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The issues of these trials in the Supreme Court of Pennsylvania are these: In the trial before Judge Rogers, he charged the jury strongly in favor of the Constitutional Assembly, and the jury, after an hour's deliberation, rendered a verdict in their favor. The Assembly, on the New Basis, appealed to the Court in Bank for a new trial, and the Court granted it.

Some things in the charge of Judge Rogers, and the opinion of Chief Justice Gibson, demand a moment's attention. Judge Rogers' charge contains a lucid statement of the principles of the Constitution of the Presbyterian Church, and a concise, but accurate history of the unhappy controversy, which resulted in its division.

Both Judges are agreed in the opinion, that "the Plan of Union of 1801 was strictly constitutional." If this opinion be correct, the strongest alleged reason for the excision of the Synods, is no reason at all. Of course, if the act be justified, it must be on other grounds. The candid and intelligent reader of the foregoing pages, we trust, is fully convinced that there are no grounds on which the acts of excision can be justified-that they deserve universal and everlasting reprobation. Of course the refusal of the New Basis Assembly to enter the names of the Commissioners from the disowned Synods on the roll of the Assembly was arbitrary and unrighteous, and a gross violation of the Constitution, quite sufficient to justify the measures, adopted by the Constitutional Branch of the Church, to secure a regularly organized Assembly.

Judge Rogers was decidedly of the opinion, that Dr. Elliott, the Moderator, by refusing to put the appeal of Dr. Mason, was guilty of "a dereliction of duty-a usurpation of authority, which called for the censure of the house." Again he says: "It is the opinion of the Court, that the General Assembly has a right to depose the Moderator, upon sufficient cause. power is necessary for the protection of the house; otherwise the Moderator, instead of being the servant, would be the master of the house."

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He was also of the opinion that Mr. Cleveland had a right to put the question, that Dr. Beman should be the Moderator. "There is no doubt the house may elect a Moderator, although the seats of some of the members are contested." He says, moreover, "That the fact that Mr. Cleveland put the question instead of the Moderator, the cries of order when this was in progress, the omission of some of the formula usually observed, when there is no contest and no excitement, . . . will not vitiate the organization. . . .” Judge Gibson was of a different opinion. He says: "The refusal of an appeal from the decision of the Moderator, would be no ground for the degradation of the officer, at the call of a minority; nor could it impose on the majority an obligation to vote on a question put unofficially and out of the usual course. The choice of a Moderator to supplant the officer in the chair, even if he were removable at the pleasure of the commissioners, would seem to have been unconstitutional. But he was not removable by them, because he had not derived his office from them, nor was he answerable to them for the use of his power. He was not their Moderator. He was the mechanical instrument of their organization; and till that was accomplished, they were subject to his rule-not he to theirs."

If this opinion be correct, the Moderator of the previous Assembly, or to use the language of the Judge, "the mechanical instrument of their organization" might persist in his refusal to put a question during his lifetime, and utterly prevent the transaction of all business; nay, the organization of the body. According to this opinion of Judge Gibson, the Twenty-Sixth Congress was not constitutionally organized, because Mr. Adams put the question on a motion for the removal of the Clerk of the House of Representatives and the appointment of another in his place.

The Judge also assumes it as an incontrovertible fact that the Presbyteries embraced in the exscinded Synods, were formed upon the basis of the Plan of Union. On previous pages of this history, it has been shown that the Plan of Union had nothing to do with their formation—that they were organized in strict conformity with the Constitution of the Presbyterian Church. Consequently the Judge's assumption is wholly at variance with the facts.

Another assumption of the Judge, equally unfounded with the one just noticed, is, that the Assembly unites "the legislative, executive and judicial functions of the government;" that "its acts are referable to the one or the other of them, according to the capacity in which it sat when they were performed." The reader has but to turn to chapter XII. section VI. of the Form of Government, to satisfy himself that the Assembly has no legislative power whatever-that it pertains exclusively to the Presbyteries. In connection with the last mentioned unauthorized assumption, the Judge makes two admissions, which are too important to be passed over, unnoticed. One is that the Synods, notwithstanding all that had been alleged by the exscinders concerning their heresies and disorders, had done nothing deserving of censure: the other is that the excision, as a legislative act, had the appearance of injustice, and we think his language implies that he believed it had something of the reality. He says: Now the apparent injustice of the measure arises from the contemplation of it as a judicial sentence pronounced against parties who were neither cited nor heard, which it evidently was not. Even as a legislative act, it may have been a hard one, though certainly constitutional and strictly just." "Had the exscinded Synods been cut off by a judicial sentence without hearing or notice, the act would have been contrary to the cardinal principles of natural justice, and consequently void."

We would like to be informed by the learned Judge how decapitation or hanging, which would be "contrary to the cardinal principles of natural justice," as a judicial act, could be just as a legislative act. We confess we have not discernment enough to see how there could be more injustice in the one case than the other.

In a subsequent suit in Pennsylvania, brought up by appeal before the Supreme Court, Judge Gibson explained some of the principles on which he had given his opinion in the Court in Bank in favor of the Reformers. The property of the Presbyterian Church in York was of considerable value. A small minority in it were decidedly in favor of the New Basis Assembly. In conformity with the recommendation of its great reforming ordinance, they claimed to be the true Presbyterian Church in York, and brought suit against the Constitutional portion of the Church for the property. The case was tried before Judge Hayes, and decided in favor of the Constitutional party.

The Reformers regarded Judge Gibson's opinion in the Court in Bank as deciding that they were the only orthodox Presbyterians, and the Assembly of the exscinders the only true Assembly, and they doubtless felt if they could bring the suit before him, he would reverse the decision of the lower Court. In this they were disappointed. He affirmed the decision of the lower Court, and decided that the property belonged to the Constitutional portion of the Church.

In delivering the opinion of the Court, to the astonishment and deep regret of the minority, he explained some of the grounds of his opinion in the Court in Bink. He says: "There was not merely a secession of particles, leaving the original mass entire, but the original mass was split into two fragments of nearly equal magnitude; and though it was held by this Court,

in the Commonwealth v. Green, 5 Wheat. Rep. 531, that the party which happened to be in office by means of its numerical superiority at the time of the division, was that which was entitled to represent it and perform the functions of the original body, it is not because the minority were thought to be anything else than Presbyterian, but because a popular body is known only by its government or head. That they differed from the majority in doctrine or discipline was not pretended, though it was alleged that they did not maintain the scriptural warrant of ruling elders. But the difference in this respect had been tolerated if not sanctioned by the Assembly itself, which, with full knowledge of it, had allowed the heterodox Synods to grow up as a part of the Church; and it could not therefore have been viewed as radical or essential. We were called, however, to pass, not on a question of heresy, for we would have been incompetent to decide it, but on the regularity of the meeting at which the trustees were chosen. I mention this to show that we did not determine that the excision was expurgation, and not division. Indeed, the measure would seem to have been as decisively revolutionary as would be an exclusion of particular States from the Federal Union for the adoption of an anti-republican form of government. The excluded Synods, gathering to themselves the disaffected in other quarters of the Church, formed themselves into a distinct body, governed by a supreme judicatory so like its fellow as to pass for its twin brother, and even lay claim to the succession. That the Old School party succeeded to the privileges and property of the Assembly was not because it was more Presbyterian than the other, but because it was stronger; for had it been the weaker, it would have been the party excluded, and the New School party, exercising the government as it then had done, would have succeeded in its stead, and thus the doctrine pressed upon us would have made title to Church property the sport of accident. In that event an attempt to deprive the Old School congregations of their churches, for an act of the majority, in withdrawing from the jurisdiction of the Assembly, would have loaded the New School party with such a weight of popular odium as would have sunk it. Here then was the original mass divided into two parts of nearly equal magnitude and similar structure; and what was a congregation in the predicament before us to do? It was not bound to follow the party which was successful in the conflict merely because superiority of numbers had given it the victory."-See Watts and Sergeant's Reports, Vol. i. pp. 38, 39.

Here the Judge gives the real ground of his opinion in the Court in Bank. He gave it in favor of the reformers not because they were more orthodox in doctrine or in practice, more strictly conformed to the Constitution of the Presbyterian Church, but because they were the majority. Consequently had the Constitutional branch of the Church in 1831, 1832, 1833, 1834 and 1836, when they were the majority, cast out the Synods of Philadelphia and Pittsburg after the manner of their exscinding brethren, seized and appropriated the entire funds of the Church, exhorted minorities in all the churches to declare themselves the orthodox, the only true Presbyterians, and claimed all the property, and thus perpetuated their power, the law would have protected them. But would it have been morally right? Our brethren of the new basis, we are persuaded, will not affirm that it would. We doubt not they will reject the logic and morality of the Judge's opinion no less decidedly than we do.

The judge himself admits that had our branch of the Church adopted this course it would have been suicidal. He says it "would have loaded the New School party with such a weight of popular odium as would have sunk it."

To this opinion of the Judge we give our unqualified assent. It bears VOL. I.-43

hard, however, upon our brethren of the New Basis. If just, how are they to bear up under "a weight of popular odium," which would have crushed our branch of the Church? We leave them and posterity in the coming time, when misapprehension and prejudice shall have passed away, to answer this inquiry.

Other parts of the Judge's opinion are equally adverse to our brethren. They had maintained that the excision was a necessary expurgation, and that those who united with the exscinded were seceders, and they believed that the Judge in delivering the opinion of the Court in Bank had so decided. These positions, his opinion in the case of the Church in York, explicitly denies. He says the Court "did not determine that the excision was expurgation, and not division." He even goes further. He says, "the measure would seem to have been as decisively revolutionary as would be an exclusion of particular States from the Federal Union for the adoption of an anti-republican form of government." He affirms that the action of the Assembly of which we complain, "was no less than a dismemberment of the Presbyterian Body, not indeed by disorganization of it, or an entire reduction of it to its primitive elements, but by an excision. There was not merely a secession of particles, leaving the original mass entire, but the original mass was split into two fragments." And the Judge considers each equally Presbyterian,-" each so like its fellow as to pass for its twinbrother." With one exception the Judge decides that in the former suit the claims of the Constitutional Branch of the Church were as strong as those of the New Basis. At the time of the excision the latter were the stronger party.

There have been a few other suits which merit a brief notice.

In the Church of Neshaminy, Pennsylvania, the New Basis Party, a minority, claimed to be the only true Presbyterians, and sought to obtain the property, but they were unsuccessful.

A minority in the Presbyterian Church, in Florida, Orange County, N. Y., did the same, and with the same result.

"Another suit of the same character was brought by the Reform Party, in the Church of Somers, in the State of New York. They informed the Constitutional Party that they were the only true Presbyterians, and that they must have the Church property, house, parsonage, &c. The Constitutional Party, who were the majority, proposed that the two parties should use the Church alternately, and the question concerning property should be settled by compromise. But the Reform Party would not compromise. The Clerk of the congregation being on their side, they took possession of records, church, parsonage, and all. Being secure, as they thought, they leased the parsonage to a tenant, and lay quietly within the fortifications

of the New Basis.'

"The old trustees had no other alternative left but to decide the matter by a law-suit. They commenced an action of ejectment for the parsonage. After a patient hearing, the jury gave a verdict for the Constitutional Party without leaving their seats."**

The results of these legal investigations and decisions are briefly these: With the exception of the Court in Bank, in Pennsylvania, all of them are decidedly favorable to the Constitutional Branch of the Church. That, by ordering a new trial, which they have not chosen to bring to an issue, was adverse to them. Considered, however, in connection with statements made respecting the ground of that decision, it is very little in favor of the New Basis Body. As we have seen, Judge Gibson did not decide to grant a new

* Woods' History, pages 203, 204.

trial, because he considered those who denominated themselves orthodox, true "Old School Presbyterians," any more worthy of these epithets and appellations, than those whom they denominated "heterodox, schismatics, seceders, the new sect, and New School Presbyterians," but simply because they were a majority. The judgment of the Court in Bank, ordering a new trial, was evidently given upon the unrighteous principle that "might makes right."

The legal decisions in this unhappy controversy establish two points of great importance. One is, that in the judgments of the Courts both bodies are sound orthodox Presbyterians: the other, that in cases of litigation for church property, it should be given to the majority.

These decisions, and these alone, have protected the property of our Church from the rapacity of our misguided brethren. The courts have decided in favor of our Presbyterian rectitude, and we are left in peace.

We are advised by the highest legal authority, that with these decisions as they now stand, we have a valid pro rata, equitable claim to the vested funds of the General Assembly of the Presbyterian Church under the Charter. But this claim we shall hardly enforce. We only ask for our separated brethren, that they may see the wrong they have done, and retract the injuries they have inflicted. For ourselves, having, by the grace of God, survived their violence unharmed, and seen our branch of the Church rise unscathed from its persecutions, we ask the spirit to forgive our opposers, and the energy to enter on the noble field of usefulness before us. We commit our reputation as a Church to the verdict of an impartial posterity, and to the final award of a just and holy God.

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