seq.) though, if the contrary could be shown, it would make no differAs mere ministerial officers, they were bound to regard the acts of the Assembly as valid. They therefore did not violate their duty.

ence.

Did the Moderator violate his? The first application on the part of the rejected commissioners was made through Dr. Patton. This was before the report of the roll-before there was any house. Judge Rogers decided that the Moderator was right in his decision respecting Dr. Patton. Ante, 473.

Dr. Mason's motion was out of order. 1st. Because it interfered with a compliance with the Moderator's call for commissions not yet presented, and was not itself responsive to that call. Dr. Mason, 88; also ante, 111, 161, 176, 178, 179, Dr. Elliott, 197. Compare Minutes (Oldschool) 1838-Ante, 220, with Dr. Elliott's explanation-Ante, 200, 1. Mr. Joshua Moore was actually coming forward at the time in obedience to the call. 2d. Because the report on the roll was not complete, until those to whom the Moderator's call was made, had the opportunity of being enrolled. 3d. Because the first act of the house must be the appointment of a Committee of Elections.

The Moderator of course had a right to decide the question of order. The present constitution gives no right of appeal from his decision, though the former constitution did. Ed. 1806 p. 426. There is no right of appeal where none is given. Jeff. Man. (Sutherland's) 116. An appeal is given by the constitution when the house is acting in a judicial capacity. Book of Discip. Chap. IV. Sec. 22.

There was as yet no house completely organized, to which any question, on either a motion or appeal, could be put. If one had been put, Mr. Moore's privilege, and the privilege of all similarly situated, would have been violated. Dr. Mason acquiesced in the decision. He sat down without complaint.

Mr. Squier's application intervened between Dr. Mason's motion and Mr. Cleaveland's. He was clearly out of order: so Judge Rogers decided. No person not enrolled is a member, and none but members can speak. Ante, 155, 474.

Suppose the Moderator wrong in his decision as to Dr. Mason-suppose it was a breach of privilege-that does not make Mr. Cleaveland right. The opposite party now say, that Mr. Cleaveland's motion contemplated only the deposition of one Moderator and the appointment of another, by the vote of the whole house; and that this change was so effected. We contend that it contemplated a new and separate organization, to be afterwards set up as the true General Assembly, but which should be effected without our concurrence, or any regard to our votes. That Mr. Cleaveland's purpose supposed the rejection of the exscinded commissioners by the house, itself.

If we can establish this position it puts an end to their case; for then it appears that our opponents did not mean to do, what they say they did; that they did not put to us the question on which they say we voted aye, by our silence; while they had no reason for doing what they really did, as the house, even on their own showing, had done nothing wrong: indeed Mr. Phelps says the house would have admitted the rejected commissioners. Ante, 119.

Court adjourned.

FRIDAY MORNING, APRIL 19th-10 o'CLOCK.

The Old-school had a large majority in the body. At the time of Mr. Cleaveland's motion, we had 145, and the opposite party about 119, counting the 50 commissioners from the exscinded bodies, and 4 from the dissolved Third Presbytery of Philadelphia. Our number afterwards increased to 159, and theirs to between 120 and 130. Ante, 54, 84, 93, 164, 210.

The proof that the New-school intended a new and separate organization is as follows:

Their plan was preconcerted: it was formed before the misconduct of the Moderator was known. Ante, 55, 190, 191. Mr. Cleaveland's paper was prepared before-hand. All the New-school members seem to have considered every one present who had a commission entitled to vote, and accordingly, it appears that the rejected commissioners did vote; which was an evident disregard of the partial organization already effected. Ante, 92, 215. Mr. Cleaveland's use of the word we, proves that he addressed his motion to the New-school only. Ante, 223. See also the same manner of expression in the Pastoral Letter of the Newschool. Ante, 190, 1. All Mr. Cleaveland's introductory remarks prove the same thing. He did not say a word about the misconduct of the officers; nor a word about displacing Dr. Elliott; nor a word about the breach of Dr. Mason's privilege. The New-school minute contains only a part of his remarks: other parts given by different witnesses, are still more conclusive as to this point. Ante, 101, 173, 174. If the Old-school had voted against the motion, their votes would have been disregarded. To show this we asked Mr. Gilbert a question; but it was overruled by the court. Ante, 87.

But suppose the object of Mr. Cleaveland's motion to have been what is now contended, still the whole proceeding was disorderly, and no valid result was attained. This for the following among many reasons.

1st. According to a standing rule or order of the house, the first business was the appointment of a Committee of Elections. As to the force of standing orders, see 2 Hatsell, 113.

2d. The question was not put as a question of breach of privilege, nor so understood; nor was any mention made of the misconduct of Dr. Elliott, nor was his deposition proposed. The Old-school thought they had nothing to do with the proceedings. If the object of the motion was what it is said to have been, that object was not clearly made known to us: the motion was deceptive and fraudulent.

3d. Mr. Cleaveland did not address the Moderator, nor was the question put by the Moderator. Form of Gov. Chap. XIX. Sect. 2.

Ante. 150.

4th. If it was improper that the Moderator should put it, it ought to have been put by the clerks. Ante, 78. 2 Hatsell, 211, 212, with note. 6 Grey, 406, 448. Jeff. Man. (Sutherl.) 104. Sutherl. Man. 71, 2.

5th. Instead of choosing Dr. Beman to preside, they should have chosen the person who had been Moderator last before Dr. Elliott, and

who was present. This rule was adhered to in 1835. Ante, 105, 151. Though Dr. Elliott was not absent, yet the chair was treated as vacant.

6th. No opportunity was given for debate. We were taken by surprise, and every thing hurried through with unprecedented despatch. 7th. Mr. Cleaveland was repeatedly called to order, not only by the Moderator, but also by the members.

8th. All the witnesses have agreed that there was great noise and disorder; and nearly all the Old-school witnesses, that they were not able to hear, and did not know what was going on. In order to take advantage of the principle that silence is acquiescence, since the question was put at an unusual time and by an unusual person, it is necessary to prove that we could hear, and had full opportunity to act.

Mr. Hubbell then proceeded to read the specification of points which had been filed. Ante, 483. The consideration of most of these had been involved in the previous argument: a synopsis of his remarks on the more important of the others we here give.

1, 2. Ante, 86, 87. We did not contend that the New-school meant "to effect an ex-parte organization, with a view to a peaceable separation of the Church," (Ante, 480) but that they intended, by their own votes, to organize an Assembly, to be afterwards set up as the true General Assembly.

6. Ante, 201, 2.

7. Here Judge Rogers said, that his recollection was, that the whole of the Minutes (0. S.) of 1838, had been given in evidence; and this statement corroborated by that of the counsel for the relators, was taken by the court. Ante, 221, 430.

8. That part of Dr. Nott's deposition which was excluded, related to certain communications with the New-school commissioners, assembled in their caucus, or meeting for consultation, and would have shown conclusively that they intended an ex-parte organization.

25. Something farther was done, for the committee appointed reported, that in their judgment, the subsequent action of the Assembly had made it inexpedient for them to cite any inferior judicatories, and this report was accepted. Min. 1837, 496.

36. A pure question of law referred to the jury.

38. Mr. Randall showed that this was a mistake; that the numbers cut off had been given in evidence. Ante. 36.

45. A question of fact taken from the jury. Ante, 477.

53, 54. Chief Justice Gibson said in regard to these two points, that he was surprised to find them urged; that he had supposed the object of asking a new trial, was, that the great principles involved in the case might be settled; that it was under his direction the verdict had been so entered, and, if necessary, he would order its form to be amended, Mr. Hubbell replied, that as counsel for the respondents he had not felt at liberty to overlook the objection.

Court adjourned.

MR. MEREDITH'S ARGUMENT.

MONDAY MORNING, APRIL 22d-10 o'CLOCK.

It has been said, that the amount of property in dispute is upwards of one hundred and seventy thousand dollars; but this, it will be remembered, is not to be taken away from any individual: no one will suffer in pocket, be your judgment what it may. From all control over this large amount of property, we have been excluded.

The final decision of the case, however, will, in its effects, go much farther than we might be led to suppose, by this estimation of the amount directly in question. It may affect rights of property in every individual church throughout the land: for in each church, the issue here presented, must in some way be tried and decided.

This is a motion for a new trial: the questions which it involves, must be determined by a reference to the law of corporations. In the whole course of the argument on the other side, not one single case or authority has been quoted, which gives any precedent for the most extraordinary conduct of the opposite party, in cutting off a large portion of their brethren.

The great question on which the decision of this case must depend, is, Was Dr. Beman duly and lawfully elected Moderator of the General Assembly of 1838? The solution of that question will solve the whole difficulty.

We allege,

1st. That at the commencement of the sessions of the General Assembly of 1837, there were twenty-eight Presbyteries within the bounds of the four Synods of Utica, Geneva, Genesee, and the Western Reserve, known as the exscinded Synods; which Presbyteries were regularly constituted, and were in full connexion with the General Assembly; their commissioners being received, and they themselves recognised in a variety of ways. They were not constituted under the operation of any plan of union whatever, but were regularly created or admitted, in the ordinary manner, as all other Presbyteries are created or admitted, according to the constitution and laws of the Presbyterian Church.

2d. That the Assembly of 1837 attempted to disfranchise all these Presbyteries by certain acts, called the exscinding acts, which were unconstitutional and void.

3d. That the clerks of the Assembly of 1837, who were continued in office to assist in the organization of the Assembly of 1838, violated their duty, in attempting to carry into effect these unconstitutional and void acts of 1837.

4th. That the Moderator of 1837, continued in office for the same purpose, united with the clerks in this illegal attempt, and thus violated his duty.

5th. That the Moderator was thereupon regularly removed from office, by a vote of the body, lawfully taken.

In 1799, when the charter was granted, the Assembly was composed in part of members of Congregational Associations, who both sat and voted. The plans of union by which this was allowed, were certainly

more objectionable, according to the doctrines of the other side, than the plan of 1801. This last is to be regarded only as a relaxation of discipline; and the judicatories of the Church are at liberty to allow of such relaxations. Form of Gov. Chap. X. Sect. 8-Notes. As to the authority of these notes, see Assem. Dig. 126.

1st. These Presbyteries were constituted in the regular and ordinary manner: some of them by the General Assembly, and others by different Synods. Assemb. Dig. 57, 8. There is no evidence that one of them came in under any plan of union. Fourteen of them were parties to the new Constitution formed in 1821: their rights, therefore, were similar to those of the thirteen old states.

2d. In 1837, the Assembly attempted to disfranchise these Presbyteries by certain resolutions, which were null and void. The resolutions profess to exclude them entirely from the Church. After being excluded, they were indeed told that in a certain way, and on certain conditions, they might be restored, but even this provision was deceptive.

They were excluded without trial, though the reason of their exclusion was their being charged with an offence, for which they were not liable to punishment, until regularly tried and convicted. This is the principle of all law. If they were put out without reason, the act was void; if for sufficient cause, that cause must have been some offence against the Church. Indeed, they were distinctly charged with gross irregularities. The want of ruling elders was certainly an ecclesiastical offence. It is said that it is no offence to be a Congregationalist; but it is an offence: as regards the Presbyterian Church, it is heresy. The Form of Government provides for the trial of offences, and secures the right of trial to the meanest individual: if it did not, the common law requires a trial in every such case. Assemb. Dig. 324, 5.

We deny the right of the General Assembly to dissolve a Presbytery. The constitution, even if it gives power to erect, gives no power to destroy them.

The Assembly did take measures to cite these Presbyteries before them. They had rights in the nature of a franchise, and could not be excluded or disfranchised without citation. Bagg's case, 11 Coke's Rep. 99. Commonwealth, v. St. Patrick Soc. 2 Binney's Rep. 448. Commonwealth v. Guard. of Poor, 6 Serg. & Rawle's Rep. 496. Symmes v. Regem, Cowper's Rep. 489, 507.

The exclusion was founded on a false pretence; and even if the reason given had been the true one, it would not have been sufficient. The Presbyteries did not, and could not, come in under the act of 1801. That authorized standing-committee men to sit in Presbytery only in a certain specified case-that of an appeal.

The commissioners from the exscinded Presbyteries could not be restored by mandamus. A mandamus could not be directed to the

Assembly.

3d. The clerks of the Assembly of 1837 violated their duty in attempting to carry out the void acts of that body. It was their duty according to the rules of the Assembly, (Ante, 156) to put the names of all whose commissions were regular on the roll; and according to uniform practice, they were bound to report all whose commissions were irregular on a separate list. On one of these lists every commission presented