509

MR. SERGEANT'S ARGUMENT.

May it please your Honours:-We can see but obscurely what is before us-I mean what is in our presence-and judge imperfectly of the past: as to that which is future-I do not pretend to be able to say what will be the probable conclusion of this matter. I shall not, therefore, accept the challenge given in the close of the argument on the other side, and venture to predict what would be the effect of your decision to support the verdict of the jury in this case. The counsel for the relators have told us, that such a decision would be productive of peace; that it would bring together again those who are now so widely separated. But that has been tried; they were together; and after all that has been disclosed in the course of the trial of this cause, I think every one ought to be very cautious in cherishing a desire to force them together again. If I understand the subject, this is the main ground of one portion of the objection made to the decision of the court and jury-that the rights and the powers of the General Assembly, the highest and the final judicatory of the Presbyterian Church, as well as of all its subordinate judicatories, are purely spiritual and moral. It so happens, that deeming these to be matters between every man and his own conscience, in which no human tribunal has the authority to interfere, we consider an attempt to force us into any religious connexion whatever, a direct violation of our most sacred rights. We suggest now, that such an attempt would be unconstitutional, and inconsistent with spiritual liberty; that it would strike at the root of the great principle of our institutions, namely, that spiritual concerns are not to be interfered with by the civil power. These parties can never come together but by consent-never in the world, but of their own free choice. The idea of forcing one mass of people to sit at the same spiritual table with another, implies, in the first place, the power of searching into the hearts of men; for, without it, who could tell the consequences of such an union? I take it, then, that the position of the learned counsel is not correct. I go for freedom-for no force from any quarter. We shall presently see whether, notwithstanding all that we have suffered in name and character, we are not the real champions of spiritual liberty. I believe we are. And at the same time it will appear, whether the effort of the minority is not to deprive us of that liberty, to force us into an association with those whom we do not choose to be with; whether their prominent object is not to compel us to abandon all our rights, or, what is equivalent, to give up the great right of choosing our associates. An effort in itself strongly repulsive.

This is the most dangerous power that a civil tribunal has ever been called upon to exercise. Your Honours have enough to do, enough of trouble and perplexity, in determining those cases upon which you must decide. What you are here called to do, is to open for the subjects of your inquiry and labour, a new source of conflict and litigation, of

unknown extent. None can define its limits, or control the spirit of discord which it will pour forth. We have warned our opponents-not threatened, as has been intimated-we have warned them of the litigation that would follow their proceedings; but it is for litigation that they seem to have sought. Every church, Presbytery, and Synod in the land, must decide this question for itself: that is as plain as it can be. Nay, every individual Presbyterian must engage in the contest. And how will you limit the violent spirit of litigation, if the law is once thrown open to these parties? Observe what effects it has already produced. The minority of the Assembly of 1838 have certainly done a great deal, if they have accomplished what the charge of his Honour Judge Rogers decides that they have accomplished. If the matter be not too serious to joke about, following the example of those who have preceded me, in some degree, though perhaps speaking more innocently, I would say, that the proceeding by which the minority in that Assembly claim to have manœuvred the majority out of doors, was one of the greatest practical hoaxes ever seen or heard of. I mean to say that no man can look seriously at the thing, uninfluenced by any respect to who shall succeed at last, but he must so regard it. I do not speak now of the decision of the law: so the facts strike me, and so I think they must strike every one. I say that these gentlemen, if they succeed here, will have accomplished a great deal; but the rest that they will have to dowhat remains to be accomplished, they will find more difficult, weightier, more distracting. Let us tell them that much trouble and confusion would be avoided if the admonition-I will not quote Scripture-the admonition to let spiritual bodies decide on spiritual questions, were duly observed. I intend to show, before I have done with the case, that this is an attempt to strip the General Assembly of that power; to place it in the hands of the tribunals of the land; and so to place it in a manner which leads, I will not say to the shame of religion, but to the disparagement and disgrace of its ministers, so far as disparagement and disgrace can be brought upon those holy officers. What length of years, what venerable character, what stock of service and of merit, will ever serve as a shield? The very first act of power performed by the new body which met in the First Presbyterian Church, was to direct a bolt at the head of the only remaining trustee of those originally incorporated by the act of 1799. Their first act was an act of rough excision. The first exercise of their newly obtained power was aimed at him who had held his office from 1799 to 1838-forty years lacking one. Your Honours may see in this the spirit with which we are threatened: you may see it even in the argument of the cause in this court. All must grant that in my learned friend's remarks upon Dr. Elliott's text, and in his offer to furnish him with a more appropriate one, the same spirit is manifested, not originating in him, but within the compass of the supposed triumphant party, who, flushed by their fancied victory, begin immediately to claim cognizance of the conscience and the heart, and charge Dr. Elliott with having, while in the performance of a solemn religious service, in the very presence of his Maker, used that text from impure motives. From the beginning to the end of the trial of this case, I am sorry to say, but say it because I felt it-during the short time that I was able to be in court, I felt, and I am sure my colleagues felt-I hope my clients did not

feel that we were in the midst of a pelting tempest, a torrent against which it seemed almost vain to make resistance. The same spirit, may it please your Honours, has been manifested in the course of this discussion, and if at last the Assembly of 1838, and the Old-school party are condemned, it will be not because of their acts, but because we have undertaken to know what is in their hearts, and judge that we have discovered there sinister motives and designs. We, I have said, are the true champions of spiritual liberty and of the rights of conscience. And however much we may have suffered, if our cause is just, it must prevail: all must come back to the plain ground of the constitution and laws, and leave such disputes as this, which cannot be adjusted by the civil power, to the tribunals of the Church, and to Him who shall be the final judge of all.

Now, may it please your Honours, the general question which is presented in this case is, whether we are not entitled to have a new trial. Great interests are confessedly involved in it. The question, as regards our country, is one of vast magnitude-in some aspects of it, none greater can arise; and certainly there can be none in which the respective champions of the two parties are entitled to greater consideration, as regards their motives, characters, and lives. The respect due to them, I mean not to violate. I do not mean to speak a single word of any member of the New-school party personally disparaging, or calculated to wound needlessly his feelings-I am not instructed so to speak, nor would I, if I were. I will endeavour, in my reply to the arguments which we have heard, to maintain this principle inviolate, treating with the utmost respect the opinions of our opponents, so far as it may be practicable, and with respect unlimited, the opinion of his Honour, Judge Rogers. Yea, more, I will in the beginning say, that the learned judge had a most difficult and arduous task to perform. Not on account of the mere novelty of the case, though this made it essential that there should be time and opportunity for cool discussion and careful consideration. Look at the great amount of evidence contained in this paper book, that has been laid before your Honours. He must search out and gather from all this mass, and from the contrarient statements of the bar, the precise facts of the case, to which the law was then to be applied. And what were his , means for the performance of his remaining duty? Was he to turn to the common law? That could give him little aid; and our own statute law none at all. This case introduced an entirely new system of laws; and though thoroughly instructed in all the principles of the law of the land, his Honour was required to gather, from the scattered fragments suddenly laid before him, in the heat and hurry of the trial, the whole law of the Presbyterian Church—a Church which has a common law and a statute law of its own, and a complete form of government, not framed however like ours, in the exact distribution of distinct powers. One while a witness occupied the stand, and gave in his testimony; then a little was read from one pamphlet, and then a little from another; then a rule of order; and then an article from the Constitution. Here was thrown in the history of a Synod, and there a map containing the names of certain judicatories, without their boundary lines. Amid all this, his Honour must suddenly catch up just what was necessary to the case, undisturbed by the din and conflict below, so that he might at last instruct the jury as to the

law that was to govern their verdict. I will not say, may it please your Honours, that it was impossible for him to comprehend the matter to his own satisfaction, in the course of a single trial: I will not undertake to measure the utmost reach of human intellect; but I will undertake to say, that I trust and believe there is no judge on this bench, who would not desire the ground thus gone over to be reviewed; and that, if he has fallen into any error, it might be corrected. I do not doubt it; and therefore I now address his Honour as freely as I do any of his associates, under the perfect conviction, that if he should see any error, he will not be the last to correct it. Now, we desire the opportunity of another trial; and the grounds of our application have been already in some degree disclosed. We undertake to show, from the history of the cause, that several parts . of our defence were not allowed to have that weight which should have been allowed them. I go farther and say, that when the case went to the jury, and even before it went to them, there was a manifest prejudice in their minds against us: from what source arising, it is not necessary me to say. If the fact that the verdict was rendered by a jury so influenced and so prejudiced, be substantiated, that of itself will be a sufficient ground for demanding a new trial. I say also, that the whole investigation, so far as it has been conducted, and the decision, to the extent to which it has gone, is a manifest violation of our Constitution-I mean the Constitution of the Church-of spiritual liberty, and of the rights of conscience. I have already adverted to this point: for an illustration of which, I must thank Mr. Randall. He has told us, that the effect of your Honours' adding your sanction to the verdict of the jury, would be to force together the two parties in this controversy. Now, if I may be allowed a few more words in reply to this, I will endeavour to suggest some views of the subject, arising out of it, tending to show the propriety-in fact, the necessity, of a strict adherence to the constitutional principle to which I have referred.

In the first place-and this must already have suggested itself to your Honours' minds-there are great difficulties and embarrassinents in the way of inquiries like that in which we are now engaged, as the present case must bear witness. Is it fit that this court should entertain an appeal from the General Assembly? I do not mean now to inquire whether it is fit that such an appellate jurisdiction, where it belongs to a civil court, should be exercised. If your jurisdiction be established, you must take cognizance of the appeal. I speak of the difficulty-nay, of the impossibility, of arriving at a right conclusion in such a case. Need I point out the grounds of difficulty? I will call your attention, for a moment, to the resolutions of the Assembly of 1837, which have given rise to this proceeding to either one, that repealing the "Plan of Union," or that exscinding the four Synods, or to both. Why, if an appeal be taken, in regard to those acts, to this tribunal, your Honours must put yourselves in the place of the General Assembly itself, and decide what you would have done in a similar case; whether, under the same circumstances, you would have pursued the same course. In this investigation, the very first blow has been aimed at the intentions and motives which governed those whose acts are called in question. They are charged with pride, a lust for power, a desire to appropriate to themselves the funds of the Church: every thing opprobrious and vile has been heaped upon them; and if finally

our opponents effect their purpose, it can be only because those acts are to be considered as done, not honestly, but with some sinister design. How can your Honours undertake to decide this point?

Again, passing by the gross injustice which was done us in the outset, I come to another point; and here I mean to be explicit. His Honour, Judge Rogers, no doubt in the press and hurry of the proceeding, after distinctly admitting, that the act abrogating the "Plan of Union," was one which the Assembly had a right to perform, goes on to characterize that act as unjust. No doubt, in the discussion of the case at the bar, one side had maintained that it was an unjust act, and the other that it was just. This probably led his Honour to inquire, not only whether the act was lawful, but also as to the other point debated. Now, I mean to contend, and therefore have brought this view before you, that where an act is not unlawful, a court has no right to inquire into the motives which influenced that act. And, for this reason; that to decide as to a man's motives, you must place yourself exactly in his position, and take the same views of every thing that he does, else you cannot judge properly. If the General Assembly has a right to do any act, it is accountable to no human tribunal for the manner in which it may choose to exercise this right. It is a fundamental doctrine, that so long as any one keeps within the precincts of his legitimate powers, he cannot in law be affected by his thoughts, words, or deeds. Your Honours have seen, that in another part of the charge to the jury-that relating to the organization of the Assembly of 1838-the learned judge has in a like manner treated Dr. Elliott, the clerks, and a portion of the Old-school party; inquiring into their motives, characterizing acts otherwise right, from the motives with which they were performed, as a conspiracy. I do not know whether a conspiracy had been charged upon us, even in the discussion at the bar. Certainly such a charge could not be applicable, it being once decided, that our acts were lawful-such as we had a right to perform.

There is great cause here for the court to ponder deeply, and examine well the ground on which they stand; and another reason for this may be added to those already mentioned. Before your Honours arrive at the end of this case, I am persuaded you will find, that if these parties are left to themselves, the public at large, and the friends of religion will not have more cause to deplore the result, than has been furnished in the present investigation. They were in their own proper arena, two parties contending for what they considered their respective rights; one remained upon the ground, while the other betook themselves to another place. The latter have appealed to a court of law, and drawing their adversaries out of their ordinary and appropriate place, have compelled them to join in the conflict and strife of a mere temporal tribunal, where are commonly dealt with matters that engage the feelings and arouse the passions-there is no telling how far the inflammation may extend. Whatever may be the result or the influence of this proceeding, if hereafter it be found that it has brought scandal on religion-if indeed that be in the power of man, which I do not believe-or disparagement upon its professors and ministers, this cannot be imputed to us. Those who brought the case here are alone responsible for the issue. And if they have raised the shout of victory once, they may possibly yet see the time, as they advance in life, as the shadows of their closing day lengthen,