of the Old-school wished to hear, debate and vote, instead of attempting to put down Mr. Cleaveland, Dr. Beman, and Dr. Fisher, they should have endeavoured to hear, and should have claimed the privilege of having opportunity to act. If this had been denied them, there might now be some reason for the objection urged; but they did not make the demand, and therefore cannot say that our proceedings were unlawful and void, because the opportunity was not granted.

Gentlemen, I shall bring my argument to a close, after a single word in reply to the remarks made in regard to the other suits that have been commenced, which it is said ought to have been tried instead of this. Those are but private suits, and if individuals who felt themselves aggrieved, have brought them, to recover their individual rights, we have nothing to do with that. This proceeding involves directly the great question on which depends the settlement of the entire controversy. We go for the whole matter in dispute: we say that we are the true and constitutional General Assembly of the Presbyterian Church in the United States-the Church as it existed at the commencement of the session of the Assembly of 1837. We organized ourselves in 1838 upon that principle. Now the question for you to decide is, whether the whole Church, such as it was at the commencement of the session of 1837, and every part of it, are still entitled to the right of being fully represented in the Assembly. The other side contend that they are not; that the inhabitants of a certain large district do not belong to the United States at all, so far forth as Presbyterianism is concerned. That great question could be tried only in this way. Was the appointment of trustees, by a body purporting to be composed of the commissioners to the Assembly from the entire Church-the Church such as it was in 1835, '36, and until a certain period of the sessions of the Assembly of 1837, valid; or was it invalid, and were those parts of the Church exscinded in 1837 lawfully cut off? This suit, I say, embraces the entire question. Suppose one of those instituted by an individual had been tried-then the same cry would have been raised-why did we not bring up the entire subject, the whole question, at once? One of the counsel has told us that a mandamus might have been issued, or an action of trover commenced-that either of these would have been sufficient to decide the matter. I should like him to tell me how an action of trover could lie in this case. I believe it could not. A mandamus might indeed be issued, but it could not have restored these members the year they were excluded: before the question could be determined, the Assembly would have been dissolved, and a new one called; and it does not appear that the same men were elected as commissioners to the Assembly of 1838. What then could a mandamus do? In the case of any office of such a short duration, a mandamus cannot reach the difficulty. Our only effectual remedy was the organization of a lawful Assembly, and the appointment of the relators as trustees. We intended no personal injury to Dr. Green, though his personal claims have been so largely brought before you. Those claims certainly ought not to be allowed to make any impression upon your feelings. This is the whole question-and you ought to keep it distinctly in view: Is the true General Assembly composed of delegates from the entire Church, as it stood before the excision, or of delegates from those parts of it only, which the Old-school choose to consider in connexion with them? If we are right,

the organization brings in all parties. It leaves the Old-school just where they stood before-Dr. Green just where he stood-all of them secure in their ecclesiastical rights, as members of their respective judicatories, and as entitled to a representation in the Assembly. In the temporal office of which Dr. Green will in that case be deprived, there is nothing, which, if indeed it might not better be committed to lay hand, he, at least, can covet, at his advanced period of life. But our organization brings both him and Dr. Barnes into the same situation as before the excision. I desire that this great question should now be settled, that we may see whether these inferior and subordinate institutions, civil or ecclesiastical, may wantonly trample under foot the most sacred rights-whether one portion of the members of such an institution may exclude another portion-may cut off their brethren, and strip them of their dearest privileges, without notice, and without a hearing. And when I remember that I stand in the State of Pennsylvania, the citizens of which are distinguished by their respect for good order, while its laws are wise and equitable; when I know that I address an impartial and intelligent jury, a judge learned in the law, and firm to apply its principles, I can have no hesitation as to the character of your decision.

On the conclusion of Mr. Wood's argument, the usual time for the court to adjourn not having arrived, Judge Rogers signified his readiness to charge the jury immediately. One of the jurymen, however, being anxious to go home, on account of the sickness of a member of his family, his Honour consented to an adjournment, and announced that he would deliver the charge next morning.

Court adjourned.

461

TUESDAY MORNING, MARCH 26th.-10 O'CLOCK.

JUDGE ROGERS' CHARGE.

In the course of my remarks, gentlemen, so far as lies in my power, I shall instruct you positively, clearly, and directly, upon the different points of law involved in this case. My observations will be brief, and discarding all collateral matter, I shall direct your attention to the very points which I think material. If I err in my instructions to you, by a resort to a higher tribunal, the error may be corrected. I now request your careful attention.

Before the year 1758, the Presbyterian Churches in this country, were under the care of two separate Synods, and their respective Presbyteries: the Synod of New York and the Synod of Philadelphia.

In the year 1758, these Synods were united, and were called the "Synod of New York and Philadelphia." This continued until the year 1788, when the General Assembly was formed. The Synod was then divided into four Synods, the Synods of New York and New Jersey, Philadelphia, Virginia, and the Carolinas; of these four Synods the General Assembly was constituted.

In 1803 the Synod of Albany was erected. This Synod has been from time to time sub-divided, and the Synods of Genesee, Geneva, and Utica, have been formed.

The Synod of Pittsburg has been also erected, out of which the Synod of the Western Reserve has been formed.

These constitute the four exscinded Synods, viz., the Synods of Gene-. see, Geneva, Utica, and the Western Reserve.

The General Assembly was constituted by every Presbytery at their last stated meeting, preceding the meeting of the General Assembly, deputing to the General Assembly commissioners in certain specific proportions.

The Westminster Confession of Faith is part of the constitution of the Church. The constitution could not be altered, unless two-thirds of the Presbyteries under the care of the General Assembly, prepared alterations or amendments, and such alterations or amendments were agreed to by the General Assembly.

The form of government was amended in 1821. The General Assembly now consists of an "equal delegation of bishops and elders from each Presbytery in certain proportions.'

The judicatories of the Church consist of the Session, of the Presbyteries, of Synods, and the General Assembly.

The church-session consists of the pastor, or pastors, and ruling elders of a particular congregation. A Presbytery, of all the ministers and one ruling elder from each congregation within a certain district. A Synod is a convention of bishops and elders, including at least three PresbyteAnd the General Assembly, of an equal delegation of bishops and elders, from each Presbytery, in the following proportions, viz. each

ries.

Presbytery consisting of not more than twenty-four ministers, sends one minister and one elder; and each Presbytery consisting of more than twenty-four ministers, sends two ministers and two elders; and in the like proportion for every twenty-four ministers in any Presbytery. The delegates so appointed are styled commissioners to the General Assembly. The General Assembly is the highest judicatory of the Presbyterian Church. It represents, in one body, all the particular churches of this denomination of Christians.

In relation to this body, the most important undoubtedly are the various Presbyteries; for, as was before said, the General Assembly consists of an equal delegation of bishops and elders from each of the Presbyteries. If the Presbyteries are destroyed, the General Assembly falls, as a matter of course, as there would no longer be any constituent bodies in existence, from which delegates could be sent to the General Assembly. The Presbyteries are essential features in the form of government in another particular, for before any overtures or regulations proposed by the General Assembly, to be established as constitutional rules, can be obligatory on the churches, it is necessary to transmit them to all the Presbyteries, and to receive the returns of at least a majority of them in writing, approving thereof.

A Synod, as has been before observed, is a convention of bishops and elders within a district, including at least three Presbyteries. The Synods have a supervisory power over Presbyteries, but unlike Presbyteries, as such they are not essential to the existence of the General Assembly. If every Synod in the United States were exscinded and destroyed, still the General Assembly would remain as the highest tribunal in the Church. In this particular there is a vital difference between Presbyteries and Synods. The only connexion between the General Assembly and the Synods is, that the former has a supervisory power over the latter.

Having thus given you an account of such parts of the Form of Church government as may, in some aspects of the cause, be material, I shall now call your attention to the matter in issue.

This proceeding is what is called a "Quo Warranto." It is issued by the Commonwealth, at the suggestion of James Todd and others, against Ashbel Green and others, to show by what authority they claim to exercise the office of Trustees of the General Assembly of the Presbyterian Church in the United States of America. I must here remark, that it is not only an appropriate, but the best method of trying the issue in this cause.

It is admitted, that until the 24th of May, 1838, the respondents were the rightful trustees; but it is contended by the relators, that on that day, the 24th of May, 1838, in pursuance of the act of incorporation, the General Assembly of the Presbyterian Church changed one third of the trustees, by the election of the relators in the place and stead of the respondents.

The 28th March, 1799, the Legislature of Pennsylvania declared Ashbel Green and seventeen others, (naming them,) a body politic, and corporate, by the name and style of Trustees of the General Assembly of the Presbyterian Church in the United States of America.

The sixth section provides that the corporation shall not, at any time, consist of more than eighteen persons; whereof, the General Assembly

may, at their discretion, as often as they shall hold their sessions in the State of Pennsylvania, change one third in such a manner as to the General Assembly may seem proper.

It was the intention of the Legislature, by the act of incorporation, to provide for the election of competent persons, who, as an incorporated body, might with more ease, and in a better manner, manage the temporal affairs of the Church. It is only in this aspect that we have cognizance of the case.

In this country, for the mutual advantage of church and state, we have wisely separated the ecclesiastical from the civil power. The court has as little inclination as authority to interfere with the church and its government, farther than may be necessary for its protection and security. It is only as it bears upon the corporation, which is the creature of the civil power, that we have any right to determine the validity, or to construe the acts and resolutions of the General Assembly. It is, however, sufficient for us, gentlemen, to know that in this case we have that right.

Although neither the members of the General Assembly, as such, nor the General Assembly itself, are individually or aggregately members of the corporation, yet the Assembly has power, from time to time, as they may deem proper, to change the trustees, and to give special instructions for their government. They stand in the relation of electors, and have been properly denominated in the argument, quasi corporate. The trustees only are the corporation by express words of the act of the Assembly.

It

Unhappily, differences have arisen in the church, (the nature of which it is not necessary for us to inquire into,) which have caused a division of its members into two parties, called and known as the Old and New Schools. These appellations we may adopt for the sake of designating the respective parties, the existence of which will have an important bearing on some of the questions involved in this important cause. gives a key to conduct, which it would be otherwise difficult to explain. The division continued to increase in strength and virulence until the session of 1837, when certain decisive measures, which will be hereafter stated, were taken by the General Assembly, which at this time was under the control of members, who sympathize, (as the phrase is,) with the principles of the Old-school.

At an early period the Presbyterian Church, at their own suggestion, formed unions with cognate churches, that is, with churches whose faith, principles and practice, assimilated with their own, and between whom there was thought to be no essential difference in doctrine.

On this principle a plan of union and correspondence was adopted by the Assembly in 1792, with the General Association of Connecticut, with Vermont in 1803, with that of New Hampshire in 1810, with Massachusetts in 1811, with the Northern Associate Presbytery of Albany in 1802, and with the Reformed Dutch Church, and the Associate Reformed Church in 1798.

These conventions, as is stated, originated in measures adopted by the General Assembly in 1790 and 1791. The delegates from each of the associated churches not only sat and deliberated with each other, but also acted and voted by virtue of the express terms of the union.

In further pursuance of the settled policy of the Church to extend its