necessary for the act to confirm itself, to say what shall be the qualification of electors. I should suppose therefore that from the wording of this ninth section, the necessity of eighteen years is a new provision; or if the age of eighteen years is required in the fundamental articles, then there should be a legislative provision paramount to the original articles, fixing it thereafter beyond the possibility of argument that eighteen years shall be required in an elector, and which would not be in the power of the corporation to alter; for one or other of these purposes this clause was introduced. The act goes on to say that the elections are to be held by ballot; what they are to be for is before described. It merely makes the statuary provision of " MAGNA CHARTA, all elections shall be held by ballot," &c. In order to shew what they meant by "for," it goes on to say, no person shall be eligible for a member of the corporation or officer of the congregation, who is not qualified, as aforesaid, except the minister, &c." This shews that the ninth section is merely a defining section of what precedes, and not a granting section; it contains no grant but defines the manner and The persons by whom the corporation powers should be exercised. Adjourned.

66

THURSDAY, 18th JULY, 4 O'CLOCK, P. M.

MOSES LEVY, Esq. in continuation.-After some preliminary observations, he thus proceeded:

Gentlemen, I am not disposed to controvert the doctrine in 3. Burr. 234, that the corporation cannot make bye-laws inconsistent with their charter; but I do say, that this bye-law is not inconsistent with the charter; and I think it will appear clearly in evidence, that this bye-law, the existence of which is so decisively proved by the document in evidence, to which we have referred, that no doubt can be entertained of it, was passed after great consideration for the best interest of this institution. I have observed, that so long as there was no controversy, the exercise of the corporate powers by any officer of the corporation or by the corporation itself, was never questioned. When men agree in opinion they never enter into disputes about the authority of each other to act. It was in conformity with this general principle, that we find great inattention paid, in the early stages of the administration of the affairs of this congregation, to the charter and act of assembly. It is impossible to know who exercised the power of appointment before 1805; sometime one is said to have done it, sometime another; sometimes the witnesses state it to have been done by the corporation, and sometimes by the congregation. Andrew Busch says, "formerly, before the election would be held, the president would say, "gentlemen we want judges and he would name one, who would say that he would have nothing to do with it-then among themselves they would choose another-there was no law, only they would make the election themselves, in peace." This shews that until the controversy began, no question was made about

the right of exercising this power of appointing inspectors. John A. Uhler, another of the witnesses of the prosecution, says, "generally a few days before the election, the vestry meet and appoint inspectors, and do some other business;" and afterwards he says, "I saw Hockley and Lehr taking votes, I believe they acted as inspectors that day; before that, they were appointed by the president or vestry," and his own conduct shews his submission to such a regulation; "a short dispute arose in the vestry, and I said that the corporation should appoint inspectors; the German party carried it by a casting yote that the president should appoint. I begged him to appoint in due time, because I was afraid of what might take place." It seems from Uhler's testimony he also supposed, that either the corporation generally or the president could appoint. Charles Eberle has also given his testimony upon the same subject." I never was present at an election where the inspectors were chosen, the nomination was always made in the cor poration." Krebs has also given his testimony upon the same subject." I was elected into the vestry first in 1790-I continued off and on for twenty-one years. From 1790 and before, the inspec tors were always chosen by the congregation, assembled in the school house, let them be few or more; no inclosure was known till 1806 or 1807." Peter Lex upon this subject says, "formerly the inspectors and judges were chosen by the congregation on the election day. The accounts were read off, then wo called out, I propose such an one for inspector, &c.-then he who proposed put the vote. This was altered when the dispute arose about English preaching. The secretary said it could be done by the president and corporation, who found it necessary to have a small place partitioned off for them. It was spoken of in the vestry always and the next day the president nominated such as had been agreed upon." Honey has also given his testimony upon the subject."-We thought the appointment of inspectors so small a matter that we did not do it in the congregation; I dont know that the appoint ment was ever made in the corporation, but we waited until we got into the school house, and then the president appointed whom he thought proper. I appointed them in 1815; in 1814 I don't recollect.

Here then appears to have been the most irreconciliable number of ways of appointing inspectors of the election, some one of which could not be warranted by the charter of corporation or by the laws. In consequence of this it became necessary to fix the person by whom the appointment was to be made; and by the bye-law of 1805, this power of appointment was vested in the president, which accordingly was entered among the bye-laws of the corporation, in the book of the corporation twenty-first December 1805.. This would have caused a dispute after every election, if there had been any chance of success in subverting it; because, if the election had not been conducted by those authorized to conduct it, it would be said, as is now attempted on the other side, that the election was not regular, upheld by men, not competent to decide

upon it. As there was no regular practice, when the first schism and controversy began, it became necessary to ascertain who should appoint the inspectors. This bye-law, calculated to carry their elections into effect without disorder, has been submitted to from 1805, until it became the interest of the prosecutors in this cause, to call it in question: unless a single effort of one Graff can be called a disturbance of this law, which fell through and which I will notice by and by. Honey did not know an instance in which the congregation appointed. This bye-law put into the hands of the president of the corporation the power of appointing the inspectors to conduct the election for vestrymen and church wardens, and with great propriety because the corporation are chosen by a majority of the electing members, the electors; they therefore represent the sentiments of a majority of the congregation by whom they are chosen, and the corporation chose the most respectable man out of their number to be president. When therefore the power was given to the president, it was given with general discretion for the general good; he was to appoint the inspectors by whom the election was to be conducted. If it had been otherwise, efforts would have been made to disturb the election. If the inspectors were to be chosen every election by the majority, there would have been a scramble for one side to get its numbers at the ground before the other; there would have been an effort such as we have seen at our ward elections, where sometimes the party who are not the majority gain the ascendancy. With great propriety therefore, this power was vested in the president, who, from his respectability and knowledge would probably make such appointment as would be satisfactory. The inconvenience of this to the minority was soon felt; for the chance they had of meeting early on the ground to put their men in by a majority was taken away; and therefore a Mr. Græff procured an opinion from the attorney general, to shew that this appointment by the president, was contrary to law and the constitution; he failed in the object for which this opinion was procured. After this nothing was heard of in opposition to this bye-law, and Lehr says, upon the opinion shewn some years ago, 66 they did not mind it they went on Woelper was president, he appointed inspectors and afterwards it was always done so. When Mr. Muhlenberg was president, I stood by him and saw him appoint inspectors-it was before this congregation separated." Ever after this bye-law until the present occasion, it has been universally known, submitted to and practiced under. Can it be presumed that there was any defect in this bye-law? Can it be presumed after a practice of nine years in consequence of it, there was any want of authority in making itthat two thirds did not agree to it? I think not, and particularly when you find those very gentlemen who now endeavor to avoid it have acted under it and admitted its legality and operation until now when there is no other means of carrying their point than by questioning it. If the advocates of the English language wished to ascertain if this was a valid bye-law, they might have done so at

Mr.

any time by procuring an information to be filed in the nature of a quo warranto, as they have done in the present instance, to ascertain whether it be a valid bye-law or not. They ought to have done so; but their intention was, knowing that the German party was a majority, and thinking they would not be likely to attend in sufficient numbers when the election opened, to let it go on for nine years without any opposition that they might have an opportunity to take advantage of the inattention of the contrary party. They accordingly put it to vote whether the appointment should be by the congregation. It was their object to bring their men on the ground as soon as the clock struck nine, and when the accounts were read over to take the advantage by counting their num bers. We do not know whether this was the case; but can you doubt, but, that those who were in favor of the appointment by the congregation were all ready to vote in favor of it; and if it had been carried, it had only been because of the others not attending when this unex pected motion was made. That this might have been the use made of it is certain, and that it was fair to give notice of it all will agree, that the opposite party might be as ready as they were. I ask whether they did not attempt to take the German party by surprise? Therefore it was an unfair attempt, particularly as this bye-law was submitted to by them until this election, and that they did submit to it I will prove by the declarations of a number of their witnesses. "At the meeting," says Uhler," of the twenty-sixth September a short dispute arose in the vestry: the German party carried it by the casting vote that the president should appoint. I begged him to appoint in due time, because I was afraid of what might take place." At this time Uhler expressly admitted that the president might make the appointment; how could he do this, if he thought the law unconstitutional or void? Geyer, whose ideas are as correct upon this subject as any member's of the congregation, shews what they are by the evidence he gives. "I was present at the corporation, when the motion was made to appoint the judges, and they refused because a motion existed that the president should do it. The president was asked several times to appoint them and he refused I asked him myself." Mr. Dreer mentioned the motion made by Witman himself, and it is not denied but is confirmed, which is an acknowledgment. "Witman proposed to repeal that bye-law, and proceeded to voting, and there was a majority to preserve the bye-law, and a small number against it-It was voted, the whole election should go on as formerly and the bye-law be preserved that the president should have the same authority he: formerly had." Then it appears that Witman himself absolutely made a motion to repeal this very law. The law has been read from the book of minutes and a number of witnesses referred to the existence of the bye-law, and the conduct under it for years past. Then Witman, instead of insisting on the night of the twenty-eighth December on the exclusive right of the congregation, moves as a member of the corporation that the inspectors he had nominated should be appointed; his motion was not carried, and:

he then moved, that the president should appoint them. What! move that the president should appoint them on the twenty-eighth December 1815, and then come forward with a declaration on the sixth of January following, that the president had no power to appoint them, and that the appointment was in the congregation! I think, gentlemen, that nothing could be more apparent than, that this attempt to impeach the validity of this bye-law is the last re.. source of despair. After every attempt to get the officer of the corporation under that bye-law to appoint, in all which its force and effect are acknowledged, these gentlemen attempt on the sixth of January, and now by the counsel on the part of the prosecution, to prove, that neither the corporation nor the president have a right to appoint; and what they have submitted to for nine years, and over and over again declared to be in the power of the corpo ration, they now declare before you, that, they have no right whatever to do. In what manner does Witman make his motion to overturn the acts of nine years on the election day? Had any notice been given to the opposite party to consider it, and come prepared? never any he came to say what he could in support of it, not at a time stated by the corporation to act upon such points; but on a day, when the charter orders nothing else to be done for appointing the election to be held that day, excludes any thing else: Coming that day and taking the question that day, as he did, no man could have anticipated. At what time, and in what manner does he move it? Immediately after the Treasurer's accounts had been read, seeing the tardiness of the old gentleman, who was president of the corporation, he jumps into the enclosure, takes the advantage of Honey, who was old and slow, alarms the people and puts the question. Honey says, "he got the upper hand of me." Is the bustle to be such as at a horse race? Is a man to be jostled out of his place, and another to get up and harangue the people instantly? And not requesting them to consider of his proposition; but to inquire immediately whether the appointment of inspectors was right and whether they would appoint the gentlemen he proposed as inspectors. Now, as all questions are taken in deliberative bodies, there ought to have been two separate questions; first, whether the congregation would appoint, and second, whether these persons he nominated should be appointed-giving them an opportunity to decide upon each question. There were some who thought, that the appointment by the congregation was best, who upon the double proposition would say no; because they would not agree to the candidates, although they would agree to the appointment by the congregation. It is not to be wondered at then, that the members did not understand what it was about: I will venture to say, that if they had been asked, what was this man's object, a number of them could not have told what it was. You find, Dreer did not understand him at all; he said, his motion was, to appoint them himself. Many others assumed like errors; one said, he had read the opinion of the attorney general, that he was to ap point the inspectors; one wonders, the president did not know