If the refusal of Dr. Elliott, to put a motion or an appeal, authorize the member aggrieved, to put a motion to the house, such irregularity must be proportionate to the exigency, i. e. the member aggrieved, could himself put that motion, (and no other,) to the house, which had been so refused.

The moderator of the Assembly of 1837, was constitutionally the moderator of 1838, until the moderator for that year was elected; and was incapable of being removed, until the moderator of the year 1838 was elected.

In case the moderator of 1837, was incapable for any reason of presiding at the organization of 1838, then, by the standing rules of the Assembly, the last preceding moderator present, is to preside; and as at the time Dr. Beman was put in the chair, there were two more recent moderators present, they, by said standing rules, were entitled to the chair, in preference to Dr. Beman.

That the "Plan of Union" was always subject to be revoked at the will of the General Assembly; either from the nature and character of the agreement, or from the fact, that there was no reciprocity; the General Association of Connecticut, being invested with no power to legislate in such cases, and especially, to enact laws to regulate churches not within her limits. (Vide Minutes of 1837, page 421.)

That said "Plan of union," by introducing unordained lay delegates from Congregational churches, into the Presbyteries, which are the constituent bodies, violated fundamental provisions of the constitution of the Presbyterian Church in those articles of the constitution which provide, that the churches shall be governed by ruling elders, and shall be represented in the Presbyteries by ruling elders.

That this alteration of fundamental articles of the constitution, transcended the powers of the General Assembly, and could only be rendered valid, if at all, by the approval of a majority of the Presbyteries.

That as no direct approval of this measure, viz: " Plan of Union," was ever given by the Presbyteries, the same never having been transmitted to them for their approbation, in order to supply this defect by long acquiescence, it must be proved that the acquiescing Presbyteries had full and entire knowledge of the exercise of rights under this "Plan of Union."

That, if the jury believe, that a majority of the Presbyteries, were in regions of country, where churches were not formed on the "Plan of Union," and the statistical reports from the Presbyteries of those regions where churches were formed on that plan, disguised these churches under the denomination of Presbyterian churches; then their continuance for any number of years, is no proof of the acquiescence of a majority of the Presbyteries.

In the inquiry touching the constitutionality of these acts of Assembly of 1837, disowning the four Synods, it is to be taken as proved, that the churches composing those Synods were Congregational; the defendants having offered to prove that fact, and the court having rejected that testimony.

(Signed)

F. W. HUBBELL, for Defendants.

On Friday, March 29th, on motion of the defendants' counsel, the court granted a rule to show cause why a new trial should not be allowed, and the above reasons, or specification of points on which the defendants intended to rely, were filed.

On Monday, April 8th, the court fixed Wednesday, April 17th, for the argument on the motion for a new trial, a motion having previously been made by the defendants' counsel, that a day might be named, and the court having taken time to consider the subject.

WEDNESDAY MORNING, APRIL 17th.-10 O'CLOCK.

Agreeably to the appointment of the court, the argument on the motion for a new trial was commenced by Mr. Hubbell, on the part of the respondents. On the bench were their Honours John Bannister Gibson, Chief Justice, and Molton C. Rogers, Charles Huston, and Thomas Kennedy, Associate Judges. These sat during the whole argument. Chief Justice Gibson had previously announced that his Honour Thomas Sergeant, the other Associate Judge, would not sit in the case, because as one of the trustees of the First Presbyterian Church, (Mr. Barnes') he had participated in transactions arising out of the controversy between the Old and New School parties, and because his feelings were otherwise interested in the result of the cause.

MR. HUBBELL'S ARGUMENT.

The case involves directly about $175,000, and interests of a different kind to an incalculable amount. This, alone, is a reason why the opportunity of another investigation should be given.

The case made by the relators falls under two heads: the acts of the Assembly of 1837; and the organization of the Assembly of 1838. The first division but ancillary to the other, or explanatory of it, and so considered by Judge Rogers. The relators contend that the exclusion of certain commissioners in 1838, was the result of conspiracy between the Moderator, clerks, and a portion of the Old-school, to carry out certain acts of 1837, which were illegal and void.

They admit that those acts did not destroy the Assembly in 1837, and that an Assembly, with full capacity to act, might have been organized in accordance therewith in 1838; but contend that the exclusion in 1838, consequent upon the acts of 1837, justified their measures, which they now say were merely the removal of the Moderator and clerks for their misconduct.

They allege that the Assembly had a right to remove, and did remove those officers; that, though in fact a majority of the Assembly took no part in the proceeding, considering and treating it as a disorder, their silence, when the vote was put, must be construed into acquiescence. Their whole cause depends on the proposition, that the majority, by intendment of law said, Yes,' when they did not say any thing, because

they did not consider the question put to them, and when it is clearly in proof that if they had said any thing, they would have said, 'No.'

If the Assembly had a right to remove their officers, and did remove them, the majority acquiescing in the act, why give any reason for the removal? Why bring forward the acts of 1837?-unless to prejudice the mind. If it was proper to bring in those acts at all, they could justly come in only as offered in justification of our conduct.

No doubt the Old-school had a majority in the Assembly of 1838, even taking into account the rejected commissioners. Mr. Krebs' test. ante, 164. Dr. McDowell-210. Dr. Patton-55. Dr. Mason-93. They also had a majority in 1837. These Assemblies were a fair index of the comparative numerical strength of the two parties. In 1837, a great struggle, between the two systems of theology known to exist in the Church, was anticipated. No doubt the system of the Old-school, who adhere strictly to the standards, is orthodox, and that of the New-school, if that party, the individuals of which depart in very different degrees from the standards, can be said to have a system, is heretical. Testimony in regard to this difference of creed overruled by Judge Rogers. Ante, 193. To the General Assembly it belongs to decide in all controversies about doctrine. Ante, 31. From it there can be no appeal. Ante, 188.

All milder measures were tried by the Old-school in 1837, before resorting to those complained of. Ante, 37–45. But the terms proposed by the other side were inadmissible. I now come to the consideration of the acts of 1837, improperly called "acts of excision," viz. the declaration that the four Synods of Utica, Geneva, Genesee, and the Western Reserve, were no part of the Presbyterian Church.

The chief source of difficulty in that Church had, before 1837, been discovered to be the "Plan of Union" of 1801, by which Congregationalists were admitted to partake of the benefits of Presbyterianism, without joining our Church, and to exert an influence in our judicatories, though not submitting to their authority. Their admission was a violation of the principles of Presbyterianism, and had greatly disturbed the order and affected the purity of the Church.

The essence of Presbyterianism is Calvinistic doctrine, and government by ruling elders. A church deficient in either is not a Presbyterian church. A Congregational church has no ruling elders, but is governed by the body of its male members. There are other important differences between the two Churches.

The "Plan of Union" (ante 49) marred the Presbyterian structure, introducing disorders widely into its system. It was unconstitutional; for it introduced into the Church congregations without ruling elders; it permitted unordained lay delegates to sit in the Presbytery; and was in other points opposed to Presbyterian principles. Form of Gov. Chaps. VIII. IX. X. &c. Ante 23, 4, 155.

It cannot be regarded as an alteration of the Constitution, for it was never submitted to the Presbyteries. Form of Gov. Chap. XII. Sect. 6. Ante, 136. And no such change could have been made, even with the concurrence of the Presbyteries, because a violation of the charter granted in 1799. Ante 21. Of course then the Presbyteries could not by acquiescence make it good; though length of time is no proof of their acquiescence, unless knowledge and opportunity sufficient to have abrogated it

be shown to have existed. There is clear proof that the facts of the case were disguised and misrepresented by the Presbyteries within the four Synods, in their reports. At any rate the question of acquiescence was a question of fact, yet Judge Rogers took it from the jury. Ante, 465.

The "Plan of Union" was grossly abused; but the whole of the mischiefs growing out of it were not disclosed until from 1835 to 1837, chiefly because of the misrepresentations of the Presbyteries formed under it themselves. In 1837, of the one hundred and thirty-nine churches in the Synod of the Western Reserve, one hundred and nine were either Congregational or mixed; and two-fifths of those in the other three disowned Synods were of the same character. Yet these all, under the guise of Presbyterian churches, were represented in Presbytery and in the Assembly. This we offered to prove at the trial, and are therefore entitled to take it for granted. Ante, 182, 3. The general operation of the system, and some of its abuses are in evidence. Mr. Squier—ante, 71, 2. Ante, 27, 8. Min. 1837, 521, 3.

The "Plan of Union" was plainly not a contract: it wanted both competent parties and consideration; and it was clearly a mere temporary arrangement. Judge Rogers decided that either party had a right to abrogate it. Ante, 465.

The impugned acts of 1837 were the abrogation of the "Plan of Union," and the declaration, that, in consequence thereof, four Synods were not a part of the Presbyterian Church. Ante, 37, 44, 46.

A majority of the Assembly of 1837, and a still greater majority of the Assembly of 1838, were Old-school. This shows the sense of the Church in regard to the measures of 1837.

A great deal has been said about the funds contributed by the Presbyteries belonging to the four Synods. See the propositions of the Newschool in regard to funds. Ante, 42. We offered to prove that those Presbyteries had received far more than they had ever contributed. Ante, 185.

It is said we ought to have proceeded judicially against the Synods; and Judge Rogers, by mistake, says that this was attempted and abandoned. Ante, 38, 468. For what could they have been tried? For being Congregational? That was no crime. It was impossible to proceed criminally against such bodies. How could the process prescribed in the Constitution be applied to them? Ante 28, et seq. There is no provision for the case of a judicatory, excepting a process in the nature of a mandamus. B. of Discipl. Chap. VII. Sec. 1. Nos. 5, 6.

The "acts of excision," as they are called, were nothing more than a dissolution of the four Synods and some of their Presbyteries. The only persons excluded are Congregationalists. The Assembly has the power to erect Synods and Presbyteries. Form of Gov. Chap. XII. Sect. 5. Ante, 347. The power to dissolve them is consequent upon this, and has been frequently exercised. Ante, 47, 347, 405-6. See opinion of Mr. Squier-Ante, 159. See Assem. Dig. 55, et seq. This is a legislative and not a judicial power. The acts of 1837 may be justified, as an exercise of the power of the Assembly to judge of the qualifications of its own members, and of their electors.

Court adjourned.

THURSDAY MORNING, APRIL 18th-10 O'CLOCK.

The so-called excision was but a dissolution. The rights of all Presbyterians were saved by the fourth resolution. Ante, 46. We could not get this properly before the jury. Judge Rogers gave them only a part of it-that relating to the restoration of Presbyteries. Ante, 467. That the Assembly has legislative power, is proved by its whole history.

By the operation of the "Plan of Union," Congregationalism had become so intimately blended with Presbyterianism, in the four Synods, that their dissolution was the only effectual mode of purging them.

We have been compelled to go into the consideration of the acts of 1837, though we do not consider them material to the issue. We next take up the second part of the case-the organization of the Assembly of 1838.

Even supposing the acts of 1837 void, they did not destroy the Assembly of that year, as was acknowledged by the opposite party, by their organizing themselves in 1838, at the time and place fixed by that body on the last day of its session; and by their recognising the validity of an election of trustees made after the Synod of the Western Reserve had been exscinded. Ante, 45.

Each Assembly is dissolved at the end of its session, and a new one summoned. Ante, 141, 155. So the Assembly of 1837 was dissolved. Ante, 141. Each Assembly is independent of every other, except that the Moderator and clerks of each are continued in office to organize the succeeding body. Ante, 156, 7.

No member of the Assembly can vote until his name has been enrolled. Ante, 155.

In 1826, certain rules for the organization of the Assembly were adopted, to go into effect, if a proposed change in the Constitution should be approved by the Presbyteries, and were sent down to the latter with the recommendation of the constitutional amendment. The Presbyteries returned the whole with their approval. These rules, then, though not a part of the Constitution, were concurred in by the Presbyteries. According to them, as subsequently amended, the process of organization involves,

1st. The duty of the Moderator: To constitute the Assembly by prayer. By a rule above referred to, he is to preside and keep order until a new Moderator be chosen.

2d. The duty of the Committee of Commissions, or clerks: To receive the commissions, enroll the names from those which are constitutional and regular, and report the roll to the Assembly. It has been the practice also to report on a separate list, the names of those whose commissions were otherwise.

3d. The duty of the house: To appoint, as its first act, a Committee of Elections, whose duty it is to report on all informal and unconstitutional commissions, as soon as practicable. Ante, 155, 6.

The clerks being a standing Committee of Commissions, they receive the commissions before the meeting of the body. In 1838, the commissioners presented their commissions; and, in accordance with the acts of 1837, the clerks rejected those from the exscinded Synods. Ante, 158, et seq. Their doing so was not the result of any pledge, (Ante, 65, et