2. If we even admit that the plan was and is unconstitutional, it would not follow that the abrogation act sweeps away every thing which rests upon that plan. The principle that all the rights vested under an unconstitutional law are invalidated, and fall as soon as the law is abrogated, is monstrous: it would break all the ligaments of society, and destroy all the vested rights of property. If it should be applied to the present case, then all the licensures, ordinations, and titles to Church property, under the plan of union, were thrown to the winds. Your vote can never make it true; wise men and Christians will see the injustice; and half the state of New York will be involved in it. To show the unsoundness of this principle, we appeal to the opinion of one of the most eminent jurists that ever lived. Chief Justice Marshall, in giving the opinion of the supreme court in the Yazoo-land case, assumed the position, that as the state of Georgia was a party to the contract conveying those lands, that state could not disannul its own contract for any reason whatever. We admit that the decision of the court in the case itself, as between those parties, did not turn on this point, respecting the constitutionality of the act, but on the charge of bribery in the legislature. But in giving the opinion of the court, the venerable judge has incidentally laid down a principle, which bears directly on the case before us. “For a party,” he says, “to pronounce its own deed invalid, whatever cause may be assigned for the invalidity, must be considered a mere act of power, which must find its vindication in a course of reasoning not often heard in a court of justice.” Cranch’s Reports, vol. vi. p. 135. Are we wrong then in assuming that if the law of the state of Georgia, conveying these lands, had been unconstitutional, the legislature that made the law, and then repealed it, could not by this take advantage of its own wrong, and proceed to annihilate contracts made and rights vested under the rule which they themselves had made? Again, the judge says, “When a law is, in its nature a contract, when absolute rights have vested under that contract, a repeal of the law cannot divest those rights.” Let us suppose, for illustration, that Congress should pass a law which is in fact unconstitutional, supposing it to be constitutional, and the thing goes on for thirty-six years, and under its operation various rights have vested, and various institutions, commercial, literary or political, have grown up, for instance, in the state of Pennsylvania. Now, at the end of thirty-six years, the law is pronounced unconstitutional, what would be the effect of such a decision? We venture to affirm that no court or Congress of the nation would ever attempt to carry out the decision, in the manner we are doing, to crush, not merely the institutions formed, but the state of Pennsylvania in which they have existed. Why, sir, what do you propose? By the very principle assumed, you have only power to annihilate the institutions formed under the plan of union. But you propose to annihilate a whole synod regularly and constitutionally formed. If this is justice, it is justice with a vengeance. Let us take another case. Suppose the state of Georgia had, thirty-six years ago, invited the missionaries to come and labour for the benefit of the Indians, assuring them of protection, and by an unconstitutional law, had granted certain rights and privileges to the missionaries and the Indians, on the strength of which houses and towns had been built; and then after the process of civilization had been going on for thirty-six years, there was a decision, not of Chief Justice Marshall of glorious legal memory, but of a majority in a vacillating legislature, that is chosen every year, and changes as often, that the law is unconstitutional. Could they then take advantage of their own wrong, and immediately send out the sheriff, without process or trial, to imprison the missionaries, break up their settlements, and hang the poor Indians, for no other crime than that of exercising the rights which had been granted to them by a former legislature?

3. We may, however, admit every thing that is claimed, 1. That the plan of union is unconstitutional; 2. That the abrogation act sweeps away every thing which rests upon it, and what follows? Why you cannot touch one synod or presbytery; you merely sweep away the churches which are of a mixed character. There are many good and honest men on the other side of the house, whose minds are so filled with rumours that they have hardly room to receive the truth, who are therefore prepared to say aye to this resolution, supposing they are going to cut off a synod formed on an unconstitutional basis. But this is not the fact. Our book says that a presbytery consists of all the ministers within a certain district, and a ruling elder from each church. The presbyteries out of which this synod was formed were regularly organized by the Synod of Pittsburg, and by the General Assembly of 1825 the presbyteries were regularly formed into a synod, which has been recognized ever since. Now admitting there are churches among them formed on the plan of union, and that this plan is unconstitutional and void, how does this affect the standing of Presbyterian ministers and churches, or the standing of the presbyteries or synod? A minister becomes, by his ordination, a member of presbytery, and a constituent part of the Presbyterian Church. How is his relation to the Church affected by your pronouncing the plan of union unconstitutional? His standing is not on that plan, and therefore he does not fall, even though the plan be annihilated. You allow your ministers to be editors, teachers, farmers and merchants, without disowning them; are they necessarily out of the Church the moment they become the pastors of Congregational or mixed churches? It must be remembered that many of these ministers were regularly ordained by other presbyteries, about whose regularity there is no question. And yet you propose to declare them to be no part of the Presbyterian Church, merely because there are some churches connected with the Presbyteries to which they now belong, whose organization you choose to pronounce irregular.

4. Whatever name may be given to this proceeding, it is to all intents an act of discipline. Upwards of a hundred ministers and churches are to be condemned without a trial. If there are irregularities and disorders within the bounds of this synod which it refuses to correct, your proper course would be to cite them to your bar; to ascertain, by judicial process, the real state of the facts, and if they refuse to abate these evils, to deal with them as the case may demand. But this resolution cuts them off without the show of a legal process. It virtually excommunicates them without the form of a trial.

5. The consequences of the principle on which this measure is based reach much farther than many seem to imagine. You cannot consistently stop short after the excision of the Synod of the Western Reserve. If that synod is no part of the church, because the plan of union is unconstitutional, then all those synods and presbyteries embracing churches formed on that plan must also be disowned. What then will become, not only of the synods of Western New York, but of Albany and New Jersey? Why, there were in the Albany Synod, as late as the year 1808, and by the authority of the General Assembly too, things which you will acknowledge to be a great deal worse than the plan of union ever was. By the express command of the General Assembly, they were required to have, and did have, on the floor of the synod, as members, A WHOLE CONGREGATIONAL ASSOCIATION. And now what will you do? We go yet further. That same Albany Synod has controlled the acts of this body, and has furnished no less than five or six moderators in the seat which you now occupy. On the arguments of these brethren the Presbyterian Church is unsound to the core; this congregational gangrene has seized upon the very vitals of the body, and you cannot cut it out without destroying your own life.

Again, what are to be the legal consequences of these proceedings? Were you sitting in a state which had a court of chancery, his honour the chancellor might lay an injunction on your proceedings; and if it were done, a few hours would terminate the brief authority by which you sit in that chair. There can be no doubt that these proceedings can be reviewed in the courts of justice. Probably it would be the delight of the Pennsylvania legislature to crush your charter, if in one thing you depart from the line of the law; and if once done, it will be long before you get another. Let the men who are legislating against unconstitutional measures beware themselves not to do anything unconstitutional. We know who said, “He that taketh the sword shall perish by the sword.” And if you take the sword of illegitimate power, you may yourself fall by the sword of the civil power.

There is one thought more which deserves serious consideration. The act you propose to do, will fix indelibly on the Presbyterian Church the character of utter faithlessness to her own solemn compacts. The Church in this country is fast treading in the footsteps of the world. What is now the state of our commercial credit at home and abroad? It is gone. As a nation we have broken faith with the natives who put themselves under the broad wing of our national eagle for protection. We have torn our solemn treaties to pieces, and given their fragments to the winds of heaven; and to wind up the disgraceful drama, we have imprisoned the missionaries of the cross, who went forth, by our own sanction, to enlighten and cultivate the Indian race. But what are you doing? You are outstripping everything which politicians have ever done. Go on and complete what you have done, and you will render American faith, in treaties and in commerce, and Presbyterian faith in religion, as notorious in modern history as Punic faith was in ancient days.

In support of the resolution, it was urged, 1. That it was neither in intention nor fact an act of discipline. Such act supposes an offence, a trial, and a sentence. The resolution, however, charges no offence, it proposes no trial, it threatens no sentence. It purports merely to declare a fact, and assigns a reason for the declaration. It has neither the form nor the operation of a judicial process. Should the resolution be adopted, it will not affect the standing of the members of this synod as Christians, as ministers or pastors. It will simply alter their relation to the Presbyterian Church. We do not propose to excommunicate them as Church members, or to depose them as ministers. We do not withdraw our confidence from them, or intend to cast any imputation on them. We simply declare that they are not constitutionally a part of our Church. Whether this declaration is consistent with the truth, and whether we have the right to make it, are the points now to be argued. The attempt to excite prejudice against the measure as a condemnation without trial, as a new method of discipline, as a high-handed and oppressive act of power, is uncandid and unfair. Is it an act of oppression for a court to declare that an Englishman is not an American, or that an alien is not a citizen? The decision may be erroneous, or it may arise from impure motives; but the effort to decry the mere mode of proceeding as an extra-judicial trial, a form of punishing without a defence, and before conviction, would be preposterous.

The resolution declares that the Western Reserve Synod is not a regular portion of our Church, and it rests this declaration on the unconstitutionality of the plan of union. Of course it is here assumed, first, that this plan is unconstitutional; and, secondly, that the synod in question is in the Church only in virtue of that plan. The former of these points, having been already decided by the house, is now to be taken for granted. And this may the more safely be done because it has been freely conceded by members on the opposite side, and because it is so obvious as scarcely to admit of being proved. It is in fact as plain as that a Congregational church is not a Presbyterian church. With regard to the second point, we admit that something more is necessary than merely to prove that the plan of union is unconstitutional. It must be shown, in the first place, that the churches within the bounds of this synod were formed on the basis of this plan; secondly, that the abrogation of the plan effects the separation of those churches from this body; and, thirdly, that the connection of the synod is of necessity also thereby dissolved.

With regard to the first of these points it is, as a general fact, a matter of historical notoriety, and might be as safely assumed as that the United States were originally British colonies. It is extremely difficult, however, to get at the details, and ascertain what proportion of these churches are still Congregational. This difficulty arises from the censurable custom of reporting all the churches connected with the presbyteries included within this synod as Presbyterian churches, no matter what their real character may be. We are saved a good deal of trouble, however, on this point, by the admission of the commissioners from these presbyteries, that of the hundred and thirty-nine churches belonging to the synod, only from twenty-five to thirty are presbyterially organized; all the rest being Congregational or mixed.* This, surely, is enough to show, what indeed everybody knows, that this synod is essentially a Congregational body; that the great majority of its churches have no other connection with this Assembly than that which is given them by the plan of union. The question then is, does the abrogation of that plan dissolve this connection? It undoubtedly does, unless you take measures to prevent it, and declare the contrary. The system has been so long tolerated, that this house would be justified in a court of equity, and would doubtless be sustained by the presbyteries, if it should see fit to allow time for the churches formed under it to re-organize themselves and come into regular connection with this Assembly. But if, on the whole, the house thinks that the connection should cease immediately, they have nothing to do but to make the declaration contained in this resolution. The operation of the abrogation is to dissolve the connection. This is the common-sense view of the case which every man would take who had not got bewildered by loooking at detached fragments of legal reports; and which any one who has patience to read a little more than a fragment, must take with increased confidence. The General Assembly pass a resolution declaring that churches organized in a certain way may be connected with our body; afterwards they rescind that resolution—what is the consequence? Why certainly to withdraw the permission and dissolve the connection. The connection was formed by the first resolution, it lasts while the resolution continues, and ceases when it is repealed. This is common sense. “The plan of union,” says the N. Y. Evangelist, announcing your previous decision, “is abrogated; and the churches which are built on that basis are now no longer a part of the Presbyterian Church.”

It is however, objected that, where a law is of the nature of a contract, its repeal cannot invalidate the rights which have vested under it. We admit the principle freely, but we ask, what is a law; it is an enactment made by a competent authority, in the exercise of its legitimate powers. An act passed by a body that had no right to pass it, is no law; it has no binding force; it is legally nothing and can give existence to nothing legal. Suppose Congress should enact that the king of Great Britain should be the president of the United States, would that be a law? If the British acceded to the proposal, it would be of the nature of a contract; and if the argument of the gentleman opposite be worth any thing, it would be binding in despite of the constitution or wishes of the country. The fallacy lies here in begging the question; in assuming that an unconstitutional act of a legislature is a law. It seems, however, that Chief Justice Marshall has sanctioned the principle that an act, though unconstitutional, is valid, if rights have vested under it. We hold this to be a priori impossible. Of all eminent jurists, that distinguished judge infused most of common sense into his legal decisions, and made the law, as far as possible, what it purports to be, the authoritative expression of the sense of right which is common to all men. The passage quoted in proof of the assertion is from the decision in the Yazoo-land case. “The legislature of Georgia,” says the judge, “was a party to this transaction; and for a party to pronounce its own deed invalid, whatever reason may be assigned for the invalidity, must be considered a mere act of power.” This passage bears more directly upon another point, viz., the right of this body to pronounce upon the validity of its own act. But it was used also to prove that rights vested under an unconstitutional act are valid. It is asserted that even had the act of Georgia in question been unconstitutional, according to Chief Justice Marshall, the sales made under it could not be set aside. Before looking at the report from which this sentence is quoted, or ascertaining the connection in which it occurs, it is easy to point out the fallacy of the argument founded upon it. The very first clause assumes that the legislature of Georgia was a party to the transaction—but the legislature is not a party to an unconstitutional law—such a law is not an act of the legislature, it is the unauthorized act of a number of individuals sitting in a legislative hall and going through certain forms. A legislature is the agent of their constituents; and it is a rule of law, as well as of justice, that the deed of an agent, acting under written instructions, is not binding on his principal, if it be done in direct violation of those instructions. Let us suppose that the legislature of Georgia, or rather the men composing it, should, in secret conclave, sell their whole state, with all its inhabitants, to some African monarch ignorant enough to make such a bargain, would it be binding on all future legislatures to the end of time? So say our clerical jurists; but it is a shame to evoke Chief Justice Marshall to deliver such law as this. Common sense would say that the African king had been cheated, but not that the state of Georgia had been sold. If any one will take the trouble to turn to the Report the gentleman has quoted, he will find that the first point made in the case which it details, was, Whether the state of Georgia was seized of the lands in question at the time of the sale? The second, Did the constitution of Georgia prohibit the legislature to dispose of the lands? The former of these questions the court decided in the affirmative, the latter in the negative; and it is ever afterwards assumed throughout the decision that Georgia owned the lands, and that the legislature had a right to sell. The third point was, Whether this legal act was vitiated by the alleged bribery of some of the members of the legislature? This point the court refused to go into, as not properly before them, and because, if the corruption did take place, it could only vitiate the contract between the original parties, and could not affect the rights of innocent bona fide purchasers. The fourth point was, Whether a subsequent act of the legislature, setting aside this legal and constitutional contract of their predecessors, was valid? which was decided in the negative. This case, therefore, proves the very reverse of what it was cited to prove “If the title,” says Judge Marshall, “be plainly deduced from a legislative act, which the legislature might constitutionally pass, if the act be clothed with all the requisite forms of law, a court, sitting as a court of law, cannot sustain a suit brought by one individual against another, founded on the allegation that the act is a nullity, in consequence of the impure motives which influenced certain members of the legislature which passed the act.” It is here assumed that if the law had been unconstitutional, it would be a nullity, the very opposite doctrine to that which the report is cited to prove. It requires, however, no judge to tell us that a man cannot sell what he does not possess; that he cannot convey a title to another which is not in himself; or that an unconstitutional act of any body is a nullity.

It would be easy to cull from the Digest of the Reports of the Supreme Court hundreds of cases in which this principle is asserted or assumed. Thus the court say, “If any act of Congress or of a legislature of a state violates the constitutional provisions, it is unquestionably void.”* Again, “an act of Congress repugnant to the constitution, never can become a law of the land.” Those acts which are of the nature of a contract are no exception to this rule. The case in Kentucky, relating to the old and new court, is a case of this kind. Where an officer is not removable at the will of the appointing power, the appointment is not revocable and cannot be annulled, it has conferred legal rights which cannot be resumed. The act of the state appointing certain judges was therefore of the nature of a contract; the moment, however, the law creating the court to which it belonged was declared unconstitutional, the contract was annulled, and the judges were out of office. The state of New York passed a law of the nature of a contract, conferring on Robert R. Livingston and Robert Fulton certain privileges. This law was pronounced unconstitutional, and the contract was rendered void. The act of the state of New Hampshire, altering the charter of Dartmouth College, was of the same nature; yet when the law was pronounced unconstitutional, all the appointments and contracts made under it were swept away. There are, no doubt, often cases of great hardship under the operation of this principle; and therefore special provision is generally made for them, either by enactments of the legislature, or by the courts of equity. The principle itself, however, is one of the most obviously just and universally recognized in the whole compass of jurisprudence. It would indeed be a deplorable thing if a legislative body, in defiance of the constitution, could, under the influence of passion or self-interest, bargain away the rights, liberties and property of their constituents, and, under the plea of the sacredness of the contract, entail the bargain on all their successors.

Even admitting then that the plan of union adopted in 1801 was of the nature of a contract, yet if the plan is unconstitutional it is void; it has existed hitherto only by sufferance, and may at any time be set aside. There is, however, an unfairness in this mode of presenting the case. The plan of union is not a contract in the ordinary sense of the word; nor have absolute rights vested under it according to the common use of those terms. “The provision of the constitution [of the United States respecting contracts] never has,” says Judge Marshall, “been understood to embrace other contracts than those which respect property, or some object of value, and which confer rights which may be asserted in a court of justice.”* The plan of union is little else than a declaration, on the part of the Assembly, that it will recognize churches organized in a certain way. The connection thus formed was perfectly voluntary; one which either party might dissolve at pleasure. Should these churches meet and resolve to break off the connection, Presbyterians would make no difficulty about vested rights and the sacredness of a compact. But this is a point we need not urge, admitting the act to be of the nature of a contract, still, if unconstitutional, it is void, and imposes no obligation on future Assemblies. It is, therefore, only by the application of legal principles to a case to which they do not refer, that any plausibility can be given to the arguments by which this resolution has been so strenuously assailed. We are not about to pass an ex post facto law, nor to interfere with the vested rights of any set of men, but simply to declare that the voluntary connection into which we entered by the plan of union with certain churches, is dissolved. These churches rest upon this plan; if the plan be removed, these churches are removed with it. What can be the meaning of the act of abrogation, if it is not to break off the anomalous and unconstitutional connection, which it effected between us and the accommodation churches? If Congress, twenty years ago, had formed a treaty, by which, in despite of the constitution, Canada and Mexico were allowed to send delegates to our national councils, would not the abrogation of that treaty put an end at once to the connection? And would the complaint about vested rights excite any sympathy where the case was known and understood?

It has been asked what would be thought of a state, which, by an unconstitutional law, should invite missionaries to come and labour for the benefit of the Indians, assuring them of their protection, and granting them many privileges, and after houses and towns had been built, and the process of civilization been going on for years, should, on the plea of the invalidity of the law, without process or trial, proceed to imprison the missionaries, break up the settlement, and hang the Indians. It requires the utmost stretch of charity to believe that such an illustration is deemed pertinent even by its author, or that it has any other design than to cast odium upon the members of this house. Let the case be fairly stated, and we are willing to submit it to the decision of the enlightened consciences of all good men. Suppose then that a state government had extended its protecting and fostering hand over the tribes on our borders, and granted them privileges inconsistent with the constitution, allowing them the right of representation, and an equal voice in making the laws of the state to which these tribes themselves were not amenable; and that in the course of years they had so increased as nearly to outnumber the legal inhabitants, would any good and honest man think it wrong for that state to say to these tribes, “You are now sufficiently numerous and strong to subsist by yourselves; you have flourishing settlements and abundant resources; we have given you the privilege of sitting in our councils and of making laws for us long enough to teach you the nature of our system, which you deliberately reject; your institutions and habits are different from ours; your ideas of government are inconsistent with our system; the influence which you are exerting upon us we believe to be destructive; it is time we should part; we leave you all your settlements, all your resources; we desire to live at peace with you, and see you prosper, but we wish that you should cease to make our laws or administer them upon us, seeing you will not submit to them yourselves.” Is this a proposition to be compared to robbery and murder? Would the state which should use such language be worthy of universal abhorence? Must its name be written “in letters of Egyptian midnight,” for the execration of all ages? With what regard to candour or Christian feeling then can such obloquy be poured on the measure under consideration, or upon those who advocate it? We are neither robbers nor murderers. We take away no man’s rights. We simply maintain our own indefeasible right to self-government, and refuse to be governed by men who will not submit to the system they administer.

The next question to be decided is, whether, admitting the unconstitutionality of the plan of union, and that the churches formed upon it are now no part of our Church, does this authorize the declaration that the Synod of the Western Reserve is no longer connected with this body? We answer this question in the affirmative. According to the constitution of our Church, “As a presbytery is a convention of the bishops and elders within a certain district: so a synod is a convention of the bishops and elders within a larger district, including at least three presbyteries.”* The question then is, are these presbyteries or this synod conventions of bishops and elders? This question has been already answered. They are not such conventions. They are composed of a few pastors and elders of Presbyterian churches, and a large number of the pastors and lay members of Congregational churches. There is less than one of the former class to four of the latter. It is obvious, therefore, that these are not constitutional bodies. They are not in the Church in virtue of the constitution. They are connected with us simply in virtue of the plan of union, and consequently when this plan is removed this connection ceases.

Again on the supposition that after all these accommodation churches are disconnected with this body, the presbyteries and synod still retain their connection, we should have presbyteries and a synod composed almost entirely of ministers. These are not regular Presbyterian bodies. If ten or twelve of our ministers were to go into New England, and engage in teaching, or connect themselves with Congregational churches, no synod could constitutionally form them into a presbytery. And if they had been thus formed, this body would not be bound to recognize them. Synods have indeed the right to make presbyteries, but they are restricted by the constitution in the exercise of this right to make them out of Presbyterian ministers and elders. It is said, however, that since there are regular churches and pastors within the limits embraced by these bodies, they are presbyteries and a synod within the meaning of the constitution. The fallacy of this argument is obvious. These materials are indeed included within the synod, but do not constitute it. A number of Presbyterian, Episcopal and Methodist ministers and churches could never constitutionally be formed into a synod in our Church. If such an anomalous body were ever recognized as a synod, it must be by some special arrangement. The question would then come up, is this arrangement constitutional? And as soon as this question is authoritatively decided in the negative, the irregular synod would be disowned. As to the objection that a minister becomes, by his ordination by a regular presbytery, a member of our Church, and that we have no right to declare that he is not a member, we answer, it is admitted he is a member as long as he continues connected with a regular presbytery. If, however, he joins a Congregational Association, he is no longer a member of our Church, and if he joins a body connected with us by some special tie, he ceases to be a member as soon as that tie is sundered.

Having now proved that the operation of the decision of this house on the plan of union is to sever our connection with the churches formed upon it, and that the organization of the Synod of the Western Reserve is also pronounced by that decision to be unconstitutional, the only question is, whether this Assembly has a right to make the declaration contained in the resolution under debate? We do not see how this point can be doubted. If the fact is so; if that synod is not formed on a constitutional basis, it must be competent for this house to say so. We are both a legislative and judicial body. It is the province of a legislature to decide what the laws shall be, and of a court to decide what they are. We have both these prerogatives. We can not only repeal the acts of former Assemblies, but if those acts are brought up by appeal, reference, or resolution, we can examine and decide whether or not they are consistent with the constitution.

It will be remembered that the Assembly of 1835 formed a compact with the Synod of Pittsburg in reference to the Western Foreign Missionary Society; which the Assembly of 1836 felt no scruples in declaring unconstitutional. The power of the Assembly to decide on the validity of its own acts was not then called in question. Chief Justice Marshall’s opinion that a party to a contract cannot pronounce its own act invalid, had not yet been discovered. The question has come up before this Assembly, whether the act of 1801, adopting the plan of union, is constitutional? And it has been decided in the negative. This resolution brings up the question, whether the act of 1825, erecting the Synod of the Western Reserve on the basis of that plan is constitutional? Whatever doubt there may be as to the decision, there can be none as to the power of this house to make it.

It is asked, what would be thought if Congress should declare a sovereign State out of the Union? There are two false assumptions implied in this question. The first is, that the judicial and legislative power are united in Congress as they are in this body, which notoriously is not the case. The second is, that the Synod of the Western Reserve is regularly in the Church, and that we are about to cut it off by a simple legislative act. This is not the fact. We are not about to cut off a regular synod for heresy, which we admit, in all ordinary cases, would require a regular process. We are simply about to declare that the act of the Assembly of 1825, constituting certain presbyteries composed almost exclusively of Congregational churches, was unconstitutional and void. We are about to say that a convention of Presbyterian ministers and of Congregational laymen, is not a convention of Presbyterian bishops and ruling elders, and that no act of any General Assembly can make it so. When a state applies for admission into the Union, the question, whether it is organized in a manner consistently with the constitution of the United States, is always presented. Should this question be decided affirmatively by Congress, and this decision be subsequently reversed by the competent tribunal, the effect would, of course, be to throw the state out of the Union, or rather, to declare that it never was constitutionally a member. The only difference between such a case and the one before us is, that the legislative and judicial functions in our civil government are divided; whereas they are united in this house by the constitution under which we act.

The objection, therefore, which has been urged against the competency of this house, on the ground that a party to a compact cannot declare its own act invalid, admits of several satisfactory answers. In the first place, the acts forming the plan of union and erecting this synod are not properly of the nature of a contract. They are simple legislative acts which this house is authorized to repeal. In the second place, an unconstitutional act of a body, is not and cannot be binding on its successors. It is not properly the act of the body, as has already been shown. Consequently even if the acts referred to were of the nature of a contract, they would be as devoid of any authority as an act of this Assembly to sell the United States. And in the third place, in virtue of the constitution of our Church we have judicial as well as legislative power, and it is our appropriate business to review all decisions of this or any of our judicatories when brought properly before us.

There is another principle on which this resolution may be justified. Every Church or community has the right to prescribe its own terms of membership; and its judicatories must be authorized to decide whether these terms in any disputed case are complied with or not. It is on this principle that we sit in judgment on the qualifications of our own members, and vacate the seat of any commissioner whom we find not to be duly qualified. And on the same principle we have a right to decide whether a presbytery or synod is constitutionally organized; in other words, whether it is a constituent part of the Church. For an unconstitutional body has no more right to a standing in our Church, than a state with a monarchical form of Government has a right to a standing in our national Union. In making the declaration contained in this resolution, therefore, we are assuming no irregular or unreasonable power, we are passing no ex post facto law, we are depriving no body of men of their vested rights. The only real question for debate is, is the declaration true? Is the Synod of the Western Reserve constitutionally organized? If it is not, it has no more right here than an Episcopal convention.

We come now to the question of expediency. It is urged against the measure proposed that it will produce the most disastrous results. It will invalidate the licensures, ordinations and judicial acts of all these presbyteries, and unsettle the title to Church property in all that region of country. Even if all these consequences were to flow from the passage of this resolution, it would not alter the state of the case. If that synod is not a synod, it is not a synod, no matter what the consequences may be of admitting and declaring the truth. But these evils are all fears of the imagination. No man’s licensure, ordination or Church standing will be affected by this measure. This Assembly acknowledges the validity of the licensures, ordinations, and judicial acts of Congregational associations and councils, why then should it cease to acknowledge such acts of these irregular presbyteries? As to the Church property, we do not believe a single farthing will pass out of the hands of its present holders. This General Assembly does not hold the property of these churches, nor do its owners hold it in virtue of their connection with this Assembly. If in any particular case the title supposes or requires the holders to be Presbyterians, it proves that those who gave the property wished it to be so held; and it can be forfeited only by the present holders becoming Congregationalists. It is said too that this measure will operate hardly upon regular Presbyterian ministers and churches connected with the synod. It must be remembered, however, that this body can act, in this case, only on the synod, or the body as a whole. If there is any portion of its presbyteries or congregations who wish to be connected with this Assembly, they can become regularly organized and effect the union without delay.

We believe then this whole case to be exceedingly plain. The plan of union, on which the churches of this synod are in general formed, we believe to be unconstitutional, and that its abrogation severs the only tie by which they were connected with this body. We believe that the act by which this synod was organized is also unconstitutional and void, and that, from the nature of our system and the constitution of our Church, it is the rightful prerogative of this house to pronounce these acts to be invalid, and that the necessary operation of this decision is to declare the churches of this synod not to be a constituent portion of the Presbyterian Church. We feel bound to make this declaration, because it is true, and because, while it deprives no man of his ministerial or Christian standing, and robs no one either of his property or rights, it relieves us from a source of error and disorder which is distracting the peace, and destroying the purity of the Church. We do no man injustice by declaring that Congregationalists are not Presbyterians, and have no right to take part in the government of the Presbyterian Church.

After the resolution declaring the Western Reserve Synod not to be a constituent part of the Presbyterian Church had been adopted, it was decided that the commissioners from the presbyteries included within that synod, were not entitled to sit and vote in the Assembly. Their names were consequently omitted when the roll was called.

c. Report on the Presbytery of Louisville

[Comp. Digest of 1873, pp. 246–262, 603.]

That report is so long that we cannot insert it at length. It is drawn up with marked ability, and presents the case against the Louisville Presbytery in the strongest light. We do not think that any speech or document on that side of the question presents so plausible an argument in defence of the proposed action of the Assembly.

It states that three subjects had been committed to their consideration. 1. To examine and report the acts and proceedings of the Presbytery of Louisville. 2. To inquire whether the said presbytery, in view of the action referred to, is entitled to a seat in this Assembly. 3. To recommend what action, if any, the General Assembly should take in the premises.

Under the first head, the committee give an analysis of the Declaration and Testimony. Under the second they urge that the commissioners of the presbytery should be debarred from sitting in the Assembly, because it was discretionary to suspend from the privilege of a seat in a judicatory the parties who were under process. The presbytery was under process from the time the Assembly appointed a committee to examine into the action. Under the third head, the committee recommend the adoption of the following resolutions:

Be it Resolved by the General Assembly of the Presbyterian Church in the United States of America:

First. That the Presbytery of Louisville be, and hereby is, dissolved; and that the custody of its records, papers, and other property be transferred as hereinafter ordered.

Second. That a new presbytery be and is hereby constituted, to be known by the same name, occupy the same territory, and have watch and care of the same churches; said presbytery to be composed of the following ministers, (together with so many elders as may appear,) viz.: Rev. D. T. Stuart, W. W. Hill, S. Williams, W. C. Matthews, R. Valentine, B. H. McCown, J. H. Dinsmore, H. C. Sachse, T. A. Hoyt, J. L. McKee, J. P. McMillan, J. McCrae, H. T. Morton, J. C. Young, or so many of them, whether ministers or ruling elders, as shall, before their organization, subscribe the following formula, viz.: “I do hereby profess my disapproval of the Declaration and Testimony adopted by the late Presbytery of Louisville, and my obedience in the Lord to the General Assembly of the Presbyterian Church in the United States,” which formula, together with the subscribers’ names, shall be subsequently entered upon these records. The said presbytery shall meet in the Chestnut street Church, in the city of Louisville, Kentucky, on the 20th day of June, 1866, at the hour of eleven o’clock, A. M., and shall be opened with a sermon by the Rev. J. P. McMillan, or in his absence, the oldest minister present, who shall preside until a Moderator is chosen.

Third. That so many ministers belonging to the late Presbytery of Louisville as are not herein named, are hereby directed to apply for admission to the presbytery now constituted, as soon after its organization as practicable, and they shall be received only on condition of acknowledging before the presbytery their error in adopting or signing the Declaration and Testimony, and of subscribing the aforesaid formula on its records. If at the expiration of two months from the organization of the new presbytery, these ministers shall not have made such application, or shall not have been received, their pastoral relations, so far as any may exist with the churches under our care, shall thenceforth be ipso facto dissolved.

Fourth. That the licentiates and candidates under the care of the dissolved presbytery are hereby transferred to that now constituted, and the stated clerk of the late presbytery is hereby directed to place the records and other papers of the said presbytery in the hands of the stated clerk of the presbytery now constituted, as soon as such clerk shall be chosen.

Fifth. That this General Assembly, in thus dealing with a recusant and rebellious presbytery, by virtue of the plenary authority existing in it for “suppressing schismatical contentions and disputations,” has no intention or disposition to disturb the existing relation of churches, ruling elders, or private members, but rather to protect them in the enjoyment of their rights and privileges in the church of their choice, against men who would seduce them into an abandonment of the heritage of their fathers.

Dr. Gurley’s paper, which was presented as a substitute for the resolution recommended by the committee, was adopted by the vote, yeas, 196; nays, 37. Declined to vote, J. H. Brookes, 1. The paper is as follows:

1. Resolved, That this General Assembly does hereby condemn the Declaration and Testimony, as a slander against the Church, schismatical in its character and aims, and its adoption by any of our Church courts as an act of rebellion against the authority of the General Assembly.

2. Resolved, That the whole subject contemplated in this report, including the report itself, be referred to the next General Assembly.

3. Resolved, That the signers of the “Declaration and Testimony,” and the members of the Presbytery of Louisville who voted to adopt that paper, be summoned, and they are hereby summoned, to appear before the next General Assembly, to answer for what they have done in this matter, and that until their case is decided, they shall not be permitted to sit as members of any Church court higher than the session.

4. Resolved, That if any presbytery shall disregard this action of the General Assembly, and at any meeting shall enroll, as entitled to a seat or seats in the body, one or more of the persons designated in the preceding resolution and summoned to appear before the next General Assembly, then that presbytery shall ipso facto be dissolved, and its ministers and elders who adhere to this action of the Assembly, are hereby authorized and directed, in such cases, to take charge of the presbyterial records, to retain the name, and exercise all the authority and functions of the original presbytery, until the next meeting of the General Assembly.

5. Resolved, That synods, at their next stated meetings, in making up their rolls, shall be guided and governed by this action of the General Assembly.

Every attentive reader of the minutes and reported debates of the last Assembly must be aware that in all that concerns the action of the Assembly in regard to the Presbytery of Louisville and its commissioners, there are three distinct points for consideration. First, had the Assembly the constitutional right to exclude these commissioners from a seat in the Assembly until their case was decided; and had it the right to dissolve that presbytery as was proposed by the committee; or to dissolve other presbyteries on the contingency provided for in the paper of Dr. Gurley, which was finally adopted? The second question is, assuming that the Assembly had the right to do what it did, was there any sufficient reason for its action? Did the Presbytery of Louisville merit exclusion from the Assembly? The third question relates to the manner in which these things were done. There may be a right and wrong, a kind or unkind, a fair or unfair way of doing what in itself is just and proper.

The first of these questions alone has any permanent importance. It is comparatively a small matter that a court should inflict an unduly severe penalty; or that the judge should be harsh and overbearing in his spirit and manner, provided he has the law on his side. It was not the hardship to Dred Scott, as a man, or any want of courtesy on the part of the Supreme Court, that caused its decision in that case to shake the country like an earthquake. It was that the decision itself was in conflict with the long-cherished and settled convictions of the people as to what was the true law of the land. As to the first of the three questions proposed for consideration, it may be remarked that there are three different theories as to the nature of our Presbyterian system; all of which were advanced on the floor of the late Assembly, and each of which controlled the opinions and votes of those who adopted it.

The first is derived very much (as it seems to us) from an assumed analogy between the constitution of the United States and that of the Church. In our national and state governments, the constitution is a grant of powers. Congress has no power which is not specified in the constitution; all others are expressly reserved to the states or to the people. In like manner, as many assume, the Presbyteries are the source of power in the Church. The Assembly has no power not expressly granted by the presbyteries in the constitution. And hence the demand was so frequently and earnestly made for a reference to chapter and section, where the power to exclude commissioners, or to act immediately on a presbytery, was granted.

The second theory goes to the opposite extreme. It assumes that the Assembly is the source of power to the other courts. Having all Church-power in itself, it has delegated a certain portion of its fulness to synods, presbyteries, and sessions. This was the doctrine for which the authority of Chief Justice Gibson, and of the Supreme Court of Pennsylvania was quoted, especially by Hon. Mr. Galloway. A much higher authority might have been derived from the Church of Scotland.

The third view is that which, we presume, is held by the great body of Presbyterians. It assumes, 1. That all Church power is derived from Christ and conveyed in his word, and by his Spirit. 2. That this power belongs to the whole Church, not to the clergy to the exclusion of the people, nor to the people to the exclusion of the clergy. 3. That it inheres in the Church, as the body of Christ, and, by his appointment, is to be exercised through certain office-bearers, who act as its representatives and organs. 4. These office-bearers are selected, qualified, and called by the Holy Spirit. 5. It is the function of the Church to authenticate this call of the Spirit, and to certify it as its judgment, to the people. This is done in ordination. 6. The office- bearers of a Church, therefore, are that Church, i.e., they are authorized and empowered, in the name and behalf of the Church to exercise all the power which Christ has given it for edification. Hence the session of an individual church is authorized to do whatever an individual church may do, in the reception of members, in the exercise of discipline, and in the instruction and spiritual nurture of the people. So the presbytery is vested with the power of the Church within its limits. It is the representative, organ, and agent of the collective body of Christ’s people included within its ecclesiastical limits. The same is true of synods, assemblies, or other general councils. These Church courts in no case derive their powers from the constitution. They possessed them before the constitution was framed, and would continue to possess them although it was entirely abolished. A number of Christians organizing themselves into a Church, and electing Church officers, would of course have the power which Christ has given to his Church; the power to judge of the qualifications of candidates for admission to Christian ordinances; to exercise discipline, and to provide for the edification of the people. The presbytery has, in like manner, independently of any written or human constitution, all the power which Christ has given to a presbytery,—the right to ordain, the right to suspend and depose from the sacred ministry; and the right to exercise all the functions of a Church within its own limits. The constitution is only a treaty, or a set of stipulations, as to how these several Church courts shall exercise the powers which they derive from Christ. The presbytery, for example, has the right to ordain, but it has agreed with other presbyteries not to ordain any candidate who has not received a classical education. That is, as the Scriptures require that a minister must be apt to teach, the presbyteries have bound themselves to regard a liberal education as one evidence that the candidate possesses that qualification. Again, the Bible requires that a minister should be sound in the faith, able to resist gainsayers; the presbyteries have agreed to make the sincere adoption of the system of doctrine taught in the Westminster Confession a test of such soundness. The constitution therefore, instead of being a grant of powers, is a limitation of them, so far as their exercise is concerned. It ties the hands of all the Church courts, and prevents their doing many things which otherwise they would have a perfect right to do. All this is reasonable and just. It is necessary to secure harmony, peace, and purity. If one presbytery assumed one standard of ability to teach, or soundness in the faith, and another that that; the utmost confusion and conflict would be produced. Besides, a minister ordained by one presbytery becomes a minister of the whole Church, and exercises in the higher courts a jurisdiction over the whole body. The whole body, therefore, has an interest in his being suitably qualified, and a right to a voice in securing that end.

According to this theory every Church court has within its limits all Church power. The power of presbyters is given to presbyters, inheres in them, and is not delegated to them. It can be exercised by them, whenever they are properly associated and organized for the exercise of their functions. A commander-in-chief of an army can command a regiment or a company. In cases of emergency he does assume such command. It is only on rare occasions that this is either expedient or possible. He has too much to do, to allow of his taking into his own hands the duties of his subordinates. In the state, the care of children is properly left to their own parents. But in the case of orphans, or when the parents are untrustworthy, the courts interfere, and the children become wards in chancery. The court performs toward them the duty of parents. Our General Assembly has examined a minister, on his knowledge of experimental religion, and his qualifications for the sacred office, and received him as a minister of the Presbyterian Church, in good standing. Of course the cases are extremely rare in which the higher courts are justified in assuming the functions of the lower bodies, but, so far as the power to do so is concerned, we do not see how it can be questioned. If three presbyters have from God the right to ordain or depose, why should not three hundred have the same power? Our church in the early period of its history uniformly acted on this principle. When the original Presbytery passed into a Synod, the Synod continued to exercise presbyterial powers, in appointing commissions to license, to ordain, to visit churches, and adjust difficulties.

Such being the nature of the power of our Church courts, it is necessary to consider its limitations. The power of all our courts is limited in three ways: First, it extends only to things ecclesiastical, to the exclusion of secular affairs. Secondly, it is limited by the constitution. Thirdly, it is limited by the word of God.

1. The Church has authority only in matters pertaining to religion. It is organized and endowed by her Head with certain prerogatives in order to secure the propagation and preservation of the gospel, the purity and edification of the body of Christ. If Congress should pass laws to regulate the religion of the country, they would be a dead letter. If Church courts transcend their limits, and undertake to decide questions pertaining to the state and its civil tribunals, their decisions have no binding force. The Church cannot regulate the tariff, or establish banks, or make all her members democrats or republicans, or interpret the constitution of the Union or of the states. Should it at any time attempt to legislate on these subjects, the people would regard their action with the same feeling they would the acts of Congress assuming to regulate the faith of the Church. As to this point there can be no difference of opinion.

2. In the second place, it is equally plain that an unconstitutional law is void ab initio. It is no law. It is not obligatory on any person or upon any organization. If a man refuses to obey a law of Congress or of the states, which the courts pronounce unconstitutional, he is held harmless. His disobedience is justified. This is an important safeguard in Church and State. As our constitution establishes certain fixed principles and rules, and limits the authority of all our courts, even the highest, any enactment or requisition inconsistent with its prescriptions, may be, and should be, disregarded. There is not a presbytery in the land which would give heed to any Assembly which should forbid them to ordain a candidate unless he had passed through a full three years’ course in some Theological Seminary. The constitution also prescribes the terms of Christian and ministerial communion, and these can only be altered by altering the constitution. This is the principle which is enunciated in our book, when it says, that no constitutional or standing rule shall be considered binding, until it has been remitted to the presbyteries and received their sanction. That is, the General Assembly cannot alter the constitution, or give binding force to anything inconsistent with it. This is perfectly consistent with the recognition of the authority of the Assembly to “lay down rules,” within the limits of the constitution. The laws of Congress bind the people, if constitutional; so the acts of the Assembly are binding under the same conditions.

3. The third limitation is that imposed by the word of God. That anything contrary to the Scriptures can bind the conscience of any man, or be rightfully imposed upon him as a rule of faith or practice, no Protestant will for a moment admit. If all the ecclesiastical bodies in the world should pronounce that true, which God declares to be false; or that right, which He pronounces to be wrong, their declarations would not have the weight of a feather. No law of man can make that sin which is no sin, or that virtue which is not virtue. Should the Assembly decree that eating meat, drinking wine, using tobacco, or holding slaves, is sinful and a bar to Christian communion, if the word of God teaches the contrary, its decrees would bind his people no more than the decrees of Congress enjoining the worship of images or the adoration of the host. Here again, beyond question, we are on common ground.

Another great principle of our common Protestant Presbyterianism is the right of private judgment. It was said on the floor of the Assembly, in the warmth of debate, that the deliverances, acts, or injunctions, of that body, are to be assumed to be within the sphere of Church power, to be constitutional, and consistent with the word of God, and obeyed as such, until by competent authority the contrary is officially declared. This is the denial of the first principles of Christian liberty, whether civil or religious. Every man has not only the right to judge for himself on all these points, but is bound by his allegiance to God to claim and exercise it. The Bible teaches, and all Protestants believe, that the Spirit is promised and given as a teacher, not exclusively to the clergy but to all the people of God. Therefore, every Christian is bound to search the Scriptures, and to judge for himself whether the things decreed or commanded are consistent with that standard. Thus the early Christians acted when they refused to obey the constituted authorities of the Jewish Church. Thus afterwards, although the Bible enjoined upon them to be obedient to the powers that be; yet, when the Roman magistrates required them to burn incense to idols, they resisted unto death. There had been no Reformation, had not God taught and enabled his people to assert this right of judgment. Episcopacy would have been established in Scotland, and despotism in England, had not our Presbyterian and Puritan ancestors been men enough to claim and exercise the right to think for themselves, and to obey God rather than man. This right is recognized in the state. No man is bound to obey an unconstitutional law. If he errs in his judgment, and pronounces that to be unconstitutional, which is in fact legitimate, he must bear the penalty of disobedience. And so it is in the Church. If an individual, or presbytery, refuses to obey an injunction of the Assembly, from the conscientious conviction that it is contrary to the constitution or the word of God, he or it may be arraigned for disobedience, and condemned or justified according to the judgment of a competent court; for one Assembly is not bound by the decision of its predecessors; and may, therefore, justify disobedience to any of their injunctions, which it deems erroneous. On this right of private judgment we must all be agreed. Dr. Thomas, and other leaders of the majority in the late Assembly, repeatedly and expressly stated that former Assemblies had frequently made deliverances which they deemed to be contrary to the word of God. Of course they did not, and could not adopt them; nor could they require others to approve them, without demanding that men should approve what they believed God condemned. The deliverances of the Assembly, therefore, by common consent, bind the people and lower courts only when they are consistent with the constitution and the Scriptures, and of that consistency every man may and must judge, as he has to render an account to God.

Such, as we believe, are the principles in which nine-tenths of our ministers and members will concur. It follows from these principles that the General Assembly, unless expressly prohibited by the constitution, can exercise, when the emergency demands it, its power to correct abuses or evils, immediately in any part of the Church. It has the right, on its responsibility to God, to refuse seats to delegates, or to dissolve any of the lower courts, if the safety or well being of the Church requires it. This follows from the scriptural principle of representation. Under the Old Testament by the appointment of God, the elders of the tribe were the tribe; and the elders of the congregation were the congregation, and could act as such. Under the New Testament dispensation, the elders of the Church, in council assembled, are the Church. The elders of a particular church are that church, and the delegated elders of the whole Church are the whole Church, and are clothed with all Church power, under the important limitations above specified.

In the second place, the right in question, and specially to exclude delegates, flows from the very nature of the Assembly as a court of Christ. It is a body of men duly appointed, consisting of those who recognize the Headship of Christ, the infallible authority of his word, and the Presbyterian system of doctrine and order. If any men present themselves as commissioners, who openly and avowedly declare them no Christians, or no Presbyterians, it is plain that the Assembly should be bound to reject them. The avowal may be so explicit and public, made viva voce or over their written signatures, as to preclude the need of examination or proof. If any presbytery should make an official declaration of Socinianism, and that declaration be signed by its commissioners, published to the world, and circulated through the Assembly, we presume no one would deny that the body would be bound to say to those commissioners, “you do not belong to the class of persons of whom, according to the Scriptures and the constitution of the Church, this court is to be constituted.” If there be any doubt as to the facts, these ought to be cleared up. But if the facts are beyond question, then the right and duty of the Assembly is immediate and imperative. It is said that it is contrary to natural justice that any man should be condemned unheard. But, in the first place, in the case supposed there is properly no condemnation, at least in the judicial sense of the term. The effect of the exclusion is not to depose, or even to suspend the parties from their office as ministers or elders, but simply, as it were, to arrest them and to remit them to the proper tribunal for trial. In the second place, a man cannot be said to be condemned without a hearing, who is condemned, (or rather arrested), out of his own mouth, for his own declaration made in proesenti.

In the third place, this right is analogous to the right of expulsion. If a man should rise in the Assembly and blaspheme, he may immediately be expelled. There would be no need of a trial or an examination. And fourthly, this right of peremptory and immediate action is the right of self-preservation, which belongs to all bodies and associations. It is exercised by all legislative assemblies. Congress may rightfully exclude any avowed traitor from taking his seat in the council of the nation. Every judge has the right to protect the sanctuary of justice by immediately committing to prison any one who violates its dignity. General Sheridan, in the last battles before Richmond, deprived General Warren of his command on the field, and sent him to the rear. This was a tremendous punishment inflicted without a hearing. It may have been an act of cruelty or injustice, but the right thus to act cannot be questioned. General Washington did the same thing in the case of General Lee in the battle of Monmouth.

These remarks are all applicable to the case of dissolving a presbytery. Should any such body make a declaration of Socinianism, or avow themselves to be infidels, the Assembly would not be bound to leave the people six months under the instruction and government of such open apostates. It would be its duty, in virtue of its charge of all the churches, immediately to dissolve the body, and deprive its members of all ecclesiastical power.

The views here expressed of the inherent power of our Church courts, and especially of the General Assembly, were presented and defended at length in the pages of this Review for July, 1838, pp. 464–490.[*] It was then shown: 1. That our church, from the first, adopted the standards of the Church of Scotland, both as to faith and form of government. 2. That in Scotland, so far from the Assembly being the creature of the presbyteries and deriving its powers from them, it existed before the presbyteries, and governed the Church for years before any presbytery was organized. It was the Assembly that formed first the synods, and then the presbyteries. 3. That the General Assembly in Scotland had from the beginning acted as the governing body of the whole Church, exercising, whenever it saw fit, original jurisdiction; acting directly on the presbyteries, and individual ministers, citing, trying, condemning or acquitting them, as it deemed right; transferring pastors from one parish to another without the intervention of any of the lower courts; and, in short, exercising a general and immediate jurisdiction over the whole Church. On this head we quoted from Hill’s Institutes, the highest modern authority on the discipline and government of the Scottish Church, the following passage. After stating that the powers of the General Assembly are judicial, legislative, and executive, Dr. Hill says: “In the exercise of these powers the General Assembly often issues peremptory mandates, summoning individuals and inferior courts to appear at its bar. It sends precise orders to particular judicatories, directing, assisting, or restraining them in the exercise of their functions, and its superintending, controlling authority, maintains soundness of doctrine, checks irregularity, and enforces general laws throughout all districts of the Church.” 4. That our Confession of Faith itself teaches, chap. xxxi. 2, that, “It belongeth to synods and councils, ministerially, to determine controversies of faith, and cases of conscience; to set down rules and directions for the better ordering of the public worship of God, and government of his Church,” &c. And that “the decrees and determinations of such councils, if consonant to the word of God, are to be received with reverence and submission, not only for their agreement with the word, but also for the power whereby they are made, as being an ordinance of God, appointed thereunto in his word.” It is here taught not only what the power of Church courts is, but also that it is from God, and not conferred by men. 5. Pages of that article of our Review are filled with citations from our records to show that the original Synod of Philadelphia, the united Synods of New York and Philadelphia, and the General Assembly, have uniformly acted as courts of original jurisdiction; acting immediately on individuals, sessions, and presbyteries, and that the Assembly has ever assumed that it had the power to correct abuses, by the immediate exercise of its authority, when necessity required, in any part of the Church. We cannot, therefore, agree with those who denied the right of the General Assembly to exclude the commissioners of the Presbytery of Louisville, or to dissolve the presbytery itself. It is to be remembered, however, that the effect of dissolving a presbytery, is not, as some of the speakers seemed to suppose, to suspend or to depose its members. It merely dissolves the bond which unites them as a church court. They might be attached to other presbyteries, or disposed of as the Assembly saw fit.

We are aware that in answer to a protest of the New-school party, against the abrogation of the plan of union between Presbyterians and Congregationalists, the writers of that answer take different ground from that assumed above. They say: “1. The constitution of the Presbyterian Church, like that of our National Union, is a constitution of specific powers, granted by the presbyteries, the fountains of power, to the synods and General Assembly. 2. No powers not specifically granted can lawfully be inferred and assumed by the General Assembly, but only such as are indispensably necessary to carry into effect those specifically granted.” On this it may be remarked: 1. That every one is aware that the Assembly is in the habit of appointing one or more persons to answer protests, who present their own particular views. It would be unfair to hold the Assembly responsible for the soundness of every argument which they may see fit to use. 2. The theory, the opposite to that assumed in this answer, was the basis of the whole action of the Assemblies of 1837 and 1838, and was constantly avowed in the debates. 3. Admitting that the Assembly of 1837 did commit itself to this false theory, that would have little weight against the uniform teaching and action of the Presbyterian Church, both in Scotland and in this country, in all periods of its history.

If it be acknowledged that the Assembly had a right to do what it did, the second question to be considered is, was there any adequate ground for the exclusion of the commissioners from the Louisville Presbytery, or for ordering the dissolution of every presbytery who should admit any of the signers of the Declaration and Testimony? On this question every man has a right to his own opinion. For ourselves we think there was no adequate reason for such action. 1. Because the penalty was unduly severe. It is among the heaviest within the power of the Assembly to inflict, and therefore, should be reserved for extreme cases. 2. There was no important object to be gained. The Church would not have been endangered in any of its important interests by the adoption of a milder course. 3. The Assembly itself virtually admitted that the signing of a Declaration and Testimony was not a sufficient reason for exclusion from our Church courts. It allowed those who had signed it, and who openly avowed in the presence of the Assembly, their continued adhesion to it, to retain their seats to the end of the sessions. Yet it ordered, that any presbytery who should admit one of those signers, should be ipso facto dissolved for doing what the Assembly itself had done. 4. This action, instead of tending to allay strife and division in the Border States, had a directly opposite tendency, and therefore, was so earnestly deprecated by some of the wisest and best men of the Church. 5. It places, or would place, if carried out, many ministers and churches in anomalous position, and put in jeopardy important interests. The dissolution of a presbytery, as before remarked, does not suspend or depose its ministers, or separate them from the Presbyterian Church, or vacate their pulpits. Without further action it only throws all things into confusion.

These reasons, however, afford no justification of disobedience to the orders of the Assembly. A law is binding although severe or unwise. So the orders of the Assembly are binding, unless they transcend the sphere of Church power, or are contrary to the constitution, or to the word of God.

As to the third question, which concerns the mode adopted to secure the ends aimed at, we believe, from all we can learn, there is little difference of opinion. The leaders of the majority themselves deprecated the action of Dr. McLean, which, for some reason, they felt constrained to adopt. That a member should rise in his place, propose the exclusion of the members of a presbytery, make a speech in favour of his motion, and then move the previous question, and thus prevent any other member from stating his objections to the motion, or his reasons for preferring a different course, was certainly a most extraordinary proceeding. And then the motion to refer the case of the Presbytery of Louisville to a committee of the house, thus taking it out of the hands of the judicial committee, where it already was on the appeal of Dr. R. J. Breckinridge, was irregular and unnecessary. It prevented the matter from coming up in the way which had been designed, and which would have secured a fair hearing of all parties, and a calm judicial decision.

In looking back over the proceedings of the Assembly, there is much for which the Church should be thankful, and much which promises great good in the future.

In the first place, the Assembly recognized the right of protest and of free discussion, as belonging not only to its own members, but to all the members and ministers of the Church. This was declared to be the birthright of Presbyterians. It was called a sacred right, with which the Assembly disclaimed all intention of interfering. The right of protest, as it has always been exercised, includes the right of dissenting from the deliverances and judgments of Church courts, on the ground of their being unwise, unjust, unconstitutional, or unscriptural. It includes the right to make all proper efforts of proving the correctness of the grounds of objection, and to bring their brethren to agree with them.

Secondly: The Assembly recognized the principle that adhesion to its deliverances and judgment cannot be made a condition of Christian or ministerial communion. It would be a contradiction to allow of protest against a deliverance, and then demand approbation of it as a condition of membership in the Church or ministry. Should the Assembly declare that the holding of slaves is not a sin, or a bar to Christian communion, and allow Dr. Thomas and others to protest against such declaration as unscriptural, could it then require him to approve and act upon it on pain of exclusion from the Church? The judicial decisions of the Assembly are of course final, and must be submitted to, until the penalty be removed by a subsequent Assembly. Its orders and injunctions are to be respected in all cases, and obeyed, unless believed to be contrary to the constitution and the word of God. If an individual be arraigned for such disobedience, and the Church courts, including the Assembly, censure him for the offence, he would have meekly to submit to the infliction, (as the Quakers do for refusing to obey the military laws), or leave the Church. It is plain that the Assembly recognized these principles when it adopted the papers proposed by Dr. Gurley and Dr. J. C. Lowrie. The former expressly recognized the right of those who are not able to subscribe to the testimonies of the Assembly of 1865, or to carry out its injunctions, to remain undisturbed in the Church, provided they do not engage in movements defiant of the Assembly, and which lead to schism. The other paper does substantially the same thing. The Assembly has always acted on this principle in case of conscientious dissent from its testimonies, or failure to obey its injunctions. The abolitionists who openly repudiated the deliverance of the Assembly of 1845, and refused to act upon it in the exercise of discipline, were left to enjoy their constitutional liberty. That is, the Assembly avows its purpose of acting on the common sense principle adopted by every constitutional government. The state allows the people to think and say what they please about its laws, and to disobey them for conscience’ sake, provided they do not disturb the public peace, and quietly submit to the penalty of disobedience, when judged to be without sufficient cause.

Thirdly: The doctrine taught by this Assembly respecting schism, is the scriptural doctrine on that subject, as it has ever been held in our Church. Schism is separation from the Church without adequate cause. It is a breach of Christian fellowship and subjection, enjoined by Christ on His people. This has ever been regarded as a great sin. No man is justifiable in thus breaking up the unity of the Church, unless he is required to profess or to do something which the Bible condemns as false or wrong; or unless he is prohibited from professing or doing what the Bible commands. We, as Presbyterians, are required to profess and teach nothing but what is contained in our doctrinal standards, and we are required to do nothing but to conform to the form of government and discipline which we have voluntarily adopted. It would be a sad thing if the union of the United States should be dissolved because Congress should enact an unjust tariff, or an unconstitutional bankrupt law, and it would be equally grievous if the Church were to be rent asunder every time the General Assembly should, in the judgment of a portion of its members, err in their testimony or injunctions.

Fourth: This Assembly teaches the scriptural doctrine concerning slavery. It distinctly asserts that slaveholding is not a sin or a bar to Christian communion. This it does in two ways: First, by declaring that the recent testimonies on this subject are not to be understood in any sense inconsistent with the former deliverances of the Church. But, in 1845, the scriptural doctrine on this subject was not only distinctly stated, but elaborately sustained. The Assembly declares that it still adheres to that deliverance, and virtually reiterates it. Secondly, by saying that the errors intended to be denounced, the renunciation of which was insisted upon, were: 1. That slavery is a divine institution, “in the same category with marriage and civil government,” (and therefore to be perpetuated and extended)—and, 2. That it is the mission of the Church to conserve the institution. These declarations of the Assembly are contained in the paper offered by Dr. Krebs and in the Pastoral Letter.

Fifth: The Assembly takes scriptural and liberal ground on the subject of Christian Union. It declares that it is desirous of retaining, or receiving into the Church, all who sincerely adopt our standards of doctrine and government, who adhere to the testimony of the Church, as just explained by the Assembly, and are willing to submit to its legitimate authority, that is, who are not schismatical in their spirit and measures. These principles are, in the paper presented by Dr. J. T. Smith, specially applied to the Southern churches. With regard to whom the Assembly says that it “greatly deplores the continued separation between ourselves and our Southern brethren, so long united in the bonds of Christian love and ecclesiastical fellowship; and expresses the earnest desire that the way may be soon opened for a reunion on the basis of our common standards, and on terms consistent with truth and righteousness.”

In view of these declarations, it is the obvious duty of every minister and member of our Church to labour to allay all further alienation and strife. We have here a platform, broad, scriptural, and just, on which the whole Church, North, South, East, and West, may unite.

d. Power to Remove a Sentence

[Comp. Digest of 1873, p. 688.]

As soon as the preceding subject [ ] was disposed of, the Rev. Dr. Maclean proposed the following preamble and resolution:

“Whereas the Rev. Archibald McQueen was suspended by the Presbytery of Fayetteville from the exercise of his ministry and from the communion of the Church, for marrying the sister of his deceased wife; and whereas the General Assembly of the last year, affirmed the decision of the presbytery; and whereas, in the judgment of this General Assembly, the censure which has been inflicted, hitherto submitted to, ought to be removed; therefore, Resolved, That the Presbytery of Fayetteville be directed to remove the aforesaid sentence of suspension, and to restore the Rev. Archibald McQueen to the communion of the Church and the exercise of the ministry.”

This unexpected motion added much to the excitement which the preceding question had produced; and Dr. M., while proceeding with his remarks was repeatedly called to order. The moderator, however, decided that he was speaking in order. At length the question was raised, whether the motion itself was not out of order, inasmuch as it proposed to review and reverse a decision of the last Assembly, a motion which this Assembly was incompetent to entertain. The moderator decided that the motion was in order, which decision was, upon appeal, sustained by the house. Dr. Maclean then proceeded with his remarks, advocating the restoration of Mr. McQueen; principally on the following grounds; first, the diversity of opinion in the Assembly, by which Mr. McQ. was condemned; some censuring him mainly because he had violated a rule of the Church; others because the act charged merited in itself a limited suspension, while others thought he ought to abandon his wife before he could be restored. Secondly, he urged the excellent character of Mr. McQ. and the painful circumstances in which he was placed by the action of the Church. Thirdly, the great hardship of leaving one man under this severe censure, while so many other men were allowed to remain undisturbed in the bosom of the Church. He urged further the obsolete character of the law under which the sentence had been passed, and the respectful submission which Mr. McQ. had rendered to the painful sentence under which he laboured; and especially the consideration that the highest judicatory of our Church, whether the old Synod, or subsequently the General Assembly, had never been disposed to take extreme action in such cases. In support of this last position he cited various decisions of our earlier Church courts.

Dr. Nott moved the reference of the motion to the same committee to which the proposal for an amendment of the constitution had already been referred. Both the reference and the original motion were strenuously opposed by Messrs. Junkin, Breckinridge, I. W. Platt, and Chancellor Johns. The last named gentleman remarked that this was a case of discipline. When we find where we are, then we know what rule ought to govern us. It being a case of discipline there is no doubt what course ought to be pursued. To take up such a case when the parties are out of court, the record gone, and all the pleadings out of view would be an unheard of proceeding. But viewing the matter in the light of a mere resolution it is a prejudging of the case. You may call it legislation, but the name will not alter the nature of the transaction. What would be thought of an appellate court, taking up a case already decided, and without hearing any of the parties or calling for the record, sending it down with all the weight of its influence, in favour of a reversal of the sentence? And shall we send down a mandatory writ to the presbytery, which has the exclusive right primarily to judge in the case? Let us stop here. My great desire is to preserve the purity of this high ecclesiastical court. As in civil matters a judge must not express an opinion in advance, so here we should cautiously avoid the expression of an opinion on a case that may yet come up before the General Assembly by reference or appeal. Let Mr. McQueen, if he is so disposed, apply to his presbytery, and if they refuse to entertain his application or to do him justice in the premises, let him complain or appeal to the Synod or General Assembly; but I beseech you, moderator, let not this high court of final resort disqualify itself for such a review, by prejudging the case.

As soon as Chancellor Johns concluded, the previous question was called and sustained. The motion for commitment being thus cut off, the question on Dr. Maclean’s resolution was then put and rejected by an overwhelming vote, very few voices being heard in the affirmative.

The principle involved in this case is one of no little importance. The question whether the Assembly had the constitutional right to entertain the motion to restore Mr. McQueen, or to order his restoration, is of course very different from the question, Whether it was expedient to pass such a motion, or whether the method proposed was the right way of reaching the end aimed at. Dr. Maclean supposed he had sufficiently guarded his motion from the objections so forcibly urged by Mr. Johns, by avoiding all expression of opinion as to the decision of the preceding Assembly. It might be assumed that their sentence was perfectly equitable and just, and yet if it had been submitted to, and been endured for more than a year, it might be proper that it should now be removed. But has the Assembly the right, by a mere resolution, to inflict or remove a judicial sentence? A negative answer to this question does not appear to us to be sustained by saying that the Assembly has only appellate jurisdiction in such cases. This is a very prevalent doctrine, but its correctness is at least a matter of doubt. It is certain that the Assembly of the Church of Scotland has ever claimed and exercised original jurisdiction, acting as the presbytery of the whole Church. It is certain that similar ecclesiastical councils, have in all ages of the Church, acted on the same principle. And our own Assembly, in some few cases, has done the same. It has taken up a foreign minister whom one of our presbyteries refused to receive, examined him touching his qualifications, and passed a vote of approbation, and authorized any presbytery to whom he should apply to receive him as a member. There may be cases in which the exercise of this right might be expedient and necessary. But whatever may be thought on this point, it should be remembered that the Assembly, though it is an appellate court, is a great deal more. There is no exact analogy between our judicatories, and the civil courts of the country, because in our civil government, the legislative, judicial, and executive functions are carefully distinguished, and in general committed to different hands; but with us all these powers are vested in the same bodies. The Assembly is the highest legislative, judicial and executive body in the Church. It was not called upon to act as a court, but as the executive. It was not asked to review a decision but to remit a sentence; to do what the executive of a state does, when it grants a pardon or remits a penalty decreed by a judicial tribunal. The Assembly could not be called upon to inflict a sentence, without parties, without records, or without argument, for from the very nature of such an act, it could only be performed by the body in its judicial capacity. But this does not prove that it might not remit even the most justly inflicted sentence, if the occasion called for the exercise of this executive grace.

Whatever may be thought of the abstract question of the right of the Assembly, in its executive capacity, to remit a sentence judicially inflicted, the argument against its exercise, in the case under consideration, seems to us unanswerable. There is the general objection founded upon the difficulty of discriminating between the executive and judicial functions of such a body, or of preventing the one from interfering with the other. We do not see how the argument of Mr. Johns is to be disposed of, that the Assembly was liable to be called upon to sit judicially on the very question which it was then called upon to decide by resolution. The question whether the censure inflicted on Mr. McQueen had been endured a sufficient length of time, was one which he might at any time bring before the Assembly, by applying to be restored to the exercise of his office. This suggests another of the arguments urged against Dr. Maclean’s motion, that it aimed at accomplishing in an irregular way, an object which could be attained by the ordinary operation of our system. It was not a case for which the constitution provided no remedy. The lower courts were open to Mr. McQueen, and to them he might at any time apply, and in case of their refusal, he could seek redress at the bar of the Assembly. There was great weight also in the objection urged by Mr. Breckinridge, that the Assembly was called upon to act in ignorance of the facts necessary for a proper decision of the case. They did not know that Mr. McQueen even wished to re-enter a Church whose laws condemned his conduct; they knew not officially whether he retained any relation to the Presbytery of Fayetteville, or whether he had connected himself with some other denomination. With what propriety then could the Assembly be called upon of its own motion, without any application from any quarter, to act in the business.

There is another consideration as it seems to us of great weight in this matter. The unavoidable consequence of acting on the plan proposed by Dr. Maclean must be a collision between the Assembly and the lower courts. Admitting that the Assembly has the right, of its own motion, to restore a man to the ministry, has it a right to force him on a reluctant presbytery? That the presbyteries may judge of the qualifications of their own members, is one of their most certain and important rights; and one which they can exercise without responsibility to any higher court. They have a right to refuse to receive any man as a member whom they judge for any reason to be unsuitable. Could the Assembly force an abolitionist on a southern presbytery? Where a case comes up judicially from a lower court and the Assembly decides that their reasons for suspending him were insufficient, the operation of that decision is indeed to restore him to his standing in the body, but this is very different from directing a presbytery to receive into their confidence and communion a man who has no connection with them, and whom they consider unworthy or unsuitable for membership. We doubt whether any presbytery would be willing, in this extra-judicial way, to receive any man against whom they had conscientious objections, on the simple direction of the General Assembly. If the Assembly chose to take the whole matter into their own hands, let them restore Mr. McQueen to his standing, and authorize any presbytery who saw fit, to receive him. This would be going great lengths, but it would be less objectionable than forcing him on a body whose consciences forbade their acknowledging him as a minister, in good standing. On the whole we greatly rejoice that a course so unprecedented and so liable to objection was met by a vote of such decided condemnation.

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