fund. I find no such acknowledgment, yet on that idea this suit is built, and we are endeavoring to save property which is ours and in our possession.

If your honors please, the idea which gives to this case its magnitude is this: there is something out of this particular society or body, which is to operate on and take away the money from one party and give it to another. This gives the importance to the controversy that you are now to settle; for, recollect that my clients can have this money taken away from them, only on the principle by which the general question is to be decided; with regard to all their other property they must be subjected to the same rules; if the fund is to be taken away in consequence of their not being connected with the particular yearly meeting, or of any other extraneous circumstances, it is on the principle which applies to all their meeting houses, all their school funds and school houses, aye, to their grave yards, where their fathers and friends lie buried.

And if that principle be established here, all this great society, who are listening with agitated hearts to the investigation of this question, all this great body must have a decision against them, which will leave them with only the canopy of Heaven for a building in which to worship the God of their fathers-will leave them without a single house in which their children may be educated, and without admission to the cemeteries of their dead. Can they meet such a question with indifference? can I discuss it with indifference? I should scorn my nature if I did not feel. Sirs, they cannot surrender these things; the whole of them. It is not this fund alone in controversy. Without a struggle they have followed when they were called, and answered when they were compelled to answer; but they will never surrender all the property, and all the matters connected with their feelings, their hopes, and their happiness, until that power, which they cannot resist, shall tell them, "depart, you have no right here."

I hope to save the law from the reproach of such a decision; and in doing it, sirs, I know one thing well, and our adversaries know it. Even admitting that those whom I represent are as our adversaries say they are, it would be well for them to follow the example of the early members of this society. This is not the first time that a question of this character has arisen. When Barclay and Penn were most distinguished in this society, a controversy of this kind arose, I speak of a historical fact. A portion of the society separated from the rest. They were called the separatists of that day, and when they went away they cast back upon the majority of the society, who remained firm, the charge of intolerance; that they had taken away their property and would not admit them to their grave yards. An answer was given them in the language of Penn, "It is false and untrue; we know that you have a right to this property, and that it cannot and ought not to depend on your thinking as we think on religious questions; we never denied you a portion of this, and we are a vast majority, but your share you shall have whenever you ask it of us."

Read the history of that day, and you will find these principles of the society written in letters which cannot be misapprehended; and I act on the principles of Penn and the society, when I endeavor to save both the society and law from the reproach of a belief, that this minority is to carry away the whole of the property. I will refer you to a work which has been exhibited here, 2d Penn, 192, 212, Story's Journal, 265; Griffith's Journal, 230, 231, where these principles are laid down as matters of history; it was their principle then, and it is our principle now. I would that it were the principles of our adversaries. There is another circumstance which has often been brought into consideration in the discussion of this case. I mean the controversy of George Keith with this society. The history of this controversy and the character of it, have been laid on record, in which the principle upon which they acted is exhibited. George Keith carried off, as the history tells us, a large number of the society; some of them had property, some had a majority and others a minority: was there in any one instance a contest for property? No, no, in that day Quakerism said, "let them hold all before we will demand it before a tribunal of justice."

But, sirs, notwithstanding this fund is in the situation in which I have endeavored to present it, notwithstanding this majority stands in that relation to the fund, notwithstanding they were in possession of the whole fund, notwithstanding the principle of justice to which I have alluded, notwithstanding the practice of this society from its origin to the present moment, it has been decided that the minority is entitled to the whole of this fund; in other words, that my clients, the majority of this meeting, have forfeited all their rights, and are to lose them; and in losing them to this fund, they are to lose them to all other property that for a century and a half has been gathered up by them.

It is this decision, sirs, which I have to meet in this discussion. The decision by one of the learned judges who decided it, rests on the ground, that we have lost our rights on account of religious faith; by the other, that we have lost them in consequence of withdrawing from the society, and for violating the principles of the discipline and constitution; thus taking them both together, they lay waste our civil and religious character. Against this decision we have appealed, and we do most earnestly protest, we do it respectfully, but firmly, in the name of the best feelings of our nature, in the name of justice, we protest against such a decision.

We have the burden, I admit it, of showing that it is wrong. For myself, I feel the weight of that burden, and I feel it heavily. One of the men who pronounced that decision still lives, honored for his wisdom and his virtue. Of the other you have heard much, both during his life and since he has departed. I will not quarrel with the learned counsel for any eulogy upon that man, but I will not admit that he or any man stands a-head of me in respect and in reverence and in devotion to his memory. That opinion, the learned counsel told you, was

pronounced in an hour of gloom; it was succeeded by an hour of deeper gloom. He said he sealed it with his blood. Sirs, this was not so. When that opinion was pronounced, it was in the vigor of life, and he died, believing that he had in that opinion been guided by established principles of law. But he then knew that I denied the law and the justice of that judgment, which I am now about to canvass here, and in which I told him according to my best feelings and judgment, he had erred. And if in the investigation of that judgment, I should speak strongly, I shall not speak irreverently of him, but as he would demand of me, if he were here to order and command the mode of my argument. Sirs, he would spurn that reverence that could make me halt in the discharge of my duty. He would scorn that respect, that would paralyze the effort of the advocate, and disown that friendship that would hesitate for a moment to show his errors, when they had an effect upon law and justice. Sirs, he was an honest and an able judge, but he could err, and no man was more conscious of it, and none that I ever knew so anxiously desired the correction of his own errors. He loved his reputation for wisdom and integrity, but sirs, he loved justice more, and nothing could or ever did give him more pain than the suspicion, that in regard to this, he might have erred.

I believe, sirs, that in this opinion he has committed great and manifest and palpable errors. It shall be my purpose to show it, and I do this with the profoundest reverence for himself, and regard for his memory. In approaching this decree and the opinion on which it is founded, it is a consolation to me and a strong consolation too, that these learned judges did not agree in the views which they take of this case. By their opposition to each other, for it is nothing else, by their failing to agree in the views which they take, they aid me in this investigation. If they were united, and united in precisely the same views, there would be much greater strength in their decision. But the views they take are founded on different aspects of the case. They do not agree sirs, and with all the effort they could make for the settlement of this great controversy, they could not agree in the views which they took of it. Chief Justice Ewing puts his opinion distinctly on this ground; that the yearly meeting at Arch street is the true yearly meeting, and that under the discipline of this society, the friends who seceded from it, thereby lost or forfeited their rights. This is the ground on which he puts it. He explicitly avoids all questions as to the religious doctrines of the parties. The first learned counsel of the orthodox, infers that he would have decided with them on this point, if he had thought it necessary to decide that point. But that is the mere inference of the counsel. It is not and cannot be shown from his opinion. I deny it. Chief Justice Ewing has no where said, that on the point of religious doctrines, the orthodox party were correct. He has nowhere said that friends were incorrect. When the counsel makes his inference, he does injustice to the judge as well as to the adverse party, and if you will look at this opinion, page 40, 41, 52,

and 59, you will find a clear and explicit refusal on the part of Chief Justice Ewing to enter into the question as to religious doctrines. It is not necessary to read these passages here, as you have read the opinion in your closets, but I hope you will refer to them. He avoids religious opinions; he rejoices that it is not necessary that he should inquire into these religious opinions. It is true that the chief justice insists that the society of friends, that quakers, have religious doctrines, and says too, that these doctrines may be found in many works of standard authors. Well, sirs, have we denied that in our answer? have we denied it in the evidence? have we denied it in argument? when and where do we say, as you have heard from the adverse counsel, that we declare there are no religious doctrines connected with this society? when did we declare it? I deny it. We have never, any where, made any such declaration. We have religious doctrines. How could we be christians without religious doctrines? But even that name has been denied to us. How could we be a band of religious people, how could we be united together in worship without religious opinions? How is it possible for us to make such a denial? We have denied that certain doctrines pointed out, were doctrines of the society, but that does not admit that we have no religious doctrines, and we have shown in our answer that we not only have religious doctrines, but that we rely on them with a faith, for which we are ready to answer to the God who made us, but that we are not ready to answer to our fallible fellow man.

Now, sirs, while the chief justice places it on the ground, that Arch street yearly meeting is the true yearly meeting, and that we have lost our rights by withdrawing from it, Judge Drake places it on other ground, and expresses a doubt whether a forfeiture should take place, even supposing we had committed an error, in relation to government or discipline. In page 72 he remarks, "But the Chesterfield preparative meeting with respect to this fund, may fairly be considered, not merely as a trustee, but as having a beneficiary interest, inasmuch as the fund is to be expended in the education of the children of such of its members as are poor. It is a subordinate meeting, the pretensions of which are to be settled by its acknowledging one or the other of these yearly meetings as its head. There was some difficulty in selecting which it should acknowledge, and if the majority had mistaken the truth, and connected themselves with the wrong head, (supposing this to be a mere dispute as to government or discipline,) I should feel very reluctant to conclude that they could have no further right or interest in the fund."

Here then Justice Drake puts aside directly and positively, the ground on which the chief justice rests his opinion. He says, that on that ground, he doubts whether, if this Chesterfield meeting has committed an error, that they are therefore to lose their property. We have then these two judges standing on totally different grounds; the one resting on the ground that we have separated from the true yearly

meeting, and the other on the ground that we have erred in religious doctrines. How does the learned judge get to that? I wish here distinctly to state the mode pursued in reaching that point, in order that the court may follow me in any suggestions, that I may make in relation to it.

The quakers have religious doctrines; the orthodox party have shown that they hold these religious doctrines, and deny that friends hold them. Friends have not shown that they do hold them, and therefore the orthodox must take away the property. This is his argument Take it and weigh it in the scale of common sense, (I desire to speak respectfully of the judges,) and tell me what it is. Here are two parties formerly belonging to the same society, and one says we have certain religious opinions, and proves it, and takes away all the property. They say to the others, "we seek this forfeiture not by proving that you are wrong but that you will not admit that your opinions are sound, and from it we infer you are guilty, because you will not prove yourselves innocent. We say that you do not hold certain opinions, and because you will not prove that you do, (and how are you to prove it,) you shall be punished by a loss of your property." Is not this a fair exhibition of the opinion of Judge Drake? Is there any other principle connected with it? If there is, I have not the intellect to find it out, and on that head it is destitute of law, of common sense, and of justice. I repeat again, I do not wish to speak disrespectfully of the judge, he erred, and the greatest men err. I have known him long and have loved him well, but he can commit errors, and he has here committed as great an error as ever a judge did in a court of justice.

T. Frelinghuysen. Will you permit me to read a sentence from Judge Drake's opinion.

S. L. Southard. I will let you do as you please sir.

T. Frelinghuysen then read a passage from page 87 of the opinion, and observed, that will stand the test of scrutiny, of talents, and of time.

S. L. Southard. The learned counsel has made his speech and I shall proceed.

T. Frelinghuysen. You said I might do as I pleased.

S. L. Southard. I will always let you do as you please sir, here or elsewhere, for I am sure you will always do right.

The great error which the learned counsel has fallen into in reading this extract to the court, arises from this simple fact, and it lies on the very surface of this case, and in the decrees or bills of interpleader; it is this. That here are not two parties contesting for a piece of property for the first time, in a way that is to show who has a right to the property, or who cannot have it, as in relation to rent, and where one party has never had it in possession. Here in this case, both parties are in possession of the property, both start at the same point in the investigation of their rights, and the question is not, who shall recover