should have been reported. It was the duty of the clerks to put the names of the exscinded commissioners at least upon the roll of irregular commissions.

4th. The Moderator also violated his duty. He united with the clerks in an attempt to carry into effect the unconstitutional resolutions of 1837. His very text (Ante, 222) showed his intention. He was guilty of misconduct, 1st, in not admitting the rejected commissioners to their seats; 2d, in refusing to put the question on either Dr. Mason's motion or appeal.

Dr. Mason's offer was in response to his call, which was for commissions not yet enrolled. That this was the meaning of the call is testified by the Old-school Minutes, (Ante, 220) by Dr. Elliott himself, (Ante, 197) and by Dr. Plumer, (Ante, 195.)

The rule for the appointment of a Committee of Elections is not such. a standing order as may be enforced by any member's merely rising and calling for its enforcement. It could be not enforced without a motion; and a motion made might be negatived. A question of breach of privilege has precedence of all others. 2 Hatsell, 113, 4. 2 Hatsell, 113, 4. 4 Cobbett's Parl. Hist. 460, 591. In Parliament when a member appears to take the oaths, all business whatever is suspended until he is sworn. 2 Hatsell, 85. The right of a member to sit is always a question of privilege; and Dr. Mason's was therefore such a question.

Dr. Mason had undoubtedly a right of appeal. It has been said that he had not. Under the old constitution it was expressly given. See the Digest, 24, where by a rule of the Assembly an appeal is allowed. The practice of the Assembly is conclusive on this point. Min. 1837, 441-Ante, 45.

Court adjourned.

TUESDAY MORNING, APRIL 23d-10 o'CLOCK.

A motion made to admit members to their seats must be received even while another question is pending: a question of privilege is entitled to precedence at all times; it is preferred even to a call for the orders of the day, which may be made while a question is pending. 2 Hatsell, 108, 113, 4, 200.

5th. The Moderator was lawfully removed by a regular vote of the body. Mr. Cleaveland's motion was heard. For this I refer to the testimony of the witnesses on the other side. Dr. Phillips-Ante, 167; Dr. Harris, 170; Dr. Miller, 173; Mr. Brown, 175; Mr. While, 176; Dr. Elliott, 199. There can be no doubt whether the Moderator could be removed: he is the mere servant of the house, not its master. The house was not taken by surprise: it sanctioned the censure cast upon Dr. Elliott, the clerks, and the small clique of the Old-school party by which they were supported.

The motion was lawfully made, put, and carried. The Moderator had already refused to do his duty; had refused to put a motion designed to effect the same object. Besides the motion proposed his own deposition. The clerk cannot put a question unless by order of the house. 2 Hatsell, 201, 237, 207, 227. 4 Cobbett, 589, 1002. In 1835, (Ante,

78.) Dr. Ely put the question, not as Stated Clerk, but as a member of the Assembly.

The question was lawfully carried. Those who were silent acquiesced. Only those who actually voted can be counted; and of those who voted in 1838, no doubt there were a majority for Dr. Beman. Oldknow v. Wainwright, 2 Burrowes' Rep. 1017, 1020. Claridge v. Evelyn, 5 Barn. and Adolph, Rep. 86. Rex v. Monday, Cowper's Rep. 530. Rex. v. Parry, 14 East's Rep. 559, in notes 561. Rex. v. Hawkins, 10 East, 214.

The following authorities also cited: 2 Cobbett, 487, 488, 504, 552, 585, 694. 4 Cobbett, 898, 925, 929, 1092.

It is to be hoped that your decision will, by confirming the verdict of the jury, produce the happy effect of restoring peace and unity to this divided Church. I would beg leave to recommend to the notice of the reverend gentleman who is to preach at the opening of the next Oldschool Assembly, this appropriate text: "Finally, brethren, whatsoever things are true, whatsoever things are honest, whatsoever things are just, whatsoever things are pure, whatsoever things are lovely, whatsoever things are of good report; if there be any virtue, and if there be any praise, think on these things." Philipp. iv. 8.

MR. RANDALL'S ARGUMENT.

The question raised by the pleadings is, whether Dr. Green and his three co-defendants were trustees of the General Assembly of the Presbyterian Church in the United States of America, on the 24th of May, 1838. The verdict of the jury was that they were not. That this question should be tried again is now asked.

It involves two questions: the first in regard to the exscinding resolutions of 1837, and the second in regard to the deposition of Dr. Elliott from the office of Moderator, and the appointment of Dr. Beman in his place. This court has a right to examine both.

The first is the most important: the second but ancillary and subordi

nate.

To understand the former, it is necessary to understand the constitution of the Church. Form of Gov. Chaps. VIII. IX. X. &c. Ante, 23, 4, 155. A Presbytery may be composed of ministers alone; may exist without embracing a single church. Chap. X. Sect. 7-Ante 23. Assem. Dig. 53, 4. This shows that the existence of Congregational churches within the exscinded Synods does not vitiate their constitution. It is evident from the history of the General Assembly for some years past, that the two parties are very nearly equal in strength: which side has the real majority is still undecided. The differences between the two are rather in words than any thing else.

The "Plan of Union" existed previously to the Revolution; and having been suspended during the war, was renewed by the invitation of the General Assembly, immediately on the passage of the act incorporating

that body. Similar arrangements had been proposed or entered into by the General Assembly, with the Associations of Vermont, Massachusetts, and New Hampshire, and with the Dutch Reformed and Associate Reformed Churches.

The objection, that the "Plan of Union" should have been sent down to the Presbyteries for approval, is of no force. The provision of the Constitution, that requires amendments to be sent down to the Presbyteries, relates to general regulations, and not to the admission of an individual, or a body of individuals into the Church. The practice of the General Assembly has been uniform on this subject, in all instances. Resolutions, admitting delegates from corresponding bodies to sit and vote, have been adopted and repealed, without sending them down to the Presbyteries. The regulations admitting ordained ministers and elders from other Protestant churches, without re-ordination, have been adopted in the same manner, although the Assembly has for a series of years heretofore refused such admission. A considerable portion of the present church hold their seats by the same tenure, under the union with the Associate Reformed Church, including the Moderator of 1836, (Dr. Phillips,) and the gentleman who officiated as chairman of several committees, appointed by the Assembly of 1837, (Dr. Junkin.) Dr. Green has declared, that the legality of the union with the Associate Reformed Church has never been denied. At all events, an acquiescence of thirtysix years removes all such objections. The amended constitution of 1821 incorporated all these materials, as a part of the Church. Every Presbytery in the Church has thus recognised the "Plan of Union," and this subsequent ratification amounts to the same thing as a previous consent.

What is the "Plan of Union ?" It provides two things only, which are of any importance in the present inquiry: 1st. That a Presbyterian clergyman may preach to a Congregational church; or to a congregation partly Presbyterian and partly Congregational: 2d. That in the case of any difficulties arising between him and his people, or between a mixed church and one of its Presbyterian members, certain modes of arbitrament may be adopted by the parties, for an amicable settlement of their disputes; one of which, in the case of an appeal to the Presbytery, permits a member of the standing committee of a mixed church to sit and vote as an ordained elder.

A minister acquires his right to sit in Presbytery by his ordination; and that right is entirely independent of his being the pastor of any church. This is exemplified in the case of an evangelist who is ordained, without being set over any congregation, but may preach as a missionary to all, Congregationalists as well as Presbyterians, or even to infidels and pagans, still retaining his seat in Presbytery. A minister too, who resigns his charge, does not thereby lose his seat.

The exscinding resolutions take it for granted, that the five hundred and nine ministers, five hundred and ninety-nine churches, and sixty thousand communicants, all came in under the "Plan of Union;" but this is not so. Indeed, not a single minister could be admitted under it. It cannot be disputed, that all these five hundred and nine ministers, at least, are strictly Presbyterian. The exscinding resolutions, then, must stand on their own merits: they receive no support from the previous abrogation of the "Plan of Union." It has been said, that in the Synod

of the Western Reserve, containing, at the time of the excision, one hundred and thirty-nine churches, there were but thirty Presbyterian churches. This we deny there is no proof of the fact.

Court adjourned.

WEDNESDAY MORNING, APRIL 24th-10 O'CLOCK.

By whatever name the exscinding resolutions may be called, their true character cannot be a matter of doubt. What was exscinded? Not only the four Synods, but all their component parts: all the Presbyteries, all the Presbyterian churches, and every individual Presbyterian within their limits.

They were cut off without accusation, proof, or trial. The few persons only who were present in the Assembly, as the representatives of the whole, had the least notice. The news of the actual excision was the first that reached the rest. Men born in the Church, patriarchs of seventy years, found themselves excluded, without having received any intimation that their rights were a subject of dispute.

The whole region embraced within the four Synods, was declared to be infected ground-was desecrated. Expulsion from the Church depended merely on the domicil of the individual. Had Dr. Green lived in the western part of the state of New York, or in the Western Reserve of Ohio, he would have been excluded among the rest.

In the year 1799, before the adoption of the present constitution, the Presbytery of New York included twenty-one churches, of which eleven are among the number of exscinded churches. Some of these churches were in existence before any individual who voted for the exscinding resolutions was a member of the Church; and they have continued to exist without interruption, and have been recognised by the General Assembly without any regard to the "Plan of Union." The Assembly of 1837 admitted, that whole Presbyteries and churches within the proscribed and infected districts, were regular and in good standing; and provided also a mode for their re-admission into the Church. The exclusion for a day, a month, a year, or for life, was equally a violation of the rights of the exscinded bodies or individuals. The mode provided for regress into the Church is illusory, as to gain re-admission, it is necessary to undergo the same examination which persons undergo on their first application.

The Presbyteries within the exscinded Synods have contributed at least $200,000 to the different funds of the Church.

The excision is said to have been but a dissolution of the four Synods, and the Presbyteries attached to them. It is however a very different thing. Besides, we deny that the Assembly has the power to dissolve inferior judicatories, where intermediate rights have become vested. The power to create does not necessarily carry with it the power to destroy. Can Congress turn the State of Missouri out of the Union?

The second question-that in regard to the organization of 1838-is subordinate to the other, and involves no great principles.

The clerks of 1837 were pledged to carry out the acts of that year. The Minutes (Old-school) of 1838, speak of a pledge. Ante, 65. It

was their duty to disregard those acts and to put the exscinded commissioners on the roll. The refusal of the clerks either to enrol them or report them to the Assembly, and the subsequent conduct of the Moderator in refusing to put the motions made to rectify the misbehaviour of the clerks were overt acts of a conspiracy to carry into effect the unconstitutional resolutions of 1837.

The Moderator is the mere servant of the house: he can do no act but by the will of the majority. An appeal from his decision is the right of every member. Jeff. Man. (Sutherland) 122. Dr. Elliott's refusal to put the question on Dr. Mason's appeal was a breach of privilege, which authorized any member of the Assembly to move for his dismission from office.

The Moderator or Speaker of any deliberative Assembly may be removed. Jeff. Man. 105. The Moderator of the preceding Assembly, presiding over the organization of the new body is by no means exempt from liability to removal. He sits only until a new Moderator is chosen. Ante, 155. Mr. Cleaveland's motion was substantially a proceeding to remove Dr. Elliott from office for this breach of privilege. It was perfectly intelligible and sufficiently loud to be heard by all. Every member had therefore an opportunity to vote, and all, who under such circumstances were silent, must be presumed to have acquiesced.

According to parliamentary rules, when the commissions of the commissioners to the General Assembly of 1838, were referred to the Committee of Commissions, they could not be restored to the Assembly for its action, but by the report of that committee. Therefore the refusal of the clerks was a gross violation of duty.

The Moderator could not without absurdity, put the question for his own removal; nor did the duty under such circumstances devolve upon the clerks. They were participes criminis, and would not have put the motion if they had been required.

The New-school are opposed to all exclusions. They are ready to admit even those who like Haman of old have fallen into their own

snare.

Absolute identity of opinion and belief throughout the Church is not to be expected. But unimportant differences should be overruled. Or, if the two parties must separate, let them do it amicably, according to the patriarchal advice-Genesis xiii. 9. "Is not the whole land before thee? Separate thyself, I pray thee, from me: if thou wilt take the left hand, then I will go the right; or if thou depart to the right hand, then I will go to the left."