can make a difference between the two as to their relative importance. We shall not pretend to enumerate all the evils which this plan of union introduced into the administration of our ecclesiastical government, much less the evils of another kind which followed in their train. The former have been detailed at some length in previous pages of the Repertory. (See vol. ix.-1837-pp. 419, 420, 426, 427.) At present we desire to direct the reader's attention to one point-the provisions contained in the plan for allowing Congregationalists, while remaining such, and Congregational assemblies, to participate in the administration of Presbyterian government. It is not disputed, we believe, that the third section of the act authorizes a Congregational minister, as pastor of a Presbyterian church, though still adhering to Congregational principles, and belonging to an association, to act as moderator of the session of that church, so that by his casting vote he may influence the choice of delegates to the presbytery or Synod. Some have attempted to deny that the fourth section, above quoted, authorizes the standing committee of a mixed church, composed of unordained men, to depute one of their number to sit and act in the presbytery as a ruling elder; contending that the last clause of the section provides only for the case of appeal previously mentioned, from the standing committee to the presbytery; that it allows a committee-man to sit and act as a ruling elder at no other time than while such appeal is pending. That the clause provides for the constant representation of the standing committees of mixed churches in presbytery, a very few remarks will suffice to demonstrate. It is evident that every mixed church was to be connected with some presbytery, else to what judicatory could the appeal provided for lie? As the reader well knows presbyteries are set off not by geographical metes and bounds, but by the designation of the churches of which they are to be composed. The appeal would lie to the presbytery of the pastor, it may be urged. But suppose the pastor a Congregationalist, what appellate court would have jurisdiction? Our construction of the act affords the the only plausible solution of the difficulty. Again, the last clause is by no means so restricted in its application as some would pretend. It authorizes a committee-man, say they, to sit and act as a ruling elder-only while an appeal from the committee deputing him is under trial. But it is an established principle of Presbyterian government, that "mem - bers of judicatories appealed from, cannot be allowed to vote. in the superior judicatory, on any question connected with the appeal;" and "that after all the parties shall have been fully heard, and all the information gained by the members of the superior judicatory, from those of the inferior, which shall be deemed requisite, the original parties, and all the members of the inferior judicatory shall withdraw."(Book of Discipline, Ch. vii. sect. iii. § 9, 12.) Now, if acting means, or necessarily includes voting, the clause, according to the construction which we repudiate, may be fairly paraphrased thus: he (the committee-man deputed) may have the same right to sit and act in the presbytery as a ruling elder; that is, the right to sit and act when an elder could not; or, he may have the same right to sit and act as an elder; that is, no right at all. If it be said, that acting means only giving the information spoken of in the passage above quoted, and otherwise performing the part which properly belongs to members of the inferior judicatory, during the hearing of an appeal, we ask why the Assembly departed herein from another principle of the constitution, viz: that the appellate tribunal shall hear, not merely a representative of the lower court, but any of its members, in explanation of the grounds of their decision, or of their dissent from it"(ib. 8.)-explanations very important, and which a representative of the whole body could not possibly make? And why is it not rather provided, that such delegate shall sit and act as a member of a judicatory appealed from," instead of "as a ruling elder of the Presbyterian church." Though the effect of either form of words might be the same, the use of the latter seems plainly to indicate that the peculiar idea which it conveys, was uppermost in the minds of those who framed the act. Is it said that all the members of the inferior body were to be permitted to give information and explain their reasons, but that the person specially deputed was to sit and act as the elder specially delegated by a session? But such elder performs no duty pending the appeal, which each member of the session may not perform. He is specially appointed, because the presbytery is to transact other business beside what pertains to the appeal. According to this idea, the provision would be at best useless. And, after all, there is not the least reason for such a restriction of the sense as is thus contended for, unless in the principle, that an instrument shall be construed according to the powers of the person who executes it, and its meaning mea sured thereby; that he shall be supposed to have intended granting only what he might lawfully grant. This might be a strong reason in favour of a presbytery against a party claiming admission under the plan, if, indeed, in such a case any reason were needed. But here we wish to arrive at an understanding of the real, not the constructive, intention of the Assembly, to determine whether that was not in accordance with the subsequent operation of the plan, as exhibited in some of the evils complained of. Indeed the practice under the act-and what that was we shall show hereafter-is of itself a ground of argument in favour of the most liberal construction. In the case of Weckerly v. Geyer, 11 Serg. & Rawle's (Penn.) Rep. 33, Chief Justice Tilghman said, "that on points not clearly expressed in the charter," (incorporating a church,) "the understanding of the congregation, evidenced by their practice, was a circumstance entitled to some consideration." We may here notice the fact, that on the floor of the Assembly, in 1837, the excluded commissioners, and their friends, boldly appealed to the act of 1801, as a justification; nay, more, an express sanction of the irregularities complained of. If the plan of union was intended to provide for a mixture of Congregational with Presbyterian forms of government, it was clearly unconstitutional. The constitution asserts, in one of the passages already quoted, that a certain and definite form is absolutely necessary, and then goes on to provide such a form, thereby excluding all others. And the Assembly cannot amend or alter this instrument without the approbation of at least a majority of the presbyteries. Being unconstitutional, then, the plan was, according to the plainest rules of construction, utterly void. But it is urged that the assent of the presbyteries thereto is to be inferred from their silence in regard to it, and so called acquiescence, for thirtysix years. If, however, the act was void in its commencement, there was nothing on which consent could afterwards operate. Is it meant that the practice or custom resulting from or following the adoption of the plan was acquiesced in until it acquired the force of a constitutional rule? That usage can annul the express words of any constitution is a doctrine so monstrous, that if our argument depended on its refutation, we should hardly think it worthy of serious thought; but it is enough for our purpose that no one can pretend that usage may alter a constitution which provides a different mode of effecting alterations, to the exclusion of all other modes. "Before any overtures or regulations proposed by the Assembly to be established as constitutional rules, shall be obligatory on the churches, it shall be necessary to transmit them to all the presbyteries, and to receive the returns of at least a majority of them, in writing, approving thereof." Form of Gov. ch. xii. sect. 6. This must decide the case, unless there be force in the objection, that the provision of one mode of amendment does not exclude all others; and that the plan has been ratified, not as a proposition coming from the Assembly, but, when already founded on custom, by the independent action of the presbyteries. Will any one contend that the states of our Union can, without the intervention of Congress, amend the constitution of the United States? They certainly cannot, unless by revolution. Yet there can be no reason for this, excepting that a method by which they can do it is not provided, or that the mention of two modes of making amendments is an exclusion of all others. The constitution of our church provides one method and only one. Furthermore; the implied approbation of the presbyteries cannot effect what their express approval, in writing, could not; and we deny that they have the power to make such essential changes in the principles of Presbyterian church government, as we have endeavoured to show that the plan. of union contemplated. This argument has the greater force the more narrow the limits assigned to the powers of our judicatories. Above all, those who admit that the Assembly had a right to abrogate the plan, must allow that it had not acquired the force of constitutional law: if it had, the consent of the presbyteries would have been necessary to its abrogation. It is urged that the re-adoption of the constitution, as amended in 1821, was a formal adoption of the plan of union and all its fruits, because no objection to it appears to have been made at that time. If, however, the presbyteries had not the power, which we have just said they lack, there is an end of this pretence. The argument above used, founded on the constitutional provision in regard to amendments, seems also conclusive here. And, before silence can be construed into consent, it must be shown that the question was fairly put. Now it is notorious that the very existence of the plan had been forgotten, and that its fruits were little dreamed of, by a large part of the church, in 1821. Besides, the constitution of that year does positively annul the act of 1801. Like its predecessor it declares, as already shown, that a certain and definite form of church government is absolutely necessary, and afterwards prescribes a form. A provision utterly inconsistent with that act, and repugnant to it, must have equal force with an express abrogation thereof. But look at the principle contended for in itself. It leads necessarily to the absurd position, that every law enacted under a constitution, however repugnant thereto, acquires validity from the circumstance of that constitution being amended and re-adopted, without particular mention being made of such law, although, more repugnant, it may be, to the new instrument than to the old. This is certainly a principle which our legislators have yet to learn. But it matters very little to our argument, whether the plan of union introduced irregularities into the Presbyterian structure, or not-whether it was unconstitutional, and therefore void, or not. That gross irregularities did exist in the four exscinded synods, and other portions of the church, has been conclusively established. The proof is found in the testimony of Mr. Squier (Miller's Rep. 71, 72);* in statements and admissions made by the new school on the floor of the Assembly in 1837; in other statements coming directly from the most authentic sources, and in the fact, that no serious attempt has yet been made to disprove the allegations of the old school as to this point. The evidence is exhibited at greater length than is consistent with our present limits, in the Repertory for July, 1837, (Vol. IX.) pp. 427, n. 429, 430, 431, 434, 455, 465, 471, 472, 473. We shall content ourselves with briefly enumerating the chief of these irregularities. In church sessions regularly connected with presbyteries, and represented therein, Congregational pastors presided. Mixed churches, formed after the model exhibited in the plan of union, and governed by unordained committee-men, the standing committee being composed sometimes of a select number, and sometimes of the whole body of male communicants, sent lay delegates to the presbyteries, who were received and allowed to sit and act, in all respects, and in all cases, as ruling elders. Even many churches purely Congregational were thus continually represented in presbytery; and the synods were constituted of the same materials. In 1837 was ascertained the astounding fact, that of one hun * Judge Rogers excluded all the testimony on this point offered by the de fendants, on the ground of impertinence. |