especially has dwelt upon this point. He says that the rejection of the exscinded commissioners was a breach of privilege, and that the object of Mr. Cleaveland's motion was to punish the Moderator for that breach. But parliamentary privilege is not the privilege of the member: it is the privilege of the body: so far from its being an individual right, the first Manual of legislative practice which you open, will tell you, that an individual whose privilege is invaded, cannot wave the right of prosecuting the matter: the house punishes the breach. Great solemnity too is required in the infliction of punishment for a breach of privilege. The first thing is to determine, that it is a breach of privilege. Then the question arises whether the house will agree to take it into consideration. Then, if it is so agreed, the question of privilege has precedence in the order of business at all times, and when not disposed of, continues to have precedence, often to the great annoyance of many of the members. Here the question arises, did any member of the Assembly say, "This is a case of a breach of privilege? If I may make any mention of my little experience in such matters, I would say, that I have never seen a question of privilege come up in such a shape: if this was one, it certainly appeared in a very strange disguise; and I cannot yet assent to its bearing that character. The motion made by Mr. Cleaveland looked like a very different thing. He certainly did not complain of a breach of privilege, and if a breach had been committed, it was another breach of privilege to foist it into the house in this way, before asking leave or making known what he meant. Had the house ever consented to take it into consideration? It had never been asked to do so. Mr. Cleaveland of his own authority put the question to the Assembly, therein being guilty of a breach of the privilege of every member, excepting those who expressly consented to this proceeding. He made a motion too, which, even if the house could be construed to have agreed to receive it, he did not pretend to be any thing of the sort now described. What then becomes of the argument founded on the assumption that the question proposed was a question of privilege? Again, it is contended that the Assembly had a right to remove their Moderator. I incline, for reasons already stated, to think that they had not that right until the appointment made of a Committee of Elections. But, at any rate, they did not remove him: there was no motion made to that effect. There certainly is not a precedent for any man's usurping the place of Moderator. The case which occurred in 1828, in which Hollis was concerned, was of quite a different sort. There the speaker wanted to leave the chair, but was held in his seat by force. He was acting in obedience to the king's command; but already a contest had begun between the Parliament and the king, and you can see the true spirit of the contest in the occurrences of that day, as distinctly as you see it on the day when they cut off the king's head. It was that spirit which arrayed the Parliament, in the name of the king, against the king, and under the influence of which they raised troops in his name, to make war upon his person. They had then another head: that was king Cromwell. The speaker was acting by the king's authority, and he begged, prayed, and wept, but it was all of no avail. In the scuffle, Hollis who was in the neighborhood of the chair, collected the voices of the members in that neighborhood; but this opposition had no effect; the Parliament adjourned and was dissolved. And when, many years after, the transac

tion came into review, what was done? Was it declared quite orderly? No. The act passed bears no such construction.

Hollis in the mean time had been arraigned before the Star Chamber, but there all his valour oozed out-whether at his fingers' ends or not, I do not know. But at any rate he was as humble and penitent as the speaker had previously been. The new Parliament voted, that the speaker ought not to have abandoned his duty and left the chair; that in doing so he had violated the privilege of the house; but without approving the conduct of Hollis.

What analogy can you find between this case, and that of Mr. Cleaveland, standing in the pew, and making the members vote the contrary of what they meant? I answer, that the case is no precedent; that it was not intended as a precedent for such times as these; though times like those which produced it, may not be far distant in England, if we are to judge from the number of pikes said to have been lately made, in one of her large manufacturing towns.

Again, it is said, that the clerks could not put any question, but by order of the house. The clerks, of course, cannot make an entry on the journal, but by order. 2 Hatsell, 201, 237. But you will find that it is in evidence, that in the Assembly, at least, the clerk may put a motion without an express order. Mr. Meredith, indeed, has discovered that in 1835, the question put by Dr. Ely, was put by him as a member, and not as clerk. I do not think so: I understand just the contrary; and the thing is certainly stated in the plainest terms. The original question on the appointment of the Moderator, was put by the Stated Clerk, who also called the house to order-this without the express consent of the body— and Dr. Beman was placed in the chair. After he had been there some time, he was discovered not to be entitled to the office. A motion was made, to re-consider the vote by which he had been appointed: the minute does not show by whom the question on this motion was put-I suppose by Dr. Beman-but it was decided to re-consider the vote; and, after some speaking on the subject, it was ordered that the question should be put by the Stated Clerk: "Whereupon Dr. Ely put the question;" and Dr. Ely was the Stated Clerk. The question was ordered to be put by the Stated Clerk. Was it then put by him as an individual member, or as Stated Clerk? If he put it as an individual member, that was not in accordance with the order. It appears, then, that it was put by the clerk; and by him must such questions be put, on all occasions. In that case, they were very attentive to the rules of order; for, when the motion was carried to re-consider the question, the chair was immediately regarded as vacant, every thing as respects it, was placed back in its original situation, as if nothing had been done, and the question was again put on the original motion, by the Stated Clerk. Then Dr. McDowell was elected, because he was entitled to occupy the chair. But here was a case in which the right person was already in the chair. The chair was full. Dr. Elliott had been the Moderator of the preceding Assembly, and it was clearly his duty to preside. In case of his absence, the clerk should have put the question; or, if there had been no clerk, a temporary officer might have been appointed for the purpose. But, so long as the chair was filled, and that with the right person, none but himself could put a question; unless, in a case of peculiar delicacy, he had retired from the

chair, and requested another person to occupy it, or, not leaving the chair, asked some one to put it for him.

I have now gone through with what I have considered my duty in this case, not without labour to myself, or fatigue, as I fear, to your Honours. But a sufficient apology may be found, as it appears to me, in the great importance of the questions which it involves. Those who know anything of this matter, know well that I have not sought the occasion of appearing here. Sickness prevented me from being present during the greater part of the trial, and I felt some reluctance to come in at the present stage of the case, not only because I had not attended the trial, but more particularly for other reasons. many of the gentlemen on both sides, and have great respect and much I have been long acquainted with kind feeling for them. I was sorry to see them here arrayed against each other in a civil court. I can assure them that it has not been without pain, that I have been obliged, professionally, to turn my face away from the view in which I have always before regarded them; and in which I shall continue to regard them, notwithstanding that it has fallen to my lot, to attempt in a professional capacity to show which party are in the right. I have now performed my duty, and disclosed the grounds on which I think the right of the defendants stands. And if I have consumed a considerable time, I may at least feel satisfied in the reflection, that I have had no inordinate desire to consume it, or needlessly to waste a single moment. On every ground, I trust it has been shown that the case is clearly with the defendants, and that the verdict must be set aside.

Court adjourned.

SATURDAY MORNING, APRIL 27th-10 O'CLOCK.

Mr. Randall said a few words in reply to Mr. Sergeant:-If he should attempt to reply to all the new matter which that gentleman's argument contained, he must reply to the whole. The ground taken by Mr. Sergeant in regard to the jurisdiction of the court, he had before understood to be entirely abandoned by the counsel for the defendants; that nothing had been heard of it since July, 1838. Court of Delaware had been referred to, but in the opinion of C. J. A case decided by the Supreme Johns, one part of which had been read, there was a distinction taken between acts of the ecclesiastical Presbytery, and of the civil Presbytery or corporation; and it was held that if an act of the latter, excluding the plaintiff, had been alleged, a mandamus would lie; but that the affidavit made no such allegation. (Here Mr. Randall read two or three short extracts from the opinion.-Vid. ante 537, et seq.) The jurisdiction of the court in such cases had been settled in both Pennsylvania and Maryland. He would allude to one other point of Mr. Sergeant's argument. Supposing a question to have been put, in 1835, by Dr. Ely as Stated Clerk, that did not sustain the position taken by the counsel. is not the clerk of the house: he is the depositary of the records. The The Stated Clerk clerks of the house, are the Permanent and Temporary Clerks.

587

WEDNESDAY MORNING, MAY 8th-10 O'CLOCK.

CHIEF JUSTICE GIBSON delivered the opinion of the Court.

To extricate the question from the multifarious mass of irrelevant matter in which it is enclosed, we must, in the first place, ascertain the specific character of the General Assembly, and the relation it bears to the corporation which is the immediate subject of our cognizance. This Assembly has been called a quasi corporation; of which it has not a feature. Ă quasi corporation has capacity to sue and be sued as an artificial person; which the Assembly has not. It is also established by law; which the Assembly is not. Neither is the Assembly a particular order or rank in the corporation, though the latter was created for its convenience; such, for instance, as the share-holders of a bank or joint-stock company, who are an integrant part of the body. It is a segregated association, which, though it is the reproductive organ of corporate succession, is not itself a member of the body; and in that respect it is anomalous. Having no corporate quality in itself, it is not a subject of our corrective jurisdiction, or of our scrutiny, farther than to ascertain how far its organic structure may bear on the question of its personal identity or individuality. By the charter of the corporation, of which it is the handmaid and nurse, it has a limited capacity to create vacancies in it, and an unlimited power over the form and manner of choice in filling them. It would be sufficient for the civil tribunals, therefore, that the assembled commissioners had constituted an actual body; and that it had made its appointment in its own way, without regard to its fairness in respect to its members: with this limitation, however, that it had the assent of the constitutional majority, of which the official act of authentication would be, at least, prima facie evidence. It would be immaterial to the legality of the choice that the majority had expelled the minority, provided a majority of the whole body concurred in the choice. This may be safely predicated of an undivided Assembly, and it would be an unerring test in the case of a division could a quorum not be constituted of less than such a majority; but, unfortunately, a quorum of the General Assembly may be constituted of a very small minority, so that two, or even more, distinct parts may have all the external organs of legitimate existence. Hence, where, as in this instance, the members have formed themselves into separate bodies, numerically sufficient for corporate capacity and organic action, it becomes necessary to ascertain how far either of them was formed in obedience to the conventional law of the association, which, for that purpose only, is to be treated as a rule of civil obligation.

The division which, for purposes of designation, it is convenient to

call the Old-school party, was certainly organized in obedience to the established order; and, to legitimate the separate organization of its rival, in contravention, as it certainly was, of every thing like precedent, would require the presentation of a very urgent emergency. At the stated time and place for the opening of the session, the parties assembled, without any ostensible division; and, when the organization of the whole had proceeded to a certain point, by the instrumentality of the Moderator of the preceding session, who, for that purpose, was the constitutional organ, a provisional Moderator was suddenly chosen, by a minority of those who could be entitled to vote, including the exscinded commissioners. The question on the motion to elect, was put, not by the Chair, but by the mover himself; after which, the seceding party elected a permanent Moderator, and immediately withdrew, leaving the other party to finish its process of organization, by the choice of its Moderator for the session.

In justification of this apparent irregularity, it is urged that the constitutional Moderator had refused an appeal to the commissioners in attendance, from his decision, which had excluded from the roll the names of certain commissioners who had been unconstitutionally severed, as it is alleged, from the Presbyterian connexion, by a vote of the preceding ses

It is conceded by the argument, that if the Synods, with the dependent Presbyteries by which those commissioners were sent, had been constitutionally dissolved, the motion was one which the Moderator was not bound to put, or the commissioners to notice; and that whatever implication of assent to the decision which ensued, might otherwise be deduced from the silence of those who refused to speak out, about which it will be necessary to say something in the sequel, there was no room for any such implication in the particular instance. It would follow also, that there was no pretence for the deposal of the Moderator, if indeed such a thing could be legitimated by any circumstances, for refusing an appeal from his exclusion of those who had not colour of title, and consequently, that what else might be reform, would be revolution. And this leads to an inquiry into the constitutionality of the act of excision.

The sentence of excision, as it has been called, was nothing else than an ordinance of dissolution. It bore that the Synods in question, having been formed and attached to the body of the Presbyterian Church under, and in execution of, the plan of union, "be, and are hereby declared to be, out of the ecclesiastical connexion of the Presbyterian Church in the United States of America; and that they are not in form or in fact, an integral portion of said Church." Now it will not be said that if the dissolved Synods had no other basis than the plan of union, they did not necessarily fall along with it, and it is not pretended that the Assembly was incompetent to repeal the union prospectively, but it is contended that the repeal could not impair rights of membership which had grown up under it. On the other hand, it is contended that the plan of union was unconstitutional and void from the beginning, because it was not submitted to the Presbyteries for their sanction; and that no right of membership could spring from it. But viewed, not as a constitutional regulation which implies permanency of duration, but as a temporary expedient, it acquired the force of a law without the ratification of those bodies. It was evidently not intended to be permanent, and it conse