trustees. This allegation the relators must sustain to your satisfaction, otherwise your verdict must be in favour of the respondents.

The respondents strenuously deny that the portion of brethren who assembled in the First Presbyterian Church, are the General Assembly. On this point, both parties, the relators and respondents, have put themselves upon the country-and you, gentlemen, are that country.

Let me now briefly call your attention to the relator's case. The Moderator, Dr. Elliott, proceeded to organize the house. The clerks, Mr. Krebs and Dr. McDowell, reported to the House the roll of members, omitting those who were not entitled to seats. Dr. Patton offered a resolution on the formation of the roll. This motion was declared by the Moderator to be out of order, also his appeal was declared to be out of order. Dr. Mason then moved that the names of the members from the Presbyteries within the exscinded Synods should be added to the roll. This motion was declared by the Moderator to be out of order. An appeal from that decision was demanded, which was also declared to be out of order. On motion of Mr. Cleaveland, the former Moderator was deposed for sufficient cause, and Dr. Beman was elected Moderator, and Mr. Gilbert and Dr. Mason were elected clerks. After organization, Dr. Fisher was elected Moderator, and Mr. Gilbert and Dr. Mason were elected clerks for the Assembly. The Assembly being thus organized by the appointment of officers, adjourned to meet forthwith at the lecture room of the First Presbyterian Church, and accordingly met in pursuance of the adjournment, and on the 24th of May, 1838, in due form, elected the relators trustees. This, gentlemen, is a summary of the plaintiff's case; and if the facts are as stated, your verdict should be rendered in favour of the relators.

The respondents deny that the portion of brethren who assembled in the First Presbyterian Church are the General Assembly.

Their objection, in addition to the points which have been already stated, is, that there was not a full and free expression of the opinion of the house.

They allege that the various motions for the appointment of Moderator and clerks, and for the adjournment, were not carried by a majority of the house.

It is hardly necessary to observe that spectators had no right to vote, nor had members not enrolled by the clerks, although entitled to seats a right to vote. But notwithstanding this, it is the opinion of the Court, that if, after deducting those who voted and were not entitled to vote, there was a clear majority in favour of several motions, this irregularity, or if you please, something worse, would not vitiate the organization. The presumption is, that none but qualified persons voted; but there is proof that some voted who were not enrolled, yet this of itself will not destroy the respondents' right of action. You, gentlemen, will in the first place, inquire whether there was a majority of affirmative voices of members entitled to vote.

If there was not, there is an end of the question and your verdict must be in favour of the respondents.

But if there was a majority, you will farther inquire whether the question on the several motions was reversed.

If they were not reversed, your verdict must be in favour of the

respondents; for in that case, it is very clear, the members had no opportunity of showing their dissent to several motions or propositions which were submitted to them.

These, gentlemen, are questions of fact for your decision. I will content myself with referring to the evidence and the arguments of the counsel, and at the same time observing to you that it is your duty to reconcile the testimony of your case, and with one other observation, that affirmative testimony is more to be relied on than negative testimony.

And here, gentlemen, I wish you distinctly to understand, that it is the majority of those who were entitled to vote, and who actually voted, that is to be counted on the various questions which were submitted to the house. I wish you also to understand, that it is the majority of members that had been enrolled, that must determine this question. When there is a quorum of members present, the Moderator can only notice those who actually vote, and not those who do not choose to exercise their privilege of voting. "Whenever," says Lord Mansfield, "electors are present, and don't vote at all, they virtually acquiesce in the election made by those who do."

And, with this principle, agrees one of the rules of the General Assembly itself, which must be familiar to every member.

Members (30th rule) ought not, without weighty reasons, to decline voting, as this practice might leave the decision of very interesting questions to a small proportion of the judicatory. Silent members, unless excused from voting, must be considered as acquiescing with the majority.

This is not only the doctrine of the common law, of the written law, as you have seen, but it is the doctrine of common sense: for without the benefit of this rule, it would be almost impossible, certainly very inconvenient, to transact business in a large deliberative assembly.

Of this rule, gentlemen, we have had very lately a most memorable instance. The fundamental principles of your government have been altered; a new constitution has been established by a plurality of votes; forty thousand electors, who deposited their votes for one, or other, of the candidates for governor, did not cast them at all on that most interesting and important of all questions. But, notwithstanding this, the amended constitution has been proclaimed by your executive, and recognised by your legislature, and by the people, as the supreme law of the land. This, gentlemen, has been stigmatised as a technical rule of law, a fiction and intendment in law. It is sufficient for us, gentlemen, that it is a rule of law. We must not be wiser than the law; for if we attempt this, we endanger every thing we hold dear-our life, our liberty, our property.

Nor, gentlemen, can we know any thing of any fancied equity, as contradistinguished from the law. The law is the equity of the case, and it must be so considered, under the most awful responsibility, by this court, and this jury. In my opinion, a court and jury can never be better employed, than when they are vindicating the safe and salutary principles of the common law.

But the respondents further object, that the design of the New-school brethren was not to organize a General Assembly according to the forms prescribed by the constitution, but that they intended, and it was so understood by them, to effect an ex-parte organization, with a view to a peaceable separation of the Church. If this was the intention, and was

so understood at the time, the house which assembled in the First Presbyterian Church, cannot be recognised as the General Assembly, competent to appoint trustees under the charter. Having chosen voluntarily to leave the Church, they can no longer be permitted to participate in its advantages and privileges. If a member, or a number of individuals, choose to abandon their church, they must at the same time be content to relinquish all its benefits.

But this is a question of fact, which you must decide. In this_part of the case, the burthen of proof is thrown on the respondents. They must satisfy you that such was the intention of the New-school party in organizing the house, and adjourning to the First Presbyterian Church. But, granting that the motion of Mr. Cleaveland was in order, that Drs. Beman and Fisher, and the clerks, had a majority of votes, that the intention was to organize the General Assembly, and that they did not intend an ex-parte organization, the respondents say that such was the precipitation and haste of these proceedings, their extraordinary and novel character, the noise, tumult, and confusion, that they and the other members of the house had no opportunity of hearing and voting, if they had wished to do so, and that therefore this is an attempt at organization, which is null and void.

It is very certain that if individual members of a deliberative assembly by trick and artifice, by surprise, noise, tumult, and confusion, carry such a question as this, it ought not, it cannot be regarded. The members must have an apportunity to debate, to vote, if they desire it, and for this reason it was, the negative question must be put, and that the several questions must be reversed.

It will be for you to say whether the members had this opportunity. To this part of the case I request your particular attention.

If you believe that the several motions were made and reversed, that they were carried by a majority of affirmative voices, whatever may be your opinion of the relative strength of two parties in the Assembly, your verdict must be for the relators. I hold it to be a most clear proposition, that silent members acquiesce in the decision of the majority. It is of no sort of consequence for what reason they were silent; whether from a previous determination or otherwise. The effect is the same, provided they had an opportunity of hearing and voting on the question. It is not necessary that all should hear or vote.

If persons who are members of an assembly, by surprise, by noise, or violence, carry such a question-such a vote cannot be considered as the deliberate sense of the assembly; but when members are aware of the nature of the proceedings and choose to treat them with contempt, or to interrupt the business themselves, by stamping, noise, talking, cries of order, or shame! shame! or requesting silence with a view to interruption, or attending to other business, when they ought to be attending to this, they cannot be permitted afterwards to allege that they had no opportunity to vote. They cannot take advantage of their own wrong, or their own folly. In such a case, their silence, or if you choose, noise, shall be viewed as an acquiescence in the vote of the majority. But when members are prevented from hearing and understanding the question by the noise and confusion, or by the indecent haste with which the business is conducted, the organization is not such as can give it any legal validity.

It is of no consequence whether the members are prevented from voting understandingly on the question by the persons engaged in conducting the business, or by the spectators. But when it comes from the members of the other party, they shall not be permitted to object, when they themselves are the causes of the difficulty.

If the facts be so, they (the members of the Old-school) did not hear, because they would not hear; they did not vote because they would not vote. They caused the disorder, and let them reap the bitter fruits of their injustice. The court, and you gentlemen of the jury, have nothing to do with consequences; with fancied majorities and minorities, but with majorities legally ascertained. We are placed at this bar under an awful responsibility to do justice, without regard to the numerical strength of the contending parties.

If you, gentlemen, believe that the questions were not reversed, that they were not carried, that the members of the Assembly had not an opportunity of hearing and voting upon them, your verdict should be in favour of the respondents. But, if on the other hand, you believed they intended to organize the Assembly; that the questions were severally put; that the noise, tumult, and confusion which prevailed in the Assembly, were the result of a preconcerted plan, or combination, or conspiracy between the clerks, the Moderator, and the members of the Old-school party, to sustain the unconstitutional and void resolutions of 1837, which deprived members of seats to which they were justly entitled, your verdict should be in favour of the relators.

And here I do not wish to be understood as having expressed, or even intimated an opinion as to the facts of the case. The facts are for you, the law is for the Court.

And now, gentlemen, I entreat you, as you shall answer to God at the great day, that you discard from your minds all partiality, if any you have; fear, favour, and affection; that you decide this interesting cause according to the evidence, and that you remember that the law is part of your evidence. The Court, and you, gentlemen, are placed at this bar under an AWFUL RESPONSIBILITY TO DO JUSTICE.

After receiving the charge of the Court, the jury retired, and in about an hour returned, bringing in a verdict for the plaintiff.

SUPREME COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA.

MARCH TERM-1839.

The Commonwealth at the suggestion of

James Todd, and others,

vs.

Ashbel Green and others.

July Term, 1838.
No. 60.

ON motion of F. W. Hubbell for the defendants, the court grant a rule to show cause why a new trial should not be granted.

Specifications of points on which defendants intend to rely, in support of the motion for a new trial.

1. His honour, the judge, erred in refusing to permit the defendants' counsel to cross-examine the plaintiffs' witnesses, touching a plan of action, concerted between these witnesses and others, previous to the 17th of May, 1838, for the government, &c., of their conduct, in or on the occasion of the organization of the General Assembly of the Presbyterian Church, for the year 1838.

2. His honour, the judge, erred in refusing to permit the defendants to give evidence of the existence of the concert, mentioned in the first point, and to explain the nature and character thereof.

3. His honour, the judge, erred in not charging the jury, upon certain points, submitted to him in writing, by the defendants' counsel; the points so submitted, are hereto annexed.

4. His honour, the judge, erred in refusing to permit the defendants' to give evidence that the churches of the Synods, which were disowned in 1837, had not contributed to the funds under the control of the General Assembly.

5. His honour, the judge, erred in not permitting the defendants to prove the existence of Congregational or mixed churches, within the bounds of the disowned Synods, and in connexion with those Synods.

6. His honour, the judge, erred in not permitting the defendants to prove:-That many churches and ministers, had complied with the terms, by which the disowning resolutions, or acts, were qualified:-that they had applied to the Presbyteries most convenient to their respective localities, and had been admitted into them.

7. His honour, the judge, erred in permitting the plaintiffs' concluding counsel, to read passages from the minutes of the Old-school General Assembly of 1838, which had not been given in evidence, particularly, as the plaintiffs had objected to the defendants' reading the whole of these minutes in evidence, and this objection had been sustained by the court. 8. His honour, the judge, erred in rejecting the deposition of Dr. Eli