in regard to the consequences, which would result from the refusal of the New School members, to cóncur in the terms of division proposed by the other party?

The question was objected to by the defendant's counsel, on the ground (stated by Mr. Hubbell) that, as the proceedings of the committee were recorded, and in evidence, embracing the conflicting propositions of the two parties, the remarks of individual members of the committee could have no bearing on this cause: that indeed the whole subject was foreign to this controversy. When the account of these attempts at compromise was read by the other party from the minutes of 1837, we did not object, because it was immaterial, and at most only irrelevant. Now, they attempt to substitute for the record, the remarks of individuals, of which we neither know nor wish to know any thing. They were ex parte statements, with which these parties have nothing to do.

Mr. Randall replied: We think this a very important link in the chain of testimony which we design to offer, and as a decision adverse to its admission would be, in our opinion, prejudicial to the cause of justice, we hope your Honour will allow us to connect the whole chain of testimony by

Here Judge Rogers suggested to Mr. Randall that, as the question was an important one, he had better present it to the Court in writing.

Mr. Randall replied that he would do so, and to save time, he would now offer in evidence "The Philadelphia Observer," of March 29th, 1838, containing the notice of the meeting for consultation, previously mentioned by Dr. Patton. The notice was then read, together with the names of those who signed it.

[This document has been already given in connexion with Dr. Patton's testimony.]

Dr. Patton-recalled by Mr. Randall-was requested to examine the list of names appended to the notice, and say whether any of them belonged to the Old School party.

Dr. Patton replied: Some of the gentlemen whose names are appended to this notice are of what is called the Old School party. The Rev. Thomas S. Spencer is one.

Mr. Hubbell inquired for the piece of paper which was torn from the top of the copy of the notice which Dr. Patton first read.

Mr. Randall replied "Here it is; I am willing to give it in evidence if my friend on the other side desires it; it is a circular intended to accompany the notice.

After looking over the paper, Mr. Hubbell waived the subject, stating his willingness that it should be rejected.

Mr. Randall handed to the court, in writing, and to the opposite counsel, the points which he wished to prove by Judge Jessup, as follows:

"That in the course of negotiations of the joint committee appointed by the General Assembly, as a part of the res gesta, Mr. Breckinridge declared, that if the New School party did not accept the propositions of the Old School, he would the next day, in the General Assembly, move to excind a sufficient number of synods from the General Assembly, to secure thereafter, in that body, the

predominance of the Old School." That the other four ministers of this part of the joint committee assented to this declaration. "That he did accordingly move to exclude the Synods of Geneva, Genessee and Utica. That the General Assembly adopted the motion of Mr. Breckinridge. That Mr. Breckinridge made a similar declaration on the floor of the General Assembly."

Mr. Randall remarked, the court would perceive that the paper related to a declaration made in a meeting of the committee. It is said that it is only the act of an individual. But we wish to show an entire want of correspondence between the proposals of the Old School party and their real object. The opposite counsel have gone at length into an examination respecting the ex parte declaration of Mr. Waterbury, a gentleman not present in the Assembly of 1837, nor affected by their proceedings. Now, we wish to exhibit the acts of the individual who moved for this committee, one who was the mouth-piece and, I say it without disrespect, the master spirit of the Old School. We desire to show a concerted plan, a conspiracy, to exclude from their rights and privileges in the Presbyterian Church, certain synods, which, in pursuance to this concert, were subsequently cut off, without trial and without notice. This is the great feature of this case. Here was a violation of the great principle that none shall be condemned without a hearing. On this declaration depends the character of the acts excluding the four synods. A committee to agree upon terms of amicable division, was appointed on the motion of the individual in question. On the reception of their report came the act of exclusion; or, as one of the counsel on the other side has not inappropriately termed it, the detrusion. We wish to show that a menace was distinctly offered, and the act threatened subsequently consummated. This witness, appealing to the book, called for an accusation and for trial. His appeal was met by the previous question. The Supreme Governor of the universe has prescribed a different rule for dealing with offenders, and sanctioned it by his own example. The words of the Omniscient himself were to Adam, Where art thou?" "What hast thou done?" Even he, with a perfect knowledge of all things, would not pass sentence upon frail, fallible man, without a hearing. But here are venerable fathers of the church, born and reared in its communion, detruded unheard. This is the very gravamen of the charge. The exclusion of these trustees, superseded by our appointment, fixes no stain upon their character. The exalted character of the man so often alluded to at the head of the list of those thus superseded is a sufficient proof that we contemplated no such stain. Our object was only to try whether 60,000 communicants, 599 churches and 500 ministers can be detruded, thrust out from all their rights and privileges, without trial or even the knowledge of an accusation. On this ground the present testimony is offered. I consider it the most interesting part of our inquiry and vital to our cause. I hope your honour will allow a full development of the facts in the case.

66

Mr. Wood addressed the court.-The question is raised whether

this evidence is material; but the court will not nicely scan its nature to decide whether it is material, but rather admit it and leave its bearing to the jury. I will attempt to show its application to this case. Having organized the General Assembly of 1838, under circumstances involving some unusual proceedings, we have to prove that in those proceedings we were right. This is essential to our cause. A moderator and two clerks were removed and others elected in their place. We now wish to show our reason for this transaction. It was this: several commissioners to that Assembly from certain presbyteries belonging to the Presbyterian Church, and up to that time uniformly recognised as a part of that church, whose rights had never been disputed, presented their commissions to the proper officers, the clerks, and were rejected, not for any informality in the documents, not for any contest respecting their election, but in obedience to an illegal mandate. When we demanded the enrolment of their names, the moderator refused to put to the house motion after motion, made for this object, saying on one occasion, to a person tendering his commission, "We do not know you." Further, he refused to put to the house, appeals from his decision. After these acts the members appointed a new moderator and new clerks. Their right to do so is not now to be decided. The act was within the power of the Assembly, and we assign as the cause of this act, a deliberate plan, preconcerted by a portion of the Assemblies of 1837 and 1838, to exclude the commissioners in question. Resolutions were passed in 1837, cutting off from the church the synods from which these commissioners came. What, then, is our present object? It is to prove a determined purpose, a conspiracy of the Old School, carried out by their clerks and moderator, to maintain the measures of excision by excluding these commissioners. How are we to prove this? Will it be said that these men would have been admitted at a later period? Was it not the fixed purpose of the Old School to exclude them forever? Can any one doubt it? The pledge demanded from the clerks demonstrates it. That clinches the nail. To prove this preconcerted plan we propose to show a threat proclaimed in a committee of the General Assembly, and afterwards executed in the body itself. A declaration by a member of the Old School portion of the committee, that unless there was a consent by the other portion to an immediate division of the church, without consultation with the presbyteries, a future preponderance of the Old School party in the Assembly would be secured by their cutting off a portion of the other party. And is not this material evidence, showing the reason of the subsequent acts of excision, a deliberate design and preconcerted plan? The declarations which we offer in evidence, are not those of an obscure member, of a mere cipher, of a dough-faced man, but of the head, the prime mover, the very Coryphaus of the party. We offer to prove that he held out at the time a distinct menace, that if the terms proposed were not acceded to, the very next act of the Assembly would be the total exclusion of certain members. If, then, it is proper that this conspiracy should be proved at all, how are we to prove it,

unless by evidence like that now offered, remarks made at the time, in the course of action in the committee room and in the house. The resolutions and proposals made by the two portions of the committee, which we exhibited from the records, do not show the design of those who passed the excinding acts. We mean to show a fraudulent design. I intend no disrespect to these gentlemen; they undoubtedly thought that they were doing right. But their measures were illegal and unjust in the eye of the law and in that sense at least they were fraudulent. How then is all this to be proved except by contemporaneous declarations? There is no other mode. The excinding resolutions give us only the bare fact of the excision. But is it said that the acts of 1837 had nothing to do with those of 1838; that if the roll, prepared by the clerks, was defective, the Assembly would have completed it? Never! And this very thing we wish to demonstrate, by showing a design, a preconcerted plan. This can be proved, in this case, only by the declarations of those active in arranging, counselling and executing the measure. Such declarations were made in a committee of the house, by Mr. Breckinridge, a leader of the Old School; were acquiesced in by his party and verified by subsequent acts, adopted with the express design of securing a majority. Is your honour prepared to say that evidence of this is not material, to show that we were right in removing the moderator and clerks, who, in consummation of this design, refused seats to regularly appointed commissioners? Is it any where pretended that the excinding resolutions are valid? No member of this bar will say it. The counsel for our opponents themselves will not say it. They wisely strive to keep those acts from view. But they must be dragged forth into the light of day. The design with which those acts were passed has an important bearing on this case; and we apprehend that it cannot be proved except by such declarations. If the court shall be of this opinion it will admit the testimony.

Mr. Preston replied: I understand the proposition to be, to introduce certain declarations of Mr. Breckinridge, an individual member of the committee, to show the design with which the General Assembly performed a certain act. We object, on the ground that an individual declaration is entirely incompetent to prove the designs of the Assembly. Are the acts of record to be expounded by oral testimony of the declarations of individuals, the declarations of a single man, made not in debate in the house, but in a subsidiary meeting of portion of its members? Are these to be brought forward to explain public and recorded acts of a judicial assembly? Does the testimony offered contradict the record, or is it consistent with it? Here is a dilemma. If consistent, why seek to confirm that which is certain? Why bolster up what is already fully supported? If contradictory, shall an individual declaration overthrow the solemn record? Shall secondary evidence destroy the primary? Whoever heard the public proceedings of a body expounded by private declarations? Would your honour, sitting in judgment upon an act of the legis lature, allow your decision, as to its validity, or the power of the body to pass it, to be influenced by declarations of individual mein

bers made upon the floor of the legislature? Much less would you by declarations uttered in a committee room. Even the concurrence of the views of all the members of the body, if those views did not appear on the record, would not govern your decision. I venture the assertion, deriving a word from a theological source, as appropriate to a theological controversy,-I venture the assertion, that the exegetical history of no public body was ever introduced to explain its recorded acts. But another serious objection depends on considerations more important. If we examine the circumstances of the case, we see more general grounds for rejecting this testimony. In the decision of yesterday, admitting as evidence the minutes of 1837, I acquiesce. To show the exclusion of the synods, that record is competent evidence. But for no other purpose. To exhibit other acts, or a fraudulent design in those performing these acts, it is clearly incompetent. The issue presented, precludes the admission of such testimony.

In the pleadings, there is a simple assertion and denial of a fact, the fact, that the relators in this suit were elected to the office of trustees by the General Assembly of the Presbyterian Church in the United States. We deny this fact, and here is the sole issue between the parties. It devolves, therefore, on the plaintiffs, to prove the regular and constitutional organization, the proper authority and power of the Assembly by which they were elected. That power and authority we contest. This is the naked issue. If they prove that to be the only true General Assembly, there is an end of our cause. We are not attempting to set up an opposition General Assembly, to show that the Old School Assembly of 1838 was the constitutional Assembly. We rest on broader grounds, and are content with a mere negation of the facts claimed on the other side. However irregular or unconstitutional, however false or fraudulent may have been the proceedings of the Assembly of 1837, and the incipient measures of 1838, and indeed of all the acts of every General Assembly from the year 1800 until now, this does not assist their proof in the least degree. We are anxious to keep to the real, the naked issue. We have not to maintain the affirmative of one issue and they the negative, and the negative of another issue of which they maintain the affirmative. We come into court as defendants, and claim all the privileges of defendants. Could they prove our proceedings false and foul and fraudulent, this would not establish their claim. The venerable gentleman who sits near me, Dr. Green, whom they propose, under the authority of their Assembly, to detrude, employing a word previously introduced, to detrude from the board of trust, holds his office under the original appointment of the legislature, altogether independent of the Assembly of 1837, and of every other General Assembly. He is above all imputation of irregularity in his appointment. We have then nothing to do or to prove. It is for our opponents to show the paramount power by which they strike down this venerable man. Why then investigate the acts of the Assembly of 1837? Not one of those whom they would eject, holds office under that Assembly. Though he to whom I have just alluded, is the only relic of the