You can judge only by the actual vote, whether the question was lawfully carried; and if any confidence is to be placed in human testimony; if there is faith in those whose sacred character we have all been taught to venerate, you must believe that a large majority voted in the affirmative. But mark, there was no division called for. The Old-school party chose to consider the whole proceeding a disorder and a rebellion. They wished to put the Assembly itself at the feet of the Moderator of the preceding year. Where was there one who called for a division-the only orderly method of testing the majority, when there exists a doubt of the manner in which a question has been decided? No man objected at the time. Even if the question was not reversed, all the members of the Old-school, excepting those who were making a noise, assented by their silence they acquiesced, and suffered the motion to be carried. But, further, in point of fact, the question was reversed. They, the defeated party, heard it reversed, and uttered a few scattering noes. They I knew that they were the defeated party, and were silent: they sat, as one of the witnesses has told you, in mute amazement. But as soon as the New-school had gone off with a proclamation of the adjournment, they began to recover the use of their senses, and to cast about for some means of relief. They begin to ask, "Didn't some ladies in the gallery vote? Didn't some of the commissioners from the exscinded Presbyteries vote?" Suppose they did vote: I do not care. If a majority of those entitled to vote, and who actually voted, voted in the affirmative, the motion was lawfully carried a few ayes or noes from persons not members could not invalidate the whole proceeding. They were the defeated party, and felt that they were; but affecting to believe that they were really triumphant, they made use of such charitable expressions as that given in evidence: "Whom God wishes to destroy, he first makes mad." Their acts show that they felt themselves defeated. They immediately began to look about for circumstances that would excuse their not voting, and invalidate the vote of their opponents, like the Sabines, who, when all human means had failed, imagined that they saw Castor and Pollux coming to their assistance. Dr. Beecher, they were told, had uttered an aye which might have been heard across Washington Square; and Mr. Duffield who was not accustomed to carry a cane, had struck his cane upon the seat, and exclaimed, "That was done according to law, as slick as could be." These things are better calculated to excite laughter than to increase our respect for those who gravely urge them. They were all phantoms of the imagination-mere apparitions. None of you, gentlemen, can for a moment believe in such spectres. It was a time of great excitement, and it is not wonderful that the senses of some should have been deceived; that one person should have fancied that Mr. Duffield carried a cane, which he had never carried before, and has not carried since; and that he used language which certainly never came from his lips. These things show that our opponents are conscious of defeat.

We, gentlemen, have not entered into any devious paths. The directness and simplicity of all our movements differed entirely from the quirks and quibbles of our opponents about points of order. They say, “We called you to order; the Moderator of the last year is the germinating root of the new Assembly, and presides sui juris in its organization. You can't form a house without his assistance: of this perhaps you have

not been advised by your learned counsel. You must observe the old law which provides that each Moderator shall read a certain set of rules to his successor, on declaring him elected," and so forth. But we were not skilled in parliamentary manœuvres. With directness of purpose, and in the simplicity of our hearts, we went forward—we are not ashamed to say it we went forward to effect a legal organization. This directness of proceeding, this very want of skill, as awkwardness sometimes foils the most expert swordsman, was perhaps the cause of our success. Powerless and defenceless as to all human means, we were sustained and borne onward by that power which is usually manifested in the hour of man's most deplorable weakness.

Gentleman, I have now gone through with the remarks which I have thought it proper to make in this case. It is not necessary that I should further try your patience by stopping to consider the various minor points which it presents. There is nothing at all in the mystical hammer, about which so much has been said. The old officers, I have shown you, were lawfully displaced; an adjournment was lawfully voted; we proceeded to the First Church, and all the commissioners were invited to attend; our doors were always open, and every one that chose remained a member of the General Assembly. We proceeded in a legal manner to the election of trustees, and those trustees are the relators.

I hope sincerely hope, that the end of this proceeding will be peace: such is the fervent desire and prayer of my clients. They wish that the two portions of the General Assembly, now separated, may again come together that union, harmony, and love may again prevail. That losing sight of all sinister objects, and no more breathing the spirit of discord and war, as brethren we may be joined together in heavenly communion. That none may hereafter come up to the Assemblies of the Church, with any mental reservation, any secret design to expel a portion of their fellows; that each may be greeted with the kiss of peace, and the Christian salutation, "Is it well with thee my brother?"

If unfortunately I have been bitten by the angrier part of the spirit of this controversy, and have spoken a single word harshly or unkindly, those who know me must know, that it has not been an intentional offence.

276

MR. PRESTON'S ARGUMENT.

May it please your Honour-Gentlemen of the Jury:-It is a personal misfortune to me, that I come to the performance of my part in this case, exhausted by forty-eight hours of severe indisposition, and labouring under great debility. I would beg the indulgence of the court and jury, did I not feel that, if I have any strength remaining, I should expend that, before trespassing further upon your patience, which must already be well nigh exhausted. I regret this as a personal misfortune, merely, not as likely to affect, much less to endanger the cause of my clients; for I may say, with all candour, that after having heard everything which has hitherto been urged by our opponents, I feel convinced, that the complete vindication of those whom we represent will require from us but a very little expenditure of either zeal or talent. Unquestionably, the whole of this proceeding has been conducted, on the part of our learned friends on the opposite side, with signal ability. We all must have been both entertained and instructed by the luminous and able opening of the honourable gentleman, to whom on Saturday, and today, we have listened. But, notwithstanding the ability and learning which he has brought to the aid of his cause, and nowithstanding the accidental increase of my own incapacity, I do not feel a whit daunted: I am still unshaken in my confidence, that your verdict will be in favour of the defendants, and will restore to the Presbyterian Church that peace, which, without such a verdict, it is vain to expect.

The learned counsel have, perhaps, in nothing else, so clearly illustrated their ability and zeal, as in the general course which they have pursued in the opening of their case, the development of their testimony, and the disposition of their argument. They have devoted the greatest length of time to the proceedings of the Assembly of 1837: upon these they have dwelt with the greatest stress and urgency. In the opening of the case to the jury, these occupied two-thirds, and in the exhibition of testimony, three-fourths of the time; and of the learned gentleman's argument, from four to five hours-the whole of Saturday-were devoted to this part of the case, and to the remaining portion he has given but the two hours, which he has consumed this morning. Yet by his own declaration, forced from him by the necessity of the case, just as he was concluding his argument on Saturday, he admitted, that as yet he had been occupied with preliminaries alone, promising that to-day he would come to the merits of the subject. According, then to his own calculation, the preliminaries of the case are to its real merits, as five to two. While entertained, amused, and instructed, by perhaps the longest exordium that ever adorned an argument, we looked with great anxiety to the importance and extent of what was to follow. But we have found the whole speech little more than a preliminary-that on which the counsel has chiefly relied is something anterior to the case. The structure that he has reared is all portico: in vain we look for the substantial fabric. Feeling

that it is not my duty to imitate the learned gentleman, I shall not consume your time in a long exordium, or by distant approaches to the subject. To-day, I shall direct your attention to nothing but its real merits. And if now I were about to discuss it for the first time, I should feel exonerated from saying a single word in reply to the voluminous argument, which has been founded on the proceedings of the Assembly of 1837, feeling confident, that they could have no bearing upon your decision in regard to the merits of the case. But others having thought differently, at an earlier stage of this cause we picked up the gauntlet thrown down by our opponents, and promised to vindicate those proceedings. We shall, therefore, advert to them hereafter, though not until we have disposed of the more important matters, on which, as we still believe, the final adjudication of the court and jury must depend-the proceedings of 1838. I will take up the subject where the honourable gentleman left off, deferring to my peroration all that has furnished matter for his protracted exordium, His plan of proceeding has reminded me of some able general, who after heaping up piles of dust which the wind drove directly in the enemy's face, commenced his attack under cover of the cloud. But I think that the dust has by this time been blown away, and that we shall be able to examine clearly the true merits of the case.

It must be apparent, gentlemen, to you all, that the counsel for the relators have entirely failed to designate, in any part of this proceeding, in the whole of their voluminous testimony and argument, a single distinct point, on which, if established, they can rest their case, unless it be embraced in a proposition which I shall here state to you, and which it is very important you should bear in mind. They have not been able to advance any other distinct proposition, or certainly they would have done it. Indeed the learned gentleman who has preceded me was forced to acknowledge, that this was their only ground, and, with submission to the Court, I take upon myself the responsibility of telling you, that it is the true point on which the whole case depends. It is all that you are called to try: the issue is joined upon it, and on it must you decide by your verdict. This, may it please your Honour, is the proposition-the only one advanced by the opposite counsel: that by intendment of law and the rules of parliamentary order, the party whom we represent voted with the other party, or, by silence, acquiesced in their proceedings. Here is the whole ease: every thing else that has been urged is but auxiliary and ancillary to this. There has been a waste of all the testimony that does not support this point. Wit, argument, and eloquence have failed to illustrate any other proposition on which they can pretend to claim a verdict, than that by intendment of law the Old-school voted with the New. It is for no mere forensic parade that I tell you, that I have not been able to ascertain what the learned counsel would be at, if it be not this. And I would say emphatically, that this is a question more of law than of fact; that you are called upon to decide, in the exercise of your function as jurors, matters of fact, indeed, but these mixed up with most important principles of jurisprudence. You are to determine, whether in the Assembly of 1838, our silence was, by intendment of law and of parliamentary rules, an acquiescence in the revolutionary proceedings of the New-school party; for if it was not, they cannot ask a verdict at your hands. To establish this sole proposition is both the beginning and end of their case.

Before I proceed to examine minutely the different points of law and fact upon which this proposition depends, I would endeavour to present a general view of the attitude in which the respective parties to this proceeding stand before the court and jury. It will be of great consequence, I think, that you should carry along with you a clear understanding of their relative position.

In the course of the remarks which I have before made, I endeavoured to illustrate the attitude of these parties for purposes and with results, which I shall not again detail at large; but even in regard to the points thus presented, it seems necessary that I should yet say a word. These Relators have not asserted, that our Assembly of 1838 was not the true General Assembly: if they had, we should have demurred to their suggestion. It is not their business to impugn and to vituperate our proceedings. We are a mere nonentity, and do not, from the necessity of the case-ex officio-stand up for the acts of the Assembly of 1837 or 1838. It is a fundamental error, to suppose that we are bound to vindicate either. Our duty is merely to contend that the relators have not been legally appointed, that they have no rights to establish in this court. I may be considered as attorney for the Princeton Seminary: we say that that institution shall not be used and managed by the relators; that they have no just claim to it, and that we choose to retain possession of its funds. We deny that theirs was the true General Assembly.

The first general ground which we take, and I say it with no asperity of feeling, is, that the management of those sacred charities, which the pious people of the Presbyterian Church have confided to our hands, shall not be seized upon, and forced from us by men claiming authority, against the evidence of the clearest facts, by a mere intendment of law. The learned counsel have distinctly placed their claim upon that ground, for they freely admit that in 1838, a decided majority of the representatives of the Church met in the body that held its sessions in the house in Ranstead Court. They say that because we sat mute, though we refused to give countenance to the proceedings of the New-school party, regarding them as a disorder and an outrage, we surrendered our rights to them; and they now come into court, and seek to establish, by the verdict of a jury, in spite of the notorious fact, under cover of a mere technicality of law, that they have superseded us. They ask you to make the minority, those who took advantage of their brethren by a legal artifice, trustees of the beneficence of the whole Presbyterian Church. In the outset we tell these gentlemen, that we shall avail ourselves of every means which the law puts within our power, in a contest with men who rest their whole claim upon an intendment of law, and assert in direct contradiction of all the evidence of facts, that the majority of the General Assembly of 1838 agreed to measures, which they never agreed to-measures which they have always denounced in the bitterness of their hearts. Doubtless, gentlemen of the jury, every one of you has been somewhat conversant with legal proceedings, but I venture to say, that you have never before seen any litigant come into court, and boldly declare, "I claim a verdict against the notorious facts of the case, against the clearly expressed intention of the parties to the transaction upon which the jury is to decide. By a trick I have supplanted my opponents. I know that they understood the transaction in one way, but, by a quibble, I can make you understand it