The opinion of the Court was delivered by
Gibson, C. J. —To extricate the question from the multifarious mass of irrelevant matter in which it is enclosed, we must, in the first place, ascertain the specific character of the General Assembly, and the relation it bears to the corporation which is the immediate subject of our cognizance. ' This assembly has been called a quasi corporation; of which it- has no feature.' A quasi corporation has capacity to sue and be sued as an artificial person; which the assembly has not. It is also established bylaw; which the assembly is not.. Neither is the assembly a particular order or rank in the corporation, though the latter was created for its convenience; such, for instance, as the shareholders of a bank or joint stock company, who are an integrant part of the body. It is. a segregated association, which, though it is the reproductive organ of corporate succession, is not itself 'a member of the body; and in that respect it is anomalous. Having no corporate quality in itself, it is not a subject of our corrective jurisdiction, or of our scrutiny, further than to ascertain how far its organic structure may bear on the question of its personal *599identity or individuality. By the charter of the corporation, of which this is the handmaid and nurse, it has a limited capacity to create vacancies in it, and an unlimited power over the form and manner of choice in filling them. It would be sufficient for the civil tribunals, therefore, that the. assembled commissioners had constituted an actual body: and that it had made its appointment in its own way, without regard to its fairness in respect to its numbers: with this limitation, however, that it had the assent of the constitutional majority, of which the official.act of authentication would be, at. least, prima facie evidence. It would be immaterial to the' legality of the choice that the majority had expelled the. minority, provided a majority of the whole body concurred in the choice. This may be safely predicated of an undivided assembly, and it would be an unerring test in the case of a division, could a quorum not be constituted of less than such a majority; but unfortunately, a quorum of the General Assembly may be constituted of a very small minority, so that two, or even more distinct parts may have all the external organs of.legitimate existence. Hence, where, as in this instance, the members have formed themselves into separate bodies, numerically sufficient for corporate capacity and organic action,.it becomes necessary to ascertain how far either of them was formed in obedience to the conventional law of the association, which, for that purpose only, is to be treated as a rule of civil obligation.
The division, which for purposes of designation, it is convenient to call the old school party, was .certainly organized in obedience to the established order: and, to legitimáte the separate organization of its rival, in contravention, as it certainly was, of every thing like precedent, would require the presentation of á very urgent emergency. At the stated time and place for the opening of the session, the parties assembled, without any ostensible division; and, when the organization of the whole had proceeded to a certain point, by the instrumentality of the moderator of the preceding session, who, for that purpose, was the constitutional organ, a provisional moderator was suddenly chosen, by a minority of those» who could be entitled to vote, including the exscinded commissioners. The question on the motion to elect, was put, not by the chair, but by the mover himself; after which the seceding party elected a permanent moderator, and immediately withdrew, leaving the other party to finish its process of organization, by the choice of its . moderator for the session. ' '
.In justification of this apparent irregularity, it is urged that the constitutional moderator had refused an appeal to the commissioners . in attendance from his decision, which had excluded from the roll the names of certain commissioners who had been unconstitutionally severed, as it is alleged, from the Presbyterian connexion by a vote of the preceding session. It is conceded- by the argument, that if *600the synods \vith the' dependent Presbyteries by which those commissioners were sent, had been constitutionally'dissolved, the motion was one which .the moderator was not bound to put, or the commissioners to notice; and whatever implication . of assent to the decision which ensued, might otherwise be deduced from the silence of those who refused to speak out,, about which it will be necessary to say something in the sequel, there was no room for any such implication in the particular instance. It would follow also, that there was no' pretence for- the deposal of the moderator, if indeed such a thing could be legitimated by any circumstances, for refusing an appeal from his exclusión of those who had not colour of title, and, consequently, that what else might be reform, would be revolution. And this leads to. an inquiry into the constitutionality of the act of excision.
The sentence of excision as it has'been called, was nothing else than an ordinance of dissolution. It bore that the synod in question,having been formed and attached to the'body of the Presbyterian church, under, and in execution of, the plan of union, “ be, and are hereby declared to be, out of the 'ecclesiastical connexion of the Presbyterian church, in the United States of America; and that they are not in form or iñ fact, an integral portion of said church.” Now it will not be said that if the dissolved'synods had no other basis than the plan of' union, they did not necessarily fall along with it, and it is not pretended that the Assembly was incompetent to repeal the union prospectively, but it is contended that the - repeal could not impáir rights of membership which had grown up under it. .On the other hand, it is contended that'the plan of unión was unconstitutional ánd void from' the beginning, because it was not submitted to the presbyteries for- their sanction; and that no right of membership could spring from it. But viewed, not as a constitutional regulation, which implies permanency of duration, but- as a temporary - expedient, it acquired the force of a law without the ratification of those bodies. It was evidently not intended to be permanent, and it consequently was constitutionally enacted and constitutionally repeajed. by an ordinary act of legislation; and those synods which had their root in it, could not be expected to survive it. There never was a design to attempt an amalgamation of ecclesiastical principles which are as immiscible as water and oil; much less to effect a commixture of them only at particular geographical points. Such an attempt would have compromised a principle at the very root of Presbyterian government, which requires that the officers of the church be set apart by special ordination for the work. Now, the character of the plan is palpable, not only in its title .and provisions, but in the minute of its introduction into the assembly.. We find in the proceedings of 1801, page 256, that a committee was raised “ to consider and ’digest a’ plan of government for the churches in the new settlements', agreeably to the *601proposal of the General Association of Connecticutand that the plan adopted in conformity to its report, is called “ a Plan of Union for the New Settlements.” The avowed object-of it was to prevent alienation — in other .words, the affiliation of Presbyterians in other churches, by suffering -those who were yet too few and too poor for the maintenance of a minister,’temporarily to call to their assistance the members of a sect who differed from them in principles, not of faith, but of ecclesiastical government. To that end, Presbyterian ministers were suffei’ed to preach to Congregational -churches, while ' Presbyterian churches were suffered to settle Congregational ministers ; and mixed congregations were allowed to settle- a Presbyterian or a Congregational minister at their election, but under a plan of government and discipline adapted to the circumstances. Surely this was not intended to outlast the inability of the respective sects to pro-wide separately for themselves, or to perpetuate the innovations on Presbyterial government;which it was calculated to produce.’ It was obviously a missionary arrangement from the first; and they who built up presbyteries and synods on the basis of it, had no reason to expect that their structures would survive it, or that Congregationalists might, by force of it, gain a foothold in the Presbyterian church despite of Presbyterial discipline. They embraced it with all its defeasible properties -plainly put before them; and the power which constituted -it might fairly repeal it, and dissolve the bodies that had grown out of it, whenever the good of the church should seem to require it.
Could the synods, however, b'e dissolved by a legislative act? -I know not how they could have been legitimately dissolved by any other. The assembly is a homogeneous body, uniting in itself, .without separation of parts, the legislative, executive -and judicial functions of the government; and its acts are referable to the one or the other of them, according to the capacity in which it sat -when they were performed. Now had the exscinded synods been cut off by a judicial sentence without hearing or notice,, the act would have been contrary to the cardinal principles of -natural justice, and consequently void. But though it-was at first resolved to proceed judicially, the measure was abandoned; probably because it came to be'percéiyed that the synods had committed no offence.
A glance at the plan of union is enough to convince .us that the disorder had come,in-with the sanction of the assembly itself. The first article directed missionaries (the -word is significant) to the new settlements to promote a good understanding betwixt the kindred sects. The second and third permitted a Presbyterian congregation to settle a Congregational minister, or a Presbyterian minister to be settled by a Congregational church; but these provided for no recognition of the people in charge as a part of the Presbyterian body — at least they gave them no representation in its government. But the fourth allowed a mixed congregation to settle a minister of *602either denomination; and .it committed the government of it to a standing .committee, but with a right to appeal to the body of male communicants, if the appellant were á Congregationalist, or to the presbytery, if he were a Presbyterian. Now it is evident the assembly designed that every such congregation should belong to a presbytery as an integrant, part of it; for if its minister were a Congregationalist; in no way connected with the Presbyterian church, it would be impossible to refer the , appellate jurisdiction to any presbytery in particular. This alone would show that it was designed to place such a congregation in ecclesiastical connexion with the ■ presbytery of the district; but it is not all. It wás expressly provided in conclusion, that if the “ said standing committee of any church' shall depute one of themselves to attend the presbytery, he may have the same right to.sit and act in the presbytery as a ruling elder of the Presbyterian church.” For what purpose, if the congregation were not in Presbyterial fellowship 1
It is said that this jus representationis was predicated of the appeal precedently mentioned; and that the exercise of it was to be restrained to-the -trial of it. The words, however, were predicated without restriction; and an implied limitation of their meaning, would impute to the assembly the injustice of allowing a party to sit in his own cause, by introducing into the composition of the appellate court, a part of the subordinate one. That such an implication would be inconsistent with the temper displayed by the assembly on other occasions, is proved by the order which it took as early as 1791, in the case of an appeal from .the sentence of the Synod of Philadelphia, whose members it prevented from voting on the question, (Assembly’s Digest p. 332;) as well' as by its general provision, that members of a judicatory may hot vote in the superior judicatory on a question of approving or disapproving their records. (Id. page 333.)
The principle has since become a rule of the constitution, as appears by the Book of Discipline, Chap. VII. Sect. 3, paragraph 12. As the representatives of those anomalous congregations, therefore, could not sit in judgment on tlieir own controversies, it is pretty clear, that it was intended they should be represented generally, else they would not' be represented at all in the councils of the church, by'those who might not be Presbyterians; and that to effect it,, the principle of Presbyterial ordination was to be relaxed, as regards both the ministry and eldership; and it is equally clear that had the synods been cited to answer for the consequent relaxation as an offence, they might have triumphantly appeared at the bar of the assembly with the plan of union in their hand. That body, however, resorted to the only constitutional remedy in its power: it fell back, .soto speak, on its legislative jurisdiction, in the exercise of which, the synods were competently represented and heard by their commissioners.
*603Now the apparent injustice of the measure arises from the contemplation of it as a judicial sentence pronounced against parties who were neither cited nor heard; which it evidently was not. Even-as a legislative act, it may have been, a hard one, though certainly constitutional, and strictly just. It was impossible to eradicate the disorder by any thing less than a dissolution of those bodies, with whose existence its roots were so intertwined as to be inseparable from it, leaving their elements to 'form new and less heterogeneous combinations. Though deprived of Presbyterial organization, the Presbyterian parts, were, not excluded from the church, provision being made for them, by allowing them to attach themselves to the nearest presbytery.
It is said there is not sufficient evidence to establish the fact, that the exscinded synods .had actually been constituted on the plan of union, in order to have given the .assembly even legislative jurisdiction. The testimony of the Rey. Mr. Squier, however, shows that in some of the three which were within the state of New York, congregations were sometimes constituted without elders; ■ and the synod of the Western Reserve, when charged -with delinquency on that head, instead of denying the fact, promptly pointed to the plan of.union for its justification. But what mattérs it whether the fact were actually what the assembly supposed it would be ? If, that body proceeded in good faith, the validity of its enactment cannot depend on, the justness, of its conclusion. We have, as already remarked, no authority to re-judge. its judgments on their merits; and this principle was asserted with conclusive force by the presiding judge who tried the cause! Upon an objection made to an inquiry into the composition of the presbytery of Medina, it was ruled that'“ with the reasons for' the proceedings of 1837, (the act of excision,) we have nothing to do. We are to determine only what was done: the reasons of those who did it áre .immaterial. If the acts complained of were within the jurisdiction of the assembly, their decision must be final, though they decided wrong.” This was predicated of judicial jurisdiction, but the principle is necessarily as applicable to jurisdiction for purposes of legislation. I cite the passage, however, to show that after a successful resistance to the introduction of evidence of the fact, it lies not with the relators to allege the want of it. •
If then the synods in question were constitutionally dissolved, the presbyteries of which they had been composed, were, at least, for purposes of representation, dissolved along with them ; for no presbytery. can be in connexion with the General Assembly, unless.it be at the same time subordinate to a synod,, also in connexion with it; because an appeal from its judgment can reach the tribunal of the last resort only through that channel. It is immaterial that the presbyteries are the electors; a synod is a part of the machinery which is indispensable to the existence of every branch of the church. *604It .appears, therefore, that the. commissioners from the exscinded synods, were not entitled to seats in the assembly, and that their names were properly excluded from the roll. • .
The inquiry might be rested here; for if there were no colour of right in them there was no colour of, right in the adversary proceedings which were founded on their exclusion. But even if their title were clear, the refusal of an appeal from the decision of the moderator would be no.ground for the degradation of the officer at the call of a minority; nor could it impose on the majority an obligation to vote on the question put unofficially, and out of the usual course, To all ques- . tionsputbythe established organ, it is thedutyof every member to respond, or be counted with the greater number, because he is supposed to have assented beforehand to the process pre-established to ascertain the general will; but the rule of implied assent is certainly inapplicable ío a measúré which, when justifiable even by extreme necessity, is essentially revolutionary; and based on no pre-established process of ascertainment whatever.
To apply it to an extreme case of inorganic action, as was done here, might work the degradation of any presiding officer in our legislative halls, by the motion and actual vote of'a single member, sustained by the constructive votes of all the rest; and though such an enterprise may never be attempted, it shows the danger of resorting to a. conventional rule, when the body is to be resolved into its original elements; and its rules and conventions, to be superseded by the very motion. For this reason, the.choice of a moderator to supplant the officer in the chair, even if he were, removable at the pleasure of the commissioners, would seem to have been unconstitutional. '
But he was not removable by them, because he' had not derived his office from them, nor was he answerable to them for the use of his power. He was not their moderator. He was the mechanical instrument of their organization; and till that was ascomplished, they were subject to his rule — not he to theirs. They were chosen by the authority of his mandate; and with the power of self organization, only in the event of his absence at the opening of the session. Corporeally present but refusing to perform his function, he might be deemed constructively absent, for constitutional purposes, insomuch that the commissioners might proceed to the choice of a substitute without him ; but not if he had entered on the performance of his task; and the reason is that the decision of such questions as were prematurely pressed here, is proper for the decision of the body when prepared for organic action, which it cannot be before it is fully constituted and under the presidency of its own moderator, the moderator of the preceding session being functus officio. There can be no occasion for its action sooner; for though the commissioners are necessarily called upon to vote for their moderator, their action is not organic but individual. Doctor Mason’s motion and appeal, *605though the clerks had reported the roll, were premature; for though it is declared in the twelfth chapter of the Form of Government, that no commissioner shall deliberate or vote before his name shall have been enrolled, it follows not that the capacity, consummated by enrollment was expected to be exercised during any part of the process of organization, but the choice of a moderator; and moreover, the provision may have been intended for the case of a commissioner appearing for the first time, when the house was constituted.
Many instances may doubtless be found among the minutes, of motions entertained previously; for our public, bodies, whether legislative or judicial, secular or ecclesiastical, are too prone to forget the golden precept, — “ Let all things be done decently and in order.” But these are merely instances of irregularity which have passed, sub silentio, and which cannot change a rule of positive enactment. It seems then that an appeal from the decision of the moderator did not lie; and that he incurred no penalty by the disallowance of it. The title of the exscinded commissioners, could be determined only by the action of the house, which could not be had before its organization was complete; and in the meantime he was bound, as the executive instrument of the preceding assembly, to put its ordinance into execution : for to the actual assembly, and not to the moderator of the preceding one, it belonged to repeal it.
It would be decisive, however, that the motion, as it was proposed, purported not to be in fact a question of degradation for the disallowance of an appeal, but one of new and independent organization. It was, ostensibly as well as actually, a measure of transcendental power, whose purpose was to treat the ordinance of the preceding assembly as a nullity, and its moderator as a nonentity. It had been prepared for the event avowedly before, the meeting. The witnesses concur that it was propounded as a measure of original organization transcending the customary order; and not as a recourse to the ultima ratio for a specific violation of it. The ground of the motion, as it was opened by the mover, was not the disallowance of an appeal, which alone could afford a pretext of forfeiture, but the fact of exclusion. To affect silent members with an implication of assent, however, the ground of the motion and nature of the question must be so explicitly put before them as to prevent misconception or mistake; and the remarks that heralded the question in this instance, pointed at, not a removal of the presiding incumbent, but a separate organization, to be accomplished with the least practicable interruption of the business in hand: and if they indicated any thing else, they were deceptive. The measure was proposed not as that of the body, but as the measure of a party; and the cause assigned for not having proposed it elsewhere, was that individuals of the party had been-instructed by counsel that the purpose of it could not be legally accomplished in any other place. *606No witness speaks of a motion to degrade; and the rapidity of the process by which the choice of a substitute, not, a successor, was effected, left no space for reflection or debate. Now, before the passive commissioners could be affected by acquiescence implied from their silence, it ought to have appeared that they were apprised of what was going on; but it appears that even an attentive ear witness was. unable to understand what was done. The whole scene was one of unprecedented haste, insomuch that it is still a matter of doubt how the questions were put.’ Now, though these facts were fairly put to the jury, it is impossible not to see, that the verdict is, in this respect, manifestly against the current of the evidence.
Other corroborative views have been suggested; but it is difficult to compress a decision of the leading points in this case into the old fashioned limits of a judicial opinion.' The preceding observations, however, are deemed enough to show the grounds on which we hold that the assembly which met in the First Presbyterian Church was not the legitimate successor of the assembly of 1837; and that the defendants are not guilty of the usurpation with which they are charged. The rule for a new trial must be made absolute.
Rogers, J. —After the patient and impartial investigation, by me, of this cause at Nisi Prius, and in bank, I have nothing at this time to add, except that my opinion remains unchanged on all the points ruled at the trial. This explanation is deemed requisite in .justice to myself, and because it has become necessary (in - a case in some respects without precedent, .and presenting some- extraordinary features) to,prevent misapprehension and misrepresentation.
Rule absolute.