bless all the deliberations of this Assembly for the glory of his name, and for the edification and comfort of the Presbyterian Church in the United States — I resign my place and office as Moderator." Now, how long would it take to read these three pages of rules to a new Moderator, however rapidly it might be done. Here were two new Moderators, as it is alleged — Dr. Beman first and Dr. Fisher second; but to neither of them was one word of the rules read. Dr. Fisher says, " Dr. Beman told me that my conduct was to be governed by the rules thereafter adopted;" but Dr. Fisher did not know how many members made a quorum. No man could be acquainted with the regulations of any house without time and attention — close and re-invigorated attention. MR. INGERSOLL'S ARGUMENT. 39 £ Dr. Fisher seems to have known nothing about them. The provision for thus having them read to each new Moderator, supposes such a deficiency of knowledge: they are to be brought before each, line upon line, pre- cept upon precept: in this case, they were all omitted. In every such proceeding there must be a connected chaiii, and each link must be firm and secure, or the whole falls to pieces. Our opponents must show that their revolution was regularly and legally effected, since they choose to claim for revolution the sanction of law. Next, it is at least a matter of doubt, whether, in point of fact, the vari- ous questions were reversed. I do not consider this a very important matter, but the opposite counsel seem to rest much upon it. I say, it is at least doubtful whether the questions were reversed; and we certainly are not to be ousted upon a doubt. The testimony against the fact of reversal is not merely negative, as my learned friend would have you believe: this is a great mistake. Mr. Lowrie, who has been long actively engaged in legislative bodies, who was eleven years secretary of the United States' Senate, tells us that he is confident the question was not reversed, for there was not sufficient time for the reversal. Here then are two posi- tive contradictory assertions, though I feel sure that there is no perjury on either side. One says that the question was reversed: another, that there was not time for the negative to be put. We are told, that when sounds become familiar, they do not impress the recollection; that when a sound is expected, as a thing of course, it is apt to pass unheeded; and the striking of the clock above us is given in example. Permit me to observe, that the philosophy and theory of sound are not as has been stated. It is the monotony of a sound which produces the effect described. A monotonous sound tranquillizes and lulls to sleep, as, for example, the pattering of rain, or the noise of the sea dashing against the shore, or against a ship. It is on account of this monotony and regularity that the hourly striking of the clock fails to arrest attention. This fact was exemplified the other day, when my colleague was speaking. The whole house were listening to him with wrapt attention, charmed by the force and beauty of his eloquence; when, suddenly, the very bell that tells un- heeded the passing hours, sounded, in a different tone, the alarm of fire, and all heard it in a moment. We heard the first unusual stroke of the familiar bell, and many flocked down from the court-room. On the same principle, it is said, that during some of the continental wars, the life of a sentinel, who was charged with sleeping on his post, was saved by a dis- tant clock's having struck at midnight thirteen, instead of twelve. His annunciation of this unusual fact proved his watchfulness, while the ordi- nary tolling of the midnight bell would probably have escaped his notice. There are two persons whose testimony would conclusively settle this question of tlie reversal — would place the matter beyond dispute. They alone who put the motions in the affirmative, and in the negative — if in- deed they were put in the negative at all — can satisfactorily establish the fact. But unfortunately they are both absent. Gentlemen, there is one point in regard to which I have no doubt all of you will agree. Whether the several questions were reversed may be doubtful, but whether a fundamental right of the members of every de- liberate body — the right of debate, was extended to the members of the Assembly in this instance, is not at all dubious. No opportunity was 392 PRESBYTERIAN CHURCH CASE. given to debate these most extraordinary motions: no one of the witnesses has sworn that such opportunity was afforded. They followed each other in such quick succession, that a gentlemen skilled in legislative proceed- ings says there was not time for the reverse to be put: of course there was no time allowed for debate. Yet that every member of such a body has a right to debate questions like these, no one can for a moment doubt. Those who murmur because in 1837 the discussion of certain resolutions was closed by the previous question, after days of deliberation, would not allow us hours — no, not even minutes or seconds, to deliberate upon these all important subjects. If the questions were reversed, they were reversed instantaneously. Mr. Cleaveland did not give time for debate, or ask, "Are you ready for the question ?" or receive a call for the ques- tion, and put it distinctly, first in the affirmative, and then in the nega- tive. In direct violation of the rights of the members to whom it is said to have been addressed, all opportunity for debate was denied — debate which is the very essence of deliberation. If no opportunity was given for debate, the Assembly ceased, for the time, to be a deliberative bodjr. A word or two upon a point which has been already urged by my colleague: supposing the question to have been, in point of fact, reversed — did those who must have voted in the negative, if they had voted at all, hear the negative put, or know that it was put? Make an inquiry of a sleeping man, and there will be no answer; of a paralysed man, and there will be no answer; above all of a dead man — you will receive no answer. Every one of these men might as well have been dead, so far as regards hearing these questions. All who, as we may suppose, were to vote in the negative, and who, undoubtedly, were a large majority — all of them whom we have examined, say, " We did not hear the ques- tion reversed: we could not have voted if we had desired." The wit- nesses on the other side say indeed that they heard; but are you to put the hearing of A for the hearing of B? Besides, the New-school party were near Mr. Cleaveland and Dr. Beman — immediately surrounding them. Dr. Hill says that he was near enough to Mr. Cleaveland to have put his hand upon his shoulder. The little clique that was collected round the main actors may, naturally enough, have heard and seen what was not perceived by individuals, sitting, as most of the Old-school party were, at a distance. There is not any discrepance in the testimony of the Old-school upon this point: all of them, to a man, have declared that they did not hear. What has been said about Dr. McDowell's not giving testimony on this point is completely answered, when we show that he was not a member of the Assembly — only a clerk. For when the ques- tion is whether a motion or reversal was distinct enough for an intelli- gent vote by the whole house, we need only ask those entitled to vote whether they heard it. Dr. McDowell's testimony, whatever it might have been, would not have reached this substantive point: he had no right to vote. The fact, however, was that the inquiry had been before pushed to satiety; his honour the judge seemed to fear that the case would be interminable; therefore scarcely any witness was allowed to go over the whole ground. A doubt as to this matter were enough; but there can be no doubt that a great number of those who were entitled to vote, had no power to exercise their right. One fact can hardly be dwelt upon with too much emphasis. Every man of the Old-school party in the MR. INGERSOLL'S ARGUMENT. 393 house, who has been examined, says that he did not know until the after- noon, or the next day, that Dr. Fisher had been appointed Moderator. How isit possibletopresiime the acquiescence of these gentlemen,inthe measures of the New-school, when, to a man, they come and tell you, that they did not know that fact, until they learned it from their friends or the news- papers next morning. I agree that if they would not hear, it was another matter, that if they had put cotton in their ears, or were slumbering at their posts, they could not complain; but such was not the case. All tried to hear. Who then is responsible for the riot and disturbance which prevented them from hearing? Suppose that each party made a noise, which was the primiim mfthile — the first cause? Were not those who caused the disorder at least as guilty as the others? A case of riot is ap- plicable here as an illustration. A quiet and orderly set of men had been a'ssault6d and beaten by another set; but it was decided that the proces- sion of the former was calculated to provoke disturbance, and though it did not excuse those who struck the blow, made all rioters together. If then, the New-school caused the disorder and noise, they have no right to complain of it, and still less are they to be allowed to derive any advan- tage therefrom.. But not a single person, if I have read the evidence aright, charges a particle of disorder upon the Old-school. This may seem a bold position; yet I feel confident that I shall be able to substantiate it. Not a single act of disorder has been brouglit home to one of theni. There were to be sure cries of order from some of the Old-school; but I have yet to learn that calls for order can be disorderly. There is a story that stamping, scraping, and hissing were heard to proceed from the south-western part of the house; but several persons who sat in that neighbourhood say that there was nothing of the kind. Who made this noise? I don't know, and I am sure you do not. I will not pretend to charge it upon the New-school, but I deny that it proceeded from members of the Old- school, till it is brought home to some of them. Was it made by Mr. Boardman — Mr. Breckinridge — Dr. Miller? They all were in the accused neighbourhood and declare that they made no such noise, and knew no one that did. Dr. Miller, in the course of the cross-examina- tion denied emphatically any participation in it. Mr. Breckinridge rose and said, that the business of the Assembly had better be suspended until the disturbance had passed over, as the Moderator had before tried in vain to restore order. These all have entirely exculpated themselves. There has not one single act been proved against a single individual of the Old-school, that tended to disorder, or was improper. I say, farther, that there was much disturbance on the other side. Dis- orderly acts could be fixed upon many, but I select only a single in- stance— that of Mr. Duffield. A young gentleman, who, I believe, was unexpectedly examined, and who declared positively that he knew Mr. Duffield, having seen him on various occasions, testifies that he saw him, at the time of which we are speaking, commit several acts of gross dis- order, with a cane that he held in his hand. He declares that he plainly saw the cane, and acts of extreme disorder. The opposite counsel eager- ly inquired, where this witness lived, and I was called on to be responsible for his appearance next day. He was told to come back next morning and was here accordingly, but was not brought to the stand. The coun- sel, hQwever, brought forward Mr. Elmes to state, that Mr. Duffield had SiQ 394 PRESBYTERIAN CHURCH CASE. once lodged at his house, and that he did not usually carry a cane. I might, in the same way, prove that Dr. Elliott was not in the habit of holding a hammer in his hand^ but this would not disprove the evidence that he had a hammer when presiding as Moderator. The New-school party meant to create a disorder. They resorted to measures of revolution, more or less violent — the consummation of all disorders. They alone, therefore, were criminal: we are clear of guilt. Whether Mr. Duffield carried a cane or not, it is proved that he voted, which in him was an act of disorder. The ayes, says Dr. Hill, rang a peal indecently and oifensively loud; but if the gentlemanly Mr. Duffield, voted in the stillest, smallest voice; if he augmented the general flood by only a single drop, he was just as disorderly, as if he had made use of his cane in the way described, or stood up on the back of a pew. All ques- tions about the cane may be dispensed with. It is proved conclusively that he voted — this — in him a gross disorder — is fastened upon him, and that he was disorderly is sufficient for our purpose. A host of witnesses — all of the Old-school, and most of the New, tes- tify that they heard noises of every kind misbecoming such an Assem- bly— stamping, scraping, hissing, and ayes very loud and offensive; that they saw some persons standing even on the tops of the pews, others moving down the aisle, and a number at the invitation of their ringleader retiring in a mass to a distant part of the house. All this made the pro- ceedings void. Where will you find scenes of such disturbance and confusion, accompanied by effective action, in legislative bodies? Not in all the wildest disorders of our own House of Representatives, at Wash- ington, or of the British Parliament. Yet they are mere political assem- blies, not purified and sublimated by spiritual influences. There is still another point with which I will venture to trouble you. How was the transition to be made from the religious assembly to the re- gularly organized deliberative body? The clerks were in the first place to make out the roll. The rules of 1826 require that the Committee of Commissions should prepare it, upon examination of all the commissions presented. The rule of 1829 merely appoints the clerks a standing Committee of Commissions. Now, who were the clerks of the pseudo Assembly? Dr. Mason and Mr. Gilbert. Did they ever examine all the commissions? They never in the world made a roll. It must be made out on actual inspection: the clerks cannot take the mere declara- tions of the members themselves. But neither of these gentlemen in- spected even a majority of the commissions. Mr. Gilbert says, that he formed his roll by correcting a list which he had before made out, by Mr. Krebs', and by joining this list to another containing the names of the commissioners from the four Western Synods; that he had made no examination of commissions, or had examined very (ew. Dr. Fisher says, "We acted upon the principle that we had superseded the Modera- tor and clerks, and were going on under another organization." Re- member that this was a deliberative Assembly, and the highest tribunal of the Church, created for the purpose " of reproving, warning, or bear- ing testimony against error in doctrine, or immorality in practice;" "of superintending the concerns of the whole Church" — I am speaking the language of the Form of Government — " of suppressing schismatical contentions and disputations; and, in general, of recommending and MR. INGERSOLL'S ARGUMENT, 395 attempting reformation of manners, and the promotion of charity, truth, and holiness." Yet we find a body claiming to be this august Assembly, disregarding all rules of order, every sort of principle, and overturning their whole code of laws in a single moment. How disgraceful is such strife among brethren — the fratrum ira which the heathens regarded with so great abhorrence. Anger is carried to the extent of treason to their faith. Yells of "Aye!" clapping, and hissing are all heard sound- ing loudly above the general murmur of the tumult. What valid mea- sures could be adopted in the midst of that scene of disorder and confu- sion? Nothing could be regularly done. Inter arma silent leges. During this season of violence there was no deliberative Assembly in that church. All law was trampled upon and set at defiance. The de- cency of the house of prayer was forgotten, and it was converted into the likeness of a den of thieves. Uproar and riot had taken the place of that grave deportment, that ChrisVian order, which the laws of God, as well as all human laws, enjoined. Suppose that this disturbance came alone from the gallery: what would have been the course adopted in any other Assembly.? The gal- leries would instantly have been cleared, the intruders turned out. You have probably seen such interruptions even in courts of justice. Per- haps a drunken man comes in, and for a moment puts every thing into confusion. The proceedings are stayed until he is taken into custody and removed. There is no difficulty in giving true interpretation and effect to the condition of a deliberative body thus disturbed. Its proceedings are suspended. Its existence is for the moment annihilated. It stands still, as it would do during a brief recess for the purpose of refreshment or repose. A few rebellious spirits cannot at such an interval combine for any effectual purposes of mischief, in the absence or without the suffi- cient knowledge of their well disposed associates and fellow members. Their doings are merely void. Otherwise gross injustice would prevail. Certain armed soldiers were once introduced into the Roman forum, un- der whose influence the spirit of Cicero quailed, and Justice dropped her sword and her scales together. When in an earlier period of the same classic history, the Gauls broke into the senate house, and plucked a conscript father by the beard, deliberation rested, while the hoary headed patriot struck the insolent intruder to the earth. These were secular assemblies, which met in Pagan times. Yet the effect of their interruption was such as I have described. In a religious convocation — in an age of refinement, which boasts the influence of a Christian spirit — in an Assembly devoted to the cause of peace, bowing habitually its knees in prayer — bending its bodies to the cross, such a state of things as has been described was perfectly incompatible with any measure of validity. It matters not who were the loudest of the rioters— bystanders, or applicants for admission, or admitted members — partizans of one side or partizans of the other. Riotous proceedings are brought home to the Assembly. Tumultuous disturbances of the peace occurred in the midst of the legislative hall. All were affected by the results, although many may have been innocent of the misdeed. The irregularities of a minori- ty in the Assembly invited the greater irregularities of bystanders, who were tempted, instigated and led on by the evil precedent and example of these reverend but misjudging and misguided brethren. 396 PRESBYTERIAN CHURCH CASE. The question submitted is, whether these partial disorders are to give success to the designs of those who create them, or whether they are merely to pass off like vapours and leave the renovated atmosphere un- affected by their brief existence. According to the decision of it will the one or the other of the parties prevail. Should the plaintiffs fail to convince you of their claims, little inconvenience and no loss can be sus- tained. They will voluntarily meet in '39, as they voluntarily met in '38, a separate body, without the scandal of discord and strife which prevailed when the two parties met together. In future years they will continue to maintain the position which they have selected, undisturbed by any of those from whom they have chosen to depart. If they are disposed at any time to return to the ancient Church with amended alle- giance, they will be received with open arms. If in the mean time they desire to be merry in their separation, they will always find in the fer- tility of our friend who has so ably advocated their cause, a jest suited to their wants. Should the defendants lose their cause, in which their interest is deep and lasting, the consequence to them will be widely different. Dearer to them than life is the Church of their affections. Closer to them than the ties of nature are the systems to which they became devoted in their in- fancy, which they believe to be connected with their immortal hopes. Every thing, they are persuaded, most valuable to them on earth, will be affected by the decision of this cause. If they are declared to be no longer members of the Presbyterian Church, and its balmy influences have indeed been withdrawn from them, the iron will enter deep into their souls. Their future days will be filled with sorrowing for what they have irrevocally lost. They can only hang their harps upon the willows, and weep, like Rachel, for that which cannot be restored. Court adjourned. 397 MR. WOOD'S ARGUMENT. SATURDAY MORNING, March 23d— 10 o'clock. Gentlemen of the Jury — After having floated for several days in the upper rejjjions of air, in following the learned counsel on the other side, in their flights of fancy and of oratory, you may find it difficult to come down again to the earth; but I assure you that you will be under the ne- cessity of coming down, for I shall not attempt to follow them in their airy flights: I am not accustomed to being perpetually upon the wing. I shall confine myself to a plain statement of facts and arguments, and shall condense my remarks as much as possible, saying nothing more than suf- fices for the ellucidation of the case, and the discharge of my duty to my clients. This is incumbent on me, in consequence, not only of your already exhausted patience, but also of my own indisposition, which ren- ders it almost impossible for me to proceed at all. A variety of matters have been introduced here, which are, in my opinion, in a great measure irrelevant to the real question which you are to decide. A great mass of testimony has been introduced which might have been dispensed with. The learned counsel on the other side, in claiming a majority of clients, have seemed to think it necessary to have a majority of witnesses. Why, gentlemen, we could have gone on to examine witnesses for months, but our object was to save time, and we therefore dispensed even with the cross-examination of their witnesses, in order to bring the case within reasonable limits. The opposite counsel have relied much upon the fact that the testimony of Dr. Beman and Mr. Cleaveland was not introduced. They are absent, but, as the learned gen- tleman has stated, their depositions were taken. Why have not these been read? Why was not Dr. Nott's deposition read? You recollect that all these were taken before the controversy here commenced, and they do not touch the precise points which have been since started by our opponents. When I came here I did not dream that the case would be made to turn upon these nice minutiae of order and parliamentary dis- cipline. The depositions were taken on other topics: we could not pos- sibly anticipate the course into which the proceedings would fall. This was the reason why Dr. Nott's deposition was withheld. Mr, Ingersoll. We refused to offer that in a mutilated form, after a part had been rejected. Mr. Wood. I say that this was the reason why Dr. Nott's deposition was not read, and I will show that it was. His Honour rejected ell that part which was extraneous to the issue, and the rest the counsel considered too trifling to be offered. We might as well infer, that Dr. Nott testifies that Mr. Cleaveland's motion was reversed, as they, that Mr. Cleaveland swears to the contrary — the two suppositions rest on the same footing. I think that we have given evidence enough; but if Dr. Beman and Mr. Cleaveland had been here on the stand, as Dr. McDowell was, and had not 3g8 PRESBYTERIAN CHURCH CASE. been examined, then the fair inference might be, that we knew their tes- timony would prove unfavourable. In the next place, it is said that the Old-school party have not sought litigation; that they have not willingly come into court; that this pro- ceeding is wholly chargeable upon us. This may be so. I have never known a body of men, conscious of being in the wrong, to seek a court of justice. That is the place, which above all others they desire to avoid. The party injured usually resorts thither, seeking, however, not litigation, but redress. We are told that we have asked the advice of counsel learn- ed in the law. Is that very extraordinary, after one or two hundred thousand persons had been cut off from the Presbyterian Church, without trial? Extraordinary that we should resort to gentlemen of the bar, to take advice upon the measures that would enable us to obtain that re- dress, which our ecclesiastical brethren had denied us? Certainly there is in this nothing that can prejudice the cause of my clients. These preliminary matters having been disposed of, I come directly to the main question in dispute, which I beg leave to present distinctly to your view. Was that Assembly, which in 1838 elected the relators trus- tees, the General Assembly contemplated by the charter of incorporation granted in 1799? The issue joined is whether the relators were duly chosen trustees, which will appear from the solution of the former ques- tion; for that the mode of election was proper is not disputed. I there- fore call your attention to the point, was the Assembly that elected the relators a true and lawful Assembly? The General Assembly is what is called a quasi corporation. This admits of no proof; yet some remarks upon the point will serve to give a true idea of the nature of the rights of which our opponents have at- tempted to deprive us. First, the Assembly is a quasi corporation un- der the doctrine of public trusts and charitable uses. Even where the whole ecclesiastical system of a religious society is voluntary throughout, the civil courts will interfere to prevent the diversion of charitable funds from their true object. Witman v. Lex, 17 Serg. and Raivle, 90. Mog- gridge v. Thackwell, 7 Vesey^s Ch. Rep. 36. In England the Court of King's Bench, has in repeated instances, by means of the writs of man- damus restored preachers who had been deposed, where the religious societies to which they belonged were purely voluntary, looking at mem- bership in institutions not incorporated as a right in both law and equity. But the General Assembly may come here, and all its members may come, for protection in the exercise of rights secured by a charter. It has even been admitted on the other side that the Assembly is to be regarded as a cor- poration, which perhaps is going a little too far; but certainly the trus- tees who form the body actually incorporated are a mere agency. Judge Rogers. I have no diiBculty on that point. Mr. Wood. I presumed that it was a point on which there could be no difficulty; still I would beg leave to dwell upon it for a moment. We find that to this General Assembly, as it existed in 1799, possessed of cer- tain rights and privileges, resting under certain obligations, and embody^- ing the beneficence of the whole Presbyterian Church, was granted a charter incorporating its trustees. In order to find out what that charter meant, and what the trustees were to do, we must inquire into the nature of the Assembly, and of the objects which its plan of action embraced, MR. WOOD'S ARGUMENT. 3^ at the time of the incorporation. We find that at that time it was the chief judicatory of the Presbyterian Church, indeed, but of a Presbyterian Church in alliance with Congregational Churches, as appears from the fol- lowing provisions of a treaty profifered by the General Assembly to the General Association of Connecticut, in 1794. — Assem. Dig. pp. 295-6. " On motion, ordered, that the delegates appointed from the General Assembly to the General Association of Connecticut propose to the Asso- ciation, as an amendment to the articles of intercourse agreed upon be- tween the aforesaid bodies, that the delegates from these bodies, respect- ively, shall have a right, not only to sit and deliberate, but also to vote in all questions which shall be determined by either of them: — And to com- municate the result of their proposal to the next General Assembly." Then on the same page is found the response of the General Asso- ciation': " The motion of the General Assembly of the Presbyterian Church, that the delegates from that Assembly to this Association, and the dele- gates from this Association to that Assembly, be empowered to vote in all questions decided in those bodies respectively, was taken into consi- deration; and after discussion, the General Association voted a compliance with the said proposal." We find then, that in 1799, at the time when the charter of incorpora- tion was granted, there was thought to be no inconsistence between the rules regulating the doctrine and order of the Presbyterian Church, which were, if you please, of divine right, and an alliance formed with Congre- gationalists, although that alliance was not merely one of correspondence, but allowed delegates from the General Association of Connecticut both to sit and vote in the councils of the Church, and this even in the highest council, that which rules over all the others, dispensing its benefits and blessings to the whole Church. I need scarcely refer to the great prin- ciple, that the consideration of cotemporaneous usage is always of vast importance in determining the true bearing of a charter. Finding cor- porate powers granted by the legislature for the benefit of the ministers and elders of the Presbyterian Church, we must ascertain the existence, nature, and character of that Church, at the time of the grant. Then it was a Church allied with another Church; and therefore casual alliances between it and other denominations of a similar character are not con- trary to the charter. One of the learned counsel has spoken of the evi- dence contained in ecclesiastical history, that such unions were formerly allowed in England even between Presbyterians and Episcopalians. He might have gone farther, and told you that at the time Presbyterianism was introduced here, this species of union was there tolerated. The Pres- byterians of the United States came from England; and, when they came, brought with them a familiarity with such ecclesiastical alliances; and we find their taste for them soon manifested in their new settlement. But certainly, when this sort of alliance existed at the very time when the charter was granted, all that has been said about a violation of that char- ter, and of the principles of Presbyterianism, must be regarded as with- out weight. These plans of union were schemes for enlarging the reign of peace and harmony, and are not to be declaimed against at the present day, and put down as unconstitutional, and subversive of church order and pure doctrine. 400 PRESBYTERIAN CHURCH CASE. These subordinate institutions are all subject to the laws of the land. We have been told that ecclesiastical judicatories are independent of the law. That is not true. So long as they keep within the sphere of their legitimate powers they may exercise them uncontrolled by the civil authority; but they are bound to keep within that sphere: if the}'^ go be- yond it, disregarding those fundamental rules and principles which the law has provided for them all. for the protection of their members the minority as well as the majority, they become amenable to the common tribunals of the country. The very cases which have been referred to by the opposite counsel prove this. The case of Field v. Field, 9 fVen- dell, 400, was that of a religious society split into two parts. Did the majority there find that they were above the courts of justice? The mi- nority sought their rights in court, and the application met with a ready response. There has been much ado about our attempt to disfranchise Dr. Green, and we have had oyer and view of the reverend gentleman day after day. But what has been said on this subject has seemed as if addressed to feel- ing and not to judgment. No man respects Dr. Green more than I do, but surely these are mawkish, crocodile lamentations that are made on his account. He suffers but the loss of an office which is of no profit or honour to him, but rather a burden. We do not impeach his character; we do not make a personal attack upon him. Your decision in regard to this collateral matter, however made, cannot prejudice him in either his character or his pocket. I therefore dismiss all the remarks concerning him with this passing notice. There can be no doubt that the Assembly, which elected these trustees, was an organized body and purported to be the General Assembly of the Presbyterian Church. Nor can there be any doubt that it was first or- ganized. And you will remark that, if it was properly organized ; if there was no radical defect in its constitution, there could be no farther or other organization. If ours was substantially correct, a mere petty irregularity could not vitiate it: if it had no radical defect, that organiza- tion must prevail. It was the duty of every commissioner to come into it, and those who had an opportunity of doing this which they did not improve, cannot now complain. Take the case of the Common Council of this city. Suppose, that after a quorum have met and organized them- selves, another set meet and pretend to organize the Council anew. Can the latter exercise the functions of the true body? Can there be as many distinct bodies as there are quorums, each possessing the powers of the whole? And a mere petty irregularity, if there were any, did not viti- ate our organization. Such an irregularity occurred in 1835. There is a sort of usage in the Assembly, that wh.en the Moderator does not ap- pear to take his seat, the last Moderator present presides. At the open- ing of the session of 1835, the regular Moderator was absent, and Dr. Beman, who was not the last present took the chair. The last it seems was not a member, and a question arose, whether the rule did not mean the last Moderator present who was also a member. Dr. Beman, how- ever, sat for some time, and a variety of business was transacted, before the propriety of his holding the seat was questioned, and finally by a vote of the body Dr. McDowell was put in his place. It may appear singular that so much difficulty should have been made about such a mat- MR. WOOD'S ARGUMENT. 401 ter, but with that we have nothing to do. The case shows plainly that a defect of that kind is not sufficient to vitiate the organization. When Dr. McDowell took the chair, they did not go back over all the business which had been before transacted. This was not considered necessary. They just went on, after displacing Dr. Beman: instead of forming a new organization, they merely continued that already commenced. Although a confessed irregularity had occurred, yet the business done before the error was rectified was well done, and under a new Moderator the initia- tive organization was consummated. It is important, gentlemen, in every controversy to ascertain how far the parties agree, and on what points they diflfer. No, there is no differ- ence here as to the fact that the process of organization of the General Assembly was going on up to the period when Mi'. Cleaveland made his motion.' This fact both admit; both, however, contending that the or- ganization was proceeding in an irregular and defective manner, though differing as to the nature of the irregularity. We say that the Old-school were attempting an unlawful organization, and that the object of Mr. Cleaveland's motion was to secure a lawful organization, which should include all entitled to seats. They assert that our attempt to introduce the commissioners from the exscinded districts was disorderly. Defects therefore are alleged on both sides; but both agree that up to a certain time the Assembly was in the process of being organized. From that point, the moment when Mr. Cleaveland rose, we take our departure in different directions. We are charged with there attempting a new or- ganization, a wrongful and illegal succession. On the other hand, we contend that it is not so, that the Assembly displaced a Moderator and two clerks, who had refused to perform their duty; that we had a right to remove them — a right which belongs to every such Assembly where offi- cers refuse to do their duty — and that after thus disposing of these officers, we proceeded with the regular business of the judicatory. Are we cor- rect in this position? That is the question which you are to solve. This leads us to the consideration of Mr. Cleaveland's motion. I say that the cause of that motion was a deliberate design to exclude, in the organization, from the Assembly, a large number of commissioners, by the Moderator and clerks, backed by a portion of the Old-school party, commencing in 1837, and carried on up to that time — an attempt to create an unlawful Assembly; and I mean to show from both general prin- ciples, and the Assembly's own rules in conformity with them, that this attempt to create an unlawful Assembly, commencing in 1837, and car- ried out by the Moderator and clerks, aided by a clique of the Old-school party, down to the time of Mr. Cleaveland's motion, gave us the right to displace those officers and substitute others for them. The consideration of this matter carries us back to the exscinding resolutions of 1837. They are the first subject for our consideration — the first as to importance and as to time. To the learned counsel on the other side they may well seem like mere trifles, mere preliminaries — portico-work — only the turning out of doors of some two hundred thousand stated worshippers, sixty thousand communicants, and six hundred ministers of the gospel! If this be the portico, what must be the magnitude of the great temple itself? You have heard a grave discussion of various petty questions of parliamentary order. Whether the new Moderator should have taken the chair or 51 403 PRESBYTERIAN c:iIURCH CASE. might stand in the aisle; whether the motion to displace the old officers might he made by a member, or must be put by one of the clerks, who had also refused to do their d(Jty; and whether one side or the other side of the house was the proper place of organization. These are the great questions which are to occupy and agitate every breast, while the exclu- sion from church privileges of two hundred thousand persons is mere portico-wcrk! I thank the learned counsel for the case of Field v. Field which he has cited. What were the circumstances of that case? A large majority of an ecclesiastical judicatory attempted to organize the body in their own way, preventing the clerk from taking any part in the organi- zation. But the minority, with the clerk, proceeded to organize them- selves on the outside of the house, amid all the confusion of an out-door assembly, and the noise of by-standers. And what said the Supreme Court of New York? That inasmuch as the majority had prevented an organization in the regular way, and had attempted to create an unlawful assembly, therefore the organization of the minority, though effected under circumstances of disadvantage, outside of the church, in the open air, was the true assembly. What was the case here? A resolution of the trustees had been obtained and was put into our hands, declaring that we should not occupy that church; that no Assembly should be organized there unless under the old Moderator; that unless we would submit to these mere ministerial officers, v^'ho had been sent down to us from the Assembly of the previous year, and who had conspired to cut off from the Church two hundred thousand souls, we should not use that house. But in this case, instead of going into the street, as we might have done, we did actually organize in the church, notwithstanding the embarrass- ment of our situation. The new Moderator indeed had not the chair nor the hammer: the former one would not give them up; hut if the minority had gone into the street to organize the body, theirs would have been the lawful Assembly and as such sustained, if they had truly been attempting to prevent an unlawful Assembly's being organized by the Moderator and clerks, borne out by a clique of the Old-school. To state clearly my object, I propose, gentlemen, to show in the first place, that the exscinding resolutions of 1837 were void in law and of no effect; that they did not impair or destroy in the slightest degree the just and lawful rights of a single Presbyterian; in the second place, that there was an attempt commencing with these resolutions in 1837, and followed out by the Moderator, the clerks, and a portion of the Old-school, to effect an organization of the Assembly of 1838, to the exclusion of all the com- missioners from the Presbyteries within the infected districts; and, in the third place, that this was an unlawful attempt to effect a fraudulent organi- zation; that any organization not including all entitled to seats was ille- gal, and ought to have been resisted by all fair means. If 1 succeed in demonstrating these three points, I think they must put an end to the defendants' case. The exscinding resolutions it is unnecessary here to read again. Their effect was to cut off from the Church all the Presbyterian ministers be- longing to various judicatories, and all the members of Presbyterian churches residing within an extensive district, comprising a large portion of New York and Ohio. Now, whom does the charter of 1799 incorpo- rate? The trustees of all the ministers and elders of the Presbyterian i MR. WOOD'S ARGUMENT. 403 Church. Where? Those only who reside in Pennsylvania? No, but all who live between the Delaware and the Mississippi, as my learned friend has told you; all in the United States, which the broad canopy of heaven covers. That charter secures to every Presbyterian in America certain rights, resulting from 'the right to continue in the communion of the Pres- byterian Church, unless excluded by a regular and lawful process. How were the Presbyteries within the infected district cut off? At a single blow; without notice, without trial, without any complaint or specifica- tion of charges being made, without the least warning. They who per- formed the act were themselves mere delegates, deriving their whole power from the Presbyteries; yet at one fell swoop they sacrificed all Presbyterial rights. What was the effect of the excision, as it is called, supposing it to have had any effect? It was utterly to banish Presbyte- rfanismfrom a large district of country. Cast your eyes over the map, and look at the region thus tabooed, made infected ground. In New York alone, it extends three hundred miles, between Albany or Utica on the one hand, and Buffalo on the other — a district as extensive as three or four or five of the smaller states of the Union. This large district was in fact made a Presbyterian desert, without a single oasis, a single spot of verdure. The excision completely banished all Presbyterianism from its borders. And what are the modifications or qualifying provisions of the act of excision? Here it will be necessary to take up the resolutions for a moment. They tell the excluded portion of the Church, " That the solicitude of this Assembly on the whole subject, and its urgency for the immediate decision of it, are greatly increased by reason of the gross disorders which are ascertained to have prevailed in those Synods, (as well as that of the Western Reserve, against which a decla- rative resolution, similar to the first of these, has been passed during our present session,) it being made clear to us, that even the Plan of Union itself was never consistently carrTe4 into effect by those professing to act under it." And suppose it was not, was this the way to treat their breth- ren? They ought to have rectified the evil, to have made provision to regulate the thing in future. With what reason could they cut off whole Presbyteries and Synods because the " Plan of Union" had not been con- sistently carried into effect? We are told that great disorders were as- certained to have existed. Was there any trial, any hearing given to these judicatories? Were they allowed an opportunity of meeting such charges to show that they had no foundation in fact? Next, it is said, " That the Assembly has no intention, by these resolutions, or by that passed in the case of the S3mod of the Western Reserve, to affect in any way the ministerial standing of any members of either of said Synods; nor to disturb the pastoral relation in an}'^ church." What mockery? They do not wish to affect any one's ministerial standing, or pastoral re- lation? What are the rights of that standing and relation? Are they not the right of connexion with Presbyteries, Synods, and the General Assemi)ly; the right of resorting thither for the redress of grievances and the settlement of disputes; the right of having a voice in the control of church funds? And have not these men been cut off from all such rights? Have they not been shut out fi-om all the benefits of their ecclesiastical standing and relations? It is idle to talk thus. One of the counsel has observed — he told you of the fact with an appearance of some satisfac- 404 PRESBYTERIAN CHURCH CASE. tion — that no Presbyterians in Pennsylvania had been cut off. True, •Pennsylvania has not been touched; but the intimation conveyed a mean- ing, which could not have been designed by the learned gentleman, and which was certainly unworthy of him. You will make no such invidi- ous distinctions; you will not make a difference between Presbyterians in Pennsylvania, and those in New York. Besides, if you sustain the conduct of our opponents, you know not how soon Pennsylvania may suffer in a like way. If yoit establish the legality of this measure of ex- cision, an accidental majority may, on pretence of difference in doctrine, soon cut off a portion of the Church in Pennsylvania — perhaps the Synod of Philadelphia. And then Dr. Green, about whose removal from the office of trustee there has been so much factitious distress, will lose not only his office, but also the whole of his ecclesiastical privileges. It is a mockery of justice thus to tell the members of the four Synods, that although they have been cut off, means have been taken to guard against the effects of the excision. But what are these means? Here Mr. Wood read the third and fourth resolutions. — Vid. ante, p. 46. This is the provision made to guard against the injurious effects, of the previous resolution. Any Presbytery within the infected district, being strictly Presbyterian in doctrine and order may apply for admission to the General Assembly. But such Presbytery is not to be at once ad- mitted: it must come and apply to the General Assembly, and they will take order on the application. Bear in mind, gentlemen, that it was clearly shown by the plansi adopted in 1837, and '38, that it was never meant that any one of these Presbyteries should be re-admitted without a special act of the General Assembly. It was intended to organize the body in 1838 to the exclusion of all the commissioners from them, and then when they came to supplicate for admission, they would have been at the mercy of the same majority by whom they had been exscinded. In this mode they were to come in; thus to regain the rights secured to them by the charter. And as to the individual members who were cut off — what were they to do.^ Look at page 429, of the Minutes of 1837. <' The report of the committee on the right of Presbyteries to examine ministers applying for admission, which was adopted this morning, was reconsidered, amended, and adopted as follows, viz: " That the constitutional right of eveiy Presbytery to examine-all seek- ing connexion with tliem, was settled by the x\ssembly of 1835, (see Minutes of 1835, p. 27.) And this Assembly now render it imperative on Presbyteries to examine all who make application for admission into their bodies, at least on experimental religion, didactic and polemic theol- og5', and church govei-nment." This is the way in which the individuals applying for admission were to be received. A clergyman like Dr. Richards, born in the Church, who has spent all his days in its communion, and has dispensed the benefits of religious teaching year after year to a portion of its worshippers, in the decline of life, is cut off from Ihc Church, tabooed; and in order to get back again, must travel some hundred miles — the whole district is three hundred miles in extent — must go beyond the utmost verge of this re- gion, before he reaches a spot on which the benefits of Presbyterianism are shed. Then, before he can join any Presbytery, he must submit to an MR. WOOD'S ARGUMENT. 4Q5 examination, and I suppose a cross-examination, on experimental religion! At one blow all these men were cut off, being allowed no hearing, no trial — men as good as Dr. Green himself, or any who have gone before him; and in order to be restored they must travel perhaps two or three hundred miles, then submit to an examination on experimental religion, and then — what? Still they cannot go up immediately as members to the Assembly of 1838, but must apply to it for admission after its organi- zation. They must travel out of the region in which they reside, in order that they may be examined on experimental religion — men who have spent their whole lives in experimenting on religion, and spreading its practical benefits over the whole land — and then cannot be admitted until the General Assembly choose to take order on their case. Have I •not made good my words, that this was a mere mockery? As judicial acts, it cannot be pretended that the exscinding resolutions are not entirely void, inasmuch as there was no trial or even notice; and this not only by the law of the land, but by the books of the Presbyte- rian Church itself My position is established by true Presbyterian doc- trines, by rules all made before these acts of tyranny were contemplated. In 1793, by the Assembly, " It was Resolved, as the sense of this house, that 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." — Ossein. Dig. p. 323. Now this is not only the Presbyterian law, and a clear principle of common justice: it is also the law of the land. I refer for proof to An- gell and Ames on Corporations, 244, where is laid down the same doc- triue with that found in the Digest. " 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. * * * 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 party supposed to be in default. ***** * * " It does not appear necessary that the summons or notice should par- ticularize the charges; though some intimation should be given of them, that the accused may have an opporunity of vindicating himself." Here there was not only no notice of trial, but not even an intimation of a charge given. The commissioners from the exscinded Presbyteries come up as if to an ordinary Assembly: they expect only ordinary busi- ness. Having received no notice, or citation to trial, and without having been heard in self defence, they find not only themselves, but all their constituency, residing in a country of three hundred miles extent in New York, and one hundred miles in Ohio, banished entirely from the Assem- bly and the Church, while the region in which they live is looked upon, for all Presbyterian purposes, as "^an infected region. But you are told that it is a constitutional practice to dissolve these judicatories. True, the Assembly may dissolve Synods and Presbyteries, but that is a very dif- ferent thing from catting them off', from stripping them of all their eccle- siastical rights and privileges, from declaring them no longer part or par eel of the Church. Look at the cases referred to on this subject. " Resolved, That at and after the meeting of the Synod of Philadel- 406 PRESBYTERIAN CHURCH CASE. phia in October next, the Synod of Delaware shall be dissolved, and the Presbyteries constitiitins; the same shall be then and thereafter annexed to the Synod of Philadelphia: and that the Synod of Pliiladelphia thus constituted by the union aforesaid -shall take such order conccrnino; the organization of its several Presbyteries as may be deemed expedient and constitutional: — And that said Synod, if it shall deem it desirable, make application to the next General Assembly for such a division of the Synod as may best suit the convenience of all its Presbyteries, and pro- mote the glory of God." — Min. 1835, /;. 29. In 1834 the Synod of Chesapeake was dissolved, the same provision being made for all its component parts. — Min. j). 37. It was not dis- owned or cut off, but there was merely a change made in the ecclesiasti- cal connexion of the Presbyteries. Keeping them within certain local bounds, they put them under the jurisdiction of superior judicatories to which strictly defined physical limits were fixed. "The Committee to whom was referred Overture No. 8, viz: An ap- plication to have the Synod of the Chesapeake dissolved; and also appli- cations from the Presbyteries of Lewes, Wilmington, and Philadelphia 2d, as constituted by the Assembly, to be constituted into a new Synod, made a report, which was accepted and laid on the table. * ■* * * 5); * * * "The report on Overture No. 8, and the petitions for the erection of a new Synod, was taken up and adopted, and is as follows, viz: Resolved, " 1. That the Synod of the Chesapeake be, and the same is hereby dissolved. " 2. That the Presbytery of East Hanover be, and the same is hereby restored to the Synod of Virginia. "3. That the Presbyteries of Baltimore and the District of Columbia be, and the same are hereby restored to the Synod of Philadelphia. "4. That the Second Presbytery of Philadelphia, and the Presbyteries of Wilmington and Lewes be, and the same are hereby erected into a new Synod, to be called the Synod of Delaware, &c." So here the Synod merely was dissolved, the Presbyteries being at- tached to other specified Synods, the jurisdiction of which was extended over them.; or, as regards some of the Presbyteries, the name merely of their Synod being in effect changed. No instance previous to that of 1837 can be produced, in which the Assembly has pretended to cut off a Synod and all its constituent Presl:)yteries from tiie Church, without no- tice and without trial, as was done by the exscinding resolutions. Now, what warrant was claimed for this most extraordinary measure which deprived such a multitude of Presbyterians of .ill their ecclesiasti- cal rights? It is said that the Assembly had previously, at the same ses- sion, abrogated the plan of union of 1801. That having done this, they were authorized to pass the exscinding resolutions; that they were a legis- lative measure warranted by the abrogation. Our opponents tells us that the said plan of union was unconstitutional; and that therefoi'e they were justified in cutting off the whole of the lai-ge district embraced within the limits of the four Synods. Let us look at this plan of union, and see whether its abrogation warranted the subsequent jiroceedings. It is found in the Assembly's Digest, page 297. Now it must be manifest to any one who will look at it, that this alliance was not one whit stronger MR. WOOD'S ARGUMENT. 407 and more intimate, than tliat between the General Assembly and the As- sociation of Connecticut, which existed in 1799, at the time when the charter was granted. And indeed the former was not as objectionable as the latter in point of bringing into the judicatories of the Presbyterian Church members of another denomination; for the provision of 1794 permitted delegates from the Congregational Association, not only to sit, but also to deliberate and vote, and the first proposition for this arrange- ment came, not from the Association, but from the General Assembly itself. The provision was in force when the charter was passed — that charter which formed and moulded this Assembly for all purposes of law. And, gentlemen, these measures of alliance, in their origin, re- ceived the support of not only Dr. Green, but all the leading members of the Presbyterian Church — men whose names stand at the head of their order; men never to be forgotten so long as this Church shall last. There was the Rev. Dr. Witherspoon, not only a distinguished divine, but also an able statesman. He was not a mere closet metaphysician: he had a mind able to em.brace the most comprehensive views of the great advantage which society at large, in its religious, moral, and political character, would derive from such harmonious connexions. He saw that they were calculated to foster union and peace: as a statesman he knew the importance of these, as well to religious as to political institu- tions. Such alliances were calculated to do great good, and in forming them every good man might with propriety engage. In the early settle- ments of this new country, they were to the pious like the lever of Archi- medes: by them could be raised a moral world. The objection that the " Plan of Union" brings Congregationalists into the body of the Church is not true in the sense in which the other side represent the matter. Look at this plan. Mr, Wood here read the second and third sections of the " Plan." — Vid. ante, p. 49. Now I say it is not true, that either of these provisions brings in a single Congregationalist. The members of Congregational churches can- not come in under it, nor can Congregational ministers come in, or enter any Presbyterian judicatory, from the lowest to the highest. In nothing can Congregationalists be identified with the Presbyterian Church. The act, so far, simply authorizes, what is very natural and proper, that minis- ters may preach to people who confessedly agree with them in all the essential articles of faitli. Is not this allowed in the Presbyterian Church at this very hour? Does not that Church send ministers of the gospel as missionaries, to preach to infidels, pagans, and unbelievers of every class; to endeavour to convert those who do not believe in Christianity at all? And do not these ministers preach to such without being assisted in their ministrations by a single elder? They must first convert them to the faith before they can form any ecclesiastical organization. Is it true that our opponents have arrived at such a state of intolerance, of religious spite, that they are prepared to denounce this plan of union, when it is accordant with the plans in existence at the time when the charter was granted, and with the plans adopted by the Presbyterian Church in En- gland? Have they come to that state of intolerance, that while they preach to infidels, they are opposed to the principles of a union of this kind, adopted by the patriots of the Church and of the State? Will they 408 PRESBYTERIAN CHURCH CASE. say, " You may preach to infidels and Pagans, but not to Congregational- ists: they are infected, and you cannot be allowed to approach them?" There is one remaining provision of this plan to which I request your attention — that which authorizes th;^ formation of mixed churches, partly Presbyterian and partly Congregational. Let me here say, that the dif- ference between these two sects, to a practical man, to any one who is not a mere closet metaphysician, is no greater than that between tweedle- dum and tweedle-dee. Here Mr, Wood read the fourth section. — Vid. ante, p. 49. This is the only part of the act which gives foundation to the slightest pretence that it brings in Congregationalists. The standing-committee here spoken of, is to be appointed only in those churches composed partly of Presbyterians and partly of Congregationalists. But shall this pro- vision destroy the character of a plan of union, the benefits of which arc such as I have described? Is there any thing more improper in this alli- ance, than in those of a like kind which existed at the time the charter was granted? Why at that time, delegates from the Association of Con- necticut sat in the Assembly, which also sent delegates to the Association; and these were allowed not only to sit and deliberate, but also to vote; this too in the highest judicatory of the Church — that which is placed over all the others. Here, in the Presbytery alone, a member of a stand- ing committee of a church partly Presbyterian and partly Congregational, is allowed to sit and act as if a ruling elder. Which of these interferes most with Presbyterian order and government? When we show that at the time the act of the legislature was passed, unions of the former kind were in being, are you prepared to say that this plan of union, founded on the same principles, but not carrying them out so far, was a violation of Presbyterian institutions; that, after it had been in operation for thirty- six years, dispensing widely its benefits, it was to be cried down as uncon- stitutional and void ? These gentlemen have gotten wise too late: the men of 1801 were perhaps as wise as the men of the present day. Dr. Green probably had as much wisdom then as he has now. It was too late to make such a discovery after the lapse of thirty-six years. The act had been in existence that long, when, all at once, like a flash of lightning, or those flashes of genius with which we have been instructed and amused, it was announced that it was unconstitutional and void. And not only must the plan itself be abrogated, but its effects have been such, that all the eccle- siastical institutions of a large district which it has infected, must be broken up and destroyed. But we are told that the "Plan of Union" was not sent down to the Presbyteries, for their ratification, and that therefore it was void. But what required that it should be sent down? Have not the counsel on the opposite side spent day after day in endeavouring to show that the Assem- bly has plenary legislative power, citing passage after passage from the Constitution, to support this doctrine? But suppose that it ought to have been referred to the Presbyteries, of what consequence is that at the pre- sent day ? If it was requisite, in order to make it of binding force at first, to send it down to them, and it was not sent down, yet I ask you as men of common sense, whether an uninterrupted usage of thirty-six years, the acquiescence of the Presbyteries during all that time, does not amount to a ratification, does not cure the original defect. If any principle of law MR. WOOD'S ARGUMENT. AQa is well settled, it is, that a usage of thirty years will remedy every such defect, in the case of both individuals and all these inferior institutions. By consulting Mathews on Presumptive Evidence, or any other writer on that subject, you will find repeated instances of long usage amounting to a ratification under similar circumstances. The gentlemen on the other side have referred for parallels to political history, to cases of political revolution. But the two things are entirely different. These subordi- nate institutions, especially those of a religious character, whether incorpo- rated or not, if entrusted with charitable funds, are subject to the muni- cipal law of the land, are all governed by the usages and principles which regulate the conduct of individuals. Another circumstance of vast importance in this part of the case is, that in 1821 the present constitution of the Presbyterian Church was formed and ratified by every Presbytery then in existence; among others, by a large part of those which now belong to the four exscinded Synods. It was not merely amended, but the whole as it now stands, excepting such parts as have been since altered, was formally adopted as the consti- tution of the Church; so that we may consider it an entirely new con- stitution. I say that all the Presbyteries participated in its formation. These very ones, the establishment of which, as it is alleged, grew out of the "Plan of Union," and was therefore unconstitutional and void, were parties to this constitution, just as much as the Presbytery of Philadel- phia, to which Dr. Green, who has been made so conspicuous here, be- longs. I ask whether you are prepared to say, that these Presbyteries which met upon the same platform, in the formation of the constitution of 1821, may now be told that they are no part of the Church, that they are entitled to no share in its benefits and blessings; may now, at one fell swoop, be cut off from all their ecclesiastical rights and privileges. The next objection made against the " Plan of Union" — the next con- stitutional objection — is that it was a violation of the charter, which granted a franchise, as it is said, only to the ministers and elders of the Presbyterian Church: it is discovered at this late day, that the General Assembly is not to be considered the one designated by the legislature, when in alliance with a Congregational Association. I should like either one of the learned counsel to put down his finger on a single point of time, since the Assembly was first constituted, when some such alliance has not existed. We have read a long string of plans of union, formed with various associations and Churches. One was formed with the Asso- ciation of Vermont, another with the Association of Massachusetts, another with the Reformed Dutch Church, but now forsooth a mere alli- ance of the same kind is to break up the whole ecclesiastical system of four Synods. Such is the discovery made in this enlightened age, by the Old-school, who have also introduced sundry otlicr like modern improve- ments. But I have shown that the " Plan of Union" has brought in none that are not Presbyterians; and if any committee-men had in any way been admitted, the evil might easily have been avoided for the future. But in 1837, after a lapse of thirty-six years, several other unions having in the mean time been formed, that of 1801 is suddenly found so uncon- stitutional, that it is abrogated, and then the instant effect of the abroga- tion is declared to be the cutting off of all the Presbyterian churches, 52 410 PRESBYTERIAN CHURCH CASE. ministers, and people, within a region three or four hundred miles in length! I do not mean to stop here, to inqure whether the Assembly had a right to abrogate the '• Plan of Union." I think they had the right. The " Plan" was not a compact. It was merely the adoption of a course of measures having certain practical consequences; but while it might be abrogated, all acquired rights should have been preserved. Suppose that at the time of the abrogation, a Presbyterian pastor has entered into connexion with a Congregational church; has formed relations which, perhaps, are to continue for his life. You cannot by such an act as this break up those relations, and destroy his acquired rights. The Assem- bly ought to have abrogated the plan of 1801, if it must be abrogated, paying a due regard to them. I may mention a familiar case in illustra- tion. It is the practice in some of the states to allow aliens, after they have resided in the country a certain period, to purchase lands; but do you think that by the repeal of such a law the rights intermediately ac- quired may be broken down? All that could be done in that case, by abro- gating the statute, would be to prevent its future operation. Any con- nexion actually existing at the time of the abrogation, any acquired rights, must be carefully preserved. Here they have not only not preserved the righls of the Congregationalists, who, it is said, have been admitted under the " Plan," but have also cut off whole Presbyteries of undoubted Pres- byterians; telling them indeed that such as are considered the real Simon Pure, may apply for admission, and that then the Assembly will take order upon their cases. But as for those Presbyteries which contain Congregational churches, they cannot return even in that manner. These are told, " You, indeed, participated in the formation of the constitution of 1821; by you among the rest it was ratified; but now we exscind you, leaving no provision for your rejoining the Assembly in any way." Could any act be fraught with more monstrous injustice? Could a deli- berative assembly commit a more flagrant enormity? But the learned counsel have undertaken to justify not only the abro- gation, but also the excision, by reference to the conduct of the New- school in 1837. This they represent as most outrageous, and amply sufficient to warrant all the measures of their opponents. You observe, that in 1838, first, certain measures were resorted to, the Old-school hap- pening to have a majority, to bring up for trial all judicatories charged by common fame with irregularity, citing them to the bar of the next Gen- eral Assembly. Mr. Wood read the first two resolutions. — Vid. ante, p. 38. Then here's the rub: "That, as citations on the foregoing plan are the commencement of a process involving the right of membership in the Assembly; therefore, resolved, that agreeably to a principle laid down, Chapter V. Section 9th of the ' Book of Discipline,' the members of said judicatories be excluded from a seat in the next Assembly, until their cases shall be decided." There is work for you. On what were to be founded these proceedings, which were in the nature of a criminal prose- cution? On common fame. But those provisions of the Constitution which permit common fame to be the basis of accusations are very strict. " In order to render an offence proper for the cognizance of a judica- tory, on this ground," (where the individual is accused hy common fame MR. WOOD'S ARGUMENT. 411 or rumour.) " the rumour must specify some particular sin or sins; it must be general, or widely spread; it must not be transient, but perma- nent, and rather gaining strength than declining: and it must be accom- panied with strong presumption of truth. Taking up charges on this ground, of course, requires great caution, and the exercise of much Chris- tian prudence." — Book of Discipline, Chapter III, Section 5. The rumour must " specify some particular sin or sins," must be gain- ing ground, growing stronger, and must be listened to only with great caution. Now it might have been supposed, that in resorting to such a measure, the Assembly would, at least, have attended to the requirements of these wholesome and charitable provisions of the Constitution, which are in strict accordance with the whole system of rules established for the ecclesiastical administration of justice. The particular sin is required to be set forth. Here they had not ascertained even the charge — not even the judicatories that were to be cited! The discovery of these things was left to a committee vested with full powers. Then it is pro- vided, that the commissioners to the next Assembly from every judicatory cited by that committee shall be excluded from their seats, until their cases are adjudged. Now, it may be a very proper provision, that if the Synod of Albany is accused of irregularities by common fame, and is brought to the bar of the Assembly for trial, none of its members shall sit during such trial. But suppose the Synod of Albany is charged with one oftence, and the Presbytery of Buffalo with a second, and the Synod of New Jersey with a third; are all these to be excluded from a repre- sentation in the Assembly, each, not only while its own case is under consideration, but while the rest are on trial? Here all are thus excluded, according to the principles of the exscinding resolutions. It is a well known maxim, that common fame is a common liar; yet the Assembly decrees, that one judicatory, charged by common fame with irregularities, shall not be represented, until similar but distinct charges against several other judicatories shall have been investigated and decided upon. But these resolutions had a still more radical defect in that they made no spe- cific accusations, but left the preparation of charges to a committee. If that committee had chosen to designate six Synods, whether they were guilty or innocent, their representatives must be left out of the next As- sembly, until the cases of all had been decided. Yet because the mem- bers from the four Synods would not vote for such resolutions, they are malecontents, that do not belong to the Church, and instead of being cited and tried, they must be exscinded. Next, they tell us that these men were opposed to the measure of ab- rogation and therefore were cut off. What? has it come to this? If I am a member of a corporate body, am I, because I don't choose to vote for a measure that has been introduced, to be stripped of all my corporate privileges? Suppose these men didn't choose to assent to the abrogation. They may have thought as Dr. Witherspoon and Dr. Green did, when the " Plan of Union" was formed, that it was calculated to promote har- mony and peace, and to prevent alienation; that the evils which had been exhibited or complained of, had not grown out of that plan. Yet, be- cause they voted against its abrogation, was it to be declared that they had no part or lot in the Presbyterian Church? They had very good reason for objecting to the measure. The resolution offered, rested on 412 PRESBYTERIAN CHURCH CASE. the ground that the "Plan of Union" was unconstitutional and void. But they were not willing to subscribe to such a doctrine, and therefore would have opposed the resolution, even if in favor of the abrogation. But, next, the New-school were opposed to a division of the Church, and rejected various propositions or protocols on this subject which were laid before them. Here are the grounds on which they acted: "The subscribers had believed that no such imperious necessity for a division of the Church existed, as some of their brethren supposed, and that the consequences of division would be greatly to be deprecated. Such ne- cessity, however being urged by many of our brethren, we have been in- duced to yield to their wishes, and to admit the^xpedieney of a division, provided the same could be accomplished in an amicable, equitable and proper manner." — Vid. ante. p. 40. " During the progress of these movements, the slight shades of doctri- nal difference, always known and permitted to exist in the church, be- fore and since the adopting act, and recognised in every form as consis- tent with the Confession of Faith and the unity of the spirit in the bonds of peace, became the occasion of alarm, and whisperings, and accusations, and at length of ecclesiastical trials for Iieresy; while doctrines and mea- sures unknown to the Confession were selected as tests of orthodoxy." — Past. Let. Vid. ante. p. 190. And again, the second proposition made by the committee of the mi- nority to the committee of the majority: " That the Confession of Faith and Form of Government of the Presbyterian Church of the United States of America, as it now exists, shall continue to be the Confession of Faith and the Form of Government of both bodies, until it shall be constitutionally changed and altered by either, in the manner prescribed therein." — Vid. ante. p. 41. You see that the New-school were disposed to adopt the same confes- sion of faith, or articles of belief, and the same form of government with the opposite party, but considered that the slight shades of difference that existed ought not to be regarded. And why did they yield this opinion, and attempt to negotiate articles of separation? Because their brethren desired it; and all which was said by the committee of the minority, in regard to the expediency of division, was in acccordance with the views of the Old-school, and not with their own views. If I present a claim against a man for five hundred dollars, and we compromise it for two hundred and fifty, the compromise is not an admission on my part that the whole amount of the claim is not justly due, nor on his a denial of his indebtedness for the full sum charged. When the New-school were greatly pressed and urged in 1S37, they said that there was no occasion for a division of the Church; that there existed but slight differences of opinion among its members; that all still adhered to the same confession of faith and form of government. What the real differences were, I leave to the subtlety of some nice closet metaphysician to determine. Yet the New-school were willing, for peace's sake to come into the plans of the opposite party, and to agree to the expediency of division. On what points did they split? I think them immaterial, but let us refer for a moment to the leading ones. The Old-school demanded not only the old name, but also tlie succession — in fact that they should continue to be that identical General Assembly. They wished moreover that MR. WOOD'S ARGUMENT. 4|3 the division should be made at once, while the New-school said that it could not be effected immediately, as the Assembly was a mere dele- gated body, and not having been instructed as to this matter, had no power to act definitively therein. And does not their book say the same thing? " No delegated body has a right to transmit its powers, or any part thereof, unless express provision is in its constitution. "This Assembly is a delegated body, and no such provision is in its constitution." — Jlssem. Dig. p. 29. This was their law. Now the New-school say, " We are members of a mere delegated body: we have no such power as the measure urged upon us supposes. We are willing to come into your plan for a division, but it must first be ratified by the Presbyteries before it can go into ef- fect." But, the Old-school reply, " Now is the time for the division to be effected. You must give us the name and the succession: we must remain under the broad canopy of the charter; and we must separate at once." What would have been the consequence of acquiesence in this proposal? Why the New-school must have been regarded as seceders. Can you say then that this would have been a fair and proper com- promise? If the Assembly had effected a division without referring the matter to the Presbyteries it would have been unlawful. In point of law the two parts would yet have been connected. Any minister, church, or Presbytery yet choosing to cling to the name and the succession, might have claimed all the rights and privileges of membership, being still an adherent to the Presbyterian constitution. These two features of the plan of division proposed must at once damn it in all honourable minds. It was an artifice, which if completely carried out, would have cheated every one of those who agreed thus to secede out of all their ecclesiasti- cal rights, and left them perfectly defenceless. Every minority in Pres- byteries and Synods might have claimed the whole judicatory as its own, because it still adhered to the true General Assembly. But no alterna- tive was to be allowed. The Old-school party happened in 1837 to be a majority, and they go to their brethren, and holding a knife to their throats, say, " Come, divide at once. We will have nothing to do with the Presbyteries. If you do not agree to our proposal, we will exscind you, cut you off for ever from all the benefits and blessings of the Church." I think I have satisfied you that our opponents cannot justify the ex- cision as. an act of judicial power. I think I have satisfied you that it did not follow as a legitimate consequence from the abrogation of the " Plan of Union." What then is left? It resolves itself into an act of mere political revolntionary power: it can be regarded as nothing else. I wont stop to prove that it was not a lawful exercise of legislative au- thority. Tell me that a body even of acknowledged legislative powers, may cut off a portion of its members and strip them of all their rights! Tell me that in a municipal corporation which has more power than is claimed for the General Assembly, that in the Common Council of this city, one portion of the members may cut off another portion, when they don't like their speeches or their votes, merely because they have legislative power — are authorized to make by-laws! This would not be an exercise of legislative power, but of a political power, which is be- 414 PRESBYTERIAN CHURCH CASE, hind all legislation. Such acts sap the foundations of society. When a legislature cuts off a part of its constituency, it must do so by an exertion of brute force alone: this every jurist will tell you. I had selected a passage from Puffendorf on this subject, but as it has not been before re- ferred to, I shall not trouble you with it. When a nation severs one of its own limbs, it is by an exercise of mere violence, which there happens to be no superior power to control. For nations are all equal: they ac- knowledge no sovereign. But it is not so with our subordinate institu- tions, civil and ecclesiastical: they are all under the protection and super- intendence of the courts. If a nation attempt to cut off a portion of itself, which has power to resist, civil war is the result: the God of bat- tles presides over the conflict, and awards the victory. Where is this to end, if the power of cutting off be once established, and is allowed to prevail? If the inhabitants of a region three hundred miles in extent, in New York, and of a large part of Ohio, are now to be stripped of all their Presbyterial rights, in 1840 the Presbyterians of Philadelphia, or of the whole of Pennsylvania, may be in like manner exscinded. If every other ecclesiastical, and every civil body, can exercise the same power, it must involve the whole country in confusion and discord, and carry revolution and anarchy throughout all the institutions of the land. There must be continual divisions in both Church and State. Whenever there is a difference or difficulty in a public body, and the majority cannot get the minority to agree to their terms for an amicable division, the latter will be exscinded and thrust out. Once establish the doctrine that the majority may at pleasure cut off the minority and strip them of all their rights, and if civil war does not ensue, at least there will be con- tinual tumult and bloodshed: enormities will be practised, of which it is impossible to anticipate the result. I say, then, that it is a clear position, that the power of depriving any one of rights of membership, which are recognised by the law, is a judi- cial power, and can never be exercised without a sufficient charge, notice, and a trial. I might here refer to the controlling authority which the Court of King's Bench exercises over such inferior institutions as the Assembly; but the principle in all cases is the same. A power to dis- franchise must be kept within reasonable bounds; and courts will always say what was determined in the case of an African Methodist Church; that a by-law which made the penalty of vilifying a member of the society, disfranchisement, was unreasonable and therefore void. Any rule which prescribes that punishment to a pett}'^ offence must so be de- clared. The offence committed must be sufficient to justify the disfran- chising act, in the eye of the civil law; must be such as a court will say warrants excision; and then there must be notice and a trial. Here again I would refer to Angell and Ames on Corporations, 244. "Where the rules of a religious society inflicted the penalty of expul- sion on any member who should commence a suit at law against another member, 'except the case were of such a nature as to require and justify a process at law,' a return to a mandamus to restore a member to his standing, which set forth the rule, and also that the expelled member had commenced a suit against another, (without averring that the case was not of such of a nature as to require and justify a process at law,) was held to be insufficient. MR. WOOD'S ARGUMENT. 415 " 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. * * * 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 mem- ber supposed to be in default." Now this doctrine becomes infinitely stronger, when you consider the nature of the General Assembly, and how it is constituted. It is a mere delegated body, and has no right to transfer any portion of its powers. And, on whatever principle of delegation it may be formed, it has no powers but those expressly granted. These principles the Assembly act- ed out, before such times of excitement and party spirit as the present were known. " No delegated body," it was said, " has a right to trans- fer its powers, or any part thereof, unless express provision is in its con- stitution. This Assembly is a delegated body, and no such provision is in its constitution," {Assemh. Dig. p. 29.) Is not that doctrine applica- ble to all institutions of a delegated character? Do you not say, that if no power to exscind has been given to the General Assembly, it has it not; and that where the power has been given, it can be exercised only by judicial process, after notice, and upon trial? Here again I refer to the Assembly's Digest. "It was Resolved, as the sense of this house, that 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. — Vol. I. p. 77. 1793." p. 323. Now, with hese doctrines staring us in the face, every heart must re- spond, that by the extraordinary proceedings of 1837, all the principles of law, and justice, and common sense, were wilfully trampled upon. By their own brethren, all professing to bear the same character, with a word and a blow, were these men cut off from the rights and benefits of the Church; from every one of those privileges, which by the charter of in- corporation are extended to Presbyterians throughout the whole extent of the United States. Gentlemen, it is unnecessary for me to make any farther remarks upon this branch of the subject. Of the consequences of the excision you are already aware. There is no analogy between them and the consequences of such a dissolution of an ecclesiastical judicatory as has been adverted to. The Assembly in 1837, cut off from all connexion whatever with the Presbyterian Church, upwards of fifty thousand communicants. Without any notice or warning, this great mass of people were stripped of all their ecclesiastical rights. Are we told this was no punishment, no wrong. The law says otherwise. It vvill not allow the members of any subordinate institution to be excluded from the exercise of their rights, without the commission of any offence, without any trial. Yet here were more than fifty thousand persons, at once, at a single blow, deprived of all the advantages of their religious connexions. If any thing is a punishment to a pious man, who loves religion, and values ecclesiastical privileges above every thing else, it is to cut him off in an instant from the communion of the Church. When the Jews, in exile from their own land, hung their harps upon the willows, they mourned, indeed, the loss of friends and country, but more than all, their distance from Mount 416 PRESBYTERIAN CHURCH CASE. Zion — the loss of institutions established by the God of their fathers, of Abraham, of Isaac, and of Jacob. When a venerable old man like Dr. Richards found himself without trial, and not conscious of having com- mitted any offence, suddenly cut off from the communion of the Church, and deprived of all the advantages of its institutions, what must have been his feelings? What the feelings of those other venerable men, who at one fell swoop, were excluded from their religious rights and privi- leges? There is one farther view of this matter which I may here take. Sup- pose the alliance formed by the " Plan of Union" was so objectionable, why did not the Assembly, when that plan vvas abrogated, adopt the measure of dissolution, which would have allowed time for the evil to have passed off gradually, and would have been perfectly easy. We have proved conclusively, that in every Presbytery within the bounds of the four exscinded Synods, there was a sufficient number of churches and ministers purely Presbyterian, to form a constitutional judicatory. For this I refer to the testimony of Mr. Squier. Mr. Hubbell. We offered to bring testimony t© disprove that fact, but it was rejected. Mr. Wood. The counsel offered to prove only that Congregationalists and Presbyterians were mixed up in those Synods, and we don't dispute that, but only that Congregationalists predominated. If some irregulari- ties had occurred, if some improper persons had been admitted to seats in the higher judicatories — why such irregularities are incident to every human tribunal. There is not an institution in our country — and there is no other country so filled with corporations — in which irregularities do not often occur. It is the duty of such an institution to amend itself, to cure or heal the disorder; not to cut off that portion of its members which are thought to offend, without trial, without any hearing. I think then that the court will say with no hesitation, that the ex- scinding resolutions were void, and in no way to be regarded. One idea farther, in regard to the position, that the Assembly has a right to judge of the qualifications of its own members. It may judge in the first in- stance, but all these subordinate institutions must judge rightly, or they form an unlawful assembly, and the civil courts will decide their acts to be void. There are certain higher institutions which are in all such cases the last resort. Such are both houses of Parliament, our House of Repre- sentatives and Senate, and the different state legislatures. But on what principle does their power to judge of the qualification of members rest? They exercise a sovereign authority; that is, they partake of a sovereign nature, and the courts of justice cannot reach them at all. But it is not so with inferior institutions, which are under the entire control of the law. If they cut off any portion of theirmembers who are justly entitled to seats, and strip them of their privileges, the court will tell them that their proceedings are void and illegal ; that they will not be allowed to de- prive members of their just rights. I hope there is no court in this coun- try, which would hesitate to say, when men have been cut off as these have, when they have been stripped of all their powers and privileges as members of such an institution, that the act was absolutely null and void. May it please your Honour, I am labouring under considerable indispo- sition, and must beg for a short recess. MR. WOOD'S ARGUMENT. 417 Judge Rogers. We will adjourn until Monday, if you would pre- fer it. Mr. Wood. I had rather go on a little farther, after a short intermis- sion. (Here the jury were allov/ed a recess of ten minutes.) Mr. Ingersoll. If I understood the learned counsel correctly, he has made a mistake in regard to an important fact. I understood him to say, that the fourth of the resolutions in regard to the four Synods, requires that the individual ministers and churches, wishing to be restored, must make application to the General Assembly. If this was his meaning the facts do not bear it out. Mr. Wood. I think there is no danger of misunderstanding on this point. (Here he read the fourth resolution. — Vid. ante. p. 4Q.) I will read in connexion with this the other resolution before alluded to, to be found in the Minutes of 1837, page 429. " That the constitutional right of every Presbytery to examine all seeking connexion with them, was settled by the Assembly of 1S35, (see Minutes of 1835, p. 27.) And this Assembly now render it imperative on Presbyteries to examine all who make application for admission into their bodies, at least on experimental religion, didactic and polemic theology, and church government." — Vid. ante. p. 404. Now the effect of these various measures, was to require any indi- vidual who had been turned out, and was strictly Presbyterian, to go be- yond the infected district, two or three hundred miles, and make appli- cation to be re-admitted. And "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." Taking the whole in connexion, and examining all its parts, it is manifest that this plan, if carried out, would have prevented any member of any of the four Synods from participating in the organization of the Assembly, unless he had been admitted in the mode appointed, having first travelled out of his own region, and applied for admission to some inferior judicatory, having been examined on experimental religion, and having then been restored on application to the General Assembly. This is the whole pro- cess. In order to get back at all, he must be purely Presbyterian; then if he resided in Buffalo, he must travel some hundred miles to the nearest Presbytery, and seek admission; and then his case would be referred to the General Assembly of 1838. And in addition to this, the Presbytery to which he applied must examine him on experimental religion. How do these provisions tally with that found in the Form of Government Chap. X. Sect. 2. — " A Presbytery consists of all the ministers, and one ruling elder from each congregation within a certain district." The members of the four Synods were told that no judicatories could exist within the infected region, that they must leave the ground where these bodies had taken root and flourished; that it was not Presbyterian ground; and that they must travel beyond it before any one of them could come up to the Assembly of 1838. And then, that they must not come with their commissions in their pockets, to be referred, in the first instance, to the Committee of Commissions, and if necessary, through 53 418 PRESBYTERIAN CHURCH CASE. them to the Committee of Elections, but the Assembly having been or- ganized without them, that they should go down upon their knees, and show that they had completed all that the resolutions require; that they had travelled out of the infected' region, been examined, though some of them among the oldest men in the Church, on experimental religion, and found purely, and strictly Presbyterian, and now laid their cases before the General Assembly, begging that it would condescend to take order thereon. And even then they might not be instantly admitted: the matter might be deferred for further consideration. I was remarking, gentlemen, upon the distinction between such infe- rior and subordinate institutions, as the Assemhly, which are all under the cognizance and control of the courts of law, and those higher bodies of a sovereign character, like the British House of Commons, or those like our own House of Representatives and Senate, and our various state legislatures, v. hich partake of the attributes of sovereignty. The latter do not allow any court to interfere with their judgment on the rights of membership. But this is not the cas'e with the former, the subordinate institutions. If in any one of them a dispute arise as to the formality of a commission, first, ex necessitate rei, it must pass on the case, must de- termine the question. But whenever it undertakes to cut off a part of its constituency, to strip them of their rights, the act is void in law; and if the admitted members of the body, choose to consider this as a dis- puted question, and endeavour to prevent the participation of the re- presentatives from the part exscinded in the organization of the body, or in its deliberations afterwards, they do an unlawful act, they form an unlawful assembly, and it is the duty of those excluded to resist the attempt, and to organize the Assembly lawfully. I think no one will hesitate to say that this is sound law. In the heat of party excite- ment, to which all institutions are liable, much injustice is often done. I might refer to the case of the British House of Commons, where for a long period back, the excitement resulting from contested elections hav- ing been found injurious and productive of great wrong, these have been referred to a committee for decision. It is thought that a claim of mem- bership should not be considered a mere party question. There is a striking instance of a sovereign body, which has a perfect right to judge in all such matters, and which no court of justice can reach, perfectly aware of the difficulty, and labouring to remove it. The House of Com- mons, high and sovereign as it is, and possessed of every kind of talent, considers a regulation of this sort necessary for its own government. In our subordinate institutions where the same amount of talent does not exist, the right of deciding on the qualifications of members is strictly controlled: the courts of law exercise a superintending authority over their decisions; and that they should, is the dictate of sound wisdom. At an earlier stage of the argument the proposition was advanced, that any assembly of one of these inferior bodies, constituted in such a way, as that full opportunity is not given to every member to come in and ex- ercise his rights, is an unlawful assembly. And every one entitled to a seat must have the opportunity not only of attending but also of acting. I mean to show, first, that this is the law of the land, and then that the Presbyterian book bears out the civil law. I refer to */lng. £,' Ames, 27G— 9. MR. WOOD'S ARGUMENT'. 419 " Although when a day is periodically appointed for one particular business, no notice is necessar}' when that alone is to be transacted, or the mere ordinary affairs of the corportion; yet when the intention is to do other acts of importance, a notice is required. The election or amotion of an officer, a by-law, or any act of similar importance, on any day not expressly set apart for that particular transaction, is illegal and void. When a particular notice is required, it must be given to every member who has a right to vote, whether the act is to be done by a body consist- ing of all the definite classes, or of one of them only." And this law is not confined, in its application to municipal corporations. It is all the stronger in the case of private institutions, by so much as it is to be pre- sumed that they have less knowledge of the regular manner of transacting business. " In the Supreme Court of Connecticut, in a case in which it was insisted that a meeting of the Middletown Manufacturing Company was illegal, Dagett, J., who gave the opinion of the court, observed — 'It is very clear that a meeting of the stockholders, constituted as this was, could do no acts binding on the company. Though a meeting regularly warned, would be competent to do any act within their chartered powers, by a bare majority; yet if not thus warned the act must be void. If no .particular mode of notifying the stockholders be provided, either in the charter or in any by-law, yet personal notice must be given; and this in such a case would be indispensable,' * * * to support the validity of corporate acts, each member must be actually summoned. ******** "It is unnecessary, that the notice should be in writing; and it seems that if the members are fully informed by a parol, or any other warning, that there is to be a meeting, it is enough. * * * "In general, the notice should state the time at which the members are to assemble, and also the place, if different from the place where meetings are usually held. It is not generally deemed necessary, however, to state what business is to be transacted, when it relates only to the ordinary affairs of the corporation. But if there is to be an election, or amotion, or the passage of a by-law, or a disposition of property, some intimation should be given; for such members as may not think their attendance necessary for the usual routine of business, will, perhaps, feel it their duty to attend upon such occasions, in order to preserve the interest and good order of the body corporate, and the fundamental principles of its insti- tution. * ;^ .-^ * * * * " If the members be duly assembled, they may unanimously agree to waive the necessity of notice, and proceed to business; but if any one person having a right to vote is absent, or refuses his consent, all extra- ordinary proceedings are illegal. But if the charter requires a special notice, it cannot be dispensed with, even by unanimous consent. When some of those who have a right to vote, are assembled upon due notice, and all the others who have a right to notice, attend without it, and agree to enter upon the proceedings, it is a legal waiver of the notice, and the act of the assembly cannot be impeached for the omission of it." In the notes it is said, that the ringing of a bell has been determined not to be reasonable notice, even after long usage, if the district in which the members live is so large, that some of them are beyond hearing of the bell. These passages establish beyond a doubt, the doctrine, that in 420 PRESBYTERIAN CHURCH CASE. order to constitute a lawful assembly, every member who has a right to act, must also have an opportunity to exercise that right. Every attempt to shut out any lawfully entitled member, is an attempt to create an unlaw- ful assembly. It is not necessary to give notice, in order to hold a stated meeting, for it is presumed that all know of that, and have the means of attending. Therefore, if at such a meeting, a sufficient number to form a quorum is present, they are enough to transact ordinary business. But, we find that all these institutions are subject to the same law, from muni- cipal corporations to private manufacturing companies: as to the latter, Judge Dagett's opinion is express. Each member must have notice of the time of meeting; and where any business of importance is to be trans- acted, out of the ordinary routine of duties, notice of the particular busi- ness to be done must also be given. The same doctrine is laid down in 6 Viner^s Abridgment, 269, Sect. 11. And the same doctrine by the Presbyterian Church; or a doctrine that amounts to the same thing. The passage to which I refer, has been already read on the other side. It is found in the rules adopted by the Assembly in 1S26: "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. "The committee of commissions shall, in the afternoon, report the names of all whose commissions appear to be regular and constitutional; and the persons whose names shall be thus reported, shall immediately take their seats, and proceed to business." — Vid. ante, p. 156. In this, you see the Assembly acting out the very principle for which I am contending. If commissions are informal and irregular, the body must be organized without them, and they must be passed upon at a sub- sequent period ; but it is the duty of the clerks to carry out the same prin- ciple in each case. Each member has a right to require that his com- mission shall be reported on by the clerks. Now, if the exscinding resolutions were as utterly void as I think I have shown them to be, they should have been utterly disregarded. They were precisely similar to an act of the Common Councils of Philadel- phia, cutting off four of the city wards, without notice, or accusation. No court would hesitate to say, that an excision of the latter kind was void, and that the exscinded wards had a right of representation in the subse- quent Council. And so it is here. It has been proved, that every one of those who came to the Assembly of 1S3S, from the four exscinded Synods, had a regular and strictly formal commission. Their due elec- tion being then beyond dispute, what was there to keep them out? No- thing but a void act. An unlawful deed performed in 1S37 — I cannot say a deed without a name, for it has gotten the name of excision. An act which this court will tell you was entirely void. If I am right in this, then fairly carrying out the plain principle of the law of the land, that you cannot constitute a lawful assembly without giving every mem- ber an opportunity to come in, to its necessary result, it is evident that the General Assembly could not be rightfully organized, without giving every regularly elected commissioner an opportunity to take his seat at once. And any Assembly which it was attempted to organize in 1838, to the exclusion of the commissioners from the four Synods, exscinded in 1837 by a void act, the law cannot for a moment sanction. They all MR. WOOD'S ARGUMENT. 421 stood on a platform as broad and strong as that which sapported Dr. Green. It is a fact not to be disputed, that none of the commissions rejected in 1838, were irregular or informal; that there was no case of contested elec- tion; in short, that there was no difficulty about either the fact or manner of the election of a single commissioner from within the bounds of the four Synods. According, then, to the doctrine of their own book, it was the duty of the Committee of Commissions to put their names upon the roll, in order to enable them to participate, as members, in the organi- zation. I now proceed to the next branch of the subject, having satisfied you, as I think, that the act of excision was void, and the commissions of the commissioners from the Presbyteries belonging to the four Synods, valid. Each of these commissioners, then, had a right to take his seat in the Assembly of 1838. And any organization of that body, in violation of their rights, was an unlawful organization, and not the true Assembly. Now there was a concerted plan commencing in 1837, and followed up by the Moderator and clerks of that year, and by a majority of the Old- school, to carry out the acts of excision, by preventing any organization in 1838, which should embrace the commissioners from the exscinded Synods. In other words, there was a determined purpose, commencing in 1837, and carried out in 1838, to form an unlawful Assembly. This efibrt of the Old-school was a most extraordinary one. In fact they passed several very extraordinary acts: they would probably have done better, had they too consulted counsel learned in the law. But they knew perfectly well that such counsel would have told them that each General Assembly was independent of every other. The doctrine ad- vanced by the opening counsel on the other side, in regard to the effect of such a void act, upon the body by which it is passed, is not true in all the extent to which he carried it. The act of excision did not destroy and dismember the Assembly of 1837, and make all its subsequent acts void. It still continued to be the Assembly de facto, so long as there was no other, its acts were all liable to be set aside. But each body is independent of the rest, and therefore the acts of one could not affect any other. The institution itself is permanent and cannot be destroyed. Each House of Commons or House of Representatives is independent of every other, and an attempt by one house to destroy or vitiate the subse- quent one would be idle and void. The institutions must exist as long as their respective countries. It is very evident that in all their subsequent measures the Old-school were endeavouring to act out the exscinding resolutions. After passing them, the first thing done was to pass an act, providing, as they say, the means, by which alone those who had been excluded could get back again into the Church. They were, as stated, to travel out of the infected region to neighbouring Presbyteries, to submit to examination, and then to apply to the Assembly. This was the only mode of restoration. The Old-school seem to have had a squinting of the fact that their measures were not good in law; but seem likewise to have thought, that as they had not consulted counsel, they were above all law — entirely independent of it. Supposing, at any rate, after provision had been made for restor- ing such as chose to come back, that they might proceed with impunity, being exempt from all liability, they determined to infuse the conse- 422 PRESBYTERIAN CHURCH CASE. qnences of the acts of 1837 into the Assembly of 1838. Shortly after the exscinduig resolutions were adopted, it seems to have suggested itself, that the trustees might be the sticking point, and therefore an act of in- demnity was passed. {Vid. ante, p. 47.) It was hoped that they would assist in carrying out the measures of excision, but the Assembly anticipating that those who had been cut off would not remain quiet, promised to indemnify the trustees. They knew perfectly well, that under the rules of the house, their clerks and Moderator would have something to do in the organization of the next Assembly. Tiie learned counsel has been pleased to regard these officers as a sort of germ of the new body. A very singular doctrine; for if a germ be destroyed there can be no growth; but the loss of the officers of the Assembly may be supplied. In the organization of any Assembly, the Moderator and clerks are mere officers of the body and nothing else. The only object of continuing them in office is, the saving of trouble in choosing others; but they have no greater powers than if they had been chosen for the purpose of organizing the house. In order to infuse the acts of 1837 into the Assembly of 1838, to carry out the exscinding resolutions, it is proposed to require a pledge from the clerks, who consequently say that a pledge is unnecessary, that they already feel bound to act in accordance with those resolutions. " Oh, but they gave no pledge," says the learned counsel. What was this but a pledge? If it was not one, it was so near like it, that it would be very difficult to distinguish the difference between the two. To be sure they did not use the word pledge, but what was the object of their explanations at that critical time? Why did they give assurances to the Assembly of 1837, that they would act out its void resolutions? Their object manifestly was to make a formal pledge unne- cessary, by engagements equivalent thereto, though couched in different terms. And in consequence of the assurance thus given, a pledge was not exacted. We find, then, the old Assembly of 1837, though admitted to be independent of every other Assembly, precedent and subsequent, attempting to carry out its illegal measures by pledging the clerks. It is a little singular that neither Mr. Ewing's resolution, calling for a pledge, nor the statement of the clerks, nor the consequent withdrawal of the former, appear at all upon the Minutes. Why not? I can see no other reason fur the omission, than that Dr. McDowell didn't like to let these things appear, because he saw that he had done wrong. In 1838, he said to the rejected commissioners, " I can't receive your commissions, but I don't think the decision of the Assembly right. My own private views are so and so." On account of his declaration in 1837 — call it a pledge, or what you will — he felt bound to refuse the commissions, though he believed that the exscinded acts were void, and ought to be disregarded. We can imagine some excuse for his neglecting to put these proceedings upon the Minutes. The recording angel is represented as sometimes dropping a tear to blot out a memorial of human weakness. I doubt not that Dr. McDowell was willing to drop a similar tear. I have now done with the Assembly of 1837. I have shown that the acts of excision passed were void; but that nevertheless after passing them, the Old-school, labouring under the influence of strong excitement, attempted, by all the means in their power, by an offer of indemnity to the trustees, and by pledging the clerks, to infuse these acts into the MR. WOOD'S ARGUMENT. 423 organization of the Assembly of 1838. Now then we come to the Assem- bly of 1838, and there we find the same parties acting out these very measures. First, the Old-school commissioners, secondly, the clerks, and thirdly, the Moderator. In the first place the Old-school commission- ers— this prior to the organization of the Assembly. In a preliminary convention of the members to the Assembly of 1838 — for all were invited to attend — the following proposal was sent to the Old-school commissioners, convened in another place. Here Mr. Wood read the proposal, with the reply of the Old-school. Vid. ante, p. 191. Now there you have full and complete evidence, that the Old-school were, in 1838, acting out the resolutions, and were determined to orga- nize the Assembly upon the principles, of 1837. They say distinctly, "We will stand by the measures of 1837: we cannot acknowledge any connexion with the commissioners from the four Synods," Or, in other words, " We mean to organize the Assembly of 1838, to the entire ex- elusion of the representatives from all the Presbyteries within the ex- scinded district, with this exception: that those that have travelled out of that distr:.', been examined, and admitted, may come before the Assem- bly and present their cases; and then if that body chooses it may restore them. You see here a determined plan, clearly expressed in their own published resolutions, to organize the Assembly of 1838, to the exclusion of certain commissioners. It is plain that they meant to exclude every commissioner coming from the infected region, unless such as were sent by Presbyteries which had complied with the specified terms of restora- tion. They were not to apply as members, but were to come begging for relief, which was to be extended to them, after examination, if they should prove purely Presbyterian in doctrine and order. Now we are certainly warranted, after a protocol of this kind, to say, that the design of those members of the Old-school, who had clustered around the Mode- rator at such an early hour, and of the clerks, who had locked the door, a thing which, notwithstanding all that has been said by the learned gentle- man [Mr. Preston) who told the story so lugubriously, had never been done before — that their design was to organize the new body on the plan of exclusion, and to carry out the resolutions of the previous year. We are warranted in saying, that those who clustered around the Moderator, and the paraphernalia of office, were determined to proceed on the princi- ples of 1837, to organize an unlawful Assembly. Now we come to the conduct of the clerks, and we find them, in pre- cisely the same manner, attempting to act out the exscinding resolutions. Their powers and duties are fully enjoined in the rule which has already been read. "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 thus reported, shall immediately take their seats, and proceed to business." Ante, p. 156. And it is also the duty of the clerks to report the informal or doubtful commissions, and lay them before the Assembly, to be referred to the Committee of Elections. But what did the clerks do? They acted upon the same principles as the Old-school commissioners. The com- missions from the exscinded Presbyteries were laid before them. Were they examined? Not one of them. The answer to the commissioners 424 PRESBYTERIAN CHURCH CASE. was, "We can't receive them: we don't know you: you can't come in." If I am right in saying that the acts of 1837 were void in law, the clerks ought to have disregarded them entirely. Suppose the judgment of a court of justice is void, it don't justify the sheriff who serves an execution issued upon it. Are we told that these exscinding acts, completely dis- franchising two hundred thousand souls, and stripping them of all their rights, were to be carried out by mere clerks, or by a Moderator; and that the Assembly organized to the exclusion of the representatives of this great body of people, was a valid and lawful body? Now for the Moderator. We find him, in conjunction with the Old- school, entirely ready to act out the whole of the measures of 1837. In the first place, let us look at Dr. Patton's resolution. What was his object? To get the names of the commissioners who had been rejected, on the roll. He was called to order by the Moderator. He appealed from the deci- sion, but the appeal was not allowed to go to the house: it also was pro- nounced out of order. I do not care whether the Moderator said, sim- ply, "You are out of order;" or, "You are out of order at this time." I will show clearly what he was doing — that he was acting out the exscind- ing resolutions; and was determined to exclude all the commissioners from the four Synods, excepting those admitted in the mode pointed out in 1837; those who should come in and submit to an examination. The roll which had been made up by the clerks, was then called for and re- ported, when Dr. Mason rose: his object also being to get upon the roll, the names of about sixty commissioners, who had been rejected. He wished to lay their commissions before the house — sixty commissions, all formal and regular: that they were not so, has not been pretended. It was perfectly plain, that there had been a gross violation of duty on the part of the clerks, under the rules of the house; yet the Moderator, in the plenitude of his assumed power; in violation of the rules of law; in violation of the rule of the Church, which I before read from the Digest; — that no one shall be disfranchised without notice and a hearing; in viola- tion of the rules of 1826; though the commissions presented were all formal and regular; says to Dr. Mason, "We can't receive them: they are out of order" — " out of order at this time,^' if you please. Well, next Mr. Squier presents his case. He comes with his commission in his hand; says that he had gone before the clerks and presented it; that it is a valid commission, but has been rejected by them; and he demands his seat. It seems, that pretty much about the same time, Mr. Moore, who hasn't yet presented his commission at all, goes up to the clerks to pre- sent it. Why was not Mr. Squier admitted ? Because, as we have before shown, the Moderator was acting out the resolutions of 1837. We have shown that the Old-school party were doing this; then, that the clerks were doing it; and now it appears that the Moderator was engaged in the same plan. What did Dr. Elliott reply to Mr. Squier's application? He asked where he was from. From such a Presbytery, was the answer. Where is that Presbytery? It is within the bounds of such a Synod. "We don't know you." Why not? The Synod from which he came, had been cut off; and he was not to get back, unless by going out of the infected district, submitting to an examination on experimental religion, and then presenting his case to the Assembly, that they might take order upon it. Now, let us suj)pose a case. Suppose that the clerks had chosen MR. WOOD'S ARGUMENT. 425 to leave off of the roll, the names of fifty Old-school commissioners, and had not reported their commissions as informal, but left them out all to- gether. Do you believe that any Old-school Moderator would have said to these, when they demanded their seats, or desired to lay their commis- sions before the house, " We don't know you.-*" An Old-school Mode- rator was presiding at that time; and he had himself called for commis- sions, which had not been presented to the clerks and enrolled. This we have shown by his own testimony. Mr. Huhbell. That was not his testimony. It was Mr. Plumer's. Mr. Wood. Dr. Elliott said, that he called for commissions which had not been presented and enrolled. Bui, suppose he called only for those which had not been presented, and fifty Old-school commissions perfectly regular and formal, but which had been presented already, had been offered, do you believe he would have rejected them? Not a man of the whole number. He would have received them, because he wished to receive them. If it was the duty of the clerks to report all the commis- sions, both formal and informal, and if they had violated that duty, it was not enough to say, that the Assembly could remedy the evil, and heal the breach that had been made. On this doctrine, the clerks could shut out nearly the whole of the commissioners — two or three hundred — all but fourteen, enough to form a quorum. They might cut, and carve, and mould the Assembl)' just as they pleased. Here, then, was a gross vio- lation of duty — the rejection of these men, in furtherance of a void and unconstitutional measure. Here was a Moderator, a mere ministerial offi- cer of the house, not chosen by the body itself, decreeing, in the plenitude of usurped power, that that was not the proper time for these commis- sions to be received. And when would the proper time have come? This was just on the eve of the organization's being completed. Was the right time after the appointment of a Committee of Elections? All the books show that they are appointed to pass judgment on informal com- missions. " The committee of commissions shall, in the afternoon, report the names of all whose com.missions shall appear to be regular and con- stitutional; and the persons whose names shall be thus reported, shall immediately take their seats, and proceed to business. " 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." — Vid. ante, p. 156. Now you observe that this Committee of Elections is to be appointed after the house is organized. And what is the duty of the committee? The commissions which the clerks have decided to be informal or ir- regular, are to go to the Committee of Elections: those are the only ones which the clerks are to exclude from the roll. Yet it is contended on the other side, that they had power to shut out from the Assembly some whose commissions were entirely regular, and that the Moderator had a right to carry out their act, and prevent the Assembly from passing on the subject. You perceive that when the Moderator had refused to en- tertain Dr. Mason's motion, he appealed, and his appeal was seconded; but that Dr. Elliott refused to allow even the appeal to be put to the house. If our opponents attempt to shelter themselves under the idea that these commissions should have been referred to the Committee of 54 426 PRESBYTERIAN CHURCH CASE. Elections, I say that that committee was to be appointed so as to suit the purposes of the Old-school, to execute their determined plan. But they didn't mean that they should go before the committee: only those re- ported by the clerks as irregular go to them. What was Dr. Mison's object? It was to bring the matter before ihe house. If it was designed to admit lliese commissioners, so that a lawful Assembly might be formed, that was tlie last point of time at which it could be done. If it was really the object of the Moderator to get them in, that was the only chance of accomplishing his plan. But he takes upon himself tlie responsibility of rejecting them, and not only refuses to put a motion, but farther, when an appeal is taken, refuses to put the appeal. He would not suffer the rejected commissions even to be laid on the clerks' table, to be considered as before the house at all. But some difficulty has been made in regard to the precise words of the Moderator. In order to show his meaning, which is my only object, and that he was plainly acting out the void resolutions of 1837, I refer to the Old-school Minutes of 1838. I read their own minute of the transac- tion, verified by Dr. Elliott himself, who says that although it does not narrate all that happened, it is true so far as it goes. When Dr. Mason offered the commissions, " The Moderator inquired if they were from Presbyteries belonging to the Assembly, at the close of the sessions of last year." Why did he make this inquiry if his object was to know merely whether they had been presented to the clerks or not? If his object was to exclude a certain class of commissions, it was very proper to ask Dr. Mason, whether they were from Presbyteries in connexion with the Church, at the close of the Assembly of the last year. " Dr. Mason re- plied that they were from Presbyteries belonging to the Synods of Utica, Geneva, Genesee, and the Western Reserve. The Moderator 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 declar- ed to be out of order, and" — did what? Does he mean to refer them to the Committee of Elections? — "and repeated the call for commissions from Presbyteries in connexion with the Assembly." f^id, ante, p. 220. He did not consider the exscinded Synods as in connexion with the As- sembly at all. The refusal was not for that time alone. His language was, " I am acting as Moderator of the Assembly of 1837, and intend to carry out the measures of that body. I'll join the clerks in the attempt to shut you out entirely. If you make a motion even to lay these com- missions on the table, I'll refuse to entertain it, I'll pronounce it out of order;" then he goes on to call for commissions coming from Presbyte- ries in connexion with the General Assembly, and if any are presented inquire whether they are from such Presbyteries. Does not all this show as plainly as day, that the object of the Moderator was to shut out these men both before and after the organization; that he did not intend them to come in through the Committee of Elections, nor in any other way, unless according to the resolutions of 1837, by submitting to examina- tion, after applying to the adjoining Presbyteries, and then presenting themselves before the Assembly for that body to take order upon their cases? His reply to Mr. Squier was of the same cast — I do not intend to speak of it as a denunciation. Although personally he knew Mr. Squier, as Moderator he did not know him when he came to demand a MR. WOOD'S ARGUMENT. 427 seat. How could he say he did not know him, unless he was acting out the exscinding resolutions? He knew that the Presbytery from which Mr. Squier was sent had once been recognised as a part of the Church; why then did he know it no longer? It is plain I say, that he meant to act out the measures of 1837. If he did add, " at this time," his only meaning was, " They c^n't come into the organization; their commissions cannot be laid upon the table, cannot be referred to the Committee of Elections. They are no part or parcel of the Assembly. We don't know them." They were to come in only according to the resolutions of 1837, which had been adopted by the Old-school convention in 1838; only by making application in the way already described. But, gentlemen, on what possible grounds could the Moderator refuse to put Dr. Mason's appeal to the house? According to his own princi- ples the body was then sufficiently organized to proceed to business, the roll having been reported; for the next step he said was for the house to appoint a Committee of Elections. But the clerks had failed to report all the commissions, and the object of the motion was to make them do their duty. "No," says Dr. Elliott; "the first act of the Assembly must be the appointment of a Committee of Elections." If Dr. Mason had suflfered that time to pass, and the house to be completely organized, he could not have got the commissions which he offered before that com- mittee at all. Afterwards the application must have been to the organiz- ed body. He could have demanded admission for the excluded mem- bers only from the Assembly of 1838, the Old-school Assembly. They had been before told thus to apply, but they could not agree to a propo- sition which said, " You are no part or parcel of the Church, and have nothing to do with the organization. Yon must adopt the method point- ed out in the resolution: you must come in on your knees, after an ex- amination on experimental religion." If I find any position clearly laid down in the Presbyterian book, it is, that it is the duty of a Moderator always to put an appeal. You will see this regulation among the general rules for judicatories, and in several other places. " If any member consider himself as aggrieved by a decision of the moderator, it shall be his privilege to appeal to the judicatory; and the question on such appeal shall be taken without debate." — Jlppend. to Const. R. 29. The Moderator must allow the appeal to go to the house. I don't care whether these rules are in force in any Assembl}' before it express- ly adopts, them. If they are, the one which I have read makes it impe- rative to put an appeal; if they are not, still it is an inherent right of a member of any deliberative body, to have an appeal from any decision of the chair put to the house. The Moderator was bound to put the appeal. In refusing, he made himself a supreme dictator, a judge in the last re- sort. I have always understood the right of appeal to be inherent in every organized assembly. If I am right in this view of the matter, I think I have shown that the Moderator and clerks had concerted a plan for organizing the body to the exclusion of certain rightful members, of forming an unlawful Assembly; that the refusal of the clerks to receive the commissions of those members was a direct violation of their duty; that the refusal of the Moderator to put an appeal was a violation also of his duty, as it would have been a violation of the duty of any presiding 428 PRESBYTERIAN CHURCH CASE. officer. You have then the case of a Moderator and two clerks, mere ministerial officers, who have refused to do their duty. In the next place I will endeavour to show that this refusal justified their removal from office. Now, may it please your Honour, I should be glad of an adjournment. Court adjourned. MONDAY MORNING, March 25th— 10 o'clock. I find, gentlemen of the jury, on looking again at the exscinding reso- lutions, that I have made a slight mistake in regard to the bearing of a particular part — that which provides the mode in which Presbyteries may come in again. Here Mr. Wood read the fourth reso\\i{\on.— Vicl. ante, p. 46. It would appear that the design of the resolution was this: that all the ministers and members of churches belonging to Presbyteries within the bounds of the four Synods, which were not strictly Presbyterian in doctrine and order, should travel out of those bounds, apply to ad- joining Presbyteries, and be admitted on examination; but that those Presbyteries which were purely Presbyterian should come before the Assembly and apply there for restoration; and the Assembly was to take order thereon. It seems to be implied that such Presbyteries should go directly to the General Assembly. But the mistake is of little importance. If they come to the Assembly, they must first recog- nise the excision as valid: they must apply as persons without, seeking to be admitted into the body, thus acknowledging that they are in the situa- tion of aliens. I do not see how any commissioner could be sent to the next Assembly from these Presbyteries, for in order to appoint represen- tatives they must be connected with the Church. If any should be ap- pointed, they must come, not to claim seats, but to sue for admission. What was meant by a Presbytery strictly Presbyterian in doctrine and order? Look at the views of those who passed the act of excision and you will discover. Any Presbytery which had in connexion with it a sin- gle Congregational church, according to the terms of the alliance of 1801, was not considered strictly Presbyterian. Consequently as to the great body of the Presbyteries — the whole number, with very few exceptions — this mode was impracticable. The great mass of one or two hundred thousand worshippers exscinded, would have been obliged to travel two or three hundred miles to adjoining Presbyteries, there to undergo the examination of which I have before spoken. This manner of a Presbytery's coming in is a complete anomaly, a gross irregularity: it disarranges the whole Presbyterian plan of government. The Assembly cut off" the four Synods — did not dissolve but destroyed them, declaring them no part or parcel of the Church. What was the consequence? Suppose a Presbytery, recognising the validity of the exscinding acts, had sent up a committee to the General Assembly, to apply for its readmis- sion, and to show that it was strictly Presbyterian in doctrine and government. Suppose that this committee should have demanded the restoration of the Presbytery; should have said, " Come, examine our case, and admit the body that we represent." What spectacle would have been presented? The entire prostration of the whole Presbyterian MR. WOOD'S ARGUMENT. 429 system, for that requires a regular gradation of authority; from the General Assembly to the Synod, from the Synod to the Presbytery, and from the Presbytery to the Session. The records of a Presbytery are to be examined by the Synod, and those of a Synod by the General Assembly. If this order is of divine right, the course proposed would be counter to the law of heaven. I do not go to the length of saying that it is ef divine right. There is nothing in the Confession of Faith re- quiring such a belief. But according to constitutional right, there must be a regular gradation of authority from the General Assembly to the Synod, from that to the Presbytery, and so on. If you cut out the Synods, you have nothing but Presbyteries to come in; and according to the terms of the resolution, they are to apply directly to the General Assembly. It is a great point of the case, that they are treated as out of the .Church; that they are directed, not merely to send commissioners, but to come praying for admission, and to submit to examination in re- gard to doctrine and order; after which the Assembly is to exercise its own discretion about admitting them. I undertook to show on Saturday, that the exscinding resolutions were void; that they were not justifiable on any principles of judicial proceed- ing, because there was no notice, no trial or hearing; nor yet as legisla- tive acts, because such a subordinate institution cannot pretend to the power to disfranchise a portion of its members by mere legislation. Farther, those resolutions were not good, as partaking of the nature of political revolution. The four Synods could not be severed as a nation may sever a portion of itself. It is idle to say that the Assembly could resort to such an extreme measure, when it is governed by law in the exercise of its jurisdiction; when it is completely subject to the laws of the land. And I undertook to show, not only that the act of excision was void, but also that there was a concerted plan formed to carry out that act; that the Old-school convention had passed a resolution ap- proving and adopting it; that the clerks, in furtherance of the same scheme, had rejected altogether the commissions from the Presbyteries belonging to the four Synods; that the Moderator was endeavouring to follow out the plan of exclusion; and that the whole process of organiza- tion was proceeding on this exclusive principle, and was therefore defec- tive, up to the time when Mr. Cleaveland rose. It yet remains to be shown that the Old-school General Assembly itself did afterwards carry out the doctrine of excision in their own organization. After their Moderator had been displaced by Mr. Cleaveland's motion, and the true Assembly had left the church in Ranstead Court, they who remained went on and organized an Assembly according to their own principles, shutting out all those who came from the infected district. Now this body, in every thing that it did and did not do, in 1838, manifested a determined purpose to exclude the exscinded commissioners from the organization: this purpose appeared in all their proceedings. They com- menced in the wrong way, and they ended as they commenced: so I suppose they will go on to the end of life. First, they did not repeal the exscinding resolutions, but declared them still in force. Next, in the statistical table appended to their Minutes, which contains a list of the Synods and Presbyteries, the four Western Synods are omitted, evident- ly being considered no part or parcel of the Church. Again on page 34 430 PRESBYTERIAN CHURCH CASE. of these Minutes, you have the views of the Old-school Assembly car- ried out to their full extent. Mr. Hubbell. That part of those Minutes is not in evidence. Mr. Meredith offered them for two purposes only — First, for the preliminary minute of the organization; and, secondly, for the statistical table. Judge Rogers. But if offered for one purpose only, they are in evi- dence for all purposes. Mr. Hubbell. This part was never read at all. Mr. fVood. The whole I thought was offered. Mr. Hubbell. I asked Mr. Meredith distinctly for what purpose he offered these Minutes. He replied, for two purposes — those which I have mentioned. We were prepared with evidence upon this point. Judge Rogers. What can be th.e objection to his reading the part to which he refers? Mr. Hubbell. Why, may it please your Honour, we have had no opportunity to explain it, or to give counter testimony. It is an entirely new matter. Judge Rogers. Mr. Wood, you may go on. Mr. Hubbell. Will your Honour please to note an exception? Mr. Wood. The Old-school Assembly of 1838, for the purpose of carrying out the measures of 1837, passed three acts. It is from the first of these that I read. " Section 2. In case the majority of any Presbytery, whose Com- missioners have acted as aforesaid, shall take proper order touching their conduct in the premises, and are willing, upon the basis of the Assem- blies of 1837 and 1838, to adhere to the Presbyterian Church in the United States, then and in that case the act of their said Commissioners, in advising, creating, or uniting with said Secession, or in refusing to attend on this Assembly, as the case may be, shall not prejudice the rights or interests, or affect the integrity of said Presbytery, or its union with the Presbyterian Church in the United States of America, as an integral portion thereof. " Section 3. In case the majority of any Presbytery shall refuse or neglect to take the proper order in regard to its seceding Commissioners, or shall approve their conduct, or adhere to the new sect they have created, or shall decline or fail to adhere to the Presbyterian Church in the United States of America, upon the said basis of 1837 and 1838, for the reform of the Church, then and in that case the minority of said Presbytery shall be held and considered to be the true Presbytery, and shall continue the succession of the Presbytery by its name and style, and from the rendition of the erroneous and schismatical decision, which is the test in the case, be the Presbytery; and if sufficiently numerous to perform Presbyterial acts, shall go forward with all the proper acts and functions of the Presbytery." Now then you see, that the Old-school, not only in the organization of the Assembly, so far as it had gone when those who had first organized themselves left the house, but also in the organization which they after- wards effected, in the form which they considered the true one, when the others had retired, were carrying out the principles of 1837, i-egard- ing them as the right basis of organization, and declaring that the minori- ty in every subordinate judicatory of the Church, which adhered to the MR. WOOD'S ARGUMENT. 43 j Assembly formed on that basis, where the majority acted differently, ad- hering to the Assembly constituted on the principle of admitting all the members to their seats — that such minority should be considered the rightful successor of the judicatory. On what principle then could the Old-school invite these commissioners to wait until the organization had been perfected, and then apply to the Assembly for relief? Is it not manifest that they were acting out the exscinding resolutions? They declare that they are the true basis of the Church, and provide that any minority who adhere to the Church as founded on that basis shall be considered as the true branch of the Assembly; and the same doctrine is carried out in the statistical table, to the very end of the Minutes. On what principle then, are we told, that those who have been ex- cluded will be received, whenever they choose to come back? The fat- ted calf might indeed be killed, but they alone, who having cut off their brethren, have persisted in the attempt to keep them out, would feed on the banquet. What parallel is there between the picture presented in that beautiful passage, to which the learned gentleman has referred — the picture of the most touching parental solicitude, and of filial affection, warming the heart of the prodigal, even in all his devious wanderings — what parallel between that picture and the scenes of 1837 — brethren turn- ed out of doors, without a hearing; without notice of any complaint. The gentlemen on the other side had better take, as the polar star of their course, the land of Kosciusko, dismembered by ruthless despots, and its inhabitants driven out from the homes of their ancestors. Having made good my position as to this part of the case, I now pro- ceed to the consideration of certain other cjuestions relating to the organi- zation of 1838, which has thus been brought down to the time of Mr. Cleaveland's motion. My first remark is, that the gentlemen on the other side are entirely wrong, in speaking of ours as a new organization. It is not true that it was so. All that we did was, to continue that already commenced: which, however, was proceeding irregularly in the course marked out for it by the Moderator and clerks. In any body, whether in the process of organization, or completely organized, if the Moderator or clerks refuse to do their duty, they may be displaced, and new ones put in their stead, and yet no new organization be effected. Other offi- cers being substituted for them, every thing goes on in regular course: the proceedings are merely continued from the point where they were interrupted or broken ofi". Suppose a clerk, a Moderator, or a Chairman be taken suddenly sick, and a new one be appointed in his place: is such appointment a new organization of the body? No; the subsequent acts are engrafted on the original proceedings. The old body is not dismem- bered by a mere change of a ministerial officer. It is perfectly imma- terial, as to the efiect, whether the removal and substitution are occasioned by misdemeanor in office, or by disability, arising from sickness. In either case, the subsequent proceedings are a mere continuation of the business: the officers having been changed, the regular business goes on. One of the learned gentlemen told you, that though he had knocked down Mr. Cleaveland, he would yet give him a few more blows. This was certainly very ungallant conduct towards a prostrate foe, in a gentleman of his lofty and noble bearing. But I will endeavour to vindicate his character from the aspersions which he himself has tried to cast upon it, ^32 PRESBYTERIAN CHURCH CASE. by showing that he did not strike Mr. Cleaveland, after knocking him down, because he has not yet knocked him down: Mr. Cleaveland still remains upon his legs. Under the next head, I shall inquire, first, whether a refusal of an officer of the Assembly to perform his duty, or misconduct tantamount to such a refusal, will justify the body in removing him, and substituting another in his place; and, secondly, whether the refusal of the clerks to enroll the exscinded commissioners, and of Dr. Elliott to put an appeal, was a refusal to do their duty, or was tantamount thereto. The affirmative of both these propositions, I shall endeavour to establish. First, as to the power of the body to remove an officer. Why, gen- tlemen, this is a power so essentially inherent in every body, that one would think there could be no dispute about it. If an officer of any de- liberative assembly, refuses to do his duty, as for example, if clerks re- fuse to observe the rule which makes it their duty to put all regular com- missions presented on the roll; and if the Moderator, when the com- missioners thus rejected are attempting to get their places, to have the error of the clerks rectified, and for this purpose make a motion, refuses to put that motion, and an appeal being taken from his decision, refuses also to put the appeal, what is to be done? You must either allow these officers to turn dictators, or you must say that there is in the body an in- herent right to displace them. But we find the law on this point so clearly laid down, that there can be no doubt respecting it. In Jeffer- son's Manual it is expressly declared, that the Speaker of the House of Re- presentatives, and the Speaker of the British House of Commons, though they are essential officers, though nothing can be done without them, may be displaced for a refusal to perform their duty. The same principle is found in Jingell and J3mes, 247. " A distinction is made between such persons as hold a ministerial office, and such as hold an office of the essence of the corporation. A mere ministerial officer, appointed durante bene placito, may be remov- ed without any other cause, than that the pleasure of those who appointed him, is determined; and a formal amotion for the appointment of another to the office is sufficient, without resorting to notice. In these cases, says Mr. Wilcock, the right to amove is, of course, incidental to the right of appointment. And a ministerial officer may be so amoved, when appointed durante bene placito, where the power of appointment is ' for life,' or ' during pleasure.' Of this class is a town clerk or recorder; that is, it seems, where the recorder is a mere counsel to advise, and not one who has a corporate office and voice in the common council. But there cannot be a custom to amove at pleasure from an office of the es- sence of the corporation; such for example as an alderman; for he has a franchise in his office." The author then goes on to state the grounds on which a person who has a franchise in his office may be amoved, and the proper manner of removal. Then on page 252 he remarks, " An amotion from one office does not of course the least impair the title of the person amoved to another office; and much less is it a disfran- chisement from his right as a mere member of the corporation." You observe that there are some officers who are of the essence of the corporation; as in a municipal corporation, like that of Philadelphia, the mayor and recorder. Such an officer has a franchise in his office, and MR. WOOD'S ARGUxMENT. 433 cannot be removed by the body, unless for sufficient cause shown, and in the manner pointed out by their charter. But a mere ministerial officer may be removed at any time: if he holds merely during pleasure, this is unquestionable. Now, hj the Constitution, the old Moderator is to con- tinue in office only until a new one is appointed, which regulation shows clearly, that the Assembly may appoint another. In the case before cited. Field v. Field, 9 IVendell, 402, it is decided that such an officer may be amoved, if he does not perform his duty. The court say that the majority of the assembly, instead of keeping the minority out of the house, because the presiding officer had violated his duty, ought to have amoved that officer; thus clearly showing that they had the power of amotion. Now, in the next place — and no doubt all that I have said on the first point has been a mere waste of time — was there sufficient cause for our removing the officers of the General Assembly, in 1838? Here I take for granted that for good cause they might be removed, and ask merely, had we good cause for our proceedings? This was not a case of petty irregularity, of a sudden sally of bad temper, of temporary excitement producing a moment's excess. There was a deep, settled, and deadly purpose to do wrong. None of you have ever before heard of such an instance. The report of this trial must hereafter always be looked to as a leading case. You have here the workings of a grand machine — a new infernal machine, or a species of guillotine, for cutting off at a single fall of the hatchet, two hundred thousand souls, without any notice or warn- ing. It is an entirely isolated case, wrapped up in its own gloomy gran- deur. I challenge any man to produce another instance of the kind from the whole history, civil and ecclesiastical, of this country. There is none like it. It should be a matter of pride and pleasure to us all as Americans, that in this land no such attempt has ever before been made. It was to redress wrongs of the character which I have described, that these officers were removed. They were determined to carry out the plan which had been concerted in direct violation of their plain duty. The Moderator refused even to put an appeal: if he had put this, the decision would have been a direct test of the strength of the boasted Old- school majority. How do our opponents attempt to justify the proceed- ings of the Moderator? They say that he could not be removed, because there was no house to remove him; that at the time of Mr. Cleaveland's motion, the Moderator and clerks were every thing; that they were as yet the sole powers in the Assembly, which only after its complete organiza- tion was in a condition to act. Is this the doctrine of any organized body? I ask you as men of common sense, and I may add, as men of business, for you have each, no doubt, contributed to the organization of some sort of deliberative body, how is an Assembly newly convened con- stituted? Is it not by the members coming together by mutual consent and exhibiting to one another their vouchers of membership? At this stage of the business, the body is not organized, but is in the process of organization. Such is precisely the case with the General Assembly. Is it said that the body is not in existence until after a Committee of Elections has been appointed? As soon as the constituting prayer has been offered, its existence commences. Ransack the whole of the Minutes and you will find that the Assembly is always constituted by prayer. 55 434 PRESBYTERIAN CHURCH CASE. Who appoints the Committee of Commissions? At first, the house itself; but latterly the old clerks have formed a standing committee. To whom do these clerks, or this committee report, if there is no house in exist- ence, at the time of making their report? How can a committee report when there is no house to report to? The very idea of a report in such a case involves an absurdity. If the commissioners were a parcel of sheep congregated together, they would need a herdsman; but I appre- hend that only rational men are sent to the Assembly, and that they require no clerk or Moderator to act in a herdsman's capacity. They may always come together, and mutually exhibit their vouchers. They are then the Assembl}?^ in its incipient state, and-have power to appoint a Moderator or chairman, and clerks, in order that those officers may make out the roll. Suppose that in a parcticular case there should be no Moderator in attendance, and that the clerk too was absent or sick. What could be done? Why, according to the doctrine of our opponents, the General Assembly would in that case be the poorest, most wretched and miserable body in existence. The commissioners, having no Moderator or clerk to assist them in their organization, would have to pocket their commissions and go home. To plain, practical m.en, of com- mon sense, there would be no difficulty at all; but to theological meta- physicians, a Moderator and clerk would be absolutely necessary: they could never organize themselves without them. Suppose another case — that the two clerks should positively refuse to perform the necessary duties of the organization; that they should re- fuse to put down the names of any commissioners, or should make a roll of only ten — not enough to form a quorum: what could be done then. Is the power of the clerks to be absolute? No house is in existence, to perform any act, until a Committee of Elections has been appointed, say the gentlemen on the other side. But what if the old clerks refuse to assist in forming any house, and pocket all the commissions which have been presented? Any body of men could organize themselves, under such circumstances, without difficulty. They know one another, and that is enough for the incipient stage of the organization, enough to em- power them to choose a chairman. Any member rises, and moves that A take the chaii-, and that B and C be clerks. The gentlemen appointed on such motion take their seats. Then the clerks as a Committee of Commissions can examine those presented, and receiving all that are regular for enrolment, lay aside the irregular and informal commis- sions for after consideration. The only difference between this method of proceeding and that usual in the Assembly, is that here, to prevent difficulty, the old Moderator, and according to a recent rule, the old clerks, are continued in office to assist in the organization; the Moderator, according to the express words of the provision, only until a new one is chosen. If these officers are not in attendance, the common sense of every man tells him that others must be appointed by the commissioners present. Thus thousands of deliberative bodies in our own country are organized. There is no country in the world where the organization of societies for the various purposes of business, amusement, and instruction, is so common. There can be no difficulty about organizing such a body as the General Assembly. In this case, it is true, the old Moderator attended and entered upon the duties of his office; but it is equally true, MK. WOOD'S ARGUMENT. 435 that he refused to perform those duties, or did acts tantamount to a posi- tive refusal. The emergency was in every respect equal to that happen- ing in the case of his sudden sickness. It was the duty of the clerks, according to the rules of 1826, {ante, p, 156,) to put on the roll the names of all who presented regular commis- sions. This they were bound to do, yet certain regular commissions they refused to receive. Then the Moderator violated his duty also. When the clerks refused to put the names of the exscinded members on the roll, that was a breach of their part of the duty of organization. There was a defect in the proceedings according to both their own rules, and the general principles of law, which establish beyond a doubt, the position, that no assembly can be lawfully constituted without allowing all entitled to seats to participate. An effort was made to compel a com- pliance with this rule, but the Moderator refused to put a motion for that purpose; and likewise, when his decision was appealed from, refused to let the appeal go before the house; being fully determined to act as a dic- tator in the organization; and to carry out to their consummation the void measures of 1837, in desperate defiance of the house, which had an undoubted right to organize itself, or to compel a lawful organization. I say then, that all these officers had refused to perform their respec- tive parts of the duty imposed upon them. But they had done some- thing more. Here was a concert, a collusion, a contrivance to effect an illegal organization of the Assembly. We have already seen the Old- school acting out the resolutions of the Assembly of 1837, the clerks pledged to pursue the same course, and both clerks and Moderator in 1838, attempted to organize the Assembly on the basis of these resolu- tions. Here then I say was a concert, a collusion, between the Modera- tor, the clerks, and a portion of the commissioners, to constitute an unlawful Assembly. What was this but fraud — a conspiracy, supposing, as I have shown, that they had no right to shut out these members? On any just principles of law, fraud annuls every thing that it touches. Here it was tantamount to a refusal to perform prescribed duties, and the Assembly was crumbling under its influence. In speaking thus, I do not intend to impeach any body's motives. These gentlemen were labouring under strong excitement, or they never could have brought themselves thus to cut off their brethren by thousands and tens of thousands. But if their measures were unlawful and unconstitutional; if they deprived multitudes of all those rights secured to them under the charter; and if these measures were the result of a concert to carry out acts that were unconstitutional and void; in law they were guilty of gross fraud, no matter whether they acted conscientiously or not. Suppose a man em- barrassed in his circumstances, in order to secure the means for future exertion, whereby he may finally clear ofi'his debts, or for the support of his family, transfers a portion of his property to a friend, to be held for his use. The transfer is wrongful, illegal, and void. The law will treat it as a fraud, however conscientious the man may have been. If I am right in this, then the concert which I have shown to have existed, was, in the eye of the law, a fraudulent conspiracy, not only to destroy the rights of certain portions of the Church, but to perpetuate their destruc- tion; to prevent those who had been exscinded from ever getting in 436 PRESBYTERIAN CHURCH CASE. again, unless according to certain prescribed principles of admission, which involved an acknowledgment that they had been fairly excluded. The next objection made to the validity of our organization is, that when Mr. Cleaveland rose to speak, he was called to order by the Mode- rator. That call, it is alleged, ought to have stayed for the time all far- ther proceedings. I can understand, that when a speaker is addressing a body regularly constituted, and engaged in the regular transaction of its business, if he is called to order by the Moderator, it is proper that he should stop, until the question of order has been settled. But here was a very different case. Here the presiding officer had refused to do his duty, and this warranted his being displaced. A member rises and makes a motion for his removal. Now, on what principle can it be contended that when he tries to make this motion, the Moderator may interrupt him by rapping with his hammer and calls to order? If Dr. Elliott had the power thus to stop Mr. Cleaveland, the organization could not have proceeded one inch without his permission: he became at once a complete dictator. By such an extraordinary application of a. rule of order, he would have iDeen secure in his place, no matter how grossly he had vio- lated every law. Then a mere chairman of an assembly may refuse to put a question, may refuse to put an aj)peal, and though it is perfectly plain, that he is attempting to carry out mere party views, may proceed in de- fiance of the house, and organize it in an unlawful way. For if any one rises and moves that he be displaced, all that he has to do to put down the speaker, is to hammer, to pound away upon his desk: the latter must instantly stop. What would be the consequence of this? Why the Mo- derator would retain his seat as long as he felt disposed. But another answer to the objection is, that the question raised by Mr. Cleaveland's application to displace the Moderator, was, from the very nature of the case, a privileged question, one which interrupted the ordinary routine of business. The learned gentlemen tell us, that the rules of 1826 prescribe the course of proceeding which should have been pursued in this case. "The committee of commissions shall, in the afternoon, report the names of all whose commissions shall appear to be regular and constitu- tional, and the persons whose names shall be thus reported, shall imme- diately take their seats and proceed to business. "The first act of the Assembly when thus ready for business, shall be the appointment of a Commitlee of Elections, whose duty it shall be to examine all informal and unconstitutional commissions, and report on the same as soon as practicable." — Vid. ante, p. 156. Now, according to this course of proceeding, it is manifest, that you must first have before the house a full report of all the commissioners who present formal and constitutional commissions, and that when the names of all these are on the roll, then if there be any informal commissions a Committee of Elections must be appointed, to whom the latter may be re- ferred. That is the course which the rule prescribes. Had such been the course here? Did the rules which I have read justify the Modera- tor's proceeding, when the object of Dr. Mason's motion was to secure a place on the roll for every commissioner who had a regular and consti- tutional commission? We answer that the names of all whose commis- MR. WOOD'S ARGUMENT. 437 sions were regular and constitutional were not yet upon the roll; that the clerks had refused to insert a number of such names; and that there- fore according to their own showing, the next business in order was not the appointment of a Committee of Elections: that was to be done after all the names of thjose whose commissions were regular and constitutional had been enrolled. If it be true that more than fifty such commissioners had not yet been enrolled, it follows, I say, that the next business was not the appointment of a Committee of Elections; that the next business was, from the necessity of the case, the completion of the roll, which the clerks had refused to perfect; the putting upon it the names of all whose commissions were formal and regular, as the rules imperatively require. The efforts then made by Mr. Squier, Dr. Mason, and Dr. Patton, were all efforts to complete a roll, which the very rules quoted on the other side .required to be complete, before a Committee of Elections was chosen. The gentlemen of the opposite party tell us, that previously to Mr. Cleaveland's rising, another motion had been made, which had a prior right. I believe that there is a slight mistake here. That motion was not made previously to his rising, but during the course of his proceed- ings. For proof of this, I take their own minute of the transaction, as verified by Dr. Elliott, one of the committee who drew it up. " Mr. Cleaveland," says that minute, "then rose and began to read a paper, the purport of which was not heard, when the 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 Huntingdon, presented a commission, which being examined by the Committee of Commissions, Mr. Moore vv^as 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 continuing, and the Moderator having in vain called to order, took his seat, &c." — Vid. ante, p. 220. You observe, then, that the motion for the appointment of a Commit- tee of Elections was made after Mr. Cleaveland had commenced his re- marks. And the object of it was simply to appoint a committee, to whom might be referred half-a-dozen informal commissions, according to the rule of 1826. But how stood the case before? Why here were sixty commissioners who had not been enrolled, though it was the duty of the clerks to put them on the roll. The Committee of Commissions had not before put on the roll, the names of all whose commissions were regular and constitutional; and Dr. Mason rises, to have those whom they had rejected, enrolled. The Moderator refuses to receive his motion, and also refuses to put an appeal which Dr. Mason takes from his decision. Then, after this refusal, Mr. Cleaveland rises and makes a motion to ap- point a new Moderator. How then can it be said, that another motion was previously pending? And, if it had been pending, what of that? Why, according to this doctrine, the principles of parliamentary order were to prevent entirely the grossest errors on the part of the clerks from being corrected. They and the Moderator, effectually sheltered from punishment by rules of order, must have been allowed to do just as they pleased. They might have shut out any commissioner whom they did 438 PRESBYTERIAN CHURCH CASE. not like, and it would have been impossible to rectify the error. A routine of business is fixed: this must come first, and this next, and this next; and though the officers are not organizing the Assembly on its regular basis, though they have excluded the riames of half the commissioners from the roll, it is not in the power of the house to set them right, or punish the misdemeanor! If this be true, then were the acts of 1837 fastened upon us completely: no commissioner from the exscinded district could hope for restoration. I must request your particular attention to the various positions taken in regard to the remarks and motion of Mr. Cleaveland, which I shall examine as briefly as I can, endeavouring to point out the errors into which the opposite counsel have fallen. One object of this motion of Mr. Cleaveland — his chief design in making it, was, to have a portion of the house admitted to participate in its acts and deliberations, whom the Old-school portion meant to exclude entirely. I refer you to the lan- guage of Mr. Cleaveland. He said, that as the clerks and Moderator had refused to do their duty, as a large number of commissioners had been excluded from their seats, as they had been advised by counsel learned in the law, that that was the proper time and place to effect a con- stitutional organization, he hoped it would not be considered discourteous, if they should proceed to organize the Assembl}^, which they would do with as little delay as possible. In the first place it is objected that he uses the word loe, by which he manifestly means the New-school, and not the General Assembly at large. " We had been advised by coun- sel"— "if lue now proceed to organize, &c." If there be any position which the whole evidence places beyond a doubt, it is, that the great de- sign of those whom I represent was to secure a general, full and entire organization of the body, which should embrace every commissioner from all the Presbyteries connected with the Assembly, at the com- mencement of its sessions in 1837, which object had been but partially accomplished. The object I say of Mr. Cleaveland's motion was to effect an organization which should embrace the whole. Look at the negociations that took place between the two conventions prior to the meeting of the Assembly: see the New-school plainly stating their pur- pose to be, to secure the admission of all the members. The reply to their proposition is, that the opposite side can recognise no principle of organization, but that having for its basis the exscinding acts of 1837. But say the learned counsel, that we speaks volumes. It occurs in the Pastoral Letter which has been read in evidence. But in what sense? Are they not speaking in that pastoral letter as the General Assembly; as a bodv embracing every part and parcel of the Church? Their or- ganization included all, both Old-school and New, without any distinc- tion. They knew no party; they sought to preserve the unity of the entire Church; their object was to break down an exclusive organization, which had been attempted, and was in progress. When they use the word we, they mean, we, the General Assembly, as opposed to a part, or clique of the body, which had endeavoured to cutoff a large limb, which they chose to say they did not consider a portion of it. But, in the con- vention, the New-school used the word we. Do they consider the mem- bers of that convention to have intended the exclusion of any portion of the Church? The gentlemen on the other side were told over and over MR. WOOD'S ARGUMENT. 439 again, that we wished the entire Church to be brought in; that there should not be a partial organization, but a complete one, embracing all the commissioners; that we were opposed to the exclusive principles of the Assembly of 1S37, which did not admit all. I would refer you to the advertisement of this convention, or meeting for consultation. " Whereas, the state of the Presbyterian Church at present is such as to demand the consultations and prayers of all its Ministers and Churches, in order to preserve its unity and peace; and whereas, the measures adopted at the last Assembly, excluding certain Synods, and the third Presbyter}'- of Philadelphia, and providing for the organization of the Assembly of 1S3S, give reason to apprehend unhappy collisions at the opening of that Assembly, as well as subsequently; and whereas all party conventions in the Church, except for the defence of rights which have been assailed, . are greatly to be deprecated, it is therefore proposed and recommended, that all the delegates to the Assembly of 1S3S, meet at 8 o'clock, on the evening of Monday, the 14th of May, in the First Presbyterian Church of Philadelphia, for the purpose of interchanging views, and of devis- ing such measures, as the present exigencies of the Church may require." Vid. ante, p. 56. All the delegates were invited to attend; and for what purpose? To effect a partial organization of the Assembly? No, but a general organi- zation; one which should embrace the representatives of the entire Church. Some of the Old-school did attend this meeting for consulta- tion; and as to those who did not, it was their own fault; for they had been invited. The convention treats of itself as a convention of the whole number of commissioners: that is the sense in which they use the word we. Mr. Cleaveland used it in the same sense. He meant the whole house thus addressed — all the members of it who wished to form a constitutional Assembly — not excluding any portion, which was the ob- ject of the opposite party. The next objection to our proceedings is, that the old Moderator and clerks were not expressly displaced; that is, that Mr. Cleaveland moved, that Dr. Beman should be Moderator, and did not, in so many words, move that Dr. Elliott should be put out of the chair. Gentlemen, the design of the motion was perfectly manifest. It was addressed to the As- sembly, but Mr. Cleaveland wished to do as little violence as possible to the feelings of Dr. Elliott. When he first rises, his face is towards him, but he gradually turns it toward the entire body of the members: his motion was not, from the very nature of it, made to the Moderator. It was his object to do nothing discourteous, only to secure an impartial and complete organization; therefore he moves merely that Dr. Beman shall be Moderator. Does not this substitution displace the old Modera- tor, without any express amotion? Take the language of the Constitu- tion itself: the old Moderator is to preside until another is chosen. Of course when another is chosen the former cannot remain in office. You will find the principle of the law on this subject laid down in Wilcock on Corporations, 246. " If the charter give the ' mayor for the time being,' power to appoint a town clerk, he has power to amove the town clerk appointed by his predecessor without any notice or formality, and may exercise it by simply appointing another." 440 PRESBYTERIAN CHURCH CASE. There is the case of an officer appointed by a predecessor, just as the old Moderator was appointed by the Assembly of 1837, and he may be removed by the simple appointment of another. The case of the Mode- rator is still stronger, for he, according to the Constitution, is to remain in office only until another is chosen. Now, was the great object of the New-school', their endeavour to effect an organization of the entire Assembly, a portion of the members of which had been unconstitutional- ly deprived of their ecclesiastical rights, to secure the equal representa- tion of the whole Church, leaving both Dr. Green and Dr. Barnes in pre- cisely the same situation in which they stood before the passage of the exscinding resolutions, to be utterly defeated by- mere quibbles and quirks of this kind? But we are told that Mr. Cleaveland remarked that every thing would be done with as much expedition as possible. That is not wonderful. Look at the situation in which he, and those who aided him in endea- vouring to secure his object, stood. In every thing they were governed by the circumstances in which they acted. You observe that the trus- tees of the church had taken rneasures to exclude from it any body attempting to organize itself, unless under the old Moderator, and a paper stating their resolution had been put into Dr. Beman's hands. I say that this notice would have justified Mr. Cleaveland in rising and saying, that as they were not at liberty to use that church to organize the Assembly otherwise than as the old Moderator and clerks choose, and as it was evident that they were attempting an unlawful organization, he called on all those who desired to secure a lawful Assembly to retire. He had a right to call upon them to retire, and they a right to organize themselves even in the street, relying upon the authority of the case which has been furnished by the opposite counsel, from 9 Wendell, 400. In that case, a portion of a religious assembly had undertaken to organize themselves to the exclusion of another portion, the latter having the presiding officer Avith them. No force or violence was employed, but the latter were given to understand that they could not have the use of the church; and the Supreme Court of New- York, decided that they were justified in organiz- ing the assembly in the open air, and sustained the organization which was so effected. True, the learned counsel on the opposite side relies on this case for support, because the party that he represents resembles that whose organization was thus sustained, in having the presiding officer with them ; but he is too familiar with the use of cases not to know that that little circumstance is of no importance. He cannot have suffered it to lead him astray so far, that he has entirely lost sight of the great prin- ciple of the case. What is that principle? That the portion who were endeavouring to effect a complete organization were the lawful, and the other portion an unlawful assembly. The Supreme Court say, that the lat- ter ought to have allowed all to take their seats, and if they did not like the conduct of the presiding officer, amoved him; that the principle on which they were attempting to organize the body was unlawful, and the organi- zation of those who had been excluded lawful. They say, that those who wished to secure a lawful organization would have had a right to retire into the open air, to have constituted their meeting 5r<6 dio, and that such an assembly would have been sustained. And I hope every tribunal in the country would have decided in the same way. Here Dr. Mason and MR. WOOD'S ARGUMENT. 441 Mr. Cleaveland, while one portion of the Assembly were insisting on effecting in a peculiar way to the exclusion of a part of the members an unlawful organization, with another portion were attempting to effect a lawful organization, which should bring in the entire body. An effort was made in that case to exclude the presiding officer; in this to exclude the representatives of a large portion of the Church, who still had a right to their seats, having never been constitutionally removed — as substantial a right as that of any member. In both cases the principle is the same. In each the party attempting an unlawful organization had a right to the use of the church. There the other party, going into the open street organized themselves, and that organization was sustained. Here, if Mr. Cleaveland had chosen to do the same thing, inasmuch as they were denied the use of that house, as it was the determination of the trustees, that only those should use it who were willing to organize themselves under the old officers, self-constituted dictators, a triumvirate who were to be permitted to do as they pleased, when he found these officers persisting in an attempt to create an unlawful assembly, he had a perfect right to call upon those who were opposed to an exclusive organization to retire to an adjoining open place, to Washington square, if he had liked, and I trust that if they had chosen to obey the call, their organization in the open air would have been borne out in any court in Pennsylvania. In- stead of that, however, in order to give the Old-school a full opportunity to come into the lawful assembly, and to secure an organization of the entire body, the New-school remained, and under all the embarrassments of their situation effected their object. What did Dr. Fisher say was the reason he did not try to take the chair, when elected Moderator? That he knew such an attempt would create confusion and disturbance: that he was afraid Dr. Elliott would not give up the chair. Did not the remarks of Mr. Cleaveland suppose a determination on the part of Dr. Elliott to prevent, if possible, every effort to secure a lawful organization ? Why, when Mr. Cleaveland uttered the simple words, " counsel learned in the law," the hammer of the Mode- rator and his calls to order, sounded with redoubled strength; and the clique around him called loudly to order. If Dr. Fisher or Dr. Beman had advanced towards the chair, those sounds would have burst forth with ten fold violence; they would have drowned every other. Look at the difficulties by which these men were surrounded: they did every thing in the way which they thought best calculated to quiet the trustees. Dr. Fisher says, that they were appprehensive that the trustees might in- terfere, and resort to force. Therefore they did nothing which could by possibility be considered discourteous: their object, as they had plainly told their Old-school brethren a few hours before, was simply to effect a lawful organization, to bring in the entire Church; and to avoid all diffi- culty with the trustees, they effected this in as short a time as possible. Now, gentlemen, this is the question which arises, in applying the prin- ciples of the case cited, on which that portion of the Assembly that re- mained in the church rely. The other portion having taken the advice of counsel, had been told that the exclusion of a part of the members was wrongful, and they wished to effect an organization which should include all of both parties. Now, they might have retired into the open air to accomplish this end; but, instead of that, saying that they hoped what 56 442 PRESBYTERIAN CHURCH CASE. they did would not be considered discourteous, and that they would en- deavour to be as expeditious as possible, they organized the Assembly in the house. Was not that organization as good, as if they had effected it after going out into the street, or into a public square? Unquestionably it was. But, next, say our opponents, your proceeding was unlawful, because you did not put in the room of Dr. Elliott the last Moderator before him, who was present. It seems that there were one or two gentlemen present, who had been Moderators subsequently to Dr. Beman. In the first place, I answer, that the rule does not apply at all to such a case. It amounts only to this. To facilitate the transaction of business, and prevent unnecessary trouble and embarrassment, the Constitution orders that the Moderator of the previous year shall continue in office until another is chosen. And, then, to carry out the principle a little farther, the Assembly has adopted a regulation, that if the old Moderator is not present, the next before him shall preside. But I say, the old Moderator was present, and had taken the chair, but he performed certain acts in the organization, which amount- ed to a refusal to do his duty: this was a case to which the rule refer- red to, did not apply at all; and therefore the Assembly, acting under their constitutional powers, had a right to choose any one to preside; and, moreover, as they were here acting under another power — their power to secure a lawful organization, they had a right to put in the chair one who would do his duty: the selection was a matter for their own judgment. In passing, I may remark, that all who had been Moderators subsequently to Dr. Beman, and who were present, seem to have been of the Old-school party, and therefore in concert with the Moderator and clerks; still, I am willing to rely here upon the right of the body to choose their own Moderator. But, suppose that they ought to have taken the next in order — I believe that was Dr. Witherspoon — suppose they ought to have put him in the chair, and did'nt do it: this was a violation of a mere rule of the house; and certainly the house itself could dispense with a rule of the house. At least, no man of common sense will say, that the error vitiated the organization. So the Assembly themselves decided in another case — in 1835. At the commencement of the session of that year. Dr. Beman presided, in the absence of the old Moderator, though he was not the last one present. Well, the business proceeded regularly under his presidency, the clerks made their report, and the commissions afterwards handed in were received, before the irregularity was discovered. But did it vitiate these proceedings? Was the organization destroyed? Not at all. When Dr. Beman had retired, and Dr. M'Dowell taken his place, did they go back, as if every thing done was void, and do it over again? No; they simply took up the business where it was, when interrupted by the discussion in regard to the Moderator. This precedent confirms my views, showing that the removal of an officer is not a revolution, and does not make necessary a complete re-organization of the Assembly. That the subsequent proceedings may properly be a mere continuation of the previous business, taken up where it was temporarily dropped. I now come to a point very much relied upon by our opponents. They say that they were really the majority of the whole body; that our attempt is to oust them by a mere intendment of law: this they re- peat over and over again as the chief burden of their song. Now, in the MU. WOOD'S ARGUMENT'. ^^3 first place, how are you to ascertain when a question is put, on which side the majority are, unless by the vote? His Honour has already de- cided that that is the only mode, that the majority of voices is to be taken as the majority of the body. If some don't choose to vote you can't make them vole: but if any are present, and prefer to say nothing, they cannot expect to be counted. I refer on this point to Angell 8f Jimes, 67. " After an election has been properly proposed, whoever has a ma- jority of those who vote, the Assembly beina; sufficient, is elected, although a majority of the entire Assembly altogether abstain from voting; because their presence suffices to constitute the elective body, and if they neglect to vote it is their own fault, and shall not invalidate the act of the others, but be construed an assent to the determination of tlie majority of .those, who do vote. And such an election is valid, though the majority of those whose presence is necessary to the Assembly, protest against any election at that time, or even the election of the individual who has the majority of votes; the only manner in which they can effectually pre- vent his election is by voting for some other qualified person." If I thought it possible to make this doctrine plainer, I could cite nu- merous cases which show beyond a doubt, that where a majority refuse, when all have opportunity, to vote, they are not to be counted; that the majority of the actual voters decide the question. Judge Rogers. I have no doubt on that point. Mr. Wood. If your Honour will indulge me for a moment, I will show here, what I proved on Saturday to exist in other cases, a remarka- ble coincidence between the laws of the land, and the rules of this vene- rable institution, the Presbyterian Church. You have already seen this in a variety of instances. You have seen the good practical sense of the Assembly before it was frittered away in these proceedings. " Members ought not, without weighty reasons, to decline voting, as this practice might leave the decision of very interesting questions to a small proportion of the judicatory. Silent members, unless excused from voting, must be considered as acquiescing with the majority." — Append. to Const. R. 30. As the object of all the remarks which have been made in regard to this so called intendment of law, has been to create prejudice in the minds of the jury, on the subject of the majority, I would beg to be indulged, while I make a few farther remarks upon it. Our opponents seem to rely upon the power of a majority to disregard all right, and to force through the Assembly any measures that please them, no matter how prejudicial to the interests of others. In the case already cited, 9 Wendell, 402, the Supreme Court of New York established a very different doctrine. In that case, as here, the objection was pressed, that the part who remained were the majority; which seems to mean that they who have a majority may do what they like, simply because they have a majority. But this is not the principle of law there laid down. The minority which withdrew was sustained, was declared the true Assembly. The others could not avail themselves of the principle of a majority^ because the Constitution did not require a majority to form a quorum. Only a small minority withdrew, but the only question to be asked relative to numbers was, had they a constitutional quorum? This 444 PRESBYTERIAN CHURCH CASE. principle you meet with on the page of 9 JVendell, next to that which I have just referred to. The counsel for the majority had objected that the presence of a majority was necessary to form the true body; but the court, adverting to this objection, say, that the society of Friends do not act upon the principle of majorities; that if but a minority organize the meeting, that minority being a quorum, it is a lawful organization; but that if the minority did not constitute a quorum, and the others proceed- ed to form the assembly in an unlawful manner, both assemblies would be unlawful. The majority principle however they decided, did not apply in that case; and that if the body organized in the open air, had a quorum, they must be sustained. There is then no difficulty as to this point in the present case, since in the General Assembly fourteen are a quorum. This doctrine of a majority is, I am afraid, too often understood to mean, that a majority is without the pale and controul of law. But, gentlemen, you must recollect that in a country of law, a majority has no power to do wrong. Suppose three persons own a ship in equal shares, can two resolve to exclude their companion, and take the ship wholly into their possession? This is about the amount of the majority doctrine for which these gentlemen contend. But what is the law on this point? That where one portion, though a majority exclude another portion, they form an unlawful assembly. I have read page after page to show, and have I think clearly demonstrated, that every rightful member of the body must have an opportunity to come in, or the organization is unlawful. Every one must know of the meeting. Suppose a special notice be given to a majority of the members: is that sufficient? No; the meeting convened on such notice would be illegal. Every member, even the least, must be allowed to participate ; and this especially in the case of a delegated body. How, will you constitute a representative assem- bly, without giving full opportunity to all entitled to take seats? But I do not leave this matter here. How have our opponents found out that they had a majority in that body — a majority ready to carry out the exscinding resolutions; a majority approving of the work of this eccle- siastical guillotine, cutting off thousands without mercy or warning? How could they know certainly any thing about the matter without a a vote's being taken? Has it not been shown that they might have been mistaken in their men? It seems that even all of the Old-school party of 1838 had not been gotten up to the sticking point. Mr. Phelps, who says that he has taken great pains to ascertain the facts on this subject, tells us that there were enough Old-school men opposed to carrying out the principles of the excision, to have secured the admission of the rejected commissioners, had the question been fairly presented. But it never was allowed to come before them. He says that there would have been a hundred and forty in favour, and but one hundred and thirty-six against, Dr. Mason's resolutions; and where is there a witness who has contra- dicted this statement? There is not one. But the other side rely upon the number remaining with the Old- school, after the other party had retired. But what does that show. Not at all what they would say. It shows only how many sympathized with the Old-school, after the two portions had separated. It is not strange that after the organization, some who disapproved of the excision, chose to MR. WOOD'S ARGUMENT. 445 remain with the Old-school, merely from temporary prudential considera- tions, inasmuch as they had in their hands the books, papers, seminaries, and all the property of the Church. Thus may have been gained an apparent majority in numbers. But does the fact of a majority's re- maining prove, that a majority were ready to carry out the exscinding acts; that they approved of cutting off the rejected members, or of leaving them out in the organization? No such thing. How w^as it with Dr. McDowell? He declared, when examined on the stand, both what his language as clerk was, and what was his private opinion; that as clerk he felt bound to obey the mandate, which he was pledged — I can call it nothing but a pledge — pledged to obey; but that his private opin- ion was against the measures of 1837. Here was his mistake: he thought that as a ministerial officer he could not consider those measures unconsti- tutional and void, and lay them entirely out of the question. If he had gone into the house, and the question had been put whether they would assist in securing a lawful organization, would he, as a member, have voted with the Old-school? Then, he would have been acting as a mem- ber of the house, and not as a mere clerk. Has Mr. Phelps' testimony on this point been contradicted? How can the gentleman on the other side undertake to say, when no actual vote was given, that Dr. Mason's motion, if the question had been put, would have been voted down? There is strong evidence the other way, and evidence entirely uncontra- dicted. A word farther on this subject. It seems that in 1837 and '38, the Old-school were so proud of being in the majority, that they could hardly use any other word of designation. They cannot .speak of them- selves and their brethren, but as the majority and minority. Mr. HiihhelL I beg to remind Mr. Wood, that Dr. McDowell was not a member of the Assembly of 1838. Mr. Wood. Well, if he was not a member, he is an Old-school man; and we show his opinion as such. Mr. Phelps' testimony, as I said, is uncontradicted. Gentlemen, on this subject of majorities and minorities, as claimed by the respective parties, I will read the language of the Old-school them- selves from the Minutes of 1837, page 499. They are speaking of the Old-school and New-school, and here is their own opinion in regard to the comparative strength of the two. " 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 ministerial or Christian communion with one another than either of those parties have with Christians of other denomina- tions; and they are so equally balanced in point of power, that for years past it has been uncertain, until the General Assembly was fully organiz- ed, which of those parties would predominate in that body. — Past. Let. Append, to Min. \S^l,p. 499. Here they come forward and claim the power to carry through any measure; to cut oif any number of their brethren on the ground that they are a majority. This assertion is not true: it was impossible to tell how the parties would have been divided on the subject of Dr. Mason's motion; but more than all, this court will never recognise and sanction the principle, that a majority may trample under foot the rights of a minority. 446 PRESBYTERIAN CHURCH CASE. The next objection made to Mr. Cleaveland's proceeding is, that in rising to make his motion he should have addressed the chair. It appears that he did not do so. This is a most extraordimry objec- tion. What? when the Moderator refuses to do his duty, refuses to put an appeal to the house, manifests a fixed determination to proceed in a course of illegal measures, despite the wishes of the house; and a member, in consequence of this misconduct, rises, and moves that another Moderator be appointed, and that the old one shall be displaced, he is bound to address that old Moderator? This apppears to me like the grossest absurdity. I venture to say that such a method of pro- ceeding would have been conti'ary to all usage. - Never, in any delibera- tive body is a question which afiects the presiding officer put by himself. Even a question in regard to a mere matter of compliment must be put by some one else. But when Mr, Cleaveland made a motion to displace Dr. Elliott, and the latter was trying in every way to prevent him from offering it, will you say that Mr. Cleaveland ought to have addressed him? Should have addressed him when he was calling to order, and endeavour- ing to prevent the question from being put? Why this suggestion is so extraordinary that I hardly know how to argue it. When Mr. Cleave- land was making his remarks, the Moderator was strenuously endeavour- ing to prevent him from proceeding: if under these circumstances, he had addressed his motion to the Moderator, I should have thought him fit only for the cells of an hospital. No man in his senses can decide that such a motion was out of order because not addressed to the Moderator. But, say the gentlemen on the other side, this is the practice. Let us sec whether it is so. Look at the Assembly's Digest, 332. Here is a resolution passed by the Assembly in 1792. "Resolved, That no minister belonging to the Synod of Philadelphia, nor elder who was a member of the judicature when the vote appealed from took place, shall vote in the decision thereof by this Assembly. The Moderator, being a member of the Synod of Philadelphia, withdrew, and Dr. McKnight took the chair." You will find by looking at the cases cited in Grey's Parliamentary Practice, that since a very early period, motions regarding the Speaker personally, have not been put by him; and that such a motion maybe put by any member rising and making it. It is the universal usage in this country, that a member should put the question upon every matter in which the presiding officer is personally concerned; and in such case the member cannot properly address that officer. But in the present in- stance the Moderator never would have put the question: it would have been perfectly ridiculous to have addressed it to him. Then it is said, one of the clerks should have put it. But the clerks were in precisely the same predicament as the Moderator: they had combined with him to carry out the same plan which he was striving to execute, Mr. Cleave- land addressed the body of comm^issioners. The Moderator had already refused to do his duty: it was on that ground that he made his motion. The second motion — that for the appointment of clerks — was addressed to Dr. Beman. Would it not have been perfectly idle to have requested the clerks to put the question, when they as well as the Moderator were endeavouring to carry out the void acts of 1837? Why, from the very nature of the case^ it was necessary that the member making the motion MR. WOOD'S AllGUMENT. 447 should also put it. In all deliberative bodies, a member may rise and put a question during the incipient stages of the organization. You will excuse my going over these various minute points: if I should leave them untouched, I might not satisfy the expectations of my clients. Next, it is objected, that Mr. Cleaveland's motion was for Dr. Beman to take the chair, and not to appoint him Moderator. I will venture to say, that four-fifths of the witnesses have said that he moved that Dr. Beman should be Moderator; but could it make any difference, if he moved that he should take the chair? When Mr. Cleaveland rises, he says, "The Moderator having refused to do his duty, and it being extremely desirable to secure a constitutional organization, I move that Dr. Beman take the chair." Was not this the same thing as if he had moved that he should be Moderator? He grounds his motion on the idea that the Moderator, who was in the chair, having refused to do his duty, was unfit for the place, and moves that Dr. Beman shall take the chair. Was not this substantially the same thing as if he had used the other form of expression? Could any member have the least difficulty in understand- ing him to mean, that Dr. Beman should be Moderator, in the place of Dr. Elliott, who had refused to do his duty. In the next place, it is said, that the organization of the Assembly by the party desiring a complete organization, was wrong, because after dis- placing Dr. Elliott, putting Dr. Beman in his place, and choosing new clerks, they did not immediately proceed to do what they wanted the other party to do at first; they did not go on and dispose of the motion that Dr. Mason had offered. The only answer which I shall make to this — and it must have struck you already — is, that the great object of those who set on foot these measures, was to secure a general organization of the entire Assembly. All of their proceedings were based upon the idea of the Moderator and clerks refusing to put the names of certain commissioners on the roll. When Dr. Mason had made a motion to have them put upon the roll, the Moderator had refused to entertain it. When he had appealed from his decision that that motion was out of order, the Moderator had refused to put the question on his appeal; but the only object of all his efforts was to have the names enrolled. Well, Dr. Mason and Mr. Gilbert tell us, that they did put them on; that they had a list made out as nearly as possible, with all the names on the roll of Mr. Krebs' and Dr. McDowell, which they had taken as the basis of theirs, having previously drawn it up as well as they could, and then corrected it while Mr. Krebs read; and that to this they afterwards added the names of the exscinded commissioners. " Oh, but did you actually attach the two lists together?" "No, but I held them both in my hand, and considered them both as one roll." "But they were not the roll merely because you considered them so." And pray how did Mr. Krebs' list become a roll? Was it not by his considering it so, as soon as it had been made out? Cannot a list be a roll unless it is all on one sheet? If not, Mr. Krebs' was not a roll. You will say that the object of the New- school was to put all upon the roll; and that when their clerks had lists of all in their hands, they had enrolled all. Look at the case which has been brought forward on the other side — the case of Mr. Moore, whom the Old-school clerks put on the roll. There was no motion made for his admission. How was he received? Mr. Krebs put down his name, 448 PRESBYTERIAN CHURCH CASE. and then considered it as enrolled. He simply put it on the list; no mo- tion was necessary. Their own conduct in the case of Mr. Moore war- rants the proceedings of our clerks. Oh, but all this was a revolution; and the new clerks and Moderator could not have any roll, without having the commissions in their hands and examining them. • This is a most extraordinary objection. It was no revolution at all. We merely displaced a Moderator and two clerks. Was there a revolution or a new organization in 1835? I believe not. There the roll had been reported under a wrong Moderator; but when the right was substituted did they go back and make out a new roll? No; they merely went on with the business ; merely continued the proceed- ings, taking them up where they had been interrupted, by the motion to displace the wrong presiding officer. But it is sufficient for us to say, that we could not get the commissions from the old clerks: we knew from the first, what was subsequently shown when a formal application was made, that they would not give them over into our hands. Are you prepared to say, that when a house has been organized, and a clerk re- fusing to do his duty, displaced, another clerk being appointed, the house cannot go on with business, because the old officer declines to give up the commissions? Will its proceedings be invalid, unless the new clerk seizes the old one by the shoulders, and forcibly takes from him the papers? Dr. Mason and Mr. Gilbert endeavoured to get them. They called on Mr. Krebs and Dr. McDowell, but those gentlemen, as was to be expected, refused to give them up. Unless the clerks and Moderator were to be allowed to act the part of dictators, to usurp all power, their holding the commissions and refusing to surrender them certainly could not destroy the Assembly. The circumstance then of the new clerks' having so few of these vouchers actually in their possession, cannot at all affect our case. Next, it is alleged that Mr. Cleaveland's motion was entirely out of order, because the first business after the report of the Committee of Com- missions had been read, was the appointment of a Committee of Elections. This is a very fine doctrine indeed for the Old-school brethren. It suited them that every thing should go on in a regular track; that first the roll should be reported, and that then the Moderator should call for commis- sions from Presbyteries in connexion with the Church, and refuse those from Presbyteries which he did not choose to consider in connexion therewith. The doctrine is this: ■' No motion must be made to compel the clerks and Moderator to do their duty, for the next business in order is the appointment of a Committee of Elections; and then when that com- mittee has been appointed we have got you fast. Then you are out, and cannot get in again but by begging for admission on your knees. If you come thus, and supplicate for mercy, the Assembly will take or- der on your cases." What is this order which is to be taken? It is to be determined whether the applicants are purely Presbyterian. To this end they are to be examined on experimental religion. Then indeed they would have effectually secured us. All this is only say- ing to us, " It is no matter what efforts you make, or how you pro- ceed; you can accomplish nothing before the organization is effected," and when that was secured our only chance was gone. We could never be restored, unless those who had excluded us, chose in their high mighti- MR. WOOD'S ARGUMENT. 449 ness to think proper to take order on our case. But we have an easy- answer at hand. The next thing to be done, after the clerks have read their report of all the regular and constitutional commissions, is the ap- pointment of a Committee of Elections. But was such a report read — a report containing all the names, excepting of those whose commissions were informal, the duty of preparing which the rules that have been read imposed upon the clerks? Are we to be told — and here I address myself to the feelings of every honest man — that the exscinding resolutions were regular and constitutional; that they were consistent with the principles of the law of the land, by which all these subordinate institutions are controlled, and with just notions of civil liberty; were not a mere revolu- tionary proceeding; and that therefore the commissions of the exscinded commissioners were invalid? If not, then it follows, that the next business . in order was not the appointment of a Committee of Elections ; that the time for that appointment had not yet arrived, because all the regular and constitutional commissions had not been received and enrolled. But be- sides, every house has the inherent power to organize itself lawfully; has a right to depose a presiding officer, who, supported by a clique of the members, is endeavouring to carry out an illegal and void measure, to thai disfranchisement of a portion of the body. The only way to rectify the gross error ; to resist the attempt to shut out a large number of rightful members, was, by moving the house to displace the officers thus under- taking to prevent a lawful organization. To satisfy some people, gentle- men, it is necessary to present the converse of every proposition. You all know the old saying, that where you want a man to understand that his bull has gored another man's ox, you must reverse the proposition, making it appear that his ox has been gored by another man's bull. So, to make these gentlemen understand the case, I will reverse it, and sup- pose that sixty Old-school commissioners had been rejected by the clerks. I ask you, can vou believe for a moment that Dr. Elliott would have per- sisted in rejecting them? Suppose that Mr. Cleaveland, like Mr. Moore, had been an Old-school man, and had come forward and offered these commissions; and go farther, and suppose that the clerks who had rejected them were of the New-school — suppose that Mr. Cleaveland had said to the Moderator, "Here are some commissions which are perfectly formal and regular from the Presbyteries belonging to the Synod of New Jer- sey. 'IJJiey were presented to the clerks, but they have refused them, being determined to affect a partial organization of the Assembly. They are resolved to secure the preponderance of the New-school party; and certain measures calculated to accomplish that object, they are resolved to carry out. They have declared that it is their intention to shut out all these Old-school members, notwithstanding that they bring regular and constitutional commissions, unless they will come on their knees, and on the ground that the Synod of New Jersey has been exscinded, and stripped of all its Presbyterial rights, acknowledge that they are not lawfully entitled to seats." What answer would Dr. Elliott have made to this application? Would he have replied, " You are out of order. Sir: the next business of the Assembly is the appointment of a Committee of Elections, as is provided in the fifth section of certain rules enacted by the Assembly some ten or twelve years ago. That section says, 'The first act of the Assembly, when thus ready for business, shall be the 57 450 PRESBYTERIAN CHURCH CASE. 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.'" — Would that have been his language? No; he would have seen directly that the previous requirements of the rule had not been complied with. The appointment of a Committee of Elections was, it is true, the next business, when a certain stage had been reached; but to that stage the proceedings had not yet advanced. " The first act of the Assembly, when thus ready for business, shall be the appointment of a Committee of Elections'^ — When thus ready; but if it was the duty of the clerks previously to put on the roll the names of all whose commissions were formal and constitutional, and they had not done this, the house was not yet ready for any other business. The gross and wilful error of the clerks must first be rectified. It is sometimes necessary thus to change the form of the proposition — to put the bull for the ox, in order to make people comprehend the rights of others. In the next place, it is said, that the house did nothing wrong, even if the clerks and Moderator did, and that therefore we had no right to orga- nize the Assembly and go off', leaving a majority behind. We don't pre- tend that the house did any thing wrong. We say that the clerks and Moderator violated their duty, and that the house displaced them on that account. The question on their amotion was put and passed by an un- doubted majority. How it would have gone, had all voted, I cannot venture to say; but some, though a full opportunity was given, did not choose to vote; therefore the majority of those actually voting must be considered the house. If it were necessary, I would go farther and say, that if the majority of the whole were determined to exclude a portion of their brethren, they were determined to organize the body in an unlaw- ful manner; and that therefore the remaining portion, though a minority, and though the others had voted them down, if there were only a suffi- cient number to form a quorum, had a perfect right to withdraw from the house, and on the outside organize the Assembly, on the principle of admitting every member of the entire body to his place. I say that when one portion of the commissioners insisted on forming a lawful or- ganization, and another portion — a majority if you please — insisted on forming an unlawful one, those desiring the lawful organization, would have had a right, if they could not accomplish their object in the house, to have retired to the next convenient spot, and there organized the body, excluding none of their brethren, but admitting all to the seats to which they were entitled. I say that this is an inherent right; a right which is indispensable to the protection of the minority. Will you tell me that in a delegated body, a mere majority may organize themselves to the exclusion of a large part of the members; and that the minority are completely manacled, are bound to submit, and thus go on with the transaction of business? I never would submit to such an usurpation and abuse of power. The doctrine is directly counter to that laid down by the Supreme Court of New York, and I think that no tribunal in this country can possibly give it their sanction. The consequence of the Assembly's being unlawfully constituted is not that all its acts are abso- lutely void. It may still be the Assembly de facto, and its acts may be valid until set aside by the proper tribunal. Therefore the body, though illegally organized, may go on and transact its regular business. Every act MR. WOOD'S ARGUMENT. 451 not impeached by a mandamus or quo ivarranto, may take effect, be- cause it is enacted by a de facto body. I beg that you will understand me thoroughly upon this subject. I do not mean to say, that whenever a portion of the members of an assembly are excluded, they must proceed to organize the body in a lawful manner, going upon the basis of admit- ting all to their seats, but that every member is bound to resist an un- lawful organization. Suppose that after we had organized ourselves, the Old-school had come in, according to the suggestion of one of the oppo- site counsel, and voted us down. Well, if they had done so, they would have been exercising an undoubted right: they had a right to vote us down, but not to shut us out. The latter they could not do, unless the law of the land goes to the length of saying, that a majority may always do as they please, and may trample upon the most sacred rights of the minority. But that question does not properly arise here: the Old-school could not have got a majority to agree in carrying out the illegal and void measures of 1837; therefore the task of carrying them through to their consummation was allotted to the Moderator and clerks. No one has ventured to deny the testimony of Mr. Phelps upon this point. The officers of 1S37, and a clique of the Old-school, then, were endeavouring to drive these measures through, in despite of a majority of the house. Therefore the Moderator refused to put an appeal from his decision; and therefore, when a motion was made to displace him, he and the clique with whom he was in concert, endeavoured by their noise to prevent its being put. They had assumed the sovereign authority of dictators, and sought to control the entire action of the house. (Here the jury were allowed a recess often minutes.) The next point which I shall notice is the objection that the question on Mr. Cleaveland's motion was not reversed. It is said that Mr. Cleave- land and Dr. Beman ought to have been examined on this subject ; and great reliance is placed upon the fact that we did not read their deposi- tions. To this I answer only, that if those depositions had contained any thing favourable to the defence, the opposite counsel would unques- tionably have read them. I am warranted in saying, though not at liberty to tell you what the depositions do contain, that they would have read them, as they might have done, if they could have found in them aught favourable to their cause. These depositions, as I said yesterday, were taken before any of these petty questions of order were started, and were taken, just like Dr. Nott's, on other points. I am fully warranted in saying that the latter was withheld, after his Honour had overruled certain parts, for the same reason which induced us to omit reading the two others. But the counsel tell us, that Mr. Cleaveland had of course peculiar knowledge of the remarks which he made before introducing his motion; and we are asked to produce the paper from which he read. There is nothing at all in this. He did not read from any paper; that is, he did not confine himself to the paper that he held in his hand. The testi- mony shows that the few remarks which he made were chiefly extempo- raneous. Now a man who makes a few such remarks in a case entirely out of the ordinary course of business, and who, as I presume Mr. Cleave- land was — indeed several of the witnesses have told us so — is a good deal agitated, is not more likely to remember them, than those who saw and heard him at the time, and were more collected. As he did not confine 452 PRESBYTERIAN CHURCH CASE. himself to the paper there was no reason for preserving it. What, he actually said was afterwards embodied in the minute of the transaction: there can be no difficulty at all as to what his remarks were. It would- be a waste of time to go over the evidence on the subject of the reversal of the question. I shall examine the testimony of but two of the wit- nesses on this point. Many swear directly, and put it beyond the possi- bility of a doubt, that all of the questions were reversed. The fact that there were some negative votes shows the same thing conclusively. Dr. Elliott says that there were some negatives; and nearly all the witnesses who testify to the same fact, tell us that these negatives came from the south-west quarter of the house. Of course, then, they came from the Old-school, who alone occupied that quarter. Could they with any propriety have voted no, if the question was not reversed ? But Dr. Hill's testimony must be conclusive upon this subject. He was not opposed to the measures of the New-school, as has been said; but he was agitated and in difficulty. He was afraid that the proceedings contemplated might lead to disturbance and uproar; and therefore had made up his mind to take no part in them. But he sat by, watching, as he tells us, with great anxiety, the progress of affiiirs. He says, positively, that the question was reversed; that he listened attentively to hear the reversal, because he had doubted which of two things would take place — whether the Old- school party would not vote at all, or whether they would vote it down. His testimony was very little different from that of Mr. Lathrop's, who recollected the reversal, so as to be able to swear positively to it, because he himself voted in the negative. Witness after witness has sworn, with almost equal positiveness, that the different questions were put in both the affirmative and negative: that there were some negative votes, all admit; and that there was, in each instance, a decided majority of the actual voters in favour of the question, is not disputed. I think, then, you can have no hesitation in deciding this point. I would here call your atten- tion to a very obvious rule of evidence, and of common sense. The tes- timony of those who swear directly to a positive fact, is not to be over- come by evidence that another person merely did not hear or see the same thing. A man walks up Chesnut street, and the question arises, whether he had an umbrella in his hand. One swears that he saw it, his attention having been drawn to the circumstance, by the fact that it appeared about to rain. Another swears that he saw the man at the same time, but did not see any umbrella, and don't believe that he carried one. Which of these two are you to believe ? The one who swears positively that he saw, or the one who did'nt see? I pass this matter by, without farther remark. Next, it is said, that if the members of our Assembly had let the oppo- site party go on with their organization in their own way, however unlaw- ful that might be, and had then applied for relief, it would have been granted. The first gentleman Vvho addressed you on the other side, said that he had not the least doubt, that if we had let them go on, and organize the Assembly unlawfully, we should afterwards have been all let in, to partake of the fatted calf; should all have feasted on the delicious banquet. Why, gentlemen, when you find the Old-school taking one step towards carrying out the void acts of 1837, how can you believe that they will not take another? When you find them, afterwards, in their Assembly, MR. WOOD'S ARGUMENT. 450 carrying out the same measures, acting upon the very same principles from first to last, from the opening minute to the end of the statistical .table, what mockery does such language appear to be. In the heat and zeal excited by the present controversy — we all must admire the zeal which he has manifested — the learned counsel brings himself to believe, that now, if your verdict should sanction the unlawful organization of the Old-school, even now, those who have been excluded, may be received back, and partake of the fatted calf, prepared to be eaten by both. But, after the exscinding resolutions are passed in 1837, indemnity is promised to the trustees, and pledges are exacted from the clerks; after the conven- tion in 1838, determines to carry out those resolutions, and declares them the only true basis of a legitimate organization of the Assembly; and, after the Moderator and clerks so fully redeem their pledges, and are so strongly supported by the great body of the Old-school, in their unlawful attempt — after all this, do you suppose that these same men, if backed by your verdict, will withdraw all their resolutions and proceedings, admit those who have been excluded, to the bosom of the Church, and spread before them a delicious feast? If they could make us believe a position of this kind, they might well exclaim, O Wisdom, thou hast fled to brutish beasts. And men have lost their reason ! The next ground taken by our opponents is, that there were two Mode- rators in nomination; that we were in fact voting for two candidates, and that therefore the division ought to have been made by calling the roll, and marking the yeas and nays. They say, that taking the question viva voce did not answer. Dr. Elliott in nomination! and the question to be put, which of the two should be Moderator! Was there any ques- tion of choosing Dr. Elliott? Why he was to be displaced: there was but one person in nomination. Dr. Elliott was the old Moderator, and, as I have shown, over and over again, was to continue in otBce only until another should be chosen. Another was named, and he was the only can- didate. Then, according to the Assembly's own rules, the question need not be taken by calling the roll: indeed, 't need not be reversed. It would have been contrary to all rule to have taken the yeas and nays in such a case, unless they were called for by some member. But, it is said, that no opportunity was given for debate. Did any body want to debate? But the opportunity was in a great measure precluded by the whole proceeding's being carried on, as we had avowed it was our intention to carry it on, with as much expedition as possible. The apology that was made, was only to Dr. Elliott. He was told that no personal attack upon himself was intended, by the motion to displace him; that he was attempting a mal-organization, yet that he might believe all he was doing to be correct, and that wc did not wish to give any persona] offence; that we were aware that he was sustained by the trustees, but hoped that we should not be interrupted if we should attempt to organize the body in the way which we considered constitutional, and according to the views of legal counsel with whom we had advised; that our object was to include the entire body, and that if allowed to proceed we would do every thing with as much expedition as possible. If any one of the Old- 454 PRESBYTERIAN CHURCH CASE. school had wished to debate, his rising to do so would have been con- sidered a waver of all objection to our proceedings, on the part of the trustees; and he would have been allowed to discuss the question as long as he pleased. In every assembly, when it is supposed there is no intention to debate a question, it is put immediately; but after a resolu- tion is carried, no member can say that it was all wrong, because he wanted to debate, and no opportunity was given. He ought to have risen and said that he wished to discuss the question, and thus, if the right had been denied him, he might with propriety complain. Did any person in this case offer to debate? Among all those, on the list of Old- school witnesses, which was so long that we grew sick of the repetition, and refrained even from cross examining them — among all of them was there one who said that he had wished to debate, but had been prevented? Not one. Yet, now, at this late hour, it is urged that our proceedings ought to be considered void, because these gentlemen had not an oppor- tunity for debate, though they did not demand it at the time, and though the resolutions of the trustees put into our hands forced us either to pro- ceed expeditiously, or submit to their dictation of an unlawful mode of organization under the old officers! Next, it is objected, that when Dr. Fisher was appointed Moderator, the rules of the house were not read to him. You recollect what was done. Dr. Beman stated to him that he had been elected Moderator, and must observe the rules thereafter to be adopted by the General Assem- bly. I beg that you will here attend to one thing which is of some importance. Formerly it was not the practice to re-adopt the rules at each session of the Assembly, but they were considered permanent. When they were so considered, there was of course some propriety in the regulation, that they should be read to the Moderator on his election, or rather, through the Moderator, should be read to the house. In this proceeding there was then real good sense. The rules were thus indi- rectly made known to the Assembly, which was composed of members coming up with new commissions, man}'- of whom had, perhaps, never before sat in the bod)'^. The propriety of such a regulation we can easily understand. But now a compliance with the old practice seems a little like nonsense; for the rules are no longer permanent, but each Assembly adopts its own. If therefore they are read to the new Moderator, they must be read before they have been adopted. It seems that the change of which I speak, was made on the suggestion of Mr. Breckinridge, when he was first a. member of the body. There was then a perfect pro- priety in the language addressed by Dr. Beman to Dr. Fisher — that he should observe the rules thereafter to be adopted by the General Assem- bly. That was not the proper time to read the rules; when adopted they might properly be read. But it is idle to waste time in the refutation of such frivolous objections. What difference does it make whether the rules were read or not; whether the right Moderator was or was not at first selected; whether there was some noise made by this, that or the other person; or whether some were standing who ought to have been sitting. Suppose the rule had been that every body ought to rise, and some had been found sitting; that, though a disorder, would be no objection to the validity of resolutions regularly put and carried. Is an organization otherwise lawful to be vitiated by these petty irregularities? MR. WOOD'S ARGUMENT. 455 The next objection, and the last that I shall trouble yon to notice, is that the several motions were not put in an audible manner, so that they could be heard, and that the members could vote understandingly. My first proposition on this branch of the subject is, that they were all put and reversed in a' loud distinct voice, which could be heard over the whole house. To this eflect we have the testimony of a dozen wit- nesses at least, though I shall now refer to that of only two, Dr. Patton, and Mr. Gilbert. To the evidence given by Mr. Norris, the Episcopa- lian, I shall refer by-and-by. How the opposite counsel came to catch an Episcopalian, I don't know. The testimony of their Old-school wit- nesses suits them very well; but the moment they get hold of an Epis- copalian, every thing goes wrong. He stood in the west door; it is rather a small church, for a city, but between Mr. Norris and the Mode- rator, you will recollect, there was a large stove. Not one of the wit- nesses has denied the fact that the questions were put in a loud and dis- tinct voice: all of ours tell you that they could be heard throughout the house. The members who put them stood about the middle of the building, and that they could be distinctly heard in every part of it, is proved conclusively, when we bring witnesses who stood in every part, and swear that they all heard them. Such testimony at once puts an end to the question. 1 will call your attention to the respective positions of some of the witnesses. Mr. Gilbert, afterwards appointed clerk, who was in the south-east corner, when Mr. Cleaveland put the question on his first motion, says that he heard it distinctly put, voted upon, and carried. He heard every thing that Mr. Cleaveland said, and has re- peated the substance of his remarks. He was in the south-east corner, among the Old-school. Mr. Elmes was standing in the south-west part of the house. He, as long as he attended, heard what was said, and also testifies that the questions were put audibly and distinctly. Mr. Gem- mel — he was standing in the same neighbourhood, by one of the side pews, which was filled with brethren of the Old-school. He too says, that the questions were audibly put; and also that the Old-school brethren in the pew at his side, were scraping and stamping, and crying " Order!" so loudly, that he told them, that was singular conduct for ministers of the Gospel. His testimony is unimpeached, and though Dr. Phillips swears that he heard no such disturbance, that is not enough to overcome the evidence of this positive witness. The fact is established beyond the possibility of doubt. Then there is the testimony of Dr. Mason, who was nearer. He tells us that there were two pews of Old-school brethren between him and Mr. Cleaveland. Mr. Norris stood, as I have already mentioned, in the west door. Mr. Dingee was in the gallery, by the organ; and he tells us, that he heard every thing distinctly until the motion was made that Dr. Fisher should be Moderator: that he did not hear that motion, because, at the moment, he was coming down from the gallery. Now if witness after witness thus testifies that the questions were put distinctly, and so as to be heard over the whole house; and then others standing in the extreme parts of the house — north, south, east, and west, swear that they actually did hear them, the fact that they were audibly and distinctly put is established, and confirmed by the tes- timony of those who actually heard. But we are now brought to the inquiry, could the various questions be 456 PRESBYTERIAN CHURCH CASE. heard by the Old-school? We have called witnesses, who have proved, that there was a great noise in the part of the house which the Old- school occupied; that there were hissing, coughing, scraping, and calls to order. The Moderator rapped with his hammer, and some cried " Shame! shame!" One gentleman asked, "Can nothing be done to stop them?" The Moderator answered, "I have done every thing I could, but cannot stop them." All this is proved by the most respectable wit- nesses— by Dr. Patton, Dr. Fisher, and others on our side, and by a num- ber of their own party. Mr. Lowrie says there was no legislative cough- ing; but there was scraping: that has been proved, and cannot be dis- proved. I don't pretend to blame Dr. PhiHips, or to question his veracity. It was the most natural thing in the world that he should not hear the scraping. He has told us that he was very much agitated, and found himself involuntarily calling "Order! order!" in an under tone. Now is such evidence to overcome the positive testimony of a witness who did hear the scraping distinctly? The Old-school not only made a noise, but also undertook to transact business during the progress of our organization. What says their Minute of the transaction. " Mr. Cleaveland then rose, and began to read a paper, the purport of which was not heard, when the 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 Huntingdon, presented a commission, which, being examined by the Committee of Commissions, Mr. Moore was enrolled, and took his seat." — Now, it is true, that the testimony of Mr. Krebs differs from this, as to the time when Mr. Moore's commis- mission was presented; but, you will recollect, that this minute was drawn up at the time, and that Dr. Elliott was one of the committee appointed for that purpose. He says that the minute is entirely correct, so far as it goes. Then, there was another piece of business offered: — " It was then moved to appoint a Committee of Elections, to which the informal com- missions might be referred." — Not those which Dr. Mason had presented, but the informal commissions reported by the clerks. This was all during the time that Mr. Cleaveland was on the floor. — " But the reading by Mr. Cleaveland still continuing, and the Moderator having in vain again called to order, took his seat, &c." And not only did the Old-school commis- sioners thus act, but even Dr. Miller, a man distinguished for amability and politeness, was carried so far beyond himself, by the spirit that pre- vailed around him, that he rose on the floor, though not a member of the body, and cried, "What a disgraceful scene!" Look for one moment at the mere business that was carried on, and you have at once ample means for accounting for the fact, that the Old-school did not hear the ques- tions put, without supposing that they were not put in an audible voice, or that there was so much noise in the gallery, as to prevent their hear- ing. This business seems to have been twice interrupted by Mr. Breck- inridge. Once he called upon the Moderator to stop the proceedings of the New-school; and then, when the Moderator replied, that he had done all he could to stop them, said: " Oh, let them go on." Dr. Miller cried, "What a disgraceful scene!" Another person, " Shame! shame!" In the meantime, the hammer of the Moderator was continually in motion, and he called loudly, " Order!" All this was to prevent the progress of MR. WOOD'S ARGUMENT. 457 our organization. One member of the Old-school party, endeavoured to cast reproach on the whole proceeding, by repeating the pagan maxim — " Whom God wishes to destroy, he first makes mad." This heathen maxim he applies to his brethren, while they are making an effort to address the house, oh subjects of the deepest interest to all present. What was Mr. Cleaveland's object? To create a disorder? No; he was as pacific and courteous as possible. He explained fully his intention, hoping that he might be allowed to accomplish what he desired, as he meant no discourtesy to any one. He begged that the Moderator would not con- sider him wanting in courtesy, and that the trustees would not interfere, promising that there should be as little delay as possible. And this expla- nation was an apology for endeavouring to bring into the Assembly the representatives of five hundred ministers, fifty thousand communicants, "and two hundred thousand stated worshippers, that they might then and there exercise the rights secured to them by the law of the land, as he had been advised to do by their legal counsel. It was to men such as this, that the gentleman to whom I have referred, applied this pagan maxim. He meant to say, " Your God has determined to destroy you, and there- fore has made you mad." To whom did he apply it? To pagans, or infidels? No, but to his brethren; those with whom he had sat and deli- berated; those with whom he had worshipped, day after day, the God whose vengeance he was thus invoking upon their heads. Yet now, these gentlemen, with such language in their mouths, and after making such efforts to interrupt and hinder our proceedings, tell us that those proceed- ings were all wrong, because they couldn't hear the questions! But there was another reason why they did not hear: they didn't want to hear; and they didn't mean to vote if they did hear. You all know the old saying, " There are none so blind as those who don't choose to see." You may also say, "There are none so deaf as those who don't choose to hear." Now we have Dr. Wilson, Mr. Mitchell, Mr. Breckinridge, and the Moderator, all testifying that they didn't try to hear, and should not have voted if they had heard. There is not a single witness of that school who has said that he would have voted or debated, if he had had an opportunity. There is no difficult)', gentlemen, in arranging and explaining the whole of this evidence. Why did not any of the Old-school hear, while all on our side heard distinctly? I shall not impeach the credit or the character of a single witness: it is only neces- sary to look at the different states of mind in which the two parties were, and the whole difficulty is removed. The Old-school looked at our pro- ceedings as a disorder. They were acting out the measures of 18.37, and thought that we had no right to interrupt them, and displace their Moderator; that we were creating an unlawful disturbance. What was more natural than that each party should attend to the things they were themselves doing? Here our opponents imagined that we were disor- derly. They had no idea that the Moderator could be displaced; and their attention was naturally called to that part of the house where cer- tain members of their own party were pretending to carry on some sort of business — the appointment of a Committee of Elections. How was it with the witnesses on the other side? Their attention also was directed by their sympathies: they wanted to hear, and they did hear. Go into any Assembly, where one set of men are conducting one piece of busi- 58 458 PRESBYTERIAN CHURCH CASE. ness in this part of the house, and another set another piece in that: if you attend to the latter, you will not be able to hear the former. This accounts for the apparent discrepancies in the testimony, without our imputing a want of veracity to the witnesses on either side. The Old- school did not hear because they not only did not want to hear, but were occupied with other business. The New-school listened — they could and did hear; and their witnesses all say that the questions were put in a distinct and audible voice. Now, there can be no pretence that the New- school were disorderly. No witness has said that they were. All that they did — all that it is pretended they did, which could be considered in the least objectionable, was to vote in a very hearty and emphatic manner, and to rise, as a few persons did, in their seats, when the first motion was made. No one pretends that there was any disorder beyond what I have mentioned. Take the testimony of one of the witnesses for the defence. Professor Maclean. He tells you that there was no disorder among the New-school. The most of those that were particularly attend- ing to their proceedings at the time, allege that there was not the least noise or disturbance. And there seems to have been none even in the galleries, except that some think that they saw a few clapping their hands, though they heard no sound. One of the witnesses, indeed, says that he was led to believe that the loud shrieking aye, which several of the Old- school have mentioned, came from the gallery. I understood Mr. Mac- lean to testify, that there was as little disorder as possible; as little as could have been expected under such circumstances. He thought, it is true, that the New-school were disorderly ; but this disorder was the dis- placing the old Moderator in the way they did. Now suppose they were disorderly to the full extent to which they have been ever charged with disorder — why from the very circumstances of the case we might find an apology for them. They had demanded their seats, but the Moderator had refused to entertain any motion on the subject, or to put the question on an appeal. What then was left for them? Nothing but to take the other end of the church, and there put the question, remark- ing, as Mr. Cleaveland did, by way of explanation, that they desired to secure their object with as little disturbance as possible, and that they hoped their proceedings would not be considered discourteous. Now, if according to the principles laid down in the New York case, they had a right to retire and organize the Assembly in the street, I think you will say with no hesitation, that being prevented from remaining in the house by the resolution of the trustees put into their hands, and compelled to organize themselves at that time and in that manner, by the conduct of the old Moderator, much allowance must be m.ade for them, and that theirs was the lawful organization. Suppose some did try to hear and could not; would that vitiate all the proceedings? Why I venture to say, that during the last sitting of the House of Representatives, nine-tenths of the business was transacted when, by reason of the conversation that was going on around them, a portion of the members did not hear. I think our oppo- nents will agree with me in this belief. But did that vitiate the proceed- ings of the house? Certainly not. When during the transaction of busi- ness, any one is prevented from hearing by the conversation in his neigh- bourhood, he must call upon those who are making the disturbance to be silent, if he wants to hear, to debate, and to vote. If then the gentlemen MR. WOOD'S ARGUMENT. 459 of the Old-school wished to hear, debate and vote, instead of attempting to put down Mr. Cleaveland, Dr. Beman, and Dr. Fisher, they should have endeavoured to hear, and should have claimed the privilege of having opportunity to act. If this had been denied them, there might now be some reason for the objection urged; but they did not make the demand, and therefore cannot say that our proceedings were unlawful and void, because the opportunity was not granted. Gentlemen, I shall bring my argument to a close, after a single word in reply to the remarks made in regard to the other suits that have been commenced, which it is said ought to have been tried instead of this. Those are but private suits, and if individuals who felt themselves aggriev- ed, have brought them, to recover their individual rights, we have noth- ing to do with that. This proceeding involves directly the great ques- *tion on which depends the settlement of the entire controversy. We go for the whole matter in dispute: we say that we are the true and consti- tutional General Assembly of the Presbyterian Church in the United States — the Church as it existed at the commencement of the session of the Assembly of 1837. We organized ourselves in 1S3S upon that prin- ciple. Now the question for you to decide is, whether the whole Church, such as it was at the commencement of the session of 1837, and every part of it, are still entitled to the right of being fully represented in the Assembly. The other side contend that they are not; that the inhabi- tants of a certain large district do not belong to the United States at all, so far forth as Presbyterianism is concerned. That great question could be tried only in this way. Was the appointment of trustees, by a body purporting to be composed of the commissioners to the Assembly from the entire Church — the Church such as it was in 1835, '36, and until a certain period of the sessions of the Asseml)ly of 1837, valid; or was it invalid, and were those parts of the Church exscinded in 1837 lawfully cut off? This suit, I say, embraces the entire question. Suppose one of those instituted by an individual had been tried — then the same cry would have been raised — why did we not bring up the entire subject, the whole question, at once? One of the counsel has told us that a mandamus might have been issued, or an action of trover commenced — that either of these would have been sufficient to decide the matter. I should like him to tell me how an action of trover could lie in this case. I believe it could not. A mandamus might indeed be issued, but it could not have restored these members the year they were excluded: before the question could be deter- mined, the Assembly would have been dissolved, and a new one called; and it does not appear that the same men were elected as commissioners to the Assembly of 1838. What then could a mandamus do? In the case of any office of such a short duration, a mandamus cannot reach the difficulty. Our only effectual remedy was the organization of a law- ful Assembly, and the appointment of the relators as trustees. We in- tended no personal injury to Dr. Green, though his personal claims have been so largely brought before you. Those claims certainly ought not to be allowed to make any impression upon your feelings. This is the whole question — and you ought to keep it distinctly in view: Is the true Gene- ral Assembly composed of delegates from the entire Cliurch, as it stood before the excision, or of delegates from those parts of it only, which the Old-school choose to consider in connexion with them? If we are right, 460 PRESBYTERIAN CHURCH CASE. the organization brings in all parties. It leaves the Old-school just where they stood before — Dr. Green just where he stood — all of them secure in their ecclesiastical rights, as members of their respective judicatories, and as entitled to a representation in the Assembly. In the temporal office of which Dr. Green will in that case be deprived, there is nothing, which, if indeed it might not better be committed to lay hand, he, at least, can covet, at his advanced period of life. But our organization brings both him and Dr. Barnes into the same situation as before the excision. I desire that this great question should now be settled, that we may see whether these inferior and subordinate institutions, civil or ecclesiastical, may wantonly trample under foot the most sacred rights — whether one portion of the members of such an institution may exclude another por- tion— may cut oflf their brethren, and strip them of their dearest privi- leges, without notice, and without a hearing. And when I remember that I stand in the State of Pennsylvania, the citizens of which are dis- tinguished by their respect for good order, while its laws are wise and equitable; when I know that I address an impartial and intelligent jury, a judge learned in the law, and firm to apply its principles, I can have no hesitation as to the character of your decision. On the conclusion of Mr. Wood's argument, the usual time for the court to adjourn not having arrived, Judge Rogers signified his readiness to charge the jury immediately. One of the jurymen, however, being anxious to go home, on account of the sickness of a member of his family, his Honour consented to an adjournment, and announced that he would deliver the charge next morning. Court adjourned. 461 TUESDAY MORNING, March 26th.— 10 o'clock. JUDGE ROGERS' CHARGE. In the course of my remarks, gentlemen, so far as lies in my power, I shall instruct you positively, clearly, and directly, upon the different points of law involved in this case. My observations will be brief, and discarding all collateral matter, I shall direct 3'our attention to the very points which I think material. If I err in my instructions to you, by a "resort to a higher tribunal, the error may be corrected. I now request your careful attention. 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 Philadelphia. In the year 1758, these Synods were united, and were called the " Sy- nod 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 Synods of New York and 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 Genesee, Geneva, and Utica, have been formed. The Synod of Pittsburg has been also erected, out of which the Synod of the Western Reserve has been formed. These constitute the four exscinded Synods, viz., the Synods of Gene- see, 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 Assembly, deputing to the General Assembly commissioners in certain specific pro- portions. 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, prepared alterations or amendments, and such alterations or amendments were agreed to by the General Assembly. The form of government was amended in 1821. The General Assem- bly 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 Presbyte- ries, 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 ministers and one ruling elder from each congregation within a certain district. A Synod is a convention of bishops and elders, including at least three Presbyte- ries. And the General Assembly, of an equal delegation of bishops and elders, from each Presbytery, in the following proportions, viz. each 462 PRESBYTERIAN CHURCH CASE. Presbytery consisting of not more than twenty-four ministers, sends one minister and one elder; and each Presbytery consisting of more than twenty-four ministers, sends tv^'o ministers and two elders; and in the like proportion for every twenty-four ministers in any Presbytery. The delegates so appointed are styled commissioners to the General Assembly. The General Assembly is the highest judicatory of the Presbyterian 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 va- rious Presbyteries; for, as was before said, the General Assembly con- sists of an equal delegation of bishops and elders from each of the Pres- byteries. 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 proposed 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. A Synod, as has been before observed, is a convention of bishops and elders within 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 General Assembly. If every Synod in the United States were exscinded and destroyed, still the General Assembly would remain as the highest 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 material, I shall now call your attention to the matter in issue. This proceeding 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 re- mark, 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 incorporation, 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. The 28th March, 1799, the Legislature of Pennsylvania declared Ashbel Green and seventeen 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 more than eighteen persons; whereof, the General Assembly JUDGE ROGERS' CHARGE. 4(53 may, at their discretion, as often as they shall hold their sessions in the State of Pennsylvania, change one third in such a manner as to the General Assembly may seem proper. It was the intention of the Legislature, by the act of incorporation, to provide for the election of competent persons, who, as an incorporated body, might with more ease, and in a better manner, manage the tempo- ral aflairs of the Church. It is only in this aspect that we have cogni- zance 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 corporation, which is the creature of the civilpower, that we have any right to determine the validity, or to con- strue the acts and resolutions of the General Assembly. It is, however, sufficient for us, gentlemen, to know that in this case we have that right. Although neither the members of the General Assembly, as such, nor the General Assembly itself, are individually or aggregately members of the corporation, 3^et the Assembly has power, from 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 corporation by 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 Schools. These appellations we may adopt for the sake of designating the respective parties, the existence of which will have an important bearing on som.e 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 sympathize, (as the phrase is,) with the principles of the Old-school. At an early period the Presbyterian Church, at their own suggestion, 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 tlie General Association of Connecticut, with Vermont in 1803, with that of New Hampshire in 1810, with Massa- chusetts in 1811, with the Northern Associate Presbytery of Albany in 1802, and with the Reformed Dutch Church, and the Associate Reformed 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 464 PRESBYTERIAN CHURCH CASE. sphere of usefulness, in the year 1801, a plan of union between the Pres- byterians and Congregationalists was formed. The plan, which was devised by the fathers of the Church, to prevent alienation and lo promote harmony, was observed by the General Assem- bly 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 Assenibly and the General Association of Connecticut, in 1801. They, therefore, resolved that their brethren of the General Association of Connecticut be, and they hereby are, respectfully requested to consent that the said plan shall be, from and after the next meeting of that Association, declared to be annulled. And also resolved that the annulling of said plan shall not in any wise interfere with the existence and lawful associa- tion of churches which have been already formed on this plan. To this resolution no reasonable objection can be made; and if the mat- ter 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 compact 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 con- sent. And, moreover, the resolution expressly saves the right 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, unfortunately, the Gene- ral Assembly, in 1837, which was then under another influence, took a different 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 submitted to the Pres- byteries— and as they were totally destitute of authority as proceeding from the General Association of Connecticut, 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 unnatural and unconstitutional system of union, therefore it is resolved, 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 unconstitutional. First, because those important standing rules, as they call them, were not sub- mitted to the Presbyteries; and, secondly, because the General Associa- tion of Connecticut was invested with no power to legislate 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 do not think the agreement, or Plan of Union, comes within the words or spirit of that clause in the constitution, which provides, that before any overtures or regulations proposed by the General Assembly to be established as con- stitutional rules, shall be obligatory on the churches, it shall be necessary JUDGE ROGERS' CHARGE. 4(35 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 Pres- byterian churches within their connexion. Those who were competent to make it, were competent to dissolve it without the assent of the Pres- byteries, 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. It is not a union of the Presbyterian Church with a Congregational church, or churches, but it purports to be, and is, a Plan of Union between individual members of the Presbyterian and Congregational churches, in that portion of the country which was then denominated the New Settle- ments. It is advisory and recommendatory 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 con- sists 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 Presbyte- rians and partly of Congregationalists, may, or shall attend the Presby- tery, 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 obvious construction of the regu- lation. That part of the agreement was intended as a safeguard, or pro- tection of the rights of alf the parties to be affected 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 Presbyteries, of the amended constitution of 1821, the Plan of Union is not now open to objection. The plan has been recognised by the Presbyteries at various times, and in different manners, under the old and amended constitution. It has been acted on by them and the General Assembly in repeated instances, and is equally as obligatory 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 59 466 PRESBYTERIAN CHURCH CASE. purest hearts m the country; but he would be a very bold man, indeed, who would now denj- that State, and Mississippi, 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 Associa- tion of Connecticut was invested with no power to legislate in such cases, and especially to enact laws to regulate churches not within their limits. Although the General Assembly had the right to annul the Plan of Union without the Assent of the General Association of Connecticut, yet I must be permitted to say, that after having acted on the Plan, and reaped 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. Although 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 anything 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 con- cur fully with one of the counsel, that, confined within its legitimate 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 Presby- teries 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 General Association of Connecticut, yet it was unjust to repeal it, without 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 mate- rial so far as it is made the basis of some subsequent resolutions, to which your attention will now be directed. At the same session, and after failure of an attempt at compromise, the character of which has been the subject of much comment, 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 General Assembly of the Plan of Union of ISOl, between it and the General Association of Connecticut, as utterly unconstitutional, and therefore null ind void from the beginning, the Synods of Utica, Geneva, and Genesse, which were formed and attached to this body, under and in execution of JUDGE ROGERS' CHARGE. 457 said 'Plan of Union,' be, and are hereby declared to be, out of the con- nexion 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." These resolutions refer only in name to the four Synods, and if we were called on for the f-onstruction alone, it might be well doubted whether they were intended, or could be made to include, the Presbyte- ries 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 final 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 prevented from giving by their declarative resolution. It is there in effect said, that it is the purpose of the General Assembly to destroy the relations of all said Synods and all their consti- tuent 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 doctrine and order, who may desire to be united with them, are hereby directed to make application, with a full statement of their ease, to the next Gene- ral 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 Presbyteries 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 Presbyterian 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 Gene- ral 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 General Assembly resolv- ed, that because the plan of ISOl 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 consti- tutional. That reason therefore fails. They have resolved that it is not only unconstitutional, but that it is null and void from the beginning. Instead oi 21. prospective, they have given their resolutions 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 exscinding resolutions. The infusion of Congregationalists 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 recognises Elders and Ministers as composing the Presby- terian Church, to perform the functions committed to them by the consti- tution. And among them to establish and divide Synods, fo create Pres- byteries, as in her judgment the exigencies of the Church might demand. 468 PRESBYTERIAN CHURCH CASE. Accordingly we find that the four Synods, and all the Presbyteries 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 pursued with some of the Presbyteries which have been exscinded. They have been established since, but this is no evidence that the four exscinded Synods were formed and attached to the General Assembly under, and in execution of, the Plan of Union. The compact, as has been before observed, was intended for a different purpose, and imposed on the Presbyterian Church no obli- gation to admit churches formed on the plan as members. It was a voluntary 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 Presbyterians, who were in regular course taken into the Presbyterian connexion. But, gentlemen, when resolutions of so unusual a character, so con- demnatory, and so destructive of the rights of electors, the constituents of the Assembly itself, arc jvassed, we have a right to require that the sub- stantial 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 con- stituents, without notice, and without even the form of a trial. By the resolutions, the commissioners, 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 communicants, 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 constitu- tion of the Church. This is not in the nature of a legislative, but it is a judicial proceed- ing to all intents and purposes. It is idle to deny that the Presbyteries within the infected districts, as they are called, were treated as enemies and offenders, against the rules, regulations, and doctrines 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, the}^ 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 hy common fame with irregularities. "2. That a special committee be now appointed to ascertain what in- ferior judicatories are thus charged by common fame, prepare charges and specifications against them, and to digest a suitable 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, they appear to have discovered a much more expeditious, if not a more agreea- ble method of effecting their object. I have said that exscinding the Presbyteries without notice, and with- out trial, was not onlv contrarv to the common law, but it was contrary JUDGE ROGERS' CHARGE. 459 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 impartial trial. Notice is given to parties concerned, at least ten days before the meet- ing of the judicatory. The accused is informed of the names of all the witnesses to be adduced against him. When the charges are exhibited, the time, places, and circumstances are stated, if by possibility they can be ascertained; citations are issued, signed by the Moderator or clerk, by order, and in the name of the judicatory. Judicatories are enjoined to ascertain, before proceeding to trial, that their citations have been duly served. And, to secure a fair and impar- tial 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 entered 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 cen- sure 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. Constitutions are intended to protect the weak, the minority, from the injustice of the majority. The majority, for the most part, were 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 the 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 insist then, that the resolutions of the General Assembly exscind- ing the four Synods of Utica, Geneva, Genesee, and the Western Reserve, are unconstitutional, mill, and void. The judgments of all courts, whether ecclesiastical or civil, whether of inferior or superior judicatories, are absolutely void, when rendered without citations, and without trial, and without the opportunity 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 tribunal, who act under the sanction of an oath, who examine witnesses on oath, and who conform to all the rules of evidence established by the sages of the law. If the Legislature of Pennsylvania should dare, by resolution or other- wise, 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 amena- ble to their judicatories, in this or any other mode, it is unnecessary to 470 TRESBYTERIAN CHURCH CASE. decide, as ihe Court are clearly of the opinion, that if they have the right, it must be exercised with tlie same rules and regulations which are appl cable to the inferior judicatories. Personal process in each case may be tedious, agitating and troublesome in the highest degree: but it is obviously not impossible. Nor does it strike me as impossible to devise a plan under the constitution to correct heresy and schism, without resort to personal process in such case. But if it were so, this is an excuse, but it is no justification of the exscinding resolutions. Offenders, according to tlie rules of the Church, may be brought before a judicatory by common fame. But I perceive no power to convict on common fame. You will remark, gentlemen, tliat the Presbyteries, by the constitution of the church, are the electors of the General Assembly. Their right of representation has been taken away without trial without the examina- tion (as far as we know,) of a single witness. Whether these Presbyteries have Congregational churches in their con- nexion, is not now material. It is possible tliat had a trial been had, that point, which is deemed so important, may have been disproved. At any rate it would seem a singular reason for dissolving a whole Presby- ter}^, that one church was contaminated with false and heretical doctrines, or doctrines not strictly Presb^'terian; 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 Presbytery. 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) unnatural connexion, the Presbyteries should obstinately continue to adhere to it, then they would justly expose themselves to the severest censures of the Church. But whether there is any mode known to the constitution, by which a Presbytery can be deprived of their 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. 1 have been requested by the respondents' counsel to instruct you, that the introduction of lay delegates from Congregational establishments into the judicatories of the Presbyterian Church, was a violation of the funda- mental principle of Presbyterianism, and in contravention of the Act of the Legislature of Pennsylvania, incorporating 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 tlie bearing it has on the matter at issue in this cause. You have already seen that the Court is of the opinion, that the exscind- ing resolutions are unconstitutional, null, and void; yet this did not of itself dissolve the General Assembly. The General Assembly was dis- solved 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 Assemblv of'lSSS. JUDGE ROGERS' CHARGE. aji The General xlssembly of the Presbyterian Church isenlitled 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 Mandamus would not reach the case, for before the remedy could be applied, the General Assembly would be dis- solved; 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 few weeks for the transaction of business, is dissolved, and a new Gene- ral Assembly is called, at the termination of the sessions. Having thus disposed of the proceedings of the General Assembly of 1837, we will now direct our attention to the acts of 1S3S. It will per- haps conduce to a proper understanding of the somewhat extraordinary proceedings which then took place, to advert to the practice of the Gene- ral Assembly in times of less excitement and interest than existed on that occasion. After the business of the Assembly is finished, the General Assembly is dissolved, and another General Assembly is directed to be chosen in the same manner, to meet at a time and place designated by the Assem- bly. The Moderator, or in case of his absence, another member appointed for the purpose, opens the next meeting with a sermon: he is directed to hold the chair till a new Moderator be chosen. As this is for the pur- pose of organization, it is not necessary that he be a member, nor is it necessary that the clerks should be members, who are requested to attend for the same purpose. By the practice of the Assembly, in pursuance of a regulation for that purpose, the stated and permanent clerks are a standing Committee on Commissions. To them are submitted the commissions of members; they decide on them, in the first place, and if unexceptionable in form or sub- stance, they are enrolled as members of the house; if exceptionable, they report them as such in a separate list. The Moderator, after divine ser- vice, opens the session with prayer. He takes his seat as Moderator, and proceeds to organize the house. The first business in order is the report of the clerks, who are the 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 exam- ined, 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 com- missioner has omitted to hand in his commission to the clerks, before the meeting of the Assembly, he may do so in the Assembly, and the Com- mittee of Commissions may add his name to the roll of members. 472 PRESBYTERIAN CHURCH CASE. After the liouse is organized, they proceed to the choice of a Modera- tor, 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 ses- sions of 1837 and 1838. As the Church increased in numbers, and, I may add without giving offence, after the spirit of contention had increased also in the same or a greater ratio, the simplicity of the ancient practice gradually changed. The changes have been stated with great clearness by one of our vene- rable 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 exscinding resolutions of the General Assembly of 1837 were unconstitutional, null, and void. It results from this opinion, that the commissioners from the Presby- teries within the bounds of these Synods, had the same right to seats in the General Assembly, as the members from other Presbyteries within the jurisdiction of the Assembly, 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 com- missions in proper form, to Mr. Krebs and Dr. McDowell, the clerks of the former Assembly. They not only rejected their commissions, 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 constitutionality 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 Committee on Commissions to whom such questions are in the first place referred. It was their duty to decide on the propriety of the application, 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. They cannot consider commissions, in other respects regular, as alien and outlawed, merely because they proceeded from Presbyteries that had been unconstitutionally put out of the pale of the church, without cita- tion and without trial. It is, therefore, the opinion of the Court, that in this there was a palpa- ble 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 assembly. After the Moderator, Di\ Elliott, had taken the chair, Dr. Patton ad- dressed 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 Moderator still decided that JUDGE ROGERS' CHARGE. 473 he was out of order, whereupon Dr. Patton respectfully 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 the 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 Assembly 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 difficulty in organizing the Assembly. The decision of the Moderator was correct, if the reason assigned was 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 comis- sioners from the exscinded Presbyteries, and the Moderator announced to those who had not presented their commissions, 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 intimation from the Moderator himself, that now was the time to present the commissions of the commissioners from the ex- scinded Presbyteries. 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 cases referred to the com- mittee on elections, on whose report only would it 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 exscinded Synods 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 commissions of commissioners, which had been rejected by the clerks. The Moderator inquired from what Presbyteries those commissioners came. Dr. Mason replied, they came from the Synods of Utica, Geneva, Genesee, and the Western Re- serve. The Moderator declared Dr. Mason oiit of order, or said that he was out of order at that time. The 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 to the chair he must appeal from the decision. 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 ori- ginal 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 would have decided that 60 474 PRESBYTERIAN CHURCH CASE. the original motion was out of order. They might have thought that the matter was properly referrable 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 power to himself over this question. No reason was given by the Moderator. It rested simply upon his will. In the opinion of the Court, it was a dere- liction of duty — a usurpation of authority, which called for the censure of the house. He could not then allege, as he had done on a former occa- sion, that there was no house to which the appeal could be taken. At that time, you will recollect that the clerks had made their report, and it was then ascertained what members had a right to vote. Had the question on the appeal been allowed, it could then have been ascertained whether a motion had been made for the appointment of a Committee on Elections. As it is, it is doubtful whether the motion was made before or after the motion made by Dr. Mason.' And here let me remark, that 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 unfor- tunate. If the excitement did not the7i commence, yet it, with the uproar and confusion which ensued, from this time greatly increased. After the refusal of the Moderator to allow an appeal, the Rev. Miles P. Squier arose, and said, that he had presented his commission to the clerks, which they had refused to receive. The Moderator asked from Avhat Presbytery he came. He said from the Presbytery 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, (whatever 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 duly as the presiding officer of the house, in its organization? Or was he carrying out the unconstitutional and void pro- ceedings of the General Assembly of 1837, which cut off from the body of the Presbyterian Church four Synods, twenty-eight Presbyteries, five hundred and nine ministers, and near sixty thousand communicants, with- out 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 suffi- cient cause. JUDGE ROGERS' CHARGE. 475 This power is necessary for the protection of the house; otherwise 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 appHes to all Moderators, whether Moderators for the session, or Moderators for organization. The right is, perhaps, less questionable in the latter, than in the former case. He is a ministerial as well as judicial officer. Nor do I think that they are restrained in their choice to a Moderator of a former year, who may be present. That rule applies only to ordi- nary 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. 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. Cleaveland arose. Mr. Cleaveland held in his hand a paper, from which he read, at the same time accompanying it with remarks not on the paper. It is not dis* tinctly in evidence what he did say, but in substance it was perhaps this: That as the commissioners to the General Assembly of 183S, 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 organi- zation 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 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 inter- ruption 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. Cleave- land, and was carried, as the witnesses for the relators say, by a large majority, and by this they mean, that a large majority of voices voted in the affirmative. The question was 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, stept 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 nomination, the question was put affirmatively and negatively, and Dr. Fisher was elected by a large majority of voices. There were 476 PRESBYTERIAN CHURCH CASE. 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 Moderator, and said he should govern himself hy 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 affirmative, there being no votes in the negative. The result of this vote was announced by Dr. Fisher, who then stated 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 Presbyterian Church, proceeded with their business, and on the 24th of May, 1838, elected the relators trustees, in the place and stead of the respondents. This is the relators's 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. Cleaveland had no right to put the question. They object, also, to the time and manner of putting the ques- tion. Under one or the other of these points I will endeavour to include the question which has been raised, and which has been argued with such force and with such a variety of illustrations. Had Mr. Cleaveland a right to put the question? It must be conceded, 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, proposes it to the house, and the house are then said to be in possession of the question. But this, the relators say, is not an ordinary question, but one of a peculiar nature. They allege, that the Moderator had shown gross partiality and injustice in the chair; that he was engaged in a plan or scheme to carry out the unconstitutional and void act of 1837, which deprived certain commis- sioners of their seats: that this authorized the house to displace him, and to elect another to discharge the duties which he failed or was unwilling 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 Mode- rator'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 perform, 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 neminern cogit ad vana, seii im- possibilia." 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 seats to which they were justly and constitu- tionally entitled. It is the opinion of the Court, that a member although JUDGE ROGERS' CHARGE. 477 not an officer, is entitled to put a question to the house in such circum- stances. The motion which Mr. Cleaveland made, after explaining his object, was either that Dr. Beman be Moderator, or that Dr. Beman be called to 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 perti- nent question, easily understood, and not calculated to mislead the dullest member of the Assembly. It was in proper form, and in proper time: for, gentlemen, it was not necessary to precede it by a motion that the house should now proceed to the choice of a Moderator. All these requisites are substantially comprised in the motion which was made. There was nothing in the question, or in the manner of putting it, which was disor- derly or which might have led to disorder. Mr. Cleaveland put the ques- tion to the house, which, under certain circumstances, 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 referrable to the Com- mittee on Elections, and farther, that the house cannot enter into business until the organization is complete. The latter point the court answers in the negative. There is no doubt the house may elect a Moderator, although the seats of some of the members are contested. In general, they would prefer to await the report of the Committee 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 precipitancy 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 them- selves. Dr. Mason moved that the names of certain members who had been unconstitutionally and unjustly deprived of seats in the Assembly, should be added to the roll. The motion of Mr. Cleaveland, and the subsequent resolutions or motions, were the consequences of the decision of the Moderator, that Dr. Mason's motion was out of order, and the refusal of the Moderator to allow an appeal to the house. The right of members was unjustly invaded, and from this moment became a question of privi- lege, which over-rides all other questions whatever. A question of privi- lege is always in order, to which privileged questions, such as the appoint- ment 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 can- not 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 con- duct of the Moderator himself, in the discharge of his high functions, and 478 PRESBYTERIAN CHURCH CASE. a question of privilege, by the cry of order, it would be an easy and effec- tual mode of destroying the rights of members, in any deliberative assem- bly. It is usual, when it is intended to prevent a member from proceed- ing 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. Mason 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 report it would again come before the house. In this point, I wish you distinctly to under- stand, that it is the opinion of the court, and that I so instruct you, that if you believe 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 act 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 Mode- rator, the cries of order when this was in progress, the omission of some of the formula usually observed, when there is no contest and no excite- ment, such as standing in the aisle, instead of taking the chair occupied by the Moderator, not using the usual insignia of office, putting the ques- tion 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 organization, 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; indeed, both the relators and respondents have appealed to these rules. I will remark, that the roll of members reported by Mr. Krebs and Dr. McDowell, 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 non-observance 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 busi- ness; that you should believe that the deviation from the accustomed course, was the necessary result of a preconcerted plan, unconstitutionally to exclude the members from the exscinded 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 lecture- room of the First Presbyterian Church, was the General Assembly of the Presbyterian Church. This is an affirmative proposition which the rela- tors arc 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 JUDGE ROGERS' CHARGE. 479 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 them- selves upon the country — and you, gentlemen, are that country. Let me now briefly call your attention to the relator's case. The Moderator, Dr. Elliott, proceeded to organize the house. The clerks, Mr. Krebs and Dr. McDowell, reported to the House the roll of mem- bers, omitting those who were not entitled to seats. Dr. Patton 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 exscinded 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 organization, Dr. Fisher was elected Moderator, and Mr. Gilbert and Dr. Mason were 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 Presbyterian Church, and accordingly met in pursuance of the adjournment, and on the 24th of May, 1838, in due form, elected the relators trustees. This, gentlemen, is a summary of the plaintiff's case; and if the facts are as stated, your verdict should be rendered 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 already 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 vote, 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 presumption 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 respondents' right of action. You, gentlemen, will in the first place, inquire whether there was a majority of affirmative voices of mem- bers entitled to 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 farther inquire whether the ques- tion on the several motions was reversed. If they were not reversed, your verdict must be in favour of the 480 PRESBYTERIAN CHURCH CASE. respondents; for in that case, it is very clear, the members had no oppor- tunity of showing their dissent to several motions or propositions which were submitted to them. These, gentlemen, are questions of fact for your decision. I will con- tent myself with referring to the evidence and the arguments of the coun- sel, 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 affirma- tive 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 pri- vilege of voting. "Whenever," says Lord Mansfield, "electors are pre- sent, and don't vote at all, they virtually acquiesce in- the election made by those who do." And, with this principle, agrees one of the rules of the General Assem- bly itself, which must be familiar to every member. Members (30th rule) ought not, without weighty reasons, to decline voting, as this practice might leave the decision of very interesting ques- tions to a small proportion of the judicatory. Silent members, unless excused from voting, must be considered as acquiescing 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, certainly very incon- venient, to transact business in a large deliberative assembly. Of this rule, gentlemen, we have had very lately a most memorable 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 recognised by your legislature, and by the people, as the supreme law of the land. This, gentlemen, has been stigmatised 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 any thing of any fancied equity, as con- tradistinguished 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 prin- ciples 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, and it was so understood by them, to effect an ex-parte organization, with a view to a peaceable separation of the Church. If this was the intention, and was JUDGE ROGERS' CHARGE. ^gj SO understood at the time, the house which assembled in the First Pres- byterian Church, cannot be recognised as the General Assembly, compe- tent 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 relinquish 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. Cleaveland was in order, that Drs. Beman and Fisher, and the clerks, had a majority of votes, that the inten- tion was to organize the General Assembly, and that they did not intend an ex-parte organization, the respondents say that such was the precipita- tion and haste of these proceedings, their extraordinary £^d novel charac- ter, the noise, tumult, 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 if individual members of a deliberative assembly by trick and artifice, by surprise, noise, tumult, and confusion, carry such a question as this, it ought not, it cannot be regarded. The members must have an apportunity to debate, to vote, if they desire it, and for this reason it was, the negative question must be put, and that the several ques- tions must be reversed. It will be for you to say whether the members had this opportunity. 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, whatever may be your opinion of the relative strength of 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 efiect is the same, provided they had an opportunity of hearing an. The exscinding resolutions take it for granted, that the five hundred and nine ministers, five hundred and ninety-nine churches, and sixty thousand communicants, all came in under the " Plan of Union;" but this is not so. Indeed, not a single minister could be admitted under it. It cannot be disputed, that all these five hundred and nine ministers, at least, are strictly Presbyterian. The exscinding resolutions, then, must stand on their own merits: they receive no support from the previous abrogation of the " Plan of Union." It has been said, that in the Synod MR. RANDALL'S ARGUMENT. 50^ of the Western Reserve, containing, at the time of the excision, one hundred and thirty-nine churches, there were but thirty Presbyterian churches. This vv^e deny : there is no proof of the fact. Court adjourned. WEDNESDAY MORNING, April 24th— 10 o'clock. By whatever name the exscinding resohitions may be called, their true character cannot be a matter of doubt. What was exscinded ? Not only the four Synods, but all tlieir component parts : all the Presbyteries, all the Presbyterian churches, and every individual Presbyterian within their .limits. They were cut off without accusation, proof, or trial. The few persons only who were present in the Assembly, as the representatives of the whole, had the least notice. The news of the actual excision was the first that reached the rest. Men born in the Church, patriarchs of seventy years, found themselves excluded, without having received any intimation that their rights were a subject of dispute. The whole region embraced within the four Synods, was declared to be infected ground — was desecrated. Expulsion from the Church depended merely on the domicil of the individual. Had Dr. Green 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. In the year 1799, before the adoption of the present constitution, the Presbytery of New York included twenty-one churches, of which eleven are among the number of exscinded churches. Some of these churches were in existence before any individual who voted for the exscinding reso- lutions was a member of the Church; and they have continued to exist without interruption, and have been recognised by the General Assembly without any regard to the " Plan of Union." The Assembly of 1837 admitted, that whole Presbyteries and churches within the proscribed and infected districts, were regular and in good standing; and provided also a mode for their re-admission into the Church. The exclusion for a day, a month, a year, or for life, was equally a violation of the rights of the exscinded bodies or individuals. The mode provided for regress into the Church is illusory, as to gain re-admission, it is necessary to undergo the same examination which persons undergo on their first appli- cation. The Presbyteries within the exscinded Synods have contributed at least ^200,000 to the different funds of the Church. The excision is said to have been but a dissolution of the four Synods, and the Presb)^teries attached to them. It is however a very different thing. Besides, we deny that the Assembly has the power to dissolve inferior judicatories, where intermediate rights have become vested. The power to create does not necessaril}'^ carry with it the power to destroy. Can Congress turn the State of Missouri out of the Union? The second question — that in regard to the organization of 1838 — is subordinate to the other, and involves no great principles. The clerks of 1837 were pledged to carry out the acts of that year. The Minutes (Old-school) of 1838, speak of a pledge. Jlnte, 65. It 50S PRESBYTERIAN CHURCH CASE. was their duty to disregard those acts and to put the exscinded commis- sioners on the roll. The refusal of the clerks either to enrol them or report them to the Assembly, and the subsequent conduct of the Modera- tor in refusing to put the motions made to rectify the misbehaviour of the clerks were overt acts of a conspiracy to carry into effect the uncon- stitutional resolutions of 1S37. The Moderator is the mere servant of the house: he can do no act but by the will of the majority. An appeal from his decision is the right of every member. Jeff- Man. {Sutherland) 122. Dr. Elliott's refusal to put the question on Dr. Mason's appeal was a breach of privilege, which authorized any member of the Assembly to move for his dismission from office. The Moderator or Speaker of any deliberative Assembly may be removed. Jeff. Man. 105. The Moderator of the preceding Assembly, presiding over the organization of the new body is by no means exempt from liability to removal. He sits only until a new, Moderator is chosen. Jinte^ 155. Mr. Cleaveland's motion was substantially a proceeding to remove Dr. Elliott from office for this breach of privilege. It was per- fectly intelligible and sufficiently loud to be heard b}^ all. Every mem- ber had therefore an opportunity to vote, and all, who under such circum- stances were silent, must be presumed to have acquiesced. According to parliamentary rules, when the commissions of the com- missioners to the General Assembly of 1838, were referred to the Com- mittee of Commissions, they could not be restored to the Assembly for its action, but by the report of that committee. Therefore the refusal of the clerks was a gross violation of duty. The Moderator could not without absurdity, put the question for his own removal; nor did the duty under such circumstances devolve upon the clerks. They were participes criminis,Oind would not have put the motion if they had been required. The New-school are opposed to all exclusions. They are ready to admit even those who like Haman of old have fallen into their own snare. Absolute identity of opinion and belief throughout the Church is not to be expected. But unimportant differences should be overruled. Or, if the two parties must separate, let them do it amicably, according to the patriarchal advice — Genesis xiii. 9. " Is not the whole land before thee? Separate thyself, I pray thee, from me: if f/ioii ivilt take the left hand, then I will go the right; or if thou depart to the right hand, then I will go to the left." 509 MR. SERGEANT'S ARGUMENT. May it please your Honours: — We can see but obscurely what is before us— I mean what is in our presence — and judge imperfectly of the past: as to that which is future — I do not pretend to be able to say vvliat will be the probable conclusion of this matter. I shall not, there- fore,, accept the challenge given in the close of the argument on the other side, and venture to predict what would be the effect of your decision to support the verdict of the jurj' in this case. The counsel for the relators have told us, that such a decision would be productive of peace; that it would bring together again those who are now so widely separated. But that has been tried; they were together; and after all that has been dis- closed in the course of the trial of this cause, I think every one ought to be very cautious in cherishing a desire to force them together again. If I understand the subject, this is the main ground of one portion of the objection made to the decision of the court and jury — that the rights and the powers of the General Assembly, the highest and the final judicatory of the Presbyterian Church, as well as of all its subordinate judicatories, are purely spiritual and moral. It so happens, that deeming these to be matters between every man and his own conscience, in which no human tribunal has the authority to interfere, we consider an attempt to force us into any religious connexion whatever, a direct violation of our most sacred rights. We suggest now, that such an attempt would be uncon- stitutional, and inconsistent with spiritual liberty; that it would strike at the root of the great principle of our institutions, namely, that spiritual concerns are not to be interfered with by the civil power. These parties can never come together but by consent — never in the world, but of their own free choice. The idea of forcing one mass of people to sit at the same spiritual table with another, implies, in the first place, the power of searching into the hearts of men; for, without it, who could tell the consequences of such an union? I take it, then, that the position of the learned counsel is not correct. I go for freedom — for no force from any quarter. We shall presently see whether, notwithstanding all that we have sufiered in name and character, we are not the real champions of spiritual liberty. I believe we are. And at the same time it will appear, whether the effort of the minority is not to deprive us of that liberty, to force us into an association with those whom we do not choose to be with; whether their prominent object is not to compel us to abandon all our rights, or, what is equivalent, to give up the great right of choosing our associates. An effort in itself strongly repulsive. This is the most dangerous power that a civil tribunal has ever been called upon to exercise. Your Honours have enough to do, enough of trouble and perplexity, in determining those cases upon which you must decide. What you are here called to do, is to open for the subjects of your inquiry and labour, a new source of conflict and litigation, of 510 PRESBYTERIAN CHURCH CASE. unknown extent. None can define its limits, or control the spirit of discord which it will pour forth. We have warned our opponents — not threatened, as has been intimated — we have warned them of the litiga- tion that would follow their proceedings; but it is for litigation that they seem to have sought. Every church, Presbytery, and Synod in the land, must decide this question for itself: that is as plain as it can be. Nay, every individual Presbyterian must engage in the contest. And how will you limit the violent spirit of litigation, if the law is once thrown open to these parties? Observe what effects it has already pro- duced. The minority of the Assembly of 1S3S have certainly done a great deal, if they have accomplished what the charge of his Honour Judge Rogers decides that they have accomplished. If the matter be not too serious to joke about, following the example of those who have preceded me, in some degree, though perhaps speaking more innocently, I would say, that the proceeding by which the minority in that Assem- bly claim to have manoeuvred the majority out of doors, was one of the greatest practical hoaxes ever seen or heard of. I mean to say that no man can look seriously at the thing, uninfluenced by any respect to who shall succeed at last, but he must so regard it. I do not speak now of the decision of the law: so \\\e facts strike me, and so I think they must strike every one. I say that these gentlemen, if they succeed here, will have accomplished a great deal; but the rest that they will have to do — what remains to be accomplished, they will find more difficult, weightier, more distracting. Let us tell them that much trouble and confusion would be avoided if the admonition — I will not quote Scripture — the admonition to let spiritual bodies decide on spiritual questions, were duly observed. I intend to show, before I have done with the case, that this is an attempt to strip the General Assembly of that power; to place it in the hands of the tribunals of the land; and so to place it in a manner which leads, I will not say to the shame of religion, but to the disparage- ment and disgrace of its ministers, so far as disparagement and disgrace can be brought upon those holy officers. What length of years, what venerable character, what stock of service and of merit, will ever serve as a shield? The very first act of power performed by the new body which met in the First Presbyterian Church, was to direct a bolt at the head of the onl}-^ remaining trustee of those originally incorporated by the act of 1799. Their first act was an act of rough excision. The first exercise of their newly obtained power was aimed at him who had held his office from 1799 to 183S — forty years lacking one. Your Honours may see in this the spirit with which we are threatened: you may see it even in the argument of the cause in this court. All must grant that in my learned friend's remarks upon Dr. Elliott's text, and in his offer to furnish him with a more appropriate one, the same spirit is manifested, not originating in him, but within the compass of the supposed trium- phant party, who, flushed by their fancied victory, begin immediately to claim cognizance of the conscience and the heart, and charge Dr. Elliott with having, while in the performance of a solemn religious service, in the very presence of his Maker, used that text from impure motives. From the beginning to the end of the trial of this case, I am sorry to say, but say it because I felt it — during the short time that I was able to be in court, I felt, and I am sure my colleagues felt — I hope my clients did not M. SERGEANT'S ARGUMENT. 5jj feel — that we were in the midst of a pelting teiripest, a torrent against ■tvhich it seemed almost vain to make resistance. The same spirit, may it please your Honours, has been manifested in the course of this discus- sion, and if at last the Assembly of 1S3S, and the Old-school party are condemned, it will be not because of their acts, but because we have undertaken to know what is in their hearts, and judge that we have dis- covered there sinister motives and designs. We, I have said, are the true champions of spiritual liberty and of the rights of conscience. And how- ever much we may have suffered, if our cause is just, it must prevail: all must come back to the plain ground of the constitution and laws, and leave such disputes as this, which cannot be adjusted by the civil power, to the tribunals of the Church, and to Him who shall be the final judge . of all. Now, may it please your Honours, the general question which is pre- sented in this case is, whether we are not entitled to have a new trial. Great interests are confessedly involved in it. The question, as regards our country, is one of vast magnitude — in some aspects of it, none greater . can arise; and certainly there can be none in which the respective cham- pions of the two parties are entitled to greater consideration, as regards their motives, characters, and lives. The respect due to them, I mean not to violate. I do not mean to speak a single word of any member of the New- school party personally disparaging, or calculated to wound need" lessly his feelings — I am not instructed so to speak, nor would I, if I were. I will endeavour, in my reply to the arguments which we have heard, to maintain this principle inviolate, treating with the utmost respect the opinions of our opponents, so far as it may be practicable, and with respect unlimited, the opinion of his Honour, Judge Rogers. Yea, more, I will in the beginning say, that the learned judge had a most difficult and arduous task to perform. Not on account of the mere novelty of the case, though this made it essential that there should be time and opportu- nity for cool discussion and careful consideration. Look at the great amount of evidence contained in this paper book, that has been laid before your Honours. He must search out and gather from all this mass, and from the contrarient statements of the bar, the precise facts of the case, to which the law was then to be applied. And what were his means for the performance of his remaining duty? Was he to turn to the common law? That could give him little aid; and our own statute law none at all. This case introduced an entirely new system of laws; and though thoroughly instructed in all the principles of the law of the landy his Honour was required to gather, from the scattered fragments suddenly laid before him, in the heat and hurry of the trial, the whole law of the Presbyterian Church — a Church which has a common law and a statute law of its own, and a complete form of government, not framed however like ours, in the exact distribution of distinct powers. One while a wit- ness occupied the stand, and gave in his testimony; then a little was read from one pamphlet, and then a little from another; then a rule of order; and then an article from the Constitution. Here was thrown in the his- tory of a Synod, and there a map containing the names of certain judica- tories, without their boundary lines. Amid all this, his Honour must suddenly catch up just what was necessary to the case, undisturbed by the din and conflict below, so that be might at last instruct the jury as to the 512 PRESBYTERIAN CHURCH CASE. law that was to govern their verdict. I will not say, may it please your Honours, that it was impossible for him to comprehend the matter to his own satisfaction, in the course of a single trial: I will not undertake to measure the utmost reach of human intellect; but I will undertake to say, that I trust and believe there is no judge on this bench, who would not desire the grouiid thus gone over to be reviewed: and that, if he has fallen into any error, it might be corrected. I do not doubt it; and therefore I now address his Honour as freely as I do any of his associates, under the perfect conviction, that if he should see any error, he will not be the last to correct it. Now, we desire the opportunity of another trial; and the grounds of our application have been already in some degree disclosed. We undertake to show, from the history of the cause, that several parts of our defence were not allowed to have that weight which should have been allowed them. I go farther and say, that when the case went to the jury, and even before it went to them, there was a manifest prejudice in their minds against us: from what source arising, it is not necessary for me to say. If the fact that the verdict was rendered by a jury so influ- enced and so prejudiced, be substantiated, that of itself will be a sufficient ground for demanding a new trial. I say also, that the whole investiga- tion, so far as it has been conducted, and the decision, to the extent to which it has gone, is a manifest violation of our Constitution — I mean the Constitution of the Church — of spiritual liberty, and of the rights of con- science. I have already adverted to this point: for an illustration of which, I must thank Mr. Randall. He has told us, that the effect of your Honours' adding your sanction to the verdict of the jury, would be to force together the two parties in this controversy. Now, if I may be allowed a few more words in reply to this, I will endeavour to suggest some views of the subject, arising out of it, tending to show the pro- priety— in fact, the necessity, of a strict adherence to the constitutional principle to which I have referred. In the first place — and this must already have suggested itself to your Honours' minds-^there are great difficulties and embarrassments in the way of inquiries like that in which we are now engaged, as the present case must bear witness. Is it fit that this court should entertain an appeal from the General Assembly? I do not mean now to inquire whether it is fit that such an appellate jurisdiction, where it belongs to a civil court, should be exercised. If your jurisdiction be established, you must take cognizance of the appeal. I speak of the difficulty — nay, of the impos- sibility, of arriving at a '•ight conclusion in such a case. Need I point out the grounds of difficulty? I will call your attention, for a moment, to the resolutions of the Assembly of 1837, which have given rise to this proceeding — to either one, that repealing the "Plan of Union," or that exscinding the four Synods, or to both. Why, if an appeal be taken, in regard to those acts, to this tribunal, your Honours must put yourselves in the place of the General Assembly itself, and decide what you would have done in a similar case; whether, under the same circumstances, you would have pursued the same course. In this investigation, the very first blow has been aimed at the intentions and motives which governed those whose acts are called in question. They are charged with pride, a lust for power, a desire to appropriate to themselves the funds of the Church: every thing opprobrious and vile has been heaped upon them; and if finally MR. SERGEANT'S ARGUMENT. 513 our opponents efiect their purpose, it can be only because those acts are to be considered as done, not honestly, but with some sinister design. How can your Honours undertake to decide this point? Again, passing by the gross injustice which was done us in the outset, I come to another point; and here I mean to be explicit. His Honour, Judge Rogers, no doubt in the press and hurry of the proceeding, after distinctly admitting, that the act abrogating the ** Plan of Union," was one which the Assembly had a right to perform, goes on to characterize that act as unjust. No doubt, in the discussion of the case at the bar, one side had maintained that it was an unjust act, and the other that it was just. This probably led his Honour to inquire, not only whether the act was lawful, but also as to the other point debated. Now, I mean to con- .tend, and therefore have brought this view before you, that where an act is not unlawful, a court has no right to inquire into the motives which influenced that act. And, for this reason; that to decide as to a man's motives, you must place yourself exactly in his position, and take the same views of every thing that he does, else you cannot judge properly. If the General Assembly has a right to do any act, it is accountable to no human tribunal for the manner in which it may choose to exercise this right. It is a fundamental doctrine, that so long as any one keeps within the precincts of his legitimate powers, he cannot in law be affected by his thoughts, words, or deeds. Your Honours have seen, that in another part of the charge to the jury — that relating to the organization of the Assem- bly of 1838 — the learned judge has in a like manner treated Dr. Elliott, the clerks, and a portion of the Old-school party; inquiring into their motives, characterizing acts otherwise right, from the motives with whioh they were performed, as a conspiracy. I do not know whether a conspi- racy had been charged upon us, even in the discussion at the bar. Cer- tainly such a charge could not be applicable, it being once decided, that our acts were lawful — such as we had a right to perform. There is great cause here for the court to ponder deeply, and examine well the ground on which they stand; and another reason for this may be added to those already mentioned. Before your Honours arrive at the end of this case, I am persuaded you will fiind, that if these parties are left to themselves, the public at large, and the friends of religion will not have more cause to deplore the result, than has been furnished in the present investigation. They were in their own proper arena, two par- ties contending for Avhat they considered their respective rights; one remained upon the ground, while the other betook themselves to another place. The latter have appealed to a court of law, and drawing their adversaries out of their ordinary and appropriate place, have compelled them to join in the conflict and strife of a mere temporal tribunal, where are commonly dealt with matters that engage the feelings and arouse the passions — there is no telling how far the inflammation may extend. Whatever may be the result or the influence of this proceeding, if hereafter it be found that it has brought scandal on religion — if indeed that be in the power of man, which I do not believe — or disparagement upon its professors and ministers, this cannot be imputed to us. Those who brought the case here are alone responsible for the issue. And if they have raised the shout of victory once, they may possibly yet see the time, as they advance in life, as the shadows of their closing day lengthen, 65 514 PRESBYTERIAN CHURCH CASE. and the distance before them becomes contracted, when they may find occasion to mourn the events that have separated them entirely from these good men. In the course of the events of this world, those who are allowed to live to old age, must find coming after them many younger than themselves, of an active, bustling, and aspiring spirit, seeing places above them which are objects of their ambition; who if they can discover a good precedent to sustain them, in cutting off their elders, will not fail to follow the example. Nor is that all. This spirit once abroad in the Church, who will allay its violence? I do not fear that any man will accomplish the destruction of the Church: it is, as I believe, founded upon a rock. But who can exorcise that spirit when it is once raised? Nobody. If it begin its domination in injustice — in the prostration of one of those venerable props which support the Church — a pillar on which it rests, and which has stood for half a century, no part of the building can ever be secure. These are times of restless inquiry, of storm and struggle. And your Honours will see the spirit of the limes clearly exemplified in every part of this controversy. What is likely to be the effect of its supremacy? Mark it, and mark it in connexion with the phrases which have fallen from the honourable gentlemen on the other side. The only remain- ing trustee of those appointed in 1799, he who had been respected amid all the changes of party, was the first object of attack. The body that assembled in the First Presbyterian Church has set us an excellent example, says Mr. Randall; they have appointed no minister of the Gos- pel a trustee. Here is exactly the thing of which I am speaking — that wisdom — that young but confident wisdom, which would exalt itself above all the experience of the past, above all other wisdom. These gentlemen have not only no respect for their predecessors — they may treat them as they please — but they have no respect for the law. That act of the legislature by which these trustees were incorporated, gives one third of the number ministers, and this arrangement has been made the pattern in all subsequent times, until the new light has burst upon us, showing all past wisdom to be folly. It seems that there is a concentra- tion of right in this newly formed body; that the legislature were entirely wrong; their predecessors all vv^rong; and that they are to set every thing to rights; that is, in the first place, they are to set the minority above the majority, and then to exclude all ministers from the board of trustees. I do not, however, complain of this at all. It is our business now, merely to show why the verdict of the jury ought not to stand. My colleague has most faithfully discharged his duty: I could not have wished for the Church, when these most important interests were at stake, a friend of greater learning and ability. Indeed he has gone into the details of the case so fully and minutely, that all I am astonished at is, that it has not been almost painful to the court to be obliged to listen to them, instruc- tive, and even essential as they are. Yet I should feel myself obliged to say as much — yea, perhaps more, if I thought, as the gentlemen on the other side seem to think, that this court was competent to go to such lengths in inquiries of this nature. In going over what iny colleague has said, I do not see what could have been omitted; especially as the open- ing of the case devolved upon him. I now proceed to examine the grounds on which we stand. And here MR. SERGEANT'S ARGUMENT. 5J5 I shall not make particular reference to the arguments of the counsel who have preceded me, but shall confine myself principally to the charge of his Honour Judge Rogers, embodying as it does those views upon which the finding of the verdict rests. This finding was in exact conformity with the charge: according to it the jury were bound to go: I jjresamc that upon it their verdict was founded. To that I shall therefore respect- fully refer as an authority for the most correct views of the grounds on which the relators rest their attempt to turn out six of the present occu- pants of the office of trustee — one of them an individual appointed by the legislature itself, at the first passing of the law. The first of these grounds is the proceeding of the Assembly of 1837, especially that which is termed the exscinding resolutions. They are characterized by his Honour as utterly unconstitutional and void. The argument which I have heard at the bar is, that these resolutions being unconstitutional, those who had been excluded by them were still entitled to their places, and that the Moderator and clerks, in attempting to carry out the void acts, committed, knowingly and intentionally, a gross out- rage upon their rights. Then the proceedings of 1837 are of no conse- quence in themselves. His Honour says that they did not dismember the Assembly of that year; that there was a valid continuance of the body upon its dissolution; therefore they are material only as they bear upon the second subject of our inquiries, the proceedings of 1838; the conduct of the clerks and Moderator, and of a part of the body itself, when certain questions were put, as it is said, by Mr. Cleaveland, Dr. Beman, and Dr. Fisher, standing in the aisle, two-thirds of its length from the ordinary Moderator's chair, and behind two-thirds of the persons assembled. The proceedings of 1837 are thus the basis of the relators' claim. They con- tend that these were unconstitutional and void; that therefore the conduct of the Moderator and clerks was illegal; and that therefore they had a right to do what they have done, with all the effect in law which they claim for it. Before I proceed to a particular examination of the acts of the Assem- bly of 1837, I request your attention to a view of the combined operation of all the causes which are here exhibited, each of them insufficient in itself to produce the desired effect, but all of them together, as it is con- tended, of strength adequate to accomplish wonders. Here we must first observe the remarkable fact, that the Moderator and clerks, to whom had been given in charge the organization of the Assembly of 1838, were not officers in the appointment of that Assembly at all; nay, that they were officers whom, as we shall show by-and-by, it had no right to remove, and no power to control. They had been appointed by the Assembly of 1837, and by the constitutional law of the Church continued in office to perform certain duties at the commencement of the session of the coming Assembly, and to perform those duties for a certain time. The object of their continuance is plain enough. Every one sees that it would never do to trust to the chances of a proper organization. Therefore a method has been provided for accomplishing this object; and it is never left to the commissioners who assemble to choose at the moment a gentleman to pre- side, because the presiding officer has duties to perform which he cannot prepare himself for so suddenly. In the first place he must preach a ser- 516 PRESBYTERIAN CHURCH CASE. mon; then make the constituting prayer; the clerks, in the mean time, as a Committee of Commissions, being engaged in the preparation of their report of commissioners reguhirly appointed. This being done, and the names of all undisputed members having been put on the roll, the first act of the Assembly thus constituted, is to be the appointment of a Com- mittee of Elections, to whom are referred all doubtful cases. Of course the election of a new Moderator does not take place until all these pre- liminaries have been attended to. Until the Committee of Elections has been appointed, the Moderator is Moderator by virtue of his commission from the previous Assembly. If, then, the Assembly has no power to remove him, he is not accountable to them for his conduct, and the same thing is true of the clerks. At the trial, there was cited the case of the preparative meeting of the Friends. There the clerk puts no question and calls for no vote ; he does not determine by majorities and minorities, but declares the sense of the meeting, as collected from the discussion. Can that meeting remove their clerk by the vote of a majority ? No. But, why not? Because, by the rules of the Society of Friends, he is to decide just as your honours sitting on that bench. The meeting has no more power thus to remove him, than parties who are dissatisfied with your decision to remove a judge. So it is with the Moderator and clerks assisting in the organiza- tion of the new Assembly. So it was intended to be, so it has been and is, and so it must continue to be, unless some other rule is provided. Now, by these various parts combined, a great effect is sought to be pro- duced. Each one is as important as any other — this by virtue of the connexion of the whole, and though it may in itself considered have no im- portance whatever. The state of the matter is this — the resolution of 1837 did not dissolve the Assembly; the acts of the Moderator would not have dissolved it ; the acts of the clerk would not have dissolved it. Neither of these would have been sufficient to produce the effect ; neither had any virtue of itself ; but a virtue which they have not themselves, they somehow impart to each other. The compound made up of ingre- dients all powerless and valueless, had the power to produce, and it is argued, to legalize those scenes of confusion, disorder, and riot, which have been here exliibited. But, I say, while it is natural enough that on the other side such a conclusion should be ascribed to this corribination of circumstances, there can be no right to attribute it to things which in themselves, and taken singly, have it not; so that the majority of the members in that house assembled, who, the sermon having been preached and the constituting prayer offered, remained in their places, while a sec- tion of the body went off, shall in effect be deprived of the power and the character of the Assembly, and the minority thus gone off be all in all. No doubt this would be the result of allowing a factitious virtue to the combination of circumstances just mentioned. No doubt our opponents claim to have driven us out of doors. How, I will not now say; but unquestionably those who met in the church in Ranstead Court were the Old-school, and those who met in the First Presbyterian Church the New-school; those who remained were the majority, and those who went away the minority. The operation then of all these causes combined, each of which is in itself of no value, mere cyphers, their conjoint opera- MR. SERGEANT'S ARGUMENT. 517 tion, according to the view taken of them by our adversaries, is to oblige us to confess that the majority are the minority, and the minority the majority. The majority must generally govern. No man of ordinary understanding, of intellect, uninfluenced by legal technicalities, can for a moment consider this a debateable question. Wherever the majority is, there is concentrated the power. I shall not here say a word in praise of this principle of majorities. It is the principle of our government, and that is sufficient for our present purpose. It is the principle of the Pres- byterian Church, therefore, the majority of that Church must at last prevail. At an opposite conclusion it is very hard to arrive. The accomplishment of such an end as our opponents claim to have accom- plished, if not impossible, must at least be against the testimony of our senses. When a person sees an organized house regularly met, and after a momentary scene of confusion, the majority remaining, and the minority going forth, as distinctly as when a formal division is made in the British House of Commons, it would be very hard to persuade him, tliat, in point of law, the majority has become the minority, and the minority the majority. Certainly, if in this instance you so determine, it will be the first in which such a tiling has ever occurred. I know that in the case of a corporation, if it is necessary to refer a (question to all the members, all having an opportunity to vote will be considered as voting, whether they actually vote or not, and this whether the vote is taken by ballot or viva voce. Provided all are admonished of the question, and it is put by a proper person, and they are competent to decide it, the majority must decide. But where will you find the case in which ten, or twelve, or twenty of the members of a body have come forward and sworn that they did not hear the question, tliat they did not know what was done, as these say in regard to the appoint- ment of Dr. Fisher, that there was a scene of wild disorder and confusion; when, in addition, the question was not in fact put from the usual place, or by any known officer of the house, by any one having under ordinary circumstances a right to put it — show me, I say, the case, that has ever occurred, up to the present time, in which such a question has been adjudged legally carried, when but a small minority have actually voted, and the majority are known to have been opposed. If a question be announced from the chair, all are bound to give it attention, and if a vote be taken upon it, the judges are not required to notice those who have not chosen to vote. He who votes a blank throws away his suffrage: those who vote without being qualified are not to be counted. To all this I agree; but the life of these rules is, that the question be put in such a way, and by such a person, that a fair opportunity of voting is given to all entitled to vote. I deny that the case can be pro- duced, where it has been decided, that the members of a house were bound to pay attention to two presiding officers at the same time. Yet, as this case is exhibited, were there not here two presiding officers, at least while Dr. Elliott was in the chair, and Dr. Beman not yet elected? Well, then, in the first place, as a member of the body, I must decide, and decide instantly, in the hurry and confusion of a scene of unpa- ralleled disorder, who, at the time when the (juestion is put, is the real Moderator. And, having decided, as I am forced to do, and that in a moment, 1 ask, in the name of common sense, of common reason, 518 PRESBYTERIAN CHURCH CASE. am I to be considered, by intendment of law, to have voted in the affirmative, because, thinking that the question was not put by the proper officer, I have not voted: at all ? No, may it please your Honours, it is impossible that this wonderful efficiency should be given to these conjoint weaknesses. If the acts of the Assembly of 1S37, are of themselves nothing, the conduct of the clerks nothing, the conduct of the Moderator nothing, can all these circum- stances combined, and followed by occurrences of disorder and disorgani- zation, setting every rule of order at defiance, and calculated to blind and mislead, defeat the operation of the fundamental laws of common right? Nay, if we had called upon every man in that Assembly, and all testified that they did not vote, that they did not hear the question put, that they did not know what was done, still must you have pronounced the question to have been legally carried ? And that is not all the objection in this case. We do not know who voted: it could not be ascertained at that stage of the organization. We do not know that that loud "Aye!" on which the triumph of our opponents is built, which supports the banner of the minority, did not proceed entirely from persons who had no authority whatever to vote. Here I appeal to Judge Rogers' charge. His Honour says, that none but those on the roll had a right to vote. If the question had been put by the Moderator, he would have suffered none to vote, excepting those having a right, according to this decision. Now, it was put, not 'by the Moderator of either that Assembly, or the previous one, not by any person authorized to put it, no matter whether Mr. Cleave- land was a member or not; it was put behind a multitude of the mem- bers; and we do not know how many joined in that thundering "Aye!" There is no knowing but that it came from men having no shadow of a title to vote. These things strike us at the first blush, when we regard the particu- lars which go to make up the mass — each becoming of vast importance, when, in their conjoint operation, they are made to form a lever, applied to the General Assembly, overturning and breaking it up, when in the process of organization, and scattering its fragments to the winds — a spec- tacle which began in the Assembly of 1837, has continued more or less visibly down to the present time, and is now continued in this court. Court adjourned. THURSDAY MORNING, April 25th— 10 o'clock. This matter, may it please your Honours, which has been adverted to, is one, with the more particular consideration of which I shall of course detain you hereafter — I mean the question of order, which, in fact, is one of the principal points, as it appears to me, in this controversy: one of those on which the case hinges. Before I proceed to the examination of the pro- ceedings of 1837, allow me to say a single word more, in connexion with the remarks which I made yesterday, on a subject which it may prove important hereafter to have well understood. The General AssemJDly of 1837, on the last day of its meeting, terminated an actual and legal session, being until then the Assembly both de facto and de jure. For it is distinctly admitted — his honour so decides in his charge, and it is admitted by the argument at the bar— there is no dispute, that, whether MR. SERGEANT'S ARGUMENT. 5I9 the proceedings of 1837 were right or wrong, they did not dissolve the body, or impair its capability. It is not disputed that the last exercise of power in that Assembly, the vote of dissolution, or the order of the Moderator, .that it should be dissolved, and the summons of a new Assembly, to meet at a certain time and place (which time was the day in question, that on which our opponents build their organization, and on which all the commissioners assembled,) that all this was a valid proceeding. Further, it is admitted, that a portion of these commissioners were enrolled in 1838; that the names of those enrolled were duly reported; that the Moderator had taken the chair ; that the clerks were at the desk; and that the body thus partially constituted was perfectly competent to conduct the process of organization to its completion. There again, then, we were in actual possession, the Assembly both de facto and de jure. All this is quite clear; we shall see how it is con- tended that we ceased to be such. I understand the argument on this point to be, that the Assembly thus actually and lawfully convened, deposed the Moderator who was in the chair, and elected another, who never took the chair, but stood up in the aisle, behind a considerable portion of the members, having no chair and no insignia of office, and there addressed to somebody, or some portion of the commissioners, a certain question ; that this question was then put, to which we responded by virtue of an intendment of law; that while the former Moderator, lawfully appointed and actually in the chair, remained in his place, and the clerks, with a majority of the house, remained in theirs, those who had collected round the new Moderator in the aisle went away, carrying with them the whole power of the Assembly; and that all afterwards done by the body remaining in the church in Ranstead Court was a mistake. I have said that this case had no precedent: I have stated reasons why such a rule could not be established. At present I shall content myself, reserving this subject for more particular examination hereafter, with saying, as I did yesterday, that no doubt the body remaining did not so understand the proceedings ; and further, that the rules of order of every deliberatve Assembly requh-e, that every eye and ear should be directed to the chair as imperatively as it is required that ours should be directed to this court. I might as well entertain a motion, or give a judgment here, on the ground that all who were in court were bound to take notice, as might any member of a deliberate body usurp the authority of the presiding officer, and say that the members were bound to listen to him. I know of nothing like this even in fiction, unless it be in the Sam Slick story about the clock, which is going the rounds of the newspapers. I do not intend to relate it. The poor host was fixed in front of the clock, and as the pendulum moved he was to say " Here she goes : there she goes ;" and accordingly, he began, " Here she goes : there she goes," and continued the repetition in spite of the remonstrances of his wife, but when the time was out, found that while his eye was fixed on the clock his two guests had gone off, as Mr. Duffield said, " as slick as a whistle," or '•' as slick as could be," carrying with them his valuable effects. Just so this Assembly, like every other deli- berative body, had a Moderator and clerks, and these the members were bound to watch their movements. " Here they go : there they go," they were to repeat continually. But while their attention was thus occupied 520 PRESBYTERIAN CHURCH CASE. with these officers, their rights were suddenly slipped away from them in the language of the witness, " as slick as could be,^' or, as one of the counsel thought the words werli, " as slick as grease." I do not believe that the New-school party came to the church in Ranstead Court with any such intention, or that they had any such idea when they went away. And I do not see how any body there could be affected by an intention which they had not, or which, at least, they did not declare. I will not here say what might have been the effect of due notice of such an intention. How do our opponents seek to accomplish their end? By going back to the proceedings of the Assembly of 1837, which did not di.ssolve that Assembly; which had no effect upon its rightful acts; and which, as we contended, could have no rightful effect upon the organization of 1S38. What were these proceedings of 1837? Let us now examine that ques- tion. They consist of two parts — two essential parts: whether they had any connexion with the proceedings of 1838 I shall consider hereafter — I am satisfied that the manner in which the two have been thrown together was improper. But for the present let us confine our attention to the acts of Assembly of 1837, to see whether they are really unconsti- tutional and unjust. The measures of that body which are here called in question are, first, the abrogation of the Plan of Union of 1801, and, secondly, what are called the exscinding resolutions, which were consequent upon the for- mer, flowing directly from it, deriving from it their validity, and follow- ing it of necessity, in whatever capacity you chose to place them — whether they are considered as judicial or as legislative acts — at least so following it, in the judgment of those who passed them. That the ostensible grounds of those acts were the true grounds on which they were passed, I here mean to assume; and it is important to understand at the outset, whether we are to believe that these men sincerely, honestly, and bona fide meant what they declared — that their measures were really and truly intended for the good of the Church. I protest solemnly against the right of any body to question their motives. You cannot under the Constitution deny my position, that these are to be respected. Presently, I will read a part of the Constitution of Pennsylvania, bearing directly, as I think, upon this point, and which it is of infinite importance that we should rightly understand. This case, I believe, was lost before the jury, and, if we lose it here, will be lost finally, in a great measure because insincerity, a want of truth, the declaration of motives not real, has been imputed to my clients. On the trial — and the same thing is very manifest in the argument on this motion — the widest license was taken in commenting upon the character of the Assemblv, and contradicting the assumption which I now make. I submit it, therefore, as a clear position, that at every tribunal of the commonwealth of Pennsylvania, a church, with each party in that church, is entitled to the clear concession that what- ever it does within the spirit of its discipline, is done from the motives which are professed. If you do not believe this, you cannot believe it to be a church: only a set of hypocrites — sinners of the very worst kind. When, therefore, our opponents quote Scripture, for purposes to which we think it ought not to be applied, we challenge them to show their authority for casting the first stone at our motives: we do not con- MR. SERGEANT'S ARGUMENT. 521 sent to be put on proof of these, excepting by those to whom we are accountable for them; and we are thus accountable only to the Church — to ourselves. The world does not, and cannot govern us in matters of faith and conscience. It is then of great consequence, that you consider these acts to have been performed honestly, sincerely, and conscientiously, for the good of the Church — as my clients believed. We do not claim infallibility for them, more than for any other men. Presently I shall point your Honours to the strongest evidence of the fact, that the true reasons for their acts were these on their face exhibited. But we are, at all events, entitled to assume it. In entering upon the discussion of the acts of 1837, 1 have first to pro- pound to this court a great question, which must be decided in the outset. To whom does it belong to determine, whether the proceedings of my clients were or were not for the good of the Church ? I do not now speak of motives. That they were right, I have assumed; and that this should be believed, is secured to us by the fundamental principles of our govern- ment. None can call our motives in question, so long as we are careful in our observance of respect for the laws. Assuming this as undeniable, I respectfully demand, who is to decide whether the acts of 1S37 were or were not for the good of the Church? Or, supposing a certain end con- fessedly desirable, who is to decide how that end should be reached ? It has been argued, that in order to attain a certain object, we were bound to follow the course of a regular trial, to commence proceedings in an inferior judicatory, unless where the superior had original jurisdiction, and conduct them in regular judicial form. I do not know how this law is to be established. In the first place, we have the question, who is to decide whether the proposed end is for the good of the Church or not; and then, who is to decide how that end may best be attained? Can the civil tribunal prescribe the course of proceedings to be followed by the Church? No. Suppose we say, "We do not make any charge against our brethren, with whom, in time past, we have lived in unity: we do not mean to dismiss them with the mark of heresy or other criminality upon them. All that we allege is, that they do not live according to the discipline of our Church; that disorders may thence arise — that in our opinion, they have already arisen." And suppose too, that the act is performed by a competent tribunal, and involves nought but a separation of the parties. The question is, not whether our purpose is the best and wisest, but who is to judge whether it is or is not so? — the Church or a civil tribunal? If the latter can interfere at all, in such matters, you had better dissolve the whole system of church government from top to bot- tom. If we cannot follow our own judgment throughout, we had better not form any judgment. Suppose, farther, that we consider not only the end^ but also the tneans proposed, to be essential: both method and end, we maintain, are then for the consideration of the Assembly, and for the Assembly alone. Whatever method they adopt, is sure to be protested against, by some person or other. But, suppose they select a certain method, and are conscientious in their choice, is the judgment of any body to interfere? That selection is as much a matter of conscience, as the final decision itself. The rights of conscience are as clearly invaded, by interfering with the one as the other. I am speaking of the proceed- ings of the Assembly of 1837. The consideration of them involves the 66 522 PRESBYTERIAN CHURCH CASE. pure question, were they good or bad, constitutional or unconstitutional? This single question is now proposed : I go no farther at present. I main- tain that no temporal tribunal can have cognizance of such an issue. I do not mean the question, which are the legal trustees, but the single one in regard to the acts of 1S37; and I say that of it no civil court has cog- nizance; that it belongs exclusively to the jurisdiction of the Church. I know, that in this part of the argument, I must encounter the denun- ciations of the opposite side. Why did you not institute regular process? Why did you not give us a trial and a hearing? Why did you not do this, that, or tlie other thing? Of course, wa expected them to make objection and find fault; we took it for granted, they would think that any thing else would have been more acceptable than just what we did. We disregard this clamor. But, as I am well aware, we here meet a much more formidable obstacle — the opinion of Judge Rogers, made up at the trial, and propounded in his charge; which, of course, should be very seriously weighed — we should proceed with extreme caution, step by step, before arriving at a conclusion contrary to his. And I do not know that I have ever bestowed upon any single subject, more thought than I have upon this, to view it in every aspect, to understand its bear- ing in every particular, that I might not be led into a false track — to avoid error in judgment; and the more especially, because my opinion was contrary to that expressed in the charge. I will state the grounds of my conclusion, acknowledging, at the same time, that I am liable to error: possibly I am in error here. I think I am not. I am happy that his Honour, Judge Rogers, agrees with us in one important point. He says, " I have been requested by the respondents' counsel to instruct you, that the introduction of lay delegates from Congregational establishments into the judicatories of the Presbyterian Church, was a violation of the fun- damental principle of Presbyterianism, and in contravention of the act of the legislature of Pennsylvania, incorporating 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, 1 give an affirmative answer, although, gentlemen, I am unable to see the bearing it has on the matter at issue in this cause." Ante, 470. In another part of the charge, which I have not time to read, his Honour gives the opinion, that the act repealing the Plan of Union of 1801, was not liable to any legal objection, was entirely valid. His opinion therefore is in favour of the abrogation. Of this I am very glad, because the subject has been earnestly discussed, and the opposite counsel have pronounced the abrogation unconstitutional and void. And here is the key of the whole matter. From the assumption that it was unconsti- tutional and void, the proceedings of the New-school in 183S derive all their virtue. Now let us endeavour soberly, seriously, and quietly, to look at this matter. First, let us look at the nature of the thhii; done — that is to say, let us inquire whether it was a purely spiritual and moral act, or whether it had any touch or admixture of a civil nature. To determine this, I refer to the resolutions themselves. Vid. ante, p. 37. I need call your strict attention to the third only, but the whole should be taken in connexion; and should bo taken — I cannot too often repeat this — every word spoken should be taken, as coming directly from the heart: you must consider MR. SERGEANT'S ARGUMENT. 523 these gentlemen to have meant what they have here said; if you do not, we cannot proceed at all. " In regard to the relation existing between the Presbyterian and Con- gregational churches, the committee recommend the adoption of the following resolutions:" That is, in regard to the voluntary association hitherto existing; for I maintain, that whatever constitutes a voluntary association, this was one; and as such it is treated throughout these acts. In fact every religious association is voluntary. " 1. That between these two branches of the American Church, there ought, in the judgment of this Assembly, to be maintained sentiments of mutual respect and esteem, and for that purpose no reasonable effort should be omitted to preserve a perfectly good understanding between these branches of the Church of Christ." Here is exactly the spirit which I have before described. We wish to abrogate the " Plan of Union," but we are not going to denounce you as wanting in either doctrine and faith, or form of government and discip- line— to assert that you are not a Church. By no means. We desire to live in peace with you, and not to quarrel. If you choose to maintain your own form of worship as before, we shall not on that account respect you the less. All that we say is, that Presbyterianism and Congrega- tionalism are immiscible: when associated one destroys the discipline of the other: the union produces confusion and disorder." You see a specimen of this in Mr. Bissell's case, ( Vid. ante, p. 11,) by which the Assembly was distracted to the length of a protest. He was neither an elder or committee-man, and yet claimed a seat in the Assembly, and was admitted. This was only one occurrence to be sure, yet it was, in itself, sufficient to condemn the " Plan of Union." That is no longer an Assembly of either Presbyterians or Congregationalists — an Assembly in which one man, coming through the channel of no Church, claims a seat, and all feel bound to admit him. " 2. That it is expedient to continue the plan of friendly intercourse, between this Church and the Congregational Churches of New England, as it now exists." " 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 submitted to the Presbyteries — and as they were totally destitute of autliority as proceed- ing from the General Association of Connecticut, 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 unnatural and unconstitutional system of union, therefore, it is resolved, that the Act of Assembly of ISOl, entitled a ' Plan of Union,' be, and the same is hereby abrogated." That plan was entirely voluntary from beginning to end. Now in the judgment of the Assembly, sufficient grounds for the abrogation existed, and none can say that they did not exist. It is asserted that the plan was originally unconstitutional — they don't say, however, that it was a con- stitutional regulation, nor what character precisely it bore; but speak only of certain " important standing rules" — whether constitutional rules or not is left undecided. It was a system of rules, and as such, not binding 524 PRESBYTERIAN CHURCH CASE. unless sent down to the Presbyteries, and by them approved. Admit that it was unconstitutional, and no doubt the Assembly had a right to abrogate it ; and besides being lawful, the abrogation was certainly expedient, if the plan had introduced disorders, and threatened others still more serious. My clients say that it had. This being alleged by the Assembly, it was clearly an adequate ground for their proceeding. What objections are urged against the abrogation of the " Plan of Union ?" On the supposition that the plan was constitutional, it is contended that it was a compact ; as if in agreements purely spiritual, there can be any con- sideration, by reason of which the compact can be enforced, though a party is desirous of rescinding it, because it is productive of mischief. When a contract or bargain is made between man and man, it is perfectly well understood that this is cognizable by the law : our constitution recognises such contracts, and you have a doctrine of consideration applicable to them. You may have a contract cognizable by the civil law, in which legal obligation mingles with that which is purely moral; but here you have no mixture, nothing whatever that is worldly: if binding at all, this agreement is binding only in conscience. Where you have nothing like a consideration, you can have no contract that can be enforced at law. You cannot keep joined by the sanction of law elements which have come together on the principle of voluntary association. How, then, is such an agreement to be determined ? Evidently by the will of the majority. The majority on either side m.ay resolve that its operation shall cease. The resolution then that I have read abrogated the plan of 1801, and it is abrogated: it ceases to have any force. Next comes a series of resolutions, resting on the supposition that the "Plan of Union" was unconstitutional and void, which are merely admin- istrative. I do not m.ean to say whether they are legislative or judicial, because we do not find the government of the Presbyterian Church divided, like our national government, into three distinct and well defined branches; but I call them simply administrative, as they were passed to carry into effect that which was already adopted. I might have referred to the protest against the other, but leave that for the present. Here is the first of the resolutions: "That in consequence of the abrogation, by this Assembly, of the Plan of Union of ISOl, between it and the General Association of Connecti- cut, as utterly unconstitutional, and therefore null and void from the beginning, the Synods of Utica, Geneva, and Genesee, 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 ecclesiastical connexion of the Presbyterian Church of the United States of America, and that they are not in form or in fact, an integral portion of said church." Ante, 46. On which resolution, the ayes and noes being called, it was carried by a majority of twenty-seven, one not voting. This, then, so far as I have gone, declares simply the practical effect of the abrogation. If such was its practical effect, all that the General Assembly did, in passing this reso- lution, was purely administrative. They made known to their own churches, and gave notice to those associated with them, what the effect of the abrogation was, and then adjudicated accordingly. What is the next resolution ? MR. SERGEANT'S ARGUMENT. 525 " 2. That the solicitude of this Assembly on the whole subject, and its urgency for the immediate decision of it, are greatly increased, by reason of the gross disorders which are ascertained to have prevailed in those Synods, (as well as that of the Western Reserve, against which a decla- rative resolution, similar to the first of these, has been passed during our present session,) it being made clear to us, that even the Plan of Union itself, was never consistently carried into effect by those professing to act under it," "It being made clear to us" — To whom else could it be made clear? Shall we bring the evidence of the fact before your Honours ? Suppose we tell you, that these men who have come in under the "Plan of Union," are Baptists, or Episcopalians, Independents, or Roman Catholics, or Jews; your Honours will say, that you have no right to inquire into such mat- ters. What business has any civil court to judge of a man's religious persuasion, to say that he is a disorderly member of a church? We are not a judicatory of the Presbyterian Church. We are not the Sanhedrin. We are not the representatives of any particular part of the Church, or the general representatives of the whole Church. An individual, or a Church, is deemed disorderly, because of a violation of the constitution of the Church. But such disorder cannot be presented to the sight of your Honours, acting under the law, because, in the eye of the law, every creed and every form of worship is fit and proper. How can a civil court resolve itself into a religious tribunal, and that the tribunal of a particu- lar sect, to determine questions of doctrine and of conscience? I admit, that, in the case of trusts, your Honours must sometimes decide upon the identity of a Church. But, suppose you were called upon to make such a decision, what evidence could you have, that such persons were or were not, part of a denomination? Would not the judgment of the Church to which they professed to belong, owning or disowning them, be the best and only evidence? It must be so. Therefore, the statements made in the second resolution, must be taken as true : That the urgency of the Assembly is "greatly increased, by reason of the gross disorders which are ascertained to have prevailed; * * * it being made clear to us, that even the Plan of Union itself was never consistently carried into effect, by those professing to act under it" — As your Honours see in the case of a person admitted to the Assembly, who was not entitled to a seat in it, either one way or the other. " 3. That the General Assembly has no intention by these resolutions, or by that passed in the case of the Synod of the Western Reserve, to affect in any way the ministerial standing of any members of either of said Synods." The Synods themselves are laid down and dissolved, but none of the ministers, unless such as have been guilty of falsehood in alleging themselves Presbyterians, are affected. " Nor to disturb the pastoral relation in any church." How then can it be said that these pastors and people have been subjected to such difficulties and penalties as have been described? " Nor to interfere with the duties or relations of private christians 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 Pres- byterian Church in the United States." 526 PRESBYTERIAN CHURCH CASE. Then comes the fourth resolution: " That inasmuch as there are reported to be several churches and ministers, if not one or two Pres- byteries, now in connexion with one or more of said Synods, which are strictly Presbyterian in doctrine and order, be it, therefore, farther re- solved, 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 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 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.'^ Now in that part of the charge which refers to this last resolution {Jinte 467), there seems to be an error in the printing, which has crept in somehow or other, I cannot see exactly how. But certainly the para- graph appears to involve a contradiction. His Honour says, " There is no mistaking the character of these resolutions. It is an immediate disso- lution 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 Presbyteries making application to the next General Assembly, but they are at liberty to accept or refuse them, pro- vided they, the General Assembly, deem them strictly Presbyterian in doctrine and order." His Honour, I suppose, means to say that the Assembly might receive them if strictly Presbyterian. Here then, in the next sentence, I think there is an error. " 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 doctrme and order." Now as I understood the meaning of this, it is, that the Assembly would have no right to refuse these Presbyteries if they were Presbyterians, which seems inconsistent with the previous sentence. Or, perhaps, the error is in the former part: certainly the Assembly never meant to refuse any strictly Presbyterian in doctrine and order. Judge Rogers. They were to decide whether they were Presbyterian or not. Mr. Sergeant. But they were to receive them if they were Presby- terian, and I say, according to this resolution, they will receive all such that apply. If any are not Presbyterian, of course they will not be ad- mitted into the Presbyterian Church. Thus these resolutions save the rights of both ministers and people, pastors and their flocks, so far as possible, inviting all who hold the Presbyterian doctrines to come into the Church, the Assembly promising to receive them with open arms. Never up to this time has any thing been done in degradation of the rights of such. But the "Plan of Union" has been productive of disor- der. The disorder is charged not upon individuals, but upon the- " Plan." Now the question is, whether the Assembly had the power thus to re- medy the disorder. Consider next the nature of the body by which the act was done. As to one point there will be no dispute: that the General Assembly is the highest tribunal of the Presbyterian Church. What are its precise powers I shall not now attempt to define. What constitutes a church, in MR. SERGEANT'S ARGUMENT. 537 its scriptural sense as it was established from the beginning, and exists at the present day — I mean a Christian church? A body of men who pro- fess sound doctrine, maintain good discipline, and enforce a right form of government. Each one of these is as essential as another: I do not sup- pose that a church was ever organized upon a different plan. I am aware that it is a very common thing to disregard doctrine, discipline, and government, to hold a rigid adherence to them as sectarism and bigotry, as an undue opposition to all other denominations. Exactly in propor- tion as zeal abounds are Christians charged with bigotry, with being zealots in an offensive sense — having too much zeal against their neigh- bours. If bigotry means a zeal for sound doctrine, and good discipline, I regret that we have not more of it. Sectarism was the very thing that the reformation sought and did accom.plish — that those who thought alike should freely associate together. Is a character for zeal, attached to any sect, a reproach? If it engenders persecution it is to be deprecated: if it be only a deep conviction of the importance of sound doctrine, strict dis- cipline and wise government, no matter how ardent it is : it will be ardent if it be sincere. Zeal is the very fuel of a pure and heart-dwelling religion. If a Church is without this fuel, it is without vital religion ; and not only the outer court, but the whole temple is a place for merchandize: the desecration is worse than that of the temple at Jerusalem. The pur- suits of this world are constantly inviting every man away from the duties of religion. Few have time for thought and reflection upon these im- portant subjects, with the exception of the small company of devoted men, who, whether their motives be good or bad, have voluntarily re- signed themselves to poverty — for so it is with the clergy of this land — that they may be ever ready to sound an alarm in the ears of those who are constantly in danger of disregarding, fatally disregarding, the great truths which so deeply concern all mankind. Though some may hold doctrine to be immaterial, discipline of no consequence, and government a trifling matter, they are very far from being so. Religion was made for man; and in a most admirable book written by ]Mr. Wilberforce, it is very truly said, that man's religion is nought if it does not enlist his feel- ings, as well as his reason and understanding. He says truly, that religion was made for man; and man is what we find him, a creature of feeling, appetite, passion, reason, and conscience, all of which exist in some few persons in measurable harmony, but in most keep up perpetual conflict, the voice of reason being too often drowned in the clamour of her more noisy companions. Therefore, discipline and government are absolutely necessary in the Church. "A particular church," says the Constitution, " consists of a number of professing Christians with their offspring, voluntarily associated together, for divine worship and godly living, agreeably to the Holy Scriptures; and submitting to a certain form of government." — Form of Gov. Ch. II. Sec. 4 Such is the Presbyterian definition, and the true definition of a church. There must be submission to a particular form of government. This is the description of a church in general : there can be no doubt that the Presbyterian Church corresponds with the requirement. Here are enumerated all the particulars necessary to that Church: it " consists of a number of ])rofessing Christians, with their offspring, voluntarily asso- ciated together, for divine worship and godly living, agreeably to the Holy 528 PRESBYTERIAN CHURCH CASE. Scriptures ; and submitting to a certain form of government." There can be no single church without these. No judicatory can exist which is not the representative of snch churches. The highest judicatory re- presents all the churches of this kind which voluntarily submit to its jurisdiction. Then, does it not follow that a system of government is absolutely necessary ? Of what are the judicatories of the Presbyterian Church composed? I do not mean to assert that this is better than any other Church: that is not a lawful argument, under our Constitution. It is a voluntary associa- tion; and those who compose it, may stay or g,o, just as they please. The question of its merits, is not the question here: that is, for its own mem- bers, a matter of opinion; and all who do not like its particular form of government, may withdraw at their own pleasure. How are its councils composed? Of ordained ministers only? Not so; but of ministers and elders: by them representing the Church, in its various judicatories, be- ginning with the lowest, the church-session, its government is conducted. Any body has a perfect right to find fault with this arrangement. It is good for those who like it: /believe that it is good in itself If the pre- servation of the altar and the sacred flame, require a peculiar care, it is well that those who devote their lives to this service, should declare by a public and solemn ceremony, that they do intend thus to devote them; giving the only pledge in their power, that they indeed mean assiduously to watch over the spiritual concerns of the Church. If any say that mere laymen can as well execute this holy oflice, I will not dispute with them, but I will claim to be of a different opinion. Is there here any mixture of civil right? There is a church, but the people may attend it or not, just as they please, and it may be open, though they do not choose to attend. It does not follow, that because they do not come, the minister and elders may not offer them the opportunity of religious improvement, of hearing the dispensation of the Gospel. As to the mere building, the pews, the church does not pretend to have any thing to do with them: it is independent of the civil corporation by which they are held. Any one may have a sitting, or a pew, who chooses to pay for it. So, at least, it is in many Churches: perhaps there is but one, where none that are not of the Church, are permitted to hold pews. This, then, is the definition of a Church: First, it is a voluntary association; secondly, established " for divine worship and godly living, agreeably to the Holy Scriptures;" and, thirdly, "submitting to a certain form of government." All these are material to its existence; and they are things which, as I understand the Constitution of Pennsylvania, are by it left entirely to the Church itself, and to every man's conscience. What says the Constitution? This part of it has undergone no change, in the recent revision: I wish I could say as much of the whole. The third section of the Declaration of Rights, guarantees certain religious rights, reserved out of those delegated to the government — not granted to the legislature, the judiciary, or the executive. " All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; no man can, of right, be compelled to attend, erect, or support any place of worship, or to maintain any ministry against his consent; no human authority can, iu any case whatever, control or interfere with the rights of conscience; and MR. SERGEANT'S ARGUMENT. 529 no preference shall ever be given, by law, to any religious establishments or modes of worship." This provision is carefully, studiously, and redundantly written, with a view to fence round conscience, to fence round the Church, so that the civil authorities may not even look into them, unless to see that the peace of society is preserved; for all denominations are bound to obey the laws of the land, according to the precept of Christ, who inculcated every civil duty, the payment of every lawful tribute; but the conscience we hold sacred. What right has the civil power to interfere with conscience? If certain forms of government and discipline are part of the belief of a Church, conscience has as much to do in the maintenance of these, as in the preservation of sound doctrine. And it is my right of conscience to choose such form of religion as I may think best. U I do not like the denomination with which I am connected, at any moment I may depart: if the majority of the sect do not like me they may turn me out. I don't know of any other rule. I might be turned out of the Presbyterian Church because I did not submit to its government and discipline, but the wide world would be before me, and I at liberty to chose my associates. If I desired to join the Congregationalists I might do it: if I chose to attend as a hearer in a Presbyterian place of worship, I should not be excluded. It might be supposed from the argument which has been addressed to the court, that these men were turned out to starve — to starve for lack of spiritual food. When a question arises in regard to any thing which in our judgment interferes with the proper administration of discipline, which produces disorder and confusion, and endangers sound doctrine, how is it to be settled? Here comes into operation the established principle of our republican constitution — for the government of the Presbyterian Church bears a close affinity to our national government. We may alter that constitution whenever we see fit. How is this to be done? By the vote of the majority. What rule will you establish other than that which prevails in the civil affairs of state — the rule that the majority shall govern? Whenever the majority decide any question it is finally settled, unless you have recourse to some other principle of government. But the power of the majority is annulled if their decision may be overborne, if it may be referred to another tribunal for correc- tion. Look at the instance of these resolutions of the Assembly of 1S37. How were they decided? By a majorit}^ — there can be no doubt of that. They concern discipline, government and doctrine. Then it was a right- ful decision. The majority alone could decide in such matters. And more than this, the decision being according to conscience, it is not our right to interfere. If the Assembly is left to itself there is nothing to be apprehended: alien interposition must lead to trouble and difficulty. If evil results from their measures they alone are responsible for it. Now let us get back to the plain language of the Constitution; and where does it give to a civil court the right of interference in matters of conscience — the right of deciding on spiritual concerns? If the civil power claims authority to prescribe or modify our religious creed, this is manifestly wrong — an usurpation of authority; yet not more so than an interference with ecclesiastical government and discipline. Every church has a right to settle these matters for itself; and that any other power should inter- 67 530 PRESBYTERIAN CHURCH CASE. pose to expound their ci-eed, or to prescribe ecclesiastial laws, is destruc- tive of spiritual liberty. It has become very much the fashion of late to speak against creeds. If a creed is to he enforced by any measure of compulsion, let it be admitted that our liberties would be in greater dan- ger than if mere civil rights were attacked, our rights of property, our security of life and limb. But if a church establi.^hes a certain creed, what right have I to go in among its members when I do not receive that creed? And what riglit to remain among them when I cease to believe in its doctrines? I may be right and they wrong, but still, I am no more at liberty to overturn the fundamental principles of their faith, because it does not agree with mine, than is a man to disturb the peace, because he does not like a republican government. The creed is but the agreed principle of association ; the common faith, which is the ground of union. No man is bound to adopt the creed. But no man has a right to insist upon being a member of the society without adopting it, or to remain so after he has ceased to believe in it. Now in the constitution of the Presbyterian Church we find the sanc- tion of that authority which the Church exercises in all its br<1nches. I read from the " Preliminary Principles" to the Form of Government, section eighth. " Zr/^/Zy, that if the preceding scriptural and rational principles be steadfastly adhered to, the vigour aud strictness of its disci- pline will contribute to the glory o-nd happiness of any church. Since ecclesiastical discipline must be purely moral or spirUiail in its object, and not attended with any civil effects, it can derive no force whatever, but from its own justice, the approbation of an impartial public, and the countenance and blessing of the great Head of the Church universal." And again, chapter eighth of the Form of Government, section second: "These assemblies ought not to possess any civil jurisdiction, nor to inflict any civil penalties. Their power is wholly moral or spiritual, and that only ministerial and declarative. They possess the right of requir- ing obedience to the laws of Christ; and of excluding the disobedient and disorderly from the privileges of the church. To give efficiency, how- ever, to this necessary and scriptual authority, they possess the powers requisite for obtaining evidence and inflicting censure: They can call before them any offender against the order and gove-rnment of the Church; they can require members of their own society to appear and give testi- mony in the case; but the highest punishment to which their authority extends, is to exclude the contumacious aud impenitent from the congre- gation of believers." Here then is the whole sanction of the jurisdiction exercised by the Church — that moral or spiritual power which operates by means exclu- sively its own, and is not to be interfered with by the civil authority. How is the great frame work of the Presbyterian Church to be maintained in its established order? Here is that frame work. First, the congrega- tion, governed by its own session; then the Presbytery; thirdly the Synod; and then a power above al! the rest, the last object in the sight of a member of this Church, the ultimate tribunal to which he can appeal — beyond it he knows no appeal — the General Assembly; which is just as supreme in ecclesiastical matters, as this honourable court in civil affairs — the highest tribunal of the Commonwealth of Pennsylvania. As for judicial decisions no citizen looks beyond this court, so the Presbyterian MR. SERGEANTS ARGUMENT. 53 J looks to no higher authority than the General Assembly. There his sight fails: he discovers no object beyond. In this body the whole Church is represented, and all the power of the Church collected and concentrated. I call upon the court to say, is there any thing witiiin the whole circle of this jurisdiction with which you would deem it right to interfere? First, there is the church session. Suppose they exclude a communicant on grounds satisfactory to themselves; or suppose that the Presbytery refuses to receive a clergyman, or turns him out; or the same thing in the ease of a Synod: will you in all cases where a church judicatory excludes any one issue a mandatiius to restore him to his place? Will you not rather say, you must appeal to the Presbytery, to the Synod, or to the General Assembly? But the General Assembly has done me wrong, and there is no resort beyond! What then? This is a matter merely spiritual, and the court cannot entertain an appeal from one ecclesiastical body or council more than from another. But they have excluded me, and have not proceeded according to the form prescribed in their constitution. What is this to the civil tribunal? They are accountable for the manner in which they exercise their spiritual power, but not to this court. Unless the court say that they may decide an appeal from a church session, from a Presbytery, or a Synod; unless they preside over the affairs of the whole Church, they cannot exercise such a jurisdiction in any case. But here is a terrible grievance. Five hundred churches, and as many ministers, and sixty thousand communicants — I find only fifty thousand and some odd — have been excluded, wantonly cut off! There is much more to be dreaded from the oppression of a single individual, than of such a body of men. What! five hundred ministers and as many con- gregations, comprising sixty thousand communicants— these men, in a free country, and afraid of persecution ! I am afraid they are not of the old Presbyterian stock, or they would have no such fear. They have always been a hardy, resolute race. If Presbyterians have been charged with being sour; if a doggerel verse, written by one who ought not to have so written, has sent them in that character flowing down in a liquid line, certainly they have always been found on the side of liberty ancl inde- pendence. These five hundred ministers and congregations, cut off and oppressed! Instead of allowing them to enlist our sympathies, we should say to them, " You are strong enough to take care of yourselves — stronger than was the whole Presbyterian Church wlien the General Assembly was first formed."' Fifty tiiousand strong in the four Synods of Utica, Geneva, Genesee, and the Western Reserve, surrounded by neighbours, friends, and associates — by whom and in what manner have they been oppressed? We say to them, " Go in peace. If any of you desire to come back to us you are entitled to do so. Come out from among your Congregational brethren, that it may be known whether you are Presby- terians, and if such, you shall be received.'' It is ridiculous to talk of persecution in such a case. These bodies wc have been speaking of, thus formed and constituted, are a law unto themselves. They owe no submission to any other tribu- nal. Is it lawful, is it consistent with spiritual liberty, that the Church should be carried out of its own sphere, before a tribunal where prevails a law that is not applicable to it; and this when the Constitution forbids the civil authority to interfere in any manner with the rights of conscience? 532 PRESBYTERIAN CHURCH CASE. Talk of a violation of the constitution of the Church! What greater violation of it, in its essence, its life, its soul, can there be, than dragging it before a tribunal entirely alien, here to compel its members to prove facts, and to justify their own judgment upon those facts. Demand of any Presbyterian that he point out the place where he finds authority for this proceeding. Where does he find the liberty given to refuse to sub- mit to the judicatories of the Church, and to refer his dispute to other tribunals? And how does he find that this is to be done? Is his appeal to be entertained thus — not by calling upon us to show our minutes, and prove that the question has already been decided by the Church, but without crediting our statements, putting no confidence in our sincerity, by summoning us, as if already convicted of an atrocious crime, to justify ourselves, or else suffer the penalty of being hunted down, as we have been? Where in the Presbyterian constitution will you find this? There is no such thing. We are next to inquire into the nature of the act which has been done. The question here, is only as to the Church: the civil rights of the parties, involve a different question. For the present, I inquire only, are the reso- lutions of 1837 within the limits stated — the limits of moral and spiritual discipline? If they are, can any sanction be applied to them, which is not within the same limits ? Wliat is spiritual censure ? Of what consequence can it be to us, so long as it is spiritual, in what manner it is pronounced? That is not a question that belongs to this tribunal. What was the nature of the power exercised in the present case? It was spiritual — purely so. Can that body which met in the church in Ranstead Court, justify their proceedings to this honourable court? I don't know whether they can or not. I do not see how they are to justify themselves before any such tribunal. I mean to say, that in any case it is impossible that they should, unless they can present to your Honours their own views, impart to you their habits of thought, and their feelings; unless your consciences have been subjected to the same training as theirs: all these are of great import- ance for the discovery of the truth. Where shall we find a proper tribu- nal? Shall the state erect such an one? The Constitution forbids it. Shall the Church ? If the Church establish a tribunal above the General Assembly, we must submit to its decision; but that we should be drawn into other tribunals, those to which we are not accustomed — the civil courts — is forbidden, lest they should imbibe too much of the spirit of any one sect. They are to recognise no sect, except so far as to believe them all sincere. I do not know how to justify the Assembly. Indeed, though accustomed to the duties of an advocate, I here enter upon a new field of duty. Such matters ought not to be entrusted to us, who, except as individuals, each bound to take care of himself, though too apt in the noise and bustle of the world, to neglect spiritual concerns, cannot be expected to understand the laws of the Church. We are unfit for the duty ; and this is an additional argument, why your Honours should not take cognizance of appeals from an ecclesiastical court. What is the head and front of our offending? We have separated four Synods from their connexion with the Presbyterian Church. And what do you know about these four Synods, showing whether they are regu- larly constituted or not? Mr. Randall has gone over the Minutes, to prove that the Assembly did this, and did that, and finally has refused to MR. SERGEANT'S ARGUMENT. 533 let these Synods remain in the Church. This, if it proved any thing, would only go to prove that there is no law to govern them; and it fol- lows from hence, that there can be no appeal brought from tlieir deci- sions. Well, but the Charleston Presbytery has Congregational churches within its limits. How does he know this? His Honour refused to admit testimony on that point. The Assembly has brought in the Associate Reformed Church, and Mr. Randall says that they are not Presbj-terians. I say that they are: if they were brought in, they are Presbyterians. Another instance is mentioned, of like liberality: again, we challenge the learned counsel, how does he know it? Here they offer a little evidence, and there a little, and pouring in a flood of words about the monstrous enormities we have practised, crave the peculiar interposition of the court. •But how, from these scattered fragments that are thrown in — how, from various instances of alleged irregularity and inconsistency, can a correct judgment be formed; especially, when little matters are presented for your consideration, which are not in evidence? There is one such, that has been offered, in regard to which I may say, that beside its not being in evidence, I believe that Mr. Randall will find his statement respecting it incorrect. The Assembly has been charged with enormous sums received from the four Synods, which, it is said, have not been repaid. M7\ Randall — Here, in the statistical table, is a receipt for the sums mentioned. Mr. Sergeant — I believe you will faid that in 1837 they took out eighty dollars more than they brought in. Mr. Randall — All that we have in evidence is here in the statistical table. Mr. Sergeant — Well, may it please your Honours, I will undertake personally to promise, instead of going into a needless examination of this matter, that if they have not taken out as much as they brought in, they may have the difference whenever they choose to call for it. Here is a specimen of the condition into which the Assembly is brought by this discussion — the evidence of what sort of charges we are to vindicate it from. I say that when the four Synods were disconnected, immediately their whole power ceased. Who can complain that four Synods are separated from a voluntary association? Even without any reason, the Assembly had a right to separate them, just as the Synods had a right to secede at pleasure. Whether they shall submit is not a question to be entertained here. I mean to contend for that doctrine to its whole extent; that it is not for this tribunal to look into the constitution of the Church and decide whether they have been rightfully excluded ; that the question who is of the Church belongs exclusively to the Church to determine; and that when it has decided, the judgment is final. There was a time when the great mass of the property of the Methodist Church was held in trust; and according to the terms of the deeds, no one could be a trustee who was not a member of the Church. The trust, therefore, was incidentally sub- ject to the power of the Church, for if a man were cut off from member- ship, he would cease to be a trustee. Now suppose the question to arise, whether a certain person was or was not entitled to the trust. This might depend upon various things; but suppose among other points a question should be raised whether the trustee was a member of the Church 534 PRESBYTERIAN CilURCII CASE. or not. Suppose he had been cut off from the spiritual flock. No doubt the court would have a right to decide whether he was a rightful trustee, but would they allow an appeai from the previous decision of the Church; would they interfere with the functions of church government? Certainly not. They would not invade the spiritual dominion by enquiring whether he was rightfully cut off. So here, the court has an undoubted right to look into the question whether the defendants are or are not trustees; but cannot go back to the Assemby of 1837, and look into acts purely spi- ritual; and when that body has decided that certain persons do not belong to the church, decree that they do belong. TJiat is a question for the Assembly: 1 contend that jurisdiction over this subject-matter belongs exclusively to the Church. Corporation or no corporation, trustees or no trustees, when it is asked whether certain persons are connected with the Church, the only question for the court to propomid is, how have the judicatories of the Church decided ? I may remark here, that Judge Rogers admits this exclusive jurisdiction to have belonged originally to the Church; but he seems to suppose that the court has now a right to interfere, because we have to do with a corporation, or with trustees. But I contend that the court now has no more right in this matter than it had before; and that whenever the question arises, who belongs to the Church? you must still go to the Church for its decision. And that decision must necessarily be final and conclusive of the question. It may happen to be combined with other questions properly of civil cog- nizance, but it will not on that account be the less a question exclusively of Church jurisdiction. The other questions may be decided by the court upon their appropriate grounds, this can be decided only by re- ference to the Church. If a man be in full communion, with the assent of the Church, he must be deemed to be a member. If he be excluded, he must be deemed not to be a member. So is it also of Synods and Pres- byteries. Wherever, and whenever the question arises, it must be so disposed of, and whatever depends upon it must follow that decision. The body is the same as it was before the act of 1799 was passed, (which acknowledged it as an existing body) — its jurisdiction in spiritual matters is the same— tlie authority of its decisions is the same — and if a question arise about trustees, itself depending upon a question properly of Church cognizance, the decision by the Church of the latter, must necessarily be conclusive. Else, the boundary between spiritual and temporal juiisdic- tion would be entirely destroyed, and the righful province of the spiritual authority, be invaded by the civil power, to the utter overthrow of re- ligious freedom. Within a day or two past I have received the manuscript notes of Chief Justice Johns, of a case formerly decided by the Supreme Court of Delaware. Mr. Randall. We object to the introduction of this new matter. Mr. Sergeant. The counsel on the opposite side may reply. Mr. Randall. But the court has already been jaded by the length of the case. C. J. Gibson. Oh, we are quite fresh yet. Mr. Randall. Then your Honours have very little of the infirmity of human nature. Mr. Sergeant. These notes were put into my hand several days ago, MR. SERGEANTS ARGUMENT. 535 but I had not time to look at them immediately and arrange them. Here are the notes of the argument, and of the opinion, with a copy of the affidavit filed, bearing date the 6th of November, 1812. So much it has seemed necessary tq say in explanation: I will now either read a part of the case, or hand the mnnuscript to your Honours. Air. Randall. If it is the case of a pastor claiming to be restored to his pulpit, we have no objection to its being read. Mr. Sergea/il. It is not that: it was an application to be restored to the Presbytery. I will read the affidavit. *•' In the Supreme Court of the State of Delaware, held at New Castle, for the county of New Castle, of the November Term, A. D. 1812. "New Castle countj, ss. " Francis Hindman being duly sworn in open court, does depose and say, that on the first day of May in the year of our Lord one thousand eight hundred and eight, he was a memb: r of ' The New Castle Presby- tery' in full standing, and as such member duly admitted and received by them, entitled to all the rights, franchises, privileges and immunities of a member of the said New Castle Presbytery in full standing. And he further deposes and says, that on the same day and year aforesaid, he was a regular minister, duly ordained to preach the Holy Gospel, and to administer all its ordinances, according to the Rites and Ceremonies of the Presbyterian Church of the United Slates of America, received and admitted by the said New Castle Presbytery, and was in the regular exercise of his ministerial functions, and entitled to all the rights, franchises, perquisites, privileges and immunities of a regular Minister of the Pres- byterian Church aforesaid. And he further deposes and says, that as a member of the said Presbytery, and a minister of the said Presbyterian Church under their jurisdiction, duly received and accredited by them, he has well and honestly behaved himself, and at all times and on all occasions performed the duties appertaining to the said situations re- spectively. Nevertheless, the said New Castle Presbytery proceeding on a vague, uncertain and unfounded accusation, contrary to their own rules and in violation of every principle of justice in the absence of this deponent, did depose him from the said New Castle Presbytery, and also deposed him from the office of minister of the Presbyterian Church afore- said, and divested him of all his ministerial functions, without any just or legal grounds, to the serious injury and great damage of this deponent. " Sworn and subscribed in open ^ (Signed) Court, November 6, 1812. 3 Francis Hindman. " Attest, Daniel Blaney, Clk. Sup. Ct. Mr. Sergeant. Here you see there were not fifty thousand disfran- chised— only one. C. J. Gibson. Was the Church incorporated? Mr. Serjeant. The Presbytery was incorported, as appears from the argument of Mr. Rodney. C. J. Gibson. It certainly must have been: else the court would not have taken cognizance of the application. Mr. Sergeant. His Honour Judge Rogers I presume, has a copy of 536 PRESBYTERIAN CHURCH CASE. the laws of Delaware. The act of incorporation was passed the Sd of February, 1808. Here is what has been handed to me as a draft of the opinion of Chief Justice Johns. In the course of the opinion he examines the affidavit, and says that it is not sufficient, in that while it declares the removal to have been determined in the absence of the deponent, it does not negative the fact that he had due notice and might have been present, as well as for other reasons. Then he comes to the general grounds which are discussed without reference to the sufficiency of the affidavit. The Chief Justice says, " This is an application for a MandamKS to the New Castle Presby- tery to restore Francis Ilindman, 1st to his clerical office of a Preacher or Minister of the Presbyterian Church; and 2dly to his Membership of the civil New Castle Presbytery, on grounds contained in the applicant's affidavit, which it is contended shows an amotion or removal from both offices." " But supposing the affidavit not to be defective, and that we are to consider this to be a case of removal from the clerical office by the deci- sion of an ecclesiasticol tribunal having competent jurisdiction, but that it is an erroneous decision; then the question occurs — Is it conclusive, or can a civil tribunal interpose, review, and correct the error; and have we the power to controul the ecclesiastical tribunal and enforce obedience to our orders? " These are important questions which touch the freedom of religious worship — It perhaps may not be Holy Ground, but it appears to be Constitutional Ground. " The first section of the first article of the Constitution of Delaware provides, that ' no jjower shall or ought to be vested in or assumed by any magistrate, that shall hi any case interfere with, or in any man- ner controul the rights of conscience, in the /ree exercise of religious worship.' — Your Honours perceive that it is not so strong as the provi- sion made in our own Constitution. — ' Courts are not to assume such power as may have this effect. This provision we are of opinion does secure to every sect of religion the exclusive right of exercising religious worship according to their will and pleasure, uncontrouled by civil authorit3^ Who shall be authorized to preach is a matter proper to be regulated only by the religious society, and essentially concerns the right of freedom in the exercise of religious w^orship which was designed to be secured by the Constitution. To interpose the power of this court in the present case, we consider would be to assume the power which the Constitution forbids. The policy of our government and laws is not to blend the Church and State, but to keep them as separate and distinct, as may be consistent with the protection of religious rights ; and we be- lieve this to be sound policy. Once permit tlie civil authority to inter- fere with religion, particularly with the ordination and expulsion of ministers, and you create a powerful engine which may be used to introduce an established religion. Further it may produce discord, en- courage faction, and destroy that harmony without which it is not to be expected religion can flourish, as it would if left to regulate itself. MR. SERGEANT'S ARGUMENT. 537 " We, therefore, are of opinion that as to the clerical office this court has no power to interfere."* Now, the principle of this decision applies equally here. The ques- tion before you, is one with which you have no power to deal. Where *As no report of this case— TAe State of Delmcare v. The New Castle Presbytery— appears to have been published, we shall here lay before the reader, what will no doubt prove very acceptable, the whole of the opinion of the court. The affidavit filed, has been already given at length. Upon this suggestion, after some argument, a rule to show cause why a mandamus should not issue, was granted; and notice thereof, in form as follows, served upon the Presbytery: "The State of Delaware 1 „ ,. ■,.„•■,. y r Suggestion and Ajfidavit The New Castie Presbytery. S for a UxnnKuv^. " And now, to wit, this eleventh day of November, in the year of our Lord one thousand eight hundred and twelve, on suggestion and affidavit filed, and on motion of counsel for Francis Ilindman, in open Court: It is ordered by the Court, that the first Saturday of next term be given to the New Castle Presbytery, to show cause why a Mandamus should not issue, directed to them, requiring them to restore the said Francis Hindman as a member of the said civil New Castle Presbytery, and to his rights, privileges, franchises, perquisites, and the exercise of his clerical functions, as a minister of the Presbyterian Church of the United States of America, duly ordained to preach the Holy Gospel, and to administer all its ordinances, according to the rites and ceremonies of the said Presbyterian Church. " And it is further ordered, that notice of this rule be given to the President and Secre- tary of the New Castle Presbytery." In April, 1814, the case appears to have been continued by consent; and afterwards, it was again continued until April, 1815, when it was fiilly argued by Mr. K. Johns, jr. and Mr. G. Rodney, for the plaintiff; and by Mr. McLane, Mr. Broom, and Mr. Van Dyke, for the Presbytery. After time had to consider the application, the opinion of the Court was delivered, April, 1815, by " Kensey Johns, C. J. This is an application for a Mandamus, to restore Francis Hind- man, 1st, to his clerical office of a preacher or minister of the Presbyterian Church; and, 2dly, to his membership of the civil New Castle Presbytery, on grounds mentioned in the applicant's affidavit, which, it is contended, shows an amotion or removal from both offices. A variety of rules or principles, have been submitted, on both sides, as applicable to, and governing this case. All embarrassment or difficulty as to the bearing of those rules will vanish, upon a due consideration of the grounds of this application, which presents to view two distinct and different cases, governed by different rules. It may be, that some of the rules may apply to each case; but it is clear, many of them cannot apply to both. There- fore, to avoid embarrassment and difficulty, the two cases ought to be separately considered. " The first case is an application for a Mandamus, to restore an expelled minister of the Gospel to his clerical functions. " The second is to restore him to a right of membership in the civil New Castle Presbytery. " Before we consider the rules particularly applicable to either of the cases, we shall notice some of the general rules and principles, for regulating the use of the remedial writ, called a Mandamus. " 1st. 1 Vol. D. L. (Delaware Laws,) 376. It is said, this act gives the Supreme Court the same powers as the King's Bench in England has. It does so; and the court have such power, except so far as the exercise of this power has been altered or restrained by subse- quent laws, or the Constitution of the United States, or the State of Delaware. " 2dly. It is contended, that in England, the Mandamus is founded on Magna Charta, and in Delaware, on the seventh section of the first article of the Constitution, which pro- vides, that no person shall be deprived of life, liberty, or property, unless by the judgment of his peers, or the law of the land; and that the Court of King's Bench and this court, have the power to issue this writ, and are bound to issue it, to restore an officer to his office, where there is a rirrht and no other specified remedy, without regard to the nature of the office, if it draws after it temporal rights; and that the value of the matter, or the degree of importance to the public police, is not to be scrupulously weighed, but that this court ought liberally to interpose for the advancement of justice. On the other side, the general doctrine is not denied, but 'tis contended, that the general rules do not apply to spiritual offices, and that there are other exceptions. " We consider the writ of Mandamus to be a writ of right, (3 Burr, Rep. 1267,) to the ■id of which, every citizen is entitled, upon a proper case previously shown, to the satisfac- 68 538 PRESBYTERIAN CHURCH CASE. mere civil rights are concerned, courts may interfere ; but it does not belong to them to interpose their authority in matters merely spiritual, to decide spiritual questions. I feel greatly fortified by the opinion of the Supreme Court of Delaware, in the position for which I am contending. tion of the court; and it ought to be used, where the law has established no specific remedy, and where, in justice and good government, there ought to be one ; and if there be a right and no other specific remedy, it ought not to be denied. How this law applies to either of the cases, shall be considered ; but first let us notice, " 3dly. That it is contended, that in the present stage of this business the court ought not to arrest the case by refusing to grant the writ, if there is probable cause shown, and that this is to be judged of from the affidavit alone ; and, farther, that if doubtful 'tis sufficient- In opposition 'tis said this case depends on a question of jurisdiction, and the court ought not to exercise the power if doubtful. " Exclude the question of jurisdiction, and the law is not to arrest the case in its present stage, if proper ground appears from the affidavit; as if there be a claim of right, though it is litigated, it may be sufficient, according to the case in 2 Burr. Rep, 1045. But then the court are not to be prevented from the consideration of the nature of the affidavit, and examining any matter to which the affidavit refers. And if the case turns oii.a question of jurisdiction, probable ground will not do; for we must believe that this court have the power to hear, try, and decide this case, before we can with propriety take cognizance of it; because it would be idle — nay, it would be, undoubtedly, wrong, for this court to issue a writ to bring a case into court, have a trial by jury, and afterwards dismiss it for want of jurisdiction. " If we have not competent authority to apply the specific remedy, i. e, to restore to this- clerical office, and our order would be nugatory, as the counsel for the Presbytery insist, if appears to us that this court ouglit not to inquire into the merits of the case, nor make a nugatory order to restore ; and we were not a little surprised at the reply to this objection, and to hear it expressly avowed, that the great object of this proceeding is, to afltbrd Mr. Hindman an opportunity of compelling his accusers to come into this court, and by legal proof to substantiate the charges on the ground of which he was removed, and that this court might examine the causes of his amotion and decide on their sufficiency. " 4thly. The supremacy of the law is relied on as an answer to the objection founded on the nature of spiritual and temporal tribunals in America, which it was contended stand on different grounds than those tribunals do in Great Britain. True, it was said, the Presby- tery, Synod, and General Assembly, derive their authority by consent from the people possessing the Presbyterian religion, and not from any civil power. This we know to be true. And it was argued, that from the policy of our government and laws, those tribunals were separate and distinct ; so that as to spiritual matters, comprehending the cases of ordination and expulsion, the ecclesiastical tribunal possessed exclusive jurisdiction; and that the civil tribunals could not interfere without violating the principles of the Constitu- tion of the State of Delaware. But 'tis said religious institutions cannot control the civil authority, but must be amenable ; that the civil authority is the only refuge and security against persecution. Farther, 'tis the protection even for our religious rights, and must be supreme ; and the exclusive jurisdiction of the ecclesiastical tribunal, even in spiritual matters, is denied. " The power of the civil authority to redress wrongs and to protect our rights, both civil and religious, cannot be denied ; and if persons composing religious institutions do acts which violate our civil rights, no person doubts their amenability. And if they exercise the power of expelling a preacher, then the questions are, do these acts invade any civil rights ? Is there any law of the land which vests a right in Francis Hindman to have and to hold the office of a preacher, or forbids his expulsion ? Is there any rule even of the society which recognises the right after expulsion ? And is not the power of judging its own members and officers an inherent power, necessarily vested in the tribunal constituted by the society ? And ought not these tribunals have exclusive jurisdiction as to ordination and expulsion ? Where then is the right which is invaded ? C;ertainly, the existence of a right now to leave the office, must appear, before it can be said any right is violated, for which redress is to be obtained by the operating power of this supreme civil authority. " We shall now consider the two cases comprehended in the present application for a Mandamus. " The first is, to restore an expelled minister to his office of minister. Now let us examine the facts. First, the affidavit is to be taken according to its necessary import. Whatever is therein referred to must also be looked at, in order to understand the case. The affidavit of the applicant is in the following words:" — Vid. Ante, p. 535. MR. SERGEANT'S ARGUMENT. 539 If there exist any doubt in your Honours' minds upon this point, as I trust there does not; if you are not prepared to go the whole length of the doctrine which I have thus endeavoured to illustrate and enforce; still, you must agree, that some respect is due to the acts of these Church "This affidavit does show that the removal by the Presbytery was in the absence of Francis Hindman; but it does not show that it was a decision without notice, or giving him an opportunity of being heard; and in this respect is defective. "■ The affidavit docs show that the amotion from the clerical office was contrary to the rules of the New Castle Presbytery, at least so far as the belief of Mr. Hindman proves it; but it is defective in not specitying what rule or rules, that the court may judge, if they have the power of judging, whether such a rule was violated, as would substantially effect the merits of the case. 'J he affidavit, by referring to the rites and ceremonies of the Presbyterian Church, opens to our' view the Constitution of that Church, by which we see two appelate tribunals pro- vided ; but it does not show that appeals were resorted to. 'Tis defective in this respect ; for the removal is not fully impeached without a final decision. " Therefore, if this court have jurisdiction, we are of opinion a proper case is not shown to warrant us in issuing the Mandimus to restore the clerical office." Next comes the passage quoted by Mr. Sergeant. Ante^ p. 536. " The law in England, as to the use of this writ of Mandamus, we have considered ; and if that law could govern us in this case, we are of opinion, the cases cited arid relied on by the counsel for the applicant, do not show that even in England, the writ of Mandamus would be used to restore an expelled minister of the Gospel. We conceive there is a marked distinction between those cases and the present. The principal ground for controversy in this case, is the removal from the clerical office. In the leading cases cited, the existence of the clerical office is not questioned ;' and the inquiry is not, whether an expelled minister can be restored, but admitting him to be a minister, and as such he claims or has a right to another office in a particular church, by virtue of some grant, or contract, or statutory provision, and is ousted or deprived of it, such minister can be admitted or restored to the other office. In those cases, no question arises as to his being a minister: the power to decide, as to the first office, is not involved. The inquiry is, if being a minister, and having a right derived from law to another office, and he is deprived of it, the court will redress him by Mandamus. Here, the civil right to the other office, is a proper subject for civil power to act on, and a court will give redress. We think no such case in this, has or can be shown. "Now, as to the principles of the cases relied on. 3 Burr. Rep. 1267, may be considered as the principal case, and does contain the general principles applicable to the writ of Man- damus. 1st. It is a writ of right, in proper cases— Admitted. 2dly. It ought to be used where the law has established no specific remedy, and where in juslice and good goverri- ment, there ought to be one— Admitted; but here, 1st, there can be no remedy: 2dly, it would be subversive of frood government ; 3dly, if there he a right and no other specific remedy, it ought not to be denied — Admitted ; but then there must be a right, and this can only be understood to be a legal right. Now, here is no legal right; so tliat according to the principles of the ease in Burrowes, this is not a case in which a Mandamus ought to issue ; for it would be subversive of good government, and no right is invaded, and conse- quently there can be no wrong to be redressed. " As to the American cases, we cannot see how they apply to the present case. The ease of the State v. The Trustees of the Presbyterian Church of the city of Philadelphia, was to restore a minister to the use of the pulpit, in a certain churcli. Here was no question as to the preacher's office, but supposes him to be a minister; and the question it is to be pre- sumed was, whether, being a preacher, he had the civil right of using tliat particular church. " 1 he case cited by Mr. Dallas, in Shippen's Trial, 234, only shows that the Mandamus is used here as in England; and there was no question as to the right to tlie office of a min- ister, but a dispute between two priests, who had the civil rigiit to the Holy Trinity Church. " The New York case," {Case of Rev. Mr. Jones, pastor of Trinity Church— 1812,) " does not touch the writ of Mandamus, and seems to have been a dispute about the salary of a minister. "2 Binney's Rep. 441, was to an incorporated charitable institution, to restore an expelled member. This expulsion was not in a case where the corporation possessed inherently the power, but depended on the vahdity of a by-law, wliich the court determined to be void. And farther, it is not like the case of expelling a minister, by a tribunal having competent authority to try and dismiss. 540 PRESBYTERIAN CHURCH CASE. judicatories; that they are at least to be considered good, until the con- trary has been shown. And the burden of proving that they are not good and valid, should of course rest upon the opposite party. But here this rule has been reversed: the burden of proof has been thrown upon " The authorities cited, to show a variety of cases in which this writ of Mandamus has been denied, for reasons alleged to be applicable to this case, we do not consider to be neces- sary for us to notice. " We shall now consider the second case, which is to restore Francis Hindman, as a mem- ber of the civil New Castle Presbytery, to his membership, on the ground of a removal. " We must first ascertain what arc the facts of the case,' as it now appears before us. If the word " deposed," in the affidavit, is to be taken to import a removal from the civil New Castle Presbytery, by some act done by that body, acting in their corporate capacity, then the case is different, in point of fact, from the one which has been argued on, and perhaps does not present the real case which now exists. " The applicant's counsel, in the argument of this case, consider the amotion from mem- bership as consequential, or as the effect of expulsion from the office of a minister; and do not pretend that acts were done by the civil New Castle Presbytery, in their corporate capacity, for the purpose of removal, but contend that the acts of the ecclesiastical and civil New Castle Presbytery are not distinguishable, and even deny the legal existence of two New Castle Presb^-teries. We are of a different opinion. It appears to us to be manifest, that there do legally exist two New Castle Presbyteries, having and exercising distinct and different powers: the one for the government of the Church, which is ecclesiastical, and founded on the consent of associated religious societies; the other for the management of temporal affairs pertaining to the Church, which is civil, and derived from legislative autho- rity, by the act of incorporation passed on the 3d of February, 1808. " 1st. The right of creating religious institutions, without the aid of civil power, is recog- nised by the usage of our country. '•2dly. It is recognised by the preamble to the Constitution of the State of Delaware, and the first section of the first article. "3dly. The act for incorporating the members of the New Castle Presbytery, doesrecog. nise the existence of a New Castle Presbytery at that time ; and its subsequent existence is by that act, made necessary to perpetuate the corporation of the New Castle Presbytery. For the first section contemplates that the then and future members of the ecclesiastical Presbytery, shall be the members of the civil Presbytery. Therefore, the ecclesiastical Presbytery must then have existed, and it must continue to exist, or there can be no civil Presbytery; because, if it is admitted there are no members of that Presbytery, there can be no person legally qualified to be a member of the incorporated Presbytery, and conse- quently the corporation must be extinct. "4thly. The counsel themselves in drawing up the rule to show cause in this case, have used the word 'civil' to designate tiie incorporated Presbytery, which would have been unnecessary if there was but one, as the corporate name would have been sufficient. " But first we shall examine how the facts appear from the affidavit, independent of expla- nation from the argument of counsel. The facts are to be collected from the Avords of the affidavit, and the words according to their necessary import. We are not to be satisfied with conjecture, nor with the opinion of the applicant as to law, but his belief as to matter of fact in the present stage of this case is sufficient. He swears that the said New Castle Presbytery did depose him from the said New Castle Presbytery. "1st. We arc to ascertain whether it appears from which Presbytery he was deposed. It certainly is to be understood that the word ' said,' refers to the New Castle Presbytery before mentioned. But, as both Presbyteries are known by the same name, it is doubtful to which it refers; and this is not sufficient; it must appear that it was the incorporated New Castle Presbytery that deposed him. Now there is not one word in the whole affida- vit to show that the incorporated Presbytery was intended; but there are some words, to wit, ' in full standing,' which seem to imply, that the New Castle Presbytery previously mentioned, is the ecclesiastical Presbytery. Then from the necessary import of the words it docs not appear that the removal, in point of fact, was from the incorporated Pres- bytery. "Next, we are to consider the import of the word ' deposed.' This word — deposed — may be understood to mean, a removal by a decision of the ecclesiastical Presbytery, or it may be understood to mean a removal from the incorporated Presbytery, if not taken in connexion with the word ' said.' Then it does not necessarily import removal from the civil Presbytery. Again, deposing may comprehend opinion as well as fact. The applicant may be of opinion that expulsion from the ecclesiastical Presbytery amounts to removal MR. SERGEANT'S ARGUMENT. 541 us; and how this has operated, you have seen in the discussion respect- ing Dr. Elliott. For example, acting as Moderator, he decided that Dr. Patton's motion was out of order. Dr. Patton, very respectfully and pro- perly, no doubt, said that he must appeal from the decision. Again, the Moderator pronounced him out of order: Dr. Patton acquiesced, and sat down. Well, his Honour told the jury, that Dr. Elliott had been right in this decision, on the ground that the Committee of Commissions had not yet reported, and therefore there was no house to which an appeal could be made. But then, he left it to the jury thus: "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 Assembly, 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 difficulty in organizing the Assembly. The decision of the Moderator was correct, if the reason assigned was the true reason. Jlnte, 473, " The decision of the Moderator ivas correct, if the reason assigned from the civil Presbytery ; but this is a question of law, and not of fact, depending on the legal effect of expulsion from tlie ecclesiastical Presbytery. The affidavit does not satis- factorily show that there was a removal from the incorporated Presbytery ; and, therefore, we are of opinion that the question of removal from his membership of the incorporated Presbytery is not now before us. '• But suppose Francis Hindman to be expelled by the ecclesiastical Presbytery, does this, consequently, remove him from being a member of the incorporated Presbytery ? And, if so, ought this court to restore him by Mandamus to his membership of the incorporated Presbytery? The first consideration is as to the effect of the expulsion on his corporate rights. l"he legal effect must depend on the constitution of the act of incorporation. Can any expelled Presbyter be a member of the corporation ? If not, we certainly ought not to restore him to his membership against the law. " See the act — 4 Del. Laws, 233. It appears to us that the first section of this act ought not to be so constituted as to give a right of membership in the incorporated Presbytery to a person who has ceased to be a member of the ecclesiastical Presbytery; and therefore that we ought not to restore him because he has no right to be a member. But suppose the con- struction of this law should be according to the letter, and that as Mr. Hindman was a member of the ecclesiastical New Castle Presbytery, at the time of passing the act of incor- poration, he is yet a member notwithstanding the decision of the ecclesiastical Presbytery to take away his clerical office. This decision could have no such effect, for it cannot repeal the law, which, if that is the true construction, declares him to be a member. There must be some act done by tlie civil New Castle Presbytery, acting in the corporate capacity, declaring his expulsion from the corporation; or some act must be done preventing Francis Hindman from exercising his corporate rights, before there can be sufficient ground to war- rant this court to issue the Mandamus. And as no such acts appear to have been done, it is the opinion of this court, that a Mandamus ought no£ to issue, to restore him to his mem- bership of the civil New Castle Presbytery. There is one other point in this case to be considered — as to the emoluments attached to a membership of the civil New Castle Presbytery. It does not appear Mr. Hindman has been elected President, Trustee, or to any corporate office. If he is a member, we can per- ceive no other rights vested in him, but the right of voting for officers, and being elected to an office ; and it does not appear to us that any temporal rights can be attached to the right of membership, which will entitle him to pecuniary emolument. " It is said that a minister without a call is entitled to some stipend out of the general fimd; but this cannot give any right to an expelled minister ; so that we must again resort to the question whether he be a minister. And we consider the expulsion conclusive in this court, until reversed by the proper tribunal. " For these reasons we are of opinion a Mandamus ought not to be issued, and therefore order that the rule be discharged." 542 PRESBYTERIAN CHURCH (^ASE. was the true reason.^' Then, in regard to this particular, it went to t!ie jury to find, whether the reason which Dr. Elliott gave, was really that upon which he acted. I ann net now speaking of the substantial grounds of this opinion, nor objecting to the charge, though I might do so on this very account: I here wish merely to exemplify tlie position in which we have been placed, by the course which the argument has taken. The Moderator was confessedly right in his decision, yet the jury are called upon to judge, whether the reason that he gave at the time, was the true reason that influenced his conduct. I would ask his Honour, wheiher he or any other man, called upon to sit in jutigcnent, could stand such an ordeal? Dr. Elliott was examined here as a witness, and notwithstanding his having preached from the text which has given so much offence, when to his reverend character as a preacher of the Gospel, was added the solemn sanction of an oath, he was certainly entitled to the fullest belief. Yet the jury were told to look into his heart, and say whether the reason given, was or was not the true reason. And the validity of his act, is thus made by the judge to depend upon what the jur}'- may think of that question. If this principle be sustained by your Honours, the acts of the Church will hereafter be, not only of no authority, but not at all respected; and every religious denomination of our land must be exposed to the same danger. Think not that it will be confined in its operation to the Presbyterian Church. Both Old-school and New-school, High-church and Low-church — all must be amenable to this species of searching inves- tigation. Who will consent to be Moderator of the Assembly, if the clerical character be found insufficient to protect him from the grossest suspicions and accusations? Every other presiding officer finds protec- tion in the rules of the house over which he presides. They forbid that his motives should be inquired into or impugned. The only question is, whether his decision is right or wrong. But here, a Moderator engaged in the discharge of the ordinary duties of his office, is accused of con- spiracy, and we are told to look into his heart, and there search for cor- rupt motives and unholy purposes. This is a persecution most refined and cruel, in comparison with which, the persecution of five hundred ministers and fifty thousand communicants, which has been talked of, is but as the light dust of the balance. What more harrowing trial could those engaged in the management of spiritual concerns, be subjected to? What more agonizing torture could be applied, than they might be made to suffer, in the progress of an investigation such as this? 1 am not now speaking of actual suffering: I do not speak of the feelings of my clients in the present case; but of the natural and inevitable consequence of the court's adding its sanction to such a course of investigation. They talk of disrobing ministers of the Gospel. When have they spared a rag of the raiment that covered us? What attempt has been omitted, which was calculated to wound the feelings of these reverend men, and shake the confidence reposed in them, by those to whom they administer the bread of life? The more the growth of this sort of .spirit has been favoured, the more unrelenting it has naturally become, until at last we find that even one of the learned counsel, in the excitement of fancied triumph, could not forbear to offer Dr. Elliott the text from which he ought to preach, meaning the text which he ought to observe. Is it fit; is it con- ducive to the interests of either the Church or State, that such an inves- MR. SERGEANT'S ARGUMENT. 543 tigation as this should be allowed, when gentlemen so correct as both of the learned counsel on the opposite side usually are, enter so deeply into the feeling of the contest, as to do what they doubtless must feel to have been unkind and most unwarrantable? Mr. Randall. I am not aware that I said any thing to which Mr. Sergeant's remarks can apply. The charge is very serious, and embraces both of us. Mr. Sergeant. I refer to the whole discussion, but more particularly to those passages which I have now cited. I do not suppose that they were meant to wound, or hurt any one's feelings or character: they were the mere sallies of the moment. But who can tell what injury they have done, or how deeply they have pierced? You can only judge of this by considering the delicacy of the character of ministers of the gospel before the world. It is as delicate as the character of those who are called to administer justice in a civil court. It, as little as any thing, can endure to be thus rudely handled. I have used, and intend to use, no harsh word against any member of the New-school, among whom there are many good men, who I sincerely wish were out of this cause. What I have said has been sufficient to illustrate the nature of such investigations, and to show that if sanctioned, they must end in the destruction of the clerical character and of the Church. I will now endeavour to reply to a suggestion made by Mr. Randall yesterday: as it belongs to the relators' case it is necessary that I should notice it. Indeed, in the first instance, it bore something like the shape of an argument, and therefore may possiblyembarrass the inquiry unless now disposed of. He suggested that these gentlemen who had been excluded were a portion of the body of electors of the trustees. He said, indeed, that the General Assembly was a quasi corporation. I think he said that it was to be treated as an incorporated body. By a quasi cor- poration is meant an imperfect corporation — one which has some, though not all the powers of a corporation, conferred by law; whereas the Gene- ral Assembly has no civil or corporate powers whatever. It is not a quasi corporation, nor a corporation in any sense. But they are the electors of trustees, who are incorporated. Who are the electors? The General Assembly of the Presbyterian Church, such as it was in 1799, when the charter of incorporation was granted, and when there was cer- tainly no corporate body at all. The act begins, '* Whereas the ministers and elders forming the General Assembly of the Presbyterian Church of the United States of America, consisting of citizens of the state of Penn- sylvania," &c. ; and in the first section incorporates eighteen persons by name, of whom one third were clergymen. "John Rogers, Alexander McWhorter, Samuel Stanhope Smith, Ashbel Green, William M. Ten- nant, Patrick Allison," — they all were clergymen. These eighteen and their successors are incorporated. Then the sixth section provides, Mr. Sergeant read the sixth section. — Vid. ante, p. 21. There is the act, and it directs that the trustees shall be appointed by the General Assembly. It speaks of the General Assembly as an existing body, of course a body possessing all the qualities, attributes, rights, and capacities which it had before the passage of the act, and none other. It was a known body then existing without any charter, and neither a cor- .poration nor a quasi corporation. Now one of two things must follow, 544 PRESBYTERIAN CHURCH CASE. The legislature either meant to continue the body the same as it had been theretofore, or as it then was; or they meant to change its nature or attri- butes. If we adopt the former supposition, that it was to continue such as it then was, the inevitable consequence is, that the plan of ISOl was entirely inadmissible, that it engrafted upon the Church an alien body, of a different form of government and discipline, and could not be beneficial to either sect, or to both. Did tlie legislature mean to alter the Church in any respect? They did not, or they would have said so. Did they mean to make it a body corporate? They did not, or they would have done it. Did the Church ask to be incorporated? No, the very reverse. Wher- ever churches, (that is the estate,) in this city are held by trustees, the church sessions are entirely different and independent bodies. So the General Assembly is quite separate from its board of trustees, who are only the ministers of its charities. The act of incorporation left the Assembly as it found it, making no alteration in its constitution, or in its capacity. What power did it possess at the time the charter was given? If these four Synods had been cut off before the year 1799, as the Presbytery of Philadelphia was, what would have been their situation? Would any civil tribunal have looked at the act to determine whether it was right or wrong? At that time the part of the Constitution which I have read was in force. The principles of civil and religious liberty were well defined and deeply felt; the consideration of them had occupied the best minds in the world; they never were better understood, than when this act was passed. Do you think that the legislature intended, by the appointment of certain persons and their successors, to hold the bag in which the funds were deposited, to alter the fundamental principles of Presbyterianism, and to set the civil courts over the ecclesiastical; to refer to them the decision of matters, before belonging exclusively to the jurisdiction of the Church? If they had so meant they would have so said. But they have not said so. They have left the General Assembly exactly as they found it — responsible as it was before, and no further or otherwise — the supreme judicatory of the Presbyterian Church, having final jurisdiction in spirit- ual matters, and not amenable to any civil power. Now, may it please your Honours, there were certain trustees appointed in 1837 — four I think — after the exscinding resolutions had passed, after the representa- tives from the Presbyteries belonging to the four Synods had ceased to be members; but does any one pretend that that election was therefore ille- gal ? Yet if the doctrine advanced be true, that a civil court has a right to look into the validity of a decision made by the Assembly, the validity of this identical decision, the question may arise whether the subsequent election of trustees was good, when a part of the members had been excluded from voting. Nobody has ever thought of such a thing as this, even in the season of most embittered strife — has ever thought of calling in question the constitutionality of that appointment ; though according to the doctrine of the opposite side, the legitimate effect of the exclusion would have been to invalidate the election of 1837. But this is not the subject of our present inquiry. Where the General Assembly has elected trustees, evidence being given of the existence of the body, the certificate of their election is sufficientproof of their having been duly chosen. Nor is there any difficulty in regard to the disposition of the funds. MR. SERGEANT'S ARGUMENT. 545 Whether the trustees of charitable funds are incorporated or not, at all events they are under the supervision and control of the law. A court of equity will in all cases see to the proper application of the fund, and com- pel the trustees, tholigh not a corporation, to fulfil the intention of the donors. But to this end they will look, not into the acts of the General Assembly but into the original purpose of the giver. Such donations are of two descriptions: they are to be applied to specific objects to be directed by the General Assembly, or to specific objects under the control of a Court of Equity. If placed under the control of the Assembly, the only question to be decided is, which is the true General Assembly, and it is admitted that the Assembly of 1837, after the passage of the exscinding resolutions continued to be in full life, and as competent as any one that ■ever had existed. I do not therefore think it necessary to this case to go into an examina- tion of the acts of 1837; and his Honour will recollect that an objection was made at the trial, to the introduction, on the part of the plaintiffs, of any testimony respecting them. If that objection was well grounded in any respect, of course it will avail us now. Judge Rogers. This reason was not given then. Mr. Sergeant. If the reasons of objection were not as fully and satis- factorily stated as they might have been, I would suggest to your Honours that this was only one of the ordinary incidents of such a trial. The difficulty under which we all necessarily laboured in the trial of the issue, ought to reconcile the honorable judge who presided there to this review of his opinion. No question undergoes the same full and satis- factory discussion on a first trial, that it does after being brought before an appellate court. My learned friend in his opening and evidence in- troduced a new branch of law — matter entirely foreign to our ordinary subjects of study; and to grasp and master it, if any of us have done this, required much time and reflection. Those who have been acquainted with other cases know that it is so, in a greater or less degree, with all. Therefore it has seldom happened that new reasons — some additional arguments, have not been presented on the review of a case in the Supreme Court. A question is not examined with the same care, or the same clear understanding, on its first discussion, as when we come to rest attentively upon each point developed in a preliminary investigation. As the pilot, who looks steadily, with an intent gaze, along the horizon, at last discerns what a wandering eye would never have discovered; so the mind after being long and patiently fixed, discovers words and mean- ing, where at first it could see nothing — where all was perfectly blank. I remember a case, tried some years ago in the Circuit Court of the United States, in which Judge Washington presided and gave a clear opinion to the jury, who brought in a verdict accordingly. The case was removed into the Supreme Court, and after the opening counsel had con- cluded his argument. Judge Washington came up to me and said, " How could I have committed such a blunder?" and the opinion of the inferior court was reversed to the entire satisfaction of the learned judge himself. Upon the trial the case had not been argued as it was before the appellate tribunal; and very often a judge supposes, when his own decision comes up for review, that the question is presented in entirely a different aspect from that given to it in the court below. G9 546 PRESBYTERIAN CHURCH CASE. But I do not mean to rest finally upon the arguments which I have thus offered, though I think them perfectly clear and satisfactory, in what- ever way you look at them. 1 propose now to examine into the acts of the Assembly of 1837, upon their own footing, as if the court had the power to examine them. For if it can take cognizance of the acts of this and all other ecclesiastical bodies, we must submit, though we should like to be more thoroughly persuaded of its right of jurisdiction; and do not feel bound to conform to the verdict of a single jury, or the charge of a single judge, when entitled to the opinion of the entire tribunal. If here^ finally, the jurisdiction be established, Uiere can no longer be any question of its constitutionality. The decision of this Court is conclu- sive. I propose therefore to examine the proceedings of 1S37, and will end this part of the case with that examination, which will be brief. And I begin with asking, by what law will you judge those proceedings? Ac- cording to whose judgment will you judge them? What will you appeal to, as a ground of argument ? I say that the acts of the Assembly of 1837 were good. Why? Because I think they were right. What I think, is however of no consequence to any body else. We must have some rule. What is it? The Presbyterian Church, by its highest tribunal, regularly constituted, has performed certain acts, deliberative and administrative; ihesQ, prima facie, are certainly good. But it is argued, that on some ground or other, they are wrong. Now, let us look closely at this mat- ter. I do not, indeed, feel myself competent to form an opinion on spiritual questions for others. I go for one grand, consistent, constitu- tional principle, in all such matters: that every man must have exclusive cognizance of his own spiritual concerns. I cannot judge at all in regard to the spirit of another. How then am I to argue the question now pro- posed? Where will I find authority for my doctrines? Let us go to the Constitution of the Church. The Constitution declares, that the power of the Church and its jurisdiction, are purely spiritual and moral, and that the civil authority has no spiritual power. Now, how will you test these acts, and determine whether they are right or wrong? Will you appeal to the Scriptures? No; that would be a profane use of them. They are not to be brought into court, except where the law requires their use in the administration of oaths, or there are other cases of like necessity. But, if we do open the sacred volume, I maj^ not understand it as others do, and they have a perfect right to understand it for themselves. My understanding of it is a guide for my own conduct only, not a direc- tory for theirs. Yet the Scriptures are the rock on which they believe their peculiar system, their Church, to be built. I am not competent to say how they understand their Bibles. But our only security is on the founda- tion of the Scriptures; from this rock, we must endeavour to avoid being shifted or thrown off, each man upon his own individual resj)onsibility. We believe then that the acts in question are warranted by the consti- tution and laws of the Church, as we interpret them; that they are within the powers granted to the General Assembly according to our construc- tion of the grant. Here are the general powers entrusted to that body. Mr. Sergeant read Form of Government, Chap. XII. Sects. 4th and 5th. — Vid. ante, pp. 335, 336. To this body, then, is given entire authority over all the affairs of the Church, authority to determine, not only the ends to be attained, but also MR. SERGEANT'S ARGUMENT. 547 the mode in which power shall be exercised for their attainment. They are to correct the errors of other judicatories, but are not themselves sub- ject to correction. They have a general superintending jurisdiction. The act here complained of is, that four Synods have been laid down or dissolved, for what the Assembly considered a sufficient cause. Suppose it is objected that they ought to have been suffered to remain in connex- ion with the Church; how long should they have been allowed to remain? If they cannot now be laid down, when can it be done? Must the relation continue to exist for ever? It is very easy to object, but our opponents must fill the whole of the chasm which they make; they must substitute an authority for ours. They must erect a tribunal which will do what Judge Rogers refused to do — and in this decision I think he was right — .to admit evidence of the disorders which, acccording to our notions, exist in the four Synods. If an appeal is to be taken from the decision of the Assembly, the appellate court should have before it the whole of the evi- dence that was before the Assembly. They had collected testimony by a public examination, conducted in the presence of the delegates from the . four Synods, and knew what the effects of the " Plan of Union" had been in all the borders of the Church, and in the General Assembly itself. They had therefore the means of forming a judgment, means to be made use of so far as they had liberty to use them; and if their decision was unconstitutional and void, when can they make such a decision; or, if they never can, what tribunal is to receive the same evidence and adju- dicate the matter ? How is the disorder to be remedied ? I submit, that if our opponents cannot point us to such a tribunal and to such a remedy, this is a powerful argument against them. Disorder must then be remediless. This court may undo what is done by the Church, but can they do what is obviously essential to be done? They may defeat and counteract the rightful authority, but can they substitute a new one? Will they under- take themselves to administer the needful discipline and government? Again, when a law enacted by a proper law-making power, or an administrative act performed by a proper administrative power, is sub- mitted to examination on the ground of its unconstitutionality, there are certain well settled principles applicable to the question. For instance, if an act of Congress be impeached in a court of the United States; or an act of the Legislature of Pennsylvania in a court of the United States, or in one of our State courts, there are established rules of construction which must govern the case. And if this court can here try a question as to the constitutionality of an act of the Church, we must be allowed the benefit of these same principles and rules. What are they? There is one great one: — He who complains is bound to show, that the act is in conflict with some express provision of the constitution. He must lay the two instru- ments side by side, and show, either a manifest transcendence of power in that to which he objects, or a manifest interference between the two, so that they cannot stand together. An argument drawn from the general injustice of the act will not at all avail him. This has been decided in the courts of Pennsylvania, and in those of the United States, over and over again. Is it charged against an act of the legislature that it is retrospec- tive? There is nothing in our Constitution, or in the Constitution of the United States which prohibits retrospective legislation. Accordingly, acts of the legislature have been confirmed in this court which were entirely 548 TRESBYTERIAN CHURCH CASE. retrospective; and in a case brought up here from one of the northern counties, a retrospective lease was held good; by reason of which deci- sion, was reversed in effect a judgment of this court, which had pro- nounced such a lease void. You must, as I have said, lay the two instru- ments side by side, and show that one cannot take effect without destroy- ing the other: then you are to decide which is of the highest authority. Now you must extend this rule to the case before us, and point out that provision of the constitution of the church which inhibits the power exercised by the Assembly. Have our opponents done this? If not, and if it cannot be done, the acts to which they object are not unconstitutional in any sense. Do they require us to point out the part in which that power is granted ? We say it is granted in the passages which I have read; that we have had it by practice, usage, and common consent, from time immemorial; or, what is amply sufficient for our purpose, that no clause of the constitution has been violated. Then, you cannot say, in this case, consistently with established principles, that the Assembly has passed an unconstitutional act. Well, will you say, that here was an improper exercise of power? To that length I think your Honours will not go. If the power exist, the Assembly alone is responsible for its proper exercise. If, however, this question is to be examined, I must enter upon it, though I do so with reluctance. Incompetent as I feel for the humble range of duties to which I am ordinarily called, I feel infi- nitely more incompetent for this task. I hardly know how to set out upon an inquiry which I am sure will be very unprofitable; but I will try to avoid being tedious. I will endeavour, if I must enter upon this subject, to show, in the first place, that the separation effected by the several acts abrogating the " Plan of Union," and exscinding the four Synods, was essential to the welfare of the Church. I think this point is clearly in evidence before your Honours — I speak not of parol evidence, but of that of a more authoritative character. The resolutions of the Assembly give as one reason for those acts, that the " Plan of Union" itself had not been conformed to; and that the laxity of practice under it had been pro- ductive of great disorder and confusion: I suppose I may take for granted that the welfare of the Church is not promoted by confusion and disorder. On the same page of the paper-book which contains the affirmation of the foregoing fact by the Assembly, which must be taken to be sincere, we find certain resolutions of inquiry into the conduct of inferior judicatories offered and passed; which were imme- diately followed by a notice of a protest against them by Mr. Hay and others, and a notice from Mr. Cleaveland, for himself and others, of a pro- test against the abrogation of the " Plan of Union." Then, " Mr. Breckinridge gave notice, that he would to-morrow morning offer a resolution to appoint a committee, to consist of equal numbers from the majority and minority on the vote to cite inferior judicatories, to inquire into the expediency of a voluntary division of the Presbyterian Church. ^^ Saturday morning, May 21th. — Agreeably to notice given last even- ing, Mr. Breckinridge moved that a committee of ten members, of whom an equal number shall be from the majority and minority of the vote on the resolutions to cite inferior judicatories, be appointed on the state of the Church." ./inte, p. 3S. MR. SERGEANT'S ARGUMENT. 549 In the very adoption of this resolution was a declaration by the whole Assembly, that it was then expedient and essential to treat of a division of the Church. I hope this will never be lost sight of; and when we are charged again with sinister views, we may answer, that the whole As- sembly— the New-school as well as the Old-school — were convinced that a separation could not be avoided; that the Church must be divided — peaceably, if it could be, but at any rate, that it must be divided. Then a committee was appointed, composed of five from one side and five from the other, for the two parties, by their votes, had become a known and distinguishable majority and minority. In subsequent pages, you will find what the two portions of this committee submitted to each other and to the Assembly. They negotiated just like the representatives of two foreign powers, acknowledged to be adverse in their views. Their ap- pointment shows that it was impracticable to get along farther without division. They were already divided, irreconcilably. Here is the first proposition submitted by the Old-school — No. 1 of the majority: " The portion of the committee which represents the majority, submit for consideration : " 1. That the peace and prosperity of the Presbyterian Church in the United States, require a separation of the two portions called respectively the Old and New School parties, and represented by the majority and minority, in the present Assembly." Jlnte, 40. What say the minority to this? "Whereas the experience of many years has proved that Ibis body is too large to answer the purposes con- templated by the constitution, and there appear to be insuperable obstacles in the way of reducing the representation:" This is stronger than the language of the majority. The minority, as I understand the matter, may be called, unreservedly, the New-school. "And whereas, in the extension of the Church over so great a territory, embracing such a variety of people, difierence of view in relation to important points of church policy and action, as well as theological opinion, are found to exist: " Now, it is believed, a division of this body into two separate bodies, which shall act independently of each other, will be of vital importance to the best interests of the Redeemer's kingdom." Jlnte, 41. That is the language of the minority: ^^ Now, it is believed, a divi- sion of this body will be of vital importance to the best interests of the Redeemer's kingdom.^' And if separation was of vital import- ance to the best interests of the Redeemer's kingdom — a kingdom not of this world, though it concerns all who are in the world, it follows, that unless a separation had been efiected, these interests must have been sacrificed. Who then will attempt to force us to sacrifice such great inter- ests? I am aware — and I mean to do full justice to these gentlemen — that they afterwards endeavour to avoid the efiect of what they had declared in the projet, laid before their brethren of the committee. In their report subsequently submitted to the Assembly, they say, " The subscribers had believed that no such imperious necessity for a a division of the Church existed, as some of their brethren supposed; and the consequences of division would be greatly to be deprecated. Such necessity, however, being urged by many of our brethren, we have been induced to yield to their wishes, and to admit the expediency of a divi- 550 PRESBYTERIAN CHURCH CASE. sion, provided the same could be accomplished in an amicable, equitable, and proper manner." Jlnte, 40. Then, may it please your Honours, in the projet which they submit to one-half of the committee, the representatives of the majority, they do distinctly, without any equivocation or limitation, say that a division is of vital importance to the best interests of the Redeemer's kingdom; and offer this declaration, as a conceded basis of the concurrent report to be made to the Assembly, provided they should agree upon subordinate matters — the details of the plan. When the two committees — five and five — commenced their negotiations, on one thing they are agreed — that a division of the Church is indispensable. Well, did the Assembly agree in this opinion? I do not mean to lay great stress just now upon the dif- ference in the language of the minority's committee, in their subsequent report. I take at present only their first opinion on the subject, as offered in terms to the other side, making no comparison between that and what they afterwards affirm, or the scene exhibited in 1838 in the church in Ranstead Court. This purpose in which all seemed agreed, and the wisdom of which the minutes demonstrate, the majority afterwards carry into effect. Your Honours will perceive by the proceedings of both 1837 and '38, that there existed such difficulties, strife and disorder, as strongly confirmed the opi- nion thus expressed by both parties, as were subversive of church govern- ment and discipline; and that instead of the Assembly's having power to correct the evil, by any ordinary process, it threatened to destroy all the power that the body possessed. Such was the heat of controversy, that scarcely a resolution could be passed without being followed by a protest, scarcely a division made without an angry conflict. The known division of the house into two well defined parties, affected even the appointment of a committee, which bore the character of a congress of representatives from hostile powers. No one who looks at the situation of affairs can think the statements of either party exaggerated; can doubt that division was of vital importance to the best interests of the Redeemer's kingdom. In such a state of things the Assembly could not govern itself, much less the Church in its whole extent. All authority was lost — you see how completely and finally it was lost in 1838. But, in 1837, the line of division between the two parties was well defined: they were ranged on opposite sides — the Old-school and the New-school. When a committee was to be appointed, composed in equal portions of the two parties, every body knows where to look for New and where for Old school men. They no more mingled than do the waters of the Alleghany and Monongahela at their junction, where the colour of each is as distinct as where the streams flow separate. Farther, the root of all this difficulty was understood — this cannot be disputed — was understood to be in the plan of union of 1801. The minutes of the Assembly of 1837 show this conclusively. The truth is that aliens had been admitted into the judicatories of the Church. This we could have proved, and, having offered to do so, are entitled to the benefit of the fact as if we had proved it. They were brought in under the operation of the plan of 1801. Now his honour. Judge Rogers, in- structed the jury, that the introduction of lay delegates from Congregational establishments into the judicatories of the Presbyterian Church, was a MR. SERGEANT'S ARGUMENT. 551 violation of the fundamental principle of Presbyterianism; and in con- travention of the act of the Legislature of Pennsylvania, incorporating the trustees of tlie Church; but he did not seethe bearing of this doctrine upon the present case. His views on the subject are more fully explained in the preceding pages of the charge. Speaking of the " Plan of Union," he says, " It is not a union of the Presb3^erian Church with a Congregational church, or churches, but it purports to be, and is, a Plan of Union between individual members of the Presbyterian and Congregational churches, in that portion of the country which was then denominated the new settlements. It is advisory and recommendatory 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 witli it; for it is only when the congrega- tion consists partly of those who hold the Congregational form of discip- line, 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 instan- ces to the contrary, this I conceive to be the obvious construction of the regulation. That part of the agreement was intended as a safe-guard, or protection of the rights of all the parties to be affected by it, without any design to confer upon the Standing Committeee 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." " If, as is stated, the Standing Committee of Congregational churches have claimed and exercised the same rights as ruling elders in Presbyte- ries, and in the General Assembly itself, it is an abuse which may be cor- rected 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." Anie,AQS,%. By these arguments he arrives at the conclusion that lay delegates were admitted only in a very limited manner by the "Plan of Union" — only when an appeal by a Presbyterian member of a mixed church was pend ing before the judicatory. To this point I beg leave again to invite the attention of your Honours: it has been debated already on both sides. The question turns on the construction of the last of the rules contained in the plan of ISOl, especially the latter part of the rule: " And provi- ded the said standing committee of any church, shall depute one of them- selves 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." Now I understand the construction contended for to be, that this right of sitting and acting in the Presbytery is restricted to the case of the appeal before mentioned. But the whole must be read in connexion in order to comprehend the matter fully. 552 >RESBYTERIAN CHURCH CASE. Here Mr. Sergeant read Section 4th of the "Plan of Union." — Vid. ante, p. 49. I presume this latter clause has been considered as a proviso; and it is so awkward written that it might appear to be such at first sight. It is not however a proviso; but the mode of expression used is merely an- other form for " If the said standing committee of any church shall depute one of themselves," &c. It is hardly an allowable mode of expression, but certainly is not intended as a proviso, or a limitation to what goes before. It is a farther enactment, which is clearly obvious from the fact that the case of an appeal is just the very one in which a ruling elder would have no right to sit; for no member of the inferior judicatory can sit in the superior, while an appeal from a decision made by himself as a member of the lower court is pending. The standing committee-man " may have the same right to sit and act in the Presbytery as a ruling elder of the Presbyterian Church." But in that Church a ruling elder cannot attend the Presbytery when it is engaged in hearing an appeal from his own session, except as a party; he cannot sit, debate, and vote. Such at least is my understanding of a provision to be found in the Book of Discipline, Chap. VII., Sec. Ill, No. 12. "Members of judicatories appealed from cannot be allowed to vote in the superior judicatory, on any question connected with the appeal." If a ruling elder of a body appealed from cannot vote and act in the higher court, in the trial of the appeal, surely it was not intended to give a standing committee man that right. If the provision means to give him the right of sitting and acting only, when a member of the Presbytery would enjoy the same right, upon the construction of the opposite coun- sel, he could not act at all. " 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 Ihe Presbytery, as a ruling elder of the Presbyterian Church." That is, if his Honour's opinion be correct, he shall either have the right to sit and act, when an elder would have no such right, and in direct violation of an established principle of the constitution; or just as an elder, which would be not at all, or as if it were said, if the standing committee shall depute one of themselves he shall not have a right to sit and act, which is absurd. Not only is the present law of the Church such as I have shown, but from the Digest, page 332, it appears that such has been the law of the Assembly for near half a century. "Ordered, that the business of the appeal, introduced last session, be now resumed: whereupon the parties were heard at full length; and pre- viously to the discussion of the merits of the cause, it was Resolved, That no minister belonging to the Synod of Philadelphia, nor elder who was a member of the judicature when the vote appealed from took place, shall vote in the decision thereof by this Assembly. The Moderator being a member of the Synod of Philadelphia withdrew, and Dr. McKnight took the chair." Then, may it please your Honours, it is perfectly manifest, that as a member of tlie lower court, cannot sit and act in the upper, while an appeal from the former is tried; as this was the practice as early as the year 1792, has continued to be so ever since, and is now the subject of an express constitutional regulation; since the rule is so imperative as to MR. SERGEANT'S ARGUMENT. 553 require that even a Moderator shall leave the chair, the construction put upon this provision by his Honour must be erroneous. It must mean something else. And what else can it mean, than that the mixed churches shall be represented in the Presbytery by lay delegates? But if I have succeeded in showing that the clause under consideration is not a proviso, that it admits standing committee men to the Presbytery in all cases, and not only in the case of an appeal, what is the inevitable consequence? This construction of the '* Plan of Union" overturns the whole basis of the argument on the other side. The opposite counsel deny that that plan admitted a single lay delegate to a seat in any church judicatory, except in the case of an appeal; acknowledging that if it had done so, it would have been bad. Because of this restriction upon the privi- lege of the comm.ittee men, say they, the "Plan" was unobjectionable; therefore the act of abrogation, and the exscinding resolutions were uncon- stitutional and void; therefore our proceedings in 1838 were rightful, and you were carried out of the church in Ranstead Court, and into the church on Washington Square without knowing it. If the basis fails the whole superstructure fails with it. It is evident from the minutes that the " Plan of Union" was repealed chiefly because it admitted aliens into the Church judicatories; and the argument on the other side is that the repeal was unnecessary because the plan did not admit aliens. If this construction of the act prove fallacious, the argument founded on it must fall to the ground; and if the repeal was necessary, no less so was the consequence of the repeal, the dissolution of the four Synods. Let not any one say hastily that the admission of lay delegates into the judicatories of the Church is a small thing. I will not pretend to argue how material, how essential a matter it was to these parties. But let me say — and this in answer to the argument drawn from the alleged ac- quiescence of the Presbyteries — that one error like the first step in a wrong direction, though but an imperceptible departure from the right line, always results in deviating farther and still farther from the way of truth, until a distance is reached which could not at first have been anticipated. The admission of Congregationalists might have seemed a small thing in 1801. Doubtless, it was but a small thing then. Perhaps it was fit that the experiment should be tried, though the result has not suited all subsequent times. At that period the General Assembly could not pretend to see so far as the present day. What was then but an experiment, having since become known in its power- ful and disastrous consequences, they have brought to an end. The " Plan of Union" was certainly not irrevocable. How could it be so? How could it be maintained for one hour against the will of the Assem- bly? Our Congretional brethren where at liberty to go whenever it pleased them, as are the members of any Church; and if the other party had this liberty, how is it that the party that I represent— the Presby- terians of the old stock, could not put aside the weight which oppressed them; could not shake off the burden under which they were bending to the earth. According to the doctrine of our opponents the Assembly made a one-sided bargain : such it is certainly claimed to be. The evils which resulted from the " Plan of Union" were gradually discovered. In the language of the committee of the minority they were " found to exist:" thev had not been at all foreseen. When at last they came to 70 554 PRESBYTERIAN CHURCH CASE, light the opposite party was admonished of their existence, and to both sides the question was submitted whether this root of evil should not be eradicated. But we are told that the welfare of the Church must be sacrificed; that the great interests of the Redeemer's kingdom must be abandoned, rather than that a separation should be effected. Yet the security of those interests which had been confided to the General As- sembly— should it not have been the chief object of concern, the polar star which guided their course? Were they bound to suffer a vine capa- ble of bearing fruit to perish in their hands, for want of lopping off a single branch? Nay, must they let the whole vineyard go to destruction rather than transplant one strange vine into a soil more congenial to its growth, the soil in which it first grew? If the Assembly had left this important work undone they would have betrayed the great interests confided to their care. The language of the minority is conclusive upon this point. I did mean to have traced out the proceedings of the committee, the two portions of which disagreed chiefly in regard to the succession of the Assembly, which the New-school refused to allow us to retain. But it is enough to say that they were not reconciled ; that an amicable separation could not be effected, though separation was on both sides declared indis- pensable. If then the four Synods were exscinded to compel a separa- tion, instead of the acts, being what it has been termed, a wanton exercise of power, it was required by the clearest dictates of duty; we had no choice in the matter. The two parties, I have said, could not be recon- ciled: they could not separate in peace. Well, the majority made a separation ; the minority went away and consulted counsel learned in law; and now they are both where you see them. And instead of being allowed to hope for the restoration of peace, that peace which we all agreed could be promoted only by division, we are told that we must be forced together again, that the two contending parties may renew in each General Assembly the scuffle for the ascendency; without caring for those great interests for the promotion of which the committee whose language I have used was appointed. The act of excision was the act of the majority, and it was the only practicable measure that remained. They who performed it were the Assembly: they were in possession of all the powers and rights of that body, and were bound to provide for the interests of the Church under their care. As they knew well who were on one side, and who on the other; as the lines of demarcation were clearly perceptible, and it was perfectly evident where and how the separation could be best effect- ed, with as much regard as possible to the feelings and interests of both parties, the act was performed. We have no cause for regretting what we have done. Our only regret is, that the other party, abandoning the ground that division is necessary to the welfare of the Church, now view the matter in a different light, and think that the best interests of the Redeemer's kingdom will have been promoted by this law suit, if they should prove finally successful. The utmost that their success promises to accomplish is to bring the two parties again together. From the history of the past your Honours may see plainly what must result from such an union. If any more evidence on this subject is needed, I would refer to a little matter, which may be of some weight in its bearing on the same point, MR. SERGEANT'S ARGUMENT. 555 though I shall not lay much stress upon it. In the pastoral letter drawn up by the Assembly that met in the First Presbyterian Church, they say, *' We could not fail to perceive, in a General Assembly concentrating in itself legislative, judicial, and executive power, and dispensing the discipline, the honours, and the copious revenues of the Church, the ele- ments of an ecclesiastical organization, 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. ^' t-^/i/e, 192. That is the account which the New-school give of those from whom they have separated. First, we are represented as usurping all power in the Church, and dispensing magnificent revenues; and in the next para- graph, as attempting to unite spiritual and temporal authority, which is plainly intimated by the reference to papal power; to found a papal throne. I take for granted that they really entertained the views here ex- pressed: perhaps they thought there were already some popes in the house which they left. Do they not go a little farther? They say the Church is in danger of corruption; that though it is not now vitally affected, bad times may come which will realize their worst fears. Do they not tell us plainly, must not every one understand their language to mean, " We leave you because you are growing corrupt; because you have usurped an authority which is fast overspreading both spiritual and civil liberty, as did a power before you, which began more humbly than you have done"? To this language I advert as another indication of the truth of what both sides had previously alleged, that peace could not be maintained and religion promoted without a separation of the conflicting parties, I have now submitted to your Plonours my views of the evidence upon this point, so far as it lies before you, and they seem amply sufficient to support my position. This 1 have done, assuming the facts, to a certain extent, to be as stated. And was not the Assembly right in regard to these facts? Where has the contrary been shown? Has any proof been offered that they were not as represented? None at all. What then was wanting? Admitting as our opponents must, that we were right in sub=- stance; they say that we did not adopt the proper form of proceeding. This objection makes it necessary that I should say something in regard to matters of form; that the inquiry should be instituted whether the As- sembly was boimd to adapt its measures to those forms of process which the Constitution prescribes to the several church judicatories. Court adjourned. FRIDAY MORNING, April 26th— 10 o'clock. I suppose, may it please your Honours — beginning where I left off — that in order to establish the ground on which our case, so far as regards the proceedings of 1837, depends, two things must be considered — First, the substance of what was done, which I have already examined to some extent; and, secondly, the form adopted by the Assembly in repealing the "Plan of Union" and passing the acts of excision. I begin now with the latter point — the form of these proceedings. Here I under- stand the argument on the other side to be, that the General Assembly departed from its own established course of action, disregarding the forms of process prescribed in the Constitution. This argument seems to admit 556 PRESBYTERIAN CHURCH CASE. that if these forms had been adopted, the conchision, whatever it had been, to which the Assembly might have arrived, must have been received as unexceptionable, as of binding authority throughout the limits of the Church. That admission is an admission of our jurisdiction over the sub- ject matter; my first object, therefore, is to show, as by established prin- ciples it certainly can be shown, that the course of proceeding which we adopted was correct; or rather that the Assembly may, in all cases within the proper sphere of its jurisdiction, determine for itself the form in which its power shall be exercised, I contend that if the decision of the judicatory, arrived at and pro- nounced in any mode, would be conclusive, an examination, in this Court, of the steps by which such a decision has been reached is out of the ques- tion. Let us see whether this position be not correct. On what grounds do the allegations of the other side rest? I have not yet heard any asser- tion, that the Constitution of the Church, in which certain forms of process are provided, denies the right of proceeding in any other way. What regular process is, must be decided by the judicatories of the Church themselves. If any necessary form has been omitted by an inferior tri- bunal, an appeal may be taken from it to the next higher court, and from this to the next above; but when you have reached the highest there can be no farther appeal. The opinion of the Supreme Court of Delaware is decisive, that the judgment of an ecclesiastical judicatory is not examinable in a civil court. Suppose you complain in an upper judicatory, that an established course of proceeding has not been observed in a lower one, and it is decided that the alleged error below is of no consequence. Is it pretended that because it is so decided the decision is void; that the ques- tion may be submitted to a civil investigation, because the appellate tri- bunal has adjudged it in a particular way ? Suppose you carry the complaint on to the final resort, and the objection is there overruled by the General Assembly itself, in a case precisely within the rules which pre- scribe certain forms of proceeding. Can the judgm.ent of any one of these judicatories, affirmed upon an appeal, be examined and set aside by a temporal court ? If that of the lowest may not, why should that of the highest ? And if you cannot examine into the decision of an appeal, by the highest spiritual tribunal, it is impossible to understand why you may enter into such an examination of an original judgment in the same highest judicatory. In truth, if the jurisdiction of the court in this case be established, every part of the proceedings of all the judicatories of the Church, from the lowest to the highest, and whether acting as original or appellate tribunals, must be subject to the same species of review. If such an examination is to be allowed here, the first question which arises is, was it the intention of those who framed the forms of proceed- ing which the Constitution of the Church prescribes, that they should be applied to such cases as the present? I submit that this was not their intention. I consider the whole of that part of the Constitution, as apply- ing merely to a strictly judicial function, where there are specific charges of such a character, as to come under the cognizance of a spiritual court of justice. The forms there laid down, are adapted only to criminal pro- ceedings, charges of delinquency, offences which make the offender liable to punishment — to admonition, censure, or expulsion. But the act of abrogation and the exscinding resolutions, while they state that irregn- MR. SERGEANT'S ARGUMENT. 557 larities had occurred, inconsistent with those laws which the Assembly was bound to enforce, do not allege any individual or criminal miscon- duct, but impute all the fault to the " Plan of Union" itself. Instead of laying the blame upon their adversaries alone, the Old-school charge both sides with disorders, that were owing to the act of ISOl, in which they had mutually concurred. Censure is cast as much upon the General Assembly, as upon the Association of Connecticut, and the Synods formed under that act. Was there any criminal charge made against the other side? Where can you show this, in either the resolution abrogating the " Plan of Union," or the resolutions by which the abrogation was car- ried out to its legitimate consequences? There was no such censure pro- nounced upon those connected with the four Synods, as a judicial sentence involves? They were not charged with attachment to the Congregational form of government, as a crime. And, besides, they were immediately afterwards assured, that no offence was imputed; that it was not intended to fasten upon them any stigma or reproach; for they were invited to come bacE, to prove not their innocence, but their Presbyterianism, with the promise that whenever satisfactory proof upon that point had been given, their connexion with the Church should be restored. Nay, still more, to facilitate their return, they were told to apply for admission to the nearest and most convenient Presbyteries, Each individual and church was told, "We do not charge you with any crime, we do not say that you are unfit to associate with us: we say, on the contrary, that you are fit, if you are Presbyterians. Go to the nearest, most convenient Presbytery, and prove your orthodoxy." I take it, that this was not a criminal proceeding at all. The exscinding resolutions profess to be, what I suppose those who passed them, understood that they were, the only legitimate and necessary consequences of the resolution abrogating the "Plan of Union." In the next place, what was the whole effect of these exscinding reso- lutions, as they are commonly called ? Did they impose a penalty upon any individual, or collection of individuals ? They merely dissolved the connexion of four Synods with the General Assembly, but not for con- tumacy, not for any crime alleged against them. All that the resolutions proposed was to abandon them, for the good of that Church, under the protection of which they had thus far grown and flourished. The inves- tigation had proceeded on general grounds, without doing any prejudice to personal character. Not a reproachful word was uttered against the members of the four Synods, unless it was a reproach to say that they were Congregationalists. I do not hold that to be a reproach. If the Assembly had a right to cut them off from the Presbyterian Church because they preferred another form of government and worship, it had no right to censure them for this preference. If being members of the Church, and professing Presbyterianism, their belief and practice had been inconsistent with the doctrine and laws of the Church, they might have been brought to trial; but if the Synods were formed under the plan of 1801, and that plan was so vicious as to render the connexion repugnant and detrimental to the Church — this in the estimation of the Assembly, for I do not myself say any thing now about the plan, or the formation of the four Synods — this might be and was a good reason for 558 PRESBYTERIAN CHURCH CASE. separating them, but certainly was no reason for pronouncing a judicial sentence, or imputing crime. The resolution then of Mp. Jessup [Jlnte, p. 45,) was by no means applicable to the case. Mr. Randall. I beg leave to set the counsel right as to one matter of fact. The Assembly charged gross disorders upon the members of the four Synods. Mr. Sergeant. What ? Charged them with disorders arising out of the plan of 1801, as a crime, when the Assembly itself had given a license to these disorders by adopting the " Plan"? Those who had entered the Church under the •' Plan of Union" came in by permission: nobody could complain of their entrance. The Assembly had no right to make a criminal charge against them. Suppose they had made such a charge before the " Plan" had been repealed, stigmatizing as a crime what that plan allowed — Mr. Hubhell. Mr. Randall is I think mistaken. This is the resolution: Mr. Hubbeil read the resolution No. 1 — Ante, p. 46. Mr. Randall. I should like to put the counsel right. I say that the General Assembly charged the Synods with extravagant disorders. The resolution which Mr. Hubbeil has read does not indeed contain such a charge, but by referring to the second resolution he will find what I allude to. That does contain an accusation of gross disorders. Mr. Hubbeil. You will find what you mean in a previous resolution, which provides for the citation of inferior judicatories. Ante, p. 38. Judge Rogers. The charge to which I suppose Mr. Randall refers, is to be found on page 20 of the paper-book. Vid. Ante, p. 46. Mr. Randall. The resolution is as follows: — (Here Mr. Randall read resolution. No. 2. — Ante, p. 46.) That is the resolution to which I refer; and I say that it does distinctly charge gross disorders, and make them the grounds of the excision. Mr. Sergeant. May it please your Honours, the resolution of which I was speaking, is to the following effect: Mr. Sergeant read resolution, No. 1. — Ante, p. 46. That was the exscinding resolution. That was the act by which the four Synods were dissolved, or cut off; and then comes a statement of some of the grounds on which the Assembly place the expediency of their proceeding. Even if this statement were untrue, that does not affect the validity of the prior act; if it was untrue, still I say that the Assembly had a right to do what they did. The grounds that in their estimation supported the rijiht, they gave in the first resolution. Afterwards, they set forth the reasons for their solicitude on the subject, and urgency for an immediate decision — not the grounds of the act itself — that had been perfected by the first resolution. Mr. Sergeant here read resolution. No. 2. Now, the difference between Mr. Randall and myself, is not so great as he seems to imagine. I was speaking of the so-called act of excision, and of the grounds on which it was put, as a matter of right, in the reso- lution. On the other hand, what he brings forward, is merely an after statement of the motives which induced the Assembly to act so prompt- ly:— It had been made clear to them, that gross disorders prevailed in the MR. SERGEANT'S ARGUMENT. 559 four Synods, and that the "Plan of Union" itself had never been con- sistently carried into effect. Well, for these reasons, speedy action had been necessary to the welfare of the Church. But this second resolution, which has been denominated a judicial sentence, was of no force to sub- stantiate the Assembly's right to exscind: the whole work was effected without it, and before it had been passed. The latter three resolutions were intended, first, to give reasons why the Assembly had been so prompt in its action, and then, in kindness and charity, to invite those individuals, churches, and Presbyteries, who, though strictly Presby- terian, might perhaps have deemed themselves exclr.ded by the laying down of the four Synods, to come in, and renew their connexion with the Assembly. . Now, let us see what Mr. Jesup's resolution was. (Here Mr. Sergeant read the preamble and resolution. — yid. JJnte, p. 45.) Previously, a similar mode of proceeding had been proposed by a member of the Old- school party. (Mr. Sergeant read the resolutions passed, to cite inferior judicatories to the bar of the Assembly. — Vid. Ante, p. 38.) These, you see, were not pointed at any Synod in particular. The yeas, on their passage, were a hundred and twentj'-eight, to nays a hundred and twenty- two, with one non-liquet. Then, on the back of this close division, come two protests. " Mr. Hay, for himself and others, gave notice of a protest against the foregoing resolutions. "Mr. Cleaveland, for himself and others, gave notice of a protest against the resolutions adopted on Thursday last, abrogating the 'Plan of Union.' *' Mr. Breckinridge gave notice, that he would to-morrow morning offer a resolution to appoint a committee, to consist of equal numbers from the majority and minority on the vote to cite inferior judicatories, to inquire into the expediency of a voluntary division of the Presbyterian Church." Then the committee was appointed. Now, may it please your Honours, I have stated the nature of the act of excision, and the Assembly's grounds for that act. Suppose the As.sembly entertained the opinion expressed in the second resolution, which from the beginning I had intended to notice, and now take up, as well for my original reasons, as on account of the construction put upon it by Mr. Randall. Suppose it had been made clear to the Assembly that disorders and irregularities prevailed in the four Synods, which were a proper subject for the application of the process provided in the Con- stitution; which would have justified a criminal charge, and a citation to the bar of the Assembly for trial. Then there were two grounds of pro- ceeding against the Synods: — First, the unavoidable consequences of the " Plan of Union," and, secondly, the actual working of the " Plan" in those Synods. A proceeding rested on one ground might work their dissolution, without the imputation of any crime; a proceeding on the other ground might have resulted in the same thing, but must have been a criminal proceeding. Either one, independently of the other, might have been sufficient to blot them out of existence. But, the first ground being suflBcient, it alone is taken. Then the second ground is exhibited, not to support the measure of excision, but to show the importance of having acted promptly. I would call your attention again to the state- 560 PRESBYTERIAN CHURCH CASE. nients made by the two committees of the majority and minority. They both concurred in the opinion that a separation was indispensable. In accordance with this view, the Assembly passed the first resolution — that, exscinding the Synods. And as to the second, though it alludes to the prevalence of disorders, it bears on nobody in particular, contains no per- sonal imputation. I say again what I have said before, that the Assembly cut off no Presbytery, Church, or individual, strictly Presbyterian — the fourth resolution saves them all. And, moreover, I say — though perhaps I am not a competent judge of such matters — that, having listened atten- tively to all that has been said by the opposite counsel, and having listened attentively to his Honour's charge, I have heard nothing which has persuaded me that the course pursued by the Assembly was not the most tender, the most careful, the most in accordance with the spirit of their institutions, and the least liable to reproach of any that could have been adopted. The measure was necessary to preserve the peace of the General Assembly. Without intending the disparagement of one party more than the other, and hoping that the remark will be taken in its mildest sense, I must say that into the Assembly had already been intro- duced a system of tactics, more like the hostility of contending political parties, than the deliberations becoming a solemn council of the Church; and that peace required the two parties to be put asunder at least for a time. But, again, the proceedings of the Assembly were against ecclesias- tical bodies, not against individuals. Here I shall not repeat the argu- ment of my colleague: a short statement of it will be sufficient. What bodies were they? They were Synods. Established by whom? By the General Assembly: they were bodies of its own creation. Nobody ques- tions the right of the Assembly to establish Synods; and my colleague's argument has shown, manifestly, that as sure as they have the power to establish, so sure they have the power to lay down; that if they can create, they also can destroy. What answer is made to this, on the other side? The counsel do not deny the right to dissolve a Synod. If I have misunderstood their argument, I shall not find fault with their correcting me. This is a question of too much importance to be decided without a clear comprehension of its merits: every member of the society must wish that it should be rightly decided. I do not understand them to deny the power of the Assembly to dissolve a Synod, unless — as Mr, Randall qualifies the admission — rights have intermediately become vested. If no such rights have become vested, he agrees that a court cannot look into an act of dissolution. Mr. Randall. I made another qualification, and now accept Mr. Ser- geant's invitation, to remind him of it. Whether the Assembly can dis- solve a Presbytery or Synod, in any case, is a vexed question; but it certainly has no power to do so, in the two cases which I before mentioned. First, where intermediate rights have become vested, and, secondly, where the consequences of the dissolution must be a suspension of the ecclesiastical privileges of individuals, no matter whether for a day only, or for a month, or a year. In the present case, it might perhaps have required eighteen months for some to regain their ecclesiastical rights. They are all to be re-admitted, as if they were foreigners; and this would take time, while tiic suspension operated instantly. MR. SERGEANT'S ARGUMENT. 5g| Mr. Sergeant. I think I should have satisfied the learned counsel, that I did not intend to overlook the latter part of his qualification. His first position is, that the Assembly has not the power, where intermediate rights have become- vested; and, in the second place, lie merely defines what sort of rights are intended. I take it, then, as a conceded point, that the Assembly has, in some cases, the right to lay down a Synod — as to the case of a Presbytery — that, at present, I do not toucli. It appears, indeed, that a Presbytery lias been dissolved, here in Philadelphia; and about the power, in that case, there seems to be no dispute, though there has been some conversation respecting it at the bar. The Assembly has the power, unless intermediate rights have become vested, or, as JMr. Ran- dall says, unless the dissolution would suspend ecclesiastical privileges. What rights are vested in a Synod? He tells us, certain ecclesiastical privileges; and that if these should be taken away or suspended by the dissolution, it would be void. The rights of which he speaks, are only ecclesiastical rights. No Synod can be established with any other. A Synod is but a link in the chain of connexion which the form of govern- .ment establishes, for purposes purely ecclesiastical; it has no right of representation in the Assembly, and no control over the corporation. Whatever is done by the formation of a Synod, is undone by its dissolu- tion : nothing more can be undone, than that which has been done. But, we are told, that if ecclesiastical privileges have been conferred by the estab- lishment of a S3mod, the Assembly has no right to lay it down, because it would thus be deprived of those privileges? What are ecclesiastical privileges? The basis of every church connexion, is free and voluntary association. No one has the right of coming into the Church, who is not voluntarily admitted; no one who does not belong to it, can enjoy its privileges; and he ceases to enjoy them, who leaves its communion. The ecclesiastical rights with which a Synod is invested, are but a portion of that spiritual and moral power which belongs to the Assembly. These are the rights intermediately vested, of which the learned counsel speaks; and it so happens, that they are the very rights which cannot be affected by a civil process: I deny that this tribunal has any power to meddle Avith, or to take cognizance of them. The plain English of Mr. Ran- dall's qualification of the Assembly's power, clearly is, that when that body has once created a Synod, it cannot lay it down, unless by a regular trial, condemnation, and sentence. Does any policy of the state require such a regulation as this? Is the law of Pennsylvania such as the learned counsel says? It cannot be. If the legislature should assume the power to tell the General Assembly, that they should not lay down a S^'^nod, any citizen, lawyer or not, who looked at the third section of the Bill of Rights, might see that the Assembly could bid defiance to the legislature. They would have a right to do so, according to the plainest principles of the Constitution. Well, if the legislature cannot pass such a law, where will you look for an authority for the principle urged upon the other side? Not to the common law, because it is applicable in Pennsylvania, only so far as consistent with our Constitution and statutes. Those portions of it which are repugnant to the Constitution, are deemed of no authority. If in the common law, there were any such principle, it would not be appli- cable here. The answer we have to give to any one claiming protection here, for his asserted vested ecclesiastical rights, is that given by the 71 562 PRESBYTERIAN CHURCH CASE. Supreme Court of Delaware — "We do not know you." I speak not as an individual. Of course, I may have a private opinion. But I do not mean to speak of my opinion: that is not the point. The true (juestion is, whether this court has a right to sit in judgment upon such a case; to weigh the value of ecclesiastical privileges; to decide that certain persons must, or must not, continue members of a voluntary and spiritual associa- tion. Mr. Randall has put the very case, in which the judgment of a spiritual court is alone competent to weigh considerations of this nature. If this court can decide that a Synod cannot be laid down, because inter- mediate rights have become vested, it ought, to prescribe some mode in which the Church may be purged. There is, at last, nothing intelligible to the law, in the limitation thus attempted to the power of the Assembly. There are no such rights, cognizable by the Civil Power: they are not civil rights. Is it meant that these men suffer in the estimation of a part of the Church by being excluded? Is it said that these five hundred and ninety-nine cler- gymen have suffered in their feelings? The Court cannot take cognizance of such injuries. Suppose a man is excluded from a temperance society which is not incorporated. That may be a very great injury to him. Sup- pose that a man, woman, or child, is turned out of any voluntary society, the injury may be incalculable — it may be ruinous. He may be " cut dead," as the phrase is ; but has a civil court jurisdiction in this case ? Does the law provide a remedy? No. Why not? Because it has not been thought fit that the courts should exercise such a power; that they should be able to restore an individual excluded from a mere voluntary associa- tion. And why have they not the power as regards the Church ? Be- cause that is a voluntary association, into which all are invited, but none forced to come or to remain. None are excluded from it excepting when in the judgment of those who alone are competent to decide in such mat- ters, there are grounds sufficient for the exclusion. For be it remember- ed, the union is voluntary on both sides. There is little danger of any one's being excluded without cause. Indeed, the tendency is to the oppo- site extreme. It is often said that the disposition of every Church is to extend its bounds as much as possible by proselyting — perhaps too much has been said about a proselyting spirit. But certain it is that the natural tendency is always against exclusion. Why, even here the majority are charged by the minority with entertaining plans for aggrandizing and spreading their influence and sway, as the power of Rome once did, until it reigned supreme over the whole Christian world. A disposition to cut off its members has never before been ascribed to any Church : it is very improbable that such a disposition exists here. We offered to prove at the trial, that within the bounds of the four Synods there were numerous Congregational churches. To what extent we could have made out the allegation I cannot pretend to say. It has been stated at the bar, and we have a glimpse of the fact in the evidence, that in the Synod of the Western Reserve alone, out of one hundred and thirty-nine churches, there were but nine Presbyterian. We might have followed up this testimony by proof of not only the number of these churches in the other Synods, but also of the persons who had represent- ed them in the several judicatories, until we came to the case of Mr. Bis- sell, who was not even a committee-man, and yet was allowed to sit in MR. SERGEANT'S ARGUMENT. 5(33 the General Assembly. But his Honour would not receive such festi- mony. He thought there was another mode in which the question might be disposed of. But unless the General Assembly is left free to decide what infusion of Congregationalism is consistent with the purity of the Church, somebody else must decide the question. Suppose, I say, that its purity is destroyed by the existence of two Congregational churches, or one among a hundred and thirty-nine. Some one rises and advances a contrary opinion, and is listened to with great respect, as is usual; but the Assembly thinks he has not answered my argument, and decides that my opinion is correct. Do you think it competent to another tribunal — a civil court — to set aside this judgment, and to sa)^, "Surely one Congre- gational church cannot poison and corrupt a whole Synod?" Where then .is the .freedom of the Church? They decide according to the knowledge which they have, and their own feelings, and the decision must be final, or they might as well pronounce no judgment at all. Look at page 11 of the paper-book, ( Vicl. ante p. 27,) and there I think you will find some tolerable foundation for the fears entertained by the Assembly upon this point, if not already convinced that they were reasonable. There is to be seen a report of the Synod of the Western Reserve to the Assembly of 1S33, in the shape of a series of resolutions. The second of these is as follows : " 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 hav- ing violated the constitution of the Church, inasmuch as that constitution does not make the eldership essential to the existence of a church, and as the number of persons in many churches is too small to admit the elec- tion 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 elder- ship, according to the plan of agreement between the General Assembly, and the General Association of Connecticut; from the spirit of which, the Synod believe, that none of our Presbyteries have departed." That is the language of the Synod of the Western Reserve. Will any one tell me that there are not vital matters at issue between these two parties, when one of the exscinded Synods deliberately, and as a solemn decison of the whole judicatory, pronounced that the Constitution did not make the office of ruling elder essential to the existence of a Presbyterian Church ? Suppose the Assembly to decide otherwise: who is to correct their judgment ? That they do hold the office of ruling elder to be essential, scarcely requires proof. I will refer however to their opinion pronounced on this occasion, " The report of the committee to examine the records 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 page 154, viz., that the eldership is not essential to the Presbyterian Church. In the opinion of the committee, the Synod advance a sentiment that contravenes the principles recognised inourFormof Government, Chap. H. Sec. 4. Chap. HI. Sec. 5. Chap V. Chap. IX. Sec. 1,2." Your Honours will find in the evidence of Mr. Squier {ante, p. 71.) which was read by my colleague, an admission that lay members have 504 PRESBYTERIAN CHURCH CASE. sat in Presbytery as the representatives of churches having no elderships. "Several years ago, I belonged to the Presbytery of Buffalo: there were then some churches connected with that Presbytery, that had not appointed ruling elders, I am unable to say how many. This Presby- tery now belongs to the Synod of Genesee. They were the fewer in number, and the smaller churches, I should say. Churches, when first formed in a new country, are very small, and have few male members, hardly enough for the formation of an eldership; and in some instances the appointment of elders was delayed. In the mean time such a church was represented in the Presbytery." Mr. Randall. Represented by ministers — the Presbyterian ministers who preached to them, Mr. Squier meant. Mr. Sergeant. He certainly knew what the examination was about; and, besides, he says that the churches of which he speaks had scarcely male members enough for the formation of elderships, and therefore did not choose elders; but were governed by their male members. Well, he was asked whether these churches did or did not send representatives to the Presbytery, and answered, " Yes." Of course he meant lay repre- sentatives. He did not indeed admit that this was in fact practised exten- tensively. I have already shown that in one instance, an individual who was not even a committee-man was admitted to a seat in the Assembly. This was Mr. Bissell. And there was a protest against his admission signed by a number of persons — among others by Mr. Gilbert who was examined at the trial, and who, though I don't know him personally, is, I take for granted, from the station which he occupies, a very respectable man. Here then is evidence enough of the existence of two evils. First, a disregard of essential Presbyterian principles, becoming gradually bolder, until at length embodied in the formal resolutions of a Synod. Then, in another case, the "Plan of Union" affording a disguise under which Congregationalists exerted an influence, by representation, not only in the Presbytery, but even through to the General Assembly, the true origin of the evil not being ascertained. And here I take occasion to say, as to Charleston Union Presbytery, that there is no such thing there, as the disorder which we have sought to correct. Those churches within the bounds of that Presbytery which are not Presbyterian, though they have settled Presbyterian pastors, are marked in the statistical table as Congregational. Here there is no admixture of the two sects. These churches claim the right of being independent — nothing more. They have no representation in any Presbyterian judicatory. But in the other case there was an intermixture, though so disguised that it could not be traced or detected. But, may it please your Honours, I contend farther, that the exscinding resolutions were the legitimate application of the act by which the " Plan of Union" had been abrogated. His Honour, Judge Rogers, decided that the abrogation was within the power of the Assembly. It follows then of course that the Plan was no part of the Constitution of the Church : indeed his Honour maintains in his charge that it was not. What was it then ? If not a constitutional rule, the act by which it was passed was an exercise of the ordinary jurisdiction of the Assembly; and the abrogation of it was a like exercise of ordinary power, and not a criminal proceeding. Then follow out the abrogation of the "Plan": MR. SERGEANT'S ARGUMENT. 565 what was to become of those who came hi under its operation ? They did not come in under the Constitution, and therefore they had no constitu- tional rights. I do not mean to say that if they had come in under the Constitution they might not have been exscinded; but they did not come in under it, and therefore coukl have no constitutional rights. They had rights arising only from an exercise of the Assembly's ordinary jurisdic- tion. I have heretofore contended that the Assembly had not the power to pass the "Plan of Union" — that it was inconsistent with the Constitu- tion. But take it that they had — then it was simply no part of the Con- stitution. Those who derived their ecclesiastical rights from it, as the four Synods were alleged to have done by the General Assembly, did not derive them from the Constitution, but from an ordinary act of the . Assembly — whether strictly a legislative act, or not, it is not necessary to say. The Constitution then is not applicable to the case — only the "Plan of Union." Will your Honours say that the abrogation was unconstitu- tional. His Honour, Judge Rogers has decided that it was not ; that the ''Plan" was no part of the Constitution. How then can the laying down of these Synods interfere with the Constitution ? Did they derive their rights from it ? No. If you admit that the " Plan of Union" wjs incon- sistent with the Constitution it was void ; but if its establishment was within the powers of the Assembly, if it was an ordinary act of that body, it follows of course, that what they did might be undone whenever they pleased. And as to those who had intermediately entered into ecclesias- tical relations under its auspices — I have shown that they had no vested rights of which the law could take cognizance. Your Honours will answer whether you have not always understood the principle of our Constitution to be that every ecclesiastical association is voluntary ; that this Church has been so from the beginning, so is, and must continue to be purely voluntary until it is dissolved. It appears to me that those who complain of the illegality of the resolutions exscinding the four Synods, are ignorant of the fundamental principles of the Presbyterian Church. I have detained your Honours a great while with the consideration of questions which have appeared interesting. Much more might be said in regard to them, but no doubt you are weary, and as other work remains, I leave them with the observations which I have made. I now come to the lighter part of this argument. The road over which I am yet to tra- vel is not, I think, so difficult for us, perhaps not so difficult for either party, because in discussing questions of parliamentary order, a little free- dom may be allowed, which would be entirely unbecoming the greater topics which I have hitherto considered. Already in some measure have been intimated our cardinal objections to the position taken on the other side; to the proceedings on which they found their claims — proceedings which, as they say, resulted in putting the majority out of doors. Let us trace the steps of their course. And this would be a mere game of push- pin if it were not for the important consequences that may follow — if it might not result in overturning the Presbyterian Church. If by mere forms can be accomplished what in substance is so grave and important, questions of form are very serious. The gravity of the eflfect, of the consequences, must in that case measure the degree of consideration which this subject is to receive. In the beginning I beg to remark, that the Assembly of 1838 met at 5(35 PRESBYTERIAN CHURCH CASE. the proper time in the church in Ranstead Court — the time and place appointed. It was a new ParHament — if indeed there is any thing strictly analogous in the case of the two bodies — not merely a new session. The old Assembly had been dissolved, and a new one, like a new Parliament, summoned. The antecedent body, according to the usual form, pre- scribed in the Constitution, had directed when and where the next should meet, and who should act and what should be done up to a certain point. There is the ship lying off from the shore ; but you cannot get to her without a boat ; and it is necessary that a pilot should be at hand to carry you out. We will provide for you the boat and the pilot: after you are fairly on the great ocean, the pilot may leave you, but till then has you in charge. But this New-school party say, that it will not do to take the boat that has been provided, and wish to board the ship just when, and where, and how they please; or, having taken the boat, they wish to throw the pilot overboard, and the oarsmen overboard too. They are deter- mined to possess themselves of the vessel on their own terms, and at their own time. That is about the amount of what the New-school wished and endeavoured to do, as exhibited by such an illustration. I suppose that the regulation of this matter, under the Constitution, belongs of right to the antecedent Assembly ; that they are to provide a plan of proceed- ing up to a certain point. There can be no more doubt of it than of the fact that, at the opening of the session of the Congress of the United States, if the Vice President comes, no one else has a right to take the chair and preside in the Senate. Nay more, the Moderator appointed at the close of one Assembly, to preside in the organization of the next, must preside until removed. Every deliberative body, unless it be a town meeting, has some rules provided for the beginning of its session. If a party of gentlemen meet together to dine, there must be one to sit at the head of the table, though in that case if the individual who first takes the place be turned out, it is vain for him to think of remaining. There must be some rules to guide in the organization of every assembly. It is clear that in Parliament, when the Speaker is absent, all questions, such as can be dealt with in his absence, must be put by the clerk, unless a speaker pro tempore, be appointed; and until the organization of the house, the clerk alone can act. This rule is laid down in all the manuals, and its authority is not to be disparaged. It is found in both Jefferson's and Sutherland's Manuals, and has been adopted by the House of Repre- sentatives as one of their rules. In that house the clerk puts the question in the absence of the speaker, or before the body is organized. In the Senate the chair is .rarely vacant; but if it should be vacant, no doubt the parliamentary practice would there prevail. But when the chair is actually full, no body but the person in the chair can put any question, in either house of Congress, in the House of Commons, or in any deliberative body on earth, which pretends to be organized at all. And for this sim- ple reason, that you cannot confide the privilege of doing this to one, without giving it to all. What is the advantage of having a presiding officer, if any person who pleases may preside ? Now the Assembly of 1838 met with full powers, excepting that the antecedent Assembly had sent down to it a Moderator, whom, up to a cer- tain period of their session, they had no right to remove. That Modera- tor and the clerks who were to assist him in the organization were continued MR. SERGEANT'S ARGUMENT. 567 ill office to perform certain acts, and until these were performed, tiiey were beyond the reach of the new Assembly, or rather that Assembly had not yet acquired the capacity to touch them ? First, what were the acts to be performed by the clerks? Neither the new body, nor the Moderator was responsible for these clerks. They had not appointed them. What would be thought if a tribunal of Pennsylvania were made accountable for a clerk appointed by the Governor? They did not appoint the clerks, and had no power for a certain time to remove them. But even if they had that power, there was here no such reason as has been alleged for its exercise. The conduct of the clerks, as I shall contend, was perfectly correct, and not open to objection, unless upon a principle, which I have never known to be asserted but by one man, the principle that every one is to construe the Constitution and laws in his own way. I say that the clerks had no right to decide on the constitutionality of the acts of 1837. At the time when the commissioners presented their commis- sions to them, there was no power on earth competent to decide that matter. Till the new body was fully organized, there was no power that could undo what those acts had done. Will you tell me that the clerks had a right to decide on the constitutionality of the resolutions of the pre- vious year, and to repeal them ? That the Moderator was bound to exercise his own judgment upon these acts at his own risk ; or that the individuals composing the body could, before it was organized, repeal them? I contend that this doctrine is utterly inconsistent with the rules of order and right. At present, I am considering the conduct of the clerks only: the Mode- rator's conduct, I shall examine by-and-by. It is supposed that the clerks, by reason of their declarations in the antecedent Assembly, and the Mode- rator, had combined unlawfully to do a thing which they ought not to have done. I put, then, a simple question : Here was a resolution passed by the Assembly, still in full force, unrepealed, by which the Presby- teries, that had sent certain commissioners, whose commissions were offered to the clerks, were declared to be no part of the Presbyterian Church: were the clerks at liberty to take any notice whatever of such commissions? I don't know that any one has said, that they had a right to admit these men to the Assembly; but it is imputed to them, as an offence, that they did not put their names upon the rejected list — the list of doubtful cases. To my mind, the question as to this latter point is just as plain, as the question of the right of the clerks to admit these com- missioners directly to the roll of the Assembly. The commissions offered, were of three descriptions. There were some persons who came from a regularly acknowledged constituency, with commissions regular in form. There were others who claimed to come from an undisputed constituency, but whose commissions were irregular, or defective, or who presented no commissions at all. Then, there was a third class — persons who had no constituency. The first sort — those who had regular commissions from an acknowledged constituency, were enrolled. The second — those whose con- stituency was undoubted, but whose commissions were irregular, defective, or missing, were reported on the rejected list. But, what was to be done with those who had no constituency at all ? It is contended, that they too should have been put on the list of rejected commissioners. If so, the resolution of the antecedent Assembly would have been as entirely disre- 55S PRESBYTERIAN CHURCH CASE. garded by the clerks, as if they had pretended to decide it unconstitu- tional and void. They might just as well have put on the rejected list, the names of men offering com'nissions regular in form, but coming from some other denomination, or from no denomination at all — from a body of men in no Church communion. Why should not the latter be put on the list? Simply, because they have no Presbyterian constituency. It is contended, then, that the cleiks should have done the same thing, as if required to put these commissioners on the list of undisputed members; since, to have put them on any list, would have been an acknowledgment of their constituency. They, in fact, had no co,mmissions at all, provided the acts of 1837 were vaUd; and this according to their own statements; for, when asked where they were from, they answered, from Presbyteries within the four Synods of Utica, Geneva, Genesee, and the Western Re- serve, the very Synods which those acts had declared no longer connected with the Church. Was there no power competent to give them redress, if they had been wronged ? Yes; the Assembly, when fully organized, might have repealed the acts of the former body. But, in the meantime, they require that the clerks should repeal it; that the Moderator should disregard it. They certainly had no power to repeal it, even if it were unconstitu- tional. In the argument on the other side, much has been said about the power of Moderators and clerks; about setting servants above their mas- ters. Apply the same doctrine in this case: look at what is required of these officers, and say who would be the master, if they had complied with the requisition. If was impossible that they should disregard the exscinding resolutions, because they were not the officers of the new body, but of the antecedent Assembly, continued in office to begin the new parliament. I say that the clerk's conduct was perfectly correct; and, whether they were pledged or not, the Assembly by which they were appointed, or continued in office, had a right to expect them to obey its commands. Then we come to the conduct of the Moderator, Dr. Elliott. He too had been appointed by the antecedent body, and sent down to preside in the new organization. The Assembly of 1838 were not accountable for him, nor he to them 1 mean that for a certain time he was not ac- countable to them. The language of the rule is, that the last Moderator shall preside until a new one is appointed. This rule has been read seve- ral times. Being one of great importance it is laid down in two distinct places in the Constitution. First, Form of Gov. Chap. XII. Sect. 7 — " 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." And again. Form of Gov. Chap. XIX. Sect. 3—" 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 Moderator 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." It is obvious that this means till a new one can be chosen ; and ivhen that time arrives, is the next matter for our consideration. MR. SERGEANT'S ARGUMENT. 569 Here I would submit it to your Honours, that when points of form ac- quire such power as to be able to overturn a whole Church, they must be very closely and strictly examined; they are equivalent in importance and force to the greatest laws. Now, by the rules of the Assembly what is the next thing to be done after ihe report of the clerks on the roll? The rules provide that the Clerks, as a Committee of Commissions, shall ex- amine the commissions presented, and re])ort the names of the undoubted members, who shall then take their seats and proceed to business; but they do not stop here. They direct that the first thing which the house shall do, after being thus ready for business, shall be the appointment of a Com- mittee of Elections. Well, I suppose that is equivalent to saying, that no- thing else shall be done until a Committee of Elections has been appointed. I interpret the whole of these provisions together as ordering, that the 'several things which they direct to be done, shall all be done before the Assembly proceed to the choice of a new Moderator. I am not at pre- sent inquiring into the power of the Assembly to make such rules : I do not ask what was their effect, but simply what they were. There was in 1S26 a change in the form prescribed by the Constitution for examining commissions and enrolling the names. Previously it had been required that the commissions should be publicly read, but then it was ordered that they should be only examined. The article as changed was sent down to the Presbyteries for adoption, and at the same time was sent down the following resolution : ''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. " I. Immediately after each Assembly is constituted with prayer, the Moderator shall appoint a Committee of Commissions.'' That is, after the sermon, the Assembly is to be constituted by prayer, and then the Committee of Commissions is to be appointed, who, accord- ing to the next rules, are to proceed immediately to examine the com- missions. Subsequently the clerks were appointed a standing Committee of Commissions; but it must not be inferred that this arrangement made any change except in the constitution of the committee. Mr. Randall. The time of the committee's session was altered: it now sits between ten and eleven on the morning of the Assembly's meeting. Mr. Sergeant. I agree. Formerly the Assembly adjourned until the afternoon, to give the committee appointed time to examine the commis- sions handed in. Now the clerks form a standing committee; and sit before the meeting, in order to avoid the delay of adjournment. Then what is the next thing to be done, after they have examined the commis- sions and reported ? " 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." ^nte, 156. There you have together the whole of the provisions made by these standing rules. Whether liable to alteration or not, until altered they are in force, and they can be altered only by the Assembly itself. Here are standing rules, which, as to the Assembly, are as strong as the provisions of the Constitu- 72 570 PRESBYTERIAN CHURCH CASE. tion itself: they have been constitutionally made, and until changed or repealed, cannot be departed from. Where do you find an authority for departing from them? They can be changed only by the po\yer which made them. Every body has certain forms of organization which are very material. In the British Parliament, a rule existed until very recently, that the first thing done after the organization was completed, should be the reading of a bill. This rule has been abolished; but so long as it was a standing order, no business could be transacted until the bill had been read. Now the question is, not whether it v^as in the power of the Moderator or of the clerks, but \yhether it was in the power of the house, to do any thing else until a Committee of Elections had been appointed. The old Moderator is put in the chair, not to perform all the offices of a speaker, but simply that he may suffer nothing to be done until the rule in regard to a Committee of Elections has been complied with. If Dr. Patton, or Dr. Mason, or Mr. Squier rise, and demand that some other business shall be transacted before the appointment of that committee, the Moderator is bound to treat them with all respect, but knowing well what the rule directs to be done next, must tell them that they are all out of order. And if they should demand the reason, he need only turn to the rule; and unless they have thrown off all government, all law, they must defer the business proposed until after the appointment of the committee. Until that time they are bound by the rules which I have read. Then the Assembly has the power to alter these rules. That body has, besides, certain rules applicable to the ordinary transaction of business; but those do not operate at all until after a Committee of Elec- tions has been appointed. These five are all that they have to govern them before that period. When under their guidance the organization has been completed, the old Moderator reads to the new Moderator, for his direction, the ordinary rules for the transaction of business. Dr. Patton has himself borne testimony, though unwittingly, to the existence of this rule. It appears from his evidence that when Dr. Beman was appointed Moderator nobody read the rules to him, but that Dr. Beman told Dr. Fisher, after the election of the latter, that his conduct was to be governed by certain rules. If Dr. Elliott, when occupying the chair, had suffered these gentlemen to go on in the transaction of the business pro- posed until after a Committee of Elections had been appointed, he would have violated the only rules, with which he, or the house at that time, had any thing to do. And there could be no such thing as an appeal, until all that those rules prescribed had been effected: every previous attempt to make a motion or to take an appeal was out of order. The body was then just struggling into life: there was nothing on which an appeal could arise, and nobody by whom an appeal could be decided. Every deliberative body which has succession, must have rules of some sort to control its organization. And, allow me to say, that such rules are of vast importance, first, to secure a fair organization of the body; and secondly, that every man may know what is doing, and to what he is re- quired to attend. Every one who contributes to the action of a delibera- tive assembly is responsible for what is done. But to be so he must be a part of the body equal to any other part, excepting such portion of it as is invested with authority, not for authority's sake, but in order to pre- serve the equality of right among all the rest. A Moderator is appoint- MR. SERGEANT'S ARGUMENT. 57 j ed, that every man may hear the questions proposed, knowing from whence he is to expect them ; and that hearing he may assent or vote in the negative, acquiesce, or refuse to acquiesce, so as to be accountable thereafter for whatever is done. The Moderator too is bound to main- tain order, and no voice must be heard in the assembly, excepting his own, or that of a person addressing him. I submit that ever so small a departure from this rule must produce in- terminable confusion. The evident intention of it is to provide for all questions being put distinctly. When they are put from the chair, or by some person duly authorized and accredited, then no question sucli as that hei-e agitated — whether all the members really heard — can be raised. The reason that the Moderator is put into the chair is not that he may have the honour of sitting in a high place, and bearing the insignia of office; but that the rest may be equal, may know their rights and under- stand what is doing. It is essential that all business proposed to the body should be proposed by an accredited and acknowledged authority, and also that the man exercising that authority should actually have the chair. Even the speaker has no right to put a question, excepting from the chair: the chair is as essential as the speaker himself. Will you tell me, that he may run down the aisle, and, standing in the middle of the church, pro- pose a question to the house ? Why, if the Speaker of the House of Rep- resentatives were to leave his seat, and come down upon the floor of the Hall, or go to the far end of it, and then put a resolution, he would be consigned to the custody of the Serjeant-at-arms. Here form becomes substance. The more I think on the subject, the more entirely am I satisfied that without strict adherence to these rules there can be no order, no knowledge of what is going on; that an assembly must be exposed to all sorts of tricks. But again, there is a provision bej'^ond this — a provision for the vacan- cy of the chair. Who shall put a question then? To enable any body not in the chair to assume the duty of a presiding officer, it is absolutely es- sential that the chair should first be vacant. So long as it is occupied de facto, as regards the members it is occupied de jure, and no body else than the actual occupant can propose any business to the house. If the chair is vacant, of course that is an emergency requiring the application of a new rule. Then the next person in the eyes of the members, as they all look towards the chair — the clerk — must put any resolution offered, and this until the chair is filled. All these rules, I say, are conducive to order, and are absolutely essential to the due transaction of business. To return to the Assembly of 1838. I say, that until the Committee of Elections had been appointed, the body was in the hands of the officers of the preceding year. They were not under its control, or responsible to it, until the organization was complete, and it was clothed with its full and legitimate powers. And I say, farther, that Dr. Elliott could not en- tertain a motion or an appeal; that he had been placed in the chair merely to keep order and to perform a specific duty, ending with the organiza- tion, which was to be completed by the appointment of a Committee of Elections. Now it is clearly in evidence, that Dr. Elliott was keeping very good order, as any body must acknowledge who reads the provision which has been referred to. But if it were otherwise — if any thing improper had been done by Dr. Elliott, this was not to be visited upon the body, 572 PRESBYTERIAN CHURCH CASE. which had no control over him; which, as I contend, could not remove him. When the Assembly is fully organized, the rules provided for its organi- zation are no longer in force, are at an end ; and then certain others take their place. Many of these are found in the Appendix to the Constitu- tion, and to some of them I shall hereafter refer. You will pardon me for attempting some little farther vindication of the Assembly and of Dr. Elliott, conducive to the main end of this argument. I invite your atten- tion to the condition of the house and of the assemblage which filled it at the time of these occurrences. I acknowledge that this was in some respects peculiar ; but their condition is always such as to demand the par- ticular consideration of the Assembly. First a sermon was preached. To hear this, a miscellaneous assembly was collected, the whole church being thrown open, and all at liberty to take such seats as they could get, both up stairs and down. The sermon being finished, the clerks took their places at the desk, and the Moderator of the last year his seat, to preside during the organization. In the first place he again acknowledged the great obligations under which all rest to the divine goodness: with this prayer began the next process — the constitution of the body. As it was impossible to clear the seats appropriated to members, of the audience thus convened, without rudeness, they were yet sufiered to remain. There- fore the assemblage was still a mixed one, and of course this was not the proper time for any especial, or nice question to be propounded or decided. What assembly would choose this occasion for dealing with such busi- ness ? Here the roll of the house itself had not yet been reported. The circumstances in which the body had convened were in other respects peculiar. It was a divided body: two parties of opposing views were brought together, at first in seeming harmony, one of which however, as it appeared in tlie sequel, had come prepared to interrupt the ordinary business of the Assembly, and was only waiting an opportunity to effect their purpose. They could not, indeed, long wait to begin the contem- plated struggle. They did but suffer the prayer to be concluded — that was all. Besides this, the body itself which claimed to be the Assembly was of a mixed character, and its different portions could be separated only by those to whom the members were known individually. So then while the ordinary difficulties are very great, here inconveniences were multiplied. Now, what was the Moderator sent down by the last Assem- bly to superintend the organization, to do? By-and-by I shall contend, that no question at all could at this juncture be put or decided ; and that whether a majority voted or not, none had a right to vote. Mr. Adair, one of the witnesses for the relators (jinte p. 109) says, "There were spectators sitting among the members, as usual in the morning, other arrangements not being made until afternoon. I felt at liberty to take any seat I found unoccupied. The house was unusually crowded at an early hour, but I have seen it crowded commonly on such occasions." He was not a mem- ber, and hereafter I will show that some who were not members even participated in the proceedings. But now I am attempting to vindicate the majority of the Assembly and Dr. Elliott; to establish the point, that it was not consistent with justice for them to depart in the smallest degree from the rules prescribed — the five rules which were to govern in the organization of the body; and at the same time to vindicate the rules MR. SERGEANT'S ARGUMENT. 573 themselves; showing that when a contest was expected, and a black cloud lowered over them sufficient to envelope the whole body in storm; when Dr. Elliott knew that the elements of discord and strife were gathering in fury, and unless, pent up, would break forth in the midst of those who had collected in the house of prayer for religious worship; that the assem- bly was composed of all descriptions of people, of friends and foes, of those belonging to the household, of strangers, and of persons claiming to be of the household, though their title was disputed; this was a sufficient, an imperative reason why he should not swerve for a single instant from the precise letter of his instructions. When we come to the question said to have been put by Mr. Cleaveland, we shall see whether it could, under such circumstances, be put; whether it was ascertained who voted or not, or how it was carried, or whether it was carried at all, unless as some have supposed, by operation of law. Here, for the present, is a plain position, which rests upon the provisions of the Presbyterian Law book; that the body had no right to act at this time, but upon questions incident to the organization; that none such were offered; but that those propounded were fit for the assembly's consideration only when it was fully organized. Dr. .Patton's motion was on this account disallowed. And His Honour, Judge Rogers says, that in deciding it out of order the Moderator was right, because then there was no house in existence, as the Committee of Commissions had not reported. In this decision at the time all seemed to acquiesce. Next, Dr. Mason addressed the Moderator. He made a motion which was declared out of order, and then appealed, but his appeal was disallowed. In this too, all acquiesced. Herein it is supposed Dr. Elliott was wrong. It is admitted that in the former case he might be right in refusing to entertain either a motion or an appeal, if there was no body yet organized; but wherein do the two cases differ? At one time the report of the clerks had, and at the other had not been made. But I contend that it was not sufficient for this report to be made. Here stand five rules, prescribing, not only what the Moderator, and the clerks shall do, but also what shall be first done by the incipient body itself; one part of the rules is no more binding than the other, and if the Moderator cannot put an appeal, or the house perform any act excepting those prescribed, before the whole of these provisions are complied with. Dr. Elliott was just as right in refusing Dr. Mason's appeal, as in refusing Dr. Patton's. And the defect was, not only that Dr. Mason had no right to propose, his motion or appeal then, but that neither the Moderator or the house had a right to entertain or consider it, before the appointment of a Committee of Ellections. I do not want any higher authority than these standing rules, whether they are constitutional rules or not. Well, Dr. Mason took his seat. Dr. Patton had been clearly out of order; but supposing that, in the other case. Dr. Elliott was disorderly, what can that avail the minority? His disorder could not put the associa- tion in the wrong, as it cannot be alleged that he was supported by the association. In his decision, all at the time acquiesced. Then Mr. Squier arose. It is agreed that he was out of order, and had no right to say a word. Mr. Squier still addressed the Moderator; and you will observe, that up to this time, all did so. Dr. Patton and Dr. Mason, both addressed him as presiding officer; and no intimation was given of any intention to dispute his right so to be addressed: it was not disputed. Up to this time, 574 PRESBYTERIAN CHURCH CASE. if you had asked any member whom he considered the presiding officer, he would have said, Dr. Elliott. When, then, did he cease to be recog- nised as such ? Never — never- Nor were the acts subsequently done, such as even to deny his right. But, the truth is, that a portion of the body had come, resolved to try out the question which their counsel had prepared for them, whether they might not effect a rightful organization at that time and place; and, if they could not, to exist by themselves as a separate assembly. Dr. Patton cannot rest, even until the report of the clerks is finished; Dr. Mason is very much afraid, that the advantages of that time and place will be lost; and Mr. Squier is equally anxious to secure that time and place, though his application, all agree, was out of order. Here, then, were three disorders to one, or two to one, or else three to none. But, I repeat it, up to this time, the authority of the Moderator was universally acknowledged. Every man considered him rightfully entitled to the chair: there was no dispute about his right to hold it: no suggestion had been made, whether it was not proper to address a motion to any other person. What comes next ? Mr. Cleaveland rises, and delivers a written speech. We have not been allowed to have the testim.ony of Dr. Beman, or Mr. Cleaveland; nor the best testimony of what the latter said, namely, the written paper, which is unfortunate — most unfortunate. The very wit- nesses, whose presence was more important than that of any others, were absent, and their testimony is lost. We are therefore obliged to take, what is said to be merely the substance of Mr. Cleaveland's remarks. Though they are the very pivot on which the whole case may turn, though every word is material, though exactly what he said, is the very thing which above all others, we ought to understand fully, we are furnished with only what he said in substance. On the expressions used by Mr. Cleaveland, the case may depend, yet they are not in evidence, and they ought to have been furnished by the other side. One Moderator is put in, another put out, and the matter may depend much upon the form of expression used. Some of his remarks are said to have been read from a paper; some, to have been thrown in extemporaneously; but the proof of exactly what they were, is not before us. But, taking the evidence we have, in the first place, I say, that his remarks were not directed toward the removal of the Moderator, and I challenge the authority for any such construction of them. Mr. Cleaveland did not of er any motion against him, but proceeded to read a speech, written h "fore hand — of course, before Dr. Elliott had done what is now brought forward as the sole, or the great ground of complaint. Now, I say, that unless it be proved that this paper was written at the time, it cannot be contended that it con- tained any intimation, that a different Moderator was desired, or that there was any question of impeaching Dr. Elliott's authority to preside. They clearly meant to have an organization of their own; and what steps were taken to secure this object? They did not remove Dr. Elliott from his place: him they leave in the chair. But they put up another Moderator in the aisle; and then all the members are to look both ways, at the hazard of being construed on one hand, or the other, to have given assent to what they did not hear or understand. Heads, I win: tails, you lose — a very safe sort of a game. Yet this is the game played by the minority, which this court is called upon to justify. But, I rest distinctly upon this MR. SERGEANT'S ARGUMENT. 575 ground, that no motion or remarks made, could be addressed to any one but the chair; that a motion, if lawful, must be repeated from the chair, and, if necessary, put in writing; that until all this had been done, no representative was bound to give his attention. Let us now see what was the import of Mr. Cleaveland's proceeding; whether his intention was such as is declared to have been, or was not to organize the Assembly de novo. Here I shall not consider merely the motion, made, as it is alleged, to remove Dr. Elliott, but shall begin at the beginning — with Mr. Cleaveland's introductory remarks. Let us see what we have got here as the substance of what was said by that gentle- man, and which could not be applicable at all to the case of the Modera- tor's violating his duty, because, as already stated, prepared before hand. The minute prepared by a committee of the New-school contains first something of its own, which, though merely a preface, one might easily be led to imagine, from the manner of its connexion, to be a part of what Mr. Cleaveland said; but it is not so, and this requires attention. " 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 Presbytery of Detroit, rose and stated in substance as follows:" — That is, the Moderator would not let Dr. Patton make a motion before the roll had been reported, nor Dr. Mason or Mr. Squier afterwards, Mr. Squier being not even a member. It was thus that he had impeded the constitutional progress of business. Now this that I have read does not profess at all to be what Mr. Cleaveland said. He, according to the minute, was raised to his feet by this gross miscon- duct of the officers, by which, personally, he was in no way affected, but which he could not possibly sit still and bear; yet nothing at all of that reason for his interference appears in his own words. He rose and stated in substance as follows: — "that as the Commissioners to the General Assembly for 1838, from a large number of Presbyteries, had been refused their seats;" — this might very well have been prepared before, for he knew it must happen — " and as we had 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" — All this was doubtless written beforehand : you observe, he says not a word about the outrageous con- duct of the clerks and of the Moderator — " he trusted it would not be considered as an act of discourtesy, but merely as a matter of necessity, if we now proceed to" — do what ? To turn out Dr. Elliott, declaring him unfit for the office of Moderator ? Nothing of this kind. On the con- trary, he disclaims all intention of doing any thing discourteous, and says that he acts under the advice of counsel learned in the law, who I am sure advised him to keep the peace, in attempting to effect a new organi- zation. Does he say a word about removing Dr. Elliott ? No; him he disregards entirely, as also the house as then constituted. No — " if we now proceed to organize the General Assembly for 1838, in the fewest words, the shortest time, and with the least interruption practicable." — ( Vid. ante, p. 223.) What ? His object was merely to go on with the organization already in progress ? If so what was there to interrupt? No; he says, " We have come according to the advice of counsel, to 576 PRESBYTERIAN CHURCH CASE. maintain our rights by means of a new organization; but do not consider us discourteous, and we will proceed to organize the Assembly with as little interruption as possible." Well, at this call, nearly every man of their party rises up, and forthwith, we are now told, with the utmost gravity, that the majority, without being conscious of the dilemma in which they are placed, or knowing what they do, are found voting, by their silence, to put Dr. Elliott out of the chair. Here form becomes substance — a thing of vast importance. I do not accuse Mr. Cleaveland of intending to deceive; but certainly if he then designed what it is now alleged that he did, he not only carefully avoided plain speaking and dealing, but directly and wilfully misinformed and misled those whom he addressed; and when he came with such honied words upon his lips, meditated a trick, a deception, a fraud, in his heart. But I entertain too much respect for Mr. Cleaveland to credit this: I do not believe he was capable of speaking thus, when he intended something so different from what his words conveyed; and of then turning about and claiming to have effected by intendment of law the same thing as if his words had candidly expressed his intention. For the present I have done with Mr. Cleave- land. He says plainly that he was attempting a new organization; and farther, his remarks are as clear a declaration as he could have made; " Gentlemen, we do not want to disturb you, nor you to interfere with us. Allow us to go on with an organization, and we will depart as soon as possible." Ante, 223. Next take Dr. Hill's testimony on the same subject. — ( Vid. ante, pp. 211-12.) He says, " I think there was sufficient time given for the vote on Mr. Cleaveland's motion for the appointment of Dr. Beman as Mode- rator, and I think the question was reversed. I think I may say, it was reversed, and I will give my reasons for saying so. When Mr. Cleave- land was about to put that question, in my estimation, it was the most cri- tical and interesting moment in the whole proceeding, because it was the incipient step in the organization," '•'•Because it was the incipient step in the organization.'^ Dr. Hill is a very honest old gentleman, as I saw and knew, independently of my seeing and knowing that he was a minister of the Gospel, and independently of the kind feeling and sim- plicity of heart which he manifested while on the stand. Here, undoubt- edly, he spoke the truth. He was of the same party with Mr. Cleaveland; and he says that Mr. Cleaveland's question was the incipient step in the organization. The organization of whom? Those who did not consider themselves organized before — those who came to the church in a body and went away in a body. " I may state here," continues Dr. Hill, " that I had opposed the separate organization," Where had he opposed it? Not in that body. In his integrity he has told us that he had opposed it some- where else. This then was the incipient step of an organization, to form which the rest had agreed, but to which he was opposed; and it was the incipient step of a separate organization. That is, they came to the house prepared to form the inception of a separate organization of the Assembly. I will next call your attention to the testimony of Mr. Gilbert and Dr. Patton. Dr. Patton says, {Ante, p. 54,) "He" (Mr. Cleaveland) "did not call the Moderator by name, but looking toward him, addressed his remarks and put his motion to the house, a large portion of which was MR. SERGEANT'S ARGUMENT. 577 between himself and the Moderator," and of course had their backs to him. So Mr. Gilbert also testifies. {Ante, p. 101.) " Mr. Cleaveland did not address the Moderator when he made these remarks: his face was to- wards the Moderator, but he did not say ' Mr. Moderator.' I did not hear the word ' interruption,' and some others." He said, in addition to what is there recorded, that it was no matter in what part of the house the Moderator stood — that is, for the purpose of the new organization. Then here is the clearest proof to contradict the assertion now made, that we assented to the removal of Dr. Elliott. On what question they supposed themselves to be voting, is proved by the very vote to appoint Dr. Beman Moderator, that he might read to the new Moderator the rules; which, however, he afterwards neglected to do, though he referred Dr. Fisher to ^them., He was appointed, no doubt, because, having been Moderator be- fore, he was supposed to be conversant with the constitution and forms of proceeding. So they made him Moderator first, and he put the motion on Dr. Fisher, and made known to him by what rules he was to be governed. This, then, was the organization of the Assembly from the very begin- ning: it is not correct in any sense to say, that they punished Dr. Elliott, or removed him from the chair. Now, this proceeding was the most outrageous disorder from beginning to end, unless the New-school were attempting to effect a new and sepa- rate organization, which should embrace all the commissioners from the exscinded Synods, because they had been told by their counsel that this was necessary, which is their only excuse. This I assert for the follow- ing reasons. First, because the motion was out of season; a Committee of Elections not having been appointed; secondly, because it was not ad- dressed to the chair. In regard to the latter point testify Dr. Hill, Mr. Gilbert, and Dr. Patton on the side of the relators, and Mr. Brown on the other side. Mr. Brown says, {Ante, p. 174,) " Mr. Cleaveland rose with a paper in his hand. At his first rising his face was towards the Mode- rator, and his back to me. I did not hear him say ' Mr. Moderator.' When he had commenced reading, he turned a little round from the chair, as if addressing persons to his right, and thus gave me an opportunity to see the hand-writing of the paper, and to hear, distinctly, what he uttered. I can recollect, perfectly, the main topics of his discourse, and nearly in their order. He commenced by declaring, we are about to form a new body; he expressed an apology for the interruption, and wished not to be considered discourteous, as they would do it ' in the fewest words and the shortest time possible.' " Which was all right in that view of the case — his intending to form a new body. He was certainly bound at any rate to respect order and decorum. But he could not afterwards take away our rights, on the pretence that we had consented to part with them. After saying that he intended but a little interruption of our proceedings — a thing of no consequence, he is not to carry off with him all our pri- vileges. There are fables of that sort — cases where persons have thus taken advantage of the courtesy of others; but I never have heard of such conduct's being legally approved. If any one had risen then and asserted that Mr. Cleaveland did not mean what he said, the charge would have been resented as a slander. Mr. Cleaveland did not address the chair. Now what is the rule of order upon this subject — if rules are to be applied to such a case? Let us 73 578 PRESBYTERIAN CHURCH CASE. see. "Every member when speaking, shall address himself to the modera- tor, and shall treat his fellow members, and especially the moderator, with decorum and respect." So the next rule: — "Without express permis- sion, no member of a judicatory, while business is going on, shall ens in private conversation; nor shall members address one anot" any person present, but through the Moderator." Jippend. R. 21, 22. — It is plain enough that Mr. Cleaveland violatecWfT'rules of order, if he considered himself to be acting as a member of the Assembly already partially organized. He did not address the Modera- tor, or treat either him or his fellow members,, whom he did not address through him, with respect and courtesy. I might refer to many rules which he violated, but those which I mention are sufficient: they show clearly that if his object was really what it is now said to have been, if he intended merely to displace the Moderator, he was guilty of gross disor der. If his object was to effect a separate organization of a part of the commissioners, he was exempt from the operation of these rules; but if he meant what it is now contended he did, they were obligatory. There is another regulation his neglect of which made him in the highest degree disorderly. Mr. Cleaveland obtained what would be called out of doors a snap-judgment. "A motion made must be seconded, and afterwards repeated by the moderator, or read aloud, before it is debated; and every motion shall be reduced to writing, if the moderator, or any member require it." — Jlppend. to Const. R. 11. — According to the other rule every motion must be addressed to the Moderator: according to this no member is bound to give attention to a motion, until it has been stated from the chair, after being first stated by the mover. It appears to me that these rules are decisive of the question. These questions of order, I repeat it, cannot be too much insisted on: such rules are absolutely necessary 'to avoid snap-judgments. Every eye must be able to see, and every ear to hear, in order that all may partici- pate, else they cannot be bound by what is done. It is of the utmost consequence that there should be som.e one in the chair to receive motions and communicate them to the house; but the eye cannot follow the move- ments of two presiding officers at the same instant, nor can every body be making a motion at one time. Now, I say that the object of the New-school was to form a separate organization: they did not addreAour Moderator, or the chair, and the question was not stated from the jfcir and therefore was never submitted to the body. The argument of the other side is that we were bound because we did not vote on a disorderly motion, put at the other end of the house — a disorder which violated every rule of that body, and of every deliberative body, and which was allowed merely because Mr. Cleaveland said that he was acting under the advice of counsel learned in the law, and would interrupt as little as possible, it being generally under- stood that they would go away with what they had got — a little show of organization of their own, just enough to begin a controversy with. Of the majority there was not a single man who understood that the motion was addressed to him, or that he was voting on any motion; not a single man who, we may not take for granted, would have opposed such a motion as it is now pretended Mr. Cleaveland put. Here we may consider another question: what did any one of either party vote upon? If a f MR. SERGEANT'S ARGUMENT. 579 motion had been made to remove Dr. Elliott, that would have been per- fectly intelligible. If a motion to put Dr. Beman in his place, that also might have been understood; but no such motion was made. The only- question put, was, 'f Will you allow of our forming a separate organiza- tion ? We wish to give no offence, but have been advised that such an organization is necessary to us." And then they put a question pertain- ing to their organization— "Shall we in our incipient state have Dr. Beman for our Moderator?" If we were silent what did we mean? Only, " You may have Dr. Beman for your Moderator: we have ours, and if you choose to separate from us, with as little interruption as possi- ble to our proceeding, to be sure, you may take any Moderator you please. " Now then, because we did not object to their having Dr. Beman as their Moderator, (which was the question put) are we to be considered as voting to give up ours? That, is an entirely different thing, and if the latter was the import of the motion, it certainly was not so put as to be intelligible to any man, woman, or child in the body. And whatever the motion may have been, if disorderly, it could have no such effect. Such a construction would be unfair and unjust. Not only was the question not put by our Moderator, the Moderator in the chair — the actual and the legal presiding officer — but not from any chair entitled to the respect of the body. I go farther — I mean to dis- prove that we ever voted upon it by intendment of law, as we certainly did not in fact. It was not put by any officer authorized by the Assem- bly to put questions. Mr. Cleaveland never was so authorized ; and neither Dr. Beman nor Dr. Fisher ever was ; for Mr. Cleaveland did not ask theconsentof the Assembly to his putting a question; and neither Dr. Beman or Dr. Fisher once claimed to be Moderator. They went out of the house leaving our body, with its Moderator and clerks as it was: they did not pretend at that time to disturb our organization. But no one is bound to notice any question which is not put by an officer of the house, or by some authorized person. And more especially was no one bound to give attention in this case, because the regular officers were there, in their places, and fully competent to act. There was no absence of a Moderator or clerk; no gap in the organization: all was complete. But these gentlemen came and asked, " Let us have an opportunity to form a little organization of our own, here behind you, in order that we may be ready for a lawsuit. We will interrupt you the least possible, and leave you as soon as we can." To this we consented; but authorit}'^ to any one to put a question to us, we never gave. Now let us advert to the condition of the Assembly, at the time of these transactions. All the witnesses agree that there was much tumult and disorder. How was this occasioned ? It is ascribed to the Old-school; and this is supposed to justify what was done on the other side, and to be a sufficient reason for ousting us. What was this tumult and disorder, which is chargeable upon the Old-school ? Some cried "Order!" some "Shame!" — some one thing, and some another, incited to it by the most disorderly proceedings. They saw a spectacle of disorder in its worst shape — while one Moderator was presiding in the usual manner and place, another getting up at the opposite end of the house, and paying no respect to either the officer thus presiding, or the house, and treating of things which did not concern the business then before the Assembly. If they 580 PRESBYTERIAN CHURCH CASE. were disorderly how can you impute it to Dr. Elliott or any of the mem- bers, as a disorder, that they called to order, or cried " Shame" ! It is an utter perversion. The only question is, were the New-school disorderly? If so it was the duty of the Moderator, and the privilege of every mem- ber to call them to order. They might have made as much noise as they could until Mr. Cleaveland stopped, and no one could have blamed them for it. I know of no other limit to the duty of the one or the privilege of the other. It is said we caused the disturbance, and therefore must submit to the consequences. How did we cause it? By calling to order? That I say was not a disturbance, when the person called to order was disorderly. The chair and every member had a right to persist until the disorderly individual obeyed the call. Farther, this call to order from the Moderator and members was a complete negation of the idea that the latter meant to vote: it shows that they were endeavoring to suppress the whole proceeding; that they did not consent to the removal of Dr. Elliott, but to secure the peace of the body called to order. They failed to restore order, but shall the attempt be imputed as an offence? They had a right to call order, if any were disorderly. My simple position here is, that there could not be two presiding offi- cers at the same time. Farther, I saj'^, that in the Assembly, and in every other deliberative body, there must be a known place for the presiding officer to occupy; and while he occupies it, he alone is to be respected as the presiding officer. That place indicates who is the true officer. When he is absent, questions may be put by the Clerk, or by some one appointed for the purpose. I do not speak of the removal of an officer. If Mr. Cleaveland had effected Dr. Elliott's removal, then provision must be made as in the case of the Moderator's absence; but, in the meantime, until he was removed, to whom were motions to be addressed? Were the members to look before or behind them, or both ways? I suppose both. Even if Mr. Cleaveland's motion was in effect intended to remove Dr. Elliott, yet until the motion was carried, until his removal was decreed, he continued to occupy the chair, and to be Moderator; and while this was the case, no one was bound to pay respect or to attend to any other. I ask your Honours, what other course could be taken by the party called Old-school — as if that were a term of reproach ? I can think of none. What course were they to take, supposing they were the majority? They were satisfied, as it appears, that Dr. Elliott had done his duty; they were satisfied that he should occupy the chair, and knew that so long as he was in the chair they were bound to respect him, and him alone. Could they, consistently with, their respect to him and to themselves, vote on a ques- tion put by another person behind their backs? Would not that have been surrendering the whole case? If they had thus voted, they must have turned their backs on Dr. Elliott, and their faces to Mr. Cleaveland — to- wards the rising sun. It is a material fact, that Mr. Cleaveland was not even in the neighbor- hood of the chair. Here was a large assembly, composed of those com- missioners who had been reported on the roll, those not reported, of dele- gates from the exscinded Synods, and of persons who had come merely lo hear the sermon, or to see what would take place. Of those entitled to vote, the great body could run no risk, as things at first stood, for they sat immediately in front of the chair. In the neighborhood of Mr. f MR. SERGEANT'S ARGUMENT. 5§1 Cleaveland, and behind him, were the most of the New-school members, the delegates claiming a seat, and many by-standers. There is no doubt of that. Now, who had a right to vote on any question? Those who had been reported, and jione others. They were the members of the Old- school, and a few of the New-school. Of course I do not take into account the exscinded commissioners, though if they had been added, the New- school would still have been in the minority. Those who sat before Mr. Cleaveland had, without doubt, a right to vote: they were principally of the Old-school, who were satisfied with Dr. Elliott. Mr. Cleaveland, then, was not only not in the neighborhood of the chair, but was not in front of the great body, probably not of any part of those entitled to vote: he put the question to their backs. 1 believe there is no rule of order of any deliberative body which allows a question to be stated behind the backs of the members. It is a bull to talk of addressing people behind their backs. The forms of good breeding, as well as all rules of parlia- mentary order, forbid such a thing entirely. The disorder which ensued from Mr. Cleaveland's motion, was so great, that several of the witnesses, as they have testified, were able to hear nothing. I have a list of sixteen, who have given testimony to that effect — and I know not how many m.ore said the same — and I hope, that among these, whose names I shall read, there are none who will not be believed to have spoken the truth. They are Dr. Phillips, Dr. Wilson, Dr. Miller, Mr. Lowrie, Mr. Twitchell, Mr. Wilson, Mr. Symington, Mr. Boardman, Dr. Plumer, Dr. A. W. Mitchell, Mr. Auchincloss, Mr. J. B. Mitchell, and Mr. Agnew. They all swear, that so far from hear- ing what was done, they did not know at all, some of them until the next day, all until a considerable time afterwards, that Dr. Fisher had been elected Moderator. Could any thing be done in this way, so as to bind those behind w^hose backs the questions were taken? Mr. Cleaveland gets up a little way behind the great body of the members, and amid the distraction and confusion of a scene of almost unexampled disorder, puts a certain question, and you are called upon to wring, from our silence and astonishment, contrary to our own declarations, and to the manifest truth, an acquiescence by intendment of law. We did not see, hear, or know what was going on; and we answer to any one who contends that we were bound, that he must first establish the facts, that we actually heard, saw, and knew, before such a consequence can be fastened upon us. That must first be proved. In all cases, where questions are put by the pre- siding officer, the regularly constituted authority, it is perfectly plain, that all who have an opportunity of hearing are bound. But, where a person who has no authority to put a question, rises, and after a few words in explanation, makes a motion, and immediately puts the question upon it, behind the backs of a great portion of the members, not addressing the Moderator, nor giving him an opportunity to state the motion, can those behind whose backs it is put, be bound, when they swear positively to the fact that they did not hear what was said? Nay, the rules of every deliberative body require a reasonable pause after a motion has been addressed to the chair, and, if it be demanded, that the motion be put in writing; and so do the rules of the Assembly, which I have read. Accord- ing to the latter, when a motion is oflfered, if it be in order, the Modera- tor must formally state it; and it must be put in writing, if he or any 582 PRESBYTERIAN CHURCH CASE. member require. But Mr. Cleaveland, in the true spirit of his professed object, the forming of a separate organization, proceeded as rapidly and with as little interruption as possible. Indeed, he went on so rapidly, as to leave it in considerable doubt — that is enough for my purpose, if the negative be not fully established— to leave it in doubt, whether the ques- tion was reversed. The good old gentleman, to whose testimony I have referred — Dr. Hill, says that the rolling fire of the ayes had not yet ceased, when the reverse of the question was put. He says that the Old School were not in good training. Certainly they did not fire by platoons: there may have been some single guns. And, so far as Mr. Cleaveland was concerned, certainly there was good reason why he should not wait till the rolling fire had ceased, if, though the question was put behind our backs, and out of our hearing, we were to be bound, just as if we had first heard, and then said, aye. Now, what part of the rules is more essential, than that requiring a speaker to address the Moderator, and the motion to be stated from the chair, and opportunity be given for debate? Where was opportunity for debate allowed? All had a right to debate; yet not the least chance was given. Nay, the members were cautioned — so we may interpret Mr. Cleaveland's language — that there was to be no debate. At any rate, where was the opportunity given? Crack! crack! crack! the reverberating shouts of "Aye!" fell upon the ear, as if their learned counsel had told them, that they must not lose an instant; that they must not allow the thread of their proceedings to be broken; that they must get through at all hazards; and then it was proclaimed, that the Assembly had adjourned, to meet in Old Buttonwood. Could questions thus pu4, bind any but those who actually voted? Here is a solution of the whole difiiculty. There were in the house at the time, two well-known and distinct bodies, entertaining adverse views, not originating on that day, but long before — they had become so fully embodied that one party had consulted counsel about their difficulties — I don't know whether the other had done the same or not. There they met all on the same floor. One party wished to organize the Assembly according to their own views, and on their own plan; the other to organ- ize it adversely. They certainly had a right to put such questions as affected their separate organization: we made no objection to that. But they had no right to attempt to put a question in our body. If an indi- vidual of their number claimed a right to make a motion, which we were to act upon, he must in presenting it address himself to our officers. This mode of proceeding would have been intelligible to all. They might ap- point Dr. Beman or Dr. Fisher Moderator: that is not our concern, so long as there is question of their own party only. But if the question be whether we shall be affected, it is manifest that they could address us only through the accredited organ of our body. Else, they did not ad- dress us at all. They might speak French, or German, or Latin, as they chose, in addressing each other; but English is our language, and if they spoke in a strange tongue, we must take for granted that they were talk- ing to somebody else, not to us: they must speak English in addressing us. Is not that the honest sense of the matter? But we called these gentlemen to order. In this we committed no disorder, if they were disorderly. It is strange that they could not tell us in a plain way, without equivocation, what they wanted. If they had MR. SERGEANT'S ARGUMENT. 583 f done so, and we afterwards bad consented, we might, perhaps, be bound by that consent. But surely we are not to be circumvented by disorderly stratagem. I have almost done with this subject of the disorder which was made. But I would ask, why impute it to the Old-school? The Old-school is not one body — a unit. How, when there is no corporation, no association, are you to make one person answer for an offence committed by another? Supposing that some made a disturbance purposely to prevent a regular vote, are all bound by that vote, when prevented b)'^ the uproar from knowing what was done, unless you establish the fact of a conspiracy, and that all were parties to it? In this case there could be no conspiracy. The Old-school, being the invaded party, merely stood on the defensive: con- spiracy was impossible. How then was it possible that all the members of a body which is not a unit, could be affected by the disorder of some of their number, supposing some were disorderly. I am not acquainted with any such rule. But to what rule is it attempted to make all those v^^hich govern in the construction of ordinary affairs, yield in the present case? The consi- deration of this matter concerns us all, for it must be of universal applica- tion. Are we all willing to abide the consequences of such a rule ? Can we live by it? Is it such an one as your Honours, if now framing a rule, would lay down? First, it is said that the question put by Mr. Cleave- land was a question of privilege. Not a privileged question, which is only one that is not necessarily out of order because another is depending, as the question put when it is thought better to postpone, or to commit a subject. These all have a definite order prescribed: they cannot cut off and interrupt every thing. A question of privilege is a very different thing. There is a difference in regard to them on the different sides of the Atlantic. The privilege of Parliament would not be borne here: that is entirely indefinite, which seems in the eye of some to constitute its great value. The House of Commons is at present wrangling about a question of privilege with Lord Denman, who is a firm man, and being well supported, has yet held to his own opinion, and from present appearances is not likely to yield. The history of this matter is a little curious. The House of Commons claims a right of printing whatever it pleases, and of being exempt from all question in regard to the same. So far as regards its own votes and resolutions, there can be no doubt of the right; but it claims, farther, the privilege of printing any paper whatever, and not only to print enough copies for its own use, but also to authorize the printer's issuing some for sale. In a recent instance the House authorized the printing of a slanderous paper, and allowed some extra copies to be printed and sold. One of these got into the hands of the injured person, and he brought the matter before the Court of King's Bench, which decided against the printer. In the House of Commons Sir Robert Peel has defended the rights of the House with great ability. An able article in the Quarterly Review takes the opposite side. The Lord Chief Justice is firm in supporting his judgment, that papers so printed may not be sold or distributed. This gives us some notion of what is called the privilege of Parliament: such a privilege certainly would not be suffered in this country. But what is meant here by a question of privilege? Mr. Meredith 584 PRESBYTERIAN CHURCH CASE, especially has dwelt upon this point. He says that the rejection of the exscinded commissioners was a breach of privilege, and that the object of Mr. Cleaveland's motion wa.* to punish the Moderator for that breach. But parliamentary privilege is not the privilege of the member: it is the privilege of the body: so far from its being an individual right, the first Manual of legislative practice which you open, will tell you, that an indi- vidual whose privilege is invaded, cannot wave the right of prosecuting the matter: the house punishes the breach. Great solemnity too is required in the infliction of punishment for a breach of privilege. The first thing is to determine, that it is a breach of privilege. Then the question arises whether the house will agree to take it into consideration. Then, if it is so agreed, the question of privilege has precedence in the order of busi- ness at all times, and when not disposed of, continues to have precedence, often to the great annoyance of many of the members. Here the ques- tion arises, did any member of the Assembly say, "This is a case of a breach of privilege? If I may make any mention of my little experience in such matters, I would say, that I have never seen a question of privilege come up in such a shape: if this was one, it certainly appeared in a very strange disguise; and I cannot yet assent to its bearing that character. The motion made by Mr. Cleaveland looked like a very different thing. He certainly did not complain of a breach of privilege, and if a breach had been committed, it was another breach of privilege to foist it into the house in this vvay, before asking leave or making known what he meant. Had the house ever consented to take it into consideration? It had- never been asked to do so. Mr. Cleaveland of his own authority put the ques- tion to the Assembly, therein being guilty of a breach of the privilege of every member, excepting those who expressly consented to this pro- ceeding. He made a motion too, which, even if the house could be construed to have agreed to receive it, he did not pretend to be any thing of the sort now described. What then becomes of the argument founded on the assumption that the question proposed was a question of privilege? Again, it is contended that the Assembly had a right to remove their Moderator. I incline, for reasons already stated, to think that they had not that right until the appointment made of a Committee of Elections. But, at any rate, they did not remove him: there was no motion made to that effect. There certainly is not a precedent for any man's usurping the place of Moderator. The case which occurred in 1S28, in which Hollis was concerned, was of quite a different sort. There the speaker wanted to leave the chair, but was held in his seat by force. He was acting in obedience to the king's ^command; but already a contest had begun between the Parliament and the king, and you can see the true spirit of the contest in the occurrences of that day, as distinctly as you see it on the day when they cut oflfthe king's head. It was that spirit which arrayed the Parliament, in the name of the king, against the king, and under the influence of which they raised troops in his name, to make war upon his person. They had then another head: that was king Crom- well. The speaker was acting by the king's authority, and he begged, prayed, and wept, but it was all of no avail. In the scuffle, Hollis who was in the neighborhood of the chair, collected the voices of the members in that neighborhood; but this opposition had no effect; the Parliament adjourned and was dissolved. And when, many years after, the transac- MR. SERGEANT'S ARGUMENT. 585 tion came into review, what was done? Was it declared quite orderly? No. The act passed bears no such construction. Hollis in the mean time had been arraigned before the Star Chamber, but there all his valour oozed out — whether at his fingers' ends or not, I do not know. But at any rate he was as humble and penitent as the speaker had previously been. The new Parliament voted, that the speaker ought not to have abandoned his duty and left the chair; that in doing so he had violated the privilege of the house; but without approving the con- duct of Hollis. What analogy can you find between this case, and that of Mr. Cleave- land, standing in the pew, and making the members vote the contrary of what they meant? I answer, that the case is no precedent; that it was jiot intended as a precedent for such times as these; though times like those which produced it, may not be far distant in England, if we are to judge from the number of pikes said to have been lately made, in one of her large manufacturing towns. Again, it is said, that the clerks could not put any question, but by order of the house. The clerks, of course, cannot make an entry on the journal, but by order. 2 Hatsell, 201, 237. But you will find that it is in evidence, that in the Assembly, at least, the clerk may put a motion without an express order. Mr. Meredith, indeed, has discovered that in 1835, the question put by Dr. Ely, was put by him as a member, and not as clerk. I do not think so: I understand just the contrary; and the thing is certainly stated in the plainest terms. The original question on the appointment of the Moderator, was put by the Stated Clerk, who also called the house to order — this without the express consent of the body — and Dr. Beman was placed in the chair. After he had been there some time, he was discovered not to be entitled to the ofiice. A motion was made, to re-consider the vote by which he had been appointed: the minute does not show by whom the question on this motion was put — I suppose by Dr. Beman — but it was decided to re-consider the vote; and, after some speaking on the subject, it was ordered that the question should be put by the Stated Clerk: "Whereupon Dr. Ely put the question;" and Dr. Ely was the Stated Clerk. The question was ordered to be put by the Stated Clerk. Was it then put by him as an individual member, or as Stated Clerk? If he put it as an individual member, that was not in accordance with the order. It appears, then, that it was put by the clerk; and by him must such questions be put, on all occasions. In that case, they were very attentive to the rules of order; for, when the motion was carried to re-consider the question, the chair was immediately regarded as vacant, every thing as respects it, was placed back in its original situa- tion, as if nothing had been done, and the question was again put on the original motion, by the Stated Clerk. Then Dr. McDowell was elected, because he was entitled to occupy the chair. But here was a case in which the right person was already in the chair. The chair was full. Dr. Elliott had been the Moderator of the preceding Assembly, and it was clearly his duty to preside. In case of his absence, the clerk should have put the question; or, if there had been no clerk, a temporary officer might have been appointed for the purpose. But, so long as the chair was filled, and that with the right person, none but himself could put a question; unless, in a case of peculiar delicacy, he had retired from the 74 586 PRESBYTERIAN CHURCH CASE. chair, and requested another person to occupy it, or, not leaving the chair, asked some one to put it for him. I have vow gone through with what I have considered my duty in this case, not without labour to myself, or fatigue, as I fear, to your Honours. But a sufficient apology may be found, as it appears to me, in the great importance of the questions which it involves. Those who know any- thing of this matter, know well that I have not sought the occasion of appearing here. Sickness prevented me from being present during the greater part of the trial, and I felt some reluctance to come in at the pre- sent stage of the case, not only because I had 'not attended the trial, but more particularly for other reasons. I have been long acquainted with many of the gentlemen on both sides, and have gi'eat respect and much kind feeling for them. I was sorry to see them here arrayed against each other in a civil court. I can assure them that it has not been without pain, that I have been obliged, professionally, to turn my face away from the view in which I have always before regarded them; and in which I shall continue to regard them, notwithstanding that it has fallen to my lot, to attempt in a professional capacity to show which party are in the right. I have now performed my duty, and disclosed the grounds on which I think the right of the defendants stands. And if I have consumed a con- siderable time, I may at least feel satisfied in the reflection, that I have had no inordinate desire to consume it, or needlessly to waste a single moment. On every ground, I trust it has been shown that the case is clearly with the defendants, and that the verdict must be set aside. Court adjourned. SATURDAY MORNING, April 27th— 10 o'clock. Mr. Randall said a few words in reply to Mr. Sergeant: — If he should attempt to reply to all the new matter which that gentleman's argument contained, he must reply to the whole. The ground taken by Mr. Ser- geant in regard to the jurisdiction of the court, he had before understood to be entirely abandoned by the counsel for the defendants; that nothing had been heard of it since July, 1838. A case decided by the Supreme Court of Delaware had been referred to, but in the opinion of C. J. Johns, one part of which had been read, there was a distinction taken between acts of the ecclesiastical Presbytery, and of the civil Presbytery or corporation; and it was held that if an act of the latter, excluding the plain- tiff, had been alleged, a mandamus would lie; but that the affidavit made no such allegation. (Here Mr. Randall read two or three short extracts from the opinion. — J^id. ante 537, et seq.) The jurisdiction of the court in such cases had been settled in both Pennsylvania and Maryland. He would allude to one other point of Mr. Sergeant's argument. Sup- posing a question to have been put, in 1835, by Dr. Ely as Stated Clerk, that did not sustain the position taken by the counsel. The Stated Clerk is not the clerk of the house: he is the depositary of the records. The clerks of the house, are the Permanent and Temporary Clerks. 587 WEDNESDAY MORNING, May Sth— 10 o'clock. Chief Justice Gibson delivered the opinion of the Court. To, extricate the question from the multifarious mass of irrelevant mat- ter in which it is enclosed, we must, in the first place, ascertain the specific character of the General Assembly, and the relation it bears to the corpo- ration which is the immediate subject of our cognizance. This Assembly has been called a quasi corporation; of which it has not a feature. A quasi corporation has capacity to sue and be sued as an artificial person; which the Assembly has not. It is also established by law; which the Assembly is not. Neither is the Assembly a particular order or rank in the corporation, though the latter was created for its convenience; such, for instance, as the share-holders of a bank or joint-stock company, who are an integrant part of the body. It is a segregated association, which, though it is the reproductive organ of corporate succession, is not itself a member of the body; and in that respect it is anomalous. Having no corporate quality in itself, it is not a subject of our corrective jurisdiction, or of our scrutiny, farther than to ascertain how far its organic structure may bear on the question of its personal identity or individuality. By the charter of the corporation, of which it is the handmaid and nurse, it has a limited capacity to create vacancies in it, and an unlimited power over the form and manner of choice in filling them. It would be suffi- cient for the civil tribunals, therefore, that the assembled commissioners had constituted an actual body; and that it had made its appointment in its own way, without regard to its fairness in respect to its members: with this limitation, however, that it had the assent of the constitutional ma- jority, of which the official act of authentication would be, at least, prima facie evidence. It would be immaterial to the legality of the choice that the majority had expelled the minority, provided a majority of the whole body concurred in the choice. This may be safely predicated of an un- divided Assembly, and it would be an unerring test in the case of a divi- sion could a quorum not be constituted of less than such a majority; but, unfortunately, a quorum of the General Assembly may be constituted of a very small minority, so that two, or even more, distinct parts may have all the external organs of legitimate existence. Hence, where, as in this instance, the members have formed themselves into separate bodies, nu- merically sufficient for corporate capacity and organic action, it becomes necessary to ascertain how far either of them was formed in obedience to the conventional law of the association, which, for that purpose only, is to be treated as a rule of civil obligation. The division which, for purposes of designation, it is convenient to 588 PRESBYTERIAN CHURCIII CASE, call the Old-school party, was certainly organized in obedience to the established order ; and, to legitimate the separate organization of its rival, in contravention, as it certainly was, of every thing like precedent, would require the presentation of a very urgent emergency. At the stated time and place for the opening of the session, the parties assembled, with- out any ostensible division; and, when the organization of the whole had proceeded to a certain point, by the instrumentality of the Moderator of the preceding session, who, for that purpose, was the constitutional organ, a provisional Moderator was suddenly chosen, by a minority of those who could be entitled to vote, including the exscinded commissioners. The question on the motion to elect, was put, not by the Chair, but by the mover himself; after which, the seceding party elected a permanent Mo- derator, and immediately withdrew, leaving the other party to finish its process of organization, by the choice of its Moderator for the session. In justification of this apparent irregularity, it is urged that the consti- tutional Moderator had refused an appeal to the commissioners in attend- ance, from his decision, which had excluded from the roll the names of certain commissioners who had been unconstitutionally severed, as it is alleged, from the Presbyterian connexion, by a vote of the preceding ses- sion. It is conceded by the argument, that if the Synods, with the de- pendent Presbyteries by which those commissioners were sent, had been constitutionally dissolved, the motion was one which the Moderator was not bound to put, or the commissioners to notice; and that whatever im- plication of assent to the decision which ensued, might otherwise be de- duced from the silence of those who refused to speak out, about which it will be necessary to say something in the sequel, there was no room for any such implication in the particular instance. It would follow also, that there was no pretence for the deposal of the Moderator, if indeed such a thing could be legitimated by any circumstances, for refusing an appeal from his exclusion of those who had not colour of title, and con- sequently, that what else might be reform, would be revolution. And this leads to an inquiry into the constitutionality of the act of excision. The sentence of excision, as it has been called, was nothing else than an ordinance of dissolution. It bore that the Synods in question, having been formed and attached to the body of the Presbyterian Church under, and in execution of, the 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." Now it will not be said that if the dis- solved Synods had no other basis than the plan of union, they did not necessarily fall along with it, and it is not pretended that the Assembly was incompetent to repeal the union prospectively, but it is contended that the repeal could not impair rights of membership which had grown up under it. On the other hand, it is contended that the plan of union was unconstitutional and void from the beginning, because it was not submitted to the Presbyteries for their sanction; and that no right of membership could spring from it. But viewed, not as a constitutional regulation which implies permanency of duration, but as a temporary expedient, it acquired the force of a law without the ratification of those bodies. It was evidently not intended to be permanent, and it conse- OPINION OF THE COURT. 5§9 quently was constitutionally enacted and constitutionally repealed by an ordinary act of legislation; and those Synods which had their root in it, could not be expected to survive it. There never was a design to attempt an amalgamation of ecclesiastical principles which are as immiscible as water and oil; much less to effect a commixture of them only at parti- cular geographical points. Such an attempt would have compromised a principle at the very root of Presbyterial government, which requires that the officers of the Church be set apart by special ordination for the work. Now the character of the plan is palpable, not only in its title and provi- sions, but in the minute of its introduction into the Assembly. We find in the proceedings of lS01,page 256, that a committee was raised " to consider and digest a plan of government for the churches in the 7ieiv settlements agreeably to the proposal of the General Association of Con- necticut;" and that the plan adopted in conformity to its report, is called " a Plan of Union for the new settlements." The avowed object of it was to prevent alienation — in other words, the affiliation of Presbyterians in other churches, by suffering those who were yet too few and too poor for the maintenance of a minister, temporarily to call to their assistance the members of a sect who differed from them in principles, not of faith, but of ecclesiastical government. To that end, Presbyterian ministers were suffered to preach to Congregational churches, while Presbyterian churches were suffered to settle Congregational ministers; and mixed congregations were allowed to settle a Presbyterian or a Congregational minister at their election, but under a plan of government and discipline adapted to the circumstances. Surely this was not intended to outlast the inability of the respective 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 those who built up Presbyteries and Synods on the basis of it, had no reason to expect that their structures would survive it, or that Congregationalists might, by force of it, gain a foothold in the Presby- terian Church, 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 good 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 sat when they were performed. Now had the exscinded Synods been cut off by a judicial sentence without hearing or notice, the act would have been contrary to the cardinal principles of natural justice, and consequently void. But though it was at first resolved to proceed 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 disor- der had come in with the sanction of the Assembly itself. The first article directed missionaries (the word is significant,) to the new settle- 590 PRESBYTERIAN CHURCH CASE. ments to promote a good understanding betwixt the kindred sects. The second and third permitted a Presbyterian congregation to settle a Con- gregational minister, or a Presbyterian minister to be settled by a Congre- gational church; but these provided for no recognition of the people in charge as a part of the Presbyterian body — at least they gave them no representation in its government. But the fourth allowed a mixed con- gregation to settle a minister of either denomination; and it committed the government 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 ecclesiastical connexion with the Presbytery of the dis- trict; but this is not all. It was expressly provided in conclusion, that if the " said standing committee of any church, shall depute one of them- selves 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 Presbylerial fellowship? It is said that this jus represent at ionis was predicated of the appeal precedently mentioned; and that the exercise of it was to be restrained to the trial of it. The words, however, were predicated without restric- tion; 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 appellate court, a part of the subordinate one. That such an implication would be inconsistent with the temper displayed by the Assembly 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 superior judicatory on a question of approving or disapproving their records." (Id page 333.) The principle has since become a rule of the Constitution, as appears by the Book of Discipline, Chap. VII. Sect. 3, paragraph 12. As the repre- sentatives 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 Presby- terians; and that to effect it, the 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 relaxa- tion 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 contempla- OPINION OF THE COURT. 59J lion of it aa a judicial sentence pronounced against parties who were neither cited nor heard; which it evidently was not. Even as a legisla- tive act, it may have heen a hard one, though certainly constitutional, and strictly just. It was impossible to eradicate 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 Presby- terial organization, the Presbyterian parts were not excluded from the Church, provision being made for them, by allowing them to attach them- selves to the nearest Presbytery. It is said, there is not sufficient evidence to establish the fact, that the exscinded Synods had actually been constituted on the '• Plan of Union," •in order to have given the Assembly even legislative jurisdiction. 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 some- times constituted without elders; and the Synod of the Western Reserve, when charged with delinquency 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 enactment cannot depend on the justness of its conclusion. We have, as already remarked, no authority to adjudge 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 composi- tion 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 immaterial. 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 necessa- rily as applicable to jurisdiction for purposes of legislation. I cite the passage, however, to show that after a successful resistance to the intro- duction of evidence of the fact, it lies not with the relators 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 for purposes of representation, dissolved along with them; for no Presbytery can be in connexion with the General Assembly, unless it be at the same time sub- ordinate 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 is indispensable to the existence of every branch of the Church. It appears, therefore, that the commissioners from the exscinded 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 proceedings which were founded on their exclusion. But, even if their title were clear, the refusal of an appeal from the decision of the Modeiator, would be no 592 PRESBYTERIAN CHURCH CASE. 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 estab- lished organ, it is the duty of every member to respond, or be counted with the greater number, because he is supposed to have assented before hand 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 justifiable even by extreme necessity, is essentially revolu- tionary, and based on no pre-established process of ascertainment what- ever. 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 the 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 resorting to a conventional rule, when the body is to be resolved into its original elements, 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 removable at the pleasure of the commissioners, would seem to have been unconstitutional. But he was not removable by them, 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 their organization; and till that was accomplished, they were subject to his rule — not he to theirs. They were chosen by the authority of his man- date, and with the power of self-organization, only in the event of his ab- sence at the opening of the session. Coporally present but refusing to perform his function, he might be deemed constructively absent, for con- stitutional 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 the task; and the reason is that the decision of such ques- tions as were prematurely pressed here, is proper for the decision of the body when prepared for organic action, which it cannot be before it is fully constituted and under the presidency of its own Moderator; the Moderator of the preceding session h^xn^ functus officio. There can be no occasion for its action sooner; for though the commissioners are ne- cessarily called upon to vote for their Moderator, their action is not or- ganic, but individual. Dr. Mason's motion and appeal, 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 enrollment, was expected to be exer- cised during any part of the process of organization, but the choice of a Moderator; and moreover, the provision may have been intended for the case of a commissioner appearing for the first time, when the house was constituted. Many instances may doubtless be found among the minutes, of motions entertained previously, for our public bodies, whether legislative or judi- cial, secular or ecclesiastical, are too prone to forget the golden precept — OrmiON OF THE COURT. 593 "Let all things be done decently and in order." But these are merely instances of irregularity which have passed sub silentio, and which can- not 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 exscinded commis- sioners could be determined only by the action of the house, which could not be had before" its organization were complete; and, in the mean time, he was bound, as the executive instrument of the preceding assembly, to put its ordinance into execution: for to the actual assembly, 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 proposed, pur- ported not to be in fact a question of degradation for the disallowance of an appeal, but one of new and independent organization. It was ostensi- bly, as well as actually, a measure of transcendental power, whose purpose was to treat the ordinance 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 original organization transcending the customary order; and not as a recourse to the ultimo ratio for a specific violation of it. The ground of the motion, as it was opened by the mover, was not the disal- lowance of an appeal, which alone could afford 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 to prevent misconception or mistake; and the remarks that heralded the question in this instance, pointed at, not a removal of the presiding incumbent, but a separate organization to be accomplished with the least practicable interruption of the business in hand; and if they indicated an}^ thing else, they were deceptive. The measure was proposed not as that of the bod}^, 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 pur- pose of it could not be legally accomplished in any other place. No wit- ness speaks of a motion to degrade; and the rapidity of the process by which the choice of a substitute, not a successor, was affected, left no space for reflection or debate. Now, before the passive coaimissioners could be affected by acquiescence implied from their silence, it ought to have appeared tliat they were apprized of what was going on; but it ap- pears that even an attentive ear witness was unable to understand what was done. The whole scene was one of unprecedented haste, insomuch that it is still 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 Assem- bly which met in the 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. Rule for a new trial made absolute. 75 594 PRESBYTERIAN CHURCH CASE. Judge Rogers. — After the patient and impartial investigation, by me, of this cause, at Nisi Prius, and in bank, I have nothing at this time to add, except that my opinion remains unchanged 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 pre- cedent, and presenting some extraordinary features) to prevent misappre- hension, and misrepresentation. INDEX Abrogation of Plan of Union, 37. Adair, testim. of Rev. Robert, 107. Agnew, testim. of Samuel, 206. Associate Ref. Ch., Union with the, 126. Auchincloss, testim, of Hugh, 188, 224. B. Bissell, case of Mr, 77. Boardman, testim. of Rev. Henry A, 187, 202, 224. Breckinridge, testim, of Rev, Robt. J. 202. Brown, testim. of Rev. Isaac V. 174. " " Judge Henry, 214, Cathcart, testim. of Rev. Dr. Robt. 78, 111. Citation of inferior judicatories, 38, 45. Committee on State of the Ch, (1837) 39, et seq. Constitution of Presb. Church, amended in 1821, 23— the whole of it in evidence, 126. Converse, testim. of Rev. Amasa, 113. Counsel, names of, 12. Fisher, testim. of Rev. Dr. Samuel, 102, Gemmell, testim. of James R. 212. Gen. Assembly, how formed, &c. 24, 155. Gibson, C. J., opinion of, 587. Gilbert, testim. of Rev. Eliphalet, 79, 99. H. Hamilton, testim. of William, 204. Harris, testim. of Dr. William, 170. Hill, testim. of Rev. Dr. WilUam, 75, 211. Hindman's case, 535. Hubbell, argument of Mr. 495 ; opening, 129 ; on points of evidence, 32, 34, 57, 95, 122, 171, 185. I, Incorporation, act of, 20, Ingersoll, argument of Mr. 339 ; on points of evidence, 34, 35, 86, 124, 171, 183. Introduction, 9, J. Davis, testim. of Rev. James M. 216. Delaware, decision of Sup. Court of, 537, Dingee, testim. of Charles H. 115. Jesup, testim. of Judge William, 57, 70, Johns, C. J., opinion of, 537. Jones, testim. of S. Beach, 205. Jury, names of the, 12. Elders, report of «yn. of W. Reserve con- cerning, 27. Elliott, testim. of Rev. Dr. David, 197. Ehnes, testim. of Thomas, 215. Evans, testim. of Thomas, 185. Ewing, resolution of Mr. (1837,) 66. Exscinded Synods, creation of, 24 ; recogni- tion of, 25, etseq.i Presbyteries belong- ing to the, 36. Excision of Syn. of W. Reserve, 44 ; of Syns. of Utica, Geneva, and Genesee, 45, 46, Krebs, statement of Rev. John M. (1837,) 67 ; testim. of, 67, 68, 69, 158, 224. Lathrop, testim. of Rev. Daniel W.217. Lowrie, testim. of Walter, 178, 224. Maclean, testim. of Rev. John, 207, 211. ^ason, testim. of Rev. Dr. Erskine, 88, 127. 596 INDEX. McDowell, testim. of Rev. Dr. John, 66, 67, 68, 69, 210. McElroy, testim. of Archibald, 111. McFarland, testim. of Rev. Francis, 184. Meredith, arguments of Mr. 225, 502; on points of evidence, 86, 87, 183. MiUer, testim. of Rev. Dr. Samuel, 173. MitcheU, testim of Dr. AJex. W. 202. " » Joseph B. 205. Moderator, change of (1835) 78; duties of, 157; induction of new, 193. N. Norris, testim. of Edward C. 207. Nott, deposition of Rev. Dr. Eliphalet, 224. Noyes, testim. of Rev. Varnum, 182. R. Randall, argument of Mr. 505 ; Opening, 12; on points of evidence, 34, 58, 64, 65, 96, 122, 123. Ranstead Court, description of church in, 50. Reasons for new trial, 483. Relators, election of, 83. Report of Comm. on State of the Ch. (1837) 39, et seq. Rogers, J. charge of, to the jury, 461; deci- sions'of, on points of evidence, «fec. 34, 35, 51, 64, 66, 67, 84, 86, 87, 96, 98, 100, 106, 119, 120, 125, 171, 172, 184, 185, 193, 201, 202, 218, 377, 430, 443, 594. Objections to evidence, &c. 32, 51, 54, 55, 57, 64, 67, 68, 69, 84, 85, 86, 87, 92, 95, 100, 106, 117, 118, 119, 122, 162, 171, 172, 183, 214, 216, 218, 219, 221, 224, 349, 377, 430, 534. Organization of G. Assemb., rules for the, 156; of 1838, minutes of the, 219, 222. P. Pastoral Letter, (New-school) 190. Fatten, testim. of Rev. Dr. William, 50. Paul, testim. of James W. 214. Phelps, testim. of. Rev. Eliakim, 118. Philadelphia, Third Presby. of, dissolved, 30, 47. Phillips, testim. of Rev. Dr. Wm. W. 166, 181, 224. Plan of Union of 1801, 48; abrogation of, 37. Plans of Union and Correspond., &c. 49, 235, 236. Pleadings, abstract of, 20. Plumer, testim. of Dr. Wm. S. 194. Potts, testim. of Stacy G. 168. Presbytery, how formed, &c. 23. Preston, argument of Mr. 276; on points of evidence, 61, 84, 85, 92. Process, forms of, 28, 29, 30, 31. Protests, 38, 45, 47, 48, 157. Q. Quo Warranto, writ of, 9, 10, 11. Sergeant, argument of Mr. 509; on point of evidence, 97. Session, church, how formed, «fec. 155. Squier, testim. of Rev. Miles P. 70. Statistical Tables, form of, &c. 156. Suits, brought by Mr. Squier, Mr. Brown, and Mr. Hay, record of, 200, 201. Symington, testim. of Alex. 203. Synod, how formed, &c. 23. T. Tarr, testim. of Elihu D. 213. Testimony, for Relators, 20, 211; for Re- spend ents, 155, 221. Trustees, manner of choosing, 22 ; election of (1837) 45; election of Relators, 83. Twitchell, testim. of Jerome, 181. W. Wetmore, testim. of Rev. Oliver, 121. White, testim. of Ambrose, 125. Rev. Nathan G. 175. Wilson, testim. of Rev. Dr. Samuel B. 171, 174. Wilson, testim. of Samuel P. 177. WiUiam, 188. Wood, argument of Mr. 397; on points of evidence, 59, 85, 95. Worrell, testim. of Charles F. 208. THE END.