ARGUMENT

OF

SAMUEL L. SOUTHARD.

SIXTH-DAY MORNING, 9 o'clock, 8th Mo: 9th. 1833.

It is not my practice, as your honors well know, while representing the interests of my clients, to bespeak from the court, either its earnest attention to the cause, or its favorable consideration for myself. But, sirs, on this occasion, it will not be regarded as an affectation of diffidence in me, if I venture to remind you of those unusual circumstances, which accompany the investigation of the cause now before you. Connected with it there is a magnitude which all feel, not merely in relation to the present moment, but to all coming times while our institutions last.

When you look at the agitated countenances of those interested in this case when you perceive the multitudes which have been thronging the avenues to our courts of justice, day after day-when you recollect that for twenty successive days this court has been devoting an earnest, anxious, and solicitous attention to the question now before them, it will not be considered strange, if in this investigation I feel as though I have a burden resting upon me which I am unable to bear.

Nor, sirs, are my difficulties diminished by the manner in which the cause of my opposers has been presented to you. You have heard an ingenuity in argument not surpassed any where. You have heard a manly, admired, and sympathy-exciting eloquence, which may find, possibly, competitors, but no superiors. I should under these circumstances sink under this cause, if I were not sustained under a consciousness of its strength, and had I not seen that strength exhibited by my learned associate counsel in his opening, in a manner which puts at defiance, all the power of the adversary; for he has placed this cause on grounds which remain untouched they have been assailed but not overthrown.

In the investigation of this question I shall endeavor, as far as practicable, to keep separated the one from the other, those questions which are purely of a disciplinary character, and those that belong to the religious aspects of the question. It appears to me that unless the mind will keep them distinct, by first making an inquiry into the facts of the case, independent of the religious questions, I care not how strong it may be, it will become bewildered and confounded; and no better evidence of this can be exhibited than was shown in the argument of the opposite counsel. I ask therefore, in the first instance, the attention of your honors to the subject matter of the controversy.

It is a part of a school-fund which friends at Crosswicks provided for the education of their own children. It was created in 1792, by a subscription of individuals living in their neighbourhood and belonging to one single association; in the year 1795 it was increased by another subscription of the same individuals, none living out of that particular meeting, all belonging to it. It was further increased by a portion of what is called the quarterly meeting stock, but that is considered precisely of the same character; when its character is understood, as the subscription made by individual members. The quarterly meeting had a stock created by the different subordinate branches, or by the members of those branches, (who were members also of the quarterly meeting,) for purposes connected with that meeting; and when that stock was necessary to be used, they divided it among those who had constituted it, in proportion to their contributions; returning back to the preparative meetings and monthly meetings, that which had come from the preparative and monthly meetings. When this portion came to the preparative meeting of Chesterfield, it was the returning not of a gift of theirs, not of a fund to be placed in trust for an object which the quarterly meeting had designated, but a returning back of the money which they themselves contributed, it not being wanted for the purposes of the contribution. A small portion of this fund, it ap pears from the history, was derived from the sale of a meeting house in Burlington, belonging to the quarterly meeting. It does not therefore, create the slightest distinction, for that house belonged in part to the subscribers to this fund at Crosswicks, and it was returning money which they had already paid or contributed. This whole fund was created by people living in Crosswicks, and for purposes in which they and not others, were interested.

Nor, may it please your honors, is this fund of the character which was given to it by the learned gentleman who first addressed you on the part of Joseph Hendrickson. He spoke of it as a trust having all the honors and sacredness of antiquity about it, and as if those who created it were laying in their graves; and you were told that you are now called upon to violate the wishes and the purposes of the dead. Is it so sirs? Is it so? Eight of the very men who created that fund are now living, and the children of all the rest are now living there and did all live there at the moment of the creation of this fund. In this

investigation we are to recollect that we are looking at a fund created by persons now living, and who are parties in this controversy. Such a character has been given to this fund which if true, would make it sacrilege in us to touch it. But sirs, we are speaking of our own fund, and are inquiring what shall be done with money which we ourselves have contributed. Whether we shall apply it according to the original intention, or be prevented from doing so because there is a principle of law which stands in the way of this liberty. I repeat sirs, that it is necessary to call your attention particularly to this aspect of the question, because a large portion of the remarks of one of the learned gentlemen who addressed you, was calculated to mislead the mind on that very topic.

It is a fund which we ourselves have created. The objects for which it was created we shall see presently; but it was created by us, and our inquiry now is how we may be permitted to use it, or who has the right to use it.

The object of this fund has been presented distinctly in the instrument by which it was created. That has been read to you again and again, and it is not necessary that I should repeat its form or its words, in order to remind you of its full force. But I beg to remark, that that fund, that trust, I care not what you call it, on its very face has more objects in view than those which have been looked at by the adverse counsel. It is not a fund for the education of the poor alone. It is not a sacred deposit placed there which is to be untouched forever, because it is devoted to charitable purposes. I admit that it is for the education of the poor to a certain extent. But it expressly provides that it is for the support of a school then in existence, not for the education of the poor alone, but for the education of the children of all the subscribers. It is therefore, in that aspect, as so much money placed by me to support a school at which my own children are educated; and the inquiry is, whether I shall have control of the fund by which that school is to be supported, which I, myself subscribed. The school at Crosswicks, was not created by that fund; the argument has been as if it were thus created. The school was in existence, as can be plainly shown, in twenty different places, before the fund was subscribed; and the school being in existence already, the subscription was for the support of that school. And that was its first object.

The counsel here read that portion of the instrument, which declares a promise to pay to Samuel Middleton, Treasurer, or to his successor or successors in office," the money subscribed, &c. &c. &c. Evid. vol. ii. p. 411.

Now that school was already in existence, and this was a fund created for the support of that school. For what was that school designed? For the poor only? Not at all. It was for those who subscribed, and for those who were connected in that particular society with themselves.

It is further declared in the instrument, "The interest or annuity

is to be applied to the education of such children as now do, or hereafter shall belong to the same preparative meeting, whose parents are not, or shall not be of ability to pay for their education," &c. &c. &c.

A portion of this fund was to be devoted to the education of the poor, but it was to support the school, and if the whole of the interest was not required for the support of the poor, then it was to be devoted to the schooling of those children whose parents had subscribed, and who were of ability to pay. Suppose there was not one single poor in the neighbourhood, that not one of all the members of that preparative meeting required the exercise of this charity for the education of their children, was that fund not to be used? On the contrary, if that could be the case, and when even that was the case, the whole of the fund was devoted, not to the poor, but to the children of subscribers. Now it may have been so, again and again; I think it quite probable, that since the creation of this school there have been repeated instances, in which there was not one human being in that preparative meeting, who was not of ability to educate his children. We shall find hundreds of meetings belonging to this society in which this great and cheering fact exists. I know not how it is there; but it is as probable that it exists there as any where; whether it exists there to that extent or not I am unable to say.

Now my conclusion is, that this subscription is not such a trust as has been spoken of by the opposite counsel; it bears none of the characters of trusts of that kind; it is not devoted to a charitable use and that only. It is a subscription by individuals for their own purpose, for their own support, for the education of their own children, and all that array of books and words which we have had in the course of the argument of the opposite counsel, has been thrown away. It was not necessary to go back to English law, or talk about the statute of Elizabeth; they should have shown that this was a fund devoted to charitable uses. That law will not apply to this fund, and the character which they have given to it, I deny to belong to it. The preparative meeting of Chesterfield, has just as much control over this fund as over any other property in its possession. This surplus which was to be used in the manner I mentioned, is in the hands of the treasurer; and the fund, the whole fund too, the whole fund as well as the surplus, is in the hands of the treasurer of the preparative meeting. But how is it in his hands? The treasurers are before you, and you are inquiring into their rights. But what are the rights of the treasurer to this fund? It is an inquiry which has not been suggested to you by the opposite counsel. The treasurers have no power over this fund in any possible respect; they are the mere agents to hold the fund, and if it is to be loaned, to take security for the loan; but they cannot dispose of one single dollar of it by their mere motion; they can affect the interest of this fund in no way whatever. Every act is to be done under the control of trustees, and sirs, in this society where my learned friend

says majorities are unknown, it is to be a majority of these very trustees, who are to control this fund in all its operations.

You are told that majorities are unknown in this society; I shall consider that question hereafter, more deliberately. But I will call your attention to the strange fact, that a majority have a right to control this fund, and to do it too, despite of the wishes of the minority. I will read first exhibit 2d vol. p. 411.

"We the subscribers, members of the preparative meeting of the people called quakers, at Crosswicks in the township of Chesterfield county of Burlington, in New Jersey, do hereby severally, for ourselves and our heirs, promise to pay (on demand and in specie, at the rate as it now passes) unto Samuel Middleton, treasurer of the school at Crosswicks, begun and set up by and under the care of the preparative meetings of friends at Crosswicks aforesaid, on the twenty-seventh day of the twelfth month, one thousand seven hundred and ninety-two, (1792,) or to his successor or successors in office, the sum of money severally by us written against our names, with interest therefor, after the rate of five pounds for the hundred by the year, the principal whereof so subscribed is to be and remain a permanent fund under the direction of the trustees of the said school, now or hereafter to be cho→ sen by the said preparative meeting, and by them laid out, or lent on interest in such manner as they shall judge will best secure an interest or annuity, which interest or annuity is to be applied to the education of such children as now do or hereafter shall belong to the same preparative meeting, whose parents are not or shall not be of ability to pay for their education; and in case the whole, or any part thereof, shall not be wanted for such purpose, then and in that case, the said interest or income, or such part thereof as shall not be so wanted, is to be applied to such other uses of the said school or schools, now or hereafter to be erected by the said meeting, as the said trustees now or hereafter to be appointed, or a majority to consist of not less than five of them, shall think will best answer the design of the institution.