JAM 201 
 
 sec 
 
s 
 
 SPEECH 
 
 y 
 
 REV. SAMUEL G. WINCHESTER, 
 
 IN DEFENCE OF THE 
 
 ACT OF THE SYNOD OF PHILADELPHIA, 
 
 IN THE CASE OF THE 
 
 ASSEMBLY'S SECOND PRESBYTERY 
 
 OF PHILADELPHIA, 
 
 Delivered in the General Assembly, May, 1834 
 
 PHILADELPHIA; 
 
 WM. S. MARTIEN, PRINTER, GEORGE STREET. 
 
 1834. 
 
Philadelphia, May 29, 1834. 
 
 At a meeting of a number of individuals, members of the Synod of 
 Philadelphia, held on Thursday, May 29th, 1834, the Rev. James 
 Magraw, D.D. was appointed Chairman, and Rev. David M'Kinney, 
 was appointed Secretary. On motion it was 
 
 Resolved^ That Rev. James Magraw, D.D. and Rev. Jas. C. Wat- 
 son, be appointed a committee to wait upon the Rev. Samuel G. 
 Winchester, and request of him a copy of the Speech delivered by 
 him before the General Assembly of 1834, in the case of the " Ap- 
 peal and complaint of the Second Presbytery of Philadelphia," against 
 the Synod of Philadelphia, for the purpose of publication in any form 
 which may be deemed most expedient. 
 
 JAMES, MAGRAW, Chairman. 
 
 David M'Kinney, Secretary. 
 
 In compliance with the above request, the following draft of the 
 speech alluded to, as far as it can be recollected, (it having been de- 
 livered extemporaneously) is submitted to those interested in the 
 subject. 
 
 S. G.WINCHESTER. 
 
SPEECH. 
 
 Moderator, — Before entering fully into the merits of this case, 
 permit me to notice a remark made by the last speaker, in relation to 
 the act of the Presbytery of Philadelphia, by which, but one ministe- 
 rial and one lay delegate are commissioned to this Assembly. It was 
 said that by the act of Synod appealed from, that Presbytery was en- 
 titled to a larger delegation on this floor, but by sending up their pre- 
 sent number, that Presbytery has declared its own belief in the uncon- 
 stitutionality of the Synodical act. But, Sir, by a reference to the 
 minute of Presbytery appended to the commission of their delegates, it 
 will appear that the right to an increased number, is expressly claimed, 
 but the exercise of it waived from motives of prudence and peace. 
 
 The Presbytery were unwilling that so grave and important a subject 
 as that now before you, should be decided on a prelimmary question. 
 
 Sir, had the Presbytery insisted on the exercise of their right, this 
 weighty subject, with all its difficulties, would have met you on the 
 threshhold ; and your proceedings would have commenced in the 
 midst of agitation and excitement. It was with a view to peace and 
 order. Sir, that the Presbytery adopted the course which is now at- 
 tempted to be construed to its disadvantage. 
 
 The question before the court is brought up by appeal and complaint. 
 
 To the jurisdiction of this court over the subject, in its present form, 
 and as thus brought up, I enter a solemn plea. Not that I would now 
 have the question decided on this issue, but as the merits of the case 
 have been gone into at large by the complainants, I would urge this 
 plea as an argument for dismissing the appeal and complaint. The 
 act of Synod complained of, consists of three parts. 1 . The reception 
 of the so called Second Presbytery of Philadelphia, as a constituent 
 member of Synod, agreeably to the order of the Assembly of 1832, by 
 which that Presbytery is attached to the Synod of Philadelphia. 2. 
 The Union of that Presbytery with the Presbytery of Philadelphia, in 
 virtue of the power of Synods to unite and divide Presbyteries. 3. 
 The division of the Presbytery thus constituted by the union, in vir- 
 tue of the same Synodical prerogative. The act of Synod, though 
 consisting of these three distincts parts, is nevertheless one, and is so 
 regarded in the appeal and complaint. Against such an act no ap- 
 peal nor complaint can constitutionally lie. Our ecclesiastical judi- 
 catories are of a complex character, like the Senate of the United States. 
 At one time, and for specified purposes, they are legislative bodies ; 
 at other times, and for other purposes, they are judicial bodies. This 
 distinction is recognised throughout the Constitution of our Church. 
 And nowhere does that Constitution sanction the interference of one 
 character with the other. On the contrary, when a judicatory is about 
 2 
 
to iransRCt judicial business, there is a transition of the body from its 
 legislative to its judicial character; of this transition the Moderator is 
 required to give due notice, and to enjoin on the members to recol- 
 lect and regard their high character, as judges of a court of Jesus 
 Christ. (See "General Rules for Judicatoru s." R. 39.) Of this 
 transition on the present occasion, you, Sir, have more than once noti- 
 fied this Court. 
 
 We contend that it is only from the decisions of a judicatory sitting 
 as a court, for Judicial business, that appeals and complaints can con- 
 stitutionally be entertained ; and that from the acts of judicatories in 
 their legislative capacity, no appeal nor complaint can constitutionally 
 lie. 
 
 That this is the correct interpretation of our constitution will appear if 
 we examine the nature of the remedy by which redress is sought in the 
 present instance. You have before you an appeal and complaint. 
 1. We will notice first, the remedy by appeal. It may be proper to re- 
 mark in this place that the sections on appeals and complaints come 
 under the head of " discipline," as will appear by a reference to the 
 book. The division, union, and erection of Presbyteries are provid- 
 ed for under the head of " Form of Governmenl.'''' Now it is a ques- 
 tion for your consideration, whether a judicatory can constitutionally 
 resort to the " discipline" of the church, for the purpose of erecting, 
 dividing and uniting Presbyteries. In noticing the remedy by appeal, 
 I would call your attention — First, to the nature of appeals. Secondly, 
 to the privilege of appeals. 
 
 1. The nature of appeals. " An appeal is the removal of a cause 
 already decided, from an inferior to a superior judicatory, by a party ag- 
 grieved." — Book of Discipline, Chap- VII. Sec. III., § I. The word 
 " cause" is here used technically, and therefore is ajudicial matter, and 
 contemplates a judicial issue. Again, § IV., " Appeals may be either 
 from a part of the proceedings of a judicatory, or/rom a defective sen- 
 tence." A sentence is that from which appeals are to be taken. This 
 too is a technical word, and shows that the proceedings alluded to are 
 judicial proceedings. Hence the first step in conducting the appeal, is 
 to read the sentence appealed from, together with the testimony in the 
 case. From this it is manifest that a. judicial sentence, not a legis- 
 lative act, is the only legitimate matter of appeal. This will more 
 fully appear to any one who will attentively read the whole of the 
 third section of Chapter VII. It speaks of " a party aggrieved," " a 
 regular trial," " refusal of reasonable indulgence to a party on trial," 
 " hurrying a decision before the testimony is fully taken," " declining 
 to receive important testimony," " prejudice in the case." These 
 are stated to be proper grounds of appeal. When an appeal is taken 
 up, the records of the inferior judicatory in the case, "including all 
 the testimony and reasons of their decision," must be read. This 
 same article also speaks of a "judgment pronounced," "remitting the 
 cause," " a new trial," " original parties." The nature of the sentence 
 from which an appeal is contemplated by this article, is such as 
 
lighter sentence, in which latter case, all further proceeding in the 
 cause is stayed by an appeal till it be finally issued. 
 
 2. In regard to the privilege of appeals, it is only necessary to ob- 
 serve that it belongs only to an original party. 
 
 "All persons who have submitted to a regular trial in an inferior, 
 may appeal to a higher judicatory." — Chap. VII., Sec. III. § TI. " An 
 appeal shall in no case be entered except by one of the original par- 
 ties:'—^ XVII. 
 
 Now the questions pertinently arise : 1. Was the act of Synod 
 appealed from, k judicial decision? Was the Synod constituted as a 
 court for judicial business? Was such a transition from its legislative 
 character necessary or constitutional, in order to pass the act appeal- 
 ed from? Was the reception of the Second Presbytery, its union 
 with the First, or the subsequent division of the Presbytery of Phila- 
 delphia, a judicial sentence pronounced against the appellant Presby- 
 tery ? 2, Was the Second Presbytery " a party at the bar" of Synod? 
 If so, where is the proof of their citation and arraignment, in the re- 
 cords of the Synod ? What were the charges tabled against the accused ? 
 What was the testimony on which the Synod grounded their decision? 
 The Judicial Committee, in reporting this case to the House, have ne- 
 glected to perform a very material duty, if this be indeed judicial 
 business. They have not reported the order in which the testimony 
 shall be read : and the court itself has erred in not adhering to the 
 Book which requires the testimony to be read. (See ch. VII. sec. Ill § 
 VII.) If the Second Presbytery were the one party, who were the 
 other at the bar of the Synod? If the Synod itself were a party, how 
 does it appear that one of the parties is at the same time the judge in 
 the case ? Is it competent to a Synod to sit in judgment on its own 
 case ? If you regard the Synod as a party in this case, you will 
 have some difficulty in issuing it agreeably to the rules of of the Book. 
 In the ninth paragraph of the Section on Appeals, a distinction is made 
 between " original parties" and the "inferior judicatory." But in 
 this case the distinction is lost sight of; a circumstance which the 
 Book never contemplated. Who then were the parties before the 
 Synod? There were no parties : and therefore there could be no ap- 
 peal. But if there had been parties before the Synod, it is manifest 
 that the Second Presbytery of Philadelphia could not have been one 
 of them. The Second Presbytery was not a constituent member of 
 the Synod, until they were made such by the act of reception, and 
 therefore could not have been a party to any proceeding, had previ- 
 ous to their reception. And if the appeal be heard, on the ground 
 that the Second Presbytery was a member of Synod before such act of 
 reception, it will be a prejudgment of the case. For if that Presby- 
 tery were a member, she was made such by the act of the Assembly. 
 This the Synod have denied, and here is the real question on which 
 the parties are at issue. But, if it be contended that the Second Pres- 
 bytery was made a component part of Synod by the act of Assembly 
 of 1832, I wish it to be distinctly kept in mind by this court, as I 
 shall hereafter advert to it again. Is it pretended, that being received 
 
by the Synod as a Presbytery, they were competent to appeal ? We 
 reply that their existence in the Synod as a Presbytery, was only mo- 
 mentary ; for the same act that received them, amalgamated them 
 with the Presbytery of Philadelphia, and of course destroyed their se- 
 parate Presbyterial existence. They do not appeal as individual 
 members of Synod, for such they undoubtedly were, after the act of 
 reception, but they appeal as a Presbytery. Besides, they do not in 
 fact appeal as members of Synod, made such by the act of Synod, but 
 as such by the act of the Assembly. Here again the same question, 
 involving the merits of the case, occurs. In no sense therefore can 
 the former Second Presbytery be considered a party to the transaction 
 from which they have appealed, and if not a party, they can not appear 
 before this court as appellants. 
 
 I would farther observe in relation to the privilege of appeals, that 
 the party appealing in this case, has no constitutional existence, 
 and cannot therefore be recognised by this court. The appellants 
 come before you not as individuals, but as a Presbytery. We contend 
 that the appellants as a Presbytery had no existence at the time the 
 appeal was taken, and were therefore incompetent to any Presbyte- 
 rial act. That Presbytery was amalgamated with the Presbytery of 
 Philadelphia, and its separate existence thereby destroyed. The 
 only argument that can be urged even with speciousnes against this 
 position, are, 1. That the former Second Presbytery had, at the time 
 of their appeal, no official notice of the act of Synod ; or, 2. That 
 the act of the Synod amalgamating them with the Presbytery of Phi- 
 ladelphia, was null and void. In reply to the first of these arguments, 
 we observe — 1. That it is true, no notice of the act, signed by an offi- 
 cer of the Synod, was published to the world. Yet two members of 
 that Presbytery, a minister and an elder, were present in Synod at 
 the time the act passed ; and the elder actually took his seat as a 
 member of Synod in virtue of the act, and participated in its subse- 
 quent deliberations. 2. If no official notice of the act of Synod was 
 ever given, how could that Presbytery make that act the ground of 
 Presbyterial proceeding? With what'propriety could they appeal from 
 a decision of which they had no official notice 1 If the plea of want 
 of notice be set up, it can be rebutted by their own records. And if 
 the plea be sustained, then there was no subject of appeal properly 
 and officially before that Presbytery. The very argument (namely, 
 having no notice) by which they would urge their right to appeal as 
 a Presbytery, does at the same time prove that there was before them 
 no subject of appeal. This [is their dilemma. But 2dly. Will it be 
 contended] that the act of Synod was null and void ? The acts of an 
 individual or of an association, may be divided into those that are 
 void, and those that are voidable. Those acts are void which the in- 
 dividual or association is incompetent to do. Those are voidable, 
 which a higher authority, having jurisdiction in the case, may regu- 
 larly reverse or repeal. Such acts being voidable, are in force till 
 reversed or repealed. The authority of the Synod in the case at bar, 
 must be determined by a reference to the Constitution, the only instru- 
 
ment which declares and defines the powers of judicatories ; this 
 point I shall examine presently. If the Constitution clearly grants to 
 Synod the power in question, their acts performed in the exercise of 
 such power, cannot be void, and I shall show, in another place, are 
 not even voidable by the General Assembly. The appellant Presby- 
 tery admit the constitutionality of the act of Synod. Its language is, 
 " It (the Synod) has merely adopted a constitutionalpretext for counter- 
 acting the repeatedly expressed judgment of the Assembly." Though 
 it be a pretext,tis it has been unadvisedly called, yet it is constitutional. 
 Again : " We think they have exercised their power of uniting 
 Presbyteries very injudiciously." See Appeal and Complaint, § III. 
 Their power in this matter is here fully admitted, but the wisdom of 
 its exercise, in the present case, called in question. The injudicious 
 exercise of power does not render void the acts that emanate from 
 that power. If those acts be unconstitutional, they are void and not 
 obligatory. But if they be constitutional, however unwise, injudi- 
 cious, inexpedient, or oppressive to a disaffected party, they are bind- 
 ing, until reversed by a competent authority. I repeat it, therefore, 
 that the Assembly cannot declare void the act of Synod, unless it can 
 be made to appear that the act itself is unconstitutional, and that 
 the Synod in passing it, transcended their powers. And whether the 
 appellants have made this^to appear, I appeal to the judgment and the 
 candour of this court, and of all thinking men who are, or who here- 
 after shall become acquainted with the merits of this case. But if 
 the constitutionality of the act of Synod is to be called in question, 
 by what judicatory is it to be done ? Will the former Second Pres- 
 bytery sit as a court of review and control, over the acts of the Synod, 
 and, ex cathedra, pronounce upon the constitutionality or unconstitu- 
 tionality of its proceedings? Is it competent to a Presbytery thus to 
 decide upon the acts of a higher judicatory ? What did we hear from 
 the same Presbytery when the Synod of Philadelphia was charged 
 with usurping similar authority, and judging of the legality of the 
 acts of the Assembly 1 We were very plainly told it was rebellion 
 and nullification, thus to erect the Synod into a reviewing court, 
 over the head of the General Assembly. The principle of subordi- 
 nation, and of course, the duty of submisson, is the same in both 
 cases. 
 
 But we are told that by the appeal, the separate Presby terial 
 existence of the appellants is continued, and still remains unaffected 
 by the act of Synod appealed from. But we have seen that no appeal 
 can lie against the act of Synod, it being a legislative act, not a judicial 
 decision. And that the appellant Presbytery was in no sense a party to 
 the transaction. A decision of these preliminary questions will be a de- 
 cision of the whole case. If any judicatory, or member of it, not a 
 party, can, by an appeal, render ineffectual the legislative acts of a 
 superior judicatory, then there is an end of all efficient legislation, 
 an end of all efficient administration of the government of our 
 church. 
 
 To contend that the appeal continues the existence of the Second 
 
Presbytery, is taking for granted the right of appeal in this case, 
 which is disputed. And it is always inconclusive and unfair, to argue 
 from matter of fact to matter of right. If this were a judicial case, 
 admitting of appeal, it could be clearly shown from the 15th paragraph 
 of the Section on Appeals, that this is one of those cases there mention- 
 ed, in which the appeal does not stay proceedings. It is there said that 
 if the sentence appealed from, be suspension, or excommunication 
 from church privileges, or deposition from office, it shall be consider- 
 ed as in force, until the appeal shall be issued. No such sentence 
 could have been pronounced in the case before you, because it was 
 not a judicial process. But we may reason analogically. Deposition 
 from office is the destruction, for the time being, of the ministerial 
 character of the person deposed. The act of Synod was the des- 
 truction of the separate Presbyterial existence of the appellants, and 
 was a legislative deposition of that Presbytery. And, Moderator, if 
 you will enfoice this legislative act under the operation of an ap- 
 peal, I claim for it so much of that operation as '■'■continues it in force 
 until the appeal shall be finally issued." I shall insist upon an 
 equal distribution of the advantages of the appeal to both parties. 
 And if you entertain this appeal, you must also regard the act ap- 
 pealed from " as in force until the appeal be issued." 
 
 In concluding what I have to say on the remedy by appeal, let me 
 call the attention of the Court to the decision which the Book autho- 
 rises in cases of appeals. The tenth paragraph of the Section on Ap- 
 peals reads thus — " The decision may be either to confirm or reverse, 
 in whole, or in part, the decision of the inferior judicatory ; or to re- 
 mit the cause, for the purpose of amending the record, should it ap- 
 pear to be incorrect or defective ; or for a new trial.'''' Here you have 
 the only kind of decision which the Book contemplates in the case of 
 an appeal. You are indeed asked to declare the act of Synod null and 
 void. But this you cannot do in issuing an appeal. Not a line in the 
 Constitution authorises you to make such a decision in issuing an ap- 
 peal. If the act appealed from, be unconstitutional, it cannot be ap- 
 pealed from. It is ipso facto null and void. The course to be pur- 
 sued in such a case, is to dismiss the appeal, take up the subject in 
 the constitutional way, hereafter to be pointed out, and declare the 
 act totally void. That this is a sound construction of the remedy by 
 appeal, farther appears from the eleventh paragraph of the section on 
 appeals, which reads thus, " If an appellant, after entering his appeal 
 to a superior judicatory, /aiZ to prosecute it, it shall be considered as 
 abandoned, and the sentence appealed from shall be final.'''' The lan- 
 guage is imperative, "s/ja// be final.'''' The General Assembly can 
 not alter nor reverse it. This is a right secured to inferior judica- 
 tories by the Constitution. But, Sir, shall the delinquency of a party or 
 his voluntary abandonment of an appeal, make "final,''^ and operative an 
 UNCONSTITUTIONAL ACT ? For example : suppose the act of Synod in this 
 case to have been unconstitutional, and the appellant Presbytery 
 had abandoned the appeal, would that act of Synod have been final 
 and operative, and beyond the reach of this Assembly ? If this is a 
 
legitimate subject of appeal, it would. The Book, a higher authority 
 than this Assembly, has explicitly declared that it would be ''finaV 
 If you declare the act of Synod to be void, you do thereby declare that 
 it was no proper subject of appeal. You cannot therefore, without a 
 gross and manifest violation of the Constitution, entertain the appeal, 
 and at the same time declare the act appealed from, to be null and 
 void. 
 
 II. I come now in the second place, Moderator, to notice the com- 
 plaint. As no appeal in this case can lie against the Synod, so nei- 
 ther can a complaint, especially where the Presbytery complaining, 
 has no existence. It is often said that any one may complain. This 
 may be true where the subject matter admits of complaint. What 
 says the book? " Another method by which a cause which has been 
 decided by an inferior judicatory, maybe carried before a superior, is 
 by complaint." " The cases in which complaint is proper and advi- 
 sable, are such as the following, viz. The judgment of an inferior 
 judicatory may be favourable to the only party who has been placed 
 at their bar; or the judgment in question may do no wrong to any in- 
 dividual ; or the party who is aggrieved by it may decline the trouble 
 of conducting an appeal. In any of these cases no appeal is to be ex- 
 pected. And yet the judgment may appear to some of the members 
 of the judicatory, to be contrary to the constitution of the church, inju- 
 rious to the interests of religion, and calculated to degrade the char- 
 acter of those who have pronounced it. In this case the minority 
 have not only a right to record, in the minutes of the judicatory, their 
 dissent from this judgment, or their protest against it, but they have 
 also a right to complain to the superior judicatory." (Chap. VII., 
 Sect. IV., §111.) 
 
 From the foregoing it appears — 1. That the decision of which com- 
 plaint can be made, is the decision of a cause, a word used in the 
 book, technically. This further appears from the expression " party 
 who has been placed at the bar." A judicial decision, therefore, is 
 the proper subject of complaint. 2. There can be no complaint ad- 
 missable, except in such cases as will admit of appeal. It is true, the 
 party at the bar will not appeal, if the decision be in his favour, and 
 in such a case other members of the judicatory may complain ; but 
 this arises from the character of the decision, not from the nature of 
 the case. The nature of the case is such as to admit of appeal if the 
 decision be against the party at the bar, and therefore let the decision 
 be as it may, the right of complaint remains. 
 
 It may appear to some of the members of the court, that although no 
 appeal in this case can constitutionally lie, yet a complaint may. 
 This impression may have been made by the very general phraseolo- 
 gy of the second paragraph of the section on complaints. But a care- 
 ful perusal of the whole section will remove that impression. 
 
 We should not detach a paragraph from its context, and interpret 
 it, in its isolated posture, without reference to the connection on 
 which it depends. We do not thus interpret the sacred volume. Nor 
 
10 
 
 should we so interpret any connected treatise. This section like that 
 on appeals, evidently contcmplcLtes judicial process. 
 
 It also speaks of " a judgment" and " a party placed at the bar." 
 It is but another sort of judicial process, unattended by some of the 
 difficulties of appeals. It is " another method" of trying " a cause." 
 By what art of construction or interpretation, these articles and this 
 language can be made to refer to legislative acts, I am unable to dis- 
 cover. 
 
 In speaking of the remedy by appeal, I argued first from the nature, 
 and secondly from the privilege of appeal. Now as to the nature of 
 these remedies, it is the same in both. They are modes o( judicial 
 process. But with regard to the privilege of prosecuting them, they 
 differ. The remedy by complaint consists in this difference. Only 
 " original parties" can prosecute an appeal. But it was foreseen that 
 cases might arise where " the party aggrieved would decline the 
 trouble of conducting an appeal," and yet the sentence be oppressive 
 and unjust, and " injurious to the interests of religion." What was 
 to be done ? Here was a difficulty. The sentence ought not to remain 
 in force. But how can it be remedied '/ The aggrieved party de- 
 clines conducting an appeal. No others can do it. This very diffi- 
 culty gave rise to the remedy by complaint, as the section itself states. 
 You at once see, that the difficulty does not relate at all to the nature of 
 the case, it is still a judicial process that is contemplated, but to the 
 privilege of conducting the remedy. While therefore it is true that 
 any person may complain, yet it is equally true that a complaint can 
 only lie when an appeal might lie, it the party aggrieved choose to 
 prosecute it. Complaints therefore, though they may be prosecuted 
 by any person, yet can only lie against a judicial decision. The same 
 arguments which show that the appeal in this case cannot lie, bear 
 with equal force upon the remedy by complaint. 
 
 It may now be asked, is there no way of redressing the evil com- 
 plained of by the Second Presbytery ? Is there no way of bringing 
 up this question constitutionally before the Assembly? I answer, 
 most certainly. And it is a wise provision, but of late very much 
 overlooked and neglected. In our Constitution it bears the name of 
 " General Review and Control.'''' (See Chap. VII. Sec. I.) " In review- 
 ing the records of an inferior judicatory, it is proper to examine, 
 First, whether the proceedings have been constitutional and regular: 
 Secondly, whether they have been wise, equitable, and for the edifica- 
 tion of the church : Thirdly, whether they have been correctly record- 
 ed." § II. "It may be that, in the course of review, cases of irre- 
 gular proceedings may be found so disreputable and injurious, as to 
 demand the interference of the superior judicatory. In cases of this 
 kind, the inferior judicatory may be required to review and correct 
 its proceedings." § III. " No judicial decision, however, of a judica- 
 tory shall be reversed, unless it be regularly brought up by appeal or 
 complaint." § IV. Here also it is clearly taught that appeals and 
 complaints are confined to judicial matters. These modes of process 
 were provided expressly for judicial cases, and were never intended 
 
11 
 
 to be otherwise applied. The manner in which irregular or uncon- 
 Btitutional legislative pioceedings are corrected as follows : "When 
 any important delinquency, or grossly unconstitutional proceedings 
 appear in the records of any judicatory, or are charged against them by 
 common fam,e, the first step to be taken by the judicatory next above, 
 is to cite the judicatory alleged to have offended, to appear at a spe- 
 cified time and place, and to show what it has done, or failed to do 
 in the case in question ; after which the judicatory thus issuing the 
 citation, shall remit the whole matter to the delinquent judicatory, 
 with a direction to take it up and dispose of it in a constitutional 
 manner, or stay all further proceedings in the case, as circumstances 
 may require." § VI. Here then is the only constitutional way in 
 which the proceedings of the Philadelphia Synod, in the case before 
 you, can be corrected or repealed. Is not here a special provision for 
 just such a case as is complained of by the former Second Presbytery 
 of Philadelphia? Let the Synod be cited before the Assembly, and 
 if its proceedings, according to § II. be " unconstitutional," or " irre- 
 gular," or "unwise," or " unjust," or " not for the edifiation of the 
 church," let it be censured, or directed to " take up the matter and 
 dispose of it in a constitutional manner." In this way should the 
 case have come before the Assembly in 1832. And it will be 
 strange indeed if, with this plain, wise, and constitutional method 
 before their eyes, the Assembly again issue this subject in any 
 other. It is made the duty of Synods " to take effectual care that 
 the Presbyteries observe the Constitution of the Church." Chap. XI. 
 § IV. A similar duty devolves upon the Assembly, in regard to the 
 Synods. These bodies are not to wait for appeals or complaints 
 against the unconstitutional proceedings of the inferior judicatories. 
 It is their duty to see that such proceedings be corrected, and that tho 
 Constitution be observed. But the reason why the method by appeal 
 and complaint is in most cases preferred, may consist in the wrongful 
 advantage which the complaining party derives from the exclusion of 
 the body complained of, from the house, and of course from a vote. 
 This is indeed a more sure method of gaining a point, but one most 
 unfavourable to justice, and to the rights of the body excluded. 
 
 If complaints against the legislative acts of our judicatories are to 
 be listened to, where will they end ? What strife and contention will 
 thereby be engendered, and continued, and encouraged? Besides, if 
 this practice is to continue, and be sanctioned by the highest judica- 
 tory, and if it be the privilege of any one, to complain of any act, 
 what inferior judicatory will decide on any question, when they know 
 that they will be excluded from a vote on the same question in a high- 
 er body? Will not the lower judicatories be thereby induced to " re- 
 fer" every question, and thus retain their right of deliberating and 
 voting in the higher judicatory? Suppose, for example, that the large 
 Synod of New-York should decide some point, or adopt some measure 
 of vast importance, and there should be but one troublesome member 
 always to be found in the opposition. By sanctioning the principle 
 contended for by the complainants in this case, you put it into the 
 3 
 
12 
 
 povVef of that one member to bring the whole matter before the Assem.* 
 bly, and exclude that Synod from a vote on its decision. This is a 
 question deeply affecting the rights of inferior judicatories, seriously 
 jeopardizing their efficiency, and loudly claiming their solemn con- 
 sideration. The Greneral Assembly, by encouraging and countenan- 
 cing this unconstitutional practice, are greatly increasing their own 
 business. Soon we shall hear of no appeals nor complaints, but every 
 question will be referred. The lower judicatories will decide none, 
 and thus become both useless and troublesome. Nolowerjudicatory will, 
 by deciding a question, voluntarily and certainly exclude itself from a 
 higher. This could not be expected. Such is the consequence of 
 departing from the Constitution, to " carry a point." Let us then get 
 back to the old land marks, and walk in the old paths ; and let our 
 highest judicatory magnanimously set us the example. 
 
 If, Moderator, it should appear to the court, from the argument now 
 urged, that this case is Coram non judice, not properly before them, 
 we ask that it may be dismissed. But as we do not propose to submit 
 the case at this stage of the argument, I will proceed to an examina- 
 tion of its merits more in detail, and I trust you will indulge me in 
 two preliminary remarks. First: I cannot discover the object which 
 the complainants have in view, in raking up old differences of rather 
 local interest than otherwise, and which we had hoped were forever 
 buried and forgotten. Why open afresh the wounds which once pro- 
 fusely bled, but which we had hoped were in some good degree heal- 
 ed ? Why call to mind, and press upon the attention of this court, 
 circumstances of distant date, but calculated to awaken prejudice and 
 angry feeling, so unfavourable to the impartial investigation of this 
 subject ? They have no other connection with the question before 
 you, than that which prejudice and ancient alienations create in the 
 minds of those who once were, or now are, excited by them. Is all this 
 done for effect ? 'i'he second remark I would make is, that the com- 
 plainants have dwelt chiefly and emphatically on the power of the As- 
 sembly, in regard to the erection of new Presbyteries. This point 
 was mainly pressed, as if it were the material one before you. Why 
 is the attention of the court thus diverted from the real question, and 
 directed with anxious and pressing importunity to one, not necessarily 
 involved in the question before you ? Is it because here they can shield 
 themselves under the decision of the Assembly of 1832 ? Is it in order 
 to draw from us an attack upon that decision, and upon the Assembly 
 that made it? Is it in order to change the real ground of controversy, 
 and to plant themselves upon more advantageous ground before the 
 Assembly, than the matter of their complaint will furnish? If they 
 could succeed in guiding our shafts, and directing them against the 
 Assembly, instead of themselves, they well know that it would be one 
 way to prejudice our cause and promote their own. There is a sort 
 of ecclesiastical pride, under the influence of which, one Assembly 
 feels itself bound to support the acts of another. To this pride, the 
 argument on the power of the Assembly to do what they did in 18S2, 
 may be intended to appeal. The artifice may become success- 
 
13 
 
 ful, and the influence of this pride may be felt m the final deci. 
 sion. But I trust that this court will not forget nor disregard its 
 high character and solemn responsibility as a court of Jesus Christ. 
 
 I had not intended to do more than glance at the power of the Asp 
 sembly to erect new Presbyteries, but I am disposed to follow them 
 in the course which they have seen it most to their advantage to take 
 in the argument, not neglecting however to bestow a full share of at- 
 tention upon the true question before the court. We are by no 
 means unwilling to meet the complainants on that argument, although 
 a decision on that question in 1832, may secure a similar one at this 
 time. Let it be remembered that votes are not arguments, nor ar^ 
 they answers to arguments. 
 
 It has been asserted more than once, that the Assembly have decid- 
 ed this question again and again. The allusion here was to the re- 
 commendation in 1831 — to the act of 1832, erecting the Second 
 Presbytery, and to the famous compromise in 1833. I attach but little 
 importance to this supposed threefold decision of the Assembly : but 
 as others may regard it as an important circumstance, it may be pro* 
 per to observe, that I have learned to distinguish between recomm,en' 
 dations and commarids. To recommend an act is one thing, to do the 
 act is quite another thing. As to the compromise, the very word im- 
 ports the opposite of a decision. It v^as a refusal to decide, so that 
 the act of 1832 stands alone. 
 
 Doubtless, the principal reason why the debate has taken this course, 
 namely, on the power of the Assembly to erect new presbyteries, ia 
 that the complainants ask you to continue their separate Presbyterial 
 existence, and also to continue that of the Synodical Second Presby- 
 tery north of Market street. Now, Sir, the power contended for is 
 necessary in order to do this, for it will amount to the erection of a 
 new Presbytery, as can easily be shown. It will be borne in mind 
 that the same act which erected the Presbytery north of Market street 
 destroyed the Assembly's Second Presbytery. If you declare that act 
 of Synod void, you thereby declare that no such Presbytery as the Sy^ 
 nodical Second was ever formed, for it could not have been erected by 
 an act that was null and void. To continue them as a Presbytery 
 therefore, is in fact to erect them into a Presbytery, which requires 
 the very power now claimed for you by the complainants. On the 
 other hand, if you decide that the act of Synod was valid, (and you 
 must decide between these two alternatives) you thereby declare the 
 Assembly's Second Presbytery to have been destroyed by its amal* 
 gamation with the first. And if you nevertheless continue it in 
 existence, it must be by re-erecting it, which also requires the 
 power contended for by the complainants. In order to grant 
 their request, therefore, it is very material that you possess and 
 exercise this disputed power. The complainants feel no desire 
 to have the Synodical Second Presbytery destroyed, but rather re- 
 joice with them in their happy riddance of a connection in which 
 they could not be happy. This, Moderator, is the indulgence of an oy 
 
14 
 
 grudge, and wholly unsuited to the gravity of a public document. I 
 exceedingly regret the expression of such feelings by the complainants. 
 1 am aware that attempts have been studiously made to cast odium on 
 the Presbytery of Philadelphia, and to represent us as a den of wild 
 beasts. All this may have its designed effect in determining the final 
 vote in this and other cases, where that Presbytery is deeply interest- 
 ed. But I could not rejoice in a conquest so achieved. The argu- 
 ment on the power of the Assembly to erect new Presbyteries within 
 the bounds of a Synod, has two parts. The first relates to the 
 powef itself; the second to the nature or description of Presby- 
 teries to be erected. In entering upon the examination of this ques- 
 tion I shall reveise the order, and take up the second branch 
 of the argument first. 1. Admitting, for the sake of argument, 
 that the Assembly has the power to erect new Presbyteries, does 
 the Constitution of our Church contemplate or recognise a Pres- 
 bytery formed upon the principle of " elective affinity," such as the 
 complaining Presbytery before you ? The name itself implies a differ- 
 ence of doctrine. It does not need a chemist to tell us the meaning 
 of the phrase, as applied to eclesiastical affairs. It can refer only 
 to doctrine, ecclesiastical polity, or personal attachment. The com- 
 plainants themselves have traced all our difficulties to difference in 
 doctrine. Dr. Ely, in detailing to the court a history of his grievan- 
 ces, clearly established this point. Mr. Patterson did the same, and 
 declared that the Assembly did sit in judgment upon the doctrines of 
 Mr. Barnes' Sermon, but neglected to inform us of their decision. 
 Now we take these complainants at their own word. I have always 
 maintained that our difficulties arose from, and are perpetuated by, 
 disagreement in doctrine. Here then, we have the secret spring 
 which first put in motion, and which continues to sustain, the odious 
 principle of "elective affinity." These differences were not minor, but 
 so great as to render it impossible for those who differed, to live and 
 act together in the same Presbytery. Both parties however professed 
 adherence to the public standards. But those who opposed their se- 
 paration, were never suspected nor charged with departures from 
 sound doctrine. A separation on this principle was refused by 
 the Synod now arraigned at your bar, because, in their judgment, 
 it was an obnoxious and ruinous principle, unknown to the Book, 
 and repugnant to its letter and spirit. But the Assembly granted their 
 request, and erected a Presbytery on the avowed ground of irreconcilable 
 difference. Both parties, however, were recognised as good Presbyte- 
 rians. Before this separation, the divisions among members, were com- 
 paratively unknown to the mass of the people. But when the Assembly 
 in its wisdom, arrayed the parties in different ecclesiastical organiza- 
 tions, the one over against the other, the world saw and wondered at 
 the posture in which we stood. The people accordingly took sides, 
 and wrangled among themselves. The professed object of the As- 
 sembly and of those who sought the separation, was peace and order 
 and the support of the Constitution ! Thus were divisions recognised , 
 
15 
 
 sanctioned and perpetuated, where there was professed unity of faith 
 and order! "Union, peace, and love," was the watchword, while 
 division, distraction and alienation were the things accomplished ! 
 Thus the Assembly declared their willingness and determination to 
 accommodate, with a separate organization, all those who so far differ- 
 ed from their brethren, as to render a separation desirable. They 
 thus held out inducements to any disaffected minority to seek and 
 promote divisions in the Church, on the principle of elective affinity. 
 Is this the Constitution of the Presbyterian Church ? "A Presbytery 
 consists of all the ministers, and one ruling elder from each congrega- 
 tion, within a certain district.'' (Form of Gov. ch. X. § II.) This " cer- 
 tain district" must be determined by geographical lines. The "dis- 
 trict" which contains an affinity Presbytery is so " uncertain^'' that it 
 is impossible ever to determine it. Its lines are intangible and un- 
 defineable, and exist in the mutable partialities and whims of its mem- 
 bers. It may extend its limits within the boundaries of every other 
 Presbytery in the Church. It may cover the whole earth, and yet be 
 a distinct and separate Presbytery. It may, so far as its bounds are 
 concerned, be as any distinct denomination, running into, and covering 
 the ground of, every other Presbytery, and be, at the same time, but an 
 integral part of the Church composed of those Presbyteries. It is im- 
 pei'ium in imperio. Suppose the Congress of the United States, for the 
 purpose of securing two additional votes in the Senate, should form an 
 elective affinity state, composed of a particular party, and having no geo- 
 graphical boundaries nor "local habitation," what relation would it 
 bear to the Constitution of the United States 1 And yet it would be no 
 greater anomaly than a Presbytery formed on the same principle. 
 The paragraph above quoted declares that a Presbytery shall " consist 
 o(all the ministers &;c. within a certain district." But the principle 
 contended for, completely destroys this portion of the Book ; for the 
 Presbytery of Philadelphia does not, according to the decision of the 
 Assembly of 1832, consist oi all, but of a portion only of the minis- 
 ters &c. within its district. The formation of such a Presbytery is a 
 manifest violation of the Constitution. If we must have divisions on 
 this principle, begin with the General Assembly, not with Presbyte- 
 ries, and the objection will be removed. The continuance of such a 
 Presbytery, is a standing contrariety to the spirit and letter of our Con- 
 stitution. There may be members of this court, who, while they 
 would sustain this Presbytery, nevertheless wish to be considered as 
 opposed to the principle of elective affinity. But this is out of the 
 question. A deliberate vote to new-create or continue such a Pres- 
 bytery, can never consist with a sincere opposition to the principle. 
 If it were a (\\ies\\onoi expediency and not o^ constitutionality , it might 
 be otherwise. But to believe in the unconstitutionality and ruinous 
 tendency of such a principle, and yet to vote for its application, is an 
 obvious contradiction, a clear absurdity, and is a reflection either upon 
 a man's common sense, or his common honesty. All thinking and 
 unprejudiced minds will so regard it. You cannot. Moderator, shift 
 the ground of controversy, from that of constitutionality to that of ex- 
 
16 
 
 pediency. You cannot bribe nor cheat the judgments of men. All 
 see and feel it to be a question of constitutionality. And as such, 
 you must meet, and decide it. No subterfuge nor sophistry can de- 
 coy the unbiassed mind into the belief, that this is a matter of mere ex- 
 pediency, about which men may safely differ. No, Moderator, to the 
 question of constitutionality, I repeat it, you must come, and there 
 stand or fall. 
 
 2. But I hasten to the argument on the power of the Assembly to 
 erect a Presbytery on any principle, within the bounds of a Synod. 
 On this point the Constitution is extremely plain and satisfactory to my 
 mind. 
 
 Tn the formation of that Constitution, the Presbyteries have made a 
 wise distribution of definite powers among the several judicatories. The 
 Constitution and the Assembly are creatures of the Presbyteries, who 
 may, by a competent majority, alter or abolish them at pleasure. The 
 Presbyteries are the source of constitutional authority and power. 
 
 The Assembly is a body of defined and delegated powers, subject 
 to restriction or enlargement by the Presbyteries. The Presbyteries 
 of the Assembly. As therefore its powers are defined and limited, 
 may interpret, modify, enlarge, diminish, or entirely destroy the powers 
 it cannot go beyond, but must act within them. The powers not ex- 
 pressly nor impliedly delegated to, are not possessed, by the Assembly 
 The Assembly is the recipient, not the fountain of power. It is an 
 agent with created trusts and acquired prerogatives, not an ultimate 
 Lord with inherent omnipotence. To Synods, and not to the Assem- 
 bly, have the Presbyteries granted the power in question. " The Synod 
 has power to erect new Presbyteries, and unite or divide those which 
 were before erected." Form of Gov. Ch. XI. § IV. In defining the 
 powers of the Assembly the Book says, " To the General Assembly 
 belongs the power of erecting new Synods, when it may be judged 
 necessary." 
 
 Here is a specific delegation of power. And it is a well known and 
 acknowleged rule, that the delegation of powers is always evidence 
 against the possession of those not delegated. The specification of 
 powers is evidence against the delegation of powers not specified. 
 Apply this rule to the case before you, and where is the authority 
 now claimed, vested in this body? Point out the paragraph giving 
 to this body the power now contended for. 
 
 The act of the General Assembly, therefore, erecting the affinity 
 Presbytery was unconstitutional. It was the exercise of usurped 
 power, as they themselves shall testify. The argument which was 
 urged on the floor of the Assembly, against the right of that body to 
 create the affinity Presbytery, was, not only that such a Presbytery 
 was unknown to our Book, but that no power to divide Presbyteries, 
 had ever been granted to the Assembly, or was specified among the 
 powers of the Assembly. The argument was, that a power not speci- 
 fied among those of the Assembly, but distinctly granted to the Synod, 
 did not belong to the Assembly. This construction of the Book was 
 overruled. But in another case> involving the same prmciple, the 
 
17 
 
 Assembly adopted this very construction, as the foHowing extract from 
 their Minutes will show. 
 
 The Committee to whom was referred Overture No. 14, viz : " Is a 
 minister of the Gospel in our connexion, ex officio, authorized to or- 
 ganize churches in the bounds of Presbyteries, without any j)revious 
 order of Presbytery, directing such organization?" made a report re- 
 commending the following resolution, which was adopted accordingly, 
 viz. 
 
 " Resolved, That except in frontier and destitute settlements, 
 wherei, by Form of Governments Chap. xv. Sect. 15., it is made a part 
 of the business of evangelists to organize churches; and except in 
 cases where it is exceedingly inconvenient to make application to a 
 Presbytery, for which provision is made in the act of Assembly of 
 1831, it is not the prerogative of a minister of the Gospel to organize 
 churches without the previous action of some Presbytery directing or 
 permitting it ; since in Form of Government, Chap. X. Sect. 8, to 
 form neio congregations, is envmerated among the jmwers of the Pres- 
 bytery ; and since in Chap. IV. of Bishops or Pastors, no mention is 
 made of any such poicer being lodged in the hands of an individual 
 minister. — {Minutes of Gen. Assem.for 1833, page 496.) 
 
 The argument urged against this construction is, that the General 
 Assembly, being the supreme judicatory, is invested with all the 
 powers of inferior judicatories. That the greater includes the less. 
 That if Presbyteries or Synods have such and such prerogatives, the 
 General Assembly, being superior to them, a fortiori, has the same 
 prerogatives and may ordain, install, &c., at pleasure. 
 
 But the above minute of the Assembly declares that those powers 
 which are not enumerated among those of one body, but are enume- 
 rated among those of another, are not possessed by the one, but are 
 possessed by the other. 
 
 The contrary is a strange position for Presbyterians to maintain. 
 The powers not delegated, nor necessarily implied in the delegation 
 of other powers, are retained by the Presbyteries. A power, to name 
 no others, thus retained, is that of altering or amending the constitu- 
 tion. Surely this is the exercise of supreme authority, and yet the 
 General Assembly have no such authoiity, but are required to send 
 down any proposed amendments or alterations to the Presbyteries, 
 and if the requisite number agree to the proposition, it becomes a 
 part of the Constitution, even if the Assembly are of a different mind. 
 And if no such concurrence be returned by the Presbyteries, it is not 
 in the power of the General Assembly to make the proposed altera- 
 tions. The Presbyteries may, if they see proper, annihilate the Ge- 
 neral Assembly, with all its boasted and assumed powers. It is de- 
 pendant for its existence on the will of the Presbyteries. This is the 
 doctrine, we apprehend, of sound Presbyterianism. 
 
 Again, the admitted right of Synods to unite and divide Presbyte- 
 ries, and the recent exercise of such authority by the Synod of Phi- 
 ladelphia, show plainly the absurdity of the Assembly's assuming such 
 a power. 
 
18 
 
 Such a power, if it belonged to the General Assembly, would be ad- 
 verse to, and destructive of, such a power in the'Synod : and would 
 present the ludicrous spectacle of a Synod, in the exercise of undis- 
 puted authority, undoing and reversing, virtually, the acts of the Gen- 
 eral Assembly, performed in the exercise of a similar power. The 
 General Assembly in May divides a Presbytery into two or more, and 
 the Synod, in the fall, or next week, if in Session, unites them again : 
 and yet both bodies acted constitutionally ! If this be the nature of 
 Presbyterian government and discipline, it is high time they were 
 both thrown to the moles and bats. It is impossible that there should 
 be such conflicting rights in the two bodies. If the Assembly have 
 the right to divide Presbyteries, it does not belong to the Synod to 
 unite them. And if the Synod have such a right as is admitted, 
 then the Assembly have no such right, which we believe is 
 the truth. It is a reflection upon the character of our Consti- 
 tution, and upon the wisdom and good sense of its framers, to assert 
 that it gives to inferior judicatories the power to annul, virtually, the 
 acts of a superior. A General Assembly and a Synod, alternately 
 undoing each other's acts from session to session, and both claiming 
 constitutional authority, is child's play, a mere farce, which exposes 
 our Constitution to contempt, and our church to derision and scorn. 
 
 It is manifest then that the power of Synods to unite and divide 
 Presbyteries is utterly inconsistent with, and subversive of, a similar 
 power in the General Assembly. It is a plain principle, that any 
 body, civil or ecclesiastical, has the right to exercise its constitution- 
 al powers over the legitimate subjects of its jurisdiction. Such an 
 exercise, in particular circumstances, may be unwise and injudicious, 
 but that such a right exists, cannot be questioned. Right and ob- 
 ligation are correlative terms. Every right supposes and creates a 
 corresponding obligation. If the Synod has the right to divide and 
 unite Presbyteries, there is an obligation resting upon the General 
 Assembly to respect the acts of a Synod performed in virtue of this 
 right. A right, without the privilege of exercising it, is no right. 
 It is but a shadow, without the substance. There can be no right 
 vested in any one body, adverse to the rights of another. It is a con- 
 tradiction in terms. The only questions then that seem pertinent to 
 the case in hand are, 1. Whether the Synod have the power and right 
 to divide and unite Presbyteries? 2. Whether such aright be not 
 inconsistent with a similar right in the General Assembly? The first 
 question admits of no dispute, as the book clearly settles it. On the 
 second question, let it be remarked, that the nature of this power 
 renders it inconsistent. It is a power to do and undo the same thing, 
 so that it is the mutual power to undo each other's doings, which is 
 utterly inconsistent with the subordinate character of a Synod. If, 
 then, the General Assembly have the power in question, it is a power 
 to abolish virtually, that of the Synod, or so to restrict its exercise, 
 as to render it no longer worth contending for. But let it not be for- 
 gotten that this power is expressly guaranteed to the Synod by the 
 Constitution; and to abolish or restrict it, is a contravention of the 
 
19 
 
 Constitution. It is so to modify the grant of power as to render it a 
 nullity. But we have seen that no modification of the Constitution 
 can be effected by the General Assembly. To do this is the exclu- 
 sive prerogative of the Presbyteries. But it may be urged that this 
 is only a construction of the Constitution, not a modification. True, 
 but it is such a construction as amounts to legislation. It is legisla- 
 tion eflccted under the name of construction. There is a wide differ- 
 ence between judicial interpretation and judicial legislation. When 
 a civil court so construes a statute, as to extend its operation to ob- 
 jects not within its purview, and not contemplated in its enactment, 
 it is called judicial legislation. 
 
 Presbyteries should be jealous of their rights, especially when a 
 mode of construction is adopted and applied, which tends to deprive 
 inferior judicatories of all power, and to make them mere cyphers. 
 Inferior judicatories should insist upon their rights, and upon a main- 
 tenance of the Constitution. This book is a mutual compact between 
 ministers and judicatories. We promise subjection to one another in 
 the Lord. This Book defines the method in which that subjection is to 
 be rendered. To exact subjection contrary to its provisions, is tyranny 
 and oppresssion. This Book is a mutual bond and pledge which each 
 has given to the other, and to violate its provisions, is to break faith 
 with those with whom you have covenanted. It is an invasion of 
 personal ministerial rights and privileges, and deserves to be sternly 
 rebuked and indignantly repelled. To violate this pledge is to ab- 
 solve us from the obligation created by the promise of subjection. 
 The Constitution of our church is the bond of its union, if this be en- 
 trenched upon, mutual confidence is destroyed, and that which pro- 
 fesses to unite us, becomes itself the subject of protracted and angry 
 discord. It is therefore with the utmost caution and delicacy, that 
 new and questionable constructions of the Constitution should be pres- 
 sed upon the churches. There is a point beyond which submission 
 to such adjudications becomes acquiescence in the guilt of misrule 
 and maladministration. To such a deprecated crisis we fear that our 
 church is hastening. This Assembly may indeed regard itself the 
 court of last resort, from which there can be no appeal to a higher. 
 But this circumstance can never justify a false construction of the 
 Constitution, nor lessen the criminality of that acquiescence, which 
 does violence to conscience, and contravenes primary obligation. I 
 am aware. Moderator, that this is a delicate subject, but not less im- 
 portant than delicate at this juncture in our ecclesiastical affairs. 
 
 Besides the Presbyteries who may ecclesiastically settle the inter- 
 pretation of their own instrument, the Constitution, there is another 
 tribunal to which an appeal may be forced, by the recklessness of 
 party spirit. Let us beware how we explain away the rights of one 
 another ; let us take warning by the results of similar invasions. 
 
 The supremacy of the General Assembly is relied on with much 
 
 confidence as an argument for the power now claimed. It is argued that, 
 
 being the supreme judicatory, it is invested with all the powers of 
 
 inferior judicatories. If the Assembly, and not the Presbyteries, 
 
 4 
 
20 
 
 Were the source of power, and had not expressly granted it away, 
 there might be some plausibility in this position. But this 
 is not the case. It is a body of limited and defined authority. 
 It has indeed a general supervision of the whole church, but 
 that supervision must be exercised agreeably to rule, and not in vio- 
 lation of express provisions. And I must express my surprise at the 
 confidence with which the complainants have relied upon the very 
 general phraseology employed in stating the radical principles of Pres- 
 byterianism, in a note to Chap. XII. of Form of Government. Such 
 reliance seems to betray confidence in their cause, when tried by the 
 express and defined provisions of the Book. If the fact that the 
 General Assembly is the supreme court, does, per se, invest it with 
 all the powers of the inferior judicatories, then any restriction of the 
 powers of the Assembly, by the Presbyteries would be inconsistent 
 with such supremacy. Let it be borne in mind that this superi- 
 ority of the General Assembly, was the principal argument relied on 
 by the Assembly in the assumption of the power in question. 
 Then it is not competent to the Presbyteries, to define and restrict 
 the powers of the supreme judicatory. But is it a fact that the Pres- 
 byteries, in their act of creating the General Assembly, did forever 
 divest themselves of the right to modify and restrict the powers of the 
 body thus created ? Did the act of the Presbyteries creating the su- 
 preme court, j9er se, invest that court with all the powers of the infe« 
 rior judicatoiies? Unquestionably not. For example: The Presby- 
 tery has power " to examine and license candidates for the holy min- 
 istry; to ordain, install, remove, and judge ministers." Chap. X. 
 § VIII. Now, does the supremacy of the General Assembly invest 
 it with these powers? Because it is the supreme judicatory, has it 
 therefore the powers above enumerated? Can the General Assembly 
 come into a Presbytery and remove a minister? Can it arraign and 
 judge a minister? What minister or Presbytery would submit to 
 such an exercise of usurped prerogative? To do these things, I con- 
 tend, belongs exclusively to Presbyteries. The matter may indeed 
 be brought up and issued in the Assembly by appeal or complaint, 
 but this is in virtue of a special provision to thu,t effect. Again, if 
 the mere fact of supremacy invests the Assembly with all the powers 
 of inferior judicatories, why has the Book gravely and particularly 
 entered into a specification of the powers of the Assembly? The 
 framers of the Constitution considered such a specification necessary, 
 because, unlike the modern interpreters of the Book, they did not 
 suppose that the fact of supremacy, per se, invested the Assembly 
 with all the powers of inferior judicatories, or was any evidence that 
 such powers were possessed. The specification of powers is evidence 
 against the delegation of powers not specified. The fact, then, that 
 the General Assembly is the supreme court, can have no weight in 
 the present controversy. 
 
 The analogy which is supposed by some to exist between the 
 government of our church and that of the United States, was also 
 relied on by the Assembly: but the truth is, no strict analogy does exist, 
 
21 
 
 and as far as it does exist, it is destructive to the claim set up by the 
 Assembly to the power of uniting and dividing Presbyteries. It is 
 admitted that Synods have this power, but it is denied that they have 
 it exclusively, because the General Assembly is the supreme judica- 
 tory. The Congress of the United States is the supreme Legislature 
 of this country. But does it therefore follow that the inferior Le- 
 gislatures have no exclusive and peculiar powers? The Constitution 
 of the United States, interpreted by the Supreme Court, is the law of 
 the whole land, and all legislatures and all bodies must observe it, 
 and none have the power to contravene it ; but does it therefore fol- 
 low that no bodies have exclusive and peculiar prerogatives? The 
 power of dividing counties belongs to State Legislatures. Has Con- 
 gress a similar power? If the Legislature divide one county into 
 two, can Congress unite them again? No. Then the power of the 
 Legislature in this matter is exclusive, although Congress be the 
 Supreme Legislature of the nation. This is a power which has never 
 been delegated to the General Government. And the fact of its 
 being the supreme Legislature, does not invest it with it. So 
 much then for the analogy of the two governments. 
 
 There is another argument against the constitutionality of the act 
 of the Assembly, arising from the regular operation of complaints. 
 It will be recollected that this matter was brought before the Assem- 
 bly by a complaint against the decision of Synod refusing to divide 
 the Presbytery of Philadelphia, and by a petition to the Assembly 
 to make such division. The Assembly sustained the complaint; and 
 according to the Book, the complainants, with their petition, were, 
 by the act of Assembly sustaining their complaint, again before the 
 Synod, in the same attitude in which they stood before the decision 
 of Synod was made. "If the complaint appears to be well founded, 
 it may have the effect, not only of drawing down censure upon those 
 who concurred in the judgment complained of, but also of reversing 
 that judgment, and •placing matters in the same situation in which 
 they were before judgment was pronounced.'''' See Chap, VII. Sec. 
 IV., V. The only effect of a complaint, when sustained, is to cen- 
 sure the body complained of, or to reverse their judgment ; not to 
 make for them a new judgment, but to place matters in the same situ- 
 ation in which they were before the judgment was pronounced. 
 Censure was not the effect of this complaint, for the complaint was 
 sustained expressly without casting censure on the Synod. The 
 effect of the complaint then was to place matters in their former si. 
 tuation before the Synod, or it had no effect. The act of the Assem- 
 bly, then, sustaining the complaint, referred the whole matter to the 
 Synod, and immediately afterwards took it out of the hands of the Synod 
 by acting on the petition. Now the point to which I aim in this ar- 
 gument is here. Pending the complaint, the Synod of Philadelphia 
 were out of the house. This was right. But when the complaint 
 was issued and the judgment of the Synod reversed, and matters 
 placed in their former state before the Synod, were they constitution, 
 ally debarred a seat, during the action of the Assembly on the peti. 
 
22 
 
 tion? This is the vital question. That the petition was tacked to 
 the complaint, and that the Assembly acted upon them simultaneously, 
 I am aware ; but was this course authorized by a single paragraph in 
 the Book of Discipline? And can a novel expedient wrest from 
 the Synod their constitutional rights? I might reinforce this 
 argument by the consideration that the petition on which the Assem- 
 bly acted was an original petition, and never before the Synod. 
 It was not the petition which the Synod rejected, but was materially 
 different. Besides two who had deceased before the meeting of the 
 Assembly, and one removed, seven other names are omitted in the pe- 
 tition on which the Assembly acted ; thus placing the Synod before 
 the Assembly, in the attitude of rejecting a petition which never was 
 before them, and which they never saw; and thus too exhibiting the As- 
 sembly as acting in the confused and contradictory character of a court 
 of appeals and of acourt of original jurisdiction, at the same time. It was 
 said, and urged with importunity, that the principle of both petitions 
 was the same, and therefore the change of names did not make it a dif- 
 ferent petition ; but this went upon the assumption, that the sole ground 
 on which the Synod rejected the petition, was the principle it involved. 
 This was not the case. They were influenced in their decision by 
 the fact, that ministers, churches and elders, M'ere included in the 
 petition, who had not been consulted, and who were known to be hos- 
 tile to the measure ; and that, if the petition were granted, these very 
 ministers, churches and elders would be a minority in a Presbytery 
 where they would be without influence. This was declared by a 
 member of the Synod, on the floor of the Assembly, to have been the 
 reason why he voted against the petition to the Synod. But now a 
 petition comes up before the Assembly with the whole ground of this 
 objection removed, and yet it is pressed upon the Assembly as the 
 very same petition which was rejected by the Synod — and which re- 
 jection is the ground of complaint — and thus branded as it was with 
 broad absurdity upon its very face, the Assembly sustained the com- 
 plaint/ The facts on which I ground this argument are admitted 
 facts. Now if the petition was before the Assembly under the com- 
 plaint, then the efl'ect of the complaint was not (o place matters be- 
 fore the Synod in their original situation, which is contrary to the 
 express words of the Book, and the action of the Assembly, conse- 
 quently, unconstitutional. And that the petition was considered be- 
 fore the Assembly, under the complaint, was repeatedly urged as a 
 reason for the action of the Assembly ; and is further shown by the 
 fact, that instead of placing matters before the Synod in their origi- 
 nal situation, they enjoined it upon Synod to receive the Prcs])ytery 
 thus set off": thus, not only reversing the judgment of the Synod, but 
 making a new judgment for them, and requiring them to sanction it, 
 and act under it, which is also contrary to the express words of the 
 Book. 
 
 But if the petition was not before the Assembly under the com- 
 plaint, on what ground was the whole Synod deprived of a vote on 
 the question, whether or not, the petition should be granted ? Here 
 
23 
 
 Is the dilemma. Viewed either way, it is unconstitutional. Were the 
 two questions purposely mixed up with the «?iew to bring upon the 
 petition the operation of a complaint, excluding the Synod from a 
 vote? This too, was a violation of the constitutional rights of a Synod. 
 Look at the measure in every light and it will be seen to be wholly 
 unconstitutional. 
 
 We come now, Moderator, to examine the cases cited by Dr, Ely, 
 as precedents, for the exercise of the power of erecting Presbyteries 
 within the bounds of a Synod. That the Assembly may erect new 
 Presbyteries where the jurisdiction of no Synod extends, we have 
 never questioned. That the Assembly may unite Presbyteries con- 
 nected with different Synods, is also admitted. But the case before 
 you is wholly a different one. Here the Synod of Philadelphia had 
 undisputed jurisdiction. Upon an examination of the cases cited by 
 the Doctor, not one will be found to be in point. The decision of no 
 one of them involved the principle now questioned. 
 
 The first case adduced was the division of the Presbytery of Car- 
 lisle, by the Assembly of 1794. In this case, one of the Presbyte- 
 ries constituted by the division, took in part of the Presbytery of 
 Redstone, which belonged to the Synod of Virginia ; whereas the 
 Presbytery of Carlisle belonged to the Synod of Philadelphia. (See 
 published Extracts from Minutes of 1794, p. 18.; also of 1802, p. 7.) 
 Thus it will be perceived, that it is a case where it was impossible 
 for either Synod to act, and where the power of the Assembly is ad- 
 mitted. And it is therefore a case widely different from that now be- 
 fore you. 
 
 The next case was the division of the Presbytery of Albany, by 
 the Assembly of 1802. This division took place under the old con- 
 stitution, in which no specific power to divide Presbyteries was dele- 
 gated to Synods. In the year 1820, certain amendments were sent 
 down to the Presbyteries for their adoption, one of which was that 
 of giving to Synods the power of dividing, uniting, and erecting Pres- 
 byteries. All the cases, therefore, of a prior date are irrelevant to 
 the present question. And, indeed, before the amendment now al- 
 luded to, the Assembly seemed^to question its own power in the 
 case, for a part of the report on the division of the Albany Presby- 
 tery, which was adopted by the Assembly, expressly forbids that divi- 
 sion ever to be cited as a precedent in any future Assembly, as the 
 MS. minutes will show. This prohibition is strangely disregarded 
 by the Doctor, who now presses it on this court as a precedent; espe- 
 cially, as he is so great a stickler for unqualified submission, and 
 passive obedience to the acts and orders of the Assembly. 
 
 The division of the Presbytery of Oneida in 1805, next cited by 
 the Doctor, also took place under the old Constitution and therefore 
 is not a case in point. 
 
 The next case was the constitution of the Presbytery of Chenango, 
 by the Assembly of 1826. This Presbytery was composed, when 
 constituted, of members, of no less than three different Synods, viz : 
 the Synods of Geneva, Albany, and New Jersey. (See Minutes for 
 
24 
 
 1826, pp. 21, 66, 68, 74, 76.) This was also a case where the Pres- 
 byteries concerned, were attached to different Synods, and therefore, 
 not a case in point. 
 
 Another case cited by the Doctor, was the erection of the Presby- 
 tery of Detroit by the Assembly of 1827. This Presbytery was 
 made to consist of churches from two different Synods. The 
 churches of Farmington and Potinac, belonged to the Synod of 
 Geneva, and the church of Detroit belonged to the Synod of the 
 Western Reserve. This also, was a case in which no Synod could 
 act, and in which the power of the Assembly is not doubted. 
 
 The last case mentioned by the Doctor, was the translation of a 
 church from one Presbytery to another, by the Assembly of 1827. 
 Here the Doctor contended, that if the Assembly could translate a 
 church from one Presbytery to another, much rather could they unite 
 and divide Presbyteries. But the Doctor took good care not to tell 
 you that these two Presbyteries belonged to different Synods. Look 
 at the Minute, p. 114. "The Committee of Overtures also re- 
 ported an application from the church of Danville, in the Presbytery 
 of Bath, in the Synod of Geneva, to be set off from said Presby- 
 tery, and annexed to the Presbytery of Ontario, in the Synod of 
 Genbssee. The above application was granted." Why did not the 
 Doctor read this minute to the court? Did he wish to deceive 
 them ? Did he not know it was a case not in point ? Are such 
 means to be used to gull this Assembly ? Does a good cause need 
 such expedients to sustain it? 
 
 In connection with the foregoing cases, where no one Synod had 
 jurisdiction, and where the Assembly, therefore, was alone compe- 
 tent to act, let us look at a case, not cited by the complainants, 
 where a Synod had full power to grant the petition preferred to the 
 Assembly. The case as briefly reported in the digest, is as follows : 
 " The Committee of Over tur^ laid before the Assembly (of 1808) 
 an application from the Presbytery of Huntingdon, for a division of 
 that Presbytery. Resolved, That the Presbytery make their applica- 
 tion to the Synod (of Philadelphia) to which they belong, being the 
 most proper judicature to decide the case." (See Digest, p. 44.) In 
 the foregoing cases we see that the Assembly acted where the Synod 
 could not, and that it refused to act where the Synod might ; thus 
 clearly settling the question, agreeably to the construction for which 
 we contend. 
 
 Thus it appears that every case, as cited by Dr. Ely, contradicts 
 the argument he has based upon them, and confirms Ihat which they 
 were designed to destroy. I will not say that the Doctor knew these 
 cases were not in point. I do not impeach his veracity. He has 
 entirely mistaken the real point before the court, and therefore did 
 not see the material discrepancy between his supposed precedents, 
 and the case at bar. 
 
 Moderator, I have thus attempted to follow the complainants in 
 the argument on the power of the Assembly to erect new Presbyte- 
 ries within the bounds of a Synod, although, as I before remarked, 
 
25 
 
 this is not the question now before the court. Admitting, for the sake 
 of argument, that the Assembly have this power, in what possible way 
 does it affect this case? You are not now asked to decide whether 
 the Assembly may unite and divide Presbyteries, but whether Synod 
 may not perform these acts. It is strictly a question as to the power 
 of Synod : and ought not to have been embarrassed by extraneous 
 difficulties, nor by irrelevant discussion. And this question has not 
 been even touched except by one of the complainants, and by him, 
 only touched. A stianger, ignorant of the real point in debate, 
 never could have conjectured from the argument of the complainants, 
 that the question before you was, had the Synod of Philadelphia 
 the right to do the thing now complained of by the Second Presby- 
 tery. Were the complainants afraid to grapple with this question, 
 or was it designedly passed over, without even a respectful notice, in 
 order that their arguments may be reserved for their reply, to which, 
 according to your adopted order, we are not at liberty to rejoin? 
 
 But let us hasten to the consideration of the Synodical act itself. 
 And in relation to it there are two points. 1. The expediency of it. 
 2. The constitutionality of it. 
 
 1. As to its expediency, that is a question which the Book refers 
 to the wisdom and discretion of the Synod itself. 2. As to the 
 right of Synod to do the act complained of, there are two questions 
 to be considered. 
 
 1. Does the Constitution give to Synod the power in question? 
 
 2. Can the Synod constitutionally exercise this power in opposition 
 to the judgment of the General Assembly clearly and previously ex- 
 pressed ? 
 
 j. On the first point we shall cite the Constitution, as suffi- 
 ciently explicit and satisfactory. " The Synod has power to receive 
 and issue all appeals, &c. &c.; to erect new Presbyteries, and 
 unite or divide those which were before erected ; generally to take 
 such order with respect to Presbyteries, sessions, and people under 
 their care, as may be in conformity with the word of God, and the 
 established rules, and which tend to promote the edification of the 
 church." See Form of Government, Chap. XI. § IV. Here we 
 conceive the power under consideration to be expressly granted to 
 the Synod. 
 
 2. On the second point, let it be observed that the power 
 thus granted is not restricted by any subsequent provisions, but 
 extends to the union and division of Presbyteries " which were 
 before erected," whether by the General Assembly or any other body 
 claiming a similar authority. In order to make the Book speak the 
 language of the complainants, it should have been added immediately 
 after the words " before erected," except where either or both of the 
 Presbyteries have been erected by the General Assembly, or except 
 where that body has expressed a contrary judgment. But the framers 
 of the Book never dreamed of that legislating construction which is 
 now advocated and applied. In giving to the Synod the power of 
 uniting, they never supposed that the Assembly possessed the power 
 
26 
 
 of dividing, or that their judgment could obstruct the exercise of 
 constitutional power by the Synod. 
 
 That the Synod cannot exercise this power in opposition to the 
 judgment of the Assembly, is a mere inference. If not, point out 
 the passage where the restriction of power is expressed. But be it 
 remembered that the delegation of power to the Synod is explicit 
 and undeniable. Now, it is a plain principle, that no inference or 
 implication, unless it be necessary and inevitable, can possibly affect 
 the clearly ascertained rights of an individual or a body. An ex- 
 press grant of power is never to be restricted by a mere inference. 
 Again, the delegation of this power to the Synod was not by the As- 
 sembly, but by the Presbyteries in their adoption of the Constitution. 
 And can the General Assembly restrict a power which they never 
 granted ? The General Assembly have no authority to grant to the 
 Synod such a power as is now in question, supposing the Synod did 
 not already possess it. And can the General Assembly restrict or 
 modify a power which they are not competent to grant? If the 
 General Assembly by the previous expression of their judgment in a 
 case, may debar the Synod from the exercise of a constitutional 
 power, then the Assembly may virtually set aside so much of the 
 Constitution as guarantees that power to the Synod. This is con- 
 solidation with a vengeance ! 
 
 The doctrine, then, which we oppose, is this — that the General As- 
 sembly, in the enumeration of whose powers that of uniting and 
 dividing Presbyteries is not even hinted at, may nevertheless at plea- 
 sure exercise it, without the possibility of being debarred, even by 
 the previously expressed judgment of a higher judicatory ; while the 
 Synod, to whom this power in so many words is expressly granted, 
 cannot exercise it, if the Assembly forbid it by a previous judgment. 
 And all this, be it remembered, is bare and bald inference. 
 
 The Constitution says to the Synod, you may divide and unite 
 Presbyteries before erected. The Assembly says, you shall not. 
 The Constitution gives the power, and the Assembly forbids its exer- 
 cise. Here then then is a Controversy between the Constitution and 
 the Assembly — between the instrument creating, and the body created. 
 The Book declares that the Assembly have no power to alter or 
 amend the Constitution, but it is inferred, that the Assembly may, 
 in a given instance, set aside the Constitution, and overrule its ex- 
 press provisions. 
 
 The only question then that it seems necessary to settle on this 
 point is, whether or not the Synod have the right in question : if 
 they have, it is plain that no other authority, inferior to that which 
 granted it, (viz : the Constitution) can possibly destroy or abridge it. 
 The contrary would be a contradiction in terms. 
 
 It is indeed asserted in so many words, that because the Assembly di- 
 vided the Presbytery of Philadelphia, therefore the Synod can never 
 unite them again. This i« going a step farther still. It is contending not 
 only that the Assembly has the power of dividing the Presbytery, but 
 that the Synod have no right ever to unite them again. "When a 
 
27 
 
 Synod divides a Presbytery, and whose right to do so is not ques- 
 tioned, that Synod may unite them again when it sees proper ; but 
 when the Assembly divides a Presbytery, whose right is not only 
 questioned, but denied, the Synod can never unite them ! From 
 this construction it would seem that the wrongfulness of the act, 
 makes it iireversible ! We had thought it quite sufficient for the 
 Assembly to claim the power of uniting and dividing Presbyteries, 
 but that it should push its claim so far as to deprive the Synod of a 
 similar power, when clearly and undeniably granted to it by the Con- 
 stitution, is preposterous. Are the acts of the Assembly like the 
 laws of the Medes and Persians? Is the affinity Presbytery, that pet 
 of the Assembly, that only begotten child, that offspring of unlawful 
 love ; is that Presbytery an independent, and immortal body, in the 
 bosom of the Synod ; yet beyond its control, and not subject to its 
 constitutional jurisdiction? I ask. Moderator, can the Assembly at- 
 tach to a Synod, and is a Synod bound to receive a Presbytery, which 
 it may not control, divide or destroy, as it may the other Presbyteries 
 within its bounds? What an anomaly in the Presbyterian church ! 
 
 But it is contended by the complainants, that the act of Synod 
 was void, either because of want of power in the Synod, or because 
 of the informality of the act. For you will notice that they regard 
 the act of Synod only as an ^^ attempt" to do the thing '■^designed." 
 "The Presbytery thus attempted to be annihilated," &c., is their lan- 
 guage. And the same idea is studiously held up throughout the 
 paper, and yet they have made this mere " attempt" and " design" 
 the subject matter of a grave and formal appeal! With one breath 
 they declare the act of Synod to be void, and a mere "attempt," and 
 with the next, contradict themselves, by acknowledging that there 
 was something done from which they appeal, and of which they com- 
 plain. They surely do not mean to mock and sport with the Assem- 
 bly, by complaining of an act that was not done, but only designed 
 and attempted. Why buckle on their armour and march forth to 
 fight a shadow. Carrying out the idea, that the act of Synod was 
 void, and therefore could not affect their Presbjterial existence, they 
 continued to perform Presbyterial acts. But was the act of Synod 
 void? That the Synod had the requisite power to act, we have al- 
 ready shown. Does the want of formal accuracy in the resolutions, 
 even admitting its existence, counteract or destroy their efficient 
 operation ? 
 
 The complainants themselves have answered this question by com- 
 plaining. This informality vitiates either the whole or a part only 
 of the action of the Synod. If the whole, then there is no ground 
 of complaint, for the Synod performed no act in the case. Their at- 
 tempt to act was an entire failure. To complain against an act is to 
 acknowledge its existence and vitality. For a complaint seeks a 
 shield against its operation. If this informality vitiates a part only 
 of the action of Synod, it must be that only which attempted a divi- 
 sion of the Presbytery constituted by the union of the First and 
 Second Presbyteries. But the complaint acknowledges this division 
 
28 
 
 by declaring, that "in consequence of this defect (using the informal 
 word 'divide') the Presbytery of Philadelphia must be held not yet 
 to exist in Presbyterial order." But if no division was really ef- 
 fected, because of informality, then the Presbytery of Philadelphia 
 does exist, as constituted by the union of the two. The informality 
 of the instrument might be said to render doubtful the existence of 
 the New Second Presbytery, but not the First. Besides, if only that 
 part of the action of Synod which contemplates the division be null 
 and void, the objection we are considering cannot effect the union 
 of the two Presbyteries, which therefore was not a nullity. The 
 validity of the union, and of course the annihilation of the former 
 Second Presbytery by that union, are resolved into the first question 
 as to the power of Synod, which we have already discussed. And 
 from this second difficulty which respects the validity of the division, 
 the complainants can derive no advantage. 
 
 The complainants say, " The united Presbytery of the foregoing 
 minute having been divided, and the continued existence of the for- 
 mer Presbytery of Philadelphia, not having been declared, some time 
 should have been named for the constitution of the Presbytery south 
 of Market street; and in consequence of this defect, the Presbytery 
 of Philadelphia must be held not yet to exist in Presbyterial order." 
 §VII. 
 
 This is a curious specimen of Presbyterial exposition. It is a com- 
 ment on the act of Synod to this effect. The Synod of Philadel- 
 phia in attempting to destroy the Presbyterial existence of the 
 former Second Presbytery of Philadelphia, though this was their de- 
 clared object, have nevertheless entirely missed the mark, and unwit- 
 tingly given a fatal blow to the old Mother, whom the Synod designed 
 to cherish and continue in existence. The official expression of the 
 above opinion by the former Second Presbytery, after the act of Sy- 
 nod, is a declaration of their own continued existence, while the 
 opinion thus expressed is, that the Presbytery of Philadelphia "no 
 longer exists in Presbyterial order." The intention of Synod is fully 
 admitted in the appeal and complaint. The appeal professes to be 
 against what the Synod attempted and designed to do. They appeal 
 " from so much of the above recited decision as was designed to 
 unite the Second Presbytery of Philadelphia with the Presbytery of 
 Philadelphia." You will here observe a singular dilemma in which 
 these appealing brethren are placed. They contend that either from 
 informality or want of power, or from both, the act of Synod was 
 void ; and yet that it was effectual in destroying the existence of the 
 Presbytery of Philadelphia. If the act of Synod was void, being 
 a mere " attempt" and " design," with what propriety could they 
 say that in consequence of it, " the Presbytery of Philadelphia must 
 be held not yet to exist in Presbyterial order?" 
 
 By dividing the Presbytery of Philadelphia, the Synod meant to set 
 off all those ministers and churches north of Market street, and to 
 constitute them a new Presbytery. And that the first Presbytery 
 should continue to exist, with the addition of all those south of said 
 
29 
 
 line, who belonged to the former Second Presbytery. Not one mem- 
 ber in Synod doubted for a moment what was the intention of 
 Synod. No one even suggested the difficulty now made. Is it for 
 a moment to be supposed, that the Synod would deliberately annihi- 
 late the Presbytery of Philadelphia without making Presbyterial pro- 
 vision for its members? And is it to be supposed, that when the 
 Synod added members to that Presbytery, they intended by that act, to 
 destroy its existence 1 Preposterous ! Again, the fact of the Sy- 
 nod's taking no order for the organization of the Old Presbytery, suf- 
 ficiently declares their meaning. If they had considered that Pres- 
 bytery to be newly created by their act of division, would they not 
 have taken order for its proper organization, as they did for the or- 
 ganization of the New Second Presbytery? Construe this remedial 
 act liberally, compare one part of it with another, and consult the 
 evident intention of the Synod, and that must be a strangely pervert- 
 ed mind, which can still regard the act of Synod a nullity, in whole, 
 or in part, because of informality. 
 
 As to the difficulty which some profess to feel in regard to the lo- 
 cation of some of the members of the Presbyteries, it is only neces- 
 saiy to observe that they have a residence somewhere. They are not 
 without t' a local habitation or a name." The line dividing the two 
 Presbyteries, extends " as far as necessary," that is, round the globe, 
 if it be " necessary." It is easily ascertained who 7'eside north and 
 who reside south of said line. 
 
 But if, for any cause, the act of Synod was void, and if this As- 
 sembly should so declare it, how can the Second Presbytery appear be- 
 fore your bar as a party with an appeal? If the act be void, then 
 that Presbytery was not a constituent member of Synod, or if it 
 were, it was made so by the act of Assembly in 1832. This is the point 
 I some time since promised to notice. The act of the Assembly is 
 very explicit : " JResoZrea, that said Second Presbytery of Philadelphia 
 is hereby declared to belong to the Synod of Philadelphia, and is at- 
 tached to the same as an integral part thereof." Minutes for 1832, 
 p. 322. From this it appears that in the judgment of the Assembly, 
 that Presbytery was in fact made a member of the Synod at that time, 
 and still continues such. If so, it has been in the Synod for two 
 years. But the complainants have told you, that their connexion with 
 the Synod was only momentary — that the same act which received, 
 amalgamated them. This is the burden of their complaint. The 
 Assembly will surely adhere to its own minute in the case. For it 
 is a material argument with the complainants, that the Assembly 
 should recognize and maintain is own acts. The Assembly must re- 
 gard that Presbytery as having been really connected with the Synod 
 from the date of its own minute. If so, the ground of complaint has no 
 existence, for instead of being in the Synod but for a moment, they have 
 been in it for two years. And pray. Moderator, how long must a 
 Presbytery be in connexion with a Synod before that Synod can ex- 
 ercise its authority in dividing it ? If two years are not sufficient, 
 how many are ? But if that Presbytery were not a member of Synod 
 
30 
 
 iiW received in the fall of 1833, by the act now complained of, hoWy 
 I ask again, can they appear as a party at your bar with an appeal 1 
 Besides, if they were not in connexion with the Synod till 1 833, it must 
 be in consequence of the refusal of the Synod to receive them in the 
 fall of 1832. But that refusal you have called nullification, and have 
 declared void, by still recognizing them on your minutes as in con- 
 nexion with that Synod. How do these things hang together? I 
 confess, Moderator, that this is a dilemma, from which the complain- 
 ants cannot be easily extricated. 
 
 We have heard much of nullification. But who, in the case before 
 you, are the nullifiers ? The Synod who have received the Second 
 Presbytery under the order of the Assembly, or the Second Presbytery 
 in resisting the acknowledged authority of the Synod? Must the 
 Constitution of the Church be made to bend to the will and wishes 
 of a party, and that party a minority in the Synod whose act is thus 
 resisted ? 
 
 The acknowledged constitutional authority of the Synod, in the 
 present instance, has been openly, avowedly, and perseveringly re- 
 sisted by the Second Presbytery, with a confident reliance upon the 
 countenance and support of this Assembly. Their act of nullifica- 
 tion, however, is attempted to be shielded, if not concealed, by an ap- 
 peal and complaint. By this appeal and complaint, they have volun- 
 tarily placed the matter sub judice before the supreme judica- 
 tory, but such is their confident hope of a favourable decision 
 by this body, that they ventured to act upon an anticipated de- 
 cision. They appealed to the Assembly and then proceeded to 
 decide their own appeal, by continuing to act as if the Synod 
 had passed no order on the subject. Thus taking the law into 
 their own hands, they have both presumed upon, and anticipated the 
 judgment of the Assembly in the case which they have gravely sub- 
 mitted to them. Is not that Presbytery at present acting just as if 
 the Assembly had decided in their favour ? 
 
 It is saying — " Gentlemen of the Assembly ! You may decide this 
 matter as you please. Your previous decisions in our case, have com- 
 mitted you to a favourable entertainment of our appeal at this time, 
 and we are therefore determined to act in accordance with what, in 
 our opinion, your decision ought to be." 
 
 The former Second Presbytery, since their dissolution by the ac- 
 knowledged constitutional authority, proceeded to ordain and install a 
 brother. They also received and licensed a candidate, who had been 
 dismissed from the Presbytery of Philadelphia to a Presbytery in Vir- 
 ginia. They have taken from a church session, over whom they have 
 no jurisdiction, and against their consent, the control of their own va- 
 cant pulpit, thus encroaching upon the jurisdiction and violating the 
 rights of the real Second Presbytery north of Market street, and also 
 virtually deposing that session without a hearing or a trial. 
 
 But a few hours since, and while the matter was actually under 
 discussion in this court, they met and performed Fresbyterial acts, 
 just as if their existence as a Presbytery were not a matter of grave 
 
31 
 
 debate in the highest court. And what is more, you were formally- 
 invited to attend and witness their proceedings. This, Sir, is like an 
 infatuated girl, who asks her father's consent to a proposed matrimonial 
 connection, and while he is deliberating on the matter, and making 
 up his mind, she invites him to witness the ceremony. Sir, it is as if 
 a criminal should be arraigned at the bar of a civil court on the charge 
 of murder, and while the jury are determining on a proper verdict in 
 the case, they are summoned to witness his execution. Sir, that 
 Presbytery have submitted to you the serious question, whether or no 
 they have any existence at all as a Presbytery, and before receiving 
 your answer, have asked you to witness their Presbyterial acts! 
 Delicacy, Moderator, if not a respect to the opinion of this court, 
 should have dictated a different course, and have induced them at 
 least, to await your answer with dignity and decorum. Sir, I must 
 regard such proceedings, either as a too confident reliance on the par- 
 tialities of this Assembly, and a too bold presumption upon your party 
 spirit, or as a practical disregard of whatever judgment you may ren- 
 der in the case. 
 
 Although these acts are wholly unconstitutional, irregular, oppres- 
 sive, and void as to authority, yet you must not be surprised if they be 
 urged before this court, as reasons for hearing and sustaining the ap- 
 peal and complaint. It will perhaps, be said with great earnestness — 
 " O do not sanction the proceedings of Synod, for if so, in what a pre- 
 dicament will you place some good brethren and churches?" Thus, 
 Sir, the very gaping, bleeding wounds, which have been inflicted upon 
 our suffering and trampled Constitution and discipline, will be urged 
 as reasons for not applying an efficient remedy, and raising it from the 
 dust of the earth. 
 
 But, Sir, it is hoped that the rashnes and indiscretion of excit- 
 ed brethren, will not be listened to by this court, as arguments in a 
 question, so vitally affecting the Constitution and character of our 
 church. 
 
 Moderator, of what does the Second Presbytery complain ? Is it 
 of ihe whole act of Synod, or of a part only ? At one time it is con- 
 tended by the complainants that the act of Synod must be regarded 
 as but one act, and at another time, that it must be regarded as a 
 series of separate acts. If the act be treated as one, then their re- 
 ception is a matter of complaint. They have, indeed, specified so 
 much of the act as unites them to the Presbytery of Philadelphia. 
 But if this were perfectly within the power of Synod, it cannot be the 
 subject matter of complaint, unless it can be shown to have been a 
 wrongful exercise of power. When the Assembly attached that Pres- 
 bytery to the Synod, it invested the Synod with the constitutional con- 
 trol of it. Of this the complainants seem to have been aware, when they 
 specify as the ground of complaint, that as a Presbytery they were not 
 consulted. On this point I observe, first, that inasmuch as the opin- 
 ion and feelings of that Presbytery on this subject were notorious, 
 and familiar to all, it would have been a mock procedure, a mere 
 sham consultation, had they been previously conferred with, in rela- 
 
32 
 
 tion to the measure. Besides, was the Presbytery of Philadelphia 
 consulted when they were divided by the Assembly? It is certainly 
 proper that there should be consultation, in ordinary cases, but when 
 by their published acts the views of the Second Presbytery are well 
 known, there is no occasion for such consultation, and no favourable 
 results could follow from it. The ground ot complaint, therefore, is a 
 mere quibble, and betrays the meagerness of the cause of which it is 
 a part. I observe, secondly, that if the Assembly sustain the com- 
 plaint on that ground, it is hoped for their own sakes, that they 
 will be consistent with themselves. I understand, that if the affi- 
 nity Presbytery be re-erected, an application will be made to you, 
 for the erection of an affinity Synod for its especial accommodation. 
 Consistency, as well as common justice, will require, that before the 
 request be granted, the Synod of Philadelphia be consulted on the 
 subject. We shall see, Moderator, and the world shall see, whether 
 you are disposed to dispense even handed justice, or whether, for 
 party purposes, you will blow hot and cold with the same breath. Do 
 not, I beseech you. Moderator, expose yourself to the indignant cen- 
 sure of the community, by doing for a spoiled child, a favourite of your 
 regards, the very thing for which you are about to condemn the Synod 
 of Philadelphia. " Consistency is a jewel." Do not give to the 
 world a just occasion to remark, that you have adopted the odious, 
 Jesuitical maxim — " the end sanctifies the means." Do not act un- 
 constitutionally for the sake of expediency, as you have been exhorted 
 to do. 
 
 It has been affirmed that the Synod refused to divide the Presbytery 
 of Philadelphia in any way. This is true. And Mr. Patterson has 
 stated to you that this was the ground of complaint in 1832. Sir, 
 when the doctrine of elective affinity was of doubtful popularity, the 
 argument for division was, exteiit of territory and the press of business. 
 But on the floor of Synod, a division on geographical principles was 
 strenuously opposed by those who argued for a division on the above 
 grounds. It was contended, that the Assembly had recommended a 
 division in such a way as would promote peace. But the Synod were 
 not allowed to judge of what mode of division vvould promote peace 
 within its own bounds. And the Assembly must be called in to 
 legislate for a Synod, with whose local interests and peculiar circum- 
 stances the great majority of the Assembly were perfectly ignorant. 
 And, Sir, did they effect such a division as lessened the " extent of 
 territory ?" Sir, have they not erected a Presbytery, whose limits, 
 if indeed it can be said to have any at all, are co-extensive with those 
 of the General Assembly? Sir, it is a new General Assembly, a new 
 and distinct denomination, that you have erected in our bosom. And 
 such a division is the only one to which the complainants would sub- 
 mit. They now tell you, by their complaint, that they will have no 
 other. They dictate to you as to the course you are to pursue in 
 their case. And if you refuse to listen to that dictation, you are 
 threatened with desertion. They say — 
 
 " If the whole Presbyterian Church, represented in the General 
 
33 
 
 Assembly, to which it is the peculiar privilege of the humblest indi- 
 vidual in any one of our Presbyterian congregations to bring his 
 cause, without contumacy, for ultimate decision, shall confirm the 
 doings of the Synod against us, we shall, like good Presbyterians, 
 submit to its decisions, without following the example of nullification 
 which has been set us by the Synod of Philadelphia, or shall respect- 
 fully withdraw ourselves from that extended, honourable, orthodox and 
 pious denomination of Christians to which we now belong." 
 
 They do indeed throw out this threat in the cautious form of an 
 alternative to submission. But if "submission to the Assembly, 
 right or wrong," be their motto, why hint at a withdrawal from your 
 connection? I regard this insinuation, Moderator, as bringing in an 
 extraneous influence, calculated, if not designed, to bias improperly 
 the minds of this court. It is throwing this house upon a balance, 
 and compelling them to decide between the propriety of sustaining 
 the Constitution, and the expediency of a measure which may drive 
 the complainants to a secession. But, Moderator, you need never 
 apprehend a secession from that quarter. The orthodox may be 
 driven, by ultra measures, to a secession. They, in all ages of the 
 church, have been the seceders. Errorists never secede, when they 
 can " divide and conquer." If the complainants, and those who sym- 
 bolize with them, are such lovers of peace, and do so sincerely desire 
 it, why do they not leave us, and cease to be the occasion, if not the 
 cause, of strife in our midst. Let them leave us, and the sword of 
 internal controversy will be sheathed, before the setting of to-mor- 
 row's sun. 
 
 Moderator, the Synod of Philadelphia adopted the measure now com- 
 plained of, as a measure of peace. It was sincerely believed by its 
 advocates that it would be so regarded by the church generally, and 
 that it would satisfy every reasonable and pacific mind in the aflinity 
 Presbytery. It was dictated by no party feelings. It was the only 
 alternative to a continued rejection of that Presbytery. Had it been 
 a party measure, you would have found a very different array of 
 names on both sides of the question. It was, indeed, in opposition 
 to the principle of elective aflSnity. This principle the Synod do 
 both " condemn and reprobate." And they have yet not learned to 
 act on the principles which they condemn in others. Should they 
 become imbued with the spirit of ^^ improvement,^'' I know not what 
 they might do hereafter. The Synod could not sanction the exist- 
 ence of such a Presbytery in their bosom. They believed it to be not 
 only at variance with, but destructive of, the Constitution. You are, 
 nevertheless, asked to continue it. You are asked again to sanction 
 and act upon this proscribed principle. Let those who condemn 
 this principle, and who will yet vote to sustain this Presbytery, jus- 
 tify their consistency, and reconcile their conduct, at the bar of pub- 
 lic judgment, of conscience, and of God. 
 
 Should you again erect that Presbytery, and leave it under the 
 control of Synod, the same disposition may be made of it next fall, 
 as that now complained of. The Constitution of the church gives 
 
34 
 
 to Synod this right, and you can neither destroy nor abridge it. 
 Besides, you will in that case, put the Third Presbyterian church of 
 this city, in that awkward predicament, in which it was placed by 
 the wisdom of the Assembly of 1832. The different sessions em- 
 braced in the New Presbytery, had their election to go with the New 
 or remain with the Old. That session have remained in connection 
 with the Old.* But should their pastor, Dr. Ely, vvho belongs to the 
 New Presbytery, wish to be separated from his present pastoral 
 charge, which Presbytery would be competent to dissolve the pastoral 
 relation? Here is a difficulty v/hich it becomes you to obviate. 
 
 We now leave the case with God and this court. On your deci- 
 sion much depends. On you devolves, at this crisis, a fearful respon- 
 sibility. Act in the fear of God, and in view of the judgment day. 
 For the effects of your vote in this case, will, 1 doubt not, be felt by 
 generations yet unborn. 
 
 * Dr. Ely contradicted this statement, and gave an explanation, in con- 
 nection with the record of his session in the case. But it can be proved that 
 not one member of his session (including the Doctor himself, up to the 
 time when he thought it politic to change his opinion) understood the act 
 of session read by him in the Assembly, in the sense in which he explained 
 it. The proof, apart from the individual opinion of each member, is fur- 
 nished by a subsequent sessional act, viz: the appointment of one of their 
 number to attend the meeting of the Old Presbytery. And if this appoint- 
 ment be not recorded in the session book, it may be accounted for, by the 
 fact, that Dr. Ely is both Moderator and Clerk of session. 'BnX.z. new explana- 
 tion is now given of the record of session, read in the Assembly, by which 
 it is made to speak what the session, as then constituted, never intended it 
 should mean. 
 
 While preparing this speech for the press, I addressed a very respectful 
 note to Dr. Ely, requesting him to favour me with a copy of the minute of 
 session read by him in the Assembly. My object was, to see if I had 
 misrepresented the case, and if so, to correct it in the printed speech. I 
 received the following reply — on which I make no other comment than this — 
 that whatever charges against me are insinuated in the note I indignantly 
 repel as false and slanderous. 
 
 »' The Rev. Mr. Winchester is respectfully informed, that those persons 
 who have endeavoured to sow dissension in the Third Presbyterian Church 
 in Philadelphia, will have the opportunity of reading the record of session, 
 for which he has inquired, in due time, 
 
 Ezra Stiles Ely. 
 Philadelphia, June 16, 1834."